Rosenkranz v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 05/15/13. (CVA)

FILED
2013 May-15 PM 02:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
LINDA ROSENKRANZ,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Civil Action Number
4:12-cv-2249-AKK

MEMORANDUM OPINION
Plaintiff Linda Rosenkranz (“Plaintiff”) 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”) and the Appeals Council’s decisions - which have become the decision of
the Commissioner - are supported by substantial evidence. Therefore, the court
DENIES the motion to remand, doc. 11, and AFFIRMS the decision denying
benefits.

Page 1 of 26

I. Procedural History
Plaintiff filed her application for Title II disability insurance benefits on
July 25, 2008, alleging a disability onset date of December 31, 1995, due to
epilepsy and fibromyalgia. (R. 88, 265). After the denial of her application on
September 2, 2008, (R. 105), Plaintiff requested a hearing. (R.96). At the time of
the hearings on December 17, 2009 and May 14, 2010, Plaintiff was 47 years old,
had a GED, and past relevant light and semiskilled work as a seamstress. (R. 43,
45, 57). The ALJ denied Plaintiff’s claim on June 28, 2010, which became the
final decision of the Commissioner on April 23, 2012 when the Appeals Council
refused to grant review. (R. 1-6, 20). In rejecting Plaintiff’s request for review,
the Appeals Council considered and added to the record exhibits 9E-12E and 17F,
but declined to supplement the record with evidence that post-dated Plaintiff’s
date last insured.1 (R. 1-6). Plaintiff then filed this action pursuant to section
1

Exhibit 9E is Plaintiff’s statement dated April 6, 2011; Exhibit 10E is counsel’s brief
dated March 21, 2011; Exhibit 11E is counsel’s supplemental brief dated March 6, 2012; Exhibit
12E is counsel’s second supplemental brief dated March 29, 2012; and Exhibit 17F is Plaintiff’s
Gadsden Regional Medical Center treatment records dated August 10, 1998. (R. 291-350, 557).
The Appeals Council rejected the following evidence: Pain and Wound Center treatment
records dated September 9, 2008 through March 5, 2012; Southside Medical Clinic treatment
records dated October 8, 2008; Dr. Daniel S. Prince’s medical source statement dated December
9, 2009; Dr. David Wilson’s psychological evaluation dated November 23, 2009; clinical
assessment of pain dated August 20, 2010; awake and drowsiness EEG dated August 27, 2008;
brain and posterior fossa MRI dated August 8, 2008; Riverview Medical Center treatment
records dated July 11, 2008 through February 29, 2012; Dr. Pascual Herrara’s medical source
statement dated August 30, 2010; and Gadsden Regional Medical Center treatment records dated
January 27, 2011. (R. 2).
Page 2 of 26

1631 of the Act, 42 U.S.C. § 1383(c)(3). 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)
and 1383(c) mandate 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
Page 3 of 26

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
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;
Page 4 of 26

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

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).
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially
determined that Plaintiff had not engaged in substantial gainful activity “during
the period from her alleged onset date of December 31, 1995 through her date last
insured of September 30, 1999” and therefore met Step One. (R. 24). Next, the
ALJ determined that the medical records failed to “substantiate the existence of
any medically determinable impairment.” (R. 25). As the ALJ put it,
The only available documentary evidence of record relative to any of
the pertinent periods in question is in 1998, when the claimant gave
birth to a child. At that time, she was reported to be well developed
and well nourished, with no significant medical history indicated.
Page 5 of 26

