Foster v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION - For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the parties, the decision of the Commissioner of Social Security denying Fosters claim for a period of disability and DIB is AFFIRMED, and this action is DISMISSED WITH PREJUDICE. A separate order will be entered. Signed by Magistrate Judge John H England, III on 3/27/2017. (KEK)

FILED
2017 Mar-27 PM 12:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
LARRY FOSTER,
Plaintiff,
v.
CAROLYN W. COLVIN, acting
Commissioner of Social Security,
Defendant.

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Case No. 1:15-cv-02331-JHE

MEMORANDUM OPINION1
Plaintiff Larry Foster (“Foster”) seeks review, pursuant to 42 U.S.C. § 405(g), § 205(g) of
the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying his application for a period of disability, disability
insurance benefits (“DIB”), and supplemental security income (“SSI”).2 (Doc. 1). Foster timely
pursued and exhausted his administrative remedies. This case is therefore ripe for review under
42 U.S.C. § 405(g). The undersigned has carefully considered the record and, for the reasons stated
below, the Commissioner’s decision is AFFIRMED.
Factual and Procedural History
Foster filed applications for a period of disability, DIB, and SSI in November 2012,
alleging he became unable to work beginning November 29, 2010. (Tr. 140-148). The Agency

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 13).
2
The judicial review provisions for DIB claims, 42 U.S.C. § 405(g), apply to claims for
SSI. See 42 U.S.C. § 1383(c)(3).
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initially denied Foster’s application and Foster requested a hearing, where he appeared on June 26,
2014. (Tr. 25-72). After the hearing, the Administrative Law Judge (“ALJ”) denied Foster’s claim
on August 6, 2014. (Tr. 10-21). Foster was a fifty-seven-year-old male on his hearing date. (Tr.
30). Foster has an eleventh-grade education. (Tr. 35). Foster’s past relevant work was as a forklift
operator, stocker, material handler, card changing textile worker, poultry hanger, saw operator
inspector, and maintenance mechanic. (Tr. 16, 36-40, 56-57). Foster sought review by the Appeals
Council, but it denied his request on October 27, 2015. (Tr. 1-4). On that date, the ALJ’s decision
became the final decision of the Commissioner. On December 28, 2015, Foster initiated this
action. (See doc. 1).
Standard of Review3
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.

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In general, the legal standards applied are the same whether a claimant seeks DIB or
Supplemental Security Income (“SSI”). However, separate, parallel statutes and regulations exist
for DIB and SSI claims. Therefore, citations in this opinion should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations for statutes or
regulations found in quoted court decisions.
2

This Court must uphold factual findings 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 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 the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
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.4 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 entitlement to
disability benefits, a claimant must provide evidence of 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 sequence:
(1)
(2)
(3)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499.
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(4)
(5)

whether the claimant can perform his or her past work; and
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 the 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). “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 such work exists in the national economy in significant numbers. Id.
Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Foster last met the insured status requirements of the Social
Security Act on December 31, 2013 (his date last insured or “DLI”) and Foster had not engaged
in substantial gainful activity after his alleged onset date of November 29, 2010. (Tr. 12). At Step
Two, the ALJ found Foster has the following severe impairments: chronic hepatitis C without
mention of coma (grade 2); evolving cirrhosis of live (stage 3-4); degenerative joint disease
without stenosis and C6-7 with right sided disc protrusion with moderate stenosis, and non-specific
arthralgia of upper extremities and shoulders. (Id.). The ALJ also considered Foster’s medically
determinable physical impairment of hepatitis B and mental impairment of alcohol abuse and
found them to be non-severe. (Tr. 13-14). At Step Three, the ALJ found Foster did not have an

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impairment or combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 25).
Before proceeding to Step Four, the ALJ determined Foster’s residual functioning capacity
(“RFC”), which is the most a claimant can do despite his impairments.

