Andrews v. Social Security Administration, Commissioner
MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Harwell G Davis, III on 10/30/14. (SPT )
2014 Oct-30 PM 02:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
COMMISSIONER, SOCIAL SECURITY
) Case No. 4:13-cv-01747-HGD
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), plaintiff seeks judicial
review of an adverse social security ruling which denied claims for disability
insurance benefits (hereinafter DIB) and Supplemental Security Income (hereinafter
SSI). (Doc. 1). The parties filed written consent and this action has been assigned
to the undersigned Magistrate Judge to conduct all proceedings and order the entry
of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (See Doc.
9). Upon consideration of the administrative record and the memoranda of the
parties, the court finds that the decision of the Commissioner is due to be affirmed
and this action dismissed.
Page 1 of 25
Plaintiff filed applications for disability, DIB and SSI on February 3, 2011.
(Tr. 132-42). The applications were denied. (Tr. 82-86). Plaintiff requested a
hearing before an administrative law judge (ALJ). A hearing was held, and the ALJ
issued a decision on January 9, 2013,finding that plaintiff was not disabled. (Tr. 1931). The Appeals Council denied plaintiff’s request for review. (Tr. 1-7). After the
Appeals Council denied plaintiff’s request for review of the ALJ’s decision, that
decision became the final decision of the Commissioner and, therefore, a proper
subject of this court’s appellate review. 42 U.S.C. §§ 405(g) and 1383(c)(3).
Disability under the Act is determined under a five-step test. 20 C.F.R.
§ 404.1520. First, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). “Substantial work
activity” is work that involves doing significant physical or mental activities. 20
C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or profit.
20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has
a medically determinable impairment or a combination of medical impairments that
significantly limits the claimant’s ability to perform basic work activities. 20 C.F.R.
§ 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability.
Page 2 of 25
Id. Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See
20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526. If such criteria are met, the
claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared
disabled under the third step, the ALJ may still find disability under the next two
steps of the analysis. The ALJ first must determine the claimant’s residual functional
capacity (RFC), which refers to the claimant’s ability to work despite his
impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines
whether the claimant has the RFC to perform past relevant work, 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past
relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds that the
claimant is unable to perform past relevant work, then the analysis proceeds to the
fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the
ALJ must determine whether the claimant is able to perform any other work
commensurate with his RFC, age, education and work experience. 20 C.F.R.
§ 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove
the existence in significant numbers of jobs in the national economy that the claimant
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can do given the RFC, age, education and work experience.
§§ 404.1520(g) and 404.1560(c).
Plaintiff was 55 years old at the time of the ALJ’s decision in this case which
occurred in January 2013. (Tr. 30, 132). Plaintiff has a high school education with
two years of college and past work experience as a poultry picker and laborer. (Tr.
46-47, 158, 159, 164, 173-80). Plaintiff alleges that his disability began in May 2009,
as a result of blood clots, an arm injury and carpel tunnel. (Tr. 153, 158).
The ALJ found that plaintiff has the following severe impairments:
hypertension, mild osteoarthritis of the left shoulder, mild degenerative joint disease
of the lumbar spine, and left lower extremity deep vein thrombosis. (Tr. 24).
According to the ALJ, plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments of 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 25).
The ALJ determined that plaintiff has the RFC to perform light work as defined
in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he can stand and walk
approximately six hours in an eight-hour day; sit approximately six hours in an eighthour day; and he can frequently balance, stoop, kneel, crouch and crawl, and climb
ramps and stairs. (Tr. 25). Based on this, the ALJ concluded that plaintiff is capable
of performing past relevant work as a poultry picker, which is classified at the light
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level of exertion and is unskilled with an SVP of 2. According to the ALJ, this work
does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity. (Tr. 30).
On appeal, plaintiff asserts that the ALJ’s finding that plaintiff can perform
past work was not based on substantial evidence and was not in accordance with the
law. (Doc. 12, Plaintiff’s Brief, at 12). Plaintiff also asserts that he meets Grid Rule
202.14 (closely approaching advanced age) and 202.04 (advanced age) and is
therefore entitled to benefits. (Id. at 16). Finally, plaintiff alleges that the ALJ drew
adverse inferences from the lack of medical testimony. (Id. at 17).
