Uptain v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

SHERI UPTAIN, }

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Plaintiff, }

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v. } Civil Action No.: 6:18-CV-01680-RDP

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NANCY A. BERRYHILL, }

Acting Commissioner of }

Social Security, }

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Defendant. }

MEMORANDUM DECISION

Plaintiff Sheri Uptain (“Plaintiff”) brings this action pursuant to Section 205(g) of the

Social Security Act (“the Act”), seeking review of the decision of the Commissioner of Social

Security (“the Commissioner”) denying her claim for supplemental security income (“SSI”). See

42 U.S.C. § 1383(c). Based on this court’s review of the record and the briefs submitted by the

parties, the court finds that the decision of the Commissioner is due to be affirmed.

I. Proceedings Below

Plaintiff filed her application for SSI on September 1, 2015, alleging a disability onset date

of June 19, 2015. (R. 55). The Social Security Administration (“SSA”) denied the initial request

on December 18, 2015. (R. 69). Plaintiff thereafter requested a hearing before an Administrative

Law Judge (“ALJ”) (R. 77), and ALJ David L. Horton held a hearing on July 31, 2017. (R. 1). In

his decision dated December 29, 2017, the ALJ determined that Plaintiff was not under a disability

within the meaning of section 1614(a)(3)(A) of the Social Security Act. (R. 36). Because the

Appeals Council denied Plaintiff’s request for review on August 18, 2018, which was the final

decision of the Commissioner (R. 19-21), the Commissioner’s decision is now a proper subject for

this court’s appellate review.

II. Statement of Facts

Plaintiff, who was born on June 26, 1972, was 43-years-old when she filed her request for

SSI and 44 at the time of the ALJ’s decision. (R. 5, 171). She has a high school diploma and held

two relevant jobs over fifteen years: billing clerk and cosmetic sales consultant. (R. 6, 34). The

ALJ found that Plaintiff suffers from several severe impairments: lumbar degenerative disc

disease, depression, scoliosis, diabetes mellitus, and obesity. (R. 30).

The issues on appeal concern Plaintiff’s obesity and subjective pain regarding her lower

back and lower extremities. (Pl.’s Mem., Doc. # 11 at 9-13). The record indicates that Plaintiff

first reported back pain radiating into her lower left extremity and sciatica in October 2012; as a

result, the physician prescribed medication for muscle spasms and pain. (R. 225). The next four

years of medical history tell the same story: Plaintiff visited the doctor for back and leg pain and

was re-prescribed the medication. (R. 190, 212, 249, 272, 311, 314, 321, 398). These visits

evidence that Plaintiff consistently had full range of motion in her musculoskeletal system. (R.

230, 249, 359, 373). In October 2015, Plaintiff received an x-ray examination. (R. 305-06). The

impression of the results was that Plaintiff has only eleven rib-bearing thoracic vertebral bodies,

multilevel degenerative disc disease (L3 through L5 levels), a set of hypoplastic ribs, and scoliosis.

(R. 305-06).

In addition, during the period at issue in this case, Plaintiff (who has struggled with weight),

put on a substantial amount of weight. To illustrate, Plaintiff weighed 160 pounds at her October

2012 visit to Walker Baptist Medical Center (R. 230), and, in October 2013, Plaintiff weighed 131

pounds. (R. 249). By her October 6, 2015 visit to Capstone Rural Health Center, Plaintiff weighed

226 pounds, which results in a body mass index (“BMI”) of 40.1. (R. 310).1At the time, the

physician recommended weight loss and consulted Plaintiff on her diet and maintaining regular

exercise. (R. 314-15). Plaintiff returned to Capstone Rural eight times (and the physician continued

to consult her about weight loss) until her final visit in the record on November 9, 2016. (R. 310,

410, 412, 414, 416, 418, 421, 423). At this visit, Plaintiff weighed 198 pounds, and her BMI

measured 35.1. (R. 410).

During the hearing, Plaintiff testified that she takes ibuprofen and Flexeril for her back

pain. (R. 8). More recently, after picking up a four-pound laundry basket, Plaintiff visited the

emergency room where she received morphine and a Norflex shot. (R. 8-9). On typical days, if she

gets out of bed, Plaintiff’s day consists of sitting around and walking for a few minutes until her

pain begins. (R. 10). Plaintiff estimates that she lies down for 22 hours a day. (R. 10). Plaintiff

does not do housework, nor does she drive anymore as a result of her pain. (R. 10).

III. ALJ Decision

Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First,

the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R.

