Witherspoon v. Astrue
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 3/18/2013. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 19 & 20 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States Magistrate Judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of the parties at the February 15, 2013 hearing before the
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Colvin is
substituted for Michael J. Astrue as the proper defendant in this case.
Court, it is determined that the Commissioner’s decision denying plaintiff benefits
should be affirmed.2
Plaintiff alleges disability due to diabetes mellitus, hypertension, left ankle
injury, obesity, degenerative joint disease of the knees, and depression. The
Administrative Law Judge (ALJ) made the following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014 (Exhibit 4D).
The claimant has not engaged in substantial gainful activity since
February 2, 2010, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant’s earnings record shows that in the second quarter of 2010,
she received $1,434 from her former employer, New Era Cap Company.
The claimant’s medical records indicate that she was on medical leave
from this job from February to April 2010 due to a left ankle injury.
According to the claimant’s testimony, she had problems related to this
injury after she returned to work. Shortly thereafter, she was laid off
because the plant was closing down, and her position was eliminated. On
the basis of this evidence, the undersigned concludes that the claimant’s
limited work activity after the alleged disability onset date did not rise to
the level of substantial gainful activity.
The claimant has the following severe impairments: diabetes
mellitus; hypertension; history of left ankle sprain and plantar fasciitis;
obesity; and degenerative joint disease of the knees (20 CFR 404.1520(c)
The claimant’s treatment records from her primary care physician, Dr.
Ronnie Chu, document a history of diabetes, hypertension, and obesity.
There are indications that her diabetes and hypertension have been
uncontrolled at times, but it also appears that she has not consistently
complied with her prescribed treatment regimen. . . .
The medical evidence of record shows that on January 27, 2010, the
claimant tripped on some steps at work and injured her left ankle. Her
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 19 & 20 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
employer referred her to Dr. Keith Dismukes, who examined the claimant
on February 3, 2010, noting that the x-ray of her left foot and ankle
showed no fracture and there was minimal, if any, swelling on
examination. Dr. Dismukes diagnosed a left ankle sprain and prescribed
an air cast and crutches, advising the claimant to remain off work for the
Dr. Dismukes referred the claimant to Dr. Stephen Ikard at the University
Orthopedic Clinic in Tuscaloosa. Dr. Ikard examined the claimant on
February 10, 2010, noting that there was no swelling or limitation in the
range of motion of the claimant’s left foot or ankle, but she was still
experiencing pain with weight bearing. The claimant returned on
February 17 and 24, reporting that she was still having left ankle pain,
although Dr. Ikard noted no significant abnormalities. On February 24, Dr.
Ikard prescribed a brace for the claimant’s ankle and referred her for
physical therapy. When she returned on March 11, 2010, she reported that
she had experienced some improvement, but her ankle was still very sore.
Dr. Ikard noted that she walked with a minimal limp. On examination,
there were no sensory, reflex, or motor abnormalities, and the claimant
demonstrated a good range of motion with no instability to stress testing.
Dr. Ikard advised her that she could return to work on March 15, 2010, at
a seated position, if possible.
On April 15, 2010, Dr. Ikard noted that the claimant’s ankle pain was
improved, but he diagnosed plantar fasciitis. He noted that her
musculoskeletal examination was otherwise normal, and there were no
signs of any neurological abnormalities. He instructed the claimant in
stretching exercises to do at home and advised her about appropriate
footwear and anti-inflammatory medication. He indicated that she could
go back to work the next day.
On June 2, 2010, the claimant sought treatment from Dr. Judy Travis for
pain in her left ankle and the bottom of her left foot. The claimant’s blood
pressure was in the normal range at 120/70, but her blood sugar level was
very high at 372. Dr. Travis prescribed Glyburide, Amlodipine, and daily
aspirin therapy. It does not appear that she prescribed any treatment for
the claimant’s complaint of left ankle and foot pain. The claimant returned
on June 14, 2010, complaining of left wrist pain. The examination notes
indicate that Dr. Travis ordered x-rays of the claimant’s left hand, but
there is no indication of the results. Dr. Travis continued the claimant on
Glyburide and Amlodipine and did not prescribe any medication for pain
or inflammation. At this visit, the claimant’s blood pressure was
moderately elevated at 150/82, but it does not appear that her blood sugar
On July 15, 2010, the claimant returned to Dr. Chu’s office without any
complaint of ankle pain, and nurse practitioner Bradford noted that her
gait was normal. On examination, there were no signs of any motor,
sensory, or reflex abnormalities, and the claimant demonstrated normal
strength and tone in her upper and lower extremities, bilaterally. The
claimant’s blood pressure was 158/88. Ms. Bradford noted that the
claimant had been noncompliant with treatment, and she advised the
claimant to take her medications as prescribed; however, she described
the claimant’s diabetes as uncomplicated and her hypertension as benign.
She added several medications for treatment of these chronic conditions.
When the claimant returned on July 21, 2010, her blood pressure was
170/110, and she told Dr. Chu that it had been elevated for the past week
because of anxiety. She did not report any musculoskeletal pain. Dr. Chu
noted that the claimant’s average glucose was 279, and her last
hemoglobin A1C level was 11. He discontinued the claimant’s Avandia
prescription and started her on Victoza, noting that if her glucose started
to be too low, he would stop her Glyburide. He provided diet and exercise
recommendations and advised her to follow up in three weeks or sooner if
It does not appear that the claimant ever returned to Dr. Chu’s office for
further treatment for her diabetes, hypertension, or other chronic
On January 11, 2011, the claimant returned to Dr. Travis’s office,
complaining that her left foot was still hurting. She indicated that the pain
was worse when she first woke up in the mornings. Her examination
notes from this visit do not indicate any abnormal musculoskeletal
findings, and the only medications she was prescribed were Glyburide for
her diabetes and Amlodipine for her hypertension. Her non-fasting blood
glucose level was 442, but her blood pressure was in the normal range at
Dr. Huey Randolph Kidd performed a consultative medical examination
of the claimant on July 19, 2011. The claimant reported pain in her feet,
worse on the left, and stated that this pain had persisted in spite of
extensive treatment, including physical therapy and injections. She said
that her foot hurt all day, every day, but the pain was worse when she first
got up in the morning and started to walk. The claimant also complained
of pain in both knees, saying that they popped when she walked. She
reported that her current medications included Acyclovir (an anti-herpetic
medication), Amlodipine, and Glyburide. She did not indicate that she
was taking any medications for pain or inflammation. Dr. Kidd noted that
the claimant was 5’6” tall and weighed 199 pounds, and her blood
pressure was 170/90. On examination, the claimant demonstrated full and
equal strength and range of motion in  her upper and lower extremities,
including both knees and ankles, but she walked with a limp on the left
side. Dr. Kidd noted that the claimant could walk on her heels and toes
and bend over toward her toes, reaching about halfway down her shins,
but she was very slow. She was able to squat while holding on to the exam
table. Dr. Kidd ordered x-rays of the claimant’s knees, which revealed
moderate degenerative changes consistent with bilateral osteoarthritis,
mild on the left and mild to moderate on the right.
In addition to the physical problems discussed above, the medical
evidence of record contains indications of some mental health issues. On
March 22, 2011, the claimant sought treatment at the West Alabama
Health Center. She reported no history of mental health treatment but
indicated that she was feeling sad and stressed. She reported a major
problem with depression, minor memory difficulties, and moderate
problems with her general physical health, noting that she was a diabetic.
