Susan Herron v. Social Security Administratio

Filing

Opinion issued by court as to Appellant Susan Herron. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13826

Date Filed: 05/06/2016

Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13826
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cv-00840-SLB

SUSAN HERRON,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama - Jasper
________________________
(May 6, 2016)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 15-13826

Date Filed: 05/06/2016

Page: 2 of 14

Susan Herron appeals the district court’s order affirming the denial of her
application for supplemental security income (“SSI”), 42 U.S.C. §§ 405(g),
1383(c)(3). After review, we affirm.
I. BACKGROUND FACTS
Herron began experiencing back and neck pain after she was involved in a
car accident in June 2000. In January 2001, Herron underwent a cervical
discectomy and fusion, but continued to experience chronic pain for which she
took high doses of OxyContin. In April 2010, Herron began treatment for chronic
pain in her back that radiated to her right leg, and a spine x-ray revealed mild
degenerative disc disease and mild facet degenerative joint disease at Herron’s L45 and L5-S1 vertebrae.
In October 2010, Herron filed an application for SSI alleging a disability
onset date of September 11, 2010 due to her back pain, neck pain, and depression.
In June 2012, Herron and a vocational expert testified at a hearing before an
Administrative Law Judge (“ALJ”). Afterward, the ALJ denied Herron’s
application. The ALJ found that: (1) Herron had the severe impairments of
degenerative disc disease, polyarthralgia (i.e., joint pain), chronic obstructive
pulmonary disease, depression, and benzodiazepine and opiate dependence; (2)
Herron could not perform her past relevant work; (3) but Herron had the residual
functional capacity (“RFC”) to perform unskilled light work with a sit/stand
2

Case: 15-13826

Date Filed: 05/06/2016

Page: 3 of 14

option. Based on the VE’s testimony, the ALJ further found that there were a
significant number of jobs in the national economy that Herron could perform,
including bench assembler, sorter, and bakery line attendant. Accordingly, the
ALJ found that Herron was not disabled. The Appeals Council denied Herron’s
request for review, making the ALJ’s decision the final decision of the
Commissioner. See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
II. DISCUSSION
A.

General Principles
To determine whether a claimant is disabled, the ALJ uses a five-step,

sequential evaluation process. See 20 C.F.R. §§ 416.920(a)(1), (4); 416.905.
Using this process, the ALJ considers: (1) whether the claimant is engaged in
substantial gainful activity; (2) if not, whether the claimant has a severe
impairment or combination of impairments; (3) if so, whether the severe
impairment meets or equals an impairment listed in the Listing of Impairments;
(4) if not, whether the claimant has the RFC to perform her past relevant work; and
(5) if not, whether, in light of the claimant’s RFC, age, education, and work
experience, the claimant can perform other work that exists in significant numbers
in the national economy. See 20 C.F.R. §§ 920(a)(4) & (g), 416.960(c). The
claimant bears the burden to prove the first four steps. If the claimant does so, the

3

Case: 15-13826

Date Filed: 05/06/2016

Page: 4 of 14

burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999). 1
On appeal, Herron raises several related arguments with respect to the ALJ’s
determination, at steps four and five, that Herron had the RFC to perform light
work with a sit/stand option. Specifically, Herron argues that the ALJ erred by:
(1) disregarding objective medical tests and findings that substantiated her
subjective complaints of back and neck pain and her treating physician’s testimony
about the severity of her orthopedic issues; (2) failing to consider her impairments
in combination; (3) failing to accord significant weight to, and improperly
discrediting, her treating physician’s opinion that Herron “may have early signs of
ankylosing spondylitis”; and (4) partially discrediting Herron’s own statements
concerning the intensity, persistence, and limiting effects of her pain.
In determining at steps four and five whether a claimant can perform her
past relevant work or other work, the ALJ must determine the claimant’s RFC by
considering all relevant medical and other evidence. Phillips v. Barnhart, 357 F.3d
1232, 1238-39 (11th Cir. 2004); see also 20 C.F.R. §§ 416.920(e), 416.945(a)(3).
The ALJ must explain the weight given to “obviously probative exhibits.” Cowart

1

We review de novo the legal principles underlying the Commissioner’s final decision,
but review “the resulting decision only to determine whether it is supported by substantial
evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is
less than a preponderance, but rather such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Id.
4

