Harris v. Colvin

Filing 15

FINAL OPINION AND ORDER Affirming the decision of the Commissioner. The Clerk is DIRECTED to enter judgment in favor of the Commissioner. Signed by Magistrate Judge Janet F. King on 3/10/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

VICKIE LEE HARRIS,
Plaintiff,
v.

CIVIL ACTION FILE NO.
1:13-CV-03227-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
claims. For the reasons set forth below, the court ORDERS that the Commissioner’s
decision be AFFIRMED.
I.

Procedural History
Plaintiff Vickie Lee Harris filed applications for a period of disability, disability

insurance benefits, and supplemental security income on January 14, 2010, alleging
a disability onset date of April 22, 2000. [Record (R.) at 133-44]. Plaintiff was

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working at the time she filed the applications but stated that she had not earned more
than $780 in any month since January 1, 2002, because of headaches, dizziness and
arthritis. [R. at 158-72]. After her applications were denied initially and on
reconsideration, Plaintiff requested an administrative hearing which was held on
January 9, 2012. [R. at 28-73]. The Administrative Law Judge (“ALJ”) issued a
decision denying Plaintiff’s applications on March 19, 2012. [R. at 12-27]. Plaintiff
requested review of the ALJ’s decision which the Appeals Council denied on July 25,
2013. [R. at 1-6]. Having exhausted her administrative remedies, Plaintiff filed a
complaint in this court on October 1, 2013, seeking judicial review of the
Commissioner’s final decision. [Doc. 3]. The parties have consented to proceed
before the undersigned Magistrate Judge.
II.

Statement of Facts
The ALJ found that Plaintiff engaged in substantial gainful activity after her

alleged onset of disability in January 2000 but that Plaintiff had not engaged in
substantial gainful activity since January 1, 2007, her amended alleged date of
disability onset. [R. at 17]. The ALJ found that Plaintiff meets the insured status
requirement of the Social Security Act through March 31, 2008. [Id.].

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Plaintiff Harris has past relevant work experience as a hairdresser and clerical
worker. [R. at 21]. She was fifty-four years old at the time of the administrative
hearing and has a tenth grade education. [R. at 34].
The ALJ found that Plaintiff has degenerative disc disease and headaches which
are “severe” impairments within the meaning of the Social Security Regulations and
that Plaintiff has anxiety which the medical record evidence shows is a non-severe
impairment. [R. at 17-18]. The ALJ found that Plaintiff’s impairments, alone or in
combination, do not meet or medically equal one of the relevant listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1, specifically finding that Plaintiff does
not have a disorder of the spine that meets Listing 1.04 and that her headaches do not
meet any section in Listing 11.00. [R. at 18].
The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to
stand for six hours of an eight-hour day with intermittent sitting and that she has the
RFC to do the following: frequently lift/carry twenty-five pounds and occasionally
lift fifty pounds; frequently climb ramps and stairs; frequently balance, stoop, kneel,
reach and crouch; occasionally climb ladders, ropes and scaffolds and crawl; and
frequently reach in all directions bilaterally. A vocational expert testified that
Plaintiff’s past relevant work does not require the performance of work-related
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activities precluded by her RFC, and the ALJ found that Plaintiff is capable of
performing the physical and mental demands of her past relevant work as such work
as actually and generally performed. The ALJ therefore found that Plaintiff had not
been under a disability, as defined in the Social Security Act, from January 1, 2007,
through March 19, 2012, the date of the ALJ’s decision. [R. at 21-22].
The ALJ’s decision [R. at 15-27] states the relevant facts of this case as
modified herein as follows:
The claimant testified that she is unable to sleep at night or function in society
as she should. She stated that her anxiety, depression and pain affect her ability to
work and that she is disabled because of the pain and medication she takes. She hurt
her neck in a car accident in 2002 and states that muscle relaxers do not help her neck
and that she has neck pain radiating into her right arm making it difficult to use her
right arm and hand. She can lift five to ten pounds, but she has difficulty lifting heavy
things and difficulty holding her right hand up for any period of time. The claimant
has headaches and testified that Ultram does not help. She does not cook often
because of forgetfulness. Her medication causes her to have dizziness, nervousness,
tremors, and difficulty with balance which in turn causes her to have difficulty
standing, and she often has to lie down due to the side effects of her medication. She
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can stand and walk for thirty minutes at a time. She can sit for thirty minutes at a time.
She does not bend; she stoops a little. She has anxiety which she says makes her feel
disconnected with her work. But she has never been hospitalized because of mental
impairments, and she stopped taking anxiety medications because they are addictive.
She testified that she has difficulty with concentration. Her daughter helps with her
bills. She drives one to two times a week. She no longer attends church like she used
to, but she attends church on Sundays with her daughter. She does not drive for
longer than twenty minutes at a time.
The claimant has not required emergency treatment or inpatient hospitalization
for her degenerative disc disease and headaches. Her treatment has been limited to
primary care providers. Although she has headaches which have been attributed to
her cervical condition and also to tension, she has not sought additional treatment for
pain such as physical therapy or treatment from a pain clinic. (Exhibits 3F and 8F).
Her 2011 treatment notes from Four Corners Primary Care (Dr. Aziz Pirani) and
Medlink1 (Dr. N. Abdulbaaqee) do not document abnormalities of the back or neck.
(Exhibits 12F and 16F). The September and October 2011 treatment notes from

