Lundberg v. Social Security Administration, Commissioner
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 8/7/2015. (PSM)
2015 Aug-07 AM 08:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ERIC ALAN LUNDBERG,
CAROLYN W. COLVIN,
Commissioner of Social Security,
MEMORANDUM OF OPINION
The plaintiff, Eric Alan Lundberg, appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying
his application for a period of disability and Social Security Disability Insurance
Benefits (“DIB”). Mr. Lundberg timely pursued and exhausted his administrative
remedies, and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3).
Mr. Lundberg was fifty-nine years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision (tr. at 22), and he has a Bachelor of Arts degree in
Accounting. (Tr. at 31.) His past work experiences include employment as a
financial manager and automobile sales person. (Tr. at 33-34, 231.) Mr. Lundberg
claims that he became disabled on July 18, 2011 (tr. at 109), due to chronic
obstructive pulmonary disease (“COPD”), depression, anxiety, hypertension,
polyarthralgia, and gastroesophageal reflux disease (“GERD”). (Tr. at 192.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”). See Id. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See Id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, App. 1. See 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See Id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work. See Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the plaintiff’s impairment
or combination of impairments does not prevent him from performing his past
relevant work, the evaluator will make a finding of not disabled. See Id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See Id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find him
not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Mr.
Lundberg last met the insured status requirements of the Social Security Act on
December 31, 2011. (Tr. at 15.) He further determined that Mr. Lundberg has not
engaged in SGA since the alleged onset of his disability through his date last
insured on December 31, 2011. (Tr. at 15, Finding 2.) According to the ALJ,
Plaintiff’s hypertension, polyarthralgia, GERD, depression, anxiety, and COPD are
considered “severe” based on the requirements set forth in the regulations. (Tr. at
15, Finding 3.) However, he found that these impairments, considered singly and in
combination, neither meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, App. 1. (Tr. at 15, Finding 4.) The ALJ did not find
Mr. Lundberg’s allegations to be entirely credible (tr. at 20), and he determined
that Mr. Lundberg has the following RFC: the ability to perform medium work with
the following limitations: no climbing of ladders, ropes, or scaffolds; avoiding
concentrated exposure to environmental areas but no noise limits; avoiding all
exposure to workplace hazards such as unprotected heights and dangerous
machinery; and should not be expected to drive automotive equipment or vehicles.
Further, the ALJ determined Plaintiff was limited to unskilled and low-level
semiskilled work, with casual and infrequent interaction with the general public,
and casual and non-confrontational supervision; and he should work with things
rather than people. (Tr. at 16, Finding 5.)
According to the ALJ, Mr. Lundberg is unable to perform any of his past
relevant work. (Tr. at 20, Finding 6). He determined that Plaintiff is an “individual
closely approaching advanced age,” that he has at least a high school education,
and is able to communicate in English, as those terms are defined by the
regulations. (Tr. at 21, Finding 7). He further determined that Plaintiff has “no
transferable skills, as the vocational expert testified.” (Tr. at 21, Finding 9.)
Because Plaintiff cannot perform the full range of medium work, the ALJ used the
Medical Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, as a
guideline for finding that there are still a significant number of jobs in the national
economy that he is capable of performing, such as kitchen helper, laundry worker,
and hand packer. (Tr. at 21, Finding 10.) The ALJ concluded his findings by stating
that Plaintiff “was not under a disability, as defined in the Social Security Act, at
any time from July 18, 2011, the alleged onset date, through December 31, 2011, the
date last insured.” (Tr. at 22, Finding 11.)
Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act
is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)). “The substantial evidence standard permits administrative decision
makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the
proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Mr. Lundberg alleges that the ALJ’s decision should be reversed and
remanded for two reasons. First, he believes that the ALJ failed at step three of the
sequential evaluation process to recognize that his impairments meet or equal
Listing 1.02A. Second, Plaintiff contends that the ALJ erred in his determination
that Plaintiff’s subjective pain testimony was not entirely credible.
