SIMS v. BERRYHILL
ORDER Affirming the determination of the Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 9-20-17. (bdd)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
NANCY A BERRYHILL,
Commissioner of Social Security,
CASE NO. 3:17-CV-22-MSH
Social Security Appeal
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for supplemental security
income, 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).
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
not decide facts, re-weigh evidence, or 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
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
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).
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
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
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
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.
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.
Whether the ALJ assigned appropriate weight to the treating physician’s
Plaintiff Eva Sims filed her application for supplemental security income on
January 31, 2012 alleging that she has been disabled to work since January 10, 2012. Her
claims were denied initially on January 4, 2013 and denied on reconsideration on
September 20, 2013. She filed a written request for an evidentiary hearing before an
administrative law judge (ALJ) on November 11, 2013 and the hearing was conducted on
June 17, 2015. Plaintiff testified at the hearing, as well as an impartial vocational expert
(“VE”). Tr. 21. The ALJ issued an unfavorable decision denying her claims on July 24,
2015. Tr. 18-37. She next requested review by the Appeals Council on August 26, 2015
but was denied on December 7, 2016. Tr. 16, 1-3. Having exhausted the administrative
remedies available to her under the Social Security Act, Plaintiff brings this action
seeking judicial review of the final decision by the Commissioner to deny her
applications for benefits. Her case is ripe for review.
Statement of Facts and Evidence
Plaintiff was forty-two years of age when the ALJ rendered his unfavorable
decision. She has a limited education, is able to communicate in English, and has past
relevant work as a newspaper carrier. Tr. 22, 33. In conducting the five-step sequential
analysis of her claims mandated by the Commissioner’s regulations, the ALJ found at
step two that she has the severe impairment of diabetes mellitus. Finding No. 2; Tr. 23.
He further found that her impairments of asthma, obesity, peripheral neuropathy,
hyperlipidemia, gastroesophageal reflux disease (GERD), depression, and anxiety are
non-severe and explained his reasoning in detail. Finding No. 2; Tr. 23-26. In his step
three analysis he concluded that Plaintiff’s impairments, considered alone and in
combination with one another, do not meet or medically equal the listed impairments set
out in 20 C.F.R. Part 404, Subpart P, Appendix 1. Finding No. 3, Tr. 26. Between steps
three and four, the ALJ formulated a residual functional capacity (RFC) assessment
which permits Plaintiff to engage in light work with a sit/stand option, with no standing
for more than 15 to 20 minutes at a time. Finding No. 4; Tr. 26-32. At step four, he
determined that this restricted RFC assessment renders Plaintiff unable to return to her
“past relevant work” as a newspaper carrier.
At step five, the ALJ relied on VE
testimony and found that there are jobs that exist in significant numbers in the national
economy that Plaintiff could perform such as: sub-assembler, electronics; assembler of
molded frames, optical goods; or marker, garment industry. Finding Nos. 5, 8, 9; Tr. 3335. He therefore found her to be not disabled to work. Finding No. 10; Tr. 35.
Plaintiff contends the ALJ erred in not discussing a treating physician’s opinion
that Plaintiff is severely limited in her ability to walk. She argues that “an ALJ must state
with particularity the weight given to different medical opinions and the reasons for the
assigned weight. Further, a treating physician’s opinion must be given substantial weight
unless good cause is shown to the contrary.” Pl.’s Br. 7; ECF No. 13. The treating
physician to whom Plaintiff refers is Dr. Mitchell who completed a Disabled Person’s
Parking Affidavit for Plaintiff in March 2013, and noted that Plaintiff is severely limited
in her ability to walk. However, Plaintiff’s argument has no merit, as the ALJ properly
assessed Plaintiff’s RFC based on testimonial evidence, objective medical findings, and
Plaintiff’s level of activity. Tr. 25-32.
The ALJ elicited testimony concerning the intensity, symptoms, and treatment of
leg pain. Tr. 44-46. Plaintiff testified that she delivered newspapers two days per week,
four hours per day, but could not work more due to leg pain, which made it difficult for
her to sit or stand. Tr. 44-46, 53-54. Plaintiff claimed that she experienced pain and
fatigue when she walked, and she had neuropathy through her legs with slight numbness
in her toes. Tr. 53. In January 2012, Plaintiff reportedly performed all activities of daily
living without assistance. Tr. 372. In March 2013, Plaintiff reported living in a house
with her children and a grandchild, for whom she cared three times a week for three
hours each day. Tr. 189-90. Plaintiff could attend to her personal care, drive short
distances, and cook. Tr. 49-50. She cleaned and did laundry every day, drove, shopped
for groceries, attended church twice a week, and could walk half a mile before needing to
stop and sit or return home. Tr. 191-94. She could sit for twenty to thirty minutes and
stand about thirty minutes before needing to get up and walk around. Tr. 54-55.
Plaintiff’s recorded interactions with medical professionals further support the
ALJ’s findings. Plaintiff was examined at Walton Regional Medical Center twice in
January 2012, and had normal joint range of motion and no musculoskeletal pain,
numbness, tingling, motor or sensory deficits, swelling or deformities, cyanosis,
clubbing, or edema.
