Ferraro v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/20/2016. (AVC)

FILED
2016 Jan-20 PM 04:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
STEPHEN FERRARO,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
Defendant.

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) Case No.: 1:14-CV-2413-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Stephen Ferraro (“Ferraro”) brings this action under 42 U.S.C. § 405(g),

Section 205(g) of the Social Security Act. He seeks review of a final adverse decision
of the Commissioner of the Social Security Administration (“Commissioner”), who
denied Ferraro’s application for a determination of disability and disability insurance
benefits (“DIB”). Ferraro timely pursued and exhausted his administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.
§ 405(g). The court has carefully considered the record and, for the reasons that
follow, finds that the decision of the Commissioner is due to be REVERSED and
REMANDED.

II.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff was 47 years old with a limited education when the ALJ issued his

decision. (Tr. 17, 196, 222). Plaintiff reported he was disabled due to osteoarthritis
in his feet, legs, and hands; tendonitis; and swelling. (Tr. 221). Plaintiff had past
work as an account manager. (Tr. 222).
The ALJ found that Plaintiff experienced the following severe impairments:
“osteoarthritis, generalized anxiety disorder, major depressive disorder, and
attention deficit hyperactivity disorder. (ADHD)” (Tr. 22). The ALJ determined
Plaintiff’s severe impairments were not of listing level severity. (Tr. 23). The ALJ
found Plaintiff retained the residual functional capacity (RFC) to perform light
work with some limitations.
The ALJ determined Plaintiff was unable to perform his past relevant work.
(Tr. 29). The ALJ, relying in part on the testimony of a vocational expert (VE),
concluded there were jobs existing in significant numbers in the national economy
that Plaintiff could perform, such as blending tank tender helper, electronics
worker, and inspector. (Tr. 29-30). Accordingly, the ALJ found Plaintiff not
disabled from May 22, 2012, his alleged onset date, through the date of the
decision. (Tr. 30).
The Appeals Council denied review of the ALJ’s decision on October 17, 2014,
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making the ALJ’s decision the final agency decision on the matter. (Tr. 1). Having
exhausted all administrative remedies, Ferraro moved for judicial review in this court
pursuant to 42 U.S.C. § 405(g) on December 16, 2014. (Doc. 1). The Commissioner
answered on April 16, 2015. (Doc. 7). Ferraro filed a brief in support of his position
on March 19, 2015, doc. 10, and the Commissioner submitted her brief on April 20,
2015. (Doc. 11).
III.

STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.

The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
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standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
IV.

STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a period

of disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder. The Regulations define "disabled" as "the
inability to do 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 (12)
months." 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits,
a claimant must provide evidence about a "physical or mental impairment" which
"must result from anatomical, physiological, or psychological abnormalities which can
be shown by medically acceptable clinical and laboratory diagnostic techniques." 20
C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
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sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant's impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561,
562-63 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.
1986). The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
V.

ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
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1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2016.

2.

The claimant has not engaged in substantial gainful activity since May
22, 2012 (20 C.F.R. 404.1571 et seq.).

3.

The claimant has the following severe impairments: osteoarthritis,
generalized anxiety disorder, major depressive disorder, and attention
deficit hyperactivity disorder (ADHD) (20 C.F.R. 404.1520(c)).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, [the ALJ] finds that the
claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant cannot climb
ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel,
crouch, crawl, and climb ramps and stairs. He must avoid all exposure
to extreme heat, extreme cold, wetness, and humidity. He must avoid
operational control of moving machinery, unprotected heights, and the
use of hazardous machinery. Additionally, the claimant can perform
simple, routine, and repetitive tasks in a low stress environment, which
is defined as requiring occasional decisionmaking and having occasional
changes in the work setting. He cannot interact with the publish, but he
can occasional [sic] interact with coworkers

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1563)

7.

The claimant was born on October 7, 1966, and was 45 years old, which
is defined as a younger individual age 18-49, on the alleged disability
onset date (20 CFR 404.1563).

8.

The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564).
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9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).

10.

Considering 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 (20 C.F.R. 404.1569 and
404.1569(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from May 22, 2012 through the date of this decision (20
CFR 404.1520(g)).

(Tr. 22–30).
VI.

ANALYSIS
The court may reverse a finding of the Commissioner only if it is not supported

by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).1 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Ferraro makes two arguments in support of reversal. First, that the “ALJ failed

