SMITH v. ASTRUE
Filing
18
MEMORANDUM ORDER. The decision of the dft Commissioner is AFFIRMED and pla's application for Disability Insurance Benefits and Supplemental Security Income is DENIED. The clerk is directed to close the file. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on May 21, 2013. (kvg)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
MATTIE R. SMITH
Plaintiff,
v.
Case No. 3:12-cv-325/CJK
CAROLYN W. COLVIN1
Commissioner of Social Security,
Defendant.
MEMORANDUM ORDER
This case is now before the court pursuant to 42 U.S.C. § 405(g), for review
of a final determination of the Commissioner of Social Security (“Commissioner”)
denying Mattie Smith’s application for Disability Insurance Benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-34, and Supplemental Security Income
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83. Ms.
Smith will be referred to by name, as claimant, or as plaintiff. The parties have
consented to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c), and
FEDERAL RULE OF CIVIL PROCEDURE 73, for all proceedings in this case, including
entry of final judgment. (Doc. 9).
Upon review of the record before this court, I conclude that the findings of fact
and determinations of the Commissioner are supported by substantial evidence. The
1
Carolyn W. Colvin succeeded Michael J. Astrue as Commissioner of Social Security, and
is automatically substituted as the defendant. FED . R. CIV . P. 25(d).
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decision of the Commissioner, therefore, should be affirmed, and the application for
benefits denied.
PROCEDURAL HISTORY
Claimant has filed a Title II application for a period of disability and disability
insurance benefits.
T. 21.2
Claimant also filed a Title XVI application for
supplemental security income. T. 21. Her applications were denied initially on
November 12, 2008, and upon reconsideration on January 29, 2009. T. 10. Claimant
then requested, and appeared at, a hearing before an Administrative Law Judge (ALJ)
on July 29, 2010. T. 21. Following this hearing, the ALJ issued an order unfavorable
to Ms. Smith. T. 18. The Appeals Council of the Social Security Administration
subsequently denied review. T. 1. The ALJ’s order then became the final decision
of the defendant Commissioner.
FINDINGS OF THE ALJ
In the written decision the ALJ made a number of findings relative to the issues
raised in this appeal:
3.
The claimant has the following severe impairments: hypothyroid, diabetes
mellitus type II, sacroilitis, HPV, ovarian cysts, asthmatic bronchitis, anemia,
osteoarthritis, arthralgia, fatigue, urticaria and cystitis.
5.
[T]he undersigned finds that the claimant has the residual functional capacity
to perform medium work . . . involving lifting/carrying 50 pounds occasionally
2
The administrative record, as filed by the Commissioner, consists of 11 volumes (docs. 12-1
through 12-11), and has 791 consecutively numbered pages. References to the record will be by “T.”
for transcript, followed by the page number.
Case No: 3:12cv325/CJK
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to 25 pounds frequently. During an 8-hour workday, the claimant can sit for
4 hours and stand or walk for 4 hours, with occasional bending and not more
than moderate exposure to pulmonary irritants such as fumes, dust and gases
with some moderate deficits to concentration and pace which would limit her
to the performance of only routine and repetitive tasks.
10.
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.
T. 23-27.
In her memorandum of law, claimant raises four issues: 1) the ALJ erred in
finding that claimant is capable of performing medium work, 2) the ALJ failed to
properly apply the pain standard, 3) the ALJ failed to properly consider claimant’s
credibility, and 4) the ALJ failed to properly assess the claimant’s ability to alternate
sitting and standing as required by SSR 96-9p. T. 6, 8, 12, 15.
STANDARD OF REVIEW
A federal court reviews a Social Security disability case to determine whether
the Commissioner’s decision is supported by substantial evidence and whether the
correct legal standards were applied by the ALJ. See Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th
Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only when
convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”). Substantial evidence is “‘such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.’” Richardson
Case No: 3:12cv325/CJK
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v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197 (1938)). With reference to other standards of review, the Eleventh Circuit
has said, “‘Substantial evidence is more than a scintilla . . . .’” Somogy v. Comm’r of
Soc. Sec., 366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at1439).
Although the ALJ’s decision need not be supported by a preponderance of the
evidence, “it cannot stand with a ‘mere scintilla’ of support.” Hillsman v. Bowen, 804
F.2d 1179, 1181 (11th Cir. 1986). The reviewing court “‘may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the Secretary[.]’”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). Nevertheless, a reviewing court may
not look “only to those parts of the record which support the ALJ[,]” but instead
“must view the entire record and take account of evidence in the record which
detracts from the evidence relied on by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251,
1253 (11th Cir. 1983). In sum, review is deferential to a point, but the reviewing
court conducts what has been referred to as “an independent review of the record.”
