Iraida Morales v. Commissioner of Social Security

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-11064
Non-Argument Calendar
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D.C. Docket No. 6:18-cv-00484-JA-GJK

IRAIDA MORALES,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 9, 2020)

Before WILSON, MARTIN, and HULL, Circuit Judges.

PER CURIAM:

Iraida Morales appeals from the affirmance of the decision of the
Commissioner of the Social Security Administration (“Commissioner”) holding
that she is not disabled under Sections 216(i) and 223(d) of the Social Security Act.
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She argues that the administrative law judge (“ALJ”) violated her due process
rights by offering her a fully favorable decision if she amended her alleged
disability onset date, and then denying her benefits when she declined to do so.
She also argues that the ALJ did not apply the correct legal standard to her
testimony regarding her pain and limitations and that the ALJ’s determination was
not supported by substantial evidence. After careful review, we affirm.
I.
On August 20, 2012, Morales filed an application for a period of disability
and disability insurance benefits, alleging a disability onset date of June 21, 2012.
An ALJ found Morales was not disabled. The Appeals Council remanded her
claim for further proceedings and, on December 12, 2016, a second hearing was
held before a different ALJ. On February 3, 2017, Morales’s attorney sent a letter
to the ALJ stating that Morales did not agree to amend her disability onset date
from June 21, 2012 to January 1, 2013 and requesting that the ALJ contact her if
there was another reason why the onset date should be amended.
On March 24, 2017, the ALJ found Morales was not disabled at any time
since her onset date of June 21, 2012. Specifically, the ALJ found Morales has the
severe impairments of general arthropathy and cervical spine degenerative disc
disease and a number of non-severe impairments including right-side carpal tunnel
syndrome, lumbar pain, mental health disorders, gastritis, asthma, and side effects
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from medication. The ALJ found that Morales had the residual functional capacity
to perform less than the full range of light work, as defined in 20 C.F.R.
§ 404.1567(b). Based on Morales’s residual functional capacity, the ALJ found
that she could perform past relevant work as a Teacher Aide II and concluded that
she was not disabled from her onset date through the date of the decision.
Morales sought review, arguing that the ALJ improperly denied her claim
because she would not agree to amend her alleged date of disability onset. The
Appeals Council denied the request for review and Morales timely appealed by
filing a complaint in the Middle District of Florida.
A magistrate judge issued a report and recommendation (“R&R”)
recommending that the final decision of the Commissioner be affirmed. Over
Morales’s objections, the district court adopted the R&R and affirmed the final
decision of the Commissioner. Morales timely appealed.
II.
When the Appeals Council denies review of a denial of benefits, “we review
the ALJ’s decision as the Commissioner’s final decision.” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). We review the Commissioner’s factual findings
for substantial evidence and the legal principles on which the decision was based
de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
Even if the evidence preponderates against the decision, we must affirm if it is
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supported by substantial evidence. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991) (per curiam). We will reverse if the Commissioner failed to apply the
correct legal standards or provided an insufficient basis to determine whether
proper legal principles have been followed. Ingram v. Comm’r, Soc. Sec. Admin.,
496 F.3d 1253, 1260 (11th Cir. 2007). We review de novo the district court’s
decision on whether substantial evidence supports the ALJ’s decision. Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam).
III.
Morales argues that the ALJ violated her due process rights by issuing an
unfavorable determination because she declined to amend her alleged disability
onset date. She claims that on February 3, 2017, the ALJ’s hearing assistant
contacted her attorney to see if she would be willing to amend her alleged
disability onset date from June 21, 2012 to January 1, 2013. The assistant
allegedly said that, if Morales would amend her onset date, then the ALJ would
enter a decision in her favor. The same day, Morales’s attorney submitted a letter
to the ALJ explaining why Ms. Morales was unwilling to amend her asserted onset
date. The ALJ then found that Morales was not disabled.
For the ALJ to decide that Morales was not disabled based on her refusal of
an ex parte request to amend her onset date would be improper. See Envtl. Def.
Fund, Inc. v. Alexander, 614 F.2d 474, 481 (5th Cir. 1980) (“[N]either ex parte
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communication with a judge’s clerks nor reliance upon such communication can be
condoned.”)
1
; Lindsey v. Barnhart, 161 F. App’x 862, 870 (11th Cir. 2006) (per
curiam) (unpublished) (“Obviously, it would be improper for the ALJ to refuse to
award Lindsey social security benefits based on Lindsey’s refusal to amend his
onset date.”) . But to warrant reversal on the basis of an improper ex parte
communication from the ALJ, Morales must also show that the violation resulted
in prejudice. Hilliard v. Comm’r of Soc. Sec., 612 F. App’x 582, 583 (11th Cir.
2015) (per curiam) (unpublished).
Here, there is no evidence that the ALJ made an improper ex parte offer to
Morales or that it subsequently issued an unfavorable decision because Morales
declined the offer. The only relevant record evidence is a letter signed by
Morales’s attorney and dated February 3, 2017, which states that Morales “does
not agree to amend her onset date of disability.” The letter does not mention a call
from the ALJ’s hearing assistant or an offer to issue a favorable decision in the
event that Morales changed her onset date.
Nor does any extra-record evidence support Morales’s claim. In some
circumstances we may look beyond the administrative record; for example, we

