Willis v. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER directing that the decision of the Commissioner is AFFIRMED, as further set out. Signed by Honorable Judge Terry F. Moorer on 9/30/14. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
GRADY WILLIS, JR.,

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

CASE NO. 1:13-cv-408-TFM
[wo]

MEMORANDUM OPINION AND ORDER
On January 13, 2010, Grady Willis, Jr. (APlaintiff@ or AWillis@) applied for
supplemental security income under Title XVI and disability insurance benefits (ADIB@)
under Title II of the Social Security Act (Athe Act@). Plaintiff alleged a disability onset date
of July 15, 2009. (Tr. 25, 148, 59). Willis timely filed for and received a hearing before an
administrative law judge (AALJ@) who rendered an unfavorable decision on November 18,
2011. (Tr. 18-32). The Appeals Council denied Plaintiff’s request for review. (Tr. 11-14).
As a result, the ALJ=s decision became the final decision of the Commissioner of Social
Security (ACommissioner@). Id. 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.

Page 1 of 19

I. NATURE OF THE CASE
Willis seeks judicial review of the Commissioner=s decision denying his application
for disability insurance benefits and supplemental security income. United States District
Courts may conduct limited review of such decisions to determine whether they comply with
applicable law and are supported by substantial evidence. 42 U.S.C. ' 405. The Court may
affirm, reverse and remand with instructions, or reverse and render a judgment. Id.
II. 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).
AThe 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 C
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)).
Page 2 of 19

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. 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 Amay not decide facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner],@ but rather it Amust 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).

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III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act=s general disability insurance benefits program (ADIB@)
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 (ASSI@) is a separate and
distinct program. SSI is a general public assistance measure providing an additional 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 Adisability@ 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.
1

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
2
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
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42 U.S.C. '' 423(d)(1)(A), 1382c(a)(3)(A). A Aphysical 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).
(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 Anot 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 for
disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the

3

This subpart is also referred to as Athe Listing of Impairments@ or Athe Listings.@
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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 claimant can perform. Id. at 1239. To
do this, the ALJ can either use the Medical Vocational Guidelines 4 (Agrids@) 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
ADisabled@ or ANot Disabled.@ Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Plaintiff was born in 1962 and was 46 on his alleged onset date. (Tr. 37). The ALJ
concluded that Plaintiff has a limited education and is able to communicate in English. (Tr.
37). Plaintiff did not submit any school records and his testimony about his educational
background is inconsistent, but it appears that he quit school sometime between 6th and 9th
4

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).
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grade and may have attended special education classes. (Tr. 50-52, 173-74, 323, 379, 444,
448). Further, the record indicates that Plaintiff has trouble reading and writing and did not
obtain a driver’s license because he could not read the test. Id. Plaintiff has past work
experience as both a construction and farm laborer. (Tr. 37, 174, 199). Plaintiff alleged that
he became disabled on July 15, 2009, due to arthritis; gout in the shoulders, hands, and right
knee; lower back pain; depressive anxiety; and obesity. (Tr. 172). He later alleged that he
was illiterate. (Tr. 50-52, 323, 444, 448).
At the hearing before the ALJ, Plaintiff testified that he could not read or write. (Tr.
51). Plaintiff also reported to the Social Security Agency via a Disability Report, Form SSA3368 (Tr. 171-181) that he was unable to read and understand English, and could write no
more than his name in English. (Tr. 171). During this interview, Mr. Willis also stated “I
have trouble reading and writing.” (Tr. 174). On February 3, 2010, Bridgett S. Willis, Mr.
Willis’ ex-wife completed a third party function report on behalf of Mr. Willis. (Tr. 182189). On this report, Ms. Willis indicated that Mr. Willis was unable to pay bills, count
change, handle a savings account, and use a checkbook/money order because he was unable
to read and write. (Tr. 185). Ms. Willis further indicated that Mr. Willis was unable to
follow written instructions due to his inability to read. (Tr. 187). Also, during two
differently agency-ordered consultative psychological evaluations, he told the consulting
psychologist that he was illiterate. (Tr. 323, 448). However, Dr. Ghostley stopped Plaintiff’s
intelligence testing early stating Plaintiff “deliberately sabotaged his responses to many test
items in order to appear cognitively impaired” and “just gave up easily” when asked

