Blevins v. Astrue

Filing 20

OPINION. A separate order will be entered. Signed by Honorable Charles S. Coody on 11/10/2009. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION L I N D A BLEVINS, P l a in tif f , v. 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 I V IL ACTION NO. 2:08cv717-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 i a l Security Act, 42 U.S.C. § 1381 et seq., alleging that she was unable to work because o f a disability. His application was denied at the initial administrative level. The plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). F o llo w in g the hearing, the ALJ also denied the claim. The Appeals Council rejected a s u b s e q u e n t request for review. The ALJ's decision consequently became the final decision o f the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 1 2 9 , 131 (11 th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. § § 405 (g) and 1631(c)(3). The parties have consented to the United States Magistrate Judge c o n d u c tin g all proceedings in this case and ordering the entry of final judgment, 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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2 8 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. Based on the court's review of the record in th is case and the briefs of the parties, the court concludes that the decision of the C o m m is s io n e r should be 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 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 . . . 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 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 (11 th Cir. 1986).3

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. 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
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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. 4 2 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 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 (11 th Cir. 1986). [ T h e 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 (11 th Cir. 1987). I I I . The Issues A . Introduction. Plaintiff Linda Blevins ("Blevins") was 55 years old at the alleged d a te of onset and 57 years old at the time of the hearing before the ALJ. (R. 53, 163). She h a s a ninth grade education. (R. 65). Her prior work experience includes work as a farm w o r k e r , cotton and pea picker, and drycleaner worker. (R. 168). In her capacity as a d ryc le a n e r worker, Blevins also performed work as a cashier and clothes tagger. (Id.).

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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F o llo w in g the hearing, the ALJ concluded that the plaintiff has severe impairments of h yp e r te n s io n , degenerative joint disease, and hypercholesterolemia. (R. 18). The ALJ also c o n c lu d e d that Blevins' past hand surgery did not constitute a severe impairment. (Id.). The A L J concluded that the plaintiff could perform her past relevant work as a cashier, and thus, s h e was not disabled. (R. 22). B. Plaintiff's Claims. As stated by the plaintiff, she presents the following two is s u e s for the Court's review: I. T h e administrative law judge failed to consider whether Ms. Blevins' s e v e re impairments could reasonably cause the pain and swelling she e x p e rie n c ed and whether her medication side effects would prevent w o rk on a sustained basis. T h e administrative law judge failed in his duty to fully develop the r e c o rd .

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(P l's Br. at 7 & 9). IV. Discussion A disability claimant bears the initial burden of demonstrating an inability to return to her past work. Lucas v. Sullivan, 918 F.2d 1567 (11 th Cir. 1990). In determining whether th e claimant has satisfied this burden, the Commissioner is guided by four factors: (1) o b je c tiv e medical facts or clinical findings, (2) diagnoses of examining physicians, (3) su b jec tiv e evidence of pain and disability, e.g., the testimony of the claimant and her family o r friends, and (4) the claimant's age, education, and work history. Tieniber v. Heckler, 720 F .2 d 1251 (11 th Cir. 1983). The court must scrutinize the record in its entirety to determine th e reasonableness of the ALJ's decision. See Walker, 826 F.2d at 999. The ALJ must 4

c o n sc ien tio u sly probe into, inquire of and explore all relevant facts to elicit both favorable a n d unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11 th Cir. 1 9 8 1 ). The ALJ must also state, with sufficient specificity, the reasons for his decision ref ere n cing the plaintiff's impairments. a d d re s s e s the plaintiff's specific claims. 1. Whether the ALJ failed to properly consider the Eleventh Circuit three-part p a in standard. The plaintiff argues that the ALJ failed to properly discredit her testimony b e c au s e he did not address each symptom about which she complained. For example, B le v in s faults the ALJ for not discussing the consultative physician's remark that she had d ec rea sed lumbar flexion. (Pl's Br. at 7). "Subjective pain testimony supported by objective medical evidence of a condition th a t can reasonably be expected to produce the symptoms of which the plaintiff complains is itself sufficient to sustain a finding of disability." Hale v. Bowen, 831 F.2d 1007 (11 th Cir. 1 9 8 7 ). The Eleventh Circuit has established a three-part test that applies when a claimant a tte m p ts to establish disability through her own testimony of pain or other subjective s ym p to m s . Landry v. Heckler, 782 F.2d 1551, 1553 (11 th Cir. 1986); see also Holt v. S u lliv a n , 921 F.2d 1221, 1223 (11 th 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 5 Within this analytical framework, the court