1

Plaintiff received treatment at the Medlink Winder location, but, for ease of
reference, the court will refer to the provider as “Medlink.”
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Medlink attribute the claimant’s headaches to sinus symptoms. And, in December
2011, it was noted that her headaches were helped by the prescription of Ultram and
Oxycodone. (Exhibit 16F).
An MRI of the claimant’s right hand in February 2007 revealed trace tendinitis
and tendosynovitis. (Exhibit 2F). X-rays of her cervical spine in September 2007 did
not reveal any acute process at C6-7. On examination in September 2007, she had
some tenderness of the cervical spine, while, in April 2009, there was no tenderness
in the cervical spine but tenderness in the cervical paraspinal muscles. (Exhibit 3F).
In March 2010, the claimant was examined by Dr. Dianne Bennett-Johnson, a
consultative physician,2 who noted a decreased range of motion of the neck and
shoulders, negative straight leg raising, a normal neuropsychological exam,
hypertrophic cervical spine muscles, and a mildly decreased grip on the left; an x-ray
revealed degenerative disc disease at C5-6. (Exhibit 4F).
Dr. Bennett-Johnson examined the claimant a second time, on November 22,
2010, and found decreased range of motion of the neck, decreased flexion of the
lumbar spine, and pain with abduction of the right shoulder; x-rays of the claimant’s

2

The ALJ’s decision refers to Dr. Bennett-Johnson as “Dr. Johnson.” [See R.

at 20].
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lumbar spine were normal. (Exhibit 8F). The notes from Four Corners Primary Care
and Medlink document essentially normal physical examinations in 2011. (Exhibits
12F and 16F).
Dr. Aziz Pirani with Four Corners Primary Care, who opined in April 2011 that
the claimant was not capable of performing a full range of sedentary work due to pain
and anxiety, evaluated the claimant only three times. The claimant’s physical
examinations were normal, and Dr. Pirani did not document any limitations related to
anxiety. (Exhibits 12F, 13F and 14F). Dr. N. Abdulbaaquee with Medlink opined in
2011 that the claimant was limited in functioning due to migraines but noted in
December 2011 that the claimant’s headaches were improved with Ultram and
Oxycodone, and the Medlink treatment notes do not document any limitations related
to migraines. (Exhibit 16F). On January 26, 2011, State Agency medical consultant,
Dr. Bettye Stanley, D.O., completed a Physical Functional Capacity Assessment based
on the available medical records and found, among other things, that the claimant had
reported posterior headaches for ten years and that she had seen a number of doctors
all of whom told her it was tension headaches. (Exhibit 11F).
Additional facts will be set forth as necessary during discussion of Plaintiff
Harris’s arguments.
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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
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).
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“‘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
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.
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“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
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 March 31, 2008.

