Argo v. Commissioner, Social Security Administration
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 04/23/12. (CVA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
PATRICIA DIANNE ARGO,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
2012 Apr-23 PM 12:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
Civil Action Number
Plaintiff Patricia Dianne Argo (“Argo”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge’s
(“ALJ”) decision—which has become the decision of the Commissioner—is
supported by substantial evidence, and, therefore, AFFIRMS the decision denying
I. Procedural History
Argo filed her application for Title XVI Supplemental Security Insurance
(“SSI”) and Title II Disability Insurance Benefits (“DIB”) on January 7, 2008 (R.
87-88), originally alleging a disability onset date of May 15, 2004 but later
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amending this date to November 2, 2007 (R. 80), from “fibromyalgia, scoliosis,
carpal tunnel syndrome, arthritis, narcolepsy, and depression” (R. 89). On March
28, 2008, the SSA denied her application (R. 90), and Argo requested a hearing
before the ALJ, which occurred on September 23, 2009. (R. 55-86). On October
6, 2009, the ALJ denied Argo’s claims (R. 13-27), which became the final
decision of the Commissioner when the Appeals Council refused to grant review.
(R. 1-3). Argo then filed this action for judicial review pursuant to § 205(g) and §
1631(c)(3) of the Act, 42 U.S.C. § 405(g) and § 1383(c)(3). Doc. 1. See also doc.
9, at 2.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
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Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
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whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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 disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
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.1
This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as
a matter of law, has accepted that testimony as true. Implicit in this rule is
the requirement that such articulation of reasons by the [ALJ] be supported
by substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
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supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
As a threshold matter, the court notes that the ALJ properly applied the five
step analysis. Initially, the ALJ determined that Argo had not engaged in
substantial gainful activity since November 2, 2007, and therefore met Step One.
(R. 18). The ALJ also acknowledged that Argo’s severe impairments of
fibromyalgia, degenerative joint disease (neck and lower back), hypertension,
diabetes mellitus, diabetic neuropathy, obesity, and depression met Step Two. Id.
The ALJ proceeded to the next step and found that Argo did not satisfy Step Three
since her impairments or combination of impairments neither met nor equaled the
requirements for any listed impairment. (R. 20). Although she answered Step
Three in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the
ALJ proceeded to Step Four where she determined that Argo had the residual
functional capacity (“RFC”) to
[P]erform sedentary work . . . except the claimant requires a sit/stand
option with an ability to rotate at least every 30 minutes; only
occasional overhead reaching and no pushing or pulling; simple,
routine, and repetitive tasks with no production rate or pace
requirements; and only occasional interaction with the public and coworkers.
(R. 21). Further, the ALJ held that Argo could not perform any of her past
relevant work. (R. 25). Lastly, in Step Five, the ALJ considered Argo’s age,
education, work experience, RFC, and impairments, and determined that there are
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a significant number of jobs in the national economy that Argo can perform. (R.
26). Because the ALJ answered Step Five in the negative, the ALJ determined
that Argo is not disabled. (R. 27). See also McDaniel, 800 F.2d at 1030. As it
relates to the pain standard, the ALJ found that “the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.” (R.
The court turns now to Argo’s two contentions of error—that the ALJ (1)
failed to properly consider her impairments in combination and (2) failed to
properly consider the medical evidence of record. See doc. 9. The court will
address each in turn.
Impairments in Combination
Argo argues that, while the “ALJ recites the evidence documenting [her]
impairments, . . . nowhere in her decision does [s]he properly consider these
impairments in combination.” Doc. 9, at 5. Accordingly, she concludes, the
ALJ’s decision is not “based upon substantial evidence.” Id. at 6. The court finds
Argo’s contention unpersuasive because the ALJ clearly reviewed Argo’s entire
medical history and found that “no treating, examining or reviewing physician has
suggested the existence of any impairment or combination of impairments which
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would meet or medically equal the criteria of any listed impairment.” (R. 20).
Indeed, the ALJ discussed each of Argo’s impairments but found the subjectively
alleged intensity, persistence, and limiting effects of these impairments not
supported by objective medical evidence.
As it relates to her impairments, Argo testified at the administrative hearing
that she has “a lot of problems with [her] back, and [her] legs, and stuff. And it’s
hard to sit down and bend to do the job that I done. It’s hard to sit, certain areas,
and I don’t know how long I’ll be able to sit in a chair, or I have to go lay down.”
