Ware v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/28/2016. (YMB)

FILED
2016 Oct-28 AM 10:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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GWENDOLYN WARE,
Plaintiff,

vs.
CAROLYN W. COLVIN,
Defendant.

Civil Action Number
2:15-cv-2059-AKK

MEMORANDUM OPINION
Gwendolyn Ware 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 (“ALJ”) applied the correct legal
standard, and that his decision—which has become the decision of the
Commissioner—is AFFIRMED.
I.

PROCEDURAL HISTORY

Ware filed her application for Title II Disability Insurance Benefits and a
Title XVI application for supplemental social security income on May 4, 2012,
alleging a disability onset date of August 1, 2010, (R. 126), due to chronic renal
failure, diabetes mellitus, hypertension, and joint dysfunction, (R. 66). After the

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SSA denied her application, Ware requested a hearing before an ALJ. (R. 78–79).
The ALJ subsequently denied Ware’s claim, (R. 11–13), which became the final
decision of the Commissioner when the Appeals Council refused to grant review,
(R. 1–7). Ware then filed this action pursuant to § 405(g) on November 16, 2015.
(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)
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)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
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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 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). 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

sequence:
(1)

whether the claimant is currently unemployed;
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(2)

whether the claimant has a severe impairment;

(3)

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

(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).

IV. THE ALJ’S DECISION
In performing the Five Step sequential analysis, the ALJ initially determined
that Ware met the criteria for Step One because she had not engaged in any
substantial gainful activity since her alleged onset date of August 1, 2010. (R. 16).
Next, the ALJ acknowledged that Ware’s impairments of “obesity, chronic renal
failure, diabetes mellitus, hepatitis C, and hypertension” met the requirements of
Step Two. (R. 17). The ALJ then proceeded to the next step and found that Ware
did not satisfy Step Three because she “did not have an impairment or combination
of impairments that meets or medically equals the severity of one of the
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impairments included in 20 C.F.R., Part 404, Subpart P, Appendix 1.” (R. 17).
Although the ALJ answered Step Three in the negative, consistent with the law,
see McDaniel, 800 F.2d at 1030, he proceeded to Step Four, where he determined
that, at her date last insured, Ware had the residual functional capacity (RFC) to
“perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), [but
could] lift and carry twenty pounds occasionally and ten pounds frequently.” (R.
19). In light of Ware’s RFC, the ALJ determined that Ware was incapable of
performing her past relevant work as a duct installer/maker. (R. 22). Accordingly,
the ALJ turned to Step Five, where after considering Ware’s age, education, work
experience, RFC, and the testimony of a vocational expert, the ALJ determined
that there were “jobs that exist in significant numbers in the national economy that
[Ware] can perform,” (R. 23). Because the ALJ answered Step Five in the
negative, he determined that Ware was not disabled. (R. 24).
V.

ANALYSIS

Ware’s sole contention on appeal is that the ALJ erred by improperly
evaluating the evidence and Ware’s credibility when the ALJ rejected Ware’s
subjective testimony. 1 Doc. 11 at 3–4. For the reasons stated below, the record
belies Ware’s contention.

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Ware has not raised any other bases for this appeal and, therefore, has waived other grounds
upon which she might challenge the ALJ’s decision. See Outlaw v. Barnhart, 197 F. App’x 825,
828 n.3 (11th Cir. 2006) (claimant waived an issue because he did not elaborate on the claim or
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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).
This 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.”2
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 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
provide citation to authority regarding the claim); N.L.R.B. v. McClain of Georgia, 138 F.3d
1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner, without supporting
arguments and citation to authorities, are generally deemed to be waived.”).
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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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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. Where the ALJ discredits subjective pain testimony, he must “articulate
explicit and express reasons for doing so.” Wilson v. Barnhart, 284 F.3d 1219,
1225 (11th Cir. 2002) (per curiam). A failure to do so requires that the court accept
the testimony as true. Id. (citing Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.
1988)).
A review of the record shows that the ALJ articulated reasons for
discrediting Ware’s subjective complaints. Specifically, as it relates to Ware’s pain
testimony, the ALJ found that while the medical records supported Ware’s
testimony regarding the presence of pain, they did not support her statements
regarding the “intensity, persistence, and limiting effects of these symptoms.” (R.
21). To support this determination, the ALJ pointed out that although Ware
reported trouble with her left arm and claimed that she stopped working due to this
condition, Ware also alleged that her conditions did not cause her to change her
work activity and that she could still feed and care for herself. (R. 19–20). Next,
the ALJ turned to Ware’s complaints about her diabetes and blood pressure and
noted that both were controllable with medication, that Ware had received the
treatment her doctors recommended, and that, although Ware testified that one was
recommended, the physicians had never placed her on a special diet. (R. 20, 37).
Finally, with respect to Ware’s complaints that her conditions made her weak and
sick, the ALJ found that the medical records did not support Ware’s subjective
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statements of disabling pain because, among other things, Ware indicated in her
functional evaluation form that she continued to engage in a variety of activities
including reading the Bible, listening to the radio, and socializing with others. (R.
19–22, 175).
Based on the court’s review of the record, it is apparent that the ALJ
thoroughly recounted Ware’s medical records and pointed to various examples
where the medical records belied Ware’s subjective testimony of the intensity and
frequency of her pain. (R. 19–22). Moreover, the record belies Ware’s contention
that the ALJ improperly relied on the absence of medical opinion regarding her
functional capacity in evaluating Ware’s credibility. While Ware is correct that
“lack of evidence alone is not sufficient to support a finding that an impairment did
not exist at a disabling level of severity,” Volley v. Astrue, Case No. 1:07-cv-138AJB, 2008 WL 822192, *15 (N.D. Ga. Mar. 24, 2008), here, however, the ALJ’s
credibility determination was not based solely on the absence of medical evidence.
Instead, the ALJ merely noted that the medical records indicated that Ware’s
impairments were generally controlled with medication and there was no evidence
of any “impairments or treatments that would reasonably give rise to such extreme
levels of pain.”3 (R. 22).

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To the extent Ware intended to claim that her financial condition prevented her from obtaining
the necessary medical care to build a record for her disability claim, unfortunately there is
nothing in the record to substantiate such a position. See N.L.R.B. v. McClain of Ga., Inc., 138
F.3d at 1422; Outlaw, 197 F. App’x at 828 n.3. Moreover, while it is true that “poverty excuses
noncompliance” with prescribed medical treatment, Dawkins v. Bowen, 848 F.2d 1211, 1213
(11th Cir. 1988), Ware’s compliance with prescribed medical treatment or lack thereof played no
role in the ALJ’s decision, see (R. 19–22).
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Accordingly, because the “ALJ made a reasonable decision to reject
[Ware’s] subjective testimony, articulating in detail, the contrary evidence as his
reasons for doing so,” Wilson v. Barnhart, 284 F.3d at 1226, and “a clearly
articulated credibility finding with substantial supporting evidence in the record
will not be disturbed by a reviewing court,” Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995) (per curiam), the court finds that substantial evidence supports the
ALJ’s decision.
CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Ware is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 28th day of October, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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