Thompson v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/10/2014. (PSM)
2014 Jun-10 AM 10:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MATTIE M. THOMPSON,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
CIVIL ACTION NO.
Plaintiff Mattie M. Thompson (“Thompson”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence. Therefore, for the reasons elaborated herein, the
court will affirm the decision denying benefits.
I. Procedural History
Thompson filed an application for Title II disability insurance benefits and
Title XVI Supplemental Security Income, on August 28, 2009, alleging a disability
onset date of August 1, 2008, due to loss of hearing in her left ear, and knee, elbow,
and ankle problems. (R. 16, 175). After the SSA denied Thompson’s claim, she
requested a hearing before an ALJ. (R. 72-73). The ALJ subsequently denied
Thompson’s claim, (R. 13-22), which became the final decision of the
Commissioner when the Appeals Council refused to grant review. (R. 1-6).
Thompson then filed this action for judicial review pursuant to § 205(g) of the Act,
42 U.S.C. § 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, See 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. § 405(g)
mandates that the Commissioner’s “factual findings are conclusive if supported by
‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The district court may not reconsider the facts, reevaluate the evidence, or substitute
its judgment for that of the Commissioner; instead, it must review the final decision
as a whole and determine if the decision is “reasonable and supported by substantial
evidence.” See id. (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983)). Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
This standard is referred to as the Hand standard, named after Hand v. Heckler,
761 F.2d 1545, 1548 (11th Cir. 1985).
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
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony,
then the [ALJ], as a matter of law, has accepted that testimony as true.
Implicit in this rule is the requirement that such articulation of reasons
by the [ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that
Thompson met the insured status requirements of the Act through June 30, 2013.
(R. 18). Moving to the first step, the ALJ found that Thompson had not engaged in
substantial gainful activity since August 1, 2008, and, therefore, met Step One. Id.
Next, the ALJ found that Thompson satisfied Step Two because she suffered from
the severe impairments of “osteoarthritis of the bilateral knees, obesity, and mild
hearing loss without the use of hearing aids.” Id. The ALJ then proceeded to the
next step and found that Thompson failed to satisfy Step Three because she “does
not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments.” (R. 19). Although the ALJ answered Step
Three in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the
ALJ proceeded to Step Four where he determined that through Thompson’s DLI
has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except the claimant [is
limited] to only occasional pushing and pulling of the lower
extremities, occasional climbing of ramps and stairs, balancing,
stooping, kneeling, crouching, and crawling. The claimant is
restricted to no climbing of ladders, ropes, or scaffolds, and must
avoid all exposure to unprotected heights and dangerous machinery.
The claimant further must avoid concentrated exposure to extreme
heat and cold, wetness, humidity, noise, vibration, and fumes, odors,
dusts, and gasses.
(R. 19). As of the date of the ALJ’s decision, Thompson was 45 years old, (R.
100), and had past relevant work experience as a teacher, substitute teacher, and
day care center director. (R. 22, 38-39). In light of Thompson’s RFC, the ALJ
found that Thompson was “capable of performing past relevant work as a day care
center director, substitute teacher, and teacher.” (R. 22). Therefore, the ALJ found
that Thompson “has not been under a disability, as defined in the Social Security
Act, from August 1, 2008, through the date of this decision.” Id.
The court now turns to Thompson’s contentions that the ALJ erred because
he failed to (1) properly assess her credibility; (2) obtain vocational expert
testimony; and (3) properly consider her impairments in combination. See doc. 11
at 7-11. The court addresses each contention in turn.
The ALJ properly assessed Thompson’s credibility.
Thompson contends that the ALJ’s credibility finding is not supported by
substantial evidence. Doc. 11 at 7-8. Thompson testified that she had to elevate her
knees at least four times per day to relieve swelling. (R. 46-47). Thompson further
testified that she had “very intense” knee pain at times that interfered with her
ability to perform her duties as a substitute teacher. Id. The ALJ found Thompson’s
“medically determinable impairments could reasonably be expected to cause [her]
alleged symptoms.” (R. 20). Therefore, Thompson met the requirements of the
pain standard set out above. However, the ALJ found Thompson’s allegations of
disabling symptoms was not fully credible. Id. It is this determination that
Thompson challenges, and in light of her appeal, this court must review the ALJ’s
finding to determine if it is supported by substantial evidence.