Plaintiff contends that the ALJ improperly concluded that he does not meet
or equal Listing 1.02A at step three of the sequential evaluation process. At step
three, the ALJ had to determine whether Plaintiff’s impairments met or equaled an
impairment listed in the Listing of Impairments, i.e., a Listing. See 20 C.F.R. §§
404.1520(a)(4)(iii), (d).The listings describe impairments that the Commissioner
considers severe enough to prevent an individual, regardless of his age, education,
or work experience, from performing any gainful activity. See 20 C.F.R. §
404.1525(a). The evidentiary standards for presumptive disability under the listings
are stricter than for cases that proceed to other steps in the sequential evaluation
process because the listings represent an automatic screening based on medical
findings rather than an individual judgment based on all relevant factors in a
claimant’s claim. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526; Sullivan v.
Zebley, 493 U.S. 521, 532 (1990).
A plaintiff bears the burden of proving his impairments met or equaled a
listing. See Doughty, 245 F.3d at 1278. Additionally, a plaintiff bears the burden of
proving he “became disabled prior to the expiration of his disability insured
status.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Here, Plaintiff had
to prove that he was disabled on or before December 31, 2011, his date last insured.
When a plaintiff contends he has an impairment meeting the listed impairments or
equal to one of the impairments, he has the burden “to present specific medical
findings that meet the various tests listed under the description of the applicable
impairment” or “to present evidence which describes how the impairment has
such an equivalency.” Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th
Cir. 1987) (citing Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986)); 20 C.F.R. §§
404.1525 and 404.1526. “To ‘meet’ a Listing, a claimant must have a diagnosis
included in the Listings and must provide medical reports documenting that the
conditions meet the specific criteria of the Listings and the duration requirement.”
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). When an impairment
manifests only some of those criteria, regardless of the severity, the impairment
does not qualify. Zebley, 493 U.S. at 530. “To ‘equal’ a Listing, the medical
findings must be at least equal in severity and duration to the listed findings.” Id. at
531; see also 20 C.F.R. § 404.1526(a).
Here, Plaintiff bears the burden of proving he was presumptively disabled
under Listing 1.02A, 1 which states in relevant part:
Plaintiff does not argue that his impairments met or equaled subsection B of Listing 1.02 or the
criteria of any other listing impairment, and therefore, has waived such an argument. See
N.L.R.B. v. McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a
perfunctory manner, without supporting arguments and citation to authorities, are generally
deemed to be waived.”).
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by
gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous
ankylosis, instability) and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint(s), and
findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee,
or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. Part 404, Subpart P, App. 1, § 1.02A. An “[i]nability to ambulate
effectively means an extreme limitation of the ability to walk” and “is defined
generally as having insufficient lower extremity functioning to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities.” 20 C.F.R. § 404, Subpart P, App. 1, §
1.00B2b(1). Examples of ineffective ambulation include: the inability to walk
without a walker, two crutches or two canes; the inability to carry out routine
ambulatory activities, such as shopping and banking; and the inability to climb a
few steps at a reasonable pace with the use of a single hand rail. Id. § 1.00B2b(2).
Plaintiff has failed to show that his impairment or impairments meet or equal
all of the requirements of Listing 1.02A prior to the expiration of his insured status
on December 31, 2011. Plaintiff complained to Dr. Alexander, orthopedic specialist,
in July 2010, of mild tenderness in his left hip, but Dr. Alexander noted that
“[c]linically, most of [Plaintiff’s] discomfort appears to be coming from iliotibial
band tendonitis and trochanteric bursitis rather than from the hip joint itself.” (Tr.
at 215.) A lower back x-ray during that examination revealed no spondylosis or
spondylisthesis and very slight right upper lumbar scoliosis. (Tr. at 18, 215).
Plaintiff’s left hip x-rays showed some arthritis with narrowing in the joint space
and small osteophytes, but his right hip x-ray was unremarkable. (Tr. at 18, 215). In
December 2011, Dr. Arun, the consultative examining physician, found there was
some degree of arthritis in Plaintiff’s left hip and some associated pain but noted
that Plaintiff “is able to perform activities of daily living.” (Tr. at 225.) There was
no diagnosis of a hip-related impairment noted in Dr. Arun’s assessment.