2.

The claimant has not engaged in substantial gainful activity since January 1,
2007, her amended alleged onset date. (20 C.F.R. §§ 404.1571, et seq., and
416.971, et seq.).

3.

The claimant has the following severe impairments: degenerative disc disease
and headaches. (20 C.F.R. §§ 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 416.926).

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5.

The claimant has the residual functional capacity to: stand for six hours of an
eight-hour day with intermittent sitting; frequently lift/carry twenty-five
pounds; occasionally lift fifty pounds; frequently climb ramps and stairs,
balance, stoop, kneel, reach, and crouch; occasionally climb ladders, ropes and
scaffolds and crawl. She is also frequently able to reach in all directions
bilaterally. See Exhibit 11F.

6.

The claimant is capable of performing past relevant work as a hair dresser and
a clerical worker. 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).

7.

The claimant has not been under a disability, as defined in the Social Security
Act, from January 1, 2007, through March 19, 2012. (20 C.F.R. §§ 404.1520(f)
and 416.920(f)).

[R. at 15-27].
V.

Discussion
At the first step of the sequential evaluation, the ALJ found that Plaintiff Harris

has not engaged in substantial gainful activity since January 1, 2007, her amended
alleged date of disability onset. [R. at 17]. At the second step, the ALJ found that
Plaintiff has degenerative disc disease and headaches which are “severe” impairments
within the meaning of the Social Security Regulations and that Plaintiff has anxiety
which the medical records show is a non-severe impairment. [R. at 17-18]. The ALJ
found at step three 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.
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Part 404, Subpart P, Appendix 1. [R. at 18]. At step four, the ALJ found that Plaintiff
has the RFC to stand for six hours of an eight-hour day with intermittent sitting;
frequently lift/carry twenty-five pounds and occasionally lift fifty pounds; frequently
climb ramps and stairs; frequently balance, stoop, kneel, reach, and crouch;
occasionally climb ladders, ropes and scaffolds and crawl; and frequently reach in all
directions bilaterally. The ALJ found that Plaintiff is capable of performing her past
relevant work as a hair dresser and a clerical worker which work does not require the
performance of work-related activities precluded by the claimant’s RFC and that she
can perform such work as it was actually and is generally performed. [R. at 18-21].
The ALJ therefore concluded that Plaintiff is not disabled. [R. at 21-22].
Plaintiff Harris argues that the ALJ’s decision should be reversed. [Doc. 13].
Plaintiff contends that the ALJ committed reversible error in analyzing her credibility
by construing her inability to afford additional pain treatment against her claims of
frequent headache and neck pain symptoms and that, although the ALJ found “a note
indicating that Ms. Harris’s headaches were helped with the use of Ultram and
Oxycodone[,]” the notes show that she was still having “daily headaches” and that her
doctors had at other times stated that medication was ineffective in controlling her
headaches. [Id. at 8-9]. Plaintiff’s second argument is that the ALJ committed
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reversible error by failing to even consider the side effects caused by Plaintiff’s
medications despite being discussed at the hearing. [Id. at 9]. The Commissioner
contends that the ALJ applied the proper legal standards and that the ALJ’s decision
is supported by substantial evidence. [Doc. 14].
A. Pain Testimony and Inability to Afford Treatment
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 20 C.F.R. §§ 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).

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“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)). The relevant
Social Security regulations provide that factors which will 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; SSR 96-7p. “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 (1986)).
The ALJ found that Plaintiff’s statements concerning the intensity, persistence
and limiting effects of her symptoms were not credible to the extent they were
inconsistent with the ALJ’s RFC assessment.

