Randy Whitmore v. Social Security Administration, Commissioner

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13757
Non-Argument Calendar
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D.C. Docket No. 4:19-cv-01149-LSC
RANDY WHITMORE,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
COMMISSIONER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(May 17, 2021)
Before MARTIN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
This appeal requires us to decide whether the Social Security Administration
Commissioner’s determination that Randy Whitmore was not disabled was
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supported by substantial evidence. Whitmore argues that the administrative law
judge did not correctly apply this Circuit’s subjective pain standard when evaluating
his testimony regarding his pain. After careful review, we disagree and affirm.
I.
After Whitmore fell off a roof and shattered both of his heels, he applied to
the Commissioner for a period of disability and disability insurance benefits.
Whitmore alleged that his bad knees, bad back, birth defect in his back, and bad feet
caused him pain and limited his ability to work. Whitmore has a ninth-grade
education and had worked as a roofer for more than fifteen years before his accident.
As a result of his accident, he underwent surgery on his heels.
At the time of Whitmore’s hearing, he testified that he had been visiting a
doctor every month for pain medication. He was not suffering any side effects but
still experienced pain in his shins, feet, and back. He could only be on his feet for an
hour or two and could only sit for twenty to thirty minutes. He could walk for
“maybe” thirty minutes and could stand in place for “maybe” thirty or forty-five
minutes before the pain became unbearable. He could lift no more than a gallon of
milk. He rated his pain as a seven on a ten-point scale, even with the benefit of
medication. He said that his medication made the pain “bearable,” but without it he
could not get up. He also treated his pain by lying down fifty to sixty percent of the
day and by soaking in hot water. He was able do light housework, but his daughter
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got the groceries and did the major housework and laundry. He was also able to drive
about twice a week and successfully drove himself forty-five minutes to his hearing.
He stated that he could climb only three or four steps at a time and could kneel to
pick something up but not squat or stoop.
After the hearing, the administrative law judge issued a decision in which he
followed each step of the Social Security Administration’s five-step sequential
evaluation process for determining whether an individual is disabled. See 20 C.F.R.
§ 404.1520(a). He determined that Whitmore had the residual capacity to perform
light work with no climbing, no bilateral foot controls, no driving, occasional
stopping and crouching, and a temperature-controlled environment. To reach this
determination, the administrative law judge cited this Circuit’s standard for
assessing subjective complaints of pain and found “that the claimant’s medically
determinable impairments could be expected to cause some pain and limitations,
however the claimant’s statements concerning the intensity, persistence, and limiting
effects of these symptoms are not entirely consistent with the medical evidence and
other evidence in the record.”
Whitmore timely appealed to the district court, which affirmed the
Commissioner. Then he timely appealed to us.
II.
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We apply the same standard of review that the district court applied. We
review the Commissioner’s decision to determine whether it is supported by
substantial evidence. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019); Hargress v.
Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1305 n.2 (11th Cir. 2018). Our substantial
evidence review is “deferential” and does not have a “high” “threshold.” Biestek,
139 S.Ct. at 1154, 1157. “Substantial evidence is more than a mere scintilla and
means only such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. at 1154 (cleaned up). We do not “decide the facts anew,
reweigh the evidence, or substitute our judgment for that of the Commissioner,” even
if we would have reached a contrary result or if a preponderance of the evidence
weighs against the Commissioner’s decision. Mitchell v. Comm’r, Soc. Sec. Admin.,
771 F.3d 780, 782 (11th Cir. 2014).
III.
Social Security regulations outline a five-step, sequential evaluation process
to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(1). Under
this process, the Commissioner evaluates: (1) whether the claimant engaged in
substantial gainful activity; (2) if not, whether the claimant has a severe impairment;
(3) if so, whether the severe impairment meets or equals a listed impairment; (4) if
not, whether the claimant has the residual functional capacity to perform past
relevant work; and (5) if not, whether in light of the claimant’s residual functional
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capacity, age, education, and work experience, there are other jobs the claimant can
perform. Phillips v. Barnhart, 357 F.3d 1232, 1237–40 (11th Cir. 2004). If the
Commissioner determines that the claimant is not disabled at any step of this process,
the inquiry ends. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
We have held that “pain alone can be disabling, even when its existence is
unsupported by objective evidence.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995). Accordingly, “[a] claimant’s subjective testimony supported by medical
evidence that satisfies the pain standard is itself sufficient to support a finding of
disability.” Id. A claimant attempting to establish disability through his own
testimony of subjective symptoms must show: “(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.” Wilson v. Barnhart,
284 F.3d 1219, 1225 (11th Cir. 2002); see also 20 C.F.R. § 404.1529 (containing
substantially similar language).
