Davis v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

BYRONNICA DAVIS, )

)

Plaintiff, )

)

v. )

) Case No. 6:19-cv-01244-SGC

SOCIAL SECURITY )

ADMINISTRATION, Commissioner, )

)

Defendant. )

MEMORANDUM OPINION1

The plaintiff, Byronnica Davis, appeals from the decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying

her application for Supplemental Security Income (“SSI”). Davis timely pursued

and exhausted her administrative remedies, and the Commissioner’s decision is ripe

for review pursuant to 42 U.S.C §§ 405(g) and 1383(c)(3). For the reasons discussed

below, the Commissioner’s decision is due to be affirmed.

I. Procedural History

Davis has at least a high school education and past relevant work experience

as a dietary supervisor. (Tr. at 23). In her application for SSI, filed on October 24,

2016, Davis alleged she became disabled on July 8, 2015, due to a variety of physical

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. 10).

impairments. (Id. at 65-66). After her claims were denied, Davis requested a hearing

before an administrative law judge (“ALJ”). (Id. at 10). Following a hearing, the

ALJ denied Davis’ claims. (Id. at 10-25). Davis was 50 years old when the AJL

issued his decision. (Id. at 23, 25). After the Appeals Council denied review of the

AJL’s decision (id. at 1), 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, Davis

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

Davis has not engaged in substantial gainful activity since October 24, 2016, the date

on which she filed her application for SSI. (Tr. at 12).

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 Davis has the

following severe impairments: obesity, C3-6 fusion, lumbar degenerative disc

disease, osteoarthritis, pain syndrome, and fibromyalgia. (Tr. at 12).

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 Davis does not have an impairment or

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

the Listings. (Tr. at 17).

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 Davis has the RFC

to perform a limited range of light work. (Tr. at 19).2 At the fourth step, the ALJ

determined Davis is not able to perform her past relevant work. (Id. at 23).

If the claimant is unable to perform her 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 Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds” and may require “a good deal of walking or standing . . . or

. . . involve[] sitting most of the time with some pushing and pulling of arm or leg controls.” 20

C.F.R. § 416.967(b).

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

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

RFC, the ALJ determined there are jobs Davis can perform that exist in significant

numbers in the national economy, such as those of parts cleaner, line inspector, and

ticket taker. (Tr. at 24). Therefore, the ALJ concluded Davis is not disabled. (Id.

at 24-24).

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, Davis argues the ALJ improperly discredited her testimony

regarding her pain and other subjective symptoms. (Doc. 14).

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, she 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 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 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 symptoms 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 her subjective

symptoms provided the ALJ 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 her subjective symptoms,

an ALJ considers all available evidence, including objective medical evidence, such

as medical signs and laboratory findings; the effectiveness of medication taken to

alleviate subjective symptoms; treatment other than medication received to alleviate

subjective symptoms; and the medical opinions of treating and non-treating

physicians. May v. Comm’r of Soc. Sec. Admin., 226 F. App’x 955, 958-59 (11th

Cir. 2007); 20 C.F.R. § 416.929(a) and (c)(1). An ALJ cannot discredit a claimant’s

testimony regarding the intensity, persistence, and limiting effects of her subjective

symptoms solely based on the lack of objective medical evidence. Robinson v.

Astrue, 365 F. App’x 993, 997 (11th Cir. 2010); 20 C.F.R. § 416.929(c)(2); see also

Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“Pain alone can be

disabling, even when its existence is unsupported by objective evidence.”).

Davis testified she “can’t lift a lot”; has a limited range of motion in her neck,

which prevents her from being able to drive; experiences severe pain in her neck

with up or down movement; is limited in her ability to bend over and sometimes

needs help straightening back up; is only able to twist or turn “a little bit”;

experiences numbness in her arms, legs, and feet; is sometimes unable to walk; uses

a cane; is unable to sustain the concentration and focus required to watch a thirty-

minute television show; and cannot do chores around the house but, rather, spends

her days “sitting or trying to lay down and get comfortable”; she also rated her

average daily pain as eight on a ten-point ascending pain scale. (Tr. at 45-47, 49-53).

The ALJ determined that while Davis’ medically determinable impairments could

reasonably be expected to cause some of her alleged subjective symptoms, Davis’

statements concerning the intensity, persistence, and limiting effects of those

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

record. (Id. at 20).

