Cerqua v. Astrue(CONSENT)

Filing 21

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner for further proceedings. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 8/4/09. (Furnished to Bill Waxman and Judge Thigpen)(sl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION P A T R IC K J. CERQUA, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:08cv472-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Patrick J. Cerqua applied for disability insurance benefits under Title II of th e Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq. His application was denied at t h e initial administrative level and after reconsideration. Plaintiff then requested and re c eiv e d a hearing before an Administrative Law Judge (ALJ). Following the hearing, the A L J also denied the claims. (Tr. 13-20). The Appeals Council rejected a subsequent request f o r review. Plaintiff then appealed to this Court. On September 26, 2006, this Court, the H o n o ra b le Charles S. Coody, granted the Commissioner's motion to remand pursuant to s e n te n c e four of 42 U.S.C. § 405(g). Cerqua v. Barnhart, Civ. No. 01:06-cv-184-CSC (Doc. # 1 6 ). On remand, a second ALJ obtained a consultative record review and conducted a sec o n d hearing at which a vocational expert testified. The ALJ once again denied Plaintiff's c la im s (Tr. 299-307), and the Appeals Council rejected Plaintiff's request for review. The A L J 's decision consequently became the final decision of the Commissioner of Social

S ec u rity (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The c a s e is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 6 3 6 © , both parties have consented to the conduct of all proceedings and entry of a final ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (D o c . #13); Def.'s Consent to Jurisdiction (Doc. #12). Based on the Court's review of the re c o rd and the briefs of the parties, the Court REVERSES the decision of the Commissioner a n d REMANDS for further proceedings. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security. A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 2
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(1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981). 3

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th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r 's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ.

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See 20 C.F.R. pt. 404 subpt. P, app. 2. 4

H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s .

W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). III. ADMINISTRATIVE PROCEEDINGS P lain tiff was forty-one years old at the time of the second hearing before an ALJ. (Tr. 4 7 9 ). Plaintiff completed the twelfth grade. (Tr. 479). Plaintiff's past relevant work ex p erien ce included work as a tire technician, concrete mason, and mechanic. (Tr. 300, 483). F o llo w in g the administrative hearing, and employing the five-step process, the ALJ found P la in tif f had not engaged in substantial gainful activity since the alleged onset date of F e b r u a ry 1, 2002 (Step 1). (Tr. 300). At Step 2, the ALJ found that Plaintiff suffers from th e following severe impairments: "degenerative disc disease of the lumbar, thoracic[,] and c e rv ic a l spine; carpal tunnel syndrome in both hands[;] and residuals from a lumbar d iske ctom y." (Tr. 301). The ALJ then found that Plaintiff's impairments "are not severe en o u g h to meet or medically equal one of the [listed] impairments." (Step 3) (Tr. 301). N e x t, the ALJ found that Plaintiff retains the RFC to "perform sedentary work with a sit/sta n d option." (Tr. 302). Given this level of RFC, the ALJ determined that Plaintiff "is u n a b le to perform his past relevant work." (Step 4) (Tr. 304). Next, the ALJ consulted a VE

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to ascertain whether there exist jobs in significant numbers in the national economy which P la in tif f 's RFC would permit him to perform. The VE testified that Plaintiff's RFC and a d d itio n a l limitations permitted the performance of such occupations as "surveillance m o n ito r," "assembler," and "telemarketer." (Tr. 497). Accordingly, the ALJ determined that th e re are jobs existing in significant numbers in the national economy which Plaintiff can p erf o rm and that, hence, he is not disabled. (Tr. 305). IV . P L A I N T I F F 'S CLAIMS P la in tif f alleges three errors requiring reversal of the ALJ's decision:5 (1) "the ALJ e rre d as a matter of law when he failed to find that Mr. Cerqua was disabled through te stim o n y of pain or other subjective symptoms;" (2) "the ALJ erred as a matter of law when h e did not articulate explicit and adequate reasons for discrediting Mr. Cerqua's testimony re g a rd in g pain;" and (3) "the ALJ erred in failing to show good cause for not giving proper e v id e n tia ry weight to Dr. Perry Farb's medical opinions." Pl.'s Brief (Doc. #16) at 5, 9, 10. T h e Court will address each of Plaintiff's claims in turn. V. DISCUSSION A. T h e "pain standard" and the ALJ's finding of no disability despite P la in tiff's testimony about pain.6