The claimant was diagnosed with major depressive disorder without
psychotic features. Her treatment plan indicates that she socialized by
attending Bethlehem Baptist Church and devoted her leisure time to
fishing. She returned for counseling on April 22, 2010, reporting that she
was not having any depression. She explained that she was concerned
about some personal matters but was coping. She indicated that her
recovery goal was to start a business. Her therapist noted that she was
calm with a normal affect and was making moderate progress. The
therapist encouraged the claimant to cultivate positive relationships, use
supportive therapy, structured activities, and family support.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
The claimant’s medically determinable mental impairment of major
depressive disorder does not cause more than minimal limitation in the
claimant’s ability to perform basic mental work activities and is therefore
Because the claimant’s medically determinable mental impairment causes
no more than “mild” limitation in any of the first three functional areas
and “no” episodes of decompensation that have been of extended
duration, it is nonsevere.
. . . [T]he following residual functional capacity assessment reflects the
degree of limitation the undersigned has found in the “paragraph B”
mental function analysis.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that
the claimant requires a sit/stand option permitting her to change
positions at will. She can perform unskilled work, consisting of simple,
routine, repetitive tasks consistent with SVP 1 or 2.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and
96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
On March 28, 2010, the claimant completed a function report in which she
stated that she had foot pain that sometimes kept her from sleeping, and
she was unable to walk or stand for long. She indicated that she had no
difficulty caring for her personal needs, and about once a week, she
performed household chores, such as preparing simple meals, washing
laundry, ironing, and cleaning. She reported that she did not do yard
work because she could not stand on her feet that long, but she indicated
that she drove a car and shopped for groceries once or twice a month for
two to three hours [at] a time. She indicated that she went to church as
often as she could and spent time every day talking to people on the
phone or computer. She reported that she managed her financial affairs.
The claimant listed her hobbies and interests as reading, traveling, and
talking with other people, and she indicated that she did these things as
much and as often as she could, but her participation in social activities
[was] limited because she could not stand like she used to do. She
indicated that she had difficulty with walking and standing and stated
that she could not walk or stand on her left foot for longer than 5-10
minutes. She indicated that she could only walk for about 30 minutes
before needing to stop and rest, and she still occasionally used crutches
that had been prescribed on February 2, 2010. The claimant indicated that
she had no problem getting along with other people, but she could not
pay attention for long, and her ability to follow written and spoken
instructions was only fair. She indicated that she did not handle stress
well, but she could cope fairly well with changes in routine.
At the hearing on June 7, 2011, the claimant testified that she was
diagnosed with diabetes about 15 or 16 years ago and was prescribed
insulin about 10 years ago. She said that she only remained on insulin for
about a year. She explained that Dr. Chu advised her she could stop
taking insulin if she lost 100 pounds. Although she did not lose any
weight, her blood sugar stabilized on insulin to the point that Dr. Chu
switched her from insulin to oral diabetes medication, and she has been
taking pills for her diabetes since then. She admitted that she does not
check her blood sugar as often as she should, explaining that she is
supposed to check it daily but usually only checks it every two weeks. She
said that when she does check her blood sugar level, it is usually in the
200-400 range. She said that she keeps a log of her blood sugar readings
and takes it with her when she goes to her doctor appointments, but Dr.
Travis has not changed her diabetes medications or advised her to lose
weight and seems to think her diabetes is reasonably well controlled. The
claimant testified that she has pain in her feet, which she described as a
burning, tingling sensation like pins sticking in her feet. She rated the
severity of this pain as 9 on a 0-10 pain scale. She also reported frequent
urination, fatigue, thirst, numbness in her hands, and difficulty sleeping.
She also complained of continuing pain in her left ankle and in both knees,
explaining that her right knee was worse than the left, and the pain in that
knee and her left ankle was 9/10 in severity.
The claimant testified that she has been taking medication for high blood
pressure for the past 18 years, but her blood pressure stays high and is
elevated every time she goes to the doctor. She said that her doctor has
advised her to avoid salt and sodas, and her blood pressure has been
slightly better since she started following the recommendation, but it still
stays too high, and her doctor has indicated that she may change her
The claimant testified that she lives alone, but her adult children live
nearby and come over to help her with household chores. She said that
she sweeps about once a week and tries to do whatever is needed, but her
son does her laundry, and she uses paper plates, so she does not have any
dishes to wash. She said that she drives wherever she needs to go, and she
shops for groceries. In terms of her specific limitations, the claimant said
that she can sit for 30-45 minutes, stand maybe five minutes at most, and
walk for 10-15 minutes. She said that she can lift a gallon of milk but has
to use both hands.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.
In terms of the claimant’s alleged ankle pain, the medical evidence of
record provides only limited support for her allegations. On March 15,
2010, less than two months after she sprained her ankle, Dr. Ikard released
the claimant to return to work, specifying that she should work in a seated
position, if possible. She testified that no seated work was available, and
she tried to work while standing but had to leave after an hour. That
testimony is generally consistent with Dr. Ikard’s exam findings and
recommendations; however, the undersigned notes that on April 15,
201, he determined that her ankle was improved, and he released her to
work without any restrictions. Although he diagnosed plantar fasciitis, he
did not indicate any work-related limitations arising from this condition.
A progress note from the claimant’s physical therapist on April 15, 2010,
indicates that her pain was reduced, and her gait and functioning were
significantly improved, but she continued to express subjective complaints
of pain, which the therapist described as “somewhat inconsistent”. This
evidence indicates significant healing of the claimant’s ankle injury.
Her subsequent medical treatment records reflect periodic complaints of
left ankle pain. She reported this pain to Dr. Travis in June 2010 but did
not mention it to Dr. Chu or nurse practitioner Bradford in July 2010.
Although she did complain of left foot and ankle pain in June 2010 and
January 2011, Dr. Travis did not prescribe any pain or anti-inflammatory
medications, nor did she refer the claimant for any orthopedic treatment
or physical therapy. It appears that no other provider has prescribed any
medication for the claimant’s alleged knee and ankle pain. On March 22,
2011, when the claimant went to West Alabama Mental Health Center, she
reported that the only prescribed medications she was taking were
Acyclovir, Amlodipine, and Glyburide, and she was not taking any overthe-counter medications. This lack of treatment and medication is
markedly inconsistent with the extreme levels of pain the claimant
described in her hearing testimony.
The claimant does not take any pain medication, and her July 2011 knee xrays showed only mild osteoarthritis of her left knee and mild to moderate
osteoarthritis on the right. Accordingly, the medical evidence of record
does not fully support the claimant’s alleged limitations with regard to
sitting, standing, and walking. The undersigned has limited the claimant
to light work with a sit/stand option in order to accommodate any
limitations arising from her knee problems. In doing so, the undersigned
has considered the possible exacerbating effects of the claimant’s obesity
on the arthritis in her weight-bearing joints in accordance with Social
Security Ruling 02-1p.
The medical evidence of record does not document any complications
arising from the claimant’s poorly controlled diabetes and hypertension,
such as arterial damage, aneurysm, kidney disease, or heart damage.
Although she testified that she experiences blurred vision two or three
times a week, there are no references to this complaint in her medical
treatment records, and Dr. Kidd noted that her vision exam was normal
with 20/50 vision in both eyes, corrected to 20/20 with glasses. The
claimant testified that she has severe neuropathy pain in her feet, as well
as numbness in her hands, but these complaints are not reflected in the
medical evidence of record. There are no indications of any sensory
abnormalities, and she has not been prescribed any medication to treat
nerve pain. When Dr. Kidd examined the claimant on July 19, 2011, he
noted that she had a full range of motion in both of her upper and lower
extremities, and he did not indicate any signs of neuropathy.
Although the claimant’s treatment records from West Alabama Mental
Health Center do not indicate that her depression significantly limits her
ability to function, the undersigned has considered the claimant’s
depression in limiting her to unskilled work.
