Williams v. Colvin
Filing
24
Order re: 1 Complaint filed by Tamika Williams stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/23/2016. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TAMIKA WILLIAMS,
*
*
*
*
*
*
*
*
*
*
*
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
CIVIL ACTION NO. 15-00130-B
ORDER
Plaintiff Tamika Williams (hereinafter “Plaintiff”) seeks
judicial
Social
review
of
Security
a
final
denying
her
decision
claim
of
for
the
Commissioner
supplemental
of
security
income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.
On June 8, 2016, the parties consented to have
the undersigned conduct any and all proceedings in this case.
(Doc. 21).
conduct
Thus, the action was referred to the undersigned to
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 is hereby ORDERED
that the decision of the Commissioner be AFFIRMED.
I.
Procedural History
Plaintiff filed her application for benefits on March 1,
2012.
(Tr. 154).
Plaintiff alleged that she has been disabled
since February 2012,1 due to diabetes, chronic back pain, bulging
disc, pinched nerve, panic attacks, and depression.
(Id. at 43,
176).
Plaintiff’s application was denied and upon timely request,
she was granted an administrative hearing before Administrative
Law Judge Bruce MacKenzie (hereinafter “ALJ”) on August 5, 2013.
(Id. at 40).
Plaintiff attended the hearing with her counsel
and provided testimony related to her claims.
vocational
expert
(“VE”)
provided testimony.
also
appeared
(Id. at 66).
at
(Id. at 45).
the
hearing
A
and
On September 26, 2013, the
ALJ issued an unfavorable decision finding that Plaintiff is not
disabled.
request
(Id. at 18).
for
review
The Appeals Council denied Plaintiff’s
on
January
16,
2015.
(Id.
at
1-2).
Therefore, the ALJ’s decision dated September 26, 2013, became
the final decision of the Commissioner.
Having
exhausted
her
administrative
timely filed the present civil action.
remedies,
(Doc. 1).
Plaintiff
The parties
waived oral argument on June 8, 2016 (Doc. 20), and agree that
this case is now ripe for judicial review and is properly before
this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.
Issues on Appeal
1. Whether the ALJ erred in rejecting the
1
Plaintiff amended her onset
February 20, 2012. (Tr. 43).
date
2
from
January
1,
2009,
to
opinions
of
Plaintiff’s
treating
physician, Dr. Judy C. Travis, M.D.?
2.
Whether the ALJ erred in evaluating
Plaintiff’s complaints of pain?
III. Factual Background
Plaintiff was born on January 2, 1979, and was thirty-four
years of age at the time of her administrative hearing on August
5, 2013.
(Tr. 40, 173).
exam
lacked
but
diploma.
one
Plaintiff passed her high school exit
class
credit
(Id. at 47, 177).
and
did
not
receive
her
Plaintiff’s past work includes
working as a babysitter in 2009, working as a packer at a fish
plant from 2005 to 2008, and working as a packer in a poultry
processing
plan
from
1998
to
2001.
(Id.
at
48-49,
177).
Plaintiff stopped working in 2008 (except for babysitting) to
take care of her children.
(Id. at 177, 240, 251).
At her hearing on August 5, 2013, Plaintiff testified that
she can no longer work because of depression and diabetes.
at 49).
other
(Id.
She testified that she takes insulin shots, as well as
medication
depression.
for
(Id.
her
at
diabetes,
50).
high
According
medication helps, but it makes her dizzy.
blood
to
pressure,
and
Plaintiff,
the
(Id.).
She also has
back pain but has not had any physical therapy or surgery to
treat her condition.
(Id. at 51).
3
She has received steroid
shots for her back, but they did not help. 2
(Id. at 51).
She
sometimes wears a back brace that she bought over the counter,
and it helps.
relief.
(Id. at 51).
Pain medications provide temporary
(Id. at 54).
With respect to her depression, Plaintiff takes medication
and goes to therapy every other month.
(Id. at 52).
Plaintiff
testified that she has crying spells every other day and panic
attacks every day, as well as insomnia and occasional thoughts
of
harming
herself.
(Id.
at
64).
She
has
had
no
hospitalizations related to depression or any medical condition.
(Id.
at
51-52).
Plaintiff
testified
problems that prevent her from working.
to
no
other
medical
(Id.).
