Garmon v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 6/28/16. (SMH)
2016 Jun-28 PM 03:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CASE NO. 5:14-CV-1108-SLB
Plaintiff Bobby Garmon brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the final decision of the Commissioner of Social Security denying his
applications for a period of disability, disability insurance benefits [DIB], and supplemental
security income [SSI]. After review of the record, the parties’ submissions, and the relevant
law, the court is of the opinion that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Mr. Garmon filed an application for a period of disability and DIB on September 7,
2011, (doc. 6-6 at R.167),1 and an application for SSI on September 21, 2011, (id. at R.169),
alleging a disability onset date of January 1, 2010, (id. at R.167, R.169).2 The applications
Reference to a document number, (“Doc. __”), refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as (“R.__”).
The ALJ found that the applications were filed on September 2, 2011. (Doc. 6-3 at
were initially denied on December 13, 2011. (Doc. 6-5 at R.62.) Thereafter, Mr. Garmon
requested a hearing before an Administrative Law Judge [ALJ], which was held on
September 24, 2012. (Id. at R.69-70; see doc. 6-3 at R.33.) Following the hearing, the ALJ
found that Mr. Garmon was not disabled; therefore, he denied Mr. Garmon’s applications for
a period of disability, DIB, and SSI on December 13, 2012. (Doc. 6-3 at R.28.)
Mr. Garmon requested review of the ALJ’s decision by the Appeals Council. (See id.
at R.14.) On May 9, 2014, the Appeals Council denied the request for review, stating that
it had “found no reason under [its] rules to review the [ALJ’s] decision.” (Id. at R.1.)
Therefore, “the [ALJ’s] decision is the final decision of the Commissioner of Social Security
in [Mr. Garmon’s] case.” (Id.)
Mr. Garmon filed an appeal in this court on June 11, 2014. (Doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one: “Our review of the Commissioner’s decision is limited to an inquiry into
whether there is substantial evidence to support the findings of the Commissioner, and
whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court
gives deference to factual findings. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.
1991). The court “may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to
determine if the decision reached is reasonable and supported by substantial evidence.”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir.1983)) (internal quotations and other citation omitted). “The
Commissioner’s factual findings are conclusive if supported by substantial evidence.”
Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990);
Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). “Substantial evidence” is “more than
a scintilla and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “No . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for a period of disability, DIB, and/or SSI. See
20 C.F.R. § 404.1520(a)(1)-(2); 20 C.F.R. § 416.920(a)(1)-(2); see Bowen v. City of New
York, 476 U.S. 467, 470 (1986). “[A]n individual shall be considered to be disabled for
purposes of [determining eligibility for DIB and SSI benefits] if he is unable to engage in 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 months.” 42 U.S.C.
§1382c(a)(3)(C)(1); see also 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A).
The specific steps in the evaluation process in this case are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”3
20 C.F.R. § 404.1572; 20 C.F.R. § 416.972. If the claimant is working and that work is
substantial gainful activity, the Commissioner will find that the claimant is not disabled,
regardless of the claimant’s medical condition or his age, education, and work experience.
The regulations state:
(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 404.1572; 20 C.F.R. § 416.972.
20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b). “Under the first step, the claimant has the
burden to show that [he] is not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Commissioner of Social Sec., 457 Fed. Appx. 862, 863 (2012).4
The ALJ found that Mr. Garmon had not engaged in substantial gainful activity since
January 1, 2010, the alleged onset date. (Doc. 6-3 at R.22.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R. § 416.920(a)(4)(ii), (c). “[A]
‘physical or mental impairment’ is an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D). The
regulations provide: “[I]f you do not have any impairment or combination of impairments
which significantly limits your physical or mental ability to do basic work activities, we will
find that you do not have a severe impairment and are, therefore, not disabled.” 20 C.F.R.
§ 404.1520(c); 20 C.F.R. § 416.920(c). “An impairment can be considered as not severe only
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
if it is a slight abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to work, irrespective of age,
education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see
also 20 C.F.R. § 404.1521(a); 20 C.F.R. § 416.921(a). A complainant may be found disabled
based on a combination of impairments even though none of the individual impairments
alone are disabling. Walker v. Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20
C.F.R. § 404.1523; 20 C.F.R. §416.923. A claimant has the burden to show that he has a
severe impairment or combination of impairments. Reynolds-Buckley, 457 Fed. Appx. at
The ALJ found that Mr. Garmon had “the following severe impairments: disorders
of the back, cervicalgia, and blindness in his left eye.” (Doc. 6-3 at R.22.) He also found
that Mr. Garmon’s “medically determinable mental impairment of anxiety/depression,
considered singly and in combination, does not cause more than minimal limitation in the
claimant's ability to perform basic mental work activities and are therefore non-severe.” (Id.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets or is equivalent to any one of the listed
impairments, which are impairments that are so severe as to prevent an individual with the
described impairment from performing substantial gainful activity.
