Farrington v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 2/26/2013. (AVC)
2013 Feb-26 AM 11:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DENNIS EARL FARRINGTON,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Case No.: 7:11-CV-3117-RDP
MEMORANDUM OF DECISION
Plaintiff Dennis Earl Farrington brings this action pursuant to 42 U.S.C. §§
405(g) and 1383(c) seeking review of the decision by the Commissioner of the Social
Security Administration denying his applications for Disability Insurance Benefits and
Supplemental Security Income. Based upon this court’s review of the record and the
briefs submitted by the parties, the court finds that the decision of the Commissioner is
due to be affirmed.
On March 11, 2008, Plaintiff filed an application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the
“Act”). (Tr. 28, 29, 90, 99, 102). Plaintiff claims a disability onset date of November 27,
2007 due to diabetes, rheumatoid arthritis, gout, high blood pressure, glaucoma, back
problems, and knee problems. (Tr. 120). Plaintiff’s application was initially denied by
the Social Security Administration on May 30, 2008. (Tr. 46). Plaintiff then requested
and received a hearing before Administrative Law Judge (“ALJ”) Cynthia W. Brown on
January 14, 2010. (Tr. 8-27, 51, 52). In her February 18, 2010 decision, the ALJ
determined that Plaintiff was not disabled within the meaning of the Act and thus not
eligible for DIB or SSI benefits. (Tr. 40). After the Appeals Council denied Plaintiff’s
request for review on June 23, 2011, the ALJ’s decision became the final decision of the
Commissioner. (Tr. 1). Therefore, the ALJ’s decision is a proper subject of this court’s
appellate review. 42 U.S.C. §§ 405(g), 1383(c).
Plaintiff was 42-years old at the time of the hearing and had completed his high
school education. (Tr. 12-13, 125). Plaintiff last worked as a groundsman installing
wires and setting up transformers for a utility line company. (Tr. 24, 144). Prior to that,
Plaintiff engaged in medium to heavy, semi-skilled work as a machine operator, as well
as medium, semi-skilled work as a wire drawing machine operator, and as a skidder
operator. (Tr. 144-47).
At the hearing, Plaintiff gave testimony regarding the specifics of his condition.
Concerning his visual impairments, Plaintiff testified that he is blind in his left eye with
the exception of slight peripheral vision. (Tr. 13-14). He noted that he experiences no
problems in his right eye and that he is able to drive a car. (Tr. 15, 21). Regarding his
diabetes, Plaintiff was asked if he had experienced any problems since being hospitalized
due to that condition. Plaintiff answered that he had no problems except some tingling
and numbness in his fingers and feet. (Tr. 16). When asked about his back pain, Plaintiff
testified that it might be the result of his use of crutches. (Tr. 17).
Plaintiff’s principle complaint at the hearing involved his knees and ankles. (Tr.
13, 18). Specifically, Plaintiff claimed he was having “a lot of trouble” due to a fluid
buildup in his left knee, but that his right knee was causing greater pain. (Tr. 17).
Although Plaintiff testified that he uses a cane to take weight off his knees, he clarified
that the use of a cane was neither prescribed nor recommended by a doctor. (Tr. 16).
Plaintiff also testified that his ankles hurt all the time. (Tr. 18). In general, Plaintiff
endorsed an average pain level of six to seven (6-7) out of ten (10). He further claimed
that the pain was worse on some days, and that on those days he could hardly get out of
Plaintiff testified that, due to his condition, he generally can only sit or stand in
one place for around thirty minutes and that he can only walk about two blocks without
having to sit and rest. (Tr. 18-19). Plaintiff also testified he has considerable trouble
sleeping because of frequent trips to the bathroom. (Id.). Plaintiff stated that he watches
television all day, spending two to three hours lying down, and sits for the rest of the day.
In support of his claim, Plaintiff presented medical records beginning with a 2002
entry from ophthalmologist, Dr. Michael Anderson, in which Plaintiff was diagnosed
with glaucoma. (Tr. 229). Plaintiff’s next record is from a visit to American Family
Care clinic on September 26, 2007. (Tr. 206-10). While the notes from this visit are
largely illegible, the court is able to discern that Plaintiff complained of dizziness and
constant headaches for three consecutive days. (Tr. 209).
