Bryant v. Colvin

Filing 22

Order re: 1 Complaint filed by Beverly Bryant stating that the decision of the Commissioner of Social Security denying Plaintiff's claim for a period of disability and disability insurance benefits be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/27/17. Copies to counsel (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BEVERLY BRYANT,

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Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 16-00360-B

ORDER
Plaintiff Beverly Ann Bryant (hereinafter “Plaintiff”) seeks
judicial review of a final decision of the Commissioner of Social
Security

denying

disability

her

insurance

claim

for

benefits

a

under

period

of

disability

Title

II

of

Security Act, 42 U.S.C. §§ 401, et seq.

the

and

Social

On May 26, 2017, 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.

Upon careful consideration

of the administrative record and the memoranda of the parties, it
1

Nancy Berryhill became the Acting Commissioner of Social Security
on January 23, 2017.
Pursuant to Rule 25(d), Federal Rules of
Civil Procedure, Nancy Berryhill should be substituted for
Carolyn W. Colvin 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).

is

hereby

ORDERED

that

the

decision

of

the

Commissioner

be

AFFIRMED.
I.

Procedural History2
Plaintiff filed her application for benefits on April 22,

2013, alleging disability beginning December 14, 2012, based on
fibromyalgia,
spinal

stenosis,

arthritis.
and

cervical

upon

hearing

and

lumbar

depression,

(Doc. 9-3 at 2).
timely

before

request,

spine

osteoarthritis,

the

she

Administrative

hearing

with

related to her claims.
appeared

at

the

was
Law

her

granted

Judge

inflammatory

and

an

Renee

administrative
Blackmon

(Id. at 32).

counsel

(Id.).

hearing

and

disease,

Plaintiff’s application was denied

(hereinafter “ALJ”) on August 4, 2014.
attended

degenerative

and

Hagler

Plaintiff

provided

testimony

A vocational expert (“VE”) also
provided

testimony.

(Id.).

On

November 13, 2014, the ALJ issued an unfavorable decision finding
that

Plaintiff

is

not

disabled.

(Id.

at

20).

The

Appeals

Council denied Plaintiff’s request for review on May 3, 2017.
(Id. at 2).

Therefore, the ALJ’s decision dated November 13,

2014, became the final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

Oral argument

was conducted on June 1, 2017 (Doc. 21), and the parties agree
2

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF, not the page numbers assigned
by the Agency.

2

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
1.Whether substantial evidence supports the
ALJ’s assignment of no weight to the
opinions of Plaintiff’s treating physician?
2.Whether substantial evidence supports the
ALJ’s finding that Plaintiff’s claims of
pain were not credible?

III. Factual Background
Plaintiff was born on January 13, 1952, and was sixty-two
years

of

age

at

the

November 13, 2014.

time

of

her

administrative

(Doc. 9-2 at 35).

hearing

on

Plaintiff graduated from

high school and completed some college courses.

(Id. at 24).

Plaintiff last worked from 2007 to 2012 at Georgia Pacific
as a senior purchaser.
9-2 at 39-40).

(Doc. 10 at 11-12; Doc. 10-1 at 7; Doc.

Prior to that, she worked from 2004 to 2006 at

RockTenn Corporation as a purchaser/buyer and from 1999 to 2003
at Jefferson Smurfett Corporation as a purchaser/buyer.3
Plaintiff

testified

that

she

can

no

longer

work

(Id.).
due

to

severe pain in her spine from a herniated disc, spinal stenosis,
and

osteoarthritis.

included

(Doc.

9-2

anti-inflammatories,

at

pain

3

41).

Her

medication,

treatment

has

blocks,

and

Plaintiff testified that Georgia Pacific continued to pay her
until April 30, 2013, under the FMLA. (Doc. 9-2 at 37).

3

epidurals.

4

Plaintiff testified that she may need surgery at

some point in the future.

(Id. at 41).

IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.
1)

whether

the

The Court’s review is limited to determining
decision

of

the

Secretary

is

supported

by

substantial evidence and 2) whether the correct legal standards
were applied.5
1990).

