Oswald v. Astrue (CONSENT)

Filing 15

MEMORANDUM OPINION AND ORDER. Signed by Honorable Wallace Capel, Jr on 10/19/2009. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D O N A L D R. OSWALD, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:08cv898-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Donald R. Oswald applied for disability insurance benefits under Title II of th e Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq.1 His application was denied at th e initial administrative level. Plaintiff then requested and received a hearing before an A d m in i str a tiv e Law Judge (ALJ). Following the hearing, the ALJ also denied the claims. (T r. 14-22). The Appeals Council rejected a subsequent request for review. The ALJ's d e c isio n consequently became the final decision of the Commissioner of Social Security (C o m m issio n er).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is

Although Plaintiff states that he also filed an application for supplemental security income, Pl.'s Brief (Doc. #12) at 1, there is no indication in the record that Plaintiff submitted such an application. 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.
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n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), b o th parties have consented to the conduct of all proceedings and entry of a final judgment b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #9); D e f .'s Consent to Jurisdiction (Doc. #10). Based on the Court's review of the record and the b rief s of the parties, the Court AFFIRMS the decision of the Commissioner. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).3 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (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 im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (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? A n affirmative answer to any of the above questions leads either to the next 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. 2
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q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f 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 F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 5 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or
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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).
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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m iss io n e r ' s findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 4

III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-four years old at the time of the hearing before an ALJ. Tr. 28.

P la in t if f completed two years of college and served ten years in the U.S. Army. Tr. 28. P lain tiff 's past relevant work experience included work as a general ledger bookkeeper, lu m b e r stacker, security guard, stock clerk, and a staff sergeant in the Army. Tr. 21 & 44-45. F o llo w in g the administrative hearing, and employing the five-step process, the ALJ found P lain tiff had not engaged in substantial gainful activity since the alleged onset date of July 1 8 , 2005 (Step 1). Tr. 16. At Step 2, the ALJ found that Plaintiff suffers from the following s e v e re impairments: "morbid obesity; cervical and lumbar spine degenerative arthritis; left an k le fracture with arthritis; Depressive Disorder, NOS; intermittent gout; History of heart d is e a se , status post stent placement; Hypertension (asymptomatic); and sleep apnea." Tr. 16. T h e ALJ then found that Plaintiff "does not have an impairment or combination of im p a irm e n ts that meets or medically equals one of the listed impairments." (Step 3) Tr. 16. N e x t, the ALJ found that Plaintiff retains the RFC to "perform light work with a sit/stand o p tio n " but must avoid "climbing ladders, being around moving and hazardous machinery o r driving commercial motorized vehicles" and "excessive exposure to pulmonary irritants, d u s t, odors, fumes, extremes in temperature and humidity." Tr. 16-17. The ALJ also found th a t Plaintiff "would need a work environment with low stress with routine changes and no m u ltip le or rapid changes." Tr. 17. Given this level of RFC, and after consulting with a v o c a tio n a l expert, the ALJ determined that Plaintiff "is capable of performing past relevant

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w o rk as a general ledger bookkeeper." (Step 4) Tr. 21. The ALJ also found that, based on th e testimony of the vocational expert, even if Plaintiff could not return to his past relevant w o rk , there are "a number of jobs within [Plaintiff's] residual functional capacity, and which e x is t in significant numbers in the regional and national economies" which Plaintiff can p e rf o rm . Such occupations include: "reception clerk," "telephone solicitor," and "bill s o rte r." Tr. 22 & 46. Accordingly, the ALJ determined that Plaintiff is not disabled. Tr. 22. IV . P L A I N T I F F 'S CLAIMS P la in tif f alleges three errors requiring reversal of the ALJ's decision: (1) the ALJ e r r e d in "finding that Mr. Oswald failed to comply with medical treatment and failing to a d e q u ate ly take his obesity into account and its effects on his medical impairments;" (2) "the A L J erred by failing to afford any weight to Dr. Patel, Mr. Oswald's treating physician;" and (3 ) "the ALJ failed to apply the pain standard and failed to accept Mr. Oswald's complaints o f pain as true." Pl.'s Brief (Doc. #12) at 6. The Court will address each of Plaintiff's claims in turn. V. DISCUSSION A. T h e ALJ's treatment of Plaintiff's obesity and asserted finding of failure to comply with prescribed treatment.

