Pickett v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/24/2015. (JLC)
2015 Feb-24 PM 01:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHN H. PICKETT, JR.,
) Case No.: 5:13-CV-2250-VEH
CAROLYN W. COLVIN, ACTING
Plaintiff John H. Pickett, Jr. (“Pickett”) brings this action under 42 U.S.C.
§ 405(g), Section 205(g) of the Social Security Act. He seeks review of a final adverse
(“Commissioner”), who denied his application for a period of disability, disability
insurance benefits (“DIB”), and Supplemental Security Income (“SSI”).1 Pickett
timely pursued and exhausted his administrative remedies available before the
In general, the legal standards applied are the same regardless of whether a claimant
seeks Disability Insurance Benefits (“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.
Commissioner. The case is thus ripe for review under 42 U.S.C. § 405(g).2 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.
FACTUAL AND PROCEDURAL HISTORY
Pickett was 58 years old on the date of the administrative law judge’s decision.
(Tr. 17, 135). He had past work as a machine operator specialist, machine
operator/furnace helper, and inspector machine operator. (Tr. 26, 138). Pickett initially
alleged disability beginning July 22, 2008,3 due to back conditions, high blood
pressure, problems with his feet, prostate conditions, allergies and sinus conditions,
acid reflux, and joint pain (Tr. 135, 148).
Pickett protectively filed applications for a period of disability, DIB, and SSI
on October 27, 2010. (Tr. 39, 41, 110-22, 135). The claims were denied initially.
Pickett then requested a hearing before an administrative law judge (“ALJ”), who
issued a decision, dated September 27, 2012, finding him not disabled. (Tr. 9-17,
42-44, 49-50). The Appeals Council denied his request for review on October 18,
2013. (Tr. 2). Pickett then filed a complaint seeking judicial review of that decision
on December 16, 2013. (Doc. 1). The Commissioner filed an answer to the complaint
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.
Pickett later amended his alleged onset date to January 24, 2011 (Tr. 24, 134).
on May 5, 2014. (Doc. 8). Pickett filed a supporting brief (Doc. 11) on July 20, 2014,
and the Commissioner responded with her own (Doc. 13) on August 18, 2014.
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,
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 Social Security Act and the
Regulations promulgated thereunder. 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. § 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
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
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,
562-63 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.
1986). The sequential analysis goes as follows:
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.
After consideration of the entire record, the ALJ made the following findings:
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2012.
The claimant has not engaged in substantial gainful activity since
January 24, 2011, his amended alleged onset date.
The claimant has the following severe impairment: lumbar degenerative
The claimant does not have an impairment or combination of
impairments that met or medically equaled the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform medium
work as defined in 20 CRF 404.1567(b) and 416.967(c), except he is
limited to frequent climbing, balancing, stooping, crouching, kneeling
The claimant is capable of performing his past relevant work as a
machine operator specialist. This work dose not require the performance
of work related activities precluded by his residual functional capacity
(20 CFR 404.1565 and 416.965).
The claimant has not been under a disability, as defined in the Social
Security Act, from July 22, 2008, through the date of this decision. (20
CFR 404.1520(f) and 416.920(f)).
The court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).4 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
Pickett objects to the ALJ’s findings on his RFC. He contends that the ALJ did
not comply with the Eleventh Circuit’s three-part pain standard in discrediting
Pickett’s subjective pain testimony. (Doc. 11 at 3-4). More specifically, Pickett argues
that there was not substantial evidence to support the ALJ’s stated reasons for
discrediting his testimony. (Id. at 4). According to Pickett, the medical evidence on
record supports his testimony, and none of the other evidence cited by the ALJ
The Eleventh Circuit has laid out a three-part standard to apply when a claimant
attempts to demonstrate disability through his or her own subjective testimony. The
(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) (emphasis added). In order to
discredit the subjective testimony of the claimant, the ALJ must give “explicit and
adequate reasons for doing so.” Id.
In this case, it is not disputed that the ALJ discussed the relevant evidence
thoroughly. Rather, Pickett argues that the ALJ was incorrect to conclude that the
evidence was inconsistent with his testimony. The court will discuss the relevant
categories of evidence in turn.
