Hardy v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 6/15/12. (KGE, )

FILED
2012 Jun-15 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DARRIE J. HARDY,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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2:11-CV-01853-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Darrie J. Hardy, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying his application for
Supplemental Security Income (“SSI”). Mr. Hardy timely pursued and exhausted
his administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Mr. Hardy was fifty-eight years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a tenth grade education. (Tr. at 16.) His past
work experiences include employment as a food preparation worker, school custodian,
pipe layer, and bakery production worker. (Tr. at 17. ) Mr. Hardy claims that he

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became disabled on June 30, 2007, due to fatigue, weakness, pain in his right rotator
cuff and back, osteoarthritis, hypertension, and depression. (Tr. at 17-18.)
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§ 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The first
step requires a determination of whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. § 416.920(a)(4)(i). If he or she is, the claimant is not disabled
and the evaluation stops. Id. If he or she is not, the Commissioner next considers the
effect of all of the physical and mental impairments combined.

20 C.F.R.

§ 416.920(a)(4)(ii). These impairments must be severe and must meet the durational
requirements before a claimant will be found to be disabled. Id. The decision depends
on the medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir.
1971). If the claimant’s impairments are not severe, the analysis stops. 20 C.F.R. §
416.920(a)(4)(ii). Otherwise, the analysis continues to step three, which is a
determination of whether the claimant’s impairments meet or equal the severity of an
impairment listed in 20 C.F.R. pt. 404, Subpart P, Appendix 1.

20 C.F.R.

§ 416.920(a)(4)(iii). If the claimant’s impairments fall within this category, he or she
will be found disabled without further consideration.

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Id.

If they do not, a

determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. § 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R.
§ 416.920(a)(4)(iv). If the claimant can still do his or her past relevant work, the
claimant is not disabled and the evaluation stops. Id. If the claimant cannot do past
relevant work, then the analysis proceeds to the fifth step. Id. Step five requires the
court to consider the claimant’s RFC, as well as the claimant’s age, education, and
past work experience in order to determine if he or she can do other work. 20 C.F.R.
§ 416.920(a)(4)(v). If the claimant can do other work, the claimant is not disabled.
Id.
Applying the sequential evaluation process, the ALJ found that Mr. Hardy was
not disabled under the Social Security Act. (Tr. at 27.) He further determined that
Mr. Hardy has not engaged in substantial gainful activity since the alleged onset of his
disability. (Id.) According to the ALJ, Plaintiff’s right shoulder pain, hypertension,
probable fibromyalgia, chronic low back pain and dysthymia are considered “severe”
based on the requirements set forth in the regulations. (Tr. at 23.) However, he found
that these impairments neither meet nor medically equal any of the listed impairments

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in Appendix 1, Subpart P, Regulations No. 4. (Id.) The ALJ did not find Mr. Hardy’s
allegations to be fully credible, and he determined that Mr. Hardy had the residual
functional capacity to perform medium work which allows him to frequently bend,
stoop, or climb, and in which he will have no excessive exposure to dust, fumes, or
gases. (Tr. at 25.)
According to the ALJ, Mr. Hardy is unable to perform any of his past relevant
work. (Id.) Even though Plaintiff’s exertional limitations do not allow him to perform
the full range of medium work, the ALJ used Medical-Vocation Rule 203.11 as a
guideline for finding that there are a significant number of jobs in the national
economy that he is capable of performing, such as material handler, wrapper and
packer, and general laborer in a clean environment. (Tr. at 27.) The ALJ concluded
his findings by stating that Plaintiff “has not been disabled at any time through the
date of this decision.” (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See

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Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The Court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions. See
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts,
weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The
substantial evidence standard permits administrative decision makers to act with
considerable latitude, and ‘the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir.
1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). Indeed, even if this Court finds that the evidence preponderates against
the Commissioner’s decision, the Court must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for
“despite this deferential standard [for review of claims] it is imperative that the Court
scrutinize the record in its entirety to determine the reasonableness of the decision
reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to
apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748
F.2d 629, 635 (11th Cir. 1984).

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III.

Discussion
Plaintiff alleges that the ALJ’s decision is not based on substantial evidence and

should be reversed for two reasons. First, he argues that the ALJ gave improper
weight to the opinion of Plaintiff’s examining physician. (Doc. 8 at 6-8.) Second,
Plaintiff contends that the ALJ failed to properly apply the Medical-Vocational
Guidelines of the Regulations in this case. (Id. at 9-12.)
A.