P la in tif f argues that, in noting medical opinion evidence that Plaintiff's weight e x a c e rb a tes his health problems, the ALJ somehow found that Plaintiff has failed to comply w ith a purported medically prescribed course of losing substantial weight. Pl.'s Brief (Doc. 6

# 1 2 ) at 6-7. Plaintiff also contends that the ALJ "failed to take Mr. Oswald's obesity into a c co u n t and its effects on his medical impairments." Pl.'s Brief (Doc. #12) at 8. Plaintiff then leaps from this argument to a larger claim that the record does not support the ALJ's R F C determination. Pl.'s Brief (Doc. #12) at 8-10. Defendant asserts that the ALJ did a d e q u ate ly consider Plaintiff's obesity, that the ALJ did not "improperly consider[] the issue o f noncompliance," and that the ALJ's RFC determination is supported by substantial e v id e n c e . Def.'s Brief (Doc. #13) at 7-9. The Court of Appeals for the Eleventh Circuit has "held that `refusal to follow p resc rib ed medical treatment without a good reason will preclude a finding of disability[.]'" E llis o n v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (quoting Dawkins v. Bowen, 848 F .2 d 1211, 1213 (11th Cir. 1988)). However, "[a] physician's recommendation to lose w eigh t does not necessarily constitute a prescribed course of treatment, nor does a claimant's f a ilu re to accomplish the recommended change constitute a refusal to undertake such t r e a tm e n t. " McCall v. Bowen, 846 F.2d 1317, 1319 (11th Cir. 1988). That is, the

C o m m is s io n e r may not rely simply upon the fact of a claimant's obesity and a prior medical re c o m m e n d a tio n that the claimant lose weight in order to find that the claimant has failed to c o m p ly with prescribed treatment. Rather, evidence must be "presented suggesting that [the c la im a n t] has refused to follow a plan of prescribed treatment." Id. Furthermore, there must b e evidence that, had the claimant "followed the [prescribed treatment to lose weight], his a b ility to work would be restored." Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987).

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H ere , it is indisputable that Plaintiff has been advised to lose weight. See, e.g., Tr. 2 4 0 , 244. Plaintiff has also been advised of "his role in maintaining optimum health and his re sp o n s ib ility in the health care process" and has "voice[d] [his] understanding and his intent to actively participate in this process." Tr. 238. However, there is no clear evidence in the re c o rd that Plaintiff has refused to undertake a specific and prescribed course of treatment in order to lose weight. Thus, the record is not sufficiently factually developed in order to d e ter m in e whether Plaintiff may be denied disability status due to a failure to comply with p re sc rib e d treatment. H o w e v e r, it is also apparent from the record that the ALJ's finding that Plaintiff is not d is a b le d is not predicated on a finding that Plaintiff failed to comply with prescribed tre a tm e n t. There is no explicit statement in the ALJ's opinion conveying such a finding. R a th e r, Plaintiff asserts that the ALJ implicitly made such a finding in giving "substantial w e ig h t" to Dr. Anderson's testimony at the hearing. Pl.'s Brief (Doc. #12) at 7. At the h e a r in g , Dr. Anderson testified as follows: T h e records that we have, including the consultation evaluation, would suggest th is gentleman would be - would not meet the Secretary's listing for disability. T h e amount of pathology demonstrated with special emphasis on his obesity w o u ld limit him to light work activity with a sit/stand option and/or sedentary w o rk . If he were to become compliant with medical care, those limitations w o u ld be decreased. Tr. 43. It is clear that Dr. Anderson simply stated that Plaintiff is not disabled, even c o n sid e rin g his obesity, and that, should Plaintiff eventually comply with medical advice to

