James v. Commissioner of Social Security
Filing
17
OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 9/26/2017. (JTM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KIZZIE JAMES,
Plaintiff,
v.
Case No: 2:16-cv-436-FtM-MRM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
This cause is before the Court on Plaintiff Kizzie Levone James’ Complaint (Doc. 1)
filed on July 21, 2016. Plaintiff seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“SSA”) denying her claim for a period of disability,
disability insurance benefits, and supplemental security income. The Commissioner filed the
Transcript of the proceedings (hereinafter referred to as “Tr.” followed by the appropriate page
number), and the parties filed legal memoranda in support of their positions. For the reasons set
out herein, the decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
I.
Social Security Act Eligibility, Procedural History, the ALJ’s Decision, and
Standard of Review
A.
Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work, or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911.
B.
Procedural History
On August 14, 2012, Plaintiff filed an application for a period of disability, disability
insurance benefits, and supplemental security income benefits alleging an onset date of August 1,
2011. (Tr. at 180, 187). Plaintiff later amended her alleged onset date to August 1, 2012. (Tr. at
31). Plaintiff’s claims were denied initially on September 10, 2012, (Tr. at 79-80), and on
reconsideration on October 25, 2012, (Tr. at 100-101). Plaintiff sought review of her application
and requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 131). A hearing
was held before ALJ Gregory M. Hamel on February 2, 2015. (Tr. at 28-62). ALJ Hamel issued
an unfavorable decision on February 26, 2015. (Tr. at 9-27). The ALJ found Plaintiff not to be
under a disability from August 1, 2012, through the date of the decision. (Tr. at 21).
On May 5, 2016, the Appeals Council denied Plaintiff’s request for review. (Tr. at 1-6).
On June 6, 2016, Plaintiff filed a Complaint in this Court. (Doc. 1). Defendant filed an Answer
(Doc. 10) and the Transcript (Doc. 11) on September 12, 2016. The parties filed memoranda in
support. (See Docs. 15-16). The parties consented to proceed before a United States Magistrate
Judge for all proceedings. (See Doc. 14). This case is ripe for review.
C.
Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) has the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) can perform other work of the sort found in the national economy.
Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004). The claimant has the burden of
proof through step four and then the burden shifts to the Commissioner at step five. Hines-Sharp
v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through September 30,
2014. (Tr. at 15). At step one of the sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since August 1, 2012, the alleged onset date. (Tr. at 15).
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
“degenerative joint disease of the knees and right ankle, degenerative disc disease of the lumbar
spine, and obesity.” (Tr. at 15). At step three, the ALJ determined that Plaintiff did 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). (Tr. at 15). The ALJ specifically
considered Listings 1.02 and 1.04. (Tr. at 15-16).
Based on the evidence, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
1
Unpublished opinions may be cited as persuasive on a particular point. The Court does not rely
on unpublished opinions as precedent. Citation to unpublished opinions on or after January 1,
2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
3
except Plaintiff “can only occasionally climb stairs, balance, stoop, kneel, crouch, or crawl; she
cannot climb ladders and similar devices; and she cannot work in hazardous environments.” (Tr.
at 16).
At step four, the ALJ determined that Plaintiff is capable of performing past relevant
work as a cashier and assembly worker. (Tr. at 20). The ALJ found that “[t]his work does not
require the performance of work-related activities precluded by the claimant’s residual functional
capacity.” (Tr. at 20). Specifically, the ALJ noted that Plaintiff had past relevant work as a
cashier, (DOT Job Code 211.462-014), fish cleaner (DOT Job Code 525.684-030), sandwich
maker (DOT Job Code 317.684-014), stocker (DOT Job Code 922.687-058), kitchen helper
(DOT Job Code 318.687-010), and assembly worker (DOT Job Code 706.684-022). (Tr. at 20). 2
The ALJ noted that these jobs were described as light and medium in exertional level. (Tr. at
20). According to testimony from a vocational expert (“VE”), an individual with Plaintiff’s RFC
“can carry out the functions of cashier and assembly worker.” (Tr. at 20). 3 Pursuant to Social
Security Ruling (“SSR”) 00-4p, the ALJ found the VE’s testimony to be consistent with the
information contained in the Dictionary of Occupational Titles. (Tr. at 20).