Case: 15-13826

Date Filed: 05/06/2016

Page: 5 of 14

v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). However, there is no “rigid
requirement that the ALJ specifically refer to every piece of evidence, so long as
the ALJ’s decision . . . is not a broad rejection” that leaves this Court with
insufficient information to conclude that the ALJ considered the claimant’s
medical condition as a whole. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005).
In assessing RFC, the ALJ must state with particularity the weight given to
different medical opinions and the reasons for doing so. Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir. 1987). A treating physician’s medical opinion “must be
given substantial or considerable weight unless ‘good cause’ is shown to the
contrary.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.
2004) (quotation marks omitted); see also 20 C.F.R. § 416.927(c)(2) (stating that
the treating physician’s opinion that is well-supported and not inconsistent with
other evidence receives “controlling weight”). The ALJ must “clearly articulate
the reasons for giving less weight” to a treating physician’s opinion. See Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. § 416.927(c)(2)
(requiring the ALJ to give “good reasons” for not giving controlling weight to the
treating physician’s opinion).
When the claimant attempts to establish disability through her own
testimony about her pain or other subjective symptoms, a three-part “pain
5

Case: 15-13826

Date Filed: 05/06/2016

Page: 6 of 14

standard” applies. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); SSR
96-7p, 62 Fed. Reg. 34483 (July 2, 1996). The pain standard requires the claimant
to show “(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 symptoms. Wilson, 284 F.3d at 1225; see also 20 C.F.R.
§ 416.929(a)-(b). If the ALJ determines that the claimant has a medically
determinable impairment that could reasonably produce the claimant’s pain or
other symptoms, then the ALJ evaluates the extent to which the intensity and
persistence of those symptoms limit the claimant’s ability to work. 20 C.F.R.
§ 416.929(b)-(c). At this stage, the ALJ considers the claimant’s history, the
medical signs and laboratory findings, the claimant’s statements, statements by
medical sources, and other evidence of how the pain affects the claimant’s daily
activities and ability to work. Id. § 416.929(c). If the ALJ decides to discredit the
claimant’s testimony about her symptoms, the ALJ must adequately explain the
reason for doing so. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995).
B.

The ALJ’s RFC Findings

6

Case: 15-13826

Date Filed: 05/06/2016

Page: 7 of 14

The ALJ found that Herron had the RFC “to perform light work as defined
in 20 C.F.R. § 416.967(b) except the claimant would need a sit/stand option.”2 In
so doing, the ALJ applied the pain standard and found that Herron’s medically
determinable impairments “could reasonably be expected to cause the alleged
symptoms,” but that Herron’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are
inconsistent with” the ALJ’s RFC finding. The ALJ stated that Herron “estimated
that she is able to sit continuously for fifteen minutes, stand ten minutes, and walk
fifteen minutes,” that “she lays down two to three hours” on an average day, and
“she is able to lift no more than ten pounds.” 3 The ALJ found that Herron’s
“allegations of severe pain and functional limitations related to back and neck pain
[are] not fully supported by the evidence.”
The ALJ reviewed Herron’s medical history as to her back and neck pain,
noting, inter alia, that: (1) Herron’s “cervical fusion with bone graft and plating in
January 2001 . . . was successful and she fully recovered despite failure to

2

A claimant’s RFC is a medical assessment of what she can do in a work setting despite
any mental, physical, or environmental limitations caused by her impairments and related
symptoms. 20 C.F.R. § 416.945(a). With respect to physical limitations, the ALJ assesses the
claimant’s ability to do things like sit, stand, walk, lift, carry, push or pull. Id. § 416.945(b).
Light work, as defined in the regulations, involves lifting no more than twenty pounds at a time,
with frequent lifting and carrying of objects weighing up to ten pounds and a good deal of
walking, standing or sitting and manipulating of arm and leg controls. Id. § 416.967(b).
3

Because Herron does not challenge the ALJ’s mental RFC findings related to her
depression, we do not discuss them.
7

