Syler v. Astrue

Filing 22

Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 3/20/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENNETH RAY SYLER,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 12-00730-B

ORDER
Plaintiff Kenneth Ray Syler (hereinafter “Plaintiff”) brings this action seeking judicial
review of a final decision of the Commissioner of Social Security denying his claim for a period
of disability, disability insurance benefits, and supplemental security income under Titles II and
XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq. On November 1,
2013, the parties consented to have the undersigned conduct any and all proceedings in this case.
(Doc. 19). Thus, the action was referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure
73. A hearing was conducted in this matter on November 1, 2013, before the undersigned
Magistrate Judge. (Doc. 20). Upon careful consideration of the administrative record and the
memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.
1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit. No further action need be taken to
continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

I.

Procedural History
Plaintiff filed an application for disability insurance benefits on October 21, 2009, and

alleged that his disability commenced on September 20, 2009. (Tr. 155, 163). Plaintiff’s
application was denied at the initial stage on February 22, 2010. (Id. at 81). He filed a timely
Request for Hearing, and on May 11, 2011, Administrative Law Judge Linda J. Helm
(hereinafter “ALJ”) held an administrative hearing, which was attended by Plaintiff, who
provided testimony, and Plaintiff’s attorney. (Id. at 37). A vocational expert (“VE”) also
appeared at the hearing and provided testimony. (Id. at 69). On June 2, 2011, the ALJ issued an
unfavorable opinion finding that Plaintiff is not disabled. (Id. at 33). The Appeals Council
denied Plaintiff’s request for review on November 7, 2012. (Id. at 1). Thus, the ALJ’s decision
dated June 2, 2011, became the final decision of the Commissioner. Having exhausted his
administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). The parties
agree that this case is now ripe for judicial review and is properly before this Court pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issues on Appeal
A.
B.

Whether the ALJ erred in failing to properly evaluate Plaintiff’s complaints of
pain and in failing to consider all of the evidence of record?

C.

III.

Whether the ALJ erred in determining that Plaintiff did not meet or equal Listing
12.05?

Whether the ALJ erred in failing to properly consider all the claimant’s
impairments and resulting limitations in posing a hypothetical to the Vocational
Expert?

Factual Background
Plaintiff was born on May 2, 1963, and was forty-eight years of age at the time of his

administrative hearing. (Tr. 43). Plaintiff began, but did not complete, the ninth grade and was

2

in special education classes. (Id. at 45). He testified that he can read and write “some” and
agreed that he can “function as [he] need[s] to.” (Id. at 45-46).
According to Plaintiff, he injured his ankle on September 20, 2009, when he fell from a
roof while helping some friends work on their house. (Id. at 47). Plaintiff testified that his ankle
was broken in six places, that his leg was broken in two places, and that his ankle still swells and
hurts every time he moves it. (Id. at 53). Plaintiff also testified that, before his injury in 2009,
he had not worked for three years because it was difficult to find work. (Id. at 47-48). Prior to
2006, Plaintiff had worked in industrial construction, hanging iron and pouring concrete. (Id. at
48-49).
Plaintiff contends that he cannot work now because of pain in his ankle, which he
described as about a five out of ten on the pain scale when he is sitting and about a ten out of ten
when he walks on it “a lot.” (Id. at 53-54). At the time of the hearing, Plaintiff reported taking
Lortab for pain once or twice a week, whenever he could get it. (Id. at 53-54). Plaintiff also
testified that he uses a cane and that he is able to help his mother with household chores, mow
the grass with a riding lawnmower, work on his vehicles, take care of his dogs, and fish. (Id. at
55, 59-60).
IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s role is a limited one. The Court’s
review is limited to determining 1) whether the decision of the Secretary is supported by
substantial evidence and 2) whether the correct legal standards were applied. 2 Martin v.

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This Court’s review of the Commissioner’s application of legal principles is plenary. Walker v.
Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh
the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792
F.2d 1065, 1067 (11th Cir. 1986). The Commissioner’s findings of fact must be affirmed if they
are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991);
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is
defined as “more than a scintilla, but less than a preponderance” and consists of “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”).

In

determining whether substantial evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the Commissioner’s decision.
Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS
10163, *4 (S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability benefits must prove his
disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the “inability 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); see also 20
C.F.R. §§ 404.1505(a), 416.905(a).

The Social Security regulations provide a five-step

sequential evaluation process for determining if a claimant has proven his disability.3 20 C.F.R.

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The claimant must first prove that he or she has not engaged in substantial gainful activity. The
second step requires the claimant to prove that he or she has a severe impairment or combination
of impairments. If, at the third step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the claimant is automatically found
disabled regardless of age, education, or work experience. If the claimant cannot prevail at the
third step, he or she must proceed to the fourth step where the claimant must prove an inability to
perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
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§§ 404.1520, 416.920.
1. ALJ’s Decision
In the case sub judice, the ALJ determined that Plaintiff has not engaged in substantial
gainful activity since September 20, 2009, the alleged onset date, and that that he has the severe
impairments of history of right ankle fracture and borderline intellectual functioning. (Tr. at 23).
The ALJ further found that Plaintiff does not have an impairment or combination of impairments
that meets or medically equals any of the listed impairments contained in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id.).
The ALJ concluded that Plaintiff is precluded from performing any of his past relevant
work. (Id. at 31). However, he retains the residual functional capacity (hereinafter “RFC”) to
perform a range of sedentary work, with the following restrictions: Plaintiff can lift and carry up
to ten pounds; he can stand and/or walk for no more than fifteen minutes at a time and no more
than two hours in an eight-hour workday; he can sit for six hours in an eight-hour workday; he is
unable to operate foot controls with the right foot; he is limited to no more than occasionally
climbing stairs and ramps; he is unable to climb ladders, scaffolds, and ropes; he is unable to
work around unprotected heights or dangerous equipment or operate a commercial vehicle; he is
unable to understand, remember, and carry out complex or detailed job instructions, but can

