Anders v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION - For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the parties, the decision of the Commissioner of Social Security denying Anderss claim for a period of disability and DIB is AFFIRMED, and this action is DISMISSED WITH PREJUDICE. A separate order will be entered. Signed by Magistrate Judge John H England, III on 3/30/2017. (KEK)

FILED
2017 Mar-30 PM 03:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JULIE ANDERS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case No. 5:15-cv-01977-JHE

MEMORANDUM OPINION1
Plaintiff Julie Anders (“Anders”) seeks review, pursuant to 42 U.S.C. § 405(g), § 205(g)
of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her application for a period of disability and disability
insurance benefits (“DIB”), and supplemental security income (“SSI”). 2 (Doc. 1). Anders timely
pursued and exhausted her administrative remedies. This case is therefore ripe for review under
42 U.S.C. § 405(g). The undersigned has carefully considered the record and, for the reasons stated
below, the Commissioner’s decision is AFFIRMED.
I. Factual and Procedural History
Anders protectively filed applications for a period of disability, DIB, and SSI in July and
August 2012, initially alleging she became unable to work beginning December 31, 2010. (Tr.
415-23). At her hearing, she amended her claim to allege disability beginning January 1, 2012.

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 15).
2
The judicial review provisions for DIB claims, 42 U.S.C. § 405(g), apply to claims for
SSI. See 42 U.S.C. § 1383(c)(3).
1

(Tr. 303). Anders was a forty-year-old female on her hearing date with a high school education.
(Tr. 300, 417, 462). Anders’s past relevant work was as a secretary or administrative assistant,
office manager, nurse’s assistant, and loan officer. (Tr. 313-14). The Agency initially denied
Anders’s application and Anders requested a hearing, where she appeared on March 11, 2014. (Tr.
300-18). After the hearing, the Administrative Law Judge (“ALJ”) denied Anders’s claim on
March 26, 2014. (Tr. 278-98). Anders sought review by the Appeals Council, but it denied her
request on September 22, 2015. (Tr. 1-6). On that date, the ALJ’s decision became the final
decision of the Commissioner. On November 2, 2015, Anders initiated this action. (See doc. 1).
II. Standard of Review3
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402
U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This Court must
“scrutinize the record as a whole to determine if the decision reached is reasonable and supported
by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This Court must uphold factual findings supported by substantial evidence. However, it
reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches to the

3

In general, the legal standards applied are the same whether a claimant seeks DIB or
Supplemental Security Income (“SSI”). However, separate, parallel statutes and regulations exist
for DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
2

ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528,
531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the law, or if the ALJ
fails to provide the court with sufficient reasoning for determining the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder.4 The Regulations define “disabled” as “the inability to do 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 (12) months.” 20 C.F.R. § 404.1505(a). To establish entitlement to
disability benefits, a claimant must provide evidence of a “physical or mental impairment” which
“must result from anatomical, physiological, or psychological abnormalities which can be shown
by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is disabled.
20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499.
4

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Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has
satisfied steps One and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.” Pope,
998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner
must further show such work exists in the national economy in significant numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Anders last met the insured status requirements of the Social
Security Act on December 31, 2015 (her date last insured or “DLI”) and Anders had not engaged
in substantial gainful activity after her original alleged onset date of December 31, 2010.5 (Tr.
283-84). At Step Two, the ALJ found Anders has the following severe impairment: fibromyalgia
(20 C.F.R. § 404.1520(c) and 416.920(c)). (Tr. 284). At Step Three, the ALJ found Anders did
not have an impairment or combination of impairments that meets or medically equals one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 286).

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As Anders notes, the ALJ made this determination based not on the amended onset date
of January 1, 2012, but on the original onset date. (Doc. 11 at 5). However, the ALJ’s conclusion
Anders had not engaged in substantial gainful activity since December 31, 2010, necessarily means
Anders had not engaged in substantial gainful activity since January 1, 2012. To the extent this
mistaken date is relevant in assessing Anders’s claims, it is discussed below.
4

