Evans v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/21/17. (SAC )
2017 Mar-21 PM 03:42
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ACTING COMMISSIONER OF
CIVIL ACTION NO.
On September 21, 2012, the claimant, Bennett Evans, protectively applied for
disability and disability insurance benefits under Title II and part A of Title XVIII of the
Social Security Act. (R. 145). The claimant initially alleged disability commencing on
June 16, 2012 because of coronary artery disease, cervical spine disease, depression, acid
reflux, insomnia, glaucoma, and cataracts. (R. 145, 184). The Commissioner denied the
claim on December 26, 2012. (R. 87). The claimant filed a timely request for a hearing
before an Administrative Law Judge, and the ALJ held a hearing on January 22, 2013.
In a decision dated May 1, 2014, the ALJ found that the claimant was not disabled
as defined by the Social Security Act and was, therefore, ineligible for social security
benefits. (R. 7-28). On October 6, 2015 the Appeals Council denied the claimant’s
requests for review. (R. 1-4). Consequently, the ALJ’s decision became the final decision
of the Commissioner of the Social Security Administration. The claimant has exhausted
his administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C.
§§405(g) and 1383(c) (3). For the reasons stated below, this court AFFIRMS the decision
of the Commissioner.
II. ISSUE PRESENTED
The issue before the court is whether, under the Eleventh Circuit’s pain standard,
the ALJ properly assessed the claimant’s subjective complaints of disabling pain.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court
must affirm the ALJ’s decision if the ALJ applied the correct legal standards and if
substantial evidence supports the ALJ’s factual conclusions. See 42 U.S.C. § 405(g);
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996,
999 (11th Cir. 1987).
“No…presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.”
Walker, 826 F.2d at 999. This court does not review the Commissioner’s factual
determinations de novo. The court will affirm those factual determinations that are
supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971).
The court must keep in mind that opinions, such as whether a claimant is disabled,
the nature and extent of a claimant’s residual functional capacity, and the application of
vocational factors, “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), 416.927(d). Whether the claimant meets the listing and is
qualified for Social Security disability benefits is a question reserved for the ALJ, and the
court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for
that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Thus, even if the court were to disagree with the ALJ about the significance of certain
facts, the court has no power to reverse that finding as long as substantial evidence in the
record supports it.
The court must “scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A
reviewing court must not only look to those parts of the record that support the decision
of the ALJ, but also must view the record in its entirety and take account of evidence that
detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180
(11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d) (1) (A), a person is entitled to disability benefits when
the person is unable to “engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less
than 12 months….” 42 U.S.C. § 423(d) (1) (A). To make this determination the
Commissioner employs a five-step, sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the
next question, or, on steps three and five, to a finding of disability. A
negative answer to any question, other than step three, leads to a
determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986) 1; 20 C.F.R. §§ 404.1520,
The claimant was fifty-four years old at the time of the ALJ’s final decision. (R.
34). The claimant has a twelfth grade education and past relevant work as a shredder,
delivery driver, produce clerk, and material handler. (R. 62, 185). The claimant alleges
disability based on coronary artery disease, cervical spine disease, depression, acid
reflux, insomnia, glaucoma, and cataracts. (R. 184).
Physical and Mental Impairments
On September 6, 2005, the claimant visited the University of Alabama at
Birmingham emergency room because a heavy tire fell while the claimant was working,
hitting him in the chest. On the same day, Dr. Tom McElderry, a cardiologist, diagnosed
the claimant with a chest wall contusion and hypertension. Dr. McElderry referred the
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) was a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. See, e.g., Ware v. Schweiker,
651 F.2d 408 (5th Cir. 1981) (Unit A).
claimant to the Kirklin Clinic for further hypertension evaluation after discharge. 2 (R
At the recommendation of his emergency room doctors, the claimant visited the
Birmingham Veteran’s Association Medical Clinic to establish primary care on
November 30, 2005. During this initial visit, nurse practitioner Jennifer Dardy-Bonner
determined that the claimant still suffered from hypertension and diagnosed the claimant
with gastroesophageal reflux disease (gerd). She prescribed a blood pressure regimen
consisting of Ramipril, Felodipine, and HCTZ to stabilize his hypertension, and
Omeprazole for his gerd. (R. 1108-1112).
During his yearly follow-up at the VA on August 24, 2006 with Dr. Felicia R.
Noerager, the claimant’s hypertension and gerd were both controlled. Similarly, on
January 4, 2007, the claimant’s hypertension and gerd were stable; however, Dr.
Noerager sent the claimant to the emergency room because of an abnormal EKG.
Ultimately, all emergency room tests and evaluations were normal. (R. 1095-97, 1102).
The claimant continued to see Dr. Noerager for two yearly follow-up
appointments, and the claimant’s hypertension and gerd remained controlled until 2009.
On February 27, 2009, Dr. Noerager reported that the claimant’s hypertension was poorly
controlled because of his failure to consistently take prescribed medications. Dr.
