Ganger v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/4/2014. (AHI)
2014 Dec-04 PM 03:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Case No. 6:14-CV-077-CLS
MEMORANDUM OPINION AND ORDER
Claimant, Kathy Ganger, commenced this action on January 14, 2014, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying her claim for a period of disability, disability insurance, and
supplemental security income benefits.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ improperly evaluated her credibility and complaints of
subjective symptoms, and improperly considered the opinion of her treating
physician. Upon review of the record, the court concludes that these contentions lack
merit, and the Commissioner’s ruling is due to be affirmed.
To demonstrate that pain or another subjective symptom renders her disabled,
a claimant must “produce ‘evidence of an underlying medical condition and (1)
objective medical evidence that confirms the severity of the alleged pain arising from
that condition or (2) that the objectively determined medical condition is of such
severity that it can be reasonably expected to give rise to the alleged pain.’” Edwards
v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986)). If an ALJ discredits subjective testimony of pain,
“[s]he must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986);
MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)) (alteration supplied).
The ALJ in the present case properly applied these legal principles. She found
that claimant’s medically determinable impairments could reasonably have been
expected to produce the symptoms claimant alleged, but that claimant’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not
entirely credible.1 This conclusion was in accordance with applicable law. See
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“After considering a
claimant’s complaints of pain, the ALJ may reject them as not creditable, and that
determination will be reviewed for substantial evidence.”) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)) (emphasis supplied).
The ALJ also adequately articulated reasons to support her findings. The ALJ
considered that, when claimant stopped working in 2006, it was not because of pain,
but because the man she was living with wanted her to stop working.2 She also
reasoned that the “medical records fail to document a sufficient objective basis to
accept some of the claimant’s allegations resulting in functional limitations as wholly
Claimant challenges that conclusion based on written reports of
November 15, 2010 MRI examinations of her knee, shoulder, lumbar spine, and hip.
Plaintiff reported medial knee pain with limited range of motion but no known injury.
The MRI revealed advanced medial compartment arthropathy with loss of articular
cartilage, medial condylar spurring, and presumed partial meniscectomy. She
suffered a chronic MCL strain, but her lateral meniscus, ACL, PCL, and LCL all were
normal. With regard to her shoulder, she reported pain and limited range of motion,
but no injury. The MRI revealed a likely “gross abruption of the supraspinatus
tendon,” with the “free edge of the tendon . . . approximately at the AC joint”; AC
joint arthropathy; a full thickness tear of approximately half the infraspinatus tendon
with only one-centimeter retraction; and severe posterier labral degeneration and
tearing with anterior superior tearing as well. With regard to claimant’s lumbar spine,
she had reported low back pain, right hip pain, and leg pain for six months. The MRI
revealed disc bulging without herniation at L1-2; a lesser disc bulge with mild facet
prominence and left lateral recess narrowing at L2-3; slight asymmetry and facet
arthropathy at L3-4; severe right lateral recess stenosis with severe stenosis of the
medial portion of the right exit foramen at L4-5; and a normal appearing disc with
facet arthropathy and only slight lateral recess narrowing at L5-S1. With regard to
claimant’s hip, she reported right hip pain with pain and numbness of the right thigh
for six months. The MRI findings were normal, other than mild symmetrical
degenerative changes.4 In addition, claimant’s treatment records revealed reports of
pain at a level of 8-10 and “palpable spasms” of the cervical and lumbar spine from
2009 to 2012.5
Without question, those records demonstrate the existence of medical
See Tr. 223-27, 229-31, 255-62, 297, 303, 312-17.
conditions that could cause some impairment. The ALJ acknowledged that fact.6 But
it is not the mere existence of an impairment, or of a medical condition, that
determines disability. Instead, the relevant consideration is the effect of claimant’s
impairment, or combination of impairments, on his ability to perform substantial
gainful work activities. See 20 C.F.R. § 404.1505(a) (defining a disability as “the
inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months”). See also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (“The [Social
Security] Act ‘defines “disability” in terms of the effect a physical or mental
impairment has on a person’s ability to function in the workplace.’”) (quoting Heckler
v. Campbell, 461 U.S. 458, 459-60 (1983)). Here, the ALJ relied upon the report of
the consultative physician to determine that her conditions did not result in disabling
Dr. Frank Gillis conducted a consultative examination on January 19, 2012.