Flynn v. Heckler, 768 F.2d 1273, 1273 (11th Cir. 1985); see also Getty ex rel. Shea
v. Astrue, No. 2:10–cv–725–FtM–29SPC, 2011 WL 4836220 (M.D. Fla. Oct. 12,
2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011 WL 861785 (M.D.
Fla. Feb. 28, 2011).3 The recitation of medical and historical facts of this case, as set
out below, is based upon my independent review.
3
The Eleventh Circuit speaks not only of independent review of the administrative record,
but reminds us it conducts de novo review of the district court’s decision on whether substantial
evidence supports the ALJ’s decision. See Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253,
1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
Case No: 3:12cv325/CJK
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The Social Security Act defines a disability as an “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. §
423(d)(1)(A).4 To qualify as a disability, the physical or mental impairment must be
so severe that the plaintiff is not only unable to do her previous work, “but cannot,
considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a
disability claim in five steps:
1.
If the claimant is performing substantial gainful activity, she is not
disabled.
2.
If the claimant is not performing substantial gainful activity, her
impairments must be severe before she can be found disabled.
3.
If the claimant is not performing substantial gainful activity and she has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if her impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4
Claimant is seeking both Disability Insurance Benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34, and Supplemental Security Income Benefits under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-83. For purposes of determining whether a claimant is disabled,
the law and regulations governing a claim for disability benefits are identical to those governing a
claim for supplemental security income benefits. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th
Cir. 1986). All references to statutes and rules in this order will be to those addressing Disability
Insurance Benefits.
Case No: 3:12cv325/CJK
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4. If the claimant’s impairments do not prevent her from doing her past
relevant work, she is not disabled.
5. Even if the claimant’s impairments prevent her from performing her past
relevant work, if other work exists in significant numbers in the national economy
that accommodates her residual functional capacity and vocational factors, she is not
disabled.
Claimant bears the burden of establishing a severe impairment that keeps her
from performing her past work. See 20 C.F.R. § 404.1512. The Eleventh Circuit has
explained the operation of step five. See Doughty v. Apfel, 245 F.3d 1274, 1278 n.2
(11th Cir. 2001) (“In practice, the burden temporarily shifts at step five to the
Commissioner. The Commissioner must produce evidence that there is other work
available in significant numbers in the national economy that the claimant has the
capacity to perform. In order to be considered disabled, the claimant must then prove
that he is unable to perform the jobs that the Commissioner lists. The temporary
shifting of the burden to the Commissioner was initiated by the courts, and is not
specifically provided for in the statutes or regulations. See Brown v. Apfel, 192 F.3d
492, 498 (5th Cir. 1999) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)
(‘The shifting of the burden of proof is not statutory, but is a long-standing judicial
gloss on the Social Security Act’)).”).
Step five (or step four in cases where the ALJ decides a claimant can perform
her past work) is where the rubber meets the road. At that point, the ALJ formulates
the all-important residual functional capacity. Even where one or more severe
impairments are established, the claimant must show that she cannot perform work
within that residual functional capacity. The ALJ establishes residual functional
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capacity, utilizing the impairments identified at step two, by interpretation of (1) the
medical evidence, and (2) the claimant’s subjective complaints (generally complaints
of pain). Residual functional capacity is then used by the ALJ to make the ultimate
vocational determination required by step five.5 “[R]esidual functional capacity is the
most [claimant] can still do despite [claimant’s] limitations.”6
20 CFR §
404.1545(a)(1). Often both the medical evidence and the accuracy of a claimant’s
subjective complaints are subject to a degree of conflict, and that conflict leads, as in
this case, to the points raised on judicial review by many disappointed claimants.
FACT BACKGROUND AND MEDICAL HISTORY7
5
“Before we go from step three to step four, we assess your residual functional capacity.
(See paragraph (e) of this section.) We use this residual functional capacity assessment at both step
four and step five when we evaluate your claim at these steps.” 20 C.F.R. § 404.1520(a)(4).
6
In addition to this rather terse definition of residual functional capacity, the Regulations
describe how the Commissioner makes the assessment:
(3) Evidence we use to assess your residual functional capacity. We will assess your
residual functional capacity based on all of the relevant medical and other evidence.
In general, you are responsible for providing the evidence we will use to make a
finding about your residual functional capacity. (See § 404.1512(c).) However,
before we make a determination that you are not disabled, we are responsible for
developing your complete medical history, including arranging for a consultative
examination(s) if necessary, and making every reasonable effort to help you get
medical reports from your own medical sources. (See §§ 404.1512(d) through (f).)
We will consider any statements about what you can still do that have been provided
by medical sources, whether or not they are based on formal medical examinations.