Plaintiff testified that she lives alone in an apartment
with her two children, ages ten and eleven.
(Id. at 46).
Her
sister does all of her cooking, laundry, and grocery shopping,
and her sister and children do all of the housework.
59).
(Id. at
She does not get out of the house, does not go anywhere,
and does not visit with anyone except her sister.
(Id.).
She
can drive, but her license is suspended because of a ticket.
(Id. at 47).
2
Plaintiff rated her back pain as a seven or eight on a ten-point
pain scale with medication and a ten without medication.
(Tr.
61-62).
She declined epidural injections for her back pain
because she was afraid of the procedure. (Id. at 61).
4
IV.
Analysis
A.
Standard of Review
In reviewing claims brought under the Act, this Court’s
role
is
a
limited
determining
1)
one.
whether
The
the
Court’s
decision
review
of
the
is
limited
to
Secretary
is
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
3
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.
1986).
The
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s
findings
of
fact
affirmed if they are based upon substantial evidence.
must
be
Brown v.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,
703
F.2d
1233,
1239
(11th
Cir.
1983)
(holding
substantial evidence is defined as “more than a scintilla, but
less
than
a
preponderance”
and
consists
of
“such
relevant
evidence as a reasonable person would accept as adequate to
support
a
conclusion.”).
In
determining
whether
substantial
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
3
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).
5
(S.D. Ala. June 14, 1999).
B.
Discussion
An individual who applies for Social Security disability
benefits
must
prove
404.1512, 416.912.
his
or
her
disability.
20
C.F.R.
§§
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”
42
U.S.C.
§§
404.1505(a),
416.905(a).
provide
five-step
a
423(d)(1)(A);
The
see
Social
sequential
also
20
Security
evaluation
§§
regulations
process
determining if a claimant has proven his disability. 4
4
C.F.R.
for
20 C.F.R.
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
6
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since February
20, 2012, her application date, and that she has the severe
impairments of obesity, diabetes mellitus Type II, degenerative
disc disease of the lumbar spine, asymmetric right sided disc
bulge at L4-L5 without canal stenosis, adjustment disorder with
disturbance of mood, panic disorder with agoraphobia, depressive
disorder
features. 5
not
otherwise
(Tr. 20).
specified,
and
Cluster
B
personality
The ALJ further found that Plaintiff does
not have an impairment or combination of impairments that meets
or medically equals any of the listed impairments contained in
20 C.F.R. Part 404, Subpart P, Appendix 1.6
The
ALJ
concluded
that
Plaintiff
(Id. at 21).
retains
the
residual
functional capacity (hereinafter “RFC”) to perform a range of
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
5
The ALJ found Plaintiff’s hypertension to be non-severe.
21).
6
(Tr.
The ALJ concluded that Plaintiff has only mild restrictions in
activities of daily living, moderate difficulties in social
functioning and concentration, persistence or pace, and no
episodes of decompensation. (Tr. 22).
7
light work, except that “she would require a sit/stand option to
relieve pain and discomfort and she can ambulate short distances
of up to 75 yards.
She could frequently use foot controls and
frequently reach overhead.
ladders or scaffolds.
She could never climb ramps, stairs,
She can frequently balance and crouch but
only occasionally stoop and kneel but never crawl.
never
be
exposed
to
dangerous
machinery,
dangerous
hazardous processes or unprotected heights.
operate
a
exposed
commercial
to
extreme
motor
cold,
vehicle.
extreme
She
heat,
atmospheric conditions and weather.
exposed
to
vibration.
She
should
She could
tools,
She could never
can
be
frequently
wetness,
humidity,
She can be occasionally
never
be
exposed
to
concentrated dust, fumes, gases or other pulmonary irritants.
She can be exposed to moderate noise levels.
She could only
remember short, simple instructions and would be unable to deal
with detailed instructions.
She is able to do simple routine,
repetitive tasks but would be unable to do detailed or complex
tasks.
She
She would be limited to simple work-related decisions.
would
be
able
to
accept
constructive
non-confrontational
criticism, work in small group settings and be able to accept
changes in the workplace setting if introduced gradually and
infrequently.
She would be unable to work at a production rate
pace but could perform goal-oriented work.
