Daniels v. Colvin
Filing
16
FINAL OPINION AND ORDER Affirming the decision of the Commissioner. Signed by Magistrate Judge Janet F. King on 3/3/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BENNIE DANIELS,
Plaintiff,
v.
CIVIL ACTION FILE NO.
1:13-CV-02440-JFK
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
FINAL OPINION AND ORDER
Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the
Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision
of the Commissioner of the Social Security Administration which denied her disability
claim. For the reasons set forth below, the court ORDERS that the Commissioner’s
decision be AFFIRMED.
I.
Procedural History
Plaintiff Bennie Daniels filed applications for a period of disability, disability
insurance and supplemental security income on May 7, 2010, alleging a disability
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onset date of April 18, 2008. [Record (“R.”) at 112-21].1 After Plaintiff’s applications
were denied initially and on reconsideration [R. at 60-63], she requested an
administrative hearing which was held on February 28, 2012 [R. at 35-59]. On April
20, 2012, the Administrative Law Judge (“ALJ”) issued a decision denying Plaintiff’s
applications. [R. at 21-34]. On May 22, 2013, the Appeals Council denied Plaintiff’s
request for review of the ALJ’s decision. [R. at 1-6]. Having exhausted her
administrative remedies, Plaintiff filed a complaint in this court on July 22, 2013,
seeking judicial review of the Commissioner’s final decision. [Doc. 3].
II.
Facts
Plaintiff Bennie Daniels was born on September 13, 1951. On her alleged
disability onset date of April 18, 2008, she was fifty-six years old, and she meets the
insured status requirements of the Social Security Act through December 31, 2011.
[R. at 26, 138]. Plaintiff based her applications for benefits on the following medical
conditions: high blood pressure, gout, lymphodema, diabetes, arthritis, “degenerative
disc”, back injury and two back surgeries, kidney problems, thyroid, deep vein
thrombosis (“dvt”), and sleep apnea. [R. at 24, 112, 116, 142]. Her past relevant work
1
The ALJ’s decision identifies the application date as “January 11, 2010.” [R.
at 24]. This appears to be a scrivener’s error.
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included twenty-five years in customer service work with a telephone company and
work as a shipping clerk. [R. at 143, 151, 165]. Plaintiff speaks English, and she
completed three years of college in March 2010 and has earned a bachelor’s degree in
business administration according to counsel at the hearing. [R. at 38, 141, 149].
Plaintiff performed data entry work from early 2010 through April 2011 when she
testified that she was laid off because of her inability to type fast enough and keep up
with her workload. [R. at 26, 47, 123-25]. But there have been continuous 12-month
periods since her alleged onset date when she did not engage in substantial gainful
activity. [R. at 26].
The ALJ found that Plaintiff has degenerative disc disease, diabetes mellitus,
hypertension, obesity, obstructive sleep apnea and history of pacemaker implantation
and that these are severe impairments. [R. at 26]. The ALJ found that Plaintiff’s
impairments, alone or in combination, do not meet or medically equal the severity of
a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically, the
ALJ found that Plaintiff does not have a spinal disorder characterized by nerve root
compression, spinal arachnoiditis or lumbar spinal stenosis as required by Medical
Listing 1.04 and that the record does not demonstrate that Plaintiff’s hypertension is
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associated with chronic heart failure or ischemic heart disease of sufficient severity to
meet or equal the requirements of Medical Listings 4.02 and 4.04. [Id.].
The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to
perform sedentary work involving occasional climbing of ladders, ropes, and scaffolds
and occasional stooping and crawling, that Plaintiff can perform other postural
activities frequently, and that Plaintiff should avoid concentrated exposure to hazards.
[R. at 26-27]. The ALJ found that Plaintiff is capable of performing her past relevant
work as a customer service representative and data entry clerk as actually and generally
performed and that such work does not require the performance of work-related
activities precluded by the claimant’s RFC. [R. at 29]. A vocational expert testified
that this was consistent with the Dictionary of Occupation Titles. [R. at 58]. The ALJ
found that Plaintiff was, thus, not under a disability from her alleged onset date, April
18, 2008, through the date of the ALJ’s decision on April 20, 2012. [R. at 29-30].