In comparing Plaintiff’s RFC with the physical and mental demands of Plaintiff’s past
relevant work, the ALJ found that Plaintiff is able to perform it as actually and generally
performed. (Tr. at 20). Moreover, the ALJ noted that because Plaintiff can carry out the
functions of her past relevant work, a finding of “not disabled” is reached without the need to
2
“DOT” refers to the Dictionary of Occupational Titles.
3
Of note, however, the ALJ stated that “the assembly worker job may not have been done long
enough to qualify as substantial gainful activity, but assuming argued [sic], she would still be
able to do the cashier job and the vocational expert has given other jobs that the claimant could
do.” (Tr. at 20).
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consider the final step in the sequential evaluation process. (Tr. at 20). Furthermore, the ALJ
stated that, even if Plaintiff were able to do only sedentary work, together with the other
limitations found in the established RFC, a finding of “not disabled” would still be reached under
the medical-vocational guidelines. (Tr. at 20).
Although the ALJ found at step four that Plaintiff could perform past relevant work and
was, therefore, not disabled, the ALJ proceeded to make alternative findings at step five. (Tr. at
20). At step five, after considering Plaintiff’s age, education, work experience, and RFC, the
ALJ determined that there were jobs that existed in significant numbers in the national economy
that Plaintiff could have performed. (Tr. at 21). Specifically, the ALJ noted the VE’s testimony
that an individual with Plaintiff’s age, education, work experience, and RFC would be able to
perform the requirements of representative occupations including: charge account clerk (DOT
Job Code 205.367-014) with 1,400 jobs in the regional economy and 58,000 nationally; assembly
positions (DOT Job Code 713.687-026) with 950 jobs in the regional economy and 78,000
nationally; and surveillance system monitor (DOT Job Code 379.367-010) with 300 jobs in the
regional economy and 4,500 nationally.” (Tr. at 21). Each of these jobs has a Specific
Vocational Preparation Code of 2 and would be available to Plaintiff even if she were limited to
the performance of only routine and repetitive tasks due to mental health symptoms. (Tr. at 21).
The ALJ found, however, that Plaintiff is not significantly limited by any mental illness or
diminished intellectual function. (Tr. at 21). Thus, the ALJ did not include any limitations in the
RFC assessment related to mental health. (Tr. at 21).
Based on the testimony of the VE and considering Plaintiff’s age, education, work
experience, and RFC, the ALJ found that Plaintiff “would be capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” (Tr. at 21).
5
Thus, the ALJ determined that a finding of “not disabled” was appropriate. (Tr. at 21).
Accordingly, the ALJ found that Plaintiff was not under a disability from August 1, 2012,
through the date of the decision. (Tr. at 21).
D.
Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must
scrutinize the entire record to determine reasonableness of factual findings).
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II.
Analysis
On appeal, Plaintiff raises three issues:
(1) The ALJ erred by failing to adequately consider Plaintiff’s medically determinable
impairment of obesity and failed to properly evaluate the impact of that condition
in assessing Plaintiff’s work capacity, in violation of [SSR] 02-1p, 96-8p.
(2) The ALJ’s assessment of Plaintiff’s credibility is not supported by substantial
evidence because the ALJ misconstrued the evidence of record and did not
articulate legally sufficient rationale for discrediting Plaintiff in violation of 20
C.F.R. §§ 404.1529(c), 416.929(c), and SSR 16-3p.
(3) The [RFC] assessment is not supported by substantial evidence because the ALJ
failed to account for Plaintiff’s peripheral neuropathy/carpal tunnel syndrome in
evaluating her work capacity, in violation of 20 C.F.R. §§ 404.1545(b), 416.945(b).
(Doc. 15 at 2). The Court will consider each issue in turn.
A.