The claimant’s receipt of unemployment benefits raises a considerable
credibility issue. Although she was apparently employed by New Era Cap
Company during the third and fourth quarters of 2009, she also received
unemployment benefits in these quarters. She collected no unemployment
benefits during the first quarter of 2010, but she did receive
unemployment payments during the second, third, and fourth quarters of
the year. She testified that she is continuing to collect these payments, but
they will run out soon. The claimant’s receipt of unemployment benefits
indicates that she has represented herself to the State of Alabama as ready,
willing, and able to work, while at the same time indicating to the Social
Security Administration that she has impairments of such severity that she
is completely unable to work. These mutually exclusive representations
raise significant issues of credibility. By definition, disabled persons are
not eligible for unemployment benefits. According to Alabama state law,
if sickness or injury prevents an applicant from working on a job for
which he or she is qualified based on past experience and/or training,
unemployment benefits can be denied until such time that the claimant
can provide proof that he or she is able to work. Further, an applicant is
required to make an active search for work each week that he or she
wishes to receive unemployment benefits. At the disability hearing, the
claimant admitted that she calls the unemployment office every week and
says that she is actively looking for a job, although she has not actually
applied for any jobs since her alleged onset date of disability.
The record also shows the claimant reported that her plan was to start her
own business, an admission that is clearly inconsistent with any allegation
of disabling symptoms.
As for the opinion evidence, the undersigned gives significant weight to
Dr. Kidd, who provided a medical source statement indicating that the
claimant could frequently lift and carry up to 20 pounds, and during the
course of an eight-hour workday, she could sit for six hours at a time,
eight hours in total, stand for two hours at a time, three hours in total, and
walk for one hour at a time, two hours in total. He indicated that there
were no limitations in her ability to use her upper extremities for reaching,
handling, fingering, feeling, and pushing/pulling, and she could
continuously use her feet to operate foot controls. Dr. Kidd indicated that
the claimant could occasionally perform postural activities, such as
climbing, balancing, stooping, kneeling, crouching, and crawling. He
specified that the claimant had no limitations in her ability to see and
hear. This assessment merits significant weight, as it is fully consistent
with the examination findings and with other medical evidence of record,
which indicate no chronic problems related to claimant’s spine or upper
extremities and no indications of any neurosensory, motor, or reflex
The undersigned gives only limited weight to the medical source
statement provided by Dr. Judy Travis on May 5, 2011. Dr. Travis
indicated that during the course of an eight-hour workday, the claimant
could sit for four hours and stand/walk for less than one hour. She
specified that the claimant could lift and carry up to one pound frequently
and five pounds occasionally. Dr. Travis indicated that the claimant could
never work with or around hazardous machinery and only rarely perform
pushing/pulling actions, climb stairs or ladders, and balance. She
indicated that the claimant could occasionally operate motor vehicles,
bend, and stoop, and she could frequently reach overhead. Dr. Travis
specified that the claimant could frequently use her hands for gross
manipulation but only occasionally for fine manipulation. She predicted
that the claimant would miss more than three days of work per month
because of her impairments or the need for treatment. She further
indicated that the claimant experienced pain of such severity as to distract
her from adequate performance of daily activities, and physical activity
would greatly increase her pain. She further indicated that the claimant
experienced significant medication side effects, which could be expected
to limit the effectiveness of her activities of work or daily living. Dr. Travis
stated that these limitations were caused by poorly-controlled diabetes,
peripheral neuropathy, left foot tendonitis, and severe degenerative
arthritis of the left knee.
This medical source statement merits little weight, as it is markedly
inconsistent with the medical evidence of record, including the claimant’s
treatment records from Dr. Travis’s office. These records reflect no
diagnoses of peripheral neuropathy or tendonitis, and there are no
findings elsewhere in the medical evidence of record consistent with these
diagnoses. Although Dr. Travis indicated that the claimant suffers severe
pain and medication side effects, she has not prescribed any pain
medications or medications normally prescribed for nerve pain, such as
Lyrica or Neurontin. There are no documented problems regarding the
claimant’s use of her hands for gross or fine manipulation. Neurological
testing remained intact and the consultative examiner found her fine and
gross manipulative ability to be fully intact. In fact, the claimant admitted
she uses a computer two to three hours a day. She plays solitaire and
other computer games, an activity that shows she retains use of her hands
for manipulative motions. There is no medical corroboration for the
reported need for five to six unscheduled bathroom breaks, inability to
work an eight hour day or to miss up to three days of work a month.
There are no chronic problems related to the claimant’s spine or upper
extremities and no indications of any neurosensory, motor, or reflex
deficits. Visits have been of a routine nature, with evidence of
noncompliance in the record. The claimant continues to engage in a wide
array of activities including shopping and driving. Accordingly, the
undersigned finds that Dr. Travis’s medical source statement is
inconsistent with her treatment records and with the other medical
evidence of record.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
The claimant was born on October 29, 1964 and was 45 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969 and 416.969(a)).
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.21; however, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled light occupational base, the
Administrative Law Judge asked the vocational expert whether jobs exist
in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity. The
vocational expert testified that given all of these factors, the individual
would be able to perform the requirements of representative occupations
such as: hand packer/inspector (DOT# 559.687-074, light unskilled,
approximately 5,500 jobs in Alabama and 330,000 jobs in the U.S.); bench
assembler, small products (DOT# 706.684-022, light, unskilled,
approximately 8,000 jobs in the state and 500,000 jobs nationally); and
storage facility rental clerk (DOT# 295.367-026, light, unskilled,
approximately 7,000 jobs locally and 440,000 jobs nationally). Dr. Sweeney
testified that the numbers of jobs he listed represent a reduction, where
applicable, in the total number of jobs existing in the state and national
economies to include only those jobs that would permit a sit/stand
Pursuant to Social Security Ruling 00-4p, the vocational expert’s testimony
is consistent with the information contained in the Dictionary of
Occupational Titles with the exception of the information he provided
regarding the sit/stand option. This option is not covered by the DOT, so
Dr. Sweeney relied on his professional knowledge and experience in order
to provide information regarding the existence of jobs that would
accommodate a sit/stand option.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of the above-cited rule.
The claimant has not been under a disability, as defined in the
Social Security Act, from February 2, 2010, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 12-13, 13-15, 15, 16, 16-17, 17, 17-19, 19-21, 22 & 22-23 (internal citations omitted;
emphasis in original).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and
thus, the hearing decision became the final decision of the Commissioner of Social
In all Social Security cases, the claimant bears the burden of proving that she is
unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In
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. at 1005. Once the claimant meets this burden, as here, it becomes the
Commissioner’s burden to prove that the claimant is capable, given her age, education
and work history, of engaging in another kind of substantial gainful employment which
exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform those light jobs
allowing for a sit/stand option identified by the vocational expert, is supported by
substantial evidence. Substantial evidence is defined as more than a scintilla and means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In
determining whether substantial evidence exists, we 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).3
In this case, the plaintiff contends that the ALJ committed the following errors:
(1) she erroneously rejected the opinions of the treating physician, Dr. Judy Travis; (2)
she erroneously gave significant weight to the opinion of the consultative examiner, Dr.
Huey Kidd; (3) she conducted a flawed credibility evaluation; and (4) she erroneously
determined Witherspoon could perform unskilled light jobs with a sit/stand option
permitting her to change positions at will.
The undersigned will consider these issues in order but prior to doing so it is
necessary for the Court to set forth the proper analysis for consideration of RFC
“issues” implicitly raised in cases like the instant one. The Eleventh Circuit has made
clear that “[r]esidual functional capacity, or RFC, is a medical assessment of what the
claimant can do in a work setting despite any mental, physical or environmental
limitations caused by the claimant’s impairments and related symptoms.” Peeler v.
