Landis v. Social Security Administration, Commissioner
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/17/2017. (PSM)
2017 Mar-17 AM 10:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DONNA LEAH LANDIS,
CAROLYN W. COLVIN,
Commissioner of Social Security,
MEMORANDUM OF OPINION
The Plaintiff, Donna Leah Landis, appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying
her application for a period of disability and Disability Insurance Benefits. Plaintiff
timely pursued and exhausted her administrative remedies, and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff was fifty years old at the time of the Administrative Law Judge’s
(“ALJ’s”) decision, and she has a high school education. (Tr. at 110, 148). She
has past work as a produce manager at a grocery store from February 1991 through
July 26, 2012, when she stopped working. (Tr. at 133, 148-49). Plaintiff reported
that from October 4, 2011, to July 26, 2012, she worked reduced hours: 34 hours
per week. (Tr. at 136.) Plaintiff claims that she became disabled on August 22,
2011, which is the date that she had surgery on her neck (an anterior cervical
discectomy and fusion), due to spinal stenosis, exostosis, bone spur, cervical disc
degeneration, tendinopathy of rotator cuff, and tear of the supraspinatus tendon.
(Tr. at 147).
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until
making a finding of either disabled or not disabled; if no finding is made, the
analysis will proceed to the next step.
See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).
See id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of her past relevant
work. See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the plaintiff’s impairment
or combination of impairments does not prevent her from performing her past
relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find her
not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find her disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found as an initial
matter that Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2016. (Tr. at 12.) The ALJ’s step one finding appears
contradictory. He determined that Plaintiff “has not engaged in SGA since August
22, 2011, the alleged onset of her disability.” (Id.) He then noted that she “worked
after the alleged disability onset date but this work activity did not rise to the level
of [SGA].” (Id.) Curiously, he then stated that she “returned to work at her prior
job on October 3, 2011 following the neck surgery and continued to work making
SGA until she injured her shoulder and last worked on July 26, 2012.” (Id.
(emphasis added)). His conclusion that her work from October 2011 to July 2012
constituted SGA was based on her earnings record which he noted indicated that in
2012 she earned $18,160.45. (Id.) In any event, the ALJ apparently found in
Plaintiff’s favor at step one of the sequential evaluation, thus allowing her to
proceed to the next step, and neither party raises any issues with regard to his
finding at step one.
At step two, the ALJ found that Plaintiff’s “cervical microdiskectomy and
fusion at C4-5 followed by a separate injury to the shoulder which required surgery
on July 23, 2013,” are “severe” based on the requirements set forth in the
regulations. (Id.) However, he found at step three that these impairments neither
meet nor medically equal any of the listed impairments in Appendix 1, Subpart P,
Regulations No. 4. (Id.) The ALJ did not find Plaintiff’s allegations to be fully
credible, and he determined that Plaintiff retains the RFC to perform light work
“except no more than occasional overhead lifting.” (Tr. at 13.)
According to the ALJ at step four, Plaintiff is unable to perform any of her
past relevant work, she is “closely approaching advanced age,” she has at least a
high school education, and she is able to communicate in English, as those terms
are defined by the regulations. (Tr. at 16-17.) The ALJ determined that
“[t]ransferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
the claimant is ‘not-disabled’, whether or not the claimant has transferable job
skills.” (Tr. at 17.) The ALJ enlisted a vocational expert (“VE”) to provide
testimony as to whether jobs existed in the national economy for an individual with
Plaintiff’s age, education, work experience, and RFC. (Id.) At step five, the ALJ
found that there are indeed a significant number of jobs in the national economy
that Plaintiff is capable of performing, including “occasional lifting overhead”
storage facility rental clerk, fitting room attendant, and parking lot attendant. (Id.)