She gave birth to a daughter via Cesarean section, and was discharged
home in stable condition on the second postpartum day (Exhibit 4F).
She did not seek any other medical treatment, per records, until
September 2002 (Exhibit 9F), some three years beyond her date last
insured for Title II eligibility. She also testified that she first started
having problems with fibromyalgia in 2004, which contradicts her
Disability Report.
I find that the claimant’s allegations and testimony of disabling pain
and functional restrictions lack substantiation and credibility. I find
that the record does not contain objective signs and findings that in
any way support her allegations. There are no diagnostic studies to
show abnormalities. The physical findings in the record do not
establish the existence of neurological deficits, significant weight
loss, muscle atrophy, or other observable signs often indicative of
protracted pain of the intensity, frequency, and severity alleged. Dr.
Gerald Winkler, a Harvard neurologist testified telephonically at the
hearing that the claimant’s allegations of seizures, pain and
fibromyalgia were simply not medically supported. I adopt this
testimony and so find.
****
Regarding the claimant’s testimony that she could only sit for five
minutes consistently, she sat at the hearing for a far long[er] period.
Her explanation: “a soft chair.” There is a serious issue regarding the
claimant’s credibility. Even the blood tests fail to reflect that the
claimant was taking anti-seizure medication for alleged seizures.
Accordingly, I find that there are no medical signs or laboratory
findings to substantiate the existence of any medically determinable
impairment through the date last insured of September 1999. Thus,
the claimant has not been disabled within the meaning of [the Act] at
any time from December 31, 1995, the alleged onset date, through
September 30, 1999, the date last insured.
Id. Therefore, because the ALJ answered Step Two in the negative, the ALJ
determined that Plaintiff is not disabled. (R. 25-26); see also McDaniel, 800 F.2d
Page 6 of 26

at 1030. It is this finding that Plaintiff challenges.
V. Analysis
Plaintiff attacks the ALJ two fold – first, she contends that the ALJ erred
because he limited the testimony of a witness, and failed to develop the record,
consider all of Plaintiff’s severe impairments, or state reasons for discrediting
Plaintiff. Doc. 10. Second, Plaintiff contends that a remand is warranted under
sentences four and six of 42 U.S.C. § 405(g) because of the ALJ’s and Appeals
Council’s purported failure to consider relevant evidence.2 Docs. 11; 10 at 31.
The court will address the remand contention first and then the specific
contentions about the purported errors the ALJ and Appeals Council made.
A.

Remand
Plaintiff filed a motion to remand based on sentence four because “records

were submitted to the ALJ and the Appeals Council and they have been omitted
from the Record” and sentence six because “new records are being submitted to

2

Sentence four states that “[t]he court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of the Social Security, with or without remanding the cause for a rehearing.”
Sentence six states, in relevant part, that “[t]he court may, on motion of the
Commissioner of Social Security made for good cause shown before the Commissioner files the
Commissioner’s answer, remand the case to the Commissioner of Social Security for further
action by the Commissioner of Social Security, and it may at any time order additional evidence
to be taken before the Commissioner, but only upon showing that there is new evidence which is
material and that there is good cause for the failure to incorporate such evidence into the record
in a prior proceeding.” 42 U.S.C. § 405(g).
Page 7 of 26

the Court.”3 Doc. 11 at 1-4. For the reasons stated below, the motion to remand is
DENIED.
1.

Sentence four remand

“[A] decision of the Appeals Council to deny review after refusing to
consider new evidence is a part of the ‘final decision’ of the Commissioner subject
to judicial review under sentence four of section 405(g).” Ingram v. Comm’r of
the Soc. Sec. Admin., 496 F.3d 1253, 1265 (11th Cir. 2007). “When a claimant
properly presents new evidence, and the Appeals Council denies review, the
Appeals Council must show in its written denial that it has adequately evaluated
the new evidence. If the Appeals Council merely ‘perfunctorily adhere[s]’ to the
ALJ’s decision, the Commissioner’s findings are not supported by substantial
evidence and [the court] must remand ‘for a determination of [the claimant’s]
disability eligibility reached on the total record.’” Flowers v. Comm’r, 441 F.
App’x 735, 747 (11th Cir. 2011), citing Epps v. Harris, 624 F.2d 1267, 1273 (5th
Cir. 1980). Basically, “[t]he fourth sentence of section 405(g) provides the federal
court ‘power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner.’” Ingram,

3

Plaintiff contends also that remand is warranted because the ALJ refused to allow the full
testimony of Plaintiff’s witness at the hearing, doc. 11 at 4, which is discussed in section C.,
infra.
Page 8 of 26

