Wells v. Social Security Administration, Commissioner
MEMORANDUM OPINION as more fully set out. Signed by Magistrate Judge Herman N Johnson, Jr on 03/13/18. (SPT )
2018 Mar-13 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
COMMISSIONER, SOCIAL SECURITY
) Case No. 4:16-cv-01496-HNJ
Plaintiff Shannon Wells seeks judicial review pursuant to 42 U.S.C. § 405(g) of an
adverse, final decision of the Commissioner of the Social Security Administration
(“Commissioner” or “Secretary”), regarding her claim for Disability Insurance Benefits
(DIB). The undersigned has carefully considered the record, and for the reasons stated
below, AFFIRM the Commissioner’s decision.
LAW AND STANDARD OF REVIEW
To qualify for disability benefits and establish his entitlement for a period of
disability, the claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.
The Regulations define “disabled” as the
“inability to do 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 twelve (12)
months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits, a
claimant must provide evidence of a “physical or mental impairment” which “must
result from anatomical, physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory diagnostic techniques.” 20
C.F.R. § 404.1508.
In determining whether a claimant suffers a disability, the Commissioner,
through an Administrative Law Judge (ALJ), works through a five-step sequential
evaluation process. See 20 C.F.R. § 404.1520. The burden rests upon the claimant on
the first four steps of this five-step process; the Commissioner sustains the burden at
step five, if the evaluation proceeds that far. Jones v. Apfel, 190 F.3d 1224, 1228 (11th
In the first step, the claimant cannot be currently engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the impairment is
“severe” in that it “significantly limits [the] physical or mental ability to do basic work
activities . . . .” Id. at § 404.1520(c).
At step three, the evaluator must conclude the claimant is disabled if the
impairments meet or are medically equivalent to one of the impairments listed at 20
C.F.R. Part 404, Subpart P, App. 1, §§ 1.00–114.02. Id. at § 404.1520(d). If a
claimant’s impairment meets the applicable criteria at this step, that claimant’s
impairments would prevent any person from performing substantial gainful activity. 20
C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii). That is, a claimant who
satisfies steps one and two qualifies automatically for disability benefits if he suffers a
listed impairment. See Jones, 190 F.3d at 1228 (“If, at the third step, [the claimant]
proves that [an] impairment or combination of impairments meets or equals a listed
impairment, [the] is automatically found disabled regardless of age, education, or work
experience.”) (citing 20 C.F.R. § 416.920).
If the claimant’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluation proceeds to the fourth step where
the claimant demonstrates an incapacity to meet the physical and mental demands of
past relevant work.
20 C.F.R. § 404.1520(e).
At this step, the evaluator must
determine whether the plaintiff has the residual functional capacity (“RFC”) to perform
the requirements of his past relevant work.
See id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant’s impairment or combination of impairments does
not prevent performance of past relevant work, the evaluator will determine the
claimant is not disabled. See id.
If the claimant is successful at the preceding step, the fifth step shifts the burden
to the Commissioner to prove, considering claimant’s RFC, age, education and past
work experience, whether the claimant is capable of performing other work. 20 C.F.R.
§§ 404.1520(f)(1). If the plaintiff can perform other work, the evaluator will not find
the claimant disabled. See id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); see also 20 C.F.R.
§§ 404.1520(g), 416.920(g). If the plaintiff cannot perform other work, the evaluator
will find the claimaint disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
The court reviews the ALJ’s “‛decision with deference to the factual findings and
close scrutiny of the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin.,
783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991)). The court must determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner applied the proper legal
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
Although the court must “scrutinize the record as a whole . . . to determine if the
decision reached is reasonable and supported by substantial evidence,” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not
decide the facts anew, reweigh the evidence, or substitute [its] judgment” for that of the
ALJ. Winschel, 631 F.3d at 1178 (citations and internal quotation marks omitted).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion” Id. (citations
FACTUAL AND PROCEDURAL HISTORY
After a hearing on January 2, 2015, the ALJ issued his decision on April 6, 2015.
In his decision, the ALJ first determined that Ms. Wells met the Social Security Act’s
insured status requirements through December 31, 2018. The ALJ further found
Wells has not engaged in substantial gainful activity since May 20, 2011, the alleged
onset date. At step two, the ALJ found the following severe impairments: depressive
disorder; anxiety disorder; anorexia nervosa; pain; disorder associated with
psychological factors and general medical condition; pectus excavatum; chronic back
pain; chronic chest wall pain; and restrictive lung disease due to pectus excavatum. (Tr.