(See § 404.1513.) We will also consider descriptions and observations of your
limitations from your impairment(s), including limitations that result from your
symptoms, such as pain, provided by you, your family, neighbors, friends, or other
persons. (See paragraph (e) of this section and § 404.1529.)[.]
20 C.F.R. § 404.1545(a)(3).
7
Although intended to be thorough, and to provide an overview of claimant’s history of care
and treatment, the synopsis of medical evidence will be supplemented as called for in the Analysis
Case No: 3:12cv325/CJK
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At the hearing, Ms. Smith testified she lives with her two sons and brother. T.
39. Ms Smith weighs about 192 pounds and is about 5 feet 3 inches in height. T. 40.
She “probably” reached the ninth grade and never received a GED. T. 40-41. As of
the date of the hearing, Ms. Smith had not worked for five or six years. T. 43. She
previously worked as a food service worker in a nursing home. T. 44. Ms. Smith has
a breathing problem and doesn’t have enough “wind,” causing her to tire quickly. T.
45. Her doctor prescribed her Singulair and Advair. T. 46. Plaintiff also has thyroid
problems and was prescribed Synthroid. T. 47. Her medications make her go to sleep
and make her head hurt “real bad.” T. 55. Plaintiff also takes medication for her
diabetes. T. 55.
Plaintiff does not do “too much of nothing” during the day because she lacks
the necessary “wind” and energy to get up and move around. T. 47. She is able to
put clothes in the dryer, put dishes away, drive places, shop for groceries, and cook.
T. 48. She tries to do yard work, but has to sit down frequently because she is out of
breathe. T. 48. Ms. Smith also has lower back problems. Her doctor prescribed
Lortab 10 and sent her to a physical therapist. T. 52. She estimates her back pain on
an average day is an eight or nine on a scale of zero to ten. T. 53. On occasion,
claimant will have days that are worse than normal and stays in bed. T. 53. She will
occasionally sleep for “days” because of the pain. T. 53. She experiences this more
severe back pain “probably three times out of a week.” T. 53. Claimant estimates she
can stand, generally, for a period of about twenty-five to thirty minutes at a time
before getting out of breathe. T. 53. She has to sit down for fifteen to twenty minutes
after standing for so long. T. 53. She also can’t sit for too long. T. 54. Plaintiff
section.
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estimates she can sit for between twenty-five and forty-five minutes before she has
to change positions. T. 54. Ms. Smith does not smoke cigarettes. T. 56.
Vocational expert Barry Murphy considered a hypothetical involving someone
with the same age, education, and work background as the claimant, with the
additional physical limitations noted by Dr. Sam Greenlee (sitting for four hours in
a day, standing for four hours in a day, occasional bending and/or stopping
movements, occasional environmental problems, and lifting fifty pounds occasionally
and twenty-five pounds frequently), and determined that claimant could not perform
past relevant work. T. 58-59. Vocational expert Murphy noted that the sitting/stand
option was the basis for his belief that claimant could not perform her past work. T.
59. He did find, however, that there were medium, unskilled jobs, suitable to
plaintiff’s sitting/standing and environmental restrictions, including hand packager.
T. 59. Vocational expert Murphy also found, considering Dr. Greenlee’s limitations
and a light work classification, that plaintiff was capable of performing jobs such as
a non-postal mail clerk and bench assembler. T. 59-60. In a second hypothetical,
vocational expert Murphy considered the same individual as in the first hypothetical,
but with the added limitation of an inability to perform the activities of pushing or
pulling with the left upper extremity, except for reaching. T. 60. Mr. Murphy found
such an individual capable of performing the jobs of hand packager, mail clerk, and
probably bench assembler. T. 60. For hypothetical number three, vocational expert
Murphy assumed the same individual, but added the limitation that the individual
should not work at unprotected heights or operate dangerous machinery because of
“possible sedation from side effects and fatigue, et cetera.” T. 60-61. He found that
individual capable of performing the jobs of hand packager, mail clerk, and bench
Case No: 3:12cv325/CJK
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assembler. T. 61. For hypothetical number four, vocational expert Murphy assumed
the same individual as before, but further assumed this individual had more severe
pain, fatigue, side effects, and other factors, resulting in a more marked impairment
of concentration, persistence, and pace. T. 61. This individual’s limitations would
cause the individual to be off task, or at an unproductive pace, ten to twenty percent
of the work day. T. 61. Vocational expert Murphy concluded that this individual
would not be capable of performing any of the previously listed jobs, nor would such
an individual be able to “perform [or] sustain any work activity.” T. 61. The ALJ
also questioned Murphy about the requirement of a sit/stand option, leading Murphy
to posit that he tailored his recommendations to those jobs that have a stool or chair
option. T. 62.