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lo s e weight, his limitations would be even less than the non-disabling limitations discussed b y Dr. Anderson. While Dr. Anderson characterized Plaintiff's failure to lose weight in te rm s of compliance, it is unreasonable to expect that Dr. Anderson appreciated the meaning th a t phrase, as a legal term of art, might be imbued with in disability proceedings. Given the c le a r meaning and intent of Dr. Anderson's testimony and the absence of any discussion of " n o n c o m p l ia n c e " in the ALJ's opinion, the Court holds that the ALJ did not implicitly refuse to find Plaintiff disabled based on his purported noncompliance with prescribed treatment. P la in t if f ' s contention that the ALJ failed to adequately consider his obesity is also w ith o u t merit. Plaintiff's argument is curious - despite the ALJ's explicit listing of Plaintiff's o b e sity as a severe impairment, he surmises that the ALJ failed to "take [Plaintiff's] obesity i n to account when calculating his RFC" as evidenced by his reliance on Dr. Anderson's te stim o n y. Plaintiff states, "Dr. Anderson's testimony acknowledges that Mr. Oswald may n o t be able to fulfill the physical requirements associated with `light' work activity." Pl.'s B rie f (Doc. #12) at 8. For Plaintiff, Dr. Anderson's testimony "could easily be read that [ P la in tif f ] is capable of only performing sedentary work on a regular and ongoing basis." P l.'s Brief (Doc. #12) at 9. D r. Anderson's testimony, as set forth above, is clear and speaks for itself. Dr. A n d e rs o n , having reviewed the evidence concerning Plaintiff's obesity and other im p a irm e n ts, determined that Plaintiff's limitations permit him to perform "light work with a sit/stand option and/or sedentary work." Plaintiff does not explain how Dr. Anderson's 9

te stim o n y supports the conclusion that he cannot "fulfill the physical requirements associated w ith `light' work." Dr. Anderson's finding that Plaintiff's RFC also encompasses sedentary w o rk does not somehow effect a limitation on Plaintiff's aptitude for light work. Rather, the re g u la tio n s dictate that a claimant capable of performing light work is also capable of s e d e n ta ry work. 20 C.F.R. § 404.1567(b). Both Dr. Anderson and the ALJ took special note of evidence establishing Plaintiff's o b e sity and relied upon such evidence in formulating Plaintiff's RFC. Moreover, substantial e v id e n c e in the record supports the ALJ's ultimate RFC determination, including the physical residu al functional capacity assessment (Tr. 288-95) which was based largely on Dr. Colley's c o n su lta tiv e examination (Tr. 281-87), consultative examiner Dr. Babb's opinion that P la in tif f does not suffer "any specific disabling conditions" but "should not be doing heavy, stre n u o u s manual labor" (Tr. 302-03), the lack of any physician opinion specifically s u p p o rtin g a finding of disability,6 and Dr. Anderson's opinion, in view of all the medical e v id e n c e , that Plaintiff is not disabled (Tr. 43). Thus, Plaintiff's contentions that the ALJ f a ile d to consider Plaintiff's obesity and that the ALJ's RFC determination is not supported b y the record and are without merit. B. T h e ALJ's treatment of the opinion of Dr. Patel.

P lain tiff claims that "the ALJ erred by failing to afford adequate weight to Dr. Patel,
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The Court will discuss the opinion of Dr. Patel, purported to be Plaintiff's treating physician, below. It is sufficed for present purposes to note that Dr. Patel's opinion, despite the import given it by Plaintiff, does not support a finding of disability. 10