The following quotes are taken from the all-capped headers which introduce the three portions of the "Argument" section of Plaintiff's brief. For convenience and cohesion, due to the interrelatedness of Plaintiff's first and second claims the Court will address those claims together. 6
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P lain tiff contends that the ALJ erred in his application of the Eleventh Circuit Court o f Appeals' "pain standard" to Plaintiff's claim about the disabling effects of his pain. Pl.'s B rie f (Doc. #16) at 5-9. Plaintiff also argues that the ALJ failed to give the requisite " e x p licit and adequate reasons for discrediting" Plaintiff's subjective testimony about his p a in . Pl.'s Brief (Doc. #16) at 9-10. Defendant asserts that the ALJ correctly found that P lain tiff has not satisfied the "pain standard," and that the ALJ properly "articulated explicit a n d adequate reasons for discounting Plaintiff's testimony. C o m m .'s Dec. (Doc. #19) at 7-11. T h e Eleventh Circuit has articulated its "pain standard" governing the evaluation of a claimant's subjective testimony about pain as follows: "In order to establish a disability based on testimony of pain and other s ym p to m s , the claimant must satisfy two parts of a three-part test showing: (1) e v id e n c e of an underlying medical condition; and (2) either (a) objective m e d ic a l evidence confirming the severity of the alleged pain; or (b) that the o b je c tiv e ly determined medical condition can reasonably be expected to give ris e to the claimed pain." W ils o n v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ evaluates the Memo. In Supp. Of The

" c la im a n t's subjective testimony of pain" only after the claimant satisfies the first and one o f the alternate portions of the second prong of the pain standard. Foote v. Chater, 67 F.3d 1 5 5 3 , 1560 (11th Cir. 1995). The Eleventh Circuit has also held that, "in certain situations, p a in alone can be disabling, even when its existence is unsupported by objective evidence." Id . at 1561. Importantly, it is only evidence of the underlying condition which could

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r e a so n a b l y be expected to cause pain, not evidence of actual pain or its severity, which must b e presented by the claimant to satisfy the "pain standard." Elam v. Railroad Retirement Bd., 9 2 1 F.2d 1210, 1215 (11th Cir. 1991). See also Foster v. Heckler, 780 F.2d 1125, 1129 (4th C ir. 1986); Hill v. Barnhart, 440 F.Supp.2d 1269, 1272-73 (N.D. Al. 2006) (quoting Elam, 9 2 7 F.2d at 1215). Where the ALJ proceeds to consider the claimant's subjective testimony a b o u t pain, the ALJ's decision to reject or discredit such testimony is reviewed for substantial e v id e n c e . Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Finally, if the ALJ d e te rm in e s to discredit subjective pain testimony and such testimony is crucial to the c la im a n t's assertion of disability, the ALJ "must articulate specific reasons for questioning th e claimant's credibility." Id. The record is replete with documentation of Plaintiff's allegations of pain and c o r re s p o n d i n g physician treatments. Moreover, at the second hearing before an ALJ, P lain tiff testified generally about the limitations on his ability to do work and other daily a c tiv itie s resulting from his pain (Tr. 485-88), and stated that, on a scale of one to ten, his p a in at the time of the hearing was "[a]bout a seven or eight." (Tr. 488). He further testified a b o u t "real severe pain in my lower back" caused by standing in one place for fifteen to thirty m inu tes and other pains resulting from remaining stationary for "under an hour." (Tr. 489). P lain tiff also testified that his back was "killing" him at the time of the hearing. (Tr. 491). T h e ALJ determined that the record supports a finding that Plaintiff suffers from, inter a lia , degenerative disc disease. (Tr. 303). However, in reviewing the medical evidence, the 8

A L J determined that there is a "vast disparity between the claimant's subjective complaints [ a b o u t pain] and the medical evidence." (Tr. 301). Thus, the ALJ concluded that, [a]fter completing this review of the claimant's testimony and the pertinent m e d i c a l reports, the undersigned finds that the preponderance of the most c r e d ib le evidence has not established the existence of either single or c o m b i n e d medical conditions which could reasonably be expected to produce sym p to m s in the severity, frequency[,] and duration necessary to significantly c o m p ro m is e the claimant's performance of all forms of gainful activity. (Tr. 302). In concluding that Plaintiff does not have an impairment which could reasonably b e expected to produce disabling pain like that described by Plaintiff, the ALJ gave " c o n tro llin g weight" to the consultative review by Dr. Lorber (Tr. 343-357) and further noted s e v e ra l other circumstances, including: 1) that "no credible treating or consultative physician h a s opined that the claimant was disabled because of any physical condition or from resulting sym p to m s;" (2) that Plaintiff's counsel had failed to further supplement the record with a d d itio n a l medical evidence despite their request to keep the record open for a period of th irty days; (3) that Plaintiff is able "to engage in a wide array of activities of daily living;" (4 ) "that the claimant's clinical examination findings have often been found to be normal or m in im a lly abnormal[] and the objective diagnostic evidence of record has been sparse;" (5) th a t the record does not "contain any hospitalizations for the claimant for physical conditions sin c e his alleged onset of disability; and (6) that the record indicates Plaintiff's impairments c a n be successfully treated with prescribed medications, such that his "symptomatology" is m itigated . (Tr. 303-04).

