Cerqua v. Astrue (CONSENT)

Filing 21

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 9/13/13. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICK J. CERQUA,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO. 1:12cv139-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Patrick J. Cerqua, applied for and was denied Disability Insurance

Benefits (“DIB”) under sections 216 and 223 of Title II of the Act, 42 U.S.C. §§ 416(i),
423, on August 16, 2002 (Tr. 47-49).

Plaintiff then requested and received a hearing

before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a
decision in which Plaintiff was found not disabled at any time through the date of the
decision. The Appeals Council rejected Plaintiff’s request for review of the ALJ’s
decision. Following a review, this court remanded the case to the Commissioner for
further administrative proceedings on September 26, 2006 (Tr. 322-23). A supplemental
hearing was held on May 9, 2007, at which Plaintiff and his legal counsel appeared, as
well as a vocational expert (Tr. 471-505). The ALJ issued a decision on August 25,

2007, that Plaintiff was not disabled within the meaning of the Act (Tr. 296-307). The
Appeals Counsel denied review. Following another review, this court again remanded
the case to the Commissioner for further administrative proceedings on August 4, 2009
(Tr. 565-80). A second supplemental hearing was held on February 22, 2010, at which
Plaintiff and his legal counsel appeared, as well as a vocational expert (Tr. 681-706). The
ALJ issued a decision on April 29, 2010, that Plaintiff was not disabled within the
meaning of the Act (Tr. 512-30). The Appeals Council denied review of that decision.
The ALJ’s decision consequently became the final decision of the Commissioner of
Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d 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. 11); Def.’s Consent to Jurisdiction (Doc. 10). Based on the
court’s review of the record and the briefs of the parties, the court AFFIRMS the decision
of the Commissioner.

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.

2

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?
(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
2

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.
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).

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 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
statutorily-required finding of “Disabled” or “Not Disabled.” Id.

4

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

4

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, 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 37 years of age at the time of his alleged onset date of December 31st

2002 and had a high school education. Tr. 23 & 61. Plaintiff’s past relevant work
experience was as a “tire changer,” “laborer, concrete molding,” “automobile mechanic,”
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and “automobile dealer/wholesaler.” Tr. 528. Following the administrative hearing, and
employing the five-step process, the ALJ found Plaintiff “did not engage in substantial
gainful activity during the period from February 1, 2002, his amended disability onset
date, through his date last insured of December 31, 2002.” (Step 1) Tr. 518. At Step 2,
the ALJ found that, “through the date last insured,” Plaintiff suffered from the following
severe impairments: “history of lumbar laminectomy with persistent mild radicular pain
in the left lower extremity, degenerative disc disease of the lumbar, thoracic, and cervical
spine, and bilateral carpal tunnel syndrome.” Id. The ALJ then found that, “through the
date last insured,” Plaintiff “did not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Id. Next, the ALJ found
that, “through the date last insured,” Plaintiff had the RFC “to perform sedentary work,”
reduced by limitations from work requiring climbing ropes/scaffolds, balancing,
crawling, or lifting overhead, and work not allowing periodic alternation between sitting
and standing. Tr. 523. At Step 4, the ALJ found that “[t]he transferability of job skills
was not material to the determination of disability.” Tr. 528. After consulting a VE, the
ALJ determined that “there were jobs that existed in significant numbers in the national
economy” that Plaintiff could have performed. Tr. 57. The ALJ identified the following
occupations as examples:

“Bench Assembler,” “Surveillance System Monitor,” and

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“Order Clerk.” Tr. 529. Accordingly, the ALJ determined that Plaintiff had not been
under a disability from February 1, 2002, through December 31, 2002. Tr. 530.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s

decision: 1) “Whether [the] Commissioner erred by failing to base his finding on
substantial evidence”; and 2) “Whether the Commissioner erred by giving significant
weight to the non-examining reviewing consultant.” Pl.’s Br. (Doc. 16) at 1.
V.

DISCUSSION
A.

Whether the Commissioner erred by failing to base his finding on
substantial evidence.

Plaintiff asserts that the ALJ erred in making his credibility determination when
applying the pain standard. 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
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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. Ala. 2006)
(quoting Elam, 927 F.2d at 1215). After making these determinations, the ALJ proceeds
to consider the claimant’s subjective testimony about pain, and 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). It is at this point where Plaintiff takes issue
in the present case.

