Dacus v. Astrue

Filing 20

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 12/29/2011. (jg, )

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

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CIVIL ACTION NO. 2:11cv23-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Kevin V. Dacus, 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

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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

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. #19); Def.’s Consent to Jurisdiction (Doc. #18). 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

Security.
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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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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
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

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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).
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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 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).

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See 20 C.F.R. pt. 404 subpt. P, app. 2.
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[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 in his early fifties at the time of the hearing before the ALJ and had

completed a college degree. Tr. 18. Plaintiff’s past relevant work experience was as a
school teacher. Tr. 27. Following the administrative hearing, and employing the five-step
process, the ALJ found Plaintiff had “not engaged in substantial gainful activity since
December 27, 2006, the alleged onset date.” (Step 1). Tr. 17. At Step 2, the ALJ found that
Plaintiff suffers from the following severe impairments: mild degenerative disc disease of
the lumbar spine with mild spinal stenosis; facet joint arthritis; major depression; history of
illegal substance abuse; and alcohol abuse. Tr. 18. The ALJ then found that “if the claimant
stopped the substance abuse, the claimant would 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 retained the residual functional capacity to perform
a range of light work with several restrictions. Tr. 26. The ALJ then found that if Plaintiff
refrained from engaging in substance abuse, he would be able to perform his past relevant
work as a school teacher. (Step 4) Tr. 27. Although not required, the ALJ proceeded to Step
5, and after consulting with a VE, found that “there are jobs that exist in significant numbers
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in the regional and national economies that [Plaintiff] can perform,” including: “Information
Order Clerk,” “Cashier,” and “Assembler.” Tr. 28. Accordingly, the ALJ determined that
because Plaintiff would not be disabled if he stopped the substance abuse and the substance
abuse was a contributing factor material to the determination of disability, Plaintiff “has not
been disabled . . . from the alleged onset date through the date of this decision.” Id.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents four issues for this court’s consideration: 1) whether this court

“should enter a disability finding determining that the combination of [Plaintiff’s]
impairments leave him unable to engage in substantial gainful activity as well as medically
equal listing 12.04"; 2) whether “the ALJ failed to give adequate weight to the claimant’s
treating physician”; 3) whether the “ALJ failed to consider a consultative neurological
examination as well as a physician’s medical source statement”; and 4) whether the “ALJ
failed to find disability based on Grid Rule 201.14.” Pl.’s Brief (Doc. #11) at 6.
V.

DISCUSSION
A.

Whether this court should enter a disability finding.

Plaintiff urges the court to, “based upon the ALJ’s administrative findings, [ . . .] enter
a disability finding determining that the combination of [Plaintiff’s] impairments medically
equal listing 12.04.” Id. Other than making this statement Plaintiff fails to articulate which
administrative findings support his request that this court enter a disability finding. Instead,

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Plaintiff appears to challenge whether there was enough evidence to support Dr. McKeown’s
opinion that Plaintiff’s severe impairments were due to Plaintiff’s substance abuse and
whether the ALJ could rely alone on Dr. McKeown’s opinion. The problem with this
argument is that the ALJ did not rely on Dr. McKeown’s opinion alone. Indeed, the ALJ did
rely on the examining expert’s testimony, which he may do, and also on that of the other
medical evidence of record which supported his determination that Plaintiff only suffered
mild impairments when not engaging in substance abuse. Plaintiff fails to address this
portion of the ALJ’s opinion and this court is not inclined to suppose arguments on Plaintiff’s
behalf. Instead, this court has reviewed the record, and the ALJ’s decision, and has
determined that it is supported by substantial evidence and Plaintiff’s request that this court
award benefits is due to be denied.
B.

Whether the ALJ properly assigned weight to the opinion of Plaintiff’s
treating physician.

Plaintiff argues that the ALJ improperly rejected the opinion of Dr. Underwood,
Plaintiff’s treating physician. Specifically, Plaintiff challenges the ALJ’s rejection of Dr.
Underwood’s clinical assessment plan. Id. at 8. Plaintiff is correct that the ALJ gave no
weight to Dr. Underwood’s physical assessments. However, Defendant argues that the ALJ
properly rejected Dr. Underwood’s opinion.
Dr. Underwood completed a physical capacities evaluation, a clinical assessment of
pain, and an ability to work report on March 30, 2009. Tr. 514-16. Within those forms, he

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opined that Plaintiff: could only sit for two hours during an eight hour work day, stand for
three hours during an eight hour work day and walk for a total of one hour during an eight
hour work day; could never lift over 26 lbs, never stoop, climb, work around unprotected
heights, work around machinery, must avoid exposure to marked changes in temperature and
humidity and must avoid exposure to dust, fumes and gas fumes; and would miss work more
than four days per month due to his impairments or treatment. Tr. 514. Dr. Underwood also
opined that: Plaintiff’s pain is present to such an extent as to be distracting to adequate
performance of daily activities or work; that physical activity would increase the pain to such
an extent that bed rest and/or medication is necessary; the side effects of the medication
would cause Plaintiff to be restricted and unable to function at a productive level or work;
and that Plaintiff would not be able to work the equivalent of eight hours a day, five days a
week and that his conditions have lasted or are expected to last at least 12 months. Tr. 51516. The ALJ rejected all of the opinions on these forms, stating:
From a physical perspective, Dr. Underwood’s physical capacities evaluation,
clinical assessment of pain, and ability to work report, are all rejected.
Although the doctor does have a treating relationship with the claimant, the
record reveals that actual treatment visits have been relatively infrequent. The
doctor’s own reports fail to reveal the type of significant clinical and
laboratory abnormalities one would expect if the claimant were in fact
disabled, and the doctor did not specifically address this weakness. The doctor
apparently relied quite heavily on the subjective report of symptoms and
limitations provided by the claimant, and seemed to uncritically accept as true
most, if not all, of what the claimant reported. Yet, as explained elsewhere in
this decision, there exists good reasons for questioning the reliability of the
claimant’s subjective complaints [see Tr. 19].