496 F.3d at 1261.
a.

Evidence submitted to the ALJ

Plaintiff challenges the ALJ’s alleged omission of the following exhibits
from the record: May 20, 2010 brief and insurance statements and diagnosis codes
from 1992 through 2000 (Exhibit A); December 1, 2009 brief and treatment notes
from Gadsden Psychological Services (November 23, 2009) and the Pain and
Wound Care Center (September 18, 2008 through October 15, 2009) (Exhibit B);
December 11, 2009 brief and December 9 and 10, 2009 treatment records from Dr.
Daniel Prince and Dr. Odeane Connor, respectively (Exhibit C); and May 20, 2010
brief and February 3, 2010 letter from Dr. Jack Bentley, Jr. (Exhibit D). Docs. 11
at 1; 11-1 through 11-4; 10-1; (R. 163-232). However, contrary to Plaintiff’s
contentions, Exhibit A is a part of the record at exhibits 14B-16B (R. 163-231),
and, as Plaintiff correctly points out, Exhibit D is also a part of the record at
exhibits 12B and 16F (R. 161, 556); doc. 11 at 2. Therefore, Plaintiff is incorrect
when she claims that the ALJ omitted these two exhibits. Moreover, a review of
the remaining exhibits shows clearly that they fail to help Plaintiff meet her
burden of establishing her disability by her September 30, 1999 date last insured.
Specifically, Exhibits B and C are from 2008 and 2009, i.e. almost ten years past
Plaintiff’s date last insured. As such, they are too remote to establish Plaintiff’s
Page 9 of 26

disability on or before her date last insured of September 1999. See Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (unlike SSI benefits, “a claimant
is eligible for [disability insurance benefits] where she demonstrates disability on
or before the last date for which she were insured.”) (emphasis added); 42 U.S.C.
§ 423(a)(1)(A). Therefore, based on this record, the ALJ’s decision to omit
Exhibits B and C from the record is supported by substantial evidence.
b.

Evidence submitted to the Appeals Council

After the ALJ denied Plaintiff’s claim, Plaintiff sought review from the
Appeals Council and submitted new evidence, which the Appeals Council
evaluated:
In looking at your case, we considered the reasons you disagree with
the decision and the additional evidence [Exhibits 9E-12E and 17F]
listed on the enclosed Order of the Appeals Council.
We found that this information does not provide a basis for changing
the Administration Law Judge’s decision.
We also looked at treatment records from the Pain and Wound Center,
dated September 9, 2008 through March 5, 2012 [Exhibit J];
treatment records from Southside Medical Clinic, dated October 8,
2008; medical source statement by Daniel S. Prince, MD, dated
December 9, 2009; psychological evaluation report from David R.
Wilson, PhD, dated November 23, 2009; clinical assessment of pain,
dated August 20, 2010 [Exhibit F]; awake and drowsiness EEG, dated
August 27, 2008; MRI of the brain and posterior fossa, dated August
8, 2008; treatment records from Riverview Medical Center, dated July
11, 2008 through [ ] February 29, 2012 [Exhibit G]; medical source
Page 10 of 26

statement by Pascual Herrara, MD, dated August 30, 2010 [Exhibit
E]; and treatment records from Gadsden Regional Medical Center,
dated January 27, 2011 [Exhibit H].
The [ALJ] decided your case through September 30, 1999, the date
you were last insured for disability benefits. This new information is
about a later time. Therefore, it does not affect the decision about
whether you were disabled at the time you were last insured for
disability benefits.
(R. 2). Plaintiff contends the Appeals Council erred when it rejected Exhibits E-J
that “have been omitted from the record.” Docs. 11 at 2; 11-5 through 11-10.
Plaintiff’s contention is unavailing, however, since medical records dated after
September 30, 1999 simply do not help Plaintiff establish her disability status.
Therefore, the Appeals Council correctly evaluated and rejected the evidence
dated from August 2008 through March 2012 that Plaintiff submitted. This “new”
evidence was well outside the relevant time period and provided no basis for the
Appeals Council to overturn the ALJ’s decision.4 Accordingly, the Appeals
Council’s decision to reject the evidence is supported by substantial evidence.
Based on a review of the evidence, Plaintiff has failed to establish that a
remand under sentence four is warranted. Accordingly, the motion to remand

4

Presumably, the Appeals Council did not receive Exhibit I because it is not listed among
the evidence it evaluated. Nevertheless, Exhibit I also fails to establish Plaintiff’s disability
because the information from Southside Medical Clinic, dated February 3, 2011, is outside the
relevant time period. Doc. 11-9.
Page 11 of 26

under sentence four is DENIED.
2.

