Miller v. Social Security Administration, Commissioner

Filing 18

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/28/2013. (JLC)

FILED
2013 Mar-28 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CARL E. MILLER,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 5:11-CV-4000-VEH
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MEMORANDUM OPINION1
Plaintiff Carl E. Miller (“Miller”) seeks review of a final adverse decision of
the Commissioner of the Social Security Administration (hereinafter
“Commissioner” or “Secretary”), who denied his application for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”)

1

The court recently became aware that Carolyn W. Colvin was named the Acting
Commissioner of the Social Security Administration on February 14, 2013. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”) (last accessed on Mar. 13,
2013). Under 42 U.S.C. § 405(g), “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying the office of Commissioner of
Social Security or any vacancy in such office.” Accordingly, pursuant to 42 U.S.C. § 405(g) and
Rule 25(d) of the Federal Rules of Civil Procedure, the court has substituted Carolyn W. Colvin
for Michael Astrue in the case caption above and HEREBY DIRECTS the clerk to do the same
party substitution on CM/ECF.

and supplemental security income (“SSI”) under Title XVI. Miller timely pursued
and exhausted his administrative remedies available before the Commissioner.
This case is ripe for review pursuant to 42 U.S.C. § 405(g) of the Act. The court
has carefully considered the record and, for the reasons which follow, finds that
the decision of the Commissioner is due to be AFFIRMED.
FACTS AND PROCEDURAL HISTORY
Miller was born in 1960 and was a fifty (50) year old male at his hearing
before the Administrative Law Judge (“ALJ”) on September 1, 2010. (R. at 57.)
Miller has a ninth grade education. (Id.) Miller has worked in construction his
entire life. (R. at 59.) He last worked as a painter in either 2005 or 2007. Miller
complains of multiple ailments, but the ALJ found that only Miller’s osteoarthritis
and degenerative disc disease are severe impairments. (R. at 27.) Miller contends
that these impairments cause him severe back pain.
Miller filed his disability application on April 20, 2009. (R. at 25.) The
Commissioner initially denied his claim on August 25, 2009. Miller then
requested an administrative hearing, which was held on September 1, 2010. (R. at
25.) The ALJ denied Miller’s application on December 7, 2010. (R. at 39.)
Miller sought review by the Appeals Council, but it declined to review his claim
on August 16, 2011. Thus, the ALJ’s decision became the final decision of the
2

Commissioner on that date. (R. at 14.) Miller then brought this action.
STANDARD OF REVIEW2
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of this court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. See Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). This 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).
This court will determine that the ALJ’s opinion is supported by substantial
evidence if it finds “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. Substantial evidence is “more than a
scintilla, but less than a preponderance.” Id. Factual findings that are supported
by substantial evidence must be upheld by the court. The ALJ’s legal conclusions,
however, are reviewed de novo, “because no presumption of validity attaches to
the [ALJ’s] determination of the proper legal standards to be applied.” Davis v.

2

In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.
3

Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the
ALJ’s application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, the
ALJ’s decision must be reversed. See Cornelius v. Sullivan, 936 F. 2d 1143,
1145–46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for DIB and SSI as well as establish his entitlement for a period
of disability, a claimant must be disabled as defined by the Act and the
Regulations promulgated thereunder.3 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. § 416.905(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. § 416.908.

3

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts 400 to 499,
as current through March 14, 2013.
4

The Regulations provide a five-step process for determining whether a
claimant is disabled. 20 C.F.R. § 416.920(a)(4)(i–v). The Commissioner must
determine in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Secretary;
whether the claimant can perform his past work; and
whether the claimant is capable of performing any work in the
national economy.

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord McDaniel v.
Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied
steps one and two, [he] will automatically be found disabled if [he] suffers from a
listed impairment. If the claimant does not have a listed impairment but cannot
perform [his] work, the burden shifts to the Secretary to show that the claimant can
perform some other job.” Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993),
overruled in part on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Foote, 67 F.3d at 1559.

