Johnson v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION and ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed to claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/11/2015. (AHI)

FILED
2015 May-11 AM 10:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
LOUISE W. JOHNSON,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 6:14-cv-1621-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Louise Johnson, commenced this action on August 21, 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 considered her subjective complaints of
pain, improperly evaluated her credibility, and improperly relied upon the opinion of
a non-examining reviewing consultant physician. Upon review of the record, the
court concludes that these contentions are without merit, and the Commissioner’s
decision should be affirmed.
A.

Pain and Credibility
To demonstrate that pain or another subjective symptom renders her disabled,

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 on pain, “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)). Furthermore, “[a]fter
considering a claimant’s complaints of pain, the ALJ may reject them as not

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creditable, and that determination will be reviewed for substantial evidence.”
Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (citing Wilson v. Heckler,
734 F.2d 513, 517 (11th Cir. 1984)) (alteration supplied).
The ALJ applied those standards in his administrative decision. He concluded
that claimant’s medically determinable impairments could reasonably be expected to
cause the symptoms she alleged, but he nonetheless found that claimant’s statements
about the intensity, persistence, and limiting effects of her symptoms were not
entirely credible.1
With regard to the side effects of claimant’s medications, the ALJ stated:
The claimant testified she cannot drive when she takes medication for
her carpal tunnel syndrome as she gets drowsy and has a hard time
concentrating. . . . Although the claimant has alleged various side
effects from the use of medications, the medical records, such as office
treatment notes, do not corroborate those allegations; further, the records
indicate the claimant is not taking narcotic medication for her pain but
instead has been prescribed Naproxen to relieve her wrist pain.2
As an initial matter, it was legally appropriate for the ALJ to consider the side
effects of claimant’s medications.

See 20 C.F.R. §§ 404.1529(c)(3)(iv) and

416.929(c)(3)(iv) (stating that the Commissioner should consider “[t]he type, dosage,
effectiveness, and side effects of any medication you take or have taken to alleviate
your pain or other symptoms”) (alteration supplied). Even so, claimant challenges
1

Tr. 60.

2

Tr. 61.
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the ALJ’s findings as being inconsistent with the medical evidence. Dr. Charles
Nolen, claimant’s treating physician, made a notation in claimant’s file after each visit
she made to his office that he had discussed the risks, benefits, and side effects of all
medications with her.3 Contrary to claimant’s suggestion, those notations do not
establish a record that she complained about medication side effects. Instead, Dr.
Nolen’s statements indicate that he discussed the potential side effects, as well as the
risk and benefits, of claimant’s medications — something a doctor would be expected
to do as a matter of course. Dr. Nolen also noted on January 30, 2012, that claimant
“feels fatigued and run down all the time.”4 There is no indication, however, that
either claimant or Dr. Nolen linked claimant’s fatigue to her medications on that
occasion. Claimant did report experiencing drowsiness after starting Glucotrol for
her diabetes on February 3, 2012, but that is the only complaint of drowsiness or
other side effects in Dr. Nolen’s records. Next, claimant asserts that the ALJ
improperly stated that claimant had only been prescribed Naproxen for pain, and,
indeed, the record also indicates that claimant also was prescribed Ultracet. Despite
that factual error, however, the court concludes that the ALJ’s decision to reject
claimant’s complaints of disabling medication side effects was supported by
substantial evidence, as there is little to no medical evidence corroborating her
3

Tr. 376, 379, 381-83.

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Tr. 379.
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subjective complaints of side effects.
The ALJ also considered claimant’s daily activities in evaluating her
credibility. He stated:
At the hearing, the claimant indicated she could not do any housework
or yard work because of her pain; however, the claimant indicated
previously that she was capable of doing vacuuming, dusting, laundry,
and using a riding lawnmower to do yard work. . . . The claimant is
independent in her personal care and grooming. . . . At the hearing,
claimant indicated she could throw food in the microwave, but reported
previously that she could cook all kinds of meals. . . . Although the
inconsistent information provided by the claimant may not be the result
of a conscious intention to mislead, nevertheless the inconsistencies
suggest that the information provided by the claimant generally may not
be entirely credible.5
Those were permissible considerations. See 20 C.F.R. §§ 404.1529(c)(3)(i) and
416.929(c)(3)(i) (stating that the Commissioner should consider a claimant’s “daily
activities” in evaluating her credibility). Even so, claimant contends that the ALJ’s
conclusions were not supported by substantial evidence, because her statements on
the Function Report were not actually inconsistent with her hearing testimony, and
the ALJ simply “cherry picked” portions of the Function Report that would support
his finding of no disability.6 After a careful review of the Function Report, the court
concludes that the ALJ did not misrepresent its contents, and he did not omit any
material portions.
5

Tr. 62 (citations to the administrative record omitted).

