Wilson v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

BARBARA WILSON, )

)

Plaintiff, )

)

v. ) Case No. 4:22-cv-00415-SGC

)

COMMISSIONER, SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

MEMORANDUM OPINION1

The plaintiff, Barbara Wilson, appeals from the decision of the Commissioner

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

for Disability Insurance Benefits (“DIB”). (Doc. 1).2 Wilson timely pursued and

exhausted her 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

Commissioner’s decision is due to be affirmed.

I. Procedural History

Wilson completed the 12th grade but did not graduate high school because

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

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

2 Citations to the record in this case refer to the document and page numbers assigned by the court’s

CM/ECF electronic document system and appear as: Doc. __ at __. Citations to the administrative

record refer to the page numbers assigned by the Commissioner and appear as: Tr. at __.

she failed the exit exam. (Tr. at 97-98). She then worked in restaurants and at a

chicken plant. (Id. at 98-100). In her application for DIB, Wilson alleged she

became disabled on May 17, 2019. (Id. at 252-53). After her claim was denied

initially and on reconsideration, she requested a hearing before an Administrative

Law Judge (“ALJ”). (Id. at 29). The ALJ denied Wilson’s claim on April 22, 2021,

after conducting a hearing and a supplemental hearing. (Id. at 29-39). Wilson was

51 years old when the ALJ issued the decision. (Id. at 32).

Wilson requested review of the ALJ’s decision by the Appeals Council and

submitted additional evidence for consideration. The Appeals Council declined to

exhibit the evidence and denied review of the ALJ’s decision. (Id. at 1-4). The

decision then 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)). Wilson thereafter 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. §§ 416(i)(1)(A), 423(d)(1)(A); see also 20 C.F.R. §

404.1505(a). An applicant for DIB must demonstrate disability between her alleged

initial onset date and her date last insured. Mason v. Comm’r of Soc. Sec., 430 F.

App’x 830, 831 (11th Cir. 2011) (citing Moore v. Barnhart, 405 F.3d 1209, 1211

(11th Cir. 2005); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)). The

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

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

404.1520(a)(4).

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

“substantial gainful activity.” Id. at § 404.1520(a)(4)(i). If the claimant is engaged

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

disabled. Id. at § 404.1520(a)(4)(i) and (b). At the first step, the ALJ determined

Wilson would meet the SSA’s insured status requirements through December 31,

2024, and had not engaged in substantial gainful activity since May 17, 2019, the

alleged onset date of her disability. (Tr. at 32).

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. §

404.1520(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 § 404.1520(a)(4)(ii) and (c). At the second step, the ALJ determined

Wilson has the following severe impairments: obesity, cervicalgia, cervical/lumbar

radiculopathy, osteoarthritis, and hypertension. (Tr. at 32).

If the claimant has a severe impairment or combination of impairments, the

Commissioner must then determine whether the impairment or combination of

impairments meets or equals one of the “Listings” found in 20 C.F.R. Part 404,

Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s

impairment or combination of impairments meets or equals one of the Listings, the

Commissioner will find the claimant is disabled. Id. at § 404.1520(a)(4)(iii) and (d).

At the third step, the ALJ determined Wilson does not have an impairment or

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

the Listings. (Tr. at 33).

If the claimant’s impairment or combination of impairments 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). 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 § 404.1520(a)(4)(iv) and (e). If the claimant is capable of

performing her past relevant work, the Commissioner will find the claimant is not

disabled. Id. at § 404.1520(a)(4)(iv).

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

to perform a limited range of light work. (Tr. at 34). In terms of physical

functioning, the ALJ determined Wilson could only occasionally stoop, crouch, or

push or pull with her upper extremities and could never kneel or crawl. (Id.). At the

fourth step, the ALJ determined Wilson cannot perform her past relevant work as a

poultry eviscerator. (Id. at 37).

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

finally must 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) and

(g)(1). If the claimant is capable of performing other work, the Commissioner will

find 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 find the

claimant is disabled. Id. at § 404.1520(a)(4)(v) and (g)(1).

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

RFC, the ALJ determined there are jobs existing in significant numbers in the

national economy, such as those of cafeteria attendant, cleaner, and parking lot

attendant, that Wilson can perform. (Tr. at 38). The ALJ therefore concluded

Wilson is not disabled. (Id. at 38-39).

