Smith v. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 2/1/2010. (wcl, )

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 R O B E R T MICHAEL SMITH, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:09cv168-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P lain tiff Robert Michael Smith applied for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq, and supplemental security inco m e benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-1381c. His applications were d e n ie d at the initial administrative level. Plaintiff then requested and received a hearing b e f o r e an Administrative Law Judge (ALJ). After conducting an evidentiary hearing, the A L J also denied the claims. (Tr. 16-28). The Appeals Council rejected a subsequent request f o r review. The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to

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.

1

2 8 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Ju risd iction (Doc. #14); Def.'s Consent to Jurisdiction (Doc. #13). Based on the Court's re v ie w of the record and the briefs of the parties, the Court AFFIRMS the decision of the C o m m i s s io n e r . 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). (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 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
2

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 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 Guidelines 4 (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
3

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).
4

See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

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 iss 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. 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). 4

III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-one years old and had completed high school at the time of the

h e a rin g before the ALJ. Tr. 34. Plaintiff's past relevant work experience included work as a machine operator, airport utility worker, granite installer, and truck driver. Tr. 26, 59. F o llo w in g the administrative hearing, and employing the five-step process, the ALJ found P la in t if f had not engaged in substantial gainful activity since the alleged onset date of August 6 , 2006 (Step 1). Tr. 18. At Step 2, the ALJ found that Plaintiff suffers from the following s e v e re impairments: "Chronic Atrial Fibrillation, History of Congestive Heart Failure, D e g e n era tiv e Joint Disease Right Knee, Gout, Morbid Obesity, and History of Obstructive S le e p Apnea." Tr. 18. The ALJ then found that Plaintiff "does not have an impairment or c o m b in a tio n of impairments that meets or medically equals one of the listed impairments." (S te p 3) Tr. 18. Next, the ALJ found that Plaintiff retains the RFC to "perform less than the f u ll range of sedentary work . . . " with additional limitations set out in the ALJ's opinion. T r. 19. Given this level of RFC, and after consulting with a vocational expert, the ALJ d e te rm in e d that Plaintiff "is unable to perform any past relevant work." (Step 4) Tr. 26. The A L J then found that, "[c]onsidering the claimant's age, education, work experience, and re sid u a l functional capacity, there are jobs that exist in significant numbers in the national e c o n o m y that the claimant can perform." Tr. 27. Based on the testimony of a vocational e x p e rt, the ALJ found that, considering the limitations on Plaintiff's ability to perform the f u ll range of sedentary work, Plaintiff is able to perform the occupational demands of

5

" S u rv e illa n c e System Monitor," "Information Clerk," and "Assembler." Tr. 27-28, 60-61. A c c o rd in g ly, the ALJ found that Plaintiff is not disabled. Tr. 28. IV. P L A I N T I F F 'S CLAIMS P la in tif f presents two issues for this Court's review - whether "the Commissioner e rre d as a matter of law by failing to properly evaluate the Plaintiff's complaints in finding th a t the Plaintiff's allegations of pain and functional limitations to the degree alleged are not s u p p o rte d by the evidence in the record," and whether "the Commissioner erred as a matter o f law in failing to accord proper weight to the claimant's treating physician's opinion." Pl.'s B rie f (Doc. #10) at 1-2. V. DISCUSSION A. T h e ALJ's evaluation of Plaintiff's complaints of pain.

P la in tif f claims that "the Commissioner erred in discrediting the Plaintiff['s c o m p la in ts about pain and functional limitations] and the substantial evidence demonstrates th a t the pain and functional limitations of the claimant are disabling." Pl.'s Brief (Doc. #10) a t 12. Defendant maintains that "the ALJ articulated valid reasons for declining to credit e n tire ly Plaintiff's subjective complaints, and the ALJ's reasoning is well supported by the re c o rd . . . ." Def.'s Brief (Doc. #11) at 13. T h e Court of Appeals for the Eleventh Circuit has articulated its "pain standard," g o v e rn in g the evaluation of a claimant's subjective testimony about pain, as follows:

6

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

" 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 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.