Plaintiff argues that the ALJ’s credibility determination lack

substantial evidence.
In making the credibility determination, the ALJ found that Plaintiff’s subjective
testimony of disabling pain was not consistent with treatment notes, or Plaintiff’s
description of his own activities. Tr. 526. With regard to the treatment notes, the ALJ
acknowledged Plaintiff’s long history of treatment “with potent pain medications,” but
noted that the treatment notes from Dr. Farb show that he was having a good response to
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Oxycontin and that, from January 2001 through March 2002, Plaintiff remained stable on
Oxycontin therapy. Id. The ALJ noted that there was an increase in the dosage in June
of 2002 and by August of 2002 Plaintiff reported a “marked improvement” in his pain.
Id. The ALJ found that these treatment notes were inconsistent with Plaintiff’s testimony
regarding that time period.
In his brief, Plaintiff challenges these findings by arguing that he did not remain
stable on Oxycontin therapy, that the records show that the medicine only relieved the
pain some of the time, and that the increase in medication showed that the medication
“provided some relief in order for the claimant to minimally function, but did not
completely resolve the pain.” Pl.’s Br. (Doc. 16) at 10. With regard to the stability of the
Oxycontin therapy, as stated above, the ALJ described the period between January 2001
and March 2002 as stable and then discussed the period when the dosage was increased.
Plaintiff’s citations to the medical record to show that the treatment was not stable,
mainly addresses time periods outside the relevant time period. He does not provide
evidence to refute the stability of the time between January 2001 and March 2002.
Moreover, the records reflect that, at the time, Plaintiff described the medications
as working, specifically describing the Oxycontin therapy during the stable period as
helping him “feel reasonably good” and helping him “live more normally.” Id. When
the medication was increased in June 2002, he reported a “marked improvement.” Id.
The determination here is not whether the medications “completely resolve the pain,” but
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whether the pain was disabling. The court can find no error with the ALJ’s reliance on
the treatment notes in making the credibility finding.
Similarly, the court finds no error in relying on Plaintiff’s own description of
activities. As in his arguments regarding treatment notes, Plaintiff does not argue error in
the process, rather he disagrees with the ALJ’s determination. In so doing, Plaintiff
argues with each of the ALJ’s determination of daily activities, such as housework,
grocery shopping, getting dressed, and other minor activities. Pl.’s Br. (Doc. 16) at 12.
The problem for Plaintiff is that the court’s determination here, is to find whether the
ALJ’s decision is supported by substantial evidence and “[e]ven if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.” Crawford, 363 F.3d at 1158.
The ALJ’s determination that Plaintiff’s activities are inconsistent with his subjective
complaints of disabling pain is supported by substantial evidence, and the court “will not
substitute [its] judgment for that of the Commissioner.” Barnes v. Sullivan, 932 F.2d
1356, 1357-58 (11th Cir. 1991).
B.

Whether the Commissioner erred by giving significant weight to the nonexamining reviewing consultant.

Here, Plaintiff argues that the ALJ erred in relying on the consulting review of Dr.
Lober, and that this review did not constitute substantial evidence. Plaintiff contrasts Dr.
Lober’s opinion with that of Dr. Farb’s. Pl.’s Br. (Doc. 16) at 14. No such conflict in the
10

opinions exists. Basically, Plaintiff asserts that Dr. Farb implicitly opined that Plaintiff
would be unable to perform work. Id. Plaintiff argues this is in conflict with Dr. Lober’s
opinion, which was relied on to help formulate the RFC.

Id.

Plaintiff bases this

argument on a quote from Dr. Farb’s treatment notes, that Plaintiff “really can’t do any
other jobs.” The problem, is that this statement was merely a report of Plaintiff’s
statements, not the doctor’s opinion. See Tr. 146. Dr. Farb did not provide a formal
report on Plaintiff’s ability to work. Thus, the ALJ properly ordered a consultative
review by Dr. Lober. The ALJ relied on that review, along with the medical evidence
from doctors Farb, Gerber, Hawkins, and Guttman in determining the RFC. The RFC is
supported by substantial evidence and the court will not disturb it.
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 AFFIRMED.
separate judgment will issue.
Done this 13th day of September, 2013.

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

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A