See 20 C.F.R. §

404.1545(a)(1). The ALJ determined that, through his DLI, Foster had the RFC
to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except
limitations: he can frequently use foot and hand controls. He can frequently climb
ramps and stairs and occasionally climb ladders and scaffolds. He can frequently
balance, stoop, kneel, crouch, and crawl. He should never be exposed to
unprotected heights or operate a commercial motor vehicle. He can frequently be
exposed to moving mechanical parts. He can tolerate frequent exposure to extreme
cold and vibration. He is limited to routine and repetitive tasks and simple work
related decisions. In addition to normal workday breaks, the claimant would be off
task for 5% of a normal 8-hour workday (non-consecutive minutes).
(Tr. 15).
At Step Four, the ALJ determined that, through the date last insured, Foster could perform
his past relevant work as a poultry hanger, as the work-related activities required by this work were
not precluded by the limitations identified in the ALJ’s assessment of Foster’s RFC. (Tr. 19). At
Step Five, the ALJ made the alternative determination, based on Foster’s age, education, work
experience, and RFC, jobs other than poultry hanger exist in significant numbers in the national
economy that Foster could perform, including industrial cleaner, store laborer, dining room
attendant, production assembler, cleaner, and parking lot attendant. (Tr. 20). Therefore, the ALJ
determined Foster has not been under a disability and denied his claim. (Tr. 21).
Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or if improper legal standards were applied, “[t]his 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
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(11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)). The court,
however, “abstains from reweighing the evidence or substituting its own judgment for that of the
[Commissioner].” Id. (citation omitted).
Foster’s only argument is the ALJ failed to correctly apply the Eleventh Circuit’s pain
standard in evaluating the credibility of his statements. (Doc. 13 at 4). The Eleventh Circuit “has
established a three part ‘pain standard’ that applies when a claimant attempts to establish disability
through his or her own testimony of pain or other subjective symptoms. 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.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). Subjective testimony
supported by medical evidence satisfying the standard is sufficient to support a finding of
disability. Id. However, the ALJ may still make a credibility determination on the claimant’s
statements about the intensity and effect of that pain. See Foote v. Chater, 67 F.3d 1553, 1561-62
(11th Cir. 1995); Hogard v. Sullivan, 733 F.Supp. 1465, 1469 (M.D. Fla. 1990). The ALJ’s
adverse credibility determination must be supported by “explicit and adequate reasons,” Holt, 921
F.2d at 1223, and substantial evidence, see Foote, 67 F.3d at 1561-62. An ALJ’s clearly articulated
credibility determination will not be disturbed if supported by substantial evidence. Petteway v.
Comm’r of Soc. Sec., 353 Fed. App’x. 287, 288 (11th Cir. 2009).
When evaluating the credibility of a claimant’s statements regarding the intensity,
persistence, or limiting effects of her symptoms, the ALJ considers all evidence, objective and

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subjective. See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p.5 The ALJ may consider the nature
of a claimant’s symptoms, the effectiveness of medication, a claimant’s method of treatment, a
claimant’s activities, and any conflicts between a claimant’s statements and the rest of the
evidence. See 20 C.F.R. §§ 404.1529(c)(3), (4), 416.929(c)(3), (4); SSR 96-7p. If an ALJ
discredits a claimant’s subjective complaints, “he must articulate explicit and adequate reasons for
doing so.” Wilson v. Comm’r of Soc. Sec., 284 F.3d 1219, 1225 (11th Cir. 2002). “[I]f a credibility
determination is inadequate, a remand to the agency for further consideration is the proper
remedy.” Carpenter v. Astrue, No. 8:10-CV-290-T-TGW, 2011 WL 767652 (M.D. Fla. Feb. 25,
2011). See also Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 835 (11th Cir. 2011) (retreating
from MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986), based on the prior precedent
rule, and remanding to the agency).
The ALJ in this case appropriately evaluated Foster’s claims of pain according to Eleventh
Circuit precedent, the regulatory criteria, and SSR 96-7p. (Tr. 15-19). The ALJ applied the correct
two-step process, (tr. 15-16), to conclude that while Foster’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms . . . [Foster’s] statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely credible.” (Tr.
16-18). He found those statements “partially credible” in light of the medical evidence in the
record, concluding notwithstanding Foster’s severe physical impairments he was capable of
performing work at the medium level with some restrictions. (Tr. 18).

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SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029, which was published in
the Federal Register on March 16, 2016, and became effective March 28, 2016, see 2016 WL
1237954. The ALJ in this case issued his ruling on August 6, 2014, well before the publication or
effective date of that ruling.
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To make this determination, the ALJ placed great weight on the consultative medical report
of Dr. Imad Khdair, who found (despite Foster’s complaints of back pain) no back tenderness,
deformity, or spasm. (Tr. 17-18, 280-282). Foster admitted to Dr. Khdair he had no limitations in
walking, sitting, or standing, and he stated he could lift up to fifty pounds and carry up to forty
pounds. (Tr. 280). In Dr. Khdair’s opinion, based on his medical findings, Foster was capable of
performing work-related activities “such as sitting, standing, walking, lifting, carrying, and
handling objects.” (Tr. 282). The ALJ also gave great weight to a non-treating, non-examining
physician, Dr. Richard Whitney, who found no evidence of limitations related to Foster’s liver or
back. (Tr. 18, 77). In addition to the medical evidence, the ALJ found Foster’s reports of his daily
activities and statements, both at the hearing and elsewhere, undermined the credibility of his pain
testimony. (Tr. 18). In his function report, Foster indicated he could prepare complete meals,
perform “everything” as far as indoor and outdoor chores (including yard work, which Foster listed
as a hobby he engaged in every day), walk for long periods, watch TV, and ride in a car. (Tr. 18,
181-188). At the hearing, Foster testified his cramps were helped by medication with no side
effects. (Tr. 40-41, 46-47). And the ALJ noted (although as nonconclusive and nondeterminative)
Foster exhibited none of the symptoms he claimed at the hearing. (Tr. 16, 18).
Foster’s main complaint is the ALJ’s credibility determination failed to take into account
Foster’s impairments in combination, which he says would have compelled a finding Foster could
engage in only sedentary work. (Doc. 13 at 5-7). Because the vocational examiner stated Foster
had no skills that transferred to sedentary work, Foster says, this should have compelled a finding
of disability based on his age, education, and past work experience. (Doc. 13 at 7-8). In support,
Foster cites his longitudinal medical history, which includes frequent treatment from the VA for
cervical radiculopathy, chronic hepatitis C, and muscle cramps; a visit to the emergency room for