The ALJ articulated multiple, explicit, and adequate reasons for discrediting

Davis’ subjective symptoms testimony. First, the ALJ determined the testimony was

not consistent with the objective medical evidence of record or with statements made

by Davis and noted in her medical records. (Id. at 20-21). Substantial evidence

supports this determination. Davis had a discectomy and fusion at C3-C4, C4-C5,

and C5-C6 in November 2016, after presenting with complaints of worsening axial

neck pain that radiated into her left arm, increased incidents of falling, difficulty with

fine motor skills of the hands, and clumsiness of the hands (e.g., frequently dropping

things). (Id. at 432). Four weeks later, Davis reported her hand coordination had

improved, she was no longer dropping things, and she had not fallen since before

her cervical spine procedure. (Id. at 443). In May 2017, she reported her neck pain

continued to improve and had mostly resolved and that the clumsiness she

experienced with her hands had resolved, as well. (Id. at 703). She also reported

she was ambulating better than prior to surgery. (Id.). A physical examination

revealed Davis had full range of motion in her neck and a normal gait. (Id.).

Although imaging suggested a failure to fuse at C4-C5 and C5-C6, Davis was not

experiencing neck pain secondary to that failure. (Id. at 704). Her surgeon

recommended a bone simulator to address the issue. (Id.). Later in May, Davis

denied neck pain altogether. (Id. at 705).

Davis had a hemilaminectomy and decompression at L4-L5 in September

2017, after presenting with low back pain that was not improved with epidural

steroid injections. (Id. at 630, 706-07). During a follow-up appointment in

November 2017, she denied low back pain and reported her activity-related radicular

symptoms were much improved when compared to her pre-operative baseline. (Id.

at 709). It was noted Davis felt both the procedure on her cervical spine and the

procedure on her lumbar spine had significantly improved her symptoms and that

she was pleased with the combined result. (Id. at 710). It was also noted her ability

to tolerate physical activity continued to improve. (Id.). A physical examination

revealed Davis had a normal gait, with full strength in her upper and lower

extremities. (Id.).

Davis was treated for fibromyalgia, a medical condition characterized by

widespread musculoskeletal pain accompanied by fatigue, at the Simon Williamson

Clinic during the relevant period. With the addition of Lyrica and Cymbalta to her

regimen, she reported feeling much better and less fatigued in August 2016, and

reported she was doing better overall in January 2017. (Id. at 603, 611). Her

fibromyalgia was assessed as stable in January 2017. (Id. at 614).

Moreover, records from Jasper Family Practice, where Davis received

primary care, note Davis’ malaise and fatigue were stable without medication from

April 2015 until March 2017, at which time Davis reported increased depression.

(Id. at 364, 368, 372, 376, 380, 384, 388, 392, 395, 399, 403, 407, 410, 508, 538,

543). However, the addition of Wellbutrin to Davis’ regimen resolved the issue.

(Id. at 521, 526).

Davis did report increased pain associated with her fibromyalgia in July 2017

and March 2018. (Id. at 531-32, 617). In March 2018, Davis’ primary care

physician referred her to a pain management specialist to address her complaint of

increased pain. (Id. at 532). A physical examination performed by the pain

management specialist in April 2018 revealed Davis had a limited range of motion

in her cervical and lumbar spines, as well as some radiculopathy in her legs. (Id. at

714). Additionally, Davis notes the pain management specialist diagnosed her with

failed back syndrome in April 2018 and told her she may need additional surgeries.

(Doc. 14 at 17). However, these relatively few records of more recent complaints of

increased pain, supported by the findings of a single physical examination, do not

render the ALJ’s credibility determination unsupported by substantial evidence. The

relevant question is not whether evidence supports Davis’ arguments, but whether

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

F.3d 1208, 1213 (11th Cir. 2005) (discussing “narrowly circumscribed” nature of

appellate review); Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1268 (11th Cir.

2015) (“[W]e review the ALJ’s decision for substantial evidence, but neither make

credibility determinations of our own nor re-weigh the evidence.”); 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 [the claimant’s] testimony, but

whether the ALJ was clearly wrong to discredit it.”). The post-operative treatment

notes indicating Davis received considerable pain relief and improvement of

functional limitations from her cervical and lumbar spine surgeries and the records

noting Davis’ fibromyalgia symptoms were under control (or, at least, not disabling),

constitute substantial evidence supporting the ALJ’s decision not to fully credit

Davis’ subjective symptoms testimony.