Plaintiff’s Obesity
The Court first addresses Plaintiff’s contention that the ALJ failed to consider Plaintiff’s
medically determinable impairment of obesity and the impact of that condition in assessing
Plaintiff’s work capacity. (Doc. 15 at 8). Plaintiff argues that, when viewed in combination with
the orthopedic impairments of her knees, left ankle, and back, her obesity is a significant
contributing factor to her physical limitations. (Id. at 9). Plaintiff argues that her medical
examinations reflect that she has a body mass index greater than 40, and sometimes greater than
50, placing her obesity in the “extreme” range. (Id.). Plaintiff argues that she routinely has
difficulty walking, weight-bearing, and with activities of daily living. (Id. at 10).
Furthermore, Plaintiff contends that the medical evidence of record corroborates her
testimony that her obesity is a severe impairment in its own right and limits her functional ability
to stand and walk. (Id.). Plaintiff argues that, although the ALJ acknowledged her obesity at
step two and step three, the ALJ failed to fully consider the impact of her obesity in assessing her
7
RFC. (Id.). Thus, Plaintiff argues that the ALJ’s findings related to her obesity are not
supported by substantial evidence. (Id. at 12).
Defendant responds that the ALJ properly evaluated Plaintiff’s obesity in accordance
with SSR 02-1p. (See Doc. 16 at 6). Specifically, Defendant notes that the ALJ included
Plaintiff’s obesity as a severe impairment at step two. (Id. at 7). Moreover, Defendant contends
that the ALJ considered Plaintiff’s impairments singularly and in combination in evaluating
whether Plaintiff met a Listing. (Id. (citing Tr. at 15)). In fact, Defendant notes that the ALJ
specifically referenced SSR 02-1p in making that finding. (Id.). Defendant further notes that the
ALJ stated that he “considered the effects of the claimant’s obesity in reducing the claimant’s
residual functional capacity pursuant to [SSR] 02-0lp [sic].” (Id. (citing Tr. at 16)). Moreover,
Defendant contends that even assuming, arguendo, that “Plaintiff’s obesity prohibited light
work, Plaintiff failed to prove that her obesity singularly or in combination with other
impairments precluded sedentary jobs.” (Id. at 8). Thus, Defendant argues that the ALJ properly
considered Plaintiff’s obesity. (See id.).
In reviewing this issue, the Court notes that an ALJ must consider obesity as an
impairment when evaluating a claimant’s disability. See SSR 02-1p, 2000 WL 628049, at *1
(Sept. 12, 2000). While it is the ALJ’s responsibility to find that obesity is a medically
determinable impairment, the burden is on Plaintiff to establish that her obesity results in
functional limitations, and that she is disabled under the Social Security Act. See 20 C.F.R. §
404.1512(a), (c) (2016) (instructing claimant that the ALJ will consider “only impairment(s) you
say you have or about which we receive evidence” and “[y]ou must provide medical evidence
showing that you have an impairment(s) and how severe it is during the time you say that you are
disabled”); see also Flynn v. Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985) (noting claimant
8
“bears the burden of demonstrating that the Secretary’s decision . . . is not supported by
substantial evidence”). 4
Here, it is clear that the ALJ reviewed all of the relevant evidence of record regarding
Plaintiff’s obesity, and considered her obesity in the context of her other health problems. (See
Tr. at 16). Specifically, as noted by Defendant, the ALJ found Plaintiff’s obesity to be a severe
impairment at step two and also considered her obesity at step three. (Tr. at 15). Moreover, the
ALJ specifically stated that he “considered the effects of the claimant’s obesity in reducing the
claimant’s [RFC] pursuant to SSR 02-1p.” (Tr. at 16). Based on his review, the ALJ then
determined that Plaintiff has the RFC to perform light work except that Plaintiff “can only
occasionally climb stairs, balance, stoop, kneel, crouch, or crawl; she cannot climb ladders and
similar devices; and she cannot work in hazardous environments.” (Tr. at 16). There is no
indication from the record that Plaintiff’s obesity was not properly considered in making these
findings.
Furthermore, although Plaintiff argues that the ALJ erred in reviewing her obesity (Doc.
15 at 12), Plaintiff has not shown what additional functional limitations result from her obesity.
On this point, the Eleventh Circuit and other district courts within this circuit have found that an
ALJ does not commit reversible error in circumstances similar to this case. See, e.g., Castel v.
