Sheppard v. Astrue
MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 5/11/12. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
Commissioner of Social Security,
CASE NO. 2:11-cv-854-TFM
Plaintiff Norma Sheppard (“Sheppard”) applied for supplemental security income
benefits pursuant to Title XVI, 42 U.S.C. § 1381 et seq., alleging that she is unable to work
because of a disability. Her application was denied at the initial administrative level. The
plaintiff then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ concluded that the plaintiff was not under a “disability” as
defined in the Social Security Act. The ALJ, therefore, denied the plaintiff’s claim for
benefits. The Appeals Council rejected a subsequent request for review. Consequently, the
ALJ’s decision became the final decision of the Commissioner of Social Security
(Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Pursuant to
28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
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.
States Magistrate Judge. The case is now before the court for review pursuant to 42 U.S.C.
§§ 405 (g) and 1631(c)(3). Based on the court's review of the record in this case and the
parties’ briefs, the court concludes that the Commissioner’s decision should be affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
Is the person presently unemployed?
Is the person’s impairment severe?
Does the person's impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Is the person unable to perform his or her former occupation?
Is the person unable to perform any other work within the
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of review of the Commissioner’s decision is a limited one. This court
must find 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
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of
the record which supports the decision of the ALJ but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied in
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Sheppard was 49 years old at the time of the hearing and has
completed the eleventh grade. (R. 197.) She has prior work experience as an orchid
transplanter and agricultural packer. (R. 199, 217.) Sheppard alleges that she became
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).
disabled on June 11, 2009, from pain in her lower back which radiates down both legs, as
well as knee pain and stomach problems. (R. 102, 202, 206.) After the hearing, the ALJ
found that Sheppard suffers from severe impairments of obesity with mechanical pain in the
knees, with damaged lateral tibia plateau; mechanical pain, related to obesity in the lower
back, legs; hypertension; and history of gastritis. (R. 18.) The ALJ found that Sheppard is
unable to perform her past relevant work, but that she retains the residual functional capacity
to perform sedentary work with limitations. (R. 19-25.) Testimony from a vocational expert
led the ALJ to conclude that a significant number of jobs exist in the national economy that
Sheppard could perform, including work as a telephone order clerk, information clerk, and
document preparer. (R. 26.) Accordingly, the ALJ concluded that Sheppard is not disabled.
B. The Plaintiff’s Claims. As stated in the Complaint, Sheppard presents the
following issues for review:
The ALJ improperly attempted to grant substantial weight to medical opinions
expressed by Dr. Puttu which do not support his medical finding.
The ALJ failed to discuss or consider the side effects from the claimant’s
medications on her ability to work.
(Doc. No. 10, p. 3.)
A. An Acceptable Medical Source. Sheppard asserts that the ALJ erred in
according substantial weight to Dr. Sumathi Puttu’s opinion that she “has multiple problems,
some of them have evaluated well on regular treatment, needs to lose weight, and physical
therapy will help her back and knee pain” when determining that she has the residual
functional capacity to perform sedentary work. (Doc. No. 10, p. 3.) Specifically, Sheppard
argues that the finding of Dr. Puttu, a consultative physician, is not a medical opinion which
may be assigned substantial weight in accordance with SSR 96-2, 1996 WL 374188. The
purpose of SSR 96-2p is “[t]o explain terms used in [the] regulations on evaluating medical
opinions concerning when treating source medical opinions are entitled to controlling
weight.” Thus, the Ruling applies to the opinions of treating sources. Dr. Puttu, however,
is a consultative examiner and not a treating physician. (R. 150-154.) Therefore, SSR 96-2
is not applicable to Dr. Puttu’s opinion.