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questions. (Tr. 449). Furthermore, forms completed by numerous different emergency room
care providers on eight separate occasions during the time period from November 2009
through January 2011 reflect that Plaintiff could read and write. (Tr. 280, 285, 293, 300,
396, 401, 408, 414). Indeed, the ALJ noted in his opinion that Willis had “problems reading
and writing”; however, the ALJ did not find Willis’ illiteracy to be a severe impaiment. (Tr.
29).
At the hearing before the ALJ, Plaintiff was asked about his back problems. He
responded,
I could stand for so long, and then my whole body start from my left leg, it’ll
get numb. And to into my other side of my waist and come back down my right side
of my leg. And if I stand up for a long time, I’ll fall down. And then it just numbs it,
and then I have tos it down, either lay down, to get my – to get the circulation to come
back through my body so I can move.”
(Tr. 57). Plaintiff also testified that he had difficulty sitting for more than 30 minutes,
could not walk more than half a block, and could not lift a full grocery bag. (Tr. 61).
However, the record reflects that Plaintiff told others that he spent the majority of his day
sitting and watching television, that he attended church regularly, that he could walk a mile,
that he could lift 60 pounds, and that he performed fairly demanding work as a farmhand and
concrete construction worker during the period he alleged he was disabled. (Tr. 190, 324,
331 390, 442-43).
At the hearing the ALJ posited the following hypotheticals to the vocational expert.
First, he stated,
I’d like for you to assume a hypothetical individual of similar age, education,
and prior work history as this claimant. I’d like for you to assume that this individual
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could lift 20 pounds occasionally, 10 pounds frequently, and sit eight hours during
an eight hour workday. Stand and walk in combination at least six hours during an
eight-hour workday, would need to alter the body’s position at two-hour intervals for
the relief of pain. Would also need simple, routine, repetitive type tasks to
accommodate any academic deficits or side effects from medications, as well as,
occasionally contact, no more than occasional contact with the general public. Given
that hypothetical, would there be any positions available for such a hypothetical
individual?
(Tr. 68-69) (emphasis added). Next, the ALJ posited the same hypothetical except he
changed the sit option to state “Could sit at least six out of eight hours during an eight hour
workday.” (Tr. 69-70). Finally, the ALJ asked the VE to assume “if I were to find an
individual who would be unable to sustain concentration, persistence, or remain on pace for
two-hour periods of time due to pain and limitation of motion. Could that individual be able
to perform any work activities?” (Tr. 71).
The VE testified that the final hypothetical individual would be “incapable of either
sustaining or performing competitive work.” (Tr. 71). With respect to the first hypothetical
individual, the VE testified that person would be able to perform the jobs of bench assembler,
light custodial or housekeeping work, and a laundry folder. (Tr. 69). With respect to the
second hypothetical individual, the VE testified that person would be able to perform the jobs
of sedentary bench assembler, waxer, and lens inserter. (Tr. 70).
After a hearing where Plaintiff was represented by counsel and “[a]fter careful
consideration of the entire record”, the ALJ concluded that Plaintiff had severe impairments
including “degenerative disc disease of the lumbar spine; history of left ankle fracture status
post open reduction internal fixation and infection; history of rheumatoid arthritis;
depression; substance abuse; and borderline intellectual functioning.” (Tr.27). The ALJ
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further concluded that Plaintiff “has the residual functional capacity to perform light work . .
. [h]e is capable of standing and/or walking (with normal breaks) for a total of about six
hours in an eight-hour workday.” (Tr.30). Thus, the ALJ found Plaintiff not disabled within
the meaning of the Act. (Tr. 39).
V. MEDICAL HISTORY
Plaintiff suffered acute injuries throughout the relevant time period. In April, 2009,
Plaintiff reported to Southeast Alabama Medical Center Emergency Center complaining
that he fell while at county jail while working in the kitchen and hurt his lower back. (Tr.
296-298). An image taken of Plaintiff’s lumbar spine at that time showed “degenerative
changes lumbar spine, most pronounced L3-L5. Mild scoliosis. No facture or subluxation.”
(Tr. 303). In November 2009, Plaintiff sustained a concussion while he was operating his
tractor. (Tr. 289-91). Later in November 2009, Plaintiff twisted and broke his ankle “as a
result of orthopedic/sports related activity.” (Tr. 238, 283-284). This break was repaired
with surgery and the record demonstrates that both Plaintiff and his doctors reported that his
ankle fully healed within a few months of surgery and with no significant problems. (Tr.
371, 382). In January 2011, Plaintiff again fell while in jail and hurt his back. (Tr. 371-372,
380, 390). This injury was diagnosed as muscle strain. (Tr. 371). On January 13, 2011,
Willis underwent a lumbar spine composite, which showed advanced degenerative disc
disease at L3-L4 and L4-L5 with mild degenerative disc disease at L2-L3. (Tr. 380).
Later in February 2011, Plaintiff was seen by Dr. G. Barry Taylor, for “lower back
pain for the last three years.” Plaintiff reported some numbness in left leg, but denied any

