Hightower v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JAMES HIGHTOWER, )

)

Plaintiff, )

)

v. ) Case No. 5:23-cv-00258-LCB

)

SOCIAL SECURITY )

ADMINISTRATION, )

COMMISSIONER, )

)

Defendant. )

MEMORANDUM OPINION

Plaintiff James Hightower seeks judicial review pursuant to 42 U.S.C.

§ 405(g) of an adverse, final decision of the Commissioner of the Social Security

Administration (“Commissioner”), regarding his claim for disability and disability

insurance benefits. The Court has carefully considered the record, and for the

reasons expressed below, AFFIRMS the Commissioner’s decision.

LAW AND STANDARD OF REVIEW

To qualify for benefits, the claimant must be disabled as defined by the Social

Security Act and the Regulations promulgated under it. The Regulations define

“disabled” as the “inability to do 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 12 months.” 20 C.F.R. § 404.1505(a). To establish an entitlement

to disability benefits, a claimant must provide evidence of a “physical or mental

impairment” which “results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and

laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

In determining whether a claimant suffers a disability, the Commissioner,

through an Administrative Law Judge (ALJ), works through a five-step evaluation

process. See 20 C.F.R. § 404.1520(a)(4). The burden rests on the claimant at the

first four steps of this five-step process; the burden then shifts to the Commissioner

at step five, if the evaluation proceeds that far. Washington v. Comm’r of Soc. Sec.,

906 F.3d 1353, 1359 (11th Cir. 2018).

In the first step, the claimant cannot be currently engaged in substantial

gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the

impairment is “severe” in that it “significantly limits [the] physical or mental ability

to do basic work activities . . . .” Id. at § 404.1520(c).

At step three, the evaluator must conclude the claimant is disabled if the

impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part

404, Subpart P, App. 1, §§ 1.00-114.02. Id. at § 404.1520(d). If a claimant’s

impairment meets the applicable criteria at this step, that claimant’s impairment

would prevent any person from performing substantial gainful activity. 20 C.F.R. §§

404.1520(a)(4)(iii), 404.1525. That is, a claimant who satisfies steps one and two

qualifies automatically for disability benefits if the claimant suffers a listed

impairment. See Williams v. Astrue, 416 F. App’x 861, 862 (11th Cir. 2011) (“If, at

the third step, [the claimant] proves that [an] impairment or combination of

impairments meets or equals a listed impairment, [the claimant] is automatically

found disabled regardless of age, education, or work experience.” (citing 20 C.F.R.

§§ 404.1520, 416.920; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997))).

If the claimant’s impairment or combination of impairments does not meet or

medically equal a listed impairment, the evaluation proceeds to the fourth step,

where the claimant demonstrates an incapacity to meet the physical and mental

demands of past relevant work. 20 C.F.R. § 404.1520(e). At this step, the evaluator

must determine whether the claimant has the residual functional capacity (“RFC”)

to perform the requirements of past relevant work. See id. § 404.1520(a)(4)(iv). If

the claimant’s impairment or combination of impairments does not prevent

performance of past relevant work, the evaluator will determine the claimant is not

disabled. See id.

If the claimant succeeds at the preceding step, the fifth step shifts the burden

to the Commissioner to provide evidence, considering the claimant’s RFC, age,

education and past work experience, that the claimant is capable of performing other

work. Id. §§ 404.1512(b)(3), 404.1520(g). If the claimant can perform other work,

the evaluator will not find the claimant disabled. See id. § 404.1520(a)(4)(v); see

also 20 C.F.R. § 404.1520(g). If the claimant cannot perform other work, the

evaluator will find the claimant disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),

404.1520(g).

The Court must determine whether substantial evidence supports the

Commissioner’s decision and whether the Commissioner applied the proper legal

standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

The Court reviews the ALJ’s “‘decision with deference to the factual findings and

close scrutiny of the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec.