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FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At Step One, the ALJ found that Miller had not engaged in substantially
gainful employment since November 5, 2009, his amended alleged onset date. (R.
at 27.) At Step Two, the ALJ found that Miller had the following severe
impairments: osteoarthritis and degenerative disc disease. (Id.) The ALJ also
found that Miller’s allegations of fibromyalgia, constant headaches, hearing loss,
and tinnitus either are not supported by the medical evidence or are not severe.
(R. at 28–29.) Additionally, the ALJ found that Miller’s alleged mental
impairments of depressive disorder and affective mood disorder are not supported
by the medical evidence. (R. at 29–30.)4 At Step Three, the ALJ found that
Miller’s severe impairments did not meet or medically equal a listed impairment.
Before proceeding to Step Four, the ALJ determined Miller’s residual
functioning capacity (“RFC”). He found that Miller could perform light work with
the following restrictions:
he can occasionally lift and/or carry including upward pulling of 20
pounds occasionally and 10 pounds frequently; he needs the option to
sit/stand at will and can sit for four hours out of eight hour workday;
stand an or walk four hours out of eight hour work day; occasionally
balance, stoop but not repetitively, kneel and crouch, climb ramps and
stairs, and use ladders but not ropes or scaffolds; should not crawl or

4

Miller has not challenged the ALJ’s findings regarding these physical and mental
impairments.
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work at unprotected heights; frequently upper extremity use including
pushing/pulling of arm controls frequent gross handling but no
limitations with fine manipulation; should perform no heavy vibratory
type work; should be paid by the hour and not by piece work.
(R. at 32.) After determining Miller’s RFC, the ALJ proceeded to Step Four.
Based on the testimony of a vocational expert (“VE”), the ALJ concluded that
Miller cannot perform his past relevant work. (R. at 36.) At Step Five, the ALJ
determined that based on Miller’s age, education, work experience, and RFC, jobs
exists in sufficient numbers in the national economy such that Miller is not
disabled. Therefore, the ALJ denied Miller’s claim.
ANALYSIS
This court is limited in its review of the Commissioner’s decision in that the
Commissioner’s findings of fact must be reviewed with deference. See Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen, 790
F.2d 1572, 1574–75 (11th Cir. 1986)). In contrast to factual findings, however,
the Commissioner’s conclusions of law are subject to an “exacting examination”
or de novo review. See Martin, 894 F.2d at 1529 (citing Graham, 790 F.2d at
1574–75); Martin, 894 F.2d at 1529 (“The Secretary’s failure to apply the correct
legal standards or to provide the reviewing court with sufficient basis for a
determination that proper legal principles have been followed mandates reversal.”)

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(citations omitted). In particular, this court has a “responsibility to scrutinize the
record in its entirety to ascertain whether substantial evidence supports each
essential administrative finding.” See Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982) (emphasis added) (citing Strickland v. Harris, 615 F.2d 1103,
1106 (5th Cir. 1980)).5
Miller makes two arguments on appeal. First, he contends that the ALJ
failed to set forth good cause for rejecting the opinion of Dr. Angelia Elliott.
Second, Miller contends that the ALJ improperly applied the Eleventh Circuit’s
pain standard. The court will address each argument in turn.
A.

Good Cause for Discrediting the Opinion of Dr. Angelia Elliott

In January 2010, Dr. Elliott completed a medical source statement (“MSS”)
regarding Miller’s ability to work. (R. at 245–46.) She opined that Miller could
lift and carry ten to fifteen pounds occasionally, but never lift or carry more than
fifteen pounds. (R. at 245.) She limited him to fifteen minutes of standing and
walking at a time with no more than one hour of either activity during an eight
hour workday. (R. at 245.) She limited him to thirty minutes of sitting at a time
with no more than four hours in an eight hour workday. (R. at 245.) Additionally,

5

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
8

Dr. Elliot opined that Miller could not climb, balance, stoop, kneel, crouch, or
crawl. (Id.) If the ALJ had fully credited Dr. Elliott’s MSS, then Miller would be
unable to perform light work, which involves lifting twenty pounds at one time.
See 20 C.F.R. § 404.1567(b). However, the ALJ discredited Dr. Elliott’s MSS in
making his RFC assessment. (R. at 33–35.) Miller contends this was error.
Ordinarily, the ALJ must afford substantial weight to the opinion of a
treating physician “unless ‘good cause’ is shown to the contrary.” Lewis v.
Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997) (citing MacGregor v. Bowen,
786 F.2d 1050, 1053 (11th Cir. 1986)). “Good cause” exists when “the doctor’s
opinion [is] not bolstered by the evidence, or where the evidence support[s] a
contrary finding.” Id. (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th
Cir.1987) and Sharfarz v. Bowen, 825 F.2d 278, 280–81 (11th Cir.1987)).
Additionally, good cause exists when a doctor’s opinion is “conclusory or
inconsistent with her own medical records.” Id. (citing Jones v. Dep’t of Health &
Human Servs., 941 F.2d 1529, 1532–33 (11th Cir.1991) and Edwards v. Sullivan,
937 F.2d 580, 583 (11th Cir.1991)); see also Phillips v. Barnhart, 357 F.3d 1232,
1240–41 (11th Cir. 2004) “The ALJ must clearly articulate the reasons for giving
less weight to the opinion of a treating physician, and the failure to do so is
reversible error.” Id.
9