Plaintiff, in a questionnaire completed January 5, 2005, noted that her pain
ranges from thirty minutes a day to one hour to all day. T. 188. Plaintiff noted that
she does not take any medication for the pain. T. 188. Plaintiff listed her pain as a
10 on a scale of 1-10 in a supplemental pain questionnaire given on October 7, 2008.
T. 269. She stated that she has pain every day and is in pain when she bends over,
stands too long, walks too long, or sits too long. T. 269. For pain, she takes Tylenol,
but it doesn’t help. T. 269. Ms. Smith also indicated that her lower leg, back, and
head all hurt “all the time.” T. 269. She can walk “sometimes,” sit for twenty-five
to thirty-five minutes, and stand for forty minutes before her leg hurts. T. 270. She
is able to do laundry, clean the house, and cook once or twice a week. T. 271. She
will clean the yard and shop once a week. T. 271. Plaintiff’s sister, in a supplemental
third party pain questionnaire, stated that plaintiff has frequent nausea and her head
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hurts a lot. T. 273. Plaintiff’s sister indicated that plaintiff only takes over the
counter medication and that “it do [sic] not help.” T. 273.
Ms. Smith was initially seen by Dr. Ziad Mamish from June 28, 1996 through
2005. T. 339-53, 470. Dr. Mamish was primarily concerned with plaintiff’s thyroid,
finding plaintiff had a toxic nodular goiter plus severe exophthalmopathy. T. 350.
In June 2000, Dr. Mamish noted that plaintiff’s type II diabetes mellitus was “poorly
controlled” and also recommended radioactive iodine to treat plaintiff’s severe
hyperthyroidism. T. 347. He also recommended plaintiff start taking insulin. T. 339.
Dr. Mamish marked that plaintiff was awake and well oriented, and well developed.
T. 344.
Dr. Crawford Cleveland treated Ms. Smith for hives. T. 360. Dr. Cleveland
noted an unspecified thyroid disease and diagnosed plaintiff with an idopathic
urticaria. T. 362. In a follow-up for idiopathic urticaria, Dr. Cleveland noted that
plaintiff continues to break out if not on medication. T. 356. In a follow up visit on
November 22, 2004, Dr. Cleveland noted the improvement of plaintiff’s hives,
plaintiff’s increased tiredness, and that plaintiff is on insulin for her diabetes and
Synthroid for her Graves’ disease. T. 355.
Chiropractor Thomas Roberts saw plaintiff from September 17, 2003, through
May 19, 2004. T. 365-427. Dr. Roberts saw the patient following a motor vehicle
accident on September 14, 2003. T. 427. Dr. Roberts noted plaintiff’s complaints of
“pain and stiffness in her neck, mid and lower back.” T. 427. Dr. Roberts also
indicated complaints of muscle spasms and rigidity in her cervical, thoracic and
lumbar spine. T. 427. Dr. Roberts found plaintiff had lower back pain with the pain
radiating to her SI joints bilaterally, rigidity and decreased range of motion of the
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lumber spine, spasms in her sacrospinalis muscle group in her lumbar spine,
tenderness at the “L5/S1,” and upper back pain with pain radiating to the upper
extremities. T. 365-427. He would often treat her with chiropractic manipulation to
the full spine, heat packs and percussion massage to the full spine, and some variation
of interferential therapy. T. 365-427. Dr. John Sowers, at Dr. Roberts’ request,
administered an MRI to plaintiff’s lumbar spine. T. 433. Dr. Sower, based on the
MRI, found “mild disc desiccation” and “shallow annular bulge L5-S1.” T. 433.
On April 28, 2005, Dr. Arineta Speer evaluated claimant for complaints of
“lower back pain and thyroid.” T. 458. Dr. Speer noted tenderness in the lumbarsacral area at the L-S junction. T. 460. Dr. Speer diagnosed Ms. Smith with lower
lumbar back pain, osteoarthiritis, arthalgias, mild anxiety, and elevated blood
pressure. T. 461. Dr. Speer also noted limitations on plaintiff’s ability to function,
as well limitations with with “standing, walking, sitting, bending, and lifting,” all
related to the diagnoses of osteoarthiritis and arthralgia. T. 461. Dr. Speer also listed
plaintiff’s range of motion for various body parts. T. 462-64. She offered no
conclusion of disability or indication plaintiff would be unable to perform certain
types of occupations.
