Glasscock v. Astrue

Filing 14

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 6/30/11. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIAM L. GLASSCOCK,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 2:09cv1161-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq., and for supplemental security income benefits under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., alleging that he was unable
to work because of 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”). Following the hearing, the ALJ concluded that the plaintiff was not under a
“disability” as defined in the Social Security Act. The ALJ, therefore, denied the plaintiff’s
claim for benefits. The Appeals Council rejected a subsequent request for review. 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).
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.

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the
United States Magistrate Judge. The case is now before the court for review pursuant to 42
U.S.C. §§ 405 (g) and 1383(c)(3). Based on the court's review of the record in this case and
the briefs of the parties, the court concludes that the decision of the Commissioner should
be affirmed.
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 . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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?
(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.”

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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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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of 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). A reviewing court may not look only to those parts of
the record which supports 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. The Issues
A. Introduction. The plaintiff was 32 years old at the time of the hearing before the
ALJ and has a high school education. (R. 22). Following the hearing, the ALJ concluded
that the plaintiff has severe impairments of “IBS [Irritable Bowel Syndrome], history of

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) (Unit A).

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migraine headache disorder, history of alcohol and polysubstance abuse and dependence,4
anxiety disorder, history of closed head injury (occurred in 1993), and multiple schmorl’s
nodes in the lower thoracic and upper lumbar spine.” (R. 14) (footnote added). His prior
work experience includes work as a “Control Panel Monitor . . . and Server.” (R. 16).
Following the hearing, the ALJ concluded that the plaintiff could return to his past relevant
work, and thus, he is not disabled. (R. 17).
B. Plaintiff’s Claims. The plaintiff presents a single issue for the court’s review.
As stated by the plaintiff, the issue is “[w]hether the ALJ erred by failing to properly apply
the pain standard to Plaintiff’s allegations of disabling symptoms associated with Irritable
Bowel Syndrome.” (Pl’s Br., doc, # 11, at 2 & 5).
IV. Discussion
A disability claimant bears the initial burden of demonstrating an inability to return
to his past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether
the claimant has satisfied this burden, the Commissioner is guided by four factors: (1)
objective medical facts or clinical findings, (2) diagnoses of examining physicians, (3)
subjective evidence of pain and disability, e.g., the testimony of the claimant and his family
or friends, and (4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720

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The ALJ specifically found that “[t]he issue of alcohol or polysubstance use, abuse, and/or
dependence, reference a history, thereof, or current use (marijuana) is non-material to all impairments.” (R.
14). Because the ALJ determined that Glasscock was not disabled, the ALJ, in accordance with the
regulations, did not consider whether Glasscock’s alcoholism or substance abuse was a contributing factor.
See 20 C.F.R. § 404.1535.

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F.2d 1251 (11th Cir. 1983). The court must scrutinize the record in its entirety to determine
the reasonableness of the ALJ’s decision. See Walker, 826 F.2d at 999. The ALJ must
conscientiously probe into, inquire of and explore all relevant facts to elicit both favorable
and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir.
1981). The ALJ must also state, with sufficient specificity, the reasons for his decision
referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphases added).
Glasscock contends that the ALJ failed to properly apply the pain standard to his
symptoms and failed to articulate sufficient reasons for discrediting his testimony. As
explained below, the ALJ did not fully credit Glasscock’s testimony. Given the way the
plaintiff presents the issue, the court will first discuss this circuit’s pain standard.
“Subjective pain testimony supported by objective medical evidence of a condition that 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 (11th Cir. 1987).
The Eleventh Circuit has established a three-part test that applies when a claimant attempts
to establish disability through his own testimony of pain or other subjective symptoms.
Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986); see also Holt v. Sullivan, 921 F.2d

