Lovell v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHWESTERN DIVISION

TROY LOVELL, )

)

Plaintiff, )

)

v. )

) Case No.: 3:19-cv-00136-SGC

SOCIAL SECURITY )

ADMINISTRATION, Commissioner, )

)

Defendant. )

MEMORANDUM OPINION1

The plaintiff, Troy Lovell, appeals from the decision of the Commissioner of

the Social Security Administration (the “Commissioner”) denying his application

for Supplemental Security Income (“SSI”). Lovell timely pursued and exhausted

his administrative remedies, and the Commissioner’s decision is ripe for review

pursuant to 42 U.S.C § 1383(c)(3). For the reasons discussed below, the

Commissioner’s decision is due to be affirmed.

I. Procedural History

Lovell has a tenth-grade education and previously worked as a construction

worker. (Tr. at 26, 164). In his application for SSI, Lovell alleged he became

disabled on July 1, 2015, due to rheumatoid arthritis, weakness and numbness in

1 The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Doc. 12).

both hands, and “bad nerves.” (Id. at 163). Lovell later amended the alleged onset

date of his disability to April 8, 2016. (Id. at 19). After his claim was denied, Lovell

requested a hearing before an administrative law judge (“ALJ”). (Id.). Following a

hearing, the ALJ denied Lovell’s claim. (Id. at 19-28). Lovell was fifty-four years

old when the ALJ issued his decision. (Id. at 27, 28). After the Appeals Council

denied review of the ALJ’s decision (id. at 1-3), that decision became the final

decision of the Commissioner, 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)).

Thereafter, Lovell commenced this action. (Doc. 1).

II. Statutory and Regulatory Framework

To establish 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 less than

twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). The Social

Security Administration (“SSA”) employs a five-step sequential analysis to

determine an individual’s eligibility for disability benefits. 20 C.F.R. §

416.920(a)(4).

First, the Commissioner must determine whether the claimant is engaged in

“substantial gainful activity.” Id. at § 416.920(a)(4)(i). If the claimant is engaged

in substantial gainful activity, the Commissioner will find the claimant is not

disabled. Id. at § 416.920(a)(4)(i) and (b). At the first step, the ALJ determined

Lovell has not engaged in substantial gainful activity since April 8, 2016. (Tr. at

21).

If the 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. §

416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination

of impairments, the Commissioner will find the claimant is not disabled. Id. at §

416.920(a)(4)(ii) and (c). At the second step, the ALJ determined Lovell has the

following severe impairments: degenerative disc disease, osteoarthritis, anxiety

disorder, and major depressive disorder. (Tr. at 21).

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. §

416.920(a)(4)(iii). If the claimant’s impairment meets or equals one of the Listings,

the Commissioner will find the claimant is disabled. Id. at § 416.920(a)(4)(iii) and

(d). At the third step, the ALJ determined Lovell does not have an impairment or

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

the Listings. (Tr. at 21).

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 § 416.920(e). At the fourth step, the

Commissioner will compare an assessment of the claimant’s RFC with the physical

and mental demands of the claimant’s past relevant work. Id. at § 416.920(a)(4)(iv)

and (e). If the claimant is capable of performing his or her past relevant work, the

Commissioner will find the claimant is not disabled. Id. at § 416.920(a)(4)(iv).

Before proceeding to the fourth step, the ALJ determined Lovell has the RFC

to perform a limited range of medium work. (Tr. at 23).2 At the fourth step, the ALJ

determined Lovell is not able to perform his past relevant work. (Id. at 26).

If the claimant is unable to perform his past relevant work, the Commissioner

must finally determine whether the claimant is capable of performing 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. § 416.920(a)(4)(v) and (g)(1). If

the claimant is capable of performing other work, the Commissioner will find the

claimant is not disabled. Id. at § 416.920(a)(4)(v) and (g)(1). If the claimant is not

capable of performing other work, the Commissioner will find the claimant is

2 Medium work is defined as that which “involves lifting no more than 50 pounds at a time with

frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).

disabled. Id. at § 416.920(a)(4)(v) and (g)(1).