Here, the ALJ articulated several reasons for discrediting Dr. Elliott’s MSS,
including inconsistencies between her MSS and other record evidence. First, the
ALJ found that Dr. Elliott’s MSS is inconsistent with her own treatment notes.
For example, at his visit on March 29, 2010, Miller reported throwing a fifty
pound bag of feed on his shoulder earlier that month. (R. at 251.) Miller said this
act caused him to fall down and hurt his tail bone. Three days later, he actually
sought treatment in the emergency room. (Id.) This incident occurred only two
months after Dr. Elliott opined in her MSS that Miller should never lift more than
fifteen pounds. And, this incident raises a rather obvious question: why was
Miller, who allegedly had been suffering from disabling back pain for months,
trying to pick up a fifty pound bag of feed? Dr. Elliott did not ask this obvious
question. And, her notes reveal no investigation of, nor explanation for, Miller’s
lifting of fifty pounds. Nor did she counsel Miller to avoid lifting more than
fifteen pounds. From these facts, a reasonable person could conclude that Dr.
Elliott’s MSS was not consistent with her actual opinion of Miller’s abilities.
Furthermore, Dr. Elliott apparently never questioned the sincerity of Miller’s
subjective complaints of back pain. This is remarkable, given that Dr. Elliot had

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previously denied Miller medication because she suspected drug seeking
behavior.6 (R. at 208.)
Additionally, at the time Dr. Elliott completed her MSS, she did not have
the benefit of her treatment notes from February, March, and June 2010. These
notes show that, at all three visits, Miller appeared “well-nourished” and “[i]n no
acute distress.” (R. at 249, 252, 255.) Dr. Elliott’s assessment of Miller’s
musculoskeletal system was exactly the same for all three visits. She noted
lumbosacral spine abnormalities and muscle spasms, but also found that this
region exhibited no tenderness on palpation. (R. at 249, 252, 256.) She noted that
Miller’s straight-leg raising tests were negative for both legs. (R. at 249, 252,
256.) These findings are not as severe as Dr. Elliott’s objective observations from
November and December 2009. In fact, at Miller’s December 2009 visit, Dr.
Elliott did not record observing the obvious muscle spasms or other symptoms
present during Miller’s November 2009 visit. (R. at 242, 244.) Furthermore, Dr.

6

Dr. Elliott’s failure to question Miller’s sincerity is all the more remarkable given his
too frequent request for pain medication since February 2010. On February 4, 2010, Dr. Elliott
prescribed Miller a ninety day supply of Lortab. (R. at 256.) This supply should have lasted
until May 5, 2010. Yet, when Miller returned to Dr. Elliott’s office on March 29, 2010, she
wrote him another prescription for a one hundred and twenty day supply of Lortab. (R. at 252.)
Thus, when Miller left Dr. Elliott’s office on March 29, 2010, he had a prescription for a one
hundred twenty day supply of Lortab in addition to the almost thirty days remaining on his
prescription from February 4. Nonetheless, on June 16, 2010 (a mere seventy-nine days later),
Miller returned to Dr. Elliott and received another one hundred and twenty day supply of Lortab.
11