Plaintiff’s back and joints showed no deformity or scoliosis. (Tr. at 224). Plaintiff’s
straight leg raise was 70 degrees, and he exhibited 5/5 muscle strength against
resistance. (Id.) He could squat and bend down, though he was unable to “heel to
toe walk.” (Id.) Plaintiff’s cranial nerves, motor system, sensory system, and
reflexes were normal. (Tr. at 224-25). He had some left hip joint discomfort, but
otherwise exhibited “satisfactory range of movements.” (Tr. at 225). The findings
of Drs. Alexander and Arun do not establish that Plaintiff’s left leg condition meets
or equals the impairments listed in Listing 1.02A.
Plaintiff asserts that medical records in April 2012 from Dr. Goodson are the
main evidence of “gross anatomical deformity” in his left leg, as required to meet
or equal the first part of Listing 1.02A. After Plaintiff saw Dr. Kelly in March 2012
for complaints of increased hip pain, Dr. Kelly referred him to Dr. Goodson, an
orthopedic surgeon. (Tr. at 297.) Plaintiff saw Dr. Goodson on April 26, 2012, and
upon examination Dr. Goodson indicated Plaintiff’s left hip x-ray revealed
moderate to severe degenerative joint disease. (Tr. at 283). However, Plaintiff
could move all his extremities on command and demonstrated “satisfactory motion
of the left hip,” though he had pain with extremes of motion. (Id.) Dr. Goodson
noted Plaintiff was “slightly” limited with his hip and that “[o]verall he is getting
along okay.” (Id.) While Dr. Goodson’s treatment notes do reflect his opinion that
a total hip arthroplasty is needed at some future date due to Plaintiff’s degenerative
joint disease (tr. at 202-3), Dr. Goodson’s medical records are ineffective in
proving Plaintiff meets or equals Listing 1.02A because the treatment notes
occurred after December 31, 2011, Plaintiff’s date last insured. (Tr. at 282-84.)
Aside from the absence of medical evidence of “gross anatomical
deformity,” as required by the first part of Listing 1.02A, there is also no medical
evidence that Plaintiff cannot ambulate effectively, as required by the second part
of Listing 1.02A. Dr. Arun explained in December 2011 that Plaintiff could perform
his activities of daily living, did not use a walker or any assistive device regularly,
and occasionally used support to climb up or down the stairs. (Tr. at 225). The
record does not reveal any prescriptions for a cane or assistive device.
Furthermore, in his 2011 function report, Plaintiff stated he had no problems with
personal care. (Tr. at 139). He could go out alone on a daily basis, walk, drive a car,
ride in a car, and shop in stores. (Tr. at 141).
Plaintiff asserts his diagnosis of severe COPD, as well as his own testimony
that he is unable to walk for more than five minutes at a time due to shortness of
breath, renders him unable to ambulate effectively. As an initial matter, a diagnosis
alone does mean that an impairment meets or equals a listing. 20 C.F.R. §
404.1525(d) (“Your impairment(s) cannot meet the criteria of a listing based only
on a diagnosis.”). Although Plaintiff details the conceivable effects of COPD, he
has not demonstrated that his COPD rendered him unable to walk effectively, as
defined by the regulations. See Moore, 405 F.3d at 1213 n.6 (“[T]he mere existence
of these impairments does not reveal the extent to which they limit her ability to
work or undermine the ALJ’s determination in that regard.”). Further, the
examination notes of Dr. Lynn (tr. at 292, 294, 296) and Plaintiff’s own function
report (tr. at 141) belie Plaintiff’s contention that his COPD diagnosis equates to a
failure to ambulate effectively. In June 2012, Dr. Lynn, one of Plaintiff’s treating
physicians, noted that Plaintiff stated he had been breathing well recently. (Tr. at
294.) In November 2012, Dr. Lynn noted that Plaintiff denied a cough, shortness of
breath, or wheezing. (Tr. at 292.) Plaintiff stated in his function report dated
October 27, 2011, that he goes outside daily, walks, and shops in stores a couple of
times a week. (Tr. at 141.) Further, with regard to Plaintiff’s statement that he is
unable to walk for more than five minutes at a time, as discussed below, the ALJ
considered Plaintiff’s subjective statements and determined they were not entirely
credible. (Tr. at 17-18, 20).