The ALJ concluded that Plaintiff has not been under a disability as defined by the
Social Security Act from August 22, 2011, through the date of the decision. (Tr. at
Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act
is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
“The substantial evidence standard permits administrative decision
makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Plaintiff argues that the Commissioner’s decision should be reversed and
remanded for two reasons: (1) the ALJ erred in finding that she was not disabled for
any one consecutive twelve-month period and (2) the ALJ erred in finding her
subjective complaints of pain not credible.
Disability for a Consecutive Twelve-Month Period
There are two separate injuries involved in this case. The first injury
occurred on June 4, 2011, when Plaintiff picked up a case of cabbage at her job as a
produce manager at a grocery store. (Tr. at 194, 214.) She felt pain in the back of
her neck but continued the workday. (Id.) However, by that evening the pain was
bad enough that she presented to MedPlus where she was diagnosed with muscle
strain and treated with anti-inflammatory medication. (Id.) However, her
symptoms did not respond to conservative measures. (Id.) A Magnetic Resonance
Imaging (“MRI”) scan showed spondylosis at C5-6 with some spondylophyte
formation toward the left side and significant posterolateral disk protrusion with
spondylophyte formation that results in significant stenosis. (Tr. at 214.) Plaintiff
used medication to manage her pain and was told she could return to work as long
as she did not lift over twenty pounds and avoided repetitive overhead activity. (Tr.
at 215.) At an August 3, 2011, follow up, Plaintiff reported that her symptoms had
not improved. (Tr. at 210.)
On August 22, 2011, Plaintiff was admitted to Huntsville Hospital
complaining of neck pain radiating to her right shoulder and bicep with numbness
in the right thumb and index finger. (Tr. at 192.) She was diagnosed with neck pain
and upper extremity pain due to cervical spondylotic stenosis with disc protrusion
at C4-5, C5-6. (Id.) It was noted that she had tenderness in her neck and positive
impingement testing in the right shoulder but otherwise had a full range of motion
in the shoulders, elbows, and wrists. (Id.) That day, Dr. Cyrus Ghavam, a surgeon,
performed an anterior discectomy and fusion on the C4-5 and C5-6. (Tr. at 192,
197-99, 252-54). This resulted in Plaintiff reporting that she had good relief of
upper extremity pain, and she was discharged the next day, August 23, 2011. (Tr. at
192.) Plaintiff was told to walk daily and avoid anti-inflammatories and
tobacco/nicotine products. (Id.)
At a follow up on August 30, 2011, Dr. Ghavam noted Plaintiff was doing
well with good relief of right upper extremity pain. (Tr. at 208). She had full upper
extremity muscle strength. (Id.) She was to return to light activity for four weeks
and regular work at her existing job in eight weeks. (Id.) Dr. Ghavam reminded her
of the adverse effect of smoking and fit Plaintiff with an external bone growth
Plaintiff returned to work on October 4, 2011, although she reported that she
started working reduced hours: 34 hours per week. (Tr. at 206.) At a follow up with
Dr. Ghavam on October 14, 2011, she reported having increasing pain but no
specific injury. (Id.) She was continuing to smoke and not using the bone growth
stimulator. (Id.) She had a satisfactory range of motion in her neck and an intact
neurological examination with full upper extremity muscle strength. (Id.) Her
surgical hardware was in good position and x-rays showed a stable fusion. (Id.) Dr.
Ghavam opined that she had developed myofascial pain as a result of increased
activity. (Id.) He prescribed physical therapy and opined that Plaintiff could
gradually increase her activities at work and should be able to perform regular work.
At a follow up in December 2011, Dr. Ghavam noted Plaintiff was continuing
to smoke and not using the bone growth stimulator. (Tr. at 204). She had some
relief with physical therapy. (Id.) She was complaining of achiness in her neck with
diffuse pain in the right arm with paresthesias, weakness, and numbness. (Id.)
However, his examination showed no neurological deficits and no fasciculation or
atrophy. He noted that she could perform regular work with no restrictions. (Id.)