The ALJ also determined Davis’ testimony regarding her subjective

symptoms was not consistent with a consultative physical examination and a state

agency opinion. (Tr. at 20). Dr. Ronald Borlaza performed a consultative physical

examination of Davis in January 2017. (Id. at 450-55). Taking the results of his

examination into account, Dr. Borlaza opined Davis could perform a limited range

of light work consistent with the RFC formulated by the ALJ. (Id. at 454-55). Dr.

Marcus Whitman reviewed the evidence of record in January 2017 on behalf of the

state agency. (Id. at 65-79). Based on this review, Dr. Whitman, like Dr. Borlaza,

opined Davis could perform a limited range of light work consistent with the RFC

formulated by the ALJ. (Id. at 74-75).

Finally, the ALJ implicitly discredited Davis’ testimony regarding her mental

limitations because it was inconsistent with her reported daily activities. (Id. at 15-

16). Substantial evidence supports this determination. On a function report

completed in November 2016, Davis indicated she helps care for two grandchildren;

is mentally capable of keeping up with her personal care; is able to pay bills, count

change, and use a checkbook and/or money orders; and talks on the phone daily. (Id.

at 207-10).

Davis claims that while the ALJ did not dispute her fibromyalgia was a severe

impairment, he failed to evaluate the impairment adequately in the remainder of his

decision. (Doc. 14 at 15-16). First, “[t]he mere fact that the AJL determined that

[Davis’] fibromyalgia was a ‘severe impairment’ . . . does not mean that the ALJ

was required to attribute severe pain to her fibromyalgia.” Laurey v. Comm’r of Soc.

Sec., 632 F. App’x 978, 988 n.5 (11th Cir. 2015); see also Klaes v. Comm’r of Soc.

Sec., 719 F. App’x 893, 897 (11th Cir. 2017) (“[E]ven if fibromyalgia explained [a

claimant’s] pain, that alone does not compel a finding of disability.”); Moore, 405

F.3d at 1213 n.6 (“[T]he mere existence of [] impairments does not reveal the extent

to which they limit [a claimant’s] ability to work or undermine the AJL’s

determination in that regard.”). Second, review of the AJL’s decision confirms he

did consider and evaluate Davis’ fibromyalgia thoroughly. (See Tr. at 12-14, 20-

22).

Davis also argues the ALJ improperly discredited her testimony regarding the

subjective symptoms of her fibromyalgia based solely on a lack of objective

evidence supporting those symptoms. (Doc. 14 at 14-17). Additionally, she cites

evidence that supports her testimony regarding the severity of her fibromyalgia. (Id.

at 16-17). First, as stated, whether there is evidence in the record that supports a

claimant’s testimony regarding her subjective symptoms is not the relevant question.

See Moore, 405 F.3d at 1213 (discussed supra); Henry, 802 F.3d at 1268 (same);

Werner, 421 F. App’x at 939 (same). Second, while it is true an ALJ cannot discredit

a fibromyalgia claimant’s testimony based solely on the lack of corroborating

objective evidence, Moore, 405 F.3d at 1211, the absence of objective medical

evidence was not the ALJ’s only reason for discrediting Davis’ testimony. As

discussed above, the ALJ relied on the opinions of Dr. Borlaza and Dr. Whitman as

another ground for determining the symptoms and limiting effects of Davis’

fibromyalgia were not as severe as she alleged. See id. at 1211 (holding ALJ

properly discredited fibromyalgia claimant’s testimony based on lack of

corroborative objective findings and inconsistencies between claimant’s

descriptions of her daily activities and her claims of infirmity).

“[C]redibility determinations are the province of the ALJ.” Moore, 405 F.3d

at 1212. “A clearly articulated credibility finding with substantial supporting

evidence in the record will not be disturbed by a reviewing court.” Foote v. Chater,

67 F.3d 1553, 1562 (11th Cir. 1995). Here, the AJL clearly articulated adequate

reasons for discrediting Davis’ testimony regarding her subjective symptoms, and

that determination is supported by substantial evidence.

V. Conclusion

Having reviewed the administrative record and considered all the arguments

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

to be AFFIRMED. A separate order will be entered.

DONE this 30th day of September, 2020.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

15