Any time off task by
the claimant could be accommodated by normal breaks.”
8
(Id. at
23).
The ALJ also determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
only
partially
decision.
credible
(Id. at 26).
for
the
reasons
explained
in
the
The ALJ found that Plaintiff is unable
to perform any of her past relevant work as a packer (unskilled,
medium), hand fish filleter (unskilled, medium), and baby sitter
(semi-skilled, medium).
testimony
of
a
VE,
(Id. at 35).
the
ALJ
However, utilizing the
concluded
that
considering
Plaintiff’s residual functional capacity for a range of light
work, as well as her age, education and work experience, there
are jobs existing in the national economy that Plaintiff is able
to perform, such as a “garment folder,” “office helper,” and
“mail clerk/sorter,” all of which are classified as unskilled
and light.
(Id. at 36).
is not disabled.
The
Court
Thus, the ALJ concluded that Plaintiff
(Id.).
now
considers
the
foregoing
in
light
record in this case and the issues on appeal.
1.
Issue
A. Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
physician, Dr. Judy C. Travis, M.D.?
9
of
the
In
this
case,
Plaintiff
argues
that
the
ALJ
erred
in
rejecting the opinions of her treating physician, Dr. Judy C.
Travis, M.D., set forth in a Medical Source Statement Physical
(MSS)
form
and
a
Clinical
completed on July 17, 2013.
Assessment
of
Pain
(Doc. 13 at 4-5).
(CAP)
form
In the forms,
Dr. Travis opined that, because of Plaintiff’s diabetes, lumbar
disk disease, and anxiety, she has the following limitations:
she can sit for only four hours in an eight-hour work day; she
can stand/walk for less than one hour in an eight-hour work day;
she can lift only five pounds frequently; she would miss work
more than three times in a month; her pain is present to such an
extent as to be distracting to the adequate performance of daily
activities; physical activity would greatly increase her pain to
such
a
degree
as
abandonment
of
significant
side
to
cause
task;
distraction
prescribed
effects
that
may
from
task
medications
limit
her
or
could
total
cause
performance
of
everyday tasks; and her pain is so severe as to prevent her from
maintaining concentration, persistence, or pace for periods of
at least two hours.
(Id. at 5; Tr. 330-31).
The Commissioner counters that the medical evidence does
not support Dr. Travis’ opinions set forth in the MSS and CAP
forms.
are
The Commissioner also contends that Dr. Travis’ opinions
inconsistent
thus, they
with
the
substantial
evidence
were properly discredited by the ALJ.
10
in
the
case;
(Doc. 18 at
3-6).
The
Commissioner
further
argues
that
the
ALJ’s
RFC
assessment is supported by the substantial evidence in the case.
(Id. at 3).
Having carefully reviewed the record in this case,
the Court finds that Plaintiff’s claim is without merit.
As part of the disability determination process, the ALJ is
tasked
with
examining,
weighing
and
the
opinions
non-examining
and
findings
physicians.
of
In
treating,
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 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
physician.
not
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,
11
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.’”
(11th
Milner v. Barnhart,
Cir.
2008)
404.1527(f)(2)(i)).
examining
(unpublished)
“The
sources
when
examining sources.”
275 Fed. Appx. 947, 948
ALJ
they
may
do
(citing
rely
not
on
20
C.F.R.
opinions
conflict
with
of
§
non-
those
of
Id. (citing Edwards v. Sullivan, 937 F.2d
580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining
physicians,
testimony
any
of
good
medical
cause
source
exists
when
it
to
is
discredit
contrary
to
the
or
unsupported by the evidence of record.
Phillips v. Barnhart,
357 F.3d 1232, 1240 (11th Cir. 2004).
“Good cause may also
exist
where
a
doctor’s
opinions
are
merely
conclusory,
inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”
Hogan v. Astrue, 2012 U.S.
Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764
F.2d
834,
835
(11th
Cir.
1985)
(per
Sryock v. Heckler,
curiam)
(citation
omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,
212
(11th
Cir.
2010)
(The
12
ALJ
may
reject
any
medical
opinion if the evidence supports a contrary finding.).