The ALJ’s decision [R. at 24-34] states the relevant facts of this case as modified
herein as follows:
The claimant testified that she cannot work due to pain. She reported headaches,
sleep apnea and an irregular heartbeat. The claimant stated that her high blood
pressure is not controlled. She described problems with her hands and an inability to
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type as in the past. She testified that she can lift five pounds, sit for thirty to forty
minutes, and stand for ten minutes. She uses a cane which she testified is because her
right leg swells and gives way. Her activities of daily living include reading, watching
television, and preparing a salad if seated. And she testified that she goes to church
occasionally. [R. at 28].
A sleep study in September 2009 showed moderate obstructive sleep apnea. But
CPAP titration reduced or eliminated most of the claimant’s respiratory events.
(Exhibit 1E).
Medical records from Dr. Ronald Bookhart with Kaiser Permanente document
treatment for the claimant’s diabetes and hypertension. In March 2010 (Exhibit 3F),
the claimant reported blood sugar levels between 95-140 in the morning but also that
she was not taking her insulin sensitizing medication every day as prescribed. [R. at
232-33]. In February 2011 (Exhibit 7F), the claimant reported that she had been out
of all medications for one month, and, on physical examination, her gait was balanced,
she was fully upright, her sensation was normal in both feet, and her motor strength
was preserved in all extremities. [R. at 339-42]. In June 2011(Exhibit 9F), Dr.
Bookhart’s records indicate that the claimant’s diabetes was controlled, that she had
no loss of sensation in her extremities and that she denied pain and numbness in her
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feet. [R. at 453-54]. In October 2011, the claimant was seen at Grady Health System
(Exhibit 12F) after losing her health insurance and reported that she had stopped taking
Metformin for her diabetes because her glucose levels were well-controlled and that
she was walking daily for ten minutes. She had also achieved significant weight loss.
[R. at 626].
X-rays of the claimant’s lumbar spine in October 2010 showed intervertebral
disc space narrowing with degenerative changes at L5-Sl.
There was mild
dextroscoliosis present, and the claimant was diagnosed with lumbar radiculopathy.
(Exhibit 7F).
In August 2011, the claimant was evaluated at the Piedmont Heart Institute. Her
underlying rhythm was sinus bradycardia. She was not pacemaker dependent.
Although she reported muscle spasms in the area of the device, further evaluation
showed that the device was stable. Records from Grady Hospital in October 2011
indicate arrhythmia and the need for follow up. (Exhibits 10F, 12F).
Despite these impairments, the claimant performed sedentary work on a full time
basis for over a year after applying for benefits, from early 2010 through April 2011.
At the hearing in February 2012, however, the claimant testified that she was only
walking to her mailbox due to back and leg pain and that she needs a cane. [R. at 45,
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54]. When asked if the cane was prescribed, she stated that she started using a cane
on her own after she fell down the stairs. [R. at 45]. Medical records consistently
show that the claimant has a normal gait. [R. at 29].
The claimant demonstrated 5/5 grip strength and intact sensation throughout in
June 2011. (Exhibit 9F). At the hearing in February 2012, she alleged a loss of grip
strength. The claimant also testified that her high blood pressure is not fully
controlled. Records in February 2011 indicate that she was not taking her medications
for one month. (Exhibit 7F).
Additional facts will be set forth as necessary during discussion of Plaintiff’s
arguments.
III.
Standard of Review
An individual is considered to be disabled if she is unable “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).
The impairment or impairments must result from anatomical,
psychological, or physiological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques and must be of such severity
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that the claimant is not only unable to do her previous work but cannot, considering
age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy. See 42 U.S.C. §§ 423(d)(2) and (3).
“We review the Commissioner’s decision to determine if it is supported by
substantial evidence and based upon proper legal standards.” Lewis v. Callahan, 125
F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.”
Id. at 1440.