The ALJ concluded at step three Ms. Wells’s combination of severe impairments
do not meet or medically equal a listed impairment. (Tr. 41). At step four, the ALJ
found Wells cannot perform her past relevant work as a stock manager and front desk
worker. He ruled Wells exhibits the RFC to perform sedentary work as defined in 20
C.F.R. §§ 404.1567(a), with certain limitations.1 (Tr. 43-44). At step five, the ALJ
The ALJ described the following limitations:
the claimant can ambulate short distances up to 2 city blocks per instance on flat hard
surfaces. She is able to frequently reach overhead as well as all other directions
bilaterally. She can occasionally climb ramps and stairs but should never climb
ladders or scaffolds. She can frequently balance, occasionally stoop and kneel but
never crouch or crawl. She should never be exposed to unprotected heights,
dangerous machinery, dangerous tools, hazardous processes or operate commercial
motor vehicles. She can tolerate occasional exposure to humidity, wetness, and
determined Wells’s age, education, work experience, and RFC allow her to perform jobs
that exist in significant numbers in the local and national economy, such as order clerk,
charge account clerk, and surveillance system monitor. (Tr. 50).
On August 5, 2016, the Appeals Council denied review, which deems the ALJ’s
decision as the Commissioner’s final decision. (Tr. 1). Ms. Wells filed her complaint
with the court seeking review of the ALJ’s decision. (Doc. 1).
In this appeal, Ms. Wells contends substantial evidence does not support the
ALJ’s decision. She faults the ALJ for assigning only partial weight to the opinion of
Wells’s treating physician and not contacting Wells’s treating physician for clarification;
improperly assessing Wells’s continuance of part-time work; and improperly applying
the pain standard. After consideration of the record and Wells’s contentions, the court
determines substantial evidence supports the ALJ’s decision.
vibration. She should never be exposed to extreme cold, extreme heat or
concentrated dust, fumes, gases or other pulmonary irritants. She should be exposed
to no more than moderate noise levels. The undersigned further finds that the
claimant could only remember short simple instructions and would be unable to deal
with detailed or complex instructions. She could do simple routine repetitive tasks
but would be unable to do detailed or complex tasks. She is limited to simple work
related decisions. She would be able to accept constructive nonconfrontational
criticism, work in small group settings and be able to accept changes in the work place
setting if introduced gradually and infrequently and she would be unable to perform
assembly line work with production rate pace but could perform other goal-oriented
work. In addition to normal workday breaks, she would be off-task 5% of an 8-hour
workday (non-consecutive minutes).
A. The ALJ Assigned Proper Weight to the Treating Physician’s Opinion
The ALJ must give “substantial or considerable weight” to the opinion of a
treating physician “unless ‘good cause’ is shown.” Phillips v. Barnhart, 357 F.3d 1232,
1240 (11th Cir. 2003) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
Good cause exists when: (1) the evidence did not bolster the treating physician’s
opinion; (2) evidence supported a contrary finding; or (3) a treating physician’s opinion
was conclusory or inconsistent with the doctor’s own medical records. Id. An ALJ
must clearly articulate the reasons for affording less weight to a treating physician’s
opinions. Id. An ALJ does not commit reversible error when one, he articulates
specific reasons for declining to give the treating physician’s opinion controlling weight,
and two, substantial evidence supports these findings. Moore v. Barnhart, 405 F.3d 1208,
1212 (11th Cir. 2005) (per curiam).
Wells contends the ALJ erred in giving only partial weight to the opinion of her
treating physician, Dr. Scott Argo. After examining Wells in August 2014, Dr. Argo
opined Wells’s pectus excavatum was “likely the reason she is having issues at this point.
She will not be able to physically work for much longer given the progression and sever
pectus ex [sic]. Due to this she will not be able to maintain gainful employment very
likely in the near future based on symptoms worsening.” (Tr. 379). The ALJ found
Dr. Argo’s opinion unclear because he did not describe what was worsening and how it
would render Wells unable to work. (Tr. 49).
The court finds good cause exists to give less than substantial or considerable
weight to Dr. Argo’s opinion for several reasons. First, Dr. Argo’s opinion manifests
as a conclusory assertion. An ALJ may discount a conclusory opinion, even from a
treating physician. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.
