Huntley v. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER directing that this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion; further ORDERED that the plaintiff shall have sixty (60) days after he receives notice of an y amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b); a separate order will issue. Signed by Honorable Judge Charles S. Coody on 1/17/12. (Furnished via USPS to SSA Hearings/Appeals and SSA Chief Judge)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
HERCULES HUNTLEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 3:10cv810-CSC

MEMORANDUM OPINION
I. Introduction
On June 28, 2007, the plaintiff, Hercules Huntley (“Huntley”), applied 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 also
denied the claim. The Appeals Council rejected a subsequent request for review on July 27,
2010. The ALJ’s decision consequently became the final decision of the Commissioner of
Social Security (“Commissioner”). See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir.
1986).1 The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and
1383(c)(3). Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final

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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 Security.

judgment by the United States Magistrate Judge. 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 reversed and remanded for further proceedings.
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 determination2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’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 claimant unable to perform his or former occupation?
(5) Is the claimant 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).
The standard of review of the Commissioner’s decision is a limited one. This court

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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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must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). “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. Huntley was born on November 1, 1953. He was nearing 55 years
old at the time of the hearing in this case and was 55 at the time of the ALJ’s decision in this
case. (R. 33, 18, 29). He served in the Navy from 1971 to 1972 and received an honorable
medical discharge. (R. 173, 280). Huntley is divorced, homeless, and lives with various
family members at various times. (R. 34, 115, 279, 283, 299, 307, 327, 353, 508). Huntley
completed school through one year of college (R. 34). His prior work experience includes
employment as a house painter and working for surveyors. (R. 37). He ambulates with a cane

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due to pain in, and past surgery on, his right ankle. (R. 41).
Huntley contends that he is unable to work due to pain in his right ankle, pain in his
right shoulder due to degenerative osteoarthritis and spondylosis of the cervical spine,
gastroesophogeal reflux disease, depression, hepatitis, and the side effects of his prescription
medications. (R. 99, 394, 395). Following the hearing, the ALJ concluded that Huntley had
the following severe impairments: “gastroesophogeal reflux disease; history of Hepatitis C;
status post open reduction internal fixation of the right ankle with arthritis; personality
disorder, not otherwise specified; and history of cocaine, alcohol, and marijuana abuse (20
CFR 416.921 et seq.).
hypertension.”

Additionally, the claimant has a non severe impairment of

(R. 20). The ALJ further concluded that Huntley’s impairments or

combination of impairments did not meet or medically equal one of the listed impairments
in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (R. 12). The ALJ determined that Huntley had the
residual functional capacity
to perform medium work as defined in 20 CFR 416.967(c) with the following
limitations considerations: he can perform lifting/carrying and pushing/pulling
of 25 pounds frequently and 50 pounds occasionally; standing/walking six
hours and sitting six hours in an eight-hour day; never climbing
ladders/ropes/scaffolds and frequently performing all other postural functions;
has no manipulative, visual, or communicative limitations; and he should avoid
concentrated exposure to extremes of temperature and hazardous machinery
and unprotected heights, consistent with the assessment by the DDS specialist
on September 26, 2007. Additionally, the claimant has moderate limitations
in the ability to understand and remember detailed instructions, to carry out
detailed instructions, to maintain attention and concentration for extended
periods, to perform activities within a schedule, maintaining regular attendance
and be punctual within customary tolerances; to interact appropriately with the
general public; to get along with coworkers or peers without distracting them
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or exhibiting behavioral extremes; and to respond appropriately to changes in
the work setting; and no significant limitations in other areas of functioning.
The ALJ concluded that Huntley was unable to return to his past relevant work. (R.
18). The ALJ concluded that Huntely had the residual functional capacity to perform other
work in the national economy, and thus, he was not disabled. (R.28).
B. Plaintiff’s Claims. As stated by the plaintiff, the primary issues are as follows:
1.

Whether the ALJ erred by relying on a state agency opinion (Pl’s Br. at
5-7);

2.

Whether the ALJ erred by failing to consider Huntley’s cervical spondylosis
and arthritis and degenerative joint disease in his right shoulder (Pl’s Br. at 7);

3.

Whether the ALJ failed to develop the record with regard to impairments of
Huntley’s right shoulder and cervical spine (Pl’s Br. at 7-10);

4.

Whether ALJ the improperly relied on a residual functional capacity
determination that did not take into account impairments of Huntley’s right
shoulder and cervical spine (Pl’s Br. at 7-10);

5.

Whether the ALJ erred by mechanically applying the age categories listed in
20 CFR § 416.963.

(Pl’s Br. at ).
IV. Discussion
A.

