Barger v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

TRACIE DIANE BARGER, )

)

Plaintiff, )

)

v. ) Civil Action Number

) 7:19-cv-0813-AKK

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant.

MEMORANDUM OPINION

Tracie Diane Barger brings this action under 42 U.S.C. § 405(g) of the Social

Security Act (the “Act”), seeking review of the final adverse decision of the

Commissioner of the Social Security Administration (“SSA”). The court finds that

the Administrative Law Judge (“ALJ”) applied the correct legal standard and that

his decision, which has become the Commissioner’s, is supported by substantial

evidence. The court therefore affirms the decision denying benefits.

I.

Barger worked as a waitress and cashier at several businesses before the onset

of her alleged disability. R. 38–40, 225–29. In March 2016, Barger filed an

application for Title II disability insurance benefits and Title XVI Supplemental

Security Income based on ruptured and bulging discs in her back, a pinched nerve,

and migraine headaches. R. 75, 191. She initially alleged a disability onset date of

May 5, 2013, but she later amended it to April 24, 2015. R. 33. One month after

filing her benefits application, Barger was diagnosed with carpal tunnel syndrome

in her right hand. See R. 476.

After the SSA denied Barger’s application, R. 88, she requested a formal

hearing before an ALJ. R. 100. The ALJ likewise denied her claim. R. 23. The

SSA Appeals Council declined to review the ALJ’s decision, rendering it the final

decision of the Commissioner. R. 1. Barger then filed this action for judicial review

under § 205(g) of the Act, 42 U.S.C. § 405(g). Doc. 1.

II.

This court’s review is limited to determining whether the record contains

substantial evidence to sustain the ALJ’s decision and whether the ALJ applied the

correct legal standards. See 42 U.S.C. § 405(g); Chester v. Bowen, 792 F.2d 129,

131 (11th Cir. 1986). Under 42 U.S.C. §§ 405(g) and 1383(c), the Commissioner’s

“factual findings are conclusive if supported by ‘substantial evidence.’” Martin v.

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, the court cannot reconsider

the facts, reevaluate the evidence, or substitute its judgment for the Commissioner’s.

Id. Instead, it must review the final decision as a whole and determine if it is

“‘reasonable and supported by substantial evidence.’” Id. (quoting Bloodsworth v.

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

Substantial evidence refers to “such relevant evidence as a reasonable person

would accept as adequate to support a conclusion.” Martin, 894 F.2d at 1529

(quoting Bloodsworth, 703 F.2d at 1239). This falls somewhere between a

“scintilla” and a “preponderance of evidence.” Id. If substantial evidence supports

the Commissioner’s factual findings, then the court must affirm even if the evidence

preponderates against those findings. See id. However, this “does not yield

automatic affirmance” despite the limited scope of judicial review. Lamb v. Bowen,

847 F.2d 698, 701 (11th Cir. 1988). In other words, reviewing courts are not

constrained to acting as mere “automatons.” Bloodsworth, 703 F.2d at 1239

(quotation omitted). Conclusions of law, in contrast, are subject to de novo

review. Martin, 894 F.2d at 1529.

III.

To qualify 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. §§ 423(d)(1)(A); 416(i)(1). A physical or mental impairment

is “an impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrated by medically acceptable clinical and

laboratory diagnostic techniques.” Id. § 423(d)(3).

Determination of disability under the Act requires a five-step analysis. 20

C.F.R. § 404.1520(a). Specifically, the ALJ must determine in sequence:

(1) whether the claimant is currently unemployed;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or equals one listed by the Commissioner;

(4) whether the claimant is unable to perform his or her past work; and

(5) whether the claimant is unable to perform any work in the national

economy.

See McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. (citing 20 C.F.R. §

416.920(a)-(f)). “Once [a] finding is made that a claimant cannot return to prior

work the burden of proof shifts to the [Commissioner] to show other work the

claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).

