Shankle v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 3/23/18. (MRR, )

FILED
2018 Mar-23 PM 12:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BERTHA SHANKLE,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No.: 5:16-cv-01623-SGC

MEMORANDUM OPINION1
Plaintiff Bertha Shankle appeals from the decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying her application for
Supplemental Security Income (“SSI"”) and Disability Insurance Benefits (“DIB”).
(Doc. 1). Plaintiff 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). For the reasons stated below, the Commissioner’s decision is
due to be affirmed.
I.

FACTS, FRAMEWORK, AND PROCEDURAL HISTORY
Plaintiff was forty-eight at the time of the Administrative Law Judge's

(“ALJ's”) decision. (See R. 21, 23). Plaintiff did not attend high school, never
1

The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
(Doc. 12).

received her GED, and speaks English. (R. 32). Plaintiff's past work experience
includes work as a nurse's assistant. (R. 143). Plaintiff alleged disability due to
problems with her neck, right shoulder, and back, as well as mental problems. (R.
151).
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; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination whether the claimant is performing substantial
gainful activity ("SGA").

20 C.F.R. § 404.1520(a)(4)(i).

If the claimant is

engaged in SGA, he or she is not disabled and the evaluation stops. Id. If the
claimant is not engaged in SGA, the Commissioner proceeds to consider the
combined effects of all the claimant’s physical and mental impairments. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must be severe and
must meet durational requirements before a claimant will be found 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 three, at which the Commissioner determines
whether the claimant's impairments meet the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
2

20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the impairments fall within this category, the claimant will be
found disabled without further consideration. Id. If the impairments do not fall
within the listings, the Commissioner determines the claimant's residual functional
capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e).
At step four the Commissioner determines whether the impairments prevent
the claimant from returning to past relevant work.

20 C.F.R. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing
past relevant work, he or she is not disabled and the evaluation stops. Id. If the
claimant cannot perform past relevant work, the analysis proceeds to the fifth step,
at which the Commissioner considers the claimant’s RFC, as well as the claimant's
age, education, and past work experience to determine whether he or she can
perform other work. Id.; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, he or she is not disabled. Id.
Applying the sequential evaluation process, the ALJ found Plaintiff had not
engaged in SGA since the alleged onset of her disability. (R. 11). At step two, the
ALJ found Plaintiff suffered from the following severe impairments: cervical and
lumbar degenerative disc disease ("DDD"); major depressive disorder; anxiety
disorder NOS; and pain disorder. (R. 11-12).
At step three, the ALJ found Plaintiff did not have an impairment or
combination of impairments meeting or medically equaling any of the listed
3

impairments. (R. 12-13). Before proceeding to step four, the ALJ determined
Plaintiff had the RFC to perform light work as defined in 20 CFR § and 416.967(b)
with the following limitations:
[T]he claimant can occasionally climb, balance, stoop, kneel, crouch,
and crawl. The claimant can occasionally perform overhead work
with the right upper extremity. The claimant can tolerate no exposure
to heights, moving machinery, and driving. The claimant can
understand, remember, and carry out short and simple instructions and
make judgments on simple work-related decisions. The claimant can
tolerate occasional contact with the public.
(R. 13).
At step four, the ALJ determined Plaintiff had no past relevant work. (R.
21). Because the Plaintiff’s RFC did not allow for the full range of light work, the
ALJ relied on the testimony of a vocational expert (“VE”) in finding a significant
number of jobs in the national economy Plaintiff can perform. (R. 22). The ALJ
concluded by finding Plaintiff was not disabled. (R. 22-23).
II.

STANDARD OF REVIEW
A 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)). A court gives
4

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, a 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 a court finds that the 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)).
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

5

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
Plaintiff argues the Commissioner’s decision should be reversed and

remanded because the ALJ failed to properly evaluate her testimony of disabling
symptoms in light of the Eleventh Circuit's pain standard. (Doc. 15 at 3). In
particular, Plaintiff contends the ALJ's decision is not supported by substantial
evidence insofar as it discounted Plaintiff's testimony concerning the nature and
severity of her symptoms. (Id. at 4). Plaintiff primarily relies on her longitudinal
treatment history for both physical and psychological ailments.