Noerager also prescribed Ibprofin for claimant’s new hip and back pain complaints.
Similarly, during a September 15, 2009 follow-up, the claimant stated that he no longer
took hypertension and gerd medication, but continued to experience chest pain. (R. 1025,
The court can find no record from the Kirklin Clinic immediately after this visit;
however, the claimant did visit the Kirklin Clinic in August 2012. (R. 280).
On April 27, 2010, the claimant received a Kenalog shot and a Lortab perscription
for back pain, and Dr. Noerager ordered an MRI of the claimant’s back. Dr. Noerager
also reported that the claimant’s hypertension and gerd were again stabilized with
medication. An MRI of the claimant’s back taken on May 18, 2010 showed narrowing of
the claimant’s spinal column. (R. 1003-05, 1011).
The claimant called the VA on October 13, 2011 to renew his hypertension, gerd,
and pain medications; however, the medical clinic, not having seen the claimant in over a
year, did not have authorization to renew. Subsequently, on December 8, 2011, the
claimant visited Dr. Noerager for his yearly follow-up. During this appointment, Dr.
Noerager ordered x-rays and a stress test, and prescribed tramadol for the claimant’s
chest pain. The claimant’s hypertension and gerd both continued to remain stable. (R.
In a letter dated December 13, 2011, Dr. Noerager notified the claimant that the xrays showed no abnormalities. Similarly, after a nuclear cardiac stress test conducted on
January 20, 2012, Dr. Noerager sent another letter notifying the claimant that the stress
test was also normal. (R. 981-86).
On April 18, 2012, the claimant called the VA hospital complaining of chronic
pain. Dr. Noerager scheduled a follow-up appointment to address this pain on April 24,
2012. During the appointment, Dr. Noerager diagnosed the claimant with hematuria and
lipoma, ordered an MRI, and prescribed Roboxin, Tramadol, and Gabapentin for lower
back pain. (R. 976-980)
The claimant underwent the MRI on June 1, 2012. During the MRI follow-up on
June 5, 2012, Dr. Noerager diagnosed the claimant with spinal stenosis and lipomatosis
caused by mild central canal narrowing and cord compression at C6-C7, and referred the
claimant to the VA neurosurgeon. Before the neurology consultation, however, the
claimant was admitted to the intensive care unit and diagnosed with angina on June 17,
2012. (R. 943, 972-73).
The claimant remained in the hospital for three days. On June 18, 2012, the
claimant underwent an angiography and cardiac catheterization surgery to place a heart
catheter and stent in the claimant’s coronary artery. Although the angina was ultimately
unresolved, the treating physician prescribed Plaviz and Lisinopril and discharged the
claimant on June 19, 2012. During the claimant’s June 28, 2012 emergency room followup, Dr. Noerager reported no substantial changes regarding his hypertension, gerd, chest
pain, lower back pain, hematuria, or lipoma. (R. 877-78, 906, 925).
Upon Dr. Noerager’s referral, the claimant also visited Dr. Carin Eubanks at the
VA the mental health department on June 28, 2012. Dr. Eubanks diagnosed the claimant
with moderate psychological distress and recommended future treatment, but the
claimant refused further treatment. (R. 876-77).
On July 17, 2012, the claimant visited Dr. Gilbert J. Perry at the VA Cardiology
Clinic to follow-up on his cardiac surgery. Dr. Perry reported that the claimant’s
hypertension was controlled, and referred the claimant to cardiac rehab. (R. 862-64).
During his yearly follow-up on August 7, 2012, Dr. Noerager stated that the
claimant’s hypertension was controlled; however, his gerd was not improving because he
no longer took his medication. She noted that the claimant needed to stop any activity
causing chest pain, and that he should not return to work until early September 2012 after
cardiac rehab. On the same day, the claimant underwent a GXT echocardiogram to
evaluate chest pain that showed no abnormalities. (R. 848, 855).
The claimant visited the Kirklin Clinic at UAB Health Center – Hueytown on
August 14, 2012. During this initial visit, Dr. Jonathan D. Mize suggested the claimant
continue his current blood pressure medication, and gave the claimant a detailed meal
plan. (R. 280).
On August 23, 2012, the claimant enrolled in cardiac rehab at Spain Rehab
Center. He attended two cardiac rehab sessions before his first visit with the VA
neurosurgeon Dr. Kimberly P. Kicielinski. After a general consultation on August 28,
2012, Dr. Kicielinski recommended the claimant continue cardiac rehab and discuss
occupational therapy with his primary physician before any potential spinal surgeries are
discussed further. (R.303-04, 841-42).
The claimant attended five more cardiac rehab sessions before a cardiac follow-up
with Dr. Perry on September 11, 2012. The claimant asserted that he felt his physical
endurance was improving; however, Dr. Perry did not report any significant health
changes and recommended the claimant continue cardiac rehab. (R. 306-14, 840).
