Gulledge v. Astrue

Filing 14

MEMORANDUM OPINION. Signed by Honorable Charles S. Coody on 12/17/2010. (wcl, )

Gulledge v. Astrue (CONSENT)

Doc. 14

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 T O R R I R. GULLEDGE, P la in tif f , v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF S O C IA L SECURITY, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 1:09cv1097-CSC (WO)

M E M O R A N D U M OPINION I . Introduction T h e plaintiff applied for supplemental security income benefits under Title XVI of the S o c ia l Security Act, 42 U.S.C. § 1381 et seq., and disability insurance benefits pursuant to T itle II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that she was unable to w o rk because of a disability. Her application was denied at the initial administrative level. The plaintiff then requested and received a hearing before an Administrative Law Judge (" A L J " ). Following the hearing, the ALJ also denied the claim. The Appeals Council re je c te d a subsequent request for review. The ALJ's decision consequently became the final d e c is io n of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 7 9 2 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review 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.

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42 U.S.C. §§ 405 (g) and 1383(c)(3). T h e parties have consented to the United States Magistrate Judge conducting all p ro c e e d in g s in this case and ordering the entry of final judgment, pursuant to 28 U.S.C. § 6 3 6 (c )(1 ) and M.D. Ala. LR 73.1. Based on the court's review of the record in this case and th e briefs of the parties, the court concludes that the decision of the Commissioner should b e affirmed. 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 rs o n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e te rm 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 . . . To make this determination,2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) (2 ) (3 ) (4 ) (5 ) Is the person presently unemployed? Is the person's impairment severe? D o e s 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? Is the person unable to perform his or her former occupation? 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 s tio n , or, on steps three and five, to a finding of disability. A negative

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.

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answer 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 standard of review of the Commissioner's decision is a limited one. This court m u s t find 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 (11 th 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). A reviewing court may not look only to those parts of th e record which supports the decision of the ALJ but instead must view the record in its e n tire ty and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e s s of the [Commissioner's] . . . factual findings . . . No similar p re s u m p tio 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 (11 th Cir. 1987).

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) (Unit A).

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III. The Issues A . Introduction. Plaintiff Torri Gulledge4 ("Gulledge") was 48 years old at the time o f the hearing before the ALJ. (R. 35). She has a high school education and three years of c o lle g e . (R. 36). Her prior work experience includes work as a retail sales clerk, patients s e rv ic e manager, office manager, claims adjustor and billing manager. (R. 51). Following th e hearing, the ALJ concluded that the plaintiff has a severe impairment of "degenerative d is c disease." (R. 13). The ALJ concluded that Gulledge could not perform any of her past re le v a n t work, (R. 16), but she had the residual functional capacity to perform sedentary w o rk . (R. 14). Relying on the testimony of a vocational expert, the ALJ concluded that there w e re jobs existing in significant numbers in the national economy that Gulledge could p e rf o rm . (R. 17). Consequently, the ALJ concluded that she was not disabled. (Id.). B. The Plaintiff's Claim. As stated by the plaintiff, the sole issue before the court is "[t]he Commissioner's decision should be reversed, because the ALJ failed to properly a p p ly the two part pain standard." (Doc. # 11, Pl's Br. at 6). It is to this issue that the court n o w turns. I V . Discussion G u lle d g e contends that the ALJ erred when he failed to properly credit her testimony re g a rd in g the severity of her pain. As explained below, the ALJ did not fully credit G u lle d g e 's testimony. "Subjective pain testimony supported by objective medical evidence
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The plaintiff has used several names including Torri Regina Theis, Torri Regina McLaughlin, Torri R. Swinford, and Torri R. Gulledge. (R. 126, 133).

