McLain v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 3/29/16. (SMH)
2016 Mar-29 PM 04:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EDDIE WYATT MCLAIN,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CASE NO. 2:14-CV-2043-SLB
Plaintiff Eddie Wyatt McLain brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the Commissioner of Social Security’s final decision denying his
application for a period of disability and disability insurance benefits [DIB]. Upon review
of the record and the relevant law, the court is of the opinion that the Commissioner’s
decision is due to be affirmed.
I. PROCEDURAL HISTORY
Mr. McLain filed an application for DIB on June 3, 2012, alleging disability
beginning on February 9, 2009. (Doc. 6-3 at R.28; see doc. 6-4 at R.135.)1 His application
was denied initially. (Doc. 6-3 at R.28; doc. 6-5 at R.84.) Thereafter, he requested a hearing
before an Administrative Law Judge [ALJ], which was held on May 29, 2013, in
Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as “R.___”.
Birmingham, Alabama. (Doc. 6-3 at R.28, R.44; see doc. 6-5 at R.92.) After the hearing,
the ALJ found that, although Mr. McLain was unable to perform any past relevant work, he
was “capable of making a successful adjustment to other work that existed in significant
numbers in the national economy.” (Doc. 6-3 at R.37.) In light of this finding, the ALJ
denied Mr. McLain’s request for a period of disability and DIB on August 15, 2013. (Id. at
Mr. McLain then requested review of the ALJ’s Decision by the Appeals Council.
(See id. at R.19.) The Appeals Council “found no reason under [its] rules to review the
Administrative Law Judge’s decision. Therefore, [it] denied [Mr. McLain’s] request for
review.” (Id. at R.1.) The ALJ’s decision is the final decision of the Commissioner. (Id.)
Following denial of review by the Appeals Council, Mr. McLain filed an appeal in
this court. (See generally doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one: “Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner, and
whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court
gives deference to factual findings. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.
1991). The court “may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to
determine if the decision reached is reasonable and supported by substantial evidence.”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir.1983)) (internal quotations and other citation omitted). “The
Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990);
Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). “Substantial evidence” is “more than
a scintilla and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “No . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for a period of disability and DIB. See 20 C.F.R.
§ 404.1520(a)(1)-(2); see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). “[A]n
individual shall be determined to be under a disability only if his physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. §
The specific steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”2
20 C.F.R. § 404.1572. If the claimant is working and that work is substantial gainful activity,
The regulations state:
(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 404.1572.
the Commissioner will find that the claimant is not disabled, regardless of the claimant’s
medical condition or his age, education, and work experience. 20 C.F.R. § 404.1520(b).
“Under the first step, the claimant has the burden to show that [he] is not currently engaged
in substantial gainful activity.” Reynolds-Buckley v. Commissioner of Social Sec., 457 Fed.
Appx. 862, 863 (2012).3
The ALJ found that Mr. McLain had “not engage[d] in substantial gainful activity
during the period from his alleged onset date of February 9, 2009[,] through his date last
insured of December 31, 2010.” (Doc. 6-3 at R.31.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c). “[A] ‘physical or mental impairment’
is an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3). The regulations provide: “[I]f you do not have any
impairment or combination of impairments which significantly limits your physical or mental
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
ability to do basic work activities, we will find that you do not have a severe impairment and
are, therefore, not disabled. We will not consider your age, education, and work experience.”
20 C.F.R. § 404.1520(c). “An impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the individual that it would not be
expected to interfere with the individual’s ability to work, irrespective of age, education, or
work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R.
A complainant may be found disabled based on a combination of
impairments even though none of the individual impairments alone are disabling. Walker v.
Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 404.1523. A claimant has
the burden to show that he has a severe impairment or combination of impairments.
Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Mr. McLain had the following severe impairments: “post herpetic
neuralgia and trigeminal neuralgia.” (Doc. 6-3 at R.31.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets or is equivalent to any one of the listed
impairments, which are impairments that are so severe as to prevent an individual with the
described impairment from performing substantial gainful activity.