Sentence six remand

Plaintiff contends also that a remand under sentence six is warranted
because “new records [Exhibit K] are being submitted to the court” which “were
not submitted to the Appeals Council due to [an] oversight.” Docs. 11 at 1-2; 1111. Sentence six of 42 U.S.C. § 405(g) provides the “sole means for a district
court to remand to the Commissioner to consider new evidence presented for the
first time in the district court.” Ingram, 496 F.3d at 1267. To trigger relief, a
Plaintiff must demonstrate that the evidence (1) is new and noncumulative, (2) is
“material” such that there is a reasonable probability that it would change the
administrative result, and (3) was not submitted at the administrative level for
good cause. Caulder v. Bowen, 791 F.2d 872, 876 (11th Cir. 1986); see also
Cherry v. Heckler, 760 F.2d 1186 (11th Cir. 1985). Unfortunately for Plaintiff,
she failed to show any good cause for her failure to submit Exhibit K at the
administrative level. Instead, Plaintiff maintains only that the documents “were
not submitted to the Appeals Council due to [an] oversight.” Docs. 11 at 2; see
also 14 at 1. However, the good cause “requirement reflects a congressional
determination to prevent bad faith manipulation of the administrative process,” it
“prevents claimants from attempting to withhold evidence” to “obtain another bite
Page 12 of 26

of the apple,” and may be established only if the evidence did not exist at the time
of the administrative proceeding. Milano, 809 F.2d at 767 (citation omitted). Put
differently, an “oversight” is not an appropriate basis to claim good cause.
Alternatively, the new evidence, which consists of health insurance
statements, health care service dates, and provider and diagnosis codes, is not
material and fails to substantiate Plaintiff’s disability claim. Doc. 11-11 at 1-10.
Presumably, Plaintiff contends that the court should accept the insurance diagnosis
codes as objective medical evidence of her disability, i.e. “medical signs and
laboratory findings.” 20 C.F.R. § 404.1529(a). However, the mere existence of a
severe impairment is insufficient to support a disability claim since the Act
“defines ‘disability’ in terms of the effect a physical [ ] impairment has on a
person’s ability to function in the workplace.” Bowen v. Yuckert, 482 U.S. 137,
146 (1987). Moreover, even if the court considered the evidence, it fails to
establish Plaintiff’s disability status because between the December 1995 onset
date and September 1999 date last insured, diagnosis code 7245 appeared only in
August and September 1999. These two entries in two consecutive months fall
short of rising to an impairment “which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a) and
404.1527(a)(1); doc. 11-11 at 2. Accordingly, a sentence six remand is also not
Page 13 of 26

warranted here. Therefore, the motion to remand under sentence six is DENIED.
B.

The ALJ’s alleged failure to develop the record
In addition to claiming that a remand is warranted, Plaintiff also contends

that the ALJ committed several errors that warrant a reversal by this court. First,
Plaintiff asserts that the ALJ “omitted [Exhibits A-C attached to the motion to
remand] from the Records and were not considered in the evaluation of claimant’s
appeal” and “rejected records which were submitted to the ALJ.” Doc. 10 at 13,
15; see also docs. 11 at 1; 11-1 through 11-3. This argument is unpersuasive. A
disability insurance benefits claimant must show the onset of disability before the
expiration of the claimant’s insured status. Ware v. Schweiker, 651 F.2d 408, 411
(5th Cir.1981), cert. denied, 444 U.S. 952 (1979); Milam v. Bowen, 782 F.2d
1284, 1286 (11th Cir.1986); see 42 U.S.C. §§ 416(i)(3) and 423(c)(1). As
explained fully in section A., supra, Exhibits A-C are irrelevant to Plaintiff’s
disability claim because they are either dated at least nine years after Plaintiff’s
date last insured or they fail to establish a severe impairment for the requisite
twelve months. As such, the ALJ committed no error in failing to develop the
record based on medical records generated some nine years after Plaintiff’s date
last insured.

Page 14 of 26

C.

The ALJ’s failure to allow testimony
Next, Plaintiff raises multiple contentions of error regarding restrictions the

ALJ purportedly placed on testimony at the two hearings. The court discusses the
contentions below.
1.