In
support
of
her
argument
that
the
ALJ
erred
in
discrediting 7 Dr. Travis’ opinions that her limitations from her
diabetes, lumbar disk disease, and anxiety preclude her from
working, Plaintiff points to the following evidence which she
alleges establishes her disability:
(1) From 2000 to 2013, Plaintiff was treated by Dr. Edgar
Brown, M.D., for back and neck pain and diabetes, for which Dr.
Brown prescribed medications and administered injections.
Dr.
Brown also ordered an MRI in 2011 that showed a right-sided disk
bulge at L4-5.
Dr.
Wesley
Dr. Brown referred Plaintiff to a specialist,
Spruill,
M.D.,
at
Plaintiff saw on March 15, 2012.
the
Spine
Care
Center,
who
(Doc. 13 at 1-2, Tr. 220-37,
234-35, 247-49, 256, 272-312, 345-57);
(2) In 2010, Plaintiff was treated on one occasion by Dr.
Bruce Taylor, M.D., for pain, paresthesia, and radiculopathy in
her back, neck, and shoulder.
Dr. Taylor gave Plaintiff a Depo-
Medrol injection and prescribed Flexeril and Ultram.
did not return for further treatment.
Plaintiff
(Doc. 13 at 2; Tr. 214-
18);
(3) On February 2, 2012, Plaintiff was
7
examined at the
The record shows that the ALJ assigned “some weight” to portions
of Dr. Travis’ opinions contained in her treatment records but
not to those expressed in the MSS and CAP forms. (Tr. 34).
13
request of the Agency by consultative physician, Dr. Stephen J.
Robidoux, M.D., who diagnosed “diabetes type two NOT on insulin”
and opined that Plaintiff had a
age.”
“normal examination for her
(Doc. 13 at 2; Tr. 239-242).
Dr. Robidoux’s physical
examination findings showed normal unaided gait, normal heel and
toe walking, able to squat and raise, and normal neuromuscular
findings.
(Tr.
241-42).
hospitalizations,
no
Dr.
surgery,
no
Robidoux
also
physical
noted
therapy,
no
no
chiropractic care, and no epidural blocks for her alleged of
back pain.
(Id. at 242).
radiculopathy
or
any
other
He noted an abnormal MRI “without
positive
physical
normal physical examination for her age.”
findings
(Id.).
and
a
He further
noted that Plaintiff was taking only a low dose of NSAIDs for
pain.
(Id.).
Dr. Robidoux assessed no functional limitations
whatsoever, concluding that Plaintiff had “NO limitations for
her
age
to
any
walking,
lifting,
kneeling,
crawling,
activities
including,
carrying,
climbing,
using
hand
and
foot
sitting,
squatting,
controls,
standing,
bending,
handling
objects, speaking, listening or travel” (id.);
(4) On March 15, 2012, Plaintiff saw Dr. Wesley L. Spruill,
M.D., at the Spine Care Center.
Dr.
Spruill’s
physical
(Doc. 13 at 2; Tr. 256-61).
examination
findings
showed
increased
pain with flexion at 60 degrees and tenderness to palpation in
the mid lumbosacral region. Dr. Spruill found no numbness or
14
weakness in Plaintiff’s legs, but tingling in both legs, which
Plaintiff
257).
reported
was
alleviated
with
medication.
(Id.
at
Plaintiff’s lumber exam was largely “normal,” with the
exception of “tenderness” in the mid lumbosacral region, with no
pain in the cervical or thoracic regions, the sacroiliac joint,
or bilateral facets.
(Id. at 260).
She had no swelling or
atrophy in the upper or lower extremities.
(Id.).
She had
normal range of motion, strength, and sensation in the upper
extremities bilaterally.
(Id.).
She had 4/5 grasp strength in
both hands and 4/5 muscle strength in both legs.
had normal patellar reflex in both knees.
pain in her hips during range of motion.
(Id.).
(Id.).
She
She had no
(Id. at 261).
She had
a positive straight leg raise in the right leg at sixty degrees.
(Id.).
She described her sleep as “fair,” reporting that she
averages seven hours of sleep each night.
was
alert
and
nervousness,
diagnosed
or
oriented
mood
Plaintiff
and
denied
swings.
with
(Id. at 257).
anxiety,
(Id.
back
low
at
259).
pain,
depression,
Dr.
L4-5
Spruill
herniation,
persistent pain, and failure of conservative treatment.
