[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 5, 2005
No. 05-11897
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01771-CV-T-17-TBM
ALVIN ECKERT,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 5, 2005)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Alvin Eckert appeals the district court’s order affirming the denial of his
applications for disability insurance benefits, 42 U.S.C. § 405(g), and supplemental
security income, 42 U.S.C. § 1383(c)(3). We AFFIRM.
I. BACKGROUND
Alvin Eckert filed applications for disability insurance benefits and
supplemental security income. His applications were denied initially and upon
reconsideration. Eckert requested and was granted a hearing before an
Administrative Law Judge (“ALJ”).
During the hearing, Eckert testified that he was forty-five years old, had a
ninth-grade education, could read, write, and speak English, and was qualified to
drive a eighteen-wheel truck. He previously worked as a tire vulcanizer (tire
repair) and a tractor-trailer driver. He was injured twice while he was working as
a driver, once in August 1990, and once in January or February 1990.
Administrative Record (“AR”) at 60.
Eckert testified that he was having lower back pain that was stabbing and
burning, and aches in his knees and toes. Id. at 82. Stooping, bending and
crawling caused him pain. Id. at 84. He could sit for about one hour before
alternating positions, stand for about fifteen minutes, walk a block and a half, and
lift ten pounds. Id. at 83-84. During a typical day, he spent most of his time lying
on the couch, he did not do any cooking or household chores, and only drove once
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a week when necessary. The farthest he had driven in the six years prior to the
hearing was 155 miles one way to Tampa, which he had done about eight times.
Id. at 81.
Except for two visits to the emergency room, he had not sought medical
treatment since August 1994, because he did not have the money to see a doctor.
In the three years prior to the hearing, he did not take any prescription medication
for his back pain, but he did take Tylenol.
The medical evidence showed that, prior to January 1990, Eckert was being
treated by Dr. Daniel Pia, a chiropractor, concerning a back injury in 1987. Dr.
Pia diagnosed Eckert with severe lumbosacral (low back) sprain, with resultant
bilateral sciatic neuritis (inflamation of the hip) and neuralgia (severe nerve pain).
Id. at 176-77. Eckert saw Dr. Pia in October 1991, relative to an accident on 4
March 1990, and Dr. Pia found that Eckert had reached maximum medical
improvement in connection with the accident.
During March 1992, Eckert, complaining of back pain, was evaluated by Dr.
George Capanioni, an orthopaedist. The physical examination revealed that
Eckert was in no obvious distress, had minimal tenderness to deep palpation of his
back, minimal paravertebral muscle spasm, and limited range of motion. Id. at
165. Dr. Companioni reviewed X-rays from 1990 which showed no significant
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abnormalities. Id. at 166. He reviewed a MRI from May 1990, and found a
degenerative disc present at L4/5 and 5/5, and a bulging disc at 4/5. Id. He also
reviewed a myelogram, concluded that there was no significant pressure on
Eckert’s spinal cord, and found that Eckert had only mild degenerative changes.
Id. He expressed surprise that Eckert had only been able to work three months
between 1990 and 1992 because he concluded that he should have been able to
return to work status. Id.
In April 1992, Dr. Pia performed a disability evaluation on Eckert. He
found that, when engaged in work activities, Eckert could stand, sit, and walk for
no more than fifteen minutes, lift no more than ten pounds, push or pull no more
than twenty-five pounds, and could not bend, stoop, squat, turn, twist, kneel, reach,
grasp or manipulate small objects, or climb more than five stairs. Id. at 167. He
determined that Eckert had a “permanent whole person impairment of 35%, based
on AMA guidelines” and concluded found that Eckert was impaired in performing
any type of work that was not sedentary or semi-sedentary. Id.
In October of 1992, Dr. John A. Arlington performed an MRI of Eckert’s
lumbar spine, which showed moderate stenosis (narrowing) at L4-5 and mild to
moderate stenosis at L3-4, secondary to a combination of bulging annulus (outer
layer of the spinal disk), bilateral ligamentous, and facet hypertrophy (increase in
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size of facet joints). Id. at 196. Also in October 1992, Eckert was treated by Dr.