7

A t the hearing before the ALJ, the Plaintiff provided some testimony about his pain a n d functional limitations. Plaintiff testified that his heart and knee related ailments are the o n ly medical problems which make him purportedly unable to work. Tr. 45. Under q u e s tio n in g by his attorney, Plaintiff testified as follows: Q W h at about concentrating on things as far as the pain that you're s u f f erin g from, the heart problems and the limitations associated with the knee a n d the heart? Does that affect your ability to concentrate or [INAUDIBLE] p re ss u re ? Talk to the Judge about that if you have any problem in that area. A W e ll, the pain does impact my concentration. The pain in my k n e e or you know ­ and all gets so severe sometimes. You know, I just have to basically do the best I can to block it out. I have medicine to take for it but I try sometimes to try to block it out to keep from putting so much medication in my body. You know, trying to you know, deal with the pain but sometimes it's hard to deal with the pain. Q W h e n you're doing ­ as you're sitting there right now what's the s itu a tio n regarding your knee and the pain and any other limitations or p ro b le m s you're having right now? A W e ll, right now my knee's throbbing and just basically u n c o m f o r ta b le sitting in the chair and all. I just ­ I basically hurt all over but I just ­ you know, I do the best I can to you know, reside you know, with the p a in . Tr. 53-54. In his opinion, the ALJ discussed Plaintiff's testimony about his pain and functional lim ita tio n s . Tr. 19-20. The ALJ then found, however, that "[a]fter considering the evidence o f record, the undersigned finds that the claimant's medically determinable impairments c o u l d reasonably be expected to produce the alleged symptoms; however, the claimant's statem en ts concerning the intensity, persistence and limiting effects of these symptoms are

8

n o t credible to the extent they are inconsistent with the residual functional capacity a ss e ss m e n t" articulated by the ALJ. Tr. 21. The ALJ articulated numerous reasons for his d e c is io n to only partially credit Plaintiff's testimony. The ALJ noted his finding that the o b je c tiv e medical evidence concerning Plaintiff's chronic atrial Fibrillation lacks any a ss e ss m e n t or other evidence indicating that Plaintiff's "functional capacity is of a disabling d e g re e ." Tr. 21. Likewise, in reviewing the evidence concerning Plaintiff's degenerative jo in t disease in his right knee, the ALJ found that the evidence is "silent as to the effects of th is impairment and the related surgery on claimant's functional capacity." Tr. 21. The ALJ a ls o extensively discussed Plaintiff's treatment records and relied upon the physical RFC a ss e ss m e n t in the record and Plaintiff's description of his daily activities in deciding to only p a rtia lly credit Plaintiff's testimony about his functional limitations. Tr. 23-26. S u b s ta n tia l evidence supports the ALJ's decision. It should first be noted that P lain tiff points to no evidence in the record which objectively demonstrates that Plaintiff's R F C is less than that established by the ALJ.5 Rather, Plaintiff's argument appears Plaintiff insists there are

p red icated on a misunderstanding of the ALJ's decision.

" u n d e rlyin g medical conditions that would reasonably support the existence of pain and fu n ctio n al limitations about which the claimant complains." Pl.'s Brief (Doc. #11 at 11). Plaintiff's allusion to Dr. Banner's report (see Pl.'s Brief (Doc. #11) at 12) is unavailing, as Dr. Banner opined no disabling condition and noted that Plaintiff "demonstrated no pain or difficulty getting on and off table" during "Locomotor" testing. Tr. 238. Plaintiff's reliance on Dr. Dehaven's treatment notes (Pl.'s Brief (Doc. #11) at 12) is also unavailing, as Dr. Dehaven also never opined any disabling condition and even envisioned Plaintiff being able to return to work. Tr. 232. 9
5

P la in tif f also states that "Dr. Banner did not state that he disbelieved the Plaintiff's claims o f medical problems." Id. at 12. It is clear, however, that the ALJ did indeed find that "the c la im a n t's medically determinable impairments could reasonably be expected to produce the alleg ed symptoms" of Plaintiff, but that the evidence did not support a finding that Plaintiff's sym p tom s are wholly disabling. Tr. 21. Thus, the ALJ did not "disbelieve[] the Plaintiff's c la im s of medical problems." Indeed, considering Plaintiff's claims and all of the evidence b ef o re him, the ALJ formulated a very restrictive RFC in which Plaintiff can only perform le ss than the full range of sedentary work. Substantial evidence in the record, including the P h ysic a l Residual Functional Capacity Assessment (Tr. 242-249), which attributed to P lain tiff the RFC for light work, and Plaintiff's treatment history, which reflects a largely co n serv ativ e and generally successful treatment of Plaintiff's symptoms, supports the ALJ's d ec isio n . Accordingly, the ALJ did not err in deciding to only partially credit Plaintiff's s ta te m e n t s and testimony about the extent of his pain and functional limitations. B. T h e ALJ's treatment of Plaintiff's treating physician's opinion.