evaluating whether the claimant has met this burden, the examiner must consider the following
four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age, education and work history. Id.
Once a claimant meets this burden, it becomes the Commissioner’s burden to prove at the fifth
step that the claimant is capable of engaging in another kind of substantial gainful employment
which exists in significant numbers in the national economy, given the claimant’s residual
functional capacity, age, education, and work history. Sryock v. Heckler, 764 F.2d 834, 836
(11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can
perform, the claimant must prove inability to perform those jobs in order to be found disabled.
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
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understand, remember, and carry out short, simple, one or two step job instructions; and he is
limited to jobs with no more than occasional changes in the work setting and routines. (Id. at
25). The ALJ found that given Plaintiff’s RFC for a range of sedentary work, as well as his age,
education, work experience, and the testimony of the VE, he can perform the requirements of
representative occupations such as “brake lining coater” (DOT #574.685-010), “eyeglass frame
polisher” (DOT #713.684-038), and “printed circuit layout taper” (DOT #017.684-010). (Id. at
32-33). Thus, the ALJ concluded that Plaintiff is not disabled. (Id.).
2. Record Evidence
a. Academic Evidence
In 1978, at the age of eleven, Plaintiff was tested using the Weschsler Intelligence Scale
for Children (WISC-R) and obtained a Verbal IQ score of 70, a Performance IQ score of 88, and
a Full Scale IQ score of 78 (borderline range). (Id. at 226). As a result of the testing, it was
determined that Plaintiff was functioning in the “borderline range of measured intelligence” and
that he had weakness in understanding simple associations and relationships, arithmetic skills,
verbal fluency and language development, retention and auditory memory, and visual
organization of designs and psychomotor ability (dexterity). (Id. at 227). Plaintiff’s strengths
were listed as “alertness in visual observation and the ability to organize spatial relationships in
problem solving (puzzles).” (Id.). It was recommended that further investigation be made into
possible verbal learning dysfunction and learning disability classes. (Id.).
b. Medical Evidence
The relevant medical evidence in this case reflects that on September 20, 2009, Plaintiff
was treated at the emergency room at Providence Hospital after slipping off of a roof and landing
on his ankle while helping friends work on a house. (Id. at 47, 238-39). X-rays showed fractures

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of the right distal tibia and fibula, requiring surgery to attach an external fixator frame to
Plaintiff’s right ankle. (Id. at 249, 251-52, 260).
On October 1, 2009, Plaintiff returned to Providence Hospital for a follow up
examination and was treated by Dr. Tim Revels. (Id. at 235). Dr. Revels ordered a CT scan of
the right tibia and fibula which showed: “[c]omminuted intraarticular fracture of the distal tibia
with comminuted fracture distal fibular diaphysis. . . . External fixating device present.” (Id. at
237).
Dr. Revels referred Plaintiff to Dr. Frederick Meyer at the USA Stanton Road Clinic. (Id.
at 260). Dr. Meyer’s notes from November 2, 2009 reflect that Plaintiff had a deltoid frame
external fixator attached to his right lower extremity and that the pins were clean, dry, and in
tact, with no signs of infection. (Id.). Dr. Meyer also noted that Plaintiff had significant swelling
but was in no acute distress. (Id.). Dr. Meyer referred Plaintiff to the financial administrator to
seek approval for open reduction and internal fixation surgery.

(Id. at 261).

Dr. Meyer

prescribed Lortab and instructed Plaintiff to keep his foot elevated and return in two weeks.
(Id.).
Plaintiff returned to Dr. Meyer on November 16, 2009, and Dr. Meyer’s treatment notes
reflect that Plaintiff was continuing to seek financial assistance for open reduction and internal
fixation surgery. (Id. at 258). Plaintiff reported to Dr. Meyer that the pain in his right foot was
“10/10,” and he requested increased pain medication. (Id.). Dr. Meyer examined Plaintiff and
noted no signs of infection but significant swelling of the foot and ankle region. (Id.). Dr.
Meyer prescribed oxycodone and instructed Plaintiff to keep his foot elevated. (Id.).
On November 30, 2009, Dr. Meyer’s treatment notes reflect that, at two months postinjury, Plaintiff had not improved and had drainage and significant swelling at that time. (Id. at

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256). Dr. Meyer’s plan was to “discuss the patient with Dr. [Mark] Perry and also work on
getting financial approval for an open reduction and internal fixation.” (Id.). X-rays taken on
that date show “[h]ealing tibial and fibular comminuted fractures.

Worsening disuse

osteopenia.” (Id. at 264).
On December 2, 2009, ten weeks after his ankle injury, Plaintiff saw Dr. Mark Perry, an
orthopedist, who noted no evidence of infection or cellulitis. (Id. at 290). After reviewing
Plaintiff’s x-rays, Dr. Perry removed the fixator and placed Plaintiff in a short leg walking cast.
(Id.). Dr. Perry noted that “there is a significant probability that in the future Mr. Syler may need
a fusion, which would make the ‘shin bone and ankle bone become one’ in order to ultimately
treat his rather devastating right leg injury.” (Id.).
Plaintiff returned to Dr. Perry on December 8, 2009. The treatment notes reflect that no
sign of infection was observed on Plaintiff’s ankle, but there was some swelling. (Id. at 289). Dr.
Perry removed the cast from Plaintiff’s ankle and replaced it with a boot. (Id.). He also
discussed with Plaintiff the financial considerations of surgery. (Id.).
On December 23, 2009, during Plaintiff’s follow up examination with Dr. Perry, and Dr.
Perry noted that x-rays showed that the “limb appeared to be nicely aligned.” (Id. at 288). Dr.
Perry further noted significant swelling around Plaintiff’s foot and instructed him to begin
weight bearing exercises in physical therapy at approximately 20%. (Id.). Dr. Perry also noted
that after consulting with another physician in the clinic, he and the other physician “concur[red]
with nonoperative treatment at this time.” (Id.). Plaintiff reported that he had put small amounts
of weight on his foot and that it “hurts all over.” (Id). Dr. Perry prescribed pain medication and
instructed Plaintiff to return in three weeks. (Id.).
The record shows that on January 6, 2010, State Agency psychologist Dr. Ellen Eno,

