Gamble v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION, as set out. Signed by Judge Sharon Lovelace Blackburn on 5/5/15. (CTS, )

FILED
2015 May-05 AM 09:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KEVIN EUGENE GAMBLE,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Case No. 5:13-CV-01959-SLB

MEMORANDUM OPINION
Plaintiff Kevin Eugene Gamble brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of the final decision of the Commissioner of Social Security
denying his application for disability insurance benefits [“DIB”] and supplemental
security income [“SSI”]. After review of the record, the parties’ submissions, and the
relevant law, the court is of the opinion that the Commissioner’s decision is due to be
affirmed.
I. PROCEDURAL HISTORY
Plaintiff filed an application for DIB and SSI on September 8, 2010, alleging a
disability onset date of August 1, 2010. (R. 67-68, 118-125.)1 Plaintiff’s application was
denied by the Social Security Administration on January 6, 2011. (R. 69-73.) Thereafter,
plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was
1

Reference to a document number, (“Doc. __”), refers to the number assigned to
each document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as (“R.__”).
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held on March 22, 2012. (R. 36-66, 114.) After the hearing, the ALJ found that plaintiff
was capable of making a vocational adjustment to other occupations, such as assembler,
packer, and production helper. (R. 31.)

In light of these findings, the ALJ denied

plaintiff’s request for DIB and SSI on May 18, 2012. (R. 32.)
On July 10, 2012, plaintiff petitioned the Appeals Council to review the ALJ’s
decision, (R. 17), and on August 20, 2013, the Appeals Council denied Plaintiff’s request
for review, thereby rendering the ALJ’s decision the final decision of the Commissioner
of Social Security, (R. 1). Following denial of review by the Appeals Council, plaintiff
filed an appeal in this court on October 21, 2013. (Doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court “is limited to
an inquiry into whether there is substantial evidence to support the findings of the
Commissioner, and whether the correct legal standards were applied.” Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions
of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that
of the [Commissioner]; rather the court must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)) (internal quotations and other citation omitted). “The
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Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin, 894 F.2d at 1529; Allen v. Bowen, 816 F.2d 600,
602 (11th Cir. 1987)). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius,
936 F.2d at 1145. “[N]o . . . presumption of validity attaches to the [Commissioner’s]
conclusions of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
III. DISCUSSION
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential
evaluation to determine whether a claimant is eligible for DIB or SSI.2 See 20 C.F.R.
§ 404.1520(a)(1)-(2); Bowen v. City of New York, 476 U.S. 467, 470 (1986). For the
purposes of this evaluation, the meaning of disability is the “inability to engage in any
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The Regulations state:

The sequential evaluation process is a series of five “steps” that we
follow in a set order. . . . If we can find that you are disabled or not disabled
at a step, we make our determination or decision and do not go on to the next
step. If we cannot find that you are disabled or not disabled at a step, we go on
to the next step. Before we go from step three to step four, we assess your
residual functional capacity. . . . We use this residual functional capacity
assessment at both step four and step five when we evaluate your claim at
these steps.
20 C.F.R. § 404.1520(a)(4).
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substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42 U.S.C. § 416(i)(1); 42 U.S.C.
§ 423(d)(1)(A). The specific steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987).3 If the
claimant is engaged in substantial gainful activity, the Commissioner will find that the
claimant is not disabled, regardless of the claimant’s medical condition or her age,
education, and work experience. 20 C.F.R. § 404.1520(b); § 416.920(b). “Under the first
step, the claimant has the burden to show that she is not currently engaged in substantial
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The Regulations define “substantial gainful activity”:
(a) Substantial work activity. Substantial work activity is
work activity that involves doing significant physical or
mental activities. Your work may be substantial even if
it is done on a part-time basis or if you do less, get paid
less, or have less responsibility than when you worked
before.
(b) Gainful work activity. Gainful work activity is work
activity that you do for pay or profit. Work activity is
gainful if it is the kind of work usually done for pay or
profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider
activities like taking care of yourself, household tasks,
hobbies, therapy, school attendance, club activities, or
social programs to be substantial gainful activity.

20 C.F.R. § 404.1572.
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gainful activity.” Reynolds-Buckley v. Comm’r of Soc. Sec., 457 F. App’x 862, 863 (11th
Cir. 2012).4
The ALJ determined that plaintiff had not engaged in substantial gainful activity
since his alleged onset date of August 1, 2010. (R. 23.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner
must next determine whether the claimant suffers from a severe impairment or
combination of impairments that significantly limits the claimant’s physical or mental
ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c); § 416.920(a)(4)(ii),
(c). “[A] ‘physical or mental impairment’ is an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3);
§ 1382c(a)(3)(D). The regulations provide: “[I]f you do not have any impairment or
combination of impairments which significantly limits your physical or mental ability to
do basic work activities, we will find that you do not have a severe impairment and are,
therefore, not disabled. We will not consider your age, education, and work experience.”
20 C.F.R. § 404.1520(c); § 416.920(c).