Plaintiff continued to complain of neck pain. Therefore, workers’
compensation referred her to Dr. Robert L. Hash, II at the SportsMED Orthopedic
Surgery and Spine Center, where she was treated on four occasions from April 9,
2012 through October 3, 2012. (Tr. at 226-36). At the first visit Plaintiff reported to
Dr. Hash that she had continued to work without restrictions since the initial onset
of symptoms on June 4, 2011. (Tr. at 226). Plaintiff had normal muscle tone in her
upper extremities with no atrophy (Tr. at 227). Dr. Hash diagnosed cervical disc
degeneration, displacement, cervical radiculopathy, neuritis not otherwise
specified, and tingling/numbness (Id.) Dr. Hash ordered an MRI, EMG, and xrays, which showed no major nerve root compression, mild carpal tunnel syndrome
on the right, and no soft tissue swelling. (Tr. at 229). On April 27, 2012, Plaintiff
had nerve conduction studies which showed “the possibility of mild early right
median neuropathy at or distal to wrist (carpal tunnel syndrome).” (Tr. at 246).
The conclusion was that electrophysiologically, there was no carpal tunnel
syndrome on the left side, and there was no right ulnar neuropathy or cervical
radiculopathy. (Id.) Dr. Hash opined on April 30, 2012, that Plaintiff could perform
her regular work as a produce manager which was light to medium exertional work.
(Tr. at 229).
On August 22, 2012, Plaintiff saw Dr. Hash again, and she reported that on
July 26, 2012, when she was raising her hands overhead at work her neck “got
stuck,” that she has limited range of motion in her neck, and that her right arm felt
“dead and painful.” (Tr. at 231, 234.) Plaintiff told Dr. Hash that her pain never
improved after her prior surgery and that it had worsened after this new incident
(Tr. at 233). Dr. Hash said he would consider this an exacerbation of the previous
injury and ordered testing. (Id.) He also noted that the Workman’s Compensation
nurse reported that a different doctor had discharged Plaintiff from his care
because she violated the narcotic contract. (Id.) An MRI of Plaintiff’s cervical spine
conducted at that time showed post-surgical fusion changes extending from C4 to
C6 without recurrent disc herniation with no detrimental change from the previous
April 2012 MRI which had occurred before the second injury. (Tr. at 242-43). A
September 17, 2012, computerized tomography (“CT”) of the cervical spine
showed evidence of prior cervical fusion with some spurring identified at the C4-5
interspace. (Tr. at 240). A cervical myelogram showed no high-grade cervical
stenosis. (Tr. at 239).
At a follow up on October 3, 2012, Dr. Hash recommended an epidural
steroid injection at C5-6, and if it did not provide relief, he recommended surgery.
(Tr. at 235). On October 23, 2012, Dr. Michael Cosgrove performed a C7-T1
interlaminar Epidural Steroid Injection and Fluoroscopy. (Tr. at 250-51).
Thereafter, Plaintiff reported no improvement. (Id.)
Thus, at Dr. Hash’s referral, Dr. John J. Greco, an orthopedist, treated
Plaintiff from November 2012 through April 2013. (Tr. at 269-77). At their first
visit on November 8, 2012, Plaintiff denied any problems with her right shoulder
prior to the July 26, 2012, work injury. (Tr. at 274). Dr. Greco assessed right
shoulder impingement with tendinosis and partial thickness rotator cuff tear and
right shoulder pain. (Id.) He put Plaintiff on modified work duty, opining that she
could lift and carry one to three pounds and push or pull ten to twenty pounds with
no repetitive overhead activity. (Id.) Dr. Greco felt that she had two separate issues
with the shoulder being separate from the neck, stating, “Her shoulder has been
painful in and around the shoulder and that is different from what she was having
issues with before.” (Id.)
At a visit on December 6, 2012, Dr. Greco recommended going forward with
surgery. (Tr. at 272.) He again noted, “I do think that more of her problems [sic] is
her shoulder than her neck . . .” (Id.) Plaintiff underwent a decompression and AC
joint resection surgery in January 2013 and followed with several weeks of physical
therapy at Shoals Orthopedics Physical Therapy from January 25, 2013 through
March 12, 2013. (Tr. at 271, 302-320). Therapy notes indicated that Plaintiff
performed very slowly with several rest breaks and actively resisted exercise which
limited progress with range of motion. (Tr. at 319-20.)