Admin., 783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d

1143, 1145 (11th Cir. 1991)). Indeed, “an ALJ’s factual findings . . . ‘shall be

conclusive’ if supported by ‘substantial evidence.’” Biestek v. Berryhill, 139 S. Ct.

1148, 1153 (2019) (citing 42 U.S.C. § 405(g)). Although the Court must “scrutinize

the record as a whole . . . to determine if the decision reached is reasonable . . . and

supported by substantial evidence,” the Court “may not decide the facts anew,

reweigh the evidence, or substitute [its] judgment” for that of the ALJ. Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted). “[W]hatever

the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary

sufficiency is not high. Substantial evidence . . . . is ‘more than a mere scintilla,’ . .

. [and] means – and means only – ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Biestek, 139 S. Ct. at 1154 (citations

omitted). Therefore, substantial evidence exists even if the evidence preponderates

against the Commissioner’s decision. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

Cir. 2005).

FACTUAL AND PROCEDURAL HISTORY

Hightower filed an application for disability and disability insurance benefits

on January 31, 2022, alleging disability beginning August 31, 2019. (Tr. 198-205).

Hightower’s claim was denied initially on April 20, 2022, and upon reconsideration

on July 12, 2022. (Tr. 112-16, 118-22). Thereafter, Hightower filed a written

request for a hearing, which was received by the Commissioner on July 19, 2022.

(Tr.123-24). An Administrative Law Judge (“ALJ”) held a telephone hearing on

November 8, 2022. (Tr. 17, 36, 38, 182).

The ALJ issued an opinion on November 29, 2022, denying Hightower’s

claims. (Tr. 14-31). Applying the five-step sequential process, the ALJ found at

step one that Hightower did not engage in substantial gainful activity since August

31, 2019, the alleged onset date. (Tr. 20). At step two, the ALJ found Hightower

manifested the severe impairments of degenerative disc disease of the lumbar spine.

(Tr. 21). At step three, the ALJ found Hightower’s impairments, or combination of

impairments, did not meet or medically equal any impairment for presumptive

disability listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 26).

At step four, the ALJ found Hightower exhibited the residual functional

capacity (“RFC”) to perform medium work with the following exceptions:

no climbing of ladders, ropes, scaffolds; occasional climbing of

ramps/stairs; frequent stooping, kneeling, crouching, crawling. The

claimant should also avoid concentrated exp[osure] to extremes of cold

temp[erature]s, unprotected heights and moving machinery.

(Id.).

In addition, the ALJ determined Hightower could perform past relevant work

as a shipping and receiving supervisor, and car wash supervisor. (Tr. 30).

Accordingly, the ALJ determined Hightower has not suffered a disability, as defined

by the Social Security Act, since August 31, 2019. (Tr. 30-31).

Hightower requested review of the ALJ’s decision. (Tr. 197). On September

9, 2022, the Appeals Council denied review, which renders the ALJ’s decision as

the Commissioner’s final decision. (Tr. 1-6); see Keeton v. Dep't of Health & Hum.

Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (“When the Appeals Council denies

review, the decision of the ALJ becomes the final decision of the Secretary.” (citing

20 C.F.R. § 404.955)). On February 1, 2023, Hightower filed his complaint with

the Court seeking review of the ALJ’s decision. (Doc. 1).

ANALYSIS

In this appeal, Hightower argues the ALJ erred in finding that his PTSD was

a non-severe impairment, failed to properly apply the pain standard, and that the

ALJ’s RFC finding is not supported by substantial evidence. (Doc. 8 at 5, 8). For

the reasons discussed below, the Court disagrees.

I. Hightower Did Not Sustain his Burden of Proving that his PTSD

Qualifies as a Severe Impairment.

Step two of the sequential evaluation process, during which the ALJ considers

the medical severity of a claimant’s impairments, constitutes a “‘threshold inquiry’

and ‘allows only claims based on the most trivial impairments to be rejected.’”

Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1264-65 (11th Cir. 2019) (citing

Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004); McDaniel v. Bowen,

800 F.2d 1026, 1031 (11th Cir. 1986)).

An impairment or combination of impairments is “non-severe” if it “does not

significantly limit [the claimant’s] physical or mental ability to do basic work

activities.” 20 C.F.R. § 404.1522(a). The term “basic work activities” refers to “the

abilities and aptitudes necessary to do most jobs,” including:

(1) Physical functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple

instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual

work situations; and

(6) Dealing with changes in a routine work setting.

20 C.F.R. § 404.1522(b). Thus, an ALJ should characterize an impairment as non-

severe “only if the abnormality is so slight and its effect so minimal that it would

clearly not be expected to interfere with the individual’s ability to work, irrespective

of age, education or work experience.” Schink, 935 F.3d at 1265 (citing McDaniel,

800 F.2d at 1031).

Furthermore, the mere diagnosis of a physical or mental condition does not

necessarily connote a disabling impairment, or even a severe impairment, as the

functional effect of a claimant’s impairments, not the mere existence of the

impairments themselves, governs the assessment of an impairment. See Moore, 405

F.3d at 1213 n.6 (citing McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986))

(“To a large extent, Moore questions the ALJ’s RFC determination based solely on

the fact that she has varus leg instability and shoulder separation. However, the mere

existence of these impairments does not reveal the extent to which they limit her

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

Astrue, 395 F. App’x 528, 531 (11th Cir. 2010) (finding diagnosis insufficient to

establish disability); Osborn v. Barnhart, 194 F. App’x 654, 667 (11th Cir. 2006)

(finding that while a doctor’s letter reflected diagnoses, “it does not indicate in any

way the limitations these diagnoses placed on [the claimant’s] ability to work, a

requisite to a finding of disability.”).

Furthermore, step two requires only a finding of “at least one” severe

impairment to continue to the later steps. Tuggerson-Brown v. Comm’r of Soc. Sec.,

572 F. App’x 949, 951 (11th Cir. 2014) (citing Jamison v. Bowen, 814 F.2d 585, 588

(11th Cir.1987)). Meaning, “the only consequence of the analysis at step two is that,

if the ALJ finds no severe impairment or impairments, he should reach a conclusion

of no disability.” Id. (citing 20 C.F.R. § 404.1520(a)(4)(ii)). Thus, “there is no need

for an ALJ to identify every severe impairment at step two.” Id.

Here, Hightower testified that his PTSD interfered with his previous work,

and that he experiences nightmares, isolates from people, and has trouble sleeping,

concentrating, and focusing. (Tr. 48, 54-55, 58, 62). Hightower also reported

psychological symptoms to the consultative psychological examiner. (Tr. 314-16).

In combination with Hightower’s mental health history, the examiner diagnosed

Hightower with PTSD. (Tr. 316). The examiner stated that Hightower “may struggle

to concentrate for an extended period” of time and that “[s]ocial interactions are

difficult for [Hightower] as he gets easily irritated.” In addition, according to the

examiner, “[p]ressures related to work setting would pose a problem due to anxiety.”

(Id.).

As the ALJ noted, Hightower had generally normal clinical signs during the

examiner’s mental status exam. (Tr. 24). Indeed, Hightower had an anxious mood,

difficulties with consent, and became frustrated. (Id.). Hightower also reported

having paranoia. (Id.). However, Hightower had an appropriate affect, “sufficient

hygiene and grooming, “made good eye contact,” had coherent and normal speech,

had normal and full orientation, denied having suicidal or homicidal ideations, had

normal though content and thought process, had “fair” judgment and insight, and

appeared to have “average intelligence.” (Id.).

The ALJ also observed that Hightower was not treated for mental health issues

during the period in question. (Tr. 23). Furthermore, Hightower has been on no

mental health medication, has not been hospitalized, and has not been seen regularly

for treatment during the relevant time period. (Id.). In addition, treatment records

show Hightower declining mental health referrals and having generally normal

depression screening results. (Id.).

