Porter v. Social Security Administration, Commissioner
AMENDED MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 9/29/2015. (AVC)
2015 Sep-29 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Civil Action No.: 5:14-CV-00949-RDP
AMENDED1 MEMORANDUM OF DECISION
Plaintiff Vivian Porter brings this action pursuant to Section 1631(c)(3) of the Social
Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security
(“Commissioner”) denying her claim for Supplemental Security Income (“SSI”) under Title
XVI. See also 42 U.S.C. § 1383(c). Based on the court’s review of the record and the briefs
submitted by the parties, the court finds that the decision of the Commissioner is due to be
Plaintiff filed her application protectively on January 4, 2011. (Tr. 13, 33, 119, 248). In
the application, she alleged that her disability began December 11, 2007.2 Plaintiff, having
previously filed SSI applications in 2004 and 2006, asserted through her attorney that the
January 4, 2011 application was for “a wholly different case than the case that was presented” on
The earlier Memorandum of Decision (Doc. # 14) entered August 6, 2015, inadvertently contained the
word “remanded.” That was an error. This Amended Memorandum of Decision corrects that error.
During the hearing, Plaintiff amended her onset date of disability to January 4, 2011, the protected filing
date. (Tr. 32–33).
the two earlier occasions.3 (Tr. 32–33). Plaintiff’s application was initially denied by the Social
Security Administration (“SSA”).
Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 131). The request was granted and a hearing was held
on October 10, 2012 via video teleconference in Decatur, Alabama before ALJ Troy Patterson.
(Tr. 29–59). At the hearing, Plaintiff and Vocational Expert Anne Darnell (“VE”) each testified.
(Id.). In his decision dated November 13, 2012, the ALJ determined that Plaintiff has not been
under a disability within the meaning of Section 1614(a)(3)(A) of the Act since January 4, 2011.
(Tr. 13–22). On November 23, 2012, Plaintiff requested review by the Appeals Council of the
ALJ’s decision. (Tr. 5–8). On March 21, 2014, the Appeals Council (“AC”) denied Plaintiff’s
request for review, making the ALJ’s decision of November 13, 2012 the final decision of the
Commissioner, and thus a proper subject of this court’s appellate review. (Tr. 1–3).
Plaintiff, who was forty-four years old at the time of the hearing, is unmarried and has
two adult children. (Tr. 171, 38, 576). She is a high school graduate who was enrolled in special
education classes from the sixth grade forward. (Tr. 35–36, 576). The record contains school
psychological evaluations from the age of 11. The most recent evaluation, performed when
Plaintiff was age 17, included findings of a mental age of 13.6 years, IQ scores ranging from 73
to 83, and overall level of functioning somewhere between the “educable mentally retarded” and
“slow learner” classifications. (Tr. 251). Plaintiff’s last job involved janitorial work. She has
not worked since September 30, 2001. (Tr. 87, 191, 201). Her previous positions included
convenience-store cashier, cook, nursing-home janitor, and poultry-processing worker. (Tr. 87).
Plaintiff alleges that she has the following impairments: (1) fibromyalgia, (2) bulging discs in
Plaintiff’s 2004 and 2006 SSI applications were each denied. (Tr. 81–93, 94–112, 113–18).
neck and back, (3) asthma, (4) depression, (5) anxiety, (6) arthritis throughout body, and (7)
carpal tunnel in both hands. (Tr. 201).
Plaintiff’s medical history prior to the onset of her alleged disability begins with
complaints of headaches and of shoulder, back, neck, knee, and elbow pain, symptoms treated by
Timothy Martin, M.D. from October 2002 to May 2003. (Tr. 281–88). Christopher Gay, D.O.
became Plaintiff’s treating physician in 2003 and continued in that role through 2008. (Tr. 395–
526). In September 2003, Dr. Gay referred Plaintiff to ENT and allergy specialist Jason P.
Lockette, M.D., who diagnosed Plaintiff with pansinusitis and headaches. (Tr. 293). In April
2004, Dr. Gay referred Plaintiff to Surender K. Sandella, M.D. for evaluation of chest pain
radiating to her left arm, a two-month-old symptom which had worsened in the previous two
weeks. (Tr. 298). Dr. Sandella’s assessment was: (1) chest pain, (2) fibromyalgia, (3) obesity,
(4) gastroesophageal reflux disease, and (5) positive family history of premature coronary artery
Plaintiff’s first mental examination in the record, performed by James E. Crowder, Ph.D.