Before proceeding to Step Four, the ALJ determined Anders’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined that, through her DLI, Anders had the RFC
to perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b). She can lift and/or carry up to five pounds frequently
and ten pounds occasionally. She cannot climb ladders, ropes, or
scaffolds. She can perform frequent postural activities. She can
occasionally push or pull. She can frequently reach. She should
avoid concentrated exposure to extreme cold temperatures and
vibration. She cannot work around dangerous moving machinery,
work at unprotected heights, or do any commercial driving. She
needs the option to alternate sitting and standing for one to two
minutes every hour or so. She can be expected to miss one day a
month of work.
(Tr. 286).
At Step Four, the ALJ determined that, through the date last insured, Anders is able to
perform her past relevant work as an administrative assistant and loan officer, as the work required
by these jobs was not precluded by Anders’s RFC. (Tr. 293). Therefore, the ALJ determined
Anders has not been under a disability and denied her claim. (Id.).
V. Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or if improper legal standards were applied, “[t]his does not relieve the
court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)). The court,
however, “abstains from reweighing the evidence or substituting its own judgment for that of the
[Commissioner].” Id. (citation omitted).
Anders presents two arguments. First, she contends the ALJ improperly applied the
Eleventh Circuit pain standard. (Doc. 11 at 4). Second, she says the ALJ failed to articulate good
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cause for according less weight to the opinions of Anders’s treating physician, Dr. Stidham. (Id.
at 12).
A. The ALJ properly evaluated the credibility of Anders’s complaints of pain, consistent
with the Eleventh Circuit’s pain standard.
The Eleventh Circuit “has established a three part ‘pain standard’ that applies when a
claimant attempts to establish disability through his or her own testimony of pain or other
subjective symptoms. 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.” Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991). Subjective testimony supported by medical evidence satisfying the standard
is sufficient to support a finding of disability. Id. However, the ALJ may still make a credibility
determination on the claimant’s statements about the intensity and effect of that pain. See Foote
v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Hogard v. Sullivan, 733 F.Supp. 1465, 1469
(M.D. Fla. 1990).

When evaluating the credibility of a claimant’s statements regarding the

intensity, persistence, or limiting effects of her symptoms, the ALJ considers all evidence,
objective and subjective. See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p.6 The ALJ’s adverse
credibility determination must be supported by “explicit and adequate reasons,” Holt, 921 F.2d at
1223, and substantial evidence, see Foote, 67 F.3d at 1561-62. An ALJ’s clearly articulated
credibility determination will not be disturbed if supported by substantial evidence. Petteway v.
Comm’r of Soc. Sec., 353 Fed. App’x. 287, 288 (11th Cir. 2009). “[I]f a credibility determination

6

SSR 96-7p has since been superseded by SSR 16-3p, 2016 WL 1119029, which was
published in the Federal Register on March 16, 2016, and became effective March 28, 2016, see
2016 WL 1237954. The ALJ in this case issued his ruling on March 26, 2014, well before the
publication or effective date of that ruling.
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is inadequate, a remand to the agency for further consideration is the proper remedy.” Carpenter
v. Astrue, No. 8:10-CV-290-T-TGW, 2011 WL 767652 (M.D. Fla. Feb. 25, 2011). See also
Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 835 (11th Cir. 2011) (retreating from
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986), based on the prior precedent rule,
and remanding to the agency).
Here, the ALJ found that Anders met the first part of the Eleventh Circuit’s pain standard—
evidence of an underlying medical condition. (Tr. 287). However, the ALJ concluded Anders
did not meet either part of the second prong of the pain standard, as “the objective evidence does
not confirm either the severity of the claimant’s alleged symptoms arising from her medically
documented conditions, or that those conditions could reasonably be expected to give rise to the
symptoms alleged by the claimant.” (Tr. 287). To support this conclusion, the ALJ specifically
found Anders’s own subjective testimony as to the intensity, persistence, and limiting effects of
her pain to be not entirely credible for a number of reasons. (Tr. 292). Anders argues in making
this determination, the ALJ did not properly assess her credibility.
Anders’s complaints consist, generally, of debilitating pain. At the hearing, Anders
testified she had pain in her neck and shoulders that made holding her arms in front of her difficult.
(Tr. 308). On a scale of 1 to 10, she rated her pain as a 6-7 before taking medication. (Tr. 310).
On good days, her pain medication cut her pain in half, but she had bad days where the medication
has no effect three to four days per week. (Id.). Epidural treatments, heat, massage therapy,
Pilates-style stretching, and use of a TENS unit all helped with her pain. (Tr. 311). Anders testified
that most days she had to lie down to relieve her pain, for a total of approximately two hours each
day. (Id.). She testified that she could sit for ten to fifteen minutes before she needs to change
position, and she could stand for ten to twenty minutes if she “can fidget a little bit.” (Id.). She

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stated she could lift and carry no more than five pounds, and she can walk for ten to fifteen minutes
before needing a rest. (Tr. 312). She underwent a disc fusion in her neck to stabilize her spine,
which helped with weakness in her arms but did not completely eradicate the pain. (Tr. 308).
Anders argues the ALJ’s conclusion her pain is not disabling was contrary to the objective
medical evidence, which she asserts demonstrates a longitudinal history of chronic pain and pain
management. However, the ALJ thoroughly reviewed Anders’s medical history. (Tr. 287-291).
He found Anders’s relatively good surgical outcomes, responses to pain medication and treatment,
and noncompliance with physical therapy indicated that her pain did not rise to the level of
disabling.

