Smith v. Commissioner of Social Security

Filing 18

OPINION AND ORDER affirming the Commissioner's decision. The Clerk shall enter judgment and close the file. Signed by Magistrate Judge Monte C. Richardson on 4/26/2017. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DANETTE SMITH,
Plaintiff,
v.

Case No. 3:16-cv-410-J-MCR

ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for Supplemental Security Income (“SSI”).
Plaintiff claims her disability began on January 1, 2012. (Tr. 116.) A hearing was
held before the assigned Administrative Law Judge (“ALJ”) on March 31, 2014, at
which Plaintiff was represented by a non-attorney representative. (Tr. 25-55.)
The ALJ found Plaintiff not disabled since June 13, 2012, the date of her SSI
application. (Tr. 10-19.) In reaching the decision, the ALJ found that Plaintiff had
the residual functional capacity (“RFC”) to perform a reduced range of light work.
(Tr. 13-14.)
Plaintiff appeals the Commissioner’s decision that she was not disabled
since June 13, 2012. Plaintiff has exhausted her available administrative

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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Docs. 12, 14.)

remedies and the case is properly before the Court. The undersigned has
reviewed the record, the briefs, and the applicable law. For the reasons stated
herein, the Commissioner’s decision is AFFIRMED.
I.

Standard

The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). 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 v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
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When a claimant seeks to establish disability through her own testimony of
pain or other subjective symptoms, the Eleventh Circuit’s three-part “pain
standard” applies. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per
curiam). “If the ALJ decides not to credit such testimony, he must articulate
explicit and adequate reasons for doing so.” Id.
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.
Id.
Once a claimant establishes that her “pain is disabling through objective
medical evidence that an underlying medical condition exists that could
reasonably be expected to produce the pain,” pursuant to 20 C.F.R. § 416.929,
“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, 67 F.3d at 1561;
see also SSR 96-7p (stating that after the ALJ finds a medically determinable
impairment exists, the ALJ must analyze “the intensity, persistence, and limiting
effects of the individual’s symptoms to determine the extent to which the
symptoms limit the individual’s ability to do basic work activities”).
When a claimant’s “statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated by
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objective medical evidence,” the ALJ “must make a finding on the credibility of the
individual’s statements based on a consideration of the entire case record.” SSR
96-7p.
When evaluating the credibility of an individual’s statements, the
adjudicator must consider the entire case record and give specific
reasons for the weight given to the individual’s statements. . . . The
reasons for the credibility finding must be grounded in the evidence
and articulated in the determination or decision. It is not sufficient to
make a conclusory statement that “the individual’s allegations have
been considered” or that “the allegations are (or are not) credible.” It
is also not enough for the adjudicator simply to recite the factors that
are described in the regulations for evaluating symptoms.2 The
determination or decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case record,
and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.
Id.
“[C]redibility determinations are the province of the ALJ,” Moore v.
Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005), and “[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.

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These factors include: (1) a claimant’s daily activities; (2) the location, duration,
frequency, and intensity of the claimant’s pain or other symptoms; (3) any precipitating
and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any
medication taken to alleviate the claimant’s pain or other symptoms; (5) any treatment,
other than medication, received by the claimant to relieve the pain or other symptoms;
(6) any measures used to relieve the pain or other symptoms; and (7) other factors
concerning the claimant’s functional limitations and restrictions due to pain or other
symptoms. 20 C.F.R. § 416.929(c)(3); SSR 96-7p.
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II.