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

Wilson asserts two claims of error: (1) the ALJ erred by failing to incorporate

into her RFC a limitation on her ability to turn her neck left and right and (2) the

Appeals Council erred by declining to exhibit two pieces of additional evidence she

submitted for consideration. (Doc. 17). 3

A. First Claim of Error

To support her first claim of error, Wilson points to her diagnoses of

cervicalgia and cervical radiculopathy. (Doc. 17 at 19). But the fact of these

impairments says nothing about the extent to which they limit Wilson’s functioning

or ability to work. See Moore, 405 F.3d at 1213 n.6 (“[T]he mere existence of

3 Wilson begins the “Analysis” section of her brief by recounting the ALJ held a supplemental

hearing without explaining why one was required and that the ALJ did not pose to the Vocational

Expert (“VE”) who testified at the supplemental hearing, as he posed to the VE who testified at

the initial hearing, a hypothetical that included a limitation on an individual’s ability to turn her

neck left and right. (Doc. 17 at 15-18). (The VE at the initial hearing testified an individual who

could turn her neck left and right only occasionally would not be able to perform Wilson’s past

relevant work; the jobs of cafeteria attendant, cleaner, or parking lot attendant; or any sedentary

jobs. (Tr. at 103-06)). The court does not discern Wilson’s brief to assert a claim of error in

relation to the ALJ’s decision to hold a supplemental hearing with a different VE to whom the ALJ

posed different hypotheticals. The brief cites no authority that would support any such claim of

error. The court reads the procedural history recounted by Wilson as a way of explaining why the

incorporation into her RFC of a limitation on her ability to turn her head left or right matters:

because, according to the VE who testified at the initial hearing, it would render her unable to

work.

[certain impairments] does not reveal the extent to which they limit [the claimant’s]

ability to work or undermine the ALJ’s determination in that regard.”).

Wilson also cites her testimony regarding her neck-related symptoms to

support her first claim of error. (Doc. 17 at 18-19). She testified she experiences

daily neck pain that “comes and goes.” (Tr. at 93). When asked to describe the pain,

she testified she “cannot move her neck around[;] . . . it jams up.” (Id.). When she

turns it to the right, “it feel[s] like it just pop[s].” (Id. at 102). When she turns it to

the left, “it [doesn’t] want to go way over there. It just stop[s].” (Id.).

The ALJ considered this testimony and discredited it (id. at 35), as he was

permitted to do, see Taylor v. Acting Comm’r of Soc. Sec. Admin., 761 F. App’x 966,

968 (11th Cir. 2019) (noting ALJ may discredit claimant’s testimony regarding

subjective symptoms). He also clearly articulated explicit and adequate reasons for

discrediting the testimony (Tr. at 35-37), as is required to support a negative

credibility determination, see Taylor, 761 F. App’x at 968 (noting ALJ “ ‘must

clearly articulate explicit and adequate reasons’” for discrediting claimant’s

subjective symptoms testimony) (quoting Dyer, 395 F.3d at 1210). Moreover, the

stated reasons for discrediting the testimony are supported by substantial evidence,

discussed below. See id. at 969 (noting reviewing court should “ ‘not disturb a

clearly articulated credibility finding supported by substantial evidence’” (quoting

Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014)).

The genesis of Wilson’s neck pain was a motor vehicle accident on August

17, 2018. The vehicle Wilson was driving was rear-ended by another vehicle. (Tr.

at 571). When Wilson presented at Regional Medical Center the next day, she had

cervical midline tenderness but spontaneous range of motion. Imaging of her

cervical spine revealed no acute fractures or significant malalignment. (Id. at 849-

53). She sought treatment for neck and other pain at MedPlexMD Injury after the

accident. (Id. at 571-89, 593-94). A January 2019 treatment record notes imaging

showed mild-to-moderate disc bulging in the cervical spine, with some narrowing

of the central and foraminal canals. (Id. at 572).

Wilson established care with Family Health and Wellness Center in May

2019. She did not complain of neck pain and had full range of motion in her neck,

which was not tender on examination. (Id. at 859-61). The same was true when

Wilson returned to the clinic in June 2019. (Id. at 857-58). Wilson reported to an

orthopedic surgeon in June 2019 that steroid injections administered in January and

February 2019 had provided her with “some reasonable pain relief” in relation to her

neck. (Id. at 590). The surgeon advised Wilson that he would not recommend

surgical intervention on her cervical spine and was supportive of Wilson’s wish to

pursue further conservative treatment. (Id. at 590-92).

Wilson had normal range of motion in her neck when she presented to

Brookwood Baptist Health in September 2019. (Id. at 877, 879). A “Function

Report” completed by Wilson in October 2019 indicates she was independent in her

activities of daily living and drove herself to and from church every Sunday, as well

as on occasion to doctors’ appointments. (Id. at 310-17). A consultative

examination performed in December 2019 revealed Wilson had normal range of

motion in her cervical spine. (Id. at 609-14).

Wilson only intermittently complained of neck pain during appointments at

Calhoun Quality Health Care between January and May 2020. (Id. at 618-31, 794-

818). She was diagnosed with cervical radiculopathy, but the recommended

treatment was conservative: the application of cold or warm compresses and a

referral for management with pain medication. (See, e.g., id. at 818). A July 2020

“Patient Plan” created by the clinic ordered Wilson to refrain from lifting, pushing,

and pulling in relation to her cervical radiculopathy. (Id. at 887-88). Application of

warm or cold compresses and abstention from lifting, pushing, and pulling remained

the recommended treatment through November 2020. (Id. at 902-24, 927-943).

