1

 On November 30, 2009 the parties filed an “Amended Motion for Waiver of Oral

Argument” (doc. 20) which corrects a clerical error in the style of the case. No other substantive

change is apparent.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

L.J. JACKSON, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 09-331-N

)

MICHAEL J. ASTRUE , Commissioner )

of Social Security, )

)

Defendant. )

ORDER 

On November 25, 2009, the parties filed a joint motion for waiver of oral

argument. (Doc. 18)1

 Thereafter, on December 10, 2009, the parties filed a consent to

jurisdiction by a United States Magistrate Judge. (Doc. 21) On January 5, 2010, this

action was referred to the undersigned to conduct all proceedings and order the entry of

judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Doc. 22) Upon

review of the briefs of the parties and the record as a whole, the undersigned finds that

this appeal is due to be and is hereby DENIED.

Legal Standard

A limited scope of judicial review applies to a denial of Social Security benefits by

the Commissioner. Specifically, judicial review of the administrative decision is limited

to three questions: (1) whether the proper legal standards were applied; (2) whether there

Case 2:09-cv-00331-N Document 23 Filed 01/22/10 Page 1 of 9
was substantial evidence to support the findings of fact; and (3) whether the findings of

fact resolved the crucial issues. Washington v. Astrue, 558 F.Supp.2d 1287, 1296

(N.D.Ga. 2008); Fields v. Harris, 498 F.Supp. 478, 488 (N.D.Ga.1980). This Court may

not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the

Commissioner. If substantial evidence supports the Commissioner's factual findings and

the Commissioner applies the proper legal standards, the Commissioner's findings are

conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir.1997); Barnes v.

Sullivan, 932 F.2d 1356, 1358 (11th Cir.1991); Martin v. Sullivan, 894 F.2d 1520, 1529

(11th Cir.1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.1987); Hillsman v.

Bowen, 804 F.2d 1179, 1180 (11th Cir.1986); Bloodsworth v. Heckler, 703 F.2d 1233,

1239 (11th Cir.1983). “Substantial evidence” means more than a scintilla, but less than a

preponderance. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion and it must be enough to justify a refusal to direct a

verdict were the case before a jury. Richardson v. Perales, 402 U.S. 389 (1971); Hillsman,

804 F.2d at 1180; Bloodsworth, 703 F.2d at 1239. “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 [Commissioner's] decision.” Chester v. Bowen,

792 F.2d 129, 131 (11th Cir.1986). Even where there is substantial evidence to the

contrary of the ALJ's findings, the ALJ decision will not be overturned where “there is

substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d

227, 230 (11th Cir.1991). In contrast, review of the ALJ's application of legal principles

is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir.1995); Walker, 826 F.2d at

Case 2:09-cv-00331-N Document 23 Filed 01/22/10 Page 2 of 9
999.

Facts

Plaintiff, L.J. Jackson, was born on September 6, 1955. He claims that he became

disabled on or about March 15, 2005. He has not engaged in substantial gainful

employment since that time. His past relevant work includes employment as a truck

driver and a farm hand. 

On June 29, 2005, Mr. Jackson was seen by James Colley, M.D., for a consultive

examination at the request of the state agency. At that time, Claimant complained of pain

in his right knee, lower back, and arthritis of the shoulders. He reported that he smoked

one-half pack of cigarettes daily and drank a pint of alcohol per day. He weighed 284

pounds, his blood pressure was 200/114 and his pulse was 104. Examination of his back

revealed some mild diffuse tenderness, some limited range of motion, a normal lordotic

curve without paraveterbral muscle spasms, and negative straight leg raising.

Examination of his shoulders reveled some pain with motion, but good range of motion

without crepitus. Examination of his knees revealed good bilateral range of motion, but

moderate pain on range of motion of the right knee, and some tenderness on the medial

aspect of the right knee. Neurological examination revealed normal strength of the upper

and lower extremities, normal grip strength, normal sensation, and good muscle bulk and

tone. X-rays of the lumbar spine and knees were normal. Dr. Colley assessed moderate

degenerative joint disease of the right knee, mild osteoarthritis of the left knee, mild

degenerative disc disease of the lumbosacral spine, obesity, untreated hypertension, and

mild osteoarthritis of the shoulders. He also completed a Medical Source Statement and

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determined that Plaintiff could stand/walk 4 to 6 hours in an eight-hour workday taking

breaks every 30 to 45 minutes; sit for about six hours taking routine breaks; and

occasionally lift 20 pounds and frequently lift 10 pounds.