Case: 15-13826

Date Filed: 05/06/2016

Page: 8 of 14

complete physical therapy”; (2) Herron did not seek further treatment for back and
neck pain until April 2010; (3) Herron’s neurologist, Dr. Salah Uddin, performed a
physical examination that found “tenderness . . .over [Herron’s] SI joints and
along the paraspinal muscles from the L4 level to S2,” and that “[s]traight leg
raises were positive bilaterally at forty-five degrees”; (4) Dr. Uddin diagnosed
chronic low back pain with radiation into Herron’s right hip and leg, prescribed
medication which Herron reported helped, ordered x-rays that “showed mild
degenerative disc disease at L4-5 and L5-SI with mild facet degenerative joint
disease at [those] levels,” and a nerve conduction study that “did not show
radiculopathy and was noted to be normal”; and (5) Herron’s treating physician
since June 2010, Dr. Scott Twilley, confirmed objective findings of back, neck and
extremities pain with range of motion and diagnosed chronic musculoskeletal pain
and degenerative disc disease, and his treatment notes indicated that Herron’s
“pain is controlled with medication.”
The ALJ noted Dr. Twilley’s statement in his deposition that Herron “may
have early signs of ankylosing spondylitis,” but the ALJ rejected this tentative
diagnosis because the evidence did not support it.4 The ALJ indicated that Dr.
Twilley’s own treatment notes did not contain “a diagnosis of ankylosing
spondylitis, or even a reference to ankylosing spondylitis,” but instead referred
4

The parties agree that ankylosing spondylitis is a type of inflammatory disease of the
spine that causes pain and stiffness and over time can cause the vertebrae to fuse together.
8

Case: 15-13826

Date Filed: 05/06/2016

Page: 9 of 14

only to “degenerative disc disease” in Herron’s cervical and lumbar spine. The
ALJ also pointed to Dr. Uddin’s x-ray records that showed only mild degenerative
disc and joint disease and did not mention ankylosing spondylitis or the vertebrae
fusion that “is usually a symptom[ ] of this impairment.” Based “on the evidence
as a whole,” the ALJ found Herron’s testimony about the severity and functional
limitations of her back, neck, and leg pain to be only “partially credible.”
The ALJ further found that Herron’s testimony about her daily activities was
“somewhat inconsistent with” Herron’s October 2010 function report, in which she
stated that she “prepares quick foods, helps take care of her daughter’s dogs,
occasionally watches her granddaughter, does some house work, and normally
shops for groceries once a week . . . .” The ALJ also noted that, although Herron
testified that she complied with all treatment recommendations, there was no
evidence in the record Herron had participated in the disc decompression therapy
or trigger point injections recommended by Dr. Uddin. In sum, the ALJ concluded
that Herron’s “self-reported limitations [were] not consistent with the medical
evidence and she simply allege[d] a greater degree of debilitation than what
objective evidence can support.”
C.

Herron’s Claims on Appeal
After review, we conclude that the ALJ properly applied the pain standard

by finding that Herron had “medically determinable impairments” that “could
9

Case: 15-13826

Date Filed: 05/06/2016

Page: 10 of 14

reasonably be expected to cause the alleged symptoms.” The ALJ then properly
evaluated the intensity, persistence and limiting effects of Herron’s symptoms and
did not err in concluding that Herron had the RFC to perform light work with a
sit/stand option and that Herron’s statements concerning the intensity, persistence,
and limiting effects were “not credible to the extent they were inconsistent with”
that RFC assessment. The ALJ also showed good cause for rejecting Dr. Twilley’s
testimony that Herron “may” be showing early signs of ankylosing spondylitis
when the ALJ explained that Dr. Twilley’s tentative diagnosis was not supported
by either his own medical records or other medical evidence in the record. See
Phillips, 357 F.3d at 1240-41; see also Crawford, 363 F.3d at 1159 (concluding
ALJ’s decision to discredit treating physician’s opinion was supported by
substantial evidence where the physician’s opinion was not supported by his own
treatment notes). In addition, the ALJ adequately explained his reasons for
partially discrediting Herron’s testimony about the limiting effects of her back and
neck pain, namely that her testimony was not fully supported by the medical
evidence.
Moreover, the ALJ’s reasons for rejecting Dr. Twilley’s tentative diagnosis
and partially discrediting Herron are supported by substantial evidence in the
record. Herron’s medical records indicate that she suffered from mild degenerative
disk and joint disease, that she had range of motion with pain, but that her pain was
10

