Moore v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge R David Proctor on 12/10/2013. (AVC)
2013 Dec-10 PM 01:15
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of
Civil Action No.: 4:12-CV-730-RDP
On August 17, 2009, Plaintiff Teresa Moore applied for supplemental security income
under Title XVI of the Social Security Act.
Plaintiff alleges disability commencing on
September 16, 2009 because of hypertension, heart problems, pain in her feet and depression.
The Commissioner denied the claim both initially and on reconsideration. Plaintiff filed a timely
request for a hearing before an Administrative Law Judge (“ALJ”), and the ALJ held a hearing
on July 14, 2011. (R. 10, 129). In a decision dated September 21, 2011, the ALJ found that
Plaintiff was not disabled as defined by the Social Security Act and, thus, was ineligible for
supplemental security income. (R. 19). On January 3, 2012, the Appeals Council denied
Plaintiff’s request for review; consequently, the ALJ’s decision became the final decision of the
Commissioner of the Social Security Administration. (R. 1-3). Plaintiff has exhausted her
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 finds the decision of the Commissioner is
due to be affirmed.
II. ISSUES PRESENTED
Plaintiff presents the following issues for review: (1) whether the ALJ properly weighed
the opinion of treating physician, Dr. Gerard A. Skaziak, and (2) whether the ALJ properly
applied the pain standard.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. 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, 401 (1971).
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 may not
look only to those parts of the record that support the decision of the ALJ, but instead 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 (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 cannot “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); 20 C.F.R. §§ 404.1520, 416.920.
The Commissioner normally must give substantial weight to the opinions of a treating
physician. Lamb v. Brown, 847 F.2d 698, 703 (11th Cir. 1998). To discount the opinion of a
treating physician, the Commissioner must provide good cause. Id. Good cause exists if the
physician’s opinion is not supported by evidence, the evidence supports a contrary finding, the
physician’s opinion is conclusory, or the physician’s opinion is inconsistent with the doctor’s
own medical records. Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004); 20 C.F.R.
In evaluating pain and other subjective complaints, the Commissioner must first consider
whether the claimant demonstrated an underlying medical condition, and then “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 reasonable expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991) (emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002); 20 C.F.R. § 404.1529.
Plaintiff has an eighth grade education and was age forty-four at the time of the
administrative hearing. (R. 62, 56). She has no past relevant work experience. (R. 18).
Plaintiff originally alleged she was unable to work because of hypertension, heart problems, pain
in her feet and depression; however, on appeal, Plaintiff only contests the ALJ’s findings
regarding her foot pain. (R. 129).
Physical and Mental Limitations
On November 20, 2009, Dr. Mary Arnold performed a Psychological Evaluation on
Plaintiff. During the evaluation, Dr. Arnold noted that Plaintiff walked “with a casual gait of
long stride [without] obvious impairment or [an] overt pain indicator” and estimated that she
functioned in the borderline to low average range. (R. 178). In December 2009, Dr. Alvin V.
Tenchavez also examined Plaintiff. He stated that Plaintiff could “heel, toe, [and] tandem walk
…, stoop and rise.” (R. 183).
Dr. Robert Estock conducted a Psychiatric Review Technique and a Mental Residual
Functional Capacity Assessment on January 13, 2010.
He determined that Plaintiff had
moderate limitations in activities of daily living and social functioning. He further stated that
she had moderate limitations in maintaining concentration, persistence and pace. (R. 195).
Additionally, Dr. Estock opined that Plaintiff could work for two hour periods and would likely
miss one to two days per month because of her psychological symptoms. (R. 201).
The record indicates that Dr. Gerard A. Skaziak treated Plaintiff for her “painful plantar
feet” from March 2010 to June 2011. On March 4, 2010, Dr. Skaziak noted that the clamant
suffered digital deformities, hyperkeratotic lesions and onychomycosis on her toenails. Plaintiff
reported that she could not ambulate or wear normal shoes without pain. Dr. Skaziak
recommended that the she use skin cream and purchase custom molded orthotics and custom
molded shoes, diabetic style. (R. 206). In May 2010, Plaintiff told Dr. Skaziak that the
treatment had significantly reduced her pain but that the condition had reoccurred. Dr. Skaziak
noted that she “may require surgical intervention should conservative treatments fail.” (R. 205).
Later, in June 2010, Dr. Skaziak and Plaintiff again discussed surgery and conservative
treatments, and Plaintiff elected to continue conservative treatments. (R. 206).