2004). Dr. Argo also phrased his opinion in terms of probability, rather than rendering
any definitive conclusion as to Wells’s ability to maintain gainful employment at the
time he examined her. 2 “Where a treating physician expresses uncertainty as to his
own medical findings, the ALJ has no obligation to defer to his opinion.” Mason v.
Comm’r of Soc. Sec., 430 F. App’x 830, 832 (11th Cir. 2011) (citing Edwards v. Sullivan, 937
F.2d 580, 584 (11th Cir. 1991)).
Good cause also exists in that other evidence in the record fails to support Dr.
Argo’s opinion. In November 2010, Wells reported some neck and back pain related
to lifting at her job, for which she received pain medication. (Tr. 304). Wells did not
return until October 2011, after she shifted from full to part-time employment, with
complaints of lower back pain. She reported she occasionally treated the back pain
with medication. At that time, Wells reported no chest pain or breathing difficulty.
Dr. Argo rendered his opinion in August 2014.
employment at the time of the January 2015 hearing.
Wells still maintained part-time
Wells did not seek medical care again until March 2014, when she sought
treatment from Dr. Argo for chest wall pain and shortness of breath. (Tr. 332-34). A
spirometry test on April 11, 2014, established an FVC (forced vital capacity) of 2.06. 3
(Tr. 317). She saw a cardiologist on April 28, 2014, and reported shortness of breath
and chest pain. Examination revealed normal heart rate without thrills, but a grade 3/6
holocystolic murmur. Cardiac labs registered normal. The cardiologist determined
the chest pain to be non-cardiac in nature, and Wells exhibited no valvular regurgitation
and an ejection fraction within normal range. (Tr. 339, 356). At a follow up visit in
May 2014, Wells expressed her symptoms had resolved. (Tr. 351).
In June 2014, Wells presented to Dr. Argo with complaints of gradual,
non-radiating back pain. (Tr. 358). However, she stated pain medication helped
alleviate the symptoms. (Tr. 359). Wells visited Dr. Jason Ham in May 2014 and
reported shortness of breath (Tr. 328), but at a visit with consulting examiner Dr.
Younus Ismail in July 2014, she denied shortness of breath. (Tr. 362). Dr. Ismail
noted Wells moved without difficulty, and he detected no cardiac murmur. She
exhibited decreased range of motion in the lumbar spine but without tenderness and
only mild discomfort. Her gait and reflexes displayed normal. Dr. Ismail diagnosed
Under Listing 3.02 (chronic respiratory disorders), the Commissioner considers a claimant
disabled if the FVC falls below a certain value. Based on Wells’s height (5’9”) and age at the time of
the test (42), her FVC would have to fall below 1.85 to meet the listing.
chronic chest wall pain with some deformity over the chest wall but no other physical
findings. (Tr. 363-64).
In August 2014, Wells described some chest pain and gradual back pain to Dr.
Argo, but she displayed a normal gait and denied shortness of breath.
Wells reported that medication controlled her pain, but she also admitted she did not
take it as prescribed. (Tr. 69). In September 2014, Wells saw Dr. Jason Ham for a
urinary tract infection, at which time she exhibited no apparent distress and reported no
shortness of breath. Dr. Ham noted good air movement in Wells’s lungs and no heart
murmurs. (Tr. 374). The final medical record shows a visit to Dr. Argo in December
2014 for treatment of a cold.
Wells denied shortness of breath and reported
improvement in her pain severity and activities of daily living with pain medication.
In addition to the medical records’ contrast with Dr. Argo, Dr. Argo’s opinion
that Wells would be unable to work invades the province of the ALJ and sustains no
According to 20 C.F.R. § 404.1527(d), the determination of whether an
individual is disabled is reserved to the Commissioner, and no special
significance will be given to an opinion on issues reserved to the
Commissioner. Section (d)(2) provides that although the Commissioner
will consider opinions from medical sources on issues such as the RFC
and the application of vocational factors, the final responsibility for
deciding those issues is reserved to the Commissioner.
Pate v. Comm’r, Soc. Sec. Admin., 678 F. App’x 833, 834 (11th Cir. 2017). That is, “the task
of determining a claimant’s . . . ability to work is within the province of the ALJ, not of
doctors.” Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010).
According to Social Security regulations, an ALJ should recontact a claimant’s
treating physician if the evidence in the record is otherwise inadequate to determine
whether the claimant is disabled.
