Mayo v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/29/2014. (PSM)

FILED
2014 Sep-29 AM 09:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

NATHANIEL M. MAYO,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
2:13-cv-0553-AKK

MEMORANDUM OPINION
Plaintiff Nathaniel M. Mayo (“Mayo”) 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. Therefore, for the reasons elaborated herein, the court will affirm the
decision denying benefits.
I. Procedural History
Mayo, whose past relevant experience includes work as an employee relationship
specialist and customer service representative, filed an application for Title II disability
insurance benefits on January 22, 2010, alleging a disability onset date of November 6,
2009, due to shoulder pain, low back pain, and diabetes (R. 10, 21, 173). After the

SSA denied Mayo’s claim, he requested a hearing before an ALJ. (R. 114-15). The
ALJ subsequently denied Mayo’s claim, (R. 7-21), which became the final decision of
the Commissioner when the Appeals Council refused to grant review. (R. 1-4). Mayo
then filed this action for judicial review pursuant to § 205(g) of the Act, 42 U.S.C.
§ 405(g). Doc. 1.
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) mandates 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)). 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

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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)-(g), 416.920(a)-(g). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

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(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

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, he 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
Id. However, medical evidence of pain itself, or of its intensity, is not required:

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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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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 Cir. 1987)].
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 testimony.
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
supported by substantial evidence, the court must accept as true the pain testimony of
the plaintiff and render a finding of disability. Id.
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IV. The ALJ’s Decision
In performing the five step analysis, the ALJ found that Mayo had not engaged
in substantial gainful activity since November 6, 2009, and, therefore, met Step One.
(R. 13). Next, the ALJ found that Mayo satisfied Step Two because he suffered from
the severe impairments of “degenerative disk disease of the lumbar spine and; left
shoulder impingement syndrome.” Id. The ALJ then proceeded to the next step and
found that Mayo failed to satisfy Step Three because he “does not have an impairment
or combination of impairments that meets or medically equals one of the listed
impairments.” (R. 15). Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step
Four where he determined that Mayo has the residual functional capacity (RFC) to
perform
sedentary work as defined in 20 CFR 404.1567(a) except he is restricted
to occasional bending and stooping; no left lower extremity
pushing/pulling movements; no bilateral overhead reaching; no
unprotected heights; and working in a temperature controlled
environment.
(R. 17). In light of his RFC, the ALJ held that Mayo “is capable of performing past
relevant work as an employee relationship specialist (sedentary, skilled work) and
customer service representative (sedentary, skilled work).” (R. 21). Therefore, the ALJ
found that Mayo “has not been under a disability, as defined in the Social Security Act,
from November 6, 2009, through the date of this decision.” Id.

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V. Analysis
Mayo’s sole contention on appeal is that the ALJ failed to properly evaluate his
credibility consistent with the Eleventh Circuit’s pain standard. See doc. 9 at 3.
Relevant to this contention, the court notes that Mayo testified that he stopped working
in November 2009 because of issues related to his back surgery, and that although his
pain medication helps to the point where he can rest, his pain averages between seven
and eight on a ten-point scale, which requires him to rest in a reclined position for about
50 percent of the day. (R. 33, 36-38). Because the ALJ found Mayo’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms,” (R. 19), Mayo met the requirements of the pain standard. At issue here is
the ALJ’s finding that Mayo’s allegations were not fully credible:
Although [Mayo] testified he experienced disabling limitations due to
physical impairments, the totality of evidentiary record does not support
those allegations. While the clinical findings of the medical record reflect
[Mayo] experiences some limitations due to his physical impairments, the
preponderance of the evidence does not support a conclusion that
[Mayo’s] limitations are as severe as alleged, or that his impairments are
disabling to the extent he is unable to perform all substantial gainful
activity.
Id. In light of his appeal, this court must review the ALJ’s finding to determine if it is
supported by substantial evidence. For the reasons stated fully below, the court finds
that the ALJ reasonably rejected Mayo’s pain testimony and articulated in detail his
reasons for doing so.