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Ph.D., reviewed Plaintiff’s medical records and completed a Psychiatric Review Technique. She
opined that Plaintiff has a “borderline IQ,” resulting in “mild” difficulties in activities of daily
living and maintaining social functioning, “moderate” difficulties in maintaining concentration,
persistence, or pace, and no episodes of decompensation. (Id. at 266-67, 276). Dr. Eno also
completed a Mental RFC Assessment wherein she opined that Plaintiff is “moderately” limited
in four functional areas (ability to understand and remember detailed instructions, ability to carry
out detailed instructions, ability to maintain attention and concentration for extended periods, and
ability to respond appropriately to changes in the work setting). (Id. at 280-81). She found that
Plaintiff is “not significantly limited” in the remaining sixteen functional areas. (Id. at 281). Dr.
Eno concluded that Plaintiff “has the ability understand, recall and carry out short, simple
instructions and to attend to such tasks for two hour intervals,” although “[c]hanges in the work
routine should be infrequent.” (Id. at 282). Dr. Eno found no significant limitations with respect
to social interaction. (Id.).
On January 13, 2010, Plaintiff had a follow up visit with Dr. Perry who noted that
Plaintiff had decreased swelling compared to previous examinations. (Id. at 287). Dr. Perry
reviewed x-rays and noted that “the joint alignment is good.” Dr. Perry advised Plaintiff to
continue to take Lortab for pain, and instructed him to increase his weight bearing exercises at
physical therapy to 30% and to return in three weeks. (Id.).
Dr. Perry’s treatment notes dated February 3, 2010 reflect that Plaintiff was ambulating
in a boot with no assistive devices. (Id. at 286). Plaintiff reported that things had been “going
well for him” although he did have some “swelling and discomfort.” (Id. at 286). Dr. Perry
noted that the tenderness that Plaintiff was experiencing was due to “disuse” and that he was
“ambulating well in the boot.” (Id.). Dr. Perry increased the amount of weight bearing at

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physical therapy from 30% to “as tolerated” and continued Plaintiff on Lortab for pain. (Id.).
During Plaintiff’s February 24, 2010 visit with Dr. Perry, Dr. Perry noted that Plaintiff
had been undergoing physical therapy and was “doing very well.” (Id. at 299). Plaintiff reported
that “he gets around the house without his [boot] with no significant discomfort.” (Id.). Upon
examination, Dr. Perry noted that Plaintiff had increased range of motion in his ankle, that his
sensation was intact, that he had no pain around the joint line, but that he had some tenderness
under his heel and possible plantar fibromatosis in the arch of his foot. (Id.). Dr. Perry
instructed Plaintiff to continue physical therapy, to increase the weight bearing on his foot out of
the boot, and to wear a “cutout” for his heel and arch. (Id.).
Dr. Perry’s treatment notes dated March 24, 2010 includes a report from Plaintiff’s
physical therapist stating that Plaintiff is “making progress.” (Id. at 297). Dr. Perry noted,
however, that Plaintiff had recently stepped in a hole and twisted his right ankle, and as a result,
physical therapy had been put on hold. (Id.). Dr. Perry further noted some swelling and
tenderness which he attributed to the recent injury. (Id.). Dr. Perry also noted that Plaintiff had
no problem with his range of motion, and his sensation was in tact. (Id.). X-rays taken on that
date showed that the fractures were “[h]ealing” and that Plaintiff had “[d]isuse osteoporosis.”
(Id. at 298). Dr. Perry instructed Plaintiff to continue physical therapy, to take over-the-counter
Naprosyn as needed, and to return in three weeks. (Id. at 297).
During Plaintiff’s April 13, 2010 visit, Plaintiff reported to Dr. Perry that he was “do[ing]
some work,” although he had difficulty as a result of his injury. (Id. at 296). Dr. Perry noted
that “[a]ctively and passively [Plaintiff] ha[d] good range of motion of his ankle” but that his gait
was “somewhat hesitant,” and he “tend[ed] to use his foot as a pedestal.” (Id.). At the request of
Plaintiff’s attorney, Dr. Perry completed disability forms. On the form, Dr. Perry opined that

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while Plaintiff may not be able to perform heavy manual labor “[a]t this point,” he “can do
sedentary activities[,] [and] [i]n the future, he may be able to resume activities, which require
more of a physical demand.” (Id.). Dr. Perry continued to prescribe Lortab and instructed
Plaintiff to return in two months. (Id.).
On that same date, April 13, 2010, Dr. Perry completed a Physical Capacities Evaluation
form, in which he opined that Plaintiff can sit for three hours at one time for a total of more than
six hours a day, that he can stand and/or walk for less than two hours per day, that his ability to
lift, carry, climb, balance, stoop, kneel, crouch, and crawl is “negligible,” that he cannot work in
high places or drive automotive equipment, but that he can continuously reach overhead, handle,
finger, and push/pull with both arms and both legs. (Id. at 292). Dr. Perry commented that
Plaintiff’s right leg fracture and pain are significant; however, Plaintiff can perform “sustained
work activity” for “eight” hours a day if “sitting.” (Id.).
Dr. Perry also completed a Clinical Assessment of Pain form. He opined that Plaintiff’s
pain intensity is “moderate,” meaning that it results in extensive diminution of his capacity to
carry out specific activities of daily living and requires frequent use of narcotic medication and
possibly invasive procedures. (Id. at 291). In addition, Dr. Perry opined that physical activity
increases Plaintiff’s pain intensity to the extent that medication or bed rest is necessary and that
his medication impacts his work ability to the extent that his effectiveness is severely limited in
the work place due to distraction, inattention, and drowsiness. (Id.). Dr. Perry also opined that
he anticipates improvement in Plaintiff’s condition; however, he predicted significant
impairment for at least one year from the date of the injury and stated that it was doubtful that
Plaintiff would return to heavy manual labor. (Id.).
On June 15, 2010, Plaintiff returned to Dr. Perry for a follow up examination. Dr. Perry

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noted that Plaintiff had “range of motion, which is quite nice with regards to dorsiflexion.”
Plaintiff reported that he was still unable to ambulate long distances or stand for prolonged
periods of time, and that “all he is able to do is fish.” (Id. at 295). Dr. Perry noted that Plaintiff
was “well tanned and [had] no evidence of malignant degeneration around his incisions.” (Id.).
Dr. Perry prescribed Lortab and instructed Plaintiff to return in two months. (Id.).
During Plaintiff’s visit to Dr. Perry on August 17, 2010, Plaintiff complained that he still
had pain in his left ankle that tended to be positional when he turned it “a certain way.” (Id. at
294). Dr. Perry noted no sign of infection or cellulitis and observed that x-rays showed “relative
lengthening of the lateral malleolus.” (Id.). Dr. Perry discussed with Plaintiff the possibility of
fibular shortening, as well as the fact that it would take approximately six weeks of recovery and
that it would be beneficial if Plaintiff would stop smoking. (Id.). Plaintiff questioned whether
he needed the surgery based upon his symptoms. (Id.). Dr. Perry refilled Plaintiff’s Lortab
prescription and instructed Plaintiff to contact the office if he decided upon surgical intervention.
(Id.). This is the final treatment note in the record. At the time of the administrative hearing on
May 11, 2011, Plaintiff had not sought further medical treatment. (Id. at 37, 42, 294).
3.