Whether ALJ erred by failing to find that Huntley had severe medical
impairments relating to his cervical spondylosis and right shoulder posttraumatic degenerative osteoarthritis.
Huntley contends that the ALJ erred by failing to find that he had severe medical

impairments relating to his cervical spondylosis and right shoulder post-traumatic
degenerative arthritis.

“[A] ‘severe impairment’ [is] defined as ‘any impairment or
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combination of impairments which significantly limits [the claimant’s] physical or mental
ability to do basic work activities.’” Barnhart v. Thomas, 540 U.S. 20, 24 (2003) (quoting
20 C.F.R. § 404.1520(c)). Basic work activities “include ... [p]hysical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” 20 CFR
§ 404.1521. An impairment can be considered as “not severe only if the abnormality is so
slight and its effect so minimal that it would clearly not be expected to interfere with the
individual's ability to work, irrespective of age, education or work experience.” McDaniel
v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); see also Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984)). To satisfy the “mild” burden to demonstrate a severe impairment at
step two, the claimant “need show only that [his] impairment is not so slight and its effect
is not so minimal.” McDaniel, 800 F.2d at 1031. The step two severity analysis is a threshold
inquiry that allows only “claims based on the most trivial impairment to be rejected.”
McDaniel, 800 F.2d at 1031.
The record includes medical evidence, including objective medical diagnostics,
confirming that Huntley suffers from spondylosis and post-traumatic degenerative arthritis
of the right shoulder, and that these conditions cause pain in his right shoulder. On March
10, 2008, Tuskegee VMAC nurses noted subjective complaints of shoulder and neck pain,
with pain rated as a 7 on a scale of one to ten. (R. 405-06, 469, 479). On the same day,
Huntley was seen by a primary care physician for neck and right shoulder pain, and the
physician ordered X-rays of Huntley’s neck and shoulder. (R. 408-09, 416, 477). On March

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11, 2008, cervical spine and shoulder X-rays were performed for complaints of neck and
right shoulder pain with a history of falls. (R. 394-95). The X-rays revealed spondylosis of
the cervical spine at C4-6 manifested by bone spurs, degenerative arthritis in the right
shoulder, and a small calcification in a joint of the right shoulder “which most likely
represents a small avulsion fracture secondary to previous trauma.” Id. Huntley and his exwife each reported that, several months prior to May 10, 2008, he had fallen in the shower
and cut his right shoulder, requiring stitches. (R. 450, 470).
Huntley returned to Tuskegee VMAC on April 7, 2008, with complaints of right
shoulder pain, ankle pain, and headaches. (R. 443-44; 450-51). He reported the pain as
being a “9” at most and “6” at the least (on a scale of one to ten) over the last month. (R.
446). At that time, he was taking Tamadol3 and Lortab 4 for the pain, but the medications
were not helping (R. 443-44, 447). He was assessed with arthralgia and degenerative joint
disease (R. 444).
On May 21, 2008, Huntley reported to Tuskeegee VMAC for psychiatric treatment;

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According to the U.S. National Library of Medicine, “Tramadol is used to relieve moderate to
moderately severe pain. Tramadol extended-release tablets are only used by people who are expected to need
medication to relieve pain around-the-clock for a long time. Tramadol is in a class of medications called
opiate agonists. It works by changing the way the body senses pain.”
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000960/.
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According to the U.S. National Library of Medicine, Lortab is a brand name for a prescription that
includes hydrocodone. http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000960/. “Hydrocodone is
available only in combination with other ingredients, and different combination products are prescribed for
different uses. Some hydrocodone products are used to relieve moderate to severe pain. Other hydrocodone
products are used to relieve cough. Hydrocodone is in a class of medications called opiate (narcotic)
analgesics and in a class of medications called antitussives. Hydrocodone relieves pain by changing the way
the brain and nervous system respond to pain.” Id.

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at that time, he was also suffering from neck and shoulder pain. (R. 510-11, 516-17, 520-21).
Further, at the administrative hearing, Dr. Calvin Johns, a medical expert called by the
ALJ, testified that Huntley “has post ... traumatic degenerative and arthritis [sic] of the right
shoulder. Spondylosis shoulder to the spine. In that area he’s got very little movement of
the cervical spine.” (R. 44).
In sum, the record does not contain substantial evidence to support a finding that
Huntley’s spondylosis or right shoulder post-traumatic degenerative arthritis, alone or in
combinations with other impairments, are such slight abnormalities “that [they] would clearly
not be expected to interfere with [Huntley’s] ability to work, irrespective of age, education
or work experience.” McDaniel, 800 F.2d at 1031. Accordingly, the ALJ erred in failing to
identify Huntley’s cervical spondylosis or right shoulder post-traumatic degenerative arthritis
as severe impairments.
B.

