# Mallett v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · July 26, 2019

URL: https://www.frixlaw.com/law-library/cases/9988803

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** July 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION

RONNIE MALLETT, )
)
Plaintiff, )
)
) CIVIL ACTION NO.
v. ) 6:18-cv-01604-JEO
)
NANCY A. BERRYHILL, )
Acting Commissioner of )
Social Security, )
)
Defendant, )

MEMORANDUM OPINION
Plaintiff Ronnie Mallett appeals from the decision of the Commissioner of
the Social Security Administration (the “Commissioner”) denying his applications
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
under the Social Security Act. (Doc. 1).1 Mallett timely pursued and exhausted
his administrative remedies, and the Commissioner’s decision is ripe for review
pursuant to 42 U.S.C. § 405(g). For the reasons discussed below, the court finds
that the Commissioner’s decision is due to be affirmed.2

1 References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the docket
sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.

2 The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 11).
I. Procedural History
At the time of the hearing Mallett was 53 years old. (R. 41). He completed

the ninth grade and has past relevant work as a truck driver. (R. 30, 41). Mallett
alleges he became disabled on October 24, 2014. (R. 22). 3 Mallett claims he could
no longer work due to a lower back injury, problems with his neck, diabetes, and

high blood pressure. (R. 198). After his claims were denied initially, he requested
a hearing before an ALJ. (R. 22). Following the hearing, the ALJ denied his
claim. (R. 22-31).
Mallett appealed the decision to the Appeals Council (“AC”). After

reviewing the record, the AC declined to further review the ALJ’s decision. (R. 7-
9). That decision became the final decision of the Commissioner and is now ripe
for review. See Frye v. Massanari, 209 F. Supp. 2d 1246, 1251 (N.D. Ala. 2001)

(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)).
II. Statutory and Regulatory Framework
To establish his eligibility 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

3 References herein to “R. __” are to the administrative record found at Docs. 9-1 through 9-19
in the court’s record.
less than twelve months.” 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see also 20
C.F.R. § 404.1505(a). The Social Security Administration employs a five-step

sequential analysis to determine an individual’s eligibility for disability benefits.
20 C.F.R. § 404.1520(a) & 416.920(b).
First, the Commissioner must determine whether the claimant is engaged in

“substantial gainful activity.” Id “Under the first step, the claimant has the burden
to show that []he is not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Comm’r of Soc. Sec., 457 F. App’x 862, 863 (11th Cir.
2012).4 If the claimant is engaged in substantial gainful activity, the

Commissioner will determine the claimant is not disabled. At the first step, the
ALJ determined Mallett had not engaged in substantial gainful activity since
October 24, 2014. (R. 25).

If a claimant is not engaged in substantial gainful activity, the Commissioner
must next determine whether the claimant suffers from a severe physical or mental
impairment or combination of impairments that has lasted or is expected to last for
a continuous period of at least twelve months. 20 C.F.R. § 404.1520(c) &

416.920(c). An impairment “must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical
and laboratory diagnostic techniques.” See id. at § 404.1502. Furthermore, it

4 Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered binding
precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
“must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by [the claimant’s] statement of symptoms.” Id.; see

also 42 U.S.C. § 423(d)(3). An impairment is severe if it “significantly limits [the
claimant’s] physical or mental ability to do basic work activities . . . .” 20 C.F.R. §
404.1520(c).5 “[A]n impairment can be considered as not severe only if it is a

slight abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to work, irrespective of
age, education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th
Cir. 1984); see also 20 C.F.R. § 404.1521(a). A claimant may be found disabled

based on a combination of impairments, even though none of her individual
impairments alone is disabling. 20 C.F.R. § 404.1523. The claimant bears the
burden of providing medical evidence demonstrating an impairment and its

severity. Id. at § 404.1512(a) and (c). If the claimant does not have a severe
impairment or combination of impairments, the Commissioner will determine the
claimant is not disabled. Id. at § & 404.920(c) & 404.1520(a)(4)(ii) and (c). At

5 Basic work activities include:

(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) [c]apacities for seeking, hearing, and
speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions;
(4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers
and usual work situations; and (6) [d]ealing with changes in a routine work
setting.

