Smith v. Colvin(CONSENT)

Filing 16

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 1/8/2016. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
KEITH ANTHONY SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 3:15cv86-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Keith Anthony Smith (“Plaintiff”) filed an application for disability insurance

benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq, on
March 5, 2012. His application was 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 finding Plaintiff not disabled from the
alleged onset date of February 28, 2012, through the date of the decision. Plaintiff
appealed to the Appeals Council, which issued a decision affirming the ALJ’s decision.
The Appeals Council’s decision consequently became the final decision of the
Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d

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.

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. 10); Def.’s Consent to Jurisdiction (Doc. 11).
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 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 (2011).
(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
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?
2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

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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 Four. 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 One
through Step Four. At Step Five, 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. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical
and other evidence. Id. It may 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 do this, the ALJ can either use the Medical

3

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security
Act are appropriately cited as authority in Title II cases. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412
(5th Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The
definition of disability and the test used to determine whether a person has a disability is the same for
claims seeking disability insurance benefits or supplemental security income.”).

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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
statutorily-required 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).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

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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 fifty years old on the alleged disability onset date, and had a tenth-

grade education although he never achieved his GED.

Tr. 52, 55.

Following the

administrative hearing, and employing the five-step process, the ALJ found at Step One
that Plaintiff “has not engaged in substantial gainful activity since February 28, 2012, the
alleged onset date[.]” Tr. 46. At Step Two, the ALJ found that Plaintiff suffers from the
following severe impairments: “chronic obstructive pulmonary disease; bronchitis with
ongoing tobacco abuse; obesity; sever [sic] bullous emphysema; benign pulmonary
nodule, right lung; and pulmonary arterial hypertension[.]” Tr. 46. At Step Three, the
ALJ found that Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments[.]” Tr. 48.
Next, the ALJ articulated Plaintiff’s RFC as follows:
[Plaintiff] has the [RFC] to perform a light work as defined in 20 CFR
404.1567(b) except that on a function-by-function basis, [Plaintiff] can
frequently lift and carry up to and more than 25 pounds. He does not suffer
any additional manipulative limitations. He can sit at least seven hours of
an eight-hour workday. He can stand at least six hours of an eight-hour
workday. He can walk up to one hour without interruption and a total of
four hours over the course of an eight-hour workday. He can occasionally
climb, balance, stoop, kneel or crouch. He cannot crawl. He should avoid
any exposure to extreme temperatures. He can tolerate frequent exposure
to wetness and humidity and occasional exposure to fumes, odors, dust,
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gases, poorly ventilated areas and other pulmonary irritants. He should
avoid any exposure to operating hazardous machinery and unprotected
heights. He can operate a motor vehicle seven hours of an eight-hour
workday.
Tr. 49. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff is “able to perform past relevant work” as a security guard. Tr. 55. Finally, at
Step Five, and based upon the testimony of the VE, the ALJ determined that
“[c]onsidering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform.” Tr. 55. The ALJ identified several representative occupations,
including “assembler, electrical accessories,” “wire worker,” and “hand packager.” Tr.
56. Accordingly, the ALJ determined that Plaintiff “has not been under a disability . . .
from February 28, 2012, through the date of this decision[.]” Tr. 56.
IV.

PLAINTIFF’S CLAIM
Plaintiff presents one issue for the court to consider in its review of the

Commissioner’s decision: “[w]hether the ALJ’s finding that [Plaintiff] has the residual
functional capacity to perform light work . . . with limited exceptions is supported by
substantial evidence.” Pl.’s Br. (Doc. 13) at 5.
V.

DISCUSSION
Plaintiff argues that the ALJ’s findings that Plaintiff can perform light work with

certain exceptions and that he can perform his past relevant work as a security guard are
not supported by substantial evidence. Pl.’s Br. (Doc. 13) at 6. In support of his
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argument, Plaintiff mostly relies on his own testimony regarding his subjective
complaints of the severity of his ailments. Specifically, Plaintiff contends (1) that the
ALJ’s findings are “simply inconsistent with [Plaintiff]’s severe medical problems”
because Plaintiff’s “respiratory problems and side effects of his medications” cause him
to be “unable to perform any job that requires a good deal of walking or standing or even
sitting which requires pushing and pulling arm and leg controls,” Id. at 6, 7; (2) that if he
is unable to perform sustained work on a regular and continuing basis, he is disabled
according to SSP 96-8, Id. at 7; and (3) that the VE testified that if Plaintiff’s testimony
had been found credible regarding daytime naps and occasionally using oxygen during
the course of the day, there would be no jobs that Plaintiff could perform, Id. Each of
Plaintiff’s arguments, and the evidence supporting the ALJ’s findings relevant thereto,
are discussed below.
A.

Plaintiff’s Respiratory Problems

Plaintiff’s first challenge to the ALJ’s finding is that Plaintiff’s respiratory
problems are too severe for Plaintiff to be capable of the light work RFC as assessed by
the ALJ. Pl.’s Br. (Doc. 13) at 6-7. Plaintiff argues that his “respiratory problems are so
severe that he has to use Albuterol four times a day and oxygen on a regular basis,” and,
as he testified, “he uses oxygen every night and whenever he cannot catch his breath.”
Id. Additionally, Plaintiff “testified that if he walks to the mailbox, he can hardly catch
his breath and must use oxygen for about 30 minutes.” Id. Plaintiff does not point to any
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medical evidence of record in support of his argument. Rather, he relies on his own
subjective statements to evidence his inability to sustain employment.
When considering the credibility of a claimant’s subjective complaints, the ALJ
has wide discretion so long as the he “clearly articulate[s] explicit and adequate reasons”
for the credibility determination. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(internal quotation marks omitted).

