White v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

JAMES WHITE, )

)

Plaintiff, )

)

v. ) Case No. 4:24-cv-297-GMB

)

MARTIN O’MALLEY, Commissioner )

of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

On May 24, 2021, Plaintiff James White filed an application for a period of

disability and disability insurance benefits (“DIB”) with an alleged disability onset

date of August 31, 2020. On February 27, 2023, White amended his alleged onset

date to September 1, 2021. White’s application was denied at the initial

administrative level and upon reconsideration. He then requested a hearing before

an Administrative Law Judge (“ALJ”). The ALJ held a telephone hearing on April

17, 2023, and denied White’s claims on August 23, 2023. White requested a review

of the ALJ’s decision by the Appeals Council, which declined review on January 8,

2024. As a result, the ALJ’s decision became the final decision of the Commissioner

of the Social Security Administration (“Commissioner”) as of January 8, 2024.

White’s case is now before the court for review pursuant to 42 U.S.C.

§ 1383(c)(3). Under 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal Rules of Civil

Procedure, the parties have consented to the full jurisdiction of a United States

Magistrate Judge. Doc. 21. Based on a review of the parties’ submissions, the

relevant law, and the record as a whole, the decision of the Commissioner is due to

be affirmed.

I. STANDARD OF REVIEW1

The court reviews a Social Security appeal to determine whether the

Commissioner’s decision “is supported by substantial evidence and based upon

proper legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).

The court will reverse the Commissioner’s decision if it is convinced that the

decision was not supported by substantial evidence or that the proper legal standards

were not applied. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). The

court “may not decide the facts anew, reweigh the evidence, or substitute [its]

judgment for that of the Commissioner,” but rather “must defer to the

Commissioner’s decision if it is supported by substantial evidence.” Miles v. Chater,

84 F.3d 1397, 1400 (11th Cir. 1996) (citation and internal quotation marks omitted).

“Even if the evidence preponderates against the [Commissioner’s] factual findings,

[the court] must affirm if the decision reached is supported by substantial evidence.”

1 In general, the legal standards are the same whether a claimant seeks DIB or supplemental

security income (“SSI”). However, separate parallel statutes and regulations exist for DIB and

SSI claims. Therefore, citations in this opinion should be considered to reference the appropriate

parallel provision as context dictates. The same applies to citations for statutes or regulations

found in excerpted court decisions.

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Moreover, reversal is not

warranted even if the court itself would have reached a result contrary to that of the

factfinder. See Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The

substantial evidence standard is met “if a reasonable person would accept the

evidence in the record as adequate to support the challenged conclusion.” Holladay

v. Bowen, 848 F.2d 1206, 1208 (11th Cir. 1988) (quoting Boyd v. Heckler, 704 F.2d

1207, 1209 (11th Cir. 1983)). The requisite evidentiary showing is “more than a

scintilla, but less than a preponderance.” Bloodsworth v. Heckler, 703 F.2d 1233,

1239 (11th Cir. 1983). The court must scrutinize the entire record to determine the

reasonableness of the decision reached and cannot “act as [an] automaton[] in

reviewing the [Commissioner’s] decision.” Hale v. Bowen, 831 F.2d 1007, 1010

(11th Cir. 1987). Thus, the court must consider evidence both favorable and

unfavorable to the Commissioner’s decision. Swindle v. Sullivan, 914 F.2d 222, 225

(11th Cir. 1990).

The court will reverse the Commissioner’s decision on plenary review if the

decision applies incorrect law or fails to provide the court with sufficient reasoning

to determine that the Commissioner properly applied the law. Grant v. Astrue, 255

F. App’x 374, 374–75 (11th Cir. 2007) (citing Keeton v. Dep’t of Health & Human

Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). There is no presumption that the

Commissioner’s conclusions of law are valid. Id.

II. STATUTORY AND REGULATORY FRAMEWORK

To qualify for disability benefits, 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) & 416(i). 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). White bears the burden

of proving that he is disabled and is responsible for producing evidence sufficient to

support his claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).

A determination of disability under the Social Security Act requires a five-

step analysis. 20 C.F.R. § 404.1520(a). The Commissioner must determine in

sequence:

(1) Is the claimant presently unable to engage in substantial gainful

activity?

(2) Are the claimant’s impairments severe?

(3) Do the claimant’s impairments satisfy or medically equal one of the

specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P,

App. 1?

(4) Is the claimant unable to perform his former occupation?

(5) Is the claimant unable to perform other work given his residual

functional capacity, age, education, and work experience?

