Rainer v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER. Signed by Honorable Charles S. Coody on 11/5/10. (djy, )

Rainer v. Astrue (CONSENT)

Doc. 23

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 P A T R IC IA ANN RAINER, 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. 2:09cv345-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., alleging that she was unable to work because o f a disability. Her application was denied at the initial administrative level. The plaintiff th e n requested and received a hearing before an Administrative Law Judge ("ALJ"). Following 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 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. § § 405 (g) and 1383(c)(3).

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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The 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 n s w e r to any question, other than step three, leads to a determination of "not d is a b le d ."

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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McDaniel 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 (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). 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). I I I . The Issues A . Introduction. Plaintiff Patricia Ann Rainer ("Rainer") was 35 years old at the tim e of the hearing before the ALJ. (R. 229). She has a ninth grade education. (Id.). Her p rio r work experience includes work as a "fast food worker (light unskilled) and hostess in

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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the restaurant (light, unskilled)." (R. 29). Following the hearing, the ALJ concluded that the p la in tif f has severe impairments of "status post fracture of the left orbital floor and medial w a ll of the face; status post fracture of the 4th metacarpal; history of abdominal wound in f e c tio n , treated and resolved; and obesity." (R. 21). The ALJ concluded that Rainer had th e residual functional capacity to perform a "modified range of light work," (id.), and that s h e could perform her past relevant work. (R. 29). Moreover, relying on the testimony of a vocational expert, the ALJ concluded that there were jobs existing in significant numbers in the national economy that Rainer could perform. (Id.). Consequently, the ALJ concluded th a t she was not disabled. (Id.). B. The Plaintiff's Claims. As presented by the plaintiff, the sole issue before the c o u rt is whether the ALJ erred by failing to properly apply the pain standard to P la in tif f 's allegations of disabling pain, including the improper discrediting of th e credibility of the plaintiff's testimony regarding pain. (D o c . # 19, Pl's Br. at 2, 8). It is to this issue that the court now turns. I V . 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 (11th 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) s u b je c tiv e evidence of pain and disability, e.g., the testimony of the claimant and her family

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or friends, and (4) the claimant's age, education, and work history. Tieniber v. Heckler, 720 F .2 d 1251 (11th 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 c o n s c ie n tio u s ly 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 re f e re n c in g the plaintiff's impairments. Any such decision by the Commissioner of Social Security which involves a d e te rm in a tio n of disability and which is in whole or in part unfavorable to such in d iv id u a l shall contain a statement of the case, in understandable language, s e tti n g forth a discussion of the evidence, and stating the Commissioner's d e te r m in a tio n and the reason or reasons upon which it is based. 4 2 U.S.C. § 405(b)(1) (emphases added). R a in e r contends that the ALJ failed to properly apply the pain standard and failed to a rtic u la te sufficient reasons for discrediting her testimony. As explained below, the ALJ did n o t fully credit Rainer's testimony. "Subjective pain testimony supported by objective m e d ic a l evidence of a condition that can reasonably be expected to produce the symptoms o f which the plaintiff complains is itself sufficient to sustain a finding of disability." Hale v . Bowen, 831 F.2d 1007 (11th Cir. 1987). The Eleventh Circuit has established a three-part te s t that applies when a claimant attempts to establish disability through her own testimony o f pain or other subjective symptoms. Landry v. Heckler, 782 F.2d 1551, 1553 (11 th Cir. 1 9 8 6 ); see also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). This standard requires

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evidence of an underlying medical condition and either (1) objective medical evidence that c o n f irm s the severity of the alleged pain arising from that condition or (2) an objectively d e te rm in e d medical condition of such severity that it can reasonably be expected to give rise to the alleged pain. Landry, 782 F. 2d at 1553. In this circuit, the law is clear. The C o m m is s io n e r must consider a claimant's subjective testimony of pain if he finds evidence o f an underlying medical condition and the objectively determined medical condition is of a severity that can reasonably be expected to give rise to the alleged pain. Mason v. Bowen, 7 9 1 F.2d 1460, 1462 (11th Cir. 1986); Landry, 782 F.2d at 1553. Thus, if the Commissioner f a ils to articulate reasons for refusing to credit a claimant's subjective pain testimony, the C o m m is s io n e r has accepted the testimony as true as a matter of law. This standard requires th a t the articulated reasons must be supported by substantial reasons. If there is no such s u p p o rt then the testimony must be accepted as true. Hale, 831 F.2d at 1012. T h e plaintiff initially filed for disability due to an injury to her hand. At the first a d m in is tra tiv e hearing, Rainer testified that she does not use her right hand because of pain a n d swelling. (R. 229-240). She also testified that she uses Advil and Tylenol for the pain. (R. 240). She further testified that she suffered a fracture to her face in a car accident, and th a t the fracture had not been repaired because she could not afford the surgery. (R. 242). At the second administrative hearing in June 2008, Rainer testified that she had undergone s u rg e ry to repair the orbital blowout fracture in September 2007. (R. 275-76). She further te s tif ie d that it took three months for her eye to open (R. 276-77), and she still suffers from