Discussion

Plaintiff argues that the ALJ failed to properly evaluate her need for a handheld assistive device and improperly rejected her complaints of leg pain and
weakness, in light of the results of the October 2012 EMG study, multiple
references to peripheral neuropathy throughout the record, and the fact that
Plaintiff has been prescribed Gabapentin for a long time. Plaintiff urges the Court
to remand this case “for purposes of additional medical evaluation specifically to
determine if there is a need for a hand[-]held assistive device and to further
assess [Plaintiff’s RFC] and obtain additional vocational testimony.” (Doc. 16 at
6-7.) Defendant responds that the ALJ applied the correct legal standards and
his decision is supported by substantial evidence. The Court agrees with
Defendant.
The ALJ found that Plaintiff had the RFC to perform a reduced range of
light work, as follows:
In the course of an eight-hour workday, the claimant can sit, stand,
and walk off and on with reasonable and customary breaks for six
hours each, lift and/or carry 20 pounds occasionally (up to one-third
of the workday) and 10 pounds or less frequently (up to two-thirds of
the workday). She can push and/or pull arm/hand controls frequently
with the upper extremities and operate leg/foot pedal controls with
the lower extremities on an occasional basis. The claimant can
occasionally climb ramps and stairs but is precluded from climbing
ropes, ladders and scaffolding. She can perform all other postural
activities – balancing, stooping, kneeling, crouching and crawling all
on an occasional basis. Within the defined weight limits, the
claimant has no additional limitation of function in using her upper
extremities and can reach in all directions, handle, finger and feel
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without limitation. . . . The claimant does require a temperature
controlled work setting away from unprotected heights and cannot
tolerate exposure to concentrated vibration or dangerous moving
machinery. . . .
(Tr. 13-14.)
In making this finding, the ALJ considered Plaintiff’s testimony that she
could only walk two blocks, sit for 15 or 20 minutes, was unable to stand still, and
used a cane to prevent herself from falling. (Tr. 15.) The ALJ also considered
Plaintiff’s physical exams, which were “largely within normal limits,” Plaintiff’s
reports of no pain to her medical providers, and Plaintiff’s ability to carry out
normal activities. (Id.) The ALJ noted there were indications in the record to
“some neuropathy associated with [Plaintiff’s] HIV condition as well as a left ankle
fracture and fusion some years ago[.]” (Id.) As to Plaintiff’s neuropathy, the ALJ
stated:
The September 2012 neurology exam suggested that the claimant’s
neuropathy may be due to her underlying HIV and additional testing
was ordered (Exhibit 5F/10); however, the claimant did not voice
such complaints to her doctors treating her for the HIV and
examinations did not detect neurological abnormalities of the lower
extremities (Exhibits 8F; 9F; 12F). The claimant never returned to
the UF Neurology Department for follow-up care or treatment. Nerve
condition [sic] studies performed in October of 2012 were not
consistent with any peripheral neuropathy in the lower extremities
(Exhibit 10F/7); thus, the claimant’s complaints of leg pain and
weakness are not credible.
(Id.) The ALJ also noted that the results of Plaintiff’s May 2013 lumbar MRI,
which showed “only very mild findings,” did not correlate with Plaintiff’s claims that

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she fell down frequently. (Id.) The ALJ stated: “Neither the nerve conduction
studies performed in October of 2012 or the more recent lumbar spine MRI
support the claimant’s allegation of disabling back pain; rather, the record reveals
that she is routinely seen as having a normal gait and station and [had] negative
neurological findings (Exhibit 14F/14).” (Tr. 15-16.)
The ALJ’s findings are supported by substantial evidence. To the extent
Plaintiff invites the Court to re-weigh the evidence or substitute its decision for
that of the ALJ, the Court cannot do so. As long as the ALJ’s findings are based
on correct legal standards and are supported by substantial evidence, the
Commissioner’s decision must be affirmed even if the reviewer would have
reached a different conclusion.
Here, it is true that there are multiple references in the record to peripheral
neuropathy, for which Plaintiff was prescribed Gabapentin and was referred to
Neurology and Podiatry. (See, e.g., Tr. 251-52, 255, 268, 303, 314, 316, 329,
336, 345, 374-75, 424, 466-67, 470, 527, 540, 599 (prescribed Neurontin for
neuropathy), 609, 612-13, 627-28, 639 (noting that Plaintiff self-decreased her
dose of Gabapentin after starting Nortryp because it was not helping with the
neuropathy and she did not want to mess up her liver), 640, 643, 654.) However,
as the ALJ noted, Plaintiff’s physical examinations were generally normal, with no
positive neurological or musculoskeletal findings. (Tr. 344, 352, 381, 525, 625
(“[N]europathy stable on [N]eurontin[.]”); but see Tr. 400, 411, 422, 433, & 454
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(noting joint pain and numbness), 471-72 (noting flattening of the bilateral thenar
eminences, decreased soft touch in the bilateral lower extremities and upper
extremities from her fingers up to her elbows, and ‘some difficulties with the
Romberg’”).)3
Although the neurologist who examined Plaintiff on September 19, 2012
opined that most likely Plaintiff had “peripheral neuropathy likely related to her
human immunodeficiency virus, hepatitis C, or HAART therapy,” to confirm the
diagnosis, Plaintiff was sent for an EMG and nerve conduction studies.4 (Tr.
472.) The EMG study showed no evidence of a sensorimotor peripheral
neuropathy. (Tr. 583.) Instead, its findings seemed “most consistent with some
bilateral S1 radicular dysfunction.”5 (Id.) Further, as the ALJ noted, the results of
Plaintiff’s May 2013 lumbar MRI did not correlate with Plaintiff’s complaints of

