Byars v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 8/4/16. (SAC )
2016 Aug-04 AM 09:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN
ACTING COMMISSIONER OF
CIVIL ACTION NO.
On March 5, 2012, the claimant protectively applied for disability insurance benefits and
supplemental security income under Title II and Title XVI of the Social Security Act. In both
applications, the claimant alleged disability beginning February 28, 2012, because of nerve
damage to the right leg, right knee problems, Sympathetic Dystrophy, Post-Traumatic Stress
Disorder (PTSD), and foot problems. The Commissioner denied these claims on June 15, 2012.
(R. 92-93, 101). On June 25, 2012, the claimant filed a written request for a hearing before an
Administrative Law Judge, and he held a video hearing on August 15, 2013. (R. 53-54).
In a decision dated October 18, 2013, the ALJ found the claimant was not disabled as
defined by the Social Security Act and was, therefore, ineligible for supplemental security
income. (R. 7-23). On December 16, 2014, the Appeals Council denied the claimant’s request for
review; consequently, the ALJ’s decision became the final decision of the Commissioner of the
Social Security Administration. (R. 1). The claimant has exhausted her administrative remedies,
and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons
stated below, the court AFFIRMS the decision of the Commissioner.
II. ISSUE PRESENTED
Whether the ALJ properly assessed the claimant’s credibility and subjective complaints under
the Eleventh Circuit Pain Standard.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if his factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham
v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “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, 402 (1971).
The court must keep in mind that opinions such as whether a claimant is disabled, the
nature and extent of a claimant’s residual functional capacity, and the application of vocational
factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a case; i.e., that
would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d).
Whether the claimant meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence,
or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the
significance of certain facts, the court has no power to reverse that finding as long as substantial
evidence in the record supports it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only
look to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take account of evidence that detracts from the evidence relied on by
the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to “engage in 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 . . . .” 42
U.S.C. § 423(d)(1)(A). To make this determination the Commissioner employs a five-step,
sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments set forth
in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to
the next question, or, on steps three and five, to a finding of
disability. A negative answer to any question, other than step
three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986) 1; 20 C.F.R. §§ 404.1520, 416.920.
When evaluating subjective complaints, such as pain, the Commissioner must apply the
Eleventh Circuit’s pain standard. The Commissioner must determine whether:
(1) there is evidence of an underlying medical condition; and either
(2) objective medical evidence confirming the severity of the alleged pain arising
from the 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.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (emphasis added); Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991); Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). The
ALJ does not have to recite the pain standard word for word; rather the ALJ must make findings
that indicate that he applied the standard. Holt, 921 F.2d at 1223. A claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself sufficient to
support a finding of disability. Foote, 67 F.3d at1561. The ALJ must articulate reasons for
discrediting the claimant’s subjective testimony. Brown v. Sullivan, 921 F.2d.1233, 1236 (11th
Cir. 1991). If the ALJ does not articulate his reasons for discrediting, then the court must accept
the claimant’s testimony as true. Id.
Further, in evaluating pain and other subjective complaints, the Commissioner may
consider the claimant’s ability to perform certain activities of daily living (ADLs), as well as the
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) was a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit
impact of such activities on the claimant’s credibility. 20 C.F.R. §§ 404.1529 (c)(3)(i),
416.929(c)(3)(i); see also Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (finding that
ADLs may be relevant to the fourth step of the sequential process).
The claimant was forty-eight years old at the time of the ALJ’s final decision. The
claimant has a 10th grade education and past relevant work as a molder/trimmer and book keeper.
(R. 29) The claimant alleged disability beginning on February 28, 2012 from many impairments,
including nerve damage to the right leg, right knee problems, Sympathetic Dystrophy, PostTraumatic Stress Disorder, and foot problems. (R. 92).
On June 20, 2003, the claimant underwent a magnetic resonance imaging scan (MRI) of
her right knee, which revealed a small joint effusion; the scan showed a low density signal of the
tibial plateau, assumed to be cartilage, and did not show any bone bruising. (R. 240).
From January 2006 to November 2007, the claimant visited Family Medical Associates
fourteen times. In February 2007, the claimant complained of headaches and dizziness as
possible side effects of medication, but denied any persisting side effects at the follow up
appointments. Beginning in July 2007, the claimant reported knee, leg, and ankle pain, as well as
swelling around her ankle; these complaints persisted through November 2007. (R. 245-258).
At some time prior to February 2010, the claimant initiated pain management treatment at
PainSouth, Inc.; treatment consisted of prescriptions including KBCDG Cream, Lortab,
Topamax, and Zanaflex. On February 3, 2010, Dr. Cosgrove diagnosed the claimant with Reflex
Sympathetic Dystrophy and Chronic Pain Syndrome; however, her treatment remained
unchanged. During that appointment, the claimant denied any side effects and rated her pain
“7/10 on a scale of 0 to 10.” (R. 306-307).
On April 29, 2010, the claimant complained that her first dose of medication caused
drowsiness that she had to “sleep off” but that the rest of the dosages did not adversely affect her;
she has not reported drowsiness since February 15, 2011. (R. 285, 303).
On May 27, 2010, the claimant complained of headaches and difficulty sleeping, which
she attributed to amitriptyline; the claimant voluntarily discontinued this medication.