20 C.F.R. §§ 404.1512(e), 416.912(e).
Security Ruling 96-5p provides, “if the evidence does not support a treating source’s
opinion on any issue reserved to the Commissioner and the adjudicator cannot
ascertain the basis of the opinion from the case record, the adjudicator must make
‘every reasonable effort’ to recontact the source for clarification of the reasons for the
opinion.” However, an ALJ bears no responsibility to recontact medical sources when
the record already contains substantial evidence to support a decision. Robinson v.
Astrue, 365 F. App’x 993, 999 (11th Cir. 2010). Because the ALJ relied upon substantial
evidence contradicting Dr. Argo’s conclusory opinion, he maintained no duty to seek
clarification from Dr. Argo.
B. The ALJ Properly Considered Wells’s Part-Time Employment
In his opinion, the ALJ discussed Wells’s part-time work as part of his analysis of
Wells’s credibility.4 Wells’s argument erroneously assumes that the ALJ’s finding of
Notably, the ALJ did not find the part-time work constituted “substantial gainful activity” at
step one of the analysis.
capacity to perform sedentary work depends upon Wells’s ability to perform part-time
work, yet substantial evidence otherwise supports the ALJ’s finding. Thus, the ALJ did
not equate the ability to perform part-time work with the ability to perform full time
Rather, he considered her part-time work as indicative that Wells’s reports of
disabling pain contradicted other record evidence. See Harris v. Barnhart, 356 F.3d 926,
930 (8th Cir. 2004) (“It was also not unreasonable for the ALJ to note that [the
claimant’s] . . . part-time work [was] inconsistent with her claim of disabling pain.”);
Hagan v. Colvin, No. 1:14–cv–00293–AKK, 2014 WL 7403952 (N.D. Ala. Dec. 30, 2014)
(ALJ did not find claimant’s part-time work constituted substantial gainful activity but
properly considered part-time work in evaluating claimant’s subjective testimony
regarding pain); c.f., Cooper v. Comm’r of Soc. Sec., 521 F. App’x 803, 805-08 (11th Cir. 2013)
(claimant’s part-time work as hotel chain reservation specialist during pendency of
social security application was evidence of ability to work despite the fact that she
worked from home and employer made allowances for her health); Clapp v. Astrue, No.
3:06cv334/MCR/EMT, 2008 WL 275880, at *12 (N.D. Fla. Jan. 31, 2008), report and
recommendation adopted, 2008 WL 619347 (N.D. Fla. Mar. 4, 2008) (“Although Plaintiff
contends she could not work full time and her current employer made accommodations
for her, her employment was nevertheless properly considered by the ALJ, as work
performed during any period in which the Plaintiff alleges that she was under a disability
may demonstrate an ability to perform [substantial gainful activity].”).
Consequently, the ALJ committed no error when he referenced Wells’s part-time
work. Therefore, the court finds that the ALJ properly characterized Wells’s work
history, did not find that Wells’s work history was more substantial than what the record
reflects, and properly considered the part-time work in weighing her credibility.
C. The ALJ Properly Applied the Pain Standard
“To establish a disability based on testimony of pain and other symptoms, the
claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence confirming
the severity of the alleged pain; or (b) that the objectively determined medical condition
can reasonably be expected to give rise to the claimed pain.’” Zuba-Ingram v. Comm’r of
Soc. Sec., 600 F. App’x 650, 656 (11th Cir. 2015) (quoting Wilson v. Barnhart, 284 F.3d
1219, 1225 (11th Cir. 2002) (per curiam)). A claimant’s testimony coupled with evidence
that meets this standard “is itself sufficient to support a finding of disability.” Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation omitted).
If the ALJ discredits a claimant’s subjective testimony, the ALJ “must articulate
explicit and adequate reasons for doing so.” Wilson, 284 F.3d at 1225. “While an
adequate credibility finding need not cite particular phrases or formulations[,] broad
findings that a claimant lacked credibility. . . are not enough. . . .” Foote v. Chater, 67
F.3d 1553, 1562 (11th Cir. 1995) (per curiam); see SSR 96-7p, 1996 WL 374186 at *2 (“The
determination or decision must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave
to the individual’s statements and the reasons for that weight.”). 5 Nonetheless,
credibility determinations remain within the province of the Commissioner, not the
courts. Taylor v. Comm’r of Soc. Sec., 213 F. App’x 778, 779 (11th Cir. 2006).