See Frame v. Comm’r, Soc. Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015).

“An affirmative answer to any of the above questions leads either to the next

question, or, [at] steps three and five, to a finding of disability. A negative answer

to any question, other than [at] step three, leads to a determination of ‘not disabled.’”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986) (quoting 20 C.F.R.

§ 416.920(a)–(f)). “Once the finding is made that a claimant cannot return to prior

work the burden of proof shifts to the [Commissioner] to show other work the

claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citing

Gibson v. Heckler, 762 F.2d 1516, 1518 (11th Cir. 1985)).

III. RELEVANT FACTUAL BACKGROUND

White was 50 years old on the alleged disability onset date. R. 187, 202. His

primary complaints are pain when moving his right shoulder and both knees, ghost

pain from the amputation of his pinky finger, depression, anxiety, and sleeplessness.

R. 46–48. In his disability report, White alleged the following medical conditions:

right shoulder surgery, post-traumatic stress disorder (“PTSD”), insomnia,

osteoarthritis in his right shoulder, anxiety, depression, gallbladder removal, restless

leg syndrome, left hand partial amputation, and sleep apnea. R. 213. He has a high

school education, and he has 13 years of work experience as a truck driver. R. 214.

At the hearing, White testified about his limitations and daily activities. He

said that he cannot move his right arm above his head without pain and joint popping.

R. 46. He can stand for up to 20 minutes to wash dishes, walk up to a mile, and carry

up to 25 pounds. R. 48–49. White lies down for four to five hours per day. R. 50–

51. He also has ghost pains in his left hand, night terrors, and post-traumatic stress

disorder that often prevent him from sleeping deeply at night. R. 47–48. White does

not live by himself. R. 49–50. He can drive and do light yardwork. R. 50. He has

no issues with performing personal care and personal hygiene. R. 255. He prepares

simple meals, handles money, and attends church weekly. R. 256–58.

White submitted medical evidence from various sources. White received

treatment at the Orthopedic Center for a right shoulder injury. In January 2021, he

had right shoulder decompression and an AC joint resection because of a 30 percent

tear in his right shoulder. R. 361, 372–73, 566. Sarah Jean, a nurse practitioner,

completed a Disability Determination Evaluation on September 8, 2021. R. 563–68.

White reported his shoulder pain as a 3 out of 10 in severity. R. 566. Jean listed

White’s primary physical symptom as chronic and constant shoulder pain. R. 563.

She measured White’s range of motion and determined he had a normal range of

motion except for the forward elevation of his right shoulder, which was 30 degrees

below normal. R. 567–68. Jean also stated that White could perform basic mobility

tasks for employment but not sustained heavy physical labor. R. 566.

In October 2021, White returned to the Orthopedic Center. R. 659–64. The

medical records show he had “pretty good range of motion” but tenderness at the

last 10 to 15 degrees of external rotation. R. 659. On examination, White did not

appear in any distress and was alert and oriented. R. 660. He had “some pain with

Speed testing” and the provider noted that “it is more of an external rotation issue.”

R. 660. The provider also noted that White’s right shoulder x-rays “look[ed] great”

with “[n]ice decompression and AC joint resection.” R. 660. White had a right

shoulder injection and the provider ordered physical therapy. R. 660–61, 664.

Marla Byrum, a nurse practitioner, completed a Disability Determination

Evaluation on August 8, 2022. R. 838–47. Byrum listed White’s subjective

symptoms in detail, including radiating shoulder pain, sharp phantom pains in the

hand that suffered amputation, knee pain exacerbated by activity, restless leg

syndrome, insomnia, anxiety, and PTSD. R. 838. On examination, White was alert

and oriented, and he did not appear to be in distress. R. 840–41. His upper

extremities appeared grossly normal and symmetrical, with no swelling, redness, or

heat. R. 841. White was able to make a fist, touch his thumb to his fingers, use a

button, tie his shoelaces, pick up small objects, and turn a doorknob. R. 841. But

Byrum did note that White appeared to be in pain when moving his right shoulder

during the range-of-motion exam, where he had a limited range of motion. R. 841.

White exhibited 5/5 strength in his upper extremities although his strength decreased

to 4/5 after “repetitive exercise of the right arm.” R. 841. Byrum also noted that

White was able to squat but that his knees popped when standing back up. R. 841.

Byrum concluded that it would be difficult for White to stand for extended periods

of time, work over his head, or lift heavy objects. R. 842.