On June 24, 2010, the claimant reported side effects including numbness in her face and
difficulty sleeping. The claimant stated that her difficulty sleeping must be a result of gabapentin
because she “was sleeping good before this.” The claimant did not report any more instances of
these particular side effects from her medications at any follow-up appointment after June 2010.
(R. 297, 300).
From July 2010 to May 2011, the claimant visited PainSouth five times. At each
appointment the claimant denied any adverse side effects, except for drowsiness at the February
appointment, which Dr. Cosgrove attributed to her daily routine 2. (R. 282-296).
From June 2011 to September 2011, the claimant visited PainSouth twice. On June 14,
2011 and September 12, 2011, she explicitly denied any side effects and rated her pain “7/10”;
however, on September 12, 2011, she reported a pain increase. She reported that the pain was
constant and varied with activity. (R. 276, 279).
From December 2011 to May 2012, the claimant visited Dr. Cosgrove four times. On
December 6, 2011, March 6, 2012, April 4, 2012, and May 9, 2012, she reported pain levels of
“8/10,” “5.5/10,” “7/10,” and “5/10” respectively. At each appointment, she reported the same
The claimant wakes up at 4:00am every morning, takes her medications, goes back to sleep, and wakes up at
9:00am to start her day.
“moderately active” activity level, initially listing that she exercised by walking. She also
explicitly denied any adverse side effects at each appointment. Each of Dr. Cosgrove’s physical
examinations yielded the same results, as described below. (R. 266-275, 318-320).
During the December 6, 2011 appointment, the claimant reported that her pain was
“basically unchanged from the previous visit.” In the prior appointment, on September 12, 2011,
she rated her pain “7/10,” but in this December appointment she reported an “8/10.” Dr.
Cosgrove also noted a discrepancy in this appointment: “the claimant reported the Lortab to be
moderately effective despite the reported high pain scores.” Dr. Cosgrove prescribed Mobic and
made no other changes to her medication regimen. (R. 273-276).
At the March 6, 2012 appointment, the claimant reported that Mobic was helpful in
reducing inflammation in her right ankle; she reported the pain medication to be “moderately
effective in controlling her pain, but not as ef[f]ective as [she] would like.” Dr. Cosgrove noted
that he and the claimant had discussed a spinal cord stimulator trial in the past, but the claimant
elected not to have the procedure. Other than prescribing the claimant Nucynta, Dr. Cosgrove
made no changes to her medication regimen. (R. 269). Her follow-up appointment on April 4,
2011 was identical to her March appointment aside from the claimant’s increased dosage of
Nucynta. (R. 266-272).
The claimant’s May 9, 2012 appointment revealed inconsistent reports where the
claimant both described pain in her ankle and explicitly denied any complaints of pain. When she
described pain, she reported it as constant and varying in intensity and quality by time of day and
activity levels. (R. 318).
On August 1, 2012, the claimant rated her pain as “5/10.” She reported no change in her
activity level, and physical examination results generally yielded the same results; however, she
reported adverse side effects from her medications including nausea and vomiting. (R. 315-318).
Between November 2012 and May 2013, the claimant went to PainSouth three times. On
November 1, 2012, January 1, 2013, and May 9, 2013, she reported pain levels of “6/10,” “5/10,”
and “5/10” respectively. She continued to report the same “moderately active” activity level and
physical examination results remained the same. In November, she stated that her side effects
had improved, but in January 2013 she reported experiencing nausea; however, the claimant
attributed the nausea to her Mobic medication and voluntarily discontinued it. (R. 330-343).
The record contains no evidence of required treatment at an emergency room, or
hospitalization from April 2012 to May 2013. (R. 266-268, 315-320, 330-343).
In May of 2005, the claimant visited Baptist Health Center where she reported
depression, anxiety, and nervousness resulting from a family tragedy. Four months later, in
September 2005, she revisited the clinic claiming the same symptoms, and added that she was
suffering from nausea. She was not diagnosed with Post-Traumatic Stress Disorder during either
of these visits. (R. 259-260).
From January 2006 to November 2007, the claimant regularly visited Family Medical
Associates. The claimant began reporting “anxiety/depression” to Family Medical Associates on
October 13, 2006. She denied “anxiety/depression” from December 2006 to October 2007. On
November 12, 2007, the claimant reported that her anxiety and depression had returned. (R. 245258).
From February 2010 to May 2013, the claimant regularly saw Dr. Cosgrove at PainSouth,
Inc. The claimant reported depression beginning in February 2010 and consistently reported it at
each appointment through May 2013, but Dr. Cosgrove never diagnosed her with Post-Traumatic
Stress Disorder. (R. 266-320, 330-343). Furthermore, the record indicates that she had never
been to mental health counseling, taken any medication for PTSD, or seen a psychologist or a
psychiatrist. (R.245-320, 330-343).