Anders attacks this assessment first by asserting her treating physicians showed no

disbelief in her severe pain and provided treatments for pain relief, which she states means the ALJ
erred in concluding treatment was effective. (Tr. 6, 11). However, Anders’s reading of her
treatment notes is selective and, notably, both Anders and the Commissioner cite many of the same
records for vastly different propositions, with the Commissioner highlighting the efficacy of
treatments and Anders emphasizing the initial complaints of pain. (Compare doc. 11 at 11 with
doc. 13 at 8). Anders’s treatment notes consistently describe her pain as better with medications,
heat, rest, and TENS, which comports with her testimony at the hearing. (Tr. 771, 776, 781, 822,
823, 863, 869, & 880). Although it is certainly possible to reach a different conclusion as to the
degree to which treatment helped Anders, the undersigned may not reverse on that basis. Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (if supported by substantial evidence, the
Commissioner’s factual findings must be affirmed even if the evidence preponderates against the
Commissioner’s findings). The ALJ’s conclusion Anders’s treatment was effective in mitigating
her pain was supported by substantial evidence.

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Next, Anders objects to the ALJ’s determination her lack of compliance with physical
therapy undermines her credibility. (Doc. 11 at 11). A claimant is obligated to follow treatment
prescribed by a physician if it can restore the claimant’s ability to work.

20 C.F.R.

§§ 404.1530(a), 416.930(a). Anders testified she had attended every scheduled visit with Encore
Rehabilitation of Cullman, where she was directed for pain therapy after her spinal fusion, until
Encore “bruised [her] really bad,” which led to her cancelling the therapy; in any event, she “felt
worse and not better” after going to therapy due to pain. (Tr. 304-05). However, the records from
Encore indicate Anders attended therapy “sporadically . . . [g]enerally once a week,” and had not
been “compliant with regular visits and treatment approach.” (Tr. 640). Although Anders offered
an alternative explanation for not pursuing physical therapy, the ALJ was not required to credit it,
especially when Anders’s statement she had missed no appointments contradicted the medical
records and Anders purported explanation is wholly different in character from the types of “good
reason” that excuse noncompliance with treatment. See 20 C.F.R. §§ 404.1530, 416.930 (listing,
as nonexclusive types of “good reason” for not following prescribed medical treatment: “(1) The
specific medical treatment is contrary to the established teaching and tenets of your religion; (2)
The prescribed treatment would be cataract surgery for one eye, when there is an impairment of
the other eye resulting in a severe loss of vision and is not subject to improvement through
treatment; (3) Surgery was previously performed with unsuccessful results and the same surgery
is again being recommended for the same impairment; (4) The treatment because of its magnitude
(e.g., open heart surgery), unusual nature (e.g., organ transplant), or other reason is very risky for
you; or (5) The treatment involves amputation of an extremity, or a major part of an extremity.”).
Finally, Anders argues the ALJ improperly considered that she had applied for and received
unemployment benefits through the end of 2011 in assessing the credibility of her pain testimony.

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(See tr. 283-84). Anders originally alleged an onset date of disability of December 31, 2010;
however, as stated above, she amended the alleged onset date at her hearing to January 1, 2012.
(Tr. 303). Alabama law specifically precludes eligibility for unemployment benefits where the
claimant is unemployed due to sickness or disability; in fact, to be eligible the claimant must be
“physically and mentally able to perform work of a character which he is qualified to perform by
past experience or training, and he is available for such work.” Ala. Code §§ 25-4-77 & 25-4-78.
Although she ultimately amended her disability claim to an onset date of January 2012, Anders
nevertheless was originally seeking disability benefits for the same time period that she also
received unemployment benefits (which required continuing affirmations under oath that she was
willing and able to perform work). The ALJ noted that, “[w]hile the receipt of unemployment
compensation does not, in and of itself, contradict a finding of ‘disability,’ it represents a
continuing assertion of the ability to work, and raises serious credibility issues.” (Tr. 283). Given
the ALJ’s finding that the record did not indicate any worsening of Anders’s condition between
the end of 2011 (when she stopped collecting unemployment benefits and thus stopped certifying
she was able to work) and January 1, 2012 (her alleged onset date), the undersigned finds no
reversible error in the ALJ’s consideration of this factor, nor that the ALJ concluded it cuts against
Anders’s credibility
The thrust of Anders’s argument is directed to how much evidence supports her pain rather
than whether substantial evidence supports the ALJ’s conclusion. However, the district court may
not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine if the decision
is reasonable and supported by substantial evidence. See Martin, 894 F.2d at 1529 (citing
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). The undersigned concludes it is.