On September 29, 2007, Plaintiff reported to the Shelby Baptist Medical Center
Emergency Room complaining of right side flank pain. (Tr. 170, 179-81). Plaintiff’s
treating physicians believed his pain was caused by a recent passage of a ureter stone.
(Tr. 179-80). On October 19, 2007, Plaintiff again reported to American Family Care
complaining of fatigue, blurry vision, and three weeks of vertigo. (Tr. 205). Later
medical records indicate Plaintiff was diagnosed with diabetes by physicians at American
Family Care, presumably on this visit. (Tr. 185).
On October 21, 2007, Plaintiff was admitted to the Shelby Baptist Medical
Central Hospital after reporting to the emergency room with complaints of nausea,
vomiting, and abdominal cramping. (Tr. 185). Plaintiff was diagnosed with diabetic
ketoacidois. (Id.). According to hospital records, Plaintiff had not been checking his
blood sugar at home. (Id). Plaintiff was treated with aggressive hydration therapy, and
records indicate his renal functioning returned to normal limits fairly soon after his
admission. (Id.). Plaintiff was discharged from the hospital on October 26, 2007 in
stable condition with elevated but improving blood sugar levels. (Id.). He was instructed
on properly taking insulin and told to obtain a primary care physician within one week.
On November 14, 2007, Plaintiff reported to American Family Care regarding a
fluid build up in his left knee. (Tr. 204). Plaintiff was seen by doctors at American
Family Care regarding this condition repeatedly on November 17, 27, and 28. (Tr. 20003). While the records from these visits are again substantially illegible, American
Family Care ultimately referred Plaintiff to an orthopedic specialist, Dr. John P.K.
Featheringill. (Tr. 213). Dr. Featheringill’s notes indicate that Plaintiff’s knee was
drained on two occasions at American Family Care and that he complained of pain at the
appointment. (Id.). Dr. Featheringill suspected Plaintiff was suffering from a gout attack.
A Social Security Disability Evaluation of Plaintiff was conducted by Dr.
Bhuwan Sharma on May 20, 2008. (Tr. 215). Dr. Sharma noted that Plaintiff endorsed a
pain level of seven (7) out of ten (10), generally, and a knee pain level of ten (10) out of
ten (10) when walking. (Id.). Plaintiff complained of similar pain in both knees, but he
indicated that the more severe pain was in his right knee. (Id.). Plaintiff also endorsed a
pain level of six (6) out of ten (10) in his lower back. (Id.) He further complained of onand-off blurred vision due to his diabetes, as well as ankle and foot pain. (Tr. 215-216).
Dr. Sharma diagnosed Plaintiff with bilateral knee arthritis accompanied by knee pain,
lower back pain, left eye visual impairment, uncontrolled diabetes, gouty arthritis, and
peripheral neuritis secondary to diabetes. (Tr. 218). He concluded Plaintiff would “have
some difficulty working in a place where he has to bend down, squat frequently or . . .
walk more than one half hour.” (Id.).
A Residual Functional Capacity Assessment (“RFC”) of Plaintiff was conducted
on May 30, 2008, by Dr. Robert H. Heilpern. (Tr. 221-28).
limitations, Dr. Heilpern concluded that Plaintiff could occasionally lift twenty (20)
pounds, frequently lift ten (10) pounds, stand and/or walk with normal breaks for about
six (6) hours in an eight (8) hour workday, sit with normal breaks for about six (6) hours
in an eight (8) hour workday, and that Plaintiff required no limitations on pushing and/or
pulling. (Tr. 222). Regarding postural limitations, Dr. Heilpern concluded that Plaintiff
could perform acts requiring occasional climbing, balancing, stooping, kneeling,
crouching, and crawling, but no activities requiring ladders, ropes, or scaffolds. (Tr.