The claimant completed a function report on April 4, 2012 at the request of the SSA. In
Section B of this self-assessment, she reported that every day she gets up at 4:00am, takes her
medicine, returns to bed, and wakes up around 9:00am. She added that she “tries to clean house
and do laundry, but it takes her all day.” In Section C, the claimant reported that she could only
lift 5 pounds, that she could not squat or bend, and that her ankle has a tendency to give way or
turn over. She also reported that she could only walk 10 feet with 30 minute rests. The claimant
also indicated that she could cook, perform light housekeeping, and do laundry. The claimant
reported that meal preparation generally consisted of assembling sandwiches and cooking
vegetables every other day and generally took about “1 ½” hours. She also reported completing
housework and laundry one day each week, but noted that these activities may take “all day” to
complete. The claimant indicated that drowsiness caused by her medications prevented her from
driving and participating in social activities and added that she sits on the porch 20 minutes each
day. She also reported that pain sometimes interrupts her sleep. Her hobbies included reading,
but sometimes her pain frustrated her, and she must “give up on [her] book.” However, she also
indicated that she completes everything she starts including “[f]or example, a conversation,
chores, reading, watching a movie.” The claimant also indicated that aside from mowing the
front lawn, she did not need help in maintaining her residency. (R. 183-192).
On May 9, 2012, the claimant’s sister-in-law, Janine Wright, completed a “Function
Report-Adult-Third Party.” She reported similar written answers. For example, in Section B,
Mrs. Wright reported the exact same daily routine for the claimant. In Section C, Mrs. Wrights
stated the same physical limitations regarding lifting capacity, ability to squat or bend, the
claimant’s weak ankle, and the claimant’s need to take rests. Additionally, Mrs. Wright reported
the same time estimations: the claimant takes “1 ½” hours to cook; she takes all day to clean and
do laundry; she sits on the porch for 20 minutes each day; she needs 30 minute breaks while
walking. Mrs. Wright also reported that the claimant cooks “sandwiches and frozen vegetables,”
performs “minimal housecleaning and does laundry”; she added that a family member assists the
claimant in dusting and cleaning. (R. 183-192, 214-219).
Dr. Samuel D. Williams, at the request of the SSA, completed a psychiatric review of the
claimant’s records on June 13, 2012; he did not personally examine the claimant. He noted that
the claimant did not meet the diagnostic criteria for a listing-level anxiety disorder. He further
noted that the claimant’s anxiety did not restrict activities of daily living; did not present
difficulties in maintaining social functioning or concentration, persistence, or pace; and were not
associated with repeated episodes of decompensation of extended durations. Dr. Williams also
stated that while the claimant indicated some memory and concentration problems, she also
indicated that she was “good” at following written and spoken directions. Dr. Williams also
noted that the claimant was not currently receiving any formal mental health treatment. He
concluded that the claimant’s mental conditions seem to be well-controlled on her current
medical regiment and should not be expected to cause any significant functional limitations. (R.
On June 13, 2012, Mr. T. Wallace, a single decision maker with the Social Security
Administration, completed a physical residual functional capacity assessment on the claimant.
Mr. Wallace did not examine the claimant in person, but completed this assessment based on the
entirety of the claimant’s medical records. Mr. Wallace noted that the claimant had Major Joint
Dysfunction and an Anxiety Disorder. He determined that the claimant’s allegation of anxiety
was non-severe because it did not restrict her daily activities and did not present difficulties in
maintaining social functioning, concentration, persistence, and pace, nor did it create episodes of
decompensation. He determined that the claimant’s Major Joint Dysfunction was severe, but did
not precisely satisfy diagnostic criteria. He concluded that the claimant could stand or walk for 6
hours of an 8-hour work day with normal breaks; could sit for 6 hours with normal breaks; could
lift 10 pounds frequently or 20 pounds occasionally; could occasionally use lower right
extremities to push or pull foot controls; could occasionally climb ramps/stairs, balance, stoop,
and crouch; could not work on ladders/ropes/scaffolds; and should avoid extreme cold
temperatures, vibrations, hazardous machinery, or unprotected heights; and could not drive
commercially. (R. 92-102).
After the Commissioner denied the claimant’s request for disability insurance benefits
and supplemental security income, the claimant requested and received a hearing before an ALJ
on August 15, 2013. (R. 5-6). At the hearing, the claimant testified that her combination of
impairments prevented her from maintaining concentration, persistence, and pace to maintain an
8 hour work day. She also testified to her difficulty walking and her constantly swollen leg. At
the hearing, she alleged impairments including Reflex Sympathetic Dystrophy of the right lower
extremity, Chronic Pain Syndrome, pain in the joint of the ankle and foot, anxiety and
depression. (R. 30). She also testified to problems with Post-Traumatic Stress Disorder. (R. 37).
The claimant described her alleged pain as constant, burning, and stinging. The claimant
stated Dr. Cosgrove prescribed her a new medication in March 2012 called Nucynta and recently
increased the dosage. The claimant stated that Nucynta replaced her Lortab prescription because
the Lortab was completely ineffective; despite taking four Lortabs daily, the medication did not
alleviate her pain at all.
Regarding the effects of her alleged pain, the claimant testified that Nucynta never ceased
her pain completely, but simply “lulls the pain enough that it’s tolera[ble].” The claimant stated
that she is unable to stand for more than 5-10 minutes, cannot walk for more than 10 minutes,
and cannot sit for more than 15-20 minutes. She testified that her leg stays swollen “24/7,” so she
must elevate her leg in a reclined position for 90 minutes each day 3. (R. 30-32).
When asked about the activities she participates in on a daily basis, the claimant testified
that she tries to read, but her pain distracts her and she has to stop; most of the time, she sleeps
because of the medication. The claimant testified that she cooks for herself by assembling
sandwiches or using the microwave. She also stated that her sister-in-law helps her clean once a
week. She does not shop, participate in social activities, go to the movies, eat out, or visit friends
or family because she has not driven in a year. (R. 35-36).