Dr. Greco examined Plaintiff’s shoulder post-surgery on February 7, 2013,
noting some pain on the extremes but stated that she was neurovascularly intact
and the wounds were healing nicely. (Tr. at 271.) He stated, “I think a lot of the
shoulder issue is better. She does still have some of a neck issue and she very well
have [sic] two separate issues but I felt all along we needed to get the shoulder
settled down . . .” (Id.) She was to perform only light duty, lifting and carrying one
to three pounds and pushing and pulling ten to twenty pounds with no repetitive
overhead activity. (Id.) She was to continue physical therapy and take Percocet.
(Id.) On March 14, 2013, Dr. Greco noted that Plaintiffs “guards” her shoulder
and instructed that she was to continue current work restrictions. (Tr. at 270).
On April 24, 2013, Dr. Greco’s office examined Plaintiff and completed a
functional capacity evaluation (“FCE”). (Tr. at 324.) The FCE recommended that
she could perform a job at the medium level of exertion with the following
additional limitations: “exerting 20 to 50 pounds of force occasionally, or 10 to 25
pounds of force frequently, or greater than negligible up to 10 pounds of force
constantly to move an object.” (Id.) Plaintiff was also limited to lifting 45 pounds
from the floor to waist, 45 pounds from waist to waist, and 35 pounds from waist to
eye level, carrying 50 pounds for 50 feet, and pushing or pulling 90 pounds. (Id.)
She was able to frequently stand, walk, sit, bend, squat, reach overhead, grasp, and
could constantly reach horizontally. (Tr. at 331).
Two days later, on April 26, 2013, Dr. Greco saw Plaintiff again. He noted
Plaintiff was three months out from her decompression and joint resection surgery
and had much better motion and had definitely improved. (Tr. at 269). He
prescribed her “one last” prescription for Percocet and released her from his care
with the modified duty described in the FCE that was completed two days prior.
(Id.) He noted that she was still battling issues with her neck and he would see her
again if need be. (Id.)
Based on the aforementioned medical records, Plaintiff contends that she
had one continuous disabling event that began in June 2011 and continues up
through the date of the ALJ’s decision denying benefits in 2014. Thus, according to
Plaintiff, the ALJ erred in finding that the record did not contain any one period of
disability for a consecutive twelve months.
The definition of disability is an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” See 42 U.S.C.
§ 423(d)(1)(A). “To meet this definition, [a plaintiff] must have a severe
impairment(s) that makes [her] unable to do [her] past relevant work . . . or any
other substantial gainful work [i.e., SGA] that exists in the national economy.” See
20 C.F.R. § 404.1505(a). SGA means work that “involves doing significant and
productive physical or mental duties; and is done (or intended) for pay or profit.”
See 20 C.F.R. § 404.1510.
As discussed above, Plaintiff’s first injury—to her neck—occurred on June
4, 2011, but Plaintiff returned to her past light-to-medium-exertional work as a
produce manager on October 4, 2011, and continued to work nearly full time (34
hours per week) with no restrictions through July 26, 2012, the date of her second
work-related injury, this time to her shoulder. (Tr. at 133, 136, 142-42, 148-49).
While Plaintiff would have had significant limitations on her ability to work from
June 4, 2011, through October 4, 2011, that was only a four-month period of time
before she returned to her past work. Indeed, Plaintiff does not dispute the ALJ’s
finding that her work from October 2011 through July 2012 constituted SGA as
evidenced by her earnings record showing earnings of $25,217.17 in 2011 and
$18,160.45 in 2012. “As a matter of law,” a person who is otherwise disabled
ceases to be disabled when she engages in SGA. Powell v. Heckler, 773 F.2d 1572,
1576 (11th Cir. 1985).Thus, Plaintiff was not disabled from October 2011 through at
least July 2012.
