Hagan v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/30/2014. (PSM)

FILED
2014 Dec-30 PM 01:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
ROBERT JOHN HAGAN, III
Plaintiff,

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Civil Action Number
1:14-cv-00293-AKK

MEMORANDUM OPINION
Plaintiff Robert John Hagan, III (“Hagan”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge
(“ALJ”) applied the correct legal standard and that his decision—which has
become the decision of the Commissioner—is supported by substantial evidence.
Therefore, the court AFFIRMS the decision denying benefits.
I. Procedural History
Hagan filed his application for Title II Disability Insurance Benefits and
Title XVI Supplemental Security Income on April 11, 2011, R. 62, 127-140,
alleging a disability onset date of April 1, 2011, R. 127, due to diabetes,

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neuropathy, anxiety, depression, and heart problems, R. 71. After the SSA denied
his application on September 11, 2011, R. 62, Hagan requested a hearing, R. 64. At
the time of the hearing on May 6, 2013, R. 17, Hagan was 59 years old, R. 127,
with a college education and had past work experience as a pharmacist, yard
worker, and telemarketer, R. 188-89, 226. Hagan worked until his myocardial
infarction on June 11, 2011, over two months after his alleged onset of disability,
and returned to his job as a telemarketer on a part time basis after his
unemployment compensation benefits expired. R. 24, 38, 53-54, 175-180.
The ALJ denied Hagan’s claim on May 30, 2013, R. 14–26, which became
the final decision of the Commissioner when the Appeals Council refused to grant
review on December 18, 2013, R. 1-4. Hagan then filed this action pursuant to §
205(g) of the Act, 42 U.S.C. § 205(g), on February 18, 2014. Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
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(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). A physical or
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mental impairment is “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
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when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the

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This standard is referred to as the Hand standard, named after Hand v. Heckler,
761 F.2d 1545, 1548 (11th Cir. 1985).
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ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as a
matter of law, has accepted that testimony as true. Implicit in this rule is the
requirement that such articulation of reasons by the [ALJ] be supported by
substantial evidence
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially determined
that Hagan had not engaged in substantial gainful activity since his application date
and therefore met Step One. R. 19. Next, the ALJ acknowledged that Hagan’s
severe impairments of a history of post myocardial infarction, status post cardiac
artery bypass grafts times three, ischemic cardiomyopathy class II, diabetes
mellitus, diabetic neuropathy, hypertension, and hyperlipidemia met Step Two. R.
20. The ALJ then proceeded to the next step and found that Hagan did not satisfy
Step Three since he “[did] not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20
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CFR Part 404, Subpart P, Appendix 1.” R. 19 (internal citations omitted). Although
the ALJ answered Step Three in the negative, consistent with the law, see
McDaniel, 800 F.2d at 1030, he proceeded to Step Four, where he determined that
Hagan has the residual functional capacity (“RFC”)
to lift/carry twenty pounds occasionally and ten pounds frequently;
stand/walk six hours in an eight hour day; and sit six hours in an
eight-hour day. He can never climb a ladder, rope, or scaffolding;
never balance on uneven terrain; must avoid concentrate[d] exposure
to extreme cold, extreme heat, humidity, dusts, fumes, odors, gases,
and poor ventilation; and cannot work around unprotected heights.

R. 23. In light of Hagan’s RFC, the ALJ determined that Hagan “is capable of
performing past relevant work as a telemarketer.” R. 26. Because the ALJ
answered Step Four in the negative, she determined that Hagan was not disabled.
Id.
V. Analysis
The court now turns to Hagan’s contention that the ALJ failed to properly
evaluate the credibility of Hagan’s subjective complaints of pain consistent with
the Eleventh Circuit’s pain standard by (1) failing to properly consider Hagan’s
depression, (2) mischaracterizing Hagan’s work history, (3) improperly
considering Hagan’s receipt of unemployment benefits, and (4) mischaracterizing
the record when finding that Hagan had recovered from his myocardial infarction
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within 12 months. For the reasons stated below, the court finds that the ALJ
applied the correct legal standards and her opinion is supported by substantial
evidence.
A.