Standard of Review
Judicial review is limited to whether the record reveals 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 correct legal standards were applied. See
Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Brown, 792 F.2d 129,
131 (11th Cir. 1986). Title 42 U.S.C. § 405(g) mandates that the Commissioner’s
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,
re-evaluate the evidence or substitute its judgment for that of the Commissioner;
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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, 894 F.2d at 1529 (quoting Bloodsworth,
703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed even if the evidence preponderates
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, the court
also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
Plaintiff bears the ultimate burden of proving disability. See 42 U.S.C.
§ 423(d)(1)(A), (5); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Only after plaintiff has established
his inability to return to his former occupation does the burden shift to the
Commissioner to identify a significant number of jobs in the national economy that
plaintiff can perform given his capacities and vocational profile.
Page 6 of 25
Plaintiff asserts that Dr. Daniel Prince, an examining physician, found that
plaintiff could not work. (Tr. 366-67). According to plaintiff, the rejection of Dr.
Prince’s opinion and the finding that plaintiff can perform light work are both based
on a lack of medical evidence. He bases this assertion on the ALJ’s statement that
“[t]he findings of Dr. Daniel Prince at Exhibit F are given little weight. Dr. Prince’s
examination of the claimant was a one-time examination and his findings are
inconsistent with the longitudinal medical evidence in this case. (R-29).” (Doc. 12,
Plaintiff’s Brief, at 14).
In addition, during the hearing before the ALJ, a vocational expert (VE)
testified that, if plaintiff could not concentrate for more than 30 minutes, which would
mean that he could not maintain persistence and pace for two hours at a time, plaintiff
would be unable to work. (Id. at 15). The VE also testified that a poultry worker
would have to be able to stand for at least two hours at one time and would not be
allowed to lie down two to three hours a day. Plaintiff testified that he was only able
to stand for about five minutes before his legs became uncomfortable and that he had
to shift back and forth. (Tr. 53). Based on this, plaintiff asserts that the ALJ erred in
finding that he could return to his past work.
The ALJ found that plaintiff had the RFC to perform light work, except he can
stand and walk approximately six hours in an eight-hour day; sit approximately six
Page 7 of 25
hours in an eight-hour day; and he can frequently balance, stoop, kneel, crouch and
crawl, and climb ramps and stairs. (Tr. 25). The ALJ noted that plaintiff reported
that his ability to work was limited due to blood clots, an arm injury and carpal tunnel
syndrome. At the hearing, plaintiff testified that he has blood clots in his legs and
that his leg swells. He stated that he would only walk a block or two before his legs
would swell. He also testified that he has lupus, which affects his joints. He further
testified that he has constant pain all the way around his back which he rated as a
seven to eight out of ten in severity. Because of his back pain, he alleges that he has
problems bending and that reaching with his left arm that causes him to ache. He
reported also that kneeling hurts his legs and that climbing stairs causes him pain.
According to plaintiff, his pain has been at this level for about two years. According
to plaintiff’s testimony, he was hospitalized for about eight days with a pulmonary
embolism. He attempted to return to work after he was discharged but was not
allowed to return. Finally, he testified that he could only stand for about five minutes,
after which his leg would start throbbing. (Tr. 26).
The ALJ found that plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that his statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible. (Id.).
Page 8 of 25
According to the ALJ, the record evidence reflects that plaintiff was
hospitalized on March 15, 2009, for acute respiratory failure after he complained of
chest pain and shortness of breath. He was diagnosed with a pulmonary embolism
and pneumonia. He was discharged on March 26, 2009, with diagnoses of a left parapneumonia effusion status post chest tube placement; pneumonia, left lower lobe
pneumonia; pulmonary thromboembolism; hypertension; tobacco abuse and chronic
alcohol abuse. (Tr. 26).