As also noted, Plaintiff stopped working again after she was injured a second
time—this time to her shoulder—on July 26, 2012. Even if she could show that her
second injury rendered her disabled beginning on her last day of work in July 2012,
she cannot show that she was disabled at any time after April 26, 2013, when Dr.
Greco released her from his care, opining that she could return to medium work
with the permanent modified duties enumerated in the FCE. (Tr. at 269). Dr.
Greco’s treatment notes constitute substantial evidence in the record for the ALJ
to find that Plaintiff was not disabled after April 26, 2013.
July 2012 to April 2013 is also less than one year. The regulations provide
that where unrelated severe impairments develop sequentially, one following the
other or with some overlap, at least one impairment alone must meet the twelvemonth duration requirement. See 20 C.F.R. §§ 404.1522(a), 416.922(a) and SSR
82-52. Two unrelated impairments cannot be combined to meet the duration
requirement. See id. Plaintiff’s treating orthopedist, Dr. Greco, opined on multiple
occasions that Plaintiff had two separate issues with the shoulder being separate
from the neck. (Tr. at 274, 272, 271). Although Dr. Hash described the July 2012
injury as an exacerbation of her first neck injury, this impression was an initial one
done before testing. There is substantial evidence in the record to support the
ALJ’s finding that because Plaintiff had two separate impairments and neither one
met the twelve-month durational requirement, the record did not show a period of
disability for twelve consecutive months.
Subjective Complaints of Pain
Plaintiff argues that the ALJ erred in evaluating the severity of her
impairments because he relied on the FCE without considering (1) Dr. Greco’s
statement at their last visit on April 26, 2013, that she continued to have neck
issues or (2) her own subjective complaints of pain.
A claimant’s subjective testimony of pain and other symptoms will support a
finding of disability if it is supported by medical evidence that satisfies the pain
standard and is not discredited by the ALJ. See Foote v. Chater, 67 F.3d 1553, 1561
(11th Cir. 1995). To satisfy the pain standard, a claimant must show “evidence of
an underlying medical condition, and either (1) objective medical evidence to
confirm the severity of the alleged pain arising from that condition, or (2) that the
objectively determined medical condition is of a severity that it can reasonably be
expected to give rise to the alleged pain.” Id. at 1560; see also Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005). Once the pain standard is satisfied, the ALJ must
consider a claimant’s subjective testimony of pain and other symptoms. Foote, 67
F.3d at 1560; see also Minter v. Astrue, 722 F. Supp. 2d 1279, 1282 (N.D. Ala. 2010)
(finding that “if a claimant testifies to disabling pain and satisfies the three part
pain standard, he must be found disabled unless that testimony is properly
discredited”). If the ALJ discredits the claimant’s subjective testimony of pain and
other symptoms, he must articulate explicit and adequate reasons for doing so.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 967p, 1996 WL 374186 (1996) (“[T]he adjudicator must carefully consider the
individual’s statements about symptoms with the rest of the relevant evidence in
the case record in reaching a conclusion about the credibility of the individual’s
statements.”). “Although [the Eleventh Circuit] does not require an explicit
finding as to credibility, . . . the implication must be obvious to the reviewing
court.” Dyer, 395 F.3d at 1210 (quoting Foote, 67 F.3d at 1562). The ALJ is not
required to cite “particular phrases or formulations” in his credibility
determination, but it cannot be a broad rejection that is insufficient to enable this
Court to conclude that the ALJ considered the claimant’s medical condition as a
In this case, the ALJ cited the relevant regulations, considered Plaintiff’s
allegations in relation to the other evidence, and articulated reasons for finding her
allegations not totally credible, which shows that he properly applied the Eleventh
Circuit pain standard. (Tr. at 13-14). The ALJ found that while Plaintiff had
“medically determinable impairments [which] could reasonably be expected to
cause the alleged symptoms . . . [her] statements concerning the intensity,
persistence [sic] and limiting effects of these symptoms” were not credible. (Tr. at
Plaintiff emphasizes that at her hearing she testified that she experiences
chronic constant pain, an eight out of ten in severity, and completely disabling pain
three to five days per week. (Tr. at 36-37.) She says that on the days she
experiences disabling pain, it limits her to 15-20 minutes of activity at a time, after
which she can sit comfortably for 15-20 minutes at a time. (Tr. at 37, 40-42).