Whether the ALJ committed reversible error by failing to develop the record
and by failing to account for the functional limitations of Huntley’s spondylosis
and posttraumatic right shoulder degenerative arthritis.
“The finding of any severe impairment, whether or not it qualifies as a disability and

whether or not it results from a single severe impairment or a combination of impairments
that together qualify as severe, is enough to satisfy the requirement at step two.” Jamison
v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987); see also Heatly v. Comm’r of Social Sec., 382
Fed. Appx. 823 (11th Cir. 2010) (panel decision). Here, consistent with the regulations and
applicable law, the ALJ credited Huntley with severe impairments at step two and proceeded

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forward with the sequential evaluation.

Thus, if Huntley’s neck and right shoulder

impairments should have been included as a severe impairment at step two, the omission
constitutes reversible error only if the ALJ failed in subsequent steps of his analysis to fully
account for functional limitations arising from that impairment. See Heatly, 382 Fed.Appx.
823; see also Burgin v. Comm’r of Social Sec., 420 Fed. Appx. 901, 903 (11th Cir. 2011)
(panel decision) (“Even assuming the ALJ erred when he concluded [the claimant’s] edema,
sleep apnea, and obesity were not severe impairments, that error was harmless because the
ALJ considered all of his impairments in combination at later steps in the evaluation
process.”); Delia v. Comm’r of Social Sec., 433 Fed. Appx. 885, 887 (11th Cir. 2011) (panel
decision) (“Because the ALJ gave full consideration to the consequences of [the claimant’s]
mental impairments on his ability to work at later stages of the analysis, the error [in failing
to identify the claimant’s mental impairments as a severe disability] at step two was harmless
and is not cause for reversal.”).
Here, the ALJ failed to fully account for the functional limitations of Huntley’s
condition in steps four and five of the analysis by (1) discrediting Huntley’s subjective
complaints of pain without articulating explicit and adequate reasons for doing so; (2) failing
to consider Huntley’s neck- and shoulder- related impairments in determining Huntley’s
residual functional capacity; and (3) posing a hypothetical to the vocational expert that did
not comprise all of Huntley’s impairments, including cervical spondylosis and right shoulder
post-traumatic degenerative arthritis.

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To establish a disability based on complaints of pain and other subjective conditions,
“the claimant must satisfy two parts of a three-part test showing: (1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence confirming the
severity of the alleged pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d
1219, 1225 (11th Cir. 2002); see also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991).
As discussed in Part IV A of this opinion, the record contains evidence, including objective
medical evidence, that Huntley has underlying medical conditions of cervical spondylosis and
posttraumatic degenerative arthritis of the right shoulder, and that these conditions cause pain
in Huntley’s right shoulder. (R. 44, 394-95, 405-06, 408-09, 416, 443-44, 446-47, 450-51,
450, 469, 470, 477, 479, 510-11, 516-17, 520-21). Further, at the administrative hearing,
Huntley testified that the pain in his right shoulder and neck interfered with his ability to
sleep, limited his ability to reach above his head, and caused him to be unable to lift and carry
objects weighing more than 15 or 20 pounds. (R. 35, 37-38, 40-42).
The ALJ did not state any reason for discrediting Huntley’s subjective testimony that
his neck and shoulder pain limited his ability to reach above his head or to lift or carry more
than 15 or 20 pounds.5 However, the ALJ must have discredited Huntley’s subjective
testimony because he concluded that Huntley has the residual functional capacity to lift,
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The court notes that, in discrediting Huntley’s complaints of ankle pain, the ALJ mentioned
Huntley’s failure to complete vocational rehabilitation. Huntley’s failure to complete vocational
rehabilitation occurred prior to the onset date of Huntley’s spondylosis and posttraumatic right shoulder
degenerative arthritis and therefore does not discredit Huntley’s testimony as to the limiting effects of pain
resulting from those conditions.

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carry, push, and pull 25 pounds frequently and 50 pounds occasionally. (R. 21). “If the ALJ
discredits subjective testimony, he must articulate explicit and adequate reasons for doing
so.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Holt v. Sullivan,
921 F.2d 1221, 1223 (11th Cir.1991).

Therefore, the ALJ erred as a matter of law by

discrediting Huntley’s testimony regarding the limiting effects of his shoulder pain without
articulating explicit and adequate reasons for doing so, in violation of Wilson, supra.
The ALJ then compounded his error by adopting the functional limitations listed in
a functional capacity assessment that was completed by a Department of Disability Services
specialist on September 26, 2007, prior to the 2008 onset of Huntley’s right shoulder pain.
(R. 21-22, 45, 260, 266). The limitations listed in the September 2007 functional capacity
assessment included the ability to lift and carry no more than 50 pounds occasionally and 25
pounds frequently. (R. 260). Incredibly, the ALJ clung blindly to the findings in the DDS
specialist’s September 2007 functional capacity assessment despite all of the following: (1)
the medical records demonstrate that Huntley first complained to the Tuskegee VMAC of
neck and shoulder pain in March 2008, following a shoulder injury due to a fall only a few
months prior (R. 405-406, 450, 469, 470, 479); (2) objective medical evidence from March
2008, including shoulder and cervical spine X-Rays, revealed spondylosis of the cervical
spine at C4-6 manifested by bone spurs, degenerative arthritis in the right shoulder, and
indications of a prior right shoulder fracture (R. 394-95, 408-409, 416, 477); (3) medical
records demonstrate that, after March 2008, Huntley consistently continued to present with