Gene A. Balis, a neurosurgeon. Dr. Balis found that Eckert had normal strength,
symmetric reflexes, and normal sensation. Id. at 211. He reviewed Eckert’s CT
from 1987 and MRI from 1990 and concluded that the MRI showed spinal stenosis
at L4-5, mild to moderate stenosis at L3-4, and a bulge at L4-5. Id. at 211-13. He
felt that Eckert could return to employment at “light duty,” with no heavy lifting,
straining, stooping, bending, or crawling. Id. at 211.
On 13 November 1992, Eckert, complaining of back pain, saw Dr. Mary
Ann Uranowski, a chiropractor, on an emergency basis. Id. at 72, 197. She found
that he was sore and tender at L5-S1. Id. at 197. She diagnosed Eckert with acute
lumbar sprain secondary to lumbar spinal stenosis. Id. On 21 December 1992,
Eckert went to the emergency room complaining of low back pain. Id. at 198. The
physical examination showed no specific point tenderness in his back, minor
degenerative spurs (bony overgrowth) in the lumbar spine, no significant
interspace narrowing, no fracture, and the x-ray of the lumbar spine was negative.
Id. at 204, 206. The diagnosis was low back strain and history of back disorder.
Id. at 205.
In January 1993, Dr. Balis, a neurosurgeon, examined Eckert and found him
to have normal strength, symmetric reflexes, and normal sensation distally in the
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lower extremities. Id. at 210. He recommended that Eckert seek vocational
rehabilitation. He also noted that the chances of significant improvement were
“very thin” because Eckert had already had a long course of conservative therapy.
Id. On 10 August 1994, Eckert went to the emergency room complaining of a fall
and back pain. Id. at 223-24. He was diagnosed with lumbar strain and treated
with an injection that decreased the pain. Id. at 223, 225.
Robert Whitford, a licensed mental-health counselor, treated Eckert in
psychotherapy from July 1989 until November 1993, after Eckert was ordered by
the court to seek treatment because he had molested his daughter. Id. at 73, 262.
This treatment was unrelated to the subject disability claim. Mr. Whitford found
that, during the entire period of treatment, Eckert was moderately anxious and
depressed, and that his condition was directly related to his reported chronic back
problems. Id. at 262.
In December 1995, Eckert, complaining of low back pain, burning,
numbness of the groin, aching knees and numbness and tingling of his toes, saw
Dr. Uranowski. Id. at 245. Contained in her records were a physical capacities
evaluation and a medical impairment evaluation finding that Eckert had spinal
stenosis aggravated by bending, lifting, prolonged standing, and walking, and that,
in an eight-hour day, Eckert was able to sit for one hour, stand thirty minutes, not
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walk at all, and lift five pounds continuously, ten pounds occasionally, and twenty
pounds occasionally. Eckert was found to be able to perform simple grasping,
reaching, pushing, pulling, and fine manipulating, but he should never bend, squat,
kneel, crawl, or work in areas where there were unprotected heights, moving
machinery, noise and vibration, and extreme temperatures. Id. at 236-38. He
found that Eckert was able to perform “sedentary work,” defined as work that
requires lifting a maximum of ten pounds, occasionally carrying files, ledgers,
small tools, and similar objects, and walking and standing occasionally. Id. at 238.
In April 1996, Dr. James Fesler, a psychologist, diagnosed Eckert with
dysthymia (type of depression) compounded by chronic pain. Id. at 279-80. He
described the dysthymia as “of a mild nature” and found that, combined with the
pain and depression, it had resulted in social withdrawal and would give Eckert
some difficulty maintaining concentration over an extended period of time or
persisting in tasks. Id. at 282-83.
A vocational expert (“VE”) testified during the hearing that, based on
Eckert’s previous jobs, he might have garnered certain skills that are transferable to
less demanding types of work, such as maintaining a driver log in accordance with
regulations, machine and hand-tool usage, and lower level bookkeeping. Id. at 93.