§ 404.1520(a)(4)(i). “Substantial work activity” involves significant physical or mental activities,

and “gainful work activity” is work that is done for pay or profit. 20 C.F.R. § 404.1572. If the

ALJ finds that the claimant engages in substantial gainful activity, then the claimant cannot claim

disability. 20 C.F.R. § 404.1520(b).

1 The record indicates an ever-changing (and confusing) story of Plaintiff’s struggles (and temporary

triumphs) with her weight over a three-month period between August and November 2015. Her first visit to Walker

Baptist in 2015 occurred on August 25, and Plaintiff weighed 199 pounds. (R. 192). Two weeks later, Plaintiff returned

to Walker Baptist, and again she weighed 199 pounds. (R. 207). Then, on September 22, Walker Baptist documented

that Plaintiff weighed 225 pounds. (R. 358). Another two weeks pass, and Plaintiff returned to Walker Baptist

weighing 199 pounds. (R. 373). The following day, on October 6, 2015, Plaintiff visited Capstone Rural Health Center,

and the physicians noted that she weighed 226 pounds (a twenty-seven-pound difference from the day before). (R.

313). Again, two weeks pass, and Plaintiff visited Capstone Rural. (R. 310). At this visit, Plaintiff weighed 224 pounds.

(R. 310). Finally, on November 17, Plaintiff visited MDSI Physician Group and weighed 217 pounds. (R. 319).

Second, the ALJ must determine whether the claimant has a medically determinable

impairment or a combination of medical impairments that significantly limits the claimant’s ability

to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the

claimant may not claim disability. Id.

Third, the ALJ must determine whether the claimant’s impairment meets or medically

equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R.

§§ 404.1520(d), 404.1525, 404.1526. When the claimant meets these criteria, the ALJ will find

that the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii).

If the claimant does not fulfill the requirements necessary to be declared disabled under the

third step, the ALJ may still hold that the claimant is disabled after the next two steps of the

analysis. The ALJ must first determine the claimant’s residual functional capacity (“RFC”), which

refers to the claimant’s ability to work despite his impairments. 20 C.F.R. § 404.1520(e). Then, in

the fourth step, the ALJ evaluates whether the claimant has the RFC to perform past relevant work.

20 C.F.R. § 404.1520(a)(4)(iv). If the ALJ finds that the claimant is capable of performing past

relevant work, then the claimant is deemed not disabled. Id. On the other hand, if the ALJ finds

the claimant unable to perform past relevant work, then the analysis proceeds to the final step. 20

C.F.R. § 404.1520(a)(4)(v).

In the last portion of the test, the ALJ must decide whether the claimant is able to perform

any other work commensurate with her RFC, age, education, and work experience. 20 C.F.R. §

404.1520(g). Here, the burden of proof shifts from the claimant to the Commissioner to prove the

existence, in significant numbers, of jobs in the national economy that the claimant can do given

his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).

In this case, the ALJ found that Plaintiff has not engaged in substantial gainful activity

since September 1, 2015. (R. 30). The ALJ also determined that Plaintiff has the following

medically determinable severe impairments: lumbar degenerative disc disease, depression,

scoliosis, diabetes mellitus, and obesity. (R. 30). However, the ALJ reasoned that the record does

not demonstrate that Plaintiff has an impairment or combination of impairments that meet or

medically equal the severity of a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1.

(R. 31).

After considering whether Plaintiff’s symptoms were reasonably consistent with the

objective medical and opinion evidence and other evidence based on the requirements of 20 CFR

404.1529 and SSR 16-3p, the ALJ determined that while not capable of performing past relevant

work, Plaintiff has the residual functional capacity (“RFC”) to perform light work subject to

additional limitations. (R. 32, 34). The ALJ found that Plaintiff’s medically determinable

impairments could reasonably be expected to cause some of the alleged symptoms, but that

Plaintiff’s statements and other allegations concerning the intensity, persistence, and limiting

effects of these symptoms were not entirely consistent with the medical evidence and other

evidence in the record. (R. 33).

At the final step, considering Plaintiff’s age, limited education, work experience, and RFC,

in addition to the Vocational Expert’s testimony, the ALJ determined that there are existing jobs

in significant numbers in the national economy that Plaintiff can perform. (R. 35-36). Thus, the

ALJ held that Plaintiff was not under a disability, as defined by the Act, from the application date

to the date of decision. (R. 36).

IV. Plaintiff’s Argument for Remand or Reversal

Plaintiff argues that the ALJ’s factual findings are not supported by substantial evidence

or the application of correct legal standards because the ALJ failed to properly consider: (1)

Plaintiff’s obesity singly and in combination with other impairments and (2) Plaintiff’s subjective

allegations regarding pain. (Pl.’s Mem. 8-13). The court addresses each argument, in turn.