On December 27, 2010, Dr. Skaziak recommended surgical treatment for Plaintiff’s foot
conditions but noted that Plaintiff could not afford the surgery or the recommended custom
shoes. (R. 213). Additionally, he wrote a letter to the Guntersville Housing Authority asking
that they give Plaintiff a ground floor apartment. (R. 208). In May 2011, Plaintiff appeared with
a pair of “prefab diabetic shoes.” Dr. Skaziak stated that these shoes may help her condition but
still recommended custom inserts and custom diabetic shoes. (R. 210).
In a Physical Capacity Evaluation dated June 20, 2011, Dr. Skaziak stated that Plaintiff
could only walk or stand for one hour in an eight hour day. He opined that she could frequently
lift and occasionally carry up to ten pounds; frequently push and pull; occasionally bend, squat,
climb, crawl and reach; and constantly use her hands for simple grasping, fine manipulation and
Regarding her pain, Dr. Skaziak determined that it ranked as
“moderately severe” and, because of her pain, found that she would likely have to miss three or
more days a month of work. (R. 218).
The ALJ Hearing
After the Commissioner denied Plaintiff’s request for supplemental security income,
Plaintiff requested and received a hearing before an ALJ. (R. 51). At the hearing, Plaintiff
testified that the pain in her feet would not allow her to stand up like she wanted. She stated that
the pain would “come up [her] legs, too.” Additionally, she stated that she would often have
muscle spasms in her legs. (R. 66). She ranked the pain as a nine on a one-to-ten scale. (R. 70).
Plaintiff testified that she would soak her feet in Epsom salts and water every day.
Beyond this, Plaintiff stated that she mostly slept all day because her medication made her
drowsy. (R. 68). Plaintiff also testified that she was prescribed Klonopin and Lortab for her
pain and Somas for her hypertension. (R. 65). She also stated that her daughters did her grocery
shopping and that she no longer went to church or to any other organized events. (R. 70-71).
Norma Stricklin, a vocational expert, then testified concerning the type and availability
of jobs that Plaintiff could perform. The ALJ asked Ms. Stricklin to consider Plaintiff limited
according to Dr. Skaziak’s Physical Capacity Evaluation, excluding his opinion regarding the
severity of her pain. She opined that Plaintiff could work as a final assembler, a bench hand and
a circuit board inspector. However, she stated that if Plaintiff’s pain was consistent with Dr.
Skaziak’s opinion, it “would likely preclude the ability to perform these or other jobs.” (R. 7072).
The ALJ’s Decision
On September 21, 2011, the ALJ issued a decision finding that Plaintiff was not disabled
under the Social Security Act. (R. 19). First, the ALJ found that Plaintiff had not engaged in
substantial gainful activated since the alleged onset of her disability. (R. 12). Next, the ALJ
found that Plaintiff’s bilateral foot keratotic lesions and bony deformities and her hypertension
qualified as severe impairments; however, he concluded that these impairments, singly or in
combination, did not manifest the specific signs and diagnostic findings required by the Listing
of Impairments. (R. 12, 15). He additionally noted that Plaintiff suffered from the non-severe
impairments of alcohol abuse and adjustment disorder. (R. 14).
Next, the ALJ determined that Plaintiff had the Residual Functional Capacity (“RFC”) to
perform sedentary work.
To support this conclusion, he found that although Plaintiff’s
medically determinable impairments could reasonable cause the alleged symptoms, her
statements regarding the severity and limiting effects of the impairments were not credible. The
ALJ noted that she had received only conservative treatment for her condition and that her
testimony was inconsistent with her daily activities listed in her Function Report. He further
found that Plaintiff’s testimony was inconsistent with the examinations of Drs. Arnold and
Tenchavez. (R. 16-17).
Additionally, the ALJ determined the Dr. Skaziak’s opinion regarding Plaintiff’s
subjective pain was not credible. He found that this part of his opinion was inconsistent with his
own treatment records and with the rest of the objective record. (R. 17).
Based on these findings and the testimony of the vocational expert, the ALJ concluded
that jobs existed in significant numbers in the national economy that Plaintiff could perform and
that, therefore, Plaintiff was not disabled under the Social Security Act. (R. 18).
After careful review, the court concludes that the ALJ’s fact finding is supported by
substantial evidence and that correct legal standards were applied. The court addresses Plaintiff’s
Dr. Skaziak’s Opinion
Plaintiff contends that the ALJ improperly assigned little weight to Dr. Skaziak’s opinion
of her pain. To the contrary, the court finds that substantial evidence supports the ALJ’s
In assigning weight, “the testimony of a treating physician must be given substantial or
considerable weight unless good cause is shown to the contrary.” Crawford v. Comm’r Of Soc.
Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)) (internal citations omitted). The ALJ has good cause for rejecting a treating
physician’s opinion when “the: (1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Phillips v. Barnhart, 357
F.3d 1232, 1240-41 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440).