Consistent with the pain standard in this circuit, the ALJ articulated reasons
why he did not credit Thompson’s testimony. For example, the ALJ observed that
“the medical evidence of record reveals that treatment for the claimant's knee pain
has been relatively sparse.” (R. 20). In fact, the medical records show Thompson
sought treatment only twice for her alleged disabling knee pain. (R. 227-31).
Significantly, these visits occurred on February 26, 2010, and March 12, 2010, over
18 months after Thompson alleges she became disabled. Id. Therefore, the ALJ
properly considered the lack of treatment during significant periods of time in
assessing Thompson’s credibility. See Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th. Cir. 2005) (finding the ALJ properly considered gaps in treatment in
The ALJ further noted that treatment “[r]ecords show that there have been
few if any recommendations for surgery, pain management, or other more
aggressive treatment options that would be expected for pain of the degree alleged.”
(R. 20-21). The treatment records support this finding and show that Dr. Frank
Hatchett initially noted Thompson was “taking a minimal amount” of antiinflammatory medicine, which would need to be increased. (R. 230). Dr. Hatchett
also indicated other forms of more aggressive treatment could be considered, and
that “eventually she will be a candidate for knee replacement.” Id. However, the
treatment records do not show that any of these more aggressive measures were
actually undertaken. Although Thompson told Dr. Hatchett at her second visit that
she wanted to have knee replacement surgery, Dr. Hatchett opined Thompson
“would need to make every effort to lose weight if at all possible prior to the
surgery.” (R. 228). Unfortunately, almost one year after Dr. Hatchett’s
recommendation of weight loss, Thompson testified at her hearing that she had
difficulty losing the weight, and that she could not afford the surgery. (R. 50-51).
Therefore, the ALJ properly considered the conservative nature of Thompson’s
treatment in finding her not fully credible. See Falcon v. Heckler, 732 F.2d 827,
832 (11th Cir. 1984) (finding the ALJ properly considered the claimant’s
conservative treatment in assessing credibility).
The ALJ also found Thompson’s “continued abilities to work as a substitute
teacher coupled with her extensive activities of daily living including housekeeping,
cooking, and shopping further belie her claims.” (R. 21). The ALJ’s consideration
of these activities in assessing Thompson’s credibility was proper. See Harwell v.
Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984) (finding the ALJ properly
considered daily activities in assessing credibility); 20 C.F.R. § 404.1529(c)(4)
(ALJ “will consider . . . the extent to which there are any conflicts between [a
claimant’s] statements and the rest of the evidence” in determining the vocational
impact of subjective symptoms).
Ultimately, based on this record, Thompson has failed to show that the ALJ
erred in failing to credit her testimony of disabling pain. In fact, the ALJ articulated
specific reasons for discounting Thompson’s testimony of disabling symptoms–all
of which are supported by substantial evidence. Moreover, even though the ALJ did
not credit Thompson’s testimony of disabling symptoms, he recognized that
Thompson had some limitations caused by her impairments. (R. 21). The ALJ
explained that he accounted for Thompson’s symptoms in his RFC assessment by
providing “lifting and walking restrictions and postural restrictions to accommodate
[Thompson’s] knee pain and obesity along with environmental limitations to
accommodate her hearing loss.” Id. The court finds that substantial evidence
supports the ALJ’s determination that these restrictions account for Thompson’s
symptoms. Accordingly, because this court does not reweigh the evidence, there is
no reversible error in the ALJ’s credibility finding.
The ALJ did not err in failing to obtain vocational expert testimony.
Thompson contends also that the ALJ erred because he found she could
return to her past relevant work without the testimony of a vocational expert (VE),
and that the ALJ “offers no support” for his finding that Thompson’s past relevant
work does not exceed her RFC. Doc. 11 at 9. Thompson ignores, however, that VE
testimony “is only required . . . after the claimant has met [her] initial burden of
showing that [she] cannot do past work.” Schnorr v. Bowen, 816 F.2d 578, 582
(11th Cir. 1987). At Step Four, evidence from a vocational expert is not necessary
when an ALJ determines the claimant is capable of performing past relevant work.
Lucas v. Sullivan, 918 F.2d 1567, 1573 n.2 (11th Cir. 1990).
