McCurdy v. Astrue
MEMORANDUM OF OPINION. Signed by Honorable Judge Susan Russ Walker on 10/26/11. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
DOROTHY M. MCCURDY,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
CIVIL ACTION NO. 2:10CV945-SRW
MEMORANDUM OF OPINION
Plaintiff Dorothy M. McCurdy brings this action pursuant to 42 U.S.C. § 405(g) and
§ 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security
(“Commissioner”) denying her application for a period of disability and disability insurance
benefits and her application for supplemental security income under the Social Security Act.
The parties have consented to entry of final judgment by the Magistrate Judge, pursuant to
28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the parties, the court
concludes that the decision of the Commissioner is due to be affirmed.
Plaintiff has an eleventh grade education. She worked as a cook at a restaurant
between 1989 and 2005 and as a cook at a gas station between January 2006 and March
2007. (R. 31, 35, 138,142, 144, 218). On August 19, 2008, when she was fifty years old,
plaintiff protectively filed the present applications, alleging disability since March 1, 2007,
due to diabetes, poor eyesight, problems with swelling in her legs and high blood pressure.
(R. 112-18, 133, 137). After plaintiff’s applications were denied at the initial administrative
level, plaintiff requested a hearing before an administrative law judge. (R. 50-101). An ALJ
conducted a hearing on December 4, 2009, in which she heard testimony from plaintiff and
from a vocational expert. (R. 25-48).
The ALJ rendered a decision on January 22, 2010. She determined that plaintiff has
“severe” impairments of “insulin dependent diabetes mellitus, fibromyalgia, and obesity” and
a non-severe impairment of hypertension (R. 13). She found that plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of any
of the impairments in the “listings” and, further, that plaintiff retained the residual functional
capacity to perform “light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the
following exceptions/considerations: she requires a sit/stand option in 60 minute intervals;
can occasionally climb ramps/stairs; should never climb ladders/ropes/scaffolds, kneel, or
crawl; and should avoid all exposure to unprotected heights and hazardous machinery.” (R.
14). The ALJ concluded that, due to pain, plaintiff “can perform simple, routine, and
repetitive tasks involving simple, work-related decisions with few work place changes.”
(Id.). The ALJ found that, while plaintiff is unable to perform her past relevant work, there
are a significant number of jobs in the national economy which the plaintiff can perform. (R.
18). The ALJ concluded that plaintiff has not been under a disability as defined in the Social
Security Act from her alleged onset date, March 1, 2007, through the date of the ALJ’s
decision. (R. 19). On September 23, 2010, the Appeals Council denied plaintiff’s request
for review (R. 1-4) and, accordingly, the decision of the ALJ stands as the final decision of
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
Plaintiff contends that the ALJ’s decision is not supported by substantial evidence and
should be reversed because the ALJ failed to apply the Eleventh Circuit pain standard
properly and erred in discounting plaintiff’s testimony of disabling pain.1 She further argues
that the ALJ committed reversible error by failing to consider her impairments in
ALJ’s Consideration of Plaintiff’s Pain Testimony
In the Eleventh Circuit, a claimant’s assertion of disability through testimony of pain
or other subjective symptoms is evaluated pursuant to a three-part standard. “The pain
standard requires ‘(1) evidence of an underlying medical condition and either (2) objective
medical evidence that confirms 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 be
reasonably expected to give rise to the alleged pain.’” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005)(quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). If this
standard is met, the ALJ must consider the testimony regarding the claimant’s subjective
symptoms. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Although the ALJ is
required to consider the testimony, the ALJ is not required to accept the testimony as true; the
ALJ may reject the claimant’s subjective complaints. However, if the testimony is critical,
the ALJ must articulate specific reasons for rejecting the testimony. Id.2
Plaintiff testified that, while she has “some good days,” her pain is at a level of eight or nine on
a scale of ten most of the time. (R. 34-35).