1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981. Id. at 1207.
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may do so when “an agency’s failure to explain its action effectively frustrates
judicial review” or when “there is a strong showing of agency bad faith or
improper behavior.” Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army
Corps of Eng’rs, 87 F.3d 1242, 1246 n.1 (11th Cir. 1996). The record does not
reflect that any such circumstances exist here. We have only the assertions in
Morales’s brief, which are not evidence. See Skyline Corp v. NLRB, 613 F.2d
1328, 1337 (5th Cir. 1980) (“Statements by counsel in briefs are not evidence.”).
And even if such circumstances existed, Morales has submitted no extra-record
evidence to support her claim. Lacking evidence of either improper conduct by the
ALJ or resulting prejudice, we find no due process violation.
IV.
In order to show disability based on pain, a claimant must show an
underlying medical condition and either (1) objective medical evidence confirming
the severity of the alleged pain arising from that condition or (2) that the medical
condition is severe enough that it can reasonably be expected to give rise to the
alleged pain. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam);
see also 20 C.F.R. § 404.1529(a). Once a claimant establishes a qualifying
medical condition, the ALJ must consider “all evidence about the intensity,
persistence, and functionally limiting effects of pain or other symptoms” in
deciding whether the claimant is disabled. Foote, 67 F.3d at 1561. “The
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claimant’s subjective testimony supported by medical evidence that satisfies the
standard is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991) (per curiam). If the ALJ does not credit the
claimant’s subjective testimony, she must articulate “explicit and adequate
reasons” for her decision. Id.
The ALJ found Morales’s medical condition could reasonably be expected
to cause her alleged symptoms but concluded her allegations regarding the
intensity, persistence, and limiting effects of these symptoms were “not entirely
consistent” with other evidence in the record. Morales argues that the ALJ’s
decision to discredit her testimony regarding her pain was not supported by
substantial evidence. But three factors discussed by the ALJ were sufficient to
support the ruling: (1) that Morales’s treatment was conservative and non-
aggressive; (2) that her complaints of disabling pain were not consistent with
objective medical evidence; and (3) that her medications were stabilized during the
period at issue and the side effects from them were mild.
The ALJ properly concluded that Morales’s “conservative and non-
aggressive” treatment undermined her testimony about the intensity and limiting
effects of her symptoms. A conservative treatment plan tends to negate a claim of
disability. See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996). In support
of the finding that Morales’s treatment plan was conservative and nonaggressive,
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the ALJ noted that Morales was prescribed medication for her headaches,
gastrointestinal impairments, fibromyalgia, and rheumatoid arthritis. At various
points during her treatment she was instructed to increase her activity levels, build
up a low-impact exercise program, start physical therapy, and take up exercises
such as fast walking, swimming, yoga, tai chi, and weight bearing exercises for her
stiffness, arthralgias, and myalgias.
Morales does not contest that her treatment plan was conservative. Instead,
she argues that conservative treatment is consistent with fibromyalgia. But
conservative treatment can support discrediting subjective symptoms even in cases
where, like here, a claimant alleges pain from both fibromyalgia and other
conditions. See Horowitz v. Comm’r of Soc. Sec., 688 F. App’x 855, 863 (11th
Cir. 2017) (per curiam) (unpublished) (holding that conservative treatment for both
mental impairments and pain from fibromyalgia supported ALJ’s adverse
credibility finding); Brown v. Comm’r of Soc. Sec., 680 F. App’x 822, 826 (11th
Cir. 2017) (per curiam) (unpublished) (same). Here, Morales’s treatment included
recommendations to perform various kinds of physical activity, which are