A

evidence,

court
or

Commissioner.
1986).

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
may

not

substitute

decide
its

the

facts

judgment

anew,

for

reweigh

that

of

the
the

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.

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

4

Plaintiff’s medications include Lodine (anti-inflammatory),
Tramadol (for pain), Treximet (for migraines), Bisystolic (for
high blood pressure and heart arrhythmia), Lunesta (for sleep),
Allegra D and Flonase (for allergies), a hormone replacement
therapy for her thyroid, Effexor (for depression), Voltaren gel
(for inflammation), and Ibuprofen. (Doc. 9-2 at 42-43; Doc. 10-1
at 51).
5

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).

4

determining
view

the

whether
record

favorable,
decision.

as

substantial

as

a

well

evidence

whole,

as

taking

unfavorable,

exists,
into

to

a

court

account

the

must

evidence

Commissioner’s

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).
V.

Statutory And Regulatory Framework
An

individual

benefits

must

who

prove

404.1512, 416.912.
engage

in

any

applies

his

or

for

her

Social

Security

disability.

20

disability
C.F.R.

§§

Disability is defined as the “inability to

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.

§§

404.1505(a), 416.905(a).

423(d)(1)(A);

see

also

20

C.F.R.

§§

The Social Security regulations provide

a five-step sequential evaluation process for determining if a
claimant

has

proven

his

disability.

20

C.F.R.

§§

404.1520,

416.920.
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

5

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

inability to perform their past relevant work.
810 F.2d 1001, 1005 (11th Cir. 1986).

must

prove

an

Jones v. Bowen,

At the fourth step, the

ALJ must make an assessment of the claimant’s RFC. See Phillips
v. Barnhart, 357 F. 3d 1232, 1238 (llth Cir. 2004).

The RFC is

an assessment, based on all relevant medical and other evidence,
of a claimant’s remaining ability to work despite her impairment.
See Lewis v. Callahan, 125 F. 3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that

the

claimant

substantial

is

gainful

capable

of

employment

engaging
which

in

another

exists

in

kind

of

significant

numbers in the national economy, given the claimant’s residual
functional capacity, age, education, and work history.
Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
can

demonstrate

that

there

are

such

jobs

Sryock v.

If the Commissioner
the

claimant

can

perform, the claimant must prove inability to perform those jobs
in order to be found disabled.
1228 (11th

Cir. 1999).

Jones v. Apfel, 190 F.3d 1224,

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)).

6

VI.

Discussion
A. Substantial evidence supports the ALJ’s
RFC for a range of light work with the
stated restrictions.
In her brief, Plaintiff argues that the ALJ’s RFC for a

range of light work is not supported by substantial evidence
because the ALJ gave no weight to the opinions of her treating
rheumatologist,

Dr.

Michael

Vandenberg,

M.D.,

that

she

can

perform a reduced range of sedentary work, 6 that her pain levels
distract her from performance of activities of daily living and
work,

that

physical

exertion

would

cause

pain

and

distraction/abandonment from task, and that Plaintiff’s spinal
impairments

meet

the

requirements

of

listing

(Doc. 14 at 2-3; Doc. 10-2 at 218-23).

level

severity.

The Government counters

that the ALJ properly rejected Dr. Vandenberg’s opinions as they
are

inconsistent

with

the

substantial

evidence

in

the

case,

including Dr. Vandenberg’s own treatment records, the treatment
records of Dr. David Walsh, M.D., and with Plaintiff’s activities
of daily living.

(Doc. 17 at 8-11).

Having reviewed the record

at length, the Court finds that Plaintiff’s claims are without
merit.
Residual functional capacity is a measure of what Plaintiff
6

Dr. Vandenberg actually opined in a Physical Capacities
Evaluation dated July 31, 3014, that Plaintiff could sit for a
total of four hours in an eight-hour work day and stand/walk for
a total of two hours in an eight-hour work day.
(Doc. 10-2 at
221).

7

can do despite his or her credible limitations.
404.1545.

