Smith v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 8/8/2016. (AVC)

FILED
2016 Aug-08 AM 10:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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5:15-cv-1224-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Pamela Smith, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying her application
for a period of disability, Supplemental Security Income (“SSI”) and Disability
Insurance Benefits (“DIB”). Ms. Smith 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).
Ms. Smith was fifty-five years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a high school education. (Tr. at 44.) Her
past work experiences include employment as a police dispatcher and in several

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warehouse positions in a GE refrigerator factory. (Tr. at 180.) Ms. Smith claims
that she became disabled on May 1, 2010, due to fibromyalgia, high blood pressure,
post-traumatic stress disorder due to sexual abuse, degenerative disk disease,
depression due to current situation, and arthritis in her back, ankles and hands. (Tr.
at 44.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus
eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in
order until making a finding of either disabled or not disabled; if no finding is made,
the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The first step requires the evaluator to determine whether the
plaintiff is engaged in substantial gainful activity (“SGA”).

See id. §§

404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the
evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of
the plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational

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requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The
decision depends on the medical evidence contained in the record. See Hart v.
Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that “substantial medical
evidence in the record” adequately supported the finding that plaintiff was not
disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal
to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509
and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id.
§§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to determine
whether the plaintiff has the RFC to perform the requirements of his past relevant
work.

See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

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If the plaintiff’s

impairment or combination of impairments does not prevent him from performing
his past relevant work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s
RFC, age, education, and work experience in order to determine whether the
plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find
him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff
cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Ms. Smith
meets the insured status requirements of the Social Security Act through
December 13, 2015. (Tr. at 10.) He further determined that Ms. Smith has not
engaged in SGA since May 1, 2010, the alleged onset of her disability. Id. According
to the ALJ, Plaintiff’s degenerative disk disease of the lumbar spine, disorders of
bone and cartilage (osteoporosis), fibromyalgia, pinched nerve in the right leg, high
blood pressure, disk problems in the back, and osteoarthritis are considered
“severe” based on the requirements set forth in the regulations. (Tr. at 12.)
However, he 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. (Id.) The ALJ

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did not find Ms. Smith’s allegations to be totally credible, and he determined that
she has the following RFC:
to perform light work as defined in 20 C.F.R. §§ 404.1567(b),
416.967(b), except she can occasionally lift and carry 20 pounds and 10
pounds frequently. She can stand and/or walk (with normal breaks)
for a total of 6 hours in an 8 hour workday, pushing and pulling is
limited to frequent with the left lower extremity. She can occasionally
climb ramps and stairs. She can never climb ladders, ropes, and
scaffolds, frequently balance, stoop, kneel, crouch, and never crawl.
She should avoid concentrated exposure to extreme cold, extreme
heat, and vibrations. She should avoid all exposure to hazards such as
unprotected heights and moving unguarded machinery and uneven
terrain.
(Tr. at 13.)
According to the ALJ, Ms. Smith is able to perform her past relevant work as
a material coordinator because that work does not require the performance of workrelated activities precluded by her RFC. (Tr. at 18.) In the alternative, the ALJ
found that Plaintiff could perform a significant number of other jobs in the national
economy, such as small product assembler, housekeeping cleaner, and cashier II.
(Tr. at 19.) The ALJ concluded his findings by stating that Plaintiff “has not been
under a disability, as defined in the Social Security Act, from May 1, 2010, through
the date of this decision.” (Tr. at 20.)

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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 Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives
deference to the factual findings of the Commissioner, provided those findings are
supported by substantial evidence, but applies close scrutiny to the legal
conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute
its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004)).

“The substantial evidence standard permits administrative decision

makers to act with considerable latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the

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proof preponderates against the Commissioner’s decision, it must affirm if the
decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard
[for review of claims], it is imperative that th[is] Court scrutinize the record in its
entirety to determine the reasonableness of the decision reached.” Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881,
883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Ms. Smith alleges that the ALJ’s decision should be reversed and remanded

for one reason: because the ALJ failed to properly evaluate her subjective
complaints of pain pursuant to the Eleventh Circuit Court of Appeals’ “pain
standard.”
Subjective complaints of pain and other symptoms may establish the
presence of a disabling impairment if they are 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

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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, 395 F.3d at 1210
(citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)); see also Landry v.
Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). Nonetheless, the ALJ is permitted to
discredit the claimant’s subjective testimony of pain and other symptoms if he
articulates explicit and adequate reasons for doing so. Wilson v. Barnhart, 284 F.3d
1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 96-7p, 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.”). In making a
credibility determination, an ALJ may consider the opinions of treating physicians
and consultative examiners, as well as those of other medical doctors. See 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The credibility determination does not need to
refer to “every piece of evidence in his decision [regarding credibility], so long as
the ALJ’s decision . . . is not a broad rejection which is not enough to enable [the
district court] to conclude that [the ALJ] considered her medical condition as a
whole.” Dyer, 395 F.3d at 1210-11.

