Milam v. Berryhill (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

TWILA CHRISTINE MILAM, )

)

Plaintiff, )

)

v. ) Civil Action No.: 1:18-cv-717-SRW

)

)

ANDREW SAUL, )

Commissioner of Social Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On May 11, 2015, Plaintiff Twila Christine Milam filed an application for

Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, alleging

that she became disabled on March 24, 2015. The application was denied at the initial

administrative level. Plaintiff then requested and received a hearing before an

Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued an unfavorable

decision dated October 12, 2017. Plaintiff appealed that decision and the Appeals Council

denied Plaintiff’s request for review on June 11, 2018. The ALJ’s decision consequently

became the final decision of the Commissioner of Social Security. See Chester v. Bowen,

792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review of that

1 Andrew Saul was sworn in as the Commissioner of Social Security on June 17, 2019, and is automatically

substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act,

42 USC § 405(g) (action survives regardless of any change in the person occupying the office of

Commissioner of Social Security).

decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under 28 U.S.C. § 636(c) and

Rule 73 of the Federal Rules of Civil Procedure, the parties have consented to the conduct

of all proceedings and entry of a final judgment by the undersigned United States

Magistrate Judge. See Docs. 12, 13. Based on its review of the parties’ submissions, the

relevant law, and the record as a whole, the court will affirm the Commissioner’s decision.

II. STANDARD OF REVIEW AND REGULATORY FRAMEWORK2

The court’s review of the Commissioner’s decision is a limited one. This court must

find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42

U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial

evidence is more than a scintilla,” but less than a preponderance, “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) (“Even if the

evidence preponderates against the Commissioner’s findings, [a reviewing court] must

affirm if the decision reached is supported by substantial evidence”) (citations omitted).

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). However, 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). A reviewing

court may not look only to those parts of the record which support the decision of the ALJ,

2 For purposes of this appeal, the court uses the Code of Federal Regulations (“C.F.R.”) that was effective

until March 27, 2017, because that was the version of the C.F.R. in effect at the time Plaintiff filed a claim

for benefits. See 20 C.F.R. Part 416, effective March 27, 2017; see also

https://www.ssa.gov/disability/professionals/bluebook/revisions-rules.html Q.3.

but instead must view the record in its entirety and take account of evidence which detracts

from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th

Cir. 1986).

[The court must]…scrutinize the record in its entirety to determine the

reasonableness of the [Commissioner’s]…factual findings. … No similar

presumption of validity attaches to the [Commissioner’s]…legal

conclusions, including determination of the proper standards to be applied in

evaluating claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

To qualify for disability benefits and establish his or her entitlement for a period of

disability, a person must be unable 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).3 To make this determination, the Commissioner employs a five-

step, sequential evaluation process. See 20 C.F.R. § 416.920.

(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

(3) Does the person’s impairment meet or equal one of the specific

impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of

Impairments]?

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

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

question, or, on steps three and five, to a finding of disability. A negative

answer to any question, other than step three, leads to a determination of “not

disabled.”

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

3 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological

abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

42 U.S.C. § 423(d)(3).

The burden of proof rests on the claimant through Step Four. See Phillips v.

Barnhart, 357 F.3d 1232, 1237–39 (11th Cir. 2004); see also Ellison v. Barnhart, 355 F.3d

1272, 1276 (11th Cir. 2003). A claimant establishes a prima facie case of qualifying

disability once he or she has carried the burden of proof from Step One through Step Four.

At Step Five, the burden shifts to the Commissioner, who must then show that there are a

significant number of jobs in the national economy that the claimant can perform. Id.

To perform the fourth and fifth steps, the ALJ must determine the claimant’s

Residual Functional Capacity (“RFC”). Phillips, 357 F.3d at 1238–1239. The RFC is what

the claimant is still able to do despite the claimant’s impairments and is based on all

relevant medical and other evidence. Id. It may contain both exertional and nonexertional

limitations. Id. at 1242–1243. At the fifth step, the ALJ considers the claimant’s RFC, age,

education, and work experience to determine if there are jobs available in the national

economy that the claimant can perform. Id. at 1239. To do this, the ALJ can use either the

Medical Vocational Guidelines (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a

vocational expert (“VE”). Id. at 1239–1240.

The grids allow the ALJ to consider factors such as age, confinement to sedentary

or light work, inability to speak English, educational deficiencies, and lack of job

experience. Each factor can independently limit the number of jobs realistically available

to an individual. Id. 1240. Combinations of these factors yield a statutorily-required finding

of “Disabled” or “Not Disabled.” Id.

