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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ALLISON STOKER-BONANNO,

Plaintiff,

v. Case No: 5:10cv25/SPM/MD

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

_______________________________________________________________________

REPORT AND RECOMMENDATION

This case has been referred to the undersigned magistrate judge pursuant to the

authority of 28 U.S.C. § 636(b) and Rules 72.1(A), 72.2(D) and 72.3 of the local rules of

this court relating to review of administrative determinations under the Social Security Act

and related statutes. It is now before the court pursuant to 42 U.S.C. § 405(g) of the Social

Security Act for review of a final determination of the Commissioner of Social Security

(Commissioner) denying claimant Stoker-Bonanno’s application for Supplemental Security

Income benefits under Title XVI of the Act.

Upon review of the record before this court, it is the opinion of the undersigned that

the findings of fact and determinations of the Commissioner are supported by substantial

evidence; thus, the decision of the Commissioner should be affirmed.
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PROCEDURAL HISTORY

Ms. Stoker-Bonnano filed an application for benefits claiming an onset of disability

as of March 28, 2006. The application was denied initially and on reconsideration, and Ms.

Stoker-Bonnano requested a hearing before an administrative law judge (ALJ). A hearing

was held on April 7, 2008 at which Ms. Stoker-Bonnano was represented by counsel and

testified. A vocational expert also testified. The ALJ entered an unfavorable decision (tr.

10-15) and Ms. Stoker-Bonnano requested review by the Appeals Council without

submitting additional evidence. The Appeals Council declined review (tr. 1-5). The

Commissioner has therefore made a final decision, and the matter is subject to review in

this court. Ingram v. Comm’r of Soc. Sec. Admin, 496 F.3d 1253, 1262 (11 Cir. 2007); th

Falge v. Apfel, 150 F.3d 1320 (11 Cir. 1998). This timely appeal followed. th

FINDINGS OF THE ALJ

Relative to the issues raised in this appeal, the ALJ found that Ms. Stoker-Bonanno

had not engaged in substantial gainful activity since March 28, 2006; that she had severe

impairments of (1) a history of congenital spina bifida, (2) lumbar degenerative disc

disease, and (3) scoliosis, but that she did not have an impairment or combination of

impairments that met or medically equaled one of the listed impairments in 20 C.F.R., Part

404, Subpart P, Appendix 1; that she had the residual functional capacity to perform at the

full range of sedentary work; that she was unable to perform any past relevant work as an

operating room scheduler or receptionist; that she was 31 years old with a high school

education and proficiency in the English language, that there were jobs that exist in

significant numbers in the national economy that she could perform; and that she was not

under a disability as defined in the Act.

STANDARD OF REVIEW

In Social Security appeals, this court must review de novo the legal principles upon

which the Commissioner's decision is based. Moore v. Barnhart, 405 F.3d 1208, 1211

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(11 Cir. 2005) (citing Chester v. Bowen, 792 F.2d 129, 131 (11 Cir. 1986)). There is no th th

presumption that the Commissioner followed the appropriate legal standards in deciding

a claim for benefits, or that the legal conclusions reached were valid. Miles v. Chater, 84

F.3d 1397, 1400 (11 Cir. 1996); Lewis v. Barnhart, 285 F.3d 1329, 1330 (11 Cir. 2002). th th

Failure to either apply the correct law or to provide the reviewing court with sufficient

reasoning for determining that the proper legal analysis has been conducted mandates

reversal. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11 Cir. 2007). th

The court must also determine whether the ALJ’s decision is supported by

substantial evidence. Moore, 405 F.3d at 1211 (citing Crawford v. Comm'r of Soc. Sec.,

363 F.3d 1155, 1158-59 (11 Cir. 2004)). Even if the proof preponderates against the th

Commissioner’s decision, if supported by substantial evidence, it must be affirmed. 

