Pack v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION and ORDER; the decision of the Commmissioner is AFFIRMED; costs are taxed against claimant. Signed by Judge C Lynwood Smith, Jr on 11/05/13. (SPT )

FILED
2013 Nov-05 PM 02:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TERRY PACK,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. CV-12-S-3999-NE

MEMORANDUM OPINION AND ORDER
Claimant, Terry Pack, commenced this action on November 30, 2012, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying his claim for a period of disability, disability insurance, and
supplemental security income benefits. For the reasons stated herein, the court finds
that the Commissioner’s ruling is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v. Bowen,
847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th

Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that: (1) the ALJ’s finding that he is capable of performing light work
is not supported by substantial evidence; (2) the ALJ improperly evaluated his
credibility; and (3) the ALJ did not properly consider the combined effect of his
multiple impairments. Upon review of the record, the court concludes that these
contentions are without merit.
A.

Light Work
The ALJ found that claimant had the residual functional capacity to perform

light work with the following limitations:
The claimant can lift and carry twenty pounds occasionally and ten
pounds frequently. Occasionally, he can climb ramps and stairs. The
claimant is restricted from performing activities that require balancing,
kneeling, crouching, crawling and the climbing of ladders, ropes, and
scaffolds. Occasionally, he can push and pull with the right and left
lower extremities. He should avoid concentrated exposure to cold,
wetness and humidity and avoid all exposure to unprotected heights. The
claimant has the mental residual functional capacity to perform unskilled
work that is low stress. He is capable o[f] making simple work-related
decisions with few work place changes. Interaction with supervisors
should be causal.1
Claimant asserts that the ALJ’s residual functional capacity finding “conflicts

1

Tr. 16 (alteration supplied).
2

with the substantial weight of the evidence,”2 and that, instead, the ALJ should have
found him capable of performing sedentary work, at most.3 That distinction is
significant because, as an individual “closely approaching advanced age,” and with
skills that are not easily transferable to other work, claimant would be disabled under
Medical-Vocational Rule 201.10 if he were capable of only sedentary work. See 20
C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.10.4
Social Security regulations define “light” work as follows:
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). Sedentary work, in contrast,
involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although
a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties.
2

Doc. no. 8 (claimant’s brief), at 4.

3

See id. at 6 (“The Plaintiff’s limitations resulting from his degenerative disc disease and
diabetic neuropathy certainly preclude the ability to perform the demands of light work and limit
him to sedentary work, at best.”).
4

It appears undisputed that claimant was an individual “closely approaching advanced age”
at the time of his disability onset, that he had limited or less education, and that he did not have
transferable job skills.
3

Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
Plaintiff primarily relies upon the fact that he has been diagnosed with diabetic
neuropathy, lumbar degenerative disc disease, and knee pain. Of course, the mere
existence of those impairments is not enough to support a finding of disability.
Instead, the relevant consideration is the effect of claimant’s impairment, or
combination of impairments, on his ability to perform substantial gainful work
activities. See 20 C.F.R. § 404.1505 (defining a disability 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 12 months”). See also
Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (“The [Social Security] Act ‘defines
“disability” in terms of the effect a physical or mental impairment has on a person’s
ability to function in the workplace.’”) (quoting Heckler v. Campbell, 461 U.S. 458,
459-60 (1983)). The record does not contain any medical evidence actually indicating
a disabling level of functional impairments.
B.

Credibility
Claimant also argues that the ALJ improperly evaluated his credibility. To

demonstrate that pain or another subjective symptom renders him disabled, claimant
4

must “produce ‘evidence of an underlying medical condition and (1) objective medical
evidence that confirms the severity of the alleged pain arising from that condition or
(2) that the objectively determined medical condition is of such severity that it can be
reasonably expected to give rise to the alleged pain.’” Edwards v. Sullivan, 937 F. 2d
580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986)). If an ALJ discredits subjective testimony on pain, “he must articulate explicit
and adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing
Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786
F.2d 1050, 1054 (11th Cir. 1986)). Furthermore, “[a]fter considering a claimant’s
complaints of pain, the ALJ may reject them as not creditable, and that determination
will be reviewed for substantial evidence.” Marbury v. Sullivan, 957 F.2d 837, 839
(11th Cir. 1992) (citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984))
(alteration supplied). Social Security regulations also provide that the following
factors can be considered in evaluating the credibility of a claimant’s allegations of
pain:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
5

you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for
relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions
due to pain or other symptoms.
20 C.F.R. § 404.1529(3)(i)-(vii).
The ALJ found that claimant had underlying medical conditions, but that the
medical evidence did not support claimant’s allegations of “severe and chronic
limitation of function to the degree that it would preclude the performance of all
substantial gainful activity.”5