Wilson was treated for cervicalgia and cervical radiculopathy by a chiropractor

between September 2018 and March 2021. During this time her symptoms waxed

and waned, but her prognosis improved from guarded to fair. (Id. at 634-791, 897-

904, 955-1028).

The evidence discussed above is not entirely consistent with Wilson’s

testimony she experiences disabling neck pain and associated functional limitations.

It constitutes substantial evidence supporting the ALJ’s decision to discredit the

testimony and refrain from incorporating into Wilson’s RFC a limitation on her

ability to turn her neck left and right. See, e.g., May v. Comm’r of Soc. Sec. Admin.,

226 F. App’x 955, 958 (11th Cir. 2007) (holding ALJ properly discredited plaintiff’s

subjective symptoms testimony where that testimony was not supported by clinical

findings or consistent with objective medical evidence or reported daily activities);

Brown v. Comm’r of Soc. Sec., 680 F. App’x 822, 826 (11th Cir. 2017) (holding ALJ

properly discredited claimant’s subjective symptoms testimony where that

testimony was inconsistent with mostly normal findings by claimant’s treating

providers, claimant’s reports to those providers, and conservative nature of

recommended treatment).

B. Second Claim of Error

A claimant generally may present additional evidence at each stage of the

administrative process. 20 C.F.R. §§ 404.900(b), 404.970. The Appeals Council

must consider “new, material, and chronologically relevant evidence” submitted by

a claimant. Id. at § 404.970. Evidence is new if it is not merely cumulative of the

evidence that was before the ALJ. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.

1986). Evidence is material if there is a reasonable probability it would change the

administrative result. Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). Evidence

is chronologically relevant if it relates back to the time of the ALJ’s decision.

Washington v. Comm’r of Soc. Sec., 806 F.3d 1317, 1322 (11th Cir. 2015). Whether

evidence is new, material, and chronologically relevant is a question of law subject

to de novo review. Id. at 1321.

Wilson submitted several additional pieces of evidence to the Appeals

Council, including (1) a report of imaging of her cervical spine performed in

December 2018 and (2) a statement from her chiropractor dated September 6, 2019.

(Tr. at 109, 110). The Appeals Council determined there was not a reasonable

probability these pieces of evidence would change the outcome of the ALJ’s decision

and, therefore, declined to exhibit them. (Id. at 2).4

The imaging report documented mild-to-moderate disc bulging in the cervical

spine, with some narrowing of the central and foraminal canals. (Id. at 110). It is

clear this is the report noted in the January 2019 MedPlexMD Injury treatment

record. The precise findings documented in the December 2018 report and the

January 2019 treatment record are identical. (Compare id. at 110, with id. at 572).5

The Appeals Council did not err in determining there was not a reasonable

probability the evidence would change the ALJ’s decision because the ALJ already

had considered the substance of the evidence as presented in a different format.

4 Wilson does not challenge the Appeals Council’s decision not to exhibit other additional evidence

she submitted.

5 The court summarized the findings instead of reciting them verbatim.

The chiropractor’s statement purported to summarize a consultation Wilson

had not with the chiropractor but, rather, with an orthopedic surgeon in June 2019.

(Id. at 109). The ALJ had the actual record of the consultation made by the

orthopedic surgeon. (Id. at 590-92). The Appeals Council did not err in determining

there was not a reasonable probability a chiropractor’s purported summarization of

an orthopedic surgeon’s record, which record the ALJ already had in his possession,

would change the ALJ’s decision.

The chiropractor’s statement also asserted the opinion it is not “safe or in

[Wilson’s] best interest” for Wilson to return to her job as a housekeeper or

maintenance worker. (Id. at 109). An opinion as to whether a claimant is able to

work is not a medical opinion, even if offered by a treating source, but rather a

dispositive finding for the ALJ to make. 20 C.F.R. § 404.1527(d)(1); Kelly v.

Comm’r of Soc. Sec., 401 F. App’x 403, 407 (11th Cir. 2010). It is entitled to no

special significance. 20 C.F.R. § 404.1527(d)(1) and (3); Kelly, 401 F. App’x at

407. The ALJ had the chiropractor’s treatment records when he rendered his

decision, and the ALJ did not err in determining there was not a reasonable

probability the chiropractor’s opinion on an issue reserved for the ALJ would change

the decision.

The Appeals Council did not err in declining to exhibit the imaging report or

chiropractor’s statement.

Conclusion

Having reviewed the administrative record and considered all the arguments

presented by the parties, the court finds the Commissioner’s decision is due to be

AFFIRMED. A separate order will be entered.

DONE this 8th day of September, 2023.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

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