King v. Saul (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

HEATHER KING, )

)

Plaintiff, )

)

v. ) Civil Action No.: 3:19-cv-322-SRW

)

)

ANDREW SAUL, )

Commissioner of Social Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On August 30, 2017, Plaintiff Heather King filed an application for a period of

disability and disability insurance benefits under Title II of the Social Security Act, alleging

that she became disabled on July 6, 2016. 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 January 14, 2019. Plaintiff appealed that decision and the Appeals Council

denied Plaintiff’s request for review on March 7, 2019. The ALJ’s decision consequently

became the final decision of the Commissioner of Social Security (“Commissioner”). See

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court

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).

for review of that 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. 13, 14. Based on review of the

parties’ submissions, the relevant law, and the record as a whole, the court finds that the

Commissioner’s decision is due to be AFFIRMED.

II. STANDARD OF REVIEW AND REGULATORY FRAMEWORK

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,

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).2 To make this determination, the Commissioner employs a five-

step, sequential evaluation process. See 20 C.F.R. §§ 404.1520; 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.”

2 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).

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

3 McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability

insurance benefits brought under Title II of the Social Security Act. Supplemental security income cases

arising under Title XVI of the Social Security Act are appropriately cited as authority in Title II cases, and

vice versa. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir. 1981); Smith v. Comm’r of Soc. Sec.,

486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The definition of disability and the test used to determine

whether a person has a disability is the same for claims seeking disability insurance benefits or supplemental

security income.”).

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 thirty-two years old at the time she filed her application for benefits

and thirty-three years old at the time of the ALJ’s decision. R. 23, 50, 243. She lives in a

home with her husband and two children. R. 55, 57, 62. Her mother-in-law helps her when

she experiences bad days. R. 60. Plaintiff earned an associate’s degree in general studies.

R. 70, 258.

Plaintiff claims that her ability to work is limited due to “bilateral plantar fasciitis,

chronic lower abdominal post-operative neuralgia, major depressive disorder, tension

headaches, lumbosacral sprain, IBS, cervical spine degenerative disc disease, left ankle

lateral collateral ligament sprain, left hip sprain with arthritic pubic symphysis, and upper

extremity cervical radiculopathy.” R. 257. She served in the Army for over twelve years,

including a twelve-month deployment to Afghanistan. R. 50, 70. Her past relevant work

was as an x-ray technician and career counselor. R. 22, 69, 258.

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 July

6, 2016, the alleged onset date[.]” R. 14. At step two, the ALJ found that Plaintiff suffers

from the following severe impairments: “degenerative arthritis, lumbar radiculopathy,

disorders of muscle, ligament and fascia (left hip and knee strain), [and] abdominal pain

chronic[.]” 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. 20. Next, the ALJ articulated Plaintiff’s RFC as follows:

the claimant has the residual functional capacity to perform light[4] work as

defined in 20 CFR 404.1567(b) except that the claimant can climb ramps and

stairs frequently, never climb ladders, ropes or scaffolds, balance frequently,

stoop occasionally, kneel frequently, crouch occasionally, crawl

frequently[;] the claimant’s time off task can be accommodated by normal

breaks, and she would need one extra five minute unplanned break.

Id. At step four, based upon the testimony of a VE, the ALJ concluded that Plaintiff “is

capable of performing past relevant work as an x-ray technician and career counselor.” R.

22. At step five, based upon Plaintiff’s age, education, work experience, and RFC, the ALJ

found that “[a]lthough the claimant is capable of performing past relevant work . . . there

are other jobs that exist in significant numbers in the national economy that [Plaintiff] also

can perform,” such as an inspector, laundry worker, or wire worker. R. 23, 71–73.

Accordingly, the ALJ determined that Plaintiff “has not been under a disability . . . from

July 6, 2016, through the date of this decision[.]” R. 24.

IV. DISCUSSION

1. Severe Impairments

First, Plaintiff claims that the ALJ erred by finding that she has no severe mental

impairments. Doc. 8 at 2. Specifically, Plaintiff argues that the ALJ erroneously found

that her medically determinable impairments of depression and anxiety were non-severe.

4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects

weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when

it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing

and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).

Id.; R. 17. The Commissioner maintains that the ALJ’s finding at step two is supported by

substantial evidence. Doc. 9 at 5.

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. §§ 404.1520(c); 404.1505(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. § 404.1545(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 satisfied the threshold inquiry by finding that

Plaintiff has severe impairments. R. 14–19; see Jamison, 814 F.2d at 588. 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 cort must consider whether

the ALJ considered all of Plaintiff’s impairments, regardless of severity, in performing the

next steps of the sequential evaluation process. Here, the ALJ specifically stated that she

considered the “entire record” and “all” of Plaintiff’s symptoms, including the combined

effects of Plaintiff’s medically determinable impairments. R. 20. 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 Plaintiff’s alleged anxiety and depression, the ALJ in fact

discussed Plaintiff’s symptoms and limitations in detail. In determining whether Plaintiff’s

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

the ALJ found that Plaintiff had no limitations in the areas of understanding, remembering,

or applying information and mild limitations in the areas of interacting with others;

maintaining concentration, persistence, or pace; and adapting or managing oneself. R. 18–

19. In making these findings, the ALJ relied on, inter alia, the prior administrative medical

findings by two psychologists, Plaintiff’s limited history of mental health treatment and

generally benign symptoms, and Plaintiff’s daily activities. R. 17–19.