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“associated tingling or burning” and stated that he “works in concrete and has no problem
when back is flexed.” (Tr. 390). Dr. Taylor assessed “chronic back pain correlating with
advanced degenerative disc disease at L3-4 and L4-5 with no evidence of compression,
deformity or subluxation.” He ordered Flexeril as needed at bed time and APAP two tablets
three times a day for pain control and “to subtract one tablet for any additional Lortab taken.
(Tr. 391). In April 2011, Plaintiff again reported to the Southeast Alabama Emergency
Facility complaining of back pain. He reported that his back pain was a “9 out of 10” and
made worse by “standing” but relieved by “sitting” (Tr. 394). In May 2011, Dr. Timothy
Haley, an orthopedic surgeon, examined Plaintiff for complaints of back pain and found that
Plaintiff had “negative straight leg raise bilaterally” and “good strength throughout bilateral
lower extremities with no focal deficits.” He diagnosed “lumbar strain with possible
radiculopathy” an ordered “two series of epidurals . . .therapy and medicines.” He stated “I
will check him back in three months unless he needs me in the meantime.” (Tr. 371).

VI. ISSUES
Willis raises three issues for judicial review:
(1) Whether the ALJ’s RFC assessment conflicts with the hypothetical questions
posed to the vocational expert.
(2) Whether the ALJ erred in finding Mr. Willis illiteracy not to be a severe
impairment.
(3) Whether the ALJ failed to properly apply the three-part pain standard.

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.
VII. ANALYSIS
First, Plaintiff argues that the ALJ’s RFC assessment conflicts with the hypothetical
questions posed to the vocational expert. Specifically, he argues that the ALJ’s RFC
assessment was in error it because it was determined by the ALJ on the basis of Dr. Robert
Heilpern’s physical RFC assessment, which found that Plaintiff had the ability to “stand
and/or walk (with normal breaks) for a total of 6 hours in an 8-hour workday), but failed to
include a “sit” option. (Tr. 327). Thus, Plaintiff argues the ALJ failed adequately assess
Plaintiff’s ability to complete an eight-hour workday because his RFC assessment is not
supported by substantial evidence. The court disagrees.
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 1436, 1440 (11th Cir. 1997). At an ALJ
hearing, “the [ALJ] is responsible for assessing [the claimant’s] residual functional capacity.”
20 C.F.R. § 404.1546(c) (2010). The claimant is “responsible for providing the evidence
[the ALJ] will use to make a finding about [the claimant’s] residual functional capacity.” 20
C.F.R. § 404.1545(a)(3) (2010). The ALJ is “responsible for developing [the claimant’s]
complete medical history, including arranging for a consultative examination(s) if necessary,
and making every reasonable effort to help [the claimant] get medical reports from [their]
own medical sources. Id.; Holladay v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988) (The