[ P la in tif f 's ] treating physician." Pl.'s Brief (Doc. #12) at 10. Plaintiff asserts that Dr. Patel o p ined that "it would be necessary for [Plaintiff] to take work only intermittently or to work le s s than a full schedule as a result of his condition. He also determined [Plaintiff's] im p a i rm e n t s to be chronic in nature and can only work `per his comfort level.' Dr. Patel also rep o rted that [Plaintiff] may be absent from work for treatment and that he may require a ss ista n c e due to his serious health condition." Pl.'s Brief (Doc. #12) at 10. Plaintiff asserts t h a t it was error for the ALJ to not afford Dr. Patel's opinion controlling weight while, instead , affording significant weight to the opinion of the non-treating physician, Dr. A n d e rso n . Plaintiff also alleges reversible error due to the ALJ's purported failure to " p ro v id e any reasons whatsoever for his rejection of Dr. Patel's opinion." Pl.'s Brief (Doc. # 1 2 ) at 12. Defendant maintains that the ALJ implicitly rejected Dr. Patel's opinion and that d e c is io n is supported by substantial evidence. Def.'s Brief (Doc. #13) at 10.7 D r. Patel prepared a "Certification of Health Care Provider" in June of 2007 in which D r . Patel answered numerous questions about Plaintiff's condition. Tr. 310-312. The " C e rtific a tio n " appears to have been prepared for purposes unrelated to Plaintiff's disability

Defendant also asserts that it is at least unclear whether Dr. Patel qualifies as a treating physician. Def.'s Brief (Doc. #13) at 10. "A treating source is defined as the claimant's own physician or psychologist who has provided the claimant with medical treatment and evaluation, and who has had an ongoing relationship with the claimant." Pettus v. Astrue, 226 F. App'x 946, 949 (11th Cir. 2007). In this case, the record reveals that Dr. Patel saw Plaintiff on at least four occasions between March and August of 2006 (Tr. 277, 272, 257, & 232), and that he rendered the opinion relied upon by Plaintiff in June of 2007 (Tr. 309-312). Plaintiff's relationship with Dr. Patel was based on his need for treatment, not to "obtain a report in support of [the claim] for disability." Id. Thus, for purposes of this opinion, the Court assumes that Dr. Patel is Plaintiff's treating physician. 11

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p ro c e ed in g s , as it pertains to Plaintiff's wife's request for "family medical leave." Tr. 309. In any event, Dr. Patel's "Certification" ultimately conveys his belief that Plaintiff is "p rese n tly incapacitated" "off and on lasting for 1-3 weeks," and that Plaintiff "can do work as per his comfort level." Tr. 310-311.8 The ALJ specifically discusses Dr. Patel's

" C e rtif ic a tio n " in his opinion (Tr. 20) but does not explicitly articulate what weight he a f f o rd e d Dr. Patel's opinion in making his disability determination. When confronted with the opinion of a claimant's treating physician, the ALJ must a f f o rd it substantial and considerable weight unless "good cause" is shown to the contrary. C r a w fo r d v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); see also Bliss v. C o m m 'r of Soc. Sec., 254 F. App'x 757, 758 (11th Cir. 2007) ("An ALJ may reject the o p in io n of a treating physician, which ordinarily receives substantial weight, where `good c a u se ' is established."). "`[G]ood cause' exists when the: (1) treating physician's opinion w a s not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating p h ys ic ia n 's opinion was conclusory or inconsistent with the doctor's own medical records."

It is questionable, given the context in which Dr. Patel's opinion was rendered, whether the "Certification" should properly be considered a probative opinion about Plaintiff's disability status. The origin and purpose of the "Certification" reasonably militates against treating it as probative evidence of Plaintiff's disability status entitled to treating-source deference because, based on the record before the Court, it can not be said that Dr. Patel appreciated that it would be used as such evidence. Moreover, it is even questionable whether the ALJ actually "rejected" Dr. Patel's opinion. Dr. Patel did not completely discount any ability for Plaintiff to perform work and it is for the ALJ only to craft a RFC formulation that recognizes Plaintiff's however-limited ability to perform work. However, to the extent Dr. Patel deemed Plaintiff incapacitated for periods of up to weeks at a time, such opinion is tantamount to saying that Plaintiff is disabled within the meaning of the guidelines. Accordingly, for purposes of this opinion, the Court assumes that the ALJ did reject Dr. Patel's opinion. 12