20 C.F.R. §
404.1520(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If
the claimant’s impairment meets or equals an impairment listed in the regulations, the
Commissioner must find the claimant disabled, regardless of the claimant’s age, education,
and work experience. 20 C.F.R. § 404.1520(d). The claimant has the burden of proving that
his impairment meets or equals the criteria contained in one of the Listings.
Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that, between February 9, 2009, and December 31, 2010, Mr. McLain
did not have an impairment or combination of impairments that met or medically equaled one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I. (Doc. 6-3 at R.33.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment or combination of impairments does not meet or equal the criteria
of a Listing, the claimant must prove that his impairment or combination of impairments
prevents him from performing his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv),
(f). At step four, the Commissioner “will first compare [her] assessment of [the claimant’s]
residual functional capacity [RFC] with the physical and mental demands of [the claimant’s]
past relevant work. 20 C.F.R. § 404.1560(b). “Past relevant work is work that [the claimant
has] done within the past 15 years, that was substantial gainful activity, and that lasted long
enough for [him] to learn to do it. 20 C.F.R. § 404.1560(b)(1). If the claimant is capable of
performing his past relevant work, the Commissioner will find he is not disabled. 20 C.F.R.
§ 404.1560(e). The claimant bears the burden of establishing that the impairment or
combination or impairments prevents him from performing his past relevant work.
Reynolds-Buckley, 457 Fed. Appx. at 863.
Based on his consideration of “all symptoms and the extent to which these symptoms
[could] reasonably be accepted as consistent with the objective medical evidence and other
evidence,” the ALJ found, “[b]etween February 9, 2009, and December 31, 2010, [Mr.
McLain] had the [RFC] to perform medium work as defined in 20 CFR 404.1567(c) which
allowed for no driving, no unprotected heights, and no operation of hazardous machinery.”
(Doc. 6-3 at 33.) Based on the RFC, the ALJ found that Mr. McLain could not perform his
past relevant work as a homebuilder or as a director of an educational program. (Id. at R.36.)
5. Other Work in the National Economy
If the claimant establishes that he is unable to perform his past relevant work, the
Commissioner must show that the claimant – in light of his RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. §
404.1520(c)(1). The regulations provide:
If we find that your [RFC] is not enough to enable you to do any of your
past relevant work, we will use the same [RFC] assessment we used to decide
if you could do your past relevant work when we decide if you can adjust to
any other work. We will look at your ability to adjust to other work by
considering your [RFC] and your vocational factors of age, education, and
work experience. Any other work (jobs) that you can adjust to must exist in
significant numbers in the national economy (either in the region where you
live or in several regions in the country).
20 C.F.R. § 404.1560(c)(1). If the claimant is not capable of performing such other work,
the Commissioner must find the claimant is disabled. 20 C.F.R. § 404.1520(f). If, however,
the Commissioner finds that the claimant can perform other work, the claimant has the
burden to prove he is not capable of performing such other work.
The ALJ found that Mr. McLain, who was born in 1956, was a person of advanced
age. (Doc. 6-3 at 36.) He found Mr. McLain had a master’s degree and could communicate
in English. (Id.) He also found that “[t]ransferability of job skills [was] not material to the
determination of disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is ‘not disabled,’ whether or not the claimant has
transferable job skills.” (Id.)
The ALJ consulted a vocational expert [VE]; the VE testified that an individual with
Mr. McLain’s RFC and vocational factors could perform jobs that exist in significant
numbers in the national economy, including packager and industrial cleaner. (Id. at R.37,
R.74-75.) Based on this testimony, the ALJ found Mr. McLain could make a successful
adjustment to perform other work. (Id. at R.37.)
