Fisher v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 8/8/14. (ASL)

FILED
2014 Aug-08 PM 03:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
KAREN DENISE FISHER
Plaintiff,
vs.
CAROLYN W. COLVIN
Acting Commissioner of the
Social Security Administration,1
Defendant.

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Civil Action No.
6:12-CV-03943-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3), claimant Karen Denise
Fisher seeks judicial review of a final adverse decision of the Commissioner of
Social Security. 2 Ms. Fisher seeks disability insurance benefits and supplemental
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Therefore, she should be substituted for Commissioner Michael J. Astrue as Defendant in this
suit. 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 affecting the parties’
substantial rights must be disregarded.”).
2

42 U.S.C. § 405(g) provides, in pertinent part:

Any individual, after any final decision of the Commissioner of Social Security made after a
hearing to which he was a party, irrespective of the amount in controversy, may obtain a review
of such decision by a civil action commenced within sixty days after the mailing to him of notice
of such decision or within such further time as the Commissioner of Social Security may allow.
Such action shall be brought in the district court of the United States for the judicial district in
which the plaintiff resides, or has his principal place of business, or, if he does not reside or have
his principal place of business within any such judicial district, in the United States District
Court for the District of Columbia.

security income benefits.

(Doc. 1).

Initially, an Administrative Law Judge

(“ALJ”) denied Ms. Fisher’s petition for benefits. The Commissioner agreed with
the ALJ’s opinion.

For the reasons stated below, the Court affirms the

Commissioner’s decision.
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. Soc. Sec. Admin. Comm’r, 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 findings. “Substantial evidence” is defined as “more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
In making this evaluation, the Court may not “reweigh the evidence or
decide the facts anew,” and the Court must “defer to the ALJ’s decision if it is
supported by substantial evidence even if the evidence may preponderate against

2

it.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013)
(citing Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
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 analysis 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).
PROCEDURAL AND FACTUAL BACKGROUND:
On August 20, 2009, Ms. Fisher applied for a period of disability and
disability insurance benefits. (Doc. 7-3, p. 30; Doc. 7-6, pp. 2, 4; Doc. 7-7, p. 2).
The Social Security Administration denied Ms. Fisher’s application on January 11,
2010. (Doc. 7-3, p. 30). At Ms. Fisher’s request, on May 17, 2011, an ALJ
conducted a video hearing concerning Ms. Fisher’s application. (Doc. 7-3, p. 30).
Ms. Fisher and an impartial vocational expert testified at the hearing. (Doc. 7-3, p.
30). At the time of her hearing, Ms. Fisher was 54 years old. 3 Ms. Fisher has a
high school education plus one year of college. (Doc. 7-3, p. 50). Her past

3

Because she is over 50 years of age, 20 C.F.R. §§404.1563(d) and 416.963(d) designate Ms.
Fisher as a “person closely approaching advanced age.” (Doc. 7-3, p. 50).
3

relevant work experience is as an office clerk, a deli worker, and a stocker. (Doc.
7-3, pp. 62-63).
On July 14, 2011, the ALJ denied Ms. Fisher’s request for disability
benefits, concluding that Ms. Fisher did not have an impairment or a combination
of impairments listed in, or medically equal to one listed in, the regulations. (Doc.
7-3, p. 33).

In his twelve page decision, the ALJ described the “five-step

sequential evaluation process for determining whether an individual is disabled”
and explained that “[i]f it is determined that the claimant is or is not disabled at a
step of the evaluation process, the evaluation will not go on to the next step.”
(Doc. 7-3, p. 31).
The ALJ found that Ms. Fisher had not “engaged in substantial gainful
activity since November 15, 2007, the alleged onset date.” (Doc. 7-3, p. 32). In
addition, the ALJ concluded that Ms. Fisher had “the following severe
impairments: hypertension, fibromyalgia, myofascial pain and lumbar and cervical
spine degenerative disk disease (DDD).” (Doc. 7-3, p. 32).4 The judge stated,
“these impairments result in limitations that significantly affect the claimant’s