261).
She
(Id. at
He recommended an epidural steroid injection and physical
therapy, both of which Plaintiff declined.
(Id.).
Plaintiff
never returned for further treatment;
(5)
On
April
25,
2012,
Plaintiff
was
examined
at
the
request of the Agency by consultative psychologist, Dr. Nina E.
15
Tocci,
Ph.D.,
findings
whose
revealed
comprehensive
“appropriate,
mental
normal,
status
and
examination
stable”
mood
and
affect and thought content; oriented to time, place, person, and
situation;
“fair”
judgment;
some
attention
insight;
and
and
concentration;
ability
to
fair
abstract
social
intact.
However, Plaintiff was not able to calculate change or perform
multiplication
problems
and
could
not
perform
serial
threes
backward or serial fours forward; she could not name five famous
people; and she could not spell “world” or “earth” backward.
She
was
able
president.
to
identify
the
current
and
immediate
past
She demonstrated a “good” fund of information and
comprehension.
Dr. Tocci opined that Plaintiff was functioning
in the low average range of intellectual ability and diagnosed
her with Adjustment Disorder with Disturbance of Mood, finding
that her prognosis was guarded.
was
in
no
distress
and
opined
Dr. Tocci found that Plaintiff
that
obtaining her GED and job training.8
she
would
benefit
from
(Doc. 13 at 3; Tr. 251-53);
(6) From August 1, 2012, to October 22, 2013, Plaintiff saw
a psychiatrist, Dr. Timothy Baltz, M.D., at Cahaba Mental Health
Center, who diagnosed her with Panic Disorder with Agoraphobia,
Depressive Disorder, and Cluster B Personality features.
at
327).
Plaintiff
reported
8
multiple
daily
panic
(Id.
attacks
Plaintiff reported to Dr. Tocci that the reason that she stopped
working was because of child care issues. (Tr. 251).
16
lasting about three minutes, suicidal thoughts with no attempts,
and a reluctance to be around people.
(Id. at 264-65, 327).
Dr. Baltz prescribed medication and counseling.
(Id.).
At no
time did Dr. Baltz assign any functional limitations as a result
of Plaintiff’s mental condition.
(Doc. 13 at 3; Tr. 264-68,
326-28, 360-61); and
(7) On three occasions from May 13, 2012, to July 17, 2013,
Plaintiff saw physician, Dr. Judy C. Travis, M.D., who diagnosed
her with diabetes, anxiety, hypertension, displaced lumbar disk,
and joint pain and treated her with medications.
Tr. 330-43).
Travis
(Doc. 13 at 4;
On Plaintiff’s first visit on May 13, 2013, Dr.
completed
a
physical
examination
and
found
a
“symmetrical” musculoskeletal system with “no deformities,” “no
swelling,” “good muscle mass bilaterally,” “full range of motion
of
all
joints,”
atrophy.”
262.
“all
muscles
(Id. at 341).
(Id.).
well,”
and
“no
Plaintiff’s blood glucose level was
Plaintiff
medication follow up.
functioning
returned
(Id. at 338).
on
May
28,
2013,
for
a
On her third visit on July
17, 2013, Dr. Travis completed MSS and CAP forms, opining that
Plaintiff’s
uncontrolled
diabetes,
lumbar
disk
anxiety prevent her from working.
(Id. at 330-31).
physical
that
disease,
examination
findings
on
date
were
and
Dr. Travis’
unremarkable
except for notations that Plaintiff had “pain in arms and legs,”
“decreased
movement
of
upper
body
17
due
to
muscle
pain”
and
“tender[ness]” in her neck. (Id. at 334-35).
Contrary
to
Plaintiff’s
argument,
the
evidence
detailed
above does not support Dr. Travis’ opinions set forth in the MSS
and
CAP
forms
disabling
that
Plaintiff
diabetes,
Plaintiff’s
evidence
lumbar
shows
is
unable
disk
nothing
to
work
disease,
more
than
because
and
of
anxiety.
conservative
treatment of her conditions with medication, with no physical
therapy, no epidural injections, no chiropractic care, and no
surgeries for her back, as well as no hospitalizations 9 related
to any of her medical conditions.