(a psychologist) in July 2004, yielded a diagnosis of: Axis I—“anxiety disorder NOS [not
otherwise specified]”; Axis II—“R/O [rule out] borderline personality disorder”; Axis III—
fibromyalgia, obesity, lupus; gastroesphageal reflux disease; high cholesterol; and acid reflux
disease; Axis IV—moderate stressors “financial, health”; Axis V—a GAF finding of 70. (Tr.
300–02). Cervical-spine x-rays performed by Bernard D. Borosky, M.D. showed “vertebral
alignment and disc spaces are intact. There are no intrinsic bony abnormalities. Prevertebral soft
tissues are normal.” (Tr. 307). Two months later, Jesus Hernandez, M.D. reported to Dr. Gay
regarding his evaluation of Plaintiff’s joint pain in knees, elbows, and hips. (Tr. 296). He stated
that Plaintiff had a normal bone scan, “an unremarkable arthritis profile,” and that “[h]er
examination is consistent with fibromyalgia syndrome.” (Id.). A disability exam performed the
next month by D.B. Laughlin, M.D. concluded Plaintiff had “[g]eneralized pain with reported
history of fibromyalgia,” “[i]nsomnia,” “[a]nxiety/depression”; and “obesity.” (Tr. 303–04).
The record is silent as to Plaintiff’s medical history for the next year and a half, but
resumed with care at the North Alabama Bone & Joint Clinic from 2006 through 2008 for neck,
back, and foot pain, mainly under the care of J. Stephen Howell, D.O. (Tr. 336–56). Treatment
received included epidural injections for back and hip pain. (Tr. 339, 340, 342, 343). X-rays
obtained in 2007 by Robert Dunn, M.D. showed “[a]bnormal cardiac silhouette worrisome for
underlying cardiac abnormality.” (Tr. 305). X-rays performed by Dr. Borosky in March 2008
showed “[m]inimal lateral disc bulging without significant neural impingement.” (Tr. 346). An
initial physical-therapy assessment by Leslie Murphy, PT in July 2008 noted problems of
“increased pain, decreased strength, [and] decreased range of motion involving the low back and
bilateral hip musculature”; Plaintiff reported onset of low-back pain a year prior. (Tr. 333). The
physical therapist saw the outlook as “[g]ood for stated goal” of “decreas[ed] back pain.” (Id.).
The record contains two disability certifications by Dr. Gay. In May 2006, Dr. Gay
certified on an Alabama Resident Disabled Fishing form4 that Plaintiff was “totally disabled as
defined by Section 9-11-54, Code of Alabama 1975,” specifying “[f]ibromalgia [sic], total body
pain, [d]epression, anxiety” as the disabilities.5 (Tr. 479). Similarly, Dr. Gay certified on an
undated application to the Alabama Motor Vehicle Division for disabled parking privileges that
Plaintiff “[could not] walk two hundred feet without stopping to rest . . . .” (Tr. 480).
The photocopy in the record (Tr. 479) is cut off at the top, so the title of the form is not visible; a
handwritten title reads “Disable Fishing” and the form is essentially identical to the “Alabama Resident Disabled
Fishing Application” accessible on the Web at http://license.limestonecounty.net/pdf/fishing_disabled.pdf.
The upper portion of the form, where applicant’s name, address, and other personal information was to be
entered, was left blank; however, it is part of Plaintiff’s record. (Tr. 479).
Dr. Crowder conducted a second psychological exam of Plaintiff in 2008. (Tr. 300–02,
329–31). His diagnoses were: Axis I—“adjustment disorder with mixed emotional features”;
Axis II—“personality disorder NOS with hypochondriacal features”; Axis III—“back pain;
bilateral leg pain; left-wrist pain; fibromyalgia”; Axis IV—moderate stressors of “finances,
difficulty coping with teenagers”; Axis V—a GAF finding of 65. (Tr. 331). Dr. Crowder’s
overall assessment was “a slight limitation in her ability to relate to others . . . and slight
restriction of daily activities based on her mental condition alone. She has good ability to
understand, carry out, and remember simple instructions, and fair to good ability to respond
appropriately to supervisors, coworkers, and work pressures . . . .” (Id.).
