Johnson v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/18/12. (SAC )

FILED
2012 Sep-18 PM 03:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BONNIE L. JOHNSON,
Plaintiff
v.
MICHAEL J. ASTRUE,
Commissioner of the Social,
Security Administration
Defendant.

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CIVIL ACTION NO. 5:11-CV-1666-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On January 30, 2008, the claimant, Bonnie L. Johnson, filed an application for disability
insurance benefits and supplemental security income under Title II and Title XVI of the Social
Security Act. The claimant alleges her disability began on March 24, 2006. The Commissioner
denied the claim on March 20, 2008, and the claimant filed a timely written request for a hearing
before an Administrative Law Judge. The ALJ held a hearing on February 25, 2010. On April 1,
2010, the ALJ denied the claim, finding that the claimant was not disabled as defined by the
Social Security Act and, thus, was ineligible for supplemental security income. The Appeals
Council denied the request for review on March 23, 2011. The claimant has exhausted her
administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1631(c)(3). For the reasons stated below, this court affirms the decision of the Commissioner.
II. ISSUES PRESENTED
The claimant presents the following issues for review: (1) whether the ALJ improperly
applied the Eleventh Circuit’s three-part pain standard by failing to consider the claimant’s
1

alleged limited function in her right hand; (2) whether the ALJ properly considered the
claimant’s alleged need of a hand-held assistive device under Social Security Ruling 96-9p;
(3) whether the ALJ erred in determining the claimant’s residual functioning capacity by failing
to consider the claimant’s alleged need of a hand-held assistive device and her limited function in
her right hand; and (4) whether the ALJ erred by failing to fully develop the record by not
contacting the claimant’s treating physician to determine if the use of a hand-held assistive
device is medically required.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is a limited one. If the
Commissioner’s decision is supported by substantial evidence, this court must find the
Commissioner’s decision conclusive. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422
(11th Cir. 1997). “Substantial evidence is more than a scintilla, but less than a preponderance.
It is such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 401 U.S. 389, 401 (1971). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must view the
record in its entirety and take account of the evidence that detracts from the evidence relied on by
the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986). The court must “scrutinize
the record in its entirety to determine the reasonableness of the [Commissioner’s] factual
findings.” Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person cannot “engage in 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
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can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). To make this determination, the Commissioner employs a five-step, sequential
evaluation process:
(1) Is the person presently employed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the
community?
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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (1th Cir. 1986); 20 C.F.R § § 404.1520, 416.920.
In evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either “(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 a severity that it can reasonably be
expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)
(emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); 20 C.F.R.
§ 404.1529. If the claimant presents subjective complaints of pain, and the ALJ decides to
discredit that testimony, the ALJ must discredit it explicitly and articulate her reasons for doing
so. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
In evaluating a claimant’s credibility, an ALJ can consider the claimant’s appearance and
actions during the administrative hearing. See 20 C.F.R. §§ 404.1549(c)(3)(vii), (c)(4);
416.929(c)(3)(vii), (c)(4); see also Macia v. Bowen, 829 F.2d 1009, 1011 (11th Cir. 1987). In
addition to the claimant’s appearance, the ALJ can consider the claimant’s failure to comply with
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a physician’s orders in assessing the claimant’s credibility. Ellison v. Barnhart, 355 F.3d 1272,
1275 (11th Cir. 2003).
To show that a claimant’s use of a hand-held assistive device is medically required and to
prove the severity of the alleged dependence, the claimant must present medical documentation
“establishing the need for a hand-held assistive device to aid in walking or standing, and
describing the circumstances for which it is needed.” SSR 96-9p, 1996 WL 374185, at *7
(1996). When using this legal standard to determine the claimant’s need for a hand-held assistive
device, “the adjudicator must always consider the particular facts of a case.” Id.
If the ALJ finds that a claimant’s impairments do not meet the severity of a listed
impairment, the ALJ then determines the claimant’s residual functioning capacity – her ability to
do work despite her impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
Once the ALJ determines a claimant’s residual functioning capacity, the ALJ must show, often
through the testimony of a vocational expert, that jobs are available that the claimant can
perform. Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). The ALJ may consider
vocational expert testimony in her ultimate decision; however, the ALJ is not required to include
findings in a hypothetical posed to the expert that the ALJ has found to be unsupported by the
evidence. Crawford v. Comm. of Social Security, 363 F.3d 1155, 1161 (11th Cir. 2004).
Additionally, an ALJ has an obligation to develop a full and fair record; however, the
obligation only requires an ALJ to contact the treating physician of the claimant when the
evidence provided is inadequate to determine whether the claimant is disabled. See 20 C.F.R. §§
404.1512(e), 416.912(e); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The
ultimate burden of proving disability and producing supporting evidence rests with the claimant.
Ellison, 355 F.3d at 1276.