20 C.F.R. §
404.1520(a)(4)(iii), (d)-(e); 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404,
Subpart P, Appendix 1 [The Listings]. If the claimant’s impairment meets or equals an
impairment listed in the regulations, the Commissioner must find the claimant disabled,
regardless of the claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d);
20 C.F.R. § 416.920(d). The claimant has the burden of proving that his impairment meets
or equals the criteria contained in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at
The ALJ found that Mr. Garmon did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Doc. 6-3 at R.23.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment or combination of impairments does not meet or equal the criteria
of a Listing, the claimant must prove that his impairment or combination of impairments
prevents him from performing his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv),
(f); 20 C.F. R. § 416.920(a)(4)(iv), (f). At step four, the Commissioner “will first compare
[her] assessment of [the claimant’s] residual functional capacity [RFC] with the physical and
mental demands of [the claimant’s] past relevant work. 20 C.F.R. § 404.1560(b); 20 C.F.R.
§ 416.960(b). “Past relevant work is work that [the claimant has] done within the past 15
years, that was substantial gainful activity, and that lasted long enough for [him] to learn to
do it. 20 C.F.R. § 404.1560(b)(1); 20 C.F.R. § 416.960(b)(1). If the claimant is capable of
performing his past relevant work, the Commissioner will find he is not disabled. 20 C.F.R.
§ 404.1560(e); 20 C.F.R. § 416.920(e). The claimant bears the burden of establishing that
the impairment or combination or impairments prevents him from performing past work.
Reynolds-Buckley, 457 Fed. Appx. at 863.
Based on his “careful consideration of the entire record,” the ALJ found that Mr.
Garmon could perform a limited range of light work; he found:
[W]ith a limited ability to read and write, the claimant has the residual
functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b)
and 416.967(b). He can occasionally lift and/or carry up to 20 pounds and
frequently lift and/or carry up to 10 pounds. With normal breaks, he can stand
and/or walk for six hours and sit for six hours in an eight-hour workday. He
would have no limitations working with foot or hand controls and can
occasionally balance, stoop, and crouch. He can occasionally climb ramps and
stairs, but should not perform work activity that requires the use of ladders,
ropes, or scaffolds. With visual limitations, he should not work with
hazardous machinery and should not work at unprotected heights.
(Doc. 6-3 at R.23.) Based on the RFC, the ALJ found that Mr. Garmon could not perform
his past relevant work as a diesel mechanic. (Id. at R.27.)
5. Other Work in the National Economy
If the claimant establishes that he is unable to perform his past relevant work, the
Commissioner must show that the claimant – in light of his RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. §
404.1520(c)(1); 20 C.F.R. § 416.920(c)(1). The regulations provide:
If we find that your [RFC] is not enough to enable you to do any of your
past relevant work, we will use the same [RFC] assessment we used to decide
if you could do your past relevant work when we decide if you can adjust to
any other work. We will look at your ability to adjust to other work by
considering your [RFC] and your vocational factors of age, education, and
work experience. Any other work (jobs) that you can adjust to must exist in
significant numbers in the national economy (either in the region where you
live or in several regions in the country).
20 C.F.R. § 404.1560(c)(1); 20 C.F. R. § 416.960(c)(1). If the claimant is not capable of
performing such other work, the Commissioner must find the claimant is disabled. 20 C.F.R.
§ 404.1520(f); 20 C.F.R. § 416.920(f).
If, however, the Commissioner finds that the
claimant can perform other work, the claimant has the burden to prove he is not capable of
performing such other work.
The ALJ found that Mr. Garmon, who was born in 1958, was “an individual closely
approaching advanced age . . . on the alleged disability onset date.” (Doc. 6-3 at R.27.) He
had a limited education and had “acquired work skills from past relevant work.” (Id.) The
ALJ consulted a vocational expert [VE]; the VE testified that an individual with Mr.
Garmon’s RFC and vocational factors could perform “jobs existing in significant numbers
in the national economy,” including parking lot attendant, mechanic marker, and cushion
filler. (Id. at R.27-28, R.54-56.) Based on this testimony, the ALJ found Mr. Garmon could
make as successful adjustment to perform other work. (Id. at R.27-28.)
Therefore, the ALJ found that Mr. Garmon had not been under a disability at any time
from January 1, 2010, the alleged onset date, through December 13, 2012, the date of his
decision. (Id. at R.28.)
B. MR. GARMON’S APPEAL
Mr. Garmon raises a single issue on appeal: “The ALJ failed to properly evaluate
Garmon’s subjective pain complaints in accordance with the Eleventh Circuit’s three[-]part
pain standard.” (Doc. 8 at 8.) For the reasons set forth below, the court finds that the
Commissioner’s decision is due to be affirmed.
In this Circuit –
[W]here, as here, a plaintiff alleges disability because of pain, he must meet
additional criteria. In this circuit, “a three[-] part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony
of pain or other subjective symptoms.” Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.
Id. However, medical evidence of pain itself, or of its intensity, is not
While both the regulations and the Hand standard5 require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 C.F.R. §§
Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985).
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir.1991)(parenthetical
information omitted). Moreover, “[a] claimant's subjective testimony
supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223.
Therefore, if a claimant testifies to disabling pain and satisfies the three[-]part
pain standard, the ALJ must find a disability unless the ALJ properly discredits
the claimant's testimony.
Furthermore, when the ALJ fails to credit a claimant's pain testimony,
the ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons
for refusing to credit a claimant's subjective pain testimony, then the
[ALJ], as a matter of law, has accepted that testimony as true. Implicit
in this rule is the requirement that such articulation of reasons by the
[ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons
for refusing to credit the plaintiff's pain testimony, or if the ALJ's reasons are
not supported by substantial evidence, the court must accept as true the pain
testimony of the plaintiff and render a finding of disability. Id.