20 C.F.R. § 404.1521(b).
the second step, the ALJ determined Mallett has the following severe impairments:
diabetes mellitus type II, hypertension, and a prior history of stroke. (R. 25).

If the claimant has a severe impairment or combination of impairments, the
Commissioner must then determine whether the impairment meets or equals one of
the “Listings” found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §

404.920(a)(4)(iii) & (d) and § 416.920(d). The claimant bears the burden of
proving his impairment meets or equals one of the Listings. Reynolds-Buckley,
457 F. App’x at 863. If the claimant’s impairment meets or equals one of the
Listings, the Commissioner will determine the claimant is disabled. 20 C.F.R §

404.1520(a)(4)(iii) and (d). At the third step, the ALJ determined Mallett did not
have an impairment or combination of impairments that meet or medically equal
the severity of one of the Listings. (R. 25).

If the claimant’s impairment does not meet or equal one of the Listings, the
Commissioner must determine the claimant’s residual functional capacity (“RFC”)
before proceeding to the fourth step. 20 C.F.R. § 404.1520(e) & 416.920(e). A
claimant’s RFC is the most he or she can do despite his impairment. See id. at §

404.1545(a)(1) & 416.945(a). At the fourth step, the Commissioner will compare
the assessment of the claimant’s RFC with the physical and mental demands of the
claimant’s past relevant work. Id. at §§ 404.1520(a)(4)(iv) and 416.945(a)(4)(iv).

“Past relevant work is work that [the claimant] [has] done within the past 15 years,
that was substantial gainful activity, and that lasted long enough for [the claimant]
to learn to do it.” Id. § 404.1560(b)(1) and 416.960(b)(1). The claimant bears the

burden of proving that her impairment prevents him from performing her past
relevant work. Reynolds-Buckley, 457 F. App’x at 863. If the claimant is capable
of performing his past relevant work, the Commissioner will determine the

claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b),
416.945(a)(4(iv).
Before proceeding to the fourth step, the ALJ determined Mallett has the
RFC to perform a limited range of light work. (R. at 26-30). More specifically, the

ALJ found Mallett had the following limitations with regard to light work, as
defined in 20 C.F.R. §§ 404.1567(b) & 416.967(b):
[the claimant can] lift and/or carry 20 pounds occasionally and 10
pounds frequently; sit for 6 hours in an 8-hour workday and
stand/walk for 6 hours in an 8-hour workday. The claimant can
push/pull as much as he can lift/carry; occasionally climb ramps and
stairs, but never climb ladders, ropes, or scaffolds; occasionally
balance, stoop, kneel, crouch, and crawl; and never work at
unprotected heights.

(R. at 26). At the fourth step, the ALJ determined Mallett would not be able to
perform his past relevant work as a sander, truck driver, or trash collector. (R. at
30).
If the claimant is unable to perform his past relevant work, the
Commissioner must finally determine whether the claimant is capable of
performing other work that exists in substantial numbers in the national economy
in light of the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§

404.1520(a)(4)(v) & (g)(1), 404.1560(c)(1), 404.920(a)(4)(v) & (g)(1). If the
claimant is capable of performing other work, the Commissioner will determine
the claimant is not disabled. Id.at § 404.1520(a)(4)(v) and (g)(1). If the claimant is

not capable of performing other work, the Commissioner will determine the
claimant is disabled. Id.
At the fifth step, considering Mallett’s age, education, work experience, and
RFC, the ALJ determined he can perform jobs that exist in significant numbers in

the national economy, such as those of small parts assembler, inspector/hand
packer, or cleaner. (R. 31). Therefore, the ALJ concluded Mallett has not been
under a disability as defined by the Act from October 24, 2014, through the date of

the decision. (R. 31).
III. Standard of Review
Review of the Commissioner’s decision is limited to a determination
whether that decision is supported by substantial evidence and whether the