P la in tif f claims the ALJ erred in rejecting the opinion of Plaintiff's treating physician, D r. Rasmussen, that Plaintiff "is permanently disabled due to medical conditions." Tr. 287. P la in tif f claims "that the opinion of Dr. Rasmussen[,] while very short[,] is fully bolstered b y a lengthy treatment history, hospitalizations, surgery, medication prescribed, consultative e x a m , and treatment notes." Pl.'s Brief (Doc. #11) at 14. Defendant maintains that the A L J 's decision to discredit Dr. Rasmussen's opinion was appropriate and is supported by 10

s u b s ta n tia l evidence in the record. W h e n confronted with the opinion of a claimant's treating physician, the ALJ must a f f o rd it substantial and considerable weight unless "good cause" is shown to the contrary. C r a w fo r d v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). See also Bliss v. C o m m 'r of Soc. Sec., 254 F. App'x 757, 758 (11th Cir. 2007) ("An ALJ may reject the o p in io n of a treating physician, which ordinarily receives substantial weight, where `good c a u se ' is established."). "`[G]ood cause' exists when the: (1) treating physician's opinion w a s not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating p h ys ic ia n 's opinion was conclusory or inconsistent with the doctor's own medical records." P h i llip s v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). "Where the ALJ articulated s p e c if ic reasons for failing to give the opinion of a treating physician controlling weight, and th o s e reasons are supported by substantial evidence," a reviewing court may not "disturb the A L J 's refusal to give the opinion controlling weight." Carson v. Comm'r of Soc. Sec., 2008 W L 4962696 at *1 (11th Cir. Nov. 21, 2008). On November 5, 2007, Plaintiff's treating physician, Dr. Rasmussen, produced the f o l l o w in g note addressed to "To Whom it May Concern": "Mr. Robert Smith is under my m e d ic a l care and is permanently disabled due to medical conditions. His medical condition is congestive heart failure along with chronic atrial Fibrillation. He became disabled in 2 0 0 6 ." Tr. 287. This constitutes the entirety of the "opinion" on which Plaintiff's claim is b a se d . In addressing this opinion, the ALJ stated: 11

A s claimant's treating doctor, Dr. Rasmussen's opinion was given due c o n sid e ra tio n . However, the relevant medical evidence is lacking from the m e d ic a l evidence of record, and Dr. Rasmussen's opinion of disability is not s u p p o rte d by his own notations and medical diagnoses as found in the medical r e c o r d . The treating physician records of Dr. Rasmussen do not support a d is a b lin g level symptomatology, with very sparse reference to fatigue, malaise, o r Gout exacerbations. T r. 25. Plaintiff necessarily concedes that Dr. Rasmussen's opinion is indeed "very short." P l.'s Brief (Doc. #11) at 14. It should also be noted that Dr. Rasmussen's opinion is that P lain tiff 's disability is a result of his heart-related conditions only, not those pertaining to his k n ee . It is further telling that, although Dr. Rasmussen opined the onset of Plaintiff's " p e rm a n e n t disability" in 2006, his treatment notes from that period evince no such p h e n o m e n o n . Dr. Rasmussen saw Plaintiff in April of 2005 and treated him for "upper re sp ira to ry infection." Tr. 252. His next visit with Plaintiff did not occur until January 8, 2 0 0 7 , when he saw Plaintiff for treatment of his foot pain or gout. Tr. 251. Dr. Rasmussen s a w Plaintiff again on January 26, 2007, and again treated Plaintiff for "Acute Gouty A rth ritis." Tr. 250. A follow-up visit on February 5, 2007, concerned only Plaintiff's p r o g r e s s with his anticoagulant "Coumadin regimen," which, according to the note, was n o rm a l. Tr. 250. Thus, there is simply no indication in Dr. Rasmussen's notes from the re le v a n t time period that Plaintiff's heart-related impairments rendered him disabled in 2006. M o re o v e r, for the reasons discussed above, it is evident that Dr. Rasmussen's opinion is not s u p p o rte d by the evidence in the record as a whole, as no other physician or reviewer opined 12

th a t Plaintiff's impairments render him disabled. Because "the ALJ articulated specific r e a so n s for failing to give the opinion of [Dr. Rasmussen] controlling weight, and those rea so n s are supported by substantial evidence," the Court finds no error in the ALJ's d e c is io n . VI. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 1st day of February, 2010.

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

13