Therefore, the ALJ found that Mr. McLain had not been under a disability at any time
from February 9, 2009, the alleged onset date, through December 31, 2010, the date last
B. MR. McLAIN’S ISSUES ON APPEAL
On appeal, Mr. McLain contends:
I. [The] ALJ . . . failed to properly evaluate Plaintiff’s pain-based claim under
the Eleventh Circuit Pain Standard.
II. The ALJ erred by failing to make a properly supported credibility finding
for the Plaintiff.
III. The ALJ rejected the only opinion evidence of record and thus has
improperly based his [RFC] findings on only his own lay opinion.
(Doc. 1 at 1-2.) For the reasons set forth below, the court finds that the Commissioner’s
decision is due to be affirmed.
1. Medical Opinion Testimony and the RFC
Mr. McLain contends that the ALJ improperly discounted the weight accorded the
opinions of his treating physicians and improperly based his RFC finding on his own opinion.
(Doc. 1 at 24.)
Unfortunately, [Mr. McLain’s] contention is legally unsound and factually
incorrect, in part, because [Mr. McLain] overlooks that the regulations and the
law of this circuit do not require the ALJ to rely on a medical source opinion
when assessing RFC. Rather, the pertinent regulation provides that opinions
on issues reserved to the Commissioner are not medical opinions:
Opinions on some issues, such as the examples that follow, are not
medical opinions, . . . but are, instead, opinions on issues reserved to
the Commissioner because they are administrative findings that are
dispositive of a case; i.e., that would direct the determination or
decision of disability.
20 C.F.R. [§] 404.1527(d) . . . . One of the specifically reserved examples is
a claimant’s RFC: “Although we consider opinions from medical sources on
issues such as . . . your residual functional capacity . . . the final responsibility
for deciding these issues is reserved to the Commissioner.” 20 C.F.R. [§]
404.1527(d)(2) . . . . Consequently, the Eleventh Circuit has recognized that
“the task of determining a claimant’s residual functional capacity and ability
to work is within the province of the ALJ, not of doctors.” Robinson v. Astrue,
365 F. App’x 993, 999 (11th Cir. 2010). Moreover, an ALJ’s RFC finding can
be supported by substantial evidence even without a medical source statement
in the record. See Green v. Soc. Sec. Admin., 223 F. App’x 915, 922–23 (11th
Cir. 2007)(rejected the claimant’s argument “that without [the physician’s]
opinion, there [was] nothing in the record” to support the ALJ’s RFC
assessment). In other words, contrary to [Mr. McLain’s] contention, the ALJ
does not commit an error if the ALJ’s RFC is not based on a medical source
Scott v. Colvin, No. 3:12-CV-3880-AKK, 2014 WL 4187444, at *3-4 (N.D. Ala. Aug. 18,
Therefore, to the extent Mr. McLain contends the decision of the Commissioner is due
to be reversed merely because the RFC was not based on a medical source opinion, such
contention is rejected.
As to his contention that the ALJ erred in rejecting medical source opinions, the court
finds no error. “Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis,
what [the claimant] can still do despite impairment(s), and [the claimant’s] physical or mental
restrictions.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178-79 (11th Cir.
2011)(quoting 20 C.F.R. § 404.1527(a)(2)). As to the medical opinions attached to Mr.
McLain’s brief and the State medical consultant, the court finds no error in the ALJ’s failure
to consider these opinions because they do not relate to the time before Mr. McLain’s date
last insured. “[F]ederal courts are limited to reviewing ‘the decision of the ALJ as to whether
the claimant was entitled to benefits during a specific period of time,’” in this case, the time
between the alleged onset date, February 9, 2009, and the date last insured, December 31,
2010. Haggermaker v. Colvin, No. 5:14-CV-1855-AKK, 2015 WL 5579557, at *4 (N.D.
Ala. Sept. 23, 2015)(quoting Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 1999)).