Faye Wilson, M.D. became Plaintiff’s treating physician in April 2009, and continued in
that role through at least May 2012. (Tr. 621–81). In a “To whom it may concern” letter dated
January 18, 2011, Dr. Wilson stated that Plaintiff had “multiple problems with her legs and
back” and “bulging disc” [sic] which cause her significant pain”—problems which “have
worsened over the years.” (Tr. 643). Dr. Wilson also noted Plaintiff’s joint arthritis, asthma,
gastroesophageal reflux disease, hyperlipidemia, anxiety, and carpal tunnel syndrome. (Id.). In
a handwritten note on a prescription form dated April 21, 2011, Dr. Wilson noted “severe diffuse
joint pain” as well as “bulging disc in space L5-S1,” “neck pain,” and “bilat[eral] wrist pain,”
and concluded, “[Plaintiff] is unable to work.” (Tr. 642).
Marlin D. Gill, M.D. performed a consultative examination (“CE”) on April 4, 2011 in
order to determine disability. (Tr. 571–73). Plaintiff indicated to Dr. Gill that she was “unable
to work because of low back pain,” and also complained of neck, right hip, and generalized body
pain; carpal tunnel syndrome; and asthma with daily bouts of coughing and shortness of breath.
(Tr. 571–72). Plaintiff reported the symptoms grew worse with standing, walking, or other
movement, and that the asthma occurred when doing strenuous housework, walking, or other
Plaintiff reported doing light housecleaning, laundry, simple meal
preparation, dish washing, driving a car, grocery shopping, bathing, dressing, and other basic
personal needs. (Id.). She stated she could sit for a maximum of one hour, stand for up to 30
minutes, and walk up to 200 yards. (Id.). On the musculoskeletal exam, Dr. Gill observed that
Plaintiff had normal gait, “g[ot] on and off the exam table without difficulty[,]” “use[d] her arms
well,” had “a range of [limb] motion,” and demonstrated normal movement and strength overall;
however, he added that Plaintiff “gave poor effort during the musculoskeletal portion of the
examination.” (Tr. 19, 573). Overall, Dr. Gill found Plaintiff had: (1) low back pain, (2) neck
pain (with “[r]eported history of ‘bulging discs’” noted for both of the latter), (3) right hip pain
with “[r]eported history of ‘arthritis,’” (4) chronic generalized pain with “[r]eported history of
arthritis and fibromyalgia, (5) carpal tunnel syndrome, and (6) asthma. (Tr. 573).
Psychologist William D. McDonald, Ph.D. conducted a CE of Plaintiff on April 11, 2011
with the following diagnoses: Axis I6—dysthymic disorder and “pain disorder associated with
both psychological factors and a general medical condition”; Axis II—“possible borderline
intellectual functioning”; Axis III—“[m]ultiple medical problems, deferred to physician’s
evaluation”; Axis IV—stressors of unemployment, financial difficulties, educational problems,
and limited access to health care; Axis V—a GAF finding of 50. (Tr. 577). Dr. McDonald
characterized Plaintiff’s prognosis as “[p]oor. [Her] medical problems appear to be chronic and
progressive. She also appears to have a life-long history of mental slowness. . . .” (Id.).
On the “multiaxial” diagnostic framework, see American Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders, 25–34 (4th ed. 1994), available at http://www.terapiacognitiva.eu/dwl/dsm5/DSMIV.pdf. Axis I is the main diagnosis, Axis II diagnoses personality disorders or intellectual disabilities, Axis III
considers potentially relevant medical or neurological conditions, Axis IV evaluates patient’s main stressors, and
Axis V looks at the Global Assessment of Functioning or “GAF” score from 0 to 100 (highest level of functioning).
Robert Estock, M.D. completed a Psychiatric Review Technique (“PRT”) form for
Plaintiff on April 15, 2011, in which he noted the presence of three medically-determinable
mental impairments not precisely satisfying the diagnostic criteria for each Listing: 12.04
(affective disorders), 12.05 (mental retardation), and 12.06 (anxiety-related disorders). (Tr. 582).
Under affective disorders, Dr. Estock diagnosed Plaintiff with “depression/[d]ysthymic
[disorder].” (Tr. 585). Under the mental-retardation category, he diagnosed BIF, or borderline
intellectual functioning.7 (Tr. 586). And under anxiety-related disorders, the diagnosis was
simply anxiety disorder. (Tr. 587). The medical disposition indicated by Dr. Estock for all three
disorders was “RFC [Residual Functional Capacity] [a]ssessment [n]ecessary.” (Tr. 582).