First, the ALJ observed that “[t]he mental impairment assessments” in the record

were “consistent with a finding that [Plaintiff] is not disabled.” R. 18. The ALJ specifically

reviewed the prior administrative findings of two psychological consultants, Carol Moore,

Ph.D., and Matthew Comrie, Psy.D., who reviewed Plaintiff’s medical record and found

that Plaintiff had non-severe mental impairments with no more than mild functional

limitations. R. 18, 83, 95. The ALJ specifically stated that she agreed with their

assessments. R. 18.

Plaintiff argues that these prior administrative findings conflict with the American

Psychiatric Association’s definition of major depressive disorder. Doc. 8 at 4. Plaintiff

appears to argue that her diagnosis of major depressive disorder alone proves that she has

resulting functional limitations. However, “the 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)). It was Plaintiff’s burden to demonstrate the existence of functional limitations

due to her alleged mental impairments, not simply that she was diagnosed with major

depressive disorder.

As a second basis for finding Plaintiff’s mental impairments non-severe, the ALJ

observed that Plaintiff had received “limited mental health therapy.” R. 17. Indeed, the

record shows that Plaintiff received very infrequent treatment for her mental health, which

consisted of four treatment sessions occurring over a three-month period from March

through May 2017. R. 375, 391–392, 400–401, 411–413. The ALJ observed that “[t]he

majority of her depression and anxiety symptoms appears to be related to her physical

impairments” and noted a treatment visit with a negative depression screen. R. 17. The ALJ

also observed that Plaintiff had been prescribed Celexa, but found that her treatment

records did “not indicate or evidence her mental impairments to be debilitating to her.” R.

17–18.

Third, the ALJ considered Plaintiff’s reported daily activities. R. 17–19. In

particular, the ALJ noted that Plaintiff cared for her three young children, maintained her

hygiene and appearance, managed her affairs, and participated in customary household

chores. Id. These daily activities are well documented in the record and, in the ALJ’s view,

were evidence that Plaintiff’s mental impairments were non-severe.

Plaintiff argues that the ALJ erred by deciding at step two that her mental

impairments are non-severe without first obtaining a psychiatric or consultative

examination. Doc. 8 at 7 (citing McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir. 1988)).

Plaintiff’s argument is based on 42 U.S.C. § 421(h), which provides, in relevant part, that

“[a]n initial determination . . . shall not be made until the Commissioner . . . has made every

reasonable effort to ensure . . . in any case where there is evidence which indicates the

existence of a mental impairment, that a qualified psychiatrist or psychologist has

completed the medical portion of the case review and any applicable residual functional

capacity assessment.” 42 U.S.C. § 421(h)(1). Plaintiff’s argument is misplaced for several

reasons.

First, section 421(h) applies to an “initial determination,” which refers to the first

step in the Commissioner’s review process, prior to a hearing by the ALJ. See 20 C.F.R.

§ 404.900(a)(1); see also Westphal v. Berryhill, No. 4:16-cv-59-JEO, 2017 WL 2172021,

at *7 (N.D. Ala. May 17, 2017). Second, the Commissioner complied with section 421(h)

by obtaining the opinion of a qualified psychologist at the initial level of review. As

discussed above, Dr. Moore participated in the initial determination, reviewed the record,

and determined that the medical evidence of record did not support work limitations due

to mental health symptoms. R. 83. The ALJ credited Dr. Moore’s finding in making her

step-two finding and RFC determination. R. 18, 21–22. Finally, “although the

‘administrative law judge has a duty to develop the record where appropriate,’ the ALJ ‘is

not required to order a consultative examination as long as the record contains sufficient

evidence for the administrative law judge to make an informed decision.’” Parker v.

Colvin, No. 3:15-cv-269-WC, 2016 WL 1092237, at *3 (M.D. Ala. Mar. 21, 2016) (quoting

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007)). In this case,

as set out above, the record before the ALJ was sufficient to permit the ALJ to assess the

severity of Plaintiff’s alleged mental impairments.

The ALJ’s decision includes a thorough discussion of Plaintiff’s alleged mental

impairments, including depression and anxiety, and provides a full explanation for her

conclusion that they were not severe. The court concludes that the ALJ did not err in

considering Plaintiff’s alleged mental impairments at step two.

2. Subjective Complaints of Pain

Next, Plaintiff argues that the “ALJ failed to properly evaluate [her] subjective

statements regarding her physical impairments.” Doc. 8 at 9.