“Evidence of deterioration of a previously-considered condition may subsequently entitle a
claimant to benefit from a new application, but it is not probative of whether a person is
disabled during the specific period under review.” Id. (quoting Enix v. Comm’r of Soc. Sec.,
461 Fed. Appx. 861, 863 (11th Cir. 2012)(citing Wilson, 179 F.3d at 1279)). Therefore, such
“[e]vidence is irrelevant and immaterial when it relates to a time period after the eligibility
determination at issue.” Carroll v. Soc. Sec. Admin., Com’r, 453 Fed. Appx. 889, 892 (11th
Cir. 2011)(citing Wilson, 179 F.3d at 1278-79)(emphasis added).
As for the relevant time period, the medical records show the following:
Mr. McLain was seen at the emergency room at the University of Alabama at
Birmingham [UAB] Hospital on February 6, 2009, “complaining of a severe right-sided
headache that began [on February 5, 2009].” (Doc. 6-8 at R.217.) He reported his headache
“originate[d] from the base of the skull, but it [was] most prominent over [his] right temporal
area. Additionally, he [had] some tingling as well as some pain over his right eye
superficially.” (Id.) He was diagnosed with a migraine headache and released with a
prescription for Fiorinal. (Id. at R.217-18.) After treatment in the emergency room and at
the time he was released, Mr. McLain reported that his pain was 2/10. (Id. at R.218.)
Two days later, on February 8, 2009, Mr. McLain returned to the UAB emergency
room complaining of “right-sided facial pain.” (Id. at R.221.) “[U]pon presentation he . .
. complain[ed] of a rash over his right forehead and eye as well as induration of his right
eyelid.” (Id. at R.224.) On examination, Mr. McLain had severe tenderness upon palpation
over the right facial area and the region of V1 of the cranial nerve. (Id. at R.221.) He was
diagnosed with herpes zoster, shingles, in a V1 distribution and admitted to the hospital. (Id.
at R.225.) He “steadily improved over the course of his [three-day] hospital stay,” and he
was discharged on day four in “good” condition. (Id. at R.225-26.)
On March 3, 2009, Steven Rudd, M.D., examined Mr. McLain; at that time, Dr. Rudd
noted that Mr. McLain’s “chief complaint” was “I just had shingles, and my face is giving
me fits.” (Id. at R.235.) Dr. Rudd wrote in his note, “At this point, the patient is most
concerned about drawing sensation through the face and occasional sharp pain through the
cheek and occasionally through the neck and down the right arm.” (Id.) On examination,
he noted Mr. McLain had “some extreme sensitivity in the right V1 and V2 trigeminal
distributions.” (Id. at R.236.) Dr. Rudd advised Mr. McLain “to be aggressive with
treatment at this point to prevent[ ] a full blown neuralgia syndrome from evolving.” (Id.)
Dr. Rudd ordered additional diagnostic testing to rule out the possibility of postherpetic
aneurysm or structural trigeminal lesion. (Id.)
An enhanced magnetic resonance imaging [MRI] of Mr. McLain’s brain revealed “a
few small, rounded, discrete regions of increased T2 signal intensity appear subcortically and
are not associated with restricted diffusion;” otherwise, the remainder of this MRI and the
other imagining tests were normal. (Id. at R. 238-45.)
Mr. McLain returned to Dr. Rudd on March 10, 2009. (Doc. 6-12 at R.389.) He told
Dr. Rudd that he had “gained a fair amount of relief in the facial pain, while the numbness
linger[ed]. (Id.) Dr. Rudd reported his clinical impression as “[s]ome post shingles
neuralgia, improving, with no evidence on MR imaging . . . of serious complications such
as intracranial aneurysm or the like.” (Id. at 390.)
Mr. McLain had an electromyogram [EMG] study, which was normal. (Doc. 6-8 at
R.243.) Dr. Rudd noted that the EMG did not show “denervation or other significant
abnormalities,” and his impression was the EMG was a “[n]ormal study, with good
prognostic signs as far as possible involvement of branches of the facial nerve or peripheral
nerves in the right or left arm are concerned.” (Id.)
