King v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/11/2013. (JLC)

FILED
2013 Sep-11 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

)
)
)
)
) Case No.: 5:11-CV-4277-VEH
)
)
)
)
)
)
)

MEMORANDUM OPINION1
Plaintiff Charlotte King (“Ms. King”) brings this action pursuant to 42 U.S.C.
§ 1382c(3)(A), § 1614(a)(3)(A) of the Social Security Act (the “Act”). She seeks
review of a final adverse decision of the Commissioner of the Social Security
Administration (hereinafter “Commissioner” or “Secretary”), who denied her

1

The court notes that, on February 14, 2013, Carolyn W. Colvin was named the Acting
Commissioner of the Social Security Administration. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”). 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 officer 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.

application for Supplemental Security Income (“SSI”).2 Ms. King has timely pursued
and exhausted her administrative remedies available before the Commissioner. Thus,
the case is ripe for review pursuant to 42 U.S.C. § 405(g), § 205(g) of the Act.3
FACTUAL AND PROCEDURAL HISTORY
Ms. King protectively applied for SSI on May 5, 2009. (Tr. 13, 74). In her
application, Ms. King maintained that she has been disabled since March 21, 1997,
based upon a primary diagnosis of lumber degenerative disc disease and a secondary
diagnosis of diabetes with peripheral neuropathy. (Tr. 74). The SSI claim was denied
initially on July 27, 2009. (Tr. 13, 74).
Ms. King timely made a request for a hearing before an Administrative Law
Judge (“ALJ”) that was received by the Social Security Administration on August 10,
2009. (Tr. 90-92). Ms. King was a 48-year-old female at the time of her hearing,
which took place on April 25, 2011. (Tr. 24, 29).
During the hearing, the ALJ confirmed that Ms. King had amended her
disability onset date to coincide with the date of her SSI application. (Tr. 28).
2

In general, the legal standards applied are the same regardless of whether a claimant seeks
SSI or Disability Insurance Benefits (“DIB”) under the Act. 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

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

Testimony elicited during the hearing substantiated Ms. King’s prior relevant work
experience as a cutter, but revealed no other gainfully employed positions. (Tr. 53).
Subsequent to the hearing, the ALJ concluded Ms. King was not disabled as defined
by the Act and denied her SSI application on June 10, 2011. (Tr. 13-20).
Ms. King filed a request for review of the ALJ’s decision on August 9, 2011.
(Tr. 5). On October 20, 2011, the Appeals Council denied review, which resulted in
the final decision of the Commissioner being the ALJ’s disability determination that
was adverse to Ms. King. (Tr. 1).
On December 20, 2011, Ms. King filed her complaint with this court asking for
review of the ALJ’s decision. (Doc. 1). On June 20, 2012, Ms. King filed a brief
(Doc. 9) in support of her appeal, and on July 20, 2012, the Commissioner followed
with her responsive brief. (Doc. 10). Ms. King chose not to file a reply brief. This
court has carefully considered the record, and for the reasons stated below, affirms
the Commissioner’s denial of benefits.
STANDARD OF REVIEW
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.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
3

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). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. 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, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Act and the
Regulations promulgated thereunder.4 The Regulations define “disabled” as “the

4

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts 400 to 499,
current through July 11, 2013.
4

inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(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 [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
5

Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; 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. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found Ms. King has not engaged in substantial gainful activity since
the date of her SSI application, i.e., May 5, 2009. (Tr. 15 ¶ 1). Thus, the claimant
met step one of the five-step test. 20 C.F.R. § 404.1520(b).
Under step two, the ALJ decided that “[t]he claimant has the following severe
impairments: degenerative disk disease and arthritis.” (Tr. 15 ¶ 2 (citations
omitted)).5 Accordingly, the ALJ concluded that Ms. King satisfied the second step
of the sequential disability evaluative process. 20 C.F.R. § 404.1520(c).
At step three, the ALJ determined that Ms. King does not have an impairment
or a group of impairments that meets or medically equals one of the listed
5

The ALJ also discussed Ms. King’s alleged impairments of hypertension, diabetes, nerve
pain, vertigo, asthma, high cholesterol, acid reflux, and allergies, but found either no confirmation
of the existence of such a medically determinable impairment or “no indication in the medical
evidence of record that these impairments pose any significant limitations, either singularly or in
combination, in the claimant’s ability to perform work related activities.” (Tr. 16). The ALJ further
addressed Ms. King’s diagnosis of obesity consistent with SSR 02-01p. (Tr. 16).
6

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17 ¶ 3). Ms. King
does not challenge this determination on appeal.
The ALJ then evaluated Ms. King’s residual functional capacity (“RFC”) at
step four, and found:
[T]he claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except the claimant can occasionally
lift/carry 20 and 10 pounds frequently. She can occasionally climb,
balance, stoop, kneel, crouch, and crawl. The claimant can occasionally
climb ramps and stairs but never climb ladders, ropes, and scaffolds.
She should avoid concentrated exposure to cold, heat, and vibrations.
She should avoid all exposure to unprotected heights and dangerous
machinery.
(Tr. 18 ¶ 4).6 Further, relying upon testimony from a vocational expert, the ALJ
found that Ms. King is capable of performing her past relevant worker as a cutter.
(Tr. 20 ¶ 5). Additional jobs falling within Ms. King’s RFC include positions as a
wire worker, bench assembler, and inspector. (Tr. 20).
6

The Regulations define light work as:

(b) Light work. Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also
do sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) (current through September 5, 2013).

