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Phillips v. Berryhill

United States District Court, N.D. Alabama, Middle Division

March 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Pursuant to 42 U.S.C. § 405(g), plaintiff Yvonne B. Phillips seeks judicial review of a final adverse decision of the Commissioner of Social Security.[1] The Commissioner denied Ms. Phillips's claim for a period of disability and disability insurance. After careful review, the Court affirms the Commissioner's decision.


         Ms. Phillips applied for a period of disability and disability insurance benefits on January 14, 2013. (Doc. 6-6, p. 2). Ms. Phillips alleges that her disability began December 20, 2012. (Doc. 6-6, p. 2). The Commissioner initially denied Ms. Phillips's claim on March 22, 2013. (Doc. 6-5, pp. 2-6). Ms. Phillips requested a hearing before an Administrative Law Judge (ALJ). (Doc. 6-5, p. 10). The ALJ issued an unfavorable decision on May 30, 2014. (Doc. 6-3, pp. 49-57). On January 9, 2015, the Appeals Council declined Ms. Phillips's request for review (Doc. 6-3, pp. 2-8), making the Commissioner's decision final and a proper candidate for this Court's judicial review. See 42 U.S.C. § 405(g).


         The scope of review in this matter is limited. “When, as in this case, the ALJ denies benefits and the Appeals Council denies review, ” the Court “review[s] the ALJ's ‘factual findings with deference' and [his] ‘legal conclusions with close scrutiny.'” Riggs v. Comm'r of Soc. Sec., 522 Fed.Appx. 509, 510-11 (11th Cir. 2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).

         The Court must determine whether there is substantial evidence in the record to support the ALJ's factual findings. “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). In evaluating the evidence in the administrative record, the Court may not “decide the facts anew, reweigh the evidence, ” or substitute its judgment for the judgment of the ALJ. Winschel v. Comm'r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence supports the ALJ's factual findings, then the Court “must affirm even if the evidence preponderates against the Commissioner's findings.” Costigan v. Comm'r of Soc. Sec. Admin., 603 Fed.Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).

         With respect to the ALJ's legal conclusions, the Court must determine whether the ALJ applied the correct legal standards. If the Court finds an error in the ALJ's application of the law, or if the Court finds that the ALJ failed to provide sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis, then the Court must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).


         To determine whether a claimant has proven that she is disabled, an ALJ follows a five-step sequential evaluation process. The ALJ considers:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a residual functional capacity (“RFC”) assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's RFC, age, education, and work experience.

Winschel, 631 F.3d at 1178.

         In this case, the ALJ found that Ms. Phillips has not engaged in substantial gainful activity since December 20, 2012, the alleged onset date. (Doc. 6-3, p. 51). The ALJ determined that Ms. Phillips suffers from the following severe impairments: degenerative disc disease of the cervical spine and lumbar spine, degenerative joint disease of the right knee, bilateral carpal tunnel syndrome, status post right release, and asthma. (Doc. 6-3, p. 51). The ALJ determined that Ms. Phillips suffers from the following non-severe impairments: obesity, diabetes, hypertension, plantar fasciitis, metatarsalgia, hyperlipidemia, seborrheic keratosis, fibromyalgia, and depression. (Doc. 6-3, pp. 51-52). Based on a review of the medical evidence, the ALJ concluded that Ms. Phillips does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 6-3, p. 53).

         In light of Ms. Phillips's impairments, the ALJ evaluated her residual functional capacity. The ALJ determined that Ms. Phillips has the residual functional capacity or RFC to:

perform light work as defined in 20 CFR 404.1567(b) except she is precluded from overhead work activity and from climbing ramps, stairs, ladders, and scaffolds. She may frequently use her hands for handling, fingering, feeling, and use of hand controls. She is precluded from working at unprotected heights or around hazardous moving mechanical parts. She is further precluded from working in exposure to extreme temperatures, respiratory irritants, fumes, and gases.

(Doc. 6-3, p. 53). Based on this RFC and testimony from a vocational expert, the ALJ concluded that Ms. Phillips is able to perform her past relevant work as a dispatcher, real estate agent, receptionist, cashier, and general office clerk. (Doc. 6-3, p. 56-57). Accordingly, the ALJ determined that Ms. Phillips has not been under a disability within the meaning of the Social Security Act. (Doc. 6-3, p. 57).

