Horton v. Astrue

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr. on 12/20/2011. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
KENNETH EDWIN HORTON,
Plaintiff,
v.

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CIVIL ACTION NO. 1:11cv82-WC

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MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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)

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Kenneth Edwin Horton, 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
income payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. His applications
were denied at the initial administrative level. Plaintiff then requested and received a hearing
before an Administrative Law Judge (ALJ). Following the hearing, the ALJ issued a
decision in which he found Plaintiff not disabled from the alleged onset date through the date
of the decision. Tr. 15. The Appeals Council rejected Plaintiff’s request for review of the
ALJ’s decision. The ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (“the Commissioner”).1 See Chester v. Bowen, 792 F.2d
1

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.

129, 131 (11th Cir. 1986). The case is now before the Court for review under 42 U.S.C. §
405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all
proceedings and entry of a final judgment by the undersigned United States Magistrate Judge.
Pl.’s Consent to Jurisdiction (Doc. #14); Def.’s Consent to Jurisdiction (Doc. #13). Based
on the Court’s review of the record and the briefs of the parties, the Court AFFIRMS the
decision of the Commissioner.

II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the

person is unable to
engage in any substantial gainful activity by reason of any medically
determinable 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
of not less than 12 months.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation 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
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
Impairments]
(4) Is the person unable to perform his or her former occupation?
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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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(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying
disability once they have carried the burden of proof from Step 1 through Step 4. At Step 5,
the burden shifts to the Commissioner, who must then show there are a significant number
of 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
Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do
despite his impairments and is based on all relevant medical and other evidence. Id. It also
can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step,
the ALJ considers the claimant’s RFC, age, education, and work experience to determine if
there are jobs available in the national economy the claimant can perform. Id. at 1239. To
do this, the ALJ can either use the Medical Vocational Guidelines4 (grids) or call a vocational

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

expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or
light work, inability to speak English, educational deficiencies, and lack of job experience.
Each factor can independently limit the number of jobs realistically available to an
individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyrequired finding of “Disabled” or “Not Disabled.” Id.
The Court’s review of the Commissioner’s decision is a limited one. This Court must
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 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). See also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts of
the record which support the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
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including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-two years old at the time of the hearing before the ALJ. Tr. 14, 23.

Plaintiff completed high school. Tr. 14, 23. Plaintiff’s past relevant work experience was
as a “labor[er] in [the] construction industry.” Tr. 14; 24. Following the administrative
hearing, and employing the five-step process, the ALJ found Plaintiff had “not engaged in
substantial gainful activity since January 9, 2009, the alleged onset date.” (Step 1). Tr. 10.
At Step 2, the ALJ found that Plaintiff suffers from the following severe impairments:
“genital warts and hypertension.” Tr. 10. The ALJ then found that “[t]he claimant does not
have an impairment or combination of impairments that meets or medically equals one of the
listed impairments . . . .” (Step 3) Tr. 11. Next, the ALJ found that Plaintiff
has the residual functional capacity to perform medium work . . . except with
mild to moderate postural limitations; mild to moderate manipulative
limitations; and avoidance of hazards of heights and machinery.
Tr. 11. The ALJ then found that Plaintiff is unable to perform his past relevant work. (Step
4) Tr. 14. At Step 5, the ALJ found that, “[c]onsidering the claimant’s age, education, work
experience, and residual functional capacity,” and after consulting with a VE, “there are jobs
that exist in significant numbers in the national economy that the claimant can perform.” Tr.
14. The ALJ identified the following occupations as examples: “janitor,” “food preparation
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worker,” and “dishwasher.” Tr. 15. Accordingly, the ALJ determined that Plaintiff “has not
been under a disability . . . from January 9, 2009, through the date of th[e] decision.” Tr. 15.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents two issues for this Court’s consideration in determining whether the

ALJ’s decision is supported by substantial evidence: 1) whether the ALJ “erred as a matter
of law in failing to properly evaluate [Plaintiff’s] subjective complaints in accordance with
the Eleventh Circuit’s pain standard;” and 2) whether the ALJ “erred as a matter of law in
failing to sustain his burden of establishing that there is other work in the national economy
that [Plaintiff] can perform.” Pl.’s Brief (Doc. #10) at 8-9.
V.