7

Accordingly, the ALJ concluded Ms. King “has not been under a disability, as
defined by the Social Security Act, since May 5, 2009, . . . .” (Tr. 20 ¶ 6), and denied
her SSI claim. (Tr. 20).
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.” (citing Gibson v. Heckler,
779 F.2d 619, 622 (11th Cir. 1986))). 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

8

1103, 1106 (5th Cir. 1980)).7
In this appeal, Ms. King raises only one issue: “Whether the ALJ failed to
properly evaluate the credibility of the Plaintiff’s testimony of disabling symptoms
consistent with the Eleventh Circuit Pain Standard.” (Doc. 9 at 5). As Ms. King
more specifically asserts:
In light of the longitudinal medical history documenting the
Plaintiff’s complaints of and treatment for her symptoms, the ALJ’s
conclusions are irrational and wholly inconsistent with the record and
are not supported by substantial evidence. Therefore, the ALJ failed to
satisfy the requirements of Hale.
(Doc. 9 at 8).
I.

THE ALJ EVALUATED THE CREDIBILITY OF MS. KING’S
SUBJECTIVE COMPLAINTS OF DISABLING PAIN UNDER THE
APPROPRIATE LEGAL STANDARD, AND THE DECISION IS
SUPPORTED BY SUBSTANTIAL EVIDENCE.8
In order to satisfy the Eleventh Circuit pain standard, Ms. King must prove

“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
7

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

The following framework, analysis, and disposition persuasively flow from the
undersigned’s decision affirming the Commissioner in Brewer v. Astrue, No. 5:10-CV-0341-VEH,
(Docs. 13, 14) (N.D. Ala. Dec. 7, 2010).
9

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)).
Further, “[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).
In this case, the ALJ determined that Ms. King had not met her pain standard
burden. More specifically, the ALJ explained:
After careful consideration of the evidence, the undersigned finds 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 that they are inconsistent
with the above residual functional capacity assessment. The
claimant[’s] allegations and contentions regarding the nature and
severity of the impairment-related symptoms and functional limitations
are found to be only partially credible.
(Tr. 19).
In Wilson v. Barnhart, the Eleventh Circuit reversed the district court’s
decision that the ALJ improperly applied the pain standard and found that the ALJ’s
decision was supported by substantial evidence because “the ALJ made a reasonable
decision to reject Wilson’s subjective testimony, articulating, in detail, the contrary
evidence as his reasons for doing so.” Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th
10

Cir. 2002). As the Eleventh Circuit discussed the ALJ’s adequate credibility findings
in Wilson:
Moreover, the ALJ specifically enunciated the following findings:
On or before December 31, 1987, [the date last insured,] there is
no objective clinical evidence of a condition which could reasonably be
expected to produce the level of pain, lack of balance, numbness,
weakness, lack of bowel control, fatigue, frequent need to eat, frequent
need for bowel movements, headaches, need for additional rest during
the day, or other symptoms which [Wilson] alleges precluded him from
working. Such allegations are also inconsistent with activities of daily
living, limited use of pain medication and effectiveness of treatment,
and therefore are not found credible to the extent claimant was
precluded from working.
Substantial evidence in the record supports the ALJ’s finding, as
the medical and other evidence simply was not consistent with Wilson’s
alleged disabling pain. The evidence shows that from December 1986,
a year prior to Wilson’s date last insured, through 1992, Wilson made
visits for regular vitamin B12 shots, received treatment for a rash, had
moles removed, and had an isolated instance of testicular enlargement.
It does not appear that Wilson complained of pain associated with the
injuries received from his accident any time past his date last insured.
Thus, Wilson cannot establish that he continuously met the pain
standard from on or before December 31, 1987, his date last insured, to
within one year of his application date.
Id., 284 F.3d at 1226 (emphasis added).
Akin to the standard set forth in Wilson, the ALJ’s reasoning behind his partial
negative credibility finding in this instance is expressly explained in his decision and
supported by substantial evidence contained in the record. See Tieniber v. Heckler,