Regarding the claimant’s allegation of PTSD, at the hearing the claimant initially
indicated that she was receiving treatment for anxiety and depression. After further questioning,
she stated that she was not on any medication because side effects from her medications 4 made
The claimant specifically stated that she must elevate her foot 30 minutes, three times a day.
The court is unclear about what medications the claimant referenced when she said “because with that medicine
and this medicine, I felt like a zombie.” The court cannot find any recorded diagnoses of PTSD treated with
her “fe[el] like a zombie.” The claimant listed drowsiness, nausea, headaches, and dizziness
among the side effects she was already suffering. When asked again whether she had received
treatment for anxiety or depression, she responded that she had not. When questioned about the
events leading up to her alleged PTSD, she testified that she had not seen a psychiatrist. (R. 3637).
Regarding her work history, the vocational expert John W. McKinney III testified that the
claimant previously worked as a molder/trimmer, classified as medium and unskilled work, and
as a book-keeper. When asked specifically about her book-keeping job, the claimant testified that
her husband created the job for her. The claimant held this job for duration of the 2006 year,
during which she was responsible for inputting data into Quickbooks for two hours each week.
She was considered a salaried employee and received $13,821.00 that year. (R. 38-40).
Mr. McKinney then testified concerning the type and availability of jobs that the claimant
was able to perform. Mr. McKinney stated that a younger aged individual with a 10th grade
education and the same work history and physical limitations as the claimant, who also had mild
psychological restrictions, would not be able to perform the claimant’s past relevant work.
However, he testified that alternative work was available including work as an information clerk,
which had 550 positions available in the state and 27,500 positions available nationally; an order
clerk, which had 300 positions available in the state and 15,000 positions available nationally;
and a hand-packager, which had 430 positions available in the state and 20,000 positions
Mr. McKinney also testified that pain preventing concentration for two hours would
eliminate all job opportunities. He stated that an individual who was required to elevate her foot
to waist-level during the workday would have no available job opportunities. Mr. McKinney
further testified that employers would not be able to accommodate regular work breaks (beyond
those which are generally scheduled for unskilled work) in a competitive work environment.
Finally, Mr. McKinney stated that two absences per month were excessive for maintaining
employment and that the inability to perform from 32 to 40 hours weekly would eliminate all job
opportunities. (R. 40-44).
VI. ALJ OPINION
On October 18, 2013, the ALJ determined that the claimant was not disabled under the
Social Security Act. The ALJ found the claimant met the insured status requirement of the Social
Security Act through June 30, 2012 and had not engaged in substantial gainful activity since
February 28, 2012, the alleged onset date of disability. (R. 7-13).
Next, the ALJ found that the claimant suffered from severe impairments of Reflex
Sympathetic Dystrophy (RSD) of the right leg with Regional Pain Syndrome. The ALJ found
allegations of PTSD non-severe and stated that the record contained no objective medical
evidence to support the claim. The ALJ found no diagnosis of PTSD and noted that the claimant
had never participated in mental health counseling nor seen a psychologist. The ALJ also gave
significant weight to that state agency psychiatric consultant, Dr. Williams, who found that the
claimant had no severe mental impairment and that the claimant’s alleged PTSD did not restrict
the claimant’s daily activities; did not produce difficulties in maintaining social functioning or
maintaining concentration, persistence or pace; and did not cause episodes of decompensation.
Additionally, the ALJ considered whether the claimant met any requirements from the
Listing of Impairments. He found that none of the claimant’s impairments, singly or in
combination, manifested the specific signs and diagnostic findings required by the Listing of
Impairments. (R. 13).
The ALJ then determined that the claimant had the residual functional capacity to
perform sedentary work with a sit/stand option, as defined in 20 C.F.R. 404.1467(a), such that
the claimant could occasionally lift 10 pounds; could, with normal breaks, sit 6 hours of an 8
hour workday; could stand or walk up to 3 hours of an 8 hour workday; could occasionally climb
ramps or stairs; could never climb ladders, ropes, or scaffolding; could occasionally balance,
stoop, and crouch; could not work around extremely cold temperatures, vibrations, hazardous
machinery, or unprotected heights; could not drive commercially; and could walk around the
desk or workstation throughout the day.
In considering the claimant’s subjective allegations of pain, the ALJ applied the
controlling pain standard of the Eleventh Circuit and found that the claimant’s allegations of pain
were not fully credible when considered in light of the entire record. The ALJ concluded that,
although the claimant’s medically determinable impairments could reasonably be expected to
cause symptoms, the claimant’s allegations regarding intensity, persistence, and limiting effects
of these symptoms were not fully credible to the extent that the allegations are inconsistent with
the residual functional capacity. The ALJ stated that the record clearly shows that the claimant’s
conditions are stable and do not significantly impact her ability to perform work activity. (R. 1415)
First, the ALJ noted that the claimant’s subjective allegations were inconsistent with
medical records to the extent that treatment was mostly routine and conservative in nature. The
ALJ referenced medical records from 2011 to 2013, which showed that the claimant’s pain
management treatment consisted only of medications. Specifically, the ALJ referenced treatment
records from Dr. Cosgrove of PainSouth, Inc., which showed that the claimant was generally
seen for scheduled follow-up visits and refills of the same medication every three months; these
medications included Keppra, Lortab, Flector, Topamax, and Zanaflex. (R.266-320, 330-343).
