Brown v. Astrue

Filing 14

MEMORANDUM OPINION AND ORDER. Signed by Honorable Wallace Capel, Jr on 8/23/10. (scn, )

B r o w n v. Astrue (CONSENT)

D o c . 14

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION E R N E S T TERELL BROWN, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:09cv861-WC

M E M O R A N D U M OPINION
I. INTRODUCTION P la in tif f Ernest Terell Brown applied for disability insurance benefits and s u p p le m e n ta l insurance benefits under Titles II and XVI of the Social Security Act ("the A c t" ), 42 U.S.C. §§ 401 et seq., and 1381-1383c. His application was denied at the initial a d m in is tra tiv e level. Plaintiff then requested and received a hearing before an

A d m in is tra tiv e Law Judge (ALJ). Following the hearing, the ALJ also denied the claim. T h e Appeals Council rejected a subsequent request for review. The ALJ's decision

c o n se q u e n tly became the final decision of the Commissioner of Social Security (C o m m issio n e r).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c),

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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Dockets.Justia.com

b o th parties have consented to the conduct of all proceedings and entry of a final judgment b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #13); D e f .'s Consent to Jurisdiction (Doc. #12). Based on the Court's review of the record and the b rief s of the parties, the Court AFFIRMS the decision of the Commissioner. 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. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n 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 im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (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? 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 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. 2
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d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f 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 F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience.
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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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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d 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); see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support 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 (11th Cir. 1986). [The 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 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS P lain tiff was thirty-four years old at the time of the hearing before the ALJ, (Tr. 24),

a n d had less than a high school education (Tr. 25). Plaintiff's past relevant work experience w a s as a construction worker, asbestos removal worker, and truck driver. (Tr. 18). At Step 1 , the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged o n s e t date. (Tr. 11). At Step 2, the ALJ found that Plaintiff suffers from the following s e v e re impairments: "Grade 1 spondylolisthesis at L5-S1 with a small disc herniation, status p o s t lumbar fusion, status post fractured clavicle, and history of asthma." Id. The ALJ then f o u n d that "[t]he claimant does not have an impairment or combination of impairments that m ee ts or medically equals one of the listed impairments." (Step 3) Id. Next, the ALJ found th a t Plaintiff retained the RFC to perform a range of sedentary work, with several limitations. S e e (Tr. 12). At Step 4, the ALJ found that Plaintiff is unable to perform past relevant work. (T r. 18). Next, the ALJ found that, given Plaintiff's age, education, work experience, and R F C , and after consulting with a vocational expert, "there are jobs that exist in significant n u m b e rs in the national economy that Plaintiff can perform," (Tr. 19), including: "small p arts assembler," "lock assembler," and "gate guard." (Step 5) Id. Accordingly, the ALJ d eterm ined that Plaintiff had not been under a disability during the relevant time period. (Tr. 2 0 ). IV . P L A I N T I F F 'S CLAIMS P la in tif f presents two claims for this Court's consideration: (1) Whether the ALJ 5

p ro p e rly applied the pain standard; and (2) Whether the ALJ articulated an adequate basis f o r discounting the opinion of Plaintiff's treating physician. The Court will address each of th e s e claims below. A. Whether the ALJ properly applied the pain standard.

P la in tif f argues that the ALJ failed to properly apply the three part pain standard as a rtic u la te d by the Eleventh Circuit and failed to properly articulate adequate reasons for d is c re d itin g Plaintiff's subjective testimony of pain. (Doc. #9) at 10. Defendant argues that th e ALJ did in fact properly apply the pain standard and adequately articulated his reasons f o r his credibility determination. See (Doc. #10) at 6-11. T h e Court of Appeals for the Eleventh Circuit has articulated its "pain standard," g o v e r n in g 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 s ym p to m s , the claimant must satisfy two parts of a three-part test showing: (1) e v id e n c e of an underlying medical condition; and (2) either (a) objective m e d ic a l evidence confirming the severity of the alleged pain; or (b) that the o b je c tiv e ly determined medical condition can reasonably be expected to give ris e to the claimed pain. W ils o n v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The ALJ evaluates the

" c la im a n t's subjective testimony of pain" only after the claimant satisfies the first and one o f the alternate portions of the second prong of the pain standard. Foote v. Chater, 67 F.3d 1 5 5 3 , 1560 (11th Cir. 1995). The Eleventh Circuit has also held that, "in certain situations, p a in alone can be disabling, even when its existence is unsupported by objective evidence." 6

Id . at 1561. Importantly, it is only evidence of the underlying condition which could r e a so n a b l y be expected to cause pain, not evidence of actual pain or its severity, which must b e presented by the claimant to satisfy the "pain standard." Elam v. Railroad Retirement Bd., 9 2 1 F.2d 1210, 1215 (11th Cir. 1991); see also Foster v. Heckler, 780 F.2d 1125, 1129 (4th C ir. 1986); Hill v. Barnhart, 440 F. Supp. 2d 1269, 1272-73 (N.D. Al. 2006) (quoting Elam, 9 2 7 F.2d at 1215). Where the ALJ proceeds to consider the claimant's subjective testimony a b o u t pain, the ALJ's decision to reject or discredit such testimony is reviewed for substantial e v id e n c e . Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Finally, if the ALJ d e te rm in e s to discredit subjective pain testimony and such testimony is crucial to the c la im a n t's assertion of disability, the ALJ "must articulate specific reasons for questioning th e claimant's credibility." Id. P la in tif f ' s claim that the ALJ's decision should be reversed because the ALJ failed to apply the "pain standard" is without merit. As will be shown below, the ALJ did indeed a p p ly the relevant test in his decision. Plaintiff's claim appears concerned merely with the f a c t that the ALJ did not "recite or make specific reference to the three part pain standard." P l.'s Brief (Doc. #9) at 10. However, there is no requirement that the ALJ utilize any p articu lar phraseology, so long as the appropriate standard is indeed applied. Wilson, 284 F .3 d at 1225-26. In this case, the ALJ properly stated the standards governing his evaluation of P la in tif f 's subjective pain testimony and cited to 20 C.F.R. § 404.1529, "which contains the 7

