Swope v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 12/4/18. (BJL)

FILED
2018 Dec-04 PM 02:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JOICE ANN SWOPE,
Claimant,
vs.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 4:18-cv-717-CLS

MEMORANDUM OPINION
Claimant, Joice Ann Swope, commenced this action 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
her claim for a period of disability, disability insurance, and widow’s insurance
benefits.
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’s residual functional capacity finding was not supported
by substantial evidence. Upon review of the record, the court concludes that
claimant’s contention lacks merit, and that the Commissioner’s ruling is due to be
affirmed.
The ALJ found that claimant suffered from the severe impairments of:
fibroymalgia; left lower extremity shortening and muscle atrophy, pelvic tilt, and
compensatory scoliosis secondary to remote history of polio; diverticulitis;
depression; and anxiety.1 Despite those impairments, she retained the residual
functional capacity to perform medium work, except that she would be limited to “no
climbing; no uneven terrain; occasional stopping and crouching; no left leg pushing
or pulling; no unprotected heights; no driving; and occasional contact with the
general public.”2 Claimant argues that there is not substantial evidence in the record
to support the ALJ’s opinion that she can perform any range of medium work.
Social Security regulations define medium work to require “lifting no more
than 50 pounds at a time with frequent lifting or carrying of objects weighing up to
25 pounds.” 20 C.F.R. § 404.1567(c). If someone can do medium work, the Social
1

Tr. 15.

2

Tr. 22.
2

Security Administration also considers that person to be capable of performing light
and sedentary work.
Claimant first asserts that the ALJ’s residual functional capacity finding was
inconsistent with her hearing testimony that the most she could lift was twenty
pounds,3 and with her history of jobs that required lifting no more than twenty to
thirty pounds.4 To demonstrate that pain or another subjective symptom renders her
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. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th
3

Tr. 67.

4

See Tr. 74, 237.
3

Cir. 1986)).
Here, the ALJ considered claimant’s testimony and subjective complaints, but
found that, while claimant had medical conditions that were capable of producing
some pain and other limitations, the evidence did not support a conclusion that
claimant’s conditions were sufficiently severe to give rise to disabling pain and
limitations. He also stated that “claimant’s alleged inability to perform all substantial
gainful activity simply is not corroborated by the evidence in the record considered
as a whole.”5 The ALJ also adequately articulated reasons for his findings. He
reasoned that claimant’s function report reflected daily activities that were not as
limited as would be expected from a disabled individual. He also noted that x-rays
of claimant’s hip were normal, and she had not been wearing the lift that was
prescribed for her left shoe. He observed that treatment records reflected only
intermittent complaints of joint and muscle pain, improvement of her fibromyalgia
symptoms with medication, and only mild to moderate symptoms from diverticulitis.6
The ALJ’s conclusions were supported by substantial evidence.
Claimant’s arguments about her past relevant work miss the mark. Just
because she never performed a job at the medium exertional level in the past does not
mean she was not capable of doing so at the time, and it has no bearing on whether
5

Tr. 29.

6

See Tr. 23-28.
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she currently is capable of doing so. Moreover, even though the ALJ found that
claimant was not capable of performing her past relevant work as a store laborer at
the medium exertional level, that was because of her mental limitations and her
restrictions on climbing and driving, not because of her lifting capabilities.7
Finally, claimant argues that the ALJ improperly considered the opinions of the
consultative and state agency physicians. Social Security regulations provide that,
in considering what weight to give any medical opinion, the Commissioner should
evaluate: the extent of the examining or treating relationship between the doctor and
patient; whether the doctor’s opinion can be supported by medical signs and
laboratory findings; whether the opinion is consistent with the record as a whole; the
doctor’s specialization; and other factors. See 20 C.F.R. § 404.1527(c). See also
Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (“The weight afforded a
physician’s conclusory statements depends upon the extent to which they are
supported by clinical or laboratory findings and are consistent with other evidence as
to claimant’s impairments.”). Moreover, the opinions of state agency doctors are
entitled to substantial consideration. See Oldham v. Schweiker, 660 F.2d 1078, 1084
(5th Cir. 1981) (“The Secretary was justified in accepting the opinion of Dr. Gordon,
a qualified reviewing physician, that was supported by the evidence, and in rejecting
the conclusory statement of Dr. Harris, a treating physician, that was contrary to the
7