Ingram, 496 F.3d at 1260; Miles, 84 F.3d at 1400. Substantial evidence is more than a

scintilla but less than a preponderance, and encompasses such relevant evidence as a

reasonable person would accept as adequate to support a conclusion. Moore, 405 F.3d

at 1211 (citation omitted). In determining whether substantial evidence exists, the court 

must view the record as a whole, taking into account evidence favorable as well as

unfavorable to the Secretary's decision. Foote v. Chater, 67 F.3d 1553, 1560 (11 Cir. th

1995). This limited review precludes deciding the facts anew, making credibility

determinations, or re-weighing the evidence. Moore, 405 F.3d at 1211 (citing Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11 Cir.1983); Miles v. Chater, 84 F.3d 1397, 1400 (11 th th

Cir. 1996). Findings of fact of the Commissioner that are supported by substantial

evidence are conclusive. 42 U.S.C. § 405(g); Ingram, 496 F.3d at 1260.

A disability is defined 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). To qualify as a disability the

physical or mental impairment must be so severe that the claimant is not only unable to do

his previous work, “but cannot, considering his age, education, and work experience,

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engage in any other kind of substantial gainful work which exists in the national economy.” 

42 U.S.C. § 423(d)(2)(A). 

The social security regulations establish a five-step evaluation process to analyze

claims for both SSI and disability insurance benefits. See Moore, 405 F.3d at 1211; 20

C.F.R. § 416.920 (2009) (five-step determination for SSI); 20 C.F.R. § 404.1520 (2009)

(five-step determination for DIB). A finding of disability or no disability at any step renders

further evaluation unnecessary. See 20 C.F.R. § 416.920; 20 C.F.R. § 404.1520. The

steps are:

1. Is the individual currently engaged in substantial gainful activity?

2. Does the individual have any severe physical or mental impairment

that meets the duration requirement?

3. Does the individual have any severe impairments that meet or equal

those listed in Appendix 1 to subpart P of 20 C.F.R. Part 404

and meet the duration requirement?

4. Considering the individual’s residual functional capacity, can the

individual perform past relevant work? 

5. Can the individual perform other work given the individual’s residual

functional capacity, age, education and work experience? 

(Id.)

These regulations place a very heavy burden on the claimant to demonstrate both

a qualifying impairment or disability and an inability to perform past relevant work. Moore,

405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11 Cir.1985)). If the th

claimant establishes such an impairment, the burden shifts to the Commissioner at step

5 to show the existence of other jobs in the national economy which, given the claimant’s

impairments, the claimant can perform. Doughty v. Apfel, 245 F.3d 1274, 1278 (11 Cir. th

2001); Allen v. Bowen, 816 F.2d 600, 601 (11 Cir. 1987). If the Commissioner carries this th

burden, claimant must prove that she cannot perform the work suggested by the

Commissioner. Doughty, 245 F.3d at 1278 n.2; Hale v. Bowen, 831 F.2d 1007, 1011 (11th

Cir. 1987). 

Case No: 5:10cv25/SPM/MD
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PLAINTIFF’S MEDICAL HISTORY

The transcript in this case begins with an entry dated August 30, 1994 when Ms.

Stoker-Bonanno was seen by Michael Reed, M.D., an internist, for examination postsurgery for the re-section of a congenital division in her spinal column. She also had

congenital hip dysplasia with unequal leg lengths. On examination there was left lumber

scoliosis, leg length discrepancy, and complaints of back pain, but her reflexes were brisk

and her motor exam was normal. There was no evidence of any structural problems of the

neck and thoracic spine. The entry in the record does not say whether any treatment was

offered at that visit (tr. 176). 

The next entry is dated nearly two years later, April 23, 1996, when Ms. StokerBonanno returned to Dr. Reed complaining of mid thoracic pain since she had had a baby. 

The leg length discrepancy was still present and there was mild thoracic scoliosis. There

was no pain on range of motion. X-rays did not disclose anything previously unknown and

Dr. Reed recommended physical therapy (tr. 176). 