Astrue, 400 Fed.Appx. 492, 493 n.2 (11th Cir. Oct. 15, 2010), citing 20 C.F.R. § 416.945(a).
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Stated somewhat differently, “[a] claimant’s RFC is ‘that which [the claimant] is still
able to do despite the limitations caused by his . . . impairments.’” Hanna v. Astrue, 395
Fed.Appx. 634, 635 (11th Cir. Sept. 9, 2010), quoting Phillips v. Barnhart, 357 F.3d 1232,
1238 (11th Cir. 2004). “In making an RFC determination, the ALJ must consider all the
record evidence, including evidence of non-severe impairments.” Hanna, supra (citation
omitted); compare 20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1) (2011) (“We will assess your
residual functional capacity based on all the relevant evidence in your case record.”)
with 20 C.F.R. §§ 404.1545(a)(3) & 416.945(a)(3) (“We will assess your residual functional
capacity based on all of the relevant medical and other evidence.”).
From the foregoing, it is clear that the ALJ is responsible for determining a
claimant’s RFC, a deep-seated principle of Social Security law, 20 C.F.R. § 404.1546(c)
(“If your case is at the administrative law judge hearing level under § 404.929 or at the
Appeals Council review level under § 404.967, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals Council makes
a decision) is responsible for assessing your residual functional capacity.”); see also 20
C.F.R. § 416.946(c) (same), that this Court has never taken issue with. See, e.g., Hunington
ex rel. Hunington v. Astrue, No. CA 08-0688-WS-C, 2009 WL 2255065, at *4 (S.D. Ala. July
28, 2009) (“Residual functional capacity is a determination made by the ALJ[.]”) (order
adopting report and recommendation of the undersigned). The regulations provide,
moreover, that while a claimant is “responsible for providing the evidence [the ALJ] . . .
use[s] to make a[n] [RFC] finding[,]” the ALJ is responsible for developing the
claimant’s “complete medical history, including arranging for a consultative
examination(s) if necessary,” and helping the claimant get medical reports from her
own medical sources. 20 C.F.R. §§ 404.1545(a)(3) & 416.945(a)(3). In assessing RFC, the
ALJ must consider any statements about what a claimant can still do “that have been
provided by medical sources,” as well as “descriptions and observations” of a
claimant’s limitations from her impairments, “including limitations that result from 
symptoms, such as pain[.]” Id.
In determining a claimant’s RFC, the ALJ considers a claimant’s “ability to meet
the physical, mental, sensory, or other requirements of work, as described in
paragraphs (b), (c), and (d) of this section.” 20 C.F.R. §§ 404.1545(a)(4) & 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we
first assess the nature and extent of your physical limitations and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling, stooping
or crouching), may reduce your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
and then determine your residual functional capacity for work activity on
a regular and continuing basis. A limited ability to carry out certain
mental activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting, may reduce your ability
to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s) which
impose environmental restrictions, may cause limitations and restrictions
which affect other work-related abilities. If you have this type of
impairment(s), we consider any resulting limitations and restrictions
which may reduce your ability to do past work and other work in
deciding your residual functional capacity.
20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d).
Against this backdrop, this Court starts with the proposition that an ALJ’s RFC
determination necessarily must be supported by substantial evidence. Compare Figgs v.
Astrue, 2011 WL 5357907, *1 & 2 (M.D. Fla. Oct. 19, 2011) (“Plaintiff argues that the ALJ’s
residual functional capacity (‘RFC’) determination is not supported by substantial
evidence. . . . [The] ALJ’s RFC Assessment is [s]upported by substantial record
evidence[.]”), report & recommendation approved, 2011 WL 5358686 (M.D. Fla. Nov. 3,
2011), and Scott v. Astrue, 2011 WL 2469832, *5 (S.D. Ga. May 16, 2011) (“The ALJ’s RFC
Finding Is Supported by Substantial Evidence[.]”), report & recommendation adopted, 2011
WL 2461931 (S.D. Ga. Jun. 17, 2011) with Green v. Social Security Administration, 223
Fed.Appx. 915, 923 & 923-924 (11th Cir. May 2, 2007) (per curiam) (“Green argues that
without Dr. Bryant’s opinion, there is nothing in the record for the ALJ to base his RFC
conclusion that she can perform light work. . . . Once the ALJ determined that no weight
could be placed on Dr. Bryant’s opinion of  Green’s limitations, the only documentary
evidence that remained was the office visit records from Dr. Bryant and Dr. Ross that
indicated that she was managing her respiration problems well, that she had controlled
her hypertension, and that her pain could be treated with over-the-counter medication.
Thus, substantial evidence supports the ALJ’s determination that Green could perform
light work.”). And while, as explained in Green, supra, an ALJ’s RFC assessment may be
supported by substantial evidence even in the absence of an opinion by an examining
medical source about a claimant’s residual functional capacity, specifically because of
the hearing officer’s rejection of such opinion,4 223 Fed.Appx. at 923-924; see also id. at
923 (“Although a claimant may provide a statement containing a physician’s opinion of
her remaining capabilities, the ALJ will evaluate such a statement in light of the other
An ALJ’s articulation of reasons for rejecting a treating source’s RFC assessment
must, of course, be supported by substantial evidence. Gilabert v. Commissioner of Social Security,
396 Fed.Appx. 652, 655 (11th Cir. Sept. 21, 2010) (“Where the ALJ articulated specific reasons for
failing to give the opinion of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. In this case, therefore, the critical
question is whether substantial evidence supports the ALJ’s articulated reasons for rejecting
Thebaud’s RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005)); D’Andrea v.
Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir. Jul. 28, 2010) (per
evidence presented and the ultimate determination of disability is reserved for the
ALJ.”), nothing in Green can be read as suggesting anything contrary to those courts—
including this one—that have staked the position that the ALJ must link the RFC
assessment to specific evidence in the record bearing upon the claimant’s ability to
perform the physical, mental, sensory, and other requirements of work.5 Compare, e.g.,
Saunders v. Astrue, 2012 WL 997222, *5 (M.D. Ala. Mar. 23, 2012) (“It is unclear how the
In Green, supra, such linkage was easily identified since the documentary
evidence remaining after the ALJ properly discredited the RFC opinion of the treating physician
“was the office visit records from Dr. Bryant and Dr. Ross that indicated that [claimant] was
managing her respiration problems well, that she had controlled her hypertension, and that her
pain could be treated with over-the-counter medication.” 223 Fed.Appx. at 923-924. Based upon
such nominal clinical findings, the court in Green found “substantial evidence support[ing] the
ALJ’s determination that Green could perform light work.” Id. at 924; see also Hovey v. Astrue,
Civil Action No. 1:09CV486-SRW, 2010 WL 5093311, at *13 (M.D. Ala. Dec. 8, 2010) (“The
Eleventh Circuit’s analysis in Green, while not controlling, is persuasive, and the court finds
plaintiff’s argument . . . that the ALJ erred by making a residual functional capacity finding
without an RFC assessment from a physician without merit. In formulating plaintiff’s RFC in
the present case, the ALJ—like the ALJ in Green—relied on the office treatment notes of
plaintiff’s medical providers.”).