(R. 63-64). Argo maintains that she can stand for approximately 20-30 minutes
before pain ensues, and that she can sit for 30-45 minutes before she needs to
move around, but getting up to walk after sitting helps alleviate the pain. (R. 67).
As it relates to fibromyalgia, Argo provided that “[i]t’s just like different pressure
points all over your body hurts. It’s sometimes like a toothache, and sometimes
it’s harder than that, you can hardly catch a breath. And I have good days, too,
where I don’t hurt as bad, I can sit and do things. And there are some days that I
have to lay down more than I am up.” (R. 64). Generally, Argo states that she has
four of these “bad days” a week where she has “to go lay down for two hours at a
time.” (R. 65). With her back pain, Argo asserts that “it feels like somebody’s got
a wrench, it’s twisting around like a vice grip. Like somebody’s got a hold of it at
one end, the other, and they’re just turning it around.” (R. 66). Argo takes pain
medications which makes “moving around” more tolerable, and Argo suffers from
no side effects from these medications. (R. 68). Argo also stated that she has
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“problems lifting [her] arms up over [her] head” and due to neck disc problems,
she “can’t lift [her] head back or forward, down far, because it feels like the back
of [her] head is nearly going to explode.” (R. 77).
Moreover, Argo describes her diabetic neuropathy symptoms as “my feet
and my legs from the knees down are numb. And then, at times, it feels like
somebody’s got a sharp needle, or I’d say a knife, jabbing in at different times.”
(R. 68). However, propping her feet up with a pillow between her legs helps this
pain. (R. 69). Argo also provides that she has trouble walking short distances,
and that she uses an inhaler pump as needed for shortness of breath. (R. 70-71).
Accordingly, Argo utilizes a motorized wheelchair at times. (R. 76-77). Argo
further testified that her average blood sugar rating is between 800-900, and
“[e]ven with the insulin [she’s] on, it never goes under 300.” (R. 69). In addition,
Argo takes medication for high blood pressure, and while she suffers from some
pain with elevated blood pressure levels, the medicine generally controls these
levels. (R. 70). Furthermore, although Argo took no medication for depression at
the time of the hearing, Argo complains that she suffers from depression, that she
generally wants to keep to herself, and that she does not want to get out of bed
unless she has to get out of bed. (R. 72). Finally, Argo provides that she suffers
from “obstructive sleep apnea” and “restless leg syndrome,” but she does not
utilize a CPAP machine and takes some medication for her “legs jerk[ing] during
the night.” (R. 78-79).
As it relates to Argo’s daily routine, she states that she typically wakes up
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around 10:00 a.m. and goes to bed between 10:00 and 11:00 p.m. She tries to do
laundry, fixes something to eat, and reads. (R. 73). Argo’s daughter generally
cleans the house and helps with grocery shopping. Her other children also visit or
call. (R. 74). Argo owns a dog and is able to take care of his normal daily needs.
In considering Argo’s impairments in combination, the ALJ found many
purported pain allegations exaggerated and not reasonably supported by the
objective medical evidence in the record. First, the ALJ determined that Argo
overstated her blood sugar levels and diabetic condition. (R. 24). Indeed, while
Argo stated at the administrative hearing that she averaged a blood sugar level
between 800-900, a physician found her levels between 300-500 in March 2008.
(R. 256). In October 2008, Argo claimed blood sugar levels over 400 to her
treating physician. (R. 322). Argo also reported levels between 300-400 in June
2009 to her endocrinologist, and tested to a non-fasting blood sugar level of 375 at
this physical examination. (R. 307-08). Thus, while the endocrinologist found
Argo “significantly insulin resistant,” she still maintained levels between 300-400.
(R. 308). Moreover, Argo told her physician on August 11, 2009 that “her sugars
have been o-k.” (R. 314). Accordingly, the medical evidence warrants the ALJ’s
decision to discredit Argo’s testimony regarding her severe diabetic condition and
As it relates to Argo’s obesity, the ALJ concluded that “claimant’s physical
examinations are basically normal and that the claimant alleges no specific
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limitations due to her obesity.” (R. 24). The record evidence supports this
conclusion as all of Argo’s “symptoms” arise from the other impairments, and her
September 2008 to August 2009 physical evaluations do indeed reveal normal
findings. (R. 314-323). Moreover, Argo’s medical records offer no indication of
disabling impairments created by her obesity. (R. 206-36, 290-323). Similarly,
the ALJ found that medications largely controlled Argo’s “severe” hypertension.