On September 17, 2012, the claimant called Dr. Noerager’s office requesting to
stay off work until he completed cardiac rehab. After reviewing the phone call, Dr.
Noerager concluded that she needed more information before agreeing to the note. Before
Dr. Noerager could gather that information, though, the claimant visited Dr. Perry on
September 19, 2012 for a formal clearance to return to work as a truck driver. Dr. Perry
wrote a letter to the claimant’s company clearing the claimant to drive from a
cardiovascular standpoint, but restricting lifting until cleared by a neurosurgeon, and
restricting lifting to twenty-five pounds after a neurosurgical clearance. Dr. Perry also
opined that cervical or lumbar spine surgery would have to wait approximately twelve
months until the stent in the claimant’s heart could be removed. (R. 833-35).
The claimant attended his yearly check-up at the VA on October 15, 2012. Dr.
Therese Mays noted no changes to the claimant’s medical report. Similarly, at a
neurology follow-up on November 6, 2012, the claimant told Dr. Joshua York Menendez
that he had not fully engaged in cardiac rehab, and that he continued to experience chest
pain and shortness of breath while walking. Dr. Menendez noted no medical changes and
recommended that the claimant continue cardiac rehab before following up for additional
neurological remedies. (R. 806, 818-19).
The claimant submitted a function report and cardiovascular questionnaire to the
Social Security Administration on October 22, 2012. He explained that he walks around
his block two to three times a week, and walks on a treadmill and rides a bike at
cardiovascular therapy. He also stated that he does laundry on occasion, and sometimes
drove himself to therapy or to church. (R. R. 211-225).
On November 30, 2012, the claimant went to the VA emergency room with the
chief complaint that he hurt all over. He remained hospitalized for three additional days,
and underwent another cardiac catheterization operation. He was diagnosed with
hemorrhoids, but doctors noted no echocardiogram or other cardiac changes, and the
claimant was ultimately discharged on December 3, 2012. (R. 707, 724, 790-92).
The claimant returned to his primary doctor at the VA for a follow-up on
December 11, 2012, where Dr. Noerager noted his controlled hypertension. Dr. Noerager
also noted the claimant’s back pain and deteriorating arm strength, and expressed the
claimant’s need for back surgery. Dr. Noerager also ordered an abdominal and pelvis CT
scan because of an enlarged prostate. (R. 1145-47).
The claimant attended his first psychotherapy session at the VA on December 14,
2012 with Dr. Lindsey Moore. Dr. Moore noted that the claimant experienced a
significant level of psychological distress, and requested the claimant return at the end of
the month. (R. 1138-40).
On December 21, 2012, the claimant called Dr. Noerager’s office to request an
Oxycodone and Clonzepam refill. Dr. Noerager declined to prescribe Oxycodone and
Clonzepam, but instead perscribed Percocet for pain. Again, on January 18, 2013, the
claimant called to renew his pain medication. 3 (R. 1494, 1506-07).
The claimant attended another psychotherapy treatment session with Dr. Moore
on December 31, 2012. During this meeting, Dr. Moore recommended the claimant
continue seeing Dr. Noerager, and suggested he continue psychotherapy treatment to
discuss coping mechanisms. Subsequently, the claimant attended two additional
psychotherapy sessions in January 2013.
Because of abnormal CT results, the claimant underwent flexible
cystourethroscopy surgery on January 28, 2013 at the VA to evaluate at the claimant’s
bladder for disease, which yielded no abnormalities. On February 5, 2013, the
psychotherapy treatment department at the VA noted the claimant’s stable mental state.
Then, on February 11, 2013, the claimant again called Dr. Noerager to refill his pain
medication. (R. 1476, 1486).
The medical record states that Dr. Noerager’s office received the request, but does not
specify whether Dr. Noerager granted the request.
During his yearly check-up at the VA on February 15, 2013, Dr. Noerager noted
that the claimant’s gerd was getting worse, so she referred him to a gastroenterologist to
further analyze the claimant’s non-improving gerd. Lastly, Dr. Noerager and the claimant
discussed increasing the claimant’s Percocet dosage or switching to Morphine for pain
treatment. The claimant did not want to switch to Morphine, so Dr. Noerager agreed to
prescribe more Percocet for the claimant’s chronic back pain. (R. 1471).
On March 3, 2013, the claimant visited Dr. Michael Passarella in the VA’s
gastroenterology department at Dr. Noerager’s request. Dr. Passarella conducted a
barium swallow test and ordered an esophagogastroduodenoscopy procedure to test for
dysphagia. During his follow-up on March 4, 2013, Dr. Passarella notified the claimant
that the barium swallow yielded a mild gerd diagnosis. The claimant again requested
more pain medication from Dr. Noerager on April 3, 2013. 4 (R. 1452, 1459, 1465).