Additionally, the ALJ noted that between April 2012 and May 2013, the claimant was neither
hospitalized nor was she treated in an emergency room. Thus, he concluded that the claimant’s
treatment was routine and conservative, and did not reflect an impairment or combination of
impairments that were disabling. (R. 15).
Next, the ALJ considered the treatment’s general success in controlling the claimant’s
symptoms and found it inconsistent with the claimant’s allegations of persistent pain. An MRI of
the claimant’s knee in 2003 showed a “small joint effusion.” Through the use of cortisone
injections and physical therapy in 2007, the claimant’s pain improved as well as her range of
motion. (R. 14, 65, 239-240). The ALJ further noted that despite the claimant’s alleged painful
condition, she was able to sustain substantial gainful activity through 2008. (R. 15).
The ALJ also used a detailed analysis of the medical records to show the treatment’s
general success in controlling the claimant’s symptoms. In December 2011, the claimant
reported persistent pain in the right leg and ankle; however, the ALJ noted that the claimant
stated she was “moderately active” and exercised by walking despite her persisting pain. The
ALJ also noted that the claimant denied any side effects in the same December 2011
appointment. The ALJ further noted that the results of the claimant’s physical examination
(conducted by Dr. Cosgrove) produced mild results. (R. 15, 273-274).
The ALJ then noted that during her follow-up appointment in March 2012, the claimant
reported that her Mobic medication helped reduce inflammation in her right ankle and improved
her pain. He also noted that she rated her pain a 5.5 on a scale of 10 and denied side effects
again. (R. 15, 269).
The ALJ considered the six appointments between April 2012 and May 2013; he noted
that the claimant was only seen at regularly scheduled appointments separated by three-month
intervals, and only when the claimant needed medication refills. He also noted that
musculoskeletal and neurological examinations remained unchanged, as did the claimant’s
consistent denial of side effects.
The ALJ also noted that in January 2013, the claimant reported side effects including
nausea, but the claimant attributed it to her Mobic medication and voluntarily discontinued it.
Finally, the ALJ noted that the claimant consistently rated her pain a “5/10” 5 between
March 2012 and May 2013, and in August 2012 6 the claimant denied any pain, both of which he
found inconsistent with persistent debilitating pain.
Therefore, the ALJ concluded that the records clearly showed the claimant’s symptoms
were stable on her medication and the severity of this condition did not preclude her from
performing work activity within a sedentary residual functional capacity with a sit or stand
option. However, the ALJ considered the fact that the claimant does have RSD with Regional
Pain Syndrome, so he extended the benefit of the doubt to the claimant and assessed her with a
limited range of sedentary work. (R. 15-16, 266-320, 330-343).
The ALJ also discredited the claimant’s subjective testimony based on multiple instances
where the claimant’s statements contradicted her prior admissions and medical records. The ALJ
noted that in the hearing, the claimant testified that, despite taking four Lortabs daily, she can
only stand for 5-10 minutes, walk for 10 minutes, and sit for 15-20 minutes; however, the
claimant described herself as “moderately active” at every appointment since December 2011.
(R. 266-279, 315-320, 330-343). The ALJ also noted, in the same hearing, that the claimant
The claimant had seven appointments between March 2012 and May 2013. She reported pain levels of 5.5, 7, 5, 5,
6, 5, and 5 respectively.
The claimant did not deny pain in August 2012; she denied pain in May 2012.
testified that she is unable to perform her daily activities and spends most of her day sleeping and
lying down; however, in the “Function Report-Adult” on April 14, 2012, the claimant reported
that she engages in a wide range of daily activities, including cooking, light housecleaning, and
laundry every day, 7 and needs no help in maintaining her residency.
Finally, the ALJ considered the claimant’s allegations of side effects. The ALJ noted that
the claimant testified that her medications made her “feel like a zombie.” She also testified to
side effects including “drowsiness, nausea, and headaches”; however, the ALJ pointed out that
the medical record shows that the claimant consistently denied any side effects from July 2010 to
May 2012. (R.16, 183-192).
Therefore, the ALJ concluded that the claimant’s testimony was inconsistent with her
allegations of chronic pain, but was consistent with the ability to perform a limited range of
sedentary work. (R. 24-44, 183-192).
The ALJ also considered the effect of the claimant’s work history on the claimant’s
credibility. The ALJ referenced the claimant’s Work History Report, which showed the
claimant’s own admissions regarding her work history from 1997 to 2012. The ALJ also referred
to the claimant’s Wage Request. The ALJ used these reports and noted that the claimant only
worked sporadically prior to the alleged onset date; the ALJ stated that this work history raises
the question as to whether the claimant’s continuing unemployment was actually because of
medical impairments. Moreover, the ALJ stated that the claimant did not work for several years
prior to the disability onset date. (R. 16).
Finally, the ALJ noted the claimant’s allegation that her leg remains swollen “24/7,” and
she must elevate her leg; however, after reviewing the record, the ALJ stated that no physician
The claimant actually reported cooking every other day; she reported performing light housecleaning and laundry
once a week.
advised her to elevate her leg, nor did a physician list any recommended restrictions, like
mandatory breaks, as a result of swelling or pain. The ALJ also stated that “given the claimant’s
allegations of disabling pain symptoms, one might expect to see some indication in the treatment
records of restrictions placed on the claimant by a treating physician”; however, the records did
not contain any opinions from treating or examining physicians indicating that the claimant was
disabled or had limitations greater than those determined in his decision. (R. 16, 245-320, 330343).