Claimant reported pain in her right hand and shoulder that prevented her from lifting
objects above her head, pain in her lower back and hip that “occasionally” prevented
her from sitting, and pain in her left knee that prevented her from standing for long
See Tr. 15 (“Medical evidence shows the claimant has underlying medical conditions . . .
periods of time. Dr. Gillis’s examination revealed no spasms or deformities in
claimant’s back. Claimant was able to get on and off the examination table without
difficulty. Her gait was asymmetrical but without ataxia or spasticity. She could not
completely squat to the ground and had to use the exam table for assistance. She
performed the heel/toe walk, but she was unsteady. Her neurological findings were
normal. Claimant had no limited range of motion, other than the extension in her
dorsolumbar spine, and abduction and forward elevation in her shoulder joints. Her
dexterity and grip strength were normal. Dr. Gillis’s diagnoses were right shoulder
pain, decreased range of motion in the shoulder joint, low back pain, and tobacco
abuse. The ALJ concluded that Dr. Gillis’s report supported her residual functional
capacity finding of an ability to perform a limited range of light work. That
conclusion was supported by substantial evidence.
Moreover, the ALJ’s reliance on Dr. Gillis’s report distinguishes this case from
the unpublished opinion of the Eleventh Circuit Court of Appeals in Snyder v.
Commissioner of Social Security, 330 F. App’x 843 (11th Cir. 2009), which claimant
contends requires this court to reject the ALJ’s opinion. In Snyder, the Eleventh
Circuit concluded that, in evaluating the claimant’s subjective complaints of pain, the
properly applied the pain standard by finding that Snyder’s underlying
medical condition of Hepatitis C reasonably could be expected to
produce the alleged symptoms. However, the ALJ failed to give
explicit and adequate reasons for discrediting Snyder’s testimony about
the severity of her pain and fatigue. The ALJ merely stated that
Snyder’s testimony as to the intensity, persistence and limiting effects
of her symptoms was “not entirely credible” and that “[h]er allegations
of disabling pains in her legs, feet, and hands are not supported by the
objective medical evidence of record to the extent alleged.” The ALJ
did not point to any objective medical evidence contradicting Snyder’s
pain allegations, but appears to discredit them based on a lack of
objective medical evidence. The ALJ gave no further explanation for
his decision to discredit Snyder’s testimony.
Snyder, 330 F. App’x at 848 (alteration in original). The Eleventh Circuit held that
“[s]uch a broad credibility finding is not sufficient under our precedent,” because “the
ALJ cannot discredit [a claimant’s] testimony as to the intensity or persistence of her
pain and fatigue solely based on the lack of objective medical evidence.” Id.
(citations omitted, alterations and emphasis supplied). Here, the ALJ’s decision to
reject claimant’s subjective complaints was not based solely on a lack of objective
evidence. It was also based upon the findings of the consultative examiner and
claimant’s inconsistent testimony about why she stopped working. Those differences,
together with the fact that the Snyder opinion was not published and, therefore, is
without precedential value or binding authority, do not persuade this court to reject
the ALJ’s opinion.
Finally, the ALJ was entitled to credit Dr. Gillis’s opinion over that of Dr.
Keith Morrow, claimant’s treating physician. The opinion of a treating physician
“must be given substantial or considerable weight unless ‘good cause’ is shown to the
contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (internal
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. (alterations supplied). Additionally, the ALJ is
not required to accept a conclusory statement from a medical source, even a treating
source, that a claimant is unable to work, because the decision whether a claimant is
disabled is not a medical opinion, but is a decision “reserved to the Commissioner.”
20 C.F.R. § 416.927(e).
Social Security regulations also provide that, in considering what weight to
give any medical opinion (regardless of whether it is from a treating or non-treating
physician), the Commissioner should evaluate: the extent of the examining or
treating relationship between the doctor and patient; whether the doctor’s opinion can
be supported by medical signs and laboratory findings; whether the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors.
See 20 C.F.R. § 404.1527(c). See also Wheeler v. Heckler, 784 F.2d 1073, 1075
(11th Cir. 1986) (“The weight afforded a physician’s conclusory statements depends
upon the extent to which they are supported by clinical or laboratory findings and are
consistent with other evidence as to claimant’s impairments.”).