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of a condition that can reasonably be expected to produce the symptoms of which the p la in tif f complains is itself sufficient to sustain a finding of disability." Hale v. Bowen, 831 F .2 d 1007 (11th Cir. 1987). The Eleventh Circuit has established a three-part test that applies w h e n a claimant attempts to establish disability through her own testimony of pain or other s u b je c tiv e symptoms. Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986); see also Holt v . Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). This standard requires evidence of an u n d e rlyin g medical condition and either (1) objective medical evidence that confirms the s e v e rity of the alleged pain arising from that condition or (2) an objectively determined m e d ic a l condition of such severity that it can reasonably be expected to give rise to the a lle g e d pain. Landry, 782 F. 2d at 1553. In this circuit, the law is clear. The Commissioner m u s t consider a claimant's subjective testimony of pain if he finds evidence of an underlying m e d ic a l condition and the objectively determined medical condition is of a severity that can re a s o n a b ly be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460, 1 4 6 2 (11th Cir. 1986); Landry, 782 F.2d at 1553. Thus, if the Commissioner fails to articulate re a s o n s for refusing to credit a claimant's subjective pain testimony, the Commissioner has a c c e p te d the testimony as true as a matter of law. This standard requires that the articulated re a s o n s must be supported by substantial reasons. If there is no such support then the te s tim o n y must be accepted as true. Hale, 831 F.2d at 1012. A t the administrative hearing, the plaintiff testified that she is disabled due to her c h ro n ic pain in her back, hips, leg and right foot. (R. 43-44). She testified that she has had

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three back surgeries, the last one in 2004. (R. 42-43). She uses a cane even though her d o c to r did not prescribe one for her. (R. 41). "The doctor told me that I could pick one up if necessary." (Id.) She further testified that she can do laundry and vacuum (R. 40), but it ta k e s her three hours to recover from the physical exertion. (R. 46). She does grocery s h o p p in g with her husband. While she can, and does sometimes, drive, her husband usually d o e s most of the driving. (R. 41). A f te r reciting Gulledge's testimony, and reviewing the medical evidence, the ALJ a c k n o w le d g e d that Gulledge has impairments that could reasonably be expected to produce th e type of pain about which she complains but the ALJ then concluded that Gulledge's s ta te m e n ts "concerning the intensity, persistence and limiting effects of these symptoms are n o t credible to the extent they are inconsistent with the above residual functional capacity a s s e s sm e n t." (R. 16). If this were the extent of the ALJ's credibility analysis, the plaintiff might be entitled to some relief. However, the ALJ also discredited the plaintiff's testimony based on the f o llo w in g . The claimant alleges back pain which radiates into her hips, down her right le g , and into her right foot. She states that her sleep is interrupted because of h e r pain, and that she needs to be off her feet for up to three hours a day. She s ta te s that she can do no full-time work and lift nothing over two pounds. She s ta te s that she can only sit for one hour in a day, stand only two hours in a day, a n d walk, with a cane, only up to three blocks. She also states that her memory a n d concentration are poor and she is groggy when taking her pain medication. The claimant's husband testified that the claimant is fatigued and lies down d u rin g the day. He also stated that she can cry because of the intensity of her p a in , and that she does not take her pain medication as she should. 6