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P h i llip s v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). "Where the ALJ articulated s p e c if ic reasons for failing to give the opinion of a treating physician controlling weight, and th o s e reasons are supported by substantial evidence," a reviewing court may not "disturb the A L J 's refusal to give the opinion controlling weight." Carson v. Comm'r of Soc. Sec., 2008 W L 4962696 at *1 (11th Cir. Nov. 21, 2008). "The ALJ must clearly articulate the reasons for giving less weight to the opinion of a treating physician, and the failure to do so is reversible error." Lewis v. Callahan, 125 F.3d 1 4 3 6 , 1440 (11th Cir. 1997); see also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1 9 8 6 ) (holding the ALJ "must specify what weight is given to a treating physician's opinion a n d any reason for giving it no weight"). Similarly, when deciding a claim of disability, the A L J is "required to state with particularity the weight he gave the different medical opinions a n d the reasons therefor." Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). "In the a b se n c e of such a statement, it is impossible for a reviewing court to determine whether the u ltim a te decision on the merits of the claim is rational and supported by substantial e v id e n c e." Cowart v. Schweiker, 662 Fed.2d 731, 735 (11th Cir. 1981). However, in certain c irc u m s ta n c es , the ALJ's failure to strictly comply with this requirement may be deemed h a rm le s s error. Caldwell v. Barnhart, 261 Fed. App'x 188, 190 (11th Cir. 2008) ("An ALJ's f a ilu re to state with particularity the weight given different medical opinions is reversible e rro r. When, however, an incorrect application of the regulations results in harmless error b ec au se the correct application would not contradict the ALJ's ultimate findings, the ALJ's

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d e c isio n will stand.") (citations omitted); Miller v. Barnhart, 182 F. App'x 959, 964 (11th C ir. 2006) (recognizing such harmless error analysis in context of failing to address treating so u rc e opinion). Courts have generally found that an ALJ's failure to state what weight is a f f o rd e d a particular piece of medical opinion evidence is harmless when the ALJ has relied u p o n other opinion evidence which is consistent with the omitted evidence or the omitted o p i n i o n is consistent with the ALJ's ultimate findings. See, e.g., id. at 191; Wright v. B a r n h a r t, 153 F. App'x 678, 684 (11th Cir. 2005). Other courts have recognized that the A L J 's failure to specify the weight given particular medical evidence might be considered h a rm le ss when "the Commissioner has met the goal of [20 C.F.R.] § [404.]1527(d)(2) - the p ro v is io n of the procedural safeguard of reasons - even though she has not complied with the te rm s of the regulation." Nelson v. Comm'r of Soc. Sec., 195 F. App'x 462, 470 (6th Cir. 2 0 0 6 ). Under this rationale, the ALJ achieves the goal established by the regulations, without f o rm a l compliance, by providing sufficient reasons for the rejection of the omitted opinion b y indirectly attacking its "supportability" or "consistency" with the record as a whole. Id. U n d e r circumstances similar to those inhering in this case, the Eleventh Circuit a p p e ars to have recognized that such "implicit" rejection of treating source opinion evidence is viable provided that the ALJ articulates the reasons for affording the omitted opinion less w e ig h t and such reasons are supported by the record. Snyder v. Comm'r of Soc. Sec., 2009 W L 1492653 at *4 (11th Cir. 2009) ("Here, the ALJ did not specify expressly the weight g iv e n to Dr. Oliverio's [the claimant's treating physician] opinion. The most the ALJ said

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is that he was giving greater weight to Dr. Bhatia's opinion. If that implicitly meant that he g a v e less weight to Dr. Oliverio's opinion, then the ALJ failed to articulate clearly the re a so n s for giving less weight to his opinion. This problem alone requires reversal."); see a ls o Miller, 182 F. App'x at 964. Thus, although the ALJ failed to clearly state what weight h e attributed to Dr. Patel's opinion, his implicit rejection of such opinion is appropriate if he h a s clearly stated the reasons supporting such rejection, and those reasons fit within the c rite ria described in Phillips and are supported by substantial evidence. In this instance, the Court finds that the ALJ clearly articulated the reasons for his im p lic it rejection of Dr. Patel's opinion and that those reasons are supported by substantial ev iden ce . In his opinion, the ALJ set forth a meticulous review of the available evidence (Tr. 1 7 -2 1 ), including Dr. Patel's "Certification," and ultimately concluded that the evidence does n o t support the opinion of incapacitation rendered by Dr. Patel. Substantial evidence su p p o rts this decision, including the physical residual functional capacity assessment (Tr. 2 8 8 -95 ) which was based largely on Dr. Colley's consultative examination (Tr. 281-87), c o n s u l ta tiv e examiner Dr. Babb's opinion that Plaintiff does not suffer "any specific d isab lin g conditions" but "should not be doing heavy, strenuous manual labor" (Tr. 302-03), a n d Dr. Anderson's opinion, in view of all the medical evidence, that Plaintiff is not disabled (T r. 43). Moreover, it appears that Dr. Patel's opinion is conclusory, as the "Certification" d o e s not provide an explanation for how or why Plaintiff's impairments cause the

