Felkins v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/11/2014. (PSM)

FILED
2014 Aug-11 PM 12:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Civil Action Number
5:12-cv-02812-AKK

MEMORANDUM OPINION
Plaintiff Anna Felkins brings this action pursuant to Section 205(g) of the
Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the adverse
decision of the Administrative Law Judge (“ALJ”), which has become the final
decision of the Commissioner of the Social Security Administration (“SSA”). This
court finds that the ALJ’s decision is supported by substantial evidence and he
applied the correct legal standards. Thus, the court will AFFIRM the decision
denying benefits.
I. Procedural History
Felkins protectively filed her application for Title II disability insurance
benefits on February 20, 2008, alleging a disability onset date of August 20, 2005,

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(R. 124), due to the effects of chronic pain, reflex sympathetic dystrophy, shoulder
impingement and high blood pressure, (R. 116).

After the SSA denied her

application on July 17, 2008, (R. 68-73), Felkins requested a hearing, (R. 77-78),
and amended her alleged onset date to January 1, 2008, (R. 162-164). At the time
of the hearing on May 4, 2010, Felkins was forty-eight years old and had a high
school education with one year of college. (R. 42). Felkins had past relevant
medium, unskilled, work as a rural mail carrier. (R. 29). Felkins has not engaged
in substantial gainful activity since January 1, 2008, the amended alleged onset
date. (R. 16).
The ALJ denied Felkins’s claim on September 30, 2010, (R. 21–38), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on June 28, 2012, (R. 1-6). Felkins then filed this action pursuant
to section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if

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supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
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 can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). A physical or
mental impairment is “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f).

Specifically, the Commissioner must determine in

sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the
Secretary;

(4)

whether the claimant is unable to perform his or her past work;
and

(5)

whether the claimant is unable to perform any work in the
national economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).

“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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).

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Lastly, where, as here, a plaintiff alleges disability because of pain, he must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
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.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While 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. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir.1987) ].
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted). Moreover, “[a] claimant’s subjective testimony supported
by medical evidence that satisfies the pain standard is itself sufficient to support a
finding of disability.” Holt, 921 F.2d at 1223. Therefore, if a claimant testifies to
1

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir.
1985).
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disabling pain and satisfies the three part pain standard, the ALJ must find a
disability unless the ALJ properly discredits the claimant’s testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony,
then the [ALJ], as a matter of law, has accepted that testimony as true.
Implicit in this rule is the requirement that such articulation of reasons
by the [ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially determined
that Felkins had not engaged in substantial gainful activity since the alleged onset
of her disability, and therefore met Step One.

(R. 16).

Next, the ALJ

acknowledged that Felkins’s severe impairments of reflex sympathetic dystrophy
on the right and degenerative disc disease of the cervical spine met Step Two. Id.
The ALJ then proceeded to the next step and found that Felkins did not satisfy Step
Three since she “does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments.” (R. 18). Although the

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ALJ answered Step Three in the negative, consistent with the law, see McDaniel,
800 F.2d at 1030, the ALJ proceeded to Step Four, where he determined that
Felkins “has the residual functional capacity [“RFC”] to perform light work as
defined in 20 CFR 404.1567(b). [Felkins] can stand and walk for six hours in an
eight-hour workday and sit for six hours in an eight-hour workday. She can
frequently use her right upper extremity to push and pull, and she can occasionally
reach overhead and in all directions with the right upper extremity, but there is no
limitation of the left upper extremity. [She] can occasionally climb ramps and
stairs, stoop, crouch and balance. She cannot climb ladders, ropes or scaffolds.”
(R. 18). Based on this assessment of Felkins’s RFC, the ALJ determined Felkins
was unable to perform her past relevant work. (R. 29). Lastly, in Step Five, the
ALJ considered Felkins’s age, education, work experience, and RFC, and
determined, based on the Medical Vocational Guidelines found in 20 C.F.R. Part
404, Subpart P, Appendix 2, and on the testimony of a vocational expert (“VE”),
that “there are jobs that exist in significant numbers in the national economy that
[Felkins] can perform.” (Id.). Because the ALJ answered Step Five in the negative,
he determined that Felkins was not disabled. (R. 30).
V. Analysis
The court now turns to Felkins’s sole contention of error that the ALJ
improperly applied the pain standard. At issue is the ALJ finding that Felkins’s

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“medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, [her] statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible.” (R. 19). For the reasons
state below, the court finds that the ALJ’s decision to discredit Felkins’s testimony
is supported by substantial evidence.
Consistent with the law, the ALJ articulated two reasons for rejecting
Felkins’s pain testimony.

First, the ALJ noted the existence of numerous

inconsistencies in the record that detracted from Felkins’s credibility.