Determinations

of

a

claimant’s

See 20 C.F.R. §

residual

functional

capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability

to

work

despite

his

or

her

supported by substantial evidence.

impairments,

and

must

be

See Beech v. Apfel, 100 F.

Supp. 2d 1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546
and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997));
Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 2012 WL
997222,

*4

determined
claimant

(M.D.
the

Ala.

March

23,

2012).

plaintiff’s

residual

the

of

bears

burden

Once

functional

demonstrating

the

ALJ

has

capacity,

the

that

decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).

the

ALJ’s

See Flynn v.
Plaintiff has

failed to meet her burden in this case.
As stated, Plaintiff argues that the RFC in this case is not
supported by substantial evidence because the ALJ gave no weight
to

the

opinions

Vandenberg,
process,

the

M.D.
ALJ

of

her
As

is

treating
part

tasked

of

rheumatologist,
the

with

disability

weighing

the

Dr.

Michael

determination
opinions

and

findings of treating, examining, and non-examining physicians.
In reaching a decision, the ALJ must specify the weight given to
different medical opinions and the reasons for doing so.

See

Winschel v. Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th

8

Cir. 2011).

The failure to do so is reversible error.

See

Williams v. Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL
413541, *1 (M.D. Fla. 2009).
When
ALJ

weighing

the

opinion

of

a

treating

physician,

the

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other
hand,

is

not

physician.

entitled

to

the

same

deference

as

a

treating

Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,

2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).

An ALJ is also “required to consider the

opinions of non-examining state agency medical and psychological
consultants

because

they

‘are

highly

qualified

physicians

and

psychologists who are also experts in Social Security disability
evaluation.’”

Milner v. Barnhart,

275 Fed. Appx. 947, 948 (11th

Cir. 2008) (unpublished) (citing 20 C.F.R. § 404.1527(f)(2)(i)).
“The ALJ may rely on opinions of non-examining sources when they
do not conflict with those of examining sources.”

Id. (citing

Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or

9

non-examining

physicians,

testimony

any

of

good

medical

cause

source

exists

when

unsupported by the evidence of record.
F.3d 1232, 1240 (11th Cir. 2004).
where

a

doctor’s

opinions

are

it

to

is

discredit

contrary

to

the
or

Phillips v. Barnhart, 357

“Good cause may also exist

merely

conclusory,

inconsistent

with the doctor’s medical records, or unsupported by objective
medical

evidence.”

Hogan

v.

Astrue,

2012

U.S.

Dist.

108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).

LEXIS

The ALJ is

“free to reject the opinion of any physician when the evidence
supports a contrary conclusion.”

Sryock v. Heckler, 764 F.2d

834, 835 (11th Cir. 1985) (per curiam) (citation omitted); Adamo
v. Commissioner of Soc. Sec., 365 Fed. Appx. 209, 212 (11th Cir.
2010) (The ALJ may reject any medical opinion if the evidence
supports a contrary finding.).
In her decision, the ALJ found that Plaintiff has the severe
impairments
lumbar

of

spine,

fibromyalgia,

degenerative

disc

osteoarthritis
low

grade

disease
of

of

her

the

cervical

bilateral

inflammatory

arthritis,

and

knees,
chronic

obstructive pulmonary disease, obstructive sleep apnea, gastro
esophageal reflux disease, hypertension, and obesity.
at 15).

(Doc. 9-2

Even so, the ALJ found that Plaintiff still has the RFC

to perform a range of light work with the following restrictions:
Plaintiff can lift/carry 20 pounds occasionally and 10 pounds
frequently,

can

sit

for

6

hours

10

in

an

8

hour

workday,

can

stand/walk in combination for 6 hours in an 8 hour workday, can
frequently

reach

overhead

in

all

directions

bilaterally,

can

occasionally climb ramps and stairs, and can occasionally stoop,
kneel, crouch, and crawl.

(Id. at 20).

ladders, ropes, or scaffolds.

Plaintiff cannot climb

(Id.).

Based upon the testimony of the vocational expert, the ALJ
concluded that Plaintiff is able to perform her past relevant
work as a purchasing agent.
that

Plaintiff

is

not

(Id. at 25).

disabled.