(Id. at 5-8).

Plaintiff also takes issue with the ALJ's disagreement with the opinions of treating
and examining physicians. (Id. at 9-10). The evidence and issues regarding
Plaintiff's psychological and physical impairments will be discussed in turn.
A.

Plaintiff's Mental Impairments2

Plaintiff testified she cannot sleep and cries often. (R. 35-36). Plaintiff
further testified she suffers from frequent panic attacks; although she testified the
medication helped, she estimated she has three panic attacks per week, each attack
2

Because Plaintiff's brief is largely based on arguments regarding the ALJ's conclusions
regarding her mental impairments, this opinion separates the different mental impairment-related
arguments in separate sub-sections. Because the Plaintiff's arguments concerning the ALJ's
conclusions regarding her physical impairments is more succinct—and because the same legal
framework applies to both varieties of impairments—Plaintiff's physical impairment-related
arguments are discussed together in the following section.
6

lasting approximately thirty (30) minutes. (R. 35). Plaintiff testified her last
employment, in 2013, was unsuccessful because she suffered from a "nervous
breakdown" and could not return to work. (R. 33).
The record includes treatment notes from Dr. Moses Awoniyi, covering the
period from 2013 through 2015, during which he saw Plaintiff on a monthly basis.
(R. 266-80, 362-78). As to psychological impairments, Dr. Awoniyi's records
confirm Plaintiff's consistent complaints of severe depression and/or anxiety. (E.g.
R. 266, 280, 374). Among the medications Dr. Awoniyi prescribed Plaintiff was
Xanax, which appears was intended to treat anxiety rather than pain. (See R. 16,
49). On August 12, 2013, Dr. Awoniyi noted Plaintiff "needs to see psychiatrist."
(R. 270). On September 11, 2013, Dr. Awoniyi referred Plaintiff to psychiatry.
(R. 266).
John Haney, Ph.D., performed a consultative psychological examination on
October 23, 2013. (R. 287-88). Dr. Haney observed Plaintiff to be anxious, sad,
and tearful but also noted she was alert, polite, cooperative, and understood the
reason for the appointment. (R. 287). Plaintiff self-reported feelings of failure,
panic, sadness, pain, worry, as well as problems with memory, concentration,
stress tolerance, sleep, and energy; she also stated her depression began in 1986
and that she had suffered "several panic attacks" in the previous month. (R. 288).
Dr. Haney found Plaintiff was: (1) oriented; (2) unable to subtract serial sevens; (3)
7

able to count forward by multiples of three; (4) limited in performing most simple
tasks and arithmetic; and (5) able to identify abstract similarities between objects
and interpret simple proverbs. (Id.). Dr. Haney also concluded: (1) Plaintiff's
recent and remote memory were "generally intact;" (2) her intelligence was in the
low average to borderline range; (3) she did not suffer from hallucinations,
delusions, or psychotic symptoms; (4) her mood was sad, but her conversation was
logical and goal-oriented; (5) her insight and judgment appeared limited, but she
was able to manage her finances. (Id.). Dr. Haney noted Plaintiff's diagnoses of
"Major Depressive Disorder, Recurrent, Moderate, . . . Anxiety Disorder, NOS,
with panic attacks and agoraphobia, . . . [and] Pain Disorder associated with a
general medical condition and psychological factors."

(R. 288).

Dr. Haney

concluded Plaintiff's "[a]bility to function in most jobs appeared moderately to
severely impaired due to physical and emotional limitations." (Id.).
On October 17, 2013, Plaintiff had an individual therapy session at the
Mental Health Center of North Central Alabama ("MHC Alabama"), presumably
on Dr. Awoniyi's referral. (R. 282). Plaintiff rated both her depression and anxiety
level as 8 on an increasing 10-point scale.