11

720 F.2d 1251, 1255 (11th Cir. 1983) (“Thus, where proof of a disability is based
upon subjective evidence and a credibility determination is, therefore, a critical factor
in the Secretary’s decision, the ALJ must either explicitly discredit such testimony or
the implication must be so clear as to amount to a specific credibility finding.”).
For example, the ALJ observed the following inconsistencies in Ms. King’s
subjective allegations of disabling pain:
She [testified that she] has pain because of her diabetes but the most
troubling pain is because of her arthritis in her joints. She has daily pain
that the rates as a 7 with pain medication and an 8 without. She states
that Neurotic really did not help. She is able to text but it hurts her
hands. She does not shop for groceries. If she cooks a big meal, she has
to start early because she requires many breaks. She does the dishes and
laundry and her husband helps her to change the sheets. She gets up at
5:00 am to get her son ready for school and she takes care of the baby.
While she retires for the night around 10:00 pm, she does not sleep
throughout the night. She estimates that she can stand for about 5
minutes, sit about 10-15 minutes, and walk about 2-3 minutes. . . .
Examination of the knees revealed no effusion and full range of motion
with some tenderness. She has some tenderness of the lower lumbar
paraspinous muscles and in the sacroiliac joints bilaterally, but she has
normal range of motion of the hips and negative straight leg rising. She
is noted to walk with short steps and her gait is somewhat awkward, but
she ambulates without assistive devices. . . . The claimant’s activities
of daily living consist of caring for her personal needs, cooking,
cleaning, doing laundry, driving, . . . , watching television, talking on the
phone, chatting on the computer, texting and attending church. While
the undersigned finds that, the claimant has some limitations relative to
her arthritis and degenerative [disease] none is greater than described in
the residual functional capacity as determined above. The undersigned
notes that the record does not contain any opinions from treating or
12

examining physicians indicating that the claimant is disabled or even has
limitations greater than those determined in this decision. However,
given the claimant’s allegations of totally disabling symptoms, one
might expect to see some indication in the treatment records of
restrictions placed on the claimant by a treating doctor. Yet a review of
the record in this case reveals no restrictions recommended by any
treating doctor.
(Tr. 18, 19 (emphasis added)).
Therefore, Ms. King’s position that the ALJ improperly evaluated her under
the Eleventh Circuit pain standard is not well-taken. Instead, the ALJ appropriately
contrasted Ms. King’s alleged daily pain level range of 7-8 with (i) her activities of
daily living, including beginning her day at 5:00 a.m., ending it 17 hours later at
10:00 p.m., caring for a baby, texting, using the computer, and doing a variety of
physically demanding household chores; and (ii) the absence of any doctor-ordered
restrictions pertaining to the severity of pain associated with Ms. King’s diabetic and
degenerative conditions, such as prescribing the use of an ambulatory device to assist
her with her walking, limiting her periods of standing, or requiring her to take daily
breaks from physical activities. Cf. Harwell v. Heckler, 735 F.2d 1292, 1293 (11th
Cir. 1984) (affirming credibility finding adverse to claimant in light of “record
[which] showe[d] that the ALJ properly considered a variety of factors, including the
claimant’s use of pain-killers and his daily activities, in making the finding about
pain.”) (emphasis added); Werner v. Astrue, 421 Fed. App’x 935, 938 (11th Cir.
13

2011) (“Werner’s descriptions of his pain were inconsistent with reports from his
treating and examining physicians, which showed that he had a full range of motion
in his arms and legs and was capable of doing light work.); Werner, 421 Fed. App’x
at 938-39 (“His description of his pain was also inconsistent with his own testimony
concerning his daily activities.”).
Alternatively, to the extent that the ALJ did not effectively discredit Ms. King’s
subjective complaints, such error was harmless because substantial evidence
otherwise exists in the record to support the ALJ’s credibility assessment of her and
his related determination that her subjective complaints about her pain do not render
her disabled within the meaning of the Act. Cf. Caldwell v. Barnhart, 261 Fed.
App’x 188, 190 (11th Cir. 2008) (“When, however, an incorrect application of the
regulations results in harmless error because the correct application would not
contradict the ALJ’s ultimate findings, the ALJ’s decision will stand.” (citing Diorio
v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983))). For example, while the record
substantiates that Ms. King saw R. Stacy Tapscott, M.D. (“Dr. Tapscott”) at the
Decatur Orthopaedic Clinic for knee and lower back pain in March and April of 2007
(Tr. 202), that she received a bilateral corticosteroid injection for her knee pain on
April 26, 2007 (Tr. 201), and that she was to return “as needed” to Dr. Tapscott (Tr.
201), the record lacks any evidence that Dr. Tapscott ever saw her again, much less
14

that the physician provided her with any further pain treatments.
Additionally, a series of treatment records from the Community Free Clinic of
Decatur-Morgan County spanning from April 17, 2008, to January 15, 2009, reflect
that Ms. King had no complaints (Tr. 216, 214, 212), even though, as of April 28,
2009, and one week before she filed for SSI, Ms. King reported that “all extremities
feel like muscles being pulled out[.]” (Tr. 208). In sum, Ms. King’s sporadic medical
history of reported pain and related treatment sought for such purportedly disabling
subjective symptoms fail to substantiate her longitudinal-based challenge of the
ALJ’s application of the Eleventh Circuit pain standard.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision is
supported by substantial evidence and applies the proper legal standards.
Accordingly, the decision of the Commissioner will be affirmed by separate order.
DONE and ORDERED this the 11th day of September, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

15