Moreover, the ALJ discussed how Hightower’s clinical mental status findings

during his visits to various VA medical providers had been predominantly

unremarkable. (Tr. 23). Hightower’s VA treatment records also consistently lack

notations for subjective complaints of nightmares throughout the relevant time

period, which contrast with Hightower’s hearing testimony and complaints to the

consultative psychological examiner. (Id.).

Thus, the Court finds, as the ALJ discussed, the relevant medical records do

not indicate that Hightower’s PTSD was a severe impairment. And even if his PTSD

was a severe impairment, Hightower failed to show that that his PTSD in

combination with his other impairments caused additional limitations on his ability

to work not stated in the RFC finding.

II. The ALJ’s RFC Finding is Supported by Substantial Evidence.

As previously discussed, at step four of the sequential analysis the ALJ

formulates a claimant’s RFC by assessing his or her “ability to meet the physical,

mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). The

claimant’s RFC represents “the most [he or she] can still do despite [their]

limitations.” Id. at § 404.1545(a)(1). Assessing a claimant’s RFC lies within the

exclusive province of the ALJ. See id. at § 404.1527(d)(2) (“[T]he final

responsibility for deciding [a claimant’s RFC] is reserved to the Commissioner.”);

id. at § 404.1546(c) (“[T]he administrative law judge . . . is responsible for assessing

[a claimant’s] residual functional capacity.”); Walker v. Soc. Sec. Admin., Comm’r,

987 F.3d 1333, 1338 (11th Cir. 2021) (citing 20 C.F.R. § 404.1546(c)) (“The

Commissioner of the Social Security Administration has, at the hearing level,

delegated to an administrative law judge the responsibility of determining a

claimant’s residual functional capacity and whether the claimant is disabled.”);

Oates v. Berryhill, No. 17-0130-MU, 2018 WL 1579475, at *8 (S.D. Ala. Mar. 30,

2018) (“The responsibility for making the residual functional capacity determination

rests with the ALJ.”).

Here, Hightower argues his self-described limitations contradict the ALJ’s

finding that he retained the residual functional capacity to perform a limited range

of medium work:

Medium work involves lifting no more than 50 pounds at a time with

frequent lifting or carrying of objects weighing up to 25 pounds. If

someone can do medium work, we determine that he or she can also do

sedentary and light work.

(Doc. 11 at 5); 20 C.F.R. § 404.1567(c).

Specifically, Hightower testified he has debilitating low back pain with

sciatica and PTSD. (Tr. 48). Hightower claims he is in constant pain and cannot

stand for long periods of time. (Tr. 230). Accordingly, Hightower alleges he spends

75 percent of the day lying down, that his wife does the house and lawn work, and

that he isolates himself. (Tr. 62, 232, 235). To treat his pain, Hightower uses a

TENS unit and takes pain medication daily. (Tr. 49, 51). In essence, Hightower

argues that his testimony and subjective complaints of pain render him disabled.

A three-part “pain standard” applies when a claimant attempts to

establish disability through her own testimony of pain or other

subjective symptoms. [Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th

Cir. 2002)]. The pain standard requires evidence of an underlying

medical condition and either objective medical evidence that confirms

the severity of the alleged pain arising from that condition or a showing

that the objectively determined medical condition is of such severity

that it can be reasonably expected to give rise to the alleged pain. Id.

Porto v. Acting Comm’r of Soc. Sec. Admin., 851 F. App’x 142, 148 (11th Cir. 2021).

A claimant’s testimony coupled with evidence that meets this standard suffice “to

support a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

1991) (citation omitted); see also Hollingsworth v. Comm’r of Soc. Sec., 846 F.

App’x 749, 752 (11th Cir. 2021).