In May 2009, plaintiff was treated in the emergency room for lacerations from
an assault. The only medication he reported taking at the time of his treatment was
Lisinopril.1 On May 26, 2009, plaintiff was admitted to the hospital with complaints
of worsening left leg pain and swelling that he reported had been present for two or
three days. A venous Doppler study showed that plaintiff had deep vern thrombosis
of his left lower extremity. He was started on Coumadin and Heparin, and his
condition began to stabilize. After this hospitalization, plaintiff was treated in the
emergency room in the hospital after he was kicked in the ribs in January 2011 and
in April 2011 for a prolonged penile erection. He did not make any complaints of leg
pain during either one of those emergency room visits, nor did he seek help for his
deep vein thrombosis. (Tr. 27).
Lisinopril is medication for the treatment of high blood pressure (hypertension).
Page 9 of 25
Dr. Antonio Rozier, M.D., performed a medical examination of plaintiff on
April 9, 2011, at the request of the state agency. (Ex. 2F). His primary complaints
to Dr. Rozier were left leg pain and swelling and shoulder pain. He told Dr. Rozzier
that he had not sought any treatment for his leg pain since 2009. He again reported
that the only medication that he was taking was Lisinopril. Upon examination,
plaintiff had normal coordination, station and gait. He had a minor deformity of the
left deltoid, but no tenderness or contractures.2 He did not have any tenderness,
crepitus3 or effusion4 in his lower extremities. His muscle strength, bulk and tone
were normal and he had normal sensation. Dr. Rozier’s diagnoses were mild
osteoarthritis of the left shoulder and left lower extremity deep vein thrombosis. (Tr.
In his decision, the ALJ also noted that plaintiff began receiving treatment at
Quality of Life Health Services in January 2012. At his initial visit, his blood
pressure was elevated. (Ex. 7F). He reprted that he had been out of his hypertension
medicine for a month. A physical examination revealed that plaintiff had a normal
Contractures are the chronic loss of joint motion due to structural changes in non-bony
tissue. These non-bony tissues include muscles, ligaments and tendons.
Crepitus is a crackling or crunching sound heard when the ends of a fractured piece of bone
rub against each other.
Effusion is the escape of fluid from the blood vessels or lymphatics into the tissues or a
Page 10 of 25
range of motion, muscle strength and stability in all extremities, with no pain on
inspection. He was diagnosed with hypertension and prescribed Lisinopril. The ALJ
noted that when he returned the following month, he reported no side effects from the
medication. (Tr. 27).
In March 2012, plaintiff was hospitalized for two days for deep vein
thrombosis of his lower extremities. (Ex. 10F). He was treated with Lovenox and
Coumadin and released. At the time of his discharge, he was specifically advised to
take his Coumadin. (Tr. 27). He was seen in a follow-up appointment on March 12,
2012. (Ex. 7F). The ALJ again noted that plaintiff again had a full range of motion
of all his extremities, including his legs and knees, with no tenderness, swelling or
joint deformity. When he returned later that month, it was noted that his deep vein
thrombosis was resolved and his hypertension was well-controlled. (Id.).
It was noted that, in April 2012, plaintiff had not been compliant with taking
some medication, partially due to substance abuse. While his left leg was slightly
larger than the right on that visit, he had no pain on palpitation. He returned for lab
results on April 5, 2010, at which time he reported that he did not have any pain or
swelling in his lower extremities. (Ex. 7F).
In April 2012, plaintiff also sought treatment in the emergency room for
complaints of intermittent lower back pain. (Ex. 10F). Although plaintiff had a
Page 11 of 25
painful range of motion and straight leg raising reproduced his pain, he had no
tenderness or swelling. He also did not have any calf tenderness. Plaintiff was
diagnosed with low back pain and discharged. (Tr. 28).
The ALJ also noted that, in May of 2012, plaintiff was seen at Quality of Life
where he reported that his back pain had been radiating to his hips, but that it was
improving. A physical examination revealed some lumbar tenderness and moderate
pain with motion, but his physical examination was otherwise normal. He was
prescribed Tramadol, Prednisone, ibuprofen and Ultram for pain. (Id.).