Crow v. Colvin, 36 F. Supp. 3d 1255, 1259 (N.D. Ala. 2014)(original footnote omitted;
footnote added). “If proof of disability is based upon subjective evidence and a credibility
determination is, therefore, critical to the decision, the ALJ must either explicitly discredit
such testimony or the implication must be so clear as to amount to a specific credibility
finding.” Duval v. Comm'r of Soc. Sec., 628 Fed. Appx. 703, 711 (11th Cir. 2015)(quoting
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)).
The ALJ found Mr. Garmon’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant's statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the [RFC].” (Doc. 6-3 at 24.) As grounds for this finding, the ALJ
The claimant has alleged an inability to work due to his impairments, but
reported a significant level of daily activities when he completed his Function
Report – Adult in September 2011. He showed no limitations in performing
his personal care and drove short distances, such as to the store, once or twice
a day. Hobbies and interests included hunting, fishing, and watching
television, but he reported he was unable to hunt and had only fished once in
the past three months, because he could not sit very long. He spends time with
his children and grandchildren, stating they cookout on the weekends and he
visits his mother in the nursing home once a week (Exhibit B3E). While the
claimant has reported some limitations in performing his daily activities, the
undersigned finds he has continued to show a level of functioning, inconsistent
with disabling limitations. Furthermore, medical evidence has not supported
the severity of limitations he alleges.
Evidence of record shows the claimant has a significant history of treatment
for back pain with records showing he initially injured his cervical spine in
2006. Subsequently, he underwent a C5-6 anterior cervical diskectomy and
fusion in May 2006 with improvement noted (Exhibit B1F). He did well for
the first six months, but deterioration with neck pain and left arm pain was
noted when he returned to Neurosurgical Associates in March 2008. At that
time, he reported over the past several months he had had advancing
intermittent left arm pain and paresthesias involving his left hand. A recent
MRI showed advancing spondylosis, especially on the left at C6-7. He also
had mild degenerative disease at C7-T1, T1-2, and T2-3. Conservative care,
including physical therapy, continued to be recommended, but the claimant
was not always compliant with the recommended treatment (Exhibits B2F,
B3F and B4F).
Although the claimant was admitted to the hospital in August 2008, with a
possible heat stroke, there is little evidence of additional treatment for his back
pain until February 2011, when records from Dr. Turnley at Orthopaedic
Specialists of Alabama show he had not been seen in a while. He was noted
to have persistent cervicalgia, but treatment records show had used Lortab and
Voltaran that enabled him to be more functional and do his job. A severity of
limitations consistent with the reports by the claimant were not evidenced. On
exam, gross motor and sensory in his upper extremities remained intact and his
medications were refilled. In September 2011, he returned for a follow-up and
continued to report pain. His medications were refilled and he returned for an
additional visit in March 2012, stating he had done fairly well on the
medication. However, he reported he sometimes had bad days, depending on
what he did. Dr. Turnley noted the claimant's persistent cervicalgia and
cervical degeneration, but opined he was not acutely ill and ambulated around
the exam room. While he was noted to hold his neck without the normal
cervical lordosis, gross motor and sensory was unchanged in his upper
extremities. His medications were continued (Exhibits B5F and B12F).
Records also show the claimant returned to Neurosurgical Associates in
February 2012. A significant break in treatment was evidenced, with notes
showing he had last been seen at that facility in March 2008. The claimant
reported he had developed more popping and cracking in his neck over the last
six months. He continued to report some left shoulder and arm pain and
complained of significant lumbosacral pain. Over the past three months, he
reported he had developed worsening right hip pain and numbness in his leg.
He also reported several falls and one episode when he was unable to get up
without help. However, his exam failed to show significant limitations.
Strength in his upper and lower extremities was 5/5 and straight leg raising test
was negative, but mild foot drop and decreased pinprick in his right foot was
noted. Additional testing included an MRI of his lumbar spine, which showed
small disc protrusions above the previous diskectomy level, mild stenosis at
L3-4, and discogenic edema at L1-2 with enhancement. In March 2012, the
claimant returned with continuing complaints of low back pain with radiation
into his right lower extremity. However, exam at this time also failed to
support significant limitations. He ambulated into and out of the exam room
with a normal heel to toe gait pattern and there was no evidence of focal
atrophy or abnormal tone. He had some tenderness to palpation along the
lower lumbar paraspinals and decreased range of motion with forward flexion
at the lumbar spine, secondary to discomfort. Extremities showed no evidence
of clubbing, cyanosis, or edema and his neurological exam demonstrated
functional strength with normal reflexes. Additional testing included motor
nerve conduction studies, sensory nerve conduction studies, and needle EMG
studies, but interpretation and conclusions only showed evidence consistent
with irritation of the L5 nerve roots bilaterally, with the right to a greater
extent that the left. There was no evidence to suggest acute radiculopathy,
significant generalized neuropathy, or myopathy (Exhibit B13F).
In assessing the claimant's limitations, the state agency requested a
consultative physical examination that was performed by Dr. Moizuddin on
December 6, 2011. The claimant reported his history of back pain and also the
history of his injury to his left eye. He reported he has lost almost all the sight
in that eye, but could see light and dark. On exam, the claimant was 6 feet 6
inches tall and weighed 212 pounds. Visual acuity – uncorrected corrected
showed OD: 20/30, OS: 20/100, and OU: 20/30. Exam of his neck was normal
and lung auscultation showed no rales or rhonchi, no wheezing, and no rubs.