Plaintiff also appears to contend the combination of his degenerative joint
disease, COPD, depression, anxiety, and alleged side effects from his medications
equaled the criteria of Listing 1.02A. However, his contention fails. “For a
claimant to qualify for benefits by showing that his unlisted impairment, or
combination of impairments, is ‘equivalent’ to a listed impairment, he must
present medical findings equal in severity to all the criteria for the one most similar
impairment.” Zebley, 493 U.S. at 531. “A claimant cannot qualify for benefits under
the ‘equivalence’ step by showing that the overall functional impact of his unlisted
impairment or combination of impairments is as severe as that of a listed
impairment.” Id. Plaintiff failed to provide medical findings establishing that his
impairments equaled the severity of all the criteria in Listing 1.02A. As previously
noted, a diagnosis does not speak to the severity of the condition. See Moore, 405
F.3d at 1213 n.6. Plaintiff describes the potential effects of his diagnosis of
depression, such as sadness, lack of motivation, fatigue, and difficulty sleeping, but
he has not provided medical evidence regarding his impairments that equaled the
severity of all of the criteria in Listing 1.02A. Similarly, Plaintiff cites his own
hearing testimony that he suffers side effects of his medication, tramadol, such as
frequent urination. (Tr. at 43-45.) However, the record is devoid of any reports
made to his physicians of frequent urination prior to December 31, 2011, the
expiration of his insured status. (Tr. at 125). While Plaintiff points out that Dr.
Penland’s medical records note side effects from medication, presumably referring
to a treatment note from December 2012 indicating that his medication “made him
more depressed than his baseline depression,” (tr. at 304) that treatment note
occurs well after the expiration of Plaintiff’s date of last insured. The evidence of
record simply does not indicate that any alleged side effects would have interfered
with Plaintiff’s ability to work or prevented him from performing a modified range
of medium work as found by the ALJ. See Werner v. Comm’r of Soc. Sec., 421 F.
App’x 935, 938 (11th Cir. 2011) (“Mere lists of potential side effects do not
establish that a claimant in fact experienced such side effects.”). When a claimant
fails to present evidence that his medication actually caused his alleged side effects,
an ALJ is not required to make findings on the effect of medications and their
alleged side effects. See Passapulos v. Sullivan, 976 F.2d 642, 648 (11th Cir. 1992).
Plaintiff also argues that his Global Assessment of Functioning (“GAF”) scores
support a finding that he meets or equals Listing 1.02A. (Tr. at 232, 287). Plaintiff
received a GAF score of 55 from Dr. McDonald during a psychiatric evaluation in
December 2011 (tr. at 230), and he received a GAF score of 50 from Dr. Penland,
his treating psychiatrist to whom he complained of depression in May 2012. (Tr. at
286-87). However, he fails to show how these scores are equal or relevant to the
criteria found in Listing 1.02A, pertaining to major dysfunction of a joint. See 20
C.F.R. pt. 404, subpt. P, app. 1, § 1.02A. Significantly, the Commissioner has
declined to endorse GAF scores for use in disability programs, and has stated the
GAF scale “does not have a direct correlation to the severity requirements in our
mental disorders listings.” Revised Medical Criteria for Evaluating Mental
Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50,746, 50,764-65 (Aug. 21,
2000); see also Wind v. Barnhart, 133 F. App’x 684, 692 n.5 (11th Cir. 2005).
Additionally, Plaintiff’s reliance on his subjective psychological symptoms is
unavailing. As discussed below, the ALJ considered Plaintiff’s subjective
allegations but found them to be less than fully credible. (Tr. at 17-18, 20).
Accordingly, Plaintiff has failed to meet his burden of presenting medical findings
that equal all of the criteria of Listing 1.02A.
As a final matter, Plaintiff appears to contend that the ALJ erred by not
adequately explaining why his impairment or combination of impairments did not
meet or equal Listing 1.02A. However, “[a]lthough the ALJ must consider the
Listings, there is no requirement that the ALJ mechanically recite the evidence
leading to his ultimate decision.” Gray ex. rel. Whymss v. Comm’r of Soc. Sec., 454 F.
App’x 748, 750 (11th Cir. 2011) (quoting Hutchison v. Bowen, 787 F.2d 1461, 1463
(11th Cir. 1986)). Further, the Eleventh Circuit has held the “ALJ’s finding as to
whether a claimant meets a listed impairment may be implied from the record.”