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 r e 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 (11 th Cir. 1986); Landry, 782 F.2d at 1553. Thus, if the Commissioner fails to articulate re a so n s for refusing to credit a claimant's subjective pain testimony, the Commissioner has a c ce p te d the testimony as true as a matter of law. This standard requires that the articulated r e 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 suffers from pain and s w e llin g in her legs and that this pain prevents her from working. (R. 172-73). Although she left her last job because she moved out of state, Blevins testified that when she tried to work a g a in , her "back would act up," she wasn't able to bend, and she was in too much pain to w o rk . (R. 168, 178). Although Blevins is prescribed Lortab, she only takes that medication th re e (3) to (5) times during a week. (R. 175). She testified that the Lortab makes her sleepy, (id .), and that she has to elevate her legs during the day because of pain and swelling. (R. 1 7 2 ). Finally, she testified that she cooks, does the grocery shopping, goes to church, and d riv e s . (R. 174-75). Blevins asserts that she became disabled on May 17, 2005 due primarily to back and le g pain. (R. 59, 66). She last worked in 1996. (R. 168). On her disability application, B le v in s indicated that she also suffers from high blood pressure, chest pain, breathing p ro b le m s , headaches, and a growth on her thumb. (Id.) 6

I have pain in my back [and] legs all the time. I have trouble getting up [and] d o w n out of bed [and] chairs, etc. I walk with a limp. My hip was broken b a c k in 1996 [and] I've had trouble since then but recently the pain has gotten w o r s e [and] I've had more trouble walking. I have to take medicine for my b lo o d pressure. I have headaches [and] dizziness frequently. I tend to lose the g rip in my right hand. I have a growth on my thumb. I also have chest pain ra th e r frequently [and] I have trouble breathing.4 (Id .) (footnote added). The ALJ discredited the plaintiff's testimony of disabling pain and functional re s tric tio n s . (R. 20). After considering the evidence of record, the undersigned finds that the c la im a n t's medically determinable impairments could be reasonably expected to produce the alleged symptoms, but that the claimant's statements concerning in ten sity, persistence and limiting effects of these symptoms are not entirely c re d ib le . (Id.). If this were the extent of the ALJ's credibility analysis, the plaintiff might be entitled to some relief. However, the ALJ continued his analysis and discredited the plaintiff's te s tim o n y based on the following. The claimant testified that she left her job as a cashier and a tagger at a dry c le a n er because she moved out of state. She has not worked since 1996. The c la im a n t has to wrap her arm because she had surgery in January 2007, and her a rm hurts when the air hits it. The wrap also supports her arm when she d riv e s. The claimant stated that her legs swell if she walks for more than 1 h o u r, requiring her to sit for 1 to 1½ hours afterward. The claimant cooks for a b o u t 20 minutes and then must elevate her legs. She cannot stand and wash d is h e s. She is limited to shopping for groceries for 1 hour. The claimant does n o t do anything outside the house, such as gardening. The claimant drives to c h u rc h , which is a 1 to 1 ½ hour trip. Her back and legs hurt, but she does not ta k e medication until she gets home. The claimant takes Lortab only when she

Blevins concedes in her brief that while she had initially reported chest pain and breathing problems, by the time of her consultative physical examination, these conditions had resolved. (Pl's Br. at 3, fn. 1).

