Wilbourn v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 3/6/17. (MRR, )

FILED
2017 Mar-06 PM 01:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JULIE KAY WILBOURN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No. 5:15-cv-01141-TMP

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Julie Kay Wilbourn, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
her application for a period of disability and Disability Insurance Benefits (“DIB”).
Ms. Wilbourn timely pursued and exhausted her administrative remedies and the
decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g),
1383(c)(3). The parties have consented to the exercise of dispositive jurisdiction by
a magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 8). Accordingly, the
court issues the following memorandum opinion.

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Ms. Wilbourn was 44 years old on the date of the ALJ’s opinion. (Tr. at 43).
Her past work experiences include employment as an administrative clerk, data
entry clerk, and nursery school attendant. (Tr. at 43). Ms. Wilbourn claims that
she became disabled on March 21, 2011, due to joint disease and pain of the lower
back, severe bilateral leg pain, Bipolar disorder, depression, anxiety, and panic
attacks. (Tr. at 35, 202).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
she is, the claimant is not disabled and the evaluation stops. Id. If she is not, the
Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
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three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, she will be found disabled without further
consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step. 20
C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite her impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do her past relevant
work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step
five requires the court to consider the claimant’s RFC, as well as the claimant’s
age, education, and past work experience, in order to determine if she can do other
work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do
other work, the claimant is not disabled. Id. The burden is on the Commissioner to
demonstrate that other jobs exist which the claimant can perform; and, once that
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burden is met, the claimant must prove her inability to perform those jobs in order
to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms.
Wilbourn meets the nondisability requirements for a period of disability and DIB
and was insured through December 31, 2017. (Tr. at 37). She further determined
that Ms. Wilbourn has not engaged in substantial gainful activity since the alleged
onset of her disability. Id. According to the ALJ, the plaintiff has the following
impairments that are considered “severe” based on the requirements set forth in
the regulations: unspecified arthopathies, bipolar disorder, and substance addiction
disorders. Id. However, she found that these impairments neither meet nor
medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. at 38). The ALJ did not find Ms. Wilbourn’s allegations
concerning pain to be entirely credible, and she determined that Ms. Wilbourn has
the following residual functional capacity:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) except she is limited to
occasional postural maneuvers but no climbing of ladders, ropes, or
scaffolds. She would need to avoid concentrated hot or cold
temperature[] extremes, extreme wetness or humidity. She would
need to avoid dangerous moving unguarded machinery or unprotected
heights. She can understand, remember, and carry out simple
instructions. She can concentrate and remain on task for two hours at
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a time sufficient to complete an eight-hour workday. She would be
limited to jobs involving infrequent and well-explained workplace
changes. She would be limited to casual non-intense interaction with
the general public.
In the alternative claimant has the same residual functional capacity
with the additional limitations: She must be afforded the option to sit
or stand during the workday for one or two minutes every hour or so
(if standing can sit for one or two minutes and if sitting can stand for
one or two minutes just to change position). She must [be] allowed or
afforded brief access to a restroom every 2 to 2½ hours during the
workday, could be performed wearing an incontinence pad.
(Tr. at 41, 39-40).
According to the ALJ, Ms. Wilbourn is unable to perform any of her past
relevant work, she is a “younger individual,” and she has a “at least a high school
education,” as those terms are defined by the regulations. (Tr. at 43). She
determined that “[t]ransferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is ‘not disabled,’ whether or not she has transferable job
skills.” (Id.) The ALJ found that Ms. Wilbourn has the residual functional
capacity to perform a significant range of light work. (Tr. at 44). Even though the
plaintiff cannot perform the full range of light work, the ALJ determined that there
are a significant number of jobs in the national economy that she is capable of
performing, such as marker, router, and cleaner, under the original residual
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functional capacity, or marker, router, or document preparer under the alternative
residual functional capacity. Id. The ALJ concluded her findings by stating that
Plaintiff “has not been under a disability, as defined in the Social Security Act,
from March 21, 2011, through the date of this decision.” (Id.)
II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar.
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Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that the
evidence preponderates against the Commissioner’s decision, the court must
affirm the ALJ’s decision if the decision is supported by substantial evidence.
Miles, 84 F.3d at 1400. No decision is automatic, however, for “despite this
deferential standard [for review of claims] it is imperative that the Court scrutinize
the record in its entirety to determine the reasonableness of the decision reached.”
Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the
correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629,
635 (11th Cir. 1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.”

20 C.F.R. §§ 404.1527(e), 416.927(d).

Whether the

plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
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disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record
supporting it.
III.