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V. FACTS
The claimant has completed the ninth grade and was forty-four years old at the time of the
ALJ’s decision. Her previous work experience includes employment as a lift driver, packager,
and grinder. The claimant alleged disability beginning on March 24, 2006, due to injuries from
a horse-riding accident. The claimant originally alleged injuries including degenerative disc
disease; osteoarthritis; pain in her neck, back, elbows, cervical spine, and legs; and a depressive
disorder. (R. 108-111, 114). As a result of these injuries, the claimant alleges that she cannot sit
or stand for any length of time; is in constant pain in the hip and pelvic areas; and has headaches.
(R. 207). On appeal, the claimant did not specifically contest the ALJ’s findings regarding the
impact of her depression on her ability to work.
Physical Limitations
On June 18, 2001, the claimant presented to the emergency room at Cullman Regional
Medical Center with back pain after she fell off a horse the previous day. (R. 108-111). She
complained of back, neck, elbow, and foot problems, and noted a history of degenerative disc
disease. (R. 11). Dr. Fred Moss, a radiologist at Cullman Regional Medical Center, determined
that the claimant’s lumbar region had changes in the anterosuperior border of L4 and had the
appearance of a limbus vertebra. However, the records indicated that no fractures or
subluxations exist within her spinal discs. The claimant received prescriptions for pain
medication and orders to return to the hospital if her pain became worse. (R. 112-114).
After the incident, the claimant followed up with treatment from Dr. Jamie Sharpton, a
general family physician at Cullman Primary Care, for back pain and leg pain. (R. 131-36). On
July 25, 2001, the claimant reported slow improvement to Dr. Sharpton but maintained she was
unable to work. (R. 134). Dr. Sharpton referred the claimant to Dr. Gregory Mick of
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Neurosurgery & Spine Associates of Alabama. On June 26, 2001, the claimant reported to Dr.
Mick that her pain was an eight on a scale of one-to-ten. She continued to see Dr. Mick until
around March 12, 2002. (R. 117-119, 121).
On March 2, 2002, Dr. Michael Jokich of Woodland Medical Center conducted a MRI on
the referral of Dr. Mick. The MRI revealed that the claimant had degenerative disc disease at
L5-S1 of the lumbar region with mild to moderate disc bulging at the L5-S1 level of the spine.
(R. 124).
Then, Dr. Kelvin Johnson, also of Woodland Medical Center, performed a discogram
procedure on March 7, 2002, on the referral of Dr. Mick. The procedure showed a normal
appearance in the L4-5 and L3-4 areas of the spine. (R. 127-28).
Dr. Mick reviewed the results of the lumbar MRI and the discogram and determined that
the claimant had degenerative disc disease in the L4-5 and L5-S1 region and prescribed her a
lumbar corset brace and various pain medications, including Lortab. (R. 117-122).
The claimant subsequently sought treatment from Dr. Jay Pohl of Hartselle Family
Medicine for her continued back and leg pain on August 13, 2002. On August 13, 2002, Dr. Jay
Pohl prescribed the claimant pain medication to treat her neck and back pain, despite the
claimant having a good range of motion in her cervical spine. On January 3, 2003, the claimant
again sought pain treatment from Dr. Pohl after she “ha[d] been off Lortab for a couple of
weeks.” She complained of tenderness near her lower lumbar area and pain with hip flexion.
Dr. Pohl prescribed the claimant Lortab and advised her to try a pain clinic or vocational
rehabilitation. In early 2004, Dr. Pohl treated the claimant for her lower back and neck pain
again. Dr. Pohl again prescribed the claimant with Lortab, but he refused to increase the dosage
despite the claimant’s request to do so. (R. 140-142).
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On May 4, 2004, by request of the Disability Determination Service, Dr. Will Crouch of
the American Board of Family Practice conducted a consultative evaluation regarding the
claimant’s back, hip, and leg pain. The claimant complained of severe pain and the inability to do
certain activities, like housework. Dr. Crouch noted that the claimant was able to move around
without an assistive device. Dr. Crouch determined that the claimant had chronic low back pain
with only minimal degenerative changes in the spine. (R. 197-98).
During a period from December 13, 2004 through July 28, 2005, the claimant underwent
a series of lumbar epidural steroid injections at the Center for Pain Management at the Huntsville
Hospital on Dr. Pohl’s referral. Specifically on May 10, May 17, and May 31, 2005, the claimant
reported that the injections resulted in “good” pain relief. (R. 212-220).
Dr. Timothy Frye of the Alabama Orthopedic Institute conducted an MRI on October 29,
2005, that revealed normal spine alignment and no significant degenerative disc disease. Dr.
Frye concluded that only mild degenerative change existed in the spine and that the claimant had
some mild to moderate osteoarthritis; however, the levels were overall “unremarkable.” (R.
491).
On November 3, 2005, Dr. Eston Norwood III examined the claimant for a consultative
neurology evaluation at the request of the Disability Determination Service. Dr. Norwood
concluded that the claimant had back pain, but that a neurological deficit was not the cause of the
pain. Dr. Norwood also found no impairment in her ability to stand, walk, lift, carry, or perform
work related activities. (R. 248-49).