Dr. Jack Bentley, Jr. completed a Disability Determination Evaluation on

August 3, 2022. R. 833–35. Bentley’s diagnostic impressions were chronic PTSD,

depressive disorder with anxiety, psychological problems, and chronic pain disorder.

R. 834. Bentley offered the opinion that White would have limitations in his ability

to sustain complex work activities, but that his impairment for simple tasks would

fall in the moderate range. R. 835.

The ALJ issued his decision on August 23, 2023. R. 31. Under step one of

the five-step evaluation, he found that White had not engaged in substantial gainful

activity since September 1, 2021, the alleged onset date. R. 16. At step two, the ALJ

concluded that White suffers from the severe impairments of osteoarthritis, trauma

and stressor disorder, disorder of muscle ligament, personality disorder, and

depressive disorder with anxiety. R. 16. The ALJ noted that these medically

determinable impairments cause significant limitations in White’s ability to perform

basic work activities. R. 17. The ALJ determined that White’s impairments of

obesity, obstructive sleep apnea, gastritis, and duodenitis are not severe. R. 17. At

step three, the ALJ found that White does not have an impairment or combination of

impairments that meets or medically equals the severity of one of those listed in the

applicable regulations. R. 17–19.

Before proceeding to the fourth step, the ALJ determined that White had the

residual functional capacity (“RFC”) to perform a limited range of light work as

defined in 20 C.F.R. § 404.1567(b). R. 19. More specifically, the ALJ found that

White has the following limitations with respect to light work:

[N]o driving; no climbing of ladders, ramps, ropes, scaffolds,

occasional climbing of stairs, stooping, crouching, kneeling, crawling,

no operation of hazardous or vibrating machinery; constant to frequent

bilateral upper extremity reaching, and little to no overhead reaching.

He can understand, remember, carry out, simple, routine tasks

involving one or two step instructions for two-hour periods. He should

have minimum work related changes, no contact with the general public

and occasional contact with co-workers and supervisors.

R. 19. At the fourth step, the ALJ determined that White is unable to perform any

past relevant work. R. 29. At the fifth step, the ALJ considered White’s age,

education, work experience, and RFC in determining that there are jobs that exist in

significant numbers in the national economy that White can perform, including work

as a laundry worker, inspector, and housekeeper. R. 29–30. Therefore, the ALJ

concluded that White was not under a disability as defined by the Social Security

Act from September 1, 2021, through the date of decision. R. 30. Based on these

findings, the ALJ denied White’s application. R. 30.

IV. DISCUSSION

White makes two arguments in favor of remand. First, he claims that the ALJ

lacked substantial evidence to conclude that his obstructive sleep apnea is a non-

severe impairment. Doc. 17 at 6. Second, White argues that the ALJ lacked

substantial evidence to conclude that his RFC permits him to do light work with

limitations. Doc. 17 at 11. The court addresses each of these arguments below.

A. Sleep Apnea

White argues that the ALJ’s determination that his obstructive sleep apnea is

a non-severe impairment was not supported by substantial evidence. Doc. 17 at 6–

11. The court disagrees.

A severe impairment is one that significantly limits a claimant’s physical or

mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). The finding of

any severe impairment, whether or not it results from a single severe impairment or

a combination of impairments that together qualify as “severe,” is enough to satisfy

step two. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Where a claimant

alleges several impairments, the Commissioner must consider the impairments in

combination and determine whether they combine to render the claimant disabled.

Jones v. Dept. of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991).

Importantly, an ALJ’s statement that he has considered a combination of

impairments meets this standard. Id.

The court does not need to consider whether the ALJ erred when he decided

that White’s sleep apnea was not a severe impairment. “Any error at step two was

harmless because the ALJ found in [the claimant’s] favor as to impairment, and the

ALJ properly noted that he considered [the claimant’s] impairments in the later

steps.” See Hearn v. Comm’r, Soc. Sec. Admin., 619 F. App’x 892, 895 (11th Cir.

2015). Although the ALJ determined that White’s obstructive sleep apnea is non-

severe, he also determined that White has several other severe impairments and in

later steps explicitly considered all of White’s impairments—including his sleep

apnea—in combination. R. 16–29. For this reason, any error was harmless.

See Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951 (11th Cir.

2014) (“[E]ven assuming [the claimant] is correct that her additional impairments

were ‘severe,’ the ALJ’s recognition of that as a fact would not, in any way, have

changed the step-two analysis, and she cannot demonstrate error below.”).