Discussion
The plaintiff argues that the ALJ made several errors in her determination.

The plaintiff contends that that ALJ erroneously gave significant weight to the
opinion of state agency psychiatric consultant, Samuel D. Williams, while
improperly rejecting the opinion of the plaintiff’s treating psychiatrist, Dr. Sharp.
The plaintiff asserts that the ALJ’s alternative RFC determination that the plaintiff
could perform work wearing an incontinence pad is inappropriate speculation and
not based on any substantial medical evidence.

She claims that the ALJ’s

determination that the plaintiff has a history of drug seeking and substance abuse is
not supported by substantial evidence. Finally, the plaintiff argues that the ALJ
improperly applied 42 U.S.C. § 423(d)(5)(A).
A. Opinion of Non-Examining Physician
The plaintiff contends that it was improper for the ALJ to adopt the opinion
of state agency psychiatric consultant, Samuel D. Williams, M.D. (“Williams”)
because he is not an “acceptable medical source” capable of giving a medical
opinion because Williams’ medical license status includes a retirement waiver that
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prohibits him from engaging in the practice of medicine. According to the plaintiff,
because Williams’ license is not a license to actively engage in the practice of
medicine, he cannot be considered an acceptable medical source.
The Code of Federal Regulations defines an “acceptable medical source” as
(1) licensed physicians or (2) licensed or certified psychologists, among other
licensed professionals. 20 C.F.R. § 404.1513(a). The definition in the CFR does
not indicate that a license with a retirement waiver or any similar limitation is
somehow invalid. The plaintiff seems to equate the retirement waiver to a revoked
or suspended licenses, which is addressed in 20 C.F.R. §404.1503a. Section
404.1503a makes clear that “[w]e will not use in our program any individual or
entity, except to provide existing medical evidence, who is currently excluded,
suspended, or otherwise barred from participation in the Medicare or Medicaid
programs, or any other Federal or Federally-assisted program; whose license to
provide health care services is currently revoked or suspended by any State
licensing authority pursuant to adequate due process procedures for reasons
bearing on professional competence, professional conduct, or financial integrity. .
.” Because Williams is not required to maintain continuing education under his
retirement-waiver license, the plaintiff argues that he is not professionally
competent.
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The plaintiff’s reading of § 404.1503a is, frankly, a stretch.

The

requirements for the retirement waiver license are addressed in Alabama
Administrative Rule 540-X-14.04, which notes that a retired physician may be
excused from continuing medical education requirements by submitting a written
statement that she or he is “retired and is no longer practicing medicine in any
form.” Clearly, such a decision is in the hands of the physician. This is not the
same situation as having a license revoked or suspended by some wrongdoing.
There is no evidence that Williams had his license suspended or revoked or is in
any way precluded from being a medical source opinion under § 404.1503a.
Furthermore, Williams still is a licensed physician. The fact that he is nonpracticing by choice does not place him outside the definition of “licensed
physician.” Therefore, the plaintiff’s argument regarding Williams’ license is
without merit, and Williams is an acceptable medical source under § 404.1513.
B. Treating Physician’s Opinion
The plaintiff contends that the ALJ improperly rejected the opinion of her
treating psychiatrist, Hugh Sharp, M.D. (“Sharp”). (Doc. 11, p. 19). A treating
physician’s testimony is entitled to “substantial or considerable weight unless
‘good cause’ is shown to the contrary.”