The ALJ gave the VE a series of three hypotheticals and then asked the VE to state
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if such an individual could perform Eckert’s past relevant work, and, if not, what
type of work he could perform. In the first hypothetical, the worker was under age
fifty, had education and past relevant work experience like Eckert’s, and, during an
eight-hour day, he could sit for six hours off and on, stand or walk for two hours,
lift ten pounds occasionally and five pounds frequently, and could do occasional
bending for up to one-third of the workday. The VE stated that such a person
could not perform any of his previous relevant work, but could perform sedentary
positions. Id. at 94. The jobs available to this type of person would be a
surveillance system monitor, a carding machine operator, an ink printer, a stuffer,
and a leaf tier. Id. at 94-96.
In the second hypothetical, the information was the same as in the first,
except the worker could lift twenty pounds occasionally and ten pounds frequently.
This person could not return to his past relevant work, but could, in addition to the
jobs listed in the first hypothetical, perform the work of a checker, a photocopy-
machine operator, and a carver in the food-service industry. Id. at 96-97. For the
third hypothetical, the information was the same as the first, but the worker could
sit for only four hours and stand and walk for four hours during an eight-hour day.
This person could not do their past relevant work but could work as a surveillance
system monitor, leaf tier, stuffer, and ink printer. Id. at 98.
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Eckert’s counsel proposed a hypothetical that in addition to the first and
third hypotheticals proposed by the ALJ, the worker was incapable of bending,
stooping, squatting, crawling, and kneeling. The VE stated that this additional
information would not change his previous answers. Eckert’s counsel then
proposed a hypothetical that in addition to the information in the ALJ’s first
hypothetical, the worker could never engage in work involving moving machinery
or noises and vibration. The VE stated that the only jobs available to this person
would be ink printer and surveillance system monitor. Id. at 100.
The ALJ determined that Eckert was not entitled to Social Security disability
insurance benefits or supplemental security income. Id. at 41. The Appeals
Counsel denied review. Upon judicial review, the district court vacated and
remanded the case on the Commissioner’s request in order to update the record.
A supplemental hearing was held on 12 February 2002. Eckert, then fifty-
one years old, testified substantially as he had at the first hearing, and, in addition,
testified that during the time after his two 1990 accidents, he was having mental
problems and was depressed. Id. at 414. From the time he stopped working in
1990, until March 1994, the farthest that he could walk was 500 feet, he could
stand for fifteen minutes, sit for twenty minutes without changing positions, and
lift only ten pounds. Id. at 426-27. At the time of the supplemental hearing, he
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could walk 250-300 feet, and he used a cane. Id. at 427. When he drove to Tampa,
he had to stop every thirty minutes of the 360-mile trip. Id. at 429-30.
The medical evidence admitted at the supplemental hearing showed that,
from 20 October 1998 to 22 February 2000, Eckert was regularly treated by Dr.
Philip Springer at a psychiatry and pain-management center. Id. at 496-555.
Eckert saw Dr. Springer on average once or twice a month during this period. The
majority of Dr. Springer’s evaluations contained the assessment that Eckert’s pain
was still a significant problem, but that he had reached partial control with the aid
of medication, and that he was not in need of more intense psychiatric intervention.
The only assessments to deviate were in November 1998 and April 1999, when Dr.
Springer noted that Eckert was in need of psychiatric treatment that could be
performed on an outpatient basis. Id. at 546, 548, 550.
On 17 October 2000, Candace Valenstein, a clinical psychologist,
administered the Personality Assessment Inventory to Eckert. The results showed
that Eckert had significant thinking and concentration problems accompanied by
“prominent distress and dysphoria” (anxiety), and that he was also “clinically
depressed, discouraged, and withdrawn.” Id. at 557. Her records reveal that
Eckert reported smoking an average of two packs of cigarettes a day.
A VE testified and the ALJ proposed the hypothetical that an individual was
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forty-three years old, with education and past relevant work experience similar to
Eckert’s, could sit for six hours and stand and walk for two hours during an eight-
hour day, could lift twenty pounds on occasion and ten pounds more frequently
and could do occasional bending, stooping, and squatting, but no crawling or
climbing, and should not work in dangerous, unprotected heights. The VE stated
that this person could not return to his past relevant work but could work a
sedentary job such as a garment inspector, a carding machine operator, stringing
machine tender, surveillance systems monitor, and dispatcher. Id. at 467-468.