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On examination, Plaintiff routinely had normal muscle strength and tone, steady
gait, and normal psychomotor activity. (Tr. 312-13, 316, 320, 400, 423, 434, 455, 598,
611, 676, 682-83, 720.) Also, during many visits, Plaintiff reported no pain and
described her activities of daily living as independent. (Tr. 253, 265, 272, 276, 278,
312, 315, 543, 554, 653.)
4

Plaintiff was advised “that some of her dizziness may be related to her doses of
the medications leading to falls.” (Tr. 472.)
5

Regardless of any diagnosis, a mere diagnosis says nothing about the severity
of the condition. See Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005)
(stating “the mere existence of these impairments does not reveal the extent to which
they limit her ability to work”). The ALJ considered Plaintiff’s impairments and
incorporated into the RFC assessment only those limitations resulting from the
impairments, which he found to be supported by the record. Even accepting Plaintiff’s
testimony that she falls once a month (see Tr. 44), Plaintiff does not explain how that
would impact her ability to work.
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frequent falls. The lumbar MRI revealed only mild degenerative changes at L1/L2
and L5/S1. (Tr. 664.)
Plaintiff also contends that the ALJ improperly rejected her subjective
complaints of leg pain and weakness. Plaintiff testified that she used a cane to
prevent herself from falling. (Tr. 44.) Her last fall before the March 31, 2014
hearing was in December 2013. (Id.) Before that time, she fell every other month
or once a month. (Id.) As to the cane, Plaintiff stated: “Originally I got the cane
because I had an operation on my foot, because I was having so much pain with
the screws that they had in my foot, and then once I realized that my legs were
just going numb, and I didn’t know that they were going numb, my doctor told me
to continue using the cane for balance.” (Id.) Plaintiff testified that she could
walk two blocks, sit for 15 or 20 minutes, and could not stand still. (Tr. 46.)
The ALJ considered Plaintiff’s testimony, but did not find “any evidence that
supports a need for a hand held assistive device.” (Tr. 52.) The ALJ found
Plaintiff’s reported symptoms and limitations not entirely credible because they
were not supported by objective medical findings. (Tr. 17.) The ALJ explained:
“Allegations of leg pain and weakness are not credible and are unsupported by
nerve condition [sic] testing (Exhibit 14F) or a lumbar spine MRI. The claimant’s
gait is steady and she has normal strength and muscle tone (Exhibit 2F).”6 (Id.)
6

The ALJ also noted that Plaintiff’s credibility was undermined by her poor
lifetime work history, her reports of being independent in her daily activities, and her
failure to fully comply with medical treatment, among others. (Tr. 17.)
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The ALJ provided explicit and adequate reasons for his credibility
determination. Moreover, as shown above, these reasons are supported by
substantial evidence. Plaintiff appears to rely solely on her own testimony that a
hand-held assistive device is medically required. However, to make such a
finding, “there must be medical documentation establishing the need for a handheld assistive device to aid in walking or standing, and describing the
circumstances for which it is needed (i.e., whether all the time, periodically, or
only in certain situations; distance and terrain; and any other relevant
information).” SSR 96-9p. Here, although the record indicates that Plaintiff uses
a cane (see Tr. 528), there is no evidence that a hand-held assistive device is
medically required. The record does not establish whether, and if so when,
Plaintiff was prescribed a cane by a medical provider, who prescribed it, and even
if it was prescribed at or near the time of Plaintiff’s foot operation, whether it was
still medically required afterwards for her alleged numbness and weakness.
Based on the foregoing, the Court finds that the ALJ’s credibility
determination and RFC assessment are supported by substantial evidence. To
the extent Plaintiff argues that the ALJ’s hypothetical question to the Vocational
Expert (“VE”) was incomplete because it did not include a need to use a cane, the
ALJ was not required to include in the hypothetical question any limitations that
he properly rejected. See Crawford, 363 F.3d at 1161 (stating that the ALJ is not
required to include findings in the hypothetical question that the ALJ has properly
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rejected as unsupported by the record). Further, Plaintiff does not explain why
her representative did not question the VE regarding the need for a hand-held
assistive device during the administrative hearing or why this issue was not
brought up while the record remained open for 20 days after the hearing. Based
on the foregoing, the Commissioner’s decision is due to be affirmed.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is AFFIRMED.

2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
DONE AND ORDERED at Jacksonville, Florida, on April 26, 2017.

Copies to:
Counsel of Record

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