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is able to stay at home and go to sleep. On a good week she takes Lortab three tim e s, but on a rough week, she will take it five times. The Lortab makes her s le e p y and relaxes her muscles. The claimant takes Tylenol for the headache c a u se d by the Lortab. The side effects from Lortab last for about 2 days. The claim an t had an operation on her hand in 1999 and again in 2007 for a tumor. T h e tumor was about 4 inches when it was removed. The claimant, who is r ig h t handed, had to write a different way and was unable to open bottle caps. A t work, she would not be able to hold a brush to scrub the clothes. The c la im a n t must drive her husband around because he is disabled. She wanted to do another kind of work, but then her back would act up, and she would b e c o m e discouraged. The claimant testified that she visits with friends and re la tiv e s, who mostly come to see her. She and her husband go out to eat from tim e to time, but they do not go to the movies. On a typical day, the claimant w a k e s up between 6:30 and 7:00 a.m., eats something, takes her medications, g o e s back to bed, and gets up at 10:30 or 11:00 a.m. She then cooks breakfast, sits on the sofa and puts her legs up, and watches television. After an hour to a n hour and a half, she puts clothes in the dryer, puts her legs up again, and f o ld s the clothes when they are dry. The claimant cooks supper, and her h u s b a n d washes the dishes. P r o g re ss notes from Dr. G.V. Rao indicate that the claimant was followed for h yp e rte n sio n and degenerative joint disease in 2002. She was prescribed m e d ic a tio n , including Bextra for degenerative joint disease in 2003, as well as a n ti-h yp e rte n siv e medications. She complained of mid back pain in 2004. The c la im a n t continued to be maintained on her medications through June 2005. S h e complained of generalized pain in September 2005 and increased back p a in in October 2005. Her abdomen was soft, and there was no pedal edema. D r. Rao continued to prescribe medications for hypertension, degenerative jo in t disease, and high cholesterol in April 2006 through November 2006. Her d e g e n era tiv e joint disease was mild, and her hypertension was stable in June 2 0 0 7 . She was prescribed Celebrex and Lortab for degenerative joint disease in July 2007. (Ex. 3F, 9F, 10F). An x-ray of the claimant's thoracic spine c o n d u c te d in June 2005 revealed mild spondylosis and was otherwise u n re m a rk a b le. A chest x-ray demonstrated cardiomegaly with widened aorta a n d minimal arthritic change in the thoracic spine. X-ray of the lumbar spine s h o w e d minimal arthritic change. A left ankle x-ray showed intact osseous stru c tu re s and hypertrophic change in the OS calcis. (Ex.4F). T h e Administrative Law judge has reviewed and considered each and every m e d ic a l exhibit in the claimant's file, including any and all exhibits presented o n the day of the hearing and those forwarded and received after the hearing 8

d a te , prior to approving and signing this decision. The Administrative Law jud g e has chosen not to make specific reference to those exhibits that are m e re ly cumulative or which offer no substantive value to the claimant's case. T h e claimant's representative attested on the record that the exhibits provided w e re "complete, accurate, and up to date: and that "no other medical records w e re outstanding" prior to the closing of the hearing. After reviewing the medical evidence, the undersigned finds that there is little e v id e n c e that substantiates the claimant's testimony regarding the extent of her d e b ilitie s or functional limitations. The claimant was treated by Dr. Rao, her p rim a ry care physician, basically for hypertension, degenerative joint disease, a n d high cholesterol, all of which were fairly well controlled with medication. D r. Rao's progress notes, which were difficult to discern, contain minimal o b j e c tiv e findings, other than setting forth the claimant's weight, blood p ressu re, and renewal or changes in her medications. While the claimant's b lo o d pressure readings were elevated at times, Dr. Rao stated that her h yp e rte n sio n was stable in 2007. . . .X-rays of the claimant's thoracic and lu m b a r spine also conducted in 2005 revealed only minor arthritic changes that d o not correlate with the claimant's testimony regarding her severe pain. The o n ly positive finding at the consultative physical examination discussed below w a s positive straight leg raises, but there was no evidence of neurological d ef icits that demonstrate the existence of a significant back problem. In a d d itio n , there is no evidence supporting the claimant's testimony regarding h er lower extremity swelling with the need to rest and elevate her legs after 1 t o 1½ hours of standing. As a whole, the claimant's testimony is not c o n sid e re d to be wholly credible based on the lack of objective findings, and th e re are no contraindications to her ability to perform a slightly reduced range o f medium work. (R . 20-21). T h e ALJ has discretion to discredit a plaintiff's subjective complaints as long as he p ro v id e s "explicit and adequate reasons for his decision." Holt, 921 F.2d at 1223. The A L J's reasons for discrediting the plaintiff's testimony of pain and disability were both c le a rly articulated and supported by substantial evidence. Id. Relying on the treatment re c o rd s , objective evidence, and Blevins's own testimony, the ALJ concluded that the