With respect to Plaintiff’s back,
right-sided
treatment
disk
with
bulge
epidural
at
L4-5;
steroid
her 2011 MRI
yet,
injections
Plaintiff
or
even
shows a
declined
physical
therapy, choosing only conservative treatment with medication.
(Id. at 261).
Curiously, Dr. Travis’ own examination findings
on the date that she completed the MSS and CAP forms reflect
nothing more than “pain in arms and legs,” “decreased movement
of upper body due to muscle pain” and “tender[ness]” in her
neck.
(Id. at 334-35).
Even more curious, on May 13, 2013, Dr.
9
The record reveals one emergency room visit on March 2, 2013, in
which Plaintiff complained of back pain, which she rated as a
nine on a ten-point pain scale.
(Tr. 314).
Upon examination,
the emergency room physician noted that she was in “no acute
distress,” and his findings related to her neck, back, and
extremities were completely normal.
(Tr. 316, 318).
She was
prescribed
Lortab
and
Bactrim
and
discharged
in
“good”
condition. (Id. at 320).
18
Travis
noted
a
deformities,”
“symmetrical”
“no
swelling,”
musculoskeletal
“good
muscle
system
mass
with
“no
bilaterally,”
“full range of motion of all joints,” “all muscles functioning
well,” and “no atrophy.”
(Id. at 341).
All of these findings
are inconsistent with the severity of the opinions set forth in
the MSS and CAP forms.
In addition to being inconsistent with her own treatment
records, Dr. Travis’ opinions are inconsistent with the opinions
of
one-time
examining
physician,
Dr.
Spruill,
whose
physical
examination findings were largely normal, with the exception of
“tenderness” in the lumbosacral region.
Spruill
further
noted
that
Plaintiff
mood
swings,
or
(Id. at 260).
depression.
anxiety,
denied
any
(Id.
Dr.
nervousness,
at
259).
He
recommended epidural steroid injections and physical therapy,
both of which Plaintiff declined, and he assigned no functional
limitations whatsoever.
Dr.
opinions
Travis’
of
(Id. at 261).
opinions
consultative
are
also
inconsistent
physician,
Dr.
with
Robidoux,
the
whose
examination findings were largely “normal” and who opined that
Plaintiff
had
a
“normal
limitations whatsoever.
examination
for
her
age,”
with
no
(Id. at 239-242).
Dr. Travis’ opinions are inconsistent with the opinions of
consultative psychologist, Dr. Tocci, who diagnosed Plaintiff
with Adjustment Disorder with Disturbance of Mood but opined
19
that she would benefit from obtaining her GED and job training.
(Id. at 251-53).
Dr. Travis’ opinions are inconsistent with the treatment
records
of
Plaintiff
treating
with
psychiatrist,
Panic
Disorder
Dr.
with
Baltz,
who
Agoraphobia,
diagnosed
Depressive
Disorder, and Cluster B Personality features, but treated her
conservatively
with
prescribed
functional limitations.
medications
and
assigned
no
(Id. at 327).
Because Dr. Travis’ opinions in the MSS and CAP forms are
inconsistent with her own
treatment records, as well as
the
remaining substantial evidence in this case detailed above, the
ALJ had good cause to discredit those opinions.
In addition,
the Court finds, based upon the evidence detailed above, that
substantial evidence supports the ALJ’s RFC assessment for a
range of light work, with the stated restrictions.
(Id. at 23).
Accordingly, Plaintiff’s claim must fail.10
10
The Court notes that Plaintiff also submitted additional
records from Dr. Baltz, Dr. Travis, Vaughn Regional Medical
Center, and Bryan Whitfield Memorial Hospital to the Appeals
Council after the date of the ALJ’s decision on September 26,
2013, which the Appeals Council reviewed and found did not
warrant remand.
(Id. at 4-5).
Of particular note in the new
evidence is a lumbar spine bone scan dated January 10, 2014,
which was “normal,” and a lumbar spine MRI dated December 2,
2013, which showed a “dehydrated” disc at L4-5 with a “small”
posterior annular tear associated with a “very small” posterior
protrusion at L5-S1, without spinal stenosis.
(Id. at 394-95,
400).
Although Plaintiff has not alleged any error related to
the Appeals Council’s review of the records, the Court has
nonetheless reviewed the records and finds nothing in the
20
B.
