Harper v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION. For the reasons discussed, the Court finds that substantial evidence supports the ALJ's decision, and the ALJ applied proper legal standards. The Court will not reweigh the evidence or substitute its judgment for that of the Commissioner. Accordingly, the Court affirms the Commissioner. The Court will enter a separate final judgment consistent with this memorandum opinion. Signed by Judge Madeline Hughes Haikala on September 29, 2017. (Haikala, Madeline)

FILED
2017 Sep-29 PM 09:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM HARPER,
Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 2:16-CV-00669-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff William Harper seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied Mr. Harper’s claims for a period of disability, disability
insurance benefits, and supplemental security income. After careful review, the
Court affirms the Commissioner’s decision.1
I.

PROCEDURAL HISTORY AND BACKGROUND
Mr. Harper applied for a period of disability, disability insurance benefits,

and supplemental security income on July 26, 2012. (Doc. 9-4, pp. 3-4; Doc. 9-7,
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).

pp. 2, 4). Mr. Harper alleges that his disability began on August 10, 2010. (Doc.
9-3, p. 48).2 The Commissioner initially denied Mr. Harper’s claims on October
25, 2012.

(Doc. 9-5, pp. 8-17).

administrative law judge (ALJ).

Mr. Harper requested a hearing before an
(Doc. 9-5, pp. 24-25).

The ALJ issued an

unfavorable decision on October 20, 2014. (Doc. 9-3, pp. 28-38). On April 12,
2016, the Appeals Council declined Mr. Harper’s request for review (Doc. 9-3, p.
2), making the ALJ’s decision final and a proper candidate for this Court’s judicial
review. See 42 U.S.C. §§ 405(g), 1383(c).
II.

STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the

ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether substantial evidence in the record
supports the ALJ’s factual findings. “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
2

Mr. Harper originally alleged that his disability began on November 10, 2007 (Doc. 9-7, pp. 2,
4), but he amended the date during his hearing with the ALJ. (Doc. 9-3, p. 48).
2

(11th Cir. 2004). In evaluating the administrative record, the Court may not
“decide the facts anew, reweigh the evidence,” or substitute its judgment for that of
the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir.
2011) (internal quotations and citation omitted). If substantial evidence supports
the ALJ’s factual findings, then the Court “must affirm even if the evidence
preponderates against the Commissioner’s findings.” Costigan v. Comm’r, Soc.
Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d
at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court will reverse the ALJ’s decision, unless the error is harmless.
Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that he is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
3

Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Mr. Harper has not engaged in substantial
gainful activity since August 10, 2010, the alleged onset date. (Doc. 9-3, p. 30).
The ALJ determined that Mr. Harper suffers from the following severe
impairments: degenerative disc disease and obesity. (Doc. 9-3, p. 30). Based on a
review of the medical evidence, the ALJ concluded that Mr. Harper does not have
an impairment or a combination of impairments that meets or medically equals the
severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Doc. 9-3, p. 31).
In light of Mr. Harper’s impairments, the ALJ evaluated Mr. Harper’s
residual functional capacity or RFC. The ALJ determined that Mr. Harper has the
RFC to perform:
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant can lift and carry ten (10) pounds occasionally
and less than ten (10) pounds frequently; sit for six (6) hours in an
eight-hour (8-hour) workday; stand and walk for two (2) hours in an
eight-hour (8-hour) workday; never climb ladders, ropes or scaffolds;
occasionally climb ramps and stairs; occasionally balance, stoop,
crouch, kneel, and crawl; never reach overhead; should avoid all
4

exposure to workplace hazards such as dangerous machinery and
unprotected heights; avoid concentrated exposure to temperature
extremes; avoid prolonged or repetitive rotation, hyperextension, and
flexion of the neck; and can maintain attention and concentration for
two-hour (2-hour) periods at a time, notwithstanding pain.
(Doc. 9-3, p. 31).
Based on this RFC evaluation, the ALJ concluded that Mr. Harper is not able
to perform his past relevant work. (Doc. 9-3, p. 36). Relying on testimony from a
vocational expert, the ALJ found that jobs exist in the national economy that Mr.
Harper can perform, including dowel inspector, cuff folder, and button reclaimer.
(Doc. 9-3, p. 37). Accordingly, the ALJ determined that Mr. Harper is not disabled
within the meaning of the Social Security Act, and the ALJ denied Mr. Harper’s
claim for benefits. (Doc. 9-3, pp. 37-38).
IV.