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Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions
are not considered binding precedent, but they may be cited as persuasive authority.”
11th Cir. R. 36-2 (emphasis added).
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An impairment is “severe” if it “significantly limits [a] claimant’s physical or
mental ability to do basic work activities.”5 Crayton v. Callahan, 120 F.3d 1217, 1219
(11th Cir. 1997); 20 C.F.R. § 404.1520(c); 20 C.F.R. § 404.1521(a). When an impairment
“is a slight abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience,” it will be classified as non-severe. Brady v. Heckler, 724
F.2d 914, 920 (11th Cir. 1984); see also SSR 85-28, 1985 WL 56856 (1985). A claimant
may be found disabled based on a combination of impairments even though none of the
individual impairments alone are disabling. Walker v. Bowen, 826 F.2d 996, 1001 (11th
Cir. 1987); see also 20 C.F.R. § 404.1523; § 416.923. A claimant has the burden to show
that she has a severe impairment or combination of impairments. Reynolds-Buckley, 457
F. App’x at 863.
The ALJ found that plaintiff had severe impairments of “degenerative disc disease
(DDD) with low back pain, history of head contusion, mild depression and alcohol
dependence.” (R. 23.)

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Basic work activities include:
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) [c]apacities
for seeing, hearing, and speaking; (3) [u]nderstanding, carrying
out and remembering simply instructions; (4) [u]se of judgment;
(5) [r]esponding appropriately to supervision, co-workers and
usual work situations; and (6) [d]ealing with changes in a
routine work setting.

20 C.F.R. § 404.1521(b)(1)-(6).
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3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the duration requirement and whether it is
equivalent to any one of the listed impairments. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e);
§ 404.1525; § 404.1526. Listed impairments are so severe that they prevent an individual
from performing substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see
20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant’s impairment
meets or equals a Listing, the Commissioner must find the claimant disabled, regardless
of the claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d);
§ 416.920(d). The claimant has the burden of proving that her impairment meets or equals
the criteria contained in one of the Listings. Reynolds-Buckley, 457 F. App’x. at 863.
The ALJ found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled a Listing. (R. 24.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment does not meet or equal the criteria of a Listing, the claimant must
prove that her impairment prevents her from performing her past relevant work. See 20
C.F.R. § 404.1520(a)(4)(iv), (f); § 416.920(a)(4)(iv), (f). At step four, the Commissioner
“will first compare [the Commissioner’s] assessment of [the claimant’s] residual
functional capacity [“RFC”] with the physical and mental demands of [the claimant’s]
past relevant work.” 20 C.F.R. § 404.1560(b); § 416.960(b). “Past relevant work is work
that [the claimant has] done within the past 15 years, that was substantial gainful activity,
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and that lasted long enough for [her] to learn to do it.” 20 C.F.R. § 404.1560(b)(1);
§ 416.960(b)(1). If the claimant is capable of performing her past relevant work, the
Commissioner will find that she is not disabled.

20 C.F.R. § 404.1560(b)(3);

§ 416.920(f). The claimant bears the burden of establishing that the impairment prevents
her from performing past work. Reynolds-Buckley, 457 F. App’x at 863.
The ALJ found that plaintiff has a high school education and was 50 years old,
which is defined as an individual closely approaching advanced age, on the alleged onset
date. (R. 30.) The ALJ made the following findings regarding plaintiff’s RFC:
[T]he claimant has the residual functional capacity to perform medium
work . . . that is limited to: lifting/carrying up to 50 pounds occasionally, up
to 25 pounds frequently, standing/walking up to or about six hours in an
eight-hour day with normal breaks, sitting up to or about six hours in an
eight-hour day with normal breaks, unlimited pushing and pulling, frequent
climbing ramps and stairs, balancing, stooping, kneeling, crouching and
crawling, no climbing ladders, ropes, or scaffolds, and avoidance of
exposure to all workplace hazards such as moving machinery and
unprotected heights. The claimant can understand, remember and carry out
short, simple directions, can make judgments on simple work related
decisions, and can adapt to gradual, infrequent workplace changes.
(R. 26.) The ALJ concluded that plaintiff is unable to perform his past relevant work as an
ironworker and glazier. (R. 30.)
5. Other Work in the National Economy
If the claimant establishes that he is unable to perform his past relevant work, the
Commissioner must show that the claimant—in light of his RFC, age, education, and
work experience—is capable of performing other work that exists in substantial numbers

