Sekel v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 10/9/2014. (KAM, )

FILED
2014 Oct-09 PM 02:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
LISA MARIE SEKEL,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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6:13-CV-01885-LSC

MEMORANDUM OF OPINION

I.

Introduction
The plaintiff, Lisa Marie Sekel, 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”).
Ms. Sekel timely pursued and exhausted her administrative remedies and the decision
of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Ms. Sekel was forty-eight years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a tenth grade education. (Tr. at 19, 21, 31,
155, 160, 189.) Her past work experiences include employment as a housekeeper,
assembly worker, warehouse worker and sterilizer. (Tr. at 19, 58-63, 160, 171, 189.)

Ms. Sekel claims that she became disabled on January 19, 2005, due to heart problems,
shoulder pain, neck pain, back pain, depression/anger issues, dizziness, and fatigue.
(Tr. at 159.)
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; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination of whether the claimant is “doing substantial
gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the
claimant is not disabled and the evaluation stops. Id. If he or she is not, the
Commissioner next considers the effect of all of the physical and mental impairments
combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments
must be severe and must meet the durational requirements before a claimant will be
found to be 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, which is a determination of whether
the claimant’s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii),

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416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration. Id. If they do not, a
determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant’s RFC, as well as the claimant’s age,
education, and past work experience in order to determine if he or she can do other
work. 20 C.F.R. §§ 404.1520(a)(4)(v) 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id.
Applying the sequential evaluation process, the ALJ found that Ms. Sekel meets
the nondisability requirements for a period of disability and DIB and was insured
through the date of his decision. (Tr. at 10, 12.) He further determined that Ms. Sekel
has not engaged in substantial gainful activity since the alleged onset of her disability.
(Tr. at 12.) According to the ALJ, Plaintiff’s degenerative disc disease, left shoulder

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pain, carpal tunnel syndrome and tachycardia are considered “severe” based on the
requirements set forth in the regulations. (Id.) However, he found that these
impairments neither meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 13.) The ALJ did not find Ms. Sekel’s
allegations to be totally credible, and he determined that she has the following RFC:
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except no lifting
over 10 pounds; no forceful gripping work bilaterally; no repetitive but frequent
manipulative work bilaterally; and no work at unprotected heights, around dangerous
machinery, and around open flames or bodies of water. (Id.)
According to the ALJ, Ms. Sekel is unable to perform any of her past relevant
work, she is a “younger individual,” and she has a “limited education,” as those
terms are defined by the regulations. (Tr. at 19.) He determined that “[t]ransferability
of job skills is not material to the determination of disability because using the
Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not
disabled,’ whether or not the claimant has transferable job skills.” (Id.) Even though
Plaintiff cannot perform the full range of light work, the ALJ used Medical-Vocational
Rule 202.18 as a guideline for finding that there are a significant number of jobs in the
national economy that she is capable of performing, such as arcade attendant, parking

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lot attendant, and usher. (Id.) The ALJ concluded his findings by stating that Plaintiff
“has not been under a disability, as defined in the Social Security Act, from January
19, 2005, through the date of this decision.” (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “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,

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620 (1966)). Indeed, even if this Court finds that the evidence preponderates against
the Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the 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). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1984).
III.

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

because the ALJ did not properly assess the credibility of her testimony in accordance
with the Eleventh Circuit’s “pain standard.” (Doc. 7 at 5.) In particular, Ms. Sekel
asserts that the ALJ’s evaluation of her subjective complaints was improper and that
the ALJ’s conclusions are “not supported by substantial evidence and inconsistent
with applicable law.” (Id. at 4.)
Disability benefits may not be paid solely on the basis of a claimant’s own
self-serving complaints. See 42 U.S.C § 423(d)(5)(A). However, subjective testimony
of pain and other symptoms may establish the presence of a disabling impairment if

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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, “[t]he
pain standard requires (1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the alleged pain arising from
that condition or (3) that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the alleged pain.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citing Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991)); see also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986).
The ALJ is permitted to discredit the plaintiff’s subjective testimony of pain
and other symptoms if he articulates explicit and adequate reasons for doing so. Wilson
v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 96-7p, 1996
WL 374186 (1996) (“[T]he adjudicator must carefully consider the individual’s
statements about symptoms with the rest of the relevant evidence in the case record
in reaching a conclusion about the credibility of the individual’s statements.”).
Although the Eleventh Circuit does not require explicit findings as to credibility,
“‘the implication must be obvious to the reviewing court.’” Dyer, 395 F.3d at 1210
(quoting Foote, 67 F.3d at 1562). “[P]articular phrases or formulations” do not have
to be cited in an ALJ’s credibility determination, but the determination cannot be a