The next entry is dated January 31, 2000, almost four years after the previous visit. 

On that date Dr. Reed noted that Ms. Stoker-Bonanno was “seeking disability.” (tr. 174) 

On examination there was normal cervical lordosis, normal thoracic kyphosis, and normal

lumbar lordosis. The pelvis was uneven. There were complaints of pain in the

thoracolumbar spine and Ms. Stoker-Bonanno walked with a limp. She was able to move

while standing in all planes without complaints. Straight leg raising was normal in the

sitting position and while supine. Dr. Reed’s impression was lumbar disc disease with

radiculitis and leg length discrepancy with scoliosis. He ordered an MRI of the lumbar

spine with follow up (tr. 173-174).

The next entry in the record is dated August 29, 2001 when Ms. Stoker-Bonanno

was seen by Cory Gaiser, D.O., an orthopedic surgeon, for mid and low back pain with

radiation into the left leg. Other than the previously noticed scoliosis and leg length

discrepancy, the physical examination was essentially normal. Dr. Gaiser indicated that

he would treat conservatively with anti-inflammatories, Flexoril and Vicodin (tr. 217-218). 

Ms. Stoker-Bonanno returned to Dr. Gaiser on October 19, 2001 complaining of increased

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leg pain. Physical examination was normal and Dr. Gaiser assessed lumbar sacral sprainstrain with left leg radiculopathy, scoliosis, and pelvic tilt. He prescribed a Medrol dose

pack and return in two weeks (tr. 215). An MRI of the lower spine was done on October

26, 2001. The radiologist’s impression was of a stable appearance compared to a 2001

study with evidence for spina bifida, scoliotic deformity of the spine and either a clump of

nerve roots forming two separate bundles or (less likely) a congenital division of the spine. 

The condition was stable (tr. 221).

Ms. Stoker-Bonanno returned to Dr. Gaiser on November 9, 2001 essentially

unchanged. Her Flexeril was changed to Soma 350 and she was to follow up in four

weeks (tr. 213). She returned on March 6, 2002 without significant improvement. Low

back pain was intermittent 3-4 times per week. Dr. Gaiser prescribed a shoe lift and

started her on Daypro 600 mg. and Vicoprofen (tr. 211).

On December 1, 2005, almost three years after she had last seen Dr. Gaiser, Ms.

Stoker-Bonanno went to the emergency room after having fallen. Her low back was

tender, straight leg raising was positive but the neurological exam was normal. She was

given medication and released (tr. 177-186).

Ms. Stoker-Bonanno’s claimed onset date was March 28, 2006, fully 12 years after

her first visit to Dr. Reed, four years after her last visit with Dr. Gaiser, and four months

after her visit to the emergency room. There is no history of any medical treatment at or

near the time of her claimed onset date. 

She next saw a physician for treatment nearly a year later, on February 26, 2007

when she was examined by David Dietrich, M.D., an orthopedic surgeon. She indicated

that she had increasing leg pain and knee pain over the previous two to three months. She

went to the emergency room on February 3, 2007 (this visit is not in the transcript) and said

that her left leg “went out” two and a half months earlier (tr. 210). She indicated that her

pain was aggravated by walking, standing, or prolonged sitting. On examination there was

pain when the patella was compressed but there was no swelling or warmth. She had tight

leg muscles and was tender to the inside of the knee joint. X-rays were unremarkable. Dr.

Dietrich’s assessment was left knee pain from bursitis and medial hamstring tendonitis. 

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He recommended a brace and a physical therapy program focused on hamstring stretching

and quad development. He also recommended vocational rehabilitation. She was given

Lortab and Naproxen and told to return in a month (tr. 209-210). There is no record that

she returned. 