4

The Court reviewed not only the ALJ’s decision, but also Ms. Fisher’s medical records. The
Court found that the ALJ’s description of Ms. Fisher’s medical evaluations is accurate. In a
number of instances in this opinion, the Court has provided citations not only to the ALJ’s
decision but also to the underlying records to illustrate that there is no discrepancy between the
two.
4

ability to perform basic work activities.” (Doc. 7-3, p. 32).5 Still, the ALJ opined
that “[t]here are insufficient findings on examination or diagnostic work-up to
confirm the presence of an impairment or combination of impairments that meet or
equal in severity the criteria of a listed impairment.” (Doc. 7-3, pp. 33-34). Based
on these factual findings, the ALJ concluded as follows:
Ms. Fisher has the residual functional capacity to perform
light work as defined on 20 CFR 404.1567(b) and
416.967(b) except [that] she can carry 10 pounds. She
can sit [for] 30 minutes, stand [for] 30 minutes and walk
[for] 30 minutes each at a time. She can sit [for] six
hours, stand [for] two hours and walk [for] two hours
total during an eight-hour workday. [Ms. Fisher] can
frequently reach, handle, finger, feel, reach overhead, and
push and pull bilaterally. She can frequently use her feet
to operate controls. She can occasionally balance, stoop,
kneel, crouch, crawl, and climb ramps and stairs. She
cannot climb ladders, ropes or scaffolds.
(Doc. 7-3, p. 34).
In reaching his conclusion, the ALJ considered a report from Dr. Dallas M.
Russell, a neurologist who examined Ms. Fisher at the state’s request. Dr. Russell
opined:
[Ms. Fisher] could lift up to 10 pounds frequently, 20
pounds occasionally, and never more weight than that.
She could sit [for] 30 minutes, stand [for] 30 minutes,
and walk [for] 30 [minutes] at a time. She could sit [for]
six hours, stand two hours and walk two hours total in an
5

In contrast, the ALJ found that Ms. Fisher’s mental impairments of anxiety and depression
were non-severe. (Doc. 7-3, p. 32).
5

eight-hour workday. She did not require a cane to
ambulate. [Ms. Fisher] could frequently reach, handle,
finger, feel, reach overhead, and push and pull bilaterally.
She could frequently use her feet to operate controls. She
could occasionally climb stairs, ladders and scaffolds, but
she could not stoop, kneel, crouch or crawl. She could
frequently work at unprotected heights, and continuously
around moving mechanical parts. She could occasionally
operate a motor vehicle, work in humidity and wetness,
dust, odors, and fumes, but never in extreme
temperatures or vibrations…could perform activities like
shopping, travel without a companion, ambulate without
an assistive device, walk at a reasonable pace on uneven
surfaces, use standard public transportation, climb a few
steps at a reasonable pace, prepare a simple meal, care
for her personal hygiene, and sort, handle and use
paper/files ([Doc. 7-9, pp. 115-127]).
(Doc. 7-3, p. 39).
The ALJ also took into account the results of a psychological evaluation that
consultative examiner Dr. Jerry Gragg performed. He reported that Ms. Fisher’s
intellectual functioning skills, capacity to understand, remember, carry out and
follow instructions were adequate, even though she exhibited mild chronic
depression. (Doc. 7-3, p. 40; Doc. 7-9, p. 38). He also opined that Ms. Fisher
would be able to effectively handle work-related stress. (Doc. 7-9, p. 38; Doc. 7-9,
p. 38).

“In sum, [Dr. Gragg concluded that] there do not seem to be any

intellectual or psychological features that would interfere with [Ms. Fisher’s]
ability to function in a work environment.” (Doc. 7-3, p. 38; Doc. 7-9, p. 38).