At the fifth step, considering Lovell’s age, education, work experience, and

RFC, the ALJ determined there are jobs that exist in significant numbers in the

national economy that Lovell can perform, such as those of dish washer, janitor, and

hand packager. (Tr. at 27). Therefore, the ALJ concluded Lovell is not disabled.

(Id. at 28).

III. Standard of Review

Review of the Commissioner’s decision is limited to a determination of

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 if 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

On appeal, Lovell argues the ALJ improperly discredited his testimony

regarding his pain and other subjective symptoms. (Doc. 13).

A claimant may establish disability through testimony of pain or other

subjective symptoms. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). To

do so, he must satisfy the three-part “pain standard,” by showing (1) evidence of an

underlying medical condition and either (2) objective medical evidence that

confirms the severity of the alleged pain or other subjective symptoms arising from

that condition or (3) that the objectively determined medical condition is of such a

severity that it can reasonably be expected to give rise to the alleged pain or other

subjective symptoms. Id.; see also Taylor v. Acting Comm’r of Soc. Sec. Admin.,

2019 WL 581548, at *2 (11th Cir. 2019) (citing Dyer, 395 F.3d at 1210); 20 C.F.R.

§ 416.929; SSR 16-3p. A claimant’s subjective testimony supported by medical

evidence that satisfies the pain standard is sufficient to support a finding of disability.

Brown, 921 F.2d at 1236 (citing Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.

1987); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986); Landry v.

Heckler, 782 F.2d 1551, 1552 (11th Cir. 1986)).

An ALJ may discredit a claimant’s testimony regarding his pain or other

subjective symptoms provided he or she clearly articulates explicit and adequate

reasons for doing so. Brown, 921 F.2d at 1236; Taylor, 2019 WL 581548, at *2

(citing Dyer, 395 F.3d at 1210). In evaluating a claimant’s testimony and other

statements regarding the intensity, persistence, and limiting effects of his symptoms,

an ALJ considers all available evidence, including objective medical evidence; the

type, dosage, and effectiveness of medication taken to alleviate symptoms; and

treatment other than medication received to relieve symptoms. 20 C.F.R. §

416.929(c).

Lovell testified that due to pain he cannot stand, sit, or walk for more than

thirty minutes at a time; must lie down for approximately three-and-a-half hours

during the day; and cannot shop for groceries, cook on the stove, wash dishes, or do

other housework. (Tr. at 37-42). He also testified he has trouble concentrating due

to anxiety and trouble sleeping due to depression. (Id. at 42-43). The ALJ

determined that while Lovell’s medically determinable impairments could

reasonably be expected to cause his alleged pain and other subjective symptoms,

Lovell’s statements concerning the intensity, persistence, and limiting effects of his

pain and other subjective symptoms are not entirely consistent with the medical and

other evidence of record. (Id. at 24).

The ALJ articulated multiple reasons for discrediting Lovell’s testimony.

First, the ALJ determined Lovell’s allegations of disabling pain and other subjective

symptoms are inconsistent with and unsupported by treatment and examination

records. (Id. at 24-26). Substantial evidence supports this determination. Imaging

performed in August 2014 and August 2016 showed only mild cervical stenosis and

moderate osteoarthritis of the lumbar spine. (Id. at 238, 347). When Lovell

complained of neck pain in March 2016, his primary care physician, Dr. Ernest L.

Hendrix, began prescribing narcotic pain medication as part of what he described as

“pain management at [the] low level.” (Id. at 269-70).

A consultative physical examination performed by Dr. E.L. Mollohan in July

2016 revealed no cervical or lumbar radicular pain, neurological symptoms, or focal,

sensory, or musculoskeletal deficits. (Id. at 337). Lovell had only slightly reduced

grip strength in his right hand and was able to perform repetitive, fine movements

with his hands and fingers. (Id.). He also was able to stand up from a seated position

and get on and off the examination table without difficulty. (Id.).