Claimants, such as Barger, alleging disability based on their subjective pain

must meet additional criteria. The Eleventh Circuit applies a three-part “pain

standard” when a claimant seeks to establish disability through her own testimony

of pain or other subjective symptoms. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th

Cir. 1991). Under that standard, the claimant must show:

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

medical evidence that confirms the severity of the alleged pain arising

from that condition or (3) that the objectively determined medical

condition is of such a severity that it can be reasonably expected to give

rise to the alleged pain.

Id. But medical evidence of pain itself, or of its intensity, is not required:

While both the regulations and the [pain] standard require objective

medical evidence of a condition that could reasonably be expected to

cause the pain alleged, neither requires objective proof of the pain itself.

Thus under both the regulations and the first (objectively identifiable

condition) and third (reasonably expected to cause pain alleged) parts

of the [pain] standard a claimant who can show that his condition could

reasonably be expected to give rise to the pain he alleges has established

a claim of disability and is not required to produce additional, objective

proof of the pain itself.

Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (citation omitted).

Moreover, “[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 1223. Therefore, if a claimant testifies to disabling pain and satisfies the

three-part pain standard, the ALJ must find a disability unless the ALJ properly

discredits the claimant’s testimony.

To properly discredit the claimant’s testimony, the ALJ “must articulate

explicit and adequate reasons for doing so.” Foote, 67 F.3d at 1561. Decades ago,

the Eleventh Circuit observed:

It is established in this circuit that if the [ALJ] fails to articulate reasons

for refusing to credit a claimant’s subjective pain testimony, then the

[ALJ], as a matter of law, has accepted that testimony as true. Implicit

in this rule is the requirement that such articulation of reasons by the

[ALJ] be supported by substantial evidence.

Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Therefore, if the ALJ either

fails to articulate reasons for refusing to credit the claimant’s pain testimony, or if

the ALJ’s reasons are not supported by substantial evidence, the court must accept

as true the pain testimony of the claimant and render a finding of disability. Id.

IV.

In performing the five-step sequential analysis, the ALJ initially determined

that Barger had not engaged in substantial gainful activity since the date of her

application, and therefore met Step One. R. 18. Next, the ALJ found that Barger’s

degenerative disc disease was a severe impairment that satisfied Step Two. R. 18.

The ALJ also identified other impairments including obesity, piriformis, carpal

tunnel syndrome, and migraines, but the ALJ found these nonsevere. R. 19. The

ALJ then found that Barger did not satisfy Step Three because she “does not have

an impairment or combination of impairments that meets or medically equals the

severity of one of the listed impairments.” R. 19. After answering Step Three

negatively, the ALJ correctly proceeded to Step Four, where he concluded that

Barger “has the residual functional capacity [(“RFC”)] to perform light work . . .

except [she] can have frequent but not continuous use of [her right hand] for

exertional and non-exertional activities.” R.19. In the final step, the ALJ concluded

that “there are jobs that exist in significant numbers in the national economy that

[Barger] can perform.” R. 22. To reach that conclusion, the ALJ considered

Barger’s age, education, work experience, and RFC alongside the Medical-

Vocational Guidelines found in 20 C.F.R. Part 404, Subpart P, Appendix 2 and a

vocational expert’s testimony. R. 22–23. Because the ALJ answered Step Five

negatively, he concluded that Barger was not disabled. R. 23.

V.

On appeal, Barger contends that the ALJ made three errors. First, Barger

alleges that the ALJ erred at Step Two when he characterized her carpal tunnel

syndrome as “nonsevere” despite recognizing that the condition was “medically

determinable.” Doc. 10 at 4 (quoting R. 19). Second, Barger asserts that the ALJ

improperly discredited her testimony regarding the intensity of her back pain. Id. at

7. That decision produced Barger’s third alleged error—that the ALJ erroneously

concluded at Step Five that she can perform several jobs that exist in significant

numbers in the national economy. See id. at 7–8. The court addresses each of

Barger’s contentions in turn.

A.