In support of that credibility

determination, the ALJ stated that Plaintiff had not required emergency treatment or
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inpatient hospitalization for degenerative disc disease and headaches, that her
treatment had been limited to primary care providers, and that, despite headaches
attributed to her cervical condition or tension, Plaintiff had “not sought additional
treatment for pain” such as physical therapy or treatment from a pain clinic. [R. at 19,
citing Exhibits 3F and 8F]. The ALJ concluded that Plaintiff’s “[o]verall . . .
conservative course of treatment is inconsistent with a level of severity that would
preclude the claimant from sustaining any work activity.” [R. at 19]. Plaintiff argues
that, in making those findings, the ALJ “construed lack of treatment against Ms.
Harris without fulfilling his duty to determine whether there was a justifiable reason”
for her not seeking additional treatment. [Doc. 13 at 6].
“When evaluating a claimant’s statements regarding [her] symptoms and their
functional effects, the ALJ may consider whether the level or frequency of treatment
is consistent with the level of complaints.” Beegle v. Social Sec. Admin., Comm’r,
482 Fed. Appx. 483, 487 (11th Cir. 2012) (citing Social Security Ruling (“SSR”) 967p). However, an ALJ “may not draw any inferences about an individual’s symptoms
and their functional effects from a failure to seek or pursue regular medical treatment
without first considering any explanations that the individual may provide, or other
information in the case record, that may explain infrequent or irregular medical visits
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or failure to seek medical treatment[,]” for example, an individual “may be unable to
afford treatment and may not have access to free or low-cost medical services.” SSR
96-7p. Plaintiff testified that she had been receiving treatment at several clinics
without insurance [R. at 51], but she argues that the record contains several reports of
her inability to afford further specialized treatment [Doc. 13 at 8, citing R. at 299, 317,
353, 414, 416].
The records cited by Plaintiff show that, on January 4, 2010, Dr. Martin noted
that Plaintiff’s headaches persisted and that, although she had a full work-up including
CTs and x-rays of her neck in the past, she had no finances for further testing in
January 2010. [R. at 299]. On March 10, 2010, Plaintiff complained to the
consultative physician, Dr. Bennett-Johnson, that she had hit her head on the
windshield in a motor vehicle accident fifteen years earlier and that a neurosurgeon
had found that Plaintiff’s main problem after the accident was “arthritis in the neck
and not a disc issue” for which she received chiropractic treatment and medication but
a “medical workup was never completed because of loss of insurance.” [R. at 317].
Between October and December 2011, Plaintiff’s treating physician at Medlink, Dr.
Abdulbaaqee, noted that the etiology of Plaintiff’s chronic tension headaches was
unclear after a negative MRI and prior workup and that Plaintiff had checked with
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Mercy Clinic and Good Samaritan which did not have a neurologist and was unable
to afford a workup by a neurologist. [R. at 412, 414, 416]. And a November 2010
note documents that Plaintiff was unable to get a full evaluation and treatment for a
uterine fibroid because she did not have insurance. [R. at 353].
The Commissioner contends that, even assuming Plaintiff did not have adequate
funds for treatment, the ALJ’s failure to discuss Plaintiff’s ability to pay is not
reversible error because the ALJ did not base his decision primarily on her failure to
obtain additional treatment and, instead, based his decision mainly on the existing
objective medical record evidence and reports by Plaintiff and her daughter regarding
Plaintiff’s activities. [Doc. 14 at 5-8]. “[W]hen an ALJ relies on noncompliance as
the sole ground for the denial of disability benefits, and the record contains evidence
showing that the claimant is financially unable to comply with prescribed treatment,
the ALJ is required to determine whether the claimant was unable to afford the
prescribed treatment.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003).
However, although an ALJ must consider evidence showing that a claimant is unable
to afford medical care before denying disability insurance benefits, “where the ALJ
does not base his decision significantly or solely on noncompliance [or, as in this case,
on a failure to pursue additional treatment for allegedly severe pain], the ALJ does not
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err by failing to consider the claimant’s inability to afford treatment.” Dereyes v.
Astrue, 2012 WL 4479581, at *12 (N.D. Ala. September 26, 2012); accord Beegle,
482 Fed. Appx. at 487. The court finds that, unlike Snyder v. Comm’r of Social Sec.,
330 Fed. Appx. 843 (11th Cir. 2009), cited by Plaintiff, the ALJ based his credibility
assessment of Plaintiff Harris’s pain testimony mainly on objective medical records
and other evidence and not primarily on Plaintiff’s failure to seek additional treatment
with a specialist. Compare Snyder, 330 Fed. Appx. 847-48.3
And substantial medical record evidence supports the following findings by the
ALJ which, in turn, support the ALJ’s credibility determination. Plaintiff had not
required emergency treatment or in-patient hospitalization for her degenerative disc
disease or headaches. [R. at 19]. Her 2007 medical records included an MRI of the
right hand which revealed only trace tendinitis and tendosynovitis, and x-rays of her
3