Therefore, decisions, such as Stephens v. Astrue, No. CA 08-0163-C, 2008 WL 5233582
(S.D. Ala. Dec. 15, 2008), in which a matter is remanded to the Commissioner because the “ALJ’s
RFC determination [was not] supported by substantial and tangible evidence” still accurately
reflect the view of this Court, but not to the extent that such decisions are interpreted to require
that “substantial and tangible evidence” must—in all cases—include an RFC or PCE from a
physician. See id. at *3 (“[H]aving rejected West’s assessment, the ALJ necessarily had to point
to a PCE which supported his fifth-step determination that Plaintiff can perform light work
activity.”) (emphasis added). But, because the record in Stephens
contain[ed] no physical RFC assessment beyond that performed by a disability
examiner, which is entitled to no weight whatsoever, there [was] simply no basis
upon which this court [could] find that the ALJ’s light work RFC determination
[was] supported by substantial evidence. [That] record [did] not reveal evidence
that would support an inference that Plaintiff [could] perform the requirements
of light work, and certainly an ALJ’s RFC determination must be supported by
substantial and tangible evidence, not mere speculation regarding what the
evidence of record as a whole equates to in terms of physical abilities.
Id. (citing Cole v. Barnhart, 293 F. Supp.2d 1234, 1242 (D. Kan. 2003) (“The ALJ is responsible for
making a RFC determination, and he must link his findings to substantial evidence in the record
and explain his decision.”)).
ALJ reached the conclusion that Plaintiff ‘can lift and carry up to fifty pounds
occasionally and twenty-five pounds frequently’ and sit, stand and/or walk for six
hours in an eight hour workday,  when the record does not include an evaluation of
Plaintiff’s ability to perform work activities such as sitting, standing, walking, lifting,
bending, or carrying.”) with 20 C.F.R. §§ 404.1545(b), (c) & (d) and 416.945(b), (c) & (d);
see also Packer v. Astrue, 2013 WL 593497, *4 (S.D. Ala. Feb. 14, 2013) (“[T]he ALJ must
link the RFC assessment to specific evidence in the record bearing upon the claimant’s
ability to perform the physical, mental, sensory, and other requirements of work.”).
Indeed, the Eleventh Circuit appears to agree that such linkage is necessary for
federal courts to conduct a meaningful review of an ALJ’s decision. For example, in
Hanna, supra, the panel noted that
[t]he ALJ determined that Hanna had the RFC to perform a full range of
work at all exertional levels but that he was limited to ‘occasional hand
and finger movements, overhead reaching, and occasional gross and fine
manipulation.’ In making this determination, the ALJ relied, in part, on
the testimony of the ME. . . .
The ALJ’s RFC assessment, as it was based on the ME’s testimony,
is problematic for many reasons. . . . [G]iven that the ME opined only that
Hanna’s manipulation limitations were task-based without specifying
how often he could perform such tasks, it is unclear how the ALJ
concluded that Hanna could occasionally engage in all forms of hand and
finger movements, gross manipulation, and fine manipulation. . . .
The ALJ also agreed with the VE’s testimony that, under the RFC
determination, Hanna could return to his past work. But this conclusion
is not clear from the record. The VE answered many hypothetical
questions and initially interpreted the ME’s assessment to mean that
Hanna’s gross manipulation abilities were unlimited and so, with only a
restriction to fine manipulation, he could perform his past relevant work.
In a separate hypothetical, the VE stated that a claimant could not return
to his past work as a packaging supervisor if restricted to occasional
fingering, handling, and gross and fine manipulation. The ALJ also did
not include the ME’s steadiness restriction in the RFC assessment; and the
VE testified that a person restricted to handling that required steadiness
would not be able to return to Hanna’s past work.
The ALJ must state the grounds for his decision with clarity to
enable us to conduct meaningful review. The ALJ has not done so here.
To the extent the ALJ based Hanna’s RFC assessment on hearing
testimony by the ME and VE, the assessment is inconsistent with the
evidence. The ALJ did not explicitly reject any of either the ME’s or VE’s
testimony or otherwise explain these inconsistencies, the resolution of
which was material to whether Hanna could perform his past relevant
work. Absent such explanation, it is unclear whether substantial
evidence supported the ALJ’s findings; and the decision does not
provide a meaningful basis upon which we can review Hanna’s case.”
395 Fed.Appx. at 635-636 (emphasis added and internal citations and footnotes
omitted); see also Ricks v. Astrue, No. 3:10–cv–975–TEM, 2012 WL 1020428, at *9 (M.D.
Fla. Mar. 27, 2012) (“‘The existence of substantial evidence in the record favorable to the
Commissioner may not insulate the ALJ’s determination from remand when he or she
does not provide a sufficient rationale to link such evidence to the legal conclusions
reached.’ Where the district court cannot discern the basis for the Commissioner’s
decision, a sentence-four remand may be appropriate to allow him to explain the basis
for his decision.”) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D. Fla. 2005))
(emphasis added); cf. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th
Cir. 1994) (“The [Commissioner’s] failure to apply the correct law or to provide the
reviewing court with sufficient reasoning for determining that the proper legal analysis
has been conducted mandates reversal.”) (citation omitted).
Such linkage, moreover, may not be manufactured speculatively by the
Commissioner—using “the record as a whole”—on appeal, but rather, must be clearly
set forth in the ALJ’s decision. See, e.g., Durham v. Astrue, Civil Action No. 3:08CV839SRW, 2010 WL 3825617, at *3 (M.D. Ala. Sep. 24, 2010) (rejecting the Commissioner’s
request to affirm an ALJ’s decision because, according to the Commissioner, overall, the
decision was “adequately explained and supported by substantial evidence in the
record”; holding that affirming that decision would require that the court “ignor[e]
what the law requires of the ALJ[; t]he court ‘must reverse [the ALJ’s decision] when the
ALJ has failed to provide the reviewing court with sufficient reasoning for determining
that the proper legal analysis has been conducted’”) (quoting Hanna, 395 Fed. Appx. at
636 (internal quotation marks omitted)); see also id. at *3 n.4 (“In his brief, the
Commissioner sets forth the evidence on which the ALJ could have relied . . . . There
may very well be ample reason, supported by the record, for [the ALJ’s ultimate
conclusion]. However, because the ALJ did not state his reasons, the court cannot
evaluate them for substantial evidentiary support. Here, the court does not hold that
the ALJ’s ultimate conclusion is unsupportable on the present record; the court holds
only that the ALJ did not conduct the analysis that the law requires him to conduct.”).
Prior to addressing the four specific errors raised by the claimant, the Court
would note that the ALJ in this case specifically linked her RFC assessment—that is,
unskilled light work with a sit/stand option—to specific evidence in the record bearing
upon Witherspoon’s ability to perform the physical, mental, sensory and other
requirements of work. Such linkage is provided not solely by Dr. Huey Kidd’s
examination findings and physical medical source statement (Tr. 497-505) but also by all
remaining medical evidence of record (Tr. 316, 319-324, 364-368, 372-374, 395, 401, 445450 & 477-491; cf. Tr. 267-282 & 454-457)—including the office notes of plaintiff’s more
recent treating physician, Dr. Judy Travis (Tr. 442-443 & 468)—except for Dr. Travis’
physical medical source and pain assessments (Tr. 473-474). As previously explained,
the Eleventh Circuit indicated in Green that where an ALJ articulates specific reasons,
supported by substantial evidence, for failing to give the RFC opinion of a treating
physician controlling weight, and the ALJ properly links the remaining evidence of
record (after such rejection) to the RFC assessment, such assessment can be found to be
supported by substantial evidence. See 223 Fed.Appx. at 923-924. Since this is exactly
what has happened in the instant case, the undersigned now considers the plaintiff’s
alleged errors in order.
RFC and Pain Opinions of Dr. Judy Travis. Witherspoon contends that
the ALJ improperly accorded the RFC and pain opinions of her treating physician, Dr.