Dr. Morrow submitted several statements regarding claimant’s limitations. On
a “Medical statement regarding knee problem for Social Security disability” form
dated June 24, 2010,7 Dr. Morrow indicated that claimant experienced chronic pain,
stiffness, swelling, and tenderness; limitation of motion; instability; and joint space
narrowing in both knees. Her pain was moderate to severe, and she could not work
at all. She could stand and sit for only thirty minutes at a time, and could lift ten
pounds on an occasional basis but no weight on a frequent basis. She could never
stoop or climb ladders, and she could only occasionally bend, balance, and climb
Dr. Morrow also completed a “Medical statement regarding hip problems for
Social Security disability claim” on June 24, 2010. He indicated that claimant
experienced chronic hip pain, chronic hip stiffness, limitation of motion of her hip,
and inability to ambulate effectively. She could not work at all, and she could only
stand and sit for thirty minutes at a time. She could lift ten pounds on an occasional
basis but no weight on a frequent basis. She could never stoop or climb ladders, and
she could only occasionally bend, balance, and climb stairs.
The court notes that this form was completed prior to claimant’s alleged onset date of
November 18, 2010.
characterized the pain claimant experienced as moderate to severe.9
Dr. Morrow also completed a Patient Functional Questionnaire on September
10, 2012. He stated that claimant experienced back pain with degenerative disc
disease, foraminal stenosis, rotator cuff tear, depression, restless leg syndrome,
COPD, hypertension, peripheral neuropathy, and osteoarthritis of the knees. Dr.
Morrow indicated that claimant could sit continuously for one hour, stand
continuously for fifteen minutes to a half-hour, and walk continuously for fifteen
minutes. During an eight-hour workday, claimant could sit for a total of two to three
hours, stand for a total of one hour, and walk for a total of one hour. She would have
to lie down for a total of three hours each day in order to alleviate her pain. Claimant
would be expected to miss more than fifty days of work each year due to her
Also on September 10, 2012, Dr. Morrow provided sworn testimony during
which he was questioned by claimant’s attorney.11 Dr. Morrow testified that a person
experiencing paraspinal muscle spasms would not be able to perform work activities
or activities of daily living.12 He also stated that the opinions expressed in the Patient
Functional Questionnaire were based upon the medical history he received from
claimant, his physical examinations of her, and the diagnostic tests that had been
performed.13 After reviewing claimant’s MRI results, Dr. Morrow concluded that she
had “multilevel disk problems in her back, which are starting to put pressure onto the
nerves into her right hip and leg.”14 According to Dr. Morrow, nerve pain is
“unrelenting” and “extremely hard to control.”15 Dr. Morrow also testified that
claimant’s pain complaints should be expected as a result of her medical conditions,
and he confirmed that claimant had never had surgery to correct any of those
conditions.16 He concluded that there was no way claimant could have worked in any
occupation on a sustained basis since her alleged onset date of November 18, 2010.17
The ALJ afforded Dr. Morrow’s assessment only little weight “because he did
not actually see the claimant during the period at issue, with treatment at his clinic
being performed by the nurse practitioner . . . .”18 Claimant does not contest the legal
sufficiency of that finding; instead, she asserts that it is factually incorrect.
According to claimant, even though she regularly saw the nurse practitioner instead
of Dr. Morrow, Dr. Morrow still reviewed all of claimant’s treatment notes and
“signed off” on each of her visits. Moreover, “Dr. Morrow, as the supervisor of his
nurse practitioners, was ultimately responsible for [claimant’s] case and would
obviously be conversant about her condition.”19
The court does not agree with claimant that a doctor reviewing and “signing
off on” a nurse practitioner’s treatment notes is the same thing as actually providing
hands-on treatment to a patient. It was legitimate for the ALJ to consider the fact that
Dr. Morrow did not regularly provide personal treatment to claimant when she was
determining how much weight to give to Dr. Morrow’s assessments. See 20 C.F.R.
§ 404.1527(c)(2) (providing that the ALJ should consider the extent of the treatment
relationship between the doctor and patient). The ALJ also was entitled to give more
weight to Dr. Gillis’s assessment than she gave to Dr. Morrow’s, because she found
that Dr. Gillis’s opinion was more consistent with the record as a whole. See 20
C.F.R. § 404.1527(c)(4) (providing that the ALJ should consider whether a doctor’s
opinion is consistent with the record as a whole).
In summary, the court concludes the ALJ’s decision was based upon substantial
evidence and in accordance with applicable legal standards. Accordingly, the
decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The
Clerk is directed to close this file.
Doc. no. 12 (claimant’s brief), at 14 (alteration supplied).
DONE this 4th day of December, 2014.
United States District Judge
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