ANALYSIS
Mr. Harper argues that he is entitled to relief from the ALJ’s decision

because the ALJ did not give appropriate weight to the testimony of three
examining consultative physicians, and the ALJ improperly discredited Mr.
Harper’s subjective pain testimony. The Court disagrees.
A.

Substantial evidence supports the ALJ’s evaluation of the medical
opinion evidence.

Mr. Harper argues that when the ALJ evaluated his residual functional
capacity, the ALJ failed to give appropriate weight to the opinions of three
5

consultative examiners: Dr. Adam Nortick, Dr. Emmanuel Odi, and Dr. Richard
Harris. (Doc. 16, pp. 3-11). When determining a claimant’s RFC, an ALJ must
weigh the evidence and resolve material conflicts in testimony. See 20 C.F.R. §§
404.1546(c) & 416.946(c); Battle v. Astrue, 243 Fed. Appx. 514, 523 (11th Cir.
2007); Walker v. Bowen, 826 F.2d 996, 1000 n.1 (11th Cir. 1987). An ALJ does
not adopt the opinion of any one medical source but instead considers the totality
of the evidence in arriving at a conclusion on the ultimate question of disability.
See 20 C.F.R. §§ 404.1527(b)-(c) & 416.927(b)-(c); Phillips v. Barnhart, 357 F.3d
1232, 1241 (11th Cir. 2004).
When weighing medical testimony, an ALJ generally gives more weight to
the opinion of a source who examined the claimant.

See 20 C.F.R. §§

404.1527(c)(1) & 416.927(c)(1). Medical opinions from treating sources usually
carry the most weight because these sources are able to provide a detailed, longterm picture of a claimant’s medical conditions. 20 C.F.R. §§ 404.1527(c)(2) &
416.927(c)(2). In contrast, an ALJ need not give special deference or weight to the
opinions of non-treating, one-time examiners.

Crawford, 363 F.3d at 1160

(holding that, in general, the opinion of a one-time examining physician is “not
entitled to great weight”) (citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.
1987)); Eyre v. Comm’r, Soc. Sec. Admin., 586 Fed. Appx. 521, 523 (11th Cir.
6

2014) (“The ALJ owes no deference to the opinion of a physician who conducted a
single examination . . . .”). An ALJ may discount a doctor’s opinion when the
opinion is conclusory, the doctor fails to provide objective medical evidence to
support an opinion, the opinion is inconsistent with the record as a whole, or the
evidence otherwise supports a contrary finding. See 20 C.F.R. §§ 404.1527(c) &
416.927(c); Phillips, 357 F.3d at 1240-41.
As the ALJ noted in her opinion, Mr. Harper has been treated for back pain
since 2007. (Doc. 9-3, p. 32). A number of Mr. Harper’s medical records appear
in the administrative record. (Doc. 9-10, pp. 3-4, 9-13, 15-23; Doc. 9-11, pp. 1821, 25-26, 62-65, 67-78; Doc. 9-14, pp. 13-14, 19-20, 27-33, 43-61, 64-71; Doc. 915, pp. 27-36, 55-62, 65-83, 86-87; Doc. 9-16, pp. 4-59).

Although treating

physicians consistently have found that Mr. Harper suffers from back pain, the
physicians generally have recommended conservative treatment, and none imposed
physical restrictions.3
3

In June 2008, Dr. Stan Stehr encouraged Mr. Harper to complete a charity care application so
that an orthopedic surgeon could see Mr. Harper and recommend treatment options. (Doc. 9-11,
p. 72; Doc. 9-14, p. 48). Otherwise, Dr. Stehr explained that he could provide Mr. Harper a
referral to a pain clinic for treatment options for his back pain. (Doc. 9-11, p. 72; Doc. 9-14, p.
48).
In January 2009, Mr. Harper saw Dr. Stehr and requested a surgical evaluation. (Doc. 9-11, p.
69; Doc. 9-14, p. 43). Dr. Stehr noted that Mr. Harper had had “limited success with medical
management,” finding little relief from two epidural injections. (Doc. 9-11, p. 69). Dr. Stehr
also noted that Mr. Harper was not using prescription medication for his back, but he
occasionally used marijuana. (Doc. 9-11, p. 69). Dr. Stehr stated that he would “refer Mr.
7