Tr. 254, 258, 356.
Plaintiff could ambulate independently,
demonstrated equal movement and strength for all extremities, and reportedly performed
all activities of daily living without assistance. Tr. 372.
Over the next two years, Plaintiff presented to family practice physician Dr.
Mitchell and other providers at her office for routine medical care Tr. 284-496, 506-28.
In July and August 2012, Plaintiff reported bilateral leg pain, swelling, and numbness or
tingling, but noted that pain medication helped relieve her symptoms. Tr. 285, 290, 401.
She had an abnormal monofilament test with no sensation in her toes, but normal pulses
and reflexes and no clubbing, cyanosis, or edema on exam. Tr. 287, 292, 401. An
August 2012 physiological study of the lower extremities was normal. Tr. 382. At
Plaintiff’s next appointments in November and December 2012, she raised no relevant
complaints and exhibited normal and symmetric muscle strength and no edema or
tenderness on exam. Tr. 507-08, 519-20, 522-23.
In December 2013, Plaintiff presented to St. Mary’s Hospital with complaints of
right leg pain after falling. Tr. 539. It was determined she sustained a tibia fracture. Tr.
541. The attending physician applied a splint, prescribed pain medication, and instructed
Plaintiff to use crutches and avoid weight bearing. Tr. 541-42. Three days later, Plaintiff
reported worsening pain after falling while using her crutches. Tr. 530. On exam,
Plaintiff had tenderness with palpation to the right patella, but normal pulses, intact motor
and sensory function, and no swelling, ecchymosis, cyanosis, edema, or deep vein
thrombosis. Tr. 531. Right ankle imaging showed a tibia fracture, and right knee
imaging showed mild joint disease, but no significant joint effusion, fracture, or
The attending physician prescribed pain medication and
instructed Plaintiff to follow up with orthopedics or urgent care, but the record contains
no indication Plaintiff ever complied. Tr. 533.
Plaintiff’s next medical treatment was not until May 2015, when she first
presented to a community health clinic and, at that time, raised no relevant complaint and
had a normal physical exam. Tr. 617. From August to October 2015, Plaintiff returned
to the clinic four times while reporting problems with her legs. Tr. 604-16. In October,
Plaintiff exhibited impaired sensation of the feet and a low-normal Achilles reflex, but
otherwise had normal exams. Tr. 605, 608, 610.
The ALJ discussed the dearth of objective evidence supporting Plaintiff’s alleged
exertional limitations and fully accounted for Plaintiff’s isolated and infrequent positive
exam findings throughout the relevant period by limiting Plaintiff to a reduced range of
light work. Tr. 33. The ALJ considered and ultimately declined to credit Plaintiff’s
testimony as to the intensity, persistence, and limiting effects of her symptoms. Tr. 32.
The Eleventh Circuit has declined to recognize reversible error where, as here, the
ALJ fails to discuss a treating source opinion that is not inconsistent with the RFC
finding or the ALJ’s ultimate determination. See Hunter v. Comm’r of Soc. Sec., 609 F.
App’x 555, 558 (11th Cir. 2015) (declining to recognize reversible error where ALJ did
not specify weight he assigned treating source opinions because the ALJ considered the
sources’ treatment notes and substantial evidence supported the ALJ’s ultimate
determination); see also Shaw v. Astrue, 392 F. App’x 684, 686-87 (11th Cir. 2010)
(declining to remand for an ALJ to explicitly weigh opinions that did not contradict the
ALJ’s decision); Caldwell v. Barnhart, 261 F. App’x 188, 191 (11th Cir. 2008) (same);
Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005) (same).
The ALJ did consider the Disabled Person’s Parking Affidavit when Plaintiff
attested to it at the administrative hearing. Tr. 54. Moreover, the ALJ considered and
discussed the records from Dr. Mitchell and other providers at her office, including the
findings related to Plaintiff’s legs and ability to ambulate. Tr. 27-28. The ALJ fully
accounted for any limitations associated with the findings and opinions of Dr. Mitchell or
other members of her practice group by limiting Plaintiff to an RFC for a reduced range
of light work, that is, light work with a sit-stand option and no standing for more than
fifteen to twenty minutes at a time. Tr. 25; See Hunter, 609 F. App’x at 558; see also
Shaw, 392 F. App’x at 686-87; Caldwell, 261 F. App’x at 191; Wright, 153 F. App’x at
Substantial evidence, including testimonial evidence, objective medical evidence,
opinion evidence, and Plaintiff’s regular activities, supports the ALJ’s RFC finding for
light work with a sit-stand option and no standing for more than fifteen to twenty minutes
at a time. Tr. 25. Although the ALJ did not explicitly discuss Dr. Mitchell’s parking
affidavit opinion, any error in this regard was harmless as Dr. Mitchell’s opinion is not
inconsistent with the RFC finding or the ALJ’s ultimate determination.
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 20th day of September, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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