DISCUSSION
A.

The ALJ’s evaluation of Plaintiff’s subjective complaints of pain.

Plaintiff claims “the ALJ erred in failing to properly evaluate [Plaintiff’s] subjective
complaints of pain in accordance with the pain standard enunciated in the Eleventh Circuit.”
Pl.’s Brief (Doc. #10) at 8. Plaintiff argues that the ALJ did not give appropriate weight to
Plaintiff’s testimony regarding the pain he experiences from his genital warts condition, that
there is objective medical evidence that supports his assertions of pain, and that the ALJ
“limited [Plaintiff’s] testimony during the hearing” and, therefore, did not allow him to fully
develop the record about his pain and other symptoms. Pl.’s Brief (Doc. #10) at 8-9.
Defendant contends “the ALJ reasonably discounted Plaintiff’s subjective statements based

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on inconsistencies between his statements and the record.” Def.’s Brief (Doc. #11) at 6.
The Court of Appeals for the 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
symptoms, the claimant must satisfy two parts of a three-part test showing: (1)
evidence of an underlying medical condition; and (2) either (a) objective
medical evidence confirming the severity of the alleged pain; or (b) that the
objectively determined medical condition can reasonably be expected to give
rise to the claimed pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ evaluates the
“claimant’s subjective testimony of pain” only after the claimant satisfies the first and one
of the alternate portions of the second prong of the pain standard. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995). The Eleventh Circuit has also held that, “in certain situations,
pain 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
reasonably be expected to cause pain, not evidence of actual pain or its severity, which must
be presented by the claimant to satisfy the “pain standard.” Elam v. R.R. Ret. Bd., 921 F.2d
1210, 1215 (11th Cir. 1991); see also Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986);
Hill v. Barnhart, 440 F. Supp. 2d 1269, 1272-73 (N.D. Al. 2006) (quoting Elam, 927 F.2d
at 1215). Where the ALJ proceeds to consider the claimant’s subjective testimony about
pain, the ALJ’s decision to reject or discredit such testimony is reviewed for substantial
evidence. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Finally, if the ALJ