6

The ALJ reviewed the medical findings of Dr. Xiaohua Zhou. (Doc. 7-3, p.
36). Dr. Zhou reported that Ms. Fisher’s physical exam was normal except for
tight hamstring muscles and tenderness over the lumbar paraspinal muscles and at
T11-T12. (Doc. 7-3, p. 36; Doc. 7-8, p. 72). The results of a lumbar spine MRI
showed “no significant loss of disk height or desiccation[, but only] . . . mild facet
arthropathy involving L4-L5 and moderate arthropathy at L5-S1 bilaterally.”
(Doc. 7-3, p. 36; Doc. 7-8, p. 71). Dr. Zhou found no degenerative disc disease
and stated that Ms. Fisher’s MRI “did not show any significant defects that would
require surgery.” (Doc. 7-3, p. 36; Doc. 7-8, p. 71).
The ALJ also considered the medical findings of Dr. Peter Nagi. (Doc. 7-3,
p. 36). Dr. Nagi gave Ms. Fisher an epidural steroid injection which reportedly
helped Ms. Fisher. (Doc. 7-3, p. 36; Doc. 7-9, p. 85). Ms. Fisher claimed that she
stopped seeing Dr. Nagi because she had no money to pay for his treatments, but
the University of Alabama at Birmingham (“UAB”), where Dr. Nagi was
employed, agreed to cover Ms. Fisher’s treatments under UAB’s indigent
treatment care program. (Doc. 7-3, p. 36; see Doc. 7-8, p. 82). Dr. Nagi’s only
positive medical finding was that Ms. Fisher had mild paraspinous muscle
tenderness over her thoracic and lumbar regions. (Doc. 7-3, p. 36; Doc. 7-8, p. 83).
The ALJ noted the treatment records of consultative examiner Dr. Jane
Teschner. (Doc. 7-9, pp. 25-34). The ALJ reviewed Dr. Teschner’s medical
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records and found that Ms. Fisher “had full range of motion in all joints except in
the neck and right shoulder.” (Doc. 7-3, p. 38; Doc. 7-9, pp. 31-32). Her medical
results also showed a normal straight-leg raising test, gait, station, motor strength
and dexterity. (Doc. 7-3, p. 38; Doc. 7-9, pp. 31-32). Despite the medical findings
of Dr. Teschner, the ALJ afforded her opinion “basically no weight” based on
“some problems” Dr. Teschner had been having and the fact that she was “under
review by the Alabama Medical Certification Board.” (Doc. 7-3, p. 83).
The ALJ considered Dr. Christopher Hill’s medical examination at Pain and
Rehabilitation Institute that found Ms. Fisher “essentially normal.” (Doc. 7-3, p.
38; see Doc. 7-10, p. 4). The ALJ also noted Dr. Hill’s diagnosis of chronic neck
and low back pain and generalized pain secondary to fibromyalgia. (Doc. 7-3, p.
38; Doc. 7-10, p. 4). The ALJ stated that “the examiner did not note specific
findings consistent with a diagnosis of fibromyalgia.” (Doc. 7-3, p. 38).
The ALJ also acknowledged the medical opinion of Dr. Don Cornelius,
another physician at Pain and Rehabilitation Institute. (Doc. 7-3, pp. 35, 39). Dr.
Cornelius treated Ms. Fisher for low back pain and prescribed Soma and Lortab.
(Doc. 7-3, pp. 35, 39; Doc. 7-8, p. 60).
Ultimately, the ALJ found that Ms. Fisher “is capable of performing past
relevant work as an office clerk. This work does not require the performance of
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work-related activities precluded by [Ms. Fisher’s] residual functional capacity.”
(Doc. 7-3, p. 41). The ALJ reasoned that:
The vocational expert testified that [Ms. Fisher’s] past
relevant work as a data entry clerk, as described in the
Dictionary of Occupational Titles (DOT), job #203.582054, is sedentary in exertional demands and it is semiskilled in nature with an SVP of 4. Her work as a
housekeeper/cleaner, DOT job #323.687-014, is light and
unskilled with an SVP of 2. She further testified [that
Ms. Fisher’s] description of her job duties are consistent
with their descriptions in the DOT.
In comparing [Ms. Fisher’s] residual functional capacity
with the physical and mental demands of this work, the
undersigned finds that [Ms. Fisher] is able to perform it
as actually and generally performed.
(Doc. 7-3, p. 41). Consequently, the ALJ decided that Ms. Fisher “is not disabled
under sections 216(i) and 223(d) of the Social Security Act.” (Doc. 7-3, p. 41).
The ALJ found that Ms. Fisher retained the residual functional capacity to perform
work-related activities at the light level of physical exertion and that there would
be jobs in the national economy that would accommodate Ms. Fisher’s limitations,
including her past relevant work. (Doc. 7-3, p. 41).
On September 24, 2012, this became the final decision of the Commissioner
of the Social Security Administration when the Appeals Council refused to review
the ALJ’s decision.

(Doc. 7-3, p. 2).