The ALJ also found that “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.”6 Those findings
were in accordance with applicable regulatory authority. The ALJ also adequately
articulated the reasons for his findings. The ALJ stated that the medical evidence did
not confirm the severity of claimant’s conditions, that claimant did not seek treatment

5

Tr. 17.

6

Id.
6

from a specialist, that he took only over-the-counter medication for his pain, that
claimant’s allegations were inconsistent with his daily activities, and that claimant had
provided inconsistent reports of his history of drug and alcohol use and mental health
history.7 Claimant asserts, nonetheless, that the ALJ’s treatment of some of the
evidence on credibility was improper.
1.

Daily Activities

Claimant first asserts that the ALJ improperly considered his daily activities.
The ALJ noted that claimant was able to drive himself to the hearing — and to drive
two to three times a week — despite his back and knee pain, diabetic neuropathy, and
visual impairments. The ALJ also noted that, despite claimant’s diabetic neuropathy,
he could still take care of his personal needs, prepare sandwiches or a light meal, and
shop for groceries. It is true that the Eleventh Circuit has disavowed the notion that
“participation in everyday activities of short duration, such as housework or fishing,
disqualifies a claimant from disability.” Lewis v. Callahan, 125 F. 3d 1436, 1441
(11th Cir. 1997). Even so, as set forth above, Social Security regulations expressly
provide that a claimant’s ability to carry out daily activities should be considered as
one factor in the disability determination process. See 20 C.F.R. § 404.1529(c)(3)(i)
(listing “daily activities” first among the factors the Social Security Administration
will consider in evaluating a claimant’s pain). Here, claimant’s daily activities were
7

Tr. 17-19.
7

not the only factor the ALJ considered in evaluating the credibility of claimant’s pain
allegations. The ALJ also considered the consistency of claimant’s allegations with
the medical evidence of record, claimant’s treatment history, and inconsistencies in
claimant’s testimony.
2.

Longitudinal medical record

Claimant also asserts that the ALJ “failed to properly credit the longitudinal
medical evidence in this case.”8 See SSR 96-7p (“In general, a longitudinal medical
record demonstrating an individual’s attempts to seek medical treatment for pain or
other symptoms and to follow that treatment once it is prescribed lends support to an
individual’s allegations of intense and persistent pain or other symptoms for the
purposes of judging the credibility of the individual’s statements.”). It is true that
claimant’s records have consistently included notations of uncontrolled diabetes.
Even so, there is no indication in the record that his diabetes actually caused disabling
functional impairments.9 Claimant then points to several occasions on which he
visited the emergency room between April and June of 2009 for treatment of back
pain and numbness in his lower extremities. A period of emergency room treatment
spanning only a few months cannot reasonably be considered “longitudinal.” See 20
C.F.R. § 404.1505 (providing that a disability finding must be based on a condition
8

Doc. no. 8, at 9.

9

See supra, Section A.
8

that “has lasted or can be expected to last for a continuous period of not less than 12
months”).
3.

Treatment history

Next, claimant argues that it was improper for the ALJ to consider his failure
to seek more aggressive treatment as a factor in evaluating his credibility, because he
could not afford any further treatment. Plaintiff testified during the administrative
hearing that his doctor recommended an MRI to assess his back condition, but he
could not afford to have the test because he did not have medical insurance.10 The
ALJ considered, in evaluating claimant’s subjective impairments, that although
claimant alleged his back and leg pain were disabling conditions, he reported to the
consultative examiner that he never had any medical assessment of his back condition
other than emergency room x-rays, and he had never received treatment from a
specialist.11 The ALJ also noted that claimant had not seen a regular doctor for his
diabetes in more than eight months.12
It is well settled that “poverty excuses [a claimant’s] noncompliance” with
medical treatment. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)
(alteration supplied). Thus, “while a remediable or controllable medical condition is
generally not disabling, when a ‘claimant cannot afford the prescribed treatment and
10

Tr. 40.