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First, the ALJ properly assessed Mayo’s credibility by noting that an examination
after Mayo’s back surgery revealed that,
although [Mayo’s] gait was slow and mildly antalgic, his posture was
normal. There were no abnormal spinal curvatures. Sensory function,
reflexes, and muscle strength were normal in the lower extremities. The
range of motion for the thoracolumbar spine was 90 degrees forward
flexion, 20 degrees extension, 20 degrees left lateral flexion, 20 degrees
left lateral rotation, 20 degrees right lateral flexion, and 20 degrees right
lateral rotation. Combined range of motion was 190 degrees. While there
was objective evidence of pain on active range of motion and pain
following repetitive motion, there were no additional limitations after
three repetitions of range of motion.
(R. 19). Moreover, the ALJ found the absence “in the treatment records of some
ongoing restrictions placed on [Mayo] by a treating doctor” weighed against finding
Mayo’s allegations of pain to be fully credible. (R. 19-20). The court finds no error
because it is proper for the ALJ to rely on the absence of restrictions in evaluating
Mayo’s credibility. See Powell v. Comm’r of Soc. Sec. , ___ F. App’x___ , 2014 WL
3377650 at *2 (11th Cir. 2014) (ALJ properly relied on lack of objective findings and
absence of restrictions imposed by physicians in assessing credibility).
Second, the ALJ found Mayo’s testimony was less credible because of his
reported activities of daily:
[Mayo] reported in his Adult Function Report at Exhibit 3E that he was
able to care for his young daughter, prepare meals three to four times per
week, clean around the house to include laundry and ironing, perform
simple household chores and repairs, go to any needed appointments such
as physical therapy, and shop for groceries three times per week. He
stated he was able to pay bills, count change, handle a savings account
and use a checkbook or money orders. He was able to use a computer and
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watch television. [Mayo] testified he drove regularly and that he drove to
the hearing.
(R. 20). This finding is also not in error because the ALJ properly considered Mayo’s
daily activities, and did not unduly rely on those activities to deny Mayo benefits. See
Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984) (finding the ALJ properly
considered daily activities in assessing credibility).
Finally, the ALJ assigned persuasive weight to the opinions of Mayo’s treating
physicians, and noted
that none of the treatment records of [Mayo’s] treating physicians
indicated that [Mayo] experienced pain or other subjective
symptomatology to such a degree as to render him totally disabled, and
there are no treatment notes that placed such significant exertional,
postural, or environmental restrictions on him that would preclude all
forms of substantial gainful activity.
(R. 20). As the ALJ correctly observed, treatment records following Mayo’s back
surgery show that “x-rays revealed satisfactory postoperative alignment” at the surgical
site, and that Dr. Martin Jones, who performed the surgery on Mayo’s back, reported
Mayo was doing okay when he saw Mayo on November 19, 2009. (R. 14, 534).
Moreover, Dr. Jones opined on December 1, 2009, that Mayo “has done fairly well
since the surgery,” and that he was expected to improve over the next month or so. (R.
451). At this time, Dr. Jones stated that Mayo “has restrictions of no lifting, pushing or
pulling over 10 lbs., no repetitive bending or stooping, no climbing, no crawling, and
no repetitive twisting.” Id. These restrictions are consistent with the ALJ’s RFC

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finding for sedentary work, see 20 C.F.R. § 404.1567(a), and provide substantial
evidence to support the ALJ’s credibility finding. Indeed, contrary to Mayo’s assertion
that Mayo’s longitudinal treatment history supports his allegations of disabling pain,
Mayo’s failure to return to his treating surgeon belies his allegations of continuous
disabling pain following his back surgery.
Ultimately, based on this record, Mayo has failed to show that the ALJ erred in
failing to credit his testimony of disabling pain. In fact, the ALJ articulated specific
reasons for discounting Mayo’s testimony of disabling symptoms – all of which are
supported by substantial evidence. Moreover, even though the ALJ did not credit
Mayo’s testimony of disabling symptoms, he recognized that Mayo had some limitations
as reflected in his RFC for a reduced range of sedentary work. (R. 17). Therefore,
based on this record, the court finds that substantial evidence supports the ALJ’s
determination that these restrictions account for Mayo’s symptoms. Accordingly,
because this court does not reweigh the evidence, there is no reversible error in the
ALJ’s credibility finding.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Mayo is not disabled is supported by substantial evidence, and that the ALJ applied
proper legal standards in reaching this determination. Therefore, the Commissioner’s

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final decision is AFFIRMED. A separate order in accordance with the memorandum
of decision will be entered.
DONE this 29th Day of September, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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