Alleged restriction on testimony of Plaintiff’s friend at the first
hearing

First, Plaintiff contends that the ALJ failed to allow her lawyer “to ask all of
her questions of . . . her witness at the first hearing” even though “Counsel
explained that the testimony would show that Claimant was in the same condition
in 1999 as she [is] in now.” Doc. 10 at 16. This argument is unavailing because
Counsel conceded during the first hearing that he needed to further substantiate
the record and agreed to a second hearing to allow Plaintiff’s witness an
opportunity to testify:
Atty: The earliest records, Your Honor, is the chiropractic record in
November 1999. And then after that the records sort of picks
up in 2004 in [the] Pain & Wound Care Center in May, May
3rd of ‘04.
****
ALJ: Well, I can’t send her for physical exams because no doctor’s
going to find that, well, you know, I think 15 years ago she was
whatever. They give a current evaluation. That carries us
nowhere. And if I get a doctor to testify he may say someone
who has a condition in ‘07 like this could have had it. I mean
I’m really grasping at straws here. You have a very difficult
job ahead of you. But I will take as your offer of proof that
Page 15 of 26

what her friend would testify, and maybe you would ask her to
come to the next hearing, that she would say going back 15
years ago to ‘95 that she was having significant seizures. I, I
could take that as an offer of proof subject to her coming back
to a secondary hearing. That’s how I see it. But I do think that
I just can’t flip a coin and say, well, I guess you had it 15 years.
I mean I, the currency I deal in is evidence and I have to have
some evidence in addition to a friend saying, you know, what
she, she had seizures. But I think someone who reviews
medical records could say, well, if a person had this condition
in ‘98 that they would have it in ‘99 or if a person had it in
2007. I can see where they can interpret retroactivity. I
certainly can’t by reading a medical record five, six years later
say, oh, this person must have had it because I deal in evidence.
That’s what a lawyer does. So why don’t I get a neurologist to
testify to say this is possible based on all the evidence we have
and someone would testify that she had seizures before. What
do you think? It would at least bring us a little closer to the
truth, I don’t know how. . . . I just want to find out if one can
reasonably say going back to ‘95 that she never could have
worked not withstanding the epilepsy. Because I have heard
people, I have ruled that people with epilepsy, depending on
how controlled it is on the medications, can work at some job.
Epilepsy does not mean a person’s, per se, disabled. It means
it’s severe but not necessarily disabling in terms of never being
able to work. What do you think about that, does that make
any sense to you?
Atty: I think that’s a good plan, Your Honor.
****
ALJ: Okay, perfect. All right. Let’s do that, we’ll hold another
hearing. You’ll bring your friend. Give her time to get
additional documents for the earlier part. And I’ll have a
neurologist testify if they could infer from (inaudible) how far
back we can go. The best I could do, okay?
Atty: Yes, thank you.
Page 16 of 26

****
ALJ: All right. Do you have any questions?
Atty: No, sir.
(R. 40-41, 45). Based on this testimony, Plaintiff’s assertion regarding the first
hearing is unfounded. The evidence is uncontroverted that Counsel agreed to
postpone the witness testimony until the second hearing to allow Plaintiff time to
gather additional evidence and to allow a neurologist to testify.
2.

Alleged restriction on Plaintiff’s testimony at the second hearing

Second, Plaintiff contends that the ALJ erred when he failed to allow
Plaintiff’s counsel “to ask all of [his] questions” regarding how Plaintiff spent her
day. Doc. 10 at 16. Contrary to Plaintiff’s contention, while the ALJ precluded
Counsel from asking leading questions, he allowed Plaintiff to testify about her
activities of daily living:
Atty: Okay. Now back during the time between ‘95 to ‘99 were you
lying down during the day for any reason?
Plaintiff:

Yes, I was.

Atty: Why?
ALJ: See that’s what I call a leading question.
Atty: Okay.
ALJ: In other words, ask her what she was doing as opposed to
Page 17 of 26

testifying?
Atty: Okay.
ALJ: What were you doing? How did you spend your day? That’s
what I want to - - because there’s an issue of credibility here.
I’ve already had a doctor to testify there’s nothing severely
wrong with her. So now we’re to her testimony, and this is the
second hearing on it. We need her testimony. See what I’m
saying.
Atty: Yes, sir. . . . The judge has asked how did you - - basically, he
would like to know, I think, how did you spend your day
between the years of 1995 and 1999?
(R. 71-72). The record shows that after the ALJ prohibited counsel from asking
leading questions, Plaintiff testified extensively about her activities during the
1995-1999 period, including that she raised an infant, soaked in hot water to
relieve pain which she scored as a 9 on a 10 point scale, watched television, did a
“little housework,” and transported her daughter to and from school. (R. 72-74).
In other words, the evidence belies Plaintiff’s contention that the ALJ precluded
her from testifying regarding the effects of her purported impairment.
3.