Under Step Two of the sequential analysis, an ALJ must determine whether

“the claimant has any severe impairment.” Jamison v. Bowen, 814 F.2d 585, 588

(11th Cir. 1987). An impairment is severe unless it is “merely a slight abnormality

with minimal effect on [the claimant’s] general ability to work.” Hillsman v. Bowen,

804 F.2d 1179, 1181 (11th Cir. 1986) (quoting Flynn v. Heckler, 768 F.2d 1273,

1275 (11th Cir. 1985)). Here, the ALJ concluded that Barger’s carpal tunnel

syndrome was not severe enough to satisfy Step Two because the impairment was

“managed with medication, splints, and injections.” R. 19. Thus, the ALJ found

that Barger’s carpal tunnel both “alone and in combination [with her other

impairments did] not cause more than a minimal limitation in [her] ability to perform

basic work activities and [was] therefore nonsevere.” R. 19.

Barger says that conclusion misrepresents the medical record. She contends

that her patient notes from several doctors’ appointments “demonstrate that her

symptoms persisted despite” the treatments the ALJ identified. Doc. 10 at 5. She

has a point. The record shows that even when “wear[ing] splints as frequently as

possible” and after receiving steroid injections, Barger’s carpal tunnel syndrome did

not subside. R. 422, 441, 444, 467. Indeed, Barger’s doctors referred her for

orthopedic surgery several times because her treatment did not resolve her pain. R.

422, 441, 444. Barger confirmed this at her administrative hearing. R. 52. She also

testified at the hearing that she still experiences “pain, weakness, and numbness” in

her right hand, though she has “better and worse days.” R. 59–60.

But even assuming Barger is correct that the ALJ improperly characterized

her carpal tunnel syndrome as “nonsevere,” that error would be harmless. At Step

Two, the ALJ “filter[s]” or “screen[s] out groundless claims” involving medical

impairments so slight that the claimant appears “unlikely” to be found

disabled. Jamison, 814 F.2d at 588; Stratton v. Bowen, 827 F.2d 1447, 1452, 1452

n.9 (11th Cir. 1987) (quotation omitted). The finding of “any severe impairment . .

. is enough to satisfy” this step. Jamison, 814 F.2d at 588 (emphasis added). The

Eleventh Circuit has thus repeatedly emphasized, albeit in unpublished opinions, that

“there is no need for an ALJ to identify every severe impairment at step

two.” Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951

(11th Cir. 2014).1 Here, the ALJ unambiguously found that Barger’s degenerative

disc disease was a severe impairment before proceeding on to Step Three. R. 18-19.

However, when a case advances beyond Step Two, the ALJ must consider all

the claimant’s severe and nonsevere impairments together to determine whether she

is disabled. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).2 Thus, for

the ALJ’s alleged Step Two classification error to be harmless, the ALJ must have

later considered the combined effect of all of Barger’s impairments regardless of

their severity.

The ALJ did just that. At Step Three, the ALJ wrote that Barger “[did] not

have an impairment or combination of impairments that” met or equaled those listed

1 See also, e.g., Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 853 (11th Cir. 2013) (“If any

impairment or combination of impairments [] qualifies as “severe,” step two is satisfied and the

claim advances to step three.”) (emphasis added).

2 See also Gray, 550 F. App’x at 853 (“Once a case advances beyond step two, the ALJ must

consider all impairments, severe or not, at step three and in assessing the RFC.”) (citing Bowen,

748 F.2d at 634–35); Tuggerson-Brown, 572 F. App’x at 951 (same).

by the Commissioner. R. 19. And at Step Four, the ALJ wrote that he had

“considered all [of Barger’s] symptoms.” R. 19. Under Eleventh Circuit precedent,

“those statements are enough to demonstrate that the ALJ considered all necessary

evidence.” Tuggerson-Brown, 572 F. App’x at 951–52 (citing Wilson v. Barnhart,

284 F.3d 1219, 1224–25 (11th Cir. 2002)). Additionally, the ALJ explicitly

discussed medical records and testimony regarding Barger’s back, leg, knee, and

foot pain and her migraines, facial twitching, and carpal tunnel syndrome while

determining her RFC at Step Four. R. 19–22. Any classification error concerning

these impairments that the ALJ allegedly made at Step Two is thus inconsequential.