Dr. Estock’s Mental RFC Assessment, also done on April 15, 2011, found Plaintiff “not
significantly limited” with respect to ten abilities, “moderately limited” with respect to ten
others, and “markedly limited” for none. (Tr. 604–05). The moderate limitations related to
detailed instructions, extended concentration, responding to workplace change, independent
goal-setting and planning, completing a normal workday/week without psychologically-based
interruptions, and interaction with supervisors, coworkers, and the general public. (Id.). In his
functional capacity assessment, Dr. Estock stated Plaintiff could learn, remember, and perform
simple work routines with more than usual practice; would benefit from a flexible schedule
(including 1-2 missed work days per month), casual supervision with frequent task prompts,
tactful and supportive feedback, limited public contact, and casual contact with coworkers;
needed help with planning; and could deal with changes if infrequent and clearly explained. (Tr.
606). Dr. Estock saw Plaintiff as able to tolerate ordinary work pressures but needing to avoid
excessive pressure and workloads, quick decisions, or rapid changes. (Id.). He recommended
Regarding the “BIF” initialism, see Harper v. Colvin, No. 4:13-cv-00808-MHH, 2014 U.S. Dist. LEXIS
101414, at *5 (N.D. Ala. Jul. 24, 2014).
regular rest breaks as well as “a slowed pace” but added that Plaintiff “will still be able to
maintain a work pace consistent with the mental demands of competitive level work.” (Id.).
On the same date in April 2011, Richard Whitney, M.D. completed a Physical RFC
Assessment of Plaintiff. (Tr. 596–603). Dr. Whitney determined these exertional limitations: (1)
lift and/or carry up to 20 pounds occasionally and (2) 10 pounds frequently; (3) stand and/or
work, with normal breaks, for about 6 hours total in an 8-hour workday; (4) sit, with normal
breaks, for a about 6 hours total; (5) unlimited pushing and/or pulling, within the limits of
numbers (1) and (2). (Tr. 597). Dr. Whitney’s postural limitations assessment was: (1) climb
ramp/stairs occasionally and ladder/scaffolds never; (2) balance frequently; and occasionally (3)
stoop, (4) kneel, (5) crouch, and (6) crawl.
communicative limitations were found.
No manipulative, visual, nor
With respect to environmental
limitations, Dr. Whitney specified “avoid all exposure” to machinery and other hazards,
explaining that “[Plaintiff] should avoid unprotected heights and hazardous machinery”; “avoid
concentrated exposure” to extremes of temperature and to fumes, gases, etc.; and “unlimited”
exposure to wetness, humidity, noise, and vibration. (Tr. 600). With respect to the symptoms’
severity, Dr. Whitney found “[Plaintiff] partially credible.”
medical evidence of record (“MER”) to support Plaintiff’s allegations of fibromyalgia, bulging
discs in neck and back, asthma, arthritis, and bilateral carpal tunnel syndrome; and noted
Plaintiff’s reported pain on lifting, standing, stair climbing, and walking. (Id.). Dr. Whitney
found Plaintiff’s alleged symptoms reasonable given her medically determinable impairments,
but concluded her condition “[was] not supported to [the] degree alleged” and stated Plaintiff
could do light housework, shopping, and drive a car. (Id.).
Plaintiff submitted records regarding 2012 office visits with Dr. Wilson as additional
evidence. Dr. Wilson’s report of the July 2012 office visit indicates that Plaintiff complained she
was “not feeling well” and had shortness of breath. (Tr. 691). But the record is incomplete – it
includes only the first of four pages of the report. (Tr. 691).
Plaintiff was also seen in September 2012 for sinus problems, an asthma attack, and
“discomfort L[eft] side entire arm from shoulder, elbow and wrist” and left hip and back pain.
(Tr. 687). Dr. Wilson’s diagnostic assessment was: pain in joint, upper arm (primary); pain in
joint site, unspecified; unspecified menopausal/postmenopausal disorder; asthma with bronchitis;
other tenosynovitis of hand/wrist; pain in joint, pelvic region and thigh; unspecified disorder of
joint, forearm; and unspecified disorder of joint, upper arm. (Tr. 689).
Disability under the Act is determined under a five-step test; a finding at any of these
steps that the claimant is, or is not, disabled, concludes the analysis. 20 C.F.R. § 404.1520. In
the first step, the ALJ must determine whether the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ finds that the claimant engages in substantial
gainful activity, then the claimant cannot claim disability. 20 C.F.R. § 404.1520(b).