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“broad rejection which is ‘not enough to enable [a reviewing court] to conclude that
[the ALJ] considered her medical condition as a whole.’” Id. (internal quotations
omitted).
In this case, the ALJ found that Plaintiff’s medically determinable impairments
could reasonably be expected to cause some symptoms. (Tr. at 15.) However, the ALJ
also found that “the claimant’s statements . . . concerning the intensity, persistence,
and limiting effects of those symptoms are not fully credible to the extent they are
inconsistent with the above residual functional capacity assessment.” (Id.) The ALJ
discredited Plaintiff’s subjective complaints because no treating or examining
physician reported the existence of limitations as severe as Plaintiff alleged and
because Plaintiff’s complaints were inconsistent with her reported daily activities. (Tr.
at 18-19, 52.)
Plaintiff argues that the ALJ disregarded substantial medical evidence and
substituted in its place his own medical opinion. (Doc. 7 at 12.) When discrediting a
plaintiff’s subjective pain testimony, it is required “that such articulation or reasons
by the Secretary be supported by substantial evidence.” Hale v. Bowen, 831 F.2d 1007,
1012 (11th Cir. 1987). The record supports the ALJ’s conclusion regarding Plaintiff’s
credibility. Contrary to Plaintiff’s allegations, the ALJ relied heavily on the evidence

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in the record, including Plaintiff’s objective medical history, treatment notes from
physicians and her testimony regarding her daily activities, when assessing her
subjective complaints of disabling pain. (Tr. at 13-19.)
Ms. Sekel first challenges the ALJ’s consideration that her medications were
effective in controlling her symptoms. (Tr. at 18; Doc. 7 at 11.) The ALJ appropriately
took Plaintiff’s medical regimen into account when making his decision because
improvement of pain while on medication can suggest that a plaintiff’s pain allegations
are not credible. See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993) (“If an
impairment can be controlled by treatment or medication, it cannot be considered
disabling.”); Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (noting that a
symptom reasonably controlled by medication or treatment is not disabling).
Here, Ms. Sekel testified that she “cannot control her heart rate despite taking
medication for the past year and a half.” (Tr. at 43-44.) In the ALJ’s decision, he
relied on evidence from Ms. Sekel’s cardiologist indicating that the medication
regimen for Ms. Sekel’s tachycardia was effective. (Tr. at 18, 388.) Specifically, Ms.
Sekel’s cardiologist noted that although her condition will persist, her “symptoms can
be controlled with medication granted the regimen is complied with.” (Id.) The ALJ
also considered the adjustments the cardiologist made to Ms. Sekel’s medication for

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tachycardia. (Tr. at 16-17, 280-81, 398-99.) The plaintiff cites several pieces of medical
evidence in the record regarding her degenerative disc and shoulder impairment to
support her claim that the medications were not effective. (Doc. 7 at 11.) However, the
ALJ’s reliance on the effectiveness of Ms. Sekel’s medication referred only to the
effectiveness on the tachycardia, not her other impairments. (Tr. at 18-19.) Thus, the
ALJ appropriately considered the cardiologist’s determination of the effectiveness of
Ms. Sekel’s heart rate medication in discrediting Plaintiff’s allegations regarding
controlling her heart rate. (Tr. at 18-19.)
Secondly, Ms. Sekel challenges the ALJ’s reliance on her daily activities in
discrediting her subjective pain testimony. (Doc. 7 at 12-13.) Although the ALJ cannot
use daily activities alone to determine whether a plaintiff is disabled, the ALJ may
consider a plaintiff’s activities, to make a finding regarding credibility. See 20 C.F.R.
§§ 404.1529(c)(3)(i), 416.929(c)(3)(i) (“Factors relevant to your symptoms, such as
pain, which we will consider include: (i) Your daily activities . . . .”); see also Dyer, 395
F.3d at 1210 (holding that using a plaintiff’s activities as grounds for discrediting his
claim of disability is permissible so long as other medical evidence is also considered).
According to the ALJ, Ms. Sekel described activities of her daily life that were
“not limited to the extent one would expect, given [her] complaints of disabling

