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Battles v. Colvin

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

September 27, 2017

PEGGY BATTLES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER UNITED STATES DISTRICT JUDGE

         I. Introduction

         The plaintiff, Peggy Battles, appeals from the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her applications for Supplemental Security Income (“SSI”), a period of disability, and Disability Insurance Benefits (“DIB”). Ms. Battles timely pursued and exhausted her administrative remedies and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

         Ms. Battles was forty-seven years old at the time of the Administrative Law Judge's (“ALJ's”) decision, and she has a tenth grade education. She has past work as a restaurant assistant manager, combination working manager/stocker, cashier, produce manager, and retail stocker. (Tr. at 126.) Ms. Battles claims that she became disabled on December 21, 2012, the date of her fourth knee surgery. (Tr. at 112.) She claims to suffer from numerous physical and mental problems including major depressive disorder, panic disorder, posttraumatic stress disorder, severe back pain due to degenerative disc disease, severe neck pain due to cervical degenerative disc disease, joint pain due to osteoarthritis, chronic hypertension, severe bilateral wrist pain due to carpal tunnel syndrome s/p arthroscopic surgery in 2011, severe bilateral foot pain, severe headaches, obesity, and insomnia.

         The Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled and thus eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until making a finding of either disabled or not disabled; if no finding is made, the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first step requires the evaluator to determine whether the plaintiff is engaged in substantial gainful activity (“SGA”). See Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the evaluator moves on to the next step.

         The second step requires the evaluator to consider the combined severity of the plaintiff's medically determinable physical and mental impairments. See Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of impairments that is not classified as “severe” and does not satisfy the durational requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The decision depends on the medical evidence contained in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical evidence in the record” adequately supported the finding that plaintiff was not disabled).

         Similarly, the third step requires the evaluator to consider whether the plaintiff's impairment or combination of impairments meets or is medically equal to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

         If the plaintiff's impairment or combination of impairments does not meet or medically equal a listed impairment, the evaluator must determine the plaintiff's residual functional capacity (“RFC”) before proceeding to the fourth step. See Id. §§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine whether the plaintiff has the RFC to perform the requirements of his past relevant work. See Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the plaintiff's impairment or combination of impairments does not prevent him from performing his past relevant work, the evaluator will make a finding of not disabled. See id.

         The fifth and final step requires the evaluator to consider the plaintiff's RFC, age, education, and work experience in order to determine whether the plaintiff can make an adjustment to other work. See Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the Plaintiff cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

         Applying the sequential evaluation process, the ALJ first found that Ms. Battles meets the insured status requirements of the Social Security Act through December 31, 2017. (Tr. at 114.) He next determined that Ms. Battles has not engaged in SGA since the alleged onset of her disability, December 21, 2012. (Id.) According to the ALJ, Plaintiff's osteoarthritis, bilateral carpal tunnel syndrome, s/p bilateral releases, bilateral degenerative joint disease of the knees, s/p right knee bicompartmental arthroplasty, obesity, depression, anxiety, and posttraumatic stress disorder are considered “severe” based on the requirements set forth in the regulations. (Id.) However, he determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 119.) The ALJ determined that Plaintiff has the RFC to perform sedentary work that requires no operation of foot controls, bilaterally; no climbing ladders, ropes, or scaffolds; no exposure to excessive vibration, unprotected heights, uneven terrain, or hazardous, moving machinery; no more than occasionally climbing ramps and stairs, balancing, stooping, kneeling, crouching, or crawling; no more than frequent handling and fingering, bilaterally; can understand, remember, and carry out simple instructions for periods of two hours at a time over an eight-hour day with normal mid-morning, lunch, and mid-afternoon breaks; and can tolerate occasional decision-making, occasional changes to her work environment, and occasional interaction with the public, co-workers, and supervisors. (Tr. at 121.)

         According to the ALJ, Ms. Battles cannot perform any of her past relevant work. (Tr. at 126.) The ALJ further noted that Plaintiff is a “younger individual aged 45-49, ” she has a “limited education, ” and she is able to communicate in English, as those terms are defined in the regulations. (Id.) With the assistance of a vocational expert (“VE”), the ALJ found Plaintiff could perform a significant number of jobs in the national economy including document scanner, table worker, and addressing clerk. (Tr. at 127.) Accordingly, the ALJ found Plaintiff was not under a disability as defined in the Social Security Act from December 21, 2012 through the date of his decision. (Id.)

         II. Standard of Review

         This Court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of its review is limited to determining (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and (2) whether the correct legal standards were applied. See Stone v. Comm'r of Soc. Sec., 544 F. App'x 839, 841 (11th Cir. 2013) (citing Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives deference to the factual findings of the Commissioner, provided those findings are supported by substantial evidence, but applies close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).