Having exhausted all administrative

remedies, Ms. Fisher filed this action for judicial review pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3).
9

ANALYSIS:
To be eligible for disability insurance benefits, a claimant must be disabled.
Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013). “A
claimant is disabled if he is unable to engage in substantial gainful activity by
reason of a medically-determinable impairment that can be expected to result in
death or which has lasted or can be expected to last for a continuous period of at
least 12 months.” Id. (citing 42 U.S.C. § 423(d)(1)(A)). A claimant must prove
that she is disabled. Id. (citing Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003). “To determine whether a claimant is disabled, the Social Security
Administration applies a five-step sequential analysis.” Id.
This process includes a determination of whether the
claimant (1) is unable to engage in substantial gainful
activity; (2) has a severe and medically-determinable
physical or mental impairment; (3) has such an
impairment that meets or equals a Listing and meets the
duration requirements; (4) can perform his past relevant
work, in the light of his residual functional capacity; and
(5) can make an adjustment to other work, in the light of
his residual functional capacity, age, education, and work
experience.
Id. (citation omitted).

“The claimant’s residual functional capacity is an

assessment, based upon all relevant evidence, of the claimant’s ability to do work
despite his impairments.” Id. (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997); 20 C.F.R. § 404.1545(a)(1)).

10

Here, in assessing whether Ms. Fisher is disabled, the ALJ found that Ms.
Fisher’s hypertension, fibromyalgia, myofascial pain and lumbar and cervical spine
degenerative disc disease constitute severe physical impairments that “significantly
affect [Ms. Fisher’s] ability to perform basic work activities.” (Doc. 7-3, p. 32).
Nevertheless, the ALJ concluded that Ms. Fisher is not disabled because she is able
to perform her past relevant work as an office clerk despite her impairments. (Doc.
7-3, p. 41). The ALJ based his decision on substantial evidence.
The ALJ found that the various inconsistencies in Ms. Fisher’s testimony
casted doubt on her credibility, making her statements less than convincing. This
led the ALJ to reject Ms. Fisher’s subjective complaints of pain. Further, medical
evidence indicates that Ms. Fisher was able to continue working. Specifically, Dr.
Gragg’s opined that “there do not seem to be any intellectual or psychological
features that would interfere with her ability to function in a work environment.”
Dr. Russell found that Ms. Fisher could lift up to 10 pounds frequently and 20
pounds occasionally; carry up to 10 pounds occasionally; sit, stand and walk for 30
minutes at a time without interruption; sit for 6 hours, stand for 2 hours, and walk
for 2 hours total in an 8-hour workday; does not require a cane to walk; can reach,
handle, finger and feel frequently, reach overhead and push and pull occasionally;
can use both feet to operate foot controls frequently; can balance and climb stairs,
ramps, ladders and scaffolds occasionally; can frequently work at unprotected
11

heights, continuously work with moving mechanical parts, and occasionally
operate a motor vehicle, work in humidity and wetness, and among dust, odors,
fumes and pulmonary irritants; can work around moderate office noise; can shop,
travel without an assistive companion, walk without assistive devices, use standard
public transportation, climb a few steps at a reasonable pace with a handrail,
prepare simple meals and feed herself, care for her personal hygiene, and sort,
handle and use paper/files.

(Doc. 7-9. pp. 115-121).

The ALJ also gave

considerable attention to Ms. Fisher’s activities of daily living. (Doc. 7-3, p. 40).
Ms. Fisher argues that despite this substantial evidence, she is entitled to
relief from the ALJ’s decision because the ALJ failed to properly categorize Ms.
Fisher’s past relevant work and therefore failed to properly apply the grid rules.
(Doc. 9, p. 6). The Court finds that this contention is without merit.
“Past relevant work” is defined by the regulations as “work that you have
done within the past 15 years, that was substantial gainful activity, and that lasted
long enough for you to learn to do it. (See § 404.1565(a).)”