Weight of the Examining Physician’s Opinion

Plaintiff contends that the Administrative Law Judge (“ALJ”) improperly
afforded more weight to the opinion of the nonexamining physician, Dr. Smith, than
his examining physician, Dr. Desai. (Doc. 8 at 6.) The ALJ may discount the opinion
of a physician, even a treating physician, for good cause; “good cause” exists for an
ALJ to not give a physician’s opinion substantial weight when the: (1) “physician’s
opinion was not bolstered by the evidence; (2) evidence supported a contrary finding;
or (3) . . . physician’s opinion was conclusory or inconsistent with the doctor’s own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); see also Edwards v. Sullivan,
937 F.2d 580, 583-84 (11th Cir. 1991) (holding that “good cause” existed where the
opinion was contradicted by other notations in the physician’s own record). The

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weight to be afforded a medical opinion regarding the nature and severity of a
claimant’s impairments depends, among other things, upon the examining and
treating relationship the medical source had with the claimant, the evidence the
medical source presents to support the opinion, how consistent the opinion is with the
record as a whole, and the specialty of the medical source. See 20 C.F.R. §
416.927(d).
The Court must also keep in mind that opinions such as whether a claimant is
disabled, the claimant’s Residual Functional Capacity (“RFC”), and the application
of vocational factors “are not medical opinions . . . but are, instead, opinions on issues
reserved to the Commissioner because they are administrative findings that are
dispositive of a case; i.e., that would direct the determination or decision of
disability.” 20 C.F.R. § 416.927(e). The ALJ’s findings must be supported by
substantial evidence; substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
Dr. Desai performed a consultative evaluation of the plaintiff on June 5, 2008,
at the request of the Social Security Administration. (Tr. at 119.) Plaintiff complained

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of chronic fatigue with shortness of breath, back pain, and difficulty moving. (Tr. at
119-23.) Dr. Desai reviewed Dr. Bohnenkamp’s records and noted Plaintiff’s diffuse
chronic pain, depression, insomnia, hypertension, obesity, and the pain in his left
shoulder. (Tr. at 119.) Dr. Desai also noted that the plaintiff is independent in his
daily activities with occasional need of assistance going up and down stairs, and that
he spends most of his time sitting and walking around. (Id.) Dr. Desai concluded that
plaintiff’s pain and tenderness in his lower extremities were “somewhat significant”
and opined that it was likely due to arthritis (though the underlying condition was
unclear). (Tr. at 122.) Dr. Desai suggested the following limitations: limit standing
and walking to two hours with breaks; limit sitting to four to six hours with breaks;
limit lifting and carrying to five to ten pounds frequently, and twenty pounds
occasionally; no climbing, environmental or manipulative limitations, and no required
assistive devices. (Tr. at 122.)
On July 7, 2008, Dr. Smith, a state agency medical consultant, reviewed all the
Plaintiff’s medical records and completed a physical RFC assessment. (Tr. at 12532.) Upon review of the entire record, Dr. Smith determined that Plaintiff had the
exertional limitations of lifting of carrying limited to twenty-five pounds frequently,
and fifty pounds occasionally; standing or walking limited to six hours in a normal

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work day, and sitting limited to six hours in a normal work day. (Tr. at 126.) Plaintiff
had environmental limitations of extreme temperatures and hazards such as
unprotected heights and hazardous machinery. (Tr. at 129.) Plaintiff had no postural
limitations except with regard to balancing and no manipulative, visual, or
communicative limitations. (Tr. at 125-32.) Dr. Smith opined that the limitations on
standing, walking, lifting, and carrying were to be given little weight because they were
not supported by the objective medical evidence in the record. (Tr. at 131.)
Plaintiff claims that it was improper for the ALJ to disregard Dr. Desai’s
opinion because it was based on Dr. Desai’s own examination of the plaintiff and is
corroborated by the fact that the Plaintiff is receiving ongoing treatment for the pain
in his back and shoulder. (Doc. 8 at 7.) Plaintiff’s ongoing treatment is certainly
indicative of the fact that he is experiencing pain, but not of how severe that pain is or
whether these limitations arise from it. See Arnold v. Heckler, 732 F.2d 881, 884 (11th
Cir. 1984)(“It was not inconsistent for the [ALJ] to find that [the plaintiff] suffers pain
in fact, and yet is not so severely impaired as to meet the stringent test for disability
imposed by the Act.”).
The ALJ had good cause to reject Dr. Desai’s opinion regarding the plaintiff’s
standing, walking, lifting, and carrying limitations. First, the suggested limitations are

