Turner v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/30/2016. (KEK)

FILED
2016 Sep-30 AM 11:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JANICE SOUTHALL TURNER,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

Case No. 7:15-cv-00821-JHE

MEMORANDUM OPINION1
Plaintiff Janice Southall Turner (“Turner”) seeks review, pursuant to 42 U.S.C. § 405(g),
§ 205(g) of the Social Security Act, of a final decision of the Commissioner of the Social
Security Administration (“Commissioner”), denying her application for a period of disability and
disability insurance benefits (“DIB”). (Doc. 1). Turner timely pursued and exhausted her
administrative remedies. This case is therefore ripe for review under 42 U.S.C. § 405(g). The
undersigned has carefully considered the record and, for the reasons stated below, the
Commissioner’s decision is AFFIRMED.
I. Factual and Procedural History
Turner filed her application for a period of disability and DIB in October 2011, initially
alleging she became unable to work beginning May 8, 2010. (Tr. 130) She later amended her
claim to allege disability beginning January 1, 2011. (Tr. 13). Turner was a forty-five year old
female on June 26, 2013, her hearing date. (Tr. 35). Turner has a high school education as well

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 13).
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as training to be a certified nurse’s aide. (Tr. 165). Turner’s past relevant work was as a sexton,
packaging machine operator, certified nurse’s assistant, and caregiver. (Tr. 23, 63-64). The
Agency initially denied Turner’s application and Turner requested a hearing, where she appeared
in June 2013. (Tr. 31-71). After the hearing, the Administrative Law Judge (“ALJ”) denied
Turner’s claim on August 30, 2013. (Tr. 13-24). Turner sought review by the Appeals Council,
but it denied her request on March 13, 2015. (Tr. 1-3). On that date, the ALJ’s decision became
the final decision of the Commissioner. On March 18, 2015, Turner initiated this action. (See
doc. 1).
II. Standard of Review2
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This Court
must “scrutinize the record as a whole to determine if the decision reached is reasonable and
supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.”

Id. It is “more than a scintilla, but less than a

preponderance.” Id.
This Court must uphold factual findings supported by substantial evidence. However, it
reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches to the

2

In general, the legal standards applied are the same whether a claimant seeks DIB or
Supplemental Security Income (“SSI”). However, separate, parallel statutes and regulations
exist for DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to
the appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
2

ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528,
531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the law, or if the ALJ
fails to provide the court with sufficient reasoning for determining the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder.3

The Regulations define “disabled” as “the inability to do any

substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve (12) months.” 20 C.F.R. § 404.1505(a). To
establish entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national

3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
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economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant
has satisfied steps One and Two, she will automatically be found disabled if she suffers from a
listed impairment. If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant can perform some other
job.” Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show such work exists in the national economy in significant
numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Turner last met the insured status requirements of the Social
Security Act on December 31, 2015 (her date last insured or “DLI”) and Turner had not engaged
in substantial gainful activity after her alleged onset date of January 1, 2011. (Tr. 15-16).4 At
Step Two, the ALJ found Turner has the following severe impairments: cervical degenerative
disc disease; cardiomyopathy; asthma; migraines; depression; and anxiety (20 C.F.R. §
404.1520(c)). (Tr. 15). At Step Three, the ALJ found Turner did not have an impairment or