In April 2013, the claimant attended two additional psychotherapy sessions at the
VA, when he discussed mental health issues arising from his health problems; however,
Dr. Moore did not note any significant changes in mental health, and planned to continue
discussing coping mechanisms.
The claimant underwent an esophagogastroduodenoscopy with possible
interventions procedure on April 28, 2013 to examine and treat esophagus, stomach, and
upper intestinal issues. On May 6, 2013, the claimant re-requested pain medication from
Dr. Noerager. 5 Subsequently, during the procedure follow-up appointment on May 13,
The medical record states that Dr. Noerager’s office received the request, but does not
specify whether Dr. Noerager granted the request.
The medical record states that Dr. Noerager’s office received the request, but does not
specify whether Dr. Noerager granted the request.
2013, Dr. Passarella noted that the bowel biopsies were normal; however, he diagnosed
the claimant with dysphagia, and ordered a CT scan and pre-creatinine. (R. 1571, 1582).
On August 30, 2013, Dr. Barton Guthrie at the VA performed a C6-C7 anterior
cervical discectomy with fusion on the claimant’s back. The claimant noted improvement
in his left upper extremity after surgery, and was discharged that same day. (R. 1539).
Dr. Noerager ordered physical therapy to treat the claimant’s continued back pain
on October 25, 2013. The order specified that the therapy should be conducted two times
per week for six weeks, and gave no medical precautions. The claimant scheduled four
appointments between October 30, 2013 and December 9, 2013; however, the therapy
department discontinued because the claimant failed to show up to two of the four
appointments. (R. 1544-46).
A post-surgery MRI of the claimant’s back on December 3, 2013 revealed
degenerative changes involving the facet joints, lateral recess stenosis at L2-3 and L3-4
without definite nerve root compression, left forminal stenosis at L4-5, and nerve root
compression in the roof of the neural foramen. (R. 1516-17).
The claimant again visited the VA emergency room on December 10, 2013 with
complaints of chest pain. The attending physician, Dr. Thomas Stewart Huddle
determined that, because three sets of cardiac markers were negative and his
echocardiogram was normal, the claimant’s chest pain was likely musculoskeletal. The
emergency room discharged the claimant without a new diagnosis on December 11,
2013. (R. 1536-1538).
On December 17, 2013, Dr. Noerager submitted another order for physical
therapy. The order specified that physical therapy should take place two times per week
for six weeks with no medical precautions. She noted that physical therapy was
previously discontinued because the claimant was hospitalized, and explained that he
needed physical therapy before his neurosurgeon would schedule a follow-up. The
claimant scheduled nine appointments between December 19, 2013 and February 12,
2014. The physical therapy department cancelled two of the nine appointments for
administrative purposes; however, the claimant cancelled one appointment and did not
show up to three of the nine appointments. The physical therapy department again
discontinued treatment per hospital policy. (R. 1542-44).
Finally, during a cardiology follow-up on February 18, 2014, the claimant
underwent a GXT echocardiogram and x-rays, and all results were normal. Then, after
the claimant asserted that he could walk one and a half miles in twenty minutes without
significant difficulty, the cardiologist also concluded that the claimant’s chest pain was
unlikely heart related. The cardiologist also noted that the claimant’s musculoskeletal
exam yielded full range of motion, no joint effusion or crepitus, and no CCE. (R. 1547).
The ALJ Hearing
At the hearing on October 23, 2013, the claimant testified that he lives at home
with his wife, eighteen-year-old daughter, and thirteen-year-old son. He testified that if
he is not laying around at home, he tries to walk around his neighborhood and do
streatching exercises. He stated that he tries to walk two miles; however, he often has to
stop and finish later. (R. 35-36).
The claimant further testified that he could no longer drive after his neck surgery
on December 30, 2013. He stated that the last road trip he took was to New York for his
brother’s funeral November 2013. He explained that the trip took twelve to thirteen
hours; however, he did not drive at all during the trip. (R. 38-39).
The claimant testified that his son used to play basketball, and his daughter used
to play track. He stated that he would attend every game and track meet they were
involved in. He also testified that he would often drive them to practice prior to his neck
surgery. (R. 39-40).
When questioned about unemployment, food stamps, and health insurance, the
claimant explained that he did not qualify for them. He could not afford to add himself to
his wife’s health insurance; however, he does receive health coverage at the VA hospital.
He testified that from June to October 2012 he received Aflac short term disability, but
no longer receives any type of worker’s compensation. (R. 40-42).
The claimant testified that he stopped working because of his heart condition, and
he cannot work any longer because of his inability to lift more than eight pounds and
shortness of breath. He also stated that he has mental impairments that keep him from
working and that he does not take care of anyone while staying at home. (R. 42-46, 48).
When asked if he smoked or drank alcohol, the claimant explained that he did in
the past, but he stopped after he underwent heart surgery in 2012. He also stated that he
only took illegal drugs in high school, and no longer uses them. (R. 47-48).
