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Cooper v. Berryhill

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

January 25, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          John E. Ott Chief United States Magistrate Judge

         Plaintiff Antionette Cooper brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). (Doc. 1).[1] The case has been assigned to the undersigned United States Magistrate Judge pursuant to this court's general order of reference. The parties have consented to the jurisdiction of this court for disposition of the matter. (See Doc. 16). See 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(a). Upon review of the record and the relevant law, the undersigned finds that the Commissioner's decision is due to be affirmed.


         Plaintiff protectively filed her current DIB and SSI applications on January 7, 2013, alleging she became disabled beginning December 31, 2011. (R. 114-15, 221-24, 227-28). They were initially denied. (R. 123, 131-45). An administrative law judge (“ALJ”) held a hearing on June 9, 2014 (R. 69-92) and issued an unfavorable decision on October 21, 2014 (R. 49-63). Plaintiff submitted additional evidence to the Appeals Council (“AC”). Upon consideration of the evidence, the Appeals Council found the information did not provide a basis for changing the ALJ's decision. (R. 2, 5-6). Plaintiff's request for review was denied on May 9, 2016. (R. 1).

         II. FACTS

         Plaintiff was 52 years old at the time of the ALJ's decision. She has a high school education and has worked in the past as a janitor. (R. 46, 73, 90, 256). Plaintiff alleged onset of disability on December 31, 2011, due to anxiety, hypertension, thyroid problems, and an increased heart rate. (R. 74-75, 255).

         Following a hearing, the ALJ found that Plaintiff had the following medically determinable impairments: anxiety, hypertension, thyroid nodule, and gastroesophageal reflux disease (“GERD”). (R. 51). He also found 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. pt. 404, subpt. P, app. 1. (R. 55). He further found Plaintiff retained the residual functional capacity (“RFC”) to perform medium, unskilled work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) that did not require: (1) climbing ropes, ladders, or scaffolds; (2) work at unprotected heights or with hazardous machinery; (3) concentrated exposure to temperature extremes; (4) more than frequent interaction with co-workers and supervisors; and (5) more than occasional contact with the public. (R. 57). Based on that RFC finding and testimony from a vocational expert (“VE”), the ALJ concluded Plaintiff could perform her past relevant work as a janitor as well as other work that existed in significant numbers in the national economy such as a dishwasher, a hand packager, and a store laborer. (R. 61-62, 90-91). Accordingly, the ALJ determined Plaintiff was not under a disability, as defined in the Social Security Act, since December 31, 2011, through the date of his decision. (R. 62).


         The court's review of the Commissioner's decision is narrowly circumscribed. The function of the court is to determine whether the Commissioner's decision is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court must “scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.

         The court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, it must reverse the ALJ's decision. See Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).


         To qualify for DIB and SSI under the Social Security Act, a claimant must show the inability to engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D).

         Determination of disability under the Social Security Act requires a five step analysis. 20 C.F.R. §§ 404.1520(a)(4). Specifically, the Commissioner must determine in sequence:

whether the claimant: (1) is unable to engage in substantial gainful activity; (2) has a severe medically determinable physical or mental impairment; (3) has such an impairment that meets or equals a Listing and meets the duration requirements; (4) can perform his past relevant work, in light of his residual functional capacity; and (5) can make an adjustment to other work, in light of his residual functional capacity, age, education, and work experience.

Evans v. Comm'r of Soc. Sec., 551 Fed.Appx. 521, 524 (11th Cir. 2014)[2] (citing 20 C.F.R. § 404.1520(a)(4)). The plaintiff bears the burden of proving that she was disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The applicable “regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work.” Id.

         V. DISCUSSION

         Plaintiff argues four grounds of error: First, the AC failed to review her new submissions “solely because the records were dated after the date of [the ALJ's] decision”; Second, the ALJ failed to order a consultative evaluation; Third, the ALJ failed to state adequate reasons for finding Plaintiff not credible; and Fourth, the ALJ erred in finding Plaintiff can perform her past work. (Doc. 9 at 1 (bold in original)). Each argument will be addressed below, beginning with the challenges to the ALJ's decision.