III. ADMINISTRATIVE PROCEEDINGS

Plaintiff was 43 years old at the time she filed her application for benefits and was

46 years old at the time of the ALJ’s decision. R. 23, 217. Plaintiff is a resident of Dothan,

Alabama. R. 37. She lives in an apartment with her fiancé. R. 16, 40. She earned her GED

and certified nurse assistant degree. R. 45, 251–252.

In March 2015, Plaintiff was hit by a truck and was hospitalized for a period of time

following the accident. R. 16–17, 381–382. Plaintiff maintains that her ability to work is

limited by “broken hips, broken pelvis, depression, anxiety, back pain, severe headaches,

obesity, high blood pressure, [and] blood clots.” R. 250. Plaintiff’s past relevant work was

as a certified nurse assistant, companion, and janitor. R. 45–54, 68, 239, 252.

Following the administrative hearing, and employing the five-step process, the ALJ

found at Step One that Plaintiff “has not engaged in substantial gainful activity since May

11, 2015, the application date[.]”4 R. 13. At Step Two, the ALJ found that Plaintiff suffers

from the following severe impairments: “morbid obesity; pelvic fracture (post-motor

vehicle accident); and degenerative changes of the medial compartment of the left knee[.]”

Id. At Step Three, the ALJ found that Plaintiff “does not have an impairment or

combination of impairments that meets or medically equals the severity of one of the listed

impairments[.]” R. 15. Next, the ALJ articulated Plaintiff’s RFC as follows:

After careful consideration of the entire record, I find that the claimant has

the residual functional capacity to perform less than the full range of

sedentary[5] work as defined in 20 CFR 416.967(a). Specifically, the

claimant can lift 10 pounds occasionally and less than 10 pounds frequently.

She can carry 10 pounds occasionally and less than 10 pounds frequently.

She can sit six hours, stand two hours, and walk two hours. She can push/pull

4 Although Plaintiff alleged an earlier onset date, for SSI benefit purposes, she must establish disability as

of the application date. Therefore, the relevant period for Plaintiff’s SSI application is the month in which

she filed her application through the date of the ALJ’s decision. See 20 C.F.R. §§ 416.330; 416.335.

5 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves

sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are

sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R.

§ 416.967(a).

as much as she can lift/carry. She can climb ramps and stairs occasionally,

climb ladders, ropes, or scaffolds occasionally, stoop occasionally, kneel

occasionally, crouch occasionally, and crawl occasionally. Her time off-task

includes in addition to normal breaks, off task 5% of time in an 8-hour

workday. She would likely be absent from work one day per month.

R. 16. At Step Four, based upon the testimony of a VE, the ALJ concluded that Plaintiff

“is unable to perform any past relevant work.” R. 22. At Step Five, based upon Plaintiff’s

age, education, work experience, and RFC, the ALJ found that “there are jobs that exist in

significant numbers in the national economy that [Plaintiff] can perform,” such as an

addresser, document preparer, and call-out operator. R. 23, 69. Accordingly, the ALJ

determined that Plaintiff “has not been under a disability . . . since May 11, 2015, the date

the application was filed[.]” R. 24.

IV. DISCUSSION

On appeal, Plaintiff claims that “[t]he Commissioner’s decision should be reversed

because the ALJ’s step two findings are not supported by substantial evidence.” Doc. 15 at

3. Specifically, Plaintiff assigns as reversible error the ALJ’s “fail[ure] to find a number

of [her] disorders to be severe” including “psychiatric disorders … cervical degenerative

disc disease, and bilateral deep vein thrombosis.” Id. at 5. The Commissioner counters that

“the objective medical evidence, the reports of Plaintiff’s functioning, and the lack of

evidence showing Plaintiff complained of significant symptoms with regard to her neck or

deep vein thrombosis (DVT) support the ALJ’s decision not to list her psychological

impairments, DVT, or a neck impairment among Plaintiff’s severe impairments.” Doc. 18

at 4.

An impairment or combination of impairments is “severe” if it “significantly limits

[Plaintiff’s] physical or mental ability to do basic work activities” and persists for at least

twelve consecutive months. 20 C.F.R. §§ 416.920(c); 416.905(a). Plaintiff bears the burden

to prove that an impairment is severe. See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th

Cir. 2001). “Step two is a threshold inquiry,” McDaniel, 800 F.2d at 1031, acting as a

“filter” to eliminate claims involving no substantial impairment, Jamison v. Bowen, 814

F.2d 585, 588 (11th Cir. 1987). In the Eleventh Circuit, “the finding of any severe

impairment, whether or not it qualifies as a disability and whether or not it results from a

single severe impairment or a combination of impairments that together qualify as severe,

is enough to satisfy the requirement of step two.” Id. When an ALJ recognizes at least one

severe impairment, the ALJ is not required to identify additional impairments at step two

if the decision demonstrates that the ALJ properly considered all impairments at

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

Cir. 2014). At the fourth step of the sequential evaluation process, an ALJ must consider

all medically determinable impairments, not just the “severe” impairments identified at

step two. Id.; 20 C.F.R. § 416.945(a)(2). The ALJ’s responsibility is met when she

considers all medical evidence in the record by referencing the claimant’s “combination of

impairments” at step three and stating that she considered “all symptoms” in assessing the

RFC. Tuggerson-Brown, 572 F. App’x at 951–952. Importantly, the “mere existence” of

an impairment does not reveal its effect on a claimant’s ability to work or undermine RFC

findings. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005).