Comm’r of Soc. Sec., 355 F. App’x 260, 264 (11th Cir. 2009); Vickers v. Astrue, No.
3:08CV78/MCR/EMT, 2009 WL 722273, at *14 (N.D. Fla. Mar. 18, 2009); Ingram v. Astrue,
No. 8:07-CV-1591-JDW-TBM, 2008 WL 2943287, at *6 (M.D. Fla. July 30, 2008).
4
The Court notes that these regulations were recently revised. See Revisions to Rules Regarding
the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017).
9
In Castel v. Commissioner of Social Security, for instance, the claimant argued that the
ALJ failed to consider her obesity in combination with other impairments and failed to specify
any functional limitations resulting from her severe impairment of obesity. 355 F. App’x at 264.
The Eleventh Circuit, however, found no error because the “record reflect[ed] that the ALJ
considered [the claimant’s] obesity[,]” and “the ALJ made specific reference to SSR 02-1p in his
ruling.” Id. Thus, despite the ALJ determining that obesity was a severe impairment, the ALJ
did not err because the medical evidence did not support “specific functional limitations”
attributable to obesity. See id.
Similarly, in Vickers v. Astrue, the ALJ did not mention the claimant’s obesity. 2009 WL
722273, at *14. Nonetheless, the court found no error in the ALJ’s decision because the
claimant did not show he had any limitations related to his obesity. See id.
Further, in Ingram v. Astrue, the claimant’s weight was noted repeatedly throughout the
record, but the ALJ failed to mention the claimant’s obesity or to address it in accordance with
SSR 02-1p. 2008 WL 2943287, at *6. Nevertheless, this Court found that the error did not
constitute grounds for reversal because the claimant had not identified any evidence suggesting
that his RFC was affected by his obesity. See id.
Here, like Castel, the record shows that the ALJ specifically considered Plaintiff’s
obesity and, in fact, made specific reference to SSR 02-1p in his ruling. (See Tr. at 16). This
consideration was found to be sufficient in Castel. See 355 F. App’x at 264. Moreover, like
Castel, while the ALJ specifically determined that obesity was a severe impairment, (Tr. at 15),
as explained below, the medical evidence does not support “specific functional limitations”
attributable to obesity. See Castel, 355 F. App’x at 264. Furthermore, as in Vickers and Ingram,
Plaintiff has failed to show any additional limitations resulting from her obesity. See 2009 WL
10
722273, at *14; 2008 WL 2943287, at *6. Thus, the ALJ did not err in reviewing Plaintiff’s
obesity.
In any event, there is insufficient evidence of record to establish that Plaintiff had any
greater limitations that what were assigned by the ALJ in the RFC determination. Stated
differently, the Court finds substantial evidence supports the ALJ’s determination of the
Plaintiff’s RFC because the ALJ relied on objective medical evidence in the record to make that
determination. (See Tr. at 16). For instance, the ALJ cited evidence that Plaintiff’s ambulation
difficulties did not rise to the level of a Listing because she did not require an assistive device to
ambulate and because there was no evidence of reduced leg strength. (Tr. at 16). The ALJ also
noted that Plaintiff reportedly felt much better and her examination improved after her ankle
surgery. (See Tr. at 16 (citing Tr. at 446)). In addition, the ALJ noted that, when Plaintiff was
able to walk, she had more independence with her daily activities. (Tr. at 16 (citing Tr. at 563)).
Moreover, as discussed in Part II.B., infra, the ALJ properly evaluated Plaintiff’s complaints of
pain and found her statements not to be entirely credible. Thus, Plaintiff’s statements do not
establish greater limitations. Taking all of this together, the Court finds that the ALJ’s RFC
determination is supported by substantial evidence and that the ALJ did not err in considering
Plaintiff’s obesity when determining Plaintiff’s RFC. Thus, the ALJ’s decision is affirmed on
this issue.
B.
Plaintiff’s Credibility
Plaintiff’s next contention is that the ALJ erred in assessing her credibility. (Doc. 15 at
12). Plaintiff argues that the ALJ’s assessment “is unsupported by substantial evidence because
the ALJ misconstrued the evidence of record and did not articulate legally sufficient rationale for
discrediting Plaintiff.” (Id.).