Claimant’s next medical records in the Social Security file are dated January 5,

2007. Claimant sought treatment from the Rural Health Medical Program (“RHMP”) for

pain in his knees, shoulders, and hands. His weight was 266 pounds, his blood pressure

190/102, and his pulse was 68. The physical examination and blood tests were normal. 

He was diagnosed with hypertension and osteoarthritis. No limitations were assessed to

his physical abilities, and he was prescribed no pain medication.

On April 17, 2007, claimant returned to the RHMP with complaints of left knee

pain, and needing a refill on his blood pressure medication. His weight was 275 pounds,

his blood pressure was 178/110, and his pulse was 66. No limitations were assessed and

no pain medication prescribed.

On September 26, 2007, claimant saw Glenton Davis, M.D., who assessed

claimant with moderately severe osteoarthritis and hypertension, and recommended a

cane for assistance with walking and an over-the-counter medication, Tylenol arthritis

pain formula, for claimant’s pain. Dr. Davis did not assess any functional limitations.

Analysis

Plaintiff makes the following claims in this appeal: (1) the ALJ’s assessment of

plaintiff’s Residual Functional Capacity is not supported by substantial evidence and

violates S.S. Ruling 96-8p, and (2) the ALJ failed to issue a credibility finding that

complied with Eleventh Circuit precedent and S.S. Ruling 96-7p. The court will address

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2

 Plaintiff used the cane at the consultive examination in 2005. A physician in 2007

recommended the use of a cane.

3

 Claimant’s attorney argues that the doctor’s recommendation of a cane in 2007 is

indicative of a greater level of limitation than when Dr. Colley examined him in 2005. The court

disagrees, and notes that, even if such a possible inference could be reasonably made from that

limited evidence, the ALJ’s decision need only be supported by substantial evidence.

each of claimant’s arguments in turn.

1. ALJ’s assessment of plaintiff’s Residual Functional Capacity 

Claimant first alleges that pain from various physical conditions limits his ability

to perform most job functions. The ALJ, relying in significant part on a Consultive

Examination by Dr. Colley shortly after claimant filed his disability and SSI claims,

found that claimant was restricted due to his condition from performing his prior relevant

work as a truck driver or farm worker. Dr. Colley found that “claimant [can] stand/walk

4-6 hours in an eight hour day taking breaks every 30-45 minutes. He [can] sit for about

six hours taking routine breaks. He uses a self-prescribed2

 single-pointed cane. He [can]

lift/carry 20 pounds occasionally and 10 pounds frequently. He ]can] frequently bend,

occasionally stoop, and occasionally partially crouch. He should not kneel or crawl. He

[can] climb a short flight of steps. He [can] pull 20 pounds of pressure occasionally and

10 pounds frequently. There are no manipulative limitations and he communicate[s]

effectively.” The ALJ appears to have adopted these findings. There is no other medical

evidence in the record which indicates a different or greater limitation.3

 As discussed

below, the ALJ’s credibility determination concerning claimant’s self-reported symptoms

and resulting limitations is adequate. Further, the ALJ’s determination of claimant’s

residual functional capacity is supported by substantial evidence in the record.

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The ALJ had a Vocational Expert (“VE”) at the hearing, and questioned him about

the existence of jobs based on the claimant’s residual functional capacity and such other

factors as his age and education. The VE found that there were several jobs available in

adequate numbers in the economy. Based on this finding, the ALJ’s determination that

claimant was not disabled is proper and is supported by substantial evidence.

2. ALJ’s compliance with Eleventh Circuit precedent and S.S. Ruling 96-7p.

Claimant next argues that the ALJ failed to issue a credibility finding that

complied with Eleventh Circuit precedent and S.S. Ruling 96-7p. SSR 96-7p describes

how the ALJ must consider evidence of subjective symptoms, such as pain, and the

credibility of the claimant. Plaintiff challenges the ALJ’s compliance with the test

established in that ruling and used with stylistic modifications in the Eleventh Circuit. 

See Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). 

The Secretary must consider a claimant’s subjective testimony of

pain if she finds evidence of an underlying medical condition, and either (1)

objective medical evidence to confirm the severity of the alleged pain

arising from that condition, or (2) that the objectively determined medical

condition is of a severity that can reasonably be expected to give rise to the

alleged pain. ... Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991),

requires that an ALJ apply a three part “pain standard” when a claimant

attempts to establish disability through his or her own testimony of pain or

other subjective symptoms.