The ALJ considered opinion testimony given by the claimant’s sister-in-law and assigned
it very little weight. In doing so, he stated that the claimant’s sister-in-law only sees her once
every two weeks and noted that “barely any” subjective information existed in the report. The
ALJ stated that the sister-in-law’s testimony regarding the claimant’s daily activities should be
highly suspect as mere recitation of the claimant’s own subjective complaints because the sisterin-law does not see the claimant regularly. (R. 17).
Lastly, the ALJ found that the claimant could not perform any past relevant work, but
could perform other work that exists in significant numbers in the national economy. Based on
the vocational expert’s testimony, the ALJ found that the claimant could perform representative
occupations including an information clerk, an order clerk, and a hand packager. Thus, the ALJ
concluded that the claimant could make a successful adjustment to other work, and, therefore,
was not disabled as defined by the Social Security Act. (R. 17-18)
The ALJ properly assessed the claimant’s credibility and subjective complaints under the
Eleventh Circuit Pain Standard.
The claimant argues that the ALJ improperly applied the Eleventh Circuit’s pain standard in
assessing her subjective testimony regarding her limitations. The pain standard applies when a
claimant attempts to establish disability through her own testimony of pain or other subjective
symptoms. Holt, 921 F.2d at 1223. “The pain standard requires evidence requires evidence of an
underlying medical condition and either (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.” Id. (emphasis added). This court finds that the ALJ properly applied the pain standard and
that substantial evidence supports his decision.
In this case, the ALJ conceded that the claimant suffers from an underlying medical
condition capable of generating pain; however, he found that the claimant’s statements
concerning intensity, persistence, and limiting effects of these symptoms were not fully credible
to the extent that the allegations are inconsistent with his residual functional capacity assessment.
In applying the standard, if the ALJ decides not to credit the claimant’s subjective
testimony of pain, he must discredit it explicitly and articulate his reasons for doing so. Brown,
921 F. 2d at 1236. Failure to articulate the reasons for discrediting the claimant’s subjective
complaints of pain requires that the court accept the testimony as true. Id.
The ALJ articulated several reasons why he found the claimant’s testimony “not
credible.” (R. 14-16). The claimant admits that the ALJ articulated several reasons, but argues
that substantial evidence does not support those reasons. This court disagrees and finds that the
ALJ articulated several reasons and supported each of those reasons with substantial evidence.
Claimant’s General Inconsistencies
The ALJ found that the claimant’s testimony contradicted her own prior admissions as
well as medical records, which undermines her credibility. The ALJ pointed to four instances of
inconsistency between the claimant’s statements and her prior admissions or medical records: the
characterization of “moderately active,” prior admissions regarding daily activities, self-imposed
limitations, and consistent denials of side-effects.
The ALJ first pointed to the claimant’s testimony that despite taking four Lortab tablets
daily, she is unable to stand for more than 5-10 minutes, cannot walk for more than 10 minutes,
and cannot sit for more than 15-20 minutes. However, the ALJ noted the medical records
contained the claimant’s consistent description of a “moderately active” activity level. (R. 32,
266-320, 330-343). Although the claimant asserts that the ALJ improperly characterized her
activity as “moderately active” because “there is simply no explanation of exactly what activities
the [claimant] was engaged in,” the ALJ specifically noted activities the claimant admitted, such
as “she exercised by walking.” Thus, this court finds the ALJ’s reliance on “moderately active”
reasonable. (R. 303-302, 266-320, 330-343). The ALJ found, and this court agrees, that the
claimant’s allegation of debilitating pain is inconsistent the medical records showing that she
claimed a “moderately active” activity level at every appointment since December 2011.
Another inconsistency the ALJ noted involved the claimant’s testimony regarding her
daily activities. Although the claimant argues that an ALJ may not rely on a claimant’s daily
activities to discredit the claimant, the Eleventh Circuit has also found that claimant’s daily
activities may be considered in evaluating and discrediting complaints of disabling pain. Cf.
Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984); see also Dyer, 395 F. 3d at 1212
(endorsing the ALJ’s consideration of a claimant’s activities of daily living in assessing
The ALJ used the claimant’s statements regarding daily activities to show inconsistency,
not the claimant’s ability or disability. In considering daily activities, the ALJ noted differences
between the Function Report and the claimant’s testimony. In the Function Report, the claimant
admitted to preparing sandwiches and cooking vegetables every other day and performing light
housecleaning and laundry once a week. She also indicated that she needed no help in
maintaining her residency. The ALJ alluded to the claimant’s testimony regarding daily
activities, during which she stated that she cooked by preparing sandwiches and “microwave
cooking” and her sister helped perform light housecleaning and laundry once a week. The ALJ
pointed out that the Function Report was inconsistent with the claimant’s testimony that she
could not perform these daily activities as she spends “most of the time” sleeping because “the
medicine has got [her] asleep.”
The claimant asserts that the ALJ improperly referenced daily activities without listing
their corresponding limitations. The claimant specifically argues that the ALJ neglected to state
that it takes the claimant “all day” to perform light housecleaning and do laundry. The claimant
also argues that the ALJ neglected to state that her cooking consists of “sandwiches and
microwave cooking.” The ALJ need not include every detail when noting her inconsistent
statements regarding her daily activities for the purpose of evaluating her credibility.