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determines to discredit subjective pain testimony and such testimony is crucial to the
claimant’s assertion of disability, the ALJ “must articulate specific reasons for questioning
the claimant’s credibility.” Id.
At the hearing before the ALJ, the claimant testified about his pain. When asked what
“would prevent [him] from working full time,” Plaintiff indicated that he suffers from genital
warts and had suffered a stroke approximately two weeks before the administrative hearing.
Tr. 25. The ALJ asked whether he was “in any kind of significant physical pain on a regular
basis,” to which Plaintiff responded, “Yes, my right side. . . . It hurts sometime.” Tr. 27.
However, Plaintiff indicated that he began noticing the pain on his right side after he suffered
the stroke. Id. On examination by his attorney, Plaintiff indicated that his warts “drain [and]
hurt,” “hurt all the time,” and that the pain is “about a 4” on a scale of 1 to 10. Tr. 32.
Plaintiff also testified that he can walk “about two blocks,” stand “about 10 minutes,” but
indicated no limitations with his ability to “sit down,” indicated he can lift “about five
[pounds]” without hurting himself, push, pull and pick up objects with his left hand, and
climb a couple of steps to enter a building. Tr. 30-31.
Based upon his review of the record and Plaintiff’s testimony, the ALJ determined
that “the claimant’s medically determinable impairments could reasonably be expected to
produce the alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they are
inconsistent with” the RFC articulated by the ALJ. Tr. 14. Thus, the ALJ found that
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Plaintiff passed through the threshold of the “pain standard,” but that his testimony about the
intensity of the pain was not fully credible. Accordingly, the ALJ was required to “articulate
specific reasons for questioning the claimant’s credibility[,]” and those reasons must be
supported by substantial evidence. Marbury, 957 F.2d at 839.
In discrediting Plaintiff’s subjective pain testimony, the ALJ noted the inconsistencies
between Plaintiff’s testimony and the objective medical evidence, the lack of treating source
opinions and lack of hospitalization records, and Plaintiff’s own inconsistent representations
during the hearing. Tr. 11-14. The ALJ relied on the medical opinions of Dr. Manley and
Dr. Banner, who both diagnosed Plaintiff’s genital warts condition and hypertension, but
neither opined that Plaintiff’s impairments preclude him from working.5 Dr. Manley
considered Plaintiff’s statements of his symptoms “to be partially credible” and “secondary
to the . . . medical evidence in file.” Tr. 13, 195. Dr. Manley “opined that claimant has no
communicative, environmental, manipulative, postural, or visual limitations,” Tr. 192-94, and
noted that “claimant had a normal gait and was able to squat.” Tr. 13, 195. Both Dr. Manley
and Dr. Banner reported that Plaintiff “demonstrated no pain or difficulty getting on and off
the table and claimant was able to walk normal steps, height and length without deviation
from straight line . . . [and] was able to complete squat without difficulty or evidence of
discomfort.” Tr. 12, 188, 191. Dr. Banner further reported that Plaintiff “needs immediate

5

The ALJ assigned “significant evidentiary weight to the opinion of [Dr.] Manley” and
noted that “the opinion of Dr. Banner supports [her] opinion.” Tr. 13.
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urology care and treatment for his genital warts,” but he “opined that both the genital warts
and hypertension should be resolvable.” Tr. 12-13, 189. This Court finds that Plaintiff’s
allegations that he suffers debilitating pain which prevents him from working is inconsistent
with the objective medical evidence of record and therefore substantial evidence supports the
ALJ’s finding that Plaintiff’s allegations are not fully credible.6
Plaintiff contends that the opinions of Dr. Manley and Dr. Banner “would lend
credibility to [Plaintiff’s] claim of constant pain and limit his ability to stand or walk for any
considerable period of time.” Pl.’s Brief (Doc. #10) at 8-9. It is difficult to imagine how the
objective medical evidence cited by Plaintiff, which consists of the opinions of Dr. Manley
and Dr. Banner could confirm the veracity of Plaintiff’s subjective complaints when neither
physician found Plaintiff’s complaints to be fully credible. At most, this evidence suggests,
as the ALJ found, that Plaintiff’s impairments could reasonably be expected to cause the pain
about which he complains. Moreover, Plaintiff does not address the numerous bases given
by the ALJ for his decision to find Plaintiff’s testimony less than fully credible.
Plaintiff also argues that “[t]he ALJ limited claimant’s testimony during the hearing
by not allowing claimant’s attorney to fully develop questioning regarding the genital warts’
and associated sympt[o]matology.” Pl.’s Brief (Doc. #10) at 9. Plaintiff reasons that “[h]ad