In the second hypothetical, the information remained the same, except the
worker could stand, walk, and sit for only four hours a day, must be allowed to
alternate their position every fifteen to thirty minutes, and could have only
occasional contact with members of the general public, coworkers, and
supervisors. The VE stated that this person could perform all of the jobs he had
listed under the first hypothetical, except for dispatcher. Id. at 470. For the third
hypothetical, all of the information in the second stayed the same, except the
person could stand and walk six hours and sit for two hours a day. The VE stated
that his response to the second hypothetical would still apply, and he would add
box-sealer inspector and paper-comb-machine tender to the list of jobs that the
person could perform. Id. at 471.
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Eckert’s attorney proposed the hypothetical that in all of the three previous
situations discussed, the person also had no real ability to perform activities within
a schedule, maintain regular attendance, or be punctual. The VE stated that this
person would not be able to perform any of the jobs that he had previously listed.
Id. 472-74.
After reviewing the medical evidence, the ALJ found that Eckert had severe
impairments of low back pain, degenerative disc disease, and mild dysthymic
disorder, but that the impairments did not meet the criteria of any of the
impairments listed in the listings of impairments. Id. at 329. The ALJ gave less
weight to the findings of the chiropractor, Dr. Uranowski, and more weight to the
findings of the neurosurgeon, Dr. Balis, and the orthopedist, Dr. Companioni, who
found that Eckert could go back to gainful employment. Id. at 320. Mr.
Whitford’s opinion was given no credit because Eckert saw him under a court
order unrelated to his disability.
The ALJ also discredited Dr. Fesler’s opinion that Eckert had a listing-level
disorder because Eckert testified at the hearing that he did not believe he needed to
see a psychiatrist or other mental health professional, yet he told Dr. Fesler he had
been chronically depressed after his back injury. The ALJ discredited Dr.
Springer’s opinions because his progress notes were internally inconsistent
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regarding Eckert’s mental health, and because Dr. Springer was not a psychiatrist
or qualified to give an opinion on Eckert’s mental status. Id. at 321-22. The ALJ
discredited Dr. Valenstein’s report with respect to Eckert’s ability to perform
certain work activities because her report was inconsistent with the totality of the
medical evidence and because certain statements in her report were inconsistent
with her other findings. Id. at 325.
The ALJ concluded that Eckert was unable to perform his past relevant work
but that he retained the residual functional capacity to engage in sedentary and
light work activities. Id. at 324. The ALJ found that Eckert was a “person closely
approaching advanced age” with a limited education and semi-skilled work
experience, and that, although “he is unable to perform the full range of light and
sedentary work, he is capable of making an adjustment to work which exists in
significant numbers in the national economy,” such as “surveillance system
monitor, carding machine operator, ink printer, stuffer, and leaf tier.” Id. at 329,
330.
The ALJ found that Eckert’s statements regarding the impact of his
impairments on his ability to work were not entirely credible and were inconsistent
with the objective medical evidence. Id. at 327, 329. The ALJ gave weight to Dr.
Balis and Dr. Companioni’s opinions that Eckert could return to work despite his
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physical limitations. The ALJ concluded that Eckert was not disabled at any time
prior to the expiration of his insured status or the ALJ’s decision. Id. at 330. The
Appeals Counsel denied review. The district court affirmed the ALJ’s decision.
II. DISCUSSION
Eckert argues on appeal that the ALJ’s findings on his credibility regarding
the extent of his pain were not supported by substantial evidence. Specifically, he
argues that the objective medical evidence corroborates his testimony concerning
his severe and debilitating pain during the relevant period and that the ALJ failed
to incorporate in his decision the findings of the neurosurgeon, Dr. Balis, that
Eckert had mild to moderate stenosis and a bulge at L4-5, failed to incorporate the
findings of the mental heath counselor, Mr. Whitford, that he is not the type of
person predisposed to lie or complain unless there is something wrong, and failed
to incorporate the findings of clinical psychologist Dr. Valenstein that he did not
attempt to present an unrealistic impression of himself. Finally, he argues that the
ALJ mischaracterized his testimony by leaving out the fact that, although he has
been able to drive 180 miles to Tampa, he has to stop every thirty minutes, and the
trip takes him five to six hours.
