Moss v. Berryhill
Court Docket Sheet

Middle District of Alabama

2:2017-cv-00348 (almd)

BRIEF/MEMORANDUM in Support of the Commissioner's Decision filed by Nancy A. Berryhill.

Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ANNETTE WILLIAMS MOSS,)) Plaintiff,)) v.) Civil Action No:) 2:17-cv-00348-SRW NANCY A. BERRYHILL,) Acting Commissioner of) Social Security,)) Defendant.) MEMORANDUM IN SUPPORT OF THE COMMISSIONER’S DECISION Statement of the Issue WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSIONER'S DECISION? Statement of the Case (i) Administrative Proceedings Plaintiff applied for a period of disability and disability insurance benefits on March 14, 2016 (Tr. 185-186). This application was denied by hearing decision issued November 25, 2016 (Tr. 19-34). Thereafter, Plaintiff timely pursued and exhausted her administrative remedies available before the defendant. The final decision of the Commissioner finding Plaintiff has not met the statutory requirements for disability is now ripe for review pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). (ii) Statement of Facts The Commissioner adopts the facts as set forth in the decision of the administrative law judge (ALJ) issued on November 25, 2016 (Tr. 19-34). Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 2 of 10 (iii) Standard of Review The standard or scope of review applicable to this case is limited to determining whether the findings of the Commissioner are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005), and whether the correct legal standards were applied. See Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004); see also Dyer, 395 F.3d at 1210 (substantial evidence is less than a preponderance). Even if there is evidence on the other side, the Commissioner's findings must be affirmed if substantial evidence supports the decision. See Crawford, 363 F.3d at 1158-59; Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003)(quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). In contrast to the Commissioner’s factual findings, the court reviews the Commissioner’s legal decisions de novo. See Ingram v. Commissioner of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Argument SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S FINDING THAT PLAINTIFF WAS NOT DISABLED. 1. The ALJ properly evaluated Plaintiff’s residual functional capacity. The burden of proving disability always rests with Plaintiff. See 20 C.F.R. § 404.1512 (2017); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2011). The ALJ evaluated the evidence of record and concluded that Plaintiff was not disabled (Tr. 34). The ALJ determined that Plaintiff had severe impairments due to lumbar degenerative disc disease; anemia; and depression/anxiety, but that she nevertheless could perform light work with additional limitations (Tr. 24-32). Plaintiff 2 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 3 of 10 was 53 years old at the time the administrative decision was issued and obtained a twelfth grade education (Tr. 185, 210). To establish disability, Plaintiff had to demonstrate that she was unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment expected to result in death or to last twelve or more continuous months. See 42 U.S.C. § 1382(a)(3)(A); 20 C.F.R. § 404.1505 (2017); see also Powell o/b/o Powell v. Heckler, 773 F.2d 1573, 1576 (11th Cir. 1985); Gibson v. Heckler, 762 F.2d 1516, 1518 (11th Cir. 1985). Plaintiff also had the initial burden of proving that she was no longer able to perform any of her past relevant work. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). In the present case, the ALJ determined Plaintiff failed to meet this burden (Tr. 32-33). The medical evidence demonstrates treatment by Dr. Goore for pain in the legs and shoulders in April of 2014 (Tr. 383-384). Dr. Goore noted crepitus and degenerative changes in the knees and limited range of the cervical spine (Tr. 383-384). Dr. Goore noted no findings regarding the lumbar spine and normal motor strength of the extremities (Tr. 384). Dr. Goore’s only diagnosis was a "routine general medical examination" (Tr. 384). On April 29, 2014, an x-ray of the right knee confirmed only narrowing of the medial compartment with no acute abnormality (Tr. 306). An x-ray of the left knee revealed mild narrowing or the medial compartment (Tr. 308). An x-ray of the lumbar spine revealed moderate degenerative changes at L3-S1 (Tr. 307). On September 16, 2015, Dr. Goore noted back pain with no findings related to the lumbar spine and normal motor strength of the extremities (Tr. 385-386). Dr. Goore advised a moderate aerobic exercise program (Tr. 387). On September 30, 2015, Dr. Goore noted complaints of right knee pain with degenerative changes in the knees (Tr. 388-389). On April 20, 2016, Dr. Goore completed a residual functional capacity form on which she indicated Plaintiff had physical and 3 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 4 of 10 mental limitations that would prevent her from performing even sedentary level work (Tr. 513-515). On May 13, 2016, Plaintiff underwent a psychological