11

Tr. 17.

12

Tr. 18.
9

can find no way to obtain it, the condition that is disabling in fact continues to be
disabling in law.’” Id. (quoting Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986))
(emphasis supplied). The Eleventh Circuit has also held that “when an ALJ relies on
noncompliance as the sole ground for the denial of disability benefits, and the record
contains evidence showing that the claimant is financially unable to comply with
prescribed treatment, the ALJ is required to determine whether the claimant was able
to afford the prescribed treatment.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th
Cir. 2003) (citing Dawkins, 848 F.2d at 1214) (emphasis supplied).
Here, there is no evidence regarding whether claimant attempted to obtain care
despite his lack of medical insurance and inability to afford treatment. Claimant did
not testify about that subject during the administrative hearing, and the ALJ did not
ask any questions or request any additional records to explore claimant’s efforts to
obtain treatment. Even so, it is clear that claimant’s failure to seek more aggressive
treatment was not the sole ground for the ALJ’s decision not to fully credit claimant’s
subjective complaints. The ALJ also relied upon the inconsistency of claimant’s
complaints with the medical evidence, claimant’s daily activities, claimant’s past work
history since the onset of his impairments, and other inconsistencies in claimant’s
testimony.

Thus, the ALJ’s consideration of claimant’s failure to seek more

aggressive treatment was, if anything, harmless error. See Beegle v. Social Security

10

Administration, Commissioner, 482 F. App’x 483, 487 (11th Cir. 2012) (“[T]he ALJ
must consider evidence showing that the claimant is unable to afford medical care
before denying disability insurance benefits based upon the claimant’s
non-compliance with such care. . . . Nonetheless, reversible error does not appear
where the ALJ primarily based her decision on factors other than non-compliance, and
where the claimant’s non-compliance was not a significant basis for the ALJ’s denial
of disability insurance benefits.”) (citing Ellison, 355 F.3d at 1275-76) (alterations
supplied).
C.

Combined Effect of Impairments
Claimant’s final argument is that the ALJ did not properly the combined effect

of all of his impairments, particularly his anxiety. Social Security regulations state
the following with regard to the Commissioner’s duty in evaluating multiple
impairments:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard
to whether any such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe combination of
impairments, the combined impact of the impairments will be considered
throughout the disability determination process. If we do not find that
you have a medically severe combination of impairments, we will
determine that you are not disabled.
20 C.F.R. § 404.1523. See also 20 C.F.R. §§ 404.1545(e), 416.945(e) (stating that,
11

when the claimant has any severe impairment, the ALJ is required to assess the
limiting effects of all of the claimant’s impairments — including those that are not
severe — in determining the claimant’s residual functional capacity).
Here, even though the ALJ did not find claimant’s anxiety to be a severe
impairment, he did discuss the evidence of claimant’s anxiety symptoms, including
the records of an emergency room visit and the report of Dr. Jon Rogers, the
consultative psychological examiner.13 Moreover, the ALJ’s residual functional
capacity finding included limitations to low-stress work with only casual interaction
with supervisors, few work place changes, and simple work related decisions.14 Those
limitations indicate that the ALJ took claimant’s anxiety symptoms into consideration.
Finally, the ALJ explicitly stated that claimant did not have an impairment, or
combination of impairments, that met or equaled one of the listed impairments.15 The
ALJ also stated that he had considered “all symptoms” before reaching his residual
functional capacity finding, and that claimant’s subjective complaints were not
supported by the record as a whole.16 These statements are sufficient to indicate that
the ALJ properly considered all of claimant’s impairments. See Wilson v. Barnhart,
284 F.3d 1219, 1224 (11th Cir. 2002); Jones v. Dept. of Health and Human Services,
13

Tr. 14, 15.

14

Tr. 16.

15

Tr. 15.

16

Tr. 16, 19.
12

941 F.2d 1529, 1533 (11th Cir. 1991).
D.

Conclusion and Order
Based on the foregoing, the court concludes the ALJ’s decision was based upon

substantial evidence and in accordance with applicable legal standards. Accordingly,
the decision of the Commissioner is AFFIRMED. Costs are taxed against claimant.
The Clerk is directed to close this file.
DONE this 5th day of November, 2013.

______________________________
United States District Judge

13