Davlin v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER directing that the decision of the Commissioner is AFFIRMED. Signed by Honorable Judge Terry F. Moorer on 5/22/13. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAROLYN DAVLIN

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Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

CASE NO. 1:12-cv-585 -TFM
[wo]

MEMORANDUM OPINION AND ORDER
In December, 2009, Carolyn Davlin (“Plaintiff” or “Davlin”) filed applications
for disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
alleging disability beginning on December 11, 2009, due to joint problems, chronic
obstructive pulmonary disease (“COPD”), and depression.

(Tr. 123-133, 150). Her

claims were denied by an administrative law judge (“ALJ”) (Tr. 16-30), and the Appeals
Council denied her request for review, making the ALJ’s decision the final agency
decision for purposes of judicial review. (Tr. 1-5). Pursuant to 28 U.S.C. § 636 (c), the
parties have consented to entry of final judgment by the United States Magistrate Judge.
Judicial review proceeds pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After
careful scrutiny of the record and briefs, for reasons herein explained, the Court
AFFIRMS the Commissioner’s decision.

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I. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983).
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
842 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
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1986)). The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but
rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth,
703 F.2d at 1239).
The Court will also reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
II. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.1 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html

1

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resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line.2 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language
for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(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.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is one
resulting from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits.

See 20 C.F.R. §§

404.1520, 416.920 (2010).
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html

2

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(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(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 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).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the

3

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (“grids”) or hear testimony from a vocational expert (VE). Id. at
1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
III. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Plaintiff was 51 years old on her alleged onset date of disability and was 52 years
old on the date of the ALJ’s decision. (Tr. 29, 123, 151-52). Davlin attained a high
school equivalency degree and worked in the relevant past as a security guard, traffic
dispatcher or checker, apartment manager and truck driver. (Tr. 151-153). After the
alleged onset of disability in December 2009, Davlin worked 20 hours a week as a
newspaper carrier. (Tr. 39-41).
At the hearing before the ALJ, Davlin testified that she has “constant” pain in her
back, knees and shoulders. (Tr. 41). She testified that her pain is made worse by cold
damp weather and that her pain affects her ability to sleep. (Tr. 41-42). She can stand for
no more than a few minutes “maybe 15 at the most”. (Tr. 43-44). She is not able to sit
through an hour long television show. (Tr. 48-49). She testified that she is not able to

See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI
cases).

4

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afford regular medical care. Her treatment consists mainly of taking Advil in very large
amounts (about 100 every three to four days). She testified that even when taking this
large amount of medication, her pain is still sometimes unbearable. (Tr. 41).
At the hearing the ALJ asked Eric Anderson, a vocational expert, (“VE”) to
assume a hypothetical individual of Plaintiff’s age, education, and work experience who
could perform sedentary work that did not require using the lower extremities for pushing
or pulling and that was low-stress requiring only occasional decision making, judgment,
and changes in the work setting and did not involve interaction with the general public.
(Tr. 51-52). The VE testified that such an individual could not perform any of Plaintiff’s
past relevant work, but could perform the sedentary jobs of lens inserter, surveillance
system monitor, and assembler. (Tr. 52).
The ALJ found that Plaintiff had not engaged in substantial gainful activity since
August 18, 2008, her alleged onset date. (Tr. 23). At step two, the ALJ determined that
Plaintiff’s major depressive disorder, dysthymic disorder, alcohol dependence in
sustained full remission, degenerative disc disease, sciatica, degenerative joint disease of
the knees and ankles, and osteoarthritis were “severe” impairments. (Tr. 23). At step
three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled an impairment listed at 20 C.F.R. pt. 404
subpt. P, app. 1. (Tr. 23-26). The ALJ found Plaintiff had the residual functional
capacity for sedentary work with no use of her lower extremities for pushing and pulling,
in a low stress environment, with only occasional decision making, judgment, and
changes with the work setting and only occasional interaction with the public. (Tr. 26).
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The ALJ concluded based on vocational expert testimony, that although Plaintiff could
not perform any of her past relevant work, she was capable of performing jobs that
existed in significant numbers in the national economy and was therefore not disabled.
(Tr. 30).
IV. MEDICAL HISTORY
Davlin alleges that she became disabled in December 2009. Prior to that date in
January 2001, Dr. Samuel Combs diagnosed Plaintiff with moderate degenerative arthritis
in both knees, and performed surgery on her left knee. (Tr. 201-02, 207). In check-ups
prior to the surgery, Dr. Combs noted “eventually she will more than likely need knee
replacements.” (Tr. 208). About one month after surgery, Plaintiff reported “some pain”
in her left knee but said that she was “at least 50% better.” Dr. Combs released her to
work with some (unspecified) limitations on lifting. (Tr. 206). In April 2001, Plaintiff
reported that she still had some left knee symptoms but that she had “obtained appreciable
relief” from the surgery. She declined right knee surgery. Dr. Combs observed that she
had full range of motion in the knee, with good stability and a return to normal strength.
He released Plaintiff from treatment. (Tr. 206). Also, during 2001, Dr. Combs noted that
Plaintiff had smoked a pack and a half of cigarettes per day for 27 years, that she
continued to smoke, and that she used an albuterol inhaler as needed. (Tr. 201).
The record next reflects Plaintiff received medical treatment in August 2009, when
she went to the emergency room and reported a fever, cough, chills and generalized
weakness. Chest x-rays showed no acute disease; care providers diagnosed a virus. (Tr.
211-13). Care providers also observed that Plaintiff had a “[n]ormal joint range of
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motion” and “[n]o motor or sensory deficits.” (Tr. 212). Thereafter in early December
2009, Plaintiff went to the emergency room and reported respiratory problems. Care
providers diagnosed COPD, asthma, and pneumonia and noted “chronic” diagnoses of
depression, hypertension, COPD, and lung disease. (Tr. 244-45, see also Tr. 248).
In mid-December 2009, after Plaintiff alleges that she became disabled, she went
to the Southeast Alabama Medical Center (“SAMC”) emergency room for treatment of
respiratory symptoms.