evaluation performed by Dr. Hammock (Tr. 366-369). Plaintiff confirmed she was not taking any psychotropic medication and had not sought mental health treatment (Tr. 365-366). Dr. Hammock diagnosed Plaintiff with depression/anxiety and assessed a mild limitation in social interaction and moderate limitations in memory and concentration (Tr. 369). On May 16, 2016, Plaintiff was examined by Dr. Robertson (tr. 360-364). On examination, Dr. Robertson noted Plaintiff had a normal gait with squatting limited by right knee pain (Tr. 362). No tenderness to palpation was noted in the lumbar spine or the right knee (Tr. 363). Plaintiff exhibited normal gross/fine motor skills (Tr. 363). Dr. Robinson concluded Plaintiff had no limitations on standing, walking, sitting or manipulation (Tr. 364). Dr. Robinson indicated Plaintiff could occasionally lift up to 20 pounds (Tr. 364). Dr. Robinson noted Plaintiff could never climb ladders, stoop or crouch (Tr. 364). Dr. Robinson indicated Plaintiff could occasionally kneel or crawl (Tr. 364). Dr. Robinson noted Plaintiff could not work around work hazards or unprotected heights (Tr. 364). On July 12, 2016, Plaintiff was examined by Dr. Taylor (Tr. 519-520). Plaintiff alleged increased back pain due to a fall (Tr. 519). On examination, Dr. Taylor noted painful/swollen joints and difficulty walking (Tr. 520). Dr. Taylor noted no findings related to the lumbar spine and motor function within normal limits (Tr. 520). On June 23, 2016, Dr. Williams, a state agency psychiatrist, reviewed the medical evidence and concluded that Plaintiff had severe limitations due to depression/anxiety (Tr. 76-4 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 5 of 10 88). Dr. Williams indicated Plaintiff would be able to carry out short, simple instructions and could concentrate for 2-hour periods on simple tasks with customary breaks (Tr. 87-88). In reaching her conclusions regarding residual functional capacity (RFC), the ALJ evaluated the evidence of record and concluded that Plaintiff could perform light work with additional limitations (Tr. 28-32). Although the opinion of a claimant's treating physician must be accorded substantial weight unless good cause exists for not doing so, Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985), the ALJ may reject an opinion that is so brief and conclusory that it lacks persuasive weight or is unsubstantiated by any clinical or laboratory findings. Phillips v. Barnhart, 357 F.3d 1232, 1240-1241 (11th Cir. 2004). Under the regulations, a treating physician's opinion is generally due greater weight based on the length of the treating relationship when the opinion is supported by objective medical evidence, and is not inconsistent with substantial evidence in the record. See 20 C.F.R. § 404.1527(c)(2) (2017). The ALJ properly discounted the opinion from Dr. Goore, a treating physician (Tr. 29-31, 513-515). The ALJ noted that Dr. Goore’s opinion was inconsistent with her objective examination findings (Tr. 29-31). In April of 2014, Dr. Goore noted crepitus in the knees, but noted no findings regarding the lumbar spine and normal motor strength of the extremities (Tr. 383-384). Dr. Goore’s only diagnosis was a "routine general medical examination" (Tr. 384). On April 29, 2014, an x-ray of the right knee confirmed only narrowing of the medial compartment with no acute abnormality (Tr. 306). An x-ray of the left knee revealed mild narrowing or the medial compartment (Tr. 308). An x-ray of the lumbar spine revealed moderate degenerative changes at L3-S1 (Tr. 307). In September of 2015, Dr. Goore again noted degenerative changes in the knees, but no abnormal findings of the lumbar spine and normal motor strength (Tr. 385-386, 388-389). 5 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 6 of 10 Dr. Goore advised a moderate aerobic exercise program (Tr. 387). Dr. Taylor, another treating physician, noted painful/swollen joints and difficulty walking (Tr. 520). However, Dr. Taylor also noted no abnormal findings of the lumbar spine and normal motor function (Tr. 520). Dr. Goore’s opinion is also inconsistent with the opinion from Dr. Robertson, an examining physician (Tr. 360-364). On examination, Dr. Robertson noted Plaintiff had a normal gait with a limited ability to squat (Tr. 362). No tenderness to palpation was noted in the lumbar spine or the right knee, and normal gross/fine motor skills (Tr. 363). Dr. Robinson concluded Plaintiff had no limitations on standing, walking, sitting or manipulation (Tr. 364). Dr. Robinson also indicated Plaintiff could occasionally lift up to 20 pounds (Tr. 364). Thus, the ALJ’s RFC determination is supported by substantial evidence (Tr. 28-32). 2. The record did not demonstrate additional limitations due to obesity. The Social Security Act defines "disability" in terms of the effect a physical or mental impairment has on an individual's ability to function in the workplace, and the Commissioner's regulations adopt precisely this functional approach in determining the effect of medical impairments. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987)(citing Heckler v. Campbell, 461 U.S. 458, 459-460 (1983)). As discussed, the ALJ’s RFC determination is supported by substantial evidence and should be affirmed (Tr. 28-32). The medical record demonstrates Plaintiff’s weight varied after she underwent gastric bypass surgery (Tr. 361, 383, 385). Dr. Goore advised Plaintiff about nutrition, diet and exercise (Tr. 383-387). Even if Plaintiff had a non-severe impairment due to obesity, she cannot point to additional limitations that would prevent her from performing light work as found by the ALJ (Tr. 24-32). 6 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 7 of 10 3. The ALJ adequately accounted for limitations in concentration, persistence and pace. The ALJ posed a hypothetical question to the VE assuming an individual with Plaintiff’s relevant vocational characteristics with the ability to perform light work with additional restrictions including: occasional pushing/pulling of foot controls, climbing ramps/stairs, stooping, kneeling, crouching and crawling; no climbing of ladders/scaffolds; no work at unprotected heights or around hazardous machinery; occasional exposure to humidity and wetness, temperature extremes, and vibration; and the performance on simple tasks with frequent social interaction and occasional changes in a routine work setting (Tr. 69-70). In response to the ALJ's hypothetical, the VE indicated that such an individual could perform Plaintiff past relevant work as a mailroom clerk (Tr. 68-70). In the alternative, the ALJ relied on VE testimony that Plaintiff could perform work at the light level as a garment sorter, inspector, and/or tagger (Tr. 68-70). The VE testified that approximately 900,000 of these jobs existed nationally (Tr. 70). Therefore, the VE established that there were a significant number of jobs that a person with the limits identified by the ALJ could perform. See Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1986); McSwain v. Bowen, 814 F.2d 617, 619-20 (11th Cir. 1986). The hypothetical question posed to the VE adequately accounted for moderate limitations in concentration, persistence and pace as the VE identified unskilled jobs with an SVP of 1 or 2 that could be performed (Tr. 68-70). Thus, the ALJ relied on VE testimony and determined that Plaintiff was not disabled pursuant to 20 C.F.R. § 404.1520(g) (2017) (Tr. 32-34). 7 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 8 of 10 4. The ALJ properly evaluated Plaintiff’s credibility. In reaching her conclusions, the ALJ considered the evidence, including the documentary evidence and Plaintiff's testimony, and concluded that Plaintiff's statements concerning her impairments and their impact on her ability to work were not totally credible (Tr. 24-34). See 20 C.F.R. § 404.1529 (2017); SSR 96-2p, 1996 WL 1020935 (S.S.A.). The ALJ evaluated Plaintiff’s subjective allegations and noted they exceeded the objective findings from the treating and examining physicians (Tr. 24-34). Dr. Goore noted no abnormal findings regarding the lumbar spine and generally normal motor strength (Tr. 383-386, 388-389). Dr. Goore also advised a moderate aerobic exercise program (Tr. 387). An x-ray of the right knee confirmed only narrowing of the medial compartment, and an x-ray of the left knee revealed mild narrowing of the medial compartment (Tr. 306, 308). An x-ray of the lumbar spine revealed moderate degenerative changes at L3-S1 (Tr. 307). On examination, Dr. Robertson noted a normal gait, no tenderness in the lumbar spine or the right knee, and normal gross/fine motor skills (Tr. 363). Dr. Robinson concluded Plaintiff had no limitations on standing, walking, sitting or manipulation (Tr. 364). The ALJ also noted that Plaintiff did not take any psychotropic medication (Tr. 31). See Dyer, 395 F.3d at 1210. Thus, the ALJ’s credibility determination is supported by substantial evidence (Tr. 28-32). Conclusion The decision of the Commissioner is supported by substantial evidence and should be affirmed. 8 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 9 of 10 Respectfully submitted, LOUIS V. FRANKLIN, SR. United States Attorney By:/s/James J. DuBois JAMES J. DUBOIS Assistant United States Attorney GA Bar Number: 231445 Attorney for Defendant Post Office Box 197 Montgomery, AL 36101-0197 Telephone No.: (334) 223-7280 Facsimile No.: (334) 223-7418 E-mail: James.DuBois2@usdoj.gov Of Counsel: Reginald V. Speegle, Regional Chief Counsel Bar Number: 6660-S60R Social Security Administration, Office of the General Counsel, Region IV 61 Forsyth St, S.W., Suite 20T45 Atlanta, GA 30303-8920 Telephone: (404) 562-1097 E-mail: reggie.speegle@ssa.gov 9 Case 2:17-cv-00348-SRW Document 17 Filed 12/04/17 Page 10 of 10 CERTIFICATE OF SERVICE I hereby certify that on the 4th day of December, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to Plaintiff’s attorneys, Edward A. Wicklund, Esquire, and Darryl Hunt, Esquire./s/James J. DuBois Assistant United States Attorney 10

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Description
1
05/30/2017
COMPLAINT against Nancy A. Berryhill, filed by Annette Williams Moss.