See also Social Security Ruling 96-7p, 61 Fed. Reg. 34483-01 (July 2, 1996):
When evaluating the credibility of an individual’s statements, the adjudicator must consider
the entire case record and give specific reasons for the weight given to the individual’s
statements. The finding on the credibility of the individual’s statements cannot be based on
an intangible or intuitive notion about an individual’s credibility. The reasons for the
credibility finding must be grounded in the evidence and articulated in the determination or
decision. It is not sufficient to make a conclusory statement that “the individual’s
allegations have been considered” or that “the allegations are (or are not) credible.” It is
Plaintiff argues that the ALJ “never specifically mentions the Eleventh Circuit Pain
Standard.” (Plaintiff’s brief, p. 11). What matters, however, is whether the ALJ applied the
correct legal standard in assessing plaintiff’s subjective complaints. See Wilson v. Barnhart,
284 F.3d 1219, 1225 -1226 (11th Cir. 2002)(“Although the ALJ does not cite or refer to the
language of the three-part test in Holt, his findings and discussion indicate that the standard
was applied. Furthermore, the ALJ cites to 20 C.F.R. § 404.1529, which contains the same
language regarding the subjective pain testimony that this Court interpreted when initially
establishing its three-part pain standard.”). In this case, the ALJ cited 20 C.F.R. 404.1529 and
its Title XVI counterpart, 20 C.F.R. 416.929, and described the required analysis. (R. 14).
Additionally, the ALJ found “that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms[,]” (R. 17) – i.e., that the requirements
of the Eleventh Circuit pain standard are satisfied. As noted above, satisfaction of the pain
standard does not require that the ALJ accept a claimant’s testimony regarding subjective
symptoms as true. Instead, the ALJ is required to consider the testimony. Even when the
testimony is critical to the claim, the ALJ may reject it if she articulates adequate reasons,
supported by substantial evidence of record, for doing so. Marbury, 957 F.2d at 839.
Plaintiff argues that the ALJ’s credibility assessment does not include the specific
reasons required by Eleventh Circuit law. (Plaintiff’s brief, pp. 11-12). However, plaintiff
also not enough for the adjudicator simply to recite the factors that are described in the
regulations for evaluating symptoms. The determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and must
be sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that weight.
quotes only the ALJ’s credibility finding – i.e., that the plaintiff’s statements regarding her
symptoms “are not credible to the extent that they are inconsistent with the above residual
functional capacity assessment.” (Id., p. 12)(citing R. 17). In the discussion following her
credibility finding, the ALJ noted: (1) specific inconsistencies between plaintiff’s testimony
and other evidence of record;3 (2) plaintiff’s testimony that she takes over-the-counter Tylenol
for pain;4 (3) the consultative physician’s examination results – including his observations of
poor cooperation and poor effort – and his diagnosis of malingering;5 (4) the record of
noncompliance revealed in treatment notes provided by Community Care Network;6 (5)
plaintiff’s failure to keep numerous medical appointments;7 and (6) that plaintiff’s testimony
The ALJ cited plaintiff’s testimony that “she became unable to work in March 2007 due to
swelling of her hands and feet and inability to drive due to blurred vision” (R. 17; see R. 30-32) and
contrasted it with: (1) plaintiff’s report to Dr. Colley in October 2006 that she had not driven in eight years
due to her poor vision; (2) plaintiff’s corrected vision of 20/60 for distance and 20/40 for near vision as
recorded in a consultative eye examination; (3) plaintiff’s report to a disability specialist in October 2008
that she had not sought the care of an eye doctor and could see well and read with over-the-counter glasses.
(R. 18; see R. 219, 225, 356; see also R. 30 (plaintiff’s hearing testimony that she stopped driving in 2007
because her “eyes got blurry and [she] couldn’t hardly see, and [her] daughter started taking [her] places”)).
See R. 33 (plaintiff’s testimony that she takes “something like a Tylenol or something like that”
See Exhibit 3F. Plaintiff notes that this examination took place in connection with a previous
application for benefits and on October 11, 2006, “a few months short of three years” before the hearing.
(Plaintiff’s brief, p. 7). While this is so, the examination predates plaintiff’s alleged onset date of March 1,
2007, by less than five months. The ALJ did not err by considering it.
Plaintiff testified that Community Care is her primary medical treatment provider, that it is a “free
clinic” that gives her the medication she needs, and that it is available in her area once or twice a month.
(R. 41-42). The Community Care treatment notes reflect seventeen examinations between September 2006
and October 2009. (Exhibits 9F, 12F, 17F). Treatment notes for eleven of these seventeen office visits
include plaintiff’s report that she had been out of her diabetes medication for periods ranging from two days
to two weeks (See R. 253, 311, 327, 331, 333, 365, 369-70, 373, 385-86, 395, 413). Other treatment notes
of record indicate that plaintiff was not monitoring her blood sugar routinely (R. 310, 373).