B.

Next, Barger contends that the ALJ improperly discredited her testimony

regarding the intensity of her back pain. To review, a three-part pain standard

applies when determining whether a claimant’s testimony about her subjective

symptoms renders her disabled. This standard requires “(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.” Wilson, 284 F.3d at 1225. If the ALJ discredits the claimant’s testimony, he

must do so with explicit and adequate reasoning. Foote, 67 F.3d at 1561–62.

The ALJ acknowledged that Barger’s “medically determinable impairments

could reasonably be expected to cause some of [her] alleged symptoms.” R. 20.

Allegedly, that statement triggered the requirement that the ALJ provide a “specific,

substantive explanation for why Ms. Barger’s testimony was not fully credited.”

Doc. 10 at 10. Barger says that the ALJ failed to do this when he merely found that

her testimony regarding the “intensity, persistence and limiting effects of [her]

symptoms” was inconsistent with “the medical evidence and other evidence in the

record.” R. 20. She argues that the ALJ’s decision is thus inconsistent with the

applicable legal standards.

But the ALJ applied the proper standards, and substantial evidence supports

his conclusion. As an initial matter, the court recognizes that the ALJ did not

explicitly cite the Eleventh Circuit’s three-part pain standard in his decision.

However, that alone is not erroneous where, as here, “his findings and discussion

indicate that the standard was applied.” Wilson, 284 F.3d at 1225–26. The ALJ

cited to 20 C.F.R. § 404.1529, see R. 19, which “contains the same language

regarding the subjective pain testimony that” the Eleventh Circuit interpreted when

it first adopted the pain standard. Wilson, 284 F.3d at 1226 (citing Elam, 921 F.2d

at 1214–15). Moreover, the ALJ expressly incorporated the language of the pain

standard while evaluating Barger’s testimony. See R. 21. Accordingly, the ALJ

applied the correct standard.

The question, then, is whether the ALJ sufficiently articulated his reasons for

rejecting Barger’s pain testimony. The court finds that he did. Again, the ALJ found

that Barger’s testimony “concerning the intensity, persistence and limiting effects”

of her symptoms was “not entirely consistent with” the record evidence. R. 20. He

added that Barger’s testimony about her symptoms was “inconsistent because they

[were] not reflected to the degree alleged in the record.” R. 20. Those statements

alone satisfy the Eleventh Circuit’s articulation requirement. See Wilson, 284 F.3d

at 1226 (finding that two sentences in an ALJ’s decision were enough).

The ALJ did not stop there, however. Instead, he marched through Barger’s

medical history, observing that the treatments doctors prescribed to address Barger’s

symptoms consisted mostly of conservative and minimally invasive interventions.3

See R. at 20–22. Substantial evidence in the record supports that conclusion.

Regarding her back pain, Barger’s physicians recommended routine treatments such

as heating pads, water therapy, and physical therapy while also prescribing her

medication for pain relief. See, e.g., R. 271, 290, 297. In June 2016, a spine-care

3 Barger contends that it was inappropriate for the ALJ to consider whether medical evidence

supported her subjective assertions of pain. Doc. 10 at 10–13. It is true that objective proof of

subjective symptoms is not necessary for a claimant to prove disabling pain. Wiggins v. Schweiker,

679 F.2d 1387, 1390–91 (11th Cir. 1982). But the ALJ did not reject Barger’s subjective testimony

merely because it lacked support in objective medical evidence. Rather, the ALJ discredited her

testimony after considering all the evidence presented and determining that Barger’s objectively

determined impairments could not reasonably produce all of her complained of symptoms. R. 20.