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A lth o u g h the ALJ appropriately set out the "pain standard" (Tr. 301), the Court notes th a t the ALJ's resolution of this issue is ambiguous, at best. The ALJ prefaces his analysis b y remarking that, in order to "determine the claimant's residual functional capacity, the A d m in is tra tiv e Law Judge carefully reviewed the medical evidence as well as the testimony o f the claimant." (Tr. 301).7 Then, the ALJ appears, on the one hand, to find that there is no e v id e n c e of a condition which one might reasonably expect to cause the pain alleged by P l ain tif f . (Tr. 302). Then, on the other hand, the ALJ appears to discredit Plaintiff's t es tim o n y about the severity of his pain - without ever explicitly deeming Plaintiff's te stim o n y incredible - based on his review of the record and the other circumstances cited by th e ALJ and highlighted above. (Tr. 302-04). Thus, in this Court's view, it appears that the A L J somehow blended the two discrete inquiries before him in assessing Plaintiff's claim o f disabling pain. The Court is sympathetic to this tendency given the tomes of

a d m in is tra tiv e regulations and case law required to distill the proper method of analysis for th e se types of claims. Indeed, the very amorphous, "difficult to quantify," 20 C.F.R. 404 § 1 5 2 9 (c )(3 ), nature of pain itself only further muddies these waters. In any event, it is the C o m m is s io n e r's duty, subject to review by this Court, to afford Plaintiff proper consideration o f his claim of disabling pain. Because the ALJ's opinion makes it difficult to discern and

The ALJ's concern about assessing Plaintiff's RFC at that point in his opinion strikes the Court as peculiar, as, under the pain standard, the ALJ is first simply to determine whether objective medical evidence in the record permits the claimant to pass through the threshold of "reasonable expectation" such that Plaintiff may then endeavor to prove his disability through subjective testimony about his pain, subject to the ALJ's credibility findings. 10

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re v ie w his precise findings with respect to the "pain standard" and Plaintiff's credibility, the C o u rt finds it prudent to reverse and remand to the Commissioner for reconsideration, with th e following observations. F irs t, it is evident to the Court that Plaintiff has at least initially passed through the g a te w a y function of the "pain standard." Clearly, there is "evidence of an underlying m e d ic a l condition," in this case degenerative disc disease as well as evidence of "bulging d iscs" and "herniated discs." The ALJ recognized as much. (Tr. 303). However, the Court a ls o finds that Plaintiff's "objectively determined medical condition can reasonably be e x p e cte d to give rise to the claimed pain." Wilson, 284 F.3d at 1225. Again, it is important to note that, at this juncture, Plaintiff is not required to provide objective evidence of the pain its e lf . Elam, 921 F.2d at 1215. Rather, Plaintiff must simply provide objective medical e v id e n c e that his underlying medical condition(s) could reasonably be expected to cause his p a in . There is sufficient objective medical evidence in the record to support this conclusion. F o r instance, Plaintiff's August, 2000, MRI revealed "multi-level degenerative disc disease," " [ s ]c a r material encas[ing] the left L4 nerve root" with disc bulging in the area, and a disc h e rn ia producing stenosis and which "may abut the descending S1 nerve roots" accompanied b y "facet degeneration." (Tr. 119, 176). Defendant often suffered spasms and abnormal a m b u latio n . (Tr. 177, 138). Defendant has a long history of treatment with powerful pain m e d ica tio n s, including Oxycontin, methadone, and epidural steroid injections (Tr. 373), in e f f o rts to treat his pain. Whatever modest successes he may have periodically enjoyed with