Issues
a. Whether the ALJ erred in determining that Plaintiff
did not meet or equal Listing 12.05?

In his brief, Plaintiff argues that the ALJ erred in determining that Plaintiff does not
meet or equal Listing 12.05 (mental retardation) because he satisfied the criteria of § 12.05C
by having a valid Verbal IQ score of 70 and a physical impairment that imposes additional and
significant work-related limitation of function. (Doc. 13 at 2-10). The Government maintains,
however, that the ALJ properly found that Plaintiff’s mental impairments do not meet or
medically equal Listing 12.05 because Plaintiff has not shown that he has deficits in adaptive

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functioning, which is required in order to meet Listing 12.05C. (Doc 17 at 7-9).
As discussed above, the Social Security regulations set forth a five-step sequential
evaluation process to determine whether a claimant is disabled. At step three, the claimant has
the burden of proving that an impairment meets or equals a listed impairment. See Harris v.
Commissioner of Soc. Sec., 330 Fed. Appx. 813, 815 (11th Cir. 2009) (unpublished)4 (citing
Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)). Listing 12.05 (the listing category for
mental retardation/intellectual disability)5 begins with an introductory paragraph which states
that mental retardation “refers to significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age 22.” 20 C.F.R. Part 404,
Subpart P, Appendix 1, §§ 12.05. The Eleventh Circuit has determined that, to be considered for
disability benefits under Listing 12.05, “a claimant must at least (1) have significantly
subaverage general intellectual functioning; (2) have deficits in adaptive behavior; and (3) have
manifested deficits in adaptive behavior before age 22.” Crayton v. Callahan, 120 F.3d 1217,
1219 (11th Cir. 1997). This court has held that “[a] low IQ score, standing alone, is insufficient
to satisfy Listing 12.05’s introductory paragraph; evidence must also demonstrate deficits in
4

“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11TH CIR. R. 36-2.

5

On August 1, 2013, the Social Security Administration amended Listing 12.05 by replacing the
words “mental retardation” with “intellectual disability.” See Hickel v. Commissioner of Soc.
Sec., 2013 U.S. App. LEXIS 21951, *3 n.2, 2013 WL 5778956, *8 n.2 (11th Cir. 2013) (citing 78
Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404, subpt. P, app. 1)). “This change
was made because the term ‘mental retardation’ has negative connotations, and has become
offensive to many people. Id. (citations and internal quotation marks omitted). “The Social
Security Administration stated that the change does not affect the actual medical definition of the
disorder or available programs or services.” Id. (citations and internal quotation marks omitted).
As in Hickel, this opinion uses the term “mental retardation” and “intellectual disability”
interchangeably.

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adaptive functioning, with an onset prior to age 22.” Bennett v. Colvin, 2013 U.S. Dist. LEXIS
117700, *47, 2013 WL 4479129, *16 (S.D. Ala. 2013) (citations omitted).

“Adaptive

functioning refers to how effectively individuals cope with common life demands and how well
they meet the standards of personal independence expected of someone in their particular age
group, sociocultural background, and community setting.” Bennett, 2013 U.S. Dist. LEXIS
117700 at *48, 2013 WL 4479129 at *16 (citing American Psychiatric Association, Diagnostic
& Statistical Manual of Mental Disorders (4th ed. Text Revision 2000) (DSM-IV-TR)
(“Impairments in adaptive functioning, rather than a low IQ, are usually the presenting
symptoms in individuals with Mental Retardation.”)). “If a claimant does not have current
deficits in adaptive functioning, he will not meet Listing 12.05.” Convery v. Commissioner of
Soc. Sec., 2012 U.S. Dist. LEXIS 2390, *15, 2012 WL 39540, *5 (M.D. Fla. 2012) (emphasis
added).
In addition to satisfying the requirements of the diagnostic description in the introductory
paragraph, a claimant must also meet one of the four sets of criteria described in paragraphs A
through D in order to be found disabled under Listing 12.05. See 20 C.F.R. Part 404, Subpart P,
Appendix 1, § 12.00A. Section 12.00A states in pertinent part:
Listing 12.05 contains an introductory paragraph with the
diagnostic description for intellectual disability [mental
retardation]. It also contains four sets of criteria (paragraphs A
through D). If your impairment satisfies the diagnostic description
in the introductory paragraph and any one of the four sets of
criteria, we will find that your impairment meets the listing.
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00A (emphasis added); see also Harris, 330
Fed. Appx. at 815 (“[t]he impairment must satisfy the diagnostic description in the introductory
paragraph and any one of the four sets of criteria described in section 12.05 to meet the listing
requirements.”) (emphasis added).

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Taken together, a claimant proceeding under § 12.05C must satisfy three criteria: “1)
significantly subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested before age 22 [i.e., the diagnostic description criteria]; 2) a valid verbal,
performance, or full scale IQ score of 60 to 70; and 3) a physical or other mental impairment
imposing an additional and significant work-related limitation of function.” Jones v. Astrue,
2012 U.S. Dist. LEXIS 153141, *9, 2012 WL 5305142, *3 (M.D. Ala. 2012). If a claimant
establishes a valid IQ score between 60-70, there is a “rebuttable presumption” that he or she
“manifested deficits in adaptive functioning before the age of 22.” Grant v. Astrue, 255 Fed.
Appx. 374, 375 (11th Cir. 2007) (unpublished). Even so, the claimant must still show under the
final prong of 12.05C that he or she has “a severe impairment that significantly limits the
applicant’s ‘physical or mental ability to do basic work activities.’” Harris, 330 Fed. Appx. at
815 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00(A)) (requiring plaintiff to show
“evidence of an additional mental or physical impairment that has more than ‘minimal effect’ on
the claimant’s ability to perform basic work activities.”).
In the event that a claimant satisfies the requirements of Listing 12.05C, the defendant
still has the opportunity to rebut the presumption of disability by presenting evidence of
plaintiff’s activities of daily life that show that he or she does not suffer from the deficits in
adaptive functioning required for mental retardation. Bennett, 2013 U.S. Dist. LEXIS 117700 at
*46, 2013 WL 4479129 at *16. As discussed above, I.Q. test results alone are not dispositive
and “must be consistent with a plaintiff’s daily activities and behavior.” Id. at *47 (citations
omitted).