Nonetheless, the Regulations provide that the opinions of consultative examiners,
such as Dr. Puttu’s opinion, are acceptable medical source opinions. See 20 C.F.R. §§
416.902 (The definition of acceptable medical source as used in § 416.913(a) “includes
treating sources, nontreating sources, and nonexamining sources.”); 416.913(a) (acceptable
medical sources, including licensed physicians, can provide evidence to establish an
impairment); 416.927(d) (ALJ should evaluate medical opinions using factors set forth in
416.927, including whether the opinion is consistent with the rest of the medical evidence
and supported by the record as a whole). This court therefore concludes that Sheppard’s
argument that Dr. Puttu’s opinion is not a medical source opinion is without merit.
To the extent Sheppard argues that Dr. Puttu’s opinion should not be considered
because the consultative physician did not provide an express statement of her functional
limitations, Sheppard’s argument is likewise unavailing. “[T]he law of this Circuit does not
require an RFC from a physician.” Langley v. Astrue, 777 F.Supp.2d 1250, 1257-58 (N.D.
Ala. 2011). To do otherwise “attempt[s] to place the burden of proving the claimant’s RFC
on the Commissioner at step five” and this shifting of the burden is “inconsistent with the
Commissioner’s regulations, Supreme Court precedent and unpublished decisions in this
Circuit.” Id. at 1258-60. (Citations omitted.). While an ALJ should review all of the medical
evidence and may consider opinions from acceptable medical sources when determining the
RFC, the final responsibility for deciding those issues is reserved to the Commissioner. See
Raymond v. Astrue, No. 5:09cv170-OC-GRJ, 2010 WL 3893704, *6 (M.D. Fla. Sept. 29,
2010). See also 20 C.F.R. §§ 416.927(d)(2). This court therefore concludes that Sheppard
is entitled to no relief with respect to this claim.
B. The Pain Standard. Sheppard also argues that the ALJ failed to consider
Sheppard’s pain as a non-exertional impairment. “Subjective pain testimony supported by
objective medical evidence of a condition that can reasonably be expected to produce the
symptoms of which the plaintiff complains is itself sufficient to sustain a finding of
disability.” Hale v. Bowen, 831 F.2d 1007 (11th Cir. 1987). The Eleventh Circuit has
established a three-part test that applies when a claimant attempts to establish disability
through his own testimony of pain or other subjective symptoms. Landry v. Heckler, 782
F.2d 1551, 1553 (11th Cir. 1986); see also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991). This standard requires evidence of an underlying medical condition and either (1)
objective medical evidence that confirms the severity of the alleged pain arising from that
condition or (2) an objectively determined medical condition of such severity that it can
reasonably be expected to give rise to the alleged pain. Landry, 782 F. 2d at 1553. In this
circuit, the law is clear. The Commissioner must consider a claimant’s subjective testimony
of pain if he finds evidence of an underlying medical condition and the objectively
determined medical condition is of a severity that can reasonably be expected to give rise to
the alleged pain. Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir. 1986); Landry, 782 F.2d
at 1553. Thus, if the Commissioner fails to articulate reasons for refusing to credit a
claimant's subjective pain testimony, the Commissioner has accepted the testimony as true
as a matter of law. This standard requires that the articulated reasons must be supported by
substantial reasons. If there is no such support then the testimony must be accepted as true.
Hale, 831 F.2d at 1012.
In this case, the ALJ applied the three-part pain standard when discussing Sheppard’s
complaints of pain. Specifically, the ALJ found:
With regard to mechanical pain in knees and lower back, and legs the claimant
testified that she has pain in the lower back, both knees, and down the left
knee. She rated her lower back pain at an 8, left knee pain at a 8, right knee
pain at an 8 ½ - 10 and legs at an 8 since 2009. She said that the worse
problem is her back and knees and standing for a long time due to pain. The
evidence of record shows limited treatment with Dr. Jones for bilateral knee
pain, legs, hands, and back. (Exhibit B-7F). She had only one emergency
room visit in August 2010 for right ankle, leg, knee, and thigh pain (Exhibit
B-8F). At the evaluation with Dr. Puttu in August 2009 the claimant reported
low back pain that radiates to the posterior leg (Exhibit B-5F). She rated her
pain at an 8 in her lower back and a 9 in her knees. She stated that the pain is
worse with weight bearing, walking, and going down stairs. Dr. Puttu
diagnosed lower back pain and knee and joint pain.