In the second step, the ALJ must determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe; this means that the
impairment significantly limits the claimant’s ability to perform basic work activities. 20 C.F.R.
§ 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id.
If an alleged impairment is mental, the second step of the analysis also involves what are
known as the “paragraph B” criteria. 20 C.F.R. 404 Subpt. P, App. 1, § 12.00. The criteria used
to determine the severity of a mental impairment are: (1) activities of daily living (“ADL’s”); (2)
social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation.
20 C.F.R. § 404.1520a(c)(3). If the “paragraph B” criteria support a severe mental impairment,
the analysis moves to step three, where the same criteria are used to determine whether the
claimant meets a Listing. In contrast, if a claimant does not meet the “paragraph B” criteria, the
analysis turns to “paragraph C.” 20 C.F.R. §§ 404.1520(c), 416.920(c). The “paragraph C”
criteria involve medically documented history of mental impairment with repeated, extended
episodes of decompensation or likelihood of decompensation or inability to function without a
highly supportive living arrangement or one’s own home. If the “paragraph C” criteria are not
met, claimant cannot claim disability based on that impairment. If the “paragraph C” criteria are
met, the analysis moves to the third step. 20 C.F.R. §§ 404.1520(c), 416.920(c).
In the third step of the analysis, the ALJ must determine whether the claimant’s
impairment meets or medically equals the criteria of an impairment listed in 20 C.F.R. § 404,
Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria
are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If the criteria are not
met at this step, the ALJ may still find disability under the next two steps of the analysis.
However, the ALJ must first determine the claimant’s residual functional capacity (“RFC”),
meaning the claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e).
In the fourth step, the ALJ determines whether the claimant’s RFC enables her to perform
past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is determined to be capable
of performing past relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds
the claimant unable to perform past relevant work, or if the claimant has no past relevant work,
then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the fifth
step of the analysis, the burden shifts to the Commissioner to demonstrate the existence of
available employment consistent with the claimant’s impairments. The ALJ determines whether
the claimant is able to perform any other work commensurate with her RFC, age, education, and
work experience. 20 C.F.R. § 404.1520(g)..
Here, the ALJ determined that Plaintiff was not gainfully employed between January 4,
2011 and November 13, 2012, thus meeting the first step of the analysis. (Tr. 15). At the second
step, the ALJ determined that Plaintiff had six severe impairments: degenerative disc disease of
the cervical and lumbar spine; asthma; bilateral knee osteoarthritis; borderline intellectual
functioning; depression; and anxiety. (Tr. 15). At the third step, the ALJ determined that
Plaintiff did not have an impairment, or a combination of impairments, that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. 20
C.F.R. 416.920(d), 416.925, and 416.926). (Tr. 15–16). In reaching this determination, the ALJ
considered both the “paragraph B” and “paragraph C” criteria.
With regard to
“paragraph B,” the ALJ determined that Plaintiff’s mental impairments did not cause at least two
“marked” limitations or, alternatively, one “marked” limitation together with repeated episodes
of decompensation, each of extended duration. (Tr. 16). The ALJ then found, absent repeated
and extended episodes of decompensation, or any indication that an increase in mental demands
or environmental stressors would trigger decompensation, that the “paragraph C” criteria were
not met for Listings 12.02 (organic mental disorders), 12.04 (affective disorders), or 12.06
(anxiety-related disorders). (Tr. 16–17).
Before moving to the fourth step, the ALJ determined Plaintiff has the RFC to perform
less than the full range of light work as defined in 20 C.F.R. 416.967(b), with specific abilities
and limitations as follows: perform simple, routine, and repetitive tasks; lift and/or carry 20
pounds occasionally and 10 pounds frequently; stand, walk, or sit for 6 hours in an 8-hour
workday; occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; frequently
balance; occasionally stoop, kneel, crouch, and crawl; must avoid concentrated exposure to
temperature extremes, fumes, odors, dusts, gases, and poor ventilation; must avoid all exposure
to unprotected heights and hazardous machinery; only occasional interpersonal contact with
coworkers and the public. (Tr. 17–20). At the fourth step, the ALJ determined Plaintiff could
not perform any past relevant work. That led to the fifth and final step of the analysis. (Tr. 20).