A physical residual functional capacity assessment conducted by Larsen Gloria,
a medical consultant for the state agency, on July 27, 2005, concluded that “except
for extension of the lumbar spine, all other ROM measurements were within normal
limits.” T. 504. Ms. Gloria noted no postural limitations. T. 501. Ms. Gloria also
found plaintiff capable of occasionally lifting or carrying 50 pounds, frequently
lifting or carrying 25 pounds, standing or walking a total of 6 hours in an 8 hour
workday, and sitting with normal breaks for a total of about 6 hours in an 8 hour
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workday. T. 500. Ms. Gloria’s findings mirror those of other medical consultants for
the state agency–Bret Jeffrey, T. 527-34, Breneta Boyd, T. 652-59, and John
Dawson. T. 695-702.
Dr. Samuel Greenlee performed a physical capacities evaluation on the plaintiff
and determined plaintiff can lift fifty pounds occasionally and twenty-five pounds
frequently, can sit for four hours a day, and stand for four hours a day. T. 764. In
terms of day to day work activities, Dr. Greenlee found plaintiff was limited to
occasionally bending/stooping and had some limitations with environmental
problems. T. 764. Dr. Greenlee also administered a transabdominal and endovaginal
pelvic ultrasound and noted the presence of bilateral ovarian cysts. T. 788. Dr.
Greenlee prescribed Lortab 10 for Ms. Smith on two occasions–March 15, 2010 and
April 23, 2010. T. 782-83. Ms. Smith was also prescribed Lortab 7.5 following a
Baptist Health Care emergency visit on October 8, 2007.8 T. 647.
On July 15, 2009, Ms. Smith visited the Pulmonary and Sleep Clinic. T. 775.
Dr. Jack Obeid examined Ms. Smith for shortness of breath with intermittent
wheezing. T. 775. Dr. Obeid believed the shortness of breathe was probably from
asthmatic bronchitis and prescribed her Advair and recommended the continued use
of an Albuterol inhaler. T. 775.
ANALYSIS
8
Ms. Smith’s own admissions and the record as a whole support only that she was prescribed
Lortab in limited instances, T. 647, 782-83. The record indicates Ms. Smith was relying, for the
most part, on non-prescription pain medication. T. 224, 248, 261, 265, 269, 273, 297, 321, 361, 459,
730, 740.
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In her memorandum of law, claimant raises four issues: 1) the ALJ erred in
finding that claimant is capable of performing medium work, 2) the ALJ failed to
properly apply the pain standard, 3) the ALJ failed to properly consider claimant’s
credibility, and 4) the ALJ failed to properly assess the claimant’s ability to alternate
sitting and standing as required by SSR 96-9p. T. 6, 8, 12, 15. The court will address
the issues in turn.
Claimant’s first point–the ALJ’s determination that Ms. Smith is capable of
performing medium work is unsupported by substantial evidence–is unpersuasive.
Medium works is defined as:
[L]ifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. A full range of medium
work requires standing or walking, off and on, for a total of
approximately 6 hours in an 8-hour workday in order to meet the
requirements of frequent lifting or carrying objects weighing up to 25
pounds. As in light work, sitting may occur intermittently during the
remaining time. Use of the arms and hands is necessary to grasp, hold,
and turn objects, as opposed to the finer activities in much sedentary
work, which require precision use of the fingers as well as use of the
hands and arms.
The considerable lifting required for the full range of medium work
usually requires frequent bending-stooping . . . . Flexibility of the knees
as well as the torso is important for this activity . . . . [T]here are a
relatively few occupations in the national economy which require
exertion in terms of weights that must be lifted at times (or involve
equivalent exertion in pushing or pulling), but are performed primarily
in a sitting position, e.g., taxi driver, bus driver, and tank-truck driver
(semiskilled jobs). In most medium jobs, being on one's feet for most of
the workday is critical. Being able to do frequent lifting or carrying of
objects weighing up to 25 pounds is often more critical than being able
to lift up to 50 pounds at a time.
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SSR 83-10. Contrary to claimant’s contention, the ALJ did not determine that
claimant could “perform the standing/walking requirement of 6 hours out of an 8 hour
working day.” (Doc. 14, p. 7). Instead, the ALJ found claimant to have a residual
functional capacity (RFC) of “lifting/carrying 50 pounds occasionally to 25 pounds
frequently,” and “sit[ting] for 4 hours and stand[ing] or walk[ing] for 4 hours, with
occasional bending . . . .” T. 23. The ALJ’s assessed RFC is consistent with Dr.
Greenlee’s conclusions, as well as the other objective medical evidence of record. Dr.