In this circuit, to demonstrate that pain or symptoms of an underlying medical

condition render her disabled, a plaintiff must satisfy what has come to be known as the

“pain standard.” Mack v. Comm’r of Soc. Sec., 420 F. App’x 881, 883 (11th Cir. 2011);

see also Vonboeckman v. Colvin, No. 5:13-cv-1401-SLB, 2014 WL 6239598, at *5 (N.D.

Ala. Nov. 13, 2014). Under that standard, the plaintiff must “produce ‘evidence of an

underlying medical condition and (1) objective medical evidence that confirms the severity

of the alleged pain arising from that condition or (2) that the objectively determined

medical condition is of such severity that it can be reasonably expected to give rise to the

alleged pain.’” Edwards, 937 F.2d at 584 (quoting Landry v. Heckler, 782 F.2d 1551, 1553

(11th Cir. 1986)); see also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If an

ALJ discredits subjective testimony on pain, “he must articulate explicit and adequate

reasons.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Jones v. Bowen,

810 F.2d 1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d at 1054).

SSR 16-3p directs an ALJ to consider “all of the evidence” when evaluating “the

intensity, persistence, and limiting effects of an individual’s symptoms” and sets forth a

number of factors that an ALJ should consider, including: (1) the claimant’s daily

activities; (2) the location, duration, frequency, and intensity of pain or other symptoms;

(3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness,

and side effects of any medication the claimant takes or has taken to alleviate pain or other

symptoms; (5) treatment, other than medication, the claimant receives or has received for

relief of pain or other symptoms; (6) any measures other than treatment the claimant uses

or has used to relieve pain or other symptoms; and (7) any other factors concerning the

claimant’s functional limitations and restrictions due to pain or other symptoms. SSR 16-

3p, 2017 WL 5180304, at *7–8 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(3);

Collier v. Saul, 407 F. Supp. 3d 1201, 1204 (N.D. Ala. Sept. 6, 2019).

Here, in evaluating Plaintiff’s subjective complaints of pain, the ALJ found that

Plaintiff’s “medically determinable impairments could reasonably be expected to cause the

alleged symptoms.” R. 21. However, the ALJ also found that Plaintiff’s statements

“concerning the intensity, persistence, and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence in the record.” Id.

Plaintiff contends that the ALJ’s assessment consisted solely of “boilerplate

language.” Doc. 8 at 11. However, the ALJ’s decision includes a discussion of the relevant

factors, including Plaintiff’s treatment history; the location, duration, frequency, and

intensity of her pain; her prescribed medications; and her daily activities. R. 15–21; see 20

C.F.R. § 404.1529(c)(3) (identifying factors that an ALJ will consider when evaluating a

claimant’s symptoms, including pain); see also SSR 16-3p, 2017 WL 5180304, at *7–8.

The ALJ thoroughly and accurately noted Plaintiff’s statements and hearing testimony and

discussed in detail her impairments, including depression, anxiety, hip sprain, arthritis,

urinary incontinence, history of ovarian tumors, chronic abdominal pain, and plantar

fasciitis. R. 15–21. The ALJ observed, however, that the record did not contain any medical

opinion supporting greater limitations than those included in the RFC. R. 21. The ALJ

found persuasive the opinions offered by the state agency medical and psychological

consultants, which the ALJ characterized as “reflect[ing] some limitations, but not to the

level of severity alleged by [Plaintiff].” Id. In sum, the ALJ explained that an RFC for light

work with various postural limitations accounted for Plaintiff’s musculoskeletal problems,

neurological issues, and pain complaints. Id. The ALJ explained that she included an

additional unscheduled five-minute break for Plaintiff’s incontinence issues. Id.

The court finds no error in the ALJ’s evaluation of Plaintiff’s subjective complaints

of pain. Although Plaintiff points to evidence in the record that she contends bolsters her

statements regarding the nature and limiting effects of her impairments, the fact that

another conclusion may be reasonable from the record is not a basis for remand. See Werner

v. Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011) (“The question is not . . .

whether the ALJ could have reasonably credited [Plaintiff’s] testimony, but whether the

ALJ was clearly wrong to discredit it.”). 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. The court discerns no legal error in the ALJ’s

consideration of the evidence of record, nor in her explanation of the decision.

Accordingly, because the Commissioner’s decision is supported by substantial evidence

and the proper legal standards were applied, it is due to be affirmed.

V. CONCLUSION

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

for the reasons given above, the Commissioner’s decision will be AFFIRMED. A separate

judgment will issue.

In addition, it is hereby ORDERED that Plaintiff’s request for an award of EAJA

fees and request to extend the time to file a motion for an award of attorney’s fees pursuant

to 42 U.S.C. § 406(b) are DENIED. See Doc. 8 at 12.

A separate judgment will issue.

Done, on this the 25th day of February, 2020.

/s/ Susan Russ Walker

Susan Russ Walker

United States Magistrate Judge