The claimant references Horton v. Barnhart to argue that an ALJ may not rely on daily
activities without stating the corresponding limitations. Horton v. Barnhart, 469 F. Supp. 2d
1041, 1044 (11th Cir. 2006). This court agrees with the findings in Horton, but distinguishes the
context of the decision.
In Horton, the ALJ stated that testimony about daily activities did not support the
claimant’s pain allegations. In the case at hand, the ALJ stated that testimony and statements on
the Function Report conflicted with each other. The inconsistencies between the statements was
one reason why the ALJ found the claimant “not credible.” This court acknowledges that
activities of daily living do not rule out the presence of disabling pain. This court also agrees that
the chief focus is determining whether the claimant can engage in gainful employment, not
whether she can perform minor household chores. Furthermore, this court agrees that an ALJ’s
description of a claimant’s activities without limitations is disingenuous when the ALJ uses those
activities to support a finding of not being disabled. However, these limitations are not relevant
when used to show that a claimant's testimony is inconsistent and unreliable. Id. Therefore, the
ALJ did not err in failing to include the “all day” time limitation and “microwave cooking”
limitation in his assessment.
Although the claimant argues that differences in the record could be attributed to an
increase in the claimant’s pain, that argument is without merit; the record shows a decrease in
pain from April 2012, during which the claimant submitted the Function Report, and August 15,
2013, when the ALJ conducted the hearing. (R. 28, 183-192). Therefore, this court agrees with
the ALJ that neither the Function Report, nor the claimant’s testimony, support her assertion that
she is unable to perform daily activities because she sleeps all day.
The ALJ then referenced the third instance of inconsistency between the claimant’s
testimony and her prior admissions or medical records; the ALJ noted that the claimant testified
to the necessity of elevating her leg as it is swollen “24/7.” However, the ALJ correctly pointed
out that no medical record supports the idea that she is medically required to elevate her leg.
Furthermore, the ALJ could find no record that a physician advised her to take regular breaks
while walking, sitting, or standing. The ALJ aptly stated that “given the claimant’s allegations of
disabling pain symptoms, one might expect to see some indication in the treatment records of
restrictions placed on the claimant by a treating physician”; however, the records did not contain
any opinions from treating or examining physicians indicating that the claimant was disabled or
had limitations greater than those determined in his decision. (R. 16, 245-320, 330-343). Thus,
the ALJ concluded that the claimant’s alleged sedentary lifestyle is restricted as a result of selfimposed limitations.
As more evidence of her inconsistencies, the ALJ noted that the claimant’s explicit
denials of adverse side effects from her medications contradicted her testimony that she suffered
from multiple side effects. The ALJ pointed to the claimant’s testimony that her medications
caused “drowsiness, nausea, headaches, dizz[iness], and ma[de] her feel like a zombie.”
However, the ALJ stated that Dr. Cosgrove’s records clearly showed the claimant’s consistent
denials of adverse side effects. (R. 16).
The ALJ only acknowledged side effects from an appointment on January 1, 2013, but
the record reflects more reported side effects; however, the ALJ correctly pointed out that the
claimant consistently denied adverse side effects. From July 2010 to May 2012, the claimant
denied any adverse side effects caused by her medications except for an appointment on
February 15, 2011, during which Dr. Cosgrove attributed “drowsiness” to the claimant’s daily
routine. Furthermore, the ALJ is required to develop the medical history for the 12 months prior
to the date the application for supplemental social security income is filed. Ellison v. Barnhart,
355 F.3d. 1272, 1276 (11th Cir. 2003). Therefore, side effects from 2007-2010 are not relevant to
a finding of disability regarding an onset date of February 28, 2012.
The court acknowledges that the claimant suffered legitimate side effects including
nausea and vomiting from August 1, 2012 to some date prior to January 1, 2013; however, the
record shows that these side effects diminished when the claimant voluntarily discontinued the
medication to which she attributed the side effects. (R. 315-320, 330-343). Therefore, this court
agrees with the ALJ that the claimant’s testimony that she has been suffering from multiple side
effects is inconsistent with medical records that show the claimant consistently denied adverse
side effects from her medications. Therefore, this court finds that the ALJ articulated several
instances of inconsistencies between the claimant’s testimony and her prior admissions or
medical records that show substantial evidence to support his findings regarding the claimant’s
Nature of the Claimant’s Treatment
The ALJ found the claimant’s treatment to be conservative and inconsistent with claims
of continual debilitating pain. The ALJ referenced medical records from 2011 to 2013, which
showed that the claimant’s “pain management treatment” consisted only of medications. He also
pointed to the routine pattern of appointments, generally pre-scheduled three months apart; the
ALJ observed that the appointments were generally “follow-ups” and for routine refills of the
same medication. (R. 266-320, 330-343). This court finds that the claimant’s treatment,
frequency of appointments, and general purpose of the appointments support the ALJ’s finding
that the treatment was routine and conservative in nature; furthermore, this court agrees with the
ALJ that routine and conservative treatment is inconsistent with claims of severe pain.
The ALJ also considered the inconsistency between the treatment’s general success and
the claimant’s allegation of intense chronic pain. The claimant asserts that the ALJ failed to
consider “longitudinal medical records,” and instead, relied on isolated events for this finding.