At step two in this case, the ALJ found that Plaintiff has the severe impairments of

morbid obesity, pelvic fracture (post-motor vehicle accident), and degenerative changes of

the medial compartment of the left knee. R. 13. The ALJ also found that Plaintiff has non-

severe impairments including depression, anxiety, headaches, hypertension, and diabetes

mellitus. R. 14–15. Because the ALJ found that Plaintiff has at least one severe impairment,

she was not required to identify all of Plaintiff’s severe impairments before moving to step

three of the sequential evaluation process. See Tuggerson-Brown, 572 F. App’x at 951–

952.

Having found that the ALJ did not err at step two, the court must address the

question of whether the ALJ considered all of Plaintiff’s impairments, regardless of

severity, in performing the next steps of the sequential evaluation process. Plaintiff

contends that the ALJ did not adequately address her psychological impairments, primarily

depression and anxiety, or her diagnoses of cervical degenerative disc disease and DVT.

Doc. 15 at 5–9. However, the ALJ specifically stated that she considered “all” of Plaintiff’s

symptoms, and “all the evidence,” including the “combined effects of all the claimant’s

medically determinable impairments.” R. 16. These statements sufficiently demonstrate

that the ALJ considered all of the necessary evidence. See Tuggerson-Brown, 572 F. App’x

at 951–952.

Moreover, with respect to depression, the ALJ in fact discussed Plaintiff’s

symptoms and limitations in detail. In evaluating whether Plaintiff’s psychological

impairments met the “paragraph B” criteria for evaluating mental disorders, the ALJ found

that Plaintiff had no more than mild limitations in the areas of understanding, remembering,

or applying information; adapting or managing oneself; concentrating, persisting, or

maintaining pace; and interacting with others. R. 14–15. In making these findings, the ALJ

credited evidence in the record that included Plaintiff’s sister’s report that Plaintiff engages

with others through texting and social media, goes out to visit family, goes out in public to

the grocery store, and handles her finances, as well as Plaintiff’s self-reports of socializing

with friends and family, doing word searches, preparing simple meals, and washing dishes

while sitting. R. 272–273, 291, 315.

In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s testimony that she

suffered from depression and anxiety. R. 17. The ALJ also evaluated Plaintiff’s mental

health treatment records, noting that they “reveal generally unremarkable mental status

examinations.” R. 15. For instance, the ALJ observed that on September 17, 2015, Plaintiff

presented to the Holmes County Health Department to establish primary care. R. 18, 480–

481. Although Plaintiff reported a history of depression, upon assessment, it was noted that

she was in “no apparent distress” and showed appropriate mood and affect. Id. The ALJ

observed that during Plaintiff’s December 2015 assessment at Life Management of NW

Florida, a mental health treatment center, she reported worsening depression since the time

she was hit by the truck, nine months earlier. R. 18, 483–501. However, her mental status

examination was unremarkable except for anxious, depressed mood, and continued to be

unremarkable in follow-up visits. Id.

The ALJ also reviewed and afforded great weight to the opinions of non-examining

State Agency psychological consultants James Mendelson, Ph.D., and Jane Cormier, Ph.D.

R. 20. Doctors Mendelson and Cormier reviewed Plaintiff’s medical record and found

evidence of no more than mild mental limitations. R. 80–82, 97–99. Finally, the ALJ gave

great weight to the opinion of Dr. Kenneth Long, a consultative psychological examiner.

R. 15, 17–19. Plaintiff complained to Dr. Long of anxiety and depression related to her

physical conditions; however, her mental status examination was generally unremarkable

except for a depressed mood. R. 19, 475–476. Dr. Long recommended that Plaintiff

continue with treatment for depression and consider counseling “to more fully address both

mood and unresolved trauma,” but did not otherwise determine that Plaintiff had functional

limitations due to her mental symptoms. R. 19, 473–476.

