Wise v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioenr is AFFIREMD and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/21/2014. (AHI )

FILED
2014 Jan-21 AM 11:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JOHN RUSSELL WISE,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 4:13-cv-1001-CLS

MEMORANDUM OPINION AND ORDER
Claimant, John Russell Wise, commenced this action on May 26, 2013,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of
the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”),
and thereby denying his claim for a period of disability and disability insurance
benefits. For the reasons stated herein, the court finds that the Commissioner’s ruling
is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ erred in evaluating claimant’s subjective complaints of
pain and his credibility, and that new evidence submitted for the first time to the
Appeals Council should have changed the administrative decision. Upon review of
the record, the court concludes that these contentions are without merit.
To demonstrate that pain renders him disabled, claimant must “produce
‘evidence of an underlying medical condition and (1) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (2) that the
objectively determined medical condition is of such severity that it can be reasonably
expected to give rise to the alleged pain.’” Edwards v. Sullivan, 937 F. 2d 580, 584
(11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)).
“After considering a claimant’s complaints of pain, the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence.”
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)). If an ALJ discredits subjective testimony on
pain, “he must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d
1007, 1011 (11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir.

2

1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)).
The ALJ found that claimant suffered from the severe impairments of
degenerative disc disease of the cervical spine, low back pain of uncertain etiology,
and depression.1 He nonetheless concluded that claimant retained the residual
functional capacity to perform a limited range of light work.2 The ALJ also found
that claimant’s medically determinable impairments could reasonably be expected to
cause the disabling symptoms claimant alleged, but he nonetheless concluded that
claimant’s statements concerning the intensity, persistence, and limiting effects of his
symptoms were not credible to the extent they were inconsistent with the residual
functional capacity finding.3 Specifically, the ALJ reasoned that,
based on a close review of the medical evidence of record, as well as all
pertinent testimony at the hearings, the undersigned finds that the
preponderance of the most credible and convincing evidence contained
in the record has not supported the claimant’s allegations of totally
incapacitating symptoms, and that the claimant’s statements regarding
the severity, frequency and duration of [his] impairments have been
overstated.4
The court concludes that the ALJ’s credibility finding was in accordance with
applicable law and supported by substantial evidence. Contrary to claimant’s
assertion, the ALJ adequately articulated reasons for rejecting claimant’s credibility.
1

Tr. 19.

2

Tr. 20-21.

3

Tr. 24.

4

Tr. 26 (alteration supplied).
3

First, the ALJ reviewed claimant’s medical records and found that they did not
support claimant’s allegations of disabling pain.5 The ALJ’s discussion of the
medical evidence is supported by the record.
Second, the ALJ also reasoned that claimant’s daily activities were not limited
to the extent one would expect, considering the disabling symptoms claimant
alleged.6 Claimant completed a Function Report on August 25, 2008. He indicated
that he lived in a house with his parents, and he tried to provide as much help as
possible to his father, a stroke victim. His back condition affected his sleep because
he could not find a comfortable position. He had no problems with personal care,
including remembering to take care of his personal needs or to take medication. He
sometimes prepared his own meals, like sandwiches or barbecue. He could perform
household chores, including laundry, cleaning, and mowing the grass with a riding
mower, but it would take him several days to physically recover from mowing. He
left the house every day, either by walking or driving a car. He could shop in stores
and online for food and personal needs once or twice a week for one to one and a half
hours at a time. He had no problems managing his personal financial affairs. His
hobbies included watching sports and movies on television, but he could no longer
play sports like he used to. He visited with his children and friends as often as
5

Tr. 24-25.

6

Tr. 25.
4

possible. He could walk 200 yards before needing to stop and rest for a minute or
two. He could pay attention, finish tasks, and follow instructions without difficulty.
He could handle stress “average,” and he could handle changes in routine “fine.” He
used a knee brace daily.7 Claimant also testified during the administrative hearing
that he could stand for one to two hours before needing to sit, and he could sit for one
to two hours before needing to stand up. He could walk a half-mile to a mile before
needing to stop.8

He also testified that he sometimes helps his 93-year-old

grandmother by fixing her television or checking the oil in her car, and that he works
in his yard a little bit to keep himself occupied.9
Claimant asserts that the ALJ’s assessment of his daily activities was
“misleading,” because “[t]he ability to perform the limited activities noted by the ALJ
does not rule out the presence of disabling pain.”10 Indeed, the Eleventh Circuit has
disavowed the notion that “participation in everyday activities of short duration, such
as housework or fishing, disqualifies a claimant from disability.” Lewis v. Callahan,
125 F.3d 1436, 1441 (11th Cir. 1997). That does not mean, however, that a
claimant’s ability to carry out daily activities should not be considered at all in the
disability determination process.
7

Tr. 134-141.