Alleged restriction on a witness’s testimony at the second hearing

Third, Plaintiff contends that the ALJ “refused to allow the witness to testify
regarding the Claimant’s seizure disorder and panic attacks.” Doc. 10 at 16. The
relevant exchange is as follows:

Page 18 of 26

Atty: Did you ever see any seizure like activity [between 1995 and
1999]?
Witness:

A mini seizure.

****
ALJ: I’m not going to allow any testimony of hers that she saw
seizures, because she’s -- I need a doctor to testify.
Atty: Okay.
ALJ: She’s not [ ] a doctor. I don’t know what she calls a seizure
whether it is a seizure or not.
Atty: Okay.
ALJ: All of her medical tests show that there were no seizures. I’m
not accepting her testimony that she could diagnose seizures.
Atty: Okay.
Witness:

I’m not claiming to.

Atty: She [ ] is a paramedic, Your Honor.
ALJ: She could be a paramedic, but I’m not accepting her testimony
that she [ ] could diagnose eight or nine seizures in light of the
record.
Atty: Okay.
ALJ: If she were a doctor, yes, but she’s not.
Atty: Okay. Can she testify about whether she ever witnessed a
panic attack?
ALJ: Well, there’s no allegations of panic attacks. . . . Where’s that
come up.
Page 19 of 26

Atty: She was treated for anxiety and the - ALJ: In the papers that she filed, she never mentioned anything
about panic attacks.
Atty: She testified today that she experienced panic attacks back
during the relevant time period.
ALJ: Yeah, but I mean it’s – I mean, no, because it’s – I mean it
should be an allegation, it can’t come out of the blue, you
know. As I said, the alleged onset date is 15 years ago, she
filed the papers in 2008, she made no allegations about panic
attacks, and I don’t think its relevant. Her allegations then
were epilepsy, and we’ve heard testimony on that. Her
allegations was fibromyalgia. Those are the two areas. But
nothing about panic attacks that I see. And that would be if
you look under case data under allegations, nothing about panic
attacks.
Atty: You know I, I mean she testified about it today, and I, I don’t
think it’s a requirement that you list ever single impairment
when you file a claim, but I will –
ALJ: I think it is.
****
Atty: Do you remember if [Plaintiff] had any difficulty concentrating
or thinking 15 years ago?
Witness:

Pretty much, yeah, she’s had a lot of difficulties over the
years.

Atty: Okay. Can you give me an example of something that you saw
that indicated a problem in that area?
Witness:

Well, a lot of times I’d go over there, and we’d be trying
to cook, and she would just get upset, and couldn’t do
anything. I mean her back would start [having]
Page 20 of 26

spasm[s], she would have to sit down, you know, and
couldn’t really remember what was going on. I don’t
know if that was related to a panic disorder, or what, but
I mean she had a lot of difficulties. And she just -- the
pain would cause her to get anxious, I mean she just, she
couldn’t concentrate.
Atty: Okay. Those are all the questions I have of the witness, Your
Honor.
(R. 79-81, 83-84).
Presumably, Plaintiff is contending that her friend’s testimony would have
established that Plaintiff suffered epileptic seizures and panic attacks prior to her
date last insured. However, an ALJ’s refusal to allow lay person’s testimony
about a medical condition is irrelevant in the absence of sufficient medical
evidence to support the disability claim. See Landry v. Heckler, 782 F.2d 1551,
1554 (11th Cir. 1986) (“Because [the plaintiff’s] claim fails for want of sufficient
medical evidence, his assertion that he should have been allowed to produce lay
testimony is mooted.”). As stated earlier, nothing in the record shows an actual
diagnosis of epilepsy, fibromyalgia, panic attacks, or anxiety before Plaintiff’s
date last insured. Indeed, consulting neurologist Dr. Gerald Winkler testified that
“Plaintiff might have a seizure disorder, but it hasn’t been proven. . . . Now
another diagnosis that has been carried along in these notes just as a statement
without supporting data is that of fibromyalgia, but there’s no data, no indication
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of (inaudible) attacks the activities of daily living, et cetera, so I can’t use that to
determine any meeting or equaling of a listing.” (R. 55). Therefore, to the extent
that Plaintiff is claiming she is disabled based on an undiagnosed condition or a
condition that was diagnosed before her date last insured – and one which her lay
witness would have verified, her claim fails because she failed to prove that she
actually suffered from a severe impairment during the relevant period of time.
In short, based on a review of the record, the court finds no error in the
ALJ’s decision to preclude a lay witness from testifying about Plaintiff’s
purported medical conditions, or Counsel from asking Plaintiff leading questions.
Therefore, the ALJ’s decision is supported by substantial evidence.
D.