(Id.).

Plaintiff continued with

individual and group therapy sessions at MHC Alabama for nearly a year and a
half. (See, e.g., R. 282-83, 307-27, 352-61, 385). During her therapy sessions,
Plaintiff variously reported poor appetite, difficulty sleeping, anxiety, and
8

depression. At times, Plaintiff reported her symptoms impaired her ability in social
and occupational functioning. (E.g. R. 311). At other times, Plaintiff's counseling
notes reflected Plaintiff: (1) was "content socializing with family and would like to
[] do things with them more often;" and (2) had "supportive family relationships."
(R. 283).
In addition to individual therapy sessions, Plaintiff was treated by Dr. James
Gamble, a psychiatrist at MHC Alabama.

Dr. Gamble's initial assessment,

completed on July 21, 2014, noted Plaintiff suffered from "multiple psychiatric and
emotional issues," the most urgent being "significant depression which meets the
criteria for Major Depression." (R. 304). Plaintiff reported "her most distressing
symptom [wa]s difficulty sleeping," a problem she had experienced since 1996,
when her son was injured in a fire. (R. 302). Plaintiff also stated that: (1) during
the previous year she experienced nightmares three or four times a week, which
had recently decreased to two times per week; and (2) she lost eighteen pounds
over the previous three months due to depressed appetite. (Id.).
Dr. Gamble's initial mental status evaluation revealed: (1) regular speech
rate and tone; (2) no auditory or visual hallucinations; (3) no response to internal
stimuli; (4) no delusions; (5) no loose associations or flight of ideas; and (6)
frequent suicidal thoughts with no intent due to her parental responsibilities. (R.
304; see R. 302). Dr. Gamble also noted: (1) Plaintiff's mood was depressed: (2)
9

her affect was frequently tearful but "otherwise full range and appropriate;" (3) her
judgment was "good;" and (4) she was oriented to person, place, and time. (R.
304). Dr. Gamble: (1) assigned Plaintiff a Global Assessment of Functioning
("GAF") score of 30; (2) made diagnoses of "Major Depression Recurrent, Severe
without Psychosis" and "Anxiety Disorder, NOS (Rule out PTSD);" and (3)
prescribed Prozac to treat Plaintiff's depression. (Id.).
Plaintiff continued to see Dr. Gamble on a monthly basis for medication
management for the next seven months, until February 2, 2015. Dr. Gamble's
assessments generally reflect Plaintiff's reports of difficulty sleeping, sudden
crying, poor memory and concentration, low energy, depression, and anxiety; Dr.
Gamble's diagnoses remained unchanged. (R. 297, 338, 341, 344, 347, 358, 388).
Additionally, Dr. Gamble's evaluations of Plaintiff's speech, mood, affect, and
judgment were largely consistent with his initial assessment. Dr. Gamble did not
perform another GAF assessment. As explained below, it appears Dr. Gamble's
main treatment strategy was to gradually adjust Plaintiff's medication and dosages.
On Plaintiff's first follow-up appointment, Dr. Gamble discontinued Prozac
due to side effects, and replaced it with Paxil. Over the following visits, Dr.
Gamble steadily increased Plaintiff's Paxil dose from 5 mg to 40 mg. (R. 298, 339,
342, 345, 348, 359). On Plaintiff's last visit, Plaintiff stated the increased Paxil
dosage was "helpful," and Dr. Gamble noted that, while Plaintiff had been upset
10

about stressful events affecting her family, "[s]he was good humored about it." (R.
388). Additionally, Dr. Gamble's final mental status examination appears to reveal
an improvement in Plaintiff's mood ("[p]erhaps in the depressed range") and affect
("[f]ull range and appropriate"). (Id.). Finally, while Dr. Gamble had previously
scheduled Plaintiff to return every four weeks, on February 2, 2015, Dr. Gamble
scheduled Plaintiff's follow-up appointment for twelve weeks later. (R. 389). It
appears February 2, 2015, was the last time Plaintiff saw Dr. Gamble.
Plaintiff contends the ALJ "mischaracterized the evidence regarding [her]
mental illness and resulting limitations." (Doc. 15 at 9).

