SMITH v. COLVIN

Filing 15

ORDER affirming the decision of the Commissioner of Social Security. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6/6/17. (AGH)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
BRENDA D SMITH,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:16-CV-36-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability insurance
benefits, finding that she is not disabled within the meaning of the Social Security Act
and Regulations. Plaintiff contends that the Commissioner’s decision was in error and
seeks review under the relevant provisions of 42 U.S.C. § 405(g) and 42 U.S.C. §
1383(c). All administrative remedies have been exhausted. Both parties filed their
written consents for all proceedings to be conducted by the United States Magistrate
Judge, including the entry of a final judgment directly appealable to the Eleventh Circuit
Court of Appeals pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).

“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that she is unable to perform her
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff
seeking Social Security disability benefits must demonstrate that she suffers from an

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Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.

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impairment that prevents her from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”). Id. Fourth, the Commissioner determines whether the
Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
any other work. In arriving at a decision, the Commissioner must consider the combined
effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.

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ISSUES
I.
Whether the ALJ properly considered Plaintiff’s limitations in formulating
her RFC and in creating a hypothetical question for the VE.
II.

Whether the ALJ properly evaluated Plaintiff’s credibility.
Administrative Proceedings
Plaintiff Brenda Darlene Smith filed an application for disability insurance

benefits on January 16, 2013, alleging disability to work commencing September 1, 2012.
Her claim was denied initially on August 27, 2013 and on reconsideration on November
21, 2013. She filed a written request for an evidentiary hearing before an administrative
law judge (ALJ) on December 13, 2013, which was conducted on June 18, 2015.
Plaintiff appeared and testified as did a vocational expert (VE). She was represented by
an attorney at the hearing. At the hearing, she amended her onset of disability date to
October 3, 2014. Tr. 30. The ALJ issued a written decision on July 17, 2015 denying her
claim.

Tr. 27-48.

On August 31, 2015 Plaintiff requested review by the Appeals

Council, but was denied on September 22, 2015 and denied a second time on March 2,
2016. Tr. 26, 15-17, 1-7. Having exhausted the administrative remedies available to her
under the Social Security Act she now brings this action for judicial review of the final
decision by the Commissioner of Social Security to deny her claim for disability benefits.
This action is ripe for review.
Statement of Facts and Evidence
On the date the ALJ issued his unfavorable decision denying her claim, Plaintiff
was forty-nine years old. Tr. 27, 187. She has a general equivalency diploma and a

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business college certificate. Tr. 61, 210. Her previous relevant work is as a pharmacy
technician, cashier, clerk, and bookkeeper. Tr. 42, 90-91. In her application for benefits,
Plaintiff asserts disability due to fibromyalgia, anxiety, depression, degenerative disc
disease, emphysema, and left knee pain. Tr. 209.
In conducting the five-step sequential analysis mandated by the Commissioner’s
regulations for the evaluation of disability claims, the ALJ first found that Plaintiff has
not engaged in substantial gainful activity since her amended alleged onset date of
October 3, 2014. Finding No. 2, Tr. 32. Next, he found her to have severe impairments
of left knee chondromalacia, restless legs, irritable bowel syndrome, diabetes, left hip
bursitis, mild spondylosis, and breast cancer. Pursuant to Social Security Ruling 85-28
he also found her to have nonsevere impairments of obesity/Level I, gastroesophageal
reflux disease (GERD), anxiety and panic disorders, and bipolar I disorder. Finding No.
3, Tr. 32-35. At step three the ALJ determined that these impairments, considered both
alone and in combination with one another, do not meet or medically equal a listed
impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding No. 4, Tr. 3536. Between steps three and four the ALJ formulated a residual functional capacity
assessment (RFC) which permits Plaintiff to engage in a limited range of light work with
certain exertional and environmental restrictions. Finding No. 5, Tr. 36-42. At step four
he found that Plaintiff can return to her past relevant work as a pharmacy technician,
bookkeeper, accounting clerk, and cashier within her restricted RFC. Finding No. 6, Tr.
42. Therefore, he found her to be not disabled to work. Finding No. 7, Tr. 42-43.