Heart auscultation showed normal S1 and S2, with no murmur, gallop, rubs,
or clicks. Muscle strength was 5/5 in all groups and he could squat 3/4 way.
He was unable to heel walk, but could toe walk. There was no cyanosis,
clubbing, or edema in his extremities. Gait was normal and he used no
assistive device. Dr. Moizuddin noted the claimant's chronic neck pain with
radiation to his left arm and need for a fusion. He also noted degenerative disc
disease, blindness in his left eye, anxiety, and depression, but did not opine the
claimant experienced limitations that significantly limited his level of
functioning (Exhibit B8F).
X-rays of the claimant's lumbar spine were also requested by the state agency
and performed in December 2011. While findings were supportive of the
claimant's history of back surgery, only moderate spondylosis, L1-2
degenerative disc disease, and minimal upper lumbar scoliosis, inconsistent
with the severity of limitations alleged by the claimant (Exhibit B7F).
In December 2011, the state agency medical consultant opined the claimant's
psychological impairments were not severe, with no more than mild limitations
(Exhibit B10F) and considerable weight is given to this opinion, as evidence
has not supported significant psychological limitations. In fact, there is no
evidence that the claimant sought treatment from a mental health source.
Although, he was admitted to the hospital with chest pain in July 2011 and his
problems were determined to be related to anxiety, he had recently taken on
the roll of primary care giver for his mother, who had multiple health issues.
There is no evidence that his problems persisted or that he continued to
experience problems that significantly limited his level of functioning (Exhibit
B6F). It is also noted he continued to show a level of functioning inconsistent
with significant psychological limitations, with records showing he enjoyed
spending time with his children and grandchildren on the weekends.
Regarding his physical impairments, the state agency medical consultant
opined the claimant retained the residual functional capacity to perform a light
level of exertional activity and considerable weight is also given to this
opinion. While evidence shows the claimant experiences significant visual
limitations, he has shown an ability to work with those limitations in the past
and there is no evidence to show his limitations have increased or would result
in more significant limitations that would affect his level of functioning. The
claimant's main problems seem to be related to his back pain. While he has a
history of surgeries for his back impairments, improvement was noted. There
is an extended period of time with no evidence of treatment. In fact, when the
claimant returned for treatment, at least two of his treating sources noted he
had not been seen for an extended period of time. Objective findings relevant
to his alleged disability have also failed to support the severity of limitations
he alleges, showing only mild and moderate limitations. The consultative
examination by Dr. Moizuddin also failed to support significant limitations and
those findings are accepted by the undersigned. It is also noted that Dr.
Moizuddin did not suggest the claimant was experiencing significant
In review of the record, the undersigned finds the claimant is not fully credible
in his allegations. While he may experience some limitation, he has continued
to show a significant level of daily activity, inconsistent with disabling
limitations. He performed his personal care without assistance, drove,
shopped, and was involved with the activities of his children and
grandchildren. Based on the record as a whole, the undersigned finds that
even considering the combined effects of the claimant's impairments with
resulting limitations, he retains the ability to perform work activity at the light
level of exertion with the limitations previously noted.
(Doc. 6-3 at R.24-27.)
As set forth above, the ALJ found Mr. Garmon’s testimony not fully credible
regarding the intensity and persistence of his pain, and how his pain limited his ability to
work. “If the record shows that the claimant has a medically determinable impairment that
could reasonably be expected to produce his symptoms, the ALJ must evaluate the intensity
and persistence of the symptoms in determining how they limit the claimant's capacity for
work.” Duval, 628 Fed. Appx. at 711 (citing 20 C.F.R. §§ 404.1529(c)(1), 416.927(c)(1)).
The ALJ based his credibility determination on the following factors:
1. The lack of evidence of significant limitations on examination by treating and
consulting physicians and/or the objective medical evidence.
2. Following surgeries that predate the alleged onset date, conservative treatment,
including effective medication, and Mr. Garmon’s failure to fully comply with treating
physicians’ recommended treatment.
3. A break in medical treatment for neck and back pain from October 2008 to
4. A significant level of daily activity.
(See doc. 6-3 at R.24-27.)
Of the reasons given for finding Mr. Garmon’s testimony of his pain to be not fully
credible, Mr. Garmon challenges only three. He argues, “The ALJ’s findings are in error
because his analysis fails to properly apply the [pain] standard, and [two of] his reasons for
finding [Mr.] Garmon to be “not credible” are not supported by substantial evidence.” (Doc.
8 at 9.) Specifically, Mr. Garmon contends: (1) “the record contains multiple diagnostic
studies and interpretations from physicians which objectively confirm the severity of the
plaintiff’s pain,” (id. [emphasis added]); (2) his “mild activities do not minimize his
allegations of significant work[-]related limitations and certainly do not show that he would
be capable of performing light level work on a regular and continuing basis,” (id. at 10); and
(3) the ALJ improperly considered the consulting physician’s silence regarding whether Mr.
Garmon “was experiencing significant functional limitations,” (id. at 12). He does not
challenge the other reasons, set forth above, that the ALJ gave for discounting his pain
testimony, which the court finds are supported by substantial evidence.6
The court has carefully considered Mr. Garmon’s arguments and the entire record, and
it finds that substantial evidence supports the ALJ’s finding that Mr. Garmon’s complaints
of disabling pain are not fully credible.