B. RFC Determination

White next argues that the ALJ’s determination that he has the RFC to perform

a range of light work with certain limitations was not supported by substantial

evidence.2 Doc. 17 at 11–17. In particular, White argues that the ALJ erred in his

(1) selective evaluation of the evidence of White’s physical limitations due to his

shoulder pain (Doc. 17 at 12–13); (2) determination of White’s mental RFC by

giving improper weight to isolated medical records (Doc. 17 at 13–14); and

(3) failure to discuss several of White’s allegations about his daily activities.

Doc. 17 at 14–16. The court disagrees with each argument.

2 Although White also claims that the ALJ’s RFC determination was not consistent with the

appropriate legal standards (Doc. 17 at 11), his brief does not make any argument in support of

this statement. See Doc. 17 at 11–17. The court therefore finds that White abandoned this

argument. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (noting

that a party “abandons a claim when he either makes only passing reference to it or raises it in a

perfunctory manner without supporting arguments and authority”).

A claimant’s RFC is the most he can do despite his limitations. 20 C.F.R.

§ 404.1545. An ALJ must articulate “explicit and adequate reasons” for discounting

subjective testimony about a claimant’s pain. Wilson v. Barnhart, 284 F.3d 1219,

1225 (11th Cir. 2002). A reviewing court will not disturb an ALJ’s credibility

finding if it is supported by substantial evidence. Mitchell v. Comm’r, Soc. Sec.

Admin., 771 F.3d 780, 782 (11th Cir. 2014).

1. Shoulder Pain

Substantial evidence supports the ALJ’s RFC determination as to White’s

shoulder. White argues that the ALJ focused on a “snapshot” of his treatment notes

instead of the entire picture of his shoulder limitations, and he specifically contends

that the ALJ did not properly consider the October 2021 records related to his

shoulder from the Orthopedic Center. Doc. 17 at 13. The court disagrees.

First, although White may disagree with the ALJ’s conclusions about his

shoulder pain, substantial evidence supports the decision. The ALJ repeatedly

referenced the October 2021 visit but found that it did not substantiate White’s

allegations of disabling limitations to his shoulder. R. 20 & 25. In so finding, the

ALJ credited multiple medical visits and reports, including the entries from the

October 2021 visit that noted White had a “pretty good range of motion” despite

tenderness during rotation. R. 659. And White’s x-rays showed “[n]ice

decompression and AC joint resection.” R. 660.

The ALJ also discussed White’s complaints of shoulder pains during Nurse

Byrum’s examination in August 2022, including his tenderness on palpation of the

anterior and AC joint of the right shoulder and limited range of motion in the right

shoulder. R. 24, 841. The ALJ noted that White had 5/5 strength in the upper

extremities although his strength decreased to 4/5 after “repetitive exercise of the

right arm.” R. 24, 841.

With this medical support, the ALJ gave some credence to White’s complaints

and incorporated limitations related to his shoulder issues into the RFC

determination. R. 19. Specifically, the ALJ imposed the limitations of no constant

to frequent bilateral upper extremity reaching and little to no overhead reaching.

R. 19, 46. But he also explained that White’s opinions about his limitations were

not entirely consistent with the medical evidence and his report of daily activities.

R. 25.

At its core, White’s argument asks the court to reweigh the evidence about his

shoulder pain. The court declines to do so. It is the court’s job to review the agency’s

decision and determine whether its conclusion, as a whole, was supported by

substantial evidence in the record. Foote, 67 F.3d at 1558 (citing 42 U.S.C. § 405(g)).

“If the Commissioner’s decision is supported by substantial evidence, this [c]ourt

must affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357

F.3d 1232, 1240 n.8 (11th Cir. 2004). The court “will not decide facts anew, make

credibility determinations, or reweigh the evidence.” Porto v. Acting Comm’r of Soc.

Sec., 851 F. App’x 142, 145 (11th Cir. 2021) (citing Winschel v. Comm’r of Soc.

Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)); see Thomason v. Soc. Sec. Admin.,

Comm’r, 2021 WL 4061423, *7 (N.D. Ala. Sept. 7, 2021) (holding that “so long as

the finding of the ALJ is supported by substantial evidence, it must be affirmed by

this Court”). For these reasons, the court finds that substantial evidence supports the

ALJ’s findings about White’s RFC related to his shoulder pain.

2. Limitations in the Ability to Concentrate, Persist, and Maintain Pace

Substantial evidence supports the ALJ’s determination of White’s RFC as to

his ability to concentrate, persist, and maintain pace. “[W]hen medical evidence

demonstrates that a claimant can engage in simple, routine tasks or unskilled work

despite limitations in concentration, persistence, and pace, courts have concluded

that limiting the hypothetical to include only unskilled work sufficiently accounts

for” a rating of “moderate” difficulties in maintaining concentration, persistence, or

pace. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180–81 (11th Cir. 2011).