Dr. Heilpern concluded that Plaintiff established no manipulative, visual, or
communicative limitations, and that Plaintiff’s only environmental limitations were to
avoid unprotected heights and hazardous machinery.
indicated that he gave some weight to Dr. Sharma’s report. (Tr. 227). He further
indicated that he found Plaintiff’s subjective claims regarding his condition to be
partially credible. (Tr. 226).
Plaintiff was seen again by American Family Care on March 24, 2009. (Tr. 196).
Again, and unfortunately, notes from this visit are substantially illegible. Plaintiff was
referred by American Family Care to a urologist, Dr. Scott Kelly. (Tr. 160). Dr. Kelly
noted that Plaintiff had an elevated PSA level. (Tr. 163).
When asked why his medical records contained large gaps without medical visits,
Plaintiff testified that he was under the impression he was uninsured after losing his job
in 2007, but learned in 2008 that he was covered by his estranged wife’s policy. (Tr. 22).
When the ALJ inquired why Plaintiff’s records were still limited after he discovered that
he was covered by his wife’s policy, Plaintiff answered that he does not like to visit
doctors unless his pain is unbearable. (Tr. 22-23).
The ALJ’s Decision
Claimants under DIB and SSI must prove “disability” within the meaning of the
Act, which defines disability in virtually identical language for both programs. 42 U.S.C.
§§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(a).
Therefore, claims for DIB and SSI are treated identically for the purpose of determining
whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir.
1986). 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), 1382c(a)(3)(A). “Substantial gainful activity” is work that involves
significant physical or mental activities done for pay or profit. 20 C.F.R. § 404.1572. A
“physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities, which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner employs a five-step, sequential evaluation process to
determine whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920.
First, the ALJ must determine whether the claimant is engaging in substantial gainful
activity. 20 C.F.R. § 404.1520(b). “Substantial work activity” is work activity that
involves performing significant physical or mental activities. 20 C.F.R. § 404.1572(a).
“Gainful work activity” is work that is done for pay or profit. 20 C.F.R. § 404.1572(b).
If the ALJ finds that the claimant engages in substantial gainful activity, then the
claimant cannot claim disability.
Second, the ALJ must determine whether the claimant has a medically
determinable impairment or a combination of medical impairments that is “severe.” 20
C.F.R. §§ 404.1520(c), 416.920(c).
Absent such impairment, the claimant may not
Third, the ALJ must determine whether the claimant’s impairment meets or
medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P,
Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are
met, the claimant is declared disabled. If the claimant does not fulfill the requirements
necessary to be declared disabled under the third step, the ALJ may still find disability
under the next two steps of the analysis. Before proceeding to steps four and five, the
ALJ must first determine the claimant’s residual functional capacity (“RFC”), which
refers to the claimant’s capacity to work despite his impairments. 20 C.F.R. §
404.1520(e); Phillips v. Barnhart, 357 F.3d 1232, 1238-39 (11th Cir. 2004).
In the fourth step, the ALJ determines whether the claimant has the RFC to
perform past relevant work. 20 C.F.R. 404.1520(f). If the claimant is determined to be
capable of performing past relevant work, then he is deemed not disabled. If the ALJ
finds the claimant unable to perform past relevant work, then the analysis proceeds to the
fifth and final step.
In the final step of the analysis, the ALJ must determine whether the claimant is
able to perform any other work commensurate with his RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof, which rests on the
claimant through step four, shifts to the ALJ to prove the existence, in significant
numbers, of jobs in the national economy that the claimant can do given his RFC, age,
education, and work experience. 20 C.F.R. §§ 404.1512(g), 404.1560(c); Phillips, 357
F.3d at 1241 n.10. The ALJ can either use the Medical Vocational Guidelines (“the
Grids”) or hear testimony from a vocational expert (“VE”) in making this determination.
Id. at 1239-40.
Regarding steps one through three, the ALJ found that Plaintiff: (1) had not
engaged in substantial gainful activity since November 27, 2007 and met the insured
status requirements of the Act through December 31, 2012; (2) has the following severe
impairments: diabetes mellitus, osteoarthritis bilaterally of the knees, gouty arthritis, and
a left eye visual impairment; but (3) does not have impairments that meet or medically
equal the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 35-36).