“Even if the evidence preponderates against the
[Commissioner’s] factual findings, we must affirm if the decision reached is supported
by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
“‘We may not decide the facts anew, reweigh the evidence, or substitute our judgment
for that of the [Commissioner].’” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th
Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
“The burden is primarily on the claimant to prove that [she] is disabled, and
therefore entitled to receive Social Security disability benefits.” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001) (citing 20 C.F.R. § 404.1512(a)). Under the
regulations as promulgated by the Commissioner, a five step sequential procedure is
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followed in order to determine whether a claimant has met the burden of proving [her]
disability. See Doughty, 245 F.3d at 1278; 20 C.F.R. §§ 404.1520, 416.920.
At step one, the claimant must prove that she is not engaged in substantial
gainful activity. See id. The claimant must establish at step two that she is suffering
from a severe impairment or combination of impairments. See id. At step three, the
Commissioner will determine if the claimant has shown that her impairment or
combination of impairments meets or medically equals the criteria of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See Doughty, 245 F.3d at 1278;
20 C.F.R. §§ 404.1520, 416.920. If the claimant is able to make this showing, she will
be considered disabled without consideration of age, education, and work experience.
See id.
“If the claimant cannot prove the existence of a listed impairment, [she] must
prove at step four that [her] impairment prevents him from performing [her] past
relevant work.” Doughty, 245 F.3d at 1278. “At the fifth step, the regulations direct
the Commissioner to consider the claimant’s residual functional capacity, age,
education, and past work experience to determine whether the claimant can perform
other work besides [her] past relevant work.” Id. If, at any step in the sequence, a
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claimant can be found disabled or not disabled, the sequential evaluation ceases and
further inquiry ends. See 20 C.F.R. §§ 404.1520(a), 416.920(a).
IV.
Findings of the ALJ
The ALJ made the following findings of fact:
1.
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2011.
2.
The claimant engaged in substantial gainful activity from early 2010 through
April 2011. (20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b) and
416.971 et seq.).
3.
However, there have been continuous 12-month periods since the alleged onset
date during which the claimant did not engage in substantial gainful activity.
4.
The claimant has the following severe impairments: degenerative disc disease,
diabetes mellitus, hypertension, obesity, obstructive sleep apnea and history of
pacemaker implantation. (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
5.
The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (20 C.F.R. §§ 416.920(d), 416.925 and 416.926).
6.
The claimant has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except that she is limited
to occasional climbing of ladders, ropes, and scaffolds. She can stoop and
crouch occasionally and perform other postural activities frequently. The
claimant should avoid concentrated exposure to hazards.
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7.
The claimant is capable of performing past relevant work as a customer service
representative and data entry clerk. This work does not require the performance
of work related activities precluded by the claimant’s residual functional
capacity. (20 C.F.R. §§ 404.1565 and 416.965).
8.
The claimant has not been under a disability, as defined in the Social Security
Act, from April 18, 2008, through the date of this decision. (20 C.F.R. §§
404.1520(f) and 416.920(f)).
[R. at 24-34].
V.
Discussion
At the first step of the sequential evaluation, the ALJ found that Plaintiff Bennie
Daniels meets the insured status requirements of the Social Security Act through
December 31, 2011, and that, although Plaintiff engaged in substantial gainful activity
from early 2010 through April 2011, there have been continuous twelve-month periods
since April 18, 2008, her alleged onset date, during which Plaintiff did not engage in
substantial gainful activity. [R. at 26]. At the second step, the ALJ found that Plaintiff
has the following severe impairments: degenerative disc disease, diabetes mellitus,
hypertension, obesity, obstructive sleep apnea and history of pacemaker implantation.
[Id. at 26-27]. At step three, the ALJ found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. at 27].
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At the fourth step, the ALJ found that Plaintiff Daniels has the RFC to perform
sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except that
Plaintiff is limited to occasional climbing of ladders, ropes, and scaffolds and
occasional stooping and crouching, that she can perform other postural activities
frequently, and that she should avoid concentrated exposure to hazards. [R. at 27-29].
The ALJ found that Plaintiff is capable of performing her past relevant work as a
customer service representative and data entry clerk and that such work does not
require the performance of work related activities precluded by Plaintiff’s RFC. The
ALJ therefore determined that Plaintiff had not been under a disability, as defined in
the Social Security Act, from April 18, 2008, through the date of the ALJ’s decision,
April 20, 2012. [R. at 29].
