United States District Court, N.D. Alabama, Middle Division
YVONNE B. PHILLIPS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
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. 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.
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.
STANDARD OF REVIEW
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
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
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).
SUMMARY OF THE ALJ'S DECISION
determine whether a claimant has proven that she is disabled,
an ALJ follows a five-step sequential evaluation process. The
(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.
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).
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
(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).
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. 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.
Substantial Evidence Supports the ALJ's Decision to
Reject Ms. Phillips's Subjective Pain Testimony.
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
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).
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).
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
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).
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