Subsequently, Dr. Swader at Cullman Primary Care treated the claimant for her pain from
January 2006 to August 2007. (R. 509-20, 559-68). Beginning in January 2006, Rebecca
Williams, a nurse in Dr. Swader’s office, noted in the claimant’s treatment notes that the
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claimant used a cane. (R. 510-18). On October 17, 2006, Dr. Swader ordered an x-ray of the
claimant’s spine that revealed normal alignment with minimal degenerative changes in the
lumbar and thoracic spine and negative findings in the claimant’s cervical spine. (R. 498-501).
On November 27, 2006, the claimant reported doing well until around November 16, 2006. (R.
509).
Dr. Swader’s records show that the claimant failed to comply with suggested treatment in
the form of physical therapy. (R. 493). During November 2006, Dr. Swader’s records indicate
that the claimant had trouble complying with portions of her signed narcotics agreement,
specifically the prohibition against receiving multiple prescriptions for pain medication from
other doctors. Dr. Swader terminated the claimant’s treatment in August 2007, after a blood and
urine test revealed the claimant had various medications in her system that were not prescribed
by Dr. Swader. (R. 509, 559).
Later in 2008, the claimant sought treatment for her pain from Dr. Chris LaGanke of
North Central Neurology Associates. Originally, the claimant reported improvement in her pain.
(R. 584-86). In October 2009, the claimant again reported pain to Dr. LaGanke; however, Dr.
LaGanke’s office conducted a bone scan on October 7, 2009, that revealed only mild
osteoarthritis. (R. 663, 675).
During her treatment with Dr. LaGanke, the claimant also reported feeling nervous and
requested that Dr. LaGanke prescribe her Klonopin, which she had tried before and believed
helped with her anxiety. (R. 676). Dr. LaGanke prescribed the claimant Klonopin, which she
continued to take at the time of the administrative hearing. (R. 663-676, 694). Despite
complaints of anxiety and depression, the claimant did not seek any mental health treatment other
than seeking medication from her neurologist, Dr. LaGanke. (R. 694-95).
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On February 19, 2008, the claimant completed a Physical Activities Questionnaire for the
Disability Determination Service and noted that she had difficulty performing all activities. (R.
404-12). A month later on March 10, 2008, the claimant completed a Daily Activities
Questionnaire for the Disability Determination Service. In contrast to the prior questionnaire, the
claimant reported that she could care for her personal needs on her own; shop for personal needs;
prepare and cook meals; do the laundry; and clean the house. (R. 432-36).
On January 20, 2009, the claimant sought treatment from Cullman Regional Medical
Center Emergency Room after she injured her hand in a physical altercation with her daughter.
(R. 619, 655). Dr. Scott Akin read the radiology report and noted that the claimant had a
transverse fracture in the distal shaft and head of the fifth metacarpal on her right hand. (R. 619).
In February 2009, the claimant sought treatment for her resulting hand pain from Dr. Steven
Fuller at Alabama Orthopedic Institute. On January 21, 2009 and February 4, 2009, Dr. Fuller
confirmed a fracture in the right hand, but found normal intrinsic muscle function and no joint
deformities. Dr. Fuller ordered the claimant to continue wearing a splint and follow up a few
weeks later. (R. 653-56).
The ALJ Hearing
After the Commissioner denied the claimant’s application for supplemental security
income, the claimant requested and received a hearing before an ALJ. (R. 302). At the hearing
on February 25, 2010, the claimant testified that before she takes her medicine, she cannot
withstand her pain. After she takes her medicine, her pain, on a scale from one-to-ten, ranges
from a “seven to eight all the time.” (R. 696). The claimant also testified that she experiences
headaches “all day.” (R. 703). The claimant attributed her pain and ailments to the accident she
experienced when she was thrown from a horse in 2001. (R. 686). She also attributed her right9

hand pain and limited functioning to a physical altercation that occurred in 2009. (R. 684, 70405).
The claimant testified that she was not currently working and that her only source of
income was child support in the amount of $300 a month that she received to support her teenage
son who lives with her on the weekends. (R. 686). The claimant stated that she has not worked
since her employment with Electrolux Home Products/Americo ended in 2002. The claimant
stated that after the plant shut down, she received severance pay into 2003. (R. 687). The
claimant testified that during her employment, the claimant drove a forklift, packaged pallets for
shipping, and packaged refrigerator pumps on the assembly line. (R. 689). The claimant noted
that with these positions, she did “a lot” of bending, reaching, and stooping. (R. 688).
Because of her pain, the claimant testified that she spends “a lot” of the day reclined. She
testified that she gets out of bed, takes her medicine, reads her Bible for a couple of hours while
sitting up, gets coffee, stretches around, and fixes her father a grilled cheese, but “that’s it.” (R.
706).
The claimant also testified about her many different doctors and medications. The
claimant confirmed that she could no longer seek Dr. Swader’s services after she gave a blood
and urine test revealing pain medications in her system that were not prescribed by Dr. Swader.
(R. 690-92). The claimant also confirmed that she failed to do the physical therapy exercises
that Dr. Swader recommended and failed to cease smoking as requested. (R. 692-93).
