Daniels v. Colvin

Filing 22

ORDER ADOPTING 17 Report and Recommendations affirming the Commissioner's decision. The Clerk of Court is directed to close the case. Signed by Judge William T. Moore, Jr on 8/10/16. (wwp)

U

ti I.

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
SAVANNAH DIVISION
,
17

DIANNE DANIELS,

)
II

4-37

C5
1

Plaintiff,
)

V.

CASE NO. CV415-066

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

ORDER
Before the Court is the Magistrate Judge's Report and
Recommendation (Doc. 17), to which objections have been filed
(Doc. 20) . In her objections, Plaintiff largely repeats the same
arguments contained in her initial brief. However, the Court can
discern no further avenue for relief. As a result, and for the
more specific reasons stated below, the Court finds Plaintiff's
objections to be without merit. Accordingly, the Report and
Recommendation is ADOPTED

as the Court's opinion in this case

and the Commissioner's decision denying benefits is

AFFIRMED.

The Clerk of Court is directed to CLOSE this case.
As the Magistrate Judge noted in his Report and
Recommendation, the Court
review[s] the Commissioner's decision for substantial
evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011) . "Substantial evidence is
more than a scintilla and is such relevant evidence as
a reasonable person would accept as adequate to

support a conclusion." Id. (quotation omitted).
We may not decide the facts anew, reweigh the
evidence, or substitute our judgement for that the
Commissioner." Winschel, 631 F'.3d at 1178 (quotation
and brackets omitted). '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)
(quotation omitted)
Mitchell v. Comni'r Soc. Sec. Admin., 771 F.3d 780, 782 (11th
Cir. 2014) . Accordingly, the Court cannot overturn a decision of
the Commissioner merely because the Court - may have decided
differently if presented with the same facts. Instead, the Court
looks to whether the Commissioner's decision is supported by
substantial evidence, and whether the legal requirements and
standards were followed.
Plaintiff contends that the Administrative Law Judge's
(WALJfl) failure to find certain impairments severe at step 2 in
the disability determination was not rendered harmless at later
steps (Doc. 20 at 2), that the ALJ failed to include all of
Plaintiff's impairments when presenting the residual functional
capacity ('RFC") analysis (id. at 10) , that the ALJ misstated
Plaintiff's testimony to find her not credible (Id. at 12), and
that the ALJ ignored a third party report regarding Plaintiff's
impairments (Id. at 16) . Each of these arguments must fail.
First, even if the ALJ erred in not finding Plaintiff's
carpal tunnel or neck and back pain severe, it was harmless
because the RLJ found Plaintiff's depression to be severe.

2

Hea ti y v. Cornm'r of Soc. Sec., 382 F.

App' x 823, 824-25 (11th

Cir. 2010). Plaintiff, however, argues that the AL's finding at
step 2 was not harmless because it resulted in the

ALJ

failing

to consider whether those impairments met listing 1.04A at step
3. (Doc. 20 at 2, 8.) As a result, Plaintiff alleges that the
ALJ merely provided an insufficient 'formulaic statement." See
Jackson v. Colvin, 2013 WL 1352051 (N.D. Ala. Mar. 29, 2013).
This is not an accurate representation of the AL's
analysis. While the ALJ did note that Plaintiff lacked "an
impairment or combination of impairments that me[t] or medically
equaJjed] the severity of one of the listed impairments," (Doc.
10 at 8) he made that statement when considering the objective
medical evidence. This medical evidence included evaluations of
Plaintiff's neck and back pain. (Id. at 10.) Accordingly, while
the ALJ did not specifically mention listing 1.04A, his analysis
of Plaintiff's impairments was far more than a mere "formulaic
statement." As a result, the Court finds this objection to be
without merit.
Second, Plaintiff argues that the ALJ failed to include all
of Plaintiff's impairments when conducting the RFC. (Doc. 20 at
10.) This is incorrect. To the extent the

ALJ

did not include

all of Plaintiff's impairments, it was because he found those
claims to be "unsubstantiated by the clinical and diagnostic
1

Listing 1,04 addresses disorders of the spine.
3

examinations,

tests

and findings." (Doc. 10 at 9.) The ALJ is

not required to include non-credible testimony. See Washington
*10 (N.D. Fla. 2012) ("The AU

v. Astrue, 2012 WL 1933768 at

properly set forth the credible difficulties or limitations that
flowed from his step-two evaluation of

[p]laintiff's mental

impairments.") Since this determination was based on substantial
evidence, the Court will not overturn it.
Third,

Plaintiff

alleges

that

the

ALJ

improperly

discredited her testimony regarding the subjective pain
standard. (Doc. 20 at 12.) However, Plaintiff's testimony was
discredited because her "subjective allegations are .
unsubstantiated by the clinical and diagnostic examinations,
tests and findings." (Id. at 10.) The ALJ explained in detail
that Plaintiff's testimony varied from the medical evidence
contained in the record. (Doc. 10 at 11.) In particular, the AU
noted that the Plaintiff's testimony differed markedly from the
evaluation of her neurological and psychological examiners.
(Id.) The ALJ explained that this difference resulted in
Plaintiff being found not credible. (Id.) Because the decision
to discredit Plaintiff's testimony was based on substantial
evidence, the Court will not overturn it.
Finally, Plaintiff relies on Tieniber v. Heckler, 720 F.2d
1251 (11th Cir. 1983) for the proposition that the ALJ erred in
not making a "sufficient finding as to [the third party witness

LAI

report's] credibility." (Doc. 20 at 17.) Specifically, Plaintiff
argues that the ALJ did not address or reference the report of
Plaintiff's niece. (Id. at 16.) However, the ALJ did not err in
failing to specifically address the third party witness's
report.
A credibility finding of a report of a third party witness
may be implied from the record. However, Tieniber acknowledged
that implied credibility findings are controversial when such
findings must be inferred 'solely from the AL's ultimate
finding." Tieniber, 720 F.2d at 1255. However, an implied
rejection of a third party report is acceptable when a
substantially similar report is directly rejected. Id. at 1254.
In this case, the fact that the third party witness's report was
determined to be not credible is drawn from more than the AL's
ultimate finding. The ALJ determined that Plaintiff's subjective
testimony was not credible when compared with the objective
medical evidence. (Doc. 10 at 10.) The third party report
substantially mimicked Plaintiff's subjective testimony and can
likewise be determined as incredible. Even if this were not
true, Tieriiber addressed the implied rejection of
"uncontradicted testimony." 720 F.2d at 1254. Here, the
testimony of the third party was directly contradicted by
medical evidence. Accordingly, Tieniber would not apply even if
Plaintiff's testimony and the third party witness's report were

5

not substantially similar. As a result, Plaintiff's objection
must fail.
SO ORDERED this

-

I0

day of August 2016.

WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA