Rogers v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 3/8/2018. (KEK)
2018 Mar-08 AM 11:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
AMY BRANNON ROGERS,
NANCY A. BERRYHILL,
Acting Commissioner of Social
Case No.: 5:16-CV-1807-MHH
Pursuant to 42 U.S.C. § 405(g), plaintiff Amy Brannon Rogers seeks judicial
review of a final adverse decision of the Commissioner of Social Security. The
Commissioner denied Ms. Rogers’s claims for a period of disability and disability
insurance benefits. After careful review, the Court affirms the Commissioner’s
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).
Ms. Rogers applied for a period of disability and disability insurance
benefits on July 29, 2013. (Doc. 9-4, p. 30). Ms. Rogers alleges that her disability
began on November 19, 2011. (Doc. 9-4, p. 30). The Commissioner initially
denied Ms. Rogers’s claim on October 11, 2013. (Doc. 9-5, pp. 2-7). Ms. Rogers
requested a hearing before an Administrative Law Judge (ALJ). (Doc. 9-5, p. 8).
The ALJ issued an unfavorable decision on March 26, 2015. (Doc. 9-3, pp. 9-24).
On September 8, 2016, the Appeals Council declined Ms. Rogers’s request for
review (Doc. 9-3, p. 2), making the Commissioner’s decision final and a proper
candidate for this Court’s judicial review. See 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.
“Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”
Comm’r, Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ
follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Ms. Rogers has not engaged in substantial
gainful activity since November 19, 2011, the alleged onset date. (Doc. 9-3, p. 14).
The ALJ determined that Ms. Rogers suffers from the following severe
impairments: left sciatic joint dysfunction, status post lumbar fusion L4-5 and L5S1, lumbar degenerative disc disease, and obesity. (Doc. 9-3, p. 14). The ALJ
found that Ms. Rogers has the following non-severe impairments: hypertension,
hyperlipidemia, mild right carpel tunnel syndrome, depression, and anxiety. (Doc.
9-3, p. 15). Based on a review of the medical evidence, the ALJ concluded that
Ms. Rogers does not have an impairment or a combination of impairments that
meets or medically equals the severity of any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 9-3, p. 17).
In light of Ms. Rogers’s impairments, the ALJ evaluated Ms. Rogers’s
residual functional capacity or RFC. The ALJ determined that Ms. Rogers has the
RFC to perform:
light work as defined in 20 CFR 404.1567(b) except the claimant
could lift and carry up to 20 pounds occasionally and 10 pounds
frequently. She could sit, stand and/or walk for up to 6 hours each in
an 8-hour workday with normal breaks. She could occasionally climb
ramps and stairs, but never climb ladders, ropes, or scaffolds. She
could occasionally perform work activity requiring balancing,
stooping, kneeling, crouching, and crawling.
(Doc. 9-3, p. 18).
Based on this RFC, the ALJ concluded that Ms. Rogers is not able to
perform her past relevant work as a home attendant. (Doc. 9-3, p. 22). Relying on
testimony from a vocational expert, the ALJ found that jobs exist in the national
economy that Ms. Rogers can perform, including an inspector, sorter, and bander.
(Doc. 9-3, p. 23). Accordingly, the ALJ determined that Ms. Rogers has not been
under a disability within the meaning of the Social Security Act. (Doc. 9-3, p. 24).
Ms. Rogers argues that she is entitled to relief from the ALJ’s decision
because the ALJ failed to properly consider the opinion of treating physician Dr.
Franklin Calame Sammons and because the ALJ failed to consider her (Ms.
Rogers’s) work history in assessing her subjective pain testimony. The Court
examines each issue in turn.
Substantial Evidence Supports the ALJ’s Decision to Give Little
Weight to Dr. Sammons’s Opinion.
An ALJ must give the opinion of a treating physician like Dr. Sammons
“substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (citations omitted).
Good cause exists when “(1) [the] treating physician’s opinion was not bolstered
by the evidence; (2) [the] evidence supported a contrary finding; or (3) [the]
treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Id. at 1240-41; see also Crawford, 363 F.3d at 1159 (noting a
treating physician’s report may be discounted if it is wholly conclusory or not
supported by objective medical evidence). “The ALJ must clearly articulate the
reasons for giving less weight to a treating physician’s opinion, and the failure to
do so constitutes error.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 931
(11th Cir. 2013) (citing Lewis v. Callahan, 125 F. 2d 1436, 1440 (11th Cir. 1997)).
On August 11, 2014, on Ms. Rogers’s behalf, Dr. Sammons completed a
disability report for the Retirement Systems of Alabama. (Doc. 9-10, pp. 4-5).2
Dr. Sammons stated that he had treated Ms. Rogers since March 3, 2010. (Doc. 910, p. 4). According to Dr. Sammons, Ms. Rogers described her daily activities as
“aid[e] type work, cleaning – pulling, housework, lifting patients, bathing
patients.” (Doc. 9-10, p. 4). Dr. Sammons stated that he believed that Ms. Rogers
is permanently disabled. (Doc. 9-10, p. 4). When asked to list in detail the
diagnoses and supporting evidence relating to Ms. Rogers’s disability, Dr.
Sammons stated that Ms. Rogers has SI instability and pain. (Doc. 9-10, p. 4). Dr.
It appears that Dr. Sammons signed the disability report on August 1, 2014. (Doc. 9-10, p. 5).
On the first page of the report, Dr. Sammons explains that he has treated Ms. Rogers from March
3, 2010 until August 11, 2014. (Doc. 9-10, p. 4). Dr. Sammons attached to the August 2014
disability report treatment notes from Ms. Rogers’s August 11, 2014 office visit. (Doc. 9-10, p.
6). Therefore, the Court reasonably concludes that Dr. Sammons submitted the retirement
systems disability report on August 11, 2014, not August 1, 2014 and that the August 1, 2014
signature date is a mistake.
Sammons also explained that Ms. Rogers cannot sit or stand for more than 30
minutes without changing positions. (Doc. 9-10, p. 4). When asked to list the
objective findings that support his disability opinion, Dr. Sammons stated that Ms.
Rogers needed an SI fusion, but insurance would not cover the minimally invasive
procedure. (Doc. 9-10, p. 4). Dr. Sammons opined that Ms. Rogers cannot
repetitively bend or stoop, that she needs frequent position changes, and that she
cannot engage in prolonged walking, standing, sitting, or riding in a car. (Doc. 910, p. 5).
Dr. Sammons attached to his August 2014 disability report a treatment note
from Ms. Rogers’s office visit on August 11, 2014. (Doc. 9-10, p. 6). After
examining Ms. Rogers on August 11, 2014, Dr. Sammons stated that he “d[id] not
think [Ms. Rogers] can do her previous work and remains disabled from this
permanently.” (Doc. 9-10, p. 6). In the same treatment note, Dr. Sammons
explained that Ms. Rogers “can’t do prolonged driving or riding, standing or
sitting. She cannot do repetitive bending, twisting or lifting great than 15-20
pounds max and not on any type of frequent basis.” (Doc. 9-10, p. 6).
On February 11, 2015, Dr. Sammons completed on Ms. Rogers’s behalf a
physical medical source statement. (Doc. 9-9, pp. 112-114). Dr. Sammons opined
that Ms. Rogers can occasionally lift or carry 10 pounds or less; frequently lift or
carry less than 10 pounds; and walk for less than two hours in an 8-hour work day.
(Doc. 9-9, p. 112). Dr. Sammons concluded that Ms. Rogers cannot sit or stand for
periods of greater than 30 minutes without changing positions. (Doc. 9-9, p. 113).
According to Dr. Sammons, Ms. Rogers often experiences pain and fatigue “severe
enough to interfere with attention and concentration.” (Doc. 9-9, p. 113). Dr.
Sammons opined that Ms. Rogers would need to take three or four unscheduled
breaks during an 8-hour work day. (Doc. 9-9, p. 113).
Dr. Sammons stated that when sitting, Ms. Rogers should elevate her legs as
needed for comfort. (Doc. 9-9, p. 113). Dr. Sammons found that Ms. Rogers’s
impairments likely will result in “good days” and “bad days” and that Ms. Rogers
will miss work about three or four times a month. (Doc. 9-9, p. 114). Dr.
Sammons stated that Ms. Rogers’s condition had worsened since 2011. (Doc. 9-9,
p. 114). When asked to describe the medical or clinical findings that supported his
conclusions, Dr. Sammons stated that “[Ms. Rogers] now needs SI fusions.” (Doc.
9-9, p. 114).
The ALJ stated that the opinions contained in Dr. Sammons’s August 11,
2014 disability report and his February 11, 2015 medical source statement “are not
accorded controlling weight.” (Doc. 9-3, p. 21). The ALJ explained:
First, Dr. Sammons did not provide any clinical or objective findings
to support his opinions. On the contrary, the record does not contain
diagnostic studies that reveal any findings consistent with an
individual who is disabled, as defined (20 CFR 404[.]1505) from all
employment. Second, the claimant’s treating history reveals she
underwent a lumbar fusion procedure in 2010, was released in
October 2011 (Ex B3F) and did so well afterward that she did not
return for additional treatment with Dr. Sammons for about two
years, which is well after the alleged onset date. Third, as discussed,
the evidence from Dr. Sammons shows the claimant’s pain
symptoms worsened from July 2013 through December 2013;
however, Dr. Sammons[’s] treatment, consisting of SI injections,
significantly improved her conditions. Fourth, records from the
claimant’s treating physician reveal no complaints involving her back
condition and Dr. Lockhard’s examinations fail to show any
significant findings. In fact, as discussed, Dr. Lockhard’s August
2014 examination revealed a normal gait and the claimant had no
signs of musculoskeletal problems. . . .
Sammons[’s] opinions are inconsistent with the other evidence in the
record and are not accorded with controlling weight.
(Doc. 9-3, p. 21).
With respect to Dr. Sammons’s August 11, 2014 disability opinion and
recommended restrictions, the ALJ credited Dr. Sammons’s assessment to the
extent he opined that Ms. Rogers cannot perform her past work as a home aide.
(Doc. 9-3, p. 21; see Doc. 9-10, pp. 4-6). The ALJ gave “little weight” to Dr.
Sammons’s August 11, 2014 functional assessments because according to the ALJ,
the assessments “are inconsistent with the treating records.” (Doc. 9-3, pp. 21-22).
Limited treatment records support Dr. Sammons’s opinions. Dr. Sammons
began treating Ms. Rogers in 2010. In March 2010, Dr. Sammons and another
physician performed a lumbar fusion on Ms. Rogers at L4-5 and L5-S1. (Doc. 9-8,
pp. 21-28). Ms. Rogers saw Dr. Sammons for a number of follow-up visits after
her surgery. (Doc. 9-9, pp. 5-13). On October 5, 2011, Dr. Sammons stated that
Ms. Rogers was “doing okay” and that she had “good days and bad days.” (Doc.
9-9, p. 6). Dr. Sammons released Ms. Rogers from care and explained that she
could return on an as-needed basis “if her symptoms change[d] or worsen[ed].”
(Doc. 9-9, p. 6). Ms. Rogers did not see Dr. Sammons again until July 11, 2013,
20 months after Ms. Rogers’s alleged onset date. (Doc. 9-9, p. 3).
On July 11, 2013, Ms. Rogers stated that she “ha[d] been doing okay but
ha[d] been getting some increasing problems.” (Doc. 9-9, p. 3). She explained
that she had been experiencing left hip pain “off and on for months.” (Doc. 9-9, p.
3). Ms. Rogers told Dr. Sammons that “sitting, standing, flexing, lifting, riding in
a car, or [walking] stairs” aggravated the pain. (Doc. 9-9, p. 3). Ms. Rogers
complained that her pain was “becoming more of a nuisance.” (Doc. 9-9, p. 3).
During a physical examination, Ms. Rogers had “discomfort to palpation across the
lumbosacral region” and “mild pain with flexion past 60 degrees.” (Doc. 9-9, p.
3). Ms. Rogers was positive for SI thrust pain and she had “mildly positive SI
distraction pain.” (Doc. 9-9, p. 3). Dr. Sammons diagnosed left SI dysfunction.
(Doc. 9-9, p. 3).
On August 14, 2013, Ms. Rogers told Dr. Sammons that an antiinflammatory did not provide much improvement in her pain across the left SI
region. (Doc. 9-9, p. 2). Ms. Rogers had four positive SI tests, and she had a
positive Farber’s test. Ms. Rogers also had a positive SI thrust, axial lateral
compression, and Gaenslen test. (Doc. 9-9, p. 2). Dr. Sammons recommended an
SI injection, and Ms. Rogers stated that she would consider the procedure. (Doc.
9-9, p. 2).
During an examination on August 11, 2014, Dr. Sammons noted that while
Ms. Rogers was in the clinic, Ms. Rogers “constantly had to shift” from side to
side; she walked with an antalgic gait; she had decreased range of motion in
flexion and extension of the lumbar spine; she had a positive Faber’s test on the
left, positive SI distraction, positive Gaenslen, and a positive Patrick’s figure of
four test. (Doc. 9-9, p. 51). Dr. Sammons diagnosed SI instability on the left side
with chronic back and hip pain. (Doc. 9-9, p. 51).
Medical evidence in the administrative record is inconsistent with Dr.
Sammons’s opinion regarding the limiting effects of Ms. Rogers’s physical
impairments. For example, during her visit with Dr. Sammons on July 11, 2013,
Dr. Sammons noted that Ms. Rogers’s increased pain with extension was “not
severe,” and Ms. Rogers had intact sensation, full and unrestricted range of motion
in her hips, and a normal heel and toe walk. (Doc. 9-9, p. 3). Dr. Sammons
administered an SI injection on September 16, 2013. (Doc. 9-9, pp. 49-50). After
the injection, Ms. Rogers “saw significant improvement of her pain.” (Doc. 9-9, p.
48). Ms. Rogers’s pain flared up two or three weeks after the injection when “she
did some significant extra work,” but even still, Ms. Rogers rated her pain as two
or three on a 10-point scale. (Doc. 9-9, p. 48). Dr. Sammons recommended six
weeks of SI stabilization exercises through physical therapy. (Doc. 9-9, p. 48).
On November 13, 2013, Ms. Rogers saw Dr. Sammons again, and Ms.
Rogers stated that the physical therapy “helped temporarily,” but she still was
experiencing pain. (Doc. 9-9, p. 76). Ms. Rogers had a positive SI thrust, positive
SI distraction, and positive Gaenslen test.
(Doc. 9-9, p. 76).
recommended another injection which Ms. Rogers received in December 2013.
(Doc. 9-9, p. 75). Ms. Rogers told Dr. Sammons that the December 2013 injection
“worked better” than the September 2013 injection. (Doc. 9-9, p. 75). During a
December 30, 2013 office visit, Dr. Sammons noted that Ms. Rogers “still ha[d] a
little discomfort but mostly if she s[at] too long but overall she is much better than
she was.” (Doc. 9-9, p. 75). Dr. Sammons stated that if Ms. Rogers continued to
have problems, then he would recommend that Ms. Rogers possibly consider an SI
fusion. Dr. Sammons did not schedule a follow-up appointment, but he instructed
Ms. Rogers to return if her symptoms changed or worsened. (Doc. 9-9, p. 75).
Dr. Sammons’s opinions also are inconsistent with treatment notes from Ms.
Rogers’s primary care physician, Dr. Thomas Lockhard. The ALJ explained that
Dr. Lockhard’s treatment notes did not reveal significant findings with respect to
Ms. Rogers’s back. (Doc. 9-3, p. 21; see Doc. 9-9, pp. 37-41, 66-68, 101-110).
When Ms. Rogers saw Dr. Lockhard on August 20, 2014, nine days after Dr.
Sammons issued his August 11, 2014 opinion, Ms. Rogers denied musculoskeletal
pain or swelling. Ms. Rogers had a normal gait, and her extremities appeared
normal. She had no localized tenderness or swelling in her joints. (Doc. 9-9, p.
67). On February 5, 2015, six days before Dr. Sammons issued his February 11,
2015 opinion, Dr. Lockhard’s records state that Ms. Rogers was “doing okay.”
(Doc. 9-9, p. 101). Ms. Rogers “denie[d] acute problems” and was “informed
about her chronic back pain.” (Doc. 9-9, p. 101). Ms. Rogers denied joint pain,
joint swelling, muscle pain, and muscle weakness. A musculoskeletal examination
was normal. (Doc. 9-9, p. 102). The ALJ recognized that Dr. Lockhard did not
treat Ms. Rogers’s back condition (Doc. 9-3, p. 21; see Doc. 9-9, p. 101), but the
[I]t is reasonable to conclude that he would have documented
episodes of extreme distress, observations showing the claimant was
ambulating with a medically necessary hand-held assistive device,
and any severe pain behaviors. Yet, his treating records do not
contain any objective signs of distress or any significant examination
(Doc. 9-3, p. 21).
The Court finds that substantial evidence supports the ALJ’s decision to give
little weight to Dr. Sammons’s opinions. Hunter v. Soc. Sec. Admin., Comm’r, 808
F.3d 818, 823 (11th Cir. 2015) (“The ALJ found [the treating physician’s] opinion
inconsistent with the medical records and other evidence, and gave it less weight
on that basis. Because the ALJ’s rationale was adequate, we will not disturb the
credibility determination.”); Crawford, 363 F.3d at 1159-61 (finding that
substantial evidence supported the ALJ’s decision to discredit the opinions of the
claimant’s treating physicians where those physicians’ opinions regarding the
claimant’s disability were inconsistent with the physicians’ treatment notes and
unsupported by the medical evidence); Roth v. Astrue, 249 Fed. Appx. 167, 168
(11th Cir. 2007) (finding that substantial evidence supported the ALJ’s
determination that the treating physician’s opinion “should not be assigned
substantial weight because it was inconsistent with the record as a whole and not
supported by the doctor’s own medical records.”).
Based on the applicable legal standard, the Court must accept the weight that
the ALJ assigned to Dr. Sammons’s assessments, even though, as Mr. Rogers
points out (see Doc. 11, pp. 14-16), there is evidence in the record that supports
those assessments. See Lawton v. Comm’r of Soc. Sec., 431 Fed. Appx. 830, 833
(11th Cir. 2011) (“While the record does contain some evidence that is contrary to
the ALJ’s determination, we are not permitted to reweigh the importance attributed
to the medical evidence.”).
The Court is not persuaded by Ms. Rogers’s contention that the ALJ should
have acknowledged Dr. Sammons’s orthopedic specialty and treating relationship
with Ms. Rogers. (Doc. 11, pp. 10-11). The ALJ stated that Dr. Sammons was
Ms. Rogers’s “orthopedic specialist,” and although the ALJ did not explicitly state
that Dr. Sammons was a treating physician, the ALJ’s thorough review of Dr.
Sammons’s treatment notes demonstrates that the ALJ considered Dr. Sammons a
(See Doc. 9-3, pp. 19-21).
In fact, the ALJ stated that in
examining the opinion evidence, she “must consider the examining relationship,
treating relationship, supportability, consistency, specialization, and other factors
that tend to support or contradict opinion evidence.” (Doc. 9-3, p. 21). Although
an ALJ must consider opinions consistent with the factors listed in 20 C.F.R §
404.1527(c), an ALJ “is not required to explicitly address each of those factors.”
Lawton, 431 Fed. Appx. at 833. Instead, an ALJ “must provide ‘good cause’ for
rejecting a treating physician’s medical opinions.” Lawton, 431 Fed. Appx. at 833.
As explained above, the ALJ provided good cause for giving little weight to Dr.
The Court also is not persuaded by Ms. Rogers’s argument that the ALJ
substituted her “lay opinion” for that of a medical provider. (Doc. 11, pp. 11-12).
Ms. Rogers contends that if the ALJ had a reasonable basis to question Dr.
Sammons’s opinions, then the ALJ should have arranged for a consultative
examination, asked a non-examining consultant to review the file, solicited
testimony from a medical expert, or re-contacted Dr. Sammons. (Doc. 11, p. 13).
The Court disagrees.
“[T]he task of determining a claimant’s residual functional capacity and
ability to work is within the province of the ALJ, not of doctors.” Robinson v.
Astrue, 365 Fed. Appx. 993, 999 (11th Cir. 2010). The ALJ makes an RFC
determination “based on all relevant medical and other evidence of a claimant’s
remaining ability to work despite h[er] impairment.” Castle v. Colvin, 557 Fed.
Appx. 849, 852 (11th Cir. 2014) (citing Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)); see also Green v. Soc. Sec. Admin., 223 Fed. Appx. 915, 923
(11th Cir. 2007) (“Although a claimant may provide a statement containing a
physician’s opinion of her remaining capabilities, the ALJ will evaluate such a
statement in light of the other evidence presented. . . .”).
Ms. Rogers does not cite, and the Court has not located, binding authority
requiring an ALJ to obtain additional opinion evidence or re-contact a treating
source when the ALJ discredits a treating physician’s opinion. As explained
above, the ALJ articulated good cause for rejecting Dr. Sammons’s opinion, and
substantial evidence in the record supports the ALJ’s RFC determination. In
Green v. Social Security Administration, in an unpublished opinion, the Eleventh
Circuit examined a similar factual scenario. 223 Fed. Appx. 915 (11th Cir. 2007).
The claimant in Green argued that after the ALJ “decided to discredit [the treating
physician’s] evaluation, the record lacked substantial evidence to support” the
ALJ’s RFC determination. Green, 223 Fed. Appx. at 923. It was true that the
treating physician’s opinion and the claimant’s testimony contradicted the ALJ’s
RFC evaluation. Green, 223 Fed. Appx. at 923. But the ALJ’s decision to
discredit the treating physician’s opinion did not deprive the ALJ of a basis for
assessing the applicant’s RFC:
Once the ALJ determined that no weight could be placed on Dr.
Bryant’s opinion of  Green’s limitations, the only documentary
evidence that remained was the office visit records from Dr. Bryant
and Dr. Ross that indicated that she was managing her respiration
problems well, that she had controlled her hypertension, and that her
pain could be treated with over-the-counter medication. Thus,
substantial evidence supports the ALJ’s determination that Green
could perform light work. The ALJ did not substitute his judgment
for that of Dr. Bryant; rather, he determined that Dr. Bryant’s opinion
was inconsistent with objective medical evidence in the record.
Green, 223 Fed. Appx. at 923-24. The same rationale applies here, and the Court
finds that substantial evidence supports the ALJ’s RFC.
The ALJ properly evaluated Ms. Rogers’s subjective complaints
“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.’”
Zuba-Ingram v. Commissioner of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir.
(2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam)). A claimant’s testimony coupled with evidence that meets this standard
“is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (citation omitted). If the ALJ discredits a claimant’s
subjective testimony, then the ALJ “must articulate explicit and adequate reasons
for doing so.” Wilson, 284 F.3d at 1225; see SSR 96-7P, 1996 WL 374186 at *2
(“The determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently
specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and the reasons for that
In this case, the ALJ found that Ms. Rogers’s medically determinable
impairments reasonably could cause some of her alleged symptoms, but the ALJ
determined that Ms. Rogers’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible.” (Doc. 9-3, p. 19).3
On March 28, 2016, SSR 16-3p superseded SSR 96-7p, the previous ruling concerning
subjective complaints about pain. 2016 WL 1237954 at *1. SSR 16-3p “provides guidance
about how [the Social Security Administration] evaluate[s] statements regarding the intensity,
persistence, and limiting effects of symptoms in disability claims.” SSR 16-3p, 2016 WL
1119029 at *1. SSR-16-3p eliminates the term “credibility” from Social Security Administration
policy and stresses that when evaluating a claimant’s symptoms, an ALJ must “not assess an
individual’s overall character or truthfulness” but instead must “focus on whether the evidence
establishes a medically determinable impairment that could reasonably be expected to produce
the individual’s symptoms.” SSR 16-3p, 2016 WL 1119029 at *1, *10. Ms. Rogers has not
argued that SSR 16-3p applies to her case, and the Eleventh Circuit has held that SSR 16-3p does
not apply retroactively to administrative decisions issued before March 28, 2016. See Hargress
v. Soc. Sec. Admin., Comm’r, --- F.3d ----, 2018 WL 1061567, *5 (11th Cir. Feb. 27, 2018).
Thus, the Court finds that SSR 16-3p does not apply to the ALJ’s March 26, 2015 decision.
The ALJ articulated several specific reasons for rejecting Ms. Rogers’s
subjective pain testimony. (Doc. 9-3, pp. 19-22). First, the ALJ found that “the
objective record does not support” Ms. Rogers’s allegations. (Doc. 9-3, p. 19).
For example, the ALJ explained that although Ms. Rogers alleged disability
beginning in November 2011, Ms. Rogers did not seek treatment from Dr.
Sammons, her orthopedic specialist, until July 2013, approximately 20 months
after the alleged onset date. (Doc. 9-3, p. 19). The ALJ noted that Ms. Rogers
generally managed her back pain with injection therapy. (Doc. 9-3, p. 19; see Doc.
9-9, pp. 52, 54).
After reporting that “she [was] much better” following a
December 2013 injection, Dr. Sammons instructed Ms. Rogers to contact him if
her symptoms changed or worsened. (Doc. 9-3, p. 19; see Doc. 9-9, p. 52). Ms.
Rogers did not seek follow-up treatment from Dr. Sammons until seven months
later, in August 2014. (Doc. 9-3, p. 19; see Doc. 9-9, pp. 51-52). In addition,
treatment notes from Ms. Rogers’s primary care physician, Dr. Lockhard, contain
no significant findings regarding her musculoskeletal system, and during visits
with Dr. Lockhard, Ms. Rogers denied joint and muscle pain. (Doc. 9-3, p. 20; see
Doc. 9-9, pp. 37-38, 63-64, 66-67).
Because SSR 16-3p does not apply retroactively (see note 4, above), the ALJ’s use of the term
credible is not error.
The ALJ noted that during an in-person interview, a Social Security
Administration employee observed that Ms. Rogers had no difficulty standing,
sitting, or walking. (Doc. 9-3, p. 22; see Doc. 9-7, pp. 2-4). The ALJ found “the
lack of observable difficulties is inconsistent with [Ms. Rogers’s] disabling
allegations.” (Doc. 9-3, p. 22).
Ms. Rogers does not challenge the reasons that the ALJ provided for
rejecting her subjective complaints of pain, and the Court finds that substantial
evidence supports the ALJ’s assessment. See Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (“The ALJ discredited [the claimant’s] testimony by
explaining that [the claimant’s] pain had not require[d] routine or consistent
treatment, and he often went for months or years between complaining of this pain
to his physicians.”); Cyburn v. Comm’r of Soc. Sec., 555 Fed. Appx. 892, 894
(11th Cir. 2014) (substantial evidence supported the ALJ’s credibility
determination because the ALJ “specifically and adequately articulated his reasons
for the adverse credibility determination” by pointing to inconsistencies between
the claimant’s testimony and the evidence of the record) (per curiam). Instead, Ms.
Rogers argues that it was reversible error for the ALJ to fail to consider her strong
work history when assessing her subjective pain testimony. (Doc. 11, pp. 16-20).
Ms. Rogers cites no binding authority to support her position, and the Court is not
persuaded by her argument.