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ALJ is not required to order a consultative examination unless the record establishes it is
necessary to render a fair decision). The ALJ’s finding must be supported by substantial
evidence. “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)(citations omitted).
The question before the Court is whether the ALJ’s residual functional capacity
finding is supported by the substantial evidence in the record as a whole. Winschel v. Comm.
of Soc. Sec., 631 F. 3d 1176, 1178 (11th Cir. 2011). A residual functional capacity is not
based on any one piece of evidence, but rather on all of the evidence of record – including a
claimant’s hearing testimony, her other statements, the examination findings, the medical
source opinions, and anything else that tends to bear on the claimant’s allegations of
disabling symptoms. 20 C.F.R. § 404.1545(a); Moore v. Barnhart, 405 F. 3d 1208, 1212-13
(11th Cir. 2005).
The Court recognizes that the record includes numerous complaints of lower back
pain made by Plaintiff to doctors and others. (Tr. 227, 278, 298, 365, 382, 390, 394, 399,
406 and 412). However, no examining doctor found that any of Plaintiff’s injuries resulted
in any long-term or permanent restrictions. Indeed, during the physical exam closest in time
to the ALJ’s finding, May 2011, Dr. Haley, noted no pain associated with straight leg raises,
good strength in Plaintiff’s legs with no focal deficits. (Tr. 371). Moreover, although
Plaintiff has reported and been treated for back pain, his own testimony about the effects of
his pain are inconsistent throughout the record. At one point, Plaintiff reported he had

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difficulty sitting for more than 30 minutes, could not walk more than half a block, and could
not lift a full grocery bag. (Tr. 61). On the other hand, the record reflects that Plaintiff
reported he spent the majority of his day sitting and watching television, that he attended
church regularly, that he could walk a mile, that he could lift 60 pounds, and that he
performed fairly demanding work as a farmhand and concrete construction worker during the
period he alleged he was disabled. (Tr. 190, 324, 331 390, 442-43). Plaintiff also reported
to Dr. Willis who examined him on February 28, 2011 that he “works in concrete and has no
problem when back is flexed.” (Tr. 390). Additionally, he reported to Southeast Alabama
Emergency Room personnel in April 2011, that although his back pain was a “severe” at that
time, it was “relieved by sitting”. (Tr. 394). Accordingly, the court concludes that the record
as a whole supports the ALJ’s RFC assessment which included no stated limitations on
Plaintiff’s ability to sit.
Second, Plaintiff argues that the ALJ erred in failing to find his illiteracy to be a
severe impairment. However, the record as whole does not support Plaintiff’s claim of
illiteracy. Indeed, forms completed by numerous different emergency room care providers on
eight separate occasions during the time period from November 2009 through January 2011
reflect that Plaintiff could read and write. (Tr. 280, 285, 293, 300, 396, 401, 408, 414).
Also, Dr. Ghostley stopped Plaintiff’s intelligence testing early stating Plaintiff “deliberately
sabotaged his responses to many test items in order to appear cognitively impaired” and “just
gave up easily” when asked questions. (Tr. 449).

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Furthermore, the court notes that although the ALJ did not find Willis’ illiteracy to be
a severe impairment, the ALJ discussed in his opinion that Willis had “problems reading and
writing”. (Tr. 29). Moreover, the ALJ found that Plaintiff had a severe impairment of
borderline intellectual functioning (Tr. 34-37) based upon both Randall Jordan and David
Ghostley’s, both, licensed clinical psychologist findings, and diagnoses. (Tr. 324, 449-50).
Indeed, these two psychologists and also Robert Estock, acknowledged Plaintiff’s subjective
allegation that he was illiterate, but concluded that Plaintiff could perform jobs involving
simple, routine tasks (Tr. 325, 350) or unskilled labor, generally (Tr. 450, 451-452).
Finally, although the ALJ did not find illiteracy to be a severe impairment at step two
of the sequential evaluation, it is undisputed that the ALJ specifically discussed the Plaintiff=s
illiteracy and borderline intellectual functioning in her decision. (Tr. 29, 34-37). See
Newsome ex rel. Bell v Barnhart, 444 F. Supp. 2d 1195, 1201 (M.D. Ala. 2006) (Failure of
ALJ to make determination as to severity of impairment was harmless error where ALJ
thoroughly discussed the evidence of the impairment). Moreover, under agency regulations
the ALJ considers all of Plaintiff=s impairments, both Asevere@ and Anonsevere@, in the
sequential evaluation process. See 20 C.F.R.' 416.923 (In determining whether your
physical or mental impairment or impairments are of a sufficient medical severity that such
impairment or impairments could be the basis of eligibility under the law, we will consider
the combined effect of all of your impairments without regard to whether any such
impairment, if considered separately, would be of sufficient severity.) Accordingly, the court
concludes that any error committed by the ALJ with respect to analyzing the severity of