20 C.F.R. §

404.1560(b)(1). Earnings from work activity as an employee will generally be
considered substantial gainful activity if, from work occurring between January
1990 and June 1999, monthly earnings averaged more than $500. 20 C.F.R. §
404.1574(b)(2)(i)(Table 1). The record shows that Ms. Fisher worked as an office
clerk for a trucking company during 1998. She worked 9 hours a day, 5 days
12

week, for $7.00 per hour. (Doc. 7-6, p. 15; Doc. 7-7. P. 26). Therefore, Ms. Fisher
earned approximately $1,500 per month, an amount that far surpasses the $500
mark required to constitute substantial gainful activity under the regulations. The
work also occurred within the 15 years prior to Ms. Fisher’s application for
disability 6 and lasted for “maybe a year.” (Doc. 7-3, p. 62). Consequently, the
ALJ properly characterized Ms. Fisher’s work as an office clerk at the trucking
company as past relevant work.
Ms. Fisher also argues that the ALJ should have found that her depression is
severe. Ms. Fisher cites Eleventh Circuit case-law that states:
Step two is a threshold inquiry. It allows only claims
based on the most trivial impairments to be rejected. The
claimant’s burden at step two is mild. An impairment is
not severe only if the abnormality is so slight and its
effect so minimal that it would clearly not be expected to
interfere with the individual’s ability to work,
irrespective of age, education or work experience.
Claimant need show only that her impairment is not so
slight and its effect is not so minimal.
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). The Eleventh Circuit
also has held that an impairment is non-severe if it does not “significantly limit[]
your physical or mental ability to do basic work activities.” McCruter v. Bowen,

6

Ms. Fisher’s disability application is dated August 20, 2009. (Doc. 7-3, p. 30; Doc. 7-6, pp. 2,
4; Doc. 7-7, p. 2).
13

791 F.2d 1544, 1546 (11th Cir. 1986); 20 C.F.R. §§ 404.1520(c), 416.920(c). The
regulations describe “basic work activities” as follows:
[A]bilities and aptitudes necessary to do most
jobs…[and] include…physical functions such as
walking, sitting, lifting, pushing, pulling, reaching,
carrying or handling; seeing, hearing, and speaking;
understanding, carrying out, and remembering simple
instructions; use of judgment; responding appropriately
to supervision, coworkers and usual work situations;
dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b).
Here, Ms. Fisher claims that her symptoms constitute a severe impairment.
For support, she argues that “Dr. Gragg diagnosed [her] with major depressive
disorder, chronic, noting ‘…there are indications of rather chronic depression.’”
(Doc. 9, p. 9).

Ms. Fisher’s characterization of Dr. Gragg’s evaluation is

inaccurate. Where Ms. Fisher recounts Dr. Gragg’s diagnosis of “major depressive
disorder, chronic,” a closer look at Dr. Gragg’s statement shows that he diagnosed
“rather chronic (albeit mild) depression.” (Doc. 7-9, p. 38). Additionally, Dr.
Gragg noted that “there do not seem to be any intellectual or psychological features
that would interfere with [Ms. Fisher’s] ability to function in a work environment.”
(Doc. 7-3, p. 38). To support his conclusion, Dr. Gragg highlighted an array of
circumstances that show that Ms. Fisher’s depression is not a severe impairment.
Dr. Gragg noted that Ms. Fisher would be able to respond appropriately to

14

supervision, has adequate social skills to relate to others, and is able to understand,
remember, and carry out instructions. (Doc. 7-9, p. 38). He also opined that Ms.
Fisher would be able to handle work-related stress effectively. (Doc. 7-9, p. 38).
This information supports the ALJ’s decision. Consequently, the ALJ did not err
in determining that Ms. Fisher’s depression was not a severe impairment.

Ms. Fisher’s last argument is that the ALJ failed to properly consider her
complaints of pain. Ms. Fisher cites an Eleventh Circuit standard for assessing
complaints of pain. The Commissioner also cites that standard and states that
when subjective complaints of pain serve as the basis for a claim for disability, the
standard requires “evidence of an underlying medical condition and either (1)
objective medical evidence confirming the severity of the alleged pain arising from
that condition or (2) that the objectively determined medical condition is of such a
severity that it can reasonably be expected to give rise to the alleged pain.” Foote
v. Chater, 67 F.3d 1553 (11th Cir. 1995); Holt v. Sullivan, 921 F.2d. 1221, 1223
(11th Cir. 1991); Landry v. Heckler, 782 F.2d. 1551, 1553 (11th Cir. 1986). Even
when objective medical evidence is found to reasonably support a claimant’s
subjective complaints of pain, the regulations require that the symptoms must be
evaluated to determine the extent to which the pain limits their capacity to work.
20 C.F.R. § 416.929(c). The factors used to make that determination include

15

medical opinions of both treating and non-treating sources, as well as the
claimant’s testimony. 20 C.F.R. § 416.929(c).
Here, Ms. Fisher has repeatedly stated that she is experiencing pain.
However, for Ms. Fisher’s subjective complaints of pain to constitute a valid
reason for finding her disabled, those complaints must be reliable, bolstered by
objective medical evidence. If the “ALJ discredits subjective testimony, he must
articulate explicit and adequate reasons for doing so.” Wilson v. Barnhart, 284
F.3d 1219, 1225 (11th Cir. 2002) (citing Hale v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)).