Elliott listed the reason for Miller’s December 2009 visit as “[n]eeds some
medication refills.” (R. at 242.) And, Dr. Elliott noted in December 2009 that
Miller had reported that “muscle relaxers help” his back. (R. at 244.)
From these treatment notes, it is reasonable to conclude that Miller’s
condition stabilized, if not improved, after November 2009. Yet, in February
2010, Miller complained that his back pain had actually gotten worse. (R. at 255.)
Thus, the ALJ was justified in concluding that Dr. Elliott’s diagnosis was based
largely on Miller’s subjective complaints about pain. As discussed in Section B,
below, the ALJ had reason to doubt the sincerity of Miller’s subjective complaints.
And, because the ALJ had reason to doubt Miller’s subjective complaints, he had
reason to doubt an MSS based largely on Miller’s subjective complaints.
Second, Dr. Elliott’s MSS is inconsistent with other record evidence. For
example, Miller testified that he could lift up to thirty pounds at a time. (R. at 69.)
This testimony is inconsistent with Dr. Elliott’s opinion that Miller could lift no
more than fifteen pounds at a time. Additionally, Dr. Elliott’s MSS is inconsistent
with Dr. Jane Teschner’s physical assessment from July 2009. (R. at 263–71.) Dr.
Teschner noted that Miller appeared in “no apparent acute actual distress.” (R. at
267.) She found his cervical, thoracic, and lumbosacral spine to be normal.
Miller’s straight leg raise tests were negative for both legs. He was able to “tiptoe12

heel-walk-toe touch-heel-to-toe-walk-squat.” (R. at 268.) Miller was able to get
on the exam table without assistance and his gait and station were normal. (Id.)
Based on her exam, Dr. Teschner found no physical restrictions with Miller’s
range of motion for all joints. (R. at 270–71.) And, Dr. Teschner did not opine
that Miller suffers from any significant physical limitations. (R. at 269.)7
Miller complains that the ALJ should not have considered Dr. Teschner’s
examination because it was conducted three and a half months before his amended
alleged onset date. (Doc. 10 at 17.) However, Dr. Teschner’s report is objective
medical evidence of Miller’s condition near his amended alleged onset date. The
ALJ was entitled to consider this evidence in assessing the validity of Dr. Elliott’s
assessment of Miller’s alleged impairments, especially given the temporal
proximity of Dr. Teschner’s examination to Miller’s amended alleged onset date.
Third, Dr. Elliott’s course of treatment is inconsistent with Miller’s
allegations of disabling pain. From Miller’s first visit in November 2009 to his
last reported visit in June 2010, Dr. Elliott’s course of treatment remained
essentially unchanged. In November 2009, Dr. Elliott prescribed Lortab and
Flexeril. (R. at 244.) At each subsequent visit—December 2009, February 2010,

7

Dr. Teschner did conclude that Miller suffered from mental impairments. (R. at 269.)
The ALJ discounted this portion of Dr. Teschner’s opinion, (R. at 29), and Miller has not
appealed that portion of the ALJ’s decision.
13

March 2010, and June 2010—Dr. Elliott prescribed the same drugs at the same
strength. (R. at 242, 244, 256, 252, 248.) In November and December 2009, Dr.
Elliott did give Miller samples of Celebrex, but she never prescribed this
medication. (R. at 242.) And, while Dr. Elliott prescribed Restoril in February
2009, this drug was to treat Miller’s insomnia, not his back pain. (R. at 256.)
Interestingly, Dr. Elliott’s treatment remained unchanged even though Miller
complained of increasing back pain in February 2010 and continued severe back
pain in June 2010. (R. at 255, 248.)
Conversely, Dr. Elliott’s notes actually suggests that Miller’s medications
alleviated his pain. At his December 2009 visit, Miller said that “muscle relaxers
help.” (R. at 242.) Dr. Elliott’s note does not explain how much “muscle relaxers
help[ed],” but again, it is significant that Dr. Elliott never changed Miller’s
medications. And, though Miller reported that his back pain continued to get
worse, he never told Dr. Elliott that his pain medication was not working. (R. at
242–61.) In fact, Miller continued to seek refills of his medications, suggesting
that he found them helpful. (R. at 33.)
Moreover, Dr. Elliott initially thought Miller needed an MRI. (R. at 244.)
However, except for Miller’s initial visit, Dr. Elliott never followed up on this
recommendation. According to her notes, she never sent Miller for an MRI or
14