She continued to smoke a pack of cigarettes per day.

An

examination showed that Davlin had normal range of motion in her arms and legs, and
normal sensation and motor strength. Care providers diagnosed pneumonia, prescribed
an antibiotic, and discharged her home that same day, with a release to return to work the
following week. (Tr. 229-33).
Later that month, Plaintiff returned to a SAMC clinic, which provided free medical
care, for follow-up regarding pneumonia and to discuss her medications and diet. A care
provider noted “chronic diagnoses” of depression, hypertension, COPD, lung disease,
stroke, hyperlipidemia, and hypothyroidism, but did not record reports of back, shoulder,
or knee symptoms (Tr. 242-43, 246-47; Pl. Br. 17). Care providers from the clinic
provided Plaintiff with medication samples and arranged for her to receive free
medication. (Tr. 247).
In January 2010, Davlin, completed a questionnaire in relation to her claims for
Social Security disability benefits. She said that she lived with her sons and her cousin’s
ex-wife, and that her activities included taking care of her sons, taking care of a pet dog,
preparing at least simple meals, doing laundry, vacuuming, straightening up the house,

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driving, shopping for groceries and clothing, paying bills, and playing cards. Davlin
explained that she cannot perform household chores with the speed she once could
because her “hands cramp up and [her] legs start to hurt. Also she can no longer perform
yard work. (Tr. 167- 174). As a result of her pain, she is “constantly moving about”
during the day and is “up and down all night”. (Tr. 167-68). Plaintiff’s house mate Kerry
Savage, completed a similar form confirming Davlin’s reports. (Tr. 175-82)..
In February 2010, Randall Jordan, Psy.D. evaluated Davlin psychologically in
relation to her Social Security claims. After examining Davlin, Dr. Jordan opined that
she did not have any limitations in her ability to carry out simple instructions, and that she
could do multi-step tasks without some degree of supervision. (Tr. 258-60). Dr. Jordan
diagnosed “Major Depressive Disorder, recurrent mild” and “chronic pain”. (Tr. 259).
Davlin’s prognosis was “guarded because of the chronic nature of [her] problems and
issues.” (Tr. 260). During the evaluation Davlin was cooperative, motivated and no
malingering was noted. Dr. Jordan concluded: “Physical issues seem to be the primary
limiting factor” in Ms. Davlin’s ability to function in competitive work. Id. State agency
psychiatrist Robert Estock, M.D., and a state agency reviewing physician, Robert
Heilpern, M.D., subsequently reviewed the record and opined that Plaintiff’s impairments
did not meet the statutory standard for disability. (Tr. 27-29, 58-59, 261).
In March 2010, Davlin returned two times to the free clinic for check-ups,
including a blood pressure check. Care providers observed that she appeared well and in
no distress. They diagnosed hypertension, hyperlipidemia, migraine headaches, and lung
disease. (Tr. 280-83).