According to the ALJ, in August 2012, plaintiff reported that his back pain
fluctuated and occurred intermittently. He also admitted non-compliance with his
Coumadin. Despite his intermittent back pain, he stated that he planned on trying to
find a job. (Id.). It is further noted that, on that occasion, plaintiff advised that he
quit taking all of his medications for a while, except for some Coumadin, during a
period of time he was in a drug rehabilitation program. He further stated that he had
been “clean” for the past year. (Ex. 12F at Tr. 412). The ALJ also noted that, in a
Function Report dated April 4, 2011 (Ex. 5E), plaintiff reported his daily activities,
stating that he spent his days riding around with friends, looking for cans or scrap
iron to sell. (Tr. 28).
Page 12 of 25
The ALJ also reviewed the independent medical examination that plaintiff
underwent at the request of his attorney which was performed on October 15, 2012.
The examination was performed by Dr. Daniel Prince, M.D. He noted some swelling
of plaintiff’s lower left extremity and decreased mobility and rotation of his cervical
spine. (Ex. 9F). He stated that plaintiff’s lumbar spine was stiff and tender and that
his grip and pinch strength were reduced. He noted decreased flexion of his lumbar
spine, tenderness and reduced mobility of his hips, and slightly tender shoulders. Dr
Prince’s final impression was “Complete permanent disability secondary to chronic
blood clot abnormality, chronic anti-coagulant therapy, chronic pain syndrome
unspecified and COPD severe.” (Ex. 9F).
The day following his examination by Dr. Prince, plaintiff was seen at the
Quality of Life clinic and reported that joint pain varied as to which joint hurt, but
that his pain had lessened. (Ex. 12F at Tr. 433). Plaintiff had an elevated ANA5 level
and he was educated on lupus; however, the reason for the elevation of the ANA was
not determined. In that same report, it was noted that, contrary to Dr. Prince’s
findings, plaintiff had no cervical or lumbar spine tenderness and each had normal
mobility and curvature. His elbows, hips and knees had mild pain with motion. The
ANA means Antinuclear Antibody and is a substance that can damage or destroy cell
tissues. A positive ANA test can be found in many conditions including lupus, rheumatoid arthritis
and scleroderma. See http://www.thelupussite.com/ana.html.
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remainder of his physical exam was otherwise normal. Plaintiff also reported that he
was taking his medications as prescribed. (Ex. 12F).
The ALJ found that plaintiff’s medical records show that he has a long history
of non-compliance with treatment. However, when he is compliant, his symptoms
and pain levels are reduced. His pharmacy records reflect that he was prescribed
hydrocodone once in 2009 (Ex. 3E), around the time of his deep vein thrombosis, and
Tramadol three times in 2012. (Ex. 14E). The ALJ found that the lack of
medications for pain undercuts plaintiff’s allegations of constant, disabling pain. (Tr.
28-29). He reported a reduction in his joint pain once he began taking the prescribed
medications for his pain. (Exs. 7F, 11F & 12F).
According to the ALJ, plaintiff’s medical records also show that, while he has
not been compliant with his Coumadin, he was treated for deep vein thrombosis after
2009 until March of 2012. Otherwise, he has not made any other complaints
regarding problems with his legs or other symptoms that could be related to deep vein
thrombosis. The ALJ further noted that plaintiff himself reported that despite his
reported pain, he planned to look for employment. (Tr. 29).
Based on this evidence, the ALJ stated that plaintiff has experienced deep vein
thrombosis of his lower extremities and that he has mild osteoarthritis, hypertension
and some shoulder pain. However, the ALJ also found that the symptoms from those
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impairments are not so severe as to prevent him from working. The impact of these
impairments would be reduced by the above-stated RFC, which limits plaintiff to no
more than a light level of exertion. This would reduce the impact of his deep vein
thrombosis and his reported joint pain in that he would be able to sit for extended
periods and would not be required to stand or walk all day. The impact of any leg
and/or joint pain and symptoms associated with hypertension would further be
reduced by limiting plaintiff to balancing, stooping, kneeling, couching, crawling and
climbing rams or stairs no more than on a frequent basis.