The administrative record in this case also contains opinions from the three
consultative examiners who Mr. Harper identified and from a state agency
consultant. The four opinions run the gamut. The ALJ’s selection of a sedentary
RFC with a host of limitations reflects a reconciliation of the conflicts in these four
opinions, and substantial evidence supports the RFC.
Dr. Odi, one of the three consultative physicians, examined Mr. Harper on
August 24, 2011. (Doc. 9-14, pp. 98-102). Mr. Harper rated his pain as 10/10.
Mr. Harper reported that he was unable to sit for more than 30 minutes or stand for
more than 10 minutes without experiencing what he described as excruciating pain;
however, Mr. Harper also reported that he did not take strong pain medication.
(Doc. 9-14, p. 98). Dr. Odi noted that Mr. Harper had significant tenderness,
normal range of motion except in the dorsolumbar spine, walked with a slow
limping gait, and used a cane. (Doc. 9-14, pp. 99-102). Dr. Odi indicated that Mr.

Harper for surgical evaluation of his symptoms and possible treatment options,” and Dr. Stehr
prescribed Ultram for pain treatment. (Doc. 9-11, p. 70; see also Doc. 9-14, p. 44).
In July 2009, Dr. Robert Brunner examined Mr. Harper and consulted with Dr. Stehr. The
record from that visit indicates that Dr. Brunner or Dr. Stehr would refer Mr. Harper to
neurosurgery “for an evaluation and possible surgical options for his chronic back pain.” (Doc.
9-14, p. 20). The record states that a March 2009 MRI indicated a slight disc bulge at L5-S1, but
the physician indicated that it was “unlikely” that the minimal bulge could “completely account”
for all of Mr. Harper’s symptoms. (Doc. 9-14, p. 20). The record indicates a continuation of the
Ultram prescription and the addition of a prescription for Robaxin. (Doc. 9-14, p. 20).
The Court has not located in the record a recommendation from a physician that Mr. Harper have
surgery to treat his back pain.
8

Harper was limited in his ability to sit and stand due to chronic severe low back
pain and that this pain would prevent gainful employment. (Doc. 9-14, p. 100).
The ALJ assigned little weight to Dr. Odi’s opinions based on her determination
that Dr. Odi’s opinions are inconsistent with his findings and with the objective
medical evidence of record as a whole. (Doc. 9-3, p. 34).4
Dr. Harris, an orthopedic surgeon, also examined Mr. Harper but did not
treat him. During the December 19, 2013 examination, Dr. Harris found that Mr.
Harper had full range of motion except in the lumbar spine, 5/5 muscle strength in
the upper and lower extremities, hypoactive reflexes in his upper extremities,
tenderness in his lumbar spine, a slow gait, difficulty walking on his toes and heels,
and difficulty squatting and rising. (Doc. 9-17, p. 13).5 Dr. Harris observed that
Mr. Harper exaggerated his symptoms on the range of motion testing. (Doc. 9-17,
p. 13).

Dr. Harris diagnosed Mr. Harper with mild cervical and lumbar

degenerative arthritis with evidence of symptom magnification. (Doc. 9-17, p. 13).
He opined that Mr. Harper did not require a cane to ambulate and stated that Mr.
4

Dr. Odi’s opinion that Mr. Harper could not obtain or maintain gainful employment constitutes
an opinion on an issue reserved for the Commissioner. Therefore, the opinion is not entitled to
special weight or deference. See 20 C.F.R. §§ 404.1527(d)(3) & 416.927(d)(3).

5

Consistent with the Court’s assessment of the medical records from Mr. Harper’s treating
physicians (see note 3 above), Dr. Harris noted that Mr. Harper had had no surgery for his back,
and Dr. Harris reported that Mr. Harper stated that surgeons had told him that he was too young
to have surgery. (Doc. 9-17, p. 13).
9

Harper was capable of sedentary work. (Doc. 9-17, pp. 13, 15). The ALJ assigned
some weight to Dr. Harris’s opinion.6
The ALJ gave significant weight to an evaluation from Dr. Whitney, a state
agency medical consultant who, in September 2011, reviewed Mr. Harper’s
medical records but did not examine him. (Doc. 9-3, p. 35; see Doc. 9-15, pp. 29). Dr. Whitney noted an April 2011 MRI which showed mild degenerative disc
disease causing mild foraminal stenosis; however, Dr. Whitney also stated that
there was no objective physical evidence that Mr. Harper should be as limited as
Dr. Odi indicated. (Doc. 9-15, pp. 3-4). Dr. Whitney concluded that Mr. Harper
retained the ability to lift and carry up to 20 pounds occasionally and 10 pounds
frequently, to stand and walk for up to 6 hours each day, and to sit for an unlimited
amount of time during an 8-hour workday. (Doc. 9-15, p. 3). The ALJ gave more
weight to Dr. Whitney’s opinions because the ALJ determined that the objective
medical evidence on the whole did not fully support the examining physicians’
assessments. Wainwright v. Comm’r of Soc. Sec., 2007 WL 708971 at *2 (11th