The claimant testified that she is currently taking Methadone for her pain; Soma for her
pain and to relax her muscles; and Klonopin for her nerves and depression. (R. 694). Although
the claimant testified about her depression, she confirmed that she has not been treated for
depression by a mental health professional. (R. 694-95). The claimant confirmed that she often
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takes all eight of her Methadone pills at one time during the day. The claimant stated that the
doctors told her that if she took all the pills at once, her instant relief would eventually wear off.
The claimant also admitted that the proper way to take the prescribed medication was to take the
pills throughout the day. (R. 698).
The claimant went into more detail about her daily routine, testifying that she goes “from
recliner to couch to bed.” (R. 699). However, the claimant also testified that she does her own
housework and drives herself places, like to the grocery store. (R. 699, 701). She testified that
she also takes care of her father who lives behind her. (R . 702). She stated that she makes him
lunch, stays at her father’s house for the afternoon, and often stays for dinner. (R. 707-08).
The claimant’s attorney questioned the claimant about her use of a cane. The claimant
testified that she has used a cane since the horse fall in 2001 and that the cane relieves pressure
on her feet and legs. (R. 704). She also discussed how she injured her hand in a physical
altercation with her daughter in 2009 for which she sought emergency room treatment. (R. 684,
704-05).

She testified that she was unable to pick up anything heavy with that hand. (R. 705).

Melissa Neel, a vocational expert, offered testimony on the claimant’s ability to return to
previous work and the type and availability of jobs the claimant could feasibly perform. The ALJ
posed a hypothetical to Ms. Neel involving an individual who is limited to a light duty range of
work with the following limitations: occasional walking and standing for two hours out of an
eight-hour day; occasional postural maneuvers such as balancing, stooping, kneeling, crouching,
crawling, and climbing; and the option to sit or stand for a couple of minutes every hour.
According to Ms. Neel, these limitations would preclude such an individual from engaging in any
of the claimant’s prior work. (R. 710).
Ms. Neel further testified that the hypothetical individual could perform the functions of a
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number of sedentary, unskilled jobs, where the individual could be seated most of the time with
the option to stand. Such jobs would include an order clerk, inspector, and assembler.
According to Ms. Neel, these jobs were available in significant numbers in both the regional and
national economies. (R. 711).
The ALJ then narrowed the hypothetical, limiting the individual to sedentary and
occasional gross handling with the upper right extremity. Ms. Neel indicated that such an
individual could not perform the claimant’s past relevant work with such an impairment. In
response to the question of whether this individual would be able to find jobs in the national and
local economy, Ms. Neel determined that if the individual was right-hand dominant, a very
limited number of jobs at the unskilled level would be available. (R. 711-12).
The claimant’s attorney, Don Bevil, then narrowed the hypothetical, asking whether
having a pain range of seven to eight on a continuous everyday basis would present a problem
with the available jobs that were mentioned. Ms. Neel responded that she believed that having a
pain range of seven to eight on a continuous basis would be a problem with those jobs. Mr.
Bevil then modified the hypothetical, requiring opportunities for the individual to lie down
during the work day. Ms. Neel responded that the available jobs she previously mentioned
would not allow for opportunities to lie down during work hours. Mr. Bevil again modified the
hypothetical, adding the question of how much absenteeism would be available in the previously
mentioned jobs. Ms. Neel determined that with unskilled work, an individual would not be able
to miss more than one day per month, and with skilled or semi-skilled work, an individual would
be able to miss up to two days per month. (R. 712-13).
The Administrative Decision
On April 1, 2012, the ALJ issued a decision finding the claimant not disabled under
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Sections 216(I), 223(d) and 1614(a)(3)(A) of the Social Security Act. (R. 302). The ALJ’s
findings of fact and conclusions of law followed the five-step legal standard outlined in 20
C.F.R. §§ 4040.1520, 416.920.
First, the ALJ found that the claimant had not engaged in any substantial gainful activity
since the alleged onset of her disability. Next, the ALJ found that the claimant’s degenerative
disc disease, cervical spine nerve pain, osteoarthritis with related pain, and depressive disorder
qualify as severe impairments. However, the ALJ found that these impairments do not singly or
in combination manifest the specific signs and diagnostic findings of the Listing of Impairments.
(R. 304-305).
Advancing to step four, the ALJ considered the claimant’s subjective allegations of pain
to determine whether the claimant had the residual functioning capacity to perform light work.
(R. 305). The ALJ concluded that “the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual functional capacity assessment.” (R.
306).
In support of this conclusion, the ALJ highlighted the inconsistent testimony of the
claimant. The ALJ explained that during the hearing, the claimant stated that she drove to the
hearing and drives her father to the store, but she recorded in her Disability Report that she
“stay[s] at home all the time [and] don’t drive.” (R. 307-08).
The ALJ further explained the claimant’s inconsistencies by noting that the claimant
testified that she takes care of her father every day; stays with him during the afternoon to watch
television; and then prepares and eats dinner at his home. The ALJ pointed out that the claimant
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also testified, however, that from eight o’clock in the morning to eight o’clock in the evening,
she spends most of the day reclining. Additionally, the ALJ noted that despite the claimant’s
allegations of constant pain, the claimant showed no visible signs of being in pain and did not
move around or change positions at any time during the one-hour administrative hearing.