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neck and shoulder pain (R. 443-44; 446-47; 450-51; 510-11; 516-17; 520-21); at the
administrative hearing, Dr. Calvin Johns, a medical expert called by the ALJ, testified that
Huntley “has post traumatic degenerative and arthritis [sic] of the right shoulder.
Spondylosis shoulder to the spine. In that area he’s got very little movement of the cervical
spine.” (R. 44); and (4) at the hearing, Huntley himself complained that neck and shoulder
pain limited his ability to reach above his head or to lift or carry more than 15 or 20 pounds,
testimony that the ALJ failed to state any explicit or adequate reason for disbelieving (R. 35,
37-38, 40-42).
The ALJ’s residual functional capacity determination is incorrect as a matter of law
because it is based on a functional capacity assessment that was completed prior to the onset
of Huntley’s neck and shoulder pain; thus, the residual functional capacity assessment could
not possibly have taken into account any impairment due to Huntley’s cervical spondylosis
and degenerative shoulder arthritis. See 20 C.F.R. 416.945(a)(2) (“We will consider all of
your medically determinable impairments of which we are aware ... when we assess your
residual functional capacity.”). Further, the ALJ’s residual functional capacity determination
is not supported by substantial evidence because it inconsistent with the uncontradicted
medical evidence and it conflicts with Huntley’s subjective statements regarding the
limitations of his right shoulder pain on his ability to lift more than 20 pounds – statements
which, for present purposes, must be accepted as true. Wilson, 284 F.3d at 1225 (“Failure
to articulate the reasons for discrediting subjective testimony requires, as a matter of law, that

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the testimony be accepted as true.”).
Further, “[i]n order for a vocational expert's testimony to constitute substantial
evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's
impairments.” Wilson, 284 F.3d at 1227. However, in questioning the vocational expert
(“VE”), the ALJ compounded his error still further by posing a hypothetical based on the
functional limitations of the September 2007 functional capacity assessment, including the
ability to lift and carry no more than 50 pounds occasionally and 25 pounds frequently. (R.
28, 45, 260, 266). As noted above, the September 2007 functional capacity assessment could
not possibly have taken into account all of Huntley’s limitations because it was completed
prior to the March 2008 onset of Huntley’s neck and shoulder impairments. The VE testified
that a person with the limitations indicated in the September 2007 functional capacity
assessment could perform several jobs that existed in significant numbers in the economy
such as cleaner/housekeeper, fast food worker, and hand packager. (R. 28, 45-46). The ALJ
then asked: “And based on the testimony given by the Claimant and other information in the
file that pertains to him could you give me your opinion of whether that person, as he
described himself, would be capable of any work?” (R. 46). The VE replied: “He would
not.” Id. Incredibly, neither the ALJ nor Huntley’s attorney asked the VE to explain further.
Id. ; see Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) (citing Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir.1981) (“[B]ecause a hearing before an ALJ is not an adversary

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proceeding, the ALJ has a basic obligation to develop a full and fair record.”).
Substantial evidence does not support the ALJ’s determination that Huntley could
perform jobs that existed in significant numbers in the national economy because the ALJ
relied on the VE’s response to a hypothetical that did not include all of Huntley’s
impairments, Wilson, 284 F.3d at 1227, and because the VE’s testimony was based on a
residual functional capacity determination that conflicts with the medical evidence and with
Huntley’s subjective statements regarding the limitations of his right shoulder pain on his
ability to lift more than 20 pounds – statements which, for present purposes, must be
accepted as true. Wilson, 284 F.3d at 1225. (R. 28).
For these reasons, the court finds that the ALJ committed reversible error at steps four
and five of the sequential analysis by failing to account for the functional limitations of
Huntley’s cervical spondylosis and posttraumatic right shoulder degenerative arthritis. The
case is therefore due to be remanded. Because the court determines that the case is due to
be remanded, the court pretermits consideration of Huntley's remaining arguments.
V. Conclusion
Accordingly, this case will be reversed and remanded to the Commissioner for
further proceedings consistent with this opinion. It is further
ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273,
1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice

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of any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C. § 406(b).
See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11th Cir. 2008).
A separate order will issue.
Done this 17th day of January, 2012.

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

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