Kalishek v. Comm’r of Soc. Sec., 470 F. App’x 868, 870 (11th Cir. 2012) (citation
omitted). The ALJ’s decision reflects that he properly considered Plaintiff’s
impairments as a whole in evaluating his claim. (Tr. at 15-20). The ALJ expressly
found Plaintiff did not have “an impairment or combination of impairments” that
met or equaled a listed impairment. (Tr. at 15, Finding 4). The Eleventh Circuit
has repeatedly held that the language used by the ALJ provides sufficient evidence
that the ALJ considered the combination of Plaintiff’s impairments. See Hamby v.
Soc. Sec. Admin., Comm’r, 480 F. App’x 548, 550 (11th Cir. 2012) (citing Wilson,
284 F.3d at 1224-25).
In sum, substantial evidence supports the ALJ’s finding that Plaintiff’s
impairments did not meet or equal a listed impairment, including Listing 1.02A.
The ALJ’s Credibility Determination
Plaintiff also contends that the ALJ erred in finding his subjective pain
testimony to be not entirely credible. A claimant’s allegations of pain or other
symptoms alone are insufficient to establish disability. See 42 U.S.C. §
423(d)(5)(A); 20 C.F.R. § 404.1529(a), (c).
In order to establish a disability based on testimony of pain and other
symptoms, the claimant must satisfy two parts of a three-part test
showing: (1) evidence of an underlying medical condition; and (2)
either (a) objective medical evidence confirming the severity of the
alleged pain; or (b) that the objectively determined medical condition
can reasonably be expected to give rise to the claimed pain.
Wilson, 284 F.3d at 1225 (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)). Credibility determinations are the province of the ALJ. Moore, 405 F.3d at
1212. The ALJ is permitted to discredit the claimant’s subjective testimony of pain
and other symptoms if he articulates explicit and adequate reasons for doing so. Id.
(citing Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). Although the Eleventh
Circuit does not require explicit findings as to credibility, “‘the implication must
be obvious to the reviewing court.’” Dyer, 395 F.3d at 1210 (quoting Foote v.
Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)). “[P]articular phrases or formulations”
do not have to be cited in an ALJ’s credibility determination, but it cannot be a
“broad rejection which is ‘not enough to enable [the district court or this Court] to
conclude that [the ALJ] considered his medical condition as a whole.” Id. (quoting
Foote, 67 F.3d at 1561) (internal quotations omitted). “A clearly articulated
credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.” Foote, 67 F.3d at 1562.
Mr. Lundberg testified in his hearing that on a good day his pain level is a
five and that the pain can reach a level of eight to nine when all he can do is go to
bed, and that generally his pain is at a level of seven. (Tr. at 44-45.) He also
testified that his prescribed pain medication only takes the edge off. (Tr. at 45.)
The ALJ found that Plaintiff has mental and physical impairments, evincing
underlying medical conditions and satisfying the first prong of the Eleventh
Circuit’s pain standard. (Tr. at 17.) However, the ALJ noted, “there is no objective
clinical evidence of a condition which could reasonably be expected to produce the
level of pain, depression and other symptoms which the claimant alleges have
precluded him from working.” Id. The ALJ found that the evidence simply did not
support “the alleged severity of Plaintiff’s symptoms.” (Tr. at 18-20.)
The ALJ’s credibility determination is supported by the record because the
medical evidence does not support Plaintiff’s allegations of disabling pain. See 20
C.F.R. § 404.1529(c)(2) (noting objective medical evidence is a useful indicator
that assists the Commissioner in evaluating a claimant’s symptoms). The main
medical record Plaintiff cites in support of his contention that his allegations of pain
are supported by the record is that of Dr. Goodson in April 2012. The ALJ
discussed these records, noting that Plaintiff’s pelvic and left hip x-ray, taken
during his examination with Dr. Goodson, revealed moderate to severe
degenerative joint disease of the left hip. (Tr. at 18-19, 283-84). However, Dr.