For

Thus, the ALJ found

the

reasons

discussed

herein, the Court finds that the ALJ’s decision is supported by
substantial evidence.
First, with respect to Plaintiff’s treating rheumatologist,
Dr. Vandenberg, the record shows, as the ALJ found, that Dr.
Vandenberg’s opinions were inconsistent with his own treatment
records, as well as those of treating physician Dr. Walsh, and
with Plaintiff’s activities of daily living.

In a series of

reports dated July 31, 2014, Dr. Vandenberg essentially opined
that Plaintiff cannot work due to back pain from spinal stenosis
and

nerve

root

compression,

performing

work

and

activity.

(Doc.

records

show

that

would

10-2
Dr.

at

which

would

greatly
218,

increase

223).

Vandenberg

distract

her

from

with

physical

Plaintiff’s

treatment

diagnosed

Plaintiff

with

fibromyalgia, low-grade inflammatory arthritis, chronic low back
pain with spinal stenosis at L3-4 with L4 benign lesion, cervical

11

spondylosis with questionable upper extremity radiculopathy, and
osteoarthritis of the knees, which he treated with medication and
injections.

(Doc. 10-2 at 88, 90, 264, 267).

Dr. Vandenberg’s

treatment records also show, however, that despite Plaintiff’s
complaints
regularly

of

pain

documented

from

these

essentially

conditions,
normal

Dr.

Vandenberg

examination

findings,

including good, full, and normal range of motion, strength, and
stability in upper and lower extremities without limitations or
pain, no tenderness to direct palpation to the lumbar spine or
sacroiliac areas, no active synovitis in her upper and lower
extremities,

normal

sensation,

no

limp,

unremarkable ankle and foot examination.

normal

gait,

and

(Doc. 10-2 at 88-97,

102, 106-07, 149, 261, 265, 268, 273-76).

A 2013 MRI of the

cervical spine showed C5-6 cervical cord minimally effaced with
moderate bilateral neuroforaminal narrowing (Doc. 10-2 at 88),
and a 2012 MRI of the lumbar spine showed L3-4 disk bulge, mild
to

moderate

spinal

stenosis

with

narrowing, with nonspecific lesions.

mild

bilateral

foraminal

(Doc. 10-2 at 99).

In addition, Plaintiff’s treatment records in December 2012
from Dr. David Walsh, M.D., reflect that he treated Plaintiff for
back and leg pain with epidural steroid injections, diet, and
exercise.

(Doc. 10-2 at 3-5).

Dr. Walsh noted tenderness in

Plaintiff’s lumbar spine and observed that she bent forward at
the

waist

when

standing

and

could

12

not

walk

very

far

without

stopping.

(Doc. 10-2 at 7).

However, Dr. Walsh also observed

that Plaintiff had no limp and stated that she was sixty years
old, and that her spinal stenosis was “very very typical.”
10-2 at 6-7).

(Doc.

The following year, in December 2013, Dr. Walsh

again observed that Plaintiff had tenderness at L5S1, that her
sensation was “ok,” and that she moved slowly with the appearance
of pain.

However, he found upon physical examination that her

deep tendon reflexes were normal and symmetrical in the upper and
lower extremities and again instructed her to exercise regularly,
to stretch, and to incorporate physical conditioning into her
treatment plan.
records,
exercise

(Doc. 10-2 at 225-26).

including

his

regularly

inconsistent

with

as
the

repeated
part

instructions

of

severity

Dr. Walsh’s treatment

her

of

to

Plaintiff

treatment

limitations

plan,

opined

by

to
are
Dr.

Vandenberg.
In

addition

to

Plaintiff’s

treatment

records,

the

record

confirms the ALJ’s findings related to Plaintiff’s activities of
daily living, which include preparing meals, performing household
chores

such

as

washing

dishes,

changing

bed

linens,

dusting,

doing laundry, watering grass and shrubs, walking and caring for
her dog, and driving a car.
24).

