Pierson v. Astrue (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 2/15/2012. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
PRINCESS ANN PIERSON,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
) CIVIL ACTION NO. 1:11cv424-CSC
The plaintiff, Princess Ann Pierson (“Pierson”), applied for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging
that she was unable to work because of a disability. Her application was denied at the initial
The plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ also denied the claim. The
Appeals Council rejected a subsequent request for review. The ALJ’s decision consequently
became the final decision of the Commissioner of Social Security (Commissioner).1 See
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for
review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant to 28 U.S.C. § 636(c)(1) and
M.D. Ala. LR 73.1, the parties have consented to the United States Magistrate Judge conducting
all proceedings in this case and ordering the entry of final judgment. Based on the court’s
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.
review of the record in this case and the briefs of the parties, the court concludes that the
decision of the Commissioner should affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable 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 12
months . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of review of the Commissioner’s decision is a limited one. This court must
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42
U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Substantial evidence
is “more than a scintilla,” but less than a preponderance: it “is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Crawford v. Comm'r of
Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (quotation marks omitted). The court “may
not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the
[Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration
in original) (quotation marks omitted).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Pierson was 55 years old at the time of the administrative hearing.
(R. 27). She has completed the eighth grade. (Id). The ALJ concluded that Pierson has severe
impairments of “arthritis (multiple joints) by history, hypertension, diabetes mellitus, obesity,
and chronic back pain, chest pain by history and gastroesophageal reflux disease.” (R. 16). The
ALJ concluded that because Pierson could perform a full range of light work, (Id.), she could
return to her past relevant work as retail store manager, and, thus, she was not disabled. (R.
B. Plaintiff’s Claims. Pierson presents two issues for the Court’s review. As stated by
Pierson, they are as follows:
The Commissioner’s decision should be reversed, because the ALJ failed
to afford proper weight to the medical opinion of Dr. Arnold, Ms.
Pierson’s treating physician.
The Commissioner’s decision should be reversed, because the ALJ failed
to issue a proper credibility finding.
(Doc. # 13, Pl’s Br. at 4).
A disability claimant bears the initial burden of demonstrating an inability to return to
her past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether the
claimant has satisfied this burden, the Commissioner is guided by four factors: (1) objective
medical facts or clinical findings, (2) diagnoses of examining physicians, (3) subjective
evidence of pain and disability, e.g., the testimony of the claimant and her family or friends, and
(4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720 F.2d 1251 (11th
Cir. 1983). The ALJ must conscientiously probe into, inquire of and explore all relevant facts
to elicit both favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731,
735-36 (11th Cir. 1981). The ALJ must also state, with sufficient specificity, the reasons for his
decision referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphases added).
A. Treating Physician’s Opinion. Pierson argues that the ALJ improperly failed give
her treating physician’s opinion substantial weight about the severity of her functional
limitations. (Pl’s Br. at 6, doc. # 13). On July 27, 2010, Dr. Arnold, a physician at Southern
Family Practice, completed a clinical assessment of pain form describing Pierson’s level of pain.
(R. 274). According to Dr. Arnold, “[p]ain is present to such an extent as to be distracting to
adequate performance of daily work activities.” (Id.) Physical activity will “[g]reatly increase
pain and to such a degree as to cause distract from tasks or total abandonment of task.” (Id.)
Dr. Arnold also completed a physical capacities evaluation in which he opined that Pierson
would be absent from work more than four days a month. (R. 273).
Of course, the law in this circuit is well-settled that the ALJ must accord “substantial
weight” or “considerable weight” to the opinion, diagnosis, and medical evidence of the
claimant’s treating physician 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
Commissioner, as reflected in his regulations, also demonstrates a similar preference for the
opinion of treating physicians.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such
as consultive examinations or brief hospitalizations.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)).
The ALJ’s failure to give considerable weight to the treating physician’s opinion is reversible
error. Broughton, 776 F.2d at 961-2.
However, there are limited circumstances when the ALJ can disregard the treating
physician’s opinion. The requisite “good cause” for discounting a treating physician’s opinion
may exist where the opinion is not supported by the evidence, or where the evidence supports
a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987). Good cause may
also exist where a doctor’s opinions are merely conclusory, inconsistent with the doctor’s
medical records, or unsupported by objective medical evidence. See Jones v. Dep’t. of Health
& Human Servs., 941 F.2d 1529, 1532-33 (11th Cir. 1991); Edwards v. Sullivan, 937 F.2d 580,
584-85 (11th Cir. 1991); Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987). The weight
afforded to a physician’s conclusory statements depends upon the extent to which they are
supported by clinical or laboratory findings and are consistent with other evidence of the
claimant’s impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986). The ALJ
“may reject the opinion of any physician when the evidence supports a contrary conclusion.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). The ALJ must articulate the
weight given to a treating physician’s opinion and must articulate any reasons for discounting
the opinion. Schnorr, 816 F.2d at 581.