1
Exhibit A
1 Attachment
2
05/30/2017
MOTION for Leave to Proceed in forma pauperis by Annette Williams Moss.
1
Application IFP
1 Attachment
3
06/12/2017
ORDERED that the motion (Doc. 2) is GRANTED; ORDER TO ANSWER Social Security Complaint within 90 days after the date of service of the complaint; plaintiff to file brief in support within 40 days of filing of the answer; defendant's reply brief and administrative record due within 30 days of brief filing. Copies mailed to counsel. Signed by Honorable Judge Susan Russ Walker on 6/12/2017.
4
06/15/2017
Summons Issued as to Nancy A. Berryhill, U.S. Attorney, Social Security Office of Regional Counsel, and U.S. Attorney General and mailed CMRRR with copy of 1 complaint and 3 order.
5
06/19/2017
Motion for Edward A. Wicklund to Appear Pro Hac Vice (Filing fee $ 50.00 receipt number 4602045771.) by Annette Williams Moss.
1
Original Certificate of Good Standing
2
Filing Fee Receipt
2 Attachments
6
06/20/2017
Return Receipt Card showing service of Summons, 1 Complaint, and 3 Order signed by Brittney Boshell for U.S. Attorney served on 6/16/2017, answer due 9/14/2017.
7
06/26/2017
Return Receipt Card showing service of Summons, 1 Complaint, and 3 Order signed by Emily S. for U.S. Attorney General served on 6/21/2017.
8
06/26/2017
Return Receipt Card showing service of Summons, 1 Complaint, and 3 Order signed by Elena Franco for Social Security Office of Regional Counsel served on 6/19/2017
9
06/27/2017
Return Receipt Card showing service of Summons, 1 Complaint, and 3 Order signed by Social Security Administration for Nancy A. Berryhill served on 6/19/2017.
10
07/10/2017
TEXT ORDER granting 5 Motion for Edward A. Wicklund to Appear Pro Hac Vice. Signed by Honorable Judge Susan Russ Walker on 7/10/2017. (no pdf document attached to this entry)
11
08/17/2017
CONSENT to Jurisdiction by US Magistrate Judge e-signed by counsel for by Nancy A. Berryhill.
12
08/17/2017
CONSENT to Jurisdiction by US Magistrate Judge e-signed by counsel for by Annette Williams Moss.
08/17/2017
***Attorney James Joseph DuBois for Nancy A. Berryhill added pursuant to the 11 consent. (No pdf attached to this entry) (Text entry; no document attached.)
13
09/13/2017
ANSWER to 1 Complaint by Nancy A. Berryhill.
09/21/2017
***Attorney Reginald V Speegle for Nancy A. Berryhill added pursuant to the 13 answer. (Text entry; no document attached.)
14
10/20/2017
Consent MOTION for Extension of Time to File brief in social security case by Annette Williams Moss.
15
10/23/2017
TEXT ORDER granting 14 Consent MOTION for Extension of Time to File brief in Social Security Case. Signed by Honorable Judge Susan Russ Walker on 10/23/2017. (no pdf document attached to this entry)
16
11/02/2017
BRIEF/MEMORANDUM in Support Social Security Appeal filed by Annette Williams Moss.
17
12/04/2017
BRIEF/MEMORANDUM in Support of the Commissioner's Decision filed by Nancy A. Berryhill.
18
12/04/2017
Social Security Transcript of Administrative Proceedings by Nancy A. Berryhill.
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