Plaintiff Daniels contends that the ALJ’s decision should be reversed. [Doc.
12]. Plaintiff argues that the ALJ committed reversible error when he failed to address
the opinion of LaQuay Jones, a certified nurse practitioner (“CNP”), who treated
Plaintiff at Kaiser Permanente in 2006. [Id. at 1, 5-8]. Plaintiff contends that the ALJ
also committed reversible error by failing to consider Plaintiff’s degenerative joint
disease of the left knee and carpal tunnel syndrome. [Id. at 8-13]. And Plaintiff argues
that the Commissioner’s decision should be reversed because the ALJ failed to
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properly apply the three-part pain standard established by the Eleventh Circuit to
Plaintiff’s complaints of pain. [Id. at 13-18]. The Commissioner contends that the
ALJ applied the proper legal standards and that substantial evidence supports the
ALJ’s decision. [Doc. 15]. Plaintiff has not replied to the Commissioner’s arguments.
A.
Certified Nurse Practitioner’s Treating Opinion
In July 2006, about two years before Plaintiff’s alleged onset of disability,
Plaintiff was seen at Kaiser Permanente for an annual check-up which was performed
by LaQuay Jones, CNP. (Exhibit 7F). The CNP noted that Plaintiff, at age fifty-four,
was five feet four inches tall and weighed two-hundred-and-fifty-two pounds, that her
blood pressure was 140/90, and that Plaintiff’s non-fasting blood sugar was 141. [R.
at 412]. The CNP’s assessment was obesity, hypothyroidism (acquired), hypertension,
and type 2 diabetes (controlled), and the CNP recommended that Plaintiff attempt to
lose weight, reduce her salt intake, improve her dietary compliance, reduce exposure
to stress and attend health education classes for weight control, smoking cessation,
diabetes, exercise and stress reduction. [R. at 412-13]. The ALJ did not discuss the
CNP’s notes or assessment. [R. at 24-34].
Plaintiff contends that the ALJ committed reversible error when he failed to
address the CNP’s statement that Plaintiff should attempt to reduce her exposure to
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stress. Plaintiff argues that limitations on her ability to handle stress “could potentially
take [her] out of performing her past relevant work” and that, given the ALJ’s RFC
assessment and Plaintiff’s age (sixty) at the time of the hearing, she would be found
disabled at step five pursuant to the Medical-Vocational Guidelines under Grid Rule
201.06. [Doc. 12 at 6].
In support of her argument, Plaintiff cites several cases; however, because the
cases cited by Plaintiff address an ALJ’s failure to discuss treatment notes or the
opinion of a treating physician, the cases do not support Plaintiff’s argument regarding
the CNP. [See Doc. 12 at 6-7, citing, e.g., Lawton v. Comm’r of Social Sec., 431 Fed.
Appx. 830, 833-34 (11th Cir. 2011) (reversible error where ALJ failed to consider
opinion evidence from two treating physicians); Wiggins v. Schweiker, 679 F.2d 1387,
1390 (11th Cir. 1982) (reversible error because ALJ failed to address treating
physician’s second report); Robin v. Massanari, 176 F.Supp.2d 1278, 1281 (S.D. Ala.
2001) (ALJ committed reversible error by failing to address treating physician’s notes
and RFC opinion)]. A treating physician is an acceptable medical source as defined
by the Social Security regulations. See 20 C.F.R. §§ 404.1513(a), 416.913(a). “[O]nly
‘acceptable medical sources’ can give [ ] medical opinions. . . . [And o]nly ‘acceptable
medical sources’ can be considered treating sources . . . whose opinions may be
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entitled to controlling weight.” Social Security Ruling (“SSR”) 06-03P, at *2 (citing
20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2), 404.1502, 416.902). CNPs are not
acceptable medical sources. CNP’s are considered “‘other sources,’ as defined in 20
C.F.R. §§ 404.1513(d)(1) and 416.913(d)(1)),” and they “cannot establish the existence
of a medically determinable impairment. Instead, there must be evidence from an
‘acceptable medical source’ for this purpose.” SSR 06-03P, at *2.