In the present case, the ALJ determined that treating physician Dr. Skaziak’s opinion was
not entitled to great weight, to the extent it differed from his RFC findings, because it was
inconsistent with his own treatment records and with the remainder of the record. (R. 17). The
ALJ noted that Dr. Skaziak’s conservative treatment, including skin cream, pain medications,
custom inserts and diabetic shoes, of Plaintiff was inconsistent with his opinion of her level of
pain. The Eleventh Circuit has stated that “[a] doctor’s conservative medical treatment for a
particular condition tends to negate a claim of disability.” Sheldon v. Astrue, 268 Fed. App’x
871, 872 (11th Cir. 2008) (citing Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996)).
He further cited the findings of examining physicians, Drs. Arnold and Tenchavez. Both
examining physicians stated Plaintiff could walk without difficulty or obvious pain.
Tenchavez further stated that Plaintiff “had no pain, restriction, or swelling on review of the
joints.” The ALJ noted that, despite her allegations to Dr. Skaziak that she could not wear
normal shoes, Plaintiff wore “suede ankle-high boots” to her examination with Dr. Arnold. (R.
This inconsistent evidence, both in the record and in Dr. Skaziak’s own treatment,
provided “good cause” to discredit his assessment of Plaintiff’s pain. See Phillips, 357 F.3d at
Plaintiff argues that the ALJ did not properly discredit her testimony regarding her
subjective pain. This argument lacks merit.
When a claimant attempts to establish disability through his testimony of pain or other
subjective symptoms, the three-part pain standard applies. Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). To meet the pain standard, a claimant must demonstrate “(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 reasonable expected to give rise to the
alleged pain.” Id. (emphasis added). A claimant’s subjective testimony supported by medical
evidence that satisfies the pain standard is sufficient to support a finding of disability. Foote v.
Charter, 67 F.3d 1553, 1561 (11th Cir. 1995).
The ALJ may discredit a claimant’s subjective testimony of pain if he does so
specifically and articulates his reasons for doing so. Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991).
Furthermore, “[a] clearly articulated credibility finding with substantial
supporting evidence in the record will not be disturbed by a reviewing court.” Foote, 67 F.3d at
1562 (internal citations omitted).
The ALJ cited multiple reasons for discrediting Plaintiff’s testimony and those reasons
are supported by substantial evidence. He noted that Plaintiff’s testimony – like Dr. Skaziak’s
opinion – was inconsistent with the examinations of Drs. Arnold and Tenchavez. (R. 17). He
found that although Plaintiff alleged side effects from her medications, she never complained of
any side effects. (R. 17).
The Eleventh Circuit has found that “a claimant’s failure to report
side effects to his physicians is an appropriate factor for the ALJ to consider in evaluating
whether a claimant’s alleged symptoms are consistent with the record.” Werner v. Comm’r of
Soc. Sec., 421 Fed. App’x 935, 938 (11th Cir. 2011) (citing Swindle v. Sullivan, 914 F.2d 222,
226 (11th Cir. 1990)).
The ALJ also determined that Plaintiff’s testimony was inconsistent with her previously
reported activities. Specifically, Plaintiff’s allegation that she spent most of her time sleeping
conflicted with her Function Report. Plaintiff reported she visited her daughter and stepfather,
did laundry, made her bed, washed dishes and cleaned her house “a little at a time.” (R. 17).
Furthermore, these daily activities listed in the Function Report “are [consistent] with the ability
to perform sedentary work.” (R. 17).
Plaintiff correctly notes that the ability to perform some daily activities does not negate
disability. See Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997). The Lewis decision,
however, does not stand for the proposition that an ALJ cannot consider a claimant’s daily
activities. See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (“The regulations do not,
however, prevent the ALJ from considering daily activities at the fourth step of the sequential
evaluation process.”). In fact, “daily activities should be considered in evaluating ‘the extent to
which [Plaintiff’s] symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.’”
Engram v. Colvin, 1:12CV388-MHT, 2013 WL
4442023 at *9 (M.D. Ala. Aug. 15, 2013) (quoting 20 C.F.R. § 404.1529(a)). Thus, because
Plaintiff’s Function Report was inconsistent with her alleged activities and consistent with his
RFC determination, the ALJ did not err by using her daily activities to discredit her testimony.
The court finds that the ALJ properly applied the pain standard and that substantial
evidence in the record supports his basis for discrediting Plaintiff’s testimony.
For the reasons stated above, this court concludes that the decision of the Commissioner
is supported by substantial evidence and is due to be affirmed. The court will enter a separate
order to that effect simultaneously.
DONE and ORDERED this
day of December, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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