More specifically,

Plaintiff argues the ALJ improperly discounted Plaintiff's testimony regarding the
severity of her mental impairments and erred in discounting the opinions of Dr.
Gamble and Dr. Haney. (Id.). The court will first address arguments regarding the
opinion testimony before moving to the ALJ's treatment of Plaintiff's testimony.
1.

Opinion Evidence Regarding Mental Impairments

Opinions from one-time examiners are not entitled to deference. McSwain v.
Bowen, 814 F.2d 617, 619 (11th Cir. 1987).

Meanwhile, the opinion of a

claimant's treating physician is entitled to substantial or considerable weight absent
a showing of good cause to the contrary. Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997). Failure to articulate the reasons for giving less weight to the
opinion of a treating physician is reversible error. Id. Good cause exists where a
11

treating physician's opinion: (1) is not supported by the evidence; (2) is
contradicted by the evidence; or (3) is conclusory or inconsistent with the doctor's
own medical records. Phillips, 357 F.3d at 1240-41. While the ALJ can "reject the
opinion of any physician when the evidence supports a contrary conclusion . . . the
ALJ is required [] to state with particularity the weight he gives to different
medical opinions and the reasons why." McCloud v. Barnhart, 166 F. App'x 410,
418-19 (11th Cir. 2006) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th
Cir. 1983); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987)). Furthermore,
the ALJ must explain why an opinion is inconsistent with the medical record; he or
she cannot simply make a conclusory pronouncement that the opinion is
inconsistent with evidence of record. See Bell v. Colvin, No. 15-0743, 2016 WL
6609187 at *4 (M.D. Ala. Nov. 7, 2016).
Turning to the opinions at issue here, Dr. Haney's opinion is not entitled to
deference because he was a one-time consultative examiner. McSwain, 814 F.2d at
619. The ALJ found Dr. Haney's opinion—that Plaintiff's impairments moderately
or severely limited her ability to work—was "overly pessimistic" and not entirely
supported by his own examination findings. (R. 20). The ALJ also concluded Dr.
Haney's opinion was not supported in light of the medical record; in particular, the
ALJ cited the treatment notes from MHC Alabama, which revealed fairly
conservative treatment and did not reflect the severe mental impairments suggested
12

by Dr. Haney's opinion. (Id.). The ALJ also noted two deficiencies in Dr. Haney's
opinion which rendered it inappropriate for making an RFC determination. First,
the ALJ noted Dr. Haney is a psychologist who evaluated the Plaintiff's mental—
not physical—condition. However, Dr. Haney's opinion is based on Plaintiff's
mental and physical condition. (Id.). Second, the ALJ noted Dr. Haney's opinion
is conclusory and not based on a function-by-function analysis.

(Id.).

Accordingly, the ALJ afforded significant weight to Dr. Haney's opinion, but only
to the extent it supported the RFC determination. (Id.). The ALJ explained this
decision, which was supported by substantial evidence and was in accord with
applicable law.
As to Dr. Gamble's opinion, the ALJ gave little weight to the GAF score of
30. (R. 21). As an initial matter, the ALJ noted GAF scores merely represent a
clinician's judgment about the severity of an individual's symptoms at a particular
moment in time: a snapshot as opposed to a longitudinal study.

(Id.). This

understanding of GAF scores is supported by case law. See Thornton v. Comm'r
Soc. Sec. Admin., 597 F. App'x 604, 613 (11th Cir. 2015). Moreover, a GAF score
is not an assessment of a claimant's ability to work. See id.; Davis v Astrue, No.
11-2542-RDP, 2012 WL 4339562, at *7 (N.D. Ala. Sept. 17, 2012). Here, the only
GAF score on the record was assigned by Dr. Gamble on July 21, 2014.

13

The ALJ also found the evidence did not support a GAF of 30, which
indicates: "Behavior is considerably influenced by delusions or hallucinations OR
serious impairment in communication or judgment . . . OR inability to function in
almost all areas . . . ." DSM-IV-TR at 34; (See R. 21). The ALJ was correct in
noting Dr. Gamble's failure to support or explain the GAF score of 30. Dr.
Gamble's initial assessment did not support this level of impairment; neither did
subsequent assessments.

Likewise, Dr. Gamble's conservative treatment—

consisting primarily of gradually adjusting Plaintiff's medication—supports the
ALJ's conclusion. See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996).
Accordingly, the ALJ applied the correct standards regarding the GAF score, and
the decision to assign it little weight is supported by substantial evidence.
For the foregoing reasons, to the extent the ALJ refused to accept the
entirety of Dr. Gamble's and Dr. Haney's opinions, the decisions were proper under
the governing standard.
2.

Plaintiff's Testimony Regarding Mental Impairments

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, including mental impairments, the Eleventh
Circuit's pain standard requires:
14

(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the alleged
pain [or other symptoms] 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 [or other
symptoms].
Dyer, 395 F.3d at 1210 (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)); see Hunter v. Comm'r of Soc. Sec., 651 F. App'x 958, 960-61 (11th Cir.
2016). The ALJ is permitted to discredit the claimant’s subjective testimony of
pain and other symptoms if he or she articulates explicit and adequate reasons for
doing so. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). When the
credibility of a claimant's testimony is at issue, "[t]he question is not . . . whether
the ALJ could have reasonably credited testimony, but whether the ALJ was
clearly wrong to discredit it." Werner v. Comm'r of Soc. Sec., 421 F. App'x 935,
938-39 (11th Cir. 2011).
Here, the ALJ found the Plaintiff's testimony concerning the severity of her
mental impairments was not consistent with the record, particularly records that
were temporally proximate to her March 9, 2015 testimony. (R. 18-19). Plaintiff
testified she suffered from frequent panic attacks; she estimated she had three
panic attacks per week. (R. 35). Plaintiff further testified she has no social life;
she stated she had no friends and all of her family lives out of state. (R. 38). The
ALJ found Plaintiff's testimony regarding the frequency of panic attacks was not
supported by the record. (R. 19). Review of the MCH Alabama records cited by
15

the ALJ support this conclusion: the records from September 2014 through
February 9, 2015, are silent regarding panic attacks and show an improvement in
Plaintiff's symptoms. (R. 338-61; 385-89). Next the ALJ found the Plaintiff's
testimony that she had no social life and no nearby family was undermined by
other portions of the record in which she reported she was content socializing with
her family and had supportive family relationships. (R. 19; see R. 283). The
relatively conservative treatment for Plaintiff's mental illness also supports the
ALJ's decision and indicates it was not as limiting as Plaintiff testified—
particularly where her condition appears to have improved with medication. See
20 C.F.R. § 416.929(c)(iv)-(v); SSR 96-7p;3 Wolfe, 86 F.3d at 1078; Pennington v.
Comm'r of Soc. Sec., 652 F. App'x 862, 873 (11th Cir. 2016); Harwell v. Heckler,
735 F.2d 1292, 1293 (11th Cir. 1984).
The ALJ concluded by finding Plaintiff's impairments could reasonably be
expected to cause the alleged symptoms but that her statements concerning the
severity of those symptoms were not entirely credible.

(R. 19).

The ALJ’s

findings represent specific, legally acceptable reasons to support his conclusion
that the objective medical record undermined the credibility of Plaintiff’s
subjective testimony. (R. 18-19). Moreover, the conclusions are supported by
substantial evidence. As such, Plaintiff failed to meet her burden of providing
3

While SSR 96-7p has since been superseded by SSR 16-3p, it remained in effect at the time the
ALJ issued the instant decision. Accordingly, the ALJ appropriately applied SSR 96-7p.
16

sufficient evidence to support her allegations of disabling mental impairments. In
short, the ALJ was not "clearly wrong" in discrediting the Plaintiff's testimony.
Werner, 421 F. App'x at 939.
B.