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In his decision, the ALJ states “The claimant has engaged in substantial gainful activity
since January 1, 2011, the amended alleged onset date.” (Tr. 15) (emphasis added). However,
the ALJ makes no further mention of substantial gainful activity and continues with his analysis
of Turner’s claim. Additionally, the Acting Commissioner’s brief states that the ALJ found that
Turner “had not engaged in substantial gainful activity since January 1, 2011.” (Doc. 10 at 2)
(emphasis added). Based on these circumstances, the undersigned treats the absence of “not” in
the ALJ’s finding as a clerical error.
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combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16).
Before proceeding to Step Four, the ALJ determined Turner’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined that, through her DLI, Turner had the RFC
to perform medium work as defined in 20 C.F.R. 404.1567(c)
except she can frequently balance, stoop, kneel, crouch, crawl, and
climb ramps and stairs. The claimant can never climb ladders,
ropes, or scaffolds or be exposed to unprotected heights. She
would need a temperature controlled environment with only
occasional exposure to extreme cold or heat. She should have no
more than occasional exposure to pulmonary irritants, such as
fumes, odors, dust, gases, or poorly ventilated areas. She can
understand, remember, and carry out simple instructions for two
hour periods with normal breaks to complete an eight-hour day.
She can perform occasional decision making and handle occasional
changes in the work setting that are gradually introduced and wellexplained. She can maintain occasional interaction with the
public, co-workers, and supervisors.
(Tr. 18).
At Step Four, the ALJ determined that, through the date last insured, Turner is unable to
perform any past relevant work. (Tr. 23). At Step Five, the ALJ determined, based on Turner’s
age, education, work experience, and RFC, jobs exist in significant numbers in the national
economy that Turner could perform, including bakery worker, mail sorter, and sorter. (Tr. 2324). Therefore, the ALJ determined Turner has not been under a disability and denied her claim.
(Tr. 24).
V. Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or if improper legal standards were applied, “[t]his does not relieve the
court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial
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evidence supports each essential administrative finding.” Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)). The
court, however, “abstains from reweighing the evidence or substituting its own judgment for that
of the [Commissioner].” Id. (citation omitted).
Turner argues that the ALJ improperly assigned little credibility to the opinions of
Turner’s treating neurologist, Dr. Diane Counce, and Turner’s treating primary care physician,
Dr. Donald Kwong. (Doc. 9 at 6). Turner also contends that the ALJ improperly ignored the
Eleventh Circuit’s pain standard in assigning little credibility to Turner’s own testimony. (Doc.
9 at 10).
A. The ALJ Properly Evaluated the Opinions of Turner’s Treating Physicians
Turner argues it was improper for the ALJ to assign little weight to the opinions of Dr.
Counce and Dr. Kwong because the ALJ failed to develop the record to resolve inconsistencies
between their opinions and other evidence. (Doc. 9 at 6). By rejecting those opinions, Turner
claims the ALJ improperly substituted his own diagnostic impressions for those of the physicians
and “played doctor.” (Id. at 7). Turner argues any perceived inconsistencies could have been
resolved had the ALJ used one of the methods contained in 20 C.F.R. § 404.1520b(b) and (c) to
further develop the record, which Turner states is required when a medical source opinion
conflicts with other evidence. (Id. at 6-7).
A treating physician’s opinion “‘must be given substantial or considerable weight unless
‘good cause’ is shown to the contrary.’” Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir.
2004) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (holding that the ALJ
must clearly articulate the reasons for giving less weight to the opinion of a treating physician)).
The weight to be afforded a medical opinion regarding the nature and severity of a claimant’s

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impairments depends, among other things, upon the examining and treating relationship the
medical source had with the claimant, the evidence the medical source presents to support the
opinion, how consistent the opinion is with the record as a whole, and the specialty of the
medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d). Furthermore, “good cause” exists for
an ALJ not to give a treating physician’s opinion substantial weight when the: “(1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips, 357 F.3d at 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440);
see also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).
As a preliminary matter, Turner is incorrect when she states 20 CFR § 404.1520b(b) and
(c) impose a duty on an ALJ faced with inconsistent evidence to “fully develop the record to
attempt to resolve those inconsistencies.” (Doc. 9 at 6). Although an ALJ has an obligation to
fully and fairly develop the record, the regulations Turner cites do not impose on an ALJ a duty
to take any additional actions at all to resolve inconsistencies in the record. See Cates v. Colvin,
No. 4:14-CV-01866-LSC, 2016 WL 48161, at *6 (N.D. Ala. Jan. 5, 2016) (“An ALJ has many
options, but no affirmative requirements, for settling an inconsistency or insufficiency in a
claimant's medical record.”). An ALJ has discretion to investigate further when his or her efforts
to “weigh the relevant evidence and see whether [he or she] can determine whether you are
disabled based on the evidence we have” fail.

20 CFR § 404.1520b(b).

The regulations

explicitly contradict Turner’s claim; rather than being required to investigate further in the case
of inconsistent evidence, an ALJ may investigate further “[i]f after weighing the evidence we
determine we cannot reach a conclusion about whether you are disabled.”

20 CFR

§ 404.1520b(c). Turner cites Carrill v. Barnhart, 201 F. Supp. 2d 1190 (N.D. Ala. 2002) for the