On November 18, 2007, Dr. Dietrich filled out a Clinical Assessment of Pain, in

which he indicated that Ms. Stoker-Bonanno would suffer from pain to the point that it

would be distracting from adequate performance of daily work, that physical activity would

increase that pain, and that drug side effects would be expected to be severe and to limit

her effectiveness. He further noted that she could lift only ten pounds occasionally and five

pounds frequently, could sit for eight hours in an eight hour workday and stand or walk for

one hour. She would need an assistive device to ambulate and she was limited in pushing,

pulling and bending or stooping (tr. 224-225).

On March 12, 2008, she returned to Dr. Reed, whom she had not seen for more

than eight years, complaining of pain and stiffness in her low back and mid back and pain

in both legs. Physical examination was essentially normal other than for tight hamstrings

and positive straight leg raising on the left at 75o. Dr. Reed’s impression was lumbar

degenerative disc disease with degenerative lumbar scoliosis and radiculitis. He

recommended an MRI but there is no record that one was done. 

The only other medical record in the transcript is from an examination for the state

agency performed by Kris Lewandowski, M.D., an internist, on July 14, 2006. Dr.

Lewandowski was told that Ms. Stoker-Bonnano had spinal surgery at age six and that she

now had constant pain in her low back, which radiated into the left leg and all of her toes. 

The pain covered her entire leg and was sharp and stabbing. On physical examination,

her arms were normal. There was some discrepancy in calf size on the right and she was

unable to rotate her right ankle laterally. There was decreased range of motion in her right

hip. There was no central nervous system deficit and there was normal straight leg raising. 

Dr. Lewandowski’s impression was that Ms. Stoker-Bonanno had an inborn defect of spina

bifida surgically repaired at age six, that she had mild scoliosis, her right leg was shorter

than the left with some muscle atrophy at the calf and what appeared to be partial paralysis

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of the lower left leg, and that she walked with a limp and needed an orthopedic shoe. 

“Otherwise, her examination [was] unremarkable.” (Tr. 188).

DISCUSSION

Ms. Stoker-Bonnano argues that the ALJ erred in failing to credit her testimony

concerning her pain and in failing to discount her subjective complaints of pain

appropriately, and that she was disabled from her onset date. The Commissioner argues

that the ALJ’s findings were supported by substantial evidence and must, therefore, be

sustained. The issue thus presented is whether the ALJ’s decision that Ms. StokerBonnano was not disabled, in light of her physical condition, age, education, work

experience, and residual functional capacity, is supported by substantial evidence in the

record.

Ms. Stoker-Bonnano recounts her medical history at length, and then attempts to

show that the ALJ applied the wrong legal standard to her claim, or incorrectly applied the

correct standard. Either way, her claim must fail. 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 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 Hand test, as follows: 1

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. 

Hand v. Bowen, 793 F.2d 275, 276 (11 Cir.1986) (the case originally adopting the three-part

1 th

pain standard).

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Wilson v. Barnhart, 284 F.3d 1219, 1225 (11 Cir. 2002) (citing Holt v. Sullivan, 921 F.2d th

1221, 1223 (11 Cir. 1991); Adamo v. Commissioner of Social Sec., 365 Fed. Appx. 209,

th

2010 WL 476691, *3+ (11 Cir. 2010) (quoting Wilson) (Table, text in WESTLAW); Elam th

v. Railroad Retirement Bd., 921 F.2d 1210, 1216 (11 Cir. 1991). th

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, supra, 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. 