While there is no question that Plaintiff has the severe

impairments
lumbar

(Doc. 9-2 at 24; Doc. 10-1 at 22-

of

spine,

degenerative

disc

osteoarthritis

13

disease
of

her

of

the

cervical

bilateral

and

knees,

fibromyalgia,

low

grade

inflammatory

arthritis,

chronic

obstructive pulmonary disease, obstructive sleep apnea, gastro
esophageal reflux disease, hypertension, and obesity (Doc. 9-2 at
15),

the

record

supports

the

ALJ’s

determination

that

the

severity of limitations expressed in Dr. Vandenberg’s opinions is
inconsistent

with

detailed above.
cause to
The

the

substantial

evidence

(Doc. 9-2 at 24).

in

this

case,

as

Therefore, the ALJ had good

discredit those opinions.
Court

further

finds,

based

on

the

evidence

detailed

above, that substantial evidence supports the ALJ’s finding that
Plaintiff has the residual functional capacity to perform a range
of light work, with the stated restrictions. 7

Indeed, Plaintiff

has failed to show that any limitations caused by her impairments
exceed the RFC and are not accommodated by the RFC and its stated
restrictions.

Accordingly, Plaintiff’s claim must fail.

B. Substantial evidence
credibility finding.

supports

the

ALJ’s

Plaintiff also argues that the ALJ erred in evaluating the
credibility of her testimony regarding the severity of her pain.
(Doc.

14

at

5-9).

The

Commissioner

7

counters

that

the

ALJ

As stated, the ALJ found that Plaintiff has the RFC to perform a
range of light work but that she can only lift/carry 20 pounds
occasionally and 10 pounds frequently, can sit for 6 hours in an
8 hour workday, can stand/walk in combination for 6 hours in an 8
hour workday, can frequently reach overhead in all directions
bilaterally, can occasionally climb ramps and stairs, can
occasionally stoop, kneel, crouch, and crawl, and cannot climb
ladders, ropes, or scaffolds. (Doc. 9-2 at 20).

14

properly

discounted

Plaintiff’s

credibility

based

on

the

fact

that her testimony was inconsistent with the substantial medical
evidence in the case.

(Doc. 17 at 11).

Having reviewed the

evidence at length, the Court finds that Plaintiff’s claim is
without merit.
When

evaluating

symptoms,

the

statements,

ALJ

a

claim

considers

statements

by

based
medical

the

on

disabling

findings,

treating

subjective

a

claimant’s

physician

or

other

persons, and evidence of how the subjective symptoms affect the
claimant’s daily activities and ability to work.
416.929(a).

20 C.F.R. §

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 standard applies.
standard

requires:

“(1)

evidence

of

an

underlying

That

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.”

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 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
15

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 . . . standard
is itself sufficient to support a finding of disability.”

Foote

v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995).
When

evaluating

a

claim

based

on

disabling

subjective

symptoms, the ALJ must consider all of the claimant’s statements
about his or her symptoms and determine the extent to which the
symptoms

can

reasonably

be

objective medical evidence.

accepted

as

consistent

See 20 C.F.R. § 404.1528.

with

the

If an ALJ

decides not to credit a claimant’s testimony about his or her
subjective

symptoms,

“the

ALJ

must

articulate

explicit

and

adequate reasons for doing so or the record must be obvious” as
to the finding.

Strickland v. Commissioner of Soc. Sec., 516

Fed. Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing Foote,
67

F.3d

at

discrediting

1562).
testimony

Failure

to

related

to

articulate
pain

or

the
other

reasons

for

subjective

symptoms requires, as a matter of law, that the testimony be
accepted as true.
The

Eleventh

Holt, 921 F.2d at 1223.
Circuit

has

held
16

that

the

determination

of

whether

objective

medical

impairments

could

reasonably

be

expected to produce subjective symptoms 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 finding related to a
claimant’s

claims

of

substantial

supporting

disabling
evidence

in

subjective
the

symptoms,

record.

See

with

Nye

v.