Plaintiff was a “no show” for appointments at Community Care in August, October and December
of 2008 and January and March of 2009. (R. 329, 377, 381, 383-84, 387, 393-94).
is inconsistent with her medical records, which do not evidence disabling impairments.8
(R. 17-18). The ALJ stated adequate reasons, supported by substantial evidence of record,
for crediting plaintiff’s pain testimony only in part.9 , 10
Plaintiff testified that, since March 2007, she had lost forty pounds (from 220 pounds down to 180
pounds), she “guess[ed]” due to her diabetes. (R. 29). The medical record reveals that she weighed 183
pounds on February 21, 2007 (R. 279) and that her weight remained in the 180s thereafter through 2008 and
2009 with the single exception of a recorded weight of 174 in July 2008. (R. 162, 279, 329, 331, 333, 367,
371, 373, 375, 379). Plaintiff also testified that her most severe condition was swelling of her feet, hands
and arms. She stated that she quit working because of swelling in her feet and hands, that they swell “all the
time[,]” and that her legs also swell “[a]ll the time[.]” She testified that she had experienced swelling in her
hands and arms for “some years,” “ever since [she] became a diabetic[,]” and that her arms swell up “rea[l]
big ... [m]ostly all the time.” (R. 31-32, 41). However, in all of plaintiff’s sixteen physical examinations at
Community Care since February 21, 2007 – nine days before her alleged onset date – the examining
practitioner expressly noted the absence of edema in plaintiff’s extremities, even on the occasions on which
plaintiff complained of extremity pain. (See R. 367, 371, 373, 375, 379, 385, 389, 391, 397, 399, 401, 403,
405, 407, 410). Plaintiff testified that, even when she is taking her medication, her blood sugar “still runs
like 200 and 300.” (R. 40). As noted above, plaintiff was more often than not out of compliance with regard
to her medication (see n. 6, supra). At plaintiff’s July 15, 2009 visit to Community Care, her blood sugar
measured 108. (R. 367). At her next appointment, on October 30, 2009, her blood sugar was recorded at 371.
She reported, however, that she had been out of insulin for two days and that her blood sugar had been in the
130s before she ran out of medication. (R. 365).
Plaintiff contends that the ALJ’s conclusion that plaintiff experiences pain sufficient to limit her
to simple, routine, repetitive tasks is “sufficient to support a finding of disability under the pain standard.”
(Plaintiff’s brief, pp. 12-13). However, the ALJ included the limitation in her hypothetical question to the
vocational expert, who responded by listing jobs an individual with plaintiff’s limitations can do. (R. 43-46).
Plaintiff also points to her diagnosis of fibromyalgia and argues that it supports her testimony of disabling
pain. (Plaintiff’s brief, p. 13). The ALJ found plaintiff’s fibromyalgia to be a severe impairment and
credited plaintiff’s testimony of pain partially. Plaintiff’s physician first suspected fibromyalgia in April
2009, and diagnosed it in May 2009. (See R. 373-76; see also R. 373, emphasizing that plaintiff was in no
apparent distress (“NAD!”) and was not checking her blood sugars and was noncompliant with taking her
medications). Two months later, on July 15, 2009, the doctor noted that plaintiff’s fibromyalgia was
“[s]table.” (R. 368). He described her symptoms as “now controlled” and “[i]mproved w/ glycemic
control[.]” (R. 368). At plaintiff’s next office visit, on October 30, 2009, the doctor diagnosed only diabetes
mellitus and controlled hypertension. (R. 365-66). The fibromyalgia diagnosis, which was considered by
the ALJ, does not impeach her decision.
Plaintiff challenges the ALJ’s determination that she requires a sit/stand option in 60-minute
intervals, citing her hearing testimony that she can stand for “no more than thirty minutes and sit for no more
than thirty-five to forty minutes.” (Plaintiff’s brief, p. 11; see also R. 35-36 (plaintiff’s hearing testimony
that she can stand “[m]aybe about for 30 minutes or something like that” and sit for “[m]aybe about 35, 40
minutes”)). Plaintiff argues, “In the absence of any RFC findings or medical source statement from a treating
or examining source citing an ability to sit or stand for sixty minutes it would appear that the ALJ’s findings
ALJ’s Consideration of Plaintiff’s Combination of Impairments
Plaintiff argues that the consultative examination upon which the ALJ relied “notes
anxiety, depression, and migraine headaches, all of which escape mention by the ALJ” and,
also, that the ALJ considered plaintiff’s “diagnosed and treated hypertension to be a nonsevere impairment despite [t]he [p]laintiff’s testimony that her hypertension is not adequately
controlled and is elevated every time she goes to the doctor.” (Plaintiff’s brief, p. 14).