An ALJ “may use” other sources to show the severity of an impairment and how
the impairment affects the claimant’s ability to function. SSR 06-03P, at *2. In doing
so, the ALJ must evaluate the other source pursuant to regulations which provide, inter
alia, that, generally, more weight is given to a treating source’s opinion “the longer the
treating source has treated you.” Id.2 The CNP who examined Plaintiff in January
2
The regulations state in pertinent part:
(2)
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture
of your medical impairment(s) . . . .
(i)
Generally, the longer a treating source has treated
you . . . the more weight we will give to the source’s
medical opinion. . . .
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
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2006 saw Plaintiff only one more time, six months later, in July 2006. [R. at 412-14].
And the CNP’s notes are inconsistent with the remainder of the record which does not
reflect any evidence from an acceptable medical source documenting or opining that
Plaintiff has a reduced ability to handle stress. For these reasons and authority, the
court finds that the ALJ did not commit reversible error when he did not discuss the
CNP’s assessment or recommendations.
B.
Other Impairments
Plaintiff’s second argument is that the ALJ committed reversible error by failing
to consider the degenerative joint disease in her left knee and her carpal tunnel
syndrome and to include appropriate limitations in her RFC and in the questions to a
vocational expert (“VE”) based on those impairments. [Doc. 12 at 8-9]. “Where a
claimant has alleged several impairments, the Secretary has a duty to consider the
impairments in combination and to determine whether the combined impairments
render the claimant disabled.” Jones v. Dept. of Health & Human Servs., 941 F.2d
1529, 1533 (11th Cir. 1991) (citation omitted); see also SSR 96-8p. Plaintiff argues
that the degenerative joint disease of her left knee and the limitations caused by this
impairment greatly impact her ability to walk and cause her to have to change position
in order to alleviate pain and that the ALJ therefore should have included limitations
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on her ability to walk and her need to change positions during the workday. [Doc. 12
at 9]. And Plaintiff contends that she has carpal tunnel syndrome and hand limitations
and that the ALJ erred by not including RFC limitations on Plaintiff’s ability to use her
hands during the workday. [Id. at 10, citing R. at 27].
The regulations require the ALJ to “assess and make a finding about [the
claimant’s] residual functional capacity based on all the relevant medical and other
evidence in the case.” Phillips, 357 F.3d at 1238 (quoting 20 C.F.R. § 404.1520(e))
(internal quotation marks omitted). “The residual function capacity is an assessment,
based upon all of the relevant evidence, of a claimant’s remaining ability to do work
despite [her] impairments. . . . Along with [her] age, education and work experience,
the claimant’s [RFC] is considered in determining whether the claimant can work.”
Lewis,125 F.3d at 1440 (citations omitted).
When Plaintiff filed applications for benefits, she did not include degenerative
joint disease in the left knee or carpal tunnel syndrome in her alleged impairments. [R.
at 142]. But Plaintiff points out that, at the hearing, counsel asserted that Plaintiff’s
disability was related in part to knee pain and that Plaintiff testified to problems with
her legs and pain in her knee and that her legs sometimes go out on her. [Doc. 12 at
8-9, citing R. at 38-39 and 43-44]. And Plaintiff cites the following medical evidence
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regarding her left knee. Plaintiff twisted her left knee going down the stairs in October
2008, and x-rays showed degenerative changes with mild joint space narrowing of the
medial aspect of the knee joint, hypertrophic change along the distal femoral condylar
regions with separate osseous density thought to be due to a benign hypertrophic bone
formation, and suspected synovial osteochondroma posterior to the knee joint abutting
the distal femoral region. [Id. at 8, citing R. at 216-19]. An MRI of the left knee in
November 2008 confirmed the presence of the degenerative joint disease as well as a
lateral meniscus tear and medial collateral ligament sprain. [Id., citing R. at 439]. And
on June 18, 2009, Dr. Shore noted that Plaintiff complained of some arthritis of the
knees. [Id., citing R. at 323].