Commissioner of Social Sec., 524 Fed. Appx. 538, 543 (11th Cir.
2013) (unpublished).
“Regulation
416.929(c)(4)

96–7p

require

subjective complaints.”

and
the

20

ALJ

C.F.R.
to

§§

consider

404.1529(c)(4)
the

consistency

and
of

Lindsey v. Colvin, 2016 U.S. Dist. LEXIS

129547 *12-13, 2016 WL 5253219, *5 (N.D. Ala. Sept. 22, 2016)
(quoting Majkut v. Commissioner of Soc. Sec., 394 Fed. Appx. 660,
663 (11th Cir. 2010)).

SSR 16-3p is a new ruling which replaces

SSR 96-7p and provides as follows: “[w]e are eliminating the use
of the term ‘credibility’ from our sub-regulatory policy, as our
regulations do not use this term.
subjective

symptom

evaluation

individual’s character.

is

In doing so, we clarify that
not

an

examination

of

an

Instead, we will more closely follow our

regulatory language regarding symptom evaluation.”

17

SSR 16-3p,

2016 SSR LEXIS 42016, WL 1119029, *1.

The effect of the new

ruling has been described as follows:
Both SSR 96-7p and SSR 16-13p direct that
evaluation
of
a
claimant’s
subjective
symptoms shall consider all evidence in the
record.
Both Rulings also incorporate the
regulations, 20 C.F.R. §§ 404.1529(c)(3) and
416.929(c)(3), that identify factors to be
considered
in
evaluating
the
intensity,
persistence and functionally-limiting effects
of the symptoms, including a claimant’s daily
activities; the nature, duration, frequency
and intensity of her symptoms; precipitating
and aggravating factors; and the type of
medication and other treatment or measures
used for the relief of pain and other
symptoms,
i.e.,
the
familiar
factors
identified in Polaski v. Heckler, 739 F.2d
1320 (8th Cir. 1984).
But while SSR 96-7p
expressly provided that a credibility finding
was
required
to
be
made
under
those
regulations, SSR 16-3p expressly provides
that use of the term “credibility” was being
eliminated because the SSA regulations did
not use it. 81 F.R. at 14167. SSR 16-3p
further provides: In [eliminating reference
to “credibility”], we clarify that subjective
symptom evaluation is not an examination of
an individual’s character. Instead, we will
more closely follow our regulatory language
regarding symptom evaluation. Id. SSR 16-3p
also expressly provides that the ALJ may not
make
conclusory
statements
about
having
considered the symptoms, or merely recite the
factors described in the regulations. Rather,
the determination or decision must contain
specific reasons for the weight given to the
individual’s symptoms, be consistent, and
supported by the evidence, and be clearly
articulated
so
the
individual
and
any
subsequent
reviewer
can
assess
how
the
adjudicator
evaluated
the
individual’s
symptoms. Id. at 14171.
Martsolf v. Colvin, 2017 U.S. Dist. LEXIS 2748, *14-15, 2017 WL

18

77424, *5 (W.D. Mo. Jan. 9, 2017); see also McVey v. Commissioner
of Soc. Sec., 2016 U.S. Dist. LEXIS 93884, *14, 2016 WL 3901385,
*5 (M.D. Fla. July 19, 2016) (holding that ALJ erred in basing
her credibility determination on the fact that the claimant had
made inconsistent statements concerning his sobriety, a matter
which was unrelated to his impairment); Lindsey, 2016 U.S. Dist.
LEXIS 129547 at *13, 2016 WL 5253219 at *5 (“[i]nconsistencies
and

conflicts

in

the

record

evidence

and

the

claimant’s

statements about her symptoms may provide a basis for discounting
the extent of claimant’s statements.”).
In support of her argument that her claims of pain were
credible, Plaintiff points to her hearing testimony that she was
sixty-two

years

old;

that

she

was

5’2”

tall

and

weighed

204

pounds; that she last worked on December 14, 2012 as a Plant
Buyer for fifteen years; that she worked at the same company for
forty-two years; that she had severe pain; that it hurt to sit
for over an hour with the pain becoming unbearable; that she had
taken anti-inflammatories and pain medication, had caudal blocks
and epidurals in her back, and had physical therapy; that the
pain medicine took the edge off the pain, but she still had pain
going all the way to her toes; that she had fibromyalgia which
caused pain all over her body; that the most she could walk is
thirty to forty-five minutes; that she could stand no more than
an hour; that she could sit a maximum of two hours; that she