See Tr. 29, 84.
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evidence.”); Surber v. Commissioner of Social Security Administration, No.
3:11–cv–1235–J–MCR, 2013 WL 806325, *5 (M.D. Fla. March 5, 2013) (slip copy)
(“State agency medical consultants are non-examining sources who are highly
qualified physicians and experts in Social Security disability evaluation, and their
opinions may be entitled to great weight if supported by evidence in the record.”).
Dr. John Lary submitted a consultative Medical Report on May 4, 2015.
Claimant reported residual chronic pain from contracting polio as an infant, pelvic
obliquity with compensatory scoliosis, chronic arthritis in her spine and right hip, and
chronic anxiety and depression. Upon examination, claimant’s back musculature was
normal, and she was able to flex her upper body 70 degrees at the waist and
hyperextend 25 degrees. She had no pedal edema, but she did demonstrate restricted
range of motion of her left ankle and mildly restricted range of flexion of her right
knee. Her left lower extremity was shorter and smaller than the right. Her left foot
also was smaller than the right, causing a mild limp. Claimant could heel walk but
not toe walk, and she was able to squat and arise from both a squatting and kneeling
position. She demonstrated 5/5 muscle strength in both upper extremities and in her
right lower extremity, and 4/5 muscle strength in her left lower extremity. Her grip
strength and digital function were normal. Dr. Lary concluded that claimant’s “ability
to sit is mildly impaired by chronic back pain. Her ability to stand, walk, lift, carry,

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bend, squat, and kneel is mildly to minimally impaired. Her ability to reach, see
(needs glasses and has monocular vision), hear, speak, understand, and manipulate
small objects is unimpaired.”8 The ALJ afforded significant weight to Dr. Lary’s
opinion because it was “consistent with and supported by the record as a whole.”9
Dr. Robert Heilpern, the state agency physician, provided a report on May 15,
2015.

He reviewed all of claimant’s medical records, including Dr. Lary’s

consultative report, and concluded that claimant was capable of occasionally lifting
and carrying twenty pounds, and frequently lifting and carrying ten pounds. She
could stand and/or walk for six hours in an eight-hour day, and she could also sit for
six hours in an eight-hour day. She was limited to only occasional pushing and
pulling with her left lower extremity due to weakness and a left foot deformity. She
could occasionally climb ramps and stairs, stoop, balance, kneel, crouch, and crawl,
but she could never climb ladders, ropes, or scaffolds. She should avoid all exposure
to hazards like machinery and heights, but did not have any other environmental
limitations.10 The ALJ afforded Dr. Heilpern’s assessment “some weight,” crediting
it only to the extent that it was consistent with a residual functional capacity for
medium work.11
8

Tr. 409-13.

9

Tr. 28.

10

Tr. 91-106.

11

Tr. 28.
7

Claimant does not actually offer any argument that the ALJ should have
afforded a different amount of weight to either of those physicians’ opinions. Instead,
she asserts that Dr. Lary’s assessment was not sufficiently specific to support the
ALJ’s residual functional capacity finding, and that there is no other evidence in the
record to support claimant’s ability to perform medium work. It is true that Dr. Lary
never stated how much weight claimant could lift, but his assessment that claimant’s
ability to lift was only mildly to minimally impaired is consistent with the lifting
requirements of medium work. There was substantial evidence in the record to
support the ALJ’s residual functional capacity finding, even without a physician’s
assessment with functional limitations corresponding to each aspect of the ALJ’s
finding. See Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010) (“We note
that the task of determining a claimant’s residual functional capacity and ability to
work is within the province of the ALJ, not of doctors.”). That evidence included
claimant’s treatment records, x-ray results, compliance with treatment, clinical
examinations, and positive response to treatment, as well as the remainder of Dr.
Lary’s assessment.
In summary, claimant has offered nothing more than her disagreement with the
ALJ’s residual functional capacity finding. That is not sufficient to carry her burden
of proving disability. Even though there may be some evidence contrary to the ALJ’s

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opinion, the decision was supported by substantial evidence.

It also was in

accordance with applicable law. Accordingly, the ALJ’s decision is due to be
affirmed. An order consistent with this memorandum opinion will be entered
contemporaneously herewith.
DONE this 4th day of December, 2018.

______________________________
United States District Judge

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