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On February 16, 2011, Samuel R. Banner, M.D., performed an orthopedic
examination on Davlin for the State agency. (Tr. 285-96). Davlin reported constant
bilateral knee pain, and back pain. She explained that her back had been hurting for 10
years, but admitted that her back had not been medically evaluated. She explained that
sometimes her knees “give away” and she falls. (Tr. 286). At that time Plaintiff was five
feet tall and weighed 254 pounds. She worked part-time as a newspaper carrier.
On examination, Dr. Banner observed that Davlin had full 5/5 strength in her arms
and normal range of motion in her arms and fingers, with normal fine and gross
manipulation. (Tr. 287). Dr. Banner also observed that Plaintiff had a “broad-based
choppy gait,” had difficulty getting on and off the examination table, was unable to
perform the “tiptoe walk”. He further observed that straight leg raises were positive but
Plaintiff demonstrated normal range of motion in her back. Plaintiff had cracking sounds
in her knees and x-rays showed osteoarthritic changes, but Plaintiff demonstrated 4/5
strength in her legs and could heel/toe walk without an assistive device. (Tr. 288 ). Dr.
Banner opined that Plaintiff had extreme limitations in functioning that would preclude
all work activity. In particular, Dr. Banner opined that Plaintiff could not lift more than
10 pounds, sit or walk for more than one hour each in an eight-hour day, or use her
dominant right hand more than occasionally for reaching, handling, fingering or feeling.
(Tr. 290-95).

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V. ISSUES
Davlin raises two issues for judicial review:
(1) Whether the Commissioner’s decision should be reversed since the ALJ’s
conclusion concerning Davlin’s residual functional capacity was not reasonable because
he failed to properly credit the opinion of Dr. Banner, a state agency examining physician
and he failed to address the combined impact of Davlin’s obesity and her other severe
impairments? (Doc. 12-1 at 1)
(2) Whether the Commissioner’s decision should be reversed because the ALJ
improperly discounted Davlin’s statements concerning pain? (Doc. 12-1 at 1)
VI. DISCUSSION
A. The ALJ’s Residual Functional Capacity Assessment was Reasonable.
A residual functional capacity assessment is used to determine the claimants’
capacity to do as much as they are possibly able to do despite their limitations. See 20
C.F.R. § 404.1545(a)(1) (2010). An RFC assessment will be made based on all relevant
evidence in the case record.

Id.; Lewis v. Callahan, 125 F.3d at1440.

The

Commissioner’s decision is due to be affirmed “if it is supported by substantial evidence
and the correct legal standards were applied.” Kelley v. Apfel, 185 F. 3d 1211, 1213 (11th
Cir. 1999). “Substantial evidence is less than a preponderance, but rather such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005).
The ALJ concluded that the medical and other record evidence:

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warrants a significantly decreased residual functional capacity, from the full
range of skilled very heavy work to a reduced range of unskilled light work.
The claimant has not shown that her medical condition warrants additional
limitations in any identified basic work activity for the duration period. The
residual functional capacity is supported by, inter alia, the claimant’s daily
activities as described as described in his [sic] testimony and her total lack
of disabling objective medical testing, and her part-time work.
(Tr. 28). Davlin argues that this RFC assessment is not reasonable because the ALJ failed
to properly credit the opinion of Dr. Banner, a state agency examining physician and he
failed to address the combined impact of Davlin’s obesity and her other severe
impairments.
Dr. Samuel R. Banner, a consulting physician, performed a musculoskeletal
examination of Davlin on February 16, 2011.

(Tr. 285-96).