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Plaintiff testified that she has pain in her lower back, legs, and feet. (Tr. at
45.) She stated that her widespread pain is from her fibromyalgia. (Id.) She
specifically stated that she spends about three to four hours lying down during the
day to help with her pain. (Tr. at 52). She explained she can stand for only about
five to seven minutes at one time, sit for no more than one hour at one time, walk
less than 50 yards at one time, and lift nothing heavier than about a gallon of milk.
(Tr. at 51-52). Plaintiff emphasizes that it was not appropriate for the ALJ to find
her complaints of pain not credible simply because she never had surgery related to
her debilitating pain. Instead, she claims that her consistent treatment for
fibromyalgia is sufficient evidence of her debilitating pain. Plaintiff also points out
that all her physicians believed her complaints, as they continuously prescribed
medications and injections.
As an initial matter, the ALJ complied with the Eleventh Circuit’s pain
standard by first finding that the record demonstrates that Plaintiff has underlying
medical conditions. The ALJ then found that Plaintiff’s impairments could
reasonably be expected to cause the alleged symptoms, but that Plaintiff’s
statements about the intensity, persistence, and limiting effects of the symptoms
were not entirely credible. (Tr. at 14, 18). The decision then offers multiple reasons
for the ALJ’s credibility determination.

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First, the ALJ found that the medical evidence was inconsistent with
Plaintiff’s allegations of disabling levels of pain. (Tr. at 14-17). As the ALJ noted,
credibility is assessed based on the extent to which the symptoms and allegations
are consistent with, and supported by, the objective medical evidence. (Tr. at 17).
The ALJ noted that Plaintiff had not had any surgery or inpatient hospital stays,
and that her imaging studies showed degenerative changes but no disk herniation,
protrusion, fracture, subluxation or spinal cord or nerve root compromise. (Tr. at
14-15, 417, 490, 491). Indeed, while Plaintiff’s medical record establishes that she
has underlying medical conditions, it does not support the severity of her
complaints. From 2008 onwards, two years before the alleged onset of her
disability, Plaintiff experienced an exacerbation of her pain, but then it abated as
treatment continued with injections. (Tr. at 555-57, 559-61, 563-67.) For example,
in August 2011, Plaintiff had full range of motion in both hips with only discomfort
at the extremes of internal rotation of her left hip, with negative straight leg raising,
symmetric reflexes, no weakness or sensory abnormalities of the lower extremities,
and no edema. (Tr. at 326). She had only some early osteoarthritis changes in the
left hip. (Id.) In November 2011, Plaintiff denied having any musculoskeletal pain.
(Tr. at 376). Her examination showed a normal range of motion and strength, no
edema in the extremities, and a normal gait with a nonfocal neurological exam. (Tr.

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at 377). In March 2012, Plaintiff saw Dr. James Thacker for fibromyalgia pain
management and had normal ambulation with no external devices or supervision
and normal muscle tone, bulk and strength in all muscles with no atrophy or
involuntary movements. (Tr. at 334). Plaintiff had no abnormalities in the upper or
lower extremities and had an unrestricted range of motion in the cervical spine.
(Id.) While Plaintiff had tenderness in the spine and hamstrings, after a treatment
including dry needling and manual therapy, Plaintiff reported she was feeling better
but still had some low back pain. (Tr. at 335). Plaintiff reported the following day
that her symptoms had all improved but she still had pain. (Tr. at 336). On March
26, 2012, Plaintiff told Dr. Thacker she had decreased pain in all areas after
treatment. (Tr. at 338). After injections on April 2, 2012, Dr. Thacker noted
Plaintiff’s ambulation had improved greatly. (Tr. at 340). In April 2012, Plaintiff
reported pain scores of two out of ten for her neck and shoulders, four for her mid
back, six for her low back, and five for her bilateral hips. (Tr. at 345). In June 2012,
Plaintiff reported her pain level was at three out of ten for all areas. (Tr. at 358).
After treatment on June 12, 2012, Plaintiff rated her pain as zero out of ten and
reported a decrease in pain and muscle tightness. (Tr. at 361).
Additionally, and as noted by the ALJ, Plaintiff described her oral
medications for pain treatment as working well. (Tr. at 15, 372, 595). The