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Defendant disagrees, arguing that substantial evidence supports the ALJ’s findings.
(Doc. 16 at 9). Defendant argues that the ALJ adequately explained why he found Plaintiff’s
statements not to be entirely credible. (Id. at 12-13).
As an initial matter, Plaintiff argues that the ALJ violated SSR 16-3p. (Doc. 15 at 2).
The Court notes that the ALJ’s decision, (Tr. at 9-27), was rendered on February 26, 2015 before
SSR 16-3p was issued. See SSR 16-3p, 2016 WL 1119029 (effective date modified to March 28,
2016, 2016 WL 1237954). 5 The Appeals Council’s denial, (Tr. at 1-6), however, was issued on
May 5, 2016, after SSR 16-3p became effective on March 28, 2016.
The applicability of the SSR 16-3p could be impactful in some situations because SSR
16-3p deals with an ALJ’s credibility determination of a claimant. See SSR 16-3p, 2016 WL
1119029, at *10. Specifically, SSR 16-3p supersedes SSR 96-7p and eliminates the use of the
term “credibility” from the ALJ’s analysis, and instead clarifies that “subjective symptom
evaluation” is not an examination of an individual’s character or truthfulness in the manner
typically used during an adversarial court litigation. 2016 WL 1119029, at *10.
At this point, there is some question as to whether SSR 16-3p should apply retroactively.
See Wood v. Berryhill, No. 4:15-CV-1248-LSC, 2017 WL 1196951, at *8 (N.D. Ala. Mar. 31,
2017). The Eleventh Circuit has not determined, in a published opinion, whether SSR 16-3p
should apply retroactively. See Green v. Soc. Sec. Admin., Comm’r, No. 16-16272, 2017 WL
3187048, at *4 (11th Cir. July 27, 2017) (declining to apply SSR 16-3p retroactively).
5
“Social Security Rulings are agency rulings published under the Commissioner’s authority and
are binding on all components of the Administration.” Klawinski v. Comm’r of Soc. Sec., 391 F.
App’x 772, 775 (11th Cir. 2010) (citing Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990)). While
Social Security Rulings are not binding on the Court, id., they are nevertheless afforded “great
respect and deference, if the underlying statute is unclear and the legislative history offers no
guidance.” Id. (citing B. ex rel. B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981)).
12
Nonetheless, the Supreme Court has previously stated that “[r]etroactivity is not favored in the
law,” and administrative rules will not be construed to have retroactive effect unless Congress
expressly empowers the agency to promulgate retroactive rules and the language of the rule
explicitly requires retroactive application. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988). Thus, based on the language from Bowen and without any specific retroactive language
in SSR 16-3p, the Court is not convinced that SSR 16-3p applies retroactively. See id.
Notwithstanding the issue of whether SSR 16-3p should apply retroactively, the outcome
in this case would be the same. Specifically, while SSR 16-3p eliminates the term “credibility”
from the analysis and replaces it with “subjective symptom evaluation,” SSR 16-3p does not
alter what the ALJ must consider in evaluating a claimant’s symptoms. See id.; see also Wood,
2017 WL 1196951, at *8. In this instance, Plaintiff does not argue that the new language from
SSR 16-3p is dispositive. Instead, Plaintiff argues that the ALJ misapplied the criteria for
evaluating Plaintiff’s subjective symptoms. As such, the Court finds that the retroactivity of SSR
16-3p is immaterial to the present case.
Turning to the ALJ’s credibility determination, the Court notes that to establish disability
based on testimony of pain and other symptoms, a plaintiff must satisfy two prongs of the
following three-part test: “(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.”
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921 F.3d
1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s complaints of pain, the
ALJ may reject them, and that determination will be reviewed to determine if it is based on
substantial evidence. Moreno v. Astrue, 366 F. App’x 23, 28 (11th Cir. 2010) (citing Marbury v.