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proposition an ALJ must develop the record further in an effort to resolve problems with medical
opinions before discounting them. In Carrill, the ALJ rejected the only medical evidence
relating to the claimant’s mental health impairment in concluding that the claimant was not
disabled due to that impairment. Id. at 1191. This case is distinguishable, because here the
record contained other medical evidence against which the ALJ weighed the opinions of
Turner’s treating physicians, as discussed further below.
Turner suggests the ALJ “played doctor” by substituting his diagnostic impressions for
those of the treating physicians and supports this by citing Bennett v. Barnhart, 288 F. Supp. 2d
1246 (N.D. Ala. 2003). In Bennett, the ALJ determined the plaintiff could not be in disabling
pain because no surgery was recommended for her complaints, relying on “no medical evidence
of record” for this conclusion. Id at 1251. Here, as discussed in more detail below, the ALJ
considered conflicting evidence, including medical evidence, in assigning weight to Turner’s
treating physicians’ medical opinions. The remainder of the list of cases Turner cites to bolster
her contention in fact refute it; in each case, unlike the situation here, the ALJ either rejected the
only medical evidence in the record or made an on-the-spot diagnosis. See Carlisle v. Barnhart,
392 F. Supp. 2d 1287, 1294 (N.D. Ala. 2005) (“The ALJ rejected the only PCE and pain
assessment in the record.”); Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (improper
for ALJ to base his determination on his own assessment of what symptoms a claimant ought to
manifest at the hearing); Wilder v. Chater, 64 F.3d 335, 337 (7th Cir. 1995) (ALJ erred in going
“against the only medical evidence in the case,” although an ALJ “is not required or indeed
permitted to accept medical evidence if it is refuted by other evidence—which need not itself be
medical in nature[.]”).
1. Dr. Counce’s Opinion Was Properly Assigned Little Weight

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Dr. Counce treated Turner several times for migraine headaches between 2007 and 2013.
(See tr. 391-428). On August 16, 2013, she issued a medical source statement opining Turner
experienced fifteen headaches per month of up to two weeks in duration. (Tr. 472-76). Dr.
Counce further stated Turner would not be able to perform basic work activities when
experiencing a headache, would require 1-2 unscheduled breaks per day, would be absent from
work approximately three times per month, and needed a workplace with various headacherelated environmental requirements. (Tr. 474). The ALJ assigned little weight to this opinion,
stating it was inconsistent with both Dr. Counce’s treatment notes and Turner’s activities of daily
living. (Tr. 21). Beyond her general argument the ALJ had a duty to develop the record further
to resolve these inconsistencies, Turner makes no specific claims why the ALJ’s assessment of
Dr. Counce’s opinion was erroneous.
Although the ALJ stated Dr. Counce’s opinion was inconsistent with Turner’s activities
of daily living, he made no specific mention of which activities created this inconsistency. In
support of the ALJ’s finding, the Commissioner points to Turner’s November 2011 function
report, in which Turner reported taking care of her one-year-old son; preparing frozen dinners
and sandwiches daily; no problems with personal care; the ability to drive a car; performing
“some cleaning and laundry” with limited lifting; paying bills; counting change; handling a
savings account; using a checkbook; no problems getting along with family, friends, or
neighbors; following written instructions “very well”; and “good” ability to handle changes in
routine. (Doc. 10 at 7). Not only does the ALJ himself cite none of these activities in connection
with Turner’s migraines, it is difficult to tell which of these activities actually conflict with Dr.
Counce’s opinion.

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The ALJ was on firmer footing in citing inconsistencies between Dr. Counce’s treatment
notes and her opinion. During the course of Turner’s treatment, Dr. Counce prescribed various
medications for Turner. On December 21, 2011, Turner reported Zofran was effective. (Tr.
401). On February 2, 2012, Turner reported less intense headaches, which occurred monthly
around her menstrual cycle; Anaprox helped with these. (Tr. 398). On March 6, 2013, Turner
complained of more headaches, although she was not on any medication at the time. (Tr. 395).
Dr. Counce prescribed Imitrex. (Id.). On April 30, 2013 (Turner’s last visit before Dr. Counce’s
August 2013 opinion), Turner stated her headaches were better and Imitrex had curbed the pain
when she experienced a severe headache. (Tr. 391).
Turner’s history with Dr. Counce was characterized by seeking treatment, being
prescribed medication, and reporting fewer or less intense headaches which were effectively
treated by medication. The ALJ noted Dr. Counce’s August 2013 opinion offered a “fair to
good” prognosis with medication compliance and no side effects from Turner’s medication, yet
also suggested Turner experienced multiple protracted and debilitating headaches every month.
(Tr. 21, 474). Disregarding the ALJ’s nebulous reference to Turner’s unspecified conflicting
daily activities, the inconsistencies between Dr. Counce’s treatment notes and her August 2013
opinion provided independent good cause for the ALJ to afford this opinion less than controlling
weight.
2. Dr. Kwong’s Opinion Was Properly Assigned Minimal Weight
Turner argues the ALJ erred by assigning minimal weight to Dr. Kwong’s assessment
Turner could not sit or stand sufficiently to complete an eight-hour workday, required a back
brace, and was restricted to lifting and carrying less than ten pounds. (Doc. 9 at 9; Tr. 480-82).
Turner states it was improper for the ALJ to assign minimal weight to Dr. Kwong’s report