Burroughs v. Massanari, 156 F. Supp. 2d 1350 (N.D. Ga. 2001), another case
cited by Plaintiff, is also inapposite to Plaintiff’s case. In Burroughs, the ALJ found
that the plaintiff did not perceive herself as depressed and had not obtained treatment
from a mental health specialist which the ALJ construed as indicative of an absence
of significant illness; the court disagreed stating that Burrough’s failure to obtain
additional treatment could also be due to her obviously low economic status. Id. at
1364. Here, in contrast to Burroughs, Plaintiff perceives herself to be in pain and has
been obtaining treatment from a number of clinics; and, as discussed herein, while
Harris may not be able to afford specialized treatment, her failure to obtain such
treatment was not the ALJ’s primary reason for finding Plaintiff’s allegations and pain
testimony less than fully credible.
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cervical spine in 2007 in did not reveal any acute process or impingement of the
neural foramina at C6-7. [R. at 19, 281]. Plaintiff was noted to be very tender over
the cervical spine in September 2007 but reported that the pain in her neck and head
did not radiate into her arms, and Dr. Martin found no one-sided neurological
symptoms of any type. [Exhibit 3F; R. at 19-20, 304]. There was tenderness in
Plaintiff’s cervical paraspinal muscles when she saw Dr. Martin in April 2009 but not
over her cervical spine. [Exhibit 3F; R. at 20, 300]. Plaintiff did not see Dr. Martin
again until January 2010; she was tender in the back of her neck over her cervical
spine at that time, but neurological exam of the upper extremities was within normal
limits. [R. at 299]. In March 2010, Dr. Dianne Bennett-Johnson, a consultative
examiner, found a decreased range of motion in Plaintiff’s neck and shoulders, that
her cervical muscles were hypertrophic, and that Plaintiff complained of radiculopathy
to the right arm but that her grip was mildly decreased on the left. [Exhibit 4F; R. at
20, 317-19]. An x-ray revealed only degenerative changes in the cervical spine with
degenerative disc disease suspected at C5-6. [R. at 320]. Plaintiff saw Dr. BennettJohnson a second time, in November 2010, and x-rays of the lumbar spine showed no
significant abnormality, disc height was well preserved, and there were no vertebral
compression fractions. [Exhibit 8F; R. at 20, 239, 349]. Dr. Bennett-Johnson found
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that, while Plaintiff had a decreased ability to reach on the right [R. at 378 (Reaching
in all directions (including overhead) limited to “FREQ. ROM 135 RT and 145 LT”)],
Plaintiff was okay for ADLs involving, for example, use of a keyboard or sorting and
handling at or above the waist with a decreased ability on the right if at or above the
shoulder [R. at 352]. And Plaintiff’s 2011 treatment notes from Four Corners Primary
Care and Medlink were essentially normal physical examinations [R. at 20, citing
Exhibits 12F and 16F], which is supported by substantial record evidence. Plaintiff
reported to Four Corners Primary Care on February 1, 2011, that she had no neck
symptoms and no headache. [R. at 391-92]. She had no neck pain and no complaint
of headaches on February 17, 2011. [R. at 389-90]. She reported no headache and no
neck pain on March 24, 2011. [R. at 384]. In September and October 2011, Plaintiff’s
headaches were attributed to sinus symptoms. [R. at 20, 415, 418]. And Dr.
Abdulbaaquee reported in December 2011 that Plaintiff’s headaches were improved
with Ultram and Oxycodone. [R. at 20, 412].
Plaintiff argues that the medical record shows that she was still having “daily”
headaches in December 2011. [Doc. 13 at 9]. The record states, “headaches are still
occurring on daily basis; oxycodone caps helped, not tabs and ultram helps[,]” which
supports the ALJ’s finding that Ultram helped Plaintiff’s daily headaches. Plaintiff
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testified two months later, at the hearing, that Ultram did not help her headaches, and
she argues that doctors have noted that other medication was ineffective in controlling
her headaches. [Doc. 13 at 9, citing R. at 299 and 305]. The records cited by Plaintiff
show that Dr. Martin noted in 2010 that migraine medications were not effective for