Based on Plaintiff’s mental health treatment records and Dr. Long’s consultative

examination, the ALJ reasoned:

Regarding [Plaintiff’s] depression and anxiety, as noted above, she would go

months without counseling and medications, thereby demonstrating only

mild symptoms. When she did receive treatment, she consistently reported

doing better with medications. Accordingly, [Plaintiff’s] statements have

been found to affect [her] ability to work only to the extent they can

reasonably be accepted as consistent with the objective medical and other

evidence. The level of limitation supported by the evidence of record is

reflected in [Plaintiff’s] residual functional capacity.

. . .

As for the opinion of the consultative examiner, Dr. Long, I give this opinion

great weight. Dr. Long is a specialist in the area and therefore, his opinion is

entitled to more weight. Dr. Long is also an examining physician whose

findings are supported in the record… . Dr. Long’s diagnostic impression

included unspecified depressive disorder (by history), but ruled out post-

traumatic stress disorder. [Plaintiff] reported that she suffers from depression

and anxiety attacks because she fears of her safety. However, other than

[Plaintiff’s] complaint of depression, the record shows that her depression

has not affected [her] functional abilities as she contends.

R. 19–20.

As set out above, the ALJ thoroughly discussed Plaintiff’s alleged psychological

impairments, including depression and anxiety, and provided a thorough explanation for

the RFC findings. The court finds that the ALJ adequately considered Plaintiff’s alleged

psychological impairments in formulating her RFC.

Plaintiff also contends that the ALJ erred by failing to saddress her cervical

degenerative disc disease and DVT specifically. Doc. 15 at 2. With respect to the alleged

neck impairment, the court notes that Plaintiff did not allege she was disabled due to a neck

impairment when she filed her claim and made no mention of neck pain at the hearing. R.

55, 250, 291. Plaintiff’s allegation of a neck impairment appears to come solely from a

March 2015 cervical spine CT scan showing neural foraminal stenosis and a “[p]rominent

osteophyte production projecting into the spinal canal at C5-6[.]” R. 410. Although the

ALJ did not specifically discuss this medical report, she was not required to do so. See

Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (“[T]here is no rigid requirement

that the ALJ specifically refer to every piece of evidence in his decision, so long as the

ALJ’s decision … is not a broad rejection … [of the] ‘medical condition as a whole.’”

(quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)). Moreover, Plaintiff has

failed to point to any evidence in the record that she suffers a functional limitation due to

her alleged neck impairment. “[T]he mere diagnosis of [a condition] says nothing about

the severity of the condition.” Crans v. Berryhill, No. 3:16-CV-914, 2017 WL 4683933, at

*5 (M.D. Ala. Oct. 18, 2017) (quoting Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988));

see also Osborn v. Barnhart, 194 F. App’x 654, 662 (11th Cir. 2006) (“[T]he ‘severity’ of

a medically ascertained disability must be measured in terms of its effect upon ability to

work, and not simply in terms of deviation from purely medical standards of bodily

perfection or normality.”) (quoting McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.

1986)).

Plaintiff’s complaint that the ALJ did not address her DVT fails for the same reason.

The ALJ did in fact note that Plaintiff’s discharge diagnosis following the March 2015

motor vehicle accident included DVT. R. 17, 380–382, 412. The ALJ also remarked at the

hearing that Plaintiff’s DVT was non-severe. R. 37. Plaintiff points out that the ALJ made

a “solitary mention” of her DVT in reviewing the medical records. Doc. 15 at 9. However,

Plaintiff’s diagnosis of DVT appears to be an isolated event for which she was prescribed

medication. R. 412. Aside from the lone diagnosis, Plaintiff has failed to point to any

evidence in the record that her DVT causes functional limitations. See Crans, 2017 WL

4683933, at *5. The ALJ was not required to discuss this evidence in any more detail than

she did.

The ALJ sufficiently discharged her duty in reviewing the medical evidence and

determining whether and how Plaintiff’s impairments affect her ability to work. The ALJ’s

decision articulates the basis for the RFC and cites to substantial supporting evidence in

the record. Although Plaintiff has pointed to evidence in the record that she contends

supports a different result, it is not the court’s role to “decide the facts anew, reweigh the

evidence, or substitute [its] judgment for that of the Commissioner.” Sullivan v. Comm’r

of Soc. Sec., 694 F. App’x. 670, 671 (11th Cir. 2017). The court discerns no legal error in

the ALJ’s consideration of the evidence of record, or in her explanation of the decision.

V. CONCLUSION

The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the Commissioner’s decision is supported by substantial

evidence and the proper legal standards were applied. Thus, the Commissioner’s decision

will be AFFIRMED. A separate judgment will issue.

DONE, on this the 16th day of October, 2019.

/s/ Susan Russ Walker

Susan Russ Walker

United States Magistrate Judge