(R. 25). And indeed, Argo’s treatment notes from September 2008 to August 2009
reveal no indication of problems with hypertension. (R. 314-323). The disability
examiner also found that with medication Argo’s hypertension is “slightly well
controlled.” (R. 256).
Furthermore, the ALJ found Argo’s purported pain levels exaggerated based
on the medical records. The ALJ concluded that “the latest treatment notes from
Dr. Klaiss between September 2008 and August 2009 reflect complaints of ‘back
discomfort’ in October 2008 and observations of decreased sensation in the feet,
but otherwise they reflect normal findings of the back and gait on physical exam
with no other back complaints and no neck complaints noted.” (R. 24). Argo’s
“Progress Notes” in September 2008 reveal some generic pain allegations, but
normal physical exam findings (R. 323); allegations of back discomfort and night
sweats in October 2008, but Argo had not taken pain medication for over two
weeks, and again, she had normal physical exam findings (R. 321); complaints of
headache and decreased sensation in the feet in December 2008, but no other pain
allegations and normal physical findings (R. 320); and finally, in August 2009,
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Argo had headaches, dizziness, and a “burning and somewhat decreased
sensation” in her feet, but still exhibited normal findings in her physical exam. (R.
315). Thus, while Argo suffers from osteoarthritis in both knees (R. 301), the
medical record as a whole supports the ALJ’s conclusion. Given this medical
evidence, a reasonable person could certainly accept the finding that Argo’s
“alleged degree of pain from her medically determinable impairments is not
credible to the extent she alleges an inability to perform within the parameters of
the . . . residual functional capacity.” (R. 24). Perhaps more importantly, by
focusing on these comprehensive “Progress Reports” prepared by Argo’s
physician, the ALJ reasonably considered the medical impairments in combination
as it relates to the overall pain levels Argo suffered.
Moreover, while addressing Argo’s pain levels and impairment symptoms in
combination, the ALJ also noted that “given the claimant’s allegations of totally
disabling symptoms, one might expect to see some indication in the treatment
records of restrictions placed on the claimant by her treating physician. A review
of the record, however, reveals no restrictions recommended by the treating
physician.” (R. 25). Based on a thorough review of Argo’s medical records, the
court agrees with the ALJ. In other words, there is substantial evidence—or lack
thereof—for the ALJ’s finding that the objective medical record offers no support
for Argo’s subjective pain severity level. Additionally, the ALJ properly
discredited the “complaints of disabling symptoms and limitations” because
Argo’s psychiatric progress reports from March 2009 reveal that she needed to
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“return items to stores from impulsive spending sprees,” and that she babysat her
grandson. (R. 24, 290).
The ALJ also found that Argo suffers from some depression, but cited
Argo’s November 5, 2007 physician notes that Argo is “less depressed” and
testimony that she no longer takes medication for depression (R. 25, 72, 210).
The ALJ further stated that “the record generally reflects situational depression
with family problems at times but otherwise primarily physical limitations that
affect the claimant’s ability to work.” (R. 25). Argo’s counseling notes confirm
the ALJ’s finding of depression in May 2007 (R. 228, 230, 231), June 2007 (R.
224), September 2007 (R. 213, 215), October 2007 (R. 211), July 2008 (R. 294),
and March 2009 (R. 290, 292). Indeed, Argo’s March 2008 psychological
evaluation provides that she suffers from “mild to moderate symptoms of
depression.” (R. 252). However, Argo apparently made no subjective depression
complaints in August 2009 or April 2009 (R. 315, 317), and indeed, Argo no
longer takes medication for depression (R. 72). Thus, the ALJ properly
considered Argo’s depression symptoms, and the substantial evidence supports the
AJL’s conclusion of mild depression that is not disabling.