As a result of his

examination and x-rays performed at the same time, Dr. Banner completed a PCE form
where he opined that Davlin could only occasionally lift or carry up to 10 pounds; walk
for 15 minutes at a time or up to one hour total in a work day; stand 15 minutes at a time
or one hour total, sit for four hours at a time or 8 hours total; and use her right dominant
hand occasionally for reaching, handling, fingering and feeling. She also had several
postural and environmental limitations. (Tr. 290-94).
The ALJ, however, discounted Dr. Banner’s opinions in the PCE form finding
it is totally inconsistent with the narrative containing the findings of the
consultative examination, and is inconsistent with her ability to work parttime. For example, the narrative indicates that the claimant has not fine
manipulation limitations while the PCE form indicates that function can be
performed only occasionally.
(Tr. 26). The ALJ also discounted Dr. Banner’s opinion because it is based on Plaintiff’s
subjective statements and a one-time examination, which were inconsistent with other

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treatment records.5 Indeed, Davlin told Dr. Banner that she got no relief from her 2001
knee surgery, treatment records show that after the surgery, Davlin exhibited a full range
of motion in her knee, with good stability and a return to normal strength, and that she
admitted improved symptoms. (Tr. 26-27; compare Tr. 206 with Tr. 286). Moreover, the
treatment record shows that in 2009 and 2010 at times when Davlin sought treatment for
a virus, headaches and hypertension, examinations by care providers showed normal
range of motion in her joints, with no motor or sensory deficits. (Tr. 25; see Tr. 212,
231). The ALJ also discounted Dr. Banner’s findings because they were inconsistent
with evidence that at the time of Dr. Banner’s examination, Davlin worked part-time as a
paper carrier in spite of her impairments. (Tr. 286).
Additionally, Davlin argues that the ALJ failed to consider the combined impact of
her severe impairments, including obesity.

However, the ALJ explicitly found that

obesity was a severe impairment at step two of the sequential evaluation. (Tr. 21). The
ALJ continued with the sequential evaluation process and considered all of Davlin’s
symptoms in assessing the RFC. (Tr. 23, see also, Tr. 21 (noting the ALJ considered
Plaintiff’s combined impairments.))

Moreover, Davlin fails to demonstrate that her

obesity created functional limitations beyond those incorporated into the ALJ’s residual
functional capacity finding. Indeed, Davlin’s treatment providers, as well as Dr. Banner,
did not identify any obesity-related limitations in functioning. (Tr. 25-26; 286-289).
The law tasks the ALJ with weighing the conflicting medical evidence and making
an administrative finding regarding the Plaintiff’s RFC. See 20 C.F.R § 404.1527(b)
5

The record does not indicate that Dr. Banner ever reviewed Davlin’s other medical treatment records.

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(ALJ will consider medical source opinions with the rest of the relevant evidence.);
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (the ALJ will “assess and
make a finding about the [claimant’s] residual functional capacity based on all the
relevant medical and other evidence”). The court finds that the ALJ carefully considered
the entire record, including all the medical evidence, which he summarized in detail, (Tr.
25-28) in finding Davlin had the RFC to perform a reduced range of unskilled light work.
(Tr. 28). Accordingly, the court concludes that based upon a review of the record as a
whole, the ALJ’s RFC finding is supported by substantial evidence. Moore, 405 F.3d at
1211.
B.

The ALJ Did Not Improperly Discount Plaintiff’s Subjective
Complaints of Debilitating Pain.

Davlin argues that the ALJ improperly discounted Plaintiff’s complaints of
debilitating pain. The Social Security Regulations provide that a claimant’s subjective
complaints of pain, alone, cannot establish disability. Rather the Regulations describe
additional objective evidence that is necessary to permit a finding of disability. See 42
U.S.C.§ 423(d)(5)(A); 20 C.F.R. § 404.1529. Interpreting these regulations, the Eleventh
Circuit has articulated a “pain standard” that applies when a claimant attempts to establish
disability through her own testimony of pain or other subjective symptoms. This standard
requires (1) evidence of an underlying medical condition and either (2) objective medical
evidence confirming the severity of the alleged pain arising from that condition or (3) that
the objectively determined medical condition is of such a severity that it can reasonably
be expected to cause the alleged pain. Foote v. Chater, 67 F. 3d1553, 1560 (11th Cir.