Crawford v. Commissioner of Social

Security, 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d
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1436, 1440 (11th Cir. 1997)) (internal quotations omitted). The weight to be
afforded a medical opinion regarding the nature and severity of a claimant’s
impairments depends, among other things, upon the examining and treating
relationship the medical source had with the claimant, the evidence the medical
source presents to support the opinion, how consistent the opinion is with the
record as a whole, and the specialty of the medical source. See 20 C.F.R.
§§ 404.1527(d), 416.927(d). Furthermore, “good cause” exists for an ALJ not to
give a treating physician’s opinion substantial weight when the: “(1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see also Edwards v. Sullivan, 937
F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed where the
opinion was contradicted by other notations in the physician’s own record).
The Court must also be aware of the fact that opinions such as whether a
claimant is disabled, the claimant’s residual functional capacity, and the application
of vocational factors “are not medical opinions, . . . but are, instead, opinions on
issues reserved to the Commissioner because they are administrative findings that
are dispositive of a case; i.e., that would direct the determination or decision of
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disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). The Court is interested in the
doctors’ evaluations of the claimant’s “condition and the medical consequences
thereof, not their opinions of the legal consequences of his [or her] condition.”
Lewis, 125 F.3d at 1440. Such statements by a physician are relevant to the ALJ’s
findings, but they are not determinative, as it is the ALJ who bears the
responsibility for assessing a claimant’s residual functional capacity. See, e.g., 20
C.F.R. § 404.1546(c).
To the extent the plaintiff argues that the ALJ’s decision to discredit Sharp’s
opinion in favor of Williams’ is improper due to Williams’ license status, the
argument is without merit, as set out above. The plaintiff also argues that the ALJ
improperly credited the opinion of consultative psychological examiner, William
McDonald, Ph.D., rather than the opinion of treating physician Sharp. The ALJ
addressed Sharp’s opinion as follows:
The undersigned discounts the physical and mental limitations
assessed by Dr. Awoniyi and Dr. Sharp in a [sic] medical source
statements of December 2013 (Exhibits 18F and 19F). . . .
The residual functional capacity allows for some limitations resulting
from the claimant’s alleged pain and dysfunction as well as for mental
limitations. The undersigned discounts the multiple “marked”
limitations assessed by Dr. Sharp (Exhibit 19F), especially in light of
the assessment of Dr. McDonald (Exhibit 9F). He found that the
claimant had only mild limitations in the ability to handle instructions
and moderate limitations in the ability respond to co-workers and work
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pressure. Dr. McDonald noted that the claimant’s symptoms “should
continue to improve with” appropriate treatment. He found that she
was friendly and talkative, with normal speech in content, form, and
progression.
(Tr. at 42-43).

In this case, Dr. Sharp provided a medical source opinion

concerning the plaintiff’s mental state on December 4, 2013, in which he expressed
the opinion that she has “marked” limitations in several areas, including
responding appropriately to supervisors, co-workers, and customers; responding to
customary work pressures; maintaining appropriate concentration for at least two
hours; using judgment for complex work tasks; and several others. Dr. Sharp
regularly treated the plaintiff from late 2011 through the date of the medical source
opinion, seeing her almost monthly during 2013. In his progress notes, Dr. Sharp
recorded that her anger, depression, and anxiety, while somewhat variable,
increased at times to the point that she did not drive or leave the house. She also
had an angry confrontation with her sister, leading to law enforcement intervention
in April 2013. In contrast, Dr. McDonald met with the plaintiff only once, on
March 25, 2013, at which time he found her to have only mild to moderate
limitations.
The testimony of a treating physician is entitled to substantial weight unless
good cause is shown not to give the opinion substantial weight. Good cause
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includes situations in which the treating physician’s opinion is not supported by the
record or his own findings or the evidence supports a different finding. Phillips v.
Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440); see
also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991). Although the
Phillips examples are not presumed to be exhaustive, the list does not support the
idea that a treating physician’s opinion may be discredited due solely to the ALJ’s
determination that the opinion of a consultative psychological examiner was
somehow better. The ALJ did not explain what support in the record she found
bolstering McDonald’s opinion rather than Sharp’s. She also did not address any
discrepancies or inconsistencies in Sharp’s records that would render his opinion
not entitled to substantial weight. Although it is within the purview of the ALJ to
determine that the treating physician’s opinion is not entitled to great weight, she
must support that finding with a showing of “good cause.” “In determining
whether a claimant is disabled, ‘[t]he ALJ must clearly articulate the reasons for
giving less weight to the opinion of a treating physician, and the failure to do so is
reversible error.’” Jarrett v. Comm'r of Soc. Sec., 422 F. App'x 869, 873 (11th Cir.
2011), quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997). In the
instant case, the ALJ failed to do so and, therefore, her finding as to Sharp’s
opinion is not supported by substantial evidence.
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The ALJ also adopted the findings of non-examining psychological
consultant, Dr. Williams. While Dr. Williams’s license status creates no basis for
rejecting his assessment, the ALJ also has failed to explain why his assessment of
mild to moderate limitations should be adopted over the marked limitations opined
by the treating physician, Dr. Sharp.