The ALJ noted that, while plaintiff claims that he has pain in his lower
extremities and shoulder that limits his lifting ability and affects his ability to bend,
stand, walk, and climb stairs, etc., due to pain, his daily activities, including preparing
meals, performing household chores, reading, watching television and fishing, are
inconsistent with his report of constant of disabling pain. (Tr. 29).
The ALJ also made note of the fact that, although plaintiff testified that he
walks with a limp if he stands or walks too long, all of his physical examinations
show him to have a normal gait. Consequently, the ALJ found that plaintiff’s
statements regarding his limitations with respect to standing and walking and with
respect to pain are not supported by the objective medical evidence of record. (Id.).
Page 15 of 25
According to the ALJ, despite plaintiff’s allegations of pain and physical
limitations, the treatment records and examinations do not provide evidence that
supports his claimed limitations. The records do not support a finding that his ability
to exert himself physically is seriously reduced such that he could not engage in work
activity. The ALJ further found that his self-reported limitations are not consistent
with the medical evidence, and plaintiff simply alleges a greater degree of debilitation
than what the objective evidence can support. Therefore, the ALJ found that
plaintiff’s statements regarding his pain and limitations are not fully credible and that
his impairments are not disabling.
The ALJ also gave the findings and opinion of Dr. Prince little weight. He
based this on the fact that Dr. Prince’s examination was a one-time examination and
his findings are inconsistent with the longitudinal medical evidence in this case. The
ALJ noted that, based on his examination of plaintiff and his review of plaintiff’s
medical records, Dr. Prince stated that plaintiff has “complete permanent disability.”
The ALJ states that, in the first place, an opinion of this type is reserved to the
Commissioner. Next, none of plaintiff’s treating physicians have rendered an opinion
that would even suggest that plaintiff is disabled. Finally, a physical examination by
his treating medical source the very next day contradicts the findings of Dr. Prince
in that plaintiff did not have any limitations with respect to his cervical spine, and any
Page 16 of 25
limitations he had with respect to his elbows, hips and knees were no more than mild
in nature. Thus, according to the ALJ, because of these inconsistencies, the findings
and opinion of Dr. Prince were given little weight. (Tr. 30).
However, the ALJ accorded the findings of Dr. Antonio Rozier significant
weight. (Ex. 2F). The ALJ held that Dr. Rozier’s findings are consistent with
plaintiff’s overall medical records that show that since 2009, plaintiff has had no
problems related to his deep vein thrombosis and that his complaints of back and hip
pain have been intermittent. Dr. Rozier’s examination was consistent with other
examinations which show that plaintiff had essentially normal physical examinations
with some mild limitations of his lumbar spine and left shoulder. Because Dr.
Rozier’s findings were consistent with the great weight of the evidence, the ALJ gave
them significant weight. (Tr. 30).
When determining the weight to give a doctor’s opinion, an ALJ may consider
numerous factors, including whether the doctor examined the claimant, whether
he/she treated the claimant, the evidence the doctor presents to support his/her
opinion, and whether it is consistent with the record as a whole and the doctor’s
specialty. See 20 C.F.R. §§ 404.1527(c), 416.927(c). The ALJ must afford
substantial weight to a treating physician’s opinion unless he finds “good cause” not
to do so. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987). If a physician only
Page 17 of 25
examines the claimant one time, the ALJ does not have to consider this physician a
“treating” physician and does not have to give “great weight” to his opinion.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004). An ALJ
may reject the opinion of a non-treating physician whenever the evidence supports
a contrary conclusion. Syrock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985). An
ALJ does not owe the same level of deference to the opinions of one-time medical
examiners as to treating physicians. McSwain, 814 F.2d at 619. Furthermore, the
regulation in 20 C.F.R. § 404.1527 provides that although a claimant’s physician may
state he is “disabled” or “unable to work,” the agency will nevertheless determine
disability based upon the medical findings and other evidence. The relevant
regulations provide that an opinion from a medical source that a claimant is
“disabled” or “unable to work” is not a medical opinion.
See 20 C.F.R.
§§ 404.1527(d)(1) and 416.927(d)(1). Instead, it is an opinion on an issue reserved
to the Commissioner because it is an administrative finding that is dispositive of a
disability case. See id. Such an opinion is not entitled to any special significance.