The ALJ determined Wells suffers from the severe impairments of pain, chronic
back pain, and chronic chest wall pain. Therefore, the record contains evidence of an
underlying medical condition. However, the ALJ also considered objective medical
evidence which belied the severity of the alleged pain. In October 2011, Wells sought
treatment for a cough, sore throat, and nasal congestion, and she also complained of
lower back pain for which she occasionally took Tramadol. She denied chest pain or
shortness of breath. (Tr. 304). Thereafter, Wells did not seek any medical treatment
for her conditions until March 2014 when she saw Dr. Scott Argo for complaints of
chest pain. Dr. Argo noted decreased breath sounds and arranged a cardiac consult.
SSR 16-3p rescinded SSR 96-7p, effective March 28, 2016. However, because SSR 96-7p
constituted the relevant standard at the time of the ALJ’s decision, the court reviews this matter using
SSR 96-7p. See Hargress v. Soc. Sec. Admin, Comm’r, No. 17-11683, 2018 WL 1061567, at *4-*5 (11th Cir.
Feb. 27, 2018); Wood v. Berryhill, No. 4:15-CV-1248-LSC, 2017 WL 1196951, at *7-*9 (N.D. Ala.
Mar. 31, 2017).
Dr. Samuel Ledford examined Wells on April 28, 2014. At that time, Wells
reported chest pain, but denied it occurred upon exertion. Dr. Ledford detected a
heart murmur and noted Wells remained “moderately exertional without chest pain
symptoms.” (Tr. 355). He opined the pain probably resulted from gastroesophageal
reflux or esophageal spasm. (Tr. 356). Diagnostic testing revealed no significant
valvular regurgitation and no acute chest disease, with a normal ejection fraction of
55%. (Tr. 339-40). At a May 30, 2014, follow up visit with Dr. Ledford, Wells
reported her chest pain had completely resolved, and Dr. Ledford found no further
testing warranted. (Tr. 351-52). 6 As discussed above, Wells expressed that pain
medication alleviated her symptoms and improved the quality of her daily activities of
living. In fact, Wells reported to consulting examiner Dr. Jon Rogers that she launched
into housecleaning binges at times. (Tr. 366).
In assessing the credibility of Wells’s testimony as to her pain and limitations
imposed by pain, the ALJ considered record evidence discounting her representations
as to the pain’s intensity, persistence, and limiting effects. He noted Wells testified that
when she takes her pain medication, it alleviates her symptoms. (Tr. 44, 45). He also
noted her testimony that she does not take the medication as she should. (Tr. 44, 45,
47). He referenced the over-two-year treatment gap which occurred after her alleged
onset date. The ALJ considered Wells’s part-time employment to indicate her daily
The court notes Wells reported chest pain to Dr. Argo on May 21, 2014. (Tr. 324).
activities have been greater than reported. In addition, the ALJ credited Wells’s
mother’s function report, which differed from Wells’s function report as to the extent
of her daily activities. (Tr. 45-46). 7
The ALJ also noted discrepancies in Wells’s reports to examining physician Dr.
(Tr. 47, 49).
For example, she described anxiety and depression
symptoms not documented in primary care notes, as well as problems with multiple
sclerosis absent any diagnosis or history of this condition in her medical records. She
also advised Dr. Rogers she had quit work due to pain, yet she actually maintained
employment at that time.
The court finds that the ALJ followed the pain standard and articulated explicit
and adequate reasons for finding Wells’s testimony regarding the severity of her pain
not entirely credible. See Ogranaja v. Comm’r of Soc. Sec., 186 F. App’x 848, 851 (11th Cir.
2006) (substantial evidence supported adverse credibility determination when medical
reports showed four-year gap in treatment history, described claimant’s condition as
normal, and report indicated analgesic medication generally controlled any pain).
Wells wrote in her function report that she might spend the day sitting and lying down; her
husband and children do the housework; others shop for groceries and prepare meals; she needs
someone to drive her; and she no longer socializes other than with her family. (Tr. 241-48). In
contrast, her mother, who sees Wells on a daily basis, reported Wells cares for her husband and two
children; prepares simple meals every day; does light cleaning and some laundry; drives; shops for
groceries and personal items; and regularly attends church and goes to work. (Tr. 249-56).
Based on the foregoing, the court AFFIRMS the ALJ’s finding that Ms. Wells
was not disabled within the meaning of the Social Security Act.
DONE this 13th day of March, 2018.
HERMAN N. JOHNSON, JR.
UNITED STATES MAGISTRATE JUDGE
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