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arm pain, cramping, and cervical radiculopathy, where an MRI showed advanced cervical
spondylosis; and records showing complaints of cramps and fatigue. (Id. at 6). However, the ALJ
did consider the longitudinal medical record, and in fact discusses at length the medical evidence
Foster cites. (See tr. 16-18). The ALJ concluded Foster’s testimony regarding the disabling nature
of his cramps was not entirely credible based on Foster’s own reports at the hearing and to Dr.
Khdair, as well as the basically normal results of physical examinations apart from decreased
lumbar and left shoulder range of motion. (Tr. 18). He noted the emergency room visit cited by
Foster yielded a physical examination revealing 5/5 strength in Foster’s major muscle groups, a
fully-moving left arm with no issue, a normal gait, and “gross sensory intact.” (Tr. 16, 290).
Foster’s longitudinal medical history certainly supports complaints of various medical
impairments, but the ALJ did not misconstrue that record to find symptoms of those impairments
did not limit Foster’s ability to work to the extent he alleged. The ALJ’s conclusion is supported
by substantial evidence.
Nor did the ALJ improperly fail to consider the combination of Foster’s impairments in
assessing his RFC. The Commissioner points to the ALJ’s determination at Step Three Foster
“does not have an impairment or combination of impairments that meets or medically equals the
severity of” one of the listings as sufficient evidence the ALJ considered the impairments in
combination. (Doc. 14 at 13) (citing Wilson v. Barnhardt, 284 F.3d 1219, 1224-25 (11th Cir.
2002)). While this certainly suggests the ALJ considered the combination of Foster’s impairments
when assessing whether Foster met a listing, it does not follow the ALJ considered their combined
effects in formulating his RFC. However, other evidence, including the RFC itself, indicates the
ALJ did properly consider Foster’s impairments in combination. The ALJ, “consider[ing] all
symptoms and the extent to which these symptoms can reasonable be accepted as consistent with

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the objective medical evidence and other evidence,” limited Foster’s work to routine and repetitive
tasks “due to some fatigue from cirrhosis of the liver.” (Tr. 15, 18). The ALJ also limited Foster
to only frequently reaching overhead, using foot and hand controls, and climbing ramps and stairs,
while occasionally climbing ladders and scaffolds, accounting for his limitations in range of
motion. (Tr. 15). Additionally, the RFC reflects the limitations Foster alleged due to cramping in
that it provides Foster would be “off task for 5% of a normal 8-hour workday,” which comports
with Foster’s statement his cramps lasted for about five minutes at a time. (Tr. 15, 46). Beyond
Foster’s conclusory statement, there is no evidence his symptoms concurred to compel a finding
he could only engage in sedentary work, and the ALJ’s finding medium work with limitations
accounting for the combined effects of Foster’s symptoms—“defaulting in [Foster’s] favor as
much as possible,” (tr. 18)—was supported by substantial evidence.
Finally, Foster takes issue with the ALJ’s use of his daily activities to rebut his testimony.
In support, he cites Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), for the proposition
a claimant’s participation in everyday activities does not disqualify him from disability. (Doc. 13
at 8). In Lewis, the district court rejected the claimant’s treating physicians’ opinions because the
claimant performed “everyday activities of short duration.” 125 F.3d at 1441. Here, there were
no limitations from treating physicians—or any physicians at all, for that matter—for the ALJ to
reject, and the activities identified by the ALJ were substantially more involved than those in
Lewis. More importantly, the ALJ did not use evidence of Foster’s daily activities as dispositive
of disability, but rather contrasted that evidence with Foster’s inconsistent subjective claims of
limitations. It was not improper for the ALJ to do so. See also Macia v. Bowen, 829 F.2d 1009,
1012 (11th Cir. 1987) (“The regulations do not . . . prevent the ALJ from considering daily
activities at the fourth step of the sequential evaluation process.”).

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Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative record
and memoranda of the parties, the decision of the Commissioner of Social Security denying
Foster’s claim for a period of disability and DIB is AFFIRMED, and this action is DISMISSED
WITH PREJUDICE. A separate order will be entered.
DONE this 27th day of March, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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