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pain (R. 277). When asked about her problems, the plaintiff responded as follows. A: A lot, I mean pain. This whole side, I wasn't used to using this side b e c a u s e I was always right-handed. So, by using this side just stopped a lot. It just, just kept me a lot. I mean, trying to do the things that I w e re doing, I mean, it did, it was getting better and it just shut down a n d I started going back and they kind of figured it's was an infection, a lre a d y had a body infection, now they're trying to figure out is it the b o d y infection causing from the infection from the eye ir I'm kind of c o n f u s e d . I don't know what's going on. It's just like everything on th is side is just shutting down slowly. I mean ­ B u t you can hear out of that left ear? I can hear, it's just the running, the running it'll just come but I'm th in k in g it's infection. When I went to the emergency room they said it was infection ­ H o w often ­ ­ coming from the eye. H o w often the nosebleed will run? It just starts, I mean all o a sudden just starts. If I get to moving around a lot it'll just start. I mean -O k a y. ­ the eye itself wasn't like this. If I had too much heat, too much cold, o r moving of that side it's just twisting. O k a y, I get that part but other than the nosebleed the pain, and I would lik e to ask you on a scale of one to ten with ten being the greatest a m o u n t of pain you received how would you rate the type of pain that yo u 'd receive on average? I'd say just an eight. A n eight? Y es. Is that in your eye or your whole left extremity, upper extremity? T h is just this left side, just it's just a numbness. It's like it's just getting num b. O k a y, you can proceed with your testimony. O k a y, after, I mean, I thought it was going to get better. Just to be h o n e s t, after this surgery I done got worser than I was. I mean, I was d o in g better, much better before I had the surgery and now I just don't k n o w . It's like this whole left side is just going, just giving me feelings th a t I never had. I mean, I was able to really use this side much more b u t now it's like a weak, it's ­ 7

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(R . 278-80). She testified that she has been prescribed eye drops, (R. 283), and pain m e d ic a tio n (Lortab) but she no longer takes the pain medication. (R. 285). Finally, she te s tif ie d that she had been to the emergency room between six and eight times due to the p a in . (R. 288). Prior to reviewing the medical evidence and reciting Rainer's testimony, the ALJ a c k n o w le d g e d that Rainer has impairments that would reasonably be expected to produce the typ e of pain about which she complains but the ALJ then concluded that Rainer's statements w e re "not credible to the extent they are inconsistent with the residual functional capacity a s s e s sm e n t for the reasons explained below." (R. 21-22). The ALJ considered Rainer's testimony, the medical evidence of record, and the testimony of the medical expert, (R. 222 7 ), but then the ALJ discredited Rainer's testimony "of disabling pain . . . [as] inconsistent w ith objective medical evidence of record to the extent alleged." (R. 28). If this were the e x te n t of the ALJ's credibility analysis, the plaintiff might be entitled to some relief. However, the ALJ continued his analysis. She testified that she has pain on her left side that rates a 7 or 8. She stated th a t she has pain every day during some part of the day. She said the pain last ( s ic ) about 4 hours a day. She said that the facial blowout keeps her from w o rk in g . The evidence of record shows that the claimant was seen by Dr. Cox o n December 4, 2006 (Exhibit 9F). Dr. Cox noted that the claimant has grossly n o rm a l vision of each eye when viewed separately. While she may experience d ip lo p ia when looking down, Dr. Cox did not schedule surgery for the c la i m a n t because her condition was not of an emergency nature. Dr. Izer n o te d , in a letter dated August 16, 2007, that he examined the claimant and that th e claimant's best corrected visual acuity was 20/20 on the right and 20/40 on 8

the left. Dr. Izer noted that the claimant has been having persistent double v is io n and pain in her left eye. He did not, however, describe the pain as s e v e re pain and did not prescribe any medication for hte claimant. On S e p te m b e r 12, 2007, Dr. Vicinanzo indicated that the claimant's visual acuity w a s 20/20 for the right eye and 20/30 for the left eye (Exhibit 13F). Claimant u n d e rw e n t a left orbital floor fracture repair. She followed up with Dr. V ic in a n z o on October 4, 2007, and complained of pain and headaches. However, Dr. Vicinanzo diagnosed the claimant as "doing well." At her f o llo w up on October 10, 2007, the claimant was diagnosed as "doing much b e tte r" less enophthalmia, and better eye movement. When the claimant was s e e n on January 9, 2008, she was diagnosed as "doing significantly better (E x h ib it 16F). By letter dated January 9, 2008, Dr. Vincinanzo indicated that th e claimant has significant greater eye movement after the surgery. Although th e claimant continued with some diplopia on down gaze, overall, her orbital v o lu m e was better. Her overall eye movements were dramatically better. W h e n seen on February 6, 2008, the claimant did not complain of significant p a in . She only complained that she "can't look up/down without eyes wanting to cross." At her follow up on May 9, 2008, again, the claimant did not c o m p la in of any eye pain. * * *