The ALJ’s alleged failure to consider all of Plaintiff’s severe impairments
Plaintiff’s next contention is that the ALJ failed to consider Plaintiff’s

thoracic pain, lumbalgia,5 and dysmenorrhea6 in assessing her claim. Doc. 10 at
17-18. This contention also misses the mark because the medical records prior to
her date last insured, which consists of two medical reports, do not support
Plaintiff’s disability claim. The first report is Plaintiff’s ante- and postpartum

5

Lumbago is defined as “a nonmedical term for any pain in the lower back.” Elsevier
Saunders, Dorland’s Illustrated Medical Dictionary, 1076 (2013).
6

Dysmenorrhea is defined as “painful menstruation.” Elsevier Saunders, Dorland’s
Illustrated Medical Dictionary, 578 (2013).
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medical records from Gadsden Regional Medical Center in September 1999,
which fail to mention any purported severe impairments. (R. 557-588). The other
medical record is Dr. L. Steven Knighten’s initial evaluation on November 19,
1999 where he noted that Plaintiff was negative for postural maneuvers and
straight leg raises, had upper extremity reflexes at 2/2, normal lower extremity
reflexes, lower and upper extremity muscle strength at 5/5, tenderness and spasms
upon palpation of the thoraco-lumbar area, and painful thoraco-lumbar ranges of
motion. (R. 511). Dr. Knighten diagnosed Plaintiff with thoracic pain and
lumbalgia and prescribed chiropractic manipulation and ice to the tender areas. Id.
Finally, Plaintiff’s November 1996 insurance statement listed a dysmenorrhea
diagnosis. Doc. 10 at 18. Unfortunately for Plaintiff, this scarce record fails to
substantiate that she suffered from any of the alleged symptoms or disabling
impairments for “a continuous period of not less than 12 months.” 20 C.F.R. §
404.1527(a)(1). Therefore, the ALJ’s decision to not consider these conditions is
supported by substantial evidence.
E.

ALJ’s alleged failure to state adequate reasons for discrediting Plaintiff
Finally, Plaintiff challenges the ALJ’s finding that her testimony that her

“back [has] hurt[ ] constantly” since 1987 was not credible. According to
Plaintiff, the ALJ erred because the pain standard does not require objective proof
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of pain. Doc. 10 at 19; (R. 58). This circuit applies “a three part ‘pain standard’
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Sullivan, 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.7
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
Cir. 1987)].
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

7

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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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
testimony.
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.
Here, the ALJ discredited Plaintiff’s allegations for four reasons: 1) the
“record does not contain objective signs and findings that in any way support her
allegations;” 2) “[t]here are no diagnostic studies to show abnormalities;” 3) “the
physical findings in the record do not establish the existence of neurological
deficits, significant weight loss, muscle atrophy, or other observable signs often
indicative of protracted pain of the intensity, frequency, and severity alleged;” and
Page 25 of 26

4) consulting neurologist Dr. Winkler “testified telephonically at the hearing that
the claimant’s allegations of seizures, pain, and fibromyalgia were simply not
medically supported.” (R. 25, 53-56). As discussed previously, the record is void
of any evidence of an underlying medical condition or an “objectively determined
medical condition of such a severity that it can be reasonably expected to give rise
to the alleged pain.” Holt, 921 F.2d at 1223. Therefore, the record supports the
ALJ’s decision to reject Plaintiff’s pain testimony. Based on the record before this
court, Plaintiff failed to meet the pain standard and the ALJ’s decision is
supported by substantial evidence.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s and Appeals
Council’s determinations that Plaintiff is not disabled is supported by substantial
evidence, and that the ALJ and Appeals Council applied proper legal standards in
reaching its determinations. The Commissioner’s final decision is, therefore,
AFFIRMED and the motion to remand is DENIED. A separate order in
accordance with this memorandum of decision will be entered.
Done the 15th day of May, 2013.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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