“If the [administrative law judge] discredits subjective testimony, he must
articulate explicit and adequate reasons for doing so.” Wilson, 284 F.3d at 1225.
“Failure to articulate the reasons for discrediting subjective testimony requires, as a
matter of law, that the testimony be accepted as true.” Id. “[W]e will not disturb a
clearly articulated” finding about subjective complaints “supported by substantial
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evidence.” Mitchell v. Comm’r., Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir.
2014).
Whitmore argues that the Commissioner erred in applying these standards in
two ways. First, he argues that the Commissioner failed to consider whether an
objectively determined medical condition could reasonably be expected to give rise
to his claimed pain. Second, he argues that the Commissioner improperly considered
evidence of Whitmore’s daily activities to discredit his subjective assessment of
pain. Neither argument is persuasive.
First, the administrative law judge properly applied the subjective pain
standard. He expressly cited both the Social Security Administration’s regulation
and this Circuit’s standard for evaluating subjective pain. Whitmore does not dispute
that the administrative law judge correctly applied the first disjunctive element—
objective medical evidence confirming the severity of pain. As for the second
disjunctive element, the administrative law judge found that, although the objective
evidence showed that Whitmore’s impairments could reasonably be expected to
cause some pain, the intensity of the pain Whitmore testified to experiencing was
inconsistent with the medical evidence. In other words, the administrative law judge
found that Whitmore’s condition could reasonably be expected to give rise to some
pain, but it did not “give rise to the claimed pain.”
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The administrative law judge gave detailed reasons, supported by the record,
for why he was discounting Whitmore’s subjective pain complaints:
The treatment records do not provide objective support for his
allegations of disabling heel, knee, or back pain. After fracturing his
heels and undergoing surgical fixation in May 2016, the claimant
reported good pain control and graduated to wearing normal shoes
within four months. He started complaining of right heel pain in
December of that year and underwent subtalar fusion with hardware
removal three months later. Dr. Madanagopal observed that the
claimant was doing reasonably well at a follow-up visit two weeks
afterwards, and the claimant endorsed doing very well on pain
medication at subsequent encounters with Dr. Johnston. Despite his
allegations of disabling back pain, the claimant reports average pain
levels that range from three to six on a ten-point scale most days, and
he acknowledges that he remains able to function, perform daily
activities without problems, and care for his animals. His hearing
testimony was generally consistent with these reported pain levels, as
he described his pain as “bearable” on Norco without medication side
effects. There is no indication that the claimant has reported any knee
pain during the relevant period. It is noteworthy that the claimant
reported in February 2018 that he was able to perform housework daily,
which undermines his complaints of sharply limited physical abilities.
The next month, he stated that he was able to work part time, but the
overall evidence of record establishes that he is less limited than he has
alleged and is indeed capable of returning to full-time employment.
This evidence is sufficient to support the Commissioner’s decision.
Second, the administrative law judge did not err in considering Whitmore’s
daily activities. Although a claimant’s admission that he participates in daily
activities for short durations does not necessarily disqualify the claimant from
disability, Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), it is nonetheless
proper for an administrative law judge to consider a claimant’s daily activities when
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they are related to the claimant’s subjective pain. Schink v. Comm’r of Soc. Sec., 935
F.3d 1245, 1264 (11th Cir. 2019) (holding that solitary activities like “watching
television, walking the dog, and cooking” were not sufficient to discount treating
physicians’ opinions regarding patient’s significant suffering from mental
impairments when interacting with others); 20 C.F.R. §§ 404.1529(c)(3)(i),
416.929(c)(3)(i) (specifically listing claimant’s daily activities as factor to consider
in evaluating claimant’s symptoms). Here, the daily activities that the administrative
law judge considered—light housework, some driving, meal prep, personal care—
were directly related to the type of pain Whitmore described. That Whitmore could
perform these activities supports the Commissioner’s determination that Whitmore’s
heel, knee, and back pain were not disabling.
IV.
For these reasons, the Commissioner’s denial of Whitmore’s application for a
period of disability and disability insurance benefits is AFFIRMED.
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