even suggested that he get one. (R. at 242–61.) Nor did she refer Miller to a pain
specialist or for pain management.
Miller contends that he was unable to pay for these alternative treatments.
Yet, Dr. Elliott notes do not reflect that she ever discussed these treatments with
Miller. Nor do her notes say anything about Miller’s inability to pay. Thus,
Miller’s inability to pay does not appear to have factored into Dr. Elliott’s
treatment decisions. Miller’s conservative treatment history, which is inconsistent
with his subjective complaints of pain, is another reason supporting the ALJ’s
decision to discredit the validity of Dr. Elliott’s MSS. (R. at 34–35.)
Fourth, Miller contends that, because he has a nine year treatment
relationship with Dr. Elliott (he first saw her in the year 2000), her MSS is entitled
to controlling weight. While Miller is correct that he first saw Dr. Elliott in the
year 2000, Miller is wrong about the significance of this fact. Under 20 C.F.R.
§ 404.1527(c)(2)(i), the ALJ was required to consider the length of Dr. Elliott’s
treatment relationship for the particular impairment. Here, that is Miller’s back
pain. Yet, when Dr. Elliott completed her MSS, she had only seen Miller twice
regarding his back pain—once in November 2009 and once in December 2009.
(R. at 242, 244.) Before that, Dr. Elliott had seen Miller only seven times—once
in 2000, three times in 2004, once in 2005, once in 2007, and once in February
15

2009. (R. at 204–09.) Before November 2009, Miller had only complained of
back pain twice, once in 2000 and once in 2005. And, during those visits, back
pain was not Miller’s primary complaint. In May 2007 and February 2009, Miller
did not even mention back pain. Furthermore, Dr. Elliott’s own notes suggests she
did not have a strong relationship with Miller. (R. at 206) (note by Dr. Elliott
from February 2009 stating that “[i]t’s been a while since [Miller] has been here”).
Because Dr. Elliott had a relatively short treatment relationship with Miller
regarding his back pain, the ALJ was entitled to question the strength of her MSS.
For the foregoing reasons, the ALJ identified good cause, supported by
substantial evidence in the record viewed as a whole, to discredit Dr. Elliott’s
MSS. Dr. Elliott’s MSS is inconsistent with her treatment notes and other
evidence of record. To the extent her MSS is based largely on Miller’s subjective
complaints, the ALJ found such complaints not credible. The ALJ also noted that
Dr. Elliott’s course of treatment is inconsistent with Miller’s allegations of
disabling pain. Finally, the ALJ found that Dr. Elliott’s MSS was not entitled to
any special weight based on her treating relationship. Because substantial
evidence supports the ALJ’s findings, his decision to discredit Dr. Elliott’s MSS is
due to be AFFIRMED.
B.

Miller’s Subjective Complaints of Disabling Pain
16

Miller also contends that the ALJ misapplied the Eleventh Circuit’s pain
standard. (Doc. 10 at 22.) The Eleventh Circuit’s pain standard requires
“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
reasonably be expected to give rise to the alleged pain.” Landry v. Heckler, 782
F.2d 1551, 1553 (11th Cir. 1986) (citing Hand v. Heckler, 761 F.2d 1545, 1548
(11th Cir. 1985)). Relatedly, “[w]hile both the regulations and the Hand standard
require objective medical evidence of a condition that could reasonably be
expected to cause the pain alleged, neither requires objective proof of the pain
itself.” Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir. 1991)
(emphasis added). If the ALJ discredits a claimant’s subjective allegations of
pain, he must articulate specific reasons for doing so. See, e.g., Walker v. Bowen,
826 F.2d 996, 1004 (11th Cir. 1987).
The ALJ identified multiple reasons for discrediting Miller’s subjective
complaints. The court will summarize them here: (1) “[t]he objective medical
evidence does not demonstrate abnormalities which would interfere with
[Miller’s] ability to perform [a limited range of light work];” (2) Miller sought
routine refills for his Flexeril and Lortab, “suggesting good benefit;” (3) Dr.
17

Elliott’s contemporaneous treatment records do not document complaints of
uncontrolled pain; (4) Miller often went several months between visits to Dr.
Elliott without seeking care for his pain in the interim; (5) Miller testified that he
can lift twenty-five to thirty pounds at one time, which is inconsistent with Dr.
Elliott’s MSS; (6) Miller’s daily activities are consistent with the ability to do light
work and inconsistent with a finding of disabling pain; (7) Miller’s work record
shows he did not work consistently, which undermines his credibility. (R. at
33–34.)
Miller contends that the ALJ’s stated reasons are not sufficient to support a
negative credibility finding. First, Miller contends that the ALJ erred in finding
the objective medical evidence is inconsistent with disabling levels of pain.
Second, Miller contends that the ALJ failed to consider the fact that Miller had
taken Lortab for over 10 months. Third, Miller contends that the ALJ reads too
much into his daily activities. Fourth, Miller contends that the ALJ should have
inquired into how Miller supported himself during the years he had no income.
Because the ALJ did not make this inquiry, Miller contends the ALJ was unable to
properly evaluate his credibility based on his work history. The court rejects each
of Miller’s arguments.