Thompson’s related argument that the ALJ offered no support for finding
Thompson could perform her past relevant work is also unavailing. Contrary to
Thompson’s assertion, the ALJ cited to Exhibit 4E, which contains detailed
information provided by Thompson about her prior jobs. (R. 22). Among other
things listed in her work history report were requirements for walking, standing,
sitting, and climbing required by her prior jobs. (R. 155-162). The ALJ properly
relied on Thompson’s information because “the claimant is the primary source for
vocational documentation, and statements by the claimant regarding past work are
generally sufficient for determining the skill level; exertional demands and
nonexertional demands of such work.” See SSR 82-62, 1982 WL 31386 (S.S.A.).
Because the exertional and other requirements listed by Thompson for her past job
as a day care center director do not exceed her RFC, (R. 155), the ALJ relied upon
substantial evidence to determine Thompson could perform relevant work.
Likewise, in finding that Thompson could perform her past relevant work as
generally performed in the national economy, the ALJ cited to a Vocational
Rationale Form completed by a State agency Disability Specialist. (R. 165-167).
That form indicates that based on Thompson’s RFC as assessed by the State agency,
Thompson would be able to perform her past relevant work as a director of a day
care center as it is generally performed, and lists the Dictionary of Occupational
Titles (DOT) number for the job as 092.167-010.2 (R. 165). The DOT lists that job
as sedentary, with other requirements that are also compatible with Thompson’s
RFC. See DICOT 092.167-010, 1991 WL 646894 (G.P.O.).
In sum, the ALJ was not required to elicit testimony from a VE because
Thompson failed to carry her burden of proving she could not perform her past
relevant work. Moreover, the ALJ properly relied on information provided by
Thompson to determine the actual vocational requirements of her past job as a day
care center director, and on the DOT to determine the vocational requirements of
that job as it is generally performed. The ALJ reasonably relied on this evidence to
The Dictionary of Occupational Titles is published by the Department of Labor
and used by the Commissioner to take administrative notice of the presence of jobs in the
national economy. 20 C.F.R. §§ 404.1566(d)(2), 416.966(d)(2).
find Thompson could perform her past relevant work, and committed no reversible
The ALJ properly considered Thompson’s impairments in combination.
Thompson’s final argument is that the ALJ did not consider her hearing loss
and hypertension in combination with her other impairments. Doc. 11 at 10. When
a claimant has several impairments, the Commissioner “has a duty to consider the
impairments in combination and to determine whether the combined impairments
render the claimant disabled.” Jones v. Department of Health and Human Services,
941 F.2d 1529, 1533 (11th Cir. 1991). Here, a review of the ALJ’s decision shows
that he complied with the obligation to consider Thompson’s impairments in
combination. Consistent with this obligation, the ALJ found that “the claimant does
not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments.” (R. 18). This finding alone is sufficient to
establish that the ALJ considered the impairments in combination. See Jones, 941
F.2d at 1533 (ALJ’s finding that the claimant “does not have ‘an impairment or
combination of impairments listed in, or medically equal to one [in the Listings]’”
was sufficient evidence to show the ALJ had considered the combined effect of the
impairments) (emphasis in original). Moreover, the ALJ included limitations in his
RFC assessment related to Thompson’s hearing loss by providing that Thompson
“must avoid concentrated exposure to . . . noise,” (R. 19), and stated that his RFC
finding provides for “environmental limitations to accommodate her hearing loss.”
(R. 21). This shows the ALJ considered Thompson’s hearing loss in combination
with her other impairments when assessing her RFC.
Thompson’s contentions regarding her hypertension overlook that
Thompson failed to identify any limitations caused by her hypertension either at the
time of her application for disability, (R. 175), or at her ALJ hearing. (R. 36-52).
Therefore, the ALJ was under no obligation to investigate or consider limitations
caused by Thompson’s hypertension. Street v. Barnhart, 133 F. App’x 621, 627
(11th Cir. 2005) (unpublished) (observing that an ALJ is not required to investigate
allegations “not presented at the time of the application for benefits and not offered
at the hearing as a basis for disability ”) (quoting Pena v. Chater, 76 F.3d 906, 909
(8th Cir. 1996)). Because Thompson points to no limitations caused by her
hypertension, and did not allege any restrictions from hypertension at the
administrative level, the court finds no error in the ALJ’s failure to find such
Based on the foregoing, the court concludes that the ALJ’s determination
that Thompson 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 10th day of June, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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