Judy Travis, little weight instead of the substantial weight they were entitled to receive.
The opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause is shown
when the: “(1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004).
Where the ALJ articulated specific reasons for failing to give the opinion
of a treating physician controlling weight, and those reasons are
supported by substantial evidence, there is no reversible error. Moore [v.
Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert, supra, 396 Fed.Appx. at 655.
In this case, the ALJ accorded “little” weight to any of Dr. Judy Travis’ medical
opinions rendered on May 5, 2011 (see Tr. 21): her findings on the physical medical
source statement reflecting an inability to perform any work on a sustained basis (Tr.
473); and her pain assessment findings reflecting the presence of pain to such an extent
as to be distracting to the adequate performance of daily activities, that physical activity
greatly increases pain to such a degree as to cause distraction from task or total
abandonment of task, and that significant side effects may be expected from prescribed
medications which may limit effectiveness of work duties or performance of everyday
tasks such as driving (Tr. 474). This Court will not again set forth the ALJ’s rather
lengthy analysis of the opinion evidence offered by Dr. Travis. Instead, the Court
simply observes that this portion of the ALJ’s decision (see Tr. 21) certainly reflects an
articulation of specific and adequate reasons, supported by substantial evidence, for
rejecting the various opinions offered by Dr. Travis. See Gilabert, supra, 396 Fed.Appx. at
655. In particular, this Court agrees with the ALJ that Dr. Travis’ physical medical
source and pain assessments, to the extent they relate to “peripheral neuropathy” and
“left-foot tendonitis” (see Tr. 473-474), are entitled to little weight given that Dr. Travis’
own treatment records do not reflect these diagnoses (see Tr. 442-443 & 468),6 the
remaining evidence of record contain no findings consistent with these diagnoses (see,
e.g., Tr. 316, 319-324, 364-368, 372-374, 395, 401, 445-450 & 477-491), and plaintiff has not
been prescribed any medications dedicated to nerve pain—such as Lyrica or Neurontin
(Tr. 21)—or, for that matter, any type of pain.7 Moreover, to the extent the limitations
noted on the physical medical source statement are related to plaintiff’s “poorly
controlled diabetes,” the undersigned agrees with the ALJ not only that such limitations
are not supported anywhere in the record (compare Tr. 442-443 & 468 with Tr. 316, 319324, 364-368, 372-374, 395, 401, 445-450 & 477-491),8 but, as well, because all evidence of
poor control stems from Witherspoon’s noncompliance with her medication regimen
(compare Tr. 450 with Tr. 554). Finally, the ALJ was correct in rejecting any suggestion by
Travis that plaintiff’s “severe degenerative arthritis of the left knee” could lead to the
noted limitations (see Tr. 473), not only because Travis’ treatment records make no
mention of any left-knee complaints (see Tr. 442-443 & 468) but, as well, because x-rays
of the left knee on July 19, 2011 revealed only “moderate degenerative changes
In addition, nothing in the medical evidence supports Travis’ conclusory
estimate that plaintiff’s impairments and her treatment would cause her to miss work more
than three times a month. (See Tr. 473.)
This Court is of the opinion that the failure of Dr. Travis to prescribe pain
medication or anti-inflammatories to Witherspoon totally undermines her assessment regarding
the pain and medication side effects allegedly experienced by plaintiff. Travis’ pain assessment
was properly accorded little weight by the ALJ.
Indeed, there is absolutely nothing in the record reflecting functional limitations
attributable to these impairments.
involving the medial aspect of the knee joint, degenerative joint disease, [and] mild
osteoarthritis.” (Tr. 499.)
In light of the foregoing, the ALJ properly afforded little weight to the physical
medical source and pain assessments submitted on plaintiff’s behalf by Dr. Judy Travis.
The Weight Afforded the Opinion of the Consultative Examiner.
Plaintiff next contends that that the ALJ erred in giving significant weight to the
consultative examiner, Dr. Huey Kidd. Witherspoon claims that Kidd’s opinion was not
entitled to significant weight because the consultative examiner did not review any
other records and did not address impairments evident at the examination, specifically
While it is clear, as a general proposition, that a one-time consultative physician’s
opinion is entitled to less weight than a treating physician’s opinion, see, e.g., Kelly v.
Commissioner of Social Security, 401 Fed.Appx. 403, 407 (11th Cir. Oct. 21. 2010)
(“Generally, the opinions of examining physicians are given more weight than nonexamining physicians and the opinions of treating physicians are given more weight
than non-treating physicians.”), it is apparent to the Court that the ALJ in this case
properly accorded significant weight to Dr. Kidd’s physical medical source statement
(compare Tr. 20 with Tr. 500-505) because Kidd’s opinion is supported by all medical
evidence of record (compare id. with Tr. 267-282, 316, 319-324, 364-368, 372-374, 395, 401,
445-450 & 454-457). Therefore, even had Kidd not reviewed any of the other existing
medical evidence of record, which he clearly did (compare Tr. 498 (“The medical
evidence of record, provided by the DDS, was reviewed and considered in the overall
assessment of the patient.”) with Tr. 497 (“PAST MEDICAL HISTORY: Diabetes,
hypertension. PAST SURGICAL HISTORY: Bilateral tubal ligation.”)), there would be
no error.9 Moreover, Kidd’s failure to specifically discuss plaintiff’s obesity does not
merit giving the consultative examiner’s RFC assessment less weight inasmuch as there
is nothing in the medical evidence which establishes that there are physical limitations
attributable to Witherspoon’s obesity more severe than the limitations noted by Kidd or
found by the ALJ.
The ALJ’s Credibility Evaluation. Plaintiff next contends that the ALJ
conducted a flawed credibility evaluation based on the following errors: (1) she noted
plaintiff did not take any pain medications even though the medication list includes
aspirin; and (2) she improperly construed records showing that plaintiff’s recovery goal
was to start a new business as inconsistent with her claim of disability.10
The Eleventh Circuit has consistently and often set forth the criteria for
establishing disability based on testimony about pain and other symptoms. See, e.g.,
This Court cannot fault Dr. Kidd for failing to “pick up” on Travis’ arguable
peripheral neuropathy “diagnosis” since those words appear only on Travis’ physical medical
source statement (Tr. 473) but nowhere in the treating physician’s examination records (see Tr.
442-443 & 468).
Plaintiff maintains that the ALJ should have found moderate limitations in one
or more areas of mental functioning based on two GAF scores of 55 instead of indicating that
any limitations from depression were accounted for by a limitation to unskilled work. To the
extent Witherspoon argues that the ALJ’s finding in this regard results in a flawed credibility
evaluation the undersigned cannot agree because the claimant not once mentioned at the
hearing that she was depressed or that she was in any manner limited by such depression (see
Tr. 34-74) and the month’s worth of evidence from the West Alabama Mental Health Center
reflects that on the last day plaintiff presented to the center she reported no depression (Tr. 480;
compare id. with Tr. 477-479 & 481-495). Moreover, the ALJ did not find plaintiff’s alleged
depression to be a severe impairment (compare Tr. 13 with Tr. 15) and plaintiff makes no
argument to the contrary (see Doc. 15). Therefore, the ALJ properly found that plaintiff’s
depression caused no more than “minimal limitation in the claimant’s ability to perform basic
mental work activities[.]” (Tr. 15.) Because plaintiff’s depression is not a severe impairment, the
undersigned finds nothing inherently “wrong” in the ALJ’s statement that limiting plaintiff to
unskilled work takes into consideration her non-severe depression. (See Tr. 19.)