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in the national economy. Reynolds-Buckley, 457 F. App’x at 863; see also 20 C.F.R.
§ 404.1520(c)(1); § 416.920(g). The regulations provide:
If we find that your residual functional capacity does not enable you to do
any of your past relevant work . . . we will use the same residual functional
capacity assessment when we decide if you can adjust to any other work.
We will look at your ability to adjust to other work by considering your
residual functional capacity and the vocational factors of age, education,
and work experience . . . . Any other work (jobs) that you can adjust to must
exist in significant numbers in the national economy (either in the region
where you live or in several regions in the country).
20 C.F.R. § 404.1560(c)(1); § 416.960(c)(1). If the claimant is not capable of performing
such other work, the Commissioner must find the claimant disabled. 20 C.F.R.
§ 404.1520(g); § 416.920(g).
The ALJ consulted a Vocational Expert [“VE”] to determine whether jobs exist in
the national economy that plaintiff could perform, considering his RFC, age, education,
and work experience. The VE testified that an individual with plaintiff’s limitations and
vocational factors could perform the jobs of assembler, packer, and production helper,
which are jobs that exist in significant numbers in the national economy. (R. 63.) Because
the ALJ found that jobs consistent with plaintiff’s RFC and vocational factors exist in
significant numbers, the ALJ found that plaintiff was not disabled. (R. 31.)
B. MR. GAMBLE’S CLAIMS
Plaintiff contends that “the ALJ failed to properly consider plaintiff’s pain
pursuant to the Eleventh Circuit’s three part pain standard.” (Doc. 7 at 5.) Specifically,
plaintiff argues that the ALJ should have found him disabled based upon his pain and that
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the ALJ failed to properly consider medical evidence of record establishing a disabling
impairment. (Id. at 7-8.) Having reviewed the entire record before the ALJ, as well as the
parties’ briefs, the court finds that the Commissioner’s decision is due to be affirmed.
The Eleventh Circuit’s three-part 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.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The Eleventh Circuit considers
the Holt standard as one and the same with the standard set out in the Regulations. See
Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002) (“Furthermore, the ALJ cites to
20 C.F.R. § 404.1529, which contains the same language [as Holt] regarding the
subjective pain testimony that this Court interpreted when initially establishing its
three-part pain standard. In citing to § 404.1529 and based on the findings and discussion,
it is clear that the ALJ applied this Circuit's pain standard [from Holt].”). 20 C.F.R.
§ 404.1529 and § 416.929 set out a two-step process, consistent with the Holt standard,
which SSR 96-7p explains as follows: “First, the adjudicator must consider whether there
is an underlying medically determinable physical or mental impairment—i.e., an
impairment(s) that can be shown by medically acceptable clinical and laboratory
diagnostic techniques—that could reasonably be expected to produce the individual’s
pain or other symptoms.”
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This determination does not consider the “intensity, persistence, or functionally
limiting effects of the individual’s symptoms.” SSR 96-7p. If the ALJ finds that the
plaintiff’s case survives the first step, then:
the adjudicator must evaluate the intensity, persistence, and limiting
effects of the individual’s symptoms to determine the extent to which
the symptoms limit the individual’s ability to do basic work activities.
For this purpose, whenever the individual’s statements about the
intensity, persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
SSR 96-7p. The ALJ may reject the claimant’s subjective complaints of pain as not
credible in determining whether the claimant is disabled due to pain. Costigan v. Comm’r
Soc. Sec. Admin., 2015 WL 795089, at *3 (11th Cir. Feb. 26, 2015); Marbury v. Sullivan,
957 F.2d 837, 839 (11th Cir. 1992). If the ALJ determines the claimant’s testimony is not
credible, the ALJ must “explicitly and adequately articulate his reasons.” Id. Under step
one, the ALJ concluded that plaintiff’s “medically determinable impairments could
reasonably be expected to cause some symptoms . . . .” (R. 29.) However, under step two,
the ALJ found that plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent that the claimant
alleged.” (Id.)
In reaching this finding, the ALJ relied in part on plaintiff’s conflicting statements.
First, plaintiff inconsistently reported his activities of daily living. (See R. 29.) On
November 29, 2010, plaintiff reported to Dr. Marlin Gill that he provided care for his
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elderly father, drove, took care of his own personal needs, and completed household
chores such as cleaning the home, doing laundry, washing dishes, cooking meals, mowing
the grass, cleaning a swimming pool, and shopping for groceries. (R. 265.) However,
during the ALJ hearing, plaintiff reported that he could not grocery shop and that his
friend grocery shops for him, usually does the laundry, and helps care for plaintiff’s
father. (R. 54.) Plaintiff also testified that he could hardly cook because he could not
stand, (R. 58), and that all he could do was get up and “maybe” take his father a plate of
food, (R. 54).
Plaintiff made additional inconsistent statements at the time of his consultative
examination and the ALJ hearing. Dr. Gill noted that plaintiff reported he could “sit with
no limitations,” (R. 265), but in a Function Report, plaintiff stated that he could sit only a
little while, and at the hearing, he stated he could sit only ten to fifteen minutes, (R. 59,
160). Plaintiff also reported that he had been to the emergency room many times for back
pain, (R. 50), but the record does not contain any records showing that plaintiff reported
to the emergency room for back pain. Further, plaintiff testified that his back pain “was
just as bad” as when he was working, (R. 56), which suggested that plaintiff was currently
capable of working since the pain did not prevent him from working in the past. Finally,
plaintiff testified that he was not taking medication for the pain, thus further discrediting
plaintiff’s complaints of disabling pain. (R. 51.)