The ALJ articulated additional inconsistencies regarding the claimant’s alleged inability
to work. The ALJ discussed how the claimant responded on her Daily Activities Questionnaire
in March 2008. Specifically, the ALJ noted that the claimant reported she could “take care of her
personal needs without assistance, prepare and cook meals, shop for her personal needs, do the
laundry, and clean.” (R. 306). In highlighting the claimant’s inconsistencies, the ALJ compared
this report with another report the claimant filled out one month earlier in February 2008 that
indicated the claimant had significant limitations in performing all activities. (R. 307).
The ALJ also relied on the claimant’s inconsistent medical history to reach the conclusion
that the claimant lacked credibility. The ALJ pointed out that while the claimant has alleged
lower back pain since she fell off the horse in 2001, her lumbar spine x-rays revealed only mild
disc spacing at L5-S1. The ALJ also noted that a MRI performed by Dr. Michael Jokich in 2002
showed “mild to moderate disc bulging” and that a MRI conducted by Dr. Timothy Frye in 2005
revealed “only mild degenerative changes at L5-LS and mild to moderate osteoarthritis.” The
ALJ additionally relied on x-rays ordered by Dr. Swader in 2006 that revealed only minimal
degenerative changes in the lumbar and thoracic spine and negative findings in the cervical spine.
Last, the ALJ noted that the bone scan conducted by Dr. LaGanke’s office in October 2009
revealed only mild osteoarthritis. (R. 307). Consequently, the ALJ concluded that while the
claimant continued to report pain, the medical evidence did not support the severity alleged by
the claimant.
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Additionally, the ALJ found that although the claimant alleges depression, she has not
sought any mental health treatment nor presented evidence of significant limitations as a result of
the alleged depression. (R. 307-08). Next, the ALJ discussed how the claimant has continued to
report that her pain medications and treatments, including heavy doses of Lortab and several
epidural injunctions, are not relieving her pain. The ALJ also considered the claimant’s
testimony confirming her failure to follow medication dosage requirements, her failure to follow
physical therapy orders, and her failure to cease smoking as further evidence of the claimant’s
lack of credibility. (R. 308).
The ALJ also addressed the claimant’s more recent injury to her hand, which resulted
from a physical altercation. Although the claimant has continued to complain of hand pain and
swollen fingers since the injury, the ALJ found no objective medical evidence of any resulting
limitations that would prevent the claimant from performing all work activity. (R. 307).
Ultimately, the ALJ determined that, although back pain has limited the claimant’s
functioning, the claimant has not proven the level of severity that would prevent all work
activity. Pointing out her daily activities, the ALJ found that the claimant can perform activities
with a light level of exertion with certain limitations. (R. 308). Such limitations would include
walking and standing for up to two hours during an eight-hour workday and occasional postural
maneuvers such as balancing, stopping, kneeling, crouching, crawling, and climbing. (R. 305).
In addressing the next step, the ALJ found that the claimant would be unable to perform
past relevant work, but held that considering the claimant’s age, education, work experience, and
residual functional capacity, jobs exist in the national and local economy that the claimant could
perform. (R. 309). The ALJ relied on the vocational expert’s testimony in finding that the
claimant could work as an order clerk, inspector, and assembler. Because of the claimant’s
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residual functioning capacity and the availability of appropriate jobs, the ALJ found that the
claimant would be capable of making a successful adjustment to other work and, therefore, found
the claimant was not disabled. (R. 310).
VI. DISCUSSION
1.

The ALJ properly applied the Eleventh Circuit’s three-part pain standard.

First, the claimant contends that the ALJ improperly applied the Eleventh Circuit’s threepart pain standard by failing to consider the claimant’s limited function in her right hand. To the
contrary, this court finds that the ALJ properly applied the pain standard and that substantial
evidence supports her decision.
When a claimant attempts to establish disability through her own testimony of pain or
other subjective symptoms, the pain standard applies. Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). “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.” Id. If a claimant presents
subjective testimony that is supported by medical evidence that satisfies the pain standard, a
finding of disability is appropriate. Foote v. Charter, 67 F.3d 1553, 1561 (11th Cir. 1995).
In applying the three-part pain standard, if the ALJ decides not to credit a claimant’s
subjective testimony of pain, he must discredit it explicitly and articulate his reasons for doing
so. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). Failure to articulate the reasons for
discrediting the claimant’s subjective complaints of pain requires that the testimony be accepted
as true. Id.
In this case, the ALJ conceded that the claimant suffers from an underlying medical
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condition capable of generating pain; however, the ALJ found that the entirety of the medical
evidence failed to support the claimant’s alleged severity of pain. Specifically, the claimant’s
alleged limitations with her right hand are inconsistent with and unsupported by the objective
medical evidence in the record.