When Lovell presented for prescription re-fills in September 2016, Dr.

Hendrix noted Lovell experienced some pain relief by repositioning his neck,

Lovell’s hands still hurt “at times,” and Lovell’s hand numbness was “episodic.”

(Id. at 355). Treatment of mild-to-moderate spinal conditions and intermittent hand

pain and numbness with “low level” pain management is not entirely consistent with

allegations of disabling pain.

During the relevant period, Dr. Hendrix also treated Lovell for anxiety. (Id.

at 261-77, 287-89, 351-53). In August 2016, Lovell reported to Dr. John Haney

during a consultative psychological examination that the prescription medication Dr.

Hendrix prescribed to treat his anxiety was at least partially helpful. (Id. at 344).

Dr. Haney concluded Lovell’s ability to function in a work setting appeared only

moderately impaired by emotional limitations and that with psychiatric treatment

and continued abstinence from alcohol and drugs, his condition might improve in

the next six to twelve months. (Id. at 345). Containing substantially no more than

a diagnosis of anxiety and a report that prescription medication provided some relief,

records of Lovell’s treatment are not entirely consistent with allegations of disabling

anxiety.

Second, the ALJ determined Lovell’s allegations of disabling pain are

undercut by evidence indicating Lovell does not actually need narcotic pain

medication. (Id. at 26). Substantial evidence supports this determination. When

Lovell presented for prescription re-fills in September 2016, Dr. Hendrix ordered a

drug screen, which revealed methamphetamine, marijuana, and morphine in Lovell’s

system, but none of the medications prescribed for him. (Id. at 358-61).3 Given as

much, substantial evidence supports not only the determination Lovell’s pain is not

so great as to require narcotic pain medication, but also the determination Lovell’s

anxiety is not so great to as to require prescription medication to treat this condition.

Third, the ALJ determined Lovell’s allegations of disabling pain and other

subjective symptoms are inconsistent with his reported daily activities and

interactions with other people. (Id. at 26). Substantial evidence supports this

determination. Lovell reported to the consultative psychological examiner that on

an average day he does household chores, cares for a dog, watches television, and

sometimes walks. (Id. at 345). A friend of Lovell stated in a “Third Party Function

Report” that Lovell bathes himself daily, feeds and waters two small dogs, shops for

food once a week and prepares sandwiches and frozen dinners daily, does laundry

once a week, manages his own finances, watches television and reads daily, talks on

the phone and visits with friends twice a week, and gets along with authority figures

very well. (Id. at 180-87).4 Moreover, both consultative examiners noted Lovell

3 Consequently, Dr. Hendrix informed Lovell he could no longer treat him. (Id. at 361). When

Dr. Hendrix began treating Lovell for pain in March 2016, he noted he would continue the

treatment “as long as [Lovell] [was] compliant.” (Id. at 270).

4 Lovell notes he testified during the hearing that he cannot do any house work. (Doc. 13 at 11).

Given his report to the consultative psychological examiner and his friend’s statements in the

function report are inconsistent with this testimony, the ALJ did not err in choosing not to credit

was cooperative. (Id. at 337, 344). The activities Lovell performs on a regular basis

and his reported ability to interact well with other persons are not entirely consistent

with allegations of disabling pain, anxiety, or deficits in attention and concentration.