Whether the ALJ erred in evaluating
Plaintiff’s complaints of pain?
Next, Plaintiff argues that the ALJ erred in failing to
properly evaluate her complaints of pain pursuant to SSR 96-7p. 11
records to suggest that Plaintiff’s back pain, diabetes,
anxiety, or any other impairment is disabling. To the contrary,
the Court finds that the additional medical records are
cumulative of the treatment records considered by the ALJ and
reflect nothing more than ongoing treatment of the same medical
conditions considered by the ALJ.
For this reason, they would
not have changed the administrative outcome and, thus, do not
warrant a remand for further consideration of the evidence. See
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 126162 (11th Cir. 2007) (“[W]hen a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider
whether that new evidence renders the denial of benefits
erroneous.”); Caulder v. Bowen, 791 F. 2d 872, 877 (llth Cir.
1986) (new evidence is material if it is “relevant and probative
so that there is a reasonable possibility that it would change
the administrative outcome.”).
11
Plaintiff refers to the following language in SSR 96-7p:
Assessment of the credibility of an individual’s
statements about pain or other symptoms and about
the effect the symptoms have on his or her
ability
to
function
must
be
based
on
a
consideration of all of the evidence in the case
record. This includes, but is not limited to:
The medical signs and laboratory findings;
Diagnosis, prognosis, and other medical
opinions provided by treating or examining
physicians
or
psychologists
and
other
medical sources; and
Statements and reports from the individual
and from treating or examining physicians or
psychologists and other persons about the
individual’s medical history, treatment and
response, prior work record and efforts to
work,
daily
activities,
and
other
information
concerning
the
individual’s
21
(Doc.
13
at
Spruill’s
11).
medical
Specifically,
records,
Plaintiff
which
show
argues
“pain
that
with
Dr.
flexion,
tenderness to palpation and reduced strength on examination,”
and
Dr.
Travis’
medical
records,
which
“repeatedly”
show
“decreased movement of the upper body due to muscle spasms,”
constitute “medical signs” which satisfy the pain standard and
establish her disability.
(Id.).
The Commissioner counters that the ALJ reasonably evaluated
all of the evidence of record, including Plaintiff’s subjective
complaints of pain, that the ALJ identified valid reasons for
discounting
ALJ’s
Plaintiff’s
credibility
evidence.
subjective
evaluation
(Doc. 18 at 6).
statements,
is
supported
and
by
that
the
substantial
Having carefully reviewed the record
in this case, the Court finds that Plaintiff’s claim is without
merit.
When
symptoms,
evaluating
the
statements,
persons,
and
ALJ
a
claim
considers
statements
evidence
by
of
based
medical
the
how
on
findings,
treating
the
disabling
pain
subjective
a
physician
(or
other
claimant’s
or
other
subjective
symptoms) affects the claimant’s daily activities and ability to
work.
20 C.F.R. § 416.929(a).
In a case where a claimant
symptoms and how the symptoms
individual’s ability to work.
affect
SSR 96-7p, 1996 SSR LEXIS 4, 1996 WL 374186, *5.
22
the
attempts
to
establish
disability
through
his
or
her
own
testimony concerning pain or other subjective symptoms, a threepart standard applies.
That standard requires: “(1) evidence of
an underlying medical condition and either (2) objective medical
evidence that confirms the severity of the alleged pain [or
other subjective symptoms] 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
[or
other
subjective
symptoms].”
Hubbard
v.
Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir.
2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991)).
The Social Security regulations further
provide:
[S]tatements
about
your
pain
or
other
symptoms will not alone establish that you
are disabled; there must be medical signs
and laboratory findings which show that you
have a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent
with
the
medical
signs
and
laboratory
findings),
would
lead
to
a
conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2013).
“A
claimant’s
subjective
testimony
supported
by
medical
evidence that satisfies the pain standard is itself sufficient
23
to support a finding of disability.”
1553, 1561 (11th Cir. 1995).
Foote v. Chater, 67 F.3d
Stated differently, “if a claimant
testifies to disabling pain [or other subjective symptoms] and
satisfies
the
disabled
three
unless
part
that
pain
standard,
testimony
is
he
must
properly
be
found
discredited.”
Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1186 (N.D. Ala.