Although the records show that Plaintiff has degenerative joint disease in the left
knee as she argues, when Dr. William M. Craven, an orthopedist with Alliance
Orthopaedics and Sports Medicine, examined Plaintiff in November 2008 following
the MRI, he did not indicate that this impairment prevented her from working. Dr.
Craven stated that he was going to schedule Plaintiff for surgery3 but that Plaintiff
could return to sedentary work restricted to “sitting most of the time, may involve
3
The record does not indicate whether the recommendation for surgery was
based on the lateral meniscus tear in October 2008 or on degenerative joint disease.
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walking or standing 1/3 of the time.” [R. at 440]. There is no record evidence of
Plaintiff having surgery. And Plaintiff has not cited nor has the court found any record
evidence of continued treatment for or continued complaints specifically concerning
Plaintiff’s left knee after Dr. Craven’s November 2008 record.
Although Dr. Shore, a nephrologist who evaluated Plaintiff for proteinuria in
June 2009 noted at that time that Plaintiff reported having “‘some arthritis’” in her
knees [R. at 323], Plaintiff has not cited any record evidence documenting a diagnosis
of arthritis in the knees. And, even if the record reflected a diagnosis of arthritis in the
knees, which is not the case here, “the mere existence of [such an] impairment[ would]
not reveal the extent to which [it] limit[s] 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) (quoting McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (in which
the court held that the “‘severity of a medically ascertained disability must be
measured in terms of its effect upon ability to work’”)).
While Plaintiff testified that she started using a cane after she fell down the stairs
in October 2008, the ALJ noted that Plaintiff also testified that she uses a cane because
her right leg swells and gives way. [R. at 28, 45 (“my right leg gives me the most
trouble”)]. Plaintiff did not specifically complain of left knee problems during the
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hearing. [R. at 35-58]. And the record supports the ALJ’s finding that the medical
records consistently show that Plaintiff has a normal gait.
Plaintiff did not complain of continued left knee pain or left knee problems on
May 1, 2009, six or seven months after falling down the stairs, and, on examination,
her gait was balanced, she was fully upright, and her strength was preserved and
symmetric in all extremities. [R. at 366-70]. Plaintiff also did not complain of left
knee pain on June 3, 2009, and, when she was examined on July 27, 2009, and October
12, 2009, there was no finding of a left knee problem or of limitations caused by
Plaintiff’s left knee. [R. at 359, 362, 364]. Plaintiff’s gait was balanced, she was fully
upright and she reported no problems with walking on March 2, 2010, as noted in a
Physical Residual Functional Capacity Assessment completed by State Agency
physician Dr. Shakoora Omonuwa on December 16, 2010, based on the medical
evidence of record. [R. at 337]. Three months later, on May 4, 2010, Plaintiff
complained of low back pain with bending or lifting with radiation down the right leg,
but she did not complain of arthritis in her knees or of left knee problems nor was
arthritis or a problem with her left knee noted on physical examination. [R. at 344-46].
And, in February 2011, Plaintiff “denie[d] any symptoms of joint pain, swelling,
myalgias, gait disturbance or back pain.” [R. at 341]. Thus, substantial evidence
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supports the ALJ’s finding that Plaintiff has a normal gait, and Plaintiff has not shown
that the ALJ failed to apply the proper standards to the medical evidence of
degenerative joint disease in her left knee.
Regarding Plaintiff’s allegations of carpal tunnel syndrome and hand limitations,
the only medical records that Plaintiff cites are the CNP’s notes in January 2006 of a
positive phalen sign and a positive tinel sign on the left indicating that Plaintiff had
carpal tunnel syndrome for which Plaintiff was to wear a brace day and night. [Doc.
12 at 10, citing R. at 413-14]. As discussed earlier, a CNP “cannot establish the
existence of a medically determinable impairment” and cannot render a medical
opinion. SSR 06-03P, at *2. The cases cited by Plaintiff are inapposite because they
address medical records and diagnoses by treating physicians, that is, by acceptable
medical sources. See, e.g., Ashford v. Barnhart, 347 F. Supp. 2d 1189, 1197-98 (M.D.