Commissioner applied correct legal standards. Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004). A district court must review the
Commissioner’s findings of fact with deference and may not reconsider the facts,

reevaluate the evidence, or substitute its judgment for that of the Commissioner.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007);
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district court

must “scrutinize the record as a whole to determine whether the decision reached is
reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (internal citations omitted). 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. A district court must uphold factual findings supported by
substantial evidence, even if the preponderance of the evidence is against those

findings. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
A district court reviews the Commissioner’s legal conclusions de novo.

Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner’s]
failure to apply the correct law or to provide the reviewing court with sufficient
reasoning for determining that the proper legal analysis has been conducted
mandates reversal.” Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir.

1991).
IV. Discussion
While not specifically delineated by Mallet’s brief, the court discerns three

issues: (1) whether the ALJ properly evaluated Mallett’s complaints of pain; (2)
whether the ALJ erred in not including Plaintiff’s back impairment as a severe
impairment when calculating his RFC; and (3) whether the ALJ erred in not

considering his back pain in combination with his other severe impairments of
diabetes and hypertension. (Doc. 14 at 10-14). The court considers the first issue
separately and combines its discussion of the second and third issues.

A. Mallett’s Subjective Complaints of Pain
Mallet first argues that the ALJ did not properly evaluate his subjective
complaints of pain. (Doc. 14 at 12-13). Specifically, he contends that his
testimony regarding pain is supported by the medical evidence. (Id.). The

Commissioner responds that substantial evidence supports the ALJ’s finding that
Plaintiff’s allegations were not entirely consistent with the evidence as a whole.
(Doc. 16 at 6-9). The court agrees with the Commissioner.

A claimant bears the burden of proving that he or she is disabled within the
meaning of the Social Security Act. See 20 C.F.R. § 419.912(a) & (c); Moore v.
Barnhart, 405 F.3d 1203, 1211 (11th Cir. 2005); Doughty, 245 F.3d at 1278.
Specifically, a claimant must provide evidence of an underlying medical condition

and either objective medical evidence confirming the severity of the alleged
symptoms or that the medical condition could be reasonably expected to give rise
to the alleged symptoms. See 20 C.F.R. § 419.929; Dyer v. Barnhart, 359 F.3d

1206, 1210 (11th Cir. 2005); Wilson, 284 F.3d at 1225-26; Edwards v. Sullivan,
937 F.2d 580, 584 (11th Cir. 1991). 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. § 416.929(c)(1); 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).

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also 20 C.F.R. §§
404.1529. In determining whether substantial evidence supports an ALJ’s
credibility determination, “[t]he question is not . . . whether the ALJ could have
reasonably credited [the claimant’s] testimony, but whether the ALJ was clearly
wrong to discredit it.” Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939
(11th Cir. 2011).
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. § 416.929(c)(2). A plaintiff cannot simply allege
disabling symptoms. See 20 C.F.R. § 416.929(a) (“statements about your pain and
other symptoms will not alone establish that you are disabled”). The ALJ may

consider the nature of a claimant’s symptoms, the effectiveness of medication, a
claimant’s method of treatment, a claimant’s daily 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. § 416.929(c)(3) & (4). The ALJ is not

required explicitly to conduct a symptom analysis, but the reasons for his or her
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).
Here, the ALJ found that Mallett’s medically determinable impairments
could be reasonably be expected to produce the symptoms Mallett alleged, but his

statements regarding the intensity, persistence, and limiting effects of these
symptoms were not entirely consistent with the record evidence and medical
evidence. (R. 27). For the reasons discussed in detail below, the court finds that

the ALJ’s determination is supported by substantial evidence.
Mallett alleges that he is unable to work due to complications from diabetes,
hypertension, and a past stroke. (R. 27, 45-46). He also alleges dizziness when he

gets hot. (R.27, 44). Additionally, he complains of back, knee, and chest pain for
which he is medicated, but testified that the medication does not help relieve the
pain. (Id.) He contends that the ALJ failed to properly credit this testimony.