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DISCUSSION
In her brief before the Court Plaintiff first contends that the ALJ failed to account
for her frequent absences from work due to cancer therapy in formulating her RFC and as
in the hypothetical question he posed to the VE. Second, she argues that the ALJ placed
undue emphasis on her activities of daily living in discounting the credibility of her
complaints about the limiting effects of her symptoms. The Commissioner responds that
the ALJ’s decision is based on substantial evidence, that Plaintiff has failed to show that
her cancer therapy will cause her to miss work for the required twelve month duration to
be considered disabling, and that the ALJ applied the correct legal principles in deciding
to discount Plaintiff’s credibility. The Court addresses the issues raised by the parties in
the order in which Plaintiff asserts them.
I.
Did the ALJ properly consider Plaintiff’s limitations in formulating her RFC
and in creating a hypothetical question for the VE?
Plaintiff suffers from the severe impairment of breast cancer. As noted by the
ALJ, she had a lumpectomy in October 2014 and continued treatment with both
chemotherapy and radiation. Tr. 37, 38; Exs. 19F, 21F. According to her testimony, by
the time of the evidentiary hearing both of these treatments had ended. Tr. 73. The
medical evidence shows that she took chemotherapy from December 1, 2014 until
January 12, 2015 and a second round from January 26, 2015 until March 9, 2015. Tr.
688. This was followed up by radiation from April 9, 2015 until May 26, 2015, at which
time all treatment ended. The total amount of time Plaintiff underwent treatment after the
lumpectomy was less than six months. This period of time is well short of the twelve

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month duration period required for an impairment to result in disability. 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 404.1509. Only once during the six month
treatment period did Plaintiff’s treating physician, Ha N. Tran, M.D., say that Plaintiff
was unable to work—in his note of January 28, 2015. He specifically said she was
unable to work “at this time.” Tr. 688. Otherwise, Dr. Tran consistently characterized
her as “fully active, able to carry on all pre-disease activities without restriction.” Tr.
721-25, 733-37, 741-52. The ALJ properly concluded that Plaintiff’s cancer therapies
did not cause work-related limitations beyond the brief period of her treatment. SSR 968p. Since this conclusion is well-supported by the medical evidence of record, he was
under no obligation to include limitations related to cancer treatment in his hypothetical
question to the VE and no error is found.
II.

Did the ALJ properly evaluate Plaintiff’s credibility?
In her second assertion of error Plaintiff contends the ALJ erred in discounting her

credibility regarding the intensity, persistence, and limiting effects of her symptoms. Her
argument is that he placed “undue emphasis” on her activities of daily living. Pl.’s Br. 2.
Participation in everyday activities of short duration does not alone disqualify a claimant
from an award of disability benefits. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir.
1997). However, activities of daily living was only one of the bases upon which the ALJ
found her less than fully credible. The ALJ specifically discussed the beneficial effects
of her medications and further found the objective medical evidence to be inconsistent
with the extreme symptomology to which she testified. Tr. 37-42. He did not consider
Plaintiff’s testimony about her activities of daily life—alone—as dispositive.
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The ALJ did, however, make a factual finding that these activities were
sufficiently extensive in both nature and duration to undermine her credibility. Tr. 38,
68-73. A claimant’s activities of daily living can be considered by an ALJ in deciding
whether a claimant’s symptoms are as limiting as alleged. Lanier v. Comm’r of Soc. Sec.,
252 F. App’x 311, 314 (11th Cir. 2007). The ALJ’s determination to discount Plaintiff’s
credibility is supported by substantial evidence both as to her daily habits and activities as
well as the two additional reasons he set forth in his written decision. Mason v. Comm’r
of Soc. Sec., 430 F. App’x 830, 834 (11th Cir. 2011). No error was committed by the
ALJ in the manner in which he assessed Plaintiff’s testimony.
CONCLUSION
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 6th day of June, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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