Plaintiff's Physical Impairments

Plaintiff testified she suffers from back pain on a daily basis but that her
prescribed medication helped "somewhat." (R. 34). Plaintiff rated her average
level of back pain as 8 on a 10-point ascending scale but testified it was often 10
out of 10. (R. 36-37). As a result of her pain, Plaintiff testified she could: (1)
stand for 30 minutes at a time; (2) carry her grandson, who weighs 22 pounds, for
several minutes; and (3) walk for less than one block without resting. (R. 34-37).
Plaintiff further testified she spent approximately four hours each day lying down.
(R. 36, 39).
The ALJ noted Plaintiff's complaints of back pain began in September 2010,
following a work-place injury. However, cervical x-rays at the time were normal,
and Plaintiff was released to go back to work without limitations the following
month. Several months later, in January 2011, Plaintiff was involved in a car
wreck. X-rays showed osteoarthritic changes with anterior osteophytes at C4-5
and C6-7 but no fracture, subluxation, or swelling. (R. 198). Plaintiff sought
treatment with the Decatur Orthopaedic Clinic and was diagnosed with cervical
strain. (R. 226). Plaintiff could not afford the prescribed physical therapy but
17

responded well to medications. (Id.) By March 28, 2011, Plaintiff was no longer
wearing a cervical collar, had good range of motion, and reported no significant
pain. (Id.). Plaintiff did not return for her scheduled follow-up, and it appears this
was the last treatment she received from Decatur Orthopaedic Clinic. (Id.).
On June 16, 2013, Plaintiff saw Dr. Awoniyi, complaining of back and
shoulder pain, as well as the previously-discussed anxiety and depression. (R.
280). Dr. Awoniyi prescribed Lortab 7.5 mg twice daily. (Id.). Plaintiff returned
in July and August 2013; Dr. Awoniyi continued prescribing pain medication and
ordered imaging. (R. 270-71). X-rays of Plaintiff's coccyx, sacrum, and lumbar
spine were unremarkable, but mild endplate degenerative changes and small
ventral osteophytes were visible in the lower cervical spine. (R. 267-69). Dr.
Awoniyi refilled Plaintiff's pain medication in September 2013. (R. 266).
In October 2013, Dr. Marlin D. Gill performed a physical consultative
examination at the request of the Social Security Administration. (R. 284-86). Dr.
Gill recounted Plaintiff's history of neck pain beginning with her 2010 work injury
and lower back pain following the 2011 accident. (R. 284). Plaintiff reported: (1)
waking multiple times at night due to pain; (2) sharp neck pain with any head
movement, worsening with increased activity; (3) intermittent lower back pain,
requiring her to rest after excessive standing, walking, or bending; (4) lower back
pain lasting days if she was overactive; (5) significant lower back pain when lifting
18

anything over ten to fifteen pounds; and (6) right shoulder pain caused by reaching
or lifting. (Id.). Plaintiff reported daily activities of sleeping, light housework,
shopping, and taking care of her own personal needs. (Id.). Plaintiff estimated she
could sit or stand for a maximum of one hour and walk a maximum of one block.
(Id.).
Dr. Gill observed Plaintiff as having a normal gait and noted she did not
need assistance walking or getting on and off the examination table. (R. 285). As
to Plaintiff's neck, back, and right shoulder, Dr. Gill noted Plaintiff's complaints of
pain but stated they appeared "normal" and/or moved "normally." (Id.). Dr. Gill
noted Plaintiff could "squat all the way down and come back up again" to a
standing position and could walk on her tiptoes and heels. (Id.). Plaintiff exhibited
5/5 strength in all areas except for the right arm in which strength was 4/5. (Id.).
Dr. Gill assessed plaintiff as having neck pain, low back pain, and right shoulder
pain; he noted all imaging was normal, except for the previously-discussed
degenerative changes shown in x-rays of Plaintiff's neck. (R. 286).
Plaintiff returned to Dr. Awoniyi in October 2013; he continued prescribing
Lortab on her monthly visits. (R. 372-75). Dr. Awoniyi also ordered additional
imaging in November 2013; x-rays of Plaintiff's lumbar spine showed "some
calcification in the posterior annulus at L4-5 which protrudes into the canal
slightly." (R. 291). The findings noted DDD "[could] not be excluded" and stated
19