The claimant has alleged extreme limitations resulting from her back pain, but I do not find persuasive support for such extreme limitations in her routine and c o n s e rv a tiv e treatment record (Exhibits 8F, 9F, 10F, 11F, 12F). The claimant h a d back surgery in 1995 and in 2004, but she has required no emergency in te rv e n tio n or hospitalizations because of her back during the time period p e rtin e n t to this decision (Exhibits 1F, 3F). Since her alleged disability onset d a te , the claimant's treatment has been routine, conservative, and sporadic. P h ys ic a l examinations do not reveal significant limitations in her physical c o n d i t i o n , mobility, or range-of-motion. A State agency consultative e x a m in a tio n performed in October 2006 was relatively unremarkable. The c la im a n t complained of back pain, but she was noted to be able to get on and o f f the examination table, lie down and sit back up, and take her shoes on and o f f without assistance. Her gait was described as "grossly normal" and her f in g e r to nose maneuver, heel-knee maneuver, and Romberg tests were u n re m a rk a b le . The claimant had normal dexterity and grip and pinch strength. After this thorough examination, it was suggested that the claimant could lift u p to 20 pounds in a work setting. I have further reduced the claimant to s e d e n ta ry exertion to fully accommodate all possible limitations. The e x a m in e r also suggested that the claimant's postural activities be limited to no m o re than occasional, and the RFC adopted here is consistent with this s u g g e s tio n (Exhibit 5F). T h e record contains two examinations by the claimant's treating physician f r o m 2007, but these treatment notes do not support a more restrictive d e te rm in a tio n . The examination from May 2007 noted the claimant's chronic lo w back problem, but, as for the claimant's complaint of pain shooting into h e r right leg and into her right foot, the record indicates this only occurs "every f e w weeks." In addition, it was noted that the claimant's pain was generally c o n tro lle d by over-the-counter medication, and the claimant was noted to have n o rm a l movement in all her extremities and a normal gait (Exhibit 9F/2-4). Her examination in July 2007 was relatively similar to that from May. It was n o te d that the claimant had started taking Feldene for her pain, but the record s h o w s this resulted in "good pain relief" (Exhibit 9F/5-6). The claimant c o m p l a i n e d of severe symptoms of grogginess and decreased concentration w ith her medication, but I find no reference to any significant issue relating to h e r mental functioning. Indeed, the only reference to potential side-effects f ro m medication is during her July 2007 examination where it was noted that s h e was having some loose stool at that time. However, I find no reference to s ig n if ic a n t side-effects from medication either prior to or after this a p p o in tm e n t which would support a more restrictive finding. I cannot find the 7

claimant's statements concerning extreme limitations credible without some c o rro b o ra tio n in her medical record. T re a tm e n t records from 2008 continue to remain relatively unremarkable, and th e y do not reasonably support a more restrictive determination. In January 2 0 0 8 , the claimant was treated for an acute exacerbation of her sciatica, and s h e was prescribed Celebrex, Neurontin, and Lortab (Exhibit 12F/1). However, by March 2008, the claimant was described as "doing fairly well." It was noted that she had tried doing some yard work with a rake, but that this e x a c e rb a te d her back pain. The claimant was offered refills on her pain m e d ic a tio n , but she indicated that she did not use her Lortab that often and, s in c e she still had medication left, she did not need a refill on it (Exhibit 1 2 F /2 ). I find the claimant's back pain exacerbation while doing yard work e n tire ly consistent with this decision because that type of work would have re q u ire d an exertional level and postural movements beyond that which is d e te rm in e d here. Likewise, I find the statements concerning the claimant's lim ite d use of her pain medication consistent with a finding that her limitations d o not occur with a frequency or intensity which would preclude regular and c o n tin u o u s work at a sedentary exertion. It is also noted, that the record c o n ta in s no reference to any significant side-effects from her medication, as d is c u s s e d above. Although there is no persuasive support that the claimant's m e d ic a tio n causes grogginess, the record shows she does, at least occasionally, ta k e prescribed medication for her pain, so I find it reasonable to limit her to n o more than unskilled work (20 CFR 404.1568(a) and 416.1568(a)) to a c c o m m o d a te any issue with grogginess. I cannot find that it limits her further than this or otherwise precludes all work without some corroboration of such lim ita tio n s in her medical treatment records. (R. 14-16). F i n a lly, the ALJ concluded that while Gulledge's "treatment records reasonably e s ta b lis h that she had degenerative disc disease and that it causes her pain, . . . the routine and c o n s e rv a tiv e nature of her treatment and her statements during those appointments do not s u p p o rt a finding that her limitations occur with a frequency or intensity which would p re c lu d e all work." (R. 16).