Indeed, “[a]lthough a rebuttable presumption exists as to a plaintiff’s IQ score

remaining relatively constant throughout life, see Hodges v. Barnhart, 276 F.3d 1265, 1286–69
(11th Cir. 2001), if a claimant does not have current deficits in adaptive functioning, he will not

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meet Listing 12.05.” Convery, 2012 U.S. Dist. LEXIS 2390 at *16, 2012 WL 39540 at *5
(emphasis added) (holding that where plaintiff had maintained employment, had been married,
was able to live independently, performed housework, paid bills, socialized with friends, owned
a business, performed semi-skilled work, was able to use a computer, shopped, cooked meals,
and took care of his personal needs, his daily activities and behavior demonstrated that he did not
have deficits in adaptive functioning, and thus, he did not meet Listing 12.05C) (citing 20 C.F.R.
pt. 404, subpt. P, app. 1, § 12.00A; and Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)
(“[A] valid I.Q. score need not be conclusive of mental retardation where the I.Q. score is
inconsistent with other evidence in the record on the claimant’s daily activities and behavior.”)).
In her decision in this case, the ALJ discussed Listing 12.05 and found that Plaintiff
failed to meet the threshold requirements of the Listing because he did not show deficits in
adaptive functioning, as required by the introductory paragraph of the Listing 12.05. The ALJ
stated:
Mental retardation [under § 12.05] refers to significantly
subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the developmental
period, i.e., the evidence demonstrates or supports onset of the
impairment before age 22.
“To be considered for disability benefits under section 12.05, a
claimant must at least (1) have significantly subaverage general
intellectual functioning; (2) have deficits in adaptive functioning;
and (3) have manifested deficits in adaptive behavior before age
22.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
Although intelligence testing revealed that the claimant has a
Verbal IQ score of 70, he was diagnosed with borderline
intellectual functioning, not mental retardation. Additionally, the
claimant does not have deficits in adaptive functioning required by
Medical Listing 12.05. He is able to care for his personal needs,
care for pets, mow the grass, and work on vehicles (Hearing
Testimony). He is able to pay bills and count change (Exhibit 3E).
Moreover, he worked for many years prior to the alleged onset of
disability and some of the claimant’s past relevant work is

16

classified as semi-skilled as discussed in more detail below. The
claimant’s ability to care for his personal needs and perform a
variety of daily activities along with his work history shows that he
does not have the requisite deficits in adaptive functioning.
Because the borderline intellectual functioning does not meet the
requirement of the introductory paragraph with the diagnostic
description for mental retardation, this condition does not meet
Medical Listing 12.05 regardless of whether the requirements in
paragraphs A, B, C or D are satisfied.
(Tr. at 24).
As set forth above, the ALJ essentially found that that while Plaintiff had a verbal IQ
score of 70, it was not valid based on Plaintiff’s diagnosis of borderline intellectual functioning,
the evidence of Plaintiff’s activities of daily living, and Plaintiff’s semi-skilled work history.
Thus, the ALJ determined that because Plaintiff does not have the requisite deficits in adaptive
functioning required by the introductory paragraph of Listing 12.05, he does not meet the Listing
of 12.05. The Court agrees.
As the case law discussed demonstrates, absent current deficits in adaptive functioning,
Plaintiff cannot meet Listing 12.05. See, e.g., Convery, 2012 U.S. Dist. LEXIS 2390 at *16,
2012 WL 39540 at *5 (“if a claimant does not have current deficits in adaptive functioning, he
will not meet Listing 12.05.”). While Plaintiff obtained a Verbal IQ score of 70, he has not been
diagnosed as mentally retarded. To the contrary, State Agency psychologist Dr. Eno opined that
Plaintiff has a “borderline IQ,” resulting in “mild” difficulties in activities of daily living and
maintaining social functioning, “moderate” difficulties in maintaining concentration, persistence,
or pace, and no episodes of decompensation. (Id. at 267, 276). Dr. Eno further opined that
Plaintiff is “moderately” limited in four functional areas (ability to understand and remember
detailed instructions, ability to carry out detailed instructions, ability to maintain attention and
concentration for extended periods, and ability to respond appropriately to changes in the work

17

setting), but “not significantly limited” in the remaining sixteen functional areas. (Id. at 280-81).
Specifically, Dr. Eno found that Plaintiff “has the ability understand, recall and carry out short,
simple instructions and to attend to such tasks for two hour intervals,” although “[c]hanges in the
work routine should be infrequent.” (Id. at 282).
Furthermore, substantial evidence supports the ALJ’s finding that Plaintiff’s activities of
daily living do not demonstrate the requisite deficits in adaptive functioning.

At his

administrative hearing on May 11, 2011, Plaintiff testified that although he was in special
education classes in school6 and did not complete the ninth grade, he can read and write “some,”
and he can “function as [he] need[s] to.” (Id. at 45-46). In addition, in his Disability Report,
which he completed himself, Plaintiff stated that he can count change and follow written and
spoken instructions “as good as necessary.” (Id. at 187, 189). He also indicated that the reason
that he could not pay bills was because he could not drive to pay them at that time, which was
two months after his accident when he was still on crutches. (Id. at 187). Plaintiff indicated at
his hearing that he is able to drive but that his driver’s license has been suspended for traffic
tickets. (Id. at 47, 60). Plaintiff also testified that he lives with his parents, but he owns property
about twenty minutes away from his parents’ home, which he visits every day. (Id. at 43, 59).
He takes care of his personal needs, helps out with chores, mows his property and his parents’
property using a riding lawnmower, takes care of his dogs, maintains social relationships, and
enjoys leisure activities such as fishing. (Id. at 59-62, 185).
The evidence also shows that prior to his injury in September 2009, Plaintiff was engaged
in substantial gainful activity for years, including performing semi-skilled work as a tree cutter
(during which time he was self-employed) and as a mechanic. (Id. at 50-51, 70-71). Plaintiff
6

In his Disability Report, Plaintiff stated that he was only in special education classes for
reading and math. (Tr. at 181).