The claimant testified that prior to his neck surgery he would have rated his pain
as a ten on a scale from zero to ten. He also stated that prior to heart surgery he did not
know he had an issue with his heart. He explained that he was experiencing pain
everywhere but did not know why and would consistently complain to his supervisor. (R.
When asked about prior work, the claimant testified that he had been a truck
driver for Tyson Shared Services in 1999. This job did not require the claimant to lift, as
he was hauling livestock. In 2000, the claimant testified that he was a meat separator,
which required him to lift and transfer approximately eighty pounds of groceries from a
cooler to a truck. Then, in 2001, he pulled stock on pallets using a go-cart to transfer the
stacks to the trucks or into the grocery store. From 2001-2003, he delivered wine from a
delivery truck, which required him to lift approximately one-hundred pounds at every
stop. Next, from 2004-2006, the claimant worked as a shredder for EnviroShred and
Bruce Office Supply. Finally, in 2007, the claimant went back to driving trucks and
delivering wine. (R. 57-61).
A vocational expert, Dr. Jewel Elizabeth Bishop Euto, testified concerning the
type and availability of jobs that the claimant was able to perform. Dr. Euto testified that
the claimant’s past relevant work was as a shredder, a delivery driver, a produce clerk,
and a material handler. Dr. Euto classified the shredder position as medium and unskilled
work; the delivery driver position as medium and semi-skilled work; the produce clerk
position as medium and unskilled work; and the material handler position as heavy and
semi-skilled work. (R. 62).
The ALJ asked Dr. Euto to assume that a hypothetical individual with the same
age, education, and work experience as the claimant is limited to light work with
occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps and
stairs; no climbing ladders or scaffolds; occasional bilateral overhead reaching; no
exposure to extreme cold, heat, fumes, dust, gases, poor ventilation, or vibration; and no
hazardous machinery or unprotected heights. Dr. Euto stated the hypothetical individual
could not perform the claimant’s previous work. The ALJ asked Dr. Euto if other jobs
existed in the region or nation that the individual could perform. Dr. Euto replied that the
hypothetical individual could perform work as a counter clerk, classified as light exertion,
and unskilled work, with 8,500 jobs in Alabama and 432,650 jobs in the nation; usher,
classified as light exertion, unskilled work, with 1,750 jobs in Alabama and 106,650 jobs
in the nation; and rental clerk, classified as light exertion, unskilled work, with 8,550 jobs
in Alabama and 432,750 in the nation. (R. 62-63).
The ALJ then added an additional limitation requiring the hypothetical person to
alternate between standing and sitting every thirty minutes to an hour while being on
task, and asked if the same jobs would remain available. Dr. Euto testified that the same
jobs would remain available, with a reduction in numbers by fifty percent. (R. 64).
The ALJ then changed the hypothetical to include an individual who can perform
simple tasks for two hours at a time with normal breaks, and can only tolerate infrequent
changes in the workplace introduced gradually when necessary. The ALJ asked if the
individual would be able to perform any jobs. Dr. Euto replied that the hypothetical
individual could perform work as a bench assembler, classified as light exertion, and
unskilled work, with 1,800 jobs in Alabama and 218,700 jobs in the nation; a sorter,
classified as light exertion, unskilled work, with 375 jobs in Alabama and 39,050 jobs in
the nation; and an inspector, classified as light exertion, unskilled work, with 7,100 jobs
in Alabama and 454,010 in the nation. (R. 64-65).
Again, the ALJ added an additional limitation of sedentary work, and asked if the
claimant in this case had acquired any skills in his past relevant work that would transfer
to jobs at a sedentary exertion level. Dr. Euto testified that the claimant has not acquired
the required skills. (R. 65).
Then, the ALJ went back to the first three proposed hypotheticals, and asked
whether the jobs would remain if the individual would be off task for ten percent of the
day. Dr. Euto stated that the jobs would remain the same. The ALJ then increased the
percentage to fifteen percent, and asked if the jobs would remain the same. Dr. Euto
testified that fifteen percent of the day would be excessively off task and would preclude
all work activity. (R. 65-66).
Finally, the claimant’s counsel proposed a final adjustment to the hypothetical
when he asked if any jobs would be available to the described individual if the individual
was required to recline two to three hours in a workday. Dr. Euto stated that this
adjustment would preclude all work activity; however, she described this hypothetical as
abnormal because of potential future surgeries. Dr. Euto expressed concern that frequent
surgery would affect reliability and excessive absenteeism. (R. 66-68).
The ALJ’s Decision
On May 1, 2014, the ALJ issued a decision finding that the claimant was not
disabled under the Social Security Act. First, the ALJ found that the claimant met the
insured status requirements of the Social Security Act through December 31, 2016, and
had not engaged in substantial gainful activity since his June 16, 2012 alleged onset date.