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because the ALJ merely speculated Dr. Kwong’s opinion “appear[s] to rely substantially upon
the claimant’s report and not the available objective evidence.” (Doc. 9 at 9). Turner claims the
ALJ could have recontacted Dr. Kwong to determine what he in fact relied upon, but instead
made that finding without evidence. (Id.).
Turner is mistaken an ALJ must have absolute certainty that a physician’s opinion is
based on a claimant’s subjective report—to the point where the ALJ must recontact a physician
for proof—in order to discount it. An ALJ may consider as a factor weighing in favor of
discounting a physician’s opinion whether it appears to be based on subjective evidence of pain.
See Freeman v. Barnhart, 220 Fed. Appx. 957, 960 (11th Cir. 2007) (per curiam) (unpublished)
(citing Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)). Here, the ALJ
determined Dr. Kwong’s opinion was based on Turner’s subjective report in part because Dr.
Kwong had no treatment history with Turner on her complaints of cervical stenosis and lumbago;
this was her “first visit” for those problems. (Tr. 21, 477). Also, Dr. Kwong’s recommendations
conflicted with the objective medical evidence. Dr. Kwong recommended Turner use a back
brace, but there was no underlying condition to support that requirement. (Tr, 21). The ALJ
referenced his prior finding at Step Two, when he considered Turner’s claimed lumbago and
concluded it was not a severe impairment:
Additionally, the clinical notes indicate a prior history of lumbago
(Exhibit 12F). However, the available objective medical evidence
does not establish an underlying medical condition, which would
reasonably account for these symptoms. X-rays of the claimant’s
lumbar spine performed on October 14, 2011, revealed there was
normal alignment with no fracture or subluxation (Exhibit 13F).
Magnetic resonance imagining (MRI) of the claimant’s
lumbosacral spine taken on March 21, 2013, which was interpreted
by Camillo Gomez, M.D., showed both that the spinal cord was of
normal size and the disc spaces were also well maintained. Indeed,
Dr. Gomez classified the MRI findings as normal. Accordingly,
the undersigned finds there is not a medically determinable
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impairment supported by objective evidence that would result in
lower back pain.
(Tr. 16, 21-22).
Dr. Kwong’s opinion was not bolstered by the evidence, and the ALJ had good cause to
discount it.
Turner contends even if Dr. Kwong based his opinion on Turner’s subjective report rather
than objective evidence, the ALJ should still credit Dr. Kwong’s recommendations for mitigating
Turner’s alleged disabilities. (Doc. 9 at 9). Turner relies on the Eleventh Circuit’s pain standard
to support this contention. (Id. at 10). In other words, Turner argues the ALJ should credit Dr.
Kwong because the ALJ should believe Turner’s testimony. This is, if not quite circular,
essentially part of Turner’s argument the ALJ improperly discounted her testimony, which the
Court addresses below.
B. The ALJ Properly Discredited Turner’s Testimony
Turner argues the ALJ improperly discredited her subjective testimony regarding her pain
and that this rejection was inconsistent with the Eleventh Circuit’s pain standard. (Doc. 9 at 12).
Where, as here, a claimant attempts to establish disability through his or her own testimony of
pain or other subjective symptoms, the Eleventh Circuit “has established a three part ‘pain
standard.’” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991). The pain standard requires
(1) evidence of an underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be reasonably expected to give rise
to the alleged pain.” Id. Subjective testimony supported by medical evidence satisfying the
standard is sufficient to support a finding of disability. Id. However, the ALJ may still make a
credibility determination on the claimant’s statements about the intensity and effect of that pain.
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See Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Hogard v. Sullivan, 733 F.Supp.
1465, 1469 (M.D. Fla. 1990). The ALJ’s adverse credibility determination must be supported by
“explicit and adequate reasons,” Holt, 921 F.2d at 1223, and substantial evidence, see Foote, 67
F.3d at 1561-62. An ALJ’s clearly articulated credibility determination will not be disturbed if
supported by substantial evidence. Petteway v. Comm’r of Soc. Sec., 353 Fed. App’x. 287, 288
(11th Cir. 2009).
When evaluating the credibility of a plaintiff’s statements regarding the intensity,
persistence, or limiting effects of his symptoms, the ALJ considers all available subjective and
objective evidence. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1); S.S.R. 96-7p. This may include
the nature of a plaintiff’s symptoms, the effectiveness of medication, her method of treatment,
her activities, and any conflicts between a plaintiff’s statements and the rest of the evidence.
20 C.F.R. §§ 404.1529(c)(3) & (4), 416.929(c)(3) & (4). If an ALJ discredits a claimant’s
subjective complaints, “he must articulate explicit and adequate reasons for doing so.” Wilson v.
Comm’r of Soc. Sec., 284 F.3d 1219, 1225 (11th Cir. 2002). “[I]f a credibility determination is
inadequate, a remand to the agency for further consideration is the proper remedy.” Carpenter v.
Astrue, No. 8:10-CV-290-T-TGW, 2011 WL 767652 (M.D. Fla. Feb. 25, 2011). See also
Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 835 (11th Cir. 2011) (retreating from
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986), based on the prior precedent rule,
and remanding to the agency).
After considering the evidence presented, the ALJ found Turner’s impairments could
cause the alleged symptoms; however, the ALJ found her statements were not credible. (Tr. 2021). Specifically, the ALJ found Turner’s testimony about her physical limitations conflicted
with both the objective medical evidence and the record as a whole. (Tr. 20). Turner challenges