Moreover, contrary to Lovell’s assertion, it was appropriate for the ALJ to

consider Lovell’s daily activities when evaluating his pain and other subjective

symptoms. While participation in daily activities of short duration does not

necessarily disqualify a claimant from disability, Lewis v. Callahan, 125 F.3d 1436,

1441 (11th Cir. 1997), and ALJ may consider a claimant’s daily activities as part of

a subjective symptoms analysis, see Hoffman v. Astrue, 259 F. App’x 213, 219 (11th

Cir. 2007) (noting Lewis’ holding does not mean it is improper for an ALJ to

consider a claimant’s daily activities at all); 20 C.F.R. §§ 404.1529(c)(3)(i),

416.929(c)(3)(i) (identifying claimant’s daily activities as one factor relevant to

evaluating symptoms); SSR 16-3p (same). Here, the ALJ considered not only

Lovell’s daily activities, but also treatment and examination records.

the testimony. See Byars v. Colvin, 2016 WL 4137981, at *11 (N.D. Ala. Aug. 4, 2016) (holding

ALJ did not commit error by relying on inconsistencies between daily activities claimant identified

in her function report and claimant’s testimony during the hearing that she could not perform those

daily activities in evaluating claimant’s credibility). Lovell also notes that while he testified during

the hearing that he cannot cook on the stove, the ALJ stated Lovell admitted he can prepare simple

meals. (Doc. 13 at 11). While it was information provided by Lovell’s friend, not Lovell himself,

that information (i.e., that Lovell prepares sandwiches and frozen dinners on a daily basis) supports

the ALJ’s characterization of Lovell’s ability to prepare simple meals. Moreover, the undersigned

notes that characterization is also consistent with Lovell’s testimony he cannot cook on the stove.

For the foregoing reasons, the undersigned rejects Lovell’s claim the ALJ mischaracterized his

daily activities by omitting limiting descriptions. (See Doc. 13 at 11-12).

Lovell points to other evidence he claims supports his allegations of disabling

pain and other subjective symptoms and claims the ALJ impermissibly cherry-

picked evidence to support his own conclusion. (Doc. 13 at 7-8). However, as

stated, the relevant question is not whether evidence supports Lovell’s argument, but

whether substantial evidence supports the ALJ’s determination. See Moore, 405

F.3d at 1213 (discussing “narrowly circumscribed” nature of appellate review).

Because the ALJ clearly articulated explicit and adequate reasons for discrediting

Lovell’s testimony regarding his pain and other subjective symptoms and that

determination is supported by substantial evidence, the ALJ did not commit error.

See, e.g., Wilson v. Barnhart, 284 F.3d 1219, 1266 (11th Cir. 2002) (holding ALJ

properly discredited claimant’s testimony regarding his degree of impairment where

that testimony was not consistent with objective medical evidence, daily activities,

limited use of pain medication, and effectiveness of treatment).5

5 Within his argument regarding the ALJ’s decision to discredit his testimony, Lovell claims the

ALJ should have applied Grid Rule 201.10. (Doc. 13 at 8-10). The “Grids,” also known as the

Medical-Vocational Guidelines, are found at 20 C.F.R. Part 404, Subpart P, App. 2. An ALJ may

use them to determine at the fifth step whether other work exists in substantial numbers in the

national economy that a claimant is capable of performing. Phillips v. Barnhart, 357 F.3d 1232,

1239 (11th Cir. 2004).

The [G]rids provide for adjudicators to consider factors such as age, confinement

to sedentary or light work, inability to speak English, educational deficiencies, and

lack of job experience. Each of these factors can independently limit the number

of jobs realistically available to an individual. Combinations of these factors yield

a statutorily-required finding of “Disabled” or “Not Disabled.”

Id. at 1240. Grid Rule 201.10 directs a finding of disability for a claimant who meets certain age,

education, and previous work experience requirements and is limited to sedentary work. 20 C.F.R.

V. Conclusion

Having reviewed the administrative record and considered all the arguments

presented by the parties, the undersigned find the Commissioner’s decision is due to

be AFFIRMED. A separate order will be entered.

DONE this 21st day of October, 2019.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

Part 404, Subpart P, App. 2, § 201.10. The ALJ determined Lovell has the RFC to perform a

limited range of medium work. (Tr. at 23). That determination is supported by substantial

evidence, including the evidence discussed above. Therefore, Grid Rule 201.10 does not apply to

Lovell.

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