The ALJ explicitly articulated her reasons for discrediting the claimant’s alleged severity
of pain generally. First, the ALJ explained that the claimant’s daily activities were inconsistent
with her alleged disabling symptoms. The ALJ noted that in February 2008, the claimant
reported to the Disability Determination Service that she had difficultly performing all activities,
including caring for her personal needs and driving. However, the ALJ explained that only a
month later in March 2008, the claimant reported to the Disability Determination Service that she
was able to do a range of activities including the following: caring for her personal needs without
assistance; shopping for her personal needs; preparing and cooking meals; doing laundry;
cleaning the house; and visiting her family and friends after church. Additionally the ALJ
pointed out that in the March 2008 report to the Disability Determination Service, the claimant
also confirmed that she was able to leave the house about four times a week. By comparing the
claimant’s own admission of her ability to perform activities and her statement to the contrary,
the ALJ showed the inconsistency and resulting doubt as to the claimant’s credibility.
At the hearing in 2010, the claimant testified that she is unable to work due to her
impairments and has to recline from eight o’clock in the morning until eight o’clock at night.
However, the ALJ noted that the claimant’s testimony was inconsistent with other statements she
made at the hearing concerning her daily activities. The ALJ pointed to the contrary testimony in
which the claimant admits that she cleans her home; drives; goes to her father’s house and cares
for him; cares for her thirteen-year-old son; and cooks and prepares meals. In finding
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inconsistency and a lack of credibility, the ALJ also relied on the fact that the claimant testified
that she drove to the administrative hearing, despite her earlier statements that she does not drive.
As an ALJ is allowed to consider the claimant’s appearance during the hearing in
assessing credibility, the ALJ also appropriately relied on the fact that during the one-hour
administrative hearing, the claimant showed no visible signs of being in pain and did not move
around or change positions at any time during the hearing. See 20 C.F.R. §§ 404.1549(c)(3)(vii),
(4), 416.929(c)(3)(vii), (4); Macia v. Bowen, 829 F.2d 1009, 1011 (11th Cir. 1987).
In addition to reviewing the claimant’s conflicting testimony and statements, the ALJ also
considered the severity of the claimant’s alleged pain by reviewing the claimant’s objective
medical records. Although the record shows that the claimant experienced low back pain
beginning when she fell from a horse in 2001, the ALJ articulated that the alleged severity of the
claimant’s resulting pain and symptoms are not supported by the findings within the medical
records. The ALJ considered x-rays of the claimant’s lumbar spine, taken by Dr. Swader in
2006, which revealed only mild disc space changes. The ALJ also relied on x-rays of the
claimant’s pelvis and cervical spine, taken by Dr. Swader in 2006, that only revealed negative
findings. Additionally, the ALJ pointed to a MRI in 2002, conducted by Dr. Jokich, that showed
degenerative disc disease with mild to moderate disc bulging and to a later MRI in 2005,
conducted by Dr. Frye, that showed normal spine alignment and no significant degenerative disc
disease. The ALJ also explained that a bone scan that Dr. LaGanke performed in 2006 revealed
only mild osteoarthritis. (R. 307). The ALJ concluded that the overwhelming objective medical
evidence showed that the claimant’s alleged severity of pain and resulting limitations are not
supported by the medical records, which generally indicate the claimant had only slight spinal
changes and relative normal spine alignment.
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Next, in her determination as to claimant’s credibility, the ALJ considered the
claimant’s failure to comply with her various doctors’ recommendations, which may be used as a
factor for discounting allegations of disability. See Ellison v. Barnhart, 355 F.3d 1272, 1275
(11th Cir. 2003). The ALJ pointed to numerous instances of noncompliance. First, although Dr.
Swader referred the claimant to physical therapy, the ALJ noted that the claimant never attended
the prescribed physical therapy. Next, the ALJ pointed out that Dr. Swader terminated the
claimant’s pain management treatment after previous warnings because the claimant failed to
follow the narcotics agreement by obtaining pain medications from multiple providers.
Additionally, the claimant failed to cease smoking cigarettes as requested by her doctors. Last,
the ALJ explained that the claimant admittedly failed to comply with her medication dosage, and
despite being told otherwise, she takes all of her pain medication at once, at the beginning of the
day.
In addition to discrediting the claimant’s subjective complaints of general pain, the ALJ
also properly discredited the claimant’s subjective complaints of the severity of the limitations
with her right-hand. The claimant contends that the ALJ improperly disregarded the fact that she
is limited to occasional gross handling with her right hand. Although the ALJ conceded that the
claimant’s hand was injured at one time, the ALJ determined that the claimant’s alleged severity
and resulting limitations are solely based on her subjective assessment.
The ALJ properly relied on the claimant’s medical records concerning her hand treatment
with Dr. Fuller that indicated that she had normal hand intrinsic muscle function, normal muscle
tone, and no finger or joint deformities. The objective medical evidence failed to reveal any
medical orders or conclusions that the claimant could not perform any functions with her right
hand.
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Additionally, the claimant’s own testimony shows the wide range of daily activities she is
able to do despite the alleged limitations in her right hand. Based on the same reasons relied on
in the credibility finding concerning the claimant’s overall pain—the medical records, the
inconsistent claimant testimony, and the claimant’s failure to comply with medical orders—the
ALJ properly found that the claimant’s subjective complaints as to her hand limitations were not
entirely credible nor supported by objective medical evidence.