This court must uphold the ALJ’s credibility

determination if it is supported by substantial evidence, see Wilson v. Barnhart, 284 F.3d
1219, 1246 (11th Cir. 2002) (“If the ALJ discredits subjective testimony, he must
articulate explicit and adequate reasons for doing so.”), which is “more than a scintilla,
but less than a preponderance.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
Here, the ALJ found Plaintiff’s complaints to be incredible, and the ALJ clearly
articulated explicit and adequate reasons for his credibility determination. The ALJ
explained,
The undersigned has considered all of the evidence of record and the
testimony offered at the hearing and in light of this, finds [Plaintiff] to be
less than credible. For example, he reported to Dr. Smith that he was able
to tend to his personal care needs and the household chores without
assistance. He stated that he does not drive but revealed to Dr. Smith that
his license was suspended due to DUI. [Plaintiff] alleged a disability as of
February 2012 but admitted he lost his job in 2010 when the business
closed. There is no indication he actively sought other employment,
including employment that was indoors to accommodate his respiratory
condition. He continued to smoke excessively and was repeatedly
cautioned by treating physicians regarding the dangers of his habit. He
stated he even got a “cancer scare” which caused him to stop, but
apparently, it did not alarm him enough to stop smoking.
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Tr. 54.
Additionally, the ALJ noted several pieces of medical evidence that contradicted
the severity of Plaintiff’s description of his breathing problems.

Specifically, the ALJ

pointed to the following evidence of record: when Plaintiff “underwent a teleclaim
interview with a social security claims representative, [he] was not perceived [as having]
any difficulty . . . breathing,” Tr. 50; in March 2012, “his wheezing was only minor when
he was examined” and his pulse oxygen level was 97% on room air, Tr. 51-52; in April
2012, Plaintiff “was not wheezing during the examination” and completed a breathing
test that “reflected an improvement after medication was administered,” Tr. 52; in April
2013, Plaintiff’s oxygen “saturation averaged between 93 and 95% on room air,” “his
lungs expanded bilaterally without any signs of wheezes, rales, or rhonchi,” and “[h]is
treatment was conservative in nature,” Tr. 53. The ALJ also noted throughout the
decision that, despite Plaintiff’s serious, subjective complaints of breathing problems,
Plaintiff continued to smoke, as much as up to two packs of cigarettes a day, except for
one brief period where Plaintiff quit smoking temporarily. Tr. 51-53. The ALJ took the
position that had Plaintiff’s breathing problems been as severe as he alleges they were,
Plaintiff would have cut back or given up his smoking habit. Tr. 54.
The court finds that the ALJ has clearly articulated explicit and adequate reasons
for finding Plaintiff’s subjective complaints regarding the severity of his breathing
troubles to be not credible.
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B.

Side Effects of Plaintiff’s Medication

Second, Plaintiff argues that the RFC is not supported by substantial evidence
because the side effects of his medication cause him to be overly drowsy. Pl.’s Br. (Doc.
13) at 7.

Plaintiff contends that he “takes Loretab 7.5 three times a day for pain

management and Xanax for anxiety and both medications make him drowsy,” and “he
takes daytime naps for several hours two or three days of the week and cannot get
through a whole week without taking a nap.” Id.
The ALJ found that Plaintiff’s “allegations cannot be objectively verified with any
reasonable degree of certainty.” Tr. 54. Further, the ALJ explained that Plaintiff’s
“activities of daily living further undermine his credibility.” Tr. 54.
[T]here is no evidence in the record that medication side effects can be
expected to limit [Plaintiff]’s effectiveness in the performance of work
duties or everyday tasks or that those side effects can be expected to be
severe and to limit [Plaintiff]’s effectiveness due to distraction, inattention
and drowsiness.
There is no medical evidence of record to support [Plaintiff]’s contention
that he has to recline or nap during the day. Further, there is no evidence
that [Plaintiff] has been on any medications on a regular and continual basis
that would cause such to occur.
Tr. 54. The ALJ also noted that the evidence indicates that Plaintiff has no limitation in
concentration, persistence, or pace; has no limitations in his ability to understand,
remember and carry out instructions, and is “able to drive an automobile as well as take
care of his personal needs and enjoyed watching television, all of which are tasks and
activities that require a certain level of sustained concentration and attention.” Tr. 48, 52.
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The court finds that the ALJ has clearly articulated explicit and adequate reasons
for finding Plaintiff’s subjective complaints regarding the side effects of his medication
to be not credible.
C.

Testimony of the VE

Third, Plaintiff contends the RFC is not supported by substantial evidence because
“[t]he [VE] testified that if the totality of [Plaintiff]’s impairments, limitations, pain and
medications precluded [Plaintiff] from having the concentration, persistence and pace
necessary to perform unskilled work activities and further limited his ability to attend to
all customary work pressures, including arriving on time [and] returning from breaks on
time, there would be no jobs in significant numbers in the local or national economies
that [Plaintiff] could perform.” Pl.’s Br. (Doc. 13) at 7.
The ALJ did not find that the totality of Plaintiff’s impairments, limitations, pain
and medications precluded Plaintiff from having the concentration, persistence and pace
necessary to perform unskilled work activities and further limited his ability to attend to
all customary work pressures, including arriving on time and returning from breaks on
time.

As discussed above, that decision was supported by substantial evidence.

Accordingly, it is of no import that the VE opined that had the ALJ made different
findings, there would be no jobs in significant numbers in the local or national economies
that Plaintiff could perform. Plaintiff has shown no error.

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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 AFFIRMED.
separate judgment will issue.
Done this 8th day of January, 2016.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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A