After reviewing all the medical records, the ALJ gave the opinion of Dr. Arnold “less
weight” because “the medical records do not support such restrictive limitations and his
opinions are not consistent with the medical record as a whole.” (R. 19) Pierson argues that
Dr. Arnold’s opinion should be accorded substantial weight because she sought medical
treatment from his office, Southern Family Practices. (Pl’s Br. at 7, doc. # 13). The court
disagrees. The court has scoured the medical records and cannot find a single record that
indicates that Dr. Arnold ever saw or examined Pierson. The medical records from Southern
Family Practice all demonstrate that Pierson was seen by Cecelia Robinson, a certified nurse
practitioner.4 (R. 258-267). The Social Security regulations defines nurse practitioners as
“other sources,” but they are not considered “acceptable medical sources.” 20 C.F.R. §
404.1513(a). See also Cain v. Astrue, 2010 WL 750333 (M.D. Fla., 2010) (No. 809CIV34T-17MAP); Morris v. Astrue, 2010 WL 3951961 (N.D. Fla., 2010) (No. 4:09cv442-SPM/WLS);
Owens v. Barnhart, 2006 WL 4791709 (M.D. Fla., 2006) (No. 805CV1399-T-EAJ). The ALJ
was required to consider Robinson’s treatment notes, but her opinion is not entitled to
“substantial weight” as an “acceptable medical source.” Lacroix v. Barnhart, 465 F.3d 881, 886
(8th Cir. 2006). Furthermore, because there is no evidence that Dr. Arnold was Pierson’s
treating physician, his opinion is also not entitled to “substantial weight.” Based upon its review
of the ALJ’s decision and the objective medical evidence of record, the court concludes that the
ALJ did not err in not according Arnold’s opinion controlling weight.
B. Credibility Finding. As explained below, the ALJ did not fully credit Pierson’s
testimony. “Subjective pain testimony supported by objective medical evidence of a condition
There is no evidence in the record to suggest that Robinson “work[ed] closely with, and under the
supervision of,” Dr. Arnold so that her opinion could be considered as “an acceptable medical source.” See
Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1234 (9th Cir., 2011) quoting Gomez v. Chater, 74 F.3d 967,
971 (9th Cir. 1996).
that can reasonably be expected to produce the symptoms of which the plaintiff complains is
itself sufficient to sustain a finding of disability.” Hale v. Bowen, 831 F.2d 1007 (11th Cir.
1987). The Eleventh Circuit has established a three-part test that applies when a claimant
attempts to establish disability through her own testimony of pain or other subjective symptoms.
Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986); see also Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991). This standard requires evidence of an underlying medical condition
and either (1) objective medical evidence that confirms the severity of the alleged pain arising
from that condition or (2) an objectively determined medical condition of such severity that it
can reasonably be expected to give rise to the alleged pain. Landry, 782 F. 2d at 1553. In this
circuit, the law is clear. The Commissioner must consider a claimant’s subjective testimony of
pain if he finds evidence of an underlying medical condition and the objectively determined
medical condition is of a severity that can reasonably be expected to give rise to the alleged
pain. Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir. 1986); Landry, 782 F.2d at 1553. Thus,
if the Commissioner fails to articulate reasons for refusing to credit a claimant's subjective pain
testimony, the Commissioner has accepted the testimony as true as a matter of law. This
standard requires that the articulated reasons must be supported by substantial reasons. If there
is no such support then the testimony must be accepted as true. Hale, 831 F.2d at 1012.
After reciting the law, the ALJ acknowledged that Pierson has impairments that would
reasonably be expected to the symptoms about which she complains but the ALJ then concluded
that her testimony was not credible. (R. 17).
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent that they are inconsistent with the above residual functional capacity
The ALJ then summarized the medical record, and concluded that
[w]hile the claimant does have some bilateral leg pain, her swelling has only been
minimal. Furthermore, medical records do not support that her leg pain
significantly limits her mobility. X-rays of her back as shown in Dr. Banner’s
report, Exhibit 4F, do not reveal significant findings. Although her diabetes
mellitus has been uncontrolled in the past, the latest records and reports from the
claimant indicated that her blood sugar readings were under control.
Furthermore, there is no evidence of end organ damage, hair loss, or non-healing
lesions or loss of reflexes in association with diabetic neuropathy. Additionally,
the medical record as a whole, indicate that at times, the claimant has noncompliant with her medications and some treatment.
