Law v. Colvin
MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 4/15/2016. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
PATRICIA WOOD LAW,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO. 2:15cv614-TFM
Plaintiff Patricia Wood Law (“Law”) applied for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 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
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.
entry of final judgment by the United 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.
(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
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(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 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).
A. The ALJ’s Decision. Law was 59 years old at the time of the hearing. R. 29.
She has prior work experience as a home healthcare worker. R. 31. Law alleges that she
became disabled on January 24, 2012, due to shoulder, neck, hip and back pain,
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).
osteoporosis, arthritis, and diabetes. R. 32-47. After the hearing, the ALJ found that Law
suffers from severe impairments of mild degenerative disc disease, scoliosis, diabetes
mellitus, osteoarthritis, and hypertension plus non-severe impairments of osteopenia,
hyperlipidemia, a history of tobacco use with lung nodules, and chest pain. R. 14. The ALJ
found that Law has the residual functional capacity to perform medium work with
limitations. Specifically, the ALJ found:
The claimant could lift and carry up to 50 pounds occasionally and 25
pounds frequently. She could push push and pull within those same exertional
limitations on the left, but only occasionally push and pull with the dominant,
right upper extremity. She could stand or walk about 6 hours and could sit for
at least 6 hours out of an 8-hour workday. She could frequently stoop, crouch,
kneel, crawl, and climb – but not ladders, ropes, or scaffolding. She could
only occasionally reach overhead on the right and no more than frequently
reach laterally or out from the body. She could perform tasks not involving
operation of vibrating tools or equipment and tasks not involving exposure to
workplace hazards such as unprotected heights and dangerous moving
R. 15. The ALJ determined that Law is unable to return to her past work. R. 18. Relying
in part on testimony from a vocational expert, the ALJ concluded that Law is capable of
performing work as a hospital cleaner, broom bundler, and crate liner. R. 19. Accordingly,
the ALJ concluded that Law is not disabled. Id.
B. The Plaintiff’s Claim. Law’s sole contention is “whether the Administrative Law
Judge failed to give adequate consideration to medical evidence of record and Plaintiff’s
testimonial evidence of [her] alleged right shoulder condition.” Doc. 12, Pl’s Br., p. 1, 5.
Specifically, Law asserts that the ALJ failed to enter any findings regarding the severity of
her shoulder impairment or consider the opinion of Dr. Dexter Walcott, an orthopedic
The medical records indicate that Law sought treatment for her shoulder condition
once during the relevant time period. On April 27, 2012, Law went to Dr. David J. Knapp,
a doctor of internal medicine, complaining of right shoulder pain. R. 237. Dr. Knapp’s
diagnostic assessment was osteoarthrosis of the primary shoulder and pleuritic chest wall
pain. R. 238. Dr. Knapp ordered an injection of Depo Medrol and prescribed Prednisone.
Two years later, Law sought additional treatment from a medical specialist for her
shoulder condition. On May 23, 2014, Law went to Dr. Walcott complaining of “right
shoulder and arm pain for probably the last couple of years getting worse” and that it was
“[h]ard to lift, pull, push and reach above her head.” R. 280. Dr. Walcott’s diagnostic
impression was “right shoulder likely rotator cuff tear, impingement, acromioclavicular (AC)
arthrosis.” R. 280. On June 4, 2014, Law underwent an MRI which indicated “AC arthrosis
without impingement. Complete tearing with retraction of the supraspinatus tendon and
intrasubstance tearing of the infraspinatus tendon.” R. 281. During a follow-up appointment
on June 6, 2014, Dr. Walcott recommended surgery, noting that Law decided to “work on
some things she has going on and then call . . . and let [him] know when she wants to get set
up for outpatient arthroscopic right rotator cuff repair, acromioplasty, distal clavicle
resection.” R. 278. The following day, Law requested an injection of Depo-Medrol. Id.
First, Plaintiff’s argument that the ALJ failed to consider the severity of her shoulder
impairment is unavailing. During the relevant time period, Dr. Knapp assessed that Law
suffered from osteoarthrosis of the primary shoulder and administered one injection. R. 238.
The ALJ specifically found at Step Two of the sequential evaluation that Law’s osteoarthritis
is a severe impairment. R. 14. Thus, the ALJ considered the severity of Law’s shoulder
Law also argues that the ALJ failed to consider her testimony regarding her shoulder
pain. During the hearing, Law testified that throughout 2012 she suffered from arthritis pain
in her neck, back, hip, and right shoulder all the time. R. 40. She also stated that lifting a
vacuum cleaner or anything over ten or more pounds caused pain. R. 43. In addition, she
testified that injections were effective for no more than a day or two and that her pain was
between an 8 and 10 on a scale of 10-point scale at least four days a week. R. 46, 48.
“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.
The ALJ considered Law’s testimony and discussed the medical evidence. The ALJ
acknowledged that the “medical signs and laboratory findings do substantiate the claimant’s
physical impairment and is supportive that this impairment is capable of producing the
alleged pain,” but “conclude[d] that [her] subjective pain complaints are not fully credible
and the record supports this inconsistency of subjective complaints versus objective findings
on examination.” R. 17. The ALJ specifically found that Law’s medical treatment was
routine and conservative in nature with no evidence of significant pain management efforts.
Id. In addition, he noted that “there is one instance of Depo Medrol injection within the
period at issue; however, there are no complaints of severe pain in subsequent visits.” Id.
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 Law’s own testimony, the ALJ
concluded that her allegations regarding 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 medical records support the ALJ’s conclusion that, while Law’s shoulder
condition could reasonably be expected to produce pain, her shoulder impairment was not
so severe as to give rise to disabling pain during the relevant time period. As previously
discussed, Dr. Knapp’s notes indicate that Law sought treatment for her shoulder pain on one
occasion in 2012 and that her condition was treated conservatively. Thus, the ALJ had good
cause to discount Law’s testimony.
To the extent Law argues the ALJ erred in failing to discuss Dr. Walcott’s findings,
this court concludes that any error is harmless. Law contends that Dr. Walcott’s diagnosis
of a rotator cuff tear and his note indicating that she suffered from shoulder pain for two
years establishes that her pain is so severe as to prevent her from performing work. The
problem is that Law did not seek treatment from Dr. Walcott during the relevant time period.
In addition, Dr. Walcott did not specifically find that Law suffered from severe pain for two
years. Dr. Walcott’s notes indicate that Law reported “right shoulder and arm pain for
probably the last couple of years getting worse.” R. 280. There is no doubt that Law’s
condition worsened over time; however, there is no medical evidence indicating that the
rotator cuff tear occurred during the relevant time period and this court will not speculate as
to the timing of the injury. Moreover, Dr. Walcott’s records indicate that Law chose to forgo
surgery for the rotator cuff injury. Consequently, Dr. Walcott’s diagnosis which falls outside
the relevant time period would not in any way change the outcome of the ALJ’s decision.
After a careful review of the record, the court concludes that the ALJ’s reasons for
discrediting Law’s testimony regarding pain were both clearly articulated and supported by
substantial evidence. To the extent that Law is arguing that the ALJ should have accepted
her testimony regarding her pain, as the court explained, the ALJ had good cause to discount
her testimony. 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).
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 15th day of April, 2016.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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