Before proceeding to steps four and five, the ALJ reached an RFC determination,
finding that “[Plaintiff] has the residual functional capacity to perform sedentary work as
defined in 20 CFR [§§] 404.1567(a) and 416.967(a) except he can occasionally balance,
stoop, kneel, crouch, or crawl; he should avoid unprotected hazards; and he has no
binocular vision.” (Tr. 36). In making this determination, the ALJ indicated that he gave
great weight to the assessment by Dr. Sharma, the examining physician. (Tr. 38). The
ALJ noted that while she considered the findings of Dr. Heilpern, she gave those findings
less weight because Dr. Heilpern did not have the benefit of additional evidence
submitted after the RFC assessment, nor the benefit of hearing Plaintiff’s testimony.
Regarding Plaintiff’s claims about his vision, the ALJ considered Plaintiff’s
testimony that he was capable of driving as evidence that his vision was adequate. (Id.).
The ALJ noted that while Plaintiff alleged disabling pain, he rarely sought treatment even
after discovering he was insured through his estranged wife’s policy. (Id.). The ALJ
concluded that Plaintiff’s medically determinable impairments could reasonably be
expected to cause his alleged symptoms; however, she further concluded that Plaintiff’s
allegations regarding the intensity, persistence, and limiting effects of his symptoms were
not credible to the extent they were inconsistent with the ALJ’s stated RFC assessment.
After determining Plaintiff’s RFC, the ALJ proceeded to step four of the
disability determination and concluded that Plaintiff was unable to return to his past
relevant work. (Tr. 38). In the final step of the analysis, step five, the ALJ determined
that—given Plaintiff’s age, education, work experience, and RFC—there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform. (Tr.
39). The ALJ’s determination was based upon the testimony of the VE. (Id.). Thus, the
ALJ ruled Plaintiff was not disabled as defined by the Act and not entitled to DIB or SSI
benefits. (Tr. 29-30).
Plaintiff’s Argument for Remand or Reversal
Plaintiff submits that “the ALJ failed to apply the Eleventh Circuit pain standard
to the facts of [his] claim.” (Pl.’s Mem. at 4). The facts of this claim, Plaintiff states, are
that (1) he “testified to peripheral neuritis secondary to diabetes,” (2) “also suffers from
left knee effusion with gout,” and (3) there were “also allegations of vertigo which were
not considered by the ALJ as a severe impairment.” (Id.).
Standard of Review
Judicial review of disability claims under the Act is limited to whether the
Commissioner’s decision is supported by substantial evidence or whether the correct
legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must review
the final decision as a whole and determine if the decision is reasonable and supported by
substantial evidence. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Title 42 U.S.C. § 405(g)
mandates that the Commissioner’s findings are conclusive if supported by “substantial
evidence.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
Substantial evidence is more than a scintilla, but less than a preponderance; it is
“such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); see also Martin
v. Sullivan, 894 F.2d at 1529. If supported by substantial evidence, the Commissioner’s
factual findings must be affirmed, even if the record preponderates against the
Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th
Cir. 2004); see also Martin, 894 F.2d at 1529. Legal standards are reviewed de novo.
Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005).
Plaintiff argues that the ALJ failed to properly apply the Eleventh Circuit pain
standard because he failed to address (1) Plaintiff’s testimony regarding peripheral
neuritis secondary to diabetes, (2) Plaintiff’s allegations of vertigo, and (3) Plaintiff’s
allegations of pain resulting from and effusion of his left knee. (Pl.’s Mem. at 4). For
the following reasons, the court finds that none of these arguments have merit.
Peripheral Neuritis Secondary to Diabetes
Plaintiff does not cite any part of the record where he testified to peripheral
neuritis secondary to diabetes, but the court has scoured the record and found one section
of Plaintiff’s direct examination by his attorney that is relevant:
Okay. Any problems – I see here you’ve
been diagnosed with diabetes and you had
an acidosis where I guess the blood sugar
drops really low.
Any problems with the diabetes since them?
Any type of problems related to it?
No, not really. I mean I have a lot of tingling
and stuff in my fingers.