1. Objective Medical Evidence That Confirms the Severity of the Alleged Pain
Mr. Garmon argues:
Part (2) of the [pain] standard7 is met in this case because the record contains
multiple diagnostic studies and interpretations from physicians which
objectively confirm the severity of the plaintiff’s pain. Specifically, Dr. Maher
reviewed the plaintiff’s cervical MRI from February 8, 2008 and explained
that this study showed the previous fusion at C5-6, but he also believed that it
showed “significant” and “severe” abnormalities at C6-7 (Tr. 240)(emphasis
added). Dr. Maher believed that the plaintiff’s worsening left arm pain was
likely due to the degeneration at C6-7 (Tr. 241). Further, regarding the lumbar
spine, X-rays revealed a previous surgical fusion and moderate spondylosis
(Tr. 315). A Lumbar MRI from February 27, 2012 showed disc protrusions
and facet arthritis at multiple levels while the NCS/EMG from March 14, 2012
established evidence of irritation of the L5 nerve root (Tr. 351, 355-356).
Additionally, Dr. Moizuddin found diminished range of motion related to both
the cervical and lumbar spine (Tr. 317), and he believed that Garmon needed
an additional fusion at C6-7 (Tr. 321).8 As such, the objective evidence in this
(See doc. 6-8 at R.237-43, R.247, R.255-60, R.271-78, R.315, R.317-21, R.323-29,
R.347, R.349; doc. 6-9 at R.351-56.)
Part 2 of the pain standard allows a claimant to prove disability based on pain by
showing “objective medical evidence that confirms the severity of the alleged pain arising
from [the claimant’s] condition.” Holt, 921 F.2d at 1223.
The record shows that Dr. Moizuddin’s report states Mr. Garmon had been advised
to have a fusion of C6/7, but that he had not had it done. (Doc. 6-8 at 319.) On March 20,
2008, P. Colby Maher, M.D., Mr. Garmon’s treating neurosurgeon, stated he explained to
case confirms the severity of the plaintiff’s alleged pain such that his
complaints should have been found to be credible.
(Doc. 8 at 9 [footnote added].)
The regulations define “objective medical evidence” as “medical signs and laboratory
findings as defined in § 404.1528 (b) and (c),” and 20 C.F.R. § 416.928(b) and (c). 20 C.F.R.
§§ 404.1512(b)(1)(i), 416.929(b)(1)(i). “Objective medical evidence” does not include
“other evidence from medical source, such as medical history, opinions, and statements about
treatment [a claimant has] received.” 20 C.F.R. §§ 404.1512(b)(1)(ii), 416.912(b)(1)(ii).
“Signs are anatomical, physiological, or psychological abnormalities which can be observed,
apart from [the claimant’s] statements (symptoms).9 Signs must be shown by medically
acceptable clinical diagnostic techniques.” 20 C.F.R. §§ 404.1528(b), 416.928(b)(emphasis
and footnote added). Laboratory findings are anatomical, physiological, or psychological
phenomena which can be shown by the use of a medically acceptable laboratory diagnostic
techniques. Some of these diagnostic techniques include chemical tests, electrophysiological
Mr. Garmon that “extending his fusion to the C6/7 level would likely alleviate some of his
left arm symptoms, but it would be difficult to predict how it [would] affect his neck pain and
headache situation,” and he recommended Mr. Garmon “consider fusing the C6/7 segment
only if Mr. Garmon “reach[ed] a point of incapacitation.” (Doc. 6-8 at R.237.) On February
20, 2012, Dr. Maher noted that he did “not think there [had] been a major change in his
cervical spine as of yet,” and he did not recommend fusing the C6/7 segment. (Doc. 6-9 at
“Symptoms are your own description of your physical or mental impairment.” 20
C.F.R. §§ 404.1528(a), 416.928(a)(emphasis added).
studies (electrocardiogram, electroencephalogram, etc.), roentgenological studies (X-rays),
and psychological tests.” 20 C.F.R. §§ 404.1528(c); 416.928(c)(emphasis added).
The evidence cited by Mr. Garmon is not “objective medical evidence” that proves
the severity of his alleged pain. This evidence shows that he has a medical impairment; it
does not show how he is limited by pain caused by his impairments. Indeed, individuals with
the same medical impairment may not be functionally limited to the same extent.
Pain or other symptoms may cause a limitation of function beyond that which
can be determined on the basis of the anatomical, physiological or
psychological abnormalities considered alone; e.g., someone with a low back
disorder may be fully capable of the physical demands consistent with those
of sustained medium work activity, but another person with the same disorder,
because of pain, may not be capable of more than the physical demands
consistent with those of light work activity on a sustained basis.
20 C.F.R. §§ 404.1545(e); 416.945(e). “The relationship between impairment and disability
remains both complex and difficult, if not impossible, to predict. The same level of injury
is in no way predictive of an affected individual's ability to participate in major life functions
(including work).” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(internal quotations
and citation omitted).
The “objective medical evidence” and physician opinions cited by Garmon as
evidence of the severity of his pain do not qualify as “objective evidence medical evidence”
and/or do not prove the severity – intensity, persistence, and functional limitations – of his
pain. The laboratory findings – MRI, x-ray, EMG – establish that Mr. Garmon has a medical
condition that could cause disabling pain, but they do not prove that Mr. Garmon,
individually, suffers from pain so severe as to be disabling. Similarly the signs of reduced
range of motion support Mr. Garmon’s testimony that he has pain, but it does not prove the
intensity, persistence, or functional limitations caused by that pain..
