IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

CARRIE HOGAN, : 

Plaintiff, : 

vs. : 

 CIVIL ACTION 05-0154-M 

JO ANNE B. BARNHART, : 

Commissioner of

Social Security, : 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff seeks

judicial review of an adverse social security ruling which denied

a claim for Supplemental Security Income (hereinafter SSI). The

parties filed written consent and this action has been referred

to the undersigned Magistrate Judge 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 (see Doc. 27). Oral argument was

waived in this action (Doc. 23). Upon consideration of the

administrative record and the memoranda of the parties, it is

ORDERED that the decision of the Commissioner be AFFIRMED and

that this action be DISMISSED.

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

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1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

Plaintiff was born January 26, 1953. At the time of the

administrative hearing, Hogan was fifty-one years old, had

completed an eleventh-grade education (Tr. 188), and had previous

work experience as a home health care aide and a packer (Tr. 187-

88). In claiming benefits, Plaintiff alleges disability due to

bilateral carpel tunnel syndrome, hypertension, fibromyalgia, and

depression/anxiety (Doc. 25).

The Plaintiff protectively filed an application for SSI on

October 3, 2002 (Tr. 42-45). Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that

although she could not perform any of her past relevant work,

Hogan was capable of performing a significant range of light work

(Tr. 11-26). Plaintiff requested review of the hearing decision

(Tr. 8-10) by the Appeals Council, but it was denied (Tr. 3-5).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Hogan alleges

that: (1) The ALJ did not properly consider the opinions and

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1The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

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conclusions of Dr. Larry Skelton, a consultant physician; and (2)

the ALJ improperly discounted Plaintiff’s testimony of pain and

daily activities (Doc. 15). Defendant has responded to—and

denies—these claims (Doc. 20).

Plaintiff's first claim is that the ALJ did not accord

proper legal weight to the opinions, diagnoses and medical

evidence of one of the physicians. Hogan specifically refers to

the report of Dr. Larry Skelton, a consultant. It should be

noted that "although the opinion of an examining physician is

generally entitled to more weight than the opinion of a nonexamining physician, the ALJ is free to reject the opinion of any

physician when the evidence supports a contrary conclusion." 

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);1 see

also 20 C.F.R. § 404.1527 (2005).

Dr. Skelton examined Plaintiff on December 5, 2002 and noted

positive tenile sign on both wrists, indicating bilateral carpel

tunnel syndrome, though there was full range of motion in both

the wrists and elbows (Tr. 138-39). The doctor noted other range

of motion measurements, but summarized by stating that Hogan was

not fully cooperative in her exam. Skelton also noted that if

Plaintiff did have fibromyalgia, she is probably “truly disabled”

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2The ALJ restated the full results of the examination while the

Court, in its summary, chose to highlight only certain aspects of that

exam.

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(Tr. 139). 

The ALJ faithfully summarized Dr. Skelton’s examination

notes2

 before giving it only limited weight as he was unable to

“assess [Hogan’s] true limitations due to a lack of cooperation”

(Tr. 17, 24). The Court finds no error in this reasoning. 

Because Skelton was unable to properly evaluate Plaintiff’s

abilities, his conclusions are, at best, suspect. Furthermore,

though Skelton suggested that Hogan might be truly disabled if

she did suffer from fibromyalgia, the ALJ, after parsing the

evidence, found little medical evidence supporting a finding of

disability based on fibromyalgia (Tr. 20-21). The Court finds

substantial support for that conclusion, finding the ALJ’s

reasoning sound and thorough. Plaintiff’s claim otherwise is

without merit.

Plaintiff next claims that the ALJ improperly discounted her

testimony of pain and daily activities. The standard by which

Hogan’s complaints of pain are to be evaluated 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

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

(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). 

The Eleventh Circuit Court of Appeals has also held that the

determination of whether objective medical impairments could

reasonably be expected to produce the pain was a factual question

to be made by the Secretary and, therefore, "subject only to

limited review in the courts to ensure that the finding is

supported by substantial evidence." Hand v. Heckler, 761 F.2d

1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d

428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th

Cir. 1986).

Plaintiff testified at the hearing before the ALJ as to her

limitations, complaints of pain, and daily activities (Tr. 190-

201). Further evidence can be found in the forms Hogan completed

as part of her application (Tr. 65-70). The ALJ reported these

statements (Tr. 16), but found Plaintiff’s testimony not credible

as the medical records did not support the severity of her

complaints or limitations (Tr. 19-20). 

The ALJ’s conclusions are correct: Hogan has failed to

point to objective medical evidence substantiating her

complaints. When this lack of evidence is coupled with the

reports from Dr. Skelton and Psychologist Brent R. Willis (Tr.

134-37) who both found that Plaintiff was not putting forth her

best effort, the ALJ’s conclusion becomes stronger. Hogan’s

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claim that the ALJ did not properly consider her complaints are

without merit.

Plaintiff has raised two different claims in bringing this

action. Both are without merit. Upon consideration of the

entire record, the Court finds "such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion." Perales, 402 U.S. at 401. Therefore, it is ORDERED

that the Secretary's decision be AFFIRMED, see Fortenberry v.

Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action

be DISMISSED. Judgment will be entered by separate order. 

DONE this 25th day of May, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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