At the fifth step, relying on the testimony of the Vocational Expert, the ALJ determined that
available employment consistent with Plaintiff’s age, education, work experience, and RFC
exists in the relevant work markets. (Tr. 21). The ALJ determined that appropriate occupations,
falling within the “unskilled light occupational base,” included hand packager, deli worker, and
production packer. (Tr. 21, 50).
Based upon this analysis, the ALJ concluded that Plaintiff had not been disabled within
the meaning of the Act from January 4, 2011 to November 13, 2012. (Tr. 21).
Plaintiff’s Argument for Reversal
Plaintiff does not contend that the ALJ’s decision is not supported by substantial
evidence. Rather, she argues that the ALJ failed to apply the proper legal standards in two
respects. First, Plaintiff complains that the ALJ failed to properly evaluate the credibility of her
testimony of disabling symptoms in accordance with the Eleventh Circuit pain standard. (Pl.’s
Br. 3–8). Second, Plaintiff asserts the ALJ failed to properly articulate good cause for according
less weight to the opinion of her treating physician. (Pl.’s Br. 9–10).
Standard of Review
The scope of this court’s review is limited to two questions. First, does the record reveal
substantial evidence to sustain the ALJ’s decision? 42 U.S.C. § 405(g); Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982). Second, did the ALJ apply the correct legal standards?
Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th
Cir. 1986). In sum, “[the court] review[s] the ALJ’s ‘factual findings with deference’ and his
‘legal conclusions with close scrutiny.’” Riggs v. Soc. Sec. Admin., Comm’r, 522 F. App’x 509,
510–11 (11th Cir. 2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
While acknowledging the limited scope of judicial review of the ALJ’s findings, the court also
notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
On the first question, 42 U.S.C. § 1383(c) mandates that the Commissioner’s findings are
conclusive if supported by “substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th
Cir. 1990). This is the case even if the evidence preponderates against the findings. Id. The
district court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for
that of the Commissioner; instead, it must review the final decision as a whole and determine if
the decision is reasonable and supported by substantial evidence. See Id. (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Substantial evidence is more than a scintilla but
may be less than a preponderance of evidence; it is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389 (1971) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 217
(1938)); Walden v. Schweiker, 672 F.2d 835 (11th Cir. 1982) (quoting N.L.R.B. v. Columbian
Enameling and Stamping Co., 306 U.S. 292, 300 (1939)).
In contrast to the factual findings, the court submits the legal standards underlying the
Commissioner’s decision to review de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
Even when supported by substantial evidence, a determination may be in error if
“coupled with or derived from faulty legal principles.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (quoting Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983)).
After careful review, the court concludes that Plaintiff’s arguments lack merit and that the
ALJ’s decision is due to be affirmed.
The ALJ Properly Evaluated the Credibility of Plaintiff’s Testimony of
Disabling Symptoms Consistent with the Eleventh Circuit Pain Standard.
Plaintiff first argues that the ALJ failed to properly evaluate the credibility of her
testimony of disabling symptoms in accordance with the Eleventh Circuit pain standard. (Pl.’s
Br. 3–8). Plaintiff cites to the Eleventh Circuit case of Hale v. Bowen in support of the
proposition that when the Secretary fails to properly articulate good reasons for declining to
credit a claimant’s subjective pain testimony, or if the reasons articulated are not supported by
substantial evidence, then as a matter of law the claimant’s testimony is accepted as true. 831
F.2d 1007, 1012 (11th Cir. 1987). (Pl.’s Br. 3–4). This argument is misplaced because the ALJ
correctly applied the pain standard and, in doing so, determined that Plaintiff’s pain testimony
was inconsistent with the record in its entirety.
The Eleventh Circuit pain standard involves two stages of analysis: first, a threshold
inquiry and, second, a credibility determination. At the first stage, a claimant must present both
(1) evidence of an underlying medical condition and (2) objective medical evidence confirming
either (a) the severity of the alleged pain arising from that condition, or (b) that the objectively
determined medical condition is of such 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); Hand v. Heckler, 761
F.2d at 1548 (quoting S. Rep. No. 466 at 24). If the claimant successfully passes this threshold
requirement, a presumption is created that the claimant is disabled and the burden of proof
effectively shifts to the ALJ to show that the claimant is not disabled. At this point, the ALJ may
still discredit a claimant’s subjective allegations of disabling pain, but the ALJ “must clearly
articulate explicit and adequate reasons for so doing. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005); see also Holt, 921 F.2d at 1223 (11th Cir. 1991), Foote v. Chater, 67 F.3d
1553, 1561–62 (11th Cir. 1995).