Based on the explicit findings of the ALJ, this court concludes that the ALJ properly
applied the Eleventh Circuit’s three-part pain standard and that substantial evidence supports the
ALJ’s decision in finding that the claimant’s subjective allegations of pain, including the
limitations with her right hand, are not supported by objective medical evidence and are
undermined by the claimant’s lack of credibility.
2. The ALJ properly considered the claimant’s need for a cane under Social
Security Ruling 96-9p.
The claimant contends that the ALJ improperly rejected her testimony about reliance on
her cane to ambulate. Specifically, the claimant contends that under Social Security Ruling 969p, she has proven that her need for a cane is medically required, and thus, the ALJ should have
considered her reliance in the determination of disability and her ability to work. The claimant
also contends that a medical prescription for a cane is not necessary to prove that a cane is
medically required under Social Security Ruling 96-9p and that her subjective reliance on a cane
is enough to affect the disability determination.
However, this court finds that the ALJ properly considered the claimant’s subjective
testimony regarding her reliance on a cane and discredited that reliance based on the lack of
objective medical evidence.
Under Social Security Ruling 96-9p, a hand-held assistive device is medically required
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where medical documentation “establish[es] the need for a hand-held assistive device to aid in
walking or standing, and describ[es] the circumstances for which it is needed.” Additionally,
“the adjudicator must always consider the particular facts of a case” when determining the need
for the device. SSR 96-9p, 1996 WL 374185, at *7 (1996).
In the ALJ’s decision, the ALJ noted that the claimant testified that she used a cane to
walk, but that her physician did not prescribe the cane, implying that no medical documentation
exists to show the claimant’s need for a cane, as required by Social Security Ruling 96-9p.
Assuming that the claimant’s assertion is correct, and a prescription for a cane is not required to
establish need, the legal standard still requires that the claimant show some “medical
documentation establishing the need for a hand-held assistive device.” SSR 96-9p, 1996 WL
374185, at *7 (1996) (emphasis added).
The claimant points to treatment notes made by a nurse that simply state that the claimant
was using a cane during her visits with one physician, Dr. Swader; however, those notes do not
establish that the physician believed or determined that the claimant required the use of a cane.
The specific treatment notes in question, along with the entire record, lack any objective medical
documentation or evidence showing that a physician found, in his or her professional opinion,
that the claimant needed a cane or should use a cane to assist with her alleged symptoms.
This court finds, in fact, that medical records show that the claimant was able to ambulate
without a cane. Dr. Crouch performed a consultative examination on the claimant in 2004 and
specifically noted that she was able to move around the room without an assistive device. (R.
197-). Dr. Mick, who treated the claimant in 2001 and 2002, did not state in his treatment notes
that she ever used a cane during her visits with him. (R.117-120). Additionally, during the
claimant’s treatment for back pain with Dr. Pohl from 2002 to 2004, Dr. Pohl’s treatment records
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do not state that the claimant was ever using a cane or was unable to ambulate without a cane.
(R. 140-142). Dr. Norwood examined the patient in 2005 and did not report that the claimant
was using a cane or that she needed a cane to ambulate. (R. 248-49).
Not only has the claimant failed to present any medical documentation showing the need
for the device, she has also failed to show the circumstances for which the assistive device is
needed. Because the claimant failed to present medical documentation showing the need for a
hand-held assistive device or medical documentation showing the circumstances for which a
hand-held device is medically required, the ALJ correctly rejected the claimant’s alleged reliance
on the cane and the limitations that reliance creates in determining disability status. See SSR
96-9p, 1996 WL 374185, at *7 (1996).
3. The ALJ properly determined the claimant’s RFC to perform light work with
limitations.
The claimant also contends that the ALJ erred in reaching her determination that the
claimant has the RFC to perform light work with an option to sit or stand and with the limitation
of walking and standing for only two hours during an eight-hour workday. The claimant
contends that the ALJ did not properly consider her need for a cane, as well as her limited gross
handling in her right hand, in her determination that the claimant could do light work. The court
finds that the ALJ properly considered all of the claimant’s limitations and correctly determined
the RFC.
When a claimant’s impairments do not meet the severity of a listed impairment, the ALJ
makes a determination as to the claimant’s residual functioning capacity, which is the claimant’s
remaining ability to do work despite his or her impairments. Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997); see 20 C.F.R. § 404.1520(f). After determining the claimant’s RFC, the
ALJ must show that other jobs exist in the national economy that the claimant can perform.
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Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). The ALJ may use a vocational expert’s
testimony to determine the existence of jobs in the national economy that meet the claimant’s
ability. Id. at 1077-78.

While the ALJ may use the expert’s testimony in her determination, the

ALJ is not required to include findings in a hypothetical posed to the expert that the ALJ has
found to be unsupported by the evidence. Crawford v. Comm. of Social Security, 363 F.3d.
1155, 1161 (11th Cir. 2004).