13
Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)). If an ALJ discredits the subjective testimony of a
plaintiff, then he must “articulate explicit and adequate reasons for doing so. Failure to articulate
the reasons for discrediting subjective testimony requires, as a matter of law, that the testimony
be accepted as true.” Wilson, 284 F.3d at 1225 (internal citations omitted). Nevertheless, the
Eleventh Circuit has stated that “[t]he question is not . . . whether [the] ALJ could have
reasonably credited [the claimant’s] testimony, but whether the ALJ was clearly wrong to
discredit it.” Werner v. Comm’r of Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011).
The factors an ALJ considers in evaluating a plaintiff’s subjective symptoms include:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual
takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief
of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3; see also SSR 16-3p, 2016 WL 1119029, at *7 (factors
nearly identical to SSR 96-7p); Moreno, 366 F. App’x at 28 (citing 20 C.F.R. § 404.1529(c)(3)).
“A clearly articulated credibility finding with substantial supporting evidence in the record will
not be disturbed by a reviewing court.” Foote, 67 F.3d at 1562.
14
In looking at Plaintiff’s credibility, the ALJ gave three reasons for finding that Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible.” (Tr. at 18). Specifically, the ALJ noted that (1) there was evidence of noncompliance with treatment; (2) some of Plaintiff’s assertions were not supported by the evidence
of record; and (3) Plaintiff tended to minimize her participation in daily activities. (Tr. at 18).
The ALJ specifically noted that “[n]o single factor mentioned is conclusive on the issue to be
determined, but when viewed in combination, and in conjunction with the medical history and
examination findings, they suggest that the claimant is not as limited as is alleged.” (Tr. at 19).
Here, the Court finds that the ALJ articulated explicit and adequate reasons for
discrediting Plaintiff’s subjective testimony and those reasons are supported by substantial
evidence of record. See Wilson, 284 F.3d at 1225.
Specifically, the first reason given by the ALJ was “some evidence of non-compliance
with treatment” by Plaintiff. (Tr. at 18). On this point, Plaintiff argues that the ALJ’s finding is
not consistent with the regulations and that the ALJ failed to develop the record because he failed
to make a valid determination of noncompliance. (Doc. 15 at 11). 6 Defendant disagrees,
arguing that the ALJ is only required to explore reasons for noncompliance if the ALJ relies on
noncompliance “primarily if not exclusively” for the denial of disability benefits. (Doc. 16 at 14
(citing Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003)).
On this point, the Court agrees with Defendant that the ALJ did not fail to develop the
record. In Ellison v. Barnhart, the Eleventh Circuit indicated that an ALJ does not err by failing
to explore the reasons for noncompliance if the ALJ’s finding that the claimant “was not disabled
6
Plaintiff asserted this argument in the same section as her obesity arguments. (See Doc. 15 at
11). Nonetheless, because Plaintiff’s compliance with her medication is discussed in the ALJ’s
credibility determination of Plaintiff, the Court addresses it here.
15
was not significantly based on a finding of noncompliance.” Id. Here, the ALJ cited multiple
reasons, none of which were conclusive, but when viewed together with the medical history and
examination findings suggested Plaintiff is not as limited as is alleged. (See Tr. at 18-19). As a
result, the Court finds that the ALJ did not err by citing noncompliance as a reason.
Moreover, upon review of the file, Plaintiff, in fact, appears to have been noncompliant
with her treatment. For instance, as noted by the ALJ, Plaintiff was not compliant with her blood
pressure medications. (Tr. at 18 (citing Tr. at 396)). Similarly, while Plaintiff was advised to
lose weight and maintain a diet, there was only some evidence she attempted to follow through.
(Tr. at 18 (citing Tr. at 400, 563)). Moreover, the ALJ noted that when Plaintiff did lose some
weight, her mobility improved. (Tr. at 18 (citing Tr. at 563)). Further, while Plaintiff claimed
she quit smoking years ago, the ALJ noted record evidence where Plaintiff received smoking
cessation counseling. (Tr. at 18 (citing Tr. at 40, 400)). These reasons for discounting Plaintiff’s
credibility were not rebutted by Plaintiff. (See Doc. 15 at 10-15). Thus, the ALJ’s finding that
Plaintiff had some evidence of non-compliance with treatment is supported by substantial
evidence of record.