On April 6, 2009, Mr. McLain returned to Dr. Rudd. (Doc. 8-12 at R.392.) He
reported that he had “definitely noticed a shrinking of the painful spot on [his] brow,” and
that he had “conscientiously [taken] himself off the stronger nonspecific analgesics.” (Id.)
As his “clinical impression,” Dr. Rudd noted that Mr. McLain’s postherpetic neuralgia was
“resolving.” (Id. at R.393.)
Mr. McLain returned to Dr. Rudd on May 5, 2009, at which time Mr. McLain reported
that “[t]he pain is fairly dramatically better, but he [was] still plagued by a pain localizing to
the right eye brow.” (Id. at R.395.) As his “clinical impression,” Dr. Rudd noted that Mr.
McLain’s postherpetic neuralgia was “slowly resolving.” (Id. at R.396.)
Mr. McLain had a follow-up visit at the Sleep Disorder Center of Alabama and
William Adams, M.D., on May 26, 2009. (Doc. 6-13 at R.509-10.) Dr. Adams diagnosed
Mr. McLain with “[s]leep onset difficulty, currently related to pain.” (Id. at R.510.) He
noted, “The pain of shingles including involvement of the right eye and the post-herpetic
neuralgia pain is still present and still interferes with sleep. Sleep pattern is being greatly
disrupted by this illness.” (Id. at R.509.)
On May 28, 2009, Mr. McLain returned to Dr. Rudd ahead of schedule “because, after
some slow improvement in the postherpetic facial pain, he developed some more severe pain
around the eye.” (Id. at R.398.) Dr. Rudd noted that he was concerned about a vascular
component because it was not unheard of for “a neuralgia involving the face [to] take on the
characteristics of a vascular headache.” (Id. at R.399.)
On July 14, 2009, Mr. McLain reported to Dr. Rudd that “he has had no dramatic
improvement in some persistent neuralgia over the eye on his current regimen.” (Doc. 6-12
at R.401.) At this time, Dr. Rudd noted, “We have discussed options, in between this I am
going to give this four more weeks and then go ahead and make [a] referral for an
anaesthesia pain management approach, possibly using acupuncture or some proximal nerve
blocks.” (Id. at R.402.)
Mr. McLain received additional medical treatment from Thomas Kraus, D.O., for his
conditions beginning on July 29, 2009. (Id. at R.313.) Mr. McLain complained of aching,
burning, swelling, and tingling in his right eyebrow and on the right side of his skull; he
described the pain as a 7/10. (Id.) Dr. Kraus recommended Mr. McLain receive a supraorbital nerve block, which he received the following day, July 30, 2009. (Id. at R.311,
On August 3, 2009, Mr. McLain saw Dr. Rudd and told him that “a branch nerve
block with injection over the right eyebrow [took] away the unrelenting postherpetic
neuralgia for the space of an hour or so.” (Doc. 6-12 at R.404.) Dr. Rudd noted, “I am going
to keep up the Keppra . . . and make . . . Lortab available while the patient continues to get
some nerve blocks in the short term, and I am going to see if I can expedite a referral to Dr.
Winfield Fisher in the near term to see what is available for surgical approaches to facial
neuralgia.” (Id. at R.405.)
Mr. McLain returned to Dr. Kraus on August 5, 2009, and reported that he had gotten
only 24 hours of relief from the nerve block.4 (Id. at R.309.) Dr. Kraus administered a
“neurolytic peripheral nerve block, supraorbital” with botox on August 10, 2009. (Id. at
R.306, R.308.) At this time, Mr. McLain described his pain as 8/10. (Id. at R.306.)
On September 1, 2009, Mr. McLain was seen by Winfield S. Fisher, III, M.D., a
neurosurgeon at UAB. (Doc. 6-8 at R.247.) Dr. Fisher noted that Mr. McLain reported pain
between 3/10 to 8/10 and he also found that Mr. McLain had loss of pinprick sensation in his
A month earlier he had told Dr. Rudd that he received only one hour of relief from
the nerve block. (See doc. 6-12 at R.404.)
right V1 dermatome. (Id. at R.247-48.) On that same day, Mr. McLain had an MRI, which
showed “no significant abnormality to account for [his] facial pain.” (Id. at R.252.)