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Regarding Miller’s first contention, the ALJ clearly considered the objective
medical evidence from Dr. Elliott. Dr. Elliott consistently noted that Miller was
“in no acute distress,” had negative straight leg raise tests, and no tenderness of
the lumbosacral spine to palpation. (R. at 33, 249, 252, 255.) The ALJ also noted
that Dr. Elliott’s treatment records documented only relatively minor problems.
For example, Dr. Elliott’s x-rays of Miller’s lower spine from November 2009
showed “only ‘some arthritic changes’ and loss of disk height no herniated,
protruding or bulging disks or nerve root or spinal cord compromise, abnormal
alignment, fracture, subluxation, or any significant stenosis.” (R. at 33.) Though
Dr. Elliott noted “abnormalities” of the lumbosacral spine, she never explained
what she meant. And, though Dr. Elliott noted muscle spasms of the paraspinal
muscles, she never altered Miller’s treatment. (R. at 249, 252, 255.) Moreover,
Miller himself reported in December 2009 that Flexeril helped his muscle spasms.
(R. at 33, 242.)
Miller suggests that, because Dr. Elliott found objective evidence of spinal
abnormalities and muscle spasms, the ALJ was required to credit his subjective
complaints. He cites 20 C.F.R. § 404.1529(c)(2), which states:
we will not reject your statements about the intensity and persistence of
your pain or other symptoms or about the effect your symptoms have on

19

your ability to work solely because the available objective medical
evidence does not substantiate your statements.
However, this regulation plainly permits an ALJ to discredit a claimant’s
allegations of disabling pain when those allegations are inconsistent with the
objective medical evidence and other evidence supports that conclusion. Here, the
ALJ noted numerous other reasons for discrediting Miller’s testimony. Thus, the
ALJ was permitted to discredit Miller’s subjective allegations as inconsistent with
the objective medical evidence. See also 20 C.F.R. § 404.1529(c)(4) (“ . . . [W]e
will evaluate your statements in relation to the objective medical evidence and
other evidence, in reaching a conclusion as to whether you are disabled. We will
consider whether there are any inconsistencies in the evidence and the extent to
which there are any conflicts between your statements and the rest of the evidence,
including your history, the signs and laboratory findings, and statements by your
treating or nontreating source or other persons about how your symptoms affect
you.”) (emphasis added).
To the extent Miller contends that the ALJ was required to find that the
objective medical evidence is consistent with his allegations of pain, the court
disagrees. An X-ray showed relatively minor abnormalities in Miller’s
lumbosacral spine. Dr. Elliott’s treatment notes do not show that Miller suffered

20

from disabling pain. Instead, her notes suggests that Miller’s condition had
improved with medication.
The ALJ’s interpretation is further supported by Dr. Teschner’s exam from
July 2009. Dr. Teschner found that Miller had no “motor, sensory, or reflex
deficits” and had normal range of motion of all joints. The ALJ further pointed
out that, in July 2009, Miller was not on any pain medication. Although Miller
amended his alleged onset date to November 2009 (about four months after Dr.
Teschner’s examination), Dr. Teschner’s exam can still constitute objective
medical evidence of Miller’s physical abnormalities. This is especially true
because her exam was conducted only a few months before Miller’s amended
alleged onset date and because Miller has not identified any event between Dr.
Teschner’s exam and November 2009 which would have significantly changed his
physical condition. Thus, the ALJ was entitled to consider Dr. Teschner’s
findings in assessing Miller’s subjective allegations of pain. Because the ALJ’s
assessment of the objective medical evidence was reasonable, the court rejects
Miller’s first contention.
Regarding Miller’s second contention, the ALJ was certainly aware of the
fact that Miller had taken Lortab for over ten months. This fact alone does not
prove that Miller suffers from disabling pain. Instead, the ALJ was only required
21