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The ALJ also determined that the objective medical evidence of record did not
support plaintiff’s allegations of pain. Plaintiff testified that his pain level was nine out of
ten and that he could not stand. (R. 51, 58.) However, during an examination in
November 2010, Dr. Gill noted that plaintiff walked unassisted and with a normal gait
and that he was able to squat and rise without assistance. (R. 266.) Plaintiff was treated at
Parkway Medical Center in July 2011 for a seizure. At that time, the physician’s
examination noted that plaintiff’s “spine [was] non-tender” and that he had “normal joint
range of motion; no swelling or deformities.” (R. 299.) Furthermore, Dr. Robert Heilpern
opined in the Residual Functional Capacity Assessment that plaintiff could occasionally
lift and/or carry up to 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk
for 6 hours in an 8-hour workday, and sit for 6 hours in an 8-hour work day, with postural
limitations for climbing ladders, rope, or scaffolds. (R. 289-90.) Plaintiff declined any
residual problems from an incident in which a rock struck his head, describing his
ailments as “mainly just back problems . . . , kidney problems, and gall bladder problems .
. . .” (R. 50-51.) Of these complaints, only back pain is supported by the medical records,
and as discussed above, the ALJ relied on substantial evidence, including plaintiff’s
inconsistent statements, in finding that plaintiff’s back pain was not as limiting as alleged.
Additionally, the lack of ongoing pain management undercuts plaintiff’s claims of
disabling pain. The Regulations permit an ALJ to consider a claimant’s medications and
treatment for pain as evidence of the claimant’s pain. 20 C.F.R. § 404.1529(c)(3); 20
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C.F.R. § 416.929(c)(3). Similarly, minimal treatment sought by a claimant may provide
evidence of an inconsistency with a claimant’s allegations of disabling pain. See Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (“The ALJ discredited [the claimant’s]
testimony by explaining that this pain had not require[d] routine or consistent treatment,
and he often went for months or years between complaining of this pain to his physicians
. . . .”); Barrett v. Shalala, 38 F.3d 1019, 1023-24 (11th Cir. 1994) (“A failure to seek
aggressive treatment is not suggestive of disabling back pain.”) (internal alterations and
quotations and citation omitted). Although plaintiff received treatment and medication for
pain management from Dr. Ahmad Shikhtholth, he discontinued care in April 2009. (R.
199, 265.) He revisited the pain clinic on September 21, 2010, but there is no evidence he
received pain management treatment or medications. (R. 197-98.) While he did receive
medical treatment between April 2009 and September 2010, the medical records do not
reflect that this treatment was related to his complaints of back pain. At the ALJ hearing,
plaintiff reported he was not taking pain medication, which is consistent with Dr. Gill’s
notes from November 2010 showing that plaintiff was not taking pain medication for his
back.6 (R. 51.) The long period between plaintiff’s treatments and lack of medication
further undermine plaintiff’s credibility.
Because the record reflects that plaintiff provided inconsistent statements, and the
objective medical evidence does not substantiate plaintiff’s allegations of disabling pain,
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Dr. Gill’s notes state that plaintiff was taking Lortab for dental pain but was not
taking medication for any other pain. (R. 265.)
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the court finds that the ALJ properly applied the Eleventh Circuit’s three-part pain
standard and relied on substantial evidence in concluding that plaintiff was not disabled.
IV. CONCLUSION
Based on the reasons set forth above, the decision of the ALJ, as adopted by the
Commissioner, denying plaintiff’s claim for DIB and SSI is due to be affirmed. An Order
affirming the decision of the Commissioner will be entered contemporaneously with the
Memorandum Opinion.
DONE this 5th day of May, 2015.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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