8

Tr. 40.

9

To the contrary, Social Security regulations

Tr. 44.

10

Doc. no. 9 (claimant’s brief), at 7-8 (alteration supplied).
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expressly provide that such activities should be considered. See 20 C.F.R. §
404.1529(c)(3)(i) (listing “daily activities” first among the factors the Social Security
Administration will consider in evaluating a claimant’s pain). Here, the ALJ did not
rely solely upon claimant’s daily activities in determining her ability to work.
Instead, he simply (and properly) considered claimant’s activities as one factor in
evaluating the credibility of claimant’s subjective complaints. Moreover, the ALJ’s
conclusions about claimant’s credibility and daily activities were supported by
substantial evidence.
Third, the ALJ reasoned that claimant had received relatively routine and
conservative treatment for his symptoms, indicating that they were not severe as
alleged. Claimant counters that he was routinely prescribed Lortab, which indicates
that his symptoms must have been severe. While claimant’s medication certainly is
a factor to consider in evaluating his pain, see 20 C.F.R. § 404.1529(c)(3)(iv), not
every person who takes pain medication is disabled, and there certainly other more
aggressive treatments, like surgery, that claimant never received. See 20 C.F.R. §
404.1529(c)(3)(v).
Fourth, the ALJ reasoned that “[t]he description of symptoms and limitations,
which the claimant has provided throughout the record[,] has generally been
inconsistent and unpersuasive.”11 Claimant does not specifically challenge this point
11

Tr. 25-26 (alterations supplied).
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in his brief, and the court concludes that the ALJ’s finding is supported by the record.
Fifth, the ALJ reasoned that,
[g]iven the clamant’s allegations of totally disabling symptoms,
one might expect to see some indication in the treatment records of
restrictions placed on the claimant by the treating doctor. Yet, a review
of the record in this case reveals no restrictions recommended by the
treating doctor or by any other practitioner.12
Claimant does not dispute this finding based on the evidence that was available to the
ALJ at the time of the administrative decision, but he nonetheless argues that
additional evidence submitted for the first time to the Appeals Council should have
changed the administrative decision.
When a claimant submits new evidence to the AC, the district court must
consider the entire record, including the evidence submitted to the AC,
to determine whether the denial of benefits was erroneous. Ingram, 496
F.3d at 1262. Remand is appropriate when a district court fails to
consider the record as a whole, including evidence submitted for the first
time to the AC, in determining whether the Commissioner’s final
decision is supported by substantial evidence. Id. at 1266-67. The new
evidence must relate back to the time period on or before the date of the
ALJ’s decision. 20 C.F.R. § 404.970(b).
Smith v. Social Security Administration, 272 F. App’x 789, 802 (11th Cir. 2008)
(emphasis supplied).
The new evidence referred to by claimant is an August 26, 2011 form
completed by Dr. James Tuck, and bearing the title “Non-Exertional Factors
Affecting Your Patient.” Dr. Tuck indicated that claimant “apparently” had chronic
12

Tr. 26 (alteration supplied).
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pain as a result of his medical condition. The pain level was rated as moderately
severe, which means that it “could be tolerated but would cause marked handicap in
performance of the activity precipitating the pain.” There were no objective signs of
the pain. Claimant would occasionally need rest periods during the day to walk
around or lie down to relieve pain. Claimant was noted as taking Lortab and
Alprazolam, which could have the side effects of sedation and constipation. In
response to the question, “As a result of the claimant’s medical condition, attendant
limitations, pain and/or any side effects of medication(s), would the claimant likely
have to miss 2 or more days per month from work?,” Dr. Tuck checked the box for
“no.” Even so, he stated that response was “not a given,” because claimant had been
unable to work for three years.13
The court concludes that Dr. Tuck’s evaluation would not change the
administrative result. Claimant’s alleged onset date was November 5, 2007, and he
was insured for disability benefits only through December 31, 2008.14 Dr. Tuck’s
evaluation was not submitted until August 26, 2011. Given that significant temporal
gap, there is no indication that Dr. Tuck’s opinion relates back to the time period on
or before the administrative decision.
The ALJ’s sixth and final reason for discounting claimant’s credibility was that
13

Tr. 246.

14

Tr. 17.
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claimant had “no neurological deficits, muscle atrophy, or significant weight loss,
generally associated with protracted pain, at a severe level.”15 Claimant did not
challenge that finding in his brief, and the court concludes the finding was supported
by substantial evidence.
In summary, the court concludes the ALJ’s decision was based upon substantial
evidence and in accordance with applicable legal standards. Accordingly, the
decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The
Clerk is directed to close this file.
DONE this 21st day of January, 2014.

______________________________
United States District Judge

15

Tr. 26.
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