Social Security Ruling (“SSR”) 16-3p eliminates the use of the term

“credibility” as it relates to assessing the claimant’s complaints of pain and clarifies

that the ALJ “will consider any personal observations of the individual in terms of

how consistent those observations are with the individual’s statements about his or

her symptoms as well as with all of the evidence in the file.” SSR 16-3p, 2017 WL

5180304, *7 (Oct. 25, 2017). An ALJ’s findings regarding a claimant’s subjective

symptoms may consider a variety of factors, including: the claimant’s daily

activities; symptom location, duration, frequency, and intensity; precipitating and

aggravating factors; type, dosage, effectiveness, and side effects of medication taken

to alleviate the symptoms; and other factors concerning functional limitations and

restrictions due to symptoms. See 20 C.F.R. §§ 404.1529(c)(3), (4).

SSR 16-3p further explains that the ALJ’s decision “must contain specific

reasons for the weight given to the individual’s symptoms, be consistent with and

supported by the evidence, and be clearly articulated so the individual and any

subsequent review can assess how the adjudicator evaluated the individual’s

symptoms.” SSR 16-3p, 2017 WL 5180304, *10; see also Wilson, 284 F.3d at 1225

(If an ALJ discredits a claimant’s subjective testimony, the ALJ “must articulate

explicit and adequate reasons for doing so.”).

Applying the pain standard, the ALJ concluded Hightower’s “medically

determinable impairments could reasonably be expected to cause the alleged

symptoms,” but he nonetheless found Whitson’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 . . ..” (Tr. 27).

In response, Hightower argues that the ALJ erroneously mischaracterized and

selectively treated the medical record. (Doc. 8 at 11). Hightower discusses how his

medical records show “he was consistently treated for . . . low back pain,”

“prescribed numerous medications,” and then he emphasizes an x-ray that portrayed

he suffered “multi-level degenerative disc disease, moderate to severe from L4-S1

and mild at L3-4.” (Id. at 12) (emphasis in original). Hightower states that the ALJ

acknowledged the x-ray but “failed to consider the significant abnormalities.” (Id.

at 13).

Indeed, the ALJ acknowledged Hightower had “some history of lower back

pain and discomfort due to severe degenerative disc disease of the lumbar spine.”

(Tr. 27). Furthermore, the ALJ referenced Hightower’s June 2022 clinical

presentation, which was “completely unremarkable.” In April 2022, Hightower’s

physical examination was “essentially normal,” he showed to have a steady gait,

grossly intact cranial nerves, and a full range of motion. (Id.). He was also able to

transfer between seated and standing “without difficulty.” (Id.).

The ALJ then referenced the previous referenced lumbar spine x-ray taken

during his consultative exam, and mentioned during that same exam, Hightower had

a reduced lumbar spine range of motion, but otherwise had normal musculoskeletal

findings. (Tr. 27). Hightower also appeared to have a normal gait, walked

unassisted, and used no devices. (Id.). Hightower also had normal use of the

extremities with full strength throughout bilaterally. (Id.).

Here, the ALJ did not cherry pick the evidence but weighed it. Hightower, in

essence, disagrees with how the ALJ weighed parts of the record that supported the

RFC finding, references an x-ray that supports his argument, and asks the Court to

inappropriately reweigh the evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

Cir. 2005) (“This limited review precludes deciding the facts anew, making

credibility determinations, or re-weighing the evidence.”).

Moreover, the issue before the Court is not whether the evidence might

support Hightower’s allegations but whether substantial evidence supports the ALJ’s

RFC finding. See Sims v. Comm’r of Soc. Sec., 706 F. App’x 595, 604 (11th Cir.

2017) (“Under a substantial evidence standard of review, [the claimant] must do

more than point to evidence in the record that supports her position; she must show

the absence of substantial evidence supporting the ALJ’s conclusion.”).

Accordingly, the Court finds the evidence that Hightower cites in support of his

argument does not sustain a different ruling, and that the record substantially

supports the ALJ’s RFC finding.

CONCLUSION

For the foregoing reasons, the court AFFIRMS the Commissioner’s decision.

The court will enter a separate final judgment.

DONE and ORDERED this March 21, 2024.

xo SZ C Sha

LILES C. BURKE

UNITED STATES DISTRICT JUDGE

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