See 20 C.F.R. §§ 404.1527(d)(3) and 416.927(d)(3). Nevertheless, Social Security
Ruling (SSR) 96-5p provides that “adjudicators must always carefully consider
medical source opinions about any issue, including opinions about issues that are
reserved to the Commissioner.”
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Although Dr. Prince opined that plaintiff was “unemployable” and could not
work (Tr. 366-67), the ALJ gave this opinion little weight because these are opinions
reserved to the Commissioner and, thus, not due any special consideration, and also
because Dr. Prince’s findings are inconsistent with the treatment notes from
plaintiff’s treating source. The day after his examination by Dr. Prince, plaintiff saw
his treating source, who noted normal mobility of plaintiff’s cervical and lumbar
spine and normal gait. (Tr. 28, 366-67, 433-37). Thus, the ALJ stated valid reasons
for giving little weight to the opinion of Dr. Prince.
In addition, the ALJ considered plaintiff’s subjective complaints of pain and
other symptoms. A plaintiff’s statements of symptoms alone are insufficient to
establish a severe impairment. 20 C.F.R. § 404.1508 (2013) (“A physical or mental
impairment must be established by medical evidence consisting of signs, symptoms,
and laboratory findings, not only by your statement of symptoms”). A three-part
“pain standard” applies when a claimant attempts to establish disability through his
or her own testimony of pain or other subjective symptoms. 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 severity
that it can be reasonable expected to give rise to the alleged pain. Wilson v. Barnhart,
Page 19 of 25
284 F.3d 1291, 1225 (11th Cir. 2002); see also Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991); Kelly v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999). The ALJ does
not have to recite the pain standard word for word; rather, he must make findings that
indicate that the standard was applied. Cf. Holt, 921 F.3d at 1223; Brown v. Sullivan,
921 F.2d 1233, 1236 (11th Cir. 1991).
The ALJ found that plaintiff had a medically determinable impairment that
could reasonably be expected to cause the alleged symptoms, but that his statements
concerning the intensity, persistence and limiting effects of these symptoms were not
entirely credible. The ALJ noted that medical records do not support plaintiff in that
he was prescribed hydrocodone only once in 2009, and Tramadol was prescribed
three times in 2012. This undercut his claim of disabling pain. He also reported
improvement when he took this medicine. Likewise, the ALJ noted that plaintiff’s
stated daily activities also undercut his claims of disabling pain. Thus, medical
evidence did not confirm the severity of plaintiff’s pain, nor was the objectively
determined medical condition of such severity that it could have been reasonably
expected to give rise to the alleged pain.
The record evidence, as discussed by the ALJ, provided substantial evidence
in support of the ALJ’s assessment of plaintiff’s RFC. The ALJ then obtained the
testimony of a vocational expert to determine if plaintiff could perform his past work
Page 20 of 25
given his RFC for light work with some exertional limitations. The VE testified that
plaintiff’s past work as a poultry worker was light, unskilled work. (Tr. 30, 46-47).
The VE testified that an individual with the plaintiff’s light work limitations could
perform work as a poultry picker. (Tr. 76-77). Based on this, the ALJ found that
plaintiff could perform the past relevant work of a poultry picker as generally
performed in the national economy. This conclusion is supported by substantial
evidence, as recited above.
Plaintiff also argues that the ALJ did not properly apply the grids in assessing
plaintiff’s claim. (Doc. 12, Plaintiff’s Brief, at 16-17). The grids, however, are only
applied if an ALJ determines that the claimant cannot perform his past relevant work
at step four of the sequential evaluation process. 20 C.F.R. § 404.1569 (“We apply
these rules in cases where a person is not doing substantial gainful activity and is
prevented by a severe medically determinable impairment from doing vocationally
relevant past work.”). At step four, the ALJ found that plaintiff was able to perform
his past relevant work and was, therefore, not disabled.
See 20 C.F.R.
§§ 404.1520(a)(4)(iv), (f), 404.1560(b)(3), 416.920(a)(4)(iv), (f), and 416.960(b)(3).
This conclusion is supported by substantial evidence, as noted above. Therefore, the
ALJ did not err in failing to use the grids.