inconsistent with her claims of completely disabling pain.
The ALJ’s finding that Morales’s subjective complaints were inconsistent
with her “objective signs” was also supported by substantial evidence. Objective
medical evidence “is a useful indicator” to assist the Commissioner in evaluating
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the intensity and persistence of symptoms and pain. 20 C.F.R. § 404.1529(c)(2).
Here, the ALJ noted that Morales underwent numerous forms of imaging with
unremarkable results. It also gave great weight to the agency experts who found
Morales can “understand and execute instructions and maintain concentration,
persistence, pace and attendance,” can “relate and adapt in work settings,” and
could “perform light exertional work.” The ALJ gave some weight to Dr. Ferrer,
whose treatment notes showed that Morales exhibited some tenderness due to
fibromyalgia but otherwise reported that her exam findings were “unremarkable”
and that she had “full motor strength and sensation.” And the ALJ gave little
weight to Dr. McGee’s, Dr. Williams’s, Dr. Candela’s, and Dr. Hoffman’s
conclusions that Morales was unable to do less than sedentary activity, finding
them unsupported by their exam results. Morales does not contest these findings
on appeal, arguing only that the ALJ failed to specify which “objective signs” were
inconsistent with her subjective complaints. But this takes the concluding
paragraph of the ALJ’s detailed discussion of Morales’s treatment and evaluation
history out of context. In light of the preceding analysis, it is clear that “objective
signs” refers to medical evidence. Morales does not challenge the ALJ’s analysis
of the medical record on appeal, and we conclude that the ALJ’s credibility
determination was supported by substantial evidence. See Wilson, 284 F.3d at
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1226 (medical evidence inconsistent with disabling pain supports adverse
credibility determination).
Nor did the ALJ err in finding that Morales’s allegations of disability were
inconsistent with the fact that her medication had been stabilized and was
producing only mild side effects. The “type, dosage, effectiveness, and side
effects” of medication taken to alleviate pain or other symptoms may be taken into
account when evaluating subjective symptoms. 20 C.F.R. § 404.1529(c)(3)(iv);
Walker v. Comm’r of Soc. Sec., 404 F. App’x 362, 366 (11th Cir. 2010) (per
curiam) (unpublished) (“In determining whether a claimant’s impairments limit her
ability to work, the ALJ considers the claimant’s subjective symptoms, which
includes the effectiveness and side effects of any medications taken for those
symptoms.”). Taken alone, that Morales’s medications had been stabilized does
not mean that she no longer suffered pain or could work full time. However,
Morales also reported that she felt improvement to her headaches resulting from
changes to her medication, which suggests that some of her symptoms were
responsive to medication. While Morales’s medication history provides only
limited support for the conclusion that her subjective symptoms were not
consistent with the objective evidence in the record, it was not improper for the
ALJ to consider it. See 20 C.F.R. § 404.1529(a) (the Commissioner considers “all
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of the available evidence . . . about how your symptoms affect you” in evaluating
the intensity and persistence of a claimant’s symptoms).
We do not agree with the ALJ’s finding that Morales’s ability to perform
basic housework, clean, bathe, and dress herself was itself inconsistent with a
disabling level of pain. See Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir.
1997) (holding that ability to perform housework did not support a conclusion that
claimant was able to work); Foote, 67 F.3d at 1561 (holding that claimant’s ability
to do basic daily activities did not support the ALJ’s finding that her pain was not
so disabling as to reduce her residual functional capacity). However, taken
together, the other evidence considered by the ALJ was sufficient to support the
conclusion that the “intensity, persistence and limiting effects” of her symptoms
were not consistent with other evidence in the record.
AFFIRMED.

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