Next, the ALJ found that the claimant had the severe impairments of coronary
artery disease status post stent; hypertension; degenerative disc disease of the lumbar
spine; degenerative disc disease of the cervical spine; and adjustment disorder with both
depressed and anxious mood. The ALJ found the claimant’s gerd to be non-severe after
reviewing two EGDs that revealed a normal esophagus and only mild chronic gastritis
results, and two barium swallows that yielded only mild results. The ALJ explained that
doctors increased the claimant’s medication, and that the subsequent treatment records do
not support ongoing symptoms that would cause more than a minimal limitation to the
claimant’s working ability. (R. 12-13).
Similarly, the ALJ stated the claimant’s hematuria was confirmed by lab work,
however a CT scan did not render a cause, and the claimant was not treated for his
impairment, so the record does not support symptoms that would cause more than
minimal limitations. Additionally, the ALJ did not find any record to show treatment for
a cataract or ongoing symptoms of a visual impairment, and the claimant’s hemorrhoids
were managed with warm soaks, rendering them nonsevere. (R. 13).
The ALJ next found that the claimant did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ considered whether
the claimant met the criteria for listing 1.04 concerning a disorder of the spine. To meet
this listing, the claimant would have to demonstrate evidence of nerve rood compression
in a neuro-anatomic distribution with motor, sensory, or reflex loss, or spinal
arachnoiditis confirmed by operative note or pathology report or lumbar spinal stenosis
resulting in pseudoclaudication with an inability to ambulate effectively. The ALJ noted
that the claimant did not tender such evidence. (R. 14).
Additionally, the ALJ considered whether the claimant met the requirements of
listing 4.00 and 4.06, requiring evidence of the required levels of cardiac enlargement,
congestive heart failure or of a vision, kidney, or neurological impairment. The ALJ
explained that the evidence does not support the level of occlusion of arteries resulting in
a serious limitation in the ability to initiate, sustain, or complete activities or daily living
required by these listings. (R. 14).
The ALJ also considered whether the claimant met the criteria for listing 12.04
and 12.06 “paragraph B” concerning mental impairments. To meet this listing, the
claimant would have to demonstrate that the mental impairments result in at least two of
the following: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration.
The ALJ noted that based on the claimant’s reported daily activities and social
functioning, such as doing laundry, driving, attending church, and ability to pay attention
and follow instructions, his mental impairments did not cause at least two “marked”
limitations or one “marked” limitation. (R. 14-15).
Additionally, the ALJ considered whether the claimant met the requirements of
“paragraph C,” requiring evidence of episodes of decompensation, potential episodes of
decompensation, or the inability to function outside a highly supportive living
arrangement. The ALJ determined that the claimant has experienced no episodes of
decompensation, and no evidence showed a residual disease process that has resulted in
such marginal adjustment that even a minimal increase in mental demands or change in
environment would be predicted to cause the claimant to decompensate. (R. 15).
Next, the ALJ determined that the claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except for the following
limitations: occasional balancing, stooping, kneeling, crouching, crawling, and climbing
ramps and stairs; no climbing ladders, ropes, or scaffolds; occasional bilateral reaching
overhead; no concentrated exposure to extreme cold, heat, fumes, dust, gases, poor
ventilation, or vibration; and no hazardous machinery or unprotected heights. The
claimant must be able to alternate between standing and sitting every thirty minutes to
one hour while remaining on task. Mentally, the claimant is able to understand,
remember, and carry out unskilled, simple tasks for two hours at a time with normal
breaks; and have casual contact with coworkers, supervisors, and the public. The
claimant is limited to an environment where changes are infrequent but, when necessary,
are introduced gradually. (R. 16).
In making this finding, the ALJ considered the claimant’s symptoms and the
corresponding medical record. The ALJ concluded that, although the claimant’s
medically determinable impairments could reasonably be expected to cause his
symptoms, the claimant’s allegations regarding the intensity, persistence, and limiting
effects of those symptoms were not fully credible when compared with the evidence. (R.
First, the ALJ considered the claimant’s coronary artery disease allegations in
light of the medical record. She discussed the angiography the claimant underwent on
June 18, 2012, which showed severe proximal left anterior descending artery disease, but
no obstructive coronary artery disease. The ALJ noted that post procedure stenosis was
improved, and a follow-up stress test on August 7, 2012 was normal. (R. 17).
The ALJ then looked to the cardiac rehabilitation notes to show that the
claimant’s cardiac issues were improving. The ALJ stated that on August 2012, tests
showed no cardiac issues or symptoms, and the claimant expressed that his endurance
was improving. Then, on November 6, 2012, the claimant told his neurologist that he had
not fully engaged in cardiac rehab, and that he continued to have chest pain while
walking and to be short of breath. The ALJ noted that on that same day, the claimant’s
cardiologist noted that his coronary artery disease and hypertension were stable. (R. 17).