Here, the ALJ found that, although Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms, Plaintiff’s statements about the intensity,
persistence, and limiting effects of her pain were not credible to the extent that they were
inconsistent with the RFC assessment conducted by the ALJ. (Tr. 18). The ALJ found that
Plaintiff’s complaint of severe, disabling neck and back pain were not consistent with multiple
radiology reports showing only mild disc bulging. Nor were her statements consistent with
treatment records from her treating physician, Dr. Wilson, showing supple neck with full range
of motion (including a record from March 2012). (Id.). With respect to Plaintiff’s allegations of
severe, disabling leg and knee pain, the ALJ cited multiple records, including the following: xrays indicating mild osteoarthritis of the knees; unassisted walking with normal gait on Dr. Gill’s
musculoskeletal exam in April 2011; and moving all extremities well on Dr. Wilson’s exam in
March 2012. (Id.). Similarly, with regard to her alleged asthma symptoms, the ALJ cited
records from Dr. Wilson indicating Plaintiff’s asthma was stable in August 2010 and from Dr.
Gill showing her respirations were normal and lungs entirely clear in April 2011. (Id.). Finally,
the ALJ determined that the record did not support the allegations of severe, disabling mental
impairments, and pointed to records of appropriate mood and affect in March 2012 and slightly
depressed mood in May 2012, both from Dr. Wilson.
impairment, the ALJ also noted Plaintiff’s school psychological testing records indicating
borderline intellectual functioning (which the ALJ took into account in arriving at Plaintiff’s
RFC). (Tr. 19).
The court finds that substantial evidence supports the ALJ’s decision that Plaintiff’s pain
testimony was less than fully credible and that the ALJ did not misapply the pain standard.
Therefore, Plaintiff’s argument on this score does not form a basis for remanding or reversing the
The ALJ Properly Articulated Good Cause for According Less Weight to the
Opinion of Plaintiff’s Treating Physician.
Plaintiff also argues that the ALJ erred in assigning less weight to the opinion of her
treating physician, Dr. Wilson, while failing to properly articulate good cause for doing so. (Pl.’s
Br. 9–10; Tr. 19–20). In making this argument, Plaintiff relies on two Eleventh Circuit cases —
Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988) (substantial or considerable weight must be
given to the opinions of a treating physician), and Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004) (treating physician’s opinion cannot be discounted absent a showing of good
cause to the contrary).
Here, the ALJ stated that he gave Dr. Wilson’s opinion that Plaintiff is unable to work
“some weight but not great weight” for three reasons: determining a claimant’s disability is an
administrative determination reserved to the Commissioner; Dr. Wilson’s opinion was not
consistent with her own treatment notes; and Dr. Wilson’s opinion was not consistent with that
of State Agency consultant Dr. Whitney. (Tr. 19–20).
It is settled law in the Eleventh Circuit that “the opinion of a treating physician is entitled
to substantial weight unless good cause exists for not heeding the treating physician’s
diagnosis.”8 Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991). The underlying reasoning
is that treating physicians are “likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative examinations or brief
hospitalizations.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (quoting 20 C.F.R. §
404.1527(d)(2)) (internal quotation marks omitted).
At the same time, while a treating
physician’s opinion is generally afforded substantial weight, “it is not necessarily dispositive.”
Holly v. Chater, 941 F. Supp. 840, 848 (S.D. Fla. 1996). A treating physician’s report “may be
discounted when it is not accompanied by objective medical evidence or is wholly conclusory.”
Edwards v. Sullivan, 937 F.2d 580 583 (11th Cir. 1991) (citing Schnorr v. Bowen, 816 F.2d 578,
582 (11th Cir. 1987)). The opinion of a treating physician may also be rejected if it is “so brief
and conclusory that it lacks persuasive weight or when it is unsubstantiated by any clinical or
laboratory findings.” Hudson v. Heckler, 755 F.2d 781, 784 (11th Cir. 1985); Bloodsworth v.
Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983).