The Medical Evidence On Record Fails To Confirm The Alleged
Severity Of The Pain
As the ALJ noted, the medical records are limited.5 Pickett visited his primary
care physician, Dr. Wayne Thomas, six times in the period in question. On February
23, 2010, Pickett complained primarily of dizziness and lightheadness, but also
reported abdomen and lower back pain. (Tr. 210). Dr. Thomas made several
diagnoses, but none related to his back pain, and he noted that Pickett’s abdomen was
normal. (Tr. 211). Two weeks later, on March 8, Pickett returned for a follow-up to
discuss his blood pressure, but made no complaints of back pain. (Tr. 210). Pickett
came again six months later, on September 8, 2010, and complained of gastrointestinal
reflux problems and mucus. (Tr. 209) Again, he did not complain of any back
problems, and Dr. Thomas’s physical examination found his back to be normal. (Id.).
At his next visit, on March 8, 2011, Pickett told Dr. Thomas that he had filed
a disability claim and complained of chronic back pain. (Id.). Dr. Thomas diagnosed
him with back pain and disc disorder, but did not prescribe any medication or
It is well-settled that “the claimant bears the burden of proving that he is disabled, and,
consequently, he is responsible for producing evidence in support of his claim.” Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Therefore, thIS lack of evidence tends to
weaken the claimant’s case.
recommend any treatment or testing. (Id.). Pickett returned eleven months later, on
February 14, 2012, but only to discuss chest discomfort and belching after eating
spicy foods. (Tr. 214). Two months later, on April 13, 2012, he came again to Dr.
Thomas to complain of lower back pain radiating to his hips and groin, and stated that
the pain grew worse as the day progressed. (Id.). Dr. Thomas noted only that his
lumbar area was tender. (Id.). However, he did prescribe Robaxin and Relafen for
muscle spasms and back pain. (Id.). He also referred6 Pickett to Dr. Ghavam, an
orthopedist, and scheduled him for a followup in three months. (Id.). However, there
is no evidence that Pickett returned for that followup.
Dr. Ghavam saw Pickett on April 27, 2012. Pickett told him that he had
suffered from low back pain for over twenty years, but that it had gotten “much worse
recently.” (Tr. 217). He stated that the pain did not radiate to his legs, that he had
“some achiness in his hips and joints but nothing severe,” and that the pain was
worsened by increased activity. (Id.). Dr. Ghavam’s physical examination found no
deformity or tenderness in his spine, no muscle atrophy, and a full range of motion
throughout. (Id.). The x-rays revealed well-preserved disc spaces and no significant
deformity. (Id.). Dr. Ghavam diagnosed Pickett with chronic low back pain syndrome
Pickett asserts that “referral to a specialist is indicative that his treating physician
believed he was in pain but was simply unable to cure the same.” (Doc. 11 at 5). This inference
is unwarranted. Dr. Thomas noted, at the beginning of the office visit, that Pickett “wanted to see
primary [doctor] before going to specialist.” (Tr. 214).
and recommended an MRI. (Id.). However, Pickett never had the MRI done. (Tr. 25).
The final piece of medical evidence is a disability examination performed by
Dr. Marlin Gill on January 24, 2011. Pickett told Dr. Gill that his back pain started
twenty years earlier but had worsened recently, and that he now had constant pain in
his lumbar area. (Tr. 205). He testified that his back pain increased if sat for too long,
made any back movements such as bending or twisting, and stood or walked. (Id.). Dr.