Where do you have – okay. In your fingers?
Fingers and feet, that numbness or whatever
you would say. But I kind of – I kind of
keep a watch on it. Try to.
(Tr. 16). The hole in Plaintiff’s argument that his testimony regarding the tingling in his
fingers and feet amounts to an allegation of disabling pain is this – Plaintiff did not
testify at the hearing that this symptom caused disabling pain. Plaintiff testified that he
was “not really” experiencing any problems with his diabetes and that he “keep[s] a
watch on it.” Plaintiff has offered no explanation as to how this testimony ought be
construed as an allegation of disabling pain. In the absence of any testimony or evidence
that Plaintiff actually is experiencing disabling pain, this argument must fail. An ALJ
cannot be expected to evaluate testimony that was never given.
Similarly, Plaintiff’s argument that the ALJ failed to consider his allegations of
vertigo misses the mark. It is true that the ALJ did not find Plaintiff’s vertigo to
constitute a severe impairment (Tr. 35), but Plaintiff never alleged that it is a severe
impairment. In fact, Plaintiff never alleged that he suffers from vertigo. (See Tr. 10-27).1
It is emphatically the duty of the claimant to prove that he is disabled. See Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (“Nevertheless, the claimant bears the
burden of proving that he is disabled, and, consequently, he is responsible for producing
evidence in support of his claim.”). If a claimant has reason to believe he qualifies for
Social Security Disability Benefits, he must articulate those reasons to the ALJ at the
Nonetheless, the ALJ did take Plaintiff’s vertigo into account based on Plaintiff’s medical records when she
made her RFC determination. (Tr. 37).
hearing, not on appeal. See Wheeler v. Heckler, 784 F.2d 1073, 1077 (11th Cir.1986)
(issues not raised during administrative proceedings shall not be considered for the first
time on appeal). Plaintiff did not allege that his vertigo constituted a severe impairment
or caused disabling pain; he did not even mention having vertigo at all either at the
hearing (Tr. 10-27) or in his Disability Determination Service Questionnaire (Tr. 13742). Therefore, the court cannot consider this argument.
Left Knee Pain
Finally, Plaintiff argues that the ALJ failed to properly apply the Eleventh Circuit
pain standard when evaluating his subjective complaints of chronic pain and swelling in
his knee. (Pl.’s Mem. at 6). Such pain, Plaintiff suggests, severely curtails his daily
activities to the point where he “need[s] to lie down for two or three hours on an average
day.” (Id.) (citing Tr. 20).
Unfortunately for Plaintiff, the record suggests otherwise:
How about bending? Not to pick something
up, just the act of bending over, does that
give you any problems?
Yeah, my – I mean I’m – I have the pain,
like I say, in my back. But, I mean, I can
bend over though.
Sleeping at night?
Probably about the first three hours, then
after that I’m up almost every hour on the
hour using the bathroom.
And then why is that?
Using the bathroom.
Do you ever have to lie down during the day?
Yeah. That’s mostly what I do. I just kind of
lie down, sit around just watching TV.
That’s mostly what I do.
How much time do you think you’re
spending lying down as opposed to sitting
Probably two or three hours a day. I mean
I’m just in front of the TV mostly all day.
(Tr. 20). Contrary to Plaintiff’s representations before this court (Pl.’s Mem. at 6),
Plaintiff did not tell the ALJ that debilitating knee pain forced him to lie down for two or
three hours on an average day. The section of the transcript Plaintiff cites in support of
this allegation actually shows that Plaintiff reported pain in his back, which he indicated
was not disabling pain. (Tr. 20). More importantly, Plaintiff did not allege at the hearing
that he needed to lie down for two or three hours on an average day, but that he would
typically lie down or sit around for two to three hours a day to watch television. (Id.).
Because this particular argument – that the alleged pain in Plaintiff’s knees compelled
him to lie down for two to three hours a day – was not presented before the ALJ, it would
be inappropriate for the court to consider this matter here. See Wheeler, 784 F.2d at
Putting aside this creative reinterpretation of the record, Plaintiff did in fact allege
disabling knee pain at the hearing.2 (Tr. 16-18). The question before this court is
therefore whether the ALJ properly applied the Eleventh Circuit pain standard in
evaluating Plaintiff’s allegations of pain.