Mr. McLain returned to Dr. Fisher on October 13, 2009. (Id. at R.251.) Following
this appointment, Dr. Fisher noted that Mr. McLain was “quite reluctant to undergo gamma
knife therapy . . . because of the risk of numbness.” (Id.)
Mr. McLain saw Dr. Rudd on November 18, 2009. (Id. at R.407.) At this time, Dr.
Rudd decided to maintain Mr. McLain on his current regimen and schedule a return visit for
three months. (Id. at R.408.)
On February 8, 2010, Mr. McLain told Dr. Rudd that he was “30% better.” (Id. at
R.409.) Dr. Rudd noted that Mr. McLain had “settled into a pattern of gradual recovery,”
and, “[g]iven the course, as well as the EMG survey today . . . , which confirms the isolation
of the lesion to the trigeminal, with no motor involvement, I think this is an optimistic course
at this point of what was a chronic but self-limited post-herpetic neuralgia syndrome
involving the right trigeminal branches.” (Id. at R.409-10.)
On May 10, 2010, Mr. McLain told Dr. Rudd that he had some improvements in his
pain following botox injections, but he had some “sharp plunges around the eye and toward
the vertex.” (Doc. 6-12 at R.411.) Dr. Rudd noted his clinical impression was “slowly
resolving herpetic neuralgia with no indication of complication from botox or altment of the
facial nerves on the EMG . . . .” (Id.)
Mr. McLain had a follow-up visit with Dr. Adams at the Sleep Disorders Center on
May 25, 2010. (Doc. 6-13 at R.507-08.) Dr. Adams noted that Mr. McLain had a “flare-up”
of difficulty falling asleep; he stated that “[p]ost[-]herpetic neuralgia and its sequelae have
interfered significantly with sleep as have some other stressful events in his life.” (Id. at
R.508.) The “other stressful events” are not identified in Dr. Adams’s notes. (See id. at
R.507-08.) However, he did note that McLain was “still experiencing a great deal of
discomfort from the neuralgia.” (Id. at R.507.)
Mr. McLain returned to Dr. Rudd on August 6, 2010; no changes in his condition
were noted. (See doc. 6-12 at R. 413-14.)
On November 12, 2010, Mr. McLain returned to Dr. Rudd, who noted that Mr.
McLain had “a syndrome of anesthesia dolorosa,” which he explained as “a first trigeminal
division sensory loss,” but with “pain [experienced] through the area extending through the
scalp.” (Doc. 6-12 at R.415.) As testing did not show denervation, Dr. Rudd noted that he
would not push for further testing but work with “adjusting the present symptomatic
regimen.” (Id. at R.416.)
On or about November 16, 2010, Rebecca B. Kissel, M.D., examined Mr. McLain.
(See doc. 6-8 at R.265-66.) He told Dr. Kissel that nothing but nerve blocks have provided
relief. (Id. at R.265.) Dr. Kissel’s treatment recommendations included bacterial and fungal
cultures, a punch biopsy, and Vaseline in lieu of the topical ointments Mr. McLain was
currently using.5 (Id.)
Mr. McLain has not pointed to any specific material medical records or treating
physician’s opinion that they ALJ failed to consider and/or improperly weighed.6 (See doc.
8 at 24-29.) In his Statement of Facts, he quotes extensively from medical opinions rendered
after the date last insured. (See doc. 8 at 10-17.) However, he makes no effort to establish
that these opinions relate to a time before the date last insured or to direct the court to a
medical source opinion from within the relevant time period.