6

Mr. Harper argues that Dr. Harris recommended numerous work limitations inconsistent with
sedentary work, including an inability to sit, stand, or walk for more than 15 minutes at a time
and an inability to work more than a total of 4 hours in an 8-hour workday. (Doc. 9-17, p. 15).
Dr. Harris identified no objective medical or clinical findings to support these limitations. (Doc.
9-17, pp. 14-19). Because Dr. Harris’s assessment of Mr. Harper’s limitations, like Dr. Odi’s,
was not supported by the objective medical evidence as a whole, the ALJ gave “only some
weight” to Dr. Harris’s opinion. (Doc. 9-3, p. 34).
10

Cir. Mar. 9, 2007) (concluding that the ALJ could reject the opinion of an
examining psychologist because the opinion was contrary to the opinions and
assessments of the state agency psychologists); see generally Vuxtra v. Comm’r of
Soc. Sec., 194 Fed. Appx. 874, 876 (11th Cir. 2006) (stating that the ALJ must
consider non-examining state agency physicians’ opinions).
The ALJ did not assign weight to a report from Dr. Nortick, the third
consultative physician who examined Mr. Harper. Dr. Nortick examined Mr.
Harper 13 months before Mr. Harper’s alleged onset date of August 10, 2010.
Based on the July 2009 examination, Dr. Nortick concluded that Mr. Harper had
degenerative disc disease in the thoracic spine, lumbar recess stenosis, lumbar disc
protrusion with abutment of the nerve root, lumbar back pain, and lumbar radicular
pain. (Doc. 9-10, p. 42). Dr. Nortick also assessed Mr. Harper’s ability to perform
certain common activities, and he concluded that Mr. Harper could lift 21-50
pounds occasionally, lift 11-20 pounds frequently, and lift up to 10 pounds
continuously, carry up to 10 pounds occasionally, and walk with a cane because of
an unsteady gait, leaving one hand available for carrying; sit for 1 hour at a time,
stand for 15 minutes at a time, and walk for 15 minutes at a time; and during the
course of an 8-hour workday, sit for a total of 4 hours, walk for a total of 1 hour,
and stand for a total of 1 hour. (Doc. 9-10, pp. 25-26). Dr. Nortick concluded that
11

Mr. Harper should never climb stairs, ramps, ladders, or scaffolds; balance; stoop;
kneel; crouch; or crawl. (Doc. 9-10, p. 28).
The ALJ stated that she did not consider Dr. Nortick’s opinion because, in
the ALJ’s view, the opinion was “too remote in time to consider.” (Doc. 9-3, p.
34).

The applicable regulations state that an ALJ has a duty to “develop [a

claimant’s] complete medical history for at least the 12 months preceding the
month in which” the claimant files his application. 20 C.F.R. §§ 404.1512(b)(1),
416.912(d). That obligation does not preclude an ALJ from considering a medical
opinion that predates an application date (or protective filing date) by more than 12
months. An ALJ must consider and assign weight to every medical opinion. See
20 C.F.R. §§ 404.1527(c), 416.927(c) (“Regardless of its source, we will evaluate
every medical opinion we receive.”); see also McCloud v. Barnhart, 166 Fed.
Appx. 410, 418 (11th Cir. 2006) (“The ALJ may reject the opinion of any
physician when the evidence supports a contrary conclusion,” but the ALJ must
“state with particularity the weight he gives to different medical opinions and the
reasons why.”). The Commissioner has not identified, and this Court has not
located, authority that suggests that an ALJ may avoid the obligation to evaluate a