19

could lift no more than ten pounds; that she could grocery shop
using an electric cart; that she did minimal driving; that it was
difficult to go up a set of stairs; that she could not bend over
to pick something up without having back spasms; that she could
not use her knees to stoop or squat; that she could pick up a
coffee cup and open a door; that she had numbness in her hands;
that she could make a simple meal for herself; that she could
bathe

and

dress

herself;

that

she

could

wash

dishes

and

do

laundry if she spread it out over time; that she could not sweep,
mop, or vacuum, make her bed, or clean her bathroom; that at the
end of walking for thirty to forty-five minutes she would have to
sit or lie down for at least a couple of hours; that at the end
of standing for an hour she would have to sit and rest about two
hours; that most days she laid down four or five times during the
day; and that she used ice packs and heat pads to relieve the
pain in addition to changing positioning regularly.
5-6).

(Doc. 14 at

Plaintiff argues that this evidence is consistent with her

diagnosis of fibromyalgia and back pain several years before she
stopped working and with the fact that she worked for forty-two
years before she applied for benefits and stopped working.
14 at 9-10).

(Doc.

Plaintiff argues that the ALJ failed to mention

that she had worked for forty-two years at one place prior to
stopping work due to disability.
The

record

shows,

(Id. at 10).

however,

20

that

the

ALJ

considered

Plaintiff’s

testimony

in

great

detail

and

found

that

her

medically determinable impairments could reasonably be expected
to cause some of her alleged symptoms.
that

Plaintiff’s

persistence,
entirely

and

statements

limiting

credible

concerning

effects

of

they

were

because

However, the ALJ found

these

the

intensity,

symptoms

inconsistent

were
with

not
the

substantial objective medical evidence in the case, including her
repeated examination findings that showed normal/full range of
motion, normal strength, and stability in the upper and lower
extremities
synovitis
treating

without

limitations

(inflammation),
physician

to

no

or

limp,

exercise,

and

pain,

stable

repeated

myalgias,

orders

significant

from

activities

no
her
of

daily living, such as preparing meals, washing dishes, changing
bed linens, dusting, doing laundry, watering grass and shrubs,
walking and caring for her dog, and driving a car.

(Doc. 9-2 at

21-23; Doc. 10-2 at 5-7, 88-99, 102, 106-07, 149, 225-26, 261,
265, 268, 273-76; Doc. 10-1 at 22-24).

While the ALJ did not

discuss every piece of evidence raised by Plaintiff in her brief,
such as her forty-two year working history before she filed for
disability,

the

record

is

clear

that

the

ALJ

considered

Plaintiff’s testimony in detail, assessed her overall condition,
and simply found that the substantial medical evidence did not
support the level of pain that she claimed.

(Doc. 9-2 at 23-24).

Contrary to Plaintiff’s argument, “[t]he ALJ is not required to

21

specifically refer to every piece of evidence to explain [her]
credibility finding, so long as the decision shows consideration
of the claimant’s condition as a whole.”

Patterson v. Berryhill,

2017 U.S. Dist. LEXIS 147190, *7, 2017 WL 4018030, *3 (M.D. Ala.
Sept.

12,

2017)

(citing

Mitchell

v.

Commissioner,

Soc.

Sec.

Admin., 771 F.3d 780, 782 (11th Cir. 2014)).
Based on its review of the record, the Court finds that the
ALJ did consider the Plaintiff’s condition as a whole and, based
on the medical evidence detailed above, the ALJ’s determination
that

Plaintiff’s

entirely

credible

statements
is

relating

supported

to

by

her

pain

substantial

were

not

evidence.

Therefore, Plaintiff’s claim must fail.
VII.

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

and

disability

insurance

benefits

be

AFFIRMED.
DONE this 27th day of September, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

22