18

testified that he still does mechanic work on his own vehicles. (Id. at 57). There is no allegation
that Plaintiff ever quit working due to any mental or cognitive impairment. To the contrary,
Plaintiff testified that he did not work for three years prior to his injury because “everything got
slow,” and his former employer was no longer in business. (Id. at 48). The ALJ properly
considered this prior work experience in the context of considering whether Plaintiff met the
diagnostic description of Listing 12.05. See Bennett, 2013 U.S. Dist. LEXIS 117700 at *50,
2013 WL 4479129 at *17 (“The DSM explicitly enumerates ‘work’ as a component of adaptive
functioning.”) (citations omitted)).
Consequently, the Court finds that substantial evidence supports the ALJ’s finding that
Plaintiff did not meet the requirements of Listing 12.05.

The record establishes that,

notwithstanding his IQ score, Plaintiff does not have the current deficits in adaptive functioning
required for mental retardation. Therefore, he fails to meet the requirements in the introductory
paragraph of Listing 12.05, precluding any finding of disability under § 12.05C. See Monroe v.
Astrue, 726 F. Supp. 2d 1349, 1355 (N.D. Fla. 2010) (“in order to meet the criteria of Listing
12.05C, a claimant must not only have a qualifying valid I.Q. score, but must also satisfy the
requirements of the introductory paragraph of that Listing”) (citing and comparing cases); see
also Harris, 330 Fed. Appx. at 815 (“Substantial evidence supports the ALJ’s denial of disability
benefits because Harris did not meet the requirements of Listing 12.05” where he was “never
diagnosed with mental retardation, only borderline intellectual functioning;” he “did well in
special education classes and was able to hold several jobs, which did not indicate the type of
deficit in adaptive functioning required for mental retardation;” he could dress and bathe himself,
take care of his personal needs, and manage money;” and “could read, communicate effectively,

19

and do simple math.”). Therefore, Plaintiff’s claim that the ALJ erred in determining that he did
not meet or equal Listing 12.05 is without merit.
b. Whether the ALJ erred in failing to properly evaluate
Plaintiff’s complaints of pain and in failing to consider
all of the evidence of record?
Plaintiff argues next that the ALJ erred in failing to properly evaluate his complaints of
pain pursuant to SSR 96-7p7 and in failing to consider all of the evidence of record. (Doc. 13
at 10). The Government counters that the ALJ reasonably evaluated all of the evidence of
record, including Plaintiff’s subjective complaints of pain, and identified numerous valid
reasons for discounting Plaintiff’s subjective statements. (Doc. 17 at 9-10).
When evaluating a claim based on disabling subjective symptoms, the ALJ considers
medical findings, a claimant’s statements, statements by the treating physician, and evidence of
how the pain affects the claimant’s daily activities and ability to work. 20 C.F.R. § 416.929(a).
In a case where a claimant attempts to establish disability through his or her own testimony
concerning pain or other subjective symptoms, a three-part pain standard applies. That 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
7

Plaintiff refers to the following language in SSR 96-7p:
First, the adjudicator must consider whether there is an underlying
medically determinable physical or mental impairment(s)--i.e., an
impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques--that could reasonably be
expected to produce the individual’s pain or other symptoms. . . .
Second, . . . the adjudicator must evaluate the intensity,
persistence, and limiting effects of the individual’s symptoms to
determine the extent to which the symptoms limit the individual’s
ability to do basic work activities.

SSR 96-7p, 1996 SSR LEXIS 4, * 5-6, 1996 WL 374186, *2.

20

objectively determined medical condition is of such a severity that it can be reasonably expected
to give rise to the alleged pain.” Hubbard v. Commissioner of Soc. Sec., 348 Fed. Appx. 551,
554 (11th Cir. 2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)). The Social Security regulations further provide:
[S]tatements about your pain or other symptoms will not alone
establish that you are disabled; there must be medical signs and
laboratory findings which show that you have a medical
impairment(s) which could reasonably be expected to produce the
pain or other symptoms alleged and which, when considered with
all of the other evidence (including statements about the intensity
and persistence of your pain or other symptoms which may
reasonably be accepted as consistent with the medical signs and
laboratory findings), would lead to a conclusion that you are
disabled.
20 C.F.R. 404.1529(a) (2013).
“A claimant’s subjective testimony supported by medical evidence that satisfies the pain
standard is itself sufficient to support a finding of disability.” Foote v. Chater, 67 F.3d 1553,
1561 (11th Cir. 1995). Stated differently, “if a claimant testifies to disabling pain and satisfies
the three part pain standard, he must be found disabled unless that testimony is properly
discredited.” Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1186 (N.D. Ala. 2006). Therefore,
once the determination has been made that a claimant has satisfied the three-part pain standard,
the ALJ must then turn to the question of the credibility of the claimant’s subjective complaints.
See Reliford, 444 F. Supp. 2d at 1189 n.1 (the pain standard “is designed to be a threshold
determination made prior to considering the plaintiff’s credibility.”). If a claimant does not meet
the pain standard, no credibility determination is required. Id.
In assessing a claimant’s credibility, the ALJ must consider all of the claimant’s
statements about his symptoms, including pain, and determine the extent to which the symptoms
can reasonably be accepted as consistent with the objective medical evidence. See 20 C.F.R. §

21

404.1528.

Such credibility determinations are within the province of the ALJ.

Moore v.

Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005). However, if an ALJ decides not to credit a
claimant’s testimony about pain, “the ALJ must articulate explicit and adequate reasons for
doing so or the record must be obvious as to the credibility finding.”

Strickland v.