The ALJ Properly Considered Hagan’s Depression

Hagan first contends that the ALJ disregarded evidence that Hagan’s
treatment records from 2007 to 2013 indicate a history of severe depression and
erred by failing to properly categorize Hagan’s depression as a severe impairment.
A review of the records shows that the ALJ, in fact, properly considered Hagan’s
complaints of depression, and recognized that Dr. Stephen Bowen, M.D., Hagan’s
treating physician, reported in 2007 and 2011 that Hagan had a history of
depression beginning with his incarceration and divorce. R. 305, 308. However,
the ALJ determined that the depression was situational and did not cause “more
than minimal limitation in [Hagan’s] ability to perform basic mental work
activities for twelve continuous months and is therefore non-severe.” R. 20. In
making this determination, the ALJ considered the four broad functional areas
indicated in the disability regulations for evaluating mental disorders (“Paragraph
B Criteria”), see 20 C.F.R. § 404, Subpart P, App’x 1, and found that Hagan had
“mild restrictions in the activities of daily living, mild difficulties in maintaining
social functioning, no difficulties in maintaining concentration, persistence, or
pace, and no episodes of de-compensation, each of extended duration.” R. 20.
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The substantial evidence supports the ALJ’s findings under the Paragraph B
Criteria as reflected by the multiple reasons outlined by the ALJ. First, the ALJ
considered Hagan’s own testimony, noting that Hagan had a driver’s license, and
could cook, wash dishes, vacuum for short periods and change the sheets on his
bed occasionally, R. 21, 42-43, and that Hagan testified that he attended a weekly
Alcoholics Anonymous (“AA”) meeting and was able to return to his work as a
telemarketer on a part-time basis after his unemployment compensation ended. R.
21, 45, 49, 53-54, 57. Second, the ALJ considered a 2011 consultative
psychological evaluation by Robert Kline, Ph.D.,1 in which Dr. Kline concluded
that Hagan did not have a psychiatric disorder, based on his findings that Hagan
had a cooperative attitude and normal thought and conversation, did his own
housework, laundry, and food preparation, attended church twice a month, went to
stores two or three times a week, and talked with family and friends on a daily
basis. R. 21, 317-318. Third, the ALJ considered the opinion of Dr. Robert Estock,
M.D., who reviewed the evidence on behalf of the State Agency on September 21,
2011, and concluded that Hagan had a mild impairment in the activities of daily

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The ALJ noted that, although Dr. Kline is licensed by the state of Alabama as a
counselor and not a psychologist, and therefore is not an acceptable medical source
under the regulations, his opinion can be evaluated as an “other source” in order to
indicate the severity of Hagan’s impairments and how it affects his ability to
function. See 20 C.F.R. 404.1513(d); 20 C.F.R. 416.913(d). In light of this, the
ALJ noted that she used Dr. Kline’s evaluation “as a summation of the history
taken of what the claimant reported to Dr. Kline.” R. 21.
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living and social functioning, no impairment in concentration, persistence, and
pace, and no episodes of decompensation each of extended duration. R.22, 431.
Fourth, the ALJ referenced the opinion of Krystal Truss, a Certified Registered
Nurse Practitioner who noted in February of 2012 that Hagan was negative for
anxiety and depression, in April and May of 2012, that Hagan was oriented to time,
place, person, and situation, had normal insight and exhibited normal judgment,
and, as late as October of 2012, indicated that Hagan was negative for anxiety and
depression. R. 22, 443-464. Finally, the ALJ recognized that Hagan sought
treatment for exacerbation of depression in December 20, 2012, R. 506-515, but
pointed out that the record fails to establish “that this episode would meet the
durational requirement to be classified as a severe impairment.” R. 22; see R. 508
(noting that Hagan is expected to “make progress” toward his treatment
objectives); R. 515 (noting that Hagan presented with an appropriate affect,
euthymic mood, normal characteristics of speech and orientation, an intact
memory, and average judgment and insight).
Based on the court’s review of the record, the court finds that the ALJ
correctly determined that the longitudinal history of treatment shows that Hagan’s
depression has not caused more than minimal functional limitations on Hagan’s
ability to work. As the ALJ pointed out, Hagan continued to work until his
myocardial infarction in June of 2011, is able to interact with people as reflected
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by his ability to attend AA meetings, and the substantial number of entries in the
record which report that Hagan was not suffering from depression or anxiety. R.
22.2 Accordingly, the court finds that the ALJ applied correct legal standards in
determining whether Hagan’s depression constituted a severe impairment, and that
the record contains substantial evidence to support the ALJ’s decision.
B.