Case: 15-13826

Date Filed: 05/06/2016

Page: 11 of 14

effectively controlled with medication. Although Dr. Uddin’s treatment
recommendations included trigger point injections for tenderness and disc
decompression therapy for long-term pain control, there is no evidence Herron
ever pursued either of these additional therapies. Dr. Twilley’s treatment notes,
including notes of his June 2010 x-rays of Herron’s spine, contain no mention of
ankylosing spondylitis or spinal fusion unrelated to Herron’s 2001 surgery.
Instead, Dr. Twilley’s x-ray notes are consistent with Dr. Uddin’s April 2010 x-ray
results, finding degenerative disc disease, bone spurs, some loss of the natural
cervical lordosis curve, and some narrowing of disc layers, but no “obvious acute
findings.” Further, a November 2010 physical RFC assessment based on Dr.
Uddin’s treatment records concluded that Herron could: occasionally lift or carry
up to 20 pounds, frequently lift or carry up to 10 pounds, stand or walk about six
hours in an eight-hour workday, sit about six hours an eight-hour workday, and
could push or pull in an unlimited manner.
Herron also argues that the ALJ failed to consider her impairments in
combination. See 20 C.F.R. § 416.923 (providing that ALJ will consider the
combined effect of the claimant’s impairments throughout the disability
determination). This claim is without merit given that the ALJ found, at step three,
that Herron did not have an impairment or combination of impairments that met a
listed impairment. See Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529,
11

Case: 15-13826

Date Filed: 05/06/2016

Page: 12 of 14

1533 (11th Cir. 1991) (explaining that the ALJ’s statement that the claimant did
not have an impairment or combination of impairments that met a listed
impairment “evidences consideration of the combined effect of [the claimant’s]
impairments”). Furthermore the ALJ’s RFC assessment, at steps four and five,
demonstrates that he considered the combined effect of Herron’s impairments, as
the RFC accounted for Herron’s physical and mental impairments.5 ]
Contrary to Herron’s argument, the ALJ also did not disregard objective
medical evidence. In assessing RFC, the ALJ considered the entirety of the
medical record, including the treatment records of both Dr. Uddin and Dr. Twilley,
to which the ALJ assigned “significant weight.” The ALJ specifically mentioned
several objective tests, such as Dr. Uddin’s April 2010 x-rays and nerve
conduction studies, and the clinical findings from Dr. Uddin’s physical
examination, including tender points and a straight leg raise test. Dr. Twilley’s
testimony and treatment notes about his June 2010 x-rays are consistent with Dr.
Uddin’s x-ray results. Dr. Twilley’s nerve conduction studies, like those of Dr.

5

To the extent Herron contends the ALJ should have considered the limiting effects of
ankylosing spondylosis, the ALJ rejected Dr. Twilley’s tentative diagnosis. In any event, there
was no evidence in the record that Herron was experiencing any limiting effects from ankylosing
spondylosis that were distinct from the symptoms of her degenerative disc and joint disease. See
Moore, 405 F.3d at 1213 n.6 (“[T]he mere existence of . . . 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.”). Dr. Twilley’s conclusory testimony that ankylosing spondylosis “is 100%
disabling” was not entitled to any significant weight as it was not a “medical opinion” and
addressed an issue reserved to the Commissioner. See 20 C.F.R. § 416.927(d)(1).
12

Case: 15-13826

Date Filed: 05/06/2016

Page: 13 of 14

Uddin, were normal. The ALJ’s RFC assessment was not required to account for
every piece of evidence. See Dyer, 395 F.3d at 1211.
Herron points to Dr. Twilley’s testimony that Herron tested positive for
HLA-B27, a protein found in the blood of people with ankylosing spondylitis.
However, the Mayo Clinic, the source Herron cites for information about
ankylosing spondylitis, states that there is no specific lab test to identify ankylosing
spondylitis, the presence of HLA-B27 does not mean a person suffers from
ankylosing spondylitis, and “most people who have the [HLA-B27] gene don’t
have ankylosing spondylitis.” See Diseases and Conditions, Ankylosing
Spondylitis, http://www.mayoclinic.org/diseases-conditions/ankylosingspondylitis/basics/tests-diagnosis/con-20019766 (last visited March 18, 2016). In
other words, Herron’s positive HLA-B27 test did not establish that she suffered
from ankylosing spondylitis. Given that Dr. Twilley’s own treatment notes did not
include a diagnosis (or even a mention) of ankylosing spondylitis after Herron
tested positive for HLA-B27, we do not think the ALJ’s failure to explicitly
address this piece of evidence is reversible error. See Cowart, 662 F.2d at 735
(requiring the ALJ to explain the weight given to only “obviously probative
exhibits”).
In sum, substantial evidence supports the ALJ’s decisions to reject Dr.
Twilley’s ankylosing spondylitis diagnosis and partially discredit Herron’s
13

Case: 15-13826

Date Filed: 05/06/2016

Page: 14 of 14

testimony about the limiting effects of her pain. Substantial evidence also supports
the ALJ’s determination that despite her physical impairments, Herron retained the
RFC to perform light work with a sit/stand option. For all these reasons, we affirm
the ALJ’s denial of Herron’s application for SSI benefits.
AFFIRMED.

14