Commissioner of Soc. Sec., 516 Fed. Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing
Foote, 67 F.3d at 1562); see also Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)
(although no explicit finding as to credibility is required, the implication must be obvious to the
reviewing court). 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.
The Eleventh Circuit has held that the determination of whether objective medical
impairments could reasonably be expected to produce the pain is a factual question to be made
by the Secretary and, therefore, “subject only to limited review in the courts to ensure that the
finding is supported by substantial evidence.” Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.
1985), vacated on other grounds and reinstated sub nom., Hand v. Bowen, 793 F.2d 275 (11th
Cir. 1986). A reviewing court will not disturb a clearly articulated credibility finding with
substantial supporting evidence in the record. See Nye v. Commissioner of Social Sec., 524 Fed.
Appx. 538, 543 (11th Cir. 2013) (unpublished).
Relying on the treatment records and objective evidence in this case, the ALJ concluded
that Plaintiff’s impairment could reasonably be expected to cause some of his symptoms;
however, his statements concerning the intensity, persistence, and limiting effects of his
symptoms were not entirely credible. (Tr. 28-29). Specifically, the ALJ found that Plaintiff’s
statements related to the disabling nature of his pain from his ankle injury were inconsistent with
his treatment records and his own testimony. The Court agrees.

22

First, as the ALJ found, there is no question that Plaintiff suffered a severe leg injury on
September 20, 2009, involving fractures of the right distal tibia and fibula and requiring surgery
to attach an external fixator frame to Plaintiff’s right ankle. (Id. at 249, 251-52, 260). However,
Plaintiff’s treatment records in the months following his accident show continued, progressive
healing of his injury, good reports in physical therapy, and no further treatment after August
2010, less than a year after his initial injury. (Id. at 264, 286, 294-99). Indeed, in December
2009, Plaintiff’s x-rays showed that the “limb appeared to be nicely aligned,” and Dr. Perry
recommended “nonoperative treatment at [that] time.” (Id. at 288). In early February 2010, Dr.
Perry noted that Plaintiff was “ambulating well in the boot” with no assistive devices, and
Plaintiff reported that things had been “going well for him,” although he did have some
“swelling and discomfort.” (Id. at 286). By the end of February 2010, Plaintiff was “doing very
well” in physical therapy and “get[ing] around the house without his [boot] with no significant
discomfort.” (Id. at 299). In June 2010, Dr. Perry noted that Plaintiff’s range of motion was
“quite nice,” although Plaintiff reported that he was unable to ambulate long distances or stand
for prolonged periods of time. (Id. at 295). Plaintiff told Dr. Perry that that “all he is able to do
is fish.” (Id.). The last treatment note in the record is dated August 17, 2010, at which time
Plaintiff reported that he still had pain in his left ankle when he turned it “a certain way.” (Id. at
294). The x-rays showed “relative lengthening of the lateral malleolus,” and Dr. Perry discussed
with Plaintiff the possibility of fibular shortening; however, Plaintiff declined, stating that he did
not know if he needed the surgery at that time based on his symptoms. (Id.). Dr. Perry refilled
Plaintiff’s prescription for Lortab and instructed him to return in two months and to notify the
office if he changed his mind about the surgery. (Id.). Plaintiff did not do so, and at the time of

23

his administrative hearing nine months later, he had not sought any further medical treatment for
his ankle. (Id. at 37, 294).
At his hearing, Plaintiff testified that he could not afford medical treatment because he no
longer had Medicaid. (Id. at 52-54). However, as the ALJ found, there is no evidence that
Plaintiff ever sought treatment for his pain at an emergency room or low cost clinic, nor is there
any evidence that treatment at a pain clinic was ever recommended. (Id. at 28). Also, although
Plaintiff testified that he uses a cane to walk (id. at 44, 55), there is no evidence that the cane was
prescribed by a physician.
In addition, Plaintiff testified at the hearing that his pain is “about a ten” out of ten on the
pain scale “on an average day if [he] walk[s] on it a lot” and about a five out of ten when he is
sitting. (Id. at 54-55). However, as the ALJ found, Plaintiff’s activities of daily living belie his
statements regarding the severity of his pain. The record shows that Plaintiff is able to drive
(although he testified that he does not drive because his license is suspended), that he owns
property that he visits every day, that he takes care of his own personal needs, that he helps out
with chores, that he performs automotive work on his own vehicles, that he mows his property
and his parents’ property using a riding lawnmower, that he takes care of his dogs, that he
maintains social relationships, and that he enjoys leisure activities such as fishing. (Id. at 55-62,
185). As the ALJ also noted, Plaintiff had not worked for three years prior to his injury in 2009
(id. at 48), which indicates that his continued unemployment is not solely the result of his
disabling pain.
Finally, the Court finds that the ALJ had good cause to discredit Dr. Perry’s opinions
regarding Plaintiff’s limitations as expressed in the April 2010 Physical Capacities Evaluation
and Clinical Assessment of Pain forms. “It is well-established that the testimony of a treating

24

physician must be given substantial or considerable weight unless good cause is shown to the
contrary.” Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004)
(citations and internal quotations omitted). The ALJ may discount the treating physician’s report
where it is not accompanied by objective medical evidence, is wholly conclusory, or is
contradicted by the physician’s own record or other objective medical evidence. Id.; see also
Green v. Social Sec. Admin., 223 Fed. Appx. 915, 922-23 (11th Cir. 2007) (unpublished) (ALJ
had good cause to devalue a treating physician’s opinion where it was inconsistent with the
objective medical evidence, as well as plaintiff’s testimony). “When a treating physician’s
opinion does not warrant controlling weight, the ALJ must nevertheless weigh the medical
opinion based on the: (1) length of the treatment relationship and the frequency of examination;
(2) the nature and extent of the treatment relationship; (3) the medical evidence and explanation
supporting the opinion; (4) consistency with the record as a whole; (5) specialization in the
pertinent medical issues; and (6) other factors that tend to support or contradict the opinion.”
Weekley v. Commissioner of Soc. Sec., 486 Fed. Appx. 806, 808 (11th Cir. 2012) (unpublished)
(citing 20 C.F.R. § 404.1527(c)). When an ALJ articulates specific reasons for declining to give
a treating physician’s opinion controlling weight, and the reasons are supported by substantial
evidence, there is no reversible error. See Forrester v. Commissioner of Social Sec., 455 Fed.
Appx. 899, 902 (11th Cir. 2012) (unpublished) (“We have held that an ALJ does not need to give
a treating physician’s opinion considerable weight if evidence of the claimant’s daily activities
contradict the opinion.”). Indeed, an ALJ “may reject any medical opinion, if the evidence
supports a contrary finding.”