The pain standard requires (1) evidence of an underlying medical

condition and either (2) objective medical evidence that confirms the

severity of the alleged pain arising from that condition or (3) that the

objectively determined medical condition is of such a severity that it

can be reasonably expected to give rise to the alleged pain.

921 F.2d at 1223. A claimant's subjective testimony supported by medical

evidence that satisfies the pain standard is itself sufficient to support a

finding of disability. 

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4

 When evaluating a claimant's subjective symptoms, the ALJ must consider such

things as: (1) the claimant's daily activities; (2) the nature and intensity of pain and other

symptoms; (3) precipitating and aggravating factors; (4) effects of medications; and (5)

treatment or measures taken by the claimant for relief of symptoms. See 20 C.F.R. §

404.1529(c)(3).

5

 The ALJ considered the possibility that claimant was unable to afford medical care, but 

 ultimately rejected that notion based on claimant’s own testimony that he afforded himself 1⁄2 a

pack of cigarettes and a pint of alcohol on a daily basis. 

Id. at 1560-61 (internal citations omitted).

The undersigned finds that the ALJ complied with applicable authority in

addressing the claimant’s reports of pain. Specifically, the ALJ found that an underlying

medical condition existed which could be expected to cause some level of pain. However,

the claimant presented very limited medical evidence, and that evidence did not give

much support to claimant’s complaints. The ALJ also considered, but ultimately rejected,

plaintiff’s testimony concerning his pain.4

In making his credibility determination, the ALJ also followed the procedures of

SSR 96-7p. The ALJ looked at the lack of medical evidence, particularly the lack of

evidence that claimant had sought medical care for his conditions or medication for his

allegedly debilitating pain.5

 The Claimant testified that his pain was usually an 8 on a

scale of 10, with occasional levels of 10; he stated that he could stand for fifteen to twenty

minutes and could sit for no more than approximately 30 minutes at a time, and that he

lay down for three to four hours every day. He said that he smoked half a pack of

cigarettes and drank a pint of alcohol each day, but remained largely house-bound unless

he went to his friend’s house.

Case 2:09-cv-00331-N Document 23 Filed 01/22/10 Page 7 of 9
However, claimant did not seek medical care for two years after he claimed to

have become disabled, and sought little care thereafter. He did not seek or obtain pain

medication or other treatment for the pain or the underlying conditions, other than the

high blood pressure, and only occasionally took an over-the-counter pain reliever such as

Tylenol for the discomfort. 

In general, a longitudinal medical record demonstrating an individual's

attempts to seek medical treatment for pain or other symptoms and to

follow that treatment once it is prescribed lends support to an individual's

allegations of intense and persistent pain or other symptoms for the

purposes of judging the credibility of the individual's statements. ... On the

other hand, the individual's statements may be less credible if the level or

frequency of treatment is inconsistent with the level of complaints, or if the

medical reports or records show that the individual is not following the

treatment as prescribed and there are no good reasons for this failure.

However, the adjudicator must 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 or failure to seek medical

treatment. 

SSR 96-7p. Claimant presented no explanation at the hearing for his failure to pursue or

follow medical treatment for pain; the ALJ was fully justified in discounting claimant’s

subjective recitation of his pain levels and sufficiently set forth his findings on that point.

See Petteway v. Commissioner of Social Sec., 2009 WL 3838371. *2 (11th Cir. November

18, 2009) (“When a claimant testifies to subjective complaints of pain, the ALJ must

clearly articulate adequate reasons for discrediting the claimant's allegations of disabling

symptoms. In articulating his reasons, the ALJ need not specifically refer to every piece

of evidence, so long as the decision ‘is not a broad rejection which is not enough to

enable the district court or this Court to conclude that the ALJ considered [the] medical

Case 2:09-cv-00331-N Document 23 Filed 01/22/10 Page 8 of 9
condition as a whole.’”)(internal citations omitted).

Conclusion

For the foregoing reasons, it is hereby ORDERED claimant’s charges of error in

the ALJ’s decision are without merit, that the plaintiff’s appeal is DENIED and that the

decision of the Secretary is AFFIRMED.

DONE this the 21st day of January 2010.

 /s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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