With regard to medical opinions, the ALJ found:
During this time, Mr. McLain also received treatment for sunspots. The ALJ found:
The claimant initiated dermatological treatment at Inverness Dermatology on
November 19, 2009. The claimant reported having spots on his scalp and
neck. He complained that the spots caused him to experience pain and a
burning sensation. The claimant was prescribed Pramasome, which he
indicated was helpful. In March 2010, the claimant elected to have specimens
from his scalp extracted for further diagnostic testing. Laboratory findings
revealed that the claimant had hypertrophie actinic keratosis. When the
claimant returned for a follow up consultation, his actinic keratosis had
resolved. The claimant continued to report ongoing pain with periods of
improvement. It was noted in the treatment record that the claimant reported
symptoms that were disproportionate to the lesions and pathology which he
(Doc. 6-3 at R.32-33 [discussing doc. 6-10 at R.279-870].)
Mr. McLain sets forth a number of medical records and opinions in the fact section
of his brief, including records and opinions outside the relevant time period. (See doc. 8 at
7-17.) However, in the argument section, he does not address any particular medical records
or opinions that he contends the ALJ failed to properly consider. (See doc. 8 at 24-29.)
As far a medical opinions are concerned, minimal weight is accorded to the
opinions of Samuel D. Williams, M.D., a non-examining state agency
consultant. It appears that the consultant did not address the pertinent times
at issue. Furthermore, no treating or examining physician opined that the
claimant had limitations greater than established by the determined residual
functional capacity assessment.
(Doc. 6-3 at R.37.) The court has considered the entire record, as well as the medical
opinions attached to Mr. McLain’s brief. Based on its review, the court finds that the ALJ’s
decision regarding the medical opinions is supported by substantial evidence in light of the
relevant time period at issue: the alleged onset date, February 9, 2009, to the date last
insured, December 31, 2010.
The court finds that Mr. McLain has not demonstrated that the ALJ erred in weighing
the medical source opinions of record from the relevant time period. Therefore, the
Commissioner’s decision on this issue will be affirmed.
2. The Pain Standard and Credibility Determination
Mr. McLain argues that the ALJ failed to properly evaluate his claim under the
Eleventh Circuit pain standard. (Id. at 17.) Review of an ALJ’s application of legal
principles is plenary, and failure to apply the proper legal standard dictates reversal. Foote
v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995)(per curiam).
In this Circuit –
A claimant may establish [his] disability through [his] own testimony
of pain or other subjective symptoms. See Dyer [v. Barnhart], 395 F.3d
[1206,] 1210 [(11th Cir.2005)]; Foote v. Chater, 67 F.3d 1553, 1560-61 (11th
Cir. 1995). The ALJ must consider a claimant’s testimony of pain and other
subjective symptoms where the claimant meets our three-part “pain standard.”
See Foote, 67 F.3d at 1560. Under that test, evidence of an underlying medical
condition must exist. Id. If that threshold is met, then there must be either
objective medical evidence that confirms the severity of the alleged pain or
symptoms arising from the underlying medical condition, or evidence that the
objectively-determined medical condition is of such a severity that it can
reasonably be expected to give rise to the alleged pain or symptoms. Id. A
claimant’s subjective testimony supported by medical evidence that satisfies
our pain standard is sufficient to support a finding of disability. Id. at 1561.
If the record shows that the claimant has a medically-determinable
impairment that could reasonably be expected to produce [his] symptoms, the
ALJ must evaluate the intensity and persistence of the symptoms in
determining how they limit the claimant’s capacity for work. 20 C.F.R.
§404.1529(c)(1). In doing so, the ALJ considers all of the record, including
the objective medical evidence, the claimant’s history, and statements of the
claimant and [his] doctors. Id. § 404.1529(c)(1)-(2). The ALJ may consider
other factors, such as: (1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of the claimant’s pain or other symptoms;
(3) any precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of the claimant’s medication; (5) any treatment
other than medication; (6) any measures the claimant used to relieve [his] pain
or symptoms; and (7) other factors concerning the claimant’s functional
limitations and restrictions due to [his] pain or symptoms. Id. §404.1529(c)(3).