An ALJ may “specifically account” for special technique ratings, including a rating

of “moderate” difficulties in maintaining concentration, persistence, or pace, by

means other than an explicit recitation of the ratings. Id. at 1181; see also, e.g.,

Thornton v. Comm’r, Soc. Sec. Admin., 597 F. 15 App’x 604, 612 (11th Cir. 2015)

(affirming ALJ’s decision that claimant could engage in simple non-detailed tasks

despite a moderate limitation in concentration, persistence, and pace).

Here, the ALJ found that White had a moderate limitation in his ability to

concentrate, persist, and maintain pace. R. 18–19. The ALJ accounted for this

limitation in his RFC determination in finding that White can understand, remember,

and carry out routine tasks involving one- or two-step instructions for two-hour

periods. R. 19. In making this determination, the ALJ credited psychotherapy

reports that White frequently was distractible or had a flat affect. R. 545, 547, 570,

700, 810, 816. The ALJ, however, balanced this evidence against medical records

that routinely noted White was fully oriented, attentive, and had good concentration

and judgment. R. 709, 878, 910, 932, 936, 940. The ALJ also found persuasive Dr.

Bentley’s opinion that White has limitations related to communication and

sustaining complex tasks, and these opinions factored into the ALJ’s RFC

determination of White’s mental status. R. 28. For these reasons, substantial

evidence supports the ALJ’s determination that White has a moderate limitation in

his ability to concentrate, persist, and maintain pace.

3. Limitations in Daily Activities

Finally, substantial evidence supports the ALJ’s determinations about White’s

daily activities. White argues that the ALJ failed to consider White’s reported

limitations when he found that White’s daily activities “undermine assertions of a

complete inability to perform substantial gainful activity.” Doc. 17 at 14–17; R. 27.

In particular, White charges the ALJ with omitting White’s limitations in driving,

performing yardwork, and preparing full meals. Doc. 17 at 15.

The courts finds that the ALJ properly considered White’s daily activities.

First, White is incorrect that the ALJ did not consider a driving limitation—the ALJ

included “no driving” as a limitation in White’s RFC determination. R. 19. Second,

the ALJ referenced White’s other reports about his daily activities. For instance, the

ALJ specifically noted that White was “able to help with” cooking and yardwork.

R. 19, 27. The ALJ also considered White’s report that he attended church on most

weekends and completed daily activities without assistance. R. 27.

Moreover, it is unclear how any additional consideration of White’s

limitations in daily living would affect the ALJ’s RFC determination. The ALJ

found persuasive Dr. Bentley’s opinion that White has marked to severe limitations

in his ability to sustain complex tasks and moderate limitations in his ability to

perform simple tasks. R. 28. The ALJ incorporated RFC limitations based on this

opinion and specifically noted that Dr. Bentley’s opinion was consistent with the

limitations in White’s daily activities. R. 28. Therefore, substantial evidence

supported both the ALJ’s determination that White’s daily activities undermine his

claim of complete disability and the ALJ’s reliance on White’s daily activities in

crafting his RFC limitations.

Ultimately, the burden of proving disability always rests with White. See 20

C.F.R. § 404.1512; Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991).

“Under a substantial evidence standard of review, [the claimant] must do more than

point to evidence in the record that supports h[is] position; []he must show the

absence of substantial evidence supporting the ALJ’s conclusion.” Sims v. Comm □□

of Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017); accord Preston v. Comm Soc.

Sec. Admin., 748 F. App’x 268, 271 (11th Cir. 2018) (“[T]hat some evidence

supports a disability determination does not cast doubt on the propriety of the ALJ’s

decision[.]’”). And even if the court disagrees with the ALJ’s resolution of the factual

issues and would resolve those disputed factual issues differently, the ALJ’s decision

must be affirmed where, as here, it is supported by substantial evidence in the record

as a whole. See Baker v. Sullivan, 880 F.2d 319, 321 (11th Cir. 1989).

V. CONCLUSION

For these reasons, substantial evidence supports the Commissioner’s decision,

and it is based on the proper legal standards. Accordingly, the decision of the

Commissioner is due to be affirmed. A final judgment will be entered separately.

DONE and ORDERED on January 14, 2025.

GRAY FAD

UNITED STATES MAGISTRATE JUDGE

17