Further, she claims that after several surgeries, epidural steroid shots, physical
therapy, and current use of Norco and Percocet, her pain is not relieved. (Tr. at
46). Plaintiff contends that her increased pain levels resulting from a return to work
after surgery support her subjective complaints of pain.
While Plaintiff relies on her testimony and complaints, the work history and
medical evidence do not support her allegations. As noted by the ALJ, despite
complaints of disabling limitations, Plaintiff was able to work for nine months from
October 2011 through July 2012. (Tr. at 133, 136, 142-43, 148-49). Although she
argues that her pain worsened when she began working again, her physicians
repeatedly cleared her for work with various levels of modified duties. Further,
nine months after Plaintiff’s July 2012 injury and three months after surgery, her
orthopedist, Dr. Greco, noted that she had much better motion and had definitely
improved, and he released her from his care with permanent modified duties for
medium work. (Tr. at 269).
Plaintiff also argues the ALJ erred because he relied on the FCE without
considering Dr. Greco’s assessment on their last visit in the record that she
continued to have neck issues. However, Dr. Greco himself relied upon the results
of the FCE, noting she had modified work duty “as per her FCE restrictions
permanent.” (Id.) In any event, the ALJ actually limited Plaintiff to more
restrictions than the FCE provided. The ALJ limited her to the performance of no
more than light work, which requires lifting no more than 20 pounds with only
occasional overhead lifting, while the FCE allowed for medium work, lifting
between 35 and 45 pounds and frequent overhead reaching. Additionally, Dr.
Greco’s observation about her continuing neck issues does not undermine his
overall opinion that she had improved greatly, that he could release her from his
care, and that she could perform medium work with additional restrictions. (Id.)
The ALJ also noted that additional evidence raises questions about
Plaintiff’s credibility. Plaintiff provided conflicting information to her doctors. On
August 31, 2011, several weeks after her neck surgery, Plaintiff reported to Dr.
Ghavam that she was doing well with good relief of right upper extremity pain. (Tr.
at 208). Yet, a year later, on August 22, 2012, Plaintiff told Dr. Hash that her pain
had never improved after her prior 2011 surgery. (Tr. at 233). She also reported to
Dr. Hash that she had continued to work with no restrictions since the June 4,
2011, neck incident, which was not true. (Tr. at 226.) Additionally, when Dr.
Ghavam was treating her for her neck injury, she complained of “diffuse pain right
arm with parathesia, weakness, and numbness” post-surgery. (Tr. at 204).
However, at her visit with Dr. Hash in November 2012, Plaintiff denied having had
any problems with her shoulder prior to her July 26, 2012 work injury. (Tr. at 276).
Plaintiff also did not cease smoking as advised by her doctors, did not use the bone
growth stimulator prescribed by Dr. Hash, was discharged from another doctor’s
care for violating a narcotics contract, and actively resisted exercising during
physical therapy which slowed her progress considerably. (Tr. at 206, 233, 302320.) These instances of noncompliance indicate that Plaintiff’s pain was not as
debilitating as she alleges. The ALJ’s credibility determination is supported by
Upon review of the record and consideration of the ALJ’s decision with
respect to Plaintiff’s credibility, the ALJ articulated “explicit and adequate
reasons” for discrediting Plaintiff’s testimony. Wilson, 284 F.3d at 1225. Those
reasons are supported by substantial evidence.
Upon review of the administrative record, and considering all of Plaintiff’s
arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
DONE and ORDERED on March 17, 2017.
L. Scott Coogler
United States District Judge
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