The undersigned finds this impairment to be non-disabling, as the
claimant had very limited treatment (See Exhibit B-7F). When seen by Dr.
Puttu, she reported that medication relieved her pain. Also, the claimant does
not participate in physical or other rehabilitative services for pain, has not been
referred for pain management evaluation and has not been prescribed extensive
narcotic medications for pain. Furthermore, she has not required any recent
emergency room visits, hospitalizations, unscheduled doctor’s visits on a
continuing basis, or referral to a specialist.
The undersigned noted that the claimant has used a cane since June 2009, but
the cane was not prescribed. There is nothing in the record to support her
allegation for the use of a cane. Also, the undersigned notes that in Exhibit B7F the claimant was diagnosed with hand pain and/or numbness but there is no
medically determinable impairment for her alleged hand pain.
As for the opinion evidence, the undersigned gives substantial weight to Dr.
Puttu who indicated that the claimant has multiple problems, some of them
have evaluated well on regular treatment, needs to lose weight, and physical
therapy will help her back pain and knee pain (Exhibit B-5F). His opinion is
supported by his own clinical examination and testing as discussed above.
. . . In addition, the record is void of neurological deficits, muscle atrophy, or
weight loss, generally associated with protracted severe pain, nor is there any
evidence of renal damage, cerebrovascular accident(s), generally associated
with prolonged uncontrolled hypertension.
Although some of the claimant’s impairments could be expect[ed] to produce
pain, the undersigned finds that such appears to be mild to moderate, and such
limitations have been factored in the Finding of Fact Number 4.
The ALJ considered Sheppard’s testimony and discussed the medical evidence. The
ALJ acknowledged that Sheppard’s impairments could be expected to produce some pain,
but not to the severity as alleged. Where an ALJ decides not to credit a claimant’s testimony,
the ALJ must articulate specific and adequate reasons for doing so, or the record must be
obvious as to the credibility finding. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir.
1995); Jones v. Dept. of Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991)
(articulated reasons must be based on substantial evidence). If proof of disability is based
on subjective evidence and a credibility determination is, therefore, critical to the decision,
“‘the ALJ must either explicitly discredit such testimony or the implication must be so clear
as to amount to a specific credibility finding.’” Foote, 67 F.3d at 1562, quoting Tieniber, 720
F.2d at 1255 (although no explicit finding as to credibility is required, the implication must
be obvious to the reviewing court). The ALJ has discretion to discredit a plaintiff’s
subjective complaints as long as he provides “explicit and adequate reasons for his decision.”
Holt, 921 F.2d at 1223.
Relying on the treatment records, objective evidence, and
Sheppard’s own testimony, the ALJ concluded that her allegations regarding her pain were
not credible to the extent alleged and discounted that testimony. After a careful review of
the ALJ’s analysis, the court concludes that the ALJ properly discounted the plaintiff’s
testimony and substantial evidence supports the ALJ’s credibility determination.
The evidentiary materials support the ALJ’s conclusion that, while Sheppard’s knee,
back, hand, and joint pain could reasonably be expected to produce pain, her impairments are
not so severe as to give rise to disabling pain. The medical records indicate that Sheppard
sought limited treatment for her impairments. On February 27, 2009, Sheppard presented to
Dr. Bruce Jones, a family practitioner, complaining of a sore throat and ear pain, as well as
bilateral knee pain. (R. 175.) Dr. Jones found no swelling or redness in the knees, no laxity,
and that she had increased pain with full range of motion. (Id.) He assessed an upper
respiratory infection, hypertension, mild obesity, and knee pain. (Id.) On July 1, 2009,
Sheppard returned to Dr. Jones with complaints of increased abdominal pain and bilateral
knee pain. (R. 173.) Dr. Jones noted full range of motion of both knees and no increased
pain or swelling. (Id.) Dr. Jones assessed mild obesity, knee pain, hypertension, and
gastritis, advised that Sheppard have “no grease”, prescribed medication, including Flexeril,
and recommended that Sheppard return for a follow-up appointment in two months. (R.