With regard to Mallett’s hypertension and diabetes, the ALJ recognized that
although Mallett had been diagnosed with both conditions, the record shows
evidence of non-compliance with the prescribed medicines. (R. 27, 278, 289).
Although Mallett told his doctor he was unable to afford the medications to remedy

his high blood pressure, the ALJ noted that Mallett tested positive for alcohol and
marijuana and smokes cigarettes on a daily basis, thus indicating Mallett had some
amount of money that he could have used to pay for his medications. (R. 28, 278,

280, 292, 300, 302, 314, 338, 346, 349, 350, 357, 360, 366, 367, 374, 376, 384,
387, 413, 847, 849, 910). And when Mallett actually took his medication, his
blood pressure was easily under control. (R. 28, 286, 292). Additionally, despite
Mallett’s knowledge of his diabetes and proper diet needed to control his

condition, Mallett continued to drink approximately eight regular sodas per day.
(R. 28, 910). Based on his failure to comply with the prescribed diet and
medications, substantial evidence supports the decision of the ALJ to discount
Mallett’s claims of disabling limitations from his admittedly uncontrolled diabetes
and hypertension. See 20 C.F.R. §§ 404.1529(c)(3)(v), 416.929(c)(3)(v).

The record also shows that Mallett’s activities of daily living support the
ALJ’s determination. The ALJ specifically considered Plaintiff’s stated daily
activities and noted inconsistencies with his allegations of disabling pain. See

Conner v. Astrue 415 F. App’x 929, 995 (11th Cir. 2011); Macia v Bowen 829
F.2d 1009, 1012 (11th Cir. 1987). Mallett testified that he can make his own
meals, go grocery shopping, do laundry, and independently bathe himself. (R. 28,
47, 49). His statements on his function report, however, contradict this last

assertion, in that Mallet stated that he sometimes needed help dressing and could
not bend over to wash his feet due to his back pain. (R. 28, 231, 232). As noted by
the ALJ, however, Mallett never reported any of these limitations to a doctor. (R.

28).
Additionally, the ALJ highlighted several portions of Mallett’s hearing
testimony that contradicted other statements made by him in the record. For
instance, the ALJ observed Plaintiff alleged problems following instructions, but

he worked in the past as a truck driver, as well as in other jobs, and alleged he
stopped working due to physical reasons - not due to the inability to do the work
mentally. (R. 28, 198, 212, 221). Similarly, the ALJ noted that Plaintiff also

alleged he did not get along with authority, but nothing in the record supports this
contention. (R. 28, 236). The ALJ observed that Plaintiff also alleged he did not
handle stress or change well, but, again, the ALJ found that the record did not

support disabling limitations from depression or anxiety, nor did Plaintiff allege
these mental impairments in his application. (R. 28, 198, 212). See 20 C.F.R. §§
404.1529(c)(4), 416.929(c)(4) (noting that in evaluating a claimant's subjective

statements, an ALJ may consider any conflicts between the claimant's statements
and the rest of the evidence).
In summary, the court finds that the relevant objective evidence is
inconsistent with Mallett’s assertion of disabling pain. The ALJ correctly

considered “the consistency of [Mallett’s] statements” with the remainder of the
evidence, see SSR 16-3p, 2017 WL 5180304, at *8, and her determinations are
supported by substantial evidence.