Gill noted that Pickett reported “some discomfort” with lumbar movement, but that
there was no tenderness in his back or abdomen, and that he was able to bend forward
to an 80 degree and come back erect. (Tr. 205-06). He further noted that Pickett could
squat down and come up again, and that he was able to walk across the room on his
tiptoes and on his heels. (Tr. 206). Dr. Gill performed x-rays that found slight
narrowing of disc space at L5-S1 and mild facet arthrosis at L5, but otherwise no
problems. (Id.). He found Pickett to have low back pain, mild degenerative disc
disease and facet arthrosis, but did not opine as to Pickett’s functional capabilities or
Picket purports to deduce from these records that the ALJ’s RFC finding of
medium work with certain restrictions is incorrect. (Doc. 11 at 5). However, these
records do not indicate a more limited RFC. They contain diagnoses of conditions that
can cause some back pain, but disability is determined by functional limitations
imposed by the condition, not a mere diagnosis. See Johns v. Bowen, 821 F.2d 551,
555 (11th Cir. 1987). The bare diagnoses of “low back pain” and “mild degenerative
disc disease” are not accompanied by any indications of severe medical conditions
that would obviously indicate more extensive limitations. Neither did any of the
doctors note any significant functional restrictions during their examinations. In fact,
Dr. Gill’s physical examination, which contains the most extensive findings on
Pickett’s capabilities in the record, found only “some discomfort” in lumbar
movement; there were no limitations in ability to lean over, squat and stand, and walk.
(Tr. 206-06). Therefore, the ALJ’s reasoning was correct; the medical records do not
give objective evidence confirming the severity of his alleged pain, as required under
the second prong of the Eleventh Circuit’s pain standard. 7
The ALJ Did Not Err In Assigning Little Weight To Dr. Thomas’s
Medical Source Statement
Pickett makes the conclusory assertion that the ALJ erred in assigning little
weight to Dr. Thomas’s medical source statement. (Doc. 11 at 7). This form, filled out
by Dr. Thomas on August 22, 2012 (four months after he last saw Pickett and first
prescribed any medication for back pain) is the only medical source statement on
Pickett has not argued that evidence supports the alternative way a claimant can satisfy
the second prong of the pain standard: that the “objectively determined medical condition is of
such a severity that it can be reasonably expected to give rise to the alleged pain.” The court’s
review of the evidence confirms that Pickett’s objectively determined medical conditions do not
reach that level of severity.
Dr. Thomas opined that in an eight-hour workday Pickett was limited to:
standing for two hours at a time and four hours total, walking for half an hour at a time
and three hours total, and sitting for four hors at a time and six hours total. (Tr. 224).
The opinion stated that Pickett could lift and carry only less than five pounds
frequently, ten pounds occasionally, and never more than twenty. (Id.). He indicated
that Pickett was limited to only “occasionally” performing the following functions:
pushing and pulling (with each arm and leg), climbing, balancing, stooping, kneeling,
crouching, crawling, and reaching. (Id.). Dr. Thomas also indicated that he should
never be exposed to extreme cold, extreme heat, airborne substances, and moving
mechanical parts, and should never work in high, exposed places. (Tr. 225). Finally,
he indicated that Pickett should only occasionally work in high, exposed places or
drive automobile equipment. (Id.).
The ALJ assigned little weight to Dr. Thomas’s opinion on the grounds that it
was inconsistent with his own records and findings, as well as the overall weight of
the evidence. (Tr. 15). A review of Dr. Thomas’s records supports the ALJ’s
assessment. Dr. Thomas first diagnosed Pickett with back pain after Pickett told him
that he had filed a disability claim, but even then did not recommend any treatment
or testing. (Tr. 214). It was not until over a year later that Dr. Thomas prescribed
medication for Pickett’s back pain (Tr. 214), and the record does not indicate that
Pickett ever returned to Dr. Thomas for a follow-up before Dr. Thomas filled out the
medical source opinion form four months later. There also is no evidence that Dr.
Thomas inquired into Pickett’s functional capacity or performed any functional
assessment before completing that form. This record makes it implausible that Dr.
Thomas had a basis for assessing Pickett with such extensive limitations. Therefore,
the ALJ had substantial evidence for assigning little weight to Dr. Thomas’s
Evidence Of Pickett’s Daily Activities Supports The ALJ’s Credibility
And RFC Findings
Pickett also disputes the ALJ’s finding that evidence of his daily activities
discredits his subjective testimony. The ALJ pointed to the lack of emergency medical
treatment or hospitalization and to Pickett’s only sporadic use of over-the-counter pain
medication, concluding that these facts were inconsistent with Pickett’s claim that he
regularly suffered pain of seven on a ten point scale. (Tr. 14, 30). The ALJ also found
Pickett’s daily activities — cooking, cleaning, dishwashing, laundry, mowing grass,
driving, shopping, and social activities — to be inconsistent with his allegations of
disabling pain. (Tr. 14).