Here, the ALJ discredited Ms. Fisher’s testimony about her pain, finding it
to be less than fully credible. The ALJ stated that Ms. Fisher’s complaints of pain
and her functional limitations were “inconsistent with the objective, clinical
findings.” Ms. Fisher told Drs. Nagi and Zhou that her injections for pain gave her
relief for up to three months, while she told Drs. Cornelius and Hill that they gave
little to no pain relief. (Doc. 7-3, p. 39). At the hearing, Ms. Fisher testified that
these injections relieved her pain for about 30 days at a time, while Dr. Nagi was
told that they relieved her pain for at least 60 days at a time. (Doc. 7-3, pp. 39, 79;
Doc. 7-8, pp. 86, 89, 92, 95, 98; Doc. 7-9, p. 88). There were also inconsistencies
regarding the amount of sleep Ms. Fisher was getting at night. (Doc. 7-3, p. 39).
16

The ALJ also noted that there is no evidence of record indicating that Ms. Fisher’s
pain was so extreme as to prevent her from getting out of bed two to three days per
week. (Doc. 7-3, p. 39). In another instance, Ms. Fisher stated that her doctors
refused to perform surgery on her due to the high level of risk involved; however,
Ms. Fisher’s medical records reflect that her doctor explained that she had “no
defect in her back that required surgery.” (Doc. 7-3, p. 39).

Concerning fibromyalgia, the ALJ pointed out that “no treating or consulting
examiner stated [that Ms. Fisher’s] exams revealed [] objective, clinical findings of
fibromyalgia, and no doctor referred her for a rheumatological exam for evaluation
of fibromyalgia.” (Doc. 7-3, pp. 39-40). Despite this evidence, the ALJ gave Ms.
Fisher the benefit of the doubt and assumed that she had been accurately diagnosed
with a severe impairment of fibromyalgia. Nevertheless, the ALJ determined that
“the evidence of record does not reflect [that Ms. Fisher] has disabling pain or
functional limitations due to that condition.”

(Doc. 7-3, p. 40).

The ALJ

described Ms. Fisher’s MRI that showed objective, clinical evidence of cervical
and lumbar spinal degenerative disc disease, but also noted that no treating or
consulting examiner found the impairment to result in disabling pain or functional
limitations. (Doc. 7-3, p. 40). The ALJ also mentioned that Ms. Fisher received
“good pain relief” from medications for her radiculopathy and myofascial pain.
(Doc. 7-3, p. 40).
17

Lastly, the ALJ indicated that Ms. Fisher did not comply with her doctorordered exercise regimen, which Ms. Fisher even stated helped her pain. (Doc. 73, p. 40; Doc. 7-8, p. 71). Based on Eleventh Circuit case law in Ellison v.
Barnhart, non-compliance with a prescribed exercise regimen can discredit a
plaintiff’s testimony where it is medically documented that the regimen would
reduce the cause of disability. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir.
2003). Because Ms. Fisher’s own testimony indicates that her lack of compliance
with her exercise regimen is causing her increased pain, the ALJ was justified in
doubting the credibility of her testimony of the severity of her condition.

In sum, it was reasonable for the ALJ to afford Ms. Fisher’s subjective
complaints of pain less than total credibility. Based on Ms. Fisher’s unreliable
testimony and with the various inconsistencies noted above, this Court finds that
the ALJ properly considered Ms. Fisher’s complaints of pain.

Having examined the available evidence thoroughly, the ALJ determined
that Ms. Fisher is not disabled. That finding rests on substantial evidence. The
Court will not reweigh the evidence or substitute its judgment for that of the
Commissioner.

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CONCLUSION:
Consistent with the foregoing, the Court concludes the ALJ’s decision was
based upon substantial evidence and consistent with applicable legal standards.
Accordingly, the decision of the Commissioner is AFFIRMED.
DONE and ORDERED this 8th day of August, 2014.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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