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citations omitted); Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
[T]he claimant must satisfy two parts of a three-part test showing: (1)
evidence of an underlying medical condition; and (2) either (a) objective
medical evidence confirming the severity of the alleged pain; or (b) that
the objectively determined medical condition can reasonably be expected
to give rise to the claimed pain.11 If the ALJ discredits subjective
testimony, he must articulate explicit and adequate reasons for doing so.
Failure to articulate reasons for discrediting subjective testimony requires,
as a matter of law, that the testimony be accepted as true.
Wilson, supra, at 1225 (internal citations omitted; footnote added).
“20 C.F.R. § 404.1529 provides that once such an impairment is established, all
evidence about the intensity, persistence, and functionally limiting effects of pain or
other symptoms must be considered in addition to the medical signs and laboratory
findings in deciding the issue of disability.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995). In other words, once the issue becomes one of credibility and, as set forth in SSR
96-7p, in recognition of the fact that a claimant’s symptoms can sometimes suggest a
greater level of severity of impairment than can be shown by objective medical evidence
alone, the adjudicator (ALJ) in assessing credibility must consider in addition to the
objective medical evidence the other factors/evidence set forth in 20 C.F.R.
§§ 404.1529(c) and 416.929(c). More specifically, “[w]hen evaluating a claimant’s
subjective symptoms, the ALJ must consider the following factors: (i) the claimant’s
‘daily activities; (ii) the location, duration, frequency, and intensity of the [claimant’s]
pain or other symptoms; (iii) [p]recipitating and aggravating factors; (iv) the type,
“Medical history and objective medical evidence such as evidence of muscle
atrophy, reduced joint motion, muscle spasm, sensory and motor disruption, are usually
reliable indicators from which to draw reasonable conclusion about the intensity and
persistence of pain and the effect such pain may have on the individual’s work capacity.” SSR
dosage, effectiveness, and side effects of any medication the [claimant took] to alleviate
pain or other symptoms; (v) treatment, other than medication, [the claimant] received
for relief . . . of pain or other symptoms; and (vi) any measures the claimant personally
used to relieve pain or other symptoms.’” Leiter v. Commissioner of Social Security
Administration, 377 Fed.Appx. 944, 947 (11th Cir. May 6, 2010) (emphasis supplied),
quoting 20 C.F.R. §§ 404.1529(c)(3) & 416.929(c)(3).
In this case, the ALJ clearly recognized that plaintiff’s impairments met the pain
standard (see Tr. 18 (“[T]he undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected to cause some of the alleged
symptoms[.]”)) yet found that her subjective pain complaints were not entirely credible
(see id. (“[T]he claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.”)). Further, the undersigned finds that
the ALJ made a specific credibility finding, see Chater, supra, at 1561, and in doing so
specifically considered the objective medical evidence of record and the other
factors/evidence set forth in 20 C.F.R. §§ 404.1529(c) and 416.929(c) (see Tr. 16-20).
In assessing the credibility of Witherspoon’s subjective complaints of pain, the
arguments are made that the ALJ erred in referencing that plaintiff does not take any
pain medication since her medication list includes aspirin and, further, that the ALJ
improperly construed records showing that plaintiff’s recovery goal was to start a new
business as being inconsistent with her claim of disability. The undersigned cannot
agree with plaintiff’s first assignment of error since the Commissioner’s regulations
specifically direct ALJs to consider the type, dosage, effectiveness, and side effects of
any medication taken to alleviate pain or other symptoms, see, e.g., 20 C.F.R. §
404.1529(c)(3)(iv) (2012),12 and Witherspoon’s updated medication list does not include
aspirin (Tr. 252). Moreover, on the medication list Witherspoon identified aspirin, she
specifically stated she took one aspirin a day not for pain but to combat leg cramps. (Tr.
245.) Thus, the undersigned concludes that the ALJ’s observation that plaintiff does not
take any pain medication constitutes an explicit and adequate reason for discrediting
her pain allegations and other subjective symptoms. See Kersey v. Astrue, 2010 WL
1049575, *6 (M.D. Fla. Mar. 22, 2010) (“The ALJ specifically noted that Plaintiff has not
sought treatment for her pain with the frequency that one would expect, considering
her allegations of pain. The ALJ also observed that Plaintiff was not taking prescription
medication for pain. Plaintiff does not challenge these factual findings or provide any
reason why pain treatment had not been sought for a substantial period of time prior to
the hearing. Under the circumstances, the reasons articulated by the ALJ are adequate
to discredit Plaintiff’s allegations of pain and other symptoms.” (internal citations
Turning to plaintiff’s second assignment of error in this regard, even if this Court
agrees that her “recovery goal [or dream]” of starting her own business is not
inconsistent with her allegations of disabling symptoms—as found by the ALJ (Doc.
20)—finding this reason inadequate does not warrant reversal of the ALJ’s credibility
determination. This is because the ALJ’s observations about claimant not taking pain
medication and her receipt of unemployment benefits while pursuing a disability
Obviously, therefore, the fact that a claimant is not prescribed any strong painkilling medication would negate a claimant’s testimony that the pain she experiences daily is 9
on a scale of 0 to 10 (see Tr. 36 & 39).
claim13 constitute explicit and adequate reasons for the credibility determination made
in this case.
Whether the ALJ Erred in Finding Plaintiff Could Perform Unskilled
Light Jobs with a Sit/Stand Option Permitting her to Change Positions at Will.
Plaintiff’s final claim is that the ALJ’s assignment of an RFC for light unskilled work
with a sit/stand option permitting her to change positions at will (Tr. 16) does not
correlate precisely with the hypothetical situations posed to the VE (compare id. with Tr.
77-81 (frequency of changing positions not mentioned)) and, therefore, the RFC
determination is not supported by substantial evidence. In addition, plaintiff also
contends that the ALJ failed to ask the VE whether there was a conflict between his
testimony and the Dictionary of Occupational Titles (“DOT”) and, instead, merely told
the VE that it was his duty to point out any such conflict.14
“[A]n ALJ may certainly consider a claimant’s receipt of unemployment
compensation in making a credibility determination[,]” Kalishek v. Astrue, 2011 WL 4389643, *5
(M.D. Fla. Aug. 23, 2011) (citations omitted), report & recommendation adopted, 2011 WL 4389717
(M.D. Fla. Sept. 21, 2011), aff’d, 470 Fed.Appx. 868 (11th Cir. May 30, 2012); see also Carmickle v.
Commissioner, Social Security Administration, 533 F.3d 1155, 1161-1162 (9th Cir. 2008)
(acknowledging that “receipt of unemployment benefits can undermine a claimant’s alleged
inability to work fulltime”); Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005) (“[W]e are not
convinced that a Social Security claimant’s decision to apply for unemployment benefits and
represent to state authorities and prospective employers that he is able and willing to work
should play absolutely no role in assessing his subjective complaints of disability.” (emphasis in
original)); Workman v. Commissioner of Social Security, 105 Fed.Appx. 794, 801 (6th Cir. July 29,
2004) (“Applications for unemployment and disability benefits are inherently inconsistent.”); see
Peden v. Astrue, 2012 WL 5379172, *5 (N.D. Ala. Oct. 31, 2012) (finding the ALJ’s determination
that claimant’s unemployment application detracted from her credibility supported by
substantial evidence), and can, therefore, consistently find that a claimant’s subjective
allegations (including allegations of total disability) “are inconsistent with h[er] receipt of
unemployment benefits where [s]he held h[er]self out as being able to work.” Butler v.
Commissioner of Social Security, 2012 WL 628489, *7 (M.D. Fla. Feb. 27, 2012) (citations omitted);
see also Bullock v. Astrue, 2012 WL 2357718, *7 (N.D. Ala. June 20, 2012) (“[T]he receipt of
unemployment benefits requires a claimant to demonstrate they are able to work—a position
inherently contradictory to the requirements of disability benefits.”).