V. Standard of Review

The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th

Cir. 1982), and whether the ALJ applied the correct legal standards. See Lamb v. Bowen, 847 F.2d

698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C.

§ 405(g) mandates that the Commissioner’s findings are conclusive if supported by “substantial

evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). In other words, the district

court may not reconsider the facts, re-evaluate the evidence, or substitute its judgment for that of

the Commissioner; instead, it must review the final decision as a whole and determine if the

decision is reasonable and supported by substantial evidence. See Id. (citing Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).

Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;

more precisely, “[i]t is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Id. (quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If

supported by substantial evidence, the Commissioner’s factual findings must be affirmed even if

the evidence preponderates against the Commissioner’s findings. Id. While the court

acknowledges that judicial review of the ALJ’s findings is limited in scope, the court also notes

that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.

VI. Discussion

A claimant “bears the burden of proving that [she] is disabled, and consequently, [she] is

responsible for producing evidence in support of [her] claim.” Ellison v. Barnhart, 355 F.3d 1272,

1276 (11th Cir. 2003) (citing 20 C.F.R. § 416.912(a)). Upon review of the record as a whole, the

court concludes that Plaintiff has not met this burden; thus, the court holds that the Commissioner’s

decision is supported by substantial evidence and is in accordance with applicable law.

A. The ALJ Properly Considered Plaintiff’s Obesity Impairment Throughout the

Inquiry.

At step three of the sequential evaluation process, the ALJ must determine whether a

claimant’s impairment or combination of impairments is of such a severity as to meet or medically

equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing

of Impairments describes ailments that are considered severe enough to prevent a person from

completing “any gainful activity, regardless of his or her age, education, or work experience.” 20

C.F.R. § 404.1525(a). If a claimant’s impairment “meets or equals one of the listed impairments,

the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141

(1987); see also 20 C.F.R. § 404.1520(a)(4)(iii), (d). But, a claimant bears the burden of proving

that her impairments meet or equal an impairment in the Listing.2 See Kalishek v. Commissioner,

470 F. App’x. 868, 870 (11th Cir. 2012); Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991).

2 To prove a listed impairment or equivalent combination, Plaintiff must (1) establish that he has a diagnosed

condition that is included in the Listing and (2) provide objective medical reports documenting that this condition

meets the specific criteria of the applicable Listing and duration requirement. See 20 C.F.R. § 404.1525(a)-(d); Wilson

v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). Additionally, to show that a combination of impairments equals

an enumerated impairment, the medical findings must be “at least equal in severity and duration to the listed findings.”

20 C.F.R. § 404.1525(a)-(d); see Wilson, 284 F.3d at 1224; see also Sullivan v. Zebley, 493 U.S. 521, 530 (1990)

(holding that an impairment manifesting only some of [a Listing’s] criteria, no matter how severely, does not qualify).

Moreover, “obesity may increase the severity of co-existing or related impairments to the extent that the combination

of impairments meets the requirements of a listing.” SSR 02-1p at *5.

The ALJ’s next step is to determine the Plaintiff’s RFC, which is “an assessment of an

individual’s ability to do sustained work-related physical and mental activities in a work setting

on a regular and continuing basis.” SSR 96-8p. The RFC represents the most an individual can do

despite her limitations. 20 C.F.R. § 416.945(a). When evaluating a claimant’s RFC, the ALJ must

base her findings on “all of the relevant medical and other evidence,” including a claimant’s

testimony regarding the limitations imposed by her impairments. 20 C.F.R. § 416.945(a)(3); see

Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th 2004).

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

judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.2005).

Rather, it must defer to the Commissioner's decision if it is supported by substantial evidence.

Bloodsworth, 703 F.2d at 1239. Furthermore, there is no requirement that the ALJ specifically

refer to every piece of evidence that he used to render his decision; instead, the ALJ’s decision has

to demonstrate to this court that he considered the claimant’s medical condition in its entirety.

Adams v. Commissioner, 586 Fed. Appx. 531, 533 (11th Cir. 2014).

Here, Plaintiff argues that the ALJ failed to properly discuss and evaluate her obesity and

accompanying impairments throughout the analysis. The court disagrees.