Goodson noted Plaintiff moved all his extremities on command. (Tr. at 283). He
displayed satisfactory motion of the left hip, but had pain only with “extremes of
motion.” (Tr. at 18, 283). Dr. Goodson recommended anti-inflammatory
medication, and commented Plaintiff “will likely need a total hip arthroplasty at
some point down the road.” (Tr. at 284). On a follow-up visit, Dr. Goodson noted
Plaintiff was limited “slightly” with his hip but was “[o]verall . . . getting along
okay.” (Tr. at 282.) He also indicated Plaintiff could continue “working with the
chiropractor” and suggested Plaintiff consider “doing an injection at some point
down the road.” Id. Such conservative treatment has been found to discredit a
claimant’s testimony of disabling pain. See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th
Cir. 1996) (conservative treatment did not support claimant’s subjective
complaints). Although Dr. Goodson diagnosed left hip degenerative joint disease,
the diagnosis does not establish the severity of a condition or any functional
limitations. See Davis v. Barnhart, 153 F. App’x 569, 572 (11th Cir. 2005)
(“Disability is determined by the effect an impairment has on the claimant’s ability
to work, rather than the diagnosis of an impairment itself.”) Moreover, Dr.
Goodson’s findings occurred after the expiration of Plaintiff’s insured status.
Before the expiration of his insured status, the December 2011 notes of Drs.
Arun and Lynn fail to establish the severity of pain that Plaintiff alleges. Dr. Arun
noted that Plaintiff has “[n]o deformity or scoliosis” and that his “[s]traight leg
raise is 70 degrees on both sides.” (Tr. at 224.) Dr. Arun also provided a range of
motion (“ROM”) chart, which shows that Plaintiff’s ROM is normal or just below
normal in every area and that there is little to no difference in ROM of Plaintiff’s
right and left hips. (Tr. at 227-28.) Plaintiff demonstrated 5/5 muscle strength
against resistance and was able to squat and bend down, though he could not “heel
to toe walk.” (Tr. at 224). Plaintiff’s cranial nerves, motor system, sensory system,
and reflexes were normal. (Tr. at 224-25). With respect to his left hip, Plaintiff had
“some joint discomfort,” but he displayed satisfactory range of movements. (Tr. at
225). Dr. Arun indicated Plaintiff could perform his activities of daily living and did
not use a walker or any assistive device regularly. (Tr. at 18, 225). Dr. Lynn
similarly noted “[n]o edema or deformity” in Plaintiff’s extremities and “denies
arthralgia, . . . and] pain” of the musculoskeletal system. (Tr. at 300.) The absence
of deformities in Plaintiff’s extremities and near-normal ROM clearly contradict
the severity of pain alleged by Plaintiff.
Plaintiff also testified at the hearing that he had some concentration and
memory difficulties. (Tr. at 43). However, the evidence of record does not show he
had disabling mental limitations. Dr. Arun noted Plaintiff’s memory was normal.
(Tr. at 225). Likewise, Dr. McDonald, the consulting psychologist, indicated
Plaintiff’s memory appeared intact. (Tr. at 232). As the ALJ noted, Plaintiff
displayed average intelligence and adequate insight and judgment. (Tr. at 19, 232).
The May 2012 progress note of Dr. Penland, revealed Plaintiff showed adequate
insight, linear and goal-directed thoughts, satisfactory attention span, and an
undisturbed memory. (Tr. at 19, 287). In August and December 2012, Plaintiff
displayed good insight, good concentration, rational thought processing, and
normal thought content. (Tr. at 303-04).
Plaintiff’s activities of daily living further belie his allegations of disabling
symptoms. While the ability to engage in daily living activities does not disqualify a
claimant from receiving disability benefits, the Commissioner may properly
consider a claimant’s daily activities, among other evidence, in determining
whether a claimant is entitled to disability benefits. See Majkut v. Comm’r of Soc.
Sec., 394 F. App’x 660, 663 (11th Cir. 2010). In October 2011, Plaintiff reported he
had no problems with personal care, and could prepare sandwiches, frozen dinners,
and simple meals, perform light cleaning and laundry, walk, drive a car, and shop
for “everyday items” and groceries. (Tr. at 139-41). Dr. Arun also noted Plaintiff
was able to perform his activities of daily living. (Tr. at 18, 225).
For these reasons, the Court is of the opinion that the ALJ’s conclusion that
Plaintiff’s subjective pain testimony was not entirely credible was supported by the
record and not due to be disturbed.
Upon review of the administrative record, and considering all of Mr.
Lundberg’s arguments, the Court finds the Commissioner’s decision is supported
by substantial evidence and in accord with the applicable law. A separate order will
DONE and ORDERED on August 7, 2015.
L. Scott Coogler
United States District Judge
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