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The Commissioner also points to an inconsistency regarding Plaintiff’s alleged onset
date noting, “the record shows that Plaintiff performed full-time construction work even after the
alleged onset of disability in January 2009, that he stopped working in February 2010 because he
was ‘laid off’ (not because of his impairments), and that he remained ‘active’ despite his
allegedly disabling condition (Tr. 10; see Tr. 199-200).” Def.’s Brief (Doc. #11) at 6-7.
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the ALJ fully developed the case he then would have appropriately applied the third prong
of the pain standard and determined that due to the enormous size and drainage from the
genital warts that the objectively determined medical condition is of such a severity that it
can reasonably be expected to give rise to the alleged pain.” Id. The Court disagrees. The
Court’s review of the record reveals that Plaintiff did have the opportunity to testify about
his pain at the hearing and his attorney was able to further question him on his pain and the
symptoms of his genital warts condition.7 Moreover, the ALJ’s opinion clearly indicates that
he did note the size of Plaintiff’s warts and Plaintiff’s complaints of pain and drainage. See
Tr. 12-14. Plaintiff’s testimony at the hearing was sufficient for the ALJ to ascertain the
nature of Plaintiff’s condition, treatment, if any, and the impact of the alleged impairment
on his daily life. Upon review of the record, this Court finds that Plaintiff was given the
opportunity to testify at the hearing and the ALJ adequately developed the record and applied
the pain standard. Thus, Plaintiff’s argument must fail.
For the reasons given above, it is clear that the ALJ properly applied the pain standard,
articulated sufficient reasons for his decision finding Plaintiff’s subjective pain testimony
less than fully credible, and those reasons are supported by substantial evidence.
Accordingly, Plaintiff’s claim that the ALJ erred in applying the pain standard is without

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For example, on examination by his attorney, Plaintiff indicated that his warts “drain
[and] hurt,” that they “hurt all the time,” and that the pain is “about a 4” on a scale of 1 to 10. Tr.
32. In fact, Plaintiff’s brief also indicates, “Claimant documented that the warts hurt him all the
time, that he was in constant pain and that the warts drain.” Pl.’s Brief (Doc. #10) at 9.
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merit.

B.

The ALJ’s finding that there are jobs in the national economy Plaintiff
can perform.

Here, Plaintiff puts forth two arguments. First, that the ALJ failed to include all of
Plaintiff’s limitations in the hypothetical he posed to the VE because he did not include
Plaintiff’s subjective allegations of pain and other symptoms he suffers due to his genital
warts. Pl.’s Brief (Doc. #10) at 9. Second, Plaintiff argues that the ALJ failed to consider
the VE’s negative response to the question of whether the hypothetical individual would be
able to work if he were to miss three days of work each month. Id. at 9-10.
Both of Plaintiff’s arguments are premised on the assumption that the ALJ erred when
he discounted Plaintiff’s subjective allegations of pain. As the Commissioner points out,
“the ALJ’s hypothetical included all of Plaintiff’s credible limitations.” Def.’s Brief (Doc.
#11) at 9 (emphasis added). The ALJ is only required to include in the hypothetical those
impairments which he actually finds credible. See Buie v. Astrue, 2008 WL 718111, at *4
(M.D. Fla. Mar. 14, 2008) (“The ALJ did not have to include limitations he found not
credible in the hypothetical.” (citing McSwain v. Bowen, 814 F.2d 617, 620 n.1 (11th Cir.
1987)); Roberts v. Astrue, 2008 WL 697343, at *6 (M.D. Fla. Mar. 13, 2008) (“While an ALJ
is obliged to fully incorporate all limitations in his hypothetical questions, he is not obligated
to include unsupported subjective restrictions and/or complaints in a hypothetical.” (citing

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Howe v. Astrue, 499 F.3d 835, 842 (8th Cir. 2007) (providing that hypothetical questions
need only to include impairments that are supported by the record and that the ALJ accepts
as valid); Clay v. Barnhart, 417 F.3d 922, 931 (8th Cir. 2005) (noting that the ALJ did not
err in omitting additional restrictions not supported by the evidence); Hunt v. Massanari, 250
F.3d 622, 625 (8th Cir. 2001) (providing that an ALJ is not required to include in a
hypothetical question those limitations he concludes are not credible)). Because the ALJ did
include all limitations he found to be credible, he properly posed the hypothetical question
to the VE and reasonably relied on the VE’s testimony in finding there are jobs in the
national economy Plaintiff can perform. Thus, Plaintiff’s argument lacks merit.

VI.

CONCLUSION
The Court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is supported by substantial
evidence and is AFFIRMED. A separate judgment will issue.
Done this 20th day of December, 2011.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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