The second reason given by the ALJ for discounting Plaintiff’s testimony is that
Plaintiff’s “assertions” were not supported by the record. (Tr. at 18). The ALJ’s citations to the
record provide substantial evidence in support of this finding. For instance, the ALJ noted that,
although Plaintiff stated that she needed to elevate her legs due to swelling, there was apparently
no mention of this need in the medical record, and there was nothing to suggest that she could
not elevate her legs outside of work hours. (Tr. 18 (citing Tr. at 46)). Similarly, while Plaintiff
complained of carpal tunnel syndrome and testified that she has trouble opening jars and
buttoning, the ALJ found that her carpal tunnel syndrome did not appear to have caused any
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severe limitations, specifically noting that Plaintiff’s neurological exams were normal. (Tr. at 18
(citing e.g., Tr. at 518)). Moreover, the ALJ noted that, while Plaintiff was referred to a
specialist, she apparently never followed through with the appointment. (Tr. at 18 (citing Tr. at
512)). In sum, the Court finds that this reason given by the ALJ for discounting Plaintiff’s
credibility – i.e., Plaintiff’s “assertions” not being supported by the record – is supported by
substantial evidence of record.
The final reason given by the ALJ for discrediting Plaintiff was that Plaintiff tended to
minimize her participation in daily activities. (Tr. at 18). The ALJ found that, while Plaintiff
alleged severe limitations in her daily activities, the medical records showed improvement when
she was consistent with her treatment and compliant with recommendations for diet and exercise.
(Tr. at 18-19 (citing Tr. at 416, 446, 539, 563)). Additionally, the ALJ found that, while Plaintiff
alleged she was in constant pain, “there is nothing in the medical records to suggest that she is at
that level of severity.” (Tr. at 19). Further, the ALJ noted Plaintiff had physical therapy for her
symptoms and that her overall treatment has been conservative in nature. (Tr. at 19).
Plaintiff takes issue with the ALJ’s decision on these points. (See Doc. 15 at 13).
Specifically, Plaintiff argues that her testimony and the record evidence demonstrates that she is
severely limited by chronic pain. (Id.). Plaintiff contends that her severe limitations are
corroborated by her statements to treating physicians. (Id.). Moreover, Plaintiff notes her weight
is in the range of extreme obesity which exacerbates her multiple impairments of weight-bearing
joints. (See id.). Plaintiff also notes that she reported needing assistance from family members
for daily activities. (Id.). Plaintiff further notes that she had multiple surgeries and extensive
physical therapy of her weight-bearing joints. (Id.). Moreover, Plaintiff contends that her
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imaging studies show that, despite surgery, she has advanced arthritis in her knee in addition to
abnormalities and swelling. (Id. at 14).
Plaintiff argues that, despite the evidence of record, the ALJ improperly discredited her
pain symptoms, stating “there is nothing to suggest that she could not be more active around the
home.” (Id.). Plaintiff argues that the ALJ did not cite to any “activities that Plaintiff performed
that were inconsistent with her allegations of disability.” (Id.). Plaintiff argues that the ALJ
“discredited Plaintiff because she was unable to impossibly prove a negative: that she was
unable to perform more household activities.” (Id.). Additionally, Plaintiff argues that the ALJ
erroneously concluded that Plaintiff’s medication helped to alleviate her symptoms. (Id.).
Plaintiff asserts that, to the contrary, she consistently reported severe pain that interfered with her
mobility, despite aggressive pain management with opiate medications. (Id. at 15). Thus,
Plaintiff argues that the ALJ’s credibility decision cannot reasonably be upheld. (Id.).
Here, the Court finds that the ALJ did not adequately support this reason with citations to
the record. For instance, the ALJ did not provide a citation to the record in the credibility section
regarding his finding that “there is nothing in the medical records to suggest that she is at that
level of severity” regarding her allegedly disabling pain. (See Tr. at 19). Moreover, Plaintiff’s
noncompliance with the recommendations for diet and exercise do not necessarily show that
Plaintiff can perform any specific activities of daily living. (See id.). Further, as noted by
Plaintiff, the ALJ did not cite any specific activities that Plaintiff could perform that were
inconsistent with her allegations of disability. (See Tr. at 18-19).