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1995); Holt v. Sullivan, 921 F.2d 1221, 1223(11th Cir. 1991).
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.
Davlin testified at the hearing before the ALJ that she has “constant” pain in her
back, knees and shoulders. (Tr. 41). She testified that her pain is made worse by cold
damp weather and that her pain affects her ability to sleep. (Tr. 41-42). She can stand for
no more than a few minutes “maybe 15 at the most”. (Tr. 43-44). She is not able to sit
through an hour long television show. (Tr. 48-49). She testified that she is not able to
afford regular medical care. Her treatment consists mainly of taking Advil in very large
amounts (about 100 every three to four days). She testified that even when taking this
large amount of medication, her pain is still sometimes unbearable. (Tr. 41)
The ALJ considered Davlin’s testimony and discussed the medical evidence. (Tr.
24-28). The ALJ acknowledged that Davlin’s
“medically determinable impairments could reasonably be expected to
cause some symptoms; however, the claimant’s statements concerning the
intensity, persistence, and limiting effects of these symptoms are not

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credible to the extent they are inconsistent with the above residual
functional capacity assessment.”
(Tr. 28). The ALJ did not credit Davlin’s complaints of disabling pain for the following
specific reasons. First, Plaintiff did not report knee or back or shoulder problems when
she presented for blood pressure checks or for treatment of viruses or headaches. (Tr. 2526, 28; see, e.g., Tr. 211-13, 280-83). Second, medical records showed that Davlin’s
treating doctors found a normal range of motion in Plaintiff’s joints with no motor or
sensory deficits. (Tr. 25, 28; see Tr. 212, 231). Third, Davlin’s treatment providers
prescribed only conservative treatment and did not place any restrictions on her activities
– in fact, Plaintiff was released to return to work on December 21, 2009, after a visit to
the Emergency Department on December 14, 2009. Fourth, in spite of her alleged
disabling pain, Plaintiff worked part-time as a newspaper carrier and performed other
household activities, albeit at a slow rate and sometimes with assistance. (Tr. 28; see Tr.
39-41, 167-74).
Davlin argues that the ALJ erred in finding that she failed to seek treatment or to
report back, knee and shoulder pain and asserts that she could not afford medical care.
(Pl. Br. 17-18). However, Plaintiff admits that she had access to some free medical care
and free mediation. (Pl. Br. 4, 17; see e.g., Tr. 247 (medical records arranging for
Plaintiff to receive free medication)). Plaintiff further argues that her treatment at the free
clinics was primarily for acute respiratory ailments, and that under those circumstances
she would have no reason to mention her joint pain. (Pl. Br. 17-18). However, the record
shows that the free clinic provided blood pressure checks and documented reports of

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symptoms such as headaches and depression, as the ALJ correctly noted. (Tr. 25; see Tr.
242-43, 280-83).
The ALJ retains discretion not to credit the claimant’s testimony of pain and other
symptoms. See Holt, 921 F. 2d at 1223. When the ALJ decides not to fully credit the
claimant’s testimony, the ALJ must articulate the reasons for that decision. Id. In other
words, even where the medical record includes objective evidence of pain, and where the
ALJ acknowledges that the claimant experiences some pain, the ALJ may conclude that
the degree of pain is not disabling in light of all the evidence. See Macia v. Bowen, 829
F.2d 1009, 1011 (11th Cir. 1987). Indeed, it is not inconsistent for the ALJ to find a
claimant suffers pain, and yet is not so severely impaired as to meet the stringent test for
disability imposed by the Act. See Arnold v. Heckler, 732 F. 2d 881, 884 (11th Cir.
1984).
Ergo, it was reasonable for the ALJ to find Plaintiff’s subjective complaints of
disabling pain lacked credibility. (Tr. 28). Jones v. Bowen, 810 F.2d 1001, 1004 (11th
Cir. 1986)(affirming Commissioner’s credibility determination given absence of
treatment and pain medications for alleged symptoms). Accordingly, the court concludes
that because of the ALJ’s reasons, which were supported by record evidence, Davlin’s
argument that the ALJ improperly discounted her subjective complaints of pain must fail.
See Wilson v. Barnhart,, 284 F. 3d 1219, 1227-28 (11th Cir. 2002)(upholding ALJ’s
credibility evaluation which discounted plaintiff’s “subjective assertions of pain”).

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VII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion,
the Court concludes that the ALJ’s non-disability determination is supported by
substantial evidence and proper application of the law. It is, therefore, ORDERED that
the decision of the Commissioner is AFFIRMED. A separate judgment is entered
herewith.
DONE this 22nd day of May, 2013.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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