Greenlee, importantly, is the only doctor who specified claimant had such restrictive
limitations–walking/standing for four hours and sitting for four hours in an eight hour
workday. Dr. Speer, meanwhile, indicated that Ms. Smith has limitations with
“standing, walking, sitting, bending and lifting,” but did not specify the extent of
those limitations, whether such limitations are disabling, or if such limitations would
be more restrictive than the restrictions imposed by Dr. Greenlee. In fact, the ALJ
appears to have formulated plaintiff’s RFC based upon the most restrictive medical
opinion of record, Dr. Greenlee. No information from the other doctors, the residual
functional capacity assessments, or the MRI, indicated any meaningful limitations on
plaintiff’s ability to work. The ALJ’s determination of plaintiff’s RFC, therefore, is
consistent with and substantially supported by the objective medical evidence of
record.
Plaintiff’s second issue–that the ALJ erred by failing to properly apply the pain
standard–is inevitably intertwined with plaintiff’s third claim–the ALJ failed to
properly consider plaintiff’s credibility. (Doc. 14, p. 6). As this court is well aware,
pain is treated by the Regulations as a symptom of disability. Title 20 C.F.R. §
404.1529 provides in part that the Commissioner will not find disability based on
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symptoms, including pain alone, “unless medical signs or findings show that there is
a medical condition that could be reasonably expected to produce these symptoms.”
Accord 20 C.F.R. § 416.929. The Eleventh Circuit has articulated the three-part pain
standard, sometimes referred to as the Hand9 test, as follows:
In order to establish a disability based on testimony of pain and other
symptoms, the claimant must satisfy two parts of a three-part test
showing: (1) evidence of an underlying medical condition; and (2) either
(a) objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan,
921 F.2d 1221, 1223 (11th Cir. 1991); Adamo v. Comm’r of Soc. Sec., 365 F. App’x
209 (11th Cir. 2010) (quoting Wilson); Elam v. R.R. Retirement Bd., 921 F.2d 1210,
1216 (11th Cir. 1991).
The Eleventh Circuit has also approved an ALJ’s reference to and application
of the standard set out in 20 C.F.R. § 404.1529, because that regulation “contains the
same language regarding the subjective pain testimony that this court interpreted
when initially establishing its three-part standard.” Wilson, 284 F.3d at 1226. Thus,
failure to cite to an Eleventh Circuit standard is not reversible error so long as the
ALJ applies the appropriate regulation. The standard set out in 404.1529 reads in
relevant part:
[S]tatements about your pain or other symptoms will not alone establish
that you are disabled; there must be medical signs and laboratory
9
Hand v. Bowen, 793 F.2d 275, 276 (11th Cir.1986) (the case originally adopting the
three-part pain standard).
Case No: 3:12cv325/CJK
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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. In evaluating the intensity and persistence of your
symptoms, including pain, we will consider all of the available evidence,
including your medical history, the medical signs and laboratory
findings and statements about how your symptoms affect you . . . . We
will then determine the extent to which your alleged functional
limitations and restrictions due to pain or other symptoms can
reasonably be accepted as consistent with the medical signs and
laboratory findings and other evidence to decide how your symptoms
affect your ability to work (or if you are a child, your functioning).
****
Your symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness, will not be found to affect your ability to do basic work
activities unless medical signs or laboratory findings show that a
medically determinable impairment(s) is present . . . . At the
administrative law judge hearing or Appeals Council level of the
administrative review process, the adjudicator(s) may ask for and
consider the opinion of a medical or psychological expert concerning
whether your impairment(s) could reasonably be expected to produce
your alleged symptoms. The finding that your impairment(s) could
reasonably be expected to produce your pain or other symptoms does
not involve a determination as to the intensity, persistence, or
functionally limiting effects of your symptoms. We will develop
evidence regarding the possibility of a medically determinable mental
impairment when we have information to suggest that such an
impairment exists, and you allege pain or other symptoms but the
medical signs and laboratory findings do not substantiate any physical
impairment(s) capable of producing the pain or other symptoms
Case No: 3:12cv325/CJK
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****
When the medical signs or laboratory findings show that you have a
medically determinable impairment(s) that could reasonably be expected
to produce your symptoms, such as pain, we must then evaluate the
intensity and persistence of your symptoms so that we can determine
how your symptoms limit your capacity for work. In evaluating the
intensity and persistence of your symptoms, we consider all of the
available evidence, including your history, the signs and laboratory
findings, and statements from you, your treating or nontreating source,
or other persons about how your symptoms affect you. We also consider
the medical opinions of your treating source and other medical opinions
20 C.F.R. § 404.1529(a)-(c)(1).
But “[w]hile both the Regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to cause the pain
alleged, neither requires objective proof of the pain itself.” Elam, 921 F.2d at 1215.
The Eleventh Circuit has held that “pain alone can be disabling, even when its
existence is unsupported by objective evidence.” Foote v. Chater, 67 F.3d 1553,
1561 (11th Cir. 1995)(citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.