to consider this fact in assessing how Miller’s pain affects his ability to work. See
20 C.F.R. § 404.1529(c)(4) (“When the medical signs or laboratory findings show
that you have a medically determinable impairment(s) that could reasonably be
expected to produce your symptoms, such as pain, we must then evaluate the
intensity and persistence of your symptoms so that we can determine how your
symptoms limit your capacity for work.”) (emphasis added). Here, the ALJ
considered the fact that Miller was taking Lortab and found it weighed against his
allegations of disabling pain. Specifically, the ALJ said, “Dr. Elliott has treated
the claimant conservatively with oral medications for which the claimant has
sought routine refills, suggesting good benefit.” (R. at 33.) Because the ALJ
considered this fact, Miller’s second contention fails.
Regarding Miller’s third contention, the court concludes that Miller’s daily
activities reasonably support the ALJ’s negative credibility finding. Miller’s daily
activities include maintaining his home without assistance, taking care of his cat,
driving, sweeping, shopping for his own needs, going to church every one to two
months, and doing light yard work. (Doc. 10 at 26–27.)8 It is significant that
Miller lives alone in a one room building with no running water or bathroom

8

The ALJ found that the Miller could do these activities (R. at 34) and Miller does not
contest his finding. (Doc. 10 at 26–27.)
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facilities. (R. at 34, 74.) At his hearing, Miller testified that he prepares his own
meals, which are mostly sandwiches. (R. at 58.) Miller also testified that he can
stand for one to two hours in a day. (R. at 70.)
In assessing the affect of a claimant’s pain on his ability to work, the ALJ is
entitled to consider the claimant’s daily activities. 20 C.F.R. § 404.1529(c)(3)(i).
The ALJ found that Miller’s daily activities are consistent with the ability to
perform light work. (R. at 34.) This conclusion is reasonable. Miller cares for
himself despite living alone in a building without running water or bathroom
facilities. Miller engages in light yard work, cares for his cat, drives, sweeps, and
prepares his own meals. These activities are reasonably inconsistent with Miller’s
allegations of disabling pain, when considered with other evidence in the record.
Furthermore, Miller testified that he could lift twenty-five to thirty pounds
at a time. This amount would enable him to perform light work. See 20 C.F.R.
§ 1567(b) (“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.”). Though Miller
said he could not lift this much everyday, the record also shows that he tried to
throw a fifty pound bag of feed on his shoulder. (R. at 68.) From this evidence,
the ALJ could reasonably doubt the truthfulness of Miller’s testimony.

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The court is mindful that “participation in every day activities of short
duration, such as housework or fishing, [do not] disqualif[y] a claimant from
disability.” See Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997). Still,
the ALJ is entitled to consider Miller’s daily activities in assessing the veracity of
his subjective complaints of pain. See 20 C.F.R. § 404.1529(c)(3)(i). In this case,
Miller’s daily activities, when considered with the record as a whole, reasonably
support the ALJ’s negative credibility finding.
Finally, regarding Miller’s fourth contention, the court finds his work
history reasonably supports the ALJ’s negative credibility finding. In assessing a
claimant’s credibility, an ALJ must consider his work history. See 20 C.F.R.
§ 404.1529(c)(3); SSR 96-7p at *5. Miller contends that poor work history can
“support an inference that a claimant’s testimony of disability is truthful.” (Doc.
10 at 28) (citing Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998)). The court
rejects Miller’s contention for two reasons. First, Schaal is a Second Circuit case
and, therefore, nonbinding. Second, even if Schaal were binding precedent, it
would not apply here. The court in Schaal explained that “[a]n ALJ should
explore a claimant’s poor work history to determine whether [his] absence from
the workplace cannot be explained adequately (making appropriate a negative
inference), or whether [his] absence is consistent with [his] claim of disability.”
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Here, it is undisputed that Miller did not work in the years 2003, 2006, 2008, and
2009, and had only $4,000 of earnings for 2007. (R. at 34.) These years are well
before Miller’s amended alleged onset date of November 5, 2009. Moreover,
Miller’s own statements to Dr. Elliott establish that his allegedly disabling pain
did not appear until mid-2009. (R. at 244.) Therefore, the ALJ was justified in
drawing a negative credibility inference from Miller’s work history.
As explained above, Miller has not shown that the ALJ erred in applying the
Eleventh Circuit’s pain standard. Therefore, the Commissioner’s decision is due
to be AFFIRMED.
IV.

CONCLUSION
For the foregoing reasons, the decision of the Commissioner is due to be,

and hereby is, AFFIRMED. A separate final judgment will be entered.
DONE and ORDERED this the 28th day of March, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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