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Plaintiff=s illiteracy is Aharmless@, see Newsome, id., at 1201, and that Asubstantial evidence@
supports the Commissioner=s decision. Miles, 84 F.3d at 1400.
Third, Plaintiff argues that the ALJ improperly applied the pain standard. Specifically
Willis argues that the ALJ erred in making a determination of his credibility because she
failed to properly apply the three-part pain standard. 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 Apain 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. 1995); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
In concluding at Step 5 that Plaintiff has the functional capacity to perform light work,
the ALJ restated the “pain standard”. Indeed, she stated
[I]t must first be determined whether there is an underlying medically determinable
physical or mental impairment(s) – i.e., an impairment(s) that can be shown by
medically acceptable clinical and laboratory diagnostic techniques – that could
reasonably be expected to produce the claimant’s pain or other symptoms. [Next]”the
undersigned must evaluate the intensity, persistence, and limiting effects of the
claimant’s symptoms to determine the extent to which they limit the claimant’s
functioning.

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(Tr. 31). After evaluating all the evidence the ALJ concluded
“that the claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however the claimants statements
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional capacity
assessment.
(Tr. 34-35).
The ALJ was particularly persuaded by Dr. Ghostley’s conclusion that claimant was
malingering. (Tr. 34). Indeed, Dr. Ghostley found that Plaintiff “deliberately sabotaged his
responses to many test items in order to appear cognitively impaired” and “just gave up
easily” when asked questions. (Tr. 449) And during Plaintiff’s depression test, Dr. Ghostly
found that Plaintiff “endorsed so many areas of psychopathology that his entire profile was
elevated and intentionally exaggerated.” (Tr. 449). Defendant argues that this malingering is
substantial evidence which calls into question all of Plaintiff’s representations to the agency.
The court agrees.

See Sellers v. Barnhart, 246 F. Supp. 2d 1201, 1213

(M.D.Ala.2002)(Plaintiff’s malingering constituted substantial evidence upon which the ALJ
could base his decision to discredit Plaintiff’s subjective complaints of pain.) Indeed,
Plaintiff’s case is similar to the Sellers case. In Sellers, the claimant alleged that he had
extreme cognitive impairments, back pain, and gout – just as Plaintiff alleged here. Compare
(Tr. 50-52, 172) with Sellers 246 F. Supp. 2d at 1203. And in both Sellers and this case, the
evidence strongly indicated malingering, and also indicated that the claimant was likely
within the borderline intellectual functioning range. Compare (Tr. 449-450) with Sellers,
246 F. Supp. 2d at 1206(examining psychologist indicating that claimant’s malingering was

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“quite obvious”). Thus, the Court is persuaded that evidence of Willis’ malingering
discredits his complaints of pain.
Moreover, as previously discussed, Plaintiff’s own statements about the effects of his
pain also contradict themselves. At one point, Plaintiff reported he had difficulty sitting for
more than 30 minutes, could not walk more than half a block, and could not lift a full grocery
bag. (Tr. 61). On the other hand, the record reflects that Plaintiff reported he spent the
majority of his day sitting and watching television, that he attended church regularly, that he
could walk a mile, that he could lift 60 pounds, and that he performed fairly demanding work
as a farmhand and concrete construction worker during the period he alleged he was
disabled. (Tr. 190, 324, 331, 390, 442-43).

Indeed, Plaintiff reported to Dr. Willis who

examined him on February 28, 2011 that he “works in concrete and has no problem when
back is flexed.” (Tr. 390). Additionally, he reported to Southeast Alabama Emergency
Room personnel in April 2011, that although his back pain was a “severe” at that time, it was
“relieved by sitting”. (Tr. 394). Accordingly, the Court concludes that the ALJ did not err in
applying the pain standard in this case. Thus, the Court further concludes that the ALJ’s
conclusion that Plaintiff is not disabled is supported by the record as a whole.
IX. 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.

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A separate judgment is entered herewith.
DONE this 30th day of September, 2014.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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