Plaintiff contends that the ALJ’s failure in this regard is important because the
Commissioner bears the burden of determining whether there is a conflict, in accordance with
While it is certainly true that the ALJ failed to specify in her hypotheticals posed
to the VE the frequency that Witherspoon needed to change her sit/stand position, her
instruction to the VE to “add” a sit/stand option (Tr. 78-79) contains the reasonable
“implication” that “the sit/stand option would be at [claimant’s] own volition.”
Williams v. Barnhart, 140 Fed.Appx. 932, 937 (11th Cir. Aug. 15, 2005); cf. Thompson v.
Astrue, 442 Fed.Appx. 804, 806 & 807 (4th Cir. Aug. 10, 2011) (“Thompson also notes
that although the ALJ found she required a sit-stand option, he failed to state how
frequently she needed to alternate between sitting and standing. . . . The ALJ’s RFC
finding and hypothetical were consistent with an at-will sit-stand option, and we find
that no greater specificity was required here.”). Accordingly, the Court need REJECT
the plaintiff’s argument that the ALJ’s RFC determination is not supported by
As for plaintiff’s second prong of attack, the undersigned is of the opinion that
the ALJ’s admonition to the VE to advise her of any conflict between his testimony and
the DOT (Tr. 75) and any arguable failure by the VE to advise the ALJ of any conflict
(see Tr. 75-82)15 properly leads to the reasonable conclusion that no conflict existed
SSR 00-4p, and SSR 83-12 and the DOT do not indicate that any jobs can be performed with a
The undersigned specifically modifies “failure” with “arguable” inasmuch as the
VE’s testimony can be read as establishing his implicit recognition that the sit/stand option
“added” by the ALJ to her first hypothetical is not covered by the DOT given that he took pains
to “cut” the number of the identified jobs available to the hypothetical individual. (See Tr. 79-80
(“I will stay at light, hand packer inspector, that’s hand packer not machine, with inspection
duties associated with it. That’s light work. It’s unskilled. DOT number assigned to this [is]
559.687-074. Employment in the local economy is shown to be 11, 000 with the national
economy 600,000[;] however, in my opinion not each and every one of these situations would
lend itself to sit, stand which is partly at the employer’s discretion and I’m going to believe that
the employment opportunities are cut by 50 percent at least so we’re talking 5,500 for that local
economy, 330,000 in the national economy. Okay, another is bench assembler, small products,
light work, unskilled a 2 SVP. The DOT is 706.685-022. Again, while the job does lend itself to a
between his testimony and the DOT. Compare Williams, supra, 140 Fed.Appx. at 937
(“Although the ALJ failed to specify the frequency that Williams needed to change his
sit/stand position, the reasonable implication of the ALJ’s description was that the
sit/stand option would be at William’s own volition.”) with Williams v. Astrue, 2011 WL
3875615, *2 (M.D. Ala. Aug. 31, 2011) (“At the administrative hearing, a vocational
expert testified that a hypothetical individual limited as described by the ALJ—
including the option to ‘sit, stand, or walk for one hour at a time before needing to
change positions for at least 10 minutes’—could perform jobs as a housekeeper cleaner,
ticket taker, and microfilm processor. The VE responded affirmatively when the ALJ
asked, ‘Is your testimony consistent with the Dictionary of Occupational Titles?’” (internal
citation and footnote omitted; emphasis in original).) In other words, as specifically
recognized by this Court in Hall v. Astrue, 2010 WL 2643565 (S.D. Ala. June 29, 2010):
Plaintiff has not established that the ALJ violated SSR 00-4p. The ALJ
expressly requested that the VE apprise her if the VE’s testimony deviated
from the DOT. The VE did not advise the ALJ of any conflicts, apparent or
otherwise, and during the hearing, Plaintiff[‘s] counsel did not allege that
there existed any conflicts nor did he question the VE regarding any
purported conflicts. Because no conflicts were identified, the ALJ was not
required under SSR 00-4p to elicit a reasonable explanation from the VE as
sit, stand since it’s at a bench in each and every case the employer would have some say over
that. I’m going to cut the employment figures by half right up front, [so] 8,000 in the local
economy and 500,000 in the national economy[.] [A]nd one other I would offer this will come to
three[,] [a] storage facility rental clerk, light work unskilled at a 2. The DOT is 295.367-026. The
employment figures as published I believe are acceptable as stated due to the very nature of the
job, it’s sporadic, 7, 000 in the local economy and 440,000 in the national economy.”); compare id.
with Tr. 22-23 (“Dr. Sweeney testified that the numbers of jobs he listed represent a reduction,
where applicable, in the total number of jobs existing in the state and national economies to
include only those jobs that would permit a sit/stand option. Pursuant to Social Security Ruling
00-4p, the vocational expert’s testimony is consistent with the information contained in the
Dictionary of Occupational Titles with the exception of the information he provided regarding
the sit/stand option. The option is not covered by the DOT, so Dr. Sweeney relied on his
professional knowledge and experience in order to provide information regarding the existence
of jobs that would accommodate a sit/stand option.”).) Alternatively, therefore, this Court finds
that the plaintiff has identified absolutely no error committed by the ALJ.
to any apparent conflicts, and did not err in relying on the VE’s testimony
to conclude that Plaintiff was capable of performing the positions. See
Cammon v. Astrue, 2009 U.S. Dist. LEXIS 92293 (N.D. Ga. Oct. 2, 2009) (the
ALJ did not err when she relied on the testimony of the VE where the ALJ
had no reason to believe that there was any conflict between the VE
testimony and the DOT and counsel did not question the VE about any
Id. at *10; cf. Zblewski v. Astrue, 302 Fed.Appx. 488, 494 (7th Cir. Dec. 15, 2008) (“Because
the DOT does not address the subject of sit/stand options, it is not apparent that the
[VE] testimony conflicts with the DOT. Moreover, even if the ALJ failed to comply with
S.S.R. 00-4p, that failure was harmless because the ALJ was entitled to rely on other,
unchallenged VE testimony. The VE testified that based on his experience, 2000
assembly jobs allowed a sit/stand at-will option. Zblewski did not challenge that
assertion at his hearing, and an ALJ is entitled to rely on unchallenged VE testimony.”).
Finally, “[e]ven assuming that an inconsistency existed between the testimony of the
vocational expert and the DOT, the ALJ did not err when, without first resolving the
alleged conflict,16 he relied on the testimony of the vocational expert[,]”inasmuch as
Eleventh Circuit “precedent establishes that the testimony of a vocational expert
‘trumps’ an inconsistent provision of the DOT[.]” Miller v. Commissioner of Social
Security, 246 Fed.Appx. 660, 662 (11th Cir. Aug. 31, 2007).
Beyond noting the foregoing, the undersigned would simply observe that
Witherspoon’s wholesale failure to establish her inability to perform the jobs identified
by the vocational expert, see Williams, supra, 140 Fed.Appx. at 937—that is, unskilled
light work as a hand packer/inspector, bench assembler, and storage facility rental
In Miller, the Eleventh Circuit specifically recognized that agency rulings, such as
SSR 00-4p (requiring an ALJ to elicit a reasonable explanation for any apparent unresolved
conflict between the testimony of the VE and the DOT), are not binding on courts. See infra, 246
Fed.Appx. at 662.
clerk—leads to the inexorable conclusion that the Commissioner’s fifth-step denial of
benefits is due to be affirmed.
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be affirmed.
DONE and ORDERED this the 18th day of March, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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