Plaintiff neglected to cite any testimony in the record concerning knee pain, but the court has carefully
scrutinized the entire record to ensure that nothing has fallen through the cracks.
The Eleventh Circuit has long established that a claimant seeking to show
disabling pain must present (1) evidence of an underlying medical condition and (2)
either objective medical evidence that confirms the severity of the alleged pain arising
from that condition or that the objectively determined medical condition is of such a
severity that it can be reasonably expected to give rise to the alleged pain. Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Hand v. Heckler, 761 F.2d at 1548
(quoting S.Rep. No. 466 at 24); see also Landry v. Heckler, 782 F.2d 1551, 1553 (11th
Cir. 1986). If the ALJ finds that a claimant has met this threshold requirement, the ALJ
may still discredit a claimant’s subjective allegations of disabling pain, but the ALJ
“must clearly articulate explicit and adequate reasons for discrediting the claimant’s
allegations.” Dyer v Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); see also Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991), Foote v. Chater, 67 F.3d 1553, 1561-62
(11th Cir. 1995).
Failure to articulate the reasons for discrediting subjective pain
testimony requires, as a matter of law, that the testimony be accepted as true. Holt, 921
F.2d at 1223; Cannon v. Bowen, 858. F.2d 1541, 1545 (11th Cir. 1988).
In the instant case, the ALJ found that Plaintiff does have medically determinable
impairments that could reasonably be expected to cause the alleged symptoms, thus
satisfying the threshold requirement. (Tr. 38). The ALJ, however, discredited Plaintiff’s
statements concerning the intensity, persistence and limiting effects of these symptoms.
(Id.). The primary reason the ALJ articulated for discrediting Plaintiff’s pain testimony
is that Plaintiff “has rarely sought medical treatment.” (Id.). Plaintiff stated at the
hearing that the reason he did not seek medical attention is because he thought he was
uninsured. (Tr. 22). The transcript of the hearing sheds further light on this issue:
Mr. Farrington, I didn’t understand what
you were saying about insurance. You said
that you weren’t covered in 2008, but then
you were covered under your wife’s
See, we’re separated. I’ve been separated for
around six years now. I thought that after,
you know, after we separated I thought she
took me off her insurance. She had me on
her insurance, because I just had insurance
through my job. So after we played out, you
know the insurance played out. And at the
time, I didn’t know that, you know. She’s
the – she works through like the state
billing, kind of like the board. So she
actually kind of took me off her insurance
unless we get the divorce. I didn’t know it at
the time that I was still covered.
So when did you find out that you are
Like probably the last of 2008, somewhere
in there. My daughter, she let me know.
So are you still covered?
Yes, I am covered now. We haven’t gotten a
So once you found out in 2008 that you
were still covered, why didn’t you go to the
Well, at the time I really just – I wasn’t – I
was about like I am now. So, I mean, I don’t
like to go to the doctor. I don’t like needles.
But I have to do it. So, I just kind of – I just
tough it out. I don’t go to the doctor unless
in a – actually I have to, unless the pain get
to where I can’t bear it.
(Tr. 22-23). Given his statement that he only sees the doctor when the pain is actually
unbearable, and the fact that there are conflicts in Plaintiff’s testimony regarding his
marital status and his insurance status, it was for the ALJ to judge the credibility of
Plaintiff’s testimony, and it is emphatically not for this court to make (or second guess)
such credibility findings. Wilson v. Barnhart, 284 F.3d at 1221. The ALJ has made her
credibility determinations to support her findings, and those findings are supported by
substantial evidence. They are, therefore, due to be affirmed. See Crawford v. Comm’r
of Soc. Sec., 363 F.3d at 1159 (11th Cir. 2004).
The court concludes that the ALJ correctly followed the Eleventh Circuit pain
standard and her reason for discrediting Plaintiff’s subjective pain testimony is supported
by substantial evidence. Therefore, the Commissioner’s decision is due to be affirmed
and a separate order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this
day of February, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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