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1221, 1223 (11th Cir. 1991). This standard requires evidence of an underlying medical
condition and either (1) objective medical evidence that confirms the severity of the alleged
pain arising from that condition or (2) an objectively determined 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 Commissioner must consider a claimant’s
subjective testimony of pain if he finds evidence of 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, 791 F.2d 1460, 1462 (11th Cir. 1986); Landry,
782 F.2d at 1553. Thus, if the Commissioner fails to articulate reasons for refusing to credit
a claimant's subjective pain testimony, the Commissioner has accepted the testimony as true
as a matter of law. This standard requires that the articulated reasons must be supported by
substantial reasons. If there is no such support then the testimony must be accepted as true.
Hale, 831 F.2d at 1012.
The plaintiff’s argument, in its entirety, is as follows.
In Holt v. Sullivan, 921 F.2d 1221 (11th Cir. 1991), the Eleventh Circuit
established that the pain standard also applies in cases involving subjective
complaints other than pain. Id. In the case at bar, the ALJ appears to have
applied the standard to the claimant’s testimony regarding the symptoms of
IBS.
In Swindle v. Sullivan, 914 F.2d 222 (11th Cir. 1990), as in the case at
bar, the ALJ found the claimant’s testimony of multiple subjective symptoms
to be not fully credible. Id. As in Swindle, the ALJ in the case at bar
dismounted the claimant’s testimony regarding pain and other subjective
symptoms, including diarrhea, frequent bathroom visits and vomiting, by
making reference to certain objective findings regarding the claimant’s
condition in the medical records. Id. at 226.
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In discounting her allegations of pain, the ALJ noted that in
1985 her treating physician found that she had a full range of
motions in her joints and in 1988 Dr. Dohlman found her motor
functions to be intact with no synovitis. Nevertheless, full range
of motion, lack of synovitis, and intact motor function provide
no evidence that Ms. Swindle’s systemic lupus could not give
rise to the pain in her loser (sic) extremities and the dizziness
she describes. Therefore, we find that the ALJ’s determination
that her testimony regarding pain and dizziness is only partially
credible is not supported by substantial evidence.
In the case at bar, the ALJ discounted the claimant’s testimony
regarding pain, diarrhea, frequent bathroom visits and vomiting by referencing
the claimant’s weight gain and other factors.
As in Swindle], the factors cited by the ALJ in this case do not provide
evidence that the claimant’s ABS could not give rise to such symptoms as
testified to by the claimant. Id. The ALJ failed to properly apply the requisite
pain standard.
(Pl’s Br., doc. # 11 at p.6).
The court concludes that Swindle, supra is inapposite to this case because, unlike
Swindle, objective medical findings such as weight gain directly contradict Glasscock’s
testimony that he suffered daily from diarrhea and/or constipation. (R. 36-38).
At the administrative hearing, Glasscock testified as follows.
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:

Okay. You have significant abdominal digestive problems, right?
Yes.
Okay. And you mentioned ulcerative colitis. You’ve also had
diagnosis -Check -– of irritable bowel syndrome?
Yes.
How often are you having pain, or discomfort,, or diarrhea, other
symptoms that you attribute to the abdominal problems?
Well, I have abdominal pain every day.
Every day?
7

A:

Every day.
*

A:
Q:
A:

A:
Q:
A:

*

And my stomach has been hurting lately. And I also have been having
pain sitting down, my hemorrhoids are getting worse or something.
And, and are you having significant diarrhea on a regular basis from
this problem?
I have diarrhea, constipation, it flip-flops.
*

Q:

*

*

*

Do you have periods of time where you’re not experiencing those problems,
the pain, the diarrhea, and the constipation?
Very small golden moments.
For how long at a time are you free of the symptoms then?
It seems like never.

(R. 35-38).
Glasscock testified that he has to use the bathroom six to ten times during an eight
hour period of time, and he has diarrhea on average 12 days per month. (R. 38). Finally, he
testified that although he takes mediation, it does not alleviate the pain.5 (R. 37).
The ALJ recited Glasscock’s testimony and compared it to the medical evidence. The
ALJ acknowledged that Glasscock has IBS but the ALJ then concluded that Glasscock’s
testimony was not fully credible because “the record does not support his testimony regarding
the frequency or severity of this symptoms.” (R. 12). The ALJ also concluded that
Glasscock’s “subjective complaints, to the extent that they are inconsistent with the residual
functional capacity assessment given below, are not substantiated by the record and are not

5

The plaintiff does not identify the medication he takes for IBS.