Ala. 2004) (recommendation to reverse and remand because ALJ failed to analyze or
mention parts of treating physician’s opinion); Williams v. Barnhart, 186 F.Supp.2d
1192 (M.D. Ala. 2002) (recommendation to reverse and remand because ALJ failed
to address some impairments clearly identified by treating physicians). And Plaintiff
has not cited an acceptable medical source diagnosing either carpal tunnel syndrome
or hand limitations for any reason.
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Plaintiff cites her testimony when questioned at the hearing as to why she could
not do the job of data entry clerk which she performed from early 2010 through April
2011. [Doc. 12 at 10]. Plaintiff responded, “Because I have hand problems with my
hands. I guess, it’s arthritis, because I can’t type like I used to.” [Id., citing R. at 46].
However, Plaintiff has not cited an acceptable medical source diagnosing arthritis in
her hands. And the mere existence of such a diagnosis would not be sufficient to show
functional limitations that the ALJ should have discussed. Moore, 405 F.3d at 1213
n.6 (citation omitted).
Further, the ALJ addressed Plaintiff’s allegations of hand problems and an
inability to type as in the past when he noted that “despite her impairments, [Plaintiff]
performed sedentary work on a full time basis for over a year since filing her
application for benefits.” [R. at 28]. The ALJ, citing a June 2011 record two months
after Plaintiff stopped performing data entry work which indicated that Plaintiff had
5/5 strength and intact sensation throughout, stated that he found “no support for lack
of grip strength as alleged during the hearing.” [R. at 29]. The June 2011 exam notes
state that Plaintiff “denie[d] symptoms of joint pain, swelling . . . Motor strength is
preserved and symmetric in all extremities. No sensory deficits noted.” [See R. at
464]. For these reasons, the court finds that Plaintiff has not cited substantial
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acceptable medical record evidence to support her argument nor has Plaintiff shown
that the ALJ failed to apply the proper standards when he did not include hand
limitations in Plaintiff’s RFC or in the questions to the VE. See Davis-Grimplin v.
Comm’r, Social Sec. Admin., 556 Fed. Appx. 858, 863 (11th Cir. 2014) (holding that
ALJ did not err by not including hand limitations in the RFC where the evidence did
not show that claimant had such limitations even though her bilateral carpal tunnel
syndrome was a severe impairment).
C.
Proper Application of the Pain Standard
Plaintiff’s final argument is that the Commissioner’s decision should be reversed
because the ALJ failed to apply the proper standard and failed to articulate any valid
reason to discredit her testimony. When a claimant seeks to establish disability
through subjective testimony of her pain or other symptoms, a three (3) part “pain
standard” established by the Eleventh Circuit applies. Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991). “The pain standard requires (1) evidence of an underlying
medical condition and either (2) objective medical evidence that confirms the severity
of the alleged [symptoms] arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be reasonably expected
to give rise to the alleged pain” or other alleged symptom. Id. See also 20 C.F.R. §§
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404.1529, 416.929. If the pain standard is met and the claimant’s testimony, if
credited, could support the claimant’s disability, the ALJ must make and explain a
finding concerning the credibility of the claimant’s testimony. See Viehman v.
Schweiker, 679 F.2d 223, 227-28 (11th Cir. 1982).
The relevant Social Security regulations provide that the factors to be considered
by the ALJ in evaluating a claimant’s subjective symptoms include: daily activities;
location, duration, frequency, and intensity of the claimant’s symptoms; precipitating
and aggravating factors; type, dosage, effectiveness, and side effects of any medication
the claimant takes to alleviate her symptoms; treatment received and measures used,
other than medication, for the relief of symptoms; and any other factors concerning the
functional limitations and restrictions due to the claimant’s symptoms. See 20 C.F.R.
§§ 404.1529, 416.929; see also SSR 96-7p. “If the ALJ discredits subjective
testimony, he must articulate explicit and adequate reasons for doing so.” Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987)). “A clearly articulated credibility finding with substantial
supporting evidence in the record will not be disturbed by a reviewing court.” Foote
v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (citing MacGregor v. Bowen, 786 F.2d
1050, 1054 (11th Cir. 1986)).