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p la in tif f 's allegations regarding the extent of her pain were not credible and discounted that te stim o n y. The ALJ considered that the plaintiff's underlying condition is capable of giving ris e to some pain and other limitations, however, not to the extent described by the plaintiff. C o n s e q u e n tl y, he discredited the plaintiff's testimony that she suffers from disabling, in tra c ta b le pain. The medical records support the ALJ's conclusion that while Blevins has conditions th a t could reasonably be expected to produce pain, Blevins was not entirely credible in her d e sc rip tio n of that pain. For example, Blevins complained to her treating physician of mild b a c k pain on March 16, 2004 (R. 110); pain on June 11, 2004 (R. 109); pain in her left ankle a n d back on June 16, 2005 (R. 121-24); generalized pain on July 18, 2005 (R. 157); and pain in legs and hands on November 7, 2006. (R. 151). The records reveal only one complaint o f swelling on August 5, 2003. (R. 110). 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 both clearly a rtic u la te d and supported by substantial evidence. To the extent that the plaintiff is arguing that the ALJ should have accepted her te s tim o n y regarding her pain and swelling, as the court explained, the ALJ had good cause to discount her testimony. This court must accept the factual findings of the Commissioner if they are supported by substantial evidence and based upon the proper legal standards. B r id g e s v. Bowen, 815 F.2d 622 (11 th Cir. 1987). F in a lly, the plaintiff argues that the ALJ failed to properly consider the side effects o f her medications on her ability to work because she alleges that her medication makes her 10

sleep y and dizzy. (R. 175-76). The ALJ must consider the side effects of plaintiff's m e d ic a tio n where their existence is supported by substantial evidence. See Swindle v. S u lliv a n , 914 F. 2d 222, 226 (11 th Cir. 1990). The medical records contain no supporting e v id e n c e that the plaintiff complained about the side effects of her medications. While she c o n sis te n tly stated she was allergic to Bextra, the record contains no notation that she c o m p la in e d about drowsiness or dizziness. (R. 135-36). In one instance, Blevins complained th a t she was having trouble falling asleep but the Lorazepam prescribed to help her sleep irrita te d her hemorrhoids. (R. 152). During the consultative examination, Blevins did not m e n tio n any side effects from her medication. The ALJ properly considered the plaintiff's complaints about the side effects of her m ed icatio n , but then discredited her testimony because the medical records do not support h e r allegations. (R. 20-21). Substantial evidence supports the ALJ's conclusion that the p la in tif f 's medications do not cause side effects which prevent her from working. 2. Failure to develop the record. Blevins also argues that the administrative law ju d g e failed to develop the record when he did not obtain the medical records related of her re c en t thumb surgery. A disability claimant bears the burden of submitting medical evidence in support of her claim. See C.F.R. §§ 404.704, 404.1512. Blevins ignores her own o b lig a tio n to obtain such evidence in order to establish her entitlement to benefits. See Gully v . Astrue, 2009 WL 1580416, *5 (M.D. Ala. 2009) (No. 1:08cv245-WC). See also Lucas, 9 1 8 F.2d at 1571 (the claimant bears the burden of establishing the existence of a disability). " E v e n though Social Security courts are inquisitorial, not adversarial, in nature, claimants 11

m u s t establish that they are eligible for benefits." Ingram v. Comm'r of Soc. Sec. Admin., 496 F .3 d 1253, 1269 (11 th Cir. 2007) (citing Doughty v. Apfel, 245 F.3d 1274, 1281 (11 t h Cir. 2 0 0 1 )) . See also Holladay v. Bowen, 848 F.2d 1206, 1209 (11 th Cir. 1988). M o re o v e r, while the ALJ has a duty to fully and fairly develop the record, the e v id e n c e in this case does not indicate that Blevins lacks the ability to work. On her daily a c tiv itie s questionnaire, Blevins indicated that she is able to care for her personal needs; she c le a n s house, cooks, does laundry, and can drive a car. (R. 69-77). No treating physician has o p in e d that Blevins should not perform work. This court must accept the factual findings of th e Commissioner if they are supported by substantial evidence and based upon the proper le g a l standards. Bridges, supra. This court therefore cannot conclude that Blevins is entitled to relief with respect to her claim that the ALJ failed to request additional medical records. 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 10 th day of November, 2009.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 12