Plaintiff contends that the ALJ erred by failing to consider the combination of plaintiff’s
severe and non-severe impairments in assessing her residual functional capacity.
While anxiety, depression and migraine headaches are noted in the October 2006
consultative examination, this is in the portion of Dr. Colley’s report bearing the heading
“PAST MEDICAL HISTORY.” Dr. Colley noted plaintiff’s past medical history to be
“[p]ositive for anxiety and depression and migraine headaches on the average of once a week
that last all day and are unresponsive to over-the-counter medication.” (R. 219). Plaintiff’s
chief complaints, however, did not include these impairments. (R. 218). Dr. Colley did not
diagnose anxiety, depression or migraines. (R. 222). Plaintiff did not allege anxiety,
depression, or migraine headaches as a basis for her claims of disability and, at the hearing.
regarding the sit/stand time limits cannot be supported by substantial evidence.” (Plaintiff’s brief, p. 11).
However, no physician of record has concluded that plaintiff requires a sit/stand option at more frequent
intervals. In the consultative examination four and a half months before the alleged onset date, plaintiff told
Dr. Colley that she “has no difficulty sitting, it is getting up that causes problems[,]” and that she “can stand
for 1-2 hours without pain[.]” (R. 218-19). Plaintiff’s argument is without merit. The ALJ’s RFC assessment
may be supported by substantial evidence, even in the absence of an opinion from an examining medical
source about plaintiff’s functional capacity. See Green v. Social Security Administration, 223 Fed. Appx.
915, 923 (11th Cir. 2007)(unpublished opinion)(ALJ’s RFC assessment supported by substantial evidence
where he rejected treating physician’s opinion properly and formulated the plaintiff’s RFC based on
treatment records, without a physical capacities evaluation by any physician).
made no mention of anxiety, depression, or migraines, even when the ALJ gave her the
opportunity to identify any other conditions that keep her from working. (See R. 31-42, 137).
The record includes no evidence of mental health treatment. A non-examining psychologist
reviewed plaintiff’s file and completed a Psychiatric Review Technique Form finding no
medically determinable mental impairment. (Exhibit 14F). The ALJ did not err by failing to
mention these impairments.
It does not appear to the court that plaintiff testified “that her hypertension is not
adequately controlled and is elevated every time she goes to the doctor[,]” as plaintiff argues.
(Plaintiff’s brief, p. 14). Plaintiff’s testimony refers, instead, to her cholesterol level.11 Even
if this testimony were as counsel argues, however, it is contradicted by the medical record.
(See R. 390, diagnosis of “HTN - well controlled,” and R. 334, diagnosis of “HTN, contr”;
see also R. 252, 312, 329, 331, 365, 367,373, 375, 379, 385). Plaintiff points to no evidence
of functional limitations arising from her hypertension; the ALJ did not err in finding it to be
a non-severe impairment. Additionally, the ALJ’s decision indicates that she considered
Plaintiff testified as follows:
. . . And you stated that you have hypertension and high cholesterol.
Do those cause any symptoms or are they reasonably well controlled?
No, ma’am. It’s not.
Both are not?
My – it be up every time I go to the doctor. My cholesterol.
(R. 34)(emphasis added).
plaintiff’s impairments in combination in evaluating plaintiff’s claim. (See R. 14)(finding that
plaintiff does not have “an impairment or combination of impairments” that meets or
medically equals the listings). Plaintiff’s contention to the contrary is without merit. See
Wilson, 284 F.3d at 1224-25 (“[T]he ALJ specifically stated that ‘the medical evidence
establishes that [Wilson] had [several injuries] which constitute a “severe impairment,” but
that he did not have an impairment or combination of impairments listed in, or medically
equal to one listed in Appendix 1, Subpart P, Regulations No. 4.’ (emphasis added). The
ALJ’s determination constitutes evidence that he considered the combined effects of Wilson’s
Upon review of the record as a whole and the arguments of the parties, the court
concludes that the decision of the Commissioner is due to be AFFIRMED. A separate
judgment will be entered.
DONE, this 26th day of October, 2011.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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