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Where an ALJ decides not to credit a claimant's testimony, the ALJ must articulate s p e c if ic and adequate reasons for doing so, or the record must be obvious as to the credibility f in d in g . Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Jones v. Dep't. of Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons must be based on s u b s ta n tia l evidence). If proof of disability is based on subjective evidence and a credibility d e te rm in a tio n is, therefore, critical to the decision, "`the ALJ must either explicitly discredit s u c h testimony or the implication must be so clear as to amount to a specific credibility f in d in g .'" Foote, 67 F.3d at 1562, quoting Tieniber, 720 F.2d at 1255 (although no explicit f in d in g as to credibility is required, the implication must be obvious to the reviewing court). The ALJ has discretion to discredit a plaintiff's subjective complaints as long as he provides " e x p lic it and adequate reasons for his decision." Holt, 921 F.2d at 1223. Relying on the tre a tm e n t records and objective evidence, the ALJ concluded that the plaintiff's underlying c o n d itio n s are capable of giving rise to some pain and other limitations, but not to the extent d e s c rib e d by the plaintiff. Consequently, he discredited the plaintiff's testimony that she s u f f e rs from disabling, intractable pain. After a careful review of the record, the court c o n c lu d e s that the ALJ's reasons for discrediting the plaintiff's testimony were clearly a rtic u la te d and supported by substantial evidence.5 T h e medical records support the ALJ's conclusion that while Gulledge has conditions th a t could reasonably be expected to produce pain, Gulledge was not entirely credible in her
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Indeed, the ALJ in this case was remarkably thorough in his analysis, a thoroughness which the court very much appreciates.

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description of that pain. For example, Gulledge testified that although she experiences pain d a ily, she has not sought treatment from a specialist in several years. (R. 44). She testified th a t she takes Celebrex, Neurontin and Flexeril for the pain. (R. 45). However, in October 2 0 0 6 , she told the consultative examiner that she took over-the-counter ibuprofen for pain. (R. 350). At that time, she could get on and off the examination table without assistance, and did not need an assistive device for ambulation. (R. 351). X-rays also indicated that G u lle d g e 's alignment was within normal limits and there was no evidence that her dorsal f ix a tio n was loosening. (R. 348). Further, a May 14, 2007 treatment note indicates that Gulledge controlled her back p a in with over-the-counter Tylenol, Advil and Excedrin. (R. 370, 372). A July 9, 2007 tre a tm e n t note indicated that Gulledge was receiving good pain relief from NSAIDS m e d ic a tio n . (R. 381-84). She did not seek further medical treatment until January 2, 2008. At that time, she was diagnosed with an acute exacerbation and prescribed Celebrex, N e u ro n tin and Lortab. (R. 391). In March 2008, Dr. Moreno's treatment note indicates that G u lle d g e was "[d]oing fairly well but has been racking (sic) the yard past few days and has e x a c e rb a tio n of pain on lower back." (R. 392). At that time, Gulledge did not need a refill o f the Lortab prescription because she had not used the last prescription and she said she did n o t use it very often. (Id.) Gulledge's medical records militates against her credibility. Thus, the court concludes that the Commissioner's decision to discredit Gulledge's testimony is supported by substantial evidence.

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To the extent that the plaintiff is arguing that the ALJ should have accepted her te s tim o n y regarding her pain, as the court explained, the ALJ had good cause to discount her te s tim o n y. This court must accept the factual findings of the Commissioner if they are s u p p o rte d by substantial evidence and based upon the proper legal standards. Bridges v. B o w e n , 815 F.2d 622 (11 th Cir. 1987). V . Conclusion T h e court has carefully and independently reviewed the record and concludes that s u b s ta n tia l evidence supports the ALJ's conclusion that plaintiff is not disabled. Thus, the c o u rt concludes that the decision of the Commissioner is supported by substantial evidence a n d is due to be affirmed. A separate order will be entered. D o n e this 17th day of December 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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