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not bolstered by the evidence. In his hearing testimony, the plaintiff stated that he
went to the unemployment agency to apply for a job after being terminated from his
previous job. (Tr. at 203.) Also, he reports daily activities including yard work,
cooking, sweeping, shopping, washing dishes, and watching television. (Tr. at 145,
201, 216-17.) That the plaintiff can do these daily activities and had been actively
looking for a job suggests that he is not suffering from debilitating limitations that
would prevent him from being able to perform work. Furthermore, there is also some
discrepancy in the record about which shoulder was giving the plaintiff the most
severe pain; the plaintiff’s hearing testimony claims it is his right shoulder, while Dr.
Bohnenkamp’s records shows it is his left shoulder. (Tr. at 194, 111.)
Second, the medical records support a conclusion contrary to Dr. Desai’s
opinion on the limitations. Plaintiff saw his treating physician, Dr. Bohnenkamp seven
times from June 29, 2007, through October 9, 2008, and was diagnosed with diffuse
arthralgia/myalgia. (Tr. at 108-18, 163.) However, Plaintiff declined an injection into
his shoulder, and Dr. Desai’s report indicated Plaintiff had full motor strength and full
range of motion in his upper extremities. (Tr. at 111, 121.) The ALJ also found it most
notable that Plaintiff’s alleged pain and fatigue did not prevent him from performing
any other daily tasks. (Tr. at 24.) This determination—that his allegations of pain and

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the limitations that arise from that pain are not credible—supports a finding contrary
to Dr. Desai’s opinion regarding Plaintiff’s limitations.
Finally, Dr. Desai’s opinion is not consistent with the objective medical findings
in his own report. Although Dr. Desai favored osteoarthritis as the diagnosis, the
plaintiff’s underlying condition that led to the pain in his lower extremities was
unclear because the plaintiff had good muscle strength and his sensation was intact.
(Tr. at 122.) Dr. Desai reported that plaintiff can walk normally and that his range of
motion was “normal throughout” his body, including his lower extremities. (Tr. at
121.) These findings do not suggest the plaintiff’s walking and standing limitations.
The plaintiff also has a full range of motion and full motor strength in his upper
extremities. (Tr. at 121-22.) This finding does not suggest the limitation regarding
lifting and carrying.
Plaintiff argues that it was the ALJ’s duty to recontact Dr. Desai in the face of
an inconsistent report instead of “misinterpret[ing] that opinion to the detriment of
Plaintiff.” (Doc 8 at 8.) However, the ALJ is only required to recontact the physician
in the face of report so incomplete or inadequate that the ALJ cannot make a decision
based on it. 20 C.F.R. § 416.912(e). Here, Dr. Desai’s report was complete, and the

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ALJ was capable of making a decision based upon it. Therefore, the ALJ was under
no obligation to recontact Dr. Desai.
The ALJ had good cause to reject Dr. Desai’s opinion because the opinion was
not bolstered by the evidence, the evidence supported a contrary finding and Dr.
Desai’s conclusion was inconsistent with his own medical records. The ALJ was
under no obligation to recontact Dr. Desai because his report was complete. Thus,
the opinion of the ALJ is supported by substantial evidence.
B.

Application of the Medical-Vocational Guidelines of the Regulations

Plaintiff contends that the ALJ applied the wrong “GRID Rule” to the
plaintiff’s case due to the incorrectly determined RFC assessment. (Doc. 8 at 9.) It
is the ALJ, not the physician, who is responsible for making the RFC assessment. 20
C.F.R. § 416.927(e). When the facts as to an individual’s “vocational factors and
residual functional capacity coincide with all the criteria of a particular rule, the rule
directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R.
pt.404 Subpart P, Appendix 2. § 200.00(a). As stated above, the ALJ had good cause
to reject Dr. Desai’s limitations and therefore, the ALJ’s RFC assessment was correct.
The RFC said that the plaintiff can perform medium work, is of advanced age, with
limited education, and has performed unskilled labor. (Tr. at 24-25, 16-17.) These

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facts coincide with Medical-Vocational Rule 203.11 which directs a conclusion that
the plaintiff is not disabled. 20 C.F.R. pt.404 Subpart P, Appendix 2. § 203.11. Thus,
the ALJ did not err in applying this rule to the plaintiff’s case.
IV.

Conclusion.
Upon review of the administrative record, and considering all of Mr. Hardy’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 15th day of June 2012.

L. Scott Coogler
United States District Judge
167458

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