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" in c a p ac ity" opined by Dr. Patel.9 Furthermore, the "Certification" does not find objective su p p o rt in Dr. Patel's own treatment records. Dr. Patel's treatment notes in the record i n d i c a t e the following: that he saw Plaintiff as a "walk in" on March 7, 2006, asking for a re f ill on his medications (Tr. 277); that he saw Plaintiff again on March 16, 2006, as a walkin complaining of a "skin nodule" on his cheek (Tr. 272); that he saw Plaintiff again on April 2 5 , 2006, as a walk-in complaining of pain in his legs (Tr. 257); and that he saw Plaintiff on A u g u st 28, 2006, and treated him for a possible eye infection (Tr. 232). There is simply n o th in g in Dr. Patel's treatment history with Plaintiff to support the sweeping conclusion that P lain tif f is "incapacitated" due to his impairments. While other evidence in the record co rrob o rates the impairments listed by Dr. Patel on the "Certification," nothing in the record re v e als that Dr. Patel specifically has treated Plaintiff for those impairments and, as indicated in the medical evidence reviewed by the ALJ, while those impairments are severe, they are n o t disabling. Given all of the above, the ALJ did not err in failing to afford Dr. Patel's " C e rtif ic a tio n " controlling weight, and any error by the ALJ in failing to explicitly state how m u c h weight he afforded Dr. Patel's opinion was harmless. C. T h e ALJ's application of the "pain standard" and his treatment of P la in tiff's complaints about pain.

Plaintiff contends that the ALJ erred in his application of the "pain standard" to

This lack of an explanation is understandable, considering, again, that the "Certification" was prepared for purposes other than rendering an opinion about Plaintiff's disability status in the context of Social Security proceedings. 16

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P lain tiff 's claim about the disabling effects of his pain because he failed to "provide `specific re a so n s ' for discrediting the testimony provided by [Plaintiff]" and "failed to articulate a b a sis grounded in evidentiary support[] indicating why [Plaintiff's] physical impairment f a ile d to produce the level of pain, limitations from the pain, and inability to stand, walk or s it as reflected in his testimony." Pl.'s Brief (Doc. #12) at 15. Defendant asserts that the A L J 's "decision to discount Plaintiff's testimony is supported by substantial evidence." D e f .'s Brief (Doc. #13) at 14. T h e Eleventh Circuit has articulated its "pain standard," governing the evaluation of a claimant's subjective testimony about pain, as follows: "In order to establish a disability based on testimony of pain and other s ym p to m s , the claimant must satisfy two parts of a three-part test showing: (1) e v id e n c e of an underlying medical condition; and (2) either (a) objective m e d ic a l evidence confirming the severity of the alleged pain; or (b) that the o b je c tiv e ly determined medical condition can reasonably be expected to give ris e to the claimed pain." W ils o n v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ evaluates the

" c la im a n t's subjective testimony of pain" only after the claimant satisfies the first and one o f the alternate portions of the second prong of the pain standard. Foote v. Chater, 67 F.3d 1 5 5 3 , 1560 (11th Cir. 1995). The Eleventh Circuit has also held that, "in certain situations, p a in alone can be disabling, even when its existence is unsupported by objective evidence." Id . at 1561. Importantly, it is only evidence of the underlying condition which could r e a so n a b l y be expected to cause pain, not evidence of actual pain or its severity, which must