The court finds no error in the ALJ’s finding that Mr. Garmon satisfied the Eleventh
Circuit’s pain standard by establishing that the record contains “evidence of an underlying
medical condition[ ] and . . . [this] objectively determined [underlying] medical condition can
reasonably be expected to give rise to the claimed pain,” Wilson v. Barnhart, 284 F.3d 1219,
1225 (11th Cir. 2002)(citing Holt, 921 F.2d at 1223), and by not finding that the objective
evidence confirmed the severity of his alleged pain.
Therefore, the court turns to the issue of whether the ALJ properly decided that Mr.
Garmon’s pain was not disabling.
2. Daily Activities
Mr. Garmon argues:
[T]he ALJ impeached the plaintiff’s credibility due to his activities of
daily living as reported in his Function Report – Adult (Exhibit 3E) that was
completed in September 2011 (Tr. 193-200). The ALJ felt that the report
showed “a significant level of daily activities” which was inconsistent with
disabling limitations (Tr. 24).
Although the ALJ was correct that Garmon reported being able to
perform his personal care, drive short distances, go fishing, watch television,
spend time with his children and grandchildren, and visit his mother in a
nursing home, those mild activities do not minimize his allegations of
significant work related limitations and certainly do not show that he would be
capable of performing light level work on a regular and continuing basis . . .
(Doc. 8 at 10 [footnote omitted].) The Commissioner responded:
The ALJ . . . considered Plaintiff’s reported daily activities in assessing
the credibility of his subjective complaints (Tr. 24). Although not dispositive,
a claimant’s activities may show that the claimant's symptoms are not as
limiting as alleged. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i);
Social Security Ruling (SSR) 96-7p, 1996 WL 374186 (S.S.A.) . . . . As the
ALJ noted, Plaintiff reported in a September 2011 Function Report that he had
no limitations in performing personal care activities, such as dressing and
bathing, and drove short distances, such as to the store, once or twice a day
(Tr. 24, 193-94). The ALJ also noted Plaintiff reported spending time with his
children and grandchildren, holding cookouts on weekends, and visiting his
mother once a week (Tr. 24, 197). The ALJ additionally acknowledged that
Plaintiff reported his hobbies included hunting, fishing, and watching
television, but he was no longer able to hunt and could not fish often due to
sitting limitations (Tr. 24, 197). As the ALJ explained, such activities reflected
some limitations, but not disabling limitations (Tr. 24).
(Doc. 9 at 9.)
A claimant’s daily activities are appropriate considerations in determining whether
a claimant is disabled by virtue of functional limitations caused by his subjective symptoms,
including pain. 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). The ALJ may properly rely “on
[Mr. Garmon’s] reported daily activities as one factor to discredit his statements of disabling
pain.” See Seagle v. Colvin, No. 2:15-CV-0538-LSC, 2016 WL 1613053, at *6 (N.D. Ala.
Apr. 22, 2016).(citing Majkut v. Comm'r of Soc. Sec., 394 Fed. Appx. 660, 663 (11th Cir.
2010); Harrison v. Comm'r Soc. Sec., 569 Fed. Appx. 874, 880 (11th Cir. 2009)). The ALJ
found that Mr. Garmon’s “level of functioning” as demonstrated by his daily activities, was
“inconsistent with disabling limitations.” The activities noted by the ALJ included picking
up and holding for a few minutes his 20-pound granddaughter, riding a lawn mower for a few
minutes, driving short distances once or twice every day, visiting his mother in a nursing
home once a week, having family cook-outs on weekends, and attending to all his personal
care needs. Based on the exertion required by these activities and the fact that Mr. Garmon
testified to regular and continuous engagement in these activities, the court finds that the
ALJ’s determination that Mr. Garmon’s daily activities were inconsistent with his testimony
regarding functional limitations caused by his pain is supported by substantial evidence.
In this case, as set forth above, the ALJ did not decide that, standing alone, Mr.
Garmon’s limited daily activities were sufficient to discredit his pain regarding the intensity,
persistence and limiting effects of pain caused by his impairments. In addition to finding his
daily activities inconsistent with the alleged severity of his pain – pain that was 6/10 or 7/10
causing Mr. Garmon to be unable to sit for longer than 30 minutes at a time and his need to
lie down a couple of times a day, the ALJ found that the “medical evidence [did] not support[
] the severity of the limitations he alleges.” (Doc. 6-3 at 24; see also doc. 9 at 11.)
Therefore, the court finds that “even without the ALJ's consideration of [Mr. Garmon’s] daily
activities, there was ample evidence undermining [his] credibility, . . . such as [his] limited
and conservative medical treatment [and] normal examination findings . . . . [Mr. Garmon]
does not challenge the ALJ's use of any of that evidence.” Seagle, 2016 WL 1613053, at *6
(citing Wilson v. Comm'r of Soc. Sec., 500 Fed. Appx. 857, 859-60 (11th Cir. 2012)).
The court finds no reversible error in the ALJ’s consideration of Mr. Garmon’s daily
activities as a factor, but not the sole factor, in determining the credibility of Mr. Garmon’s
statements regarding his functional limitations caused by pain.