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The ALJ found that, while one could reasonably expect Plaintiff’s medically
determinable impairments to cause her alleged symptoms, her statements concerning
the intensity, persistence and limiting effects of her alleged symptoms were not
credible to the extent they were inconsistent with the ALJ’s RFC assessment. [R. at
28]. In support of her argument that the ALJ did not properly consider her pain
testimony in making that finding, Plaintiff cites the following medical records: her
complaints of left arm pain in 2006 to the CNP; her fall in October 2008 resulting in
a recommendation to have surgery on her left knee; her complaints of headaches, leg
cramps at night and arthritis in the knees when she was examined by a nephrologist in
June 2009; and her May 2010 complaints of low back pain with bending or lifting with
radiation down the right leg. [Doc 12 at 16-17, citing R. at 216-18, 227-28, 253-54,
322-24, 413-14, 418-22, 438-40, 451]. The medical records cited by Plaintiff are the
same records discussed earlier concerning the degenerative joint disease in her left
knee and the CNP’s 2006 assessment of carpal tunnel syndrome, which, as discussed
earlier, do not support her arguments concerning carpal tunnel syndrome or arthritis
resulting in hand limitations or that the ALJ should have included RFC limitations
based on degenerative joint disease in the left knee.
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The ALJ took Plaintiff’s activities into consideration when he noted that
Plaintiff’s impairments did not prevent her from performing sedentary, data entry work
on a full time basis from January 2010 through April 2011. The ALJ found that,
although Plaintiff testified in February 2012 that she could only walk to the mail box
due to back and leg pain, she had reported in October 2011 that she walked ten minutes
a day. [R. at 28-29, 53, 626].4 Plaintiff testified that she uses a cane on her own – that
the cane was not prescribed. [R. at 29, 45]. And the ALJ found that, according to the
medical records, Plaintiff consistently has a normal gait [R. at 29] which, as discussed
earlier, is supported by substantial medical evidence. The ALJ also found that, while
Plaintiff alleged a loss of grip strength at the hearing, she had demonstrated 5/5 grip
strength and intact sensation throughout in June 2011. (Exhibit 9F). On appeal,
Plaintiff has not cited acceptable medical source evidence documenting a loss of grip
strength either before or after she stopped doing data entry work. And, the ALJ noted
that, although Plaintiff testified that her high blood pressure is not fully controlled, her
4
Despite Plaintiff’s allegations of such back and leg pain, the court notes that,
while Plaintiff testified that she is unable to take pain medication because she is on
Coumadin and must therefore take Tylenol, she nonetheless testified that she does not
wish to have back surgery. [R. at 42-43].
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medical records in February 2011 (Exhibit 7F) indicate that she had not taken her
medications for one month. [R. at 29].
“We do not require the ALJ to ‘specifically refer to every piece of evidence in
his decision,’ so long as the decision is sufficient to allow us to conclude that the ALJ
considered the claimant’s medical condition as a whole.” Castel v. Comm’r of Soc.
Security, 355 Fed. Appx. 260, 263 (11th Cir. 2009) (quoting Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005)). “[C]redibility determinations are the province of the
ALJ.” Moore, 405 F.3d at 1212 (citing Wilson v. Heckler, 734 F.2d 513, 417 (11th Cir.
1984)). The ALJ clearly articulated reasons, which are supported by substantial
evidence, for finding that Plaintiff’s statements were credible only to the extent of the
ALJ’s RFC assessment. And the medical records cited by Plaintiff are not sufficient
reason to disturb the ALJ’s credibility determination.
VI.
Conclusion
For the forgoing reasons and cited authority, the undersigned concludes that the
ALJ applied proper legal standards in reaching his decision and that it was supported
by substantial evidence. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). It is, therefore, ORDERED that the decision of the Commissioner be
AFFIRMED. See Melkonyan v. Sullivan, 111 S. Ct. 2157 (1991).
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SO ORDERED THIS 3rd day of March, 2015.
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