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Though other evidence might support a different conclusion, this Court may not reverse on that
basis.
B. The ALJ properly considered the opinions of Anders’s treating physician.
Anders also argues that the ALJ failed to properly articulate good cause for according less
weight to the opinion of Anders’s treating physician, Dr. Jeremy Stidham. An ALJ must accord
the opinions of a treating physician “substantial or considerable weight unless good cause is shown
to the contrary.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.2004). “‘[G]ood
cause’ exists 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, 1240–
41 (11th Cir.2004). Additionally, statements from acceptable medical sources, including primary
care physicians, regarding what a claimant can still do physically and/or mentally are relevant but
not determinative evidence; the ALJ has the responsibility of assessing a claimant’s RFC. See 20
C.F.R. §§ 404.1527, 404.1545, 404.1546(c); SSR 96-5p (“However, treating source opinions on
issues that are reserved to the Commissioner are never entitled to controlling weight or special
significance. Giving controlling weight to such opinions would, in effect, confer upon the treating
source the authority to make the determination or decision about whether an individual is under a
disability, and thus would be an abdication of the Commissioner's statutory responsibility to
determine whether an individual is disabled.”).
On December 4, 2013, Dr. Stidham filled out a residual functional capacity form at
Anders’s request. (Tr. 787-88, 806-11). He noted, however, that he was “not willing to do
anything else for this.”

(Tr. 788).

His RFC form noted he had diagnosed Anders with

fibromyalgia, degenerative disc disease, bulging disc, and spinal stenosis. (Tr. 806-11). Her
treatment had included oral pain medication, epidurals, and a TENS unit. (Id.). He opined that
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Anders could not sit or stand for six to eight hours; she could stand for thirty minutes and sit for
fifteen minutes, limited by back and neck pain; she could walk a quarter of a mile without stopping;
she could lift and/or carry five to ten pounds regularly; her pain was constant; she had difficulty
lifting, pulling, holding objects, bending, squatting, kneeling, and turning; and she could not take
pain medications if she was going to drive. (Id.). Dr. Stidham concluded Anders could no longer
work at her previous employment due to chronic pain. (Tr. 809).
Anders argues the Commissioner’s determination must be reversed because the ALJ did
not explicitly state the weight given to Dr. Stidham’s opinion.

An “ALJ must state with

particularity the weight given to different medical opinions and the reasons therefore . . . [because
i]n the absence of such a statement, it is impossible for a reviewing court to determine whether the
ultimate decision on the merits of the claim is rational and supported by substantial evidence.”
Winschel v. Comm'r of Soc. Sec. Admin., 631 F.3d 1176, 1176 (11th Cir. 2011) (internal quotes
and citations omitted). However, in this case, the ALJ cited the relevant standard: “the opinion of
a treating physician is entitled to controlling weight in assessing a claimant’s residual functional
capacity.” (Tr. 291). The ALJ also applied the caveat that this is “contingent upon its being
supported by the evidence in the record.” (Id.). The ALJ also noted “[c]onsideration will be given
to the opinion of a treating physician as to the existence and severity of impairments, and
significant weight will be given as to resulting limitations, but the application of vocational factors
does not fall within the purview of treating or examining physicians.” (Id.). This is sufficient for
the undersigned to review the ALJ’s conclusion, determine she assigned less than controlling
weight, and consider whether the ALJ offered good cause for failing to assign controlling weight.
See Heppell-Libsansky v. Comm'r of Soc. Sec., 170 F. App'x 693, 698 n.4 (11th Cir. 2006) (no

12

reversible error for failing to explicitly assign weight to treating physicians’ opinion when weight
assigned was clear from the record).
Here, the ALJ articulated good cause for failing to assign controlling weight to Dr.
Stidham’s opinion: its inconsistency with the record evidence. (Tr. 291). The ALJ noted the
majority of Anders’s treatment had been for pain rather than any other condition (with the
exception of her spinal fusion surgery), and Anders appeared to have had only moderate pain (with
occasionally moderately severe pain) as long as she followed her treatment. (Tr. 292). The ALJ
also observed the limitations imposed by Dr. Stidham were not consistent with physical
examinations performed by Dr. Stidham and another physician, Dr. Ann Still, (tr. 292), which
found, generally, normal to mildly reduced range of motion, normal gait, and normal muscle tone.
(See tr. 287-290, 788, 815-16, 825, 835, 839, 872, 883). Because of the inconsistency between
Dr. Stidham’s opinion and both the record evidence and Dr. Stidham’s own treatment notes, the
ALJ had good cause to give his opinion less than controlling weight. Additionally, to the extent
Dr. Stidham offered a conclusion on Anders’s RFC or ability to return to work, the ALJ was not
required to give Dr. Stidham’s nonmedical conclusion any particular significance at all; a
physician is not entitled to make the dispositive determinations reserved for the Commissioner.
VII. Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative record
and memoranda of the parties, the decision of the Commissioner of Social Security denying
Anders’s claim for a period of disability and DIB is AFFIRMED, and this action is DISMISSED
WITH PREJUDICE. A separate order will be entered.

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DONE this 30th day of March, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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