A review of the ALJ’s decision demonstrates that the ALJ properly considered and
discredited Pierson’s testimony, and the medical records support the ALJ’s conclusion that
while Pierson’s impairments could reasonably be expected to produce pain, she was not entirely
credible in her description of her symptoms or her pain. When she applied for disability,
Pierson alleged an onset date of October 14, 2008. (R. 94, 107). She alleged disability due to
heart problems, diabetes, high blood pressure, arthritis and severe back problems. (R. 107).
Prior to applying for disability, Pierson sought medical attention sporadically. On June
7, 2007, she reported chest pain and severe gas. (R. 171-79). A chest x-ray was normal. (R.
179). On August 28, 2007, she was seen for hypertension and diabetes. (R. 187-88). On April
24, 2008, Pierson’s blood pressure was elevated, and she had been off all her medications for
two weeks. (R. 218). She was instructed to take her medication as prescribed. (Id.) On
October 15, 2008, Pierson complained of chest pain. (R. 189-207). A chest x-ray was negative,
and she was diagnosed with angina. (R. 207).
Pierson saw Dr. Banner for a physical consultative examination on January 5, 2009. Dr.
Banner noted that Pierson had “no pain or difficulty getting on or off [the] table.” She was
“able to walk normal steps, height and length without any deviation from straight line.” She
was able to perform a tandem heel to toe walk satisfactorily and there was no evidence of ataxia.
(R. 213). An x-ray revealed “minimal spondylolisthesis of L4 on L5, some narrowing of L5-S1
disc space, [and] early proliferative changes.” (R. 215).
On September 15, 2009, Pierson was seen by Nurse Practitioner Robinson at Southern
Family Clinic. (R. 265-67). Pierson complained of pain in her left knee and leg, fatigue and
depression. (Id.) She also reported that she had stopped taking Nexium. (Id.) Nurse Robinson
noted that Pierson suffered from GERD, diabetes mellitus type II, hypertension, and pain. She
recommended prescription medication, exercise and weight loss. (Id.)
On October 7, 2009, Pierson complained of heartburn and pain and cramping in her legs.
She reported to Nurse Robinson that she was not been taking her blood pressure medication.
(R. 263). On February 11, 2010, Pierson complained of muscle spasms and cramping and
swelling in her left knee. (R. 262). Nurse Robinson noted bilateral leg pain, diabetes and
obesity, and recommended Robaxin, exercise and weight loss. (Id.) On May 3, 2010, Pierson
again complained of leg pains but stated that the pain was “not as bad.” (R. 260). Nurse
Robinson also noted that Pierson had failed to follow up on a scheduled appointment. (Id.).
On May 21, 2010, Pierson complained to Nurse Robinson of a toothache, insomnia,
depression and severe pain in her legs. (R. 259) Nurse Robinson noted that Pierson was
applying for disability, and that Pierson’s weight was a “big problem.” (Id.) It was “critical”
that Pierson lose weight. (Id.) On June 10, 2010, Pierson saw Nurse Robinson. Although she
complained that her legs were sore and it was hard to walk, treatment notes indicate that no
edema or swelling was present. Nurse Robinson noted peripheral neuropathy but recommended
continued prescriptions and exercise and weight loss. (Id.).
Where an ALJ decides not to credit a claimant’s testimony, the ALJ must articulate
specific and adequate reasons for doing so, or the record must be obvious as to the credibility
finding. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Jones, 941 F.2d at 1532
(articulated reasons must be based on substantial evidence). If proof of disability is based on
subjective evidence and a credibility determination is, therefore, critical to the decision, “‘the
ALJ must either explicitly discredit such testimony or the implication must be so clear as to
amount to a specific credibility finding.’” Foote, 67 F.3d at 1562, quoting Tieniber, 720 F.2d
at 1255 (although no explicit finding as to credibility is required, the implication must be
obvious to the reviewing court).
Relying on the treatment records, objective evidence, and Pierson’s own testimony, the
ALJ concluded that her allegations regarding the extent of her pain were not credible to the
extent alleged and discounted that testimony. The objective medical evidence in the record
supports that conclusion, and does not support Pierson’s claims of intractable, disabling pain.
Moreover, the frequency with which Pierson sought medical treatment and the timing of her
complaints militates against her credibility. See Dyer, 395 F.3d at 1211-12. Consequently, the
ALJ’s reasons and conclusions that Pierson’s testimony is inconsistent with the medical records
are sufficient to support his credibility conclusion which the court will not disturb.
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that plaintiff is not disabled. Thus, the court
concludes that the decision of the Commissioner is supported by substantial evidence and is due
to be affirmed.
A separate order will be entered.
Done this 15th day of February 2012.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?