The ALJ then will examine the claimant’s statements regarding [his]
symptoms in relation to all other evidence, and consider whether there are any
inconsistencies or conflicts between those statements and the record. Id. §
If the ALJ decides not to credit the claimant’s testimony as to [his]
subjective symptoms, the ALJ must articulate explicit and adequate reasons for
doing so or the record must be obvious as to the credibility finding. See Foote,
67 F.3d at 1561-62. While the ALJ does not have to cite particular phrases or
formulations, broad findings that a claimant was incredible and could work
are, alone, insufficient for [the court] to conclude that the ALJ considered the
claimant’s medical condition as a whole. Id. at 1562. The ALJ’s articulated
reasons must also be supported by substantial evidence. Jones v. Dep’t of
Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991). [The court]
will not disturb a properly articulated credibility finding that is supported by
substantial evidence. Foote, 67 F.3d at 1562. The failure to articulate reasons
for discrediting a claimant’s subjective testimony, however, requires that the
testimony be accepted as true and becomes grounds for remand where
credibility is critical to the outcome of the case. Id.
Strickland v. Comm’r of Soc. Sec., 516 Fed. Appx. 829, 831-32 (11th Cir. 2013). The court
finds that the ALJ clearly articulated and applied the correct legal standard for evaluating Mr.
McLain’s pain-based claim. (See doc. 6-3 at R.34-35.)
The ALJ found that Mr. McLain’s testimony was not fully credible; specifically, he
The claimant’s description of his pain and limitations arising from his
condition are not fully credible to the extent a conclusion of disability was
warranted between February 9, 2009, and December 31, 2010, the date he last
met the special earnings requirements of the Act. The claimant has been
treated for occasional right sided facial and head pain caused by his
impairment. Yet, the pertinent documentary record does not establish the
extent or degree of severity alleged. Instead, it shows only intermittent
episodes of pain exacerbations which were addressed. For instance, when seen
in the emergency room on February 2, 2009, for a headache, the claimant was
treated and later reported that his pain was 2 out of 10. When he returned to
the emergency room 6 days later for a rash with facial and head pain, pain
control was achieved. The rash also steadily improved, and the claimant was
discharged in stable condition. One month later, the claimant reported to Dr.
Rudd, that he gained a fair amount of relief in his facial pain. He informed Dr.
Krauss that he only obtained 24 hours of relief from a pain block in July 2009,
and in September told Dr. Fisher that his pain level fluctuated between 3 to 8
out of 10. Over one year later, in November 2010, the claimant reported that
only nerve blocks gave him relief. Earlier laboratory studies, including a CT
scan and electromyogram were negative for any acute intracranial abnormality.
No ocular pathologies have been identified.
(Id. at R.35.)
Mr. McLain contends that “[t]he ALJ in this case failed to offer any justification as
to why he found Mr. McLain’s pain testimony not fully credible.” (Doc. 8 at 24.) He
contends that the ALJ “cherry-picked” from his medical records to find that he had only
occasional right-side facial pain. (Id. at 23.) The court disagrees.
Focusing on the medical records from the relevant time period, the court finds the
evidence supports the ALJ’s findings that McLain was “treated for occasional right sided
facial and head pain caused by his impairment,” and he suffered “only intermittent episodes
of pain exacerbations.” (Doc. 6-3 at R.35.) Mr. McLain has submitted evidence from after
his date last insured with his brief; however, the court does not find that this evidence relates
to a period before his date last insured. As to this relevant time period, the court finds the
ALJ’s articulated specific reasons for finding Mr. McLain’s alleged pain and other subjective
symptoms were not fully credible and the record contains substantial evidence to support
Therefore, the court finds the Commissioner’s decision is due to be affirmed.
For the reasons set forth above, the decision of the Commissioner is due to be
An Order affirming the decision of the Commissioner will be entered
contemporaneously with this Memorandum Opinion.
DONE this 29th day of March, 2016.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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