MRIs might be needed. (Id.). Thereafter, Dr. Awoniyi began prescribing Flexeril;
in September 2014, he discontinued Lortab and replaced it with Norco 10. (R.
366-75).

It appears Dr. Awoniyi's treatment consisted of prescribing these

medications at steady dosages. (Id.; see R. 382-83).
Dr. Awoniyi also referred Plaintiff to a spinal surgeon; she saw Dr. Joel D.
Pickett on March 14, 2014. (R. 330-33). Dr. Pickett observed Plaintiff as having:
(1) normal strength, muscle tone, and bulk, without evidence of weakness; (2) full
range of motion without pain; (3) no pain with straight leg maneuvers; and (4) no
deformity or asymmetry of the lumbosacral spine. (Id.). Dr. Pickett ordered xrays, which showed good alignment throughout the lumbar spine with "mild"
DDD. (Id.). Dr. Pickett also ordered an MRI, which showed "mild disc bulges at
L4-5 and L5-S1 level with no central lateral recess or neural foraminal narrowing."
(R. 334).

Dr. Pickett suggested physical therapy and recommended pain

management rather than surgery. (R. 332).
On February 11, 2015, Dr. Awoniyi signed a statement concerning his
opinion of Plaintiff's impairments. The entirety of Dr. Awoniyi's statement is:
The above named patient of mine has medical problems that severely
decrease her functional capacity. She has problems sitting and
walking for more than 4hrs. The medications she take compromises
her alertness and inability to drive. In my opinion she is physically
disable.
(R. 380) (errors in original).
20

On this record, the ALJ found the Plaintiff's testimony regarding the
persistence and severity of her pain was not entirely credible. (R. 19). The ALJ
also gave Dr. Awoniyi's opinion little weight. (Id.). Plaintiff takes issue with both
of these decisions.
As to Plaintiff's testimony, the ALJ relied on multiple inconsistencies when
compared to the medical record. First, although Plaintiff testified her prescribed
medication helped her pain "somewhat," she estimated she could only stand for
approximately 30 minutes and lays down "all the time." (R. 18-19; see R. 34).
The ALJ found this conflicted with her statement to Dr. Gill that she could stand
for up to an hour. (R. 19). The ALJ found Plaintiff's testimony that sitting was
"very uncomfortabl[e]" was not supported by Dr. Pickett's generally normal
examination findings. (Id.) Plaintiff also testified she could carry her twenty-two
pound grandson despite her report to Dr. Gill that lifting anything heavier than ten
to fifteen pounds caused significant pain. (Id.). The ALJ also noted Dr. Awoniyi's
conservative treatment—consisting almost entirely of prescribing pain medication
at steady doses—together with the lack of hospitalization or more aggressive
treatment, undermined her testimony that her pain level was 8 out of 10 on an
average day, but often was 10 out of 10. (Id.). The ALJ also found Plaintiff's
testimony regarding her difficulty walking, bending, kneeling, and crawling were
not supported by the examination findings of Dr. Gill or Dr. Pickett. (Id.).
21

Inconsistencies in the evidence provide justification for discrediting a
Plaintiff's testimony of pain. E.g. Carman v. Astrue, 352 F. App'x 406, 408 (11th
Cir. 2009).