2006).
Therefore, once the determination has been made that a
claimant has satisfied the three-part standard, the ALJ must
then turn to the question of the credibility of the claimant’s
subjective complaints.
(the
three-part
determination
standard
made
credibility.”).
See id., 444 F. Supp. 2d at 1189 n.1
“is
prior
designed
to
considering
be
a
the
threshold
plaintiff’s
If a claimant does not meet the standard, no
credibility determination is required.
In
to
assessing
a
claimant’s
Id.
credibility,
the
ALJ
must
consider all of the claimant’s statements about his symptoms and
determine the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical evidence.
See
20
are
C.F.R.
§
404.1528.
Such
credibility
within the province of the ALJ.
1208, 1212 (11th Cir. 2005).
credit
a
claimant’s
determinations
Moore v. Barnhart, 405 F.3d
However, if an ALJ decides not to
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 credibility
24
finding.”
Strickland v. Commissioner of Soc. Sec., 516 Fed.
Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing Foote, 67
F.3d at 1562); see also Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983) (although no explicit finding as to credibility
is required, the implication must be obvious to the reviewing
court).
Failure
to
articulate
the
reasons
for
discrediting
testimony related to pain or other subjective symptoms requires,
as a matter of law, that the testimony be accepted as true.
Holt, 921 F.2d at 1223.
The Eleventh Circuit has held that the determination of
whether
objective
medical
impairments
could
reasonably
be
expected to produce the pain or other 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
credibility finding with substantial supporting evidence in the
record.
See Nye v. Commissioner of Social Sec., 524 Fed. Appx.
538, 543 (11th Cir. 2013) (unpublished).
In
this
case,
assuming
arguendo,
that
Plaintiff
has
satisfied the threshold three-part pain standard, the ALJ found
that Plaintiff’s testimony regarding the intensity, persistence,
25
and limiting effects of her symptoms was “not entirely credible”
based on the inconsistency between her testimony and the other
record evidence.
above,
confirms
symptoms
(Id. at 26).
the
(including
ALJ’s
pain)
The record evidence, detailed
findings
have
been
that
all
treated
of
Plaintiff’s
with
medication
only; that while an MRI has shown that she has a bulging disk at
L4-5, she has declined epidural injections and physical therapy;
that
she
has
never
sought
alternative
treatment,
such
as
chiropractic care, for her back pain; that no medical source has
ever recommended surgery for any of her medical conditions; that
she
has
never
been
hospitalized
as
a
result
of
any
of
her
medical conditions; that, other than Dr. Travis (whose opinion
has been discredited), no treating or examining physician has
ever opined that she is unable to work due to a physical or
mental condition or imposed any functional limitations; and that
Plaintiff herself stated that she stopped working because of
child care issues.
In
addition,
(Id. at 26-35).
the
ALJ
observed
that,
during
Plaintiff’s
administrative hearing, Plaintiff showed “no evidence of pain or
discomfort while testifying at the hearing,” that she “walked in
and out with no apparent gait disturbance,” that she “sat down
and arose without issue,” that she “sat for 45 minutes or more
without any distress evident,” and that she “bent over twice
26
during the hearing to her right to pick papers off the floor and
she did so easily.”
(Id. at 32).
After a careful review of the record, the Court finds that
the
ALJ’s
evidence
credibility
and
that
finding
his
reasons
is
supported
for
by
substantial
discrediting
Plaintiff’s
testimony were sufficiently articulated in the decision.
C.F.R. § 404.1529(c)(2)-(4); (Tr. 26-35).
See 20
As previously noted,
this Court may not decide the facts anew, reweigh the evidence,
or substitute its judgment but must accept the factual findings
of
the
Commissioner
where
they
are
supported
by
evidence and based upon the proper legal standards.
substantial
See Bridges
v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (“the findings and
decision
of
substantial
the
Secretary
evidence.”);
are
accord
conclusive
Hand,
if
761
supported
F.2d
at
by
1549.
Accordingly, Plaintiff’s claim must fail.
V.
Conclusion
For
the
reasons
set
forth
herein,
and
upon
careful
consideration of the administrative record and memoranda of the
parties,
it
is
hereby
ORDERED
that
the
decision
of
the
Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 23rd day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
27
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