A reading of Dr. Williams’s assessment

makes clear that it simply tracks Dr. McDonald’s assessment. “The opinion of a
non-examining physician is… entitled to little weight when it contradicts the
opinion of an examining physician.” Jarrett v. Comm'r of Soc. Sec., 422 F. App'x
869, 873 (11th Cir. 2011), citing Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.1988).
The ALJ’s failure to explain why she adopted Dr. Williams’s consultative
assessment over those of Dr. Sharp, the claimant’s treat physician for more than
two years is reversible error.
C. Improper Speculation by the ALJ
The plaintiff argues that the ALJ’s determination in her alternative RFC that
the plaintiff could perform work wearing an incontinence pad is improper
speculation not supported by substantial evidence. (Tr. at 40). The plaintiff
asserts that she suffers from ischemic enteritis and had surgery to remove and
resection part of her small bowel. (Doc. 11, p. 31). The plaintiff was suspected to
have “short gut syndrome” due to the surgery, which resulted in “noninfectious
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diarrhea NOS.” Id. at 32. The ALJ did not discuss the plaintiff’s short gut
syndrome or other abdominal ailments when determining the plaintiff’s severe or
non-severe impairments.
However, the ALJ found the plaintiff’s abdominal problems to be severe
enough to warrant discussion in her RFC determination.

Step two of the

evaluation process requires the ALJ to consider the effect of all of the plaintiff’s
physical and mental impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii) (emphasis added). By failing to address the plaintiff’s abdominal
issues at step two, the ALJ’s determination at step three, that that the claimant
does not have an impairment or combination of impairments that meets or
medically equals the severity of a listed impairment cannot be supported by
substantial evidence. Therefore, the claim is due to be remanded to allow the ALJ
to specify whether the plaintiff’s abdominal problems constitute a severe or nonsevere impairment, and whether, in combination with the plaintiff’s other
impairments, her limitations due to her abdominal impairments causes the plaintiff
to meet or medically equal a listing.

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D. The ALJ’s finding of a History of Drug Abuse and Drug Seeking
The plaintiff claims that the ALJ’s determination that the plaintiff has a
history of substance abuse and drug seeking is not supported by substantial
evidence. The ALJ stated in her RFC determination:
The claimant also has a history of substance abuse/drug seeking
(Exhibit 4F). In June 2010, a treating psychiatrist, Dr. Roark, stated
that “hospitalization for medical detox is considered” but that the
claimant rejected it. A tapering schedule off narcotics was discussed
and the claimant agreed to try this approach. Treatment notes from
Rehabilitation and Neurological Services of March 2013 show that the
claimant reported that her medications were not called in after her last
visit and she requested only to see physicians from then on (Exhibits
5F).
(Tr. at 42).
Dr. Roark initially evaluated the plaintiff on April 2, 2008. (Tr. at 343). At
her initial evaluation, the plaintiff listed her current medications as lamictal,
Seroquel, levoxyl, and vitamins, but no narcotic pain medication. Id. On January
13, 2010, the plaintiff was taking abilify, lamictal, lithobid, topamax, analgesic
cream, klonapin, and Lortab. (Tr. at 347). Lortab is an opioid pain medication.
Klonopin is a benzodiazepine medication. The plaintiff was reporting extreme
sedation in the evening along with cognitive slowing and difficulty retrieving
information from memory. Id. The plaintiff reported taking a pain pill every five
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hours. Id. On January 27, 2010, the plaintiff reported taking abilify, lamictal,
lithobid, and klonapin, but not Lortab or topamax. (Tr. at 348). On February 17,
2010, the plaintiff noted a decreased use of opiates (two per day), and reported
improved back pain. (Tr. at 349).
On March 17, 2010, the plaintiff reported “unendurable pain” and stated
that she had increased her Lortab to as many as 6 per day. (Tr. at 350). Roark
noted, however, that the plaintiff was “[c]ompliant on medications.” Id. The
plaintiff’s medication status was reported as unchanged on March 31, 2010. (Tr. at
365). On April 14, 2010, the plaintiff reported taking 8 pain pills a day on the day
following a steroid injection. (Tr. at 352). Dr. Roark noted that the plaintiff’s
medication levels would need to be assessed in one month. Id. On May 26, 2010,
the plaintiff’s notes indicated that she was planning to taper her abilify, which is an
antipsychotic medication, not an opiate or benzodiazepine. (Tr. at 353). On
June 9, 2010, the plaintiff increased her klonapin the week prior without medical
direction to do so. (Tr. at 354). She also reported having taken 8 Lortab the day
before. Id. The plaintiff agreed to attempt a “tapering schedule off narcotics.”
(Tr. at 354). Roark noted that the plaintiff was dealing with “[o]piate abuse
secondary to chronic pain.” (Tr. at 355). On June 17, 2010, the plaintiff’s records