In assessing a claimant’s subjective complaints of pain, the regulations
require an ALJ to “consider all of the evidence presented, including information
about your prior work record, your statements about your symptoms, evidence
submitted by medical sources, and observations by our employees and other
persons.” 20 C.F.R. § 404.1529(c); see SSR 96-7p, 1996 WL 374186, at *5 (An
ALJ should assess a claimant’s subjective pain testimony based on a variety of
factors including “[s]tatements and reports from the individual and from treating or
examining physicians or psychologists and other persons about the individual’s
medical history, treatment and response, prior work record and efforts to work,
daily activities, and other information concerning the individual’s symptoms and
how the symptoms affect the individual’s ability to work.”).
Here, the ALJ did not specifically examine Ms. Rogers’s strong work history
in her evaluation of Ms. Rogers’s subjective pain testimony; however, the ALJ
unequivocally stated that in making her findings regarding Ms. Rogers’s subjective
complaints of pain, “the undersigned has considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based upon the requirements of 20 CFR
404.1529 and SSRs 96-4p and 96-7p.” (Doc. 9-3, pp. 17-18). The ALJ also
explained that when a claimant’s statements about her pain “are not substantiated
by objective medical evidence, the undersigned must make a finding on the
credibility of the statements based on a consideration of the entire case record.”
(Doc. 9-3, p. 18). The ALJ stated that she reviewed Ms. Rogers’s “allegations and
testimony, forms completed at the request of Social Security, . . . and other relevant
evidence” in finding that Ms. Rogers is capable of performing light work. (Doc. 93, p. 22). These statements from the ALJ suggest that the ALJ considered Ms.
Rogers’s hearing testimony regarding her work history, including the length of her
employment and Ms. Rogers’s reason for leaving her job. (Doc. 9-3, pp. 35-36).
The ALJ’s statements also indicate that the ALJ considered Ms. Rogers’s function
report in which she stated that “I have always worked even when I was dealing
[with] pain. . . . I [was] never laid [off] of work. I went beyond what was expected
of me.” (Doc. 9-7, p. 33).
Ms. Rogers’s contention that “fundamental fairness” required the ALJ to
explicitly consider Ms. Rogers’s work history in an assessment of her subjective
pain testimony (Doc. 11, pp. 19-20) does not find support in precedent that is
binding on this Court. See Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)
(per curiam) (“[A]n adequate credibility finding need not cite particular phrases or
formulations.”) (internal quotation marks and citation omitted); see also Dyer, 395
F.3d at 1211 (“[T]here is no rigid requirement that the ALJ specifically refer to
every piece of evidence in his decision.”) (per curiam); Castel v. Comm’r of Soc.
Sec., 355 Fed. Appx. 260, 265 (11th Cir. 2009) (“ALJ is not required to explicitly
conduct credibility analysis, but the reasons for finding a lack of credibility must
be clear enough that they are obvious to a reviewing court.”) (citing Foote, 57 F.3d
Also contrary to Ms. Rogers’s position, the Court has not located authority
for the proposition that a claimant’s strong work history precludes a negative
credibility determination. The Eleventh Circuit Court of Appeals’s decision in
Edwards v. Sullivan, 937 F.3d 580 (11th Cir. 1991) suggests that the opposite is
true. The claimant in Edwards argued that “the ALJ should have accepted her
testimony about her pain because she had a good work history.” Edwards, 937
F.3d at 584. The Eleventh Circuit rejected the claimant’s argument because the
Court found that substantial evidence supported the ALJ’s conclusion that the
claimant had not met “either of the two conditions that would satisfy the second
part of the [Eleventh Circuit pain standard] test.” Edwards, 937 F.3d at 584.
Therefore, the Eleventh Circuit concluded that the ALJ was “not required to grant
[the claimant] benefits based on her complaints of pain.” Edwards, 937 F.3d at
Substantial evidence supports the ALJ’s conclusion regarding Ms. Rogers’s
subjective complaints of pain, and the ALJ did not commit reversible error by
failing to specifically consider Ms. Rogers’s strong work history as part of her
For the reasons discussed above, the Court finds that substantial evidence
supports the ALJ’s decision, and the ALJ applied proper legal standards. The
Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner. Accordingly, the Court affirms the Commissioner’s decision. The
Court will enter a separate final judgment consistent with this memorandum
DONE and ORDERED this March 8, 2018.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?