13

the adequacy of what she appears to concede are two of the ALJ’s specifically articulated
reasons for discrediting Turner’s testimony about her physical difficulties: Turner’s activities in
her past work and that she “lived and functioned independently while caring for three children.”
(Doc. 9 at 10).
Turner states evidence of her activities in her previous jobs conflict with the ALJ’s
determination that Turner is unable to perform her past work. (Id.). Turner cites no authority for
the proposition an ALJ may not consider a claimant’s reasons for leaving previous work in
analyzing that claimant’s credibility and misstates the ALJ’s reference to her previous work. In
context, the ALJ notes Turner did not leave either her job at the spice factory or her job as a sitter
because of a change in her exertional abilities. (Tr. 20). Turner left her job at the spice factory
due to her pulmonary issues and her job as a sitter due to the death of the patient whom she was
looking after. (Id.). The ALJ also observed there was no evidence in the record to indicate a
change in Turner’s exertional abilities since leaving her job as a sitter, where Turner frequently
lifted 25 pounds. (Tr. 20, 191). The ALJ was not forbidden from finding this cut against
Turner’s claims about her pain’s limitations on her physical abilities. It was not improper for the
ALJ to discredit Turner’s testimony on this basis, and his decision to do so was supported by
substantial evidence.
Turner offers Hogard v. Sullivan, 733 F. Supp. 1465 (M.D. Fla. 1990), to argue that an
ALJ may not use the fact that a claimant raised children to reject her testimony. In Hogard, the
court reversed a denial of benefits because the only evidence relied upon by the ALJ in rejecting
the plaintiff’s subjective claims of pain was that following his DLI, the plaintiff married, adopted
a child, fathered a child, and cared for the couple’s two children. Id. at 1469. This case is
distinguishable, as the ALJ relied on evidence beyond the fact that Turner merely cared for her

14

three children in evaluating her credibility under the pain standard. Turner need only look to the
remainder of the sentence containing the reference to her children to see this: “the record reflects
that the claimant lived and functioned independently.” (Tr. 20). Additionally, the plaintiff in
Hogard suffered from Meniere’s disease, colitis, headaches, a skin infection, anxiety, and
allegies—none of which relate to exertional activities that may be implicated in caring for
children. 733 F. Supp. at 1467. Conversely, Turner’s daily activities in caring for her children
are directly relevant to the exertional limitations she claims are caused by her pain. On her
November 2011 function report, Turner reported an inability to lift objects heavier than 10
pounds. (Tr. 185). However, Turner stated she had been lifting a 30-40 pound child for quite
some time at her October 2011 consultation with Dr. Michael McKinney. (Tr. 335). The ALJ
properly accounted for this in discrediting the credibility of Turner’s testimony, and his decision
to do so was supported by substantial evidence.
The remainder of Turner’s brief is a mechanical recitation of the pain standard itself, and
it is not clear precisely how—or if—Turner alleges the ALJ violated the standard apart from
challenging the adequacy of the two reasons she identifies above. (Doc. 9 at 10-12). The Court
will not attempt to deduce which other arguments Turner intended to make; an argument
undeveloped in a party’s brief is abandoned. See Hutchinson v. Astrue, 408 F. App’x 324, 326
n.1 (11th Cir. 2011) (citing Davis v. Jones, 506 F.3d 1325, 1330 n.8 (11th Cir. 2007)).
VII. Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, the decision of the Commissioner of Social Security
denying Turner’s claim for a period of disability and DIB is AFFIRMED, and this action is
DISMISSED WITH PREJUDICE. A separate order will be entered.

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DONE this 30th day of September, 2016.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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