For

example, the ALJ pointed out that Felkins testified that her pain had intensified
since January 2008, (R. 44, 49), but also that she has had a consistent level of pain
since 2005, (R. 52). Next, the ALJ noted that Felkins “alleged she could not bathe
her back, get out of the tub, button clothing or lift a blouse over her head without
assistance … [h]owever, [Felkins also] testified … she could take care of her
personal needs and dress independently…” (R. 27). Additional inconsistencies
noted by the ALJ included Felkins stating she experienced no side effects from her
medication, (R. 121), yet later claimed that her medications made her “sleepy,” (R.
137),2 that she cooked meals – such as hamburger helper, baked chicken and
sandwiches – five to six days a week and spent three to four hours a day doing
housework, (R. 139), but later testified that she only spent “30 minutes, 45

2

As the ALJ noted, Felkins also did not testify that her medications made her sleepy. (R. 27).
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minute[, s]omething like that” cooking and cleaning daily, (R. 56), and that Felkins
reported that she could no longer drive “at all,” (R. 151, 154), yet testified that she
drove to the doctor’s office every four months, (R. 42). Based on this record, the
court finds that the ALJ properly found that Felkins’s multitude of conflicting
statements detracted from Felkins’s credibility. See 20 C.F.R. § 404.1529(c)(4)
(The Commissioner “consider[s] 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.”).
Next, the ALJ rejected Felkins’s pain testimony because the ALJ reasoned
that medical evidence in the record conflicted with Felkins’s subjective allegations.
To support this finding the ALJ focused first on Felkins’s treatment history, and
noted initially that the year lapse from July 2008 to July 2009 in Felkins’s
treatment with Dr. Sheri Swader, (R. 27), diminished Felkins’s credibility. This
finding is not in error because “[a]n ALJ may rely on gaps in the medical record to
draw the inference that a claimant would have secured more treatment had the
impairment been as severe as alleged.” Volley v. Astrue, CIV.A. 1:07-CV-0138A,
2008 WL 822192, at *21 (N.D. Ga. Mar. 24, 2008) (citations omitted). Next, the
ALJ focused on Felkins’s conservative treatment, noting
Dr. [Thomas W.] Montgomery noted in January 2008 that [Felkins]
was taking more than the prescribed amount of Lortab, but he did not
increase her dosage, but rather told [Felkins] to keep taking it only at
the rate of one-half to one pill per day. This record indicates Dr.
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Montgomery did not find [Felkins’s] impairment warranted more
medication for pain. [R. 271.]
(R. 26). This finding is also not in error because “conservative medical treatment
… tends to negate [Felkins’s] claim of disability.” Sheldon v. Astrue, 268 Fed.
App’x 871, 872 (11th Cir. 2008) (citation omitted). As his third reason, the ALJ
focused on the treatment history that showed improvement in Felkins’s condition:
Despite [Felkins’s] allegations of disabling pain, the record shows she
told Dr. Swader on July 1, 2008 that her pain had improved to the
extent she was taking only one-quarter of a Lortab pill per day. [R.
291.] … She also reported that she was doing some stretching
exercises that helped. She denied weakness and radicular symptoms
….
(R. 27).3 Finally, the ALJ also gave great weight to consultative examiner Dr. Will
Crouch’s report4 that Felkins could frequently lift/carry 10 pounds, occasionally
lift/carry 20 pounds, sit for eight hours in a workday, stand for four hours in a
workday, and walk for two hours in a workday, (R. 371-372). (R. 28). As the ALJ
correctly noted, Dr. Crouch’s assessment directly contradicts Felkins’s allegations
of disabling pain.5

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The ALJ also stated that Felkins “reported improvement in her pain to Dr. Montgomery in August 2008.” Id.
However, Dr. Montgomery actually stated that Felkins “had been doing relative well on her shoulder but not lately”
but noted that Felkins hadn’t “been taking much Lortab for” the pain. (R. 330). Regardless, this mischaracterization
does not negate the other substantial evidence supporting the ALJ’s determination.
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Felkins does not challenge the ALJ’s decision to give Dr. Crouch’s findings great weight, and the court finds that
this decision was supported by substantial evidence.
5
Notwithstanding Dr. Crouch’s assessment, “in order to give [Felkins] the benefit of the doubt regarding her
complaints,” (R. 28-29), the ALJ found Felkins had a more restrictive RFC than indicated in Dr. Crouch’s opinion.
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Ultimately, contrary to Delay’s contentions, evidence supports the ALJ’s
decision to discredit Felkins’s allegations.6 In addition to the inconsistencies in
Felkins’s allegations, the conflicting medical evidence in the record provided
further support for the ALJ’s credibility determination. Therefore, this court will
not “substitute [its] judgment for that of the [Commissioner].” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
VI. Conclusion
Based on the foregoing, this court concludes that the ALJ’s determination
that Felkins is not disabled is supported by substantial evidence and that the ALJ
applied proper legal standards in reaching this determination.

Therefore, the

Commissioner’s final decision is AFFIRMED. The court will enter a separate
order to that effect simultaneously.
DONE the 11th day of August 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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Felkins does not address the reasons cited by the ALJ to discredit her pain testimony. Instead, Felkins summarizes
the medical evidence that supports her subjective allegations and the limitations what would be imposed by those
allegations. See generally doc. 6. These contentions are unavailing, however, because this court does “not decide
the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Moreover, “[e]ven if … the evidence preponderates against the
[Commissioner’s] decision, [the court] must affirm if the decision is supported by substantial evidence.” Id.
(citations omitted).
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