The ALJ explained that the claimant’s chest plain was frequently dismissed as
non-cardiac related. For example, the ALJ looked to the November 30, 2012 emergency
room visit, during which cardiac catheterization showed a stable stent and no obstructive
disease. The ALJ noted that after four days of being monitored, the hospital discharged
the claimant with his previously prescribed cardiac medication, and doctors noted that the
chest pain was likely musculoskeletal in nature. (R. 17).
Similarly, the ALJ looked at the claimant’s emergency room visit on December
10, 2013. The ALJ noted that the cardiac markers were all negative and that the treating
physician again thought the chest pain was a musculoskeletal problem. Then, the ALJ
looked at the follow- up appointment on February 18, 2014, when the claimant’s
cardiologist opined that the claimant’s chest pain was unlikely heart related. (R. 18).
Second, the ALJ considered the claimant’s degenerative disc disease allegations
in light of the medical record. The ALJ began by referencing the claimant’s June 1, 2012
MRI, which revealed mild central canal narrowing and cord compression at C6-C7. She
then compared the June MRI with an MRI taken on December 3, 2013 and an x-ray taken
on February 18, 2013 to show only minimal degenerative progression. (R. 18).
The ALJ pinpointed December 2012 as the month the claimant began
experiencing slightly reduced grip in his hands. The ALJ stated that the claimant
ultimately underwent a C6-C7 anterior cervical discectomy with fusion on August 30,
2013; however, the claimant maintained full range of motion during his cardiology
follow-up on February 18, 2014. (R. 18).
While the objective evidence does reveal abnormalities, the medical findings do
not support the degree of debilitation alleged. For example, the ALJ noted that the MRI’s
taken do show significant changes in the cervical spine; however, the claimant’s strength
over time has only decreased slightly. Similarly, although the MRI’s revealed some nerve
root compression, the claimant ambulated normally. (R. 19).
The ALJ then considered the claimant’s daily activities and determined that,
because the claimant reported that he mowed his lawn two weeks after heart surgery,
walks approximately 2 miles several times per week, attended his children’s sporting
events, and recently took a thirteen-hour road trip from Alabama to New York, his daily
activities support light work capabilities. Furthermore, the ALJ noted that the claimant’s
cardiologist released him back to work, as long as he only performed the equivalent of
light work. Similarly, the ALJ stated that the neurosurgeon who performed the claimant’s
spinal surgery opined that the claimant could engage in activity as tolerated, but should
not participate in strenuous activity. The ALJ determined that these factors undermine
allegations of the severity and frequency of the claimant’s symptoms. (R. 21-22).
Finally, the ALJ, relying on the vocational expert’s testimony, found that the
claimant is unable to perform any of his past relevant work. The ALJ determined that
based on the claimant’s age, education, work experience, residual functional capacity,
and the vocational expert’s testimony, jobs existed in significant numbers in the national
economy that the claimant could perform. (R. 23).
The claimant argues that the ALJ improperly discredited the claimant’s subjective
complaints of pain and characterizations of his physical limitations. To the contrary, this
court finds that substantial evidence supports the ALJ’s findings and that she applied the
appropriate legal standards to her evaluation of the claimant’s subjective complaints and
allegations of pain.
A Commissioner evaluating a claimant’s pain and other subjective complaints
must first consider whether the claimant demonstrated an underlying medical condition.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); see also Wilson v. Barnhart, 284
F.3d 1219, 1221 (11th Cir. 2002); 20 C.F.R. § 404.1529. If the claimant demonstrates an
underlying medical condition, the Commissioner must then determine if any objective
medical evidence confirms the severity of the alleged pain, or if the underlying medical
condition has been objectively confirmed and is so severe that one could reasonably
expect it to give rise to the alleged pain. Holt, 921 F.2d at 1223. Subjective testimony can
satisfy the pain standard if the testimony is supported by objective medical evidence.
Foote v. Chater, 67 F.3d 1553, 1561(11th Cir. 1995).
The ALJ must articulate reasons for discrediting the claimant’s subjective
testimony. Foote, 67 F.3d at 1561-62; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir.
1991). The reasons articulated for discrediting the claimant’s testimony may include the
claimant’s daily activities. Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984).
However, if the ALJ does not articulate reasons, the court must accept the claimant’s
testimony as true. Holt, 921 F.2d at 1236.
On March 16, 2016, the Social Security Administration issued a Notice of Social
Security Ruling, which provides guidance and clarification on how to evaluate claimant
statements about “the intensity, persistence, and limiting effects of symptoms in disability
claims under Titles II and XVI . . . and blindness claims under Title XVI of the Act.”
SSR 16-3p, 81 Fed. Reg. 14166-01 (Mar. 16, 2016). Concerned that subjective evidence
was being viewed in light of the claimant’s personal character, the Social Security
Administration clarified the two step pain standard, eliminating the term “credibility,”
and delineating that evaluation of subjective evidence is not an analysis of the claimant’s
Step 1: We Determine Whether the Individual Has a Medically
Determinable Impairment (MDI) That Could Reasonably be Expected to
Produce the Individual’s Alleged Symptoms . . . Step 2: We Evaluate the
Intensity and Persistence of an Individual’s Symptoms Such as Pain and
Determine the Extent to Which an Individual’s Symptoms Limit His or
Her Ability To Perform Work-Related Activities for an Adult or To
Function Independently, Appropriately, and Effectively in an AgeAppropriate Manner for a Child With a Title XVI Disability Claim.