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Tr. 27
When confronted with the opinion of a claimant’s treating physician, the ALJ must
afford it substantial and considerable weight unless “good cause” is shown to the contrary.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); see also Bliss v.
Comm’r of Soc. Sec., 254 F. App’x 757, 758 (11th Cir. 2007) (“An ALJ may reject the
opinion of a treating physician, which ordinarily receives substantial weight, where ‘good
cause’ is established.”). “‘[G]ood cause’ exists when the: (1) treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). “Where the ALJ articulated
specific reasons for failing to give the opinion of a treating physician controlling weight, and
those reasons are supported by substantial evidence,” a reviewing court may not “disturb the
ALJ’s refusal to give the opinion controlling weight.” Carson v. Comm’r of Soc. Sec., 2008
WL 4962696 at *1 (11th Cir. Nov. 21, 2008). “The ALJ must clearly articulate the reasons
for giving less weight to the opinion of a treating physician, and the failure to do so is
reversible error.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also
MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (holding the ALJ “must specify
what weight is given to a treating physician’s opinion and any reason for giving it no
weight”).
In this case, the ALJ articulated good cause for rejecting Dr. Underwood’s opinion,
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by pointing out that the doctor’s own treatments notes did not match his conclusions, which
all seem to be based on Plaintiff’s subjective complaints of pain. As the ALJ further
explained, he did not find Plaintiff’s subjective complaints of paint to be credible.5 The
ALJ’s clear articulation of good cause for rejecting Dr. Underwood’s reports was proper and
based on the evidence of record. Accordingly, this court finds no error.
C.

Whether the ALJ properly considered Dr. Leuschke’s opinion.

Plaintiff argues that Dr. Leuschke’s opinion clearly placed Plaintiff in a sedentary job,
but the ALJ failed to discuss the doctor’s opinion. Plaintiff appears to be talking about a
Medical Source Statement form completed by the doctor on July 2, 2009. Tr. 526-31. While
the ALJ did not discuss the form, he did discuss the consultive examination with Dr.
Leuschke on that date, and its results. Tr. 23. The ALJ is not required to discuss every piece
of evidence of record. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). It is evident
from the ALJ’s decision and his discussion of Dr. Leuschke’s examination that he considered
the doctors findings.
Moreover, Plaintiff fails to explain to the court how the form “clearly” places Plaintiff
in a sedentary job, or how the limitations expressed within the RFC would pose any
significant conflict with the form, or undermines the ALJ’s ultimate determination. Again,
the court will not suppose arguments on Plaintiff’s behalf. The court finds that it is clear the

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Plaintiff does not specifically challenge this credibility determination.
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ALJ considered Dr. Leuschke’s opinion and any error in the ALJ’s failure to mention the
source form was harmless.6 See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983).
D.

Whether the ALJ erred when he failed to find disability based on Grid Rule
201.14.

Here, Plaintiff argues the ALJ erred when he failed to apply the Guidelines, or grids,
to find Plaintiff disabled. Specifically, Plaintiff claims that the ALJ should have applied Grid
Rule 201.14 to make a disability determination because “[t]he substantial evidence in the
record as a whole supports such determination.” Pl.’s Brief (Doc. #11) at 9. Plaintiff does
not however detail what evidence supports an application of the grids. Essentially, Plaintiff
objects to the ALJ’s determination that when not engaged in illegal substance abuse,
Plaintiff’s impairments do not rise to the level of disability.
As to the issue of the grids, Defendant rightly points out that because the ALJ found
that Plaintiff’s RFC did not preclude him from performing his past relevant work as a school
teacher, the use of the grids was precluded. See 20 C.F.R. § 404.1569. In addition, “[w]hen
the claimant cannot perform a full range of work at a given level of exertion or the claimant
has non-exertional impairments that significantly limit basic work skills, exclusive reliance
on the grids is inappropriate.” Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). In the
present case, because the RFC precluded a full range of light work, exclusive reliance on the

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Notably, Plaintiff’s argument here is that he is eligible for sedentary work not that he is
disabled.
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grids would have been inappropriate. Accordingly, the court finds Plaintiff’s claim that the
ALJ should have relied exclusively on the grids to be without merit. Further, Plaintiff fails
to provide the court with sufficient evidence to support his contention that he would be
disabled, or satisfy the grids for a finding of disability, were he to have stopped the substance
abuse. Thus, the court finds this claim to be without 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 29th day of December, 2011.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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