6

Doc. no. 9 (claimant’s brief), at 12.
5

Additionally, claimant asserts that the only reason her hearing statements
reflected more serious limitations than her Function Report was that her condition
worsened over time. However, she mostly relies upon her own testimony to support
that assertion. The only medical evidence claimant cited was a July 21, 2011
statement by Dr. Toheed Kamal, a specialist in endocrinology, metabolism, and
diabetes, that her diabetes was “fairly progressive.”7 That single statement does not
present a longitudinal picture of the progression of claimant’s disease. Furthermore,
Dr. Toheed also stated that claimant’s diabetes was “uncontrolled” because her
dietary habits had been poor, and he encouraged claimant to control her diet, lose
weight, and exercise.8 Without more convincing evidence to support claimant’s
position, the court cannot conclude that the ALJ’s credibility determination was
unsupported by substantial evidence.
Finally, claimant suggests that the ALJ improperly considered her limited daily
activities in evaluating her credibility.9 It is true that the Eleventh Circuit has
disavowed the notion that “participation in everyday activities of short duration, such
as housework or fishing, disqualifies a claimant from disability.” Lewis v. Callahan,

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Tr. 351.

8

Tr. 351-52.

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This argument, if it can be deemed such, consists of a single sentence: “Moreover, it must
be noted that ‘participation in everyday activities of short duration, such as housework or fishing,
[does not] disqualif[y] a claimant from disability.’” Doc. no. 9 (claimant’s brief), at 13 (alterations
in original) (citation omitted).
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125 F. 3d 1436, 1441 (11th Cir. 1997). That does not mean, however, that a
claimant’s ability to carry out daily activities should not be considered at all in the
disability determination process. To the contrary, the Social Security regulations
discussed above expressly provide that such activities should be considered. See 20
C.F.R. §§ 404.1529(c)(3)(i) and 416.929(c)(3)(i) (listing “daily activities” first among
the factors the Social Security Administration will consider in evaluating a claimant’s
pain). Here, claimant’s daily activities were only one factor the ALJ considered in
evaluating the credibility of claimant’s pain allegations, and the ALJ’s conclusions
were supported by the record.
B.

State Agency Physician
Next, claimant argues that the ALJ improperly relied upon the assessment of

Dr. Richard Heilpern, the state agency physician. Dr. Heilpern did not treat or
examine claimant. Instead, he completed a Residual Functional Capacity Assessment
after reviewing claimant’s medical records. Dr. Heilpern indicated that, during a
normal workday, claimant could occasionally lift and/or carry up to fifty pounds,
frequently lift and/or carry up to twenty-five pounds, stand and/or walk for a total of
six hours, sit for a total of six hours, and perform unlimited pushing and/or pulling
movements. She could only occasionally balance, but could frequently perform all
other postural functions. She had no manipulative, visual, communicative, or

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environmental limitations.10
The ALJ afforded Dr. Heilpern’s assessment only partial weight. He credited
most of the assessment, but added a limitation to light work with manipulative
limitations due to “claimant’s repeated complain[ts] of fatigue and wrist pain.”11
According to claimant, though, “the opinion of a non-examining reviewing physician
is entitled to little weight, and taken alone, does not constitute substantial evidence
to support an administrative decision.”12 Contrary to claimant’s suggestion, Social
Security regulations provide that the opinions of state agency physicians are entitled
to substantial consideration. See 20 C.F.R. §§ 404.1527(e)(2)(i) & 416.927(e)(2)(i)
(stating that, while the ALJ is not bound by the findings of a State Agency physician,
the ALJ should consider such a reviewing physician to be both “highly qualified” and
an “expert” in Social Security disability evaluation). See also Oldham v. Schweiker,
660 F.2d 1078, 1084 (5th Cir. 1981) (“The Secretary was justified in accepting the
opinion of Dr. Gordon, a qualified reviewing physician, that was supported by the
evidence, and in rejecting the conclusory statement of Dr. Harris, a treating physician,
that was contrary to the evidence.”); Surber v. Commissioner of Social Security
Administration, No. 3:11–cv–1235–J–MCR, 2013 WL 806325, *5 (M.D. Fla. March

10

Tr. 366-73.

11

Tr. 62 (alteration supplied).

12

Doc. no. 9 (claimant’s brief), at 15.
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5, 2013) (slip copy) (“State agency medical consultants are non-examining sources
who are highly qualified physicians and experts in Social Security disability
evaluation, and their opinions may be entitled to great weight if supported by
evidence in the record.”). The ALJ’s consideration of Dr. Heilpern’s assessment was
supported by substantial evidence of record.
C.

Conclusion and Order
Consistent with the foregoing, 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.
DONE this 11th day of May, 2015.

______________________________
United States District Judge

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