C la im a n t gave inconsistent testimony regarding pain specialist treatment. She te s tif ie d that she is going to a pain specialist. She also testified that she has not re c e iv e d a referral for a pain specialist. C la im a n t testified that she does not bend because it feels like everything rushes to the front and this gets her heart rate up and aggravates her pain. However, D r. Anderson [the medical expert] testified that the claimant's testimony re g a rd in g her ability to bend is not consistent with her medical condition. A d d itio n a lly, the claimant testified that she was hospitalized for 8 days due to a spider bite. The evidence of record, however, shows that the claimant was a d m itte d into the Baptist Medical Center on September 27, 2006, for a bug or a n insect bite (Exhibits 4F, 7F). Claimant's insect/bug bite hospitalization was f o r a total of three days only. The claimant followed up with Dr. Tinglin from O c to b e r 12, 2006 to November 16, 2006 (Exhibit 6F). There is no additional tre a tm e n t by him after November 2006. Again, I find that the claimant is in c o n s is te n t with her testimony with regard to her insect/bug bite.

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The record establishes that the claimant received very limited amount of tre a tm e n t for her allegations. She has not required any further doctor's visits o n a continuing basis, hospitalizations, prescribed medications on a continuing b a s is , or treatment from a pain management specialist. Accordingly, I find that th e claimant is not fully credible. (R. 28-29) W h e re 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. Dept. 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, objective evidence, and Rainer's own testimony, the ALJ concluded that th e plaintiff's underlying conditions are capable of giving rise to some pain and other lim ita tio n s , however not to the extent described by the plaintiff. Consequently, he discredited th e plaintiff's testimony that she suffers from disabling, intractable pain. After a careful re v ie w of the record, the court concludes that the ALJ's reasons for discrediting the

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plaintiff's testimony were clearly articulated and supported by substantial evidence. The medical records support the ALJ's conclusion that while Rainer has conditions th a t could reasonably be expected to produce pain, Rainer was not entirely credible in her d e s c rip tio n of that pain. For example, Rainer testified that she could not use her right hand a t all due to the injury to that hand. Rainer fractured her right fourth metacarpal ­ her pinky f in g e r on that hand. (R. 105-128). She had surgery to repair the finger and has not sought m e d ic a l treatment for that problem since February 2006. On August 30, 2007, Rainer was re f e rre d to the Alabama Neurological Clinic for a disability evaluation due to "shaking of the rig h t hand." (R. 189-90). No medical records report any shaking of Rainer's right hand and th e evaulator did "not see any resting, postural, or intention tremor during exam." (R. 190). Rainer takes only Tylenol for pain (R. 189, 198, 240, 285, 300). After surgery to re p a ir her orbital blowout fracture, on October 19, 2007, Rainer reported decreased pain to D r. Vicinanzo and he indicated she was "doing much better." (R. 199). At the first a d m in is tra tiv e hearing, Rainer testified that she goes to the emergency room once or twice a week, and she seeks treatment at last two or three times a month for the pain. (R. 245, 2 7 4 ). The medical records do not support her testimony. She testified at the second a d m in is tra tiv e hearing that after the surgery, it took three months for her eye to open, and that h e r eye subsequently became infected. (R. 277, 282). However, the medical records make n o mention of her closed eye or an infection in the eye. Finally, Rainer testified that she had b e e n to the emergency room six to eight times for the pain in her face. (R. 287-88). The

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emergency room records demonstrate that Rainer presented for treatment no more than three tim e s , and one of those visits was for a toothache. (R. 290). The plaintiff cursorily argues that the ALJ "did not adequately discuss or properly c o n s id e r the import of the fact that the claimant went for nearly a full year after suffering the o rb ita l blowout fracture before she was able to obtain the necessary surgical repair, and that th e claimant did not have the health insurance or other financial means to afford much of the n e c e s s a ry medical treatment for her orbital blowout fracture or otherwise." (Pl's Br. at 11). W h ile failure to seek treatment is a legitimate basis to discredit the testimony of a claimant, it is the law in this circuit that poverty excuses noncompliance with prescribed medical tre a tm e n t or the failure to seek treatment. Dawkins v. Bowen, 848 F.2d 1211 (11 th Cir. 1988). H o w e v e r, in Dawkins, the claimant was denied supplemental security income benefits b e c a u s e of her failure to follow prescribed medical treatment. 848 F.2d at 1212. The E le v e n th Circuit held that a claimant cannot be denied benefits due to her failure to secure m e d ic a l treatment when poverty may excuse non-compliance. Id. at 1213-14. In this case, th e ALJ did not deny the plaintiff benefits based on her non-compliance with treatment. Therefore, Dawkins, supra, is inapposite. More importantly, Rainer's own testimony regarding her pain management treatment m ilita te s against her credibility. During the hearing, Rainer testified that she was "going to g o " to a pain specialist, (R. 277), but she later testified that she had an appointment to see a p a in specialist but that she had not actually gone to the appointment. (R. 309). Moreover,

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she consistently testified that she chooses to use Tylenol rather than prescribed pain m e d ic a tio n . (R. 189, 198, 240, 285, 300). Thus, the court concludes that the

C o m m is s io n e r's decision to deny Rainer benefits is supported by substantial evidence. T o 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. Bridges v. Bowen, 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 5th day of November 2010.

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

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