The ALJ posed numerous hypothetical situations to the vocational expert to determine the
claimant’s RFC and possible jobs the claimant could perform in the national economy. Taking
into account the claimant’s alleged limitations, the ALJ posed a hypothetical with an individual
who is limited to the following: a light range of work with occasional walking and standing for
two hours out of an eight-hour day; occasional postural maneuvers such as balancing, stooping,
kneeling, crouching, crawling, and climbing; and an option to sit and stand during the work day
for a couple of minutes every hour. The vocational expert testified that the hypothetical
individual could perform the functions of a number of sedentary, unskilled jobs, where the
individual could be sitting most of the time with the option to stand. Such jobs would include an
order clerk, inspector, and assembler, which were all available in the regional and national
economies.
The claimant contends that her reliance on the cane would preclude any light work. The
claimant maintains that because light work involves lifting twenty pounds with lifting or carrying
objects up to ten pounds, a person requiring a cane to ambulate would be unable to lift or carry
objects while holding on to a cane. Thus, the claimant contends that the ALJ’s failure to limit the
hypothetical to consider the claimant’s alleged reliance on a cane, requires reversal.
The ALJ considered many limitations in the hypothetical, including the claimant’s ability
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to do many daily functions, her inability to stand or walk for long periods of time, and her need to
sit or stand a few minutes every hour. While the ALJ did not consider her reliance on a cane and
the alleged limitations caused by the reliance, the ALJ is not required to pose a hypothetical that
assumes restrictions that the ALJ has rejected. See Crawford, 363 F.3d at 1161. Because the
ALJ rejected the claimant’s alleged reliance on a cane based on the lack of medical
documentation showing the need for the device, the ALJ was not required to present a
hypothetical and the subsequent findings regarding the claimant’s use of a cane and the resulting
limitations on her work. See id.
The claimant also contends that the ALJ erred by failing to include the limitation of the
claimant’s occasional gross handling with her right hand in her RFC determination. In
expanding on the hypothetical used above, the vocational expert testified that only a very limited
number of jobs exist at the unskilled level for an individual limited to sedentary and occasional
gross handling with the upper right extremity who was right-hand dominant. However, similar to
the use of the cane, the ALJ does not have to accept a vocational expert’s response to a
hypothetical which assumes restrictions the ALJ has rejected. Id. Thus, as the ALJ found no
medical evidence to support the claimant’s subjective complaint of the severity of her hand pain
and the alleged resulting inability to use that hand, the ALJ was not required to accept the
vocational expert’s determination that a very limited number of jobs are available for an
individual with limited gross handling in her dominant right hand. See id.
Thus, properly applying the appropriate legal standards, the ALJ correctly determined the
claimant’s RFC to perform light work with certain limitations, and the court finds that substantial
evidence supports his RFC determination.

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4. The ALJ fully developed the record.
The claimant contends that the ALJ erred by failing to fully develop the record as the ALJ
did not contact the claimant’s treating physician to ascertain whether the claimant’s use of a cane
is, in fact, medically required. The court finds that the ALJ fully developed the record and was
not required to contact the physician in this case because the evidence provided was adequate to
determine the claimant was not disabled.
An ALJ has “a basic obligation to develop a full and fair record.” Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003). While an ALJ has an obligation to develop the record, an
ALJ is required to contact a treating physician in the limited circumstance where the evidence
provided is inadequate to determine whether the claimant is disabled. See 20 C.F.R. § §
404.1512(e), 416.912(e) (emphasis added). Ultimately, however, “the claimant bears the burden
of proving he is disabled, and consequently, he is responsible for producing evidence in support
of his claim.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20 C.F.R. §
416.912(a)).
In the present case, the ALJ had no duty to contact the claimant’s treating physician to
inquire about the claimant’s cane use. Because the ALJ had sufficient medical evidence in the
record to conclude that the claimant was not disabled, contacting the treating physician was not
necessary. See 20 C.F.R. §§ 404.1512(e), 416.912(e). First, none of the claimant’s physicians
ever prescribed a cane to the claimant. During the administrative hearing, the claimant testified
that she used a cane, but that her physician did not prescribe a cane. Additionally, throughout the
700 pages in the record, no treating physician of the claimant ever required that the claimant use
a cane or even suggested that using a cane was medically necessary. Despite the claimant’s
alleged reliance on a cane, the claimant’s testimony and medical records indicate that she has the
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ability to complete a range of daily activities including cooking, cleaning, and driving. Also, the
objective medical evidence in the record, specifically x-rays and MRI results, indicate that the
claimant only had mild degeneration in parts of her spine, with other areas of her spine being
completely normal.
The record contained adequate evidence for the ALJ to determine that the claimant was
not disabled, despite the claimant’s alleged reliance on a cane. Thus, the ALJ did not fail to fully
develop the record by failing to contact the claimant’s treating physician to determine if a cane
was medically required.
CONCLUSION
For the reasons as stated, this court concludes that the decision of the Commission is
supported by substantial evidence and is to be AFFIRMED. The court will enter a separate order
to that effect simultaneously.
DONE and ORDERED this 18th day of September, 2012.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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