With regard to the ALJ’s first basis for giving less weight to Dr. Wilson’s opinion, the
Regulations are crystal clear a determination of a claimant’s disability is squarely and
exclusively within the province of the Commissioner. 20 C.F.R. § 416.927(d)(3). Dr. Wilson’s
April 21, 2011 statement that “[Plaintiff] is unable to work” is a medical opinion regarding an
administrative determination, and as such it cannot be dispositive. (Tr. 642). Furthermore, both
Dr. Wilson’s handwritten note of April 2011 and her letter of January 2011 simply set forth
diagnoses of impairments; however, the presence of impairments does not amount to a
The Social Security Regulations define a treating physician as one who provides a claimant “with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship with” the claimant. 20 C.F.R. §
determination of disability. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (“the mere
existence of . . . impairments does not reveal the extent to which they limit [a claimant’s] ability
to work or undermine the ALJ’s determination in that regard”).
The ALJ also noted that Dr. Wilson’s opinion was inconsistent with medical evidence of
record, citing a treatment note by Dr. Wilson herself dated July 7, 20099 in which Plaintiff’s
musculoskeletal exam was checked as “normal.” (Tr. 20, 656). Plaintiff objects that the “ALJ’s
reliance on that one treatment note renders his rationale not supported by substantial evidence.”
(Pl.’s Mem. 10) (emphasis in original changed to italics). While it is true that the note at issue is
only a single medical record and predates Plaintiff’s onset date of alleged disability, Plaintiff’s
claim that the ALJ based his decision on “an isolated review of the record and is contrary to the
totality of the medical evidence” is simply undercut by multiple records from different sources.
There were other findings by Dr. Wilson that do not support her conclusion regarding Plaintiff’s
disability. In addition to the July 2011 treatment note, her report on Plaintiff’s March 8, 2012
office visit noted “neck supple, full range of motion” and “[m]oves all extremities well” and her
report on the May 15, 2012 visit indicated Plaintiff “[m]oves all extremities” although noting her
complaints of pain. (Tr. 656, 626, 622). Dr. Gill’s April 2011 consultative examination showed
Plaintiff had good use and range of motion of her extremities, normal gait, and normal
movement and strength overall, and her neck was normal, symmetrical, and supple. (Tr. 572–
73). Plaintiff also reported to Dr. Gill that she was able to carry out household cooking and
cleaning tasks, driving, shopping, and such personal activities as bathing and dressing. (Tr. 572).
Although the ALJ’s decision refers to “the medical records dated June 22, 2009,” the page citation he
provides (Exhibit D28F, Page 36) is to the July 7, 2009 treatment note, with “normal” checked for Plaintiff’s
musculoskeletal exam. (Tr. 656). In the June 22, 2009 treatment note, neither the “normal” nor “abnormal” options
are checked with regard to the musculoskeletal exam. (Tr. 657).
The ALJ stated that his decision to accord “some weight but not great weight” to Dr.
Wilson’s opinion regarding Plaintiff’s alleged disability was also based on the inconsistency of
that opinion with the opinion of Dr. Whitney, the State Agency medical consultant who
completed a Physical RFC Assessment in April 2011. (Tr. 19–20, 596–603). The ALJ stated
that he gave “great weight” to Dr. Whitney’s opinion because of its consistency with the record
as a whole. (Tr. 19–20). Generally, the opinion of a physician who did not examine a claimant
“is entitled to little weight and taken alone does not constitute substantial evidence to support an
administrative decision.” Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990) (citing
Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985)). Ordinarily, the opinion of a treating
physician is entitled to more weight than that of a non-examining, consultative physician. Lewis,
125 F.3d at 1440. But here, the ALJ articulated good cause for his decision to rely on Dr.
Whitney’s opinion. In fact, he did not rely upon that opinion alone. The ALJ provided good
cause for his decision to accord limited weight to the opinion of Dr. Wilson. (Tr. 19–20).
Therefore, the ALJ did not fail in his duty to explain his reasoning in giving less weight
to the opinion of Plaintiff’s treating physician, and this court finds that substantial evidence
supported the ALJ’s decision in this regard.
The court concludes that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence, and that with regard to the legal standards that formed the
basis for Plaintiff’s objections, the ALJ properly decided that Plaintiff’s pain testimony was less
than fully credible, and properly accounted for his decision to accord less weight to the opinions
of Plaintiff’s treating physician, Dr. Wilson. The Commissioner’s final decision is therefore due
to be affirmed.
A separate order in accordance with this memorandum of decision will be
DONE and ORDERED this September 29, 2015.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?