1992)); Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987); Hurley v. Barnhart,
385 F. Supp. 2d 1245, 1259 (M.D. Fla. 2005). The presence or absence of evidence
to support symptoms of the severity claimed is, however, a factor that can be
considered. Marbury, 957 F.2d at 839-840; Tieniber v. Heckler, 720 F.2d 1251,
1253 (11th Cir. 1983).
Finally, if the Commissioner refuses to credit subjective testimony of the
plaintiff concerning pain he must do so explicitly and give reasons for that decision.
MacGregor, 786 F.2d at 1054. Where she fails to do so, the Eleventh Circuit has
Case No: 3:12cv325/CJK
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stated that it would hold as a matter of law that the testimony is accepted as true.
Holt, 921 F.2d at 1223; MacGregor, 786 F.2d at 105410. Although the Eleventh
Circuit does not require an explicit finding as to a claimant’s credibility, the
implication must be obvious to the reviewing court. Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005). The credibility determination does not need to cite
particular phrases or formulations but it cannot merely be a broad rejection which is
not enough to enable the reviewing court to conclude that the ALJ considered the
claimant’s medical condition as a whole. Dyer, 395 F.3d at 1210. And of course, the
reasons articulated for disregarding the plaintiff's subjective pain testimony must be
based upon substantial evidence. Wilson, 284 F.3d at 1225-1226; Jones v. Dep’t of
Health and Human Serv’s, 941 F.2d 1529, 1532 (11th Cir. 1991); Hurley, 385 F.
Supp. 2d at 1259.
Underlying the Hand standard is the need for a credibility determination
concerning a plaintiff’s complaints of pain. Such complaints are, after all, subjective.
“[T]he ascertainment of the existence of an actual disability depend[s] on determining
the truth and reliability of [a claimant’s] complaints of subjective pain.” Scharlow
10
In MacGregor, the court said:
If the Secretary refuses to credit such testimony he must do so explicitly and give
reasons for that decision. Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir.1982).
Where he fails to do so we hold as a matter of law that he has accepted that testimony
as true.
786 F. 2d at 1054. Relying upon the earlier case of Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th
Cir.1982), however, courts in the Eleventh Circuit are now generally opting for remand in cases of
inadequate credibility determinations (as well as cases involving rejection of treating physician
opinion). E.g. Lawton v. Comm’r,431 Fed. Appx. 830, 835, 2011 WL 2471475, *4 (11th Cir. June
22, 2011); see also Albery v. Comm’r, 2012 WL 2589297. *10 (M. D. Fla. June 7, 2012) (“The
Eleventh Circuit has recently receded from [the MacGregor] language.”).
Case No: 3:12cv325/CJK
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v. Schweiker, 655 F.2d 645, 649 (5th Cir. 1981) (holding that the ALJ must resolve
“the crucial subsidiary fact of the truthfulness of subjective symptoms and
complaints”).11
People with objectively identical conditions can experience
significantly different levels of pain, and pain is more readily treated in some than in
others. “Reasonable minds may differ as to whether objective medical impairments
could reasonably be expected to produce [the claimed] pain. This determination is
a question of fact which, like all factual findings by the [Commissioner], is subject
only to limited review in the courts . . . .” Hand, 761 F.2d at 1548-49. It is within the
ALJ’s “realm of judging” to determine whether “the quantum of pain [a claimant]
allege[s] [is] credible when considered in the light of other evidence.” Arnold v.
Heckler, 732 F.2d 881, 884 (11th Cir. 1984). Thus, a physician may be told by a
patient that he or she is in pain, and the physician may believe it, but the ALJ is not
bound by that. The evidence as a whole, including the existence of corroborating
objective proof or the lack thereof, and not just a physician’s belief or the plaintiff’s
claims, is the basis for the ALJ’s credibility determination.
Here, Ms. Smith claims that her pain is a ten on a scale of zero to ten. T. 269.
At the hearing, Ms. Smith estimated her back pain is, on an average day, at an eight
or nine on a scale of zero to ten. T. 53. She will occasionally sleep for “days on
days” because of the pain. T. 53. Ms. Smith also claims she has pain everyday and
is in pain when she bends over, stands too long, walks too long, or sits too long. T.
269. Ms. Smith, however, indicated that she takes no pain medication as recently as
11
Decisions of the United States Court of Appeals for the Fifth Circuit decided prior to
September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. Pritchard, 661 F.2d
1206, 1207 (11th Cir.1981) (en banc).
Case No: 3:12cv325/CJK
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2005, T. 189, and for several years took only Tylenol to relieve the pain. T. 269. Ms.