         A. Plaintiff's Credibility

         Plaintiff argues the ALJ did not give adequate reasons for finding that her allegations of disabling symptoms were not entirely substantiated by the record. (Doc. 9 at 20-23 (Issue 3)). She also argues that the medical evidence clearly establishes her disability. (Id. at 23). The Commissioner responds that the ALJ correctly applied the Eleventh Circuit's pain standard in evaluating Plaintiff's subjective complaints and substantial evidence supports the ALJ's finding that Plaintiff's subjective complaints were not entirely substantiated. (Doc. 10 at 5-12).

         1. Generally

         As noted in the previous section, Plaintiff bears the burden of proving that she is disabled within the meaning of the Social Security Act. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1512 (a) & (c), 416.912(a) & (c) (2015); Moore, 405 F.3d at 1211; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). Specifically, Plaintiff has the burden to provide relevant medical and other evidence she believes will prove her alleged disability resulting from her physical or mental impairments. See 20 C.F.R. §§ 404.1512(a)-(b), 416.912(a)-(b). In analyzing the evidence, the focus is on how an impairment affects a claimant's ability to work, and not on the impairment itself. See 20 C.F.R. §§ 404.1545(a), 416.945(a); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (severity of impairments must be measured in terms of their effect on the ability to work, not from purely medical standards of bodily perfection or normality).

         In addressing a claimant's subjective description of pain and symptoms, the law is clear:

In order to establish a disability based on testimony of pain and other symptoms, the claimant must satisfy two parts of a three-part test 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. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If the ALJ discredits subjective testimony, he must articulate explicit and adequate reasons for doing so. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). Failure to articulate the reasons for discrediting subjective testimony requires, as a matter of law, that the testimony be accepted as true. See Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988).

Wilson, 284 F.3d at 1225; see also 42 U.S.C. § 423(d)(5)(A), 20 C.F.R. §§ 404.1529, 416.929.

         When evaluating a claimant's statements regarding the intensity, persistence, or limiting effects of her symptoms, the ALJ considers all the evidence - objective and subjective. See 20 C.F.R. §§ 404.1529, 416.929. The ALJ may consider the nature of a claimant's symptoms, the effectiveness of medication, a claimant's method of treatment, a claimant's activities, measures a claimant takes to relieve symptoms, and any conflicts between a claimant's statements and the rest of the evidence. See 20 C.F.R. §§ 404.1529(c)(3), (4), 416.929(c)(3), (4). The ALJ is not required explicitly to conduct a symptom analysis, but the reasons for his findings must be clear enough that they are obvious to a reviewing court. See Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995). “A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court.” Id. (citation omitted).

         2. Plaintiff's Claim

         Plaintiff testified at her administrative hearing that she suffered from anxiety attacks. The frequency of her attacks would vary. On some days she would have two or three attacks. At other times, she would have eight to ten attacks a week. (R. 75). She described the attacks as lasting up to “45 minutes or longer.” (R. 81). They manifested in her running outside and taking off her clothes until she calmed down. (R. 81-82). The ALJ found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely credible for the reasons explained in this decision.” (R. 58). In reaching his decision, it is evident the ALJ properly considered the entire medical record. (See R. 58-61). See also 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (the ALJ can consider the objective medical evidence among other factors when evaluating subjective complaints); Social Security Ruling (SSR) 96-7p, 1996 WL 374186, at *1 (ALJ must consider the objective medical record in assessing a claimant's statements).[3] He concluded that the medical record did not fully support Plaintiff's allegations of frequent and persistent anxiety/panic attacks. (R. 58, 75, 81-82). The court agrees.

         The ALJ noted the following medical evidence. Plaintiff was seen at Quality of Life Health Services, Inc. (“Quality of Life”) in January and July 2012, and was negative for anxiety or psychiatric symptoms. (R. 58, 394, 403). When Plaintiff was seen at Gadsden Regional Medical Center in June 2012, she also was negative for any anxiety. (Tr. 58, 320). Although Plaintiff was found to have anxiety in October 2012, it was also noted that her anxiety was exacerbated by alcohol use. (R. 58, 414). She was “noted to be drinking a six-pack of beer per day and was encouraged to stop drinking ...

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