Id. at 901.

Although the ALJ must evaluate the treating

physician’s opinion “in light of the other evidence presented,” “the ultimate determination of

25

disability is reserved for the ALJ.” Green, 223 Fed. Appx. at 923 (citing 20 C.F.R. §§ 404.1513,
404.1527, 404.1545).
As noted supra, Dr. Perry opined that Plaintiff’s pain results in “extensive diminution” of
his capacity to carry out specific activities of daily living and requires frequent use of narcotic
medication and possibly invasive procedures. He further opined that physical activity increases
Plaintiff’s pain to the extent that medication or bed rest is necessary, that his medication impacts
his work ability to the extent that his effectiveness is severely limited in the work place due to
distraction, inattention, and drowsiness, and that his ability to lift and carry is “negligible”. (id.
at 291-92) A review of the record demonstrates that Dr. Perry’s opinions are inconsistent with
the record as a whole, with Dr. Perry’s own treatment records, and with Dr. Perry’s own
opinions. In the same disability forms, Dr. Perry opined that, despite Plaintiff’s impairments, he
can sit for three hours at one time for a total of more than six hours a day, that he can perform
“sustained work activity” for eight hours a day if sitting, that he can continuously reach overhead
and push/pull with both arms, that he can continuously push/pull with both legs (including his
injured right leg), and that he anticipates improvement in Plaintiff’s condition. (Id. at 291-92).
These latter opinions are clearly inconsistent with Dr. Perry’s opinions related to the extensively
limiting effects of Plaintiff’s pain. Moreover, Dr. Perry’s opinion that Plaintiff’s ability to
lift/carry is “negligible” is unsupported by any evidence in the record -- particularly given that
Plaintiff does not have an upper extremity impairment of any kind -- and is inconsistent with Dr.
Perry’s opinion that Plaintiff can continuously reach overhead, handle, push, and pull with both
arms. (Id. at 30, 292). Also, as discussed above, Dr. Perry’s own treatment notes reflect
continued healing of Plaintiff’s right ankle in the year following his injury and good reports in
physical therapy, and show that while Plaintiff still had pain in his ankle, it tended to be only

26

when he turned it “a certain way.” (Id. at 286, 294-95, 298-99). Indeed, Dr. Perry’s treatment
notes on the date that he completed the disability forms document that although Plaintiff had a
“somewhat hesitant” gait, he had good range of motion in his ankle and even reported that he
was “doing some work.” (Id. at 296). Dr. Perry opined that while Plaintiff may be prevented
from heavy manual labor “at this point,” he “can do sedentary activities” and “[i]n the future, . . .
may be able to resume activities, which require more of a physical demand.” (Id. at 296).
Finally, Dr. Perry’s opinion that the side effects of Plaintiff’s medication “severely limit[]” his
effectiveness in the work place is inconsistent with Plaintiff’s statements in his Disability
Reports that he has no side effects from his medications. (Id. at 180, 201, 291). Thus, because
Dr. Perry’s opinions in the Physical Capacities Evaluation and Clinical Assessment of Pain
forms are inconsistent with his own treatment records, his own opinions, and Plaintiff’s
statements and testimony related to his activities of daily living, they were properly discredited
by the ALJ and assigned “little weight.” (Id. at 31).
After a careful review of the record, the undersigned finds that the ALJ’s credibility
finding is supported by substantial evidence and that her reasons for discrediting Plaintiff’s
testimony, as well as the opinions of Plaintiff’s treating physician, Dr. Perry, related to the
severity and limiting effects of Plaintiff’s pain, were clearly articulated in the decision. Based on
the foregoing, the Court further finds that substantial evidence supports the ALJ’s RFC
determination that Plaintiff can perform a range of sedentary work.
As noted above, this Court may not decide the facts anew, reweigh the evidence, or
substitute its judgment but must accept the factual findings of the Commissioner where they are
supported by substantial evidence and based upon the proper legal standards. See Bridges v.
Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (“the findings and decision of the Secretary are

27

conclusive if supported by substantial evidence.”); accord Hand, 761 F.2d at 1549. Therefore,
Plaintiff’s claim that the ALJ erred in failing to properly evaluate his testimony with regard to
the severity of his pain and in failing to consider all of the evidence of record is without merit.
c. Whether the ALJ erred in failing to properly consider
all the claimant’s impairments and resulting
limitations in posing a hypothetical to the Vocational
Expert?
Finally, Plaintiff argues that the ALJ erred in failing to include Dr. Perry’s limitations in
the hypothetical that she posed to the VE and in failing to consider the VE’s testimony related to
the hypothetical that Plaintiff’s counsel posed, which asked the VE to assume as true the
impairments and limitations set forth by Dr. Perry in the April 2010 Physical Capacities
Evaluation and the Clinical Assessment of Pain forms.

(Doc. 13 at 15-18; Tr. at 77-79).

Plaintiff argues that when the VE was asked to include in the hypothetical all of the limitations
expressed by Dr. Perry (i.e., that Plaintiff’s ability to lift/carry is “negligible,” that Plaintiff has
an extensive diminution in his ability to carry out activities of daily living, that physical activity
increases Plaintiff’s pain intensity to the extent that medication or bed rest are necessary, and that
the side effects of Plaintiff’s medications would be severely limiting in the work place), the VE
testified that there would be would be no jobs in the national economy that Plaintiff can perform.
(Id.).

While Plaintiff’s characterization of the VE’s testimony is correct, his argument is

misplaced.
Having already determined, for the reasons set forth above with respect to Issue Two, that
the ALJ properly discredited Dr. Perry’s opinions expressed in the April 2010 Physical
Capacities Evaluation and Clinical Assessment of Pain forms, the ALJ did not err in failing to
pose her own hypothetical to the VE using Dr. Perry’s non-credible limitations, nor did the ALJ
err in failing to consider the VE’s testimony that assumed those flawed opinions as true.
28

Therefore, Plaintiff’s claim is without merit.
V.

Conclusion

For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, it is hereby ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff’s claim for a period of disability, disability
insurance benefits, and supplemental security income be AFFIRMED.
DONE this 20th day of March, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

29