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s u c h treatments are balanced by his physicians' determinations to increase his dosages of O x yc o n tin as well as prescribe the epidural injection treatments. Thus, Plaintiff's medication h is to ry suggests a real and concerted effort to alleviate substantial pain. In November of 2 0 0 1 , another MRI revealed "[r]ight posterior disc herniation [at C5-6] or spur involving p ro x i m a l right C6 root." (Tr. 118, 152). The sum of this objective medical evidence, in c lu d in g evidence of degeneration, scarring, disc bulging, and herniation possibly affecting n e rv e roots, compels the conclusion that Plaintiff's condition(s) could reasonably be expected to cause the pain Plaintiff alleges. To the extent the ALJ intended a contrary finding, such d e c is io n is reversed. A c c o r d i n g l y, the inquiry becomes whether or not Plaintiff's allegations about the s e v e rity of his pain are credible, and if the ALJ's reasons, if any, for discrediting such a lle g a tio n s are articulated explicitly and adequately and are supported by substantial e v id e n c e. In short, the Court finds that, to the extent the ALJ intended to pass on the c re d ib ility of Plaintiff's subjective pain testimony - a proposition which is not entirely clear f ro m the ALJ's opinion - his reasoning is not supported by substantial evidence. Numerous of the reasons given by the ALJ for finding Plaintiff's pain non-disabling a re irrelevant or unsupported. First, Dr. Lorber's consultative review, which the ALJ deemed " c o n tro llin g " and "extremely significant" (Tr. 303), does not address Plaintiff's allegations o f pain. It merely briefly summarizes the medical evidence and opines that Plaintiff can do a restricted range of sedentary work. (Tr. 346). Furthermore, the ALJ relied upon the fact 12

th a t "no credible treating or consultative physician has opined that the claimant was d is a b le d ." This assertion is not entirely borne out by the record. Dr. Farb, Plaintiff's treating p h ys ic ia n , remarked that, after selling his tire business, Plaintiff "really can't do any other jo b s ." (Tr. 146). A fair construction of the record is that this remark was merely a recitation o f Plaintiff's subjective complaint to his physician, rather than an actual physician a ss e ss m e n t. However, it is also possible that Dr. Farb, in view of his lengthy treating re la tio n s h ip with Plaintiff, was articulating his own opinion based on that history. See Hill, 4 4 0 F.Supp.2d at 1276. To the extent this salient point is unclear, the ALJ could have rec o n ta c te d Dr. Farb for clarification or subjected his opinion to the appropriate scrutiny re q u ire d to overcome the deference owed treating physician opinion. The ALJ's failure to d o either, and his outright summary rejection of Dr. Farb's statement, undermines his naked a ss e rtio n that "no credible treating or consultative physician" had found Plaintiff disabled. F u r th e rm o re , Plaintiff's counsel's failure to supplement the record with additional evidence a f te r the hearing (Tr. 303) is immaterial and is an inappropriate basis upon which to conclude that Plaintiff's subjective allegations of pain are incredible. The ALJ's reliance on Plaintiff's " w id e array of activities of daily living" as evidence contradicting his subjective allegations o f pain is also unsupported by substantial evidence. Plaintiff did testify that he can drive s h o rt distances, adequately bathe (while sitting) and groom himself, load the washing m a c h in e , grocery shop with the assistance of his teenaged children, and do some light c o o k in g . However, Plaintiff's contemporaneous testimony about the extensive limitations

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c a u se d by his pain suggests that the array of activities he can handle is more modest than " w id e ." Hence, the ALJ's reliance on Plaintiff's testimony about his daily activities does not le n d "substantial" support to his ultimate conclusion that Plaintiff is not disabled. See Foote, 6 7 F.3d at 1561 (ALJ's reliance on claimant's testimony about ability to cook and shop was in a p p ro p ria te given other cogent testimony about claimant's limitations). In light of all of th e above, and especially considering the ambiguity surrounding the ALJ's disposition of P la in tif f 's claim, the Court finds that the ALJ's presumed decision that Plaintiff's subjective te stim o n y about his pain is incredible is not supported by substantial evidence. T o the extent the ALJ held that Plaintiff failed to offer objective medical evidence of a condition which could reasonably be expected to cause the pain alleged by Plaintiff, the A L J 's decision is not supported by substantial evidence and is due to be reversed and re m a n d e d . To the extent the ALJ held that Plaintiff's subjective pain testimony is incredible, s u c h decision is not supported by substantial evidence and is due to be reversed and r e m a n d e d .8 V I. CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is REVERSED and this matter is REMANDED to the C o m m is s io n e r for further proceedings. A separate judgment will issue.

Because the Court reverses and remands with respect to Plaintiff's first and second claims, the Court need not address Plaintiff's third claim. 14

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D O N E this 4th day of August, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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