1

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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to properly evaluate the credibility of the Plaintiff’s complaints of pain consistent with
the Eleventh Circuit Pain Standard.” Second, he argues that “the ALJ failed to
properly articulate good cause for according less weight to the opinion of the
Plaintiff’s treating physician.” Both arguments are persuasive, and the ALJ’s decision
will be REVERSED and REMANDED.
A. The ALJ failed to adequately discredit Ferraro’s Subjective Pain Testimony
Pain itself can be disabling. Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995). To establish disability on the basis of testimony of subjective pain, the claimant
must show “1) evidence of an underlying medical condition, and 2) [...] 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). The
ALJ’s failure to articulate explicit and adequate reasons to discount subjective
testimony of pain requires that the testimony be accepted as true. Id. It is error to
consider only objective medical evidence to evaluate a claimant’s testimony about
pain. Johns v. Bowen, 821 F.2d 551, 557 (11th Cir. 1987).
Ferraro gave testimony in the administrative proceedings to the effect that he
is unable to do much because of his pain, which is constant. (Tr. 53–54). The ALJ
concluded that Claimant satisfied both steps of the pain inquiry, but found Ferraro’s
testimony not credible. As support for this conclusion, the ALJ made nearly exclusive
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reference to objective medical evidence, such as findings by Dr. Pava and Dr. Jani that
Ferraro retained a full range of motion in all joints, extremities, and spine, and the
ability to squat without difficulty. (Tr. at 26). Where, as here, “the claimant’s
medically determinable impairments could reasonably have been expected to produce
the alleged symptoms,” tr. at 26, objective medical evidence alone is insufficient as
a matter of law to undermine subjective testimony of pain. Johns, 821 F.2d at 557. As
to subjective evidence undermining the claimant’s testimony, the ALJ pointed to four
visits to doctors, in which Ferraro reported 4/10 pain severity on February 15, 2013,
he indicated that his medications were adequately effective in controlling his pain on
May 28, 2013, that his pain had increased in an August 23, 2013 visit, and on
November 19, 2013, he admitted that his pain medications were working. Id.
There are no fewer than thirty doctor visits in the record, yet the ALJ
highlighted four as substantial enough to discredit Ferraro’s testimony—and one of
them is mildly consistent with the testimony. He complained of pain on many other
occasions. (See, e.g., Tr. at 343, 347, 360, 401, 415). This is not a counting exercise,
but the ALJ is required to explain why he determined that certain subjective
statements were more believable than others. He did not, so Ferraro’s testimony must
be presumed true, which means the ALJ’s findings are not supported by substantial
evidence. On this issue, the case must be REVERSED.
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B. The ALJ failed to consider Dr. Victoria’s Opinion
The Commissioner considers “all evidence in [the] case record when” making
“a determination or decision whether” a claimant is “disabled.” 20 § C.F.R.
404.1520(a)(1). But “the courts cannot exercise their duty of review unless they are
advised of the considerations underlying the action under review,” Sec. & Exch.
Comm'n v. Chenery Corp., 318 U.S. 80, 94 (1943), and “the grounds upon which the
administrative agency acted” must be “clearly disclosed and adequately sustained.”
Id. The failure to adequately explain the grounds for the Commissioner’s reasoning
is therefore a failure to base her decision upon substantial evidence. “The ALJ must
state with particularity the weight given different medical opinions and the reasons
therefor, and the failure to do so is reversible error.” Sharfarz v. Bowen, 825 F.2d 278,
279 (11th Cir. 1987). A fortiori, the failure to even discuss a medical opinion is
reversible error.
Here, Dr. Dolores Victoria2 filled out a form labeled “Non-Exertional Factors
Affecting Your Patient,” in which she indicated that Ferraro has pain as a result of his
medical condition, which is chronic and continuous. (Tr. at 595). Dr. Victoria
characterized the pain as “moderately severe,” which was objectively demonstrated
2

The Commissioner argues that this form was completed by “an unknown physician.”
(Doc. 11 at 13). While the signature is difficult to make out, the other document in Exhibit 16F
contains a prescription from the same date from Dr. Dolores Victoria. (R. 596). Upon
examination, the signature appears to say Dolores Victoria.
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by joint and spinal deformity. Id. Dr. Victoria concluded that Ferraro would likely
miss more than two days per month of work. Id. This opinion was not even mentioned
in the ALJ’s decision, and the failure to do so is reversible error. See Sharfarz, 825
F.2d at 279.
The Commissioner offers a few reasons the court should not reverse and
remand, although none of them are persuasive, because of a simple fact: it is the ALJ’s
reasoning, not the Commissioner’s “post-hoc rationalizations,” Motor Vehicle Mfrs.
Ass’n of U.S. v. State Farm Mut. Ins. Co., 463 U.S. 29, 50 (1983), on which the
disability determination must rise or fall. One objection deserves an individualized
response, however. The Commissioner maintains that Dr. Victoria was not a treating
physician because the record reflected, at most, that Ferraro visited Dr. Victoria once.
The record is unclear on this point, and a single visit is all the record definitively
reflects, but the record also refers to Dr. Victoria as the treating physician. If the
ALJ’s duty to develop the record means anything, it requires the ALJ to determine a
physician’s relationship to the claimant.
Finally, the Commissioner’s harmless error argument is mooted by the court’s
conclusion that the ALJ’s discounting of Ferraro’s subjective pain testimony is error.
The harmless-error doctrine proscribes “reversing for error regardless of its effect on
the judgment.” Shineski v. Sanders, 556 U.S. 396, 409 (2009) (citation and internal
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quotation marks omitted). Where, as here, the court has already determined that it will
reverse the judgment, there is no reason to be concerned with the harmlessness of the
error.
VII. CONCLUSION
For the foregoing reasons, this case is REVERSED and REMANDED to the
Social Security Administration. A separate order will issue.
DONE and ORDERED this 20th day of January, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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