That finding was consistent with the Eleventh Circuit’s pain standard. See, e.g., May v. Comm’r

of Soc. Sec. Admin., 226 F. App’x 955, 958–59 (11th Cir. 2007).

specialist administered a steroid injection to Barger’s lower back, which was well

tolerated. R. 360. In May 2017, the same specialist recommended pain management

and “routine comfort measures” as the preferred methods for relieving Barger’s pain.

R. 390–91. And on multiple occasions in 2015 and 2016, doctors assessed the

severity of Barger’s back pain as being “mild” and “stable,” though persistent. R.

270, 282, 284, 286.

To be sure, the record contains some evidence supporting Barger’s subjective

complaints of pain. She developed a herniated disc as a teenager, which has plagued

her intermittently ever since. R. 294. She has reported to doctors that her back pain

registers an eight on a ten-point scale and is “severe and constant.” R. 388, 502.

Indeed, Barger’s doctors eventually referred her for surgery in early 2017, but she

twice missed her surgical appointments, causing staff to cancel the procedure. R.

502. The record does not reveal any evidence that Barger underwent the surgery

before the ALJ issued his decision. See R. 22.

Moreover, the court’s sole function on appeal is to determine whether the

record contains substantial evidence to support the underlying decision, not to

reweigh evidence or substitute its judgment for the Commissioner’s. Martin, 894

F.2d at 1529. “[C]redibility determinations are the province of the ALJ” and courts

should “not disturb a clearly articulated credibility finding supported by substantial

evidence.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir.

2014) (citations omitted). That is true even where the evidence preponderates

against the Commissioner’s finding. Martin, 894 F.2d at 1529. All told, the record

evidence substantially supports the ALJ’s determination that Barger’s medically

determinable impairments could not reasonably produce all of her alleged

symptoms.

C.

Because the ALJ reasonably discounted Barger’s pain testimony, her final

alleged error—that the ALJ erroneously concluded at Step Five that she was not

disabled—also fails. At Step Five, the ALJ determines whether significant numbers

of jobs that the claimant can perform exist in the national economy. Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). One way for the ALJ

to make this determination is to obtain testimony from a vocational expert. Id. “In

order for a vocational expert’s testimony to constitute substantial evidence, the ALJ

must pose a hypothetical question which comprises all of the claimant’s

impairments.” Wilson, 284 F.3d at 1227.

Barger appears to allege that there are either zero or at most two jobs available

for her in the national economy, and that she is therefore disabled. She notes that

during her administrative hearing a vocational expert testified that an individual

unable to “combine 8 hours of standing, sitting, or walking during an 8-hour day for

a 40-hour work week” could not find work in the national economy. Doc. 10 at 7

(quoting R. 64). Additionally, Barger points out that the vocational expert could

identify only two jobs available nationally for individuals who are limited to

occasional use of their dominant hand but are otherwise capable of performing

sedentary work. Id. at 8 (citing R. 64).

But those conclusions were based on hypothetical facts that the ALJ

determined were inapplicable. As explained above, the ALJ reasonably found that

Barger’s impairments could not produce all of her alleged symptoms. Therefore, the

ALJ considered the vocational expert’s testimony regarding an individual with

Barger’s RFC. That testimony established that at least three jobs exist in significant

numbers nationally for a person capable of performing light work, though limited to

frequent but not constant use of her dominant hand. R. 23, 62–63. Barger does not

dispute that the ALJ’s hypothetical question considered all the limitations found in

the ALJ’s assessment of her RFC. Her contention thus “fails because the criticisms

that [she] aims at the hypothetical question are identical to those leveled at the ALJ’s

RFC, and, as discussed above, the RFC is supported by substantial evidence.”

Ybarra v. Comm’r of Soc. Sec., 658 F. App’x 538, 542–43 (11th Cir. 2016).

VI.

To conclude, substantial evidence supports the ALJ’s determination that

Barger is not disabled, and the ALJ applied the proper legal standards in reaching

that determination. The Commissioner’s final decision is therefore due to be

affirmed in a separate order in accordance with this Memorandum Opinion.

DONE the 22nd day of October, 2020.

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

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