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effectiveness of medication, treatment other than medication, and other measures
used to relieve pain are factors properly considered by an ALJ in assessing a
claimant’s credibility. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi), 416.929(c)(3)(i)(vi). Plaintiff reported she was having good results from the medication and did not
need a medication refill. (Tr. at 372). Indeed, Dr. Thacker decreased the frequency
of Plaintiff’s visits in 2012. (Tr. at 16, 365). In August 2012, Dr. Thacker noted
Plaintiff reported good results with the Norco and Flexeril prescriptions. (Tr. at
400). Also in August 2012, Plaintiff reported her back pain decreased as a result of
taking Gabapentin and Flexeril. (Tr. at 403). Plaintiff did not report for her visits
for a four-month period in late 2012 through early 2013. (Tr. at 16, 599-605, 62627). For the first cancelled appointment, Plaintiff said that she lacked
transportation. (Tr. at 605.) For the next several appointments, she gave no
reason. Plaintiff’s cancellations of her appointments weaken her argument that she
sought all the medications and treatments she could obtain to abate her symptoms
for fibromyalgia. When she did return for an appointment, she noted her
medication was working well. (Tr. at 16, 599-605, 626-27.) Her examination
showed normal muscle strength and tone of the upper and lower extremities along
with a normal gait and station with normal stability and range of motion of the

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lower extremities. (Tr. at 610). In August 2013, Plaintiff was able to ambulate
without assistance or supervision. (Tr. at 634).
Plaintiff’s testimony was also inconsistent with her prior statements and the
medical record in several areas, thus further undermining her credibility. The
Commission’s regulations provide that an ALJ may properly consider “whether
there are any inconsistencies in the evidence and the extent to which there are any
conflicts between your statements and the rest of the evidence, including your
history, the signs and laboratory findings, and statements by your treating or
nontreating source or other persons about how your symptoms affect you.” 20
C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). For example, the ALJ discussed
Plaintiff’s allegation that she uses a cane, walker and back brace, but noted that the
consultative examiner and other providers had found that she had a normal gait
without the use of any assistive device or brace. (Tr. at 15, 194, 334, 385, 634).
Additionally, the ALJ noted Plaintiff’s alleged onset date of May 1, 2010, but that
her self-reported work history indicates she worked until May 26, 2010. (Tr. at 17,
140, 171). Further, the ALJ noted that while Plaintiff reported at one point that her
live-in partner helps her walk, she also reported that she lived alone after her
alleged onset date, and thus, did not always have that assistance. (Tr. at 17, 51,
199). Additionally, Plaintiff’s allegation that she could not go out alone because she

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might have sudden pain or a muscle spasm or jerking was not observed or
diagnosed by any examining medical source. (Tr. at 17, 403). Indeed, there was no
evidence that Plaintiff was accompanied by anyone to her medical appointments.
(Tr. at 17). Finally, the ALJ noted that while Plaintiff reported having relief from
pain after nerve block injections and requested them again, Plaintiff told her
primary care doctor that she had no benefit from the injections. (Tr. at 17, 326).
She also told the consultative examiner that she got only minimal improvement
from nerve block injections. (Tr. at 384).
Finally, a variety of medical reports characterize Plaintiff as not being in
distress or pain. For example, Heritage Family Medicine, a treatment center which
did not have access to Plaintiff’s previous records, characterized the plaintiff as “in
no apparent distress, appears in mild pain . . . ” (Tr. at 215.) Further, in her
Disability Determination Explanation (“DDI”), Plaintiff is described as not being
in any “acute distress.” (Tr. at 70.) In sum, the objective medical evidence
certainly acknowledges that Plaintiff suffered some pain from fibromyalgia-related
symptoms, but it also clearly indicates that she could keep her pain at bay with
medication and other treatment. As such, the ALJ did not err in finding her
testimony of disabling pain not entirely credible.
IV.

Conclusion

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Upon review of the administrative record, and considering all of Ms. Smith’s
arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.
DONE and ORDERED on August 8, 2016.

_____________________________
L. Scott Coogler
United States District Judge
160704

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