B. Severe Impairments & Impairments in Combination
Mallett next contends that “the ALJ’s finding that [his] back condition is
non-severe is plainly and palpably wrong” and that the ALJ failed to consider his
back impairments in combination with his other severe impairments. (Doc. 14 at

12-13). Plaintiff points to his use of a cane for ambulation, as well as medical
examinations that “reveal[] decreased range of motion in the lumbar spine with
tenderness, pain, spasm, and a positive straight leg raise.” (Id. at 11). These

claims are without merit for the following reasons.
Plaintiff’s first contention is not supported by the case law. “The finding of
any severe impairment, based on either a single impairment or a combination of

impairments, is enough to satisfy step two because once the ALJ proceeds beyond
step two, he is required to consider the claimant’s entire medical condition,
including impairments the ALJ determined were not severe.” Burgin v. Comm’r of

Soc. Sec., 420 F. App’x 901, 902 (11th Cir. 2011). Here, the ALJ found that
Plaintiff suffered from the severe impairments of hypertension and diabetes
mellitus in step two of the process to determine Plaintiff’s RFC and then proceeded
to the remaining considerations. (R. 25-30). That is all that is required. See

Tuggerson – Brown v Comm’r of Soc. Sec., 572 F. App’x 949, 951-52 (11th Cir.
2014).
Additionally, and contrary to Plaintiff’s assertions, the ALJ specifically

noted his use of a cane and discussed his need for it during his hearing. The ALJ
noted Plaintiff’s use of a cane and the fact that it is not prescribed. (R. 25). She
also noted Plaintiff’s hearing testimony that he uses the cane for balance due to
alleged dizziness. (Id.; R. 54). Physical examinations relating to his back,

however, have been largely unremarkable and there is no diagnosis in the record
regarding his complaints of back pain, and no objective medical evidence since the
time of his motor vehicle accident in 2015.
Further, the ALJ noted the use of a cane when discussing Plaintiff’s August
27, 2015 consultative examination with Kristina Behringer, M.D. (R. 28, 271-72).

At the appointment, Plaintiff was able to get on and off the exam table without
difficulty, despite being slow and cautious. (R. 28, 272). He got up from a chair
with minimal difficulty and tandem walked without significant abnormality. (Id.).

Plaintiff had a full range of motion throughout the exam, with the exception of his
back and hips with flexion, as well as normal strength in his upper and lower
extremities, and there was no evidence of wasting. (R. 28-29, 273). Although
Plaintiff’s Romberg test showed forward/backward swaying, it was likely due to

poorly managed diabetes and hypertension. (R. 29, 273). All other findings were
normal and did not evidence any severe impairment. (Id.). The ALJ finally noted
that Dr. Behringer did not make any diagnosis and did not give an opinion, but

noted that her findings on examination were certainly not indicative of someone
with disabling impairments. (Id.).
Finally, to the extent Plaintiff argues that the ALJ did not assess the
combined effect of his impairments, the record indicates otherwise. At step three,

the ALJ found that Plaintiff did “not have an impairment or combination of
impairments that meets or medically equals the severity” of a listed impairment.
(R. 25). The ALJ also stated in assessing Plaintiff’s subjective allegations in light

of the regulatory factors, as well as the medical evidence, that Plaintiff’s
impairments, “including his allegations of back pain,” would reasonably limit him

to light work. (R. 29-30). Additionally, in discussing the listings, the ALJ stated,
“The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments. ” (R. 25).
These statements are sufficient to show that the ALJ properly considered all of
Plaintiff's impairments during the evaluation process. Burgin v. Comm’r of Soc.
Sec., 420 F. App’x 901, 902-03 (11th Cir. 2011); Wilson, 284 F.3d at 1224.
Conclusion
Having reviewed the administrative record and considered all of the
arguments presented by the parties, the undersigned find the Commissioner’s
decision is supported by substantial evidence and in accordance with applicable
law. Therefore, the court finds that the ALJ’s decision is due to be AFFIRMED.
A separate order will be entered.
DATED this 26th day of July, 2019.

Soh
JOHN E. OTT
Chief United States Magistrate Judge

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9988803. Public record. Not legal advice.