Pickett does not address his lack of treatment and limited use of medication, but
does argue against the ALJ’s conclusion that his daily activities rule out the presence
of disabling pain. (Doc. 11 at 7). Pickett’s first argument is that he did not actually
engage in some of the activities cited by the ALJ. (Id. at 8). He refers to his testimony
during the hearing before the ALJ, where he testified that he did not do dishes, clean
his house, cook, or grocery shop. (See Tr. 32). Second, Pickett argues that he only
engaged in some of the other activities occasionally, not, as the ALJ stated, on a
regular basis, and that some of them cause him extensive pain. (Id. at 8).
The ALJ discussed the portions of Pickett’s testimony that alleged limitations
on his daily activities from his pain, but found his testimony to be inconsistent with
the weight of the evidence. (Tr. 13-15). Consideration of the weight of the evidence
supports the ALJ’s findings. The ALJ’s summary of Pickett’s daily activities (Tr. 14)
reflect’s Picket’s own statements made on his function report and reported to Dr. Gill.
(Tr. 162-69, 205). Pickett has made no attempt to explain the inconsistency between
those statements and his testimony at the hearing. Because other pieces of evidence
(discussed supra) also conflicted with Pickett’s testimony as to his level of pain, the
ALJ had additional reasons to discount it. The ALJ had substantial evidence for
finding that Pickett’s testimony at the hearing was not fully credible and that his daily
activities supported the ALJ’s RFC determination.
The ALJ Had Substantial Evidence For His RFC Finding Even Without
The Support Of A Medical Source Statement
There remains one further issue unaddressed by the parties but which the court
considers to need discussion: the lack of a medical source statement to support the
ALJ’s findings on Pickett’s RFC. The only medical source statement, which came
from Dr. Thomas, was assigned little weight by the ALJ. (Tr. 15). Although the
Eleventh Circuit has never issued a binding opinion on the issue, there is strong
persuasive authority for the proposition that an ALJ should only make an RFC
assessment without support from a medical source statement when there is clear
evidence of few limitations. See, e.g., Castle v. Colvin, 557 F. App’x 849 (11th Cir.
2014) (unpublished);8 Manso–Pizarro v. Secretary of Health and Human Services, 76
F.3d 15, 17 (1st Cir. 1996) (“[W]here the medical evidence shows relatively little
physical impairment, an ALJ permissibly can render a commonsense judgment about
functional capacity even without a physician's assessment”); Rogers v. Barnhart, No.
3:06–CV–0153–JFG, (Doc. 13 at 5) (N.D.Ala. Oct. 16, 2006) (“An ALJ is allowed to
make some judgments as to residual physical functional capacity where so little
physical impairment is involved that the effect would be apparent to a lay person”).
In Castle, where the ALJ determined there was no disability without a
supporting medical source statement, the Eleventh Circuit cited four facts as providing
substantial evidence: the claimant had never visited a doctor in the period between his
As an unpublished opinion, Castle is not binding; instead, it is persuasive authority. See
11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.”).
alleged onset date and date last insured, denied having the musculoskeletal problems
that normally would accompany his alleged disability, reported engaging in activities
that fell into the category of light work, and had been given a release without work
restrictions by a doctor. 557 F. App’x at 850-51, 853. Similar facts are present in this
case, albeit to a lesser degree. Pickett had very few visits to a doctor for back pain
according to the evidence on record. Furthermore, he rarely used pain medication,
even over-the-counter medication. He also reported engaging in a wide variety of
tasks that could fall into the category of medium work.
In addition to these considerations, the court also finds it significant that Pickett
has only one severe disability: lumbar degenerative disc disease. The presence of
multiple disabilities, or one unusual or complex disability, would make the support
of a medical source opinion necessary for an RFC determination. However, a disc
problem is neither rare nor particularly complex in its effects. In this case, therefore,
the lack of a medical source statement did not preclude the ALJ from having
substantial evidence for his RFC findings.
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 24th day of February, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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