12

medical opinion and state the weight given to the opinion simply by designating
the opinion “too remote in time.”7
The Commissioner accurately points out that Dr. Nortick examined Mr.
Harper in connection with Mr. Harper’s previous application for Social Security
benefits. (Doc. 19, p. 13; see also Doc. 9-10, p. 31, compare current July 2012
application date). The Commissioner argues that because Dr. Nortick’s opinion
relates to a period in which the Commissioner has found that Mr. Harper was not
disabled, Dr. Nortick’s opinion is “too remote in time.” The “too remote in time
designation” still has no legal significance and is not a sound basis for failing to
evaluate Dr. Nortick’s opinion.
The Commissioner’s argument is better-framed as an argument concerning
administrative res judicata. “Administrative res judicata applies when the agency
has made a ‘previous determination or decision . . . about [a claimant’s] rights on
the same facts and the same issue or issues, and this previous determination or
decision [had] become final by either administrative or judicial action.’” McKinzie
v. Comm’r of Soc. Sec., 362 Fed. Appx. 71, 73 (11th Cir. 2010) (quoting 20 C.F.R.
§ 404.957(c)(1)). When evaluating a pending claim for benefits, an ALJ may
consider evidence that was part of the administrative record for a prior application
7

An ALJ may give an opinion less weight when the opinion predates the claimant’s benefits
application by a significant period of time, but the ALJ still must articulate the weight she
assigned to the opinion or identify a legitimate basis for refusing to evaluate the opinion.
13

without reopening the prior decision and running afoul of the concept of
administrative res judicata. Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996).
An ALJ may use evidence contained in a prior administrative record to identify
“preliminary facts required to assess rationally the question at issue, i.e., whether
[the claimant] was disabled at the time of the second application.” Rohrich v.
Bowen, 796 F.2d 1030, 1031 (8th Cir. 1986) (stating that ALJ properly
summarized medical examinations from 1978, 1979, and 1980 relating to prior
application for benefits for purposes of evaluating 1982 application for benefits)
(cited with approval in Wolfe).8 An ALJ also may examine evidence from a prior
administrative record to determine the res judicata effect of the evidence with
respect to the latter, pending application. Wolfe, 86 F.3d at 1078-79. An ALJ
crosses the line and reopens a prior administrative decision when the ALJ
evaluates the merits of the prior disability determination. Wolfe, 86 F.3d at 1079.9

8

See also Hamlin v. Barnhart, 365 F.3d 1208, 1223 n. 15 (10th Cir. 2004) (“While these medical
reports date from an earlier adjudicated period, they are nonetheless part of Mr. Hamlin’s case
record, and should have been considered by the ALJ.”); DeBoard v. Comm’r of Soc. Sec., 211
Fed. Appx. 411, 414 (6th Cir. 2006) (“We do not endorse the position that all evidence or
medical records predating the alleged date of the onset of disability, or evidence submitted in
support of an earlier proceeding, are necessarily irrelevant or automatically barred from
consideration by res judicata. We recognize that evidence presented at an earlier hearing or
predating the onset of disability, when evaluated in combination with later evidence, may help
establish disability.”) (emphasis in DeBoard).
9

Dictum from an unpublished Eleventh Circuit opinion indicates that an ALJ is not required to
consider evidence that was part of the administrative record for a previous disability application.
Luckey v. Astrue, 331 Fed. Appx. 634, 640 n. 1 (11th Cir. 2007) (“We recognize the force of the
14

The Court need not decide whether the principle of administrative res
judicata would apply to Dr. Nortick’s opinion because the ALJ’s failure to consider
Dr. Nortick’s opinion is harmless error. “An error is harmless if it does not affect
the ALJ’s ultimate decision.” Colon v. Colvin, 660 Fed. Appx. 867, 869 (11th Cir.
2016) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)). Dr. Nortick’s
opinion would not have changed the ALJ’s decision because Dr. Nortick’s opinion
is most consistent with Dr. Odi’s opinion, and, as stated, substantial evidence
supports the ALJ’s decision to give little weight to Dr. Odi’s opinion. Considering
the totality of the evidence, the opinions from Dr. Harris and Dr. Whitney still
would carry the day if the ALJ were to factor Dr. Nortick’s opinion into the
equation.
Accordingly, under the circumstances of this case, the ALJ’s failure to
assign weight to Dr. Nortick’s opinion does not warrant remand because “the
correct application [of the regulations] would not contradict the ALJ’s ultimate
findings.”

Wright v. Barnhart, 153 Fed. Appx. 678, 684 (11th Cir. 2005).

Substantial evidence supports the RFC for sedentary work.

argument that the ALJ was not required to consider [Dr.] Oatley’s diagnoses because they
pertained only to Luckey’s previous disability application.”). Under the Luckey dictum, an ALJ
seems to have discretion to decide whether to consider medical evidence that was part of a prior
administrative record.
15

B.