174.) On January 8, 2010, Sheppard returned to Dr. Jones complaining of lower back and
side pain over the past week. (R. 171.) Dr. Jones found that Sheppard was very obese and
that she suffered pain in her lower back upon palpation. (Id.) Dr. Jones’ diagnostic
assessment was urinary tract infection, hypertension, and mild obesity. (Id.) On February
19, 2010, Sheppard returned to Dr. Jones requesting a disability evaluation and complaining
of pain in her lower back, legs, and hands. (R. 170.) Dr. Jones noted that Sheppard’s hands
were tender and that her lower back pain increased upon palpation. (Id.)
On August 15, 2010, Sheppard presented to the Vaughan Regional Medical Center
complaining of right ankle, leg, knee, and thigh pain which began five years earlier. (R.
178.) The emergency physician noted that the severity of the pain was mild and was
exacerbated by walking or movement and that Sheppard had “painful ROM with no signs of
a vascular problem.” (R. 179.) Sheppard was assessed as suffering from right leg pain,
prescribed Ultram and Neurontin, and sent home. (Id.)
The medical records also demonstrate that there is no recommendation for a pain
management evaluation from any medical source and that she has not been prescribed
extensive narcotic medications for pain.
Furthermore, there is no record of any
hospitalizations, frequent doctor’s visits, or referrals to a specialist.
After a careful review of the record, the court concludes that the ALJ’s reasons for
discrediting Sheppard’s testimony regarding the extent of her pain were both clearly
articulated and supported by substantial evidence. In addition, the court concludes that the
ALJ properly applied the appropriate three-part pain standard when determining Sheppard’s
pain is not as severe as alleged. This court must accept the factual findings of the
Commissioner if they are supported by substantial evidence and based upon the proper legal
standards. Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
C. Side Effects of Medication. To the extent Sheppard asserts that the ALJ failed
to properly consider the effects her prescribed medications have on her ability to work, she
is entitled to no relief. The ALJ must consider the side effects of Sheppard’s medication
where their existence is supported by substantial evidence. See Swindle v. Sullivan, 914 F.2d
222, 226 (11th Cir. 1990). During the hearing, Sheppard testified that her medication causes
drowsiness. (R. 205.) The medical records indicate that Sheppard complained about the side
effects of medication on two isolated occasions. First, on September 4, 2009, Sheppard went
to the Maplesville Clinic complaining of itching and swelling. (R. 182) The physician’s
assessment was that Sheppard was suffering a reaction to Bactrim, an antibiotic, and
discontinued her prescription. The record indicates that Sheppard did not take Bactrim on a
routine basis for the treatment of any of her impairments. Consequently, Sheppard’s reaction
to Bactrim is not substantial evidence of the existence of side effects which would effect her
ability to work on a regular basis. During the August 6, 2009 consultative examination,
Sheppard reported to Dr. Puttu that she suffers from epigastric pain which is “brought on by
spicy foods and pain medication.” (R. 150.) Dr. Puttu noted that the severity of Sheppard’s
abdominal pain was moderate. (Id.) Nothing in the record, however, indicates that Sheppard
complained of the side effects of her pain medication to any treating physician. Given the
lack of medical records indicating that Sheppard’s medication caused any debilitating side
effects, the court concludes that the ALJ’s determination is supported by substantial
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that plaintiff is not disabled. Thus, the
court concludes that the decision of the Commissioner is supported by substantial evidence
and is due to be affirmed.
A separate order will be entered.
DONE this 11th day of May, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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