         Nonetheless, this Court may not decide facts, weigh evidence, or substitute its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). “The substantial evidence standard permits administrative decision makers to act with considerable latitude, and ‘the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the proof preponderates against the Commissioner's decision, it must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         However, no decision is automatic, for “despite th[e] deferential standard [for review of claims], it is imperative that th[is] Court scrutinize the record in its entirety to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

         III. Discussion

         Ms. Battles alleges that the ALJ's decision should be reversed and remanded for four reasons.[1] First, she believes that the ALJ erred in finding her subjective complaints of pain not credible because Social Security Ruling (“SSR”) 16-3p, which became effective on March 28, 2016, applies retroactively to her case and eliminates consideration of a claimant's credibility from an ALJ's analysis. Second, Plaintiff challenges the weight given by the ALJ to some of the medical sources in her case. Specifically, she contends that the ALJ erred in giving little weight to the opinion of her treating physician, Dr. Keithan, and to the opinions of one-time consultative examiners Dr. Ripka and Dr. Wilson. Third, Plaintiff asserts that the ALJ should have found that her impairments meet or medically equal Listings 1.02, 12.04 and 12.06 at step three of the sequential evaluation process. Fourth, she argues that the Appeals Council refused to review new evidence she submitted solely because it was dated after the ALJ's decision without considering whether the new evidence was actually chronologically relevant and/or material, and that the ALJ's decision was not based on substantial evidence when the evidence to the Appeals Council is considered.

         A. Credibility Determination and SSR 16-3p

         Plaintiff contends that the ALJ erred in evaluating her credibility under SSR 16-3p, which became effective on March 28, 2016. Plaintiff argues that this rule modification is retroactive and credibility is no longer an issue.

         The Commissioner published SSR 16-3p on March 24, 2016, and explicitly established the effective date for the ruling as March 28, 2016. See SSR 16-3p, 2016 WL 1237954, at *1 (March 24, 2016). SSR 16-3p was intended to supersede former SSR 96-7p, and was enacted for the purpose of providing “guidance about how we evaluate statements regarding the intensity, persistence, and limiting effects of symptoms in disability claims under Titles II and XVI of the Social Security Act.” SSR 16-3p, 2016 WL 1119029 (March 16, 2013), at *1. Specifically, SSR 16-3p

eliminat[ed] the use of the term “credibility” from [the Social Security Administration's] sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character. Instead, we will more closely follow our regulatory language regarding symptom evaluation.
Consistent with our regulations, we instruct our adjudicators to consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms after they find that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms. We evaluate the intensity and persistence of an individual's symptoms so we can determine how symptoms limit ability to perform work-related activities for an adult . .
In evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the activities or, for a child with a title XVI disability claim, limit the child's ability to function independently, appropriately, and effectively in an age-appropriate manner.

Id. at *1-2, 10 (alterations and ellipses supplied).

         Plaintiff asserts that even though SSR 16-3p was not adopted until after her case was decided in September 2014, it should be applied retroactively. However, according to the Supreme Court, “[r]etroactivity is not favored in the law, ” and administrative rules will not be construed to have retroactive effect unless Congress expressly empowers the agency to promulgate retroactive rules and the language of the rule explicitly requires retroactive application. Bowen v. Georgetown University Hosp., 488 U.S. 204, 208 (1988). The retroactivity of SSR 16-3p has not been directly addressed by any circuit court of appeals in a published decision. Nonetheless, the Eleventh Circuit has twice recently declined to apply SSR 16-3p retroactively in unpublished cases. See Green v. Comm'r, 2017 WL 3187048, at *4 (11th Cir. July 27, 2017); Lara v. Comm'r, 2017 WL 3098126, at *8 n.6 (11th Cir. July 21, 2017).

         Plaintiff cites Cole v. Colvin, 831 F.3d 411 (7th Cir. 2016), a Seventh Circuit case which neither endorsed nor otherwise discussed retroactive application of SSR 16-3p. She also cites Mendenhall v. Colvin, No. 3:14-cv-3389, 2016 WL 4250214 (C.D. Ill. Aug. 10, 2016), a non-binding out-of-circuit district court case which cited to a Seventh Circuit case to find an exception to the rule in Bowen, 488 U.S. at 208, where the new rule clarifies rather than changes existing law. See Mendenhall, 2016 WL 4250214, at *3 (citing Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir. 1993), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)). However, contrary to the reading of Pope urged in Mendenhall, the Pope court did not remand for reconsideration under a new regulation, and it explicitly held that applying a regulation that is a mere clarification of an existing regulation “is no more retroactive in its operation than is a judicial determination construing and applying a statute to a case in hand.” Pope, 998 F.2d at 483. That is, rather than remand the case for reconsideration under the new regulation, the Pope court considered the clarification and affirmed the ALJ's decision. See Id. at 486-87.