s a m e language regarding the subjective pain testimony that [the Eleventh Circuit] interpreted w h e n initially establishing its three-part pain standard." Wilson, 284 F.3d at 1225. The A L J's determination that Plaintiff's "medically determinable impairments could reasonably b e expected to produce the alleged symptoms," (Tr. 13), shows that the ALJ exactly followed th e three part pain standard as explained in Wilson. In fact, the ALJ determined that Plaintiff passed through the threshold of the "pain s ta n d a rd ." Moving then to the determination of whether the pain was disabling, the ALJ sta ted that Plaintiff's "statements concerning the intensity, persistence and limiting effects o f these symptoms are not credible to the extent that they are inconsistent with the residual f u n c tio n a l capacity assessment for the reasons explained below." (Tr. 13). Thus the ALJ f o u n d that Plaintiff's testimony about pain was not fully credible. Accordingly, the ALJ was r e q u ir e d to "articulate specific reasons for questioning the claimant's credibility" and those re a so n s must be supported by substantial evidence. P la in tif f alleges that the ALJ failed to articulate specific reasons for his findings and th a t those unarticulated reasons were not supported by substantial evidence. The claim that th e ALJ failed to articulate his reasons for finding Plaintiff's testimony about the severity of h is pain to be incredible is without merit. Indeed, the ALJ goes to great lengths to articulate h is reasons for discrediting the testimony. The ALJ found Plaintiff's testimony regarding pain incredible for several reasons, in c lu d in g : Plaintiff's allegation that he was experiencing moderately severe to severe pain 8

o n an average day was inconsistent with the substantial evidence; Plaintiff testified that the p ro b le m s originated from a work related injury, but treatment records indicate the problems s ta rte d before the injury; the lack of treatment records from the periods of time in which P la in t if f was either covered by insurance or was gainfully employed. (Tr. 13-18). Those re a so n s , along with several others are clearly articulated throughout the ALJ's opinion. A s stated supra, this Court's review is limited. If the ALJ's determination is

s u p p o rte d by substantial evidence, and it is, then this Court must affirm. See Crawford v. C o m m 'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) ("Even if the evidence p re p o n d e ra t e s against the Commissioner's findings, [a reviewing court] must affirm if the d e c is io n reached is supported by substantial evidence."). B. W h e th e r the ALJ articulated an adequate basis for discounting the o p in io n of Plaintiff's treating physician.

P la in t if f 's entire argument on this issue consists of these two sentences: In the case at bar, the ALJ did not articulate an adequate basis f o r not according the opinions of Dr. Holt substantial weight. F u rth e rm o re , the ALJ improperly drew his own medical c o n c lu s io n s from the evidence of record, substituting his own m e d ic a l opinions for those of the treating physician. Pl.'s Brief (Doc. #9) at 13. Plaintiff is correct that the ALJ must clearly articulate good cause for disregarding the o p in io n of a treating physician. Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). " `[ G ]o o d cause' exists when the: (1) treating physician's opinion was not bolstered by the 9

e v id e n c e; (2) evidence supported a contrary finding; or (3) treating physician's opinion was c o n c lu s o ry or inconsistent with the doctor's own medical records." Id. at 1240-41. T h e opinion to which Plaintiff apparently refers in this claim is a statement given by D r. Holt, dated May 2, 2008. In the statement, Dr. Holt opines that Plaintiff's back pain w o u ld be distracting to adequate work performance, and would cause absences on an average o f two times per month. (Tr. 201-203). In his decision, the ALJ explains that he discounts D r. Holt's statement, because it is: (1) "generally inconsistent with [his] earlier opinion that h e expected [Plaintiff] to be able to return to work at the light duty" following surgery; (2) " in c o n sis ten t with the doctor's pre-operative medical findings"; and (3) inconsistent "with h is post operative medical findings showing no significant abnormalities." (Tr. 17).

A c c o rd in g ly, the ALJ did articulate good cause for discounting Dr. Holt's May 2, 2008, s ta te m e n t, and the ALJ's decision is supported by substantial weight. The Court is unclear as to the second part of this claim that the ALJ substituted his o w n medical opinions for that of the treating physician. It is the job of the ALJ to evaluate, w e ig h , and even reject medical opinions that are not supported by evidence. Sryock v. H e c kle r, 764 F.2d 834, 835 (11th Cir.1985). ("[T]he ALJ is free to reject the opinion of any p h ys ic ia n when the evidence supports a contrary conclusion."). Plaintiff does not cite to any s p e c if ic example of this allegation, and to the extent he is speaking of the ALJ's rejection of D r. Holt's May 2, 2008, statement, as stated above, the ALJ rejected that opinion, based not o n his own medical opinion, but on its inconsistency with Dr. Holt's other opinions and 10

trea tm en t notes. The Court finds no error with respect to the ALJ's rejection of Dr. Holt's o p in io n . V I. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is supported by substantial evidence and is, therefore, A F F I R M E D . A separate judgment will issue. D O N E this 23rd day of August, 2010. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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