Nevertheless, when reviewing a credibility determination, the Eleventh Circuit has stated
that “[t]he question is not . . . whether [the] ALJ could have reasonably credited [the claimant’s]
testimony, but whether the ALJ was clearly wrong to discredit it.” Werner, 421 F. App’x at 939.
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Here, the ALJ provided two adequate reasons for discrediting Plaintiff’s statements supported by
substantial evidence of record. (See Tr. at 18-19). Because the ALJ articulated specific reasons,
supported by the record, for finding that Plaintiff was not entirely credible, the Court cannot find
that the ALJ was clearly wrong to discredit Plaintiff’s testimony. See Wilson, 284 F.3d at 1225.
Accordingly, the ALJ’s credibility determination is affirmed. See id.
C.
Plaintiff’s Peripheral Neuropathy/Carpal Tunnel Syndrome
Plaintiff’s final contention is that the ALJ’s RFC assessment is not supported by
substantial evidence because it does not account for her carpal tunnel syndrome in violation of
20 C.F.R. §§ 404.1545(b), 416.945(b).” (Doc. 15 at 15). Plaintiff argues that the ALJ “failed to
consider, or even mention, Plaintiff’s carpal tunnel syndrome in upper extremities.” (Id. at 16).
Moreover, Plaintiff argues that the ALJ improperly failed to assess any limitations in handling or
fingering in her RFC. (Id.). Thus, Plaintiff argues that the ALJ failed to consider “the impact of
this impairment in assessing the RFC or Plaintiff’s credibility.” (Id.).
Defendant disagrees, arguing that substantial evidence supports the ALJ’s decision.
(Doc. 16 at 9). Defendant contends that, contrary to Plaintiff’s assertions, the ALJ considered
Plaintiff’s allegation of carpal tunnel syndrome and reasonably found that Plaintiff did not have
any limitations related to it. (Id. (citing Tr. at 18)). For instance, Defendant notes that “[t]he
ALJ acknowledged that Plaintiff was diagnosed with [carpal tunnel syndrome] in 2014, but
found it had not caused any severe limitations.” (Id. (citing Tr. at 18, 508)). Defendant contends
that, although Plaintiff alleges difficulty opening jars and buttoning, the ALJ noted Plaintiff’s
neurologic examinations were normal. (Id. (citing Tr. at 18, 48-49, 510-13, 518)). Further,
Defendant points out that, while Plaintiff was referred to a specialist for an evaluation, “the ALJ
noted there was no evidence she followed through with that referral. (Id. (citing Tr. at 18, 512)).
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Thus, Defendant argues that “there is no merit to Plaintiff’s argument that the ALJ did not
properly consider her [carpal tunnel syndrome] in evaluating her RFC” and “Plaintiff failed to
prove she was more limited than that found by the ALJ.” (Id.).
The Court agrees with Defendant and finds that the ALJ did not err on this issue.
Specifically, the Court notes that “the mere existence of [an] impairment[] does not reveal the
extent to which they limit her ability to work or undermine the ALJ’s determination in that
regard.” Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005) (citing McCruter v.
Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)). Here, contrary to Plaintiff’s assertions, the ALJ
expressly evaluated Plaintiff’s carpal tunnel syndrome in assessing her RFC. (See Tr. at 18). In
fact, the ALJ noted that Plaintiff complained of carpal tunnel syndrome and that she testified that
she has trouble opening jars and buttoning. (Tr. at 18). Nonetheless, the ALJ also noted that
Plaintiff’s neurological exams were normal. (Tr. at 18 (citing e.g., Tr. at 518)). Moreover, the
ALJ noted that, while Plaintiff was referred to a specialist, she apparently never followed
through with the appointment. (Tr. at 18 (citing Tr. at 512)). Taken together, this evidence
provides substantial evidence in support of the ALJ’s decision not to assign any specific
limitations related to carpal tunnel syndrome. Accordingly, the Court affirms as to this issue.
III.
Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
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IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the case.
DONE AND ORDERED in Fort Myers, Florida on September 26, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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