Plaintiff’s headaches [R. at 299] and in July 2007 noted that Imitrex was not effective
but that Plaintiff did not have nausea associated with migraines [R. at 305]. Dr.
Martin had previously noted, on April 7, 2009, that Plaintiff’s headaches “clearly do
not have a migraine pattern” and are “probably muscular in origin.” [R. at 300]. And,
in January 2011, State Agency physician, Bettye Stanley, D.O., to whom the ALJ gave
significant weight, found that Plaintiff’s allegations of headaches and dizziness were
only partially credible because the severity of her alleged symptoms was not fully
consistent with the total medical and non-medical evidence of record which shows that
Plaintiff complained of headaches for ten years and had seen a number of doctors and
that “all had told her that it was tension headaches.” [Exhibit 11; R. at 20, 377].
The ALJ also based his credibility finding on other record evidence of
Plaintiff’s activities as described by Plaintiff to Dr. Bennett-Johnson in March and
November 2010 (Exhibits 4F and 8F) and by her daughter, Lakendra King, in
November 2010 (Exhibit 10E). [R. at 20]. Plaintiff was doing light cleaning and
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laundry and ironing (a little at a time). She had no problem with her personal care.
She was driving by herself once a month to do food shopping, and she was going to
church once a week without needing someone to accompany her. [R. at 373]. At the
hearing in February 2012, Plaintiff testified that she still drove once or twice a week
to the store or to doctor appointments, that she drove to Dr. Abdulbaaquee’s office for
appointments which was twenty minutes away, and that she drove to her daughter’s
house “every now and then” in Winder and would sometimes go with her daughter to
church in Gainesville on Sunday. [R. 51-54]. The ALJ found that Plaintiff’s activities
are not limited to the extent one would expect given her complaints of disabling pain.
And the court agrees.
Plaintiff has the burden of proving that her impairment prevents her from
performing her past relevant work. Doughty, 245 F.3d at 1278. Plaintiff was
responsible for producing evidence in support of her claim and pain testimony. See
20 C.F.R. § 416.912(a) (“[Y]ou have to prove to us that you are . . . disabled. This
means that you must furnish medical and other evidence that we can use to reach
conclusions about your medical impairment(s).”); 20 C.F.R. § 416.912(c) (“Your
responsibility. You must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say you are disabled.”). The
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court finds that Plaintiff’s pain testimony is contradicted by the objective medical
record and other record evidence concerning her daily activities as stated in the ALJ’s
decision. Substantial medical record evidence and other evidence supports the ALJ’s
credibility determination and demonstrates that the ALJ applied the proper standard
in reviewing Plaintiff’s pain testimony. See Walker v. Bowen, 826 F.2d 996, 1004
(11th Cir. 1987). And, because the ALJ based his decision mainly on the objective
medical records and other record evidence produced by Plaintiff, the ALJ did not err
by not discussing Plaintiff’s financial inability to afford additional treatment. See
Dereyes, 2012 WL 4479581, at *12.
B. Discussion of Medication Side Effects
Plaintiff argues that the ALJ had a duty to elicit testimony and make findings
regarding the effect of her prescribed medications on her ability to work [Doc. 13 at
9, citing Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981)] and contends that
the ALJ failed to consider the side effects of her medication despite substantial
discussion at the hearing that medication causes her to be forgetful and that Ultram,
specifically, causes her to need to lie down and sleep daily [Doc. 13 at 10, citing R.
at 39, 42 and 44]. In Cowart, the court held that the ALJ had a heightened duty to
develop the facts of the case because the claimant was unrepresented and had not
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waived her right to counsel. 662 F.2d at 735. Plaintiff Harris, however, was
represented by counsel at the hearing. The ALJ had an obligation to develop the
record and to consider the type, dosage, effectiveness and side effects of any
medications when making a determination of disability.