Id. (emphasis omitted).
The Social Security Administration did not explicitly deem this ruling retroactive,
and neither the Eleventh Circuit nor any district court within it has addressed the ruling’s
retroactivity. See Hargress v. Berryhill, No. 4:16-cv-1079-CLS, 2017 WL 588608, at *2
(N.D. Ala. Feb. 14, 2017) (stating that “[t]he retroactivity of the Rule has not been
directly addressed by any Circuit Court of Appeals, or by any district court within this
Circuit.”). However, even if the court applied SSR 16-3p retroactively, the ALJ did not
violate it in this case. See id. (explaining that “[e]ven though the ALJ used the word
‘credible,’ he did not assess claimant’s general, or ‘overall’ character or truthfulness.”).
Although the ALJ in this case used the term “credible” throughout the opinion, she did
not use the term to assess the claimant’s character. The ALJ properly analyzed the
claimant’s subjective evidence in light of the objective medical evidence to determine
that the subjective evidence was not medically supported.
Furthermore, the ALJ properly articulated her reasons for finding that the
claimant’s testimony about his pain and characterization of his physical capabilities do
not warrant a disability. The ALJ concluded that, although the claimant’s medically
determinable impairments could reasonably be expected to cause symptoms, the
claimant’s allegations regarding the intensity, persistence, and limiting effects of these
symptoms were not fully consistent with the evidence. (R. 17).
The ALJ set forth several reasons for finding the claimant’s allegations
inconsistent with the evidence. She found that the objective medical evidence conflicted
with the claimant’s allegations. When evaluating the alleged pain caused by coronary
artery disease in light of the medical record, the ALJ explained that not only were the
claimant’s cardiac issues improving over time, the chest pain the claimant complained of
was not cardiac related. The ALJ pointed to two emergency room visits, during which
treating physicians noted that the chest pain was likely musculoskeletal in nature.
Furthermore, the claimant admitted that he could walk one and a half miles in less than
twenty minutes without significant difficulty. (R. 17-18).
The ALJ then considered pain allegations caused by degenerative disc disease in
light of the medical record to determine that the claimant’s allegations do not withstand
objective medical evidence. (R. 19). The ALJ compared the first MRI taken on June 1,
2012 to the MRI taken on December 3, 2013 after the claimant’s spinal fusion to
determine that there was only minimal degenerative progression. Then, the ALJ outlined
the multiple occasions the claimant complained of back pain, and pointed to the record to
indicate that the claimant maintained full strength, sensation, reflexes, and range of
motion throughout the entire timeline. Most notably, the ALJ references the August 30,
2013 spinal fusion, and although the ALJ points out that the post-surgery medical record
is sparse, the record shows that the claimant maintained full range of motion during his
cardiology follow-up on February 18, 2014. (R. 18). 6
The ALJ also considered the claimant’s daily activity characterizations. The ALJ
pointed out that the claimant reported to have mowed his lawn only two weeks after heart
surgery, and that that he consistently walks around his neighborhood without significant
difficulty. She also noted that the claimant attended every one of his children’s sporting
events, often transporting them to practice, and recently took a thirteen-hour road trip
from Alabama to New York. (R. 21)
Lastly, the ALJ referenced two significant medical records implying that the
claimant is capable of performing light work. First, the ALJ noted that the claimant’s
cardiologist released him back to work, restricting him to the equivalent of light work.
Second, his neurosurgeon allowed him to engage in activity as tolerated immediately
after spinal fusion surgery. While the ALJ did point out that the objective evidence does
reveal abnormalities, the ALJ concluded that the objective medical evidence does not
support allegations that the claimant is not capable of performing light work. (R. 22).
The court finds that these reasons constitute substantial evidence to support the
ALJ’s determination that the claimant’s subjective complaints do not warrant a disability.
The record indicates two discontinued physical therapy orders because of the claimant’s
failure to attend physical therapy. Furthermore, the order form gives the referring
physician the option to inform the physical therapist of limitations on lifting and/or a
cardiac pulse cap; however, Dr. Noerager marked “none,” implying that the claimant had
no weight limitation or cardiac restrictions. (R. 1542-46).
Consequently, the ALJ properly characterized the claimant’s subjective complaints in
light of the objective evidence presented.
For the reasons stated above, this court concludes that substantial evidence
supports the Commissioner’s decision. Accordingly, this court AFFIRMS the decision of
The court will enter a separate Order in accordance with the Memorandum
DONE and ORDERED this 21st day of March, 2017.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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