We review the Commissioner’s decision to determine if it is supported by
substantial evidence and whether the correct legal standards were applied. Ellison
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v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (per curiam). “‘Substantial
evidence is more than a scintilla and is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.’” Id. (citation omitted).
When evaluating a claimant’s subjective complaints of pain, “[t]he 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.” Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam). Credibility
determinations are for the ALJ. Hudson v. Heckler, 755 F.2d 781, 784 (11th Cir.
1985) (per curiam). If an ALJ rejects a claimant’s testimony regarding pain, he
must articulate specific reasons. Allen v. Sullivan, 880 F.2d 1200, 1202-03 (11th
Cir. 1989) (per curiam).
In this case, there was evidence of an underlying medical condition. As
found by the ALJ, the medical evidence showed that Eckert had low back pain and
degenerative disc disease at L3-L5. Several of the treating physicians concluded in
their reports that Eckert had stenosis or degeneration in his spine and that Eckert
complained of back pain. The ALJ found, however, that the objective evidence did
not support Eckert’s allegations as to the extent the pain prevented him from
15
working. Eckert testified that during the relevant time period he could only walk
500 feet, stand for fifteen minutes and sit for twenty minutes without changing
positions and lift only ten pounds. He also testified that during a typical day he
was not able to do much except lie on a couch. This testimony was inconsistent
with the medical evidence showing that his stenosis was mild or moderate, his pain
could be partially controlled with medication, and he could perform such activities
as carrying objects that weighed less than ten pounds, simple grasping, pushing, or
pulling, and could do occasional walking and standing while at work.
After giving specific reasons for rejecting the contradictory medical
evidence, the ALJ accepted the opinions of the treating neurosurgeon, Dr. Balis,
and the treating orthopedist, Dr. Capanioni, who both found that Eckert had only
mild or moderate degeneration of his spine and should be able to return to work.
See Oldham v. Schweiker, 660 F.2d 1078, 1084 (Former 5th Cir. Nov. 1981)
(holding that “the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion”). Thus, the credible medical evidence, as
found by the ALJ, did not confirm the severity of the alleged pain and the
objectively determined medical condition was not of such a severity that it can
reasonably be expected to give rise to the alleged pain.
In contrast to Eckert’s assertions, the ALJ’s decision did not omit or
16
mischaracterize the evidence regarding Eckert’s credibility. In finding that Eckert
had the ability for sustained concentration, the ALJ noted that he testified that he
was able to drive a car 180 miles to Tampa. Although, as Eckert explains, the ALJ
did not discuss the fact that Eckert also testified that it takes him six hours to
complete the trip and that he must stop at every rest stop, this testimony does not
refute the ALJ’s findings that Eckert can sustain concentration, regardless of how
long he can drive continuously. It is also irrelevant whether the ALJ considered
Mr. Whitford’s and Dr. Valenstein’s opinions on whether Eckert misrepresented
his medical condition, because the ALJ is the judge of a claimant’s credibility.
These professionals’ opinions on Eckert’s truthfulness do not support a finding that
the objective medical evidence confirms a condition that causes debilitating pain,
and regardless, the ALJ did consider and discredit the opinions of both Mr.
Whitford and Dr. Valenstein.
The ALJ found that Eckert suffers from low back pain and degenerative disc
disease. The ALJ also correctly found, supported by substantial evidence, that the
objective medical evidence does not confirm the severity of the alleged pain arising
from Eckert’s condition nor, is the objectively determined medical condition of
such a severity that it can be reasonably expected to give rise to the alleged
disabling pain. Additionally, the ALJ did not omit relevant medical evidence or
17
mischaracterize the medical evidence as alleged by Eckert on appeal. The ALJ’s
decision, rejecting Eckert’s credibility with respect to his subjective complaints of
pain, and finding that Eckert’s medical impairments did not prevent him from
performing some types of unskilled work, is supported by substantial evidence.
III. CONCLUSION
Eckert has appealed the district court’s affirming denial of his
applications for disability insurance benefits and supplemental security income.
As we have explained herein, the ALJ’s decision concerning denial of these
benefits is supported by substantial evidence. Accordingly, the district court’s
affirming denial of benefits to Eckert is AFFIRMED.
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