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credible.” (R. 17). The ALJ considered Glasscock’s testimony and the medical evidence
of record, but discredited Glasscock’s testimony as unsubstantiated by the medical record.
(Id). If this were the extent of the ALJ’s credibility analysis, the plaintiff might be entitled
to some relief. However, a review of the totality of the ALJ’s analysis demonstrates that the
ALJ properly considered and discredited Glasscock’s testimony.
In July 2006, the claimant sought treatment for complaints of abdominal pain
with nausea; he was diagnosed with IBS. He was assessed with irritable bowel
syndrome with weight loss in August 2006. In June 2007, the claimant sought
treatment for complaints of intestinal pain; he was diagnosed with IBS and
ulcerative colitis. During treatment in August, 2007, the claimant was
described as well developed and nourished with no evidence of chronic
debility. In December 2007, the claimant sought treatment for complaints of
“acute” severe abdominal pain. A CT of abdomen, pelvis and brain were
negative. In April 2008, the claimant had complaints of flank pain. In January
2009, he had complaints of left abdominal pain.
The claimant weighed 135 pounds in May 2006, 138 pounds in July 2006,131
in August 2006, 140 pounds in November 2006, 152 pounds in December
2006 and January 2007, 192 pounds in February 2008, 176 pounds in May
2008, 179 pounds in November 2008, and 172 pounds in May 2009.
The claimant has been diagnosed with IBS. The record establishes that the
claimant’s IBS was symptomatic and causing weight loss following his alleged
onset date of May 2006, however, he did not seek treatment for a related
complaint from August 2006 until June 2007. He has sought sporadic
treatment since June 2007. (Some treatment records are illigible (sic)). Since
November 2006, he has gained and maintained his weight. Therefore, the
record does not support his testimony regarding the frequency or severity of
his symptoms; this testimony is not fully credible.
(R. 12-13)
Where an ALJ decides not to credit a claimant’s testimony, the ALJ must articulate
specific and adequate reasons for doing so, or the record must be obvious as to the credibility
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finding. 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
substantial evidence). If proof of disability is based on subjective evidence and a credibility
determination is, therefore, critical to the decision, “‘the ALJ must either explicitly discredit
such testimony or the implication must be so clear as to amount to a specific credibility
finding.’” Foote, 67 F.3d at 1562, quoting Tieniber, 720 F.2d at 1255 (although no explicit
finding 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
“explicit and adequate reasons for his decision.” Holt, 921 F.2d at 1223. Relying on the
treatment records, objective evidence, and Glasscock’s own testimony, the ALJ concluded
that the plaintiff's IBS is capable of giving rise to some pain and other limitations, however
not to the extent described by the plaintiff. Consequently, he discredited the plaintiff’s
testimony. After a careful review of the record, the court concludes that the ALJ’s reasons
for discrediting the plaintiff’s testimony were clearly articulated and supported by substantial
evidence.
The medical records support the ALJ’s conclusion that while Glasscock’s IBS could
reasonably be expected to produce pain, Glasscock was not entirely credible in his
description of his symptoms or his pain. For example, Glasscock testified that he suffered
from frequent diarrhea and constipation. He testified that he has pain 28 days out of the
month; that he is in a cycle of constipation and diarrhea “pretty much all the time.” (R. 36-

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37). When he is in pain, the pain lasts all day. (R. 38).
However, the medical records do not corroborate his testimony. When Glasscock
presented to the emergency room at Baptist Hospital in July 2006, he reported abdominal
pain but no diarrhea. (R. 243). Although Glasscock presented to the emergency room in
June, May and February of 2006 and October 2005, he did not complain of abdominal pain,
diarrhea or constipation. (R. 247, 255, 263-67, 272-73). In August 2005, Glasscock
complained of abdominal pain and headaches, but reported that he did not suffer from
diarrhea. (R. 278-79).
During an consultative physical evaluation on March 16, 2007, Glasscock asserted he
was unable to work due to mood changes. (R. 332). He denied weight loss or rectal bleeding
associated with his IBS. (R. 334). Dr. Babb described him as “well-groomed, welldeveloped white male . . . in no acute distress.” (Id.) Glasscock weighed 158 pounds. (Id.)
In December 2007, Glasscock presented to Baptist Hospital’s emergency room
complaining of abdominal pain. (R. 416-18). He did not report diarrhea. In May 2008,
Glasscock presented to Murphy Chiropractic Clinic complaining of low back pain. (R. 618).
He reported abdominal pain and excessive gas but did not complain about IBS. (Id.)
Glasscock presented to the emergency room once in 2008 and four times in 2009
complaining of back pain, migraines or abdominal pain but he did not report diarrhea or
constipation. (R. 625-30, 644-53, 659-64, 675-75, 724). Thus, the medical records do not
support his testimony, and the court concludes that the Commissioner’s decision to deny

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Glasscock benefits is supported by substantial evidence.
To the extent that the plaintiff is arguing that the ALJ should have accepted his
testimony regarding the frequency of his diarrhea and need to use the bathroom, as the court
explained, the ALJ had good cause to discount his 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 (11th Cir. 1987).
V. Conclusion
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that plaintiff is not disabled. Thus, the
court concludes that the decision of the Commissioner is supported by substantial evidence
and is due to be affirmed.
A separate order will be entered.
Done this 30th day of June 2011.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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