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note that she suffers from chronic pain but was “in transition to pain management
off opiates.” (Tr. at 356).
The plaintiff returned to Roark on July 28, 2010. (Tr. at 357). She still was
taking Lortab, but her “tapering” plan was not discussed. Id. On August 5, 2010,
the plaintiff reported that she was “determined” to detox off opiates, and was
directed to coordinate tapering off with her primary care physician. (Tr. at 358).
On September 1, 2010, the plaintiff reported that she took her last Lortab two
weeks prior. (Tr. at 360). The plaintiff sought out-patient treatment for detox off
Lortab, but was told she would have to undergo inpatient treatment due to past
suicidal ideations. Id. The plaintiff did not undergo inpatient treatment. Id. She
reported withdrawal symptoms including tremor, insomnia, sweating, goose flesh,
muscle aches, temperature irregularity, gastrointestinal symptoms.

Id.

The

plaintiff was attempting to detox herself without medical help. Id. On September
8, the plaintiff stated her last Lortab was taken eight days prior to the appointment.
(Tr. at 362). Dr. Roark noted the inconsistency between this report and the report
given by the plaintiff on September 1, however the discrepancy was not clarified.
Id.
The plaintiff visited Dr. Roark again on October 26, 2010, reporting that she
had emergency surgery on October 1 to remove a portion of her bowel. (Tr. at
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363). She stated that she planned to return to work the following week. Id. Her
use of Lortab or other opiate medication was not discussed. On December 7, 2010,
the plaintiff reported that she resumed taking Lortab under medical direction,
despite her fear of abuse or dependence. (Tr. at 365). The plaintiff’s medication
was reported as unchanged on February 17, 2011. (Tr. at 366).
Although it is less clear whether the plaintiff’s behavior constitutes drug
seeking, as Dr. Roark was not the prescriber of the various narcotics taken by the
plaintiff, the ALJ’s determination that the plaintiff has a history of substance abuse
is supported by substantial evidence. Roark’s records indicate that the plaintiff
took Lortab and klonopin at varying rates during her treatment. The plaintiff
further admits having concern about abuse and dependence when she resumed
taking Lortab after her abdominal surgery. The ALJ’s determination regarding the
plaintiff’s substance abuse is supported by substantial evidence.
E. Application of 42 U.S.C. § 423(d)(5)(A)
The evaluation of subjective complaints of pain is discussed in 42 U.S.C.
§ 423(d)(5)(A), which states, in pertinent part:
An individual shall not be considered to be under a disability unless he
furnishes such medical and other evidence of the existence thereof as
the Commissioner of Social Security may require. An individual’s
statement as to pain or other symptoms shall not alone be conclusive
evidence of disability as defined in this section; there must be medical
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signs and findings, established by medically acceptable clinical or
laboratory diagnostic techniques, which show the existence of a
medical impairment that results from anatomical, physiological, or
psychological abnormalities which could reasonably be expected to
produce the pain or other symptoms alleged and which, when
considered with all evidence required to be furnished under this
paragraph (including statements of the individual or his physician as to
the intensity and persistence of such pain or other symptoms which
may reasonably be accepted as consistent with the medical signs and
findings), would lead to a conclusion that the individual is under a
disability. Objective medical evidence of pain or other symptoms
established by medically acceptable clinical or laboratory techniques . .
. must be considered in reaching a conclusion as to whether the
individual is under a disability. . .
The Eleventh Circuit established a standard to direct ALJ’s in evaluating
claimant’s subjective allegations of disabling pain. Subjective testimony of pain and
other symptoms may establish the presence of a disabling impairment if it is
supported by medical evidence. See Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995). To establish disability based upon pain and other subjective symptoms,
“[t]he 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.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citing Holt v.