         Given the Supreme Court's holding in Bowen and the absence of any binding precedent directing that SSR 16-3p is to apply retroactively, the Court is not persuaded that SSR 16-3p applies retroactively to the ALJ's September 2014 decision in this case.

         Even if SSR 16-3p did apply retroactively, the ALJ did not violate it in this case. As an initial matter, SSR 16-3p does not alter the methodology for evaluating a claimant's symptoms, but rather explains that the Commissioner eliminated the use of the term “credibility” from this consideration, as “subjective symptom evaluation is not an examination of an individual's character.” SSR 16-3p, 2016 WL 1119029, at *1. Even though the ALJ used the term “credibility, ” he did not assess Plaintiff's general, or “overall” character for truthfulness. Instead, he determined, in accordance with SSR 16-3p, whether Plaintiff's subjective complaints were supported by the medical evidence and consistent with other information in the record, as explained further below. See Cole, 831 F.3d at 412 (“The change in wording [from SSR 96-7p to SSR 16-3p] is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character; obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence.”).

         Nor did the ALJ's consideration of Plaintiff's subjective symptoms violate existing regulations, which have not changed. See 20 C.F.R. §§ 404.1529, 416.929. When a claimant attempts to prove disability based on her subjective complaints, she must provide evidence of an underlying medical condition and either objective medical evidence confirming the severity of her alleged symptoms or evidence establishing that her medical condition could be reasonably expected to give rise to her alleged symptoms. See 20 C.F.R. § 416.929(a), (b); Wilson v. Barnhart, 284 F.3d 1219, 1225-26 (11th Cir. 2002). If the objective medical evidence does not confirm the severity of the claimant's alleged symptoms but the claimant establishes that she has an impairment that could reasonably be expected to produce her alleged symptoms, the ALJ must evaluate the intensity and persistence of the claimant's alleged symptoms and their effect on her ability to work. See 20 C.F.R. § 416.929(c), (d); Wilson, 284 F.3d at 1225-26. An ALJ is not required to accept a claimant's allegations of pain and/or symptoms. Wilson, 284 F.3d at 1225- 26. However, the ALJ must “[explicitly articulate] the reasons justifying a decision to discredit a claimant's subjective pain testimony.” Moore v. Barnhart, 405 F.3d 1208, 1212 n.4 (11th Cir. 2005) (citing Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988)). Further, when the reasoning for discrediting is explicit and supported with substantial evidence, “the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).

         Other than to restate portions of her hearing transcript, Plaintiff does not explain how the ALJ erred in evaluating her credibility. Nonetheless, in this case, the ALJ's decision reveals that he properly assessed Plaintiff's subjective complaints of pain. Plaintiff testified that her carpal tunnel releases and knee replacements were all unsuccessful; that she cannot sit for longer than 30 minutes or stand for longer than 15 to 20 minutes at a time; that she has problems manipulating things with her hands and fingers; she is unable to turn her head to the left; she does not drive or do much cleaning; her pain is a 7 out of 10; her current pain medications are ineffective; she spends 95% of her waking hours lying in bed; she only sleeps two hours per night; she hallucinates at night; and she unintentionally lost 60 pounds over a period of a few months due to depression. (Tr. at 73-77.) Based on the overall evidence as explained by the ALJ, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause her alleged symptoms, but that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible. (Tr. at 121-22).

         Substantial evidence supports the ALJ's credibility determination. As noted by the ALJ, Plaintiff's allegations were inconsistent with the evidence of record, including the findings of Dr. Upadhyay and consultative examiner, Dr. Iyers. (Tr. 123). Dr. Upadhyay, Plaintiff's former pain management specialist, whom she saw three times in October and November 2012 and January 2013, identified neck pain into the left shoulder as her chief complaint but characterized her neck as having good range of motion. (Tr. at 478.) At her March 2013 consultative examination with Dr. Iyers, Plaintiff reported a two-year history of neck pain but Dr. Iyers also found that she had full neck and upper extremity range of motion. (Tr. at 518.) The ALJ also discussed how Plaintiff's allegations regarding her hand and finger limitations were also inconsistent with the evidence of record, including Dr. Sparks's treatment notes. (Tr. at 430-32.) Dr. Sparks performed Plaintiff's carpal tunnel release and released her to return to work in October 2011, noting that Plaintiff said her hands were “doing good.” (Id.) The ALJ also explained ...


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