Smith was prescribed Lortab on three separate occasions, once in 2007 by Baptist
Health and twice by Dr. Greenlee in 2010. Use of Tylenol, with occasional
prescriptions of Lortab, indicates conservative treatment.
No medical opinion of record concludes the claimant is disabled and unable to
work. In fact, Dr. Greenlee’s findings limit the claimant in only a few respects,
namely the hours needed to sit or stand, environmental problems, and the frequent use
of bending and/or stopping movements. T. 764. Dr. Greenlee found plaintiff capable
of performing activities that would be classified as medium work (as defined by SSR
83-10). Dr. Roberts utilized chiropractic manipulation, heat packs, and inferential
therapy in treating plaintiff’s back and neck problems. Dr. Roberts’ treatment of
plaintiff’s back and neck pain is conservative given plaintiff’s claims of severe,
disabling pain. The MRI of plaintiff’s back showed only mild disc desiccation and
shallow annular bulge L5-S1. T. 433. From the record, Ms. Smith seems to have
stopped receiving any substantial treatment for her neck and back pain in recent
years, except for the occasional Lortab prescription. In short, the dramatic complaints
of pain are out of proportion to both the objective findings, and the treatment
rendered.
Plaintiff’s complaint of pelvic pain stemming from ovarian cysts appears to be
an isolated incident that has been resolved, as no further medical records indicate
ongoing treatment. Plaintiff’s hives and thyroid problem would not typically cause
the severity of pain plaintiff claims. Importantly, plaintiff does not claim her severe
pain stems from those conditions. Additionally, none of the physicians treating those
conditions expressed the belief that such conditions would be disabling or result in
Case No: 3:12cv325/CJK
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debilitating pain.
Dr. Obeid determined plaintiff “[p]robably” had asthmatic
bronchitis and noted only “some discomfort in her chest . . . .” T. 775. Plaintiff was
prescribed various prescription medications for the aforementioned conditions, but
none of the prescribed medications indicate, or are directed for, plaintiff’s claimed
degree of pain.
The ALJ, nevertheless, recognized and accepted many of plaintiff’s complaints
of pain and impairments. T. 23. The ALJ discounted plaintiff’s stated level of pain,
however, finding that the “intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the . . . residual
functional capacity assessment.” T. 24-25. As the foregoing discussion evidences,
plaintiff’s subjective complaints of pain are not consistent with the objective medical
of evidence of record. Because plaintiff’s complaints of pain are not supported by the
objective medical evidence to the degree plaintiff contends, the ALJ properly
discounted plaintiff’s credibility. Further, the ALJ properly considered plaintiff’s
claims of the intensity and persistence of her pain in assessing the credibility and
claimed level of pain. See 20 C.F.R. § 404.1529(a)-(c). The ALJ concluded that
plaintiff’s claims concerning the intensity and persistence of her pain were not
consistent with the objective evidence; as a result, the ALJ found that plaintiff’s pain
was not disabling. Moreover, the ALJ explicitly listed her reasons for discounting
plaintiff’s credibility, noting that the claims of persistence and intensity were
inconsistent with the assessed RFC (which was consistent with the objective medical
evidence of record).
Finally, plaintiff’s fourth claim–that the ALJ failed to properly assess plaintiff’s
ability to alternate sitting and standing as required by SSR 96-9p–also fails. (Doc.
Case No: 3:12cv325/CJK
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14, p. 6). The ALJ, at the hearing, was cognizant of plaintiff’s need for a sit/stand
option. T. 61. Vocational expert Murphy indicated that he based his occupational
assessments on jobs that have a stool or chair, and therefore, inherently have a
sit/stand option. T. 61-62. The ALJ specifically tailored the RFC to Dr. Greenlee’s
limitations of four hours standing and four hours sitting. T. 23-24. The RFC’s
limitations indicate the frequency with which plaintiff would need to alternate sitting
and standing. On a final note, nothing in the record indicates that Ms. Smith cannot
work an eight hour day given the specified sit/stand options.
Based upon the foregoing analysis, the decision is in compliance with
appropriate legal standards. See Carnes, 936 F.2d at 1218 (“[T]his Court may reverse
the decision of the [Commissioner] only when convinced that it is not supported by
substantial evidence or that proper legal standards were not applied.”).
ACCORDINGLY, it is ORDERED:
1. The decision of the defendant Commissioner is AFFIRMED and plaintiff’s
application for Disability Insurance Benefits and Supplemental Security Income is
DENIED.
2. The clerk is directed to close the file.
At Pensacola, Florida, this 21st day of May, 2013.
/s/
Charles J. Kahn, Jr.
CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE
Case No: 3:12cv325/CJK
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