3. Dr. Mouizuddin’s Consultative Examination
Of the ALJ’s discussion of the medical evidence, Mr. Garmon takes issue only with
his discussion of the consultative examination performed by Samia Sana Moizuddin, M.D.
(See doc. 8 at 12-13; see also doc. 6-8 at R.316-21.) He argues:
[T]he ALJ discredited Garmon’s credibility reasoning that “[t]he
consultative examination by Dr. Mouizuddin also failed to support significant
limitations and those findings are accepted by the undersigned” (Tr. 26). This
rationale is incorrect because Dr. Moizuddin’s physical exam showed
significantly diminished range of motion of the cervical and lumbar spine (Tr.
317). Further, Dr. Moizuddin opined that Garmon needed an additional
surgical fusion of the cervical spine (Tr. 321). Therefore, the ALJ’s
conclusion regarding Dr. Moizuddin’s findings results in speculation.
The ALJ felt that it was significant that Dr. Moizuddin “did not opine
the claimant experienced limitations that significantly limited his level of
functioning” (Tr. 26). He further stated in his rationale, “[i]t is also noted that
Dr. Moizuddin did not suggest the claimant was experiencing significant
functional limitations” (Tr. 26-27). This rationale is improper as the ALJ
relied on the physicians’ silence regarding the plaintiff’s functional capacity.
(Doc. 8 at 12.) The Commissioner responded:
Plaintiff’s statement . . . ignores the rest of Dr. Moizuddin’s exam findings.
Dr. Moizuddin also found full range of motion in all upper and lower
extremity joints, normal neck findings despite the cervical range of motion
testing, full 5/5 muscle strength everywhere, normal muscle tone and deep
tendon reflexes, an ability to squat three-quarters of the way and toe walk, and
normal neurological testing, including normal gait (Tr. 317-18, 320-21). Such
findings are consistent with the ALJ’s statement that Dr. Moizuddin’s exam
failed to support significant limitations (Tr. 26). Plaintiff additionally asserts
Dr. Moizuddin opined Plaintiff needed an additional surgical fusion. Pl.’s Br.
at 12. The ALJ, however, acknowledged Dr. Moizuddin included in his
impression that Plaintiff had chronic neck pain that “needs fusion,” an
apparent recitation of Plaintiff’s report as part of his medical history that he
had received such a recommendation (Tr. 26, 319, 321).
Plaintiff additionally takes issue with the ALJ’s observation that Dr.
Moizuddin did not opine Plaintiff experienced significant functional
limitations. Pl.’s Br. at 12. Plaintiff cites Lamb v. Bowen, 847 F.2d 698 (11th
Cir. 1988), for the proposition that an ALJ should not consider a physician’s
silence. Pl.’s Br. at 12. Plaintiff relies on a portion of the Lamb opinion where
the court acknowledged that a treating physician was silent on any type of
work other than the claimant’s former employment, and therefore no inference
should be made from that silence concerning whether the physician would
restrict or recommend “light work” for the claimant. See Lamb, 847 F.2d at
703. However, in Lamb, the treating physician wrote a letter stating the
claimant’s activity was restricted to the degree it was not compatible with his
previous type of employment, and another treating physician found claimant
was permanently unemployable. See id. at 700, 703. The decision in Lamb
is thus distinguishable from Plaintiff’s case because the treating physicians in
Lamb noted restrictions on the claimant’s activities, whereas here none of
Plaintiff’s treating or examining physicians limited his activities in any way
(see generally Tr. 271, 317-21, 347-49, 353-57). See Stanton v. Astrue, No.
3:07-cv-015-J-TEM, 2008 WL 725595, at *4 (M.D. Fla. March 17, 2008)
(unpublished disposition) (persuasively finding the Eleventh Circuit’s decision
in Lamb was not applicable to a situation where no treating source limited a
claimant’s activities in any way).
(Doc. 9 at 11-13.)
a. Dr. Moizuddin’s Findings
The ALJ found that [t]he consultative examination by Dr. Moizuddin . . . failed to
support significant limitations.” (Doc. 6-3 at R.26.) He noted that, on examination, Dr.
Moizuddin had found Mr. Garmon had –
[m]uscle strength [of] 5/5 in all groups and he could squat 3/4 way. He was
unable to heel walk, but could toe walk. There was no cyanosis, clubbing, or
edema in his extremities. Gait was normal and he used no assistive device.
Dr. Moizuddin noted the claimant's chronic neck pain with radiation to his left
arm and need for a fusion. He also noted degenerative disc disease, blindness
in his left eye, anxiety, and depression, but did not opine the claimant
experienced limitations that significantly limited his level of functioning
(Id.) Dr. Moizuddin also found Mr. Garmon had a limited range of motion in his cervical
spine and his dorsolumbar spine, (doc. 6-8 at R.317), and he had received a recommendation
for a second neck fusion, (id. at R.319). According to the ALJ, an x-ray of Mr. Garmon’s
lumbar spine at the same time, December 2011, showed “only moderate spondylosis, L1-2
degenerative disc disease, and minimal upper lumbar scoliosis.” (Doc. 6-3 at R.26; see doc.
6-8 at 315.) The ALJ also noted that, in March 2012, a physician with Neurosurgical
Associates, determined that Mr. Garmon “had some tenderness to palpation along the lower
lumbar paraspinals and decreased range of motion with forward flexion at the lumbar spine,
secondary to discomfort.” (Doc. 6-3 at 25; see doc. 6-8 at 355.)