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b e presented by the claimant to satisfy the "pain standard." Elam v. Railroad Retirement Bd., 9 2 1 F.2d 1210, 1215 (11th Cir. 1991); see also Foster v. Heckler, 780 F.2d 1125, 1129 (4th C ir. 1986); Hill v. Barnhart, 440 F.Supp.2d 1269, 1272-73 (N.D. Al. 2006) (quoting Elam, 9 2 7 F.2d at 1215). Where the ALJ proceeds to consider the claimant's subjective testimony a b o u t pain, the ALJ's decision to reject or discredit such testimony is reviewed for substantial e v id e n c e . Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Finally, if the ALJ d e t e rm in e s to discredit subjective pain testimony and such testimony is crucial to the c la im a n t's assertion of disability, the ALJ "must articulate specific reasons for questioning th e claimant's credibility." Id. At the hearing before the ALJ, Plaintiff testified about "back pain" he attributes to his " sc ia tic nerve" (Tr. 33, 42), blood pressure problems (Tr. 33-34), and angina and chest pains (T r. 34-35, 36, 43). Plaintiff also testified about the limitations these pains cause him in daily a c tiv itie s. Tr. 35-36, 42. Plaintiff stated that, at the time of the hearing, his chest pain was n o t problematic, but that "if I try to exert myself then I have angina pain." Tr. 42. He also sta ted that, at the time of the hearing, his back was "throbbing," that it has bothered him e ss e n tially every day for the last five years, and "the more I try to push myself, the worse it g e ts ." Tr. 42. U p o n reviewing the record, the ALJ identified several underlying medical conditions a n d determined that "the claimant's medically determinable impairments could reasonably b e expected to produce the alleged symptoms, but that the claimant's statements concerning 18

th e intensity, persistence and limiting effects of these symptoms are not entirely credible." T r. 21. Thus, while the ALJ found that Plaintiff passed through the threshold of the "pain s ta n d a rd ," the ALJ ultimately rejected his subjective testimony about the severity of his pain. A c c o rd in g ly, the ALJ was required to "articulate specific reasons for questioning the c la im a n t's credibility" and those reasons must be supported by substantial evidence. T h e ALJ provided numerous reasons for his decision to discredit Plaintiff's subjective p a in testimony, including: 1) the lack of objective evidence supporting Plaintiff's testimony a b o u t limitations in his daily activities; 2) the difficulty of attributing Plaintiff's limitations to his impairments, rather than other reasons, given the "relatively weak medical evidence;" 3 ) Plaintiff's reliance of largely "routine and/or conservative" treatment for his pain; 4) P lain tiff 's "generally unpersuasive appearance and demeanor while testifying at the hearing;" a n d 5) the lack of definitive and reliable expert medical opinion supporting such subjective lim ita tio n s . Tr. 21. S u b s ta n tia l evidence supports the ALJ's credibility determination because, as d is c u ss e d in the ALJ's opinion and previously in this opinion, Plaintiff's subjective c o m p la in ts about his pain "were not entirely credible when compared with the objective m e d ic a l evidence in the record." George v. Astrue, 2009 WL 1950266 at *2 (11th Cir. July 8 , 2009). See Tr. 18-19, 281-287, & 298-308. Additionally, the record supports the ALJ's o b s e rv a tio n about Plaintiff's reliance on mostly conservative treatment for his pain. Tr. 4243. Moreover, the ALJ's "findings based upon his observation and assessment of 19

[ P l a in t i f f 's ] demeanor" is afforded deference on review and is one factor, "among other c rite ria ," properly considered by the ALJ in his credibility determination. Norris v. Heckler, 7 6 0 F.2d 1154, 1158 (11th Cir. 1985). Finally, as discussed above, the record is devoid of re lia b le expert opinion evidence lending any corroboration to Plaintiff's allegations of d isab lin g pain. Accordingly, substantial evidence supports the ALJ's finding that Plaintiff's s u b je c tiv e allegations about pain are less than wholly credible. VI. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 19th day of October, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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