Finally, in addition to analyzing the objective medical evidence of Argo’s
impairments in relation to Argo’s subjective allegations of severity and pain, the
ALJ stated that another “factor influencing the conclusions reached in this
decision is the claimant’s generally unpersuasive demeanor while testifying at the
hearing. The claimant walked into the hearing without any display of pain or
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other abnormality. Also, she sat for the entirety of the hearing without fidgeting or
changing position.” (R. 25). The ALJ noted however that “this observation is
only one among many being relied on in reaching a conclusion regarding the
credibility of the claimant’s allegations and the claimant’s residual functional
capacity.” (R. 25).
In closing, while Argo correctly contends that “[w]hen ‘a claimant has
alleged a multitude of impairments, a claim for social security benefits may lie
even though none of the impairments, considered individually, is disabling,’”
Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987) (quoting Bowen v. Heckler,
748 F.2d 629, 635 (11th Cir.1984)), by exhaustively evaluating each of Argo’s
alleged sources of pain or impairment—and finding that the objective medical
evidence fails to support the severity and intensity of these allegations—the ALJ
sufficiently considered Argo’s impairments in combination. Indeed, the Eleventh
Circuit in Walker found the ALJ in error because he “made specific reference only
to [claimant’s] left ankle and obesity. The ALJ’s findings do not mention
[claimant’s] arthralgias in the right knee, phlebitis in the right arm, hypertension,
gastrointestional problems, or asthma, except to the extent that these ‘subjectiv[e]
complain[t]s do not establish disabling pain.’” Id. Conversely, here, the ALJ
discussed and analyzed each of Argo’s medical impairments—fibromyalgia,
obesity, diabetic condition, hypertension, back/neck pain, osteoarthritis in leg/foot,
and depression—and reached its conclusion based on all of these impairments. (R.
24-25). See also Hudson v. Heckler, 755 F.2d 781, 784 (11th Cir. 1985) (“The
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ALJ did not ignore appellant’s subjective complaints of pain; she simply found
them not credible to prove disabling pain.”); Wilson v. Barnhart, 284 F.3d 1219,
1224-25 (11th Cir. 2002) (citing Jones v. Dept. of Health and Human Servs., 941
F.2d 1529, 1533 (11th Cir.1991), for the proposition “that the following statement
by an ALJ evidenced consideration of the combined effect of a claimant’s
impairments: while ‘[the claimant] has severe residuals of an injury to the left heel
and multiple surgeries on that area, [the claimant does not have] an impairment or
combination of impairments listed in, or medically equal to one listed in Appendix
1, Subpart P, Regulation No. 4.’”) (alteration in original).
Medical Evidence of Record
Argo also contends that the ALJ improperly exercised “sit and squirm
jurisprudence” by considering Argo’s demeanor at the hearing when discrediting
her allegations of disabling pain. Doc. 9, at 6-7 (citing R. 25). The court
disagrees because the ALJ discussed Argo’s demeanor at the administrative
hearing as one factor of many that contradicted her complaints of disabling
impairments. (R. 25). The Eleventh Circuit defines “sit and squirm
jurisprudence” as when “an ALJ who is not a medical expert will subjectively
arrive at an index of traits which he expects the claimant to manifest at the
hearing. If the claimant falls short of the index, the claim is denied.” Freeman v.
Schweiker, 681 F.2d 727, 731 (11th Cir. 1982). However, here, there is no
indication that the ALJ “subjectively arrive[d] at an index of traits;” rather, the
ALJ found insufficient objective medical evidence supporting Argo’s alleged
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disabling impairments or pain levels and added Argo’s demeanor as an additional
factor in the findings. Accordingly, the ALJ’s approach comports with the
Eleventh Circuit’s decision in Macia v. Bowen, 829 F.2d 1009, 1011 (11th Cir.
1987), where the court found no error in “[t]he ALJ  not[ing] [claimant’s]
demeanor but  not discredit[ing] [claimant’s] testimony solely on this basis.” See
also Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (upholding ALJ’s
decision where “ALJ systematically articulated his reasons for rejecting
[claimant’s] subjective complaints of pain”). Thus, by considering Argo’s
objective medical records in conjunction with properly discredited subjective pain
testimony, the court finds no error in the ALJ’s comments about Argo’s demeanor
at the ALJ hearing.
Based on the foregoing, the court concludes that the ALJ’s determination
that Argo is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. The final decision
of the Commissioner is, therefore, AFFIRMED. A separate order in accordance
with this memorandum of decision will be entered.
Done the 23rd day of April, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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