After considering the record as a whole, the court finds the ALJ’s finding, that Dr.
Moizuddin’s report did not support a finding of significant limitations based on alleged pain,
is supported by substantial evidence.
b. Dr. Moizuddin’s Silence
“When a doctor’s silence about a claimant's ability to work is subject to competing
inferences, . . . no inference should be drawn from that silence.” Clyburn v. Comm'r, Soc.
Sec. Admin., 555 Fed. Appx. 892, 894 (11th Cir. 2014)(citing Lamb v. Bowen, 847 F.2d 698,
703 (11th Cir. 1988).
[T]he lack of objective medical evidence in itself is inconclusive, Elam, 921
F.2d at 1215, and a physician's silence alone is also indeterminate. See Lamb,
847 F.2d at 703. However, when the medical evidence lacks both objective
medical proof as well as affirmative statements of disability by a physician, the
evidence tends to undermine Plaintiff's claim of disability. See Harris v.
Astrue, 2011 WL 5358707, at *6 (M.D. Fla. Nov. 3, 2011)(“[N]o inference can
be drawn from silence. However, since the [claimant] has the burden to
demonstrate that [s]he is disabled, the absence of any supporting statement
from a treating physician is noteworthy.”).
Robinson v. Astrue, No. 3:11-CV-3102-RDP, 2012 WL 4344547, at *7 (N.D. Ala. Sept. 13,
In this case, as set forth above, the ALJ noted Dr. Moizuddin’s findings as set forth
in his report:
Visual acuity – uncorrected corrected showed OD: 20/30, OS: 20/100, and
OU: 20/30. Exam of his neck was normal and lung auscultation showed no
rales or rhonchi, no wheezing, and no rubs. Heart auscultation showed normal
S1 and S2, with no murmur, gallop, rubs, or clicks. Muscle strength was 5/5
in all groups and he could squat 3/4 way. He was unable to heel walk, but
could toe walk. There was no cyanosis, clubbing, or edema in his extremities.
Gait was normal and he used no assistive device. Dr. Moizuddin noted the
claimant's chronic neck pain with radiation to his left arm and need for a
fusion. He also noted degenerative disc disease, blindness in his left eye,
anxiety, and depression, but did not opine the claimant experienced limitations
that significantly limited his level of functioning (Exhibit B8F).
(Doc. 6-3 at 26.) The ALJ summarized his findings regarding Mr. Garmon’s credibility,
The claimant’s main problems seem to be related to his back pain. While he
has a history of surgeries for his back impairments, improvement was noted.
There is an extended period of time with no evidence of treatment. In fact,
when the claimant returned for treatment, at least two of his treating sources
noted he had not been seen for an extended period of time. Objective findings
relevant to his alleged disability have also failed to support the severity of
limitations he alleges, showing only mild and moderate limitations. The
consultative examination by Dr. Moizuddin also failed to support significant
limitations and those findings are accepted by the undersigned. It is also noted
that Dr. Moizuddin did not suggest the claimant was experiencing significant
(Id. at 26-27.)
Mr. Garmon has not demonstrated that Dr. Moizuddin’s report is subject to competing
inferences or that the ALJ relied solely on Dr. Moizuddin’s silence, ignoring other evidence,
to determine Mr. Garmon’s credibility. Indeed, the ALJ relied on medical records and
diagnostic testing from Mr. Garmon’s treating physicians and Mr. Garmon’s reports of his
daily activities, in addition to Dr. Moizuddin’s consultative report, which, as the ALJ noted,
does not contain any statement that Mr. Garmon had significant functional limitations and
is inconsistent with a finding of significant limitations. Unlike Lamb, this is not a case in
which one treating physician stated the claimant was unemployable and another treating
physician said the claimant could not perform his past job, which the ALJ inferred mean he
could perform other, light work – an inference the Eleventh Circuit found to be error.
Rather, in this case, the ALJ inferred that Dr. Moizuddin found no significant functional
limitations during his examination of Mr. Garmon because Dr. Moizuddin did not mention
finding any significant functional limitations. Dr. Moizuddin’s silence is not “equally
susceptible” to a contrary inference – that, on examination, Dr. Moizuddin had found Mr.
Garmon had significant functional limitations that Dr. Moizuddin did not mention. See
Lamb, 847 F.2d at 703 (holding “silence is equally susceptible to either inference, therefore
no inference should be taken”). Such an inference would not be reasonable in light of Dr.
Moizuddin’s report of his findings based on his examination of Mr. Garmon and would be
contrary to other evidence in the record. See Clyburn, 555 Fed. Appx. at 894; Turner v.
Astrue, No. 808-CV-65-T-TBM, 2009 WL 804676, at *10 (M.D. Fla. Mar. 26, 2009). A
finding that Mr. Garmon does not have significant functional limitations beyond those set
forth in the RFC is supported by substantial evidence in the record.
Therefore, the court finds no error in the ALJ’s inference that Dr. Moizuddin did not
find Mr. Garmon had significant functional limitations because Dr. Moizuddin did not
include any statement of such a finding in his report.
Based on the reasons set forth above, the decision of the Commissioner, denying Mr.
Garmon’s claim for a period of disability, DIB, and SSI will be affirmed. An Order
affirming the decision of the Commissioner will be entered contemporaneously with this
DONE this 28th day of June, 2016.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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