The ALJ’s evaluation of a claimant’s obesity plays a role at three separate points during

the analysis: step two, step three, and the RFC determination. At step two, the ALJ explicitly stated

that Plaintiff’s obesity qualifies as a severe impairment. (R. 30). Also, the ALJ considered section

1.04 (Disorders of the Spine) when evaluating Plaintiff’s physical impairments at step three;

however, he stated, “no treating, examining, or reviewing physician has suggested the existence

of any impairment or combination of impairments that would meet or medically equal the criteria

of any listed impairment.” (R. 31).3 The ALJ then went into some detail to explain Plaintiff’s

medical history regarding obesity during the RFC determination stage of the analysis.4 The ALJ

stated that he considered Plaintiff’s obesity in accordance with SSR 02-1p. (R. 34). And, he

concluded that Plaintiff’s obesity does not significantly interfere with her ability to perform

physical activities or routine movement because, in part, every physician she visited failed to place

any general restrictions or work-related limitations as a result of her obesity. (R. 34).

Thus, after a careful review of the record, the court concludes that the record amply

demonstrates that the ALJ considered the Plaintiff’s medical conditions, including her obesity, in

their entirety. Moreover, the court holds that substantial evidence supports the ALJ’s findings

concerning Plaintiff’s obesity at step two, step three, and the RFC determination (where the ALJ

based his findings on all relevant medical and other evidence).

B. The ALJ Properly Considered Plaintiff’s Subjective Allegations Regarding Pain.

When a claimant alleges disability through subjective complaints of pain and other

symptoms, the Eleventh Circuit’s “pain standard” for evaluating these symptoms requires: “(1)

evidence of an underlying medical condition, and either (2) objective medical evidence confirming

the severity of the alleged pain arising from that condition, or (3) that the objectively determined

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

pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); see also 20 C.F.R. § 404.1529. A

claimant’s subjective testimony supported by medical evidence that satisfies the pain standard is

itself sufficient to support a finding of disability. Holt, 921 F.2d at 122.

3 See Tuggerson-Brown v. Comm'r of Soc. Sec., 572 F. App’x. 949, 951 (11th Cir. 2014) (reasoning that the

ALJ’s recitation that he has evaluated “an impairment or combination of impairments” or considered “all symptoms”

is sufficient to demonstrate that the ALJ considered all necessary evidence subsequent to Step Two).

4 The ALJ expressly stated that “the undersigned has considered all symptoms and the extent to which these

symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on

the requirements of 20 CFR 416.929 and SSR 16-3p.” (R. 32).

However, “[a]fter considering a claimant’s complaints of pain, an ALJ may then reject

them as not creditable.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). During this

assessment, the ALJ is to consider Plaintiff’s testimony and any inconsistency between the

testimony of symptoms and any other evidence. 20 C.F.R. §§ 404.1529(c)(3)-(4), 416.929(c)(3)-

(4). If the ALJ rejects a plaintiff’s testimony regarding pain, the ALJ must “articulate explicit and

adequate reasons for doing so.” Dyer, 395 F.3d at 1210 (quoting Foote v. Chater, 67 F.3d 1553,

1561-62 (11th Cir. 1995)).

Here, the ALJ found that Plaintiff’s “determinable impairments could reasonably be

expected to cause the alleged symptoms.” (R. 33). Therefore, Plaintiff satisfied the first factor of

the Eleventh Circuit’s pain standard. However, the ALJ discredited Plaintiff’s statements

concerning her pain.5 The ALJ’s reasons for doing so include the following: Plaintiff consistently

displayed a normal range of motion in her musculoskeletal system; she had a negative straight leg

raise test result; she experienced full motor strength in her upper and lower bilateral extremities;

and she exhibited only mild-to moderate lumbar levoscoliosis without evidence of any acute

fracture or other osseous abnormality.6 (R. 33, 321, 359, 373, 404, 405). The ALJ found that

Plaintiff’s subjective pain allegations were inconsistent with the medical record, and the ALJ

explicitly articulated his reasons for this finding. Therefore, Plaintiff fails to satisfy either of the

final two factors in the pain standard test. Thus, after a careful review of the record, the court

concludes that substantial evidence supports the ALJ’s decision to reject Plaintiff’s subjective

allegations of pain.

5 The ALJ determined, “the claimant’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 for the

reasons explained in this decision.” (R. 33).

6 The ALJ also notes that Plaintiff denied taking pain medication. (R. 33).

VII. Conclusion

The court concludes that the ALJ’s determination that the Plaintiff is not disabled is

supported by substantial evidence and the ALJ applied the proper legal standards in reaching this

determination. The Commissioner’s final decision is therefore due to be affirmed. A separate order

in accordance with this memorandum decision will be entered.

DONE and ORDERED this August 12, 2019.

R’ DAVID Z. 24 2

UNITED STATES DISTRICT JUDGE

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