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 (11 Cir. 1995)(citing Marbury th

v. Sullivan, 957 F.2d 837, 839 (11 Cir. 1992)); Walker v. Bowen, 826 F.2d 996, 1003 (11 th th

Cir. 1987); Hurley v. Barnhart, 385 F.Supp.2d 1245, 1259 (M.D.Fla. 2005). However, the

presence or absence of evidence to support symptoms of the severity claimed is a factor

that can be considered. Marbury, 957 at 839-840; Tieniber v. Heckler, 720 F.2d 1251,

1253 (11 Cir. 1983). th

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

v. Bowen, 786 F.2d at 1054. Where he fails to do so, the Eleventh Circuit has stated that

it would hold as a matter of law that the testimony is accepted as true. Holt v. Sullivan, 921

F.2d at 1223; MacGregor v. Bowen, 786 F.2d at 1054. 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 (11 Cir. 2005). The th

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

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conclude that the ALJ considered the claimant’s medical condition as a whole. Dyer, 395

F.3d at 1210 (11 Cir. 2005) (internal quotations and citations omitted). And of course, the th

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. Department of Health

and Human Services, 941 F.2d 1529, 1532 (11 Cir. 1991); Hurley, 385 F.Supp.2d at th

1259. 

Underlying the Hand standard is the need for a credibility determination concerning

a plaintiff’s complaints of pain. Those 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 v. Schweiker, 655

F.2d 645, 649 (5 Cir. 1981) (holding that the ALJ must resolve “the crucial subsidiary fact th

of the truthfulness of subjective symptoms and complaints”). People with objectively 2

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, supra, 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 (11 Cir. 1984). Thus, a physician may be told by a patient

th

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, the medical record starts with a complaint of low back pain in August, 1994,

nearly twelve years before Ms. Stoker-Bonnano says she became disabled. Over those

Decisions of the United States Court of Appeals for the Fifth Circuit decided prior to September 30, 2

1981 are binding precedent in the Eleventh Circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11 Cir.1981) (en th

banc).

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years there were sporadic visits to doctors, but her childhood surgery for spina bifida was

stable. Then in September 2005 she fell. She went to the emergency room complaining

of low back pain. The physician at the emergency room noted tenderness in Ms. StokerBonanno’s low back. On examination her straight leg raising was positive but she was

neurologically intact. She had no more medical contact until seven months later when she

was examined by Dr. Lewandowski on referral by the state agency. Dr. Lewandowski’s

report was that Ms. Stoker-Bonnano’s back was not tender and she was normal on

examination except for a limp caused by her long-standing leg length discrepancy.

She saw Dr. Dietrich once, on February 26, 2007, and nine months later, in

November 2007, Dr. Dietrich filled out a form (with no record that he had sen Ms. StokerBonnano since the previous February), stating in effect that she was unable to perform the

functions of work. In March 2008 Ms. Stoker-Bonnano saw Dr. Reed, who had treated her

in 1994 and 1996. Dr. Reed’s examination was fairly benign, and he diagnosed

degenerative disc disease. 

The ALJ did not credit Ms. Stoker-Bonnano subjective complaints of pain for several

reasons. He stated that in reaching his decision he considered Ms. Stoker-Bonanno’s

testimony, the medical evidence and the medical opinions. He examined the opinion of

Dr. Dietrich and found it entitled to little weight, noting that the limitations in the assessment

of pain form were not supported by the physician’s notes, observations or treatment

records (tr. 14). Dr. Reed’s report was fairly benign, and Dr. Lewandowski reported few,

if any, limitations. In short, other than Dr. Dietrich, who saw Ms. Stoker-Bonnano only once

and then filled out a form nine months later without having seen her again, there was

nothing in the record to support a finding that Ms. Stoker-Bonnano’s subjective complaints

of pain were so severe as to be disabling. The ALJ did not fully credit Ms. StokerBonanno’s subjective complaints of pain and he explained why he did not. It was entirely

within his realm of judging for him to do so. Ms. Stoker-Bonnano has not shown error, and

she is not entitled to reversal.

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Accordingly, it is respectfully RECOMMENDED that the decision of the

Commissioner be AFFIRMED, that this action be DISMISSED and that the clerk be

directed to close the file. 

At Pensacola, Florida this 6 day of January, 2011. th

/s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court’s internal use only, and does not control. 

A copy of any objections shall be served upon any other parties. Failure to object may limit

the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v.

Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 5:10cv25/SPM/MD