         IV. ANALYSIS

         Ms. Phillips argues the ALJ's decision is not supported by substantial evidence because the ALJ erroneously concluded that Ms. Phillips's subjective testimony was not credible; that she retained the RFC to perform light work; and that she can perform her past work.[2] Ms. Phillips also argues that the Appeals Council erred by failing to determine if newly submitted evidence was chronologically relevant so as to require remand, and she asks the Court to remand pursuant to sentence four to require the ALJ to consider the records of Dr. Huma Khusro, Dr. James White, and Dr. Daniel Ryan. Finally, Ms. Phillips asks the Court to remand pursuant to sentence six to require the ALJ to consider medical records concerning back surgery that Ms. Phillips had on August 15, 2016. The Court considers these arguments in turn.

         A. Substantial Evidence Supports the ALJ's Decision to Reject Ms. Phillips's Subjective Pain Testimony.

         “To establish a disability based on testimony of pain and other symptoms, the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of an underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed pain.'” Zuba-Ingram v. Commissioner of Social Sec., 600 Fed.Appx. 650, 656 (11th Cir. (2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam)). A claimant's testimony coupled with evidence that meets this standard “is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation omitted). If the ALJ discredits a claimant's subjective testimony, the ALJ “must articulate explicit and adequate reasons for doing so.” Wilson, 284 F.3d at 1225. “While an adequate credibility finding need not cite particular phrases or formulations[, ] broad findings that a claimant lacked credibility . . . are not enough. . . .” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per curiam); see SSR 16-3p, 2016 WL 1119029 at *9 (“The determination or decision must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.”).[3]

         At the administrative hearing in this case, Ms. Phillips testified that she has “constant pain in [her] back” and “problems seeing at night” which limits her ability to drive. (Doc. 6-3, pp. 69-70). Ms. Phillips also testified that she has arthritis in both hands and carpal tunnel in her left hand. She had carpal tunnel surgery on her right hand and needs surgery on her left. (Doc. 6-3, p. 77). She testified that she can only sit 30-40 minutes before needing to stand from the pain “[u]nless [she is] in [her] recliner and reclined.” (Doc. 6-3, p. 79). She explained that epidurals make her feel better, though they raise her blood sugar. (Doc. 6-3, p. 81). She explained that she cannot work because of “the constant pain in [her] back and [her] neck and [her] fibromyalgia.” (Doc. 6-3, pp. 71-72). She testified that she takes Norco, Cymbalta, and Mobic to treat her symptoms and that she experiences no side effects from those medications. (Doc. 6-3, p. 72).

         Ms. Phillips testified that, on average, her pain is a “6” while on her worst days her pain is an “8 and a half.” (Doc. 6-3, p. 82). She stated that her “average day” depends on “how bad [her] fibromyalgia is hurting. Usually it's excruciating.” (Doc. 6-3, p. 72). She testified that some days she is able to make breakfast, but otherwise her household chores “don't get done.” (Doc. 6-3, pp. 72-73). Ms. Phillips stated that when her youngest grandchild, who is five years old, comes over, “we don't go and do anything hardly.” (Doc. 6-3, p. 73). She reported that she occasionally goes grocery shopping at Wal-Mart and “usually” goes to church. (Doc. 6-3, pp. 73-74).

         The ALJ accurately summarized Ms. Phillips's testimony, and substantial evidence supports the ALJ's finding that Ms. Phillips's medically determinable impairments could reasonably be expected to cause the pain she described, but her “statements involving the intensity, persistence, and limiting effects of these symptoms” are not credible. (Doc. 6-3, p. 55). The ALJ focused on discrepancies between Ms. Phillips's testimony and the daily activities described in function reports that Ms. Phillips and her husband completed.

         For example, Mr. Phillips reported that Ms. Phillips prepared three meals daily, washed dishes, dusted, sometimes mopped the floors, and carried out trash. (Doc. 6-7, p. 23). Mr. Phillips added that he sometimes performed these tasks when Ms. Phillips “doesn't feel good” and sometimes “just to help.” (Doc. 6-7, p. 23). The function reports indicate that in addition to this light house work, Ms. Phillips sometimes goes to yard sales and visits with Mr. Phillips's parents. (Doc. 6-7, p. 25). Mr. Phillips did corroborate Ms. Phillips's testimony that she cannot sit or stand for “long period[s] of time.” (Doc. 6-7, p. 22). However, Mr. Phillips's description of Ms. Phillips's daily activities contradicts Ms. Phillips's testimony that chores “don't get done” or that Ms. Phillips has as much difficulty completing chores as she described. (Doc. 6-3, p. 73).

         Ms. Phillips's medical records also are inconsistent with her testimony about her pain. In October 2012, following back surgery, Dr. James White found Ms. Phillips to have “normal postop lumbar spine x-rays.” (Doc. 6-9, p. 54). When Ms. Phillips was admitted to the emergency room in December 2012 for pneumonia, she complained of a sudden onset of back pain, the worst of which was a “7 [out of] 10, ” but the emergency physicians found her neck ...

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