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symptoms and limitations.” (Tr. at 18.) These activities include the ability to cook
meals, walk the property with her dog, water the horses, and do laundry on a daily
basis. (Tr. at 14, 181-183.) The ALJ also noted her ability to shop weekly for groceries,
manage the family finances, work puzzles, do household chores, and spend time with
her family daily. (Tr. at 14, 184-85.) Plaintiff contends that these activities were of
short duration, which should not disqualify her for a finding of disability. (Tr. at 14,
40-41; Doc. 7 at 12.) However, while evidence of her daily activities does not
“necessarily disqualify the claimant from disability, [Lewis v. Callahan, 125 F.3d 1436,
1441 (11th Cir. 1997)] that does not mean it is improper for the ALJ to consider the
claimant’s daily activities at all.” Hoffman v. Astrue, 259 F. App’x 213, 219 (11th Cir.
2007). The ALJ appropriately considered Plaintiff’s daily activities in discrediting her
allegations of disabling pain.
Most importantly, the ALJ also considered the treatment records of Plaintiff’s
physicians in finding her testimony not totally credible, reasoning that “one might
expect to see some indication in the treatment records of restrictions placed on
[Plaintiff] by the treating doctor” and that “a review of the record in this case reveals
no restrictions recommended by any treating doctor.” (Tr. at 18-19.) The ALJ also
stated that the consultative examiner “did not opine any work related functional

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limitations for [Plaintiff].” (Tr. at 19.) Indeed, Ms. Sekel’s treating physician, an
orthopedic surgeon, Dr. Tushar Doshi, M.D., diagnosed Plaintiff with “lumbar spine
strain/sprain syndrome and left shoulder impingement syndrome, subacromial bursitis
and supraspinatus tendinitis.” (Tr. at 15, 219-235.) As a result of those injuries, Ms.
Sekel sought the help of orthopedic surgeons Dr. Jeffrey S. Cumoa, M.D. and Dr.
Mark Prevost, M.D. (Tr. at 15, 326-28.) The ALJ also considered the opinion of the
consultative examiner, Dr. Syed Bilal Ahmed-Bhat, M.D. (Tr. at 17-18, 388.) As
noted by the ALJ, none of the aforementioned doctors recommended any work-related
limitations or restrictions. (Tr. at 15, 19.) Therefore, the treatment records do not
reflect Ms. Sekel’s allegations of disabling symptoms and debilitating pain. (Tr. at 18;
Doc. 7 at 10.) Ms. Sekel does not dispute that none of her treating sources placed
restrictions on her or that the consultative examiner did not assign any functional
limitations. Rather, she argues that the ALJ is “attempting to play doctor” by making
independent findings. (Doc. 7 at 13.) Contrary to Plaintiff’s argument, the ALJ
appropriately relied upon the objective medical records and reports of the Plaintiff’s
treating and examining physicians in discrediting her allegations of disabling pain. (Tr.
at 15-19.)
Finally, in support for her position that she experiences disabling pain, Plaintiff

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focuses on MRI findings of her lumbar spine and cervical spine from 2005 and 2011.
(Doc. 7 at 7, 9-11 (citing tr. 227, 231-32, 234, 327-28)). However, the ALJ considered
these MRI findings to reach his conclusion. (Tr. 15-17). While Plaintiff may believe
that the MRI findings confirm her pain and symptoms of disabling severity, the
doctors who evaluated these MRI findings did not confirm Plaintiff’s belief. (Tr.
227-28, 327). In fact, Dr. Doshi, who reviewed the MRI findings in 2005, advised
Plaintiff to “continue with present conservative measures including chiropractic care
and physical therapy” (tr. at 228), and Dr. Provost, who reviewed the MRI findings
in 2011, indicated that Plaintiff had agreed to try epidural steroid injections “before
doing anything more aggressive.” (Tr. at 327). Accordingly, even if the medical
evidence cited by Plaintiff reflects that her impairments caused some symptoms or
pain, she has not established that the ALJ’s credibility finding is unsupported by
substantial evidence. See generally Wilson, 284 F.3d at 1221 (indicating that the
court’s task is to determine whether substantial evidence supports the ALJ’s findings
as to credibility and whether the ALJ followed the correct legal standards, not to
decide whether the medical evidence shows that the plaintiff experiences some pain).
In sum, the objective medical and other evidence supports the ALJ’s conclusion
that Plaintiff’s condition did not cause disabling limitations and instead shows that she

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could perform a reduced range of light work. (Tr. at 19-20.) The ALJ’s determination
that Plaintiff’s testimony of her disabling pain was not credible is supported by
substantial evidence.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Sekel’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 9th day of October 2014.

L. Scott Coogler
United States District Judge
[160704]

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