The ALJ Properly Characterized Hagan’s Work History

Hagan next argues that the ALJ’s finding that Hagan “alleges disability as of
April 1, 2011 and yet worked until his myocardial infarction on June 11, 2011,” R.
24, is a mischaracterization of Hagan’s work history, see doc. 12 at 6.
Consequently, Hagan combats the alleged “insinuation that [his] work during that
time period indicated he was not suffering from disabling symptoms” by arguing
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Hagan submitted new evidence to the AC consisting of treatment records from
Cheaha Mental Health Center, dated April 8, 2013, as well as records dated July 8,
2013 through October 7, 2013, and June 13, 2013 through December 10, 2013. R.
2. The AC stated that it had considered the new evidence, but found that it did not
provide a basis for changing the ALJ’s decision. Id. Moreover, the AC determined
that the records from July 2013 through December 2013 were information about a
later time and did not affect the decision regarding disability beginning on or
before May 30, 2013. Id. On appeal, Hagan challenges only the ALJ’s decision and
not the AC’s decision denial of review. Doc. 12 at 1-3. Therefore, the court is not
required to examine the newly submitted records from Cheaha Mental Health
Center. See Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998) (“[W]hen the AC
has denied review, we will look only to the evidence actually presented to the ALJ
in determining whether the ALJ’s decision is supported by substantial evidence.”);
see also Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1265-66 (11th Cir. 2007)
(“[w]e understand Falge to hold that when a claimant challenges an [ALJ’s]
decision to deny benefits, but not the decision of the [AC] to deny review of the
[ALJ], we need not consider evidence submitted to the [AC].”)
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that he was “only working part-time, around 22 hours a week, from April 2011
until his heart attack in June of 2011.” Doc. 12 at 7. Hagan’s contention misses the
mark because the ALJ never found that Hagan engaged in substantial employment
during the relevant period. To the contrary, the ALJ indicated that, even though
Hagan earned $5,611.00 between January 1, 2011 and June 11, 2011, which could
be considered substantial gainful activity, that “additional information would be
required to make a definitive determination of substantial gainful activity.” R. 19
(emphasis added). In other words, the ALJ never found that the work history at
issue constituted substantial gainful activity. Hagan’s contention further misses the
mark because, when evaluating a claimant’s subjective testimony regarding pain,
an ALJ may consider a claimant’s work history during the relevant period
regardless of whether the claimant worked part-time or full-time. See 20 C.F.R. §
404.1571 (“Even if the work you have done was not substantial gainful activity, it
may show that you are able to do more work than you actually did.”); Cooper v.
Comm’r of Soc. Sec., 521 Fed. App’x 803, 805-08 (11th Cir. 2013) (claimant’s
part-time work as a hotel chain reservation specialist during the pendency of her
social security application was evidence of ability to work despite the fact that she
worked from home and her employer made allowances for her health); Clapp v.
Astrue, No. 3:06cv334/MCR/EMT, 2008 WL 275880 (N.D. Fla. 2008) (“Although
Plaintiff contends she could not work full time and her current employer made
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accommodations for her, her employment was nevertheless properly considered by
the ALJ, as work performed during any period in which the Plaintiff alleges that
she was under a disability may demonstrate an ability to perform [substantial
gainful activity].”); see also Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004)
(“It was also not unreasonable for the ALJ to note that [the claimant’s] . . . parttime work [was] inconsistent with her claim of disabling pain.”). Consequently, the
ALJ committed no error when he referenced the work activity in question.
Therefore, the court finds that the ALJ properly characterized Hagan’s work
history, made no finding that that Hagan’s work history was more substantial than
what the record reflects, and properly considered the part-time work in weighing
Hagan’s credibility.
C.