Substantial evidence supports the ALJ’s evaluation of Mr.
Harper’s subjective pain testimony.

“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.’”
Zuba-Ingram v. Comm’r of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir. 2015)
(quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam)).
A claimant’s testimony, coupled with evidence that meets this standard, “is itself
sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991) (citation omitted); see also SSR 96-7p, 1996 WL 374186.10
In this case, the ALJ determined that Mr. Harper’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but
Mr. Harper’s “statements concerning the intensity, persistence and limiting effects
of these symptoms [were] not entirely credible.” (Doc. 9-3, p. 32). The ALJ
noted, for example, that despite Mr. Harper’s complaints of disabling back pain,
10

On March 28, 2016, SSR 16-3p superseded SSR 96-7p, the ruling concerning subjective
complaints of pain that was in effect when the ALJ issued a decision in this case. SSR 16-3p, 81
Fed. Reg. 14166, 14167, 2016 WL 1237954. SSR 16-3p does not apply retroactively to cases
such as this one. Green v. Comm’r of Soc. Sec., 2017 WL 3187048 at *4 (11th Cir. July 27,
2017) (unpublished opinion).
16

his x-rays showed only mild cervical and lumbar degenerative arthritis. (Doc. 9-3,
p. 32; see also Doc. 9-14, p. 96; Doc. 9-15, p. 4; Doc. 9-16, p. 6). The ALJ also
noted that other than one emergency room visit in November 2013 where he
appeared with a cane, Mr. Harper had not sought treatment for his back pain since
2012. (Doc. 9-3, p. 32; see also Doc. 9-17, p. 27-31); see SSR 96-7p, 1996 WL
374186, at *7 (noting that an individual’s statements may be less credible if the
level or frequency of treatment is inconsistent with the level of complaints).
During the November 2013 emergency room visit, Mr. Harper tested
positive for marijuana and the examining physician noted Mr. Harper’s history
with recreational drug usage. (Doc. 9-3, p. 32; Doc. 9-17, p. 29). Mr. Harper
became angry, denied the marijuana use, and left before receiving his prescription
for anti-inflammatory medication. (Doc. 9-17, p. 29). The treating physician
indicated that Mr. Harper exhibited drug-seeking and malingering behavior. (Doc.
9-17, p. 29). The physician also observed that when exiting the hospital, Mr.
Harper was ambulatory without weakness, and Mr. Harper carried his cane without
difficulty. (Doc. 9-17, p. 29). Although Mr. Harper testified at the hearing that he
was unable to afford treatment (Doc. 9-3, pp. 49-51), the ALJ stated that Mr.
Harper could have used the money that he spent on recreational drugs to obtain
pain treatment. (Doc. 9-3, p. 33); see East v. Barnhart, 197 Fed. Appx. 899, 90417

05 (11th Cir. 2006) (claimant’s decision to purchase cigarettes with child support
funds was a basis for discrediting the claimant’s testimony that she could not
afford her prescription medication); Sias v. Sec’y of Health & Human Servs., 861
F.2d 475, 480 (6th Cir. 1988) (taking judicial notice of the cost of purchasing
cigarettes in rejecting the plaintiff’s claim that he could not afford the support hose
prescribed for his thrombosis).11
The ALJ properly evaluated Mr. Harper’s subjective complaints within the
context of the record as a whole and adequately explained her reasons for rejecting
Mr. Harper’s pain testimony. See Dyer v. Barnhart, 395 F.3d 1206, 1212 (11th
Cir. 2005) (concluding that the district court committed reversible error in
overturning the ALJ’s decision where the ALJ had adequately explained his
reasons for discrediting the plaintiff’s testimony); Werner v. Comm’r of Soc. Sec.,
421 Fed. Appx. 935, 939 (11th Cir. 2011) (“The question is not . . . whether the
ALJ could have reasonably credited [claimant’s] testimony, but whether the ALJ
was clearly wrong to discredit it.”).
V.

CONCLUSION
For the reasons discussed above, the Court finds that substantial evidence

supports the ALJ’s decision, and the ALJ applied proper legal standards. The
11

In East, the claimant did not challenge the ALJ’s reasons for rejecting her pain testimony.
East, 197 Fed. Appx. at 905.
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Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner. Accordingly, the Court affirms the Commissioner. The Court will
enter a separate final judgment consistent with this memorandum opinion.
DONE and ORDERED this September 29, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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