Here, the ALJ noted multiple inconsistencies between Plaintiff's

testimony and the medical record. Review of the record does not reveal any
evidence that would render the ALJ's decision improper. Plaintiff does not point to
any specific evidence to the contrary aside from Dr. Awoniyi's opinion, discussed
below. Instead, Plaintiff relies on her diagnoses and her longitudinal history of
seeking treatment for her ailments. (Doc. 15 at 4-5, 10-11). It is true—as Plaintiff
argues—that "a longitudinal medical record demonstrating an individual's attempts
to seek medical treatment for . . . symptoms . . . lends support to an individual's
allegations of intense or persistent . . .symptoms for the purposes of judging the
credibility of the individual's statements." SSR 96-7P. But again, the question
here is not "whether the ALJ could have reasonably credited testimony, but
whether the ALJ was clearly wrong to discredit it." Werner, 421 F. App'x at 93839. In light of the record here, the ALJ's decision to discount Plaintiff's testimony
was not clearly wrong. Moreover, while Plaintiff relies heavily on the fact of her
various diagnoses (Doc. 15 at 5-8, 11), diagnoses alone do not establish her
inability to work. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005).
The ALJ’s findings represent specific, legally acceptable reasons to support
his conclusion that the objective medical record undermined the credibility of
22

Plaintiff’s testimony. (R. 18-19). As such, Plaintiff failed to meet her burden of
providing sufficient evidence to support her allegations of disabling physical
impairments. Substantial evidence supports the ALJ’s conclusions. In short, the
ALJ was not "clearly wrong" in discrediting the Plaintiff's testimony. Werner, 421
F. App'x at 939.
As to Dr. Awoniyi's opinion concerning Plaintiff's physical impairments, the
ALJ gave it little weight because: (1) it was not supported by Dr. Awoniyi's
treatment records; (2) it was contradicted by the findings of Dr. Pickett and Dr.
Gill; and (3) it purported to express an opinion on an issue reserved to the
Commissioner. (R. 19). The ALJ was correct as to each rationale.
First, Dr. Awoniyi treated Plaintiff on a monthly basis from 2013 through
2015.

However, his treatment records consist largely of hand-written notes

reciting Plaintiff's diagnoses, symptoms, and prescriptions. While Dr. Awoniyi
referred Plaintiff to Dr. Pickett for a surgery consultation, Dr. Pickett returned
essentially normal findings and suggested pain management and physical therapy
in lieu of surgery. A treating physician's opinion may be disregarded if it is
unsupported by objective medical evidence or is merely conclusory. McSwain,
814 F.2d at 619; Lewis, 125 F.3d at 1440; Hudson v. Heckler, 755 F.2d 781, 784
(11th Cir. 1985) (treating physician's opinion properly rejected where it is "so brief
and conclusory that it lacks persuasive weight").
23

The ALJ was correct in

concluding Dr. Awoniyi's opinion was not supported by his own treatment records.
The ALJ did not err in rejecting Dr. Awoniyi's brief and conclusory opinion.
Next, the ALJ accurately noted the level of disability described in Dr.
Awoniyi's opinion was contradicted by the essentially normal findings of Dr.
Pickett and Dr. Gill.

This provides a sound basis—supported by substantial

evidence—on which to reject Dr. Awoniyi's opinion. See Fries v. Comm'r of Soc.
Sec. Admin., 196 F. App'x 827, 833-34 (11th Cir. 2006) (ALJ had good cause for
discounting treating physician's opinion in favor of one-time examiners' opinions
that were consistent with the medical record).
Finally, the ALJ was correct in noting that Dr. Awoniyi's opinion
encroached on the Commissioner's duty to determine disability. Whether Plaintiff
was able to work is an issue reserved to the Commissioner. SSR 96-5p.
IV.

CONCLUSION
Upon review of the administrative record and considering all of Plaintiff's

arguments, the undersigned finds the Commissioner's decision is supported by
substantial evidence and is in accord with applicable law.

Accordingly, the

Commissioner's decision is due to be affirmed. A separate order will be entered.
DONE this 23rd day of March, 2018.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
24