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Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)); see also Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986).
The ALJ is permitted to discredit the claimant’s subjective testimony of pain
and other symptoms if she articulates explicit and adequate reasons for doing so.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 967p, 1996 WL 374186 (1996) (“[T]he adjudicator must carefully consider the
individual’s statements about symptoms with the rest of the relevant evidence in
the case record in reaching a conclusion about the credibility of the individual’s
statements.”). Although the Eleventh Circuit does not require explicit findings as
to credibility, “‘the implication must be obvious to the reviewing court.’” Dyer,
395 F.3d at 1210 (quoting Foote, 67 F.3d at 1562). “[P]articular phrases or
formulations” do not have to be cited in an ALJ’s credibility determination, but it
cannot be a “broad rejection which is “not enough to enable [the district court or
this Court] to conclude that [the ALJ] considered her medical condition as a
whole.” Id.
The ALJ determined that the plaintiff met the first step of the pain standard,
that the plaintiff provided evidence of an underlying medical condition. See Dyer,
395 at 1210. Moreover the ALJ found that “the claimant’s medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms;
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however, the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.” (Tr. at 41). The ALJ elaborated:
The medical records fail to document a sufficient objective basis to
accept the claimant’s allegations resulting in functional limitations as
wholly credible, in accordance with Social Security Rulings 96-4p and
96-7p. The undersigned has reviewed the claimant’s subjective
complaints in accordance with the guidelines provided by Social
Security Ruling 96-7p and regulations 20 C.F.R. § 404.1529.
Medical evidence shows the claimant has some underlying medical
conditions, but it does not support her allegations of severe and
chronic limitation of function to the degree that it would preclude the
performance of all substantial gainful activity. The claimant is not
credible in the least, and the medically determinable impairments of
record do not reasonably support her allegations. All physical
examinations have been completely normal (Exhibit 5F). Magnetic
resonance imagining of the thoracic spine revealed no significant
abnormality, and magnetic resonance imaging of the lumbar spine
showed no significant focal finding (Exhibit 1F).
In addition, although the claimant’s doctor issues a referral for a
functional capacity evaluation, this was never scheduled or completed
(Exhibit 17F). Although the representative submitted a medical
source statement from Dr. Awoniyi (18F), his office stated that it
cannot do a functional capacity evaluation and issued a prescription
for an independent evaluation (Exhibit 17F, page 2).
The
representative stated that one has not been done, and none has been
scheduled.
The claimant’s alleged limitations and symptoms have increased
without demonstrable worsening of the objective medical findings.
Although the claimant testified that she cannot walk without a cane,
this has not been prescribed by a physician. No medical evidence of
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record supports her allegations that she cannot stand without a cane
and can lift only “3 to 5 pounds max.”
The claimant also has a history of substance abuse/drug seeking
(Exhibit 4F). In June 2010, a treating psychiatrist, Dr. Roark, stated
that “hospitalization for medical detox is considered” but that the
claimant rejected it. A tapering schedule off narcotics was discussed
and the claimant agreed to try this approach. Treatment notes from
the Rehabilitation and Neurological Services of March 2013 show that
the claimant reported that her medications were not called in after her
last visit and that she requested only to see physicians from then on
(Exhibit 5F).
The record shows signs of exaggeration on examination (e.g. give-way
weakness; pain adjudged by examiner to exceed findings). A
consultative medical examiner, Sherry A. Lewis, M.D., found that the
claimant was “positive for “tenderness” (1 -2+/4+) at the level of T9
to T12, and L3 to S1” (Exhibit 8F). Dr. Lewis noted that the claimant
“responded ‘ouch’ whether it was my glove finger, the empty sleeve
of the examination glove or the soft, cloth tie from her examination
gown. Needless to say the tie from the examination gown, and the
empty sleeve of the nitrile glove conveyed minimal force to the skin,
and none to the deeper structures such as the muscles, or bones”
(Exhibit 8F).
In addition, the claimant’s pain is non-anatomic or non-organic, with
the Mayo Clinic finding no objective reasons for the pain (Exhibit 3F),
and the claimant’s alleged severe pain has not resulted in atrophy.
Magnetic resonance imaging of the lumbar spine showed “very
minimal disc desiccation at L4-L5 without focal disc herniation”
(Exhibit 11F, page 83). Dr. Lewis found that the claimant “has no
trigger points” (Exhibit 8F).
(Tr. at 41-42).

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The ALJ found that the plaintiff failed to show either objective medical
evidence that confirms the severity of the pain or that the medical condition is of
such a severity that it can be reasonably expected to give rise to the alleged pain. Id.
The ALJ explained that the plaintiff’s subjective testimony of pain was inconsistent
with the medical record. As set out above, the ALJ cites both the medical record as
well as the plaintiff’s own testimony to support her determination that the
plaintiff’s subjective pain testimony is not credible.

The determination of

credibility is left to the ALJ and the ALJ is entitled to discredit the plaintiff’s
credibility so long as she articulates explicit and adequate reasons for doing so.
Here, the ALJ did so.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms.

Wilbourn’s arguments, the Court finds the Commissioner’s decision is not fully
supported by substantial evidence. It is due to be remanded to the ALJ for further
consideration of the medical source opinion and records of Dr. Sharp, as well as the
evidence of the claimant’s abdominal problems. A separate order will be entered.
DONE this 6th day of March, 2017.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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