See 20 C.F.R. §§

404.1529(c)(3)(iv), 416.929(c)(3)(iv). But Plaintiff “has the burden of proving
disability . . . [and] the burden of submitting evidence to support her claim that the
side effects of her medication make her unable to work.” Bennett v. Astrue, 2013 WL
4433764, at *6 (N.D. Ala. August 16, 2013) (citing Ellison, 355 F.3d at 1276; Walker
v. Comm’r. of Soc. Sec., 404 Fed. Appx. 362, 366 (11th Cir. 2010)).

The

Commissioner argues that Plaintiff failed to prove that her alleged side effects
significantly limit her ability to work. [Doc. 14 at 10].
Plaintiff testified, “I feel I’m disabled because I’m in so much pain all the time
and also I take medication all the time and it keeps me up through the night and
dysfunctional. And it keeps me where mentally and emotionally I’m not able to
function in society like I should.” [R. at 36]. The record shows that Plaintiff was
prescribed Ultram in September 2011. [R. at 418-19]. At the hearing in February
2012, she testified, “I’ve taken several which don’t work and . . . [i]t puts me to sleep
. . . .” [R. at 39]. Plaintiff testified that she does not cook often because she is
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sometimes forgetful.4 [R. at 42 and 47 (“I think its because of . . . the medication too
that I forget a lot, you know, concentration.”)]. Asked to describe “all the side effects”
of her medication, she described dizziness, nervousness, tremors, and being off
balance and dropping things. [R. at 42].
Plaintiff argues that her side effects from medication are “severe” and,
specifically, that “a finding consistent with her allegations would support her inability
to maintain concentration and her inability to perform work at any exertion level.”
[Doc. 13 at 10]. However, the records cited by Plaintiff do not show that she reported
a problem with concentration as a side effect of medication. Plaintiff was prescribed
Ultram in September 2011, with the addition of Oxycodone in October 2011. [R. at
19, 414, 416, 419]. According Dr. Abdulbaaquee’s December 2011 treatment notes,
Plaintiff reported no memory loss, and there is no mention in the notes of medication
side effects. [R. at 412-13]. Plaintiff occasionally reported dizziness or feeling
nervous in the past. [R. at 164, 214, 318, 354, 390-94, 413]. For example, Dr. Pirani
noted that Plaintiff stopped amoxicilline (an antibiotic) because she felt dizzy [R. at
391] and that, as she was being weaned off of anxiety medication, Plaintiff felt dizzy
[R. at 392]. But dizziness was noted only in the neuro/psychiatric portion of the
4

The court notes that Plaintiff has a gas stove. [R. at 41].
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December 2011 exam notes [R. at 413], and Plaintiff denied such symptoms during
other exams in 2011 [R. at 384, 387-88, 395]. For these reasons and authority, the
court finds that the medical record does not document medication side effects which
would significantly limit Plaintiff’s ability to work and that Plaintiff’s report to the
ALJ regarding the side effects of her medication was out of proportion to the reports
that she made to her medical providers. The ALJ therefore did not err when he did not
discuss work-related limitations resulting from medication side effects.
For the foregoing reasons and cited authority, the court finds that the ALJ’s
decision was supported by substantial evidence and based upon proper legal standards.
It is, therefore, ORDERED that the Commissioners decision be AFFIRMED.
The Clerk is DIRECTED to enter judgment in favor of the Commissioner.
SO ORDERED, this 10th day of March, 2015.

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