The ALJ Properly Considered Hagan’s Receipt of Unemployment
Compensation in Determining Credibility

Despite applying for and receiving unemployment benefits, which in
Alabama require a certification that he is able to work and is looking for work,
Hagan argues that the ALJ improperly considered his receipt of unemployment
compensation in assessing his disability claim. See doc. 12 at 7; R. 24. Basically,
Hagan argues that the ALJ should have disregarded his unemployment benefits
application in which Hagan indicated that he was looking for work because of
Hagan’s representation that he could not have worked due to his limitations. See R.
38-39. The court disagrees because, as noted by Hagan in his brief, doc. 12 at 7,
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and by the ALJ, R. 24, the claimant’s certification that he is able to work, rather
than the actual receipt of unemployment benefits, is what casts doubt on a
subsequent claim of disability. See Ala. Code. § 25-4-77(a)(3) (Alabama
unemployment beneficiaries must be physically and mentally able to perform
work). Consequently, Hagan’s claim that “he did not feel that he would have really
been able to [work] because of all of his limitations,” R. 38-39, actually bolsters
the ALJ’s credibility determination about Hagan’s subjective statements regarding
his inability to work. In that regard, Hagan’s testimony that he was lying when he
stated on his unemployment certification form that he was able to work, R. 38, is
belied by the fact that he was, in fact, able to return to work as a telemarketer when
the unemployment benefits expired, R. 54. Ultimately, because Hagan’s challenge
of the ALJ’s credibility determination is basically a request that this court credit a
statement that is in doubt (i.e. that Hagan did not actually think he could work)
over a statement that is supported by later testimony and evidence of record (i.e.
that Hagan had the ability to work), the court declines to do so because the
regulations plainly allow an ALJ to refer to inconsistencies in the record when
determining the credibility of a claimant’s testimony regarding pain. 20 C.F.R. §
404.1529 (C)(4); see Turner v. Colvin, No. 5:12-cv-2648-LSC, 2013 WL 5574920
at *4 (N.D. Ala. 2013) (“The ALJ’s conclusion that the receipt of unemployment
benefits is a factor undermining Plaintiff’s credibility is consistent with . . . the
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great weight of legal authority.”). In light of this, the ALJ’s determination that
Hagan’s unemployment application detracted from his credibility is supported by
substantial evidence.
D.

The ALJ Properly Found that Hagan Recovered From His Myocardial
Infarction

Finally, Hagan argues that his June 11, 2011 acute myocardial infarction
undermines the ALJ’s determination that “the totality of the evidence reveals that
after a reasonable period of recovery, which was less than twelve months, the
claimant was capable of performing light exertional activities within the scope of
his residual functional capacity,” R. 24; see doc. 12 at 9. The court disagrees
because, as the ALJ explained, substantial evidence from the medical record
suggests that, after a period of recovery, Hagan was capable of returning to light
activities. R. 25. Specifically, as the ALJ first pointed out, although Hagan suffered
a myocardial infarction in June of 2011, by August of 2011, Dr. Saema Mizra,
Hagan’s cardiologist, reported that Hagan had normal breathing and no swelling in
his legs. R. 25, 411-412. The next month, Dr. Mizra noted that Hagan had
unlabored breaths, normal heart sounds, and no edema in his extremities, R. 406408, and in February of 2012, a physical examination by Dr. Mizra determined that
Hagan had normal S1, S2 without gallops, rubs, or murmur, R. 25, 404-405, and
Dr. Mizra reassured Hagan that his chest pains were non-cardiac related, R. 408.
Second, the ALJ cited to April, 2012, records from nurse Krystal Truss, who
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reported that Hagan was negative for chest pain, claudication, and irregular
heartbeat and palpitations, and had a regular rate and rhythm with no gallops, or
rubs and normal dorsalis pedis pulses, R. 448-450, and the ALJ added that Todd
Brown, M.D., a treating cardiologist, and Neiel Covington, a Nurse Practitioner,
both observed in October and December of 2012, respectively, cardiac conditions
consistent with Krystal Truss’s observations, R. 25. 461-466. Finally, the ALJ
pointed out that in June of 2012, Hagan underwent a color Doppler study that
showed that his LVEF was barely below normal, R. 25, 498-499, and that a
February 2013 echocardiogram, as interpreted by Navin Nada, M.D., was
essentially normal, R. 25, 469-470.
Based on the court’s review of the record, there is substantial evidence in
the medical record as a whole that supports the ALJ’s determination that, after a
reasonable period of recovery from a myocardial infarction, Hagan’s physical
condition would allow light exertional activities without further exacerbation of his
underlying impairments. Moreover, the substantial evidence undermines Hagan’s
subjective testimony regarding chest pain. Consequently, the court finds that no
credible basis exists to reverse the ALJ’s decision or to remand the case back to the
Commissioner.

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VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Hagan is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 30th Day of December, 2014.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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