Page 21 of 25
Plaintiff also alleges that the ALJ improperly considered plaintiff’s lack of
medical treatment in assessing his claim. However, this is not borne out by the
medical evidence. The ALJ noted that plaintiff had very few prescriptions for pain.
Although plaintiff alleges that he could not pay for this medication, the ALJ’s
observation was that plaintiff lacked requests for prescription medication, not that he
failed to fill the prescriptions once he received them. Furthermore, plaintiff’s
physical examinations were frequently normal in most respects, despite his claims of
pain. In addition, plaintiff went from 2009 until 2012 without treatment for problems
related to deep vein thrombosis. While he contends that he attempted to seek
treatment but was turned away, the records reflect that he was treated at least twice
in 2011 for conditions other than deep vein thrombosis during which this condition
was not even mentioned. (Tr. 438-47, 463-78). Likewise, beginning in January 2012,
plaintiff consistently visited the Quality of Life clinic, but records for those visits
reflect only conservative treatment of plaintiff’s deep vein thrombosis. (Tr. 321-53,
The record reflects that the ALJ properly considered plaintiff’s treatment
history in accordance with the regulations, SSR 96-7p and Eleventh Circuit case law.
He also assessed plaintiff’s credibility by examining the consistency of his complaints
with the available medical and objective evidence and by the treatment records and
Page 22 of 25
consultative examination by Dr. Rozier. (Tr. 29-30, 256-59). Contrary to plaintiff’s
assertion, the ALJ did not substantially rely on plaintiff’s lack of medical treatment
in finding that plaintiff was not disabled.
According to the Eleventh Circuit, “refusal to follow prescribed medical
treatment without a good reason will preclude a finding of disability,” and “poverty
excuses noncompliance.” Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
Additionally, when an ALJ relies on noncompliance as the sole ground for the denial
of disability benefits, and the record contains evidence showing that the claimant is
financially unable to comply with prescribed treatment, the ALJ is required to
determine whether the claimant was able to afford the prescribed treatment. See id.
at 1214. The claimant in Dawkins testified at the administrative hearing that she was
unable to take her prescribed medication because she could not always afford to refill
her prescription. Id. at 1213. In denying benefits, the ALJ relied “primarily if not
exclusively” on evidence pertaining to the claimant’s noncompliance with prescribed
medical treatment. Id. at 1212. On appeal, the Eleventh Circuit reversed and
remanded the case, concluding that, because the ALJ’s finding that the claimant was
not disabled was “inextricably tied to the finding of noncompliance,” and the ALJ had
erred by failing to consider the claimant’s ability to afford the prescribed medical
treatment. Id. at 1214.
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This case is distinguishable from Dawkins because, unlike in Dawkins, the
ALJ’s determination that plaintiff was not disabled was not significantly based on a
finding of noncompliance. Although there was some evidence of noncompliance on
plaintiff’s part, a review of the ALJ’s decision reveals that his finding on this issue
is based primarily on the fact that many of plaintiff’s examinations show that plaintiff
had essentially normal physical examinations with some mild limitations of his
lumbar spine and left shoulder. This finding was supported by the examination of Dr.
Rozier. Because Dr. Rozier’s findings were consistent with the great weight of the
evidence, the ALJ gave them significant weight. Likewise, the ALJ considered
plaintiff’s daily activities, which did not support his claim of disabling pain.
Accordingly, the ALJ’s failure to consider plaintiff’s ability to afford his medication
or seek more treatments does not constitute reversible error. Ellison v. Barnhart, 355
F.3d 1272, 1275 (11th Cir. 2003).
There is substantial evidence that plaintiff could perform light work with the
limitations as set out in plaintiff’s RFC. Likewise, there is substantial evidence that
he can perform his past relevant work as a poultry picker and that such job exists in
significant numbers in the national economy. The ALJ provided detailed and
adequate reasons for his findings. Accordingly, upon review of the administrative
Page 24 of 25
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. Therefore, that decision is due to be AFFIRMED. A separate order
will be entered.
DONE this 30th day of October, 2014.
HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE
Page 25 of 25
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