(R. 5). This court disagrees and finds that the ALJ analyzed the “totality of the record” in
applying the Pain Standard and that substantial evidence supports his findings.
The ALJ has a duty to reflect a full record in making credibility determinations. An
ALJ’s credibility determination must be more than a broad rejection of the claimant’s subjective
complaints of pain; it must be explicitly enough for a reviewing court to conclude that the ALJ
considered the claimant’s medical condition as a whole. Dyer, 395 F. 3d at 1210.
In the present case, the ALJ closely examined the claimant’s medical records. He
referenced both the nature and the results of treatment spanning 2011 to 2013; he also referenced
records from 2003 and 2007. (R. 15-16).
The ALJ closely evaluated results from these medical records between December 2011
and May 2013. He noted that in December 2011, the claimant described herself as “moderately
active” and reported that she exercised by walking, despite complaints at the hearing of
persistent pain. He also noted the claimant’s mild physical examination results. (R. 273-275).
The ALJ then referenced eight more appointments. Progress notes from each appointment
revealed pain improvement and inflammation reduction on March 6, 2012. The ALJ also pointed
to unchanged examination results and the absence of any emergency room treatment or
hospitalization during the six appointments between April 2012 and May 2013. He also
referenced progress notes from May 9, 2012 that showed that the claimant denied experiencing
pain on that day. (R. 266-268, 315-320, 330-343). The ALJ also referred to progress notes from
January 1, 2013 that showed that the claimant reported nausea as a side effect of the Mobic, but
that she voluntarily discontinued taking that medication. (R. 335-338).
The ALJ noted that the claimant consistently rated her pain as “5/10” between March
2012 and May 2013. The court acknowledges that the record actually contain small deviations
from the “5/10” pain rating; those small deviations more accurately reflect that the claimant
averaged “5.5/10” over those seven appointments. (R. 266-272, 315-320, 330-343).
The ALJ referenced the claimant’s overall health improvement between June 2003 and
October 2007. Specifically, he mentioned the claimant’s improved pain and range of motion as a
result of physical therapy and cortisone shots conducted in October 2007. See (R. 15, 240).
Although the claimant asserts that the ALJ improperly excluded relevant medical records
and did not consider the record as a whole, the ALJ specifically stated that he made his residual
functional capacity finding “after careful consideration of the entire record.” (R. 14). The ALJ
has “no rigid requirement” to “specifically refer to every piece of evidence in his decision,” as
long as the ALJ’s decision is more than a broad rejection of the claimant’s subjective complaints
of pain; the ALJ’s determination must be specific enough for a reviewing court to conclude that
the ALJ considered the claimant’s medical condition as a whole. Dyer, 395 F.3d at 1210-11.
After reviewing the ALJ’s decision and the entire medical record, this court finds that the
decision is specific enough to conclude that the ALJ considered the claimant’s medical
conditions as a whole. Furthermore, this court concludes the omitted information is not material
to the ALJ’s determination as it refers to treatment over 12 months prior to the onset date and
would not otherwise change the outcome of the ALJ’s decision. (R. 245-260).
The ALJ articulated that the claimant’s work history did not support the claimant’s
allegation that she stopped working because working was too painful. The ALJ referenced the
claimant’s Work History Report, which showed the claimant’s own admissions regarding her
work history from 1997 to 2012. This report showed that the claimant did not work between
1998 and 2000; the report also showed that, in 2008, she worked for a total of two weeks. The
ALJ then referenced the claimant’s certified earnings record, which showed her earnings
between 1997 and 2012. The ALJ pointed out that the claimant did not work consistently even
before she alleged disability. Further, he stated that the record shows that she did not work at all
for several years. The court agrees with the ALJ that the claimant’s work history and certified
earnings are sporadic and are inconsistent with claimant’s allegation that she stopped working
because of pain.
Substantial Gainful Activity in 2008
The ALJ also found the claimant’s participation in a substantial gainful activity in 2008
did not support her claim that she was disabled to the extent that it prevented her from working.
The claimant argues that the ALJ did not rely on substantial evidence when he stated that the
claimant worked in 2008 despite her condition. (R. 15). This court agrees with the claimant that
the ALJ failed to account for the claimant’s documented increase of pain.
The record contains no medical records from 2008 to substantiate the presence or lack of
pain. (R. 245-343). Furthermore, the record does not reflect pain levels prior to 2010. (R. 245258, 266-343). As a result, the court concludes a determination of the claimant’s pain level
during the year of 2008 is impossible; therefore, the court agrees with the claimant that
substantial evidence does not support this one reason given by the ALJ for discrediting the
However, this court finds that substantial evidence exists in the record for all his other
findings, such that substantial evidence supports every other reason the ALJ gave to support
discrediting the claimant’s subjective allegation of pain. This one unsupported reason does not
offset or negate the other solid reasons on which the ALJ based his determination that the
claimant is not disabled. Therefore, this court finds that the ALJ articulated several reasons for
finding the claimant “not credible” and appropriately supported his finding with substantial
For the reasons stated above, this court concludes that the ALJ correctly applied the pain
standard and that substantial evidence supports the ALJ’s decision. Accordingly, this court
AFFIRMS the decision of the Commissioner. The court will enter a separate Order to that effect
DONE and ORDERED this 4th day of August, 2016.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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