Nash v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 4/30/2012. (FNC)
2012 Apr-30 PM 03:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
PREDETHIA WRIGHT NASH,
MICHAEL J. ASTRUE,
Commissioner of the Social,
CIVIL ACTION NO. CV-11-KOB-2305-S
On June 11, 2007, the claimant, Predethia Wright Nash, applied for a period of disability and
disability insurance benefits under Title II of the Social Security Act. The claimant alleges disability
commencing on April 13, 2007, because of constant, chronic pain. (R. 80). The Commissioner
denied the claim. (R. 81). The claimant filed a timely request for a hearing before an Administrative
Law Judge (ALJ), and the ALJ held a hearing on May 8, 2009. (R. 87). In a decision dated June 2,
2009, the ALJ found that the claimant was not disabled as defined in the Social Security Act. (R. 16).
The Appeals Council denied the claimant’s request for review on April 28, 2011. (R. 1). The
claimant has exhausted her administrative remedies, and this court has jurisdiction pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court affirms the decision of the
II. ISSUES PRESENTED
The issue presented is whether the ALJ properly applied the Eleventh Circuit’s three-part
III. STANDARD OF REVIEW
The standard of 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, 401 U.S. 389, 401
(1971). 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
that 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 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
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability 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 . . .”
To make this determination the Commissioner employs a five-step, sequential evaluation
process. See 20 C.F.R. §§ 404.1520, 416.920.
(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?
(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?
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).1
In evaluating pain and other subjective complaints, the Commissioner must consider
whether the claimant demonstrated an underlying medical condition, and either “(1) objective
medical evidence that confirms the severity of the alleged pain arising form that condition or (2)
that the objectively determined medical condition is of such a severity that it can reasonably be
expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)
(emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); 20 C.F.R.
The claimant was forty-one years old at the time of the administrative hearing and has an
eleventh grade education. (R. 40). Her past work experience includes employment as a nurse’s
assistant, waitress, hospital cleaner/housekeeper, billing clerk, and file clerk. (R. 66). The
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) was a supplemental security income case
(SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are
appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir.
claimant testified that she has not engaged in substantial gainful activity since April 13, 2007.
(R. 41). The claimant alleged that she is unable to work because she has constant, chronic pain in
her neck, lower back, hips, knees, legs, and feet. (R. 43-4). The claimant testified that her pain is
a result of a work-related injury that occurred on January 20, 2006. (R. 44, 239).
On January 20, 2006, the claimant, while working as a nurse’s assistant, sustained an
injury when she tried to catch a falling patient. (R. 44). Five days after the incident, on January
25, 2006, Dr. Donald J. Reynolds, a specialist in diagnostic radiology, interpreted the claimant’s
lumbar MRI and reported impressions of a mild bilateral neural foraminal stenosis at L4/5
secondary to diffuse annular bulge and hypertrophic facet arthritic changes. (R. 204).
Based on a diagnosis of lumbar radiculopathy, Dr. James P. Baretta, a treating physician
and pain management specialist, performed three epidural steroid injections on the claimant on
February 3, 2006, February 17, 2006, and March 3, 2006. (R. 285-7).
On April 3, 2006, Dr. Samuel Bowen, a neurosurgeon, reported that the claimant had a
lumbar strain and stated that the claimant “should be able to return for full duty activities
eventually.” Dr. Bowen suggested physical therapy and released the claimant for light duty work.
On June 29, 2006, Dr. J. Stanford Faulkner, a treating physician and orthopedic surgeon,
reported that x-rays of the claimant’s lumbar spine showed no definite abnormalities and
recommended the claimant get a new MRI. (R. 232). On July 28, 2006, Dr. Faulkner reported
that the new MRI, performed on July 11, 2006 (R. 269), showed no abnormalities. (R. 233). Dr.
Faulkner concluded that surgery definitely would not help to alleviate the claimant’s pain. Id.
On January 8, 2007, Dr. Michelle J. Turnley, a treating physician and physical medicine
and rehabilitation specialist, examined the claimant and reported that the claimant “appears to be
in some degree of discomfort.” Dr. Trunley reported that the examination of the lumbar spine
revealed no asymmetry and normal alignment. Dr. Turnley diagnosed the claimant with sciatic
neuralgia and lumbar degenerative disc disease. Dr. Turnley recommended work conditioning
and medication. She prescribed Lodine and Flexerill and decided to “proceed with conservative
management.” (R. 228-9). On January 31, 2007, Dr. Turnley reported that the claimant had
“participated well” in work conditioning and was able to lift thirty pounds safely. Dr. Turnley
reported that the claimant did have pain complaints; however, “no breakdown in her
musculoskeletal” existed during her work conditioning. Upon examination, Dr. Turnley reported
that the claimant had slight hypertonicity and was tender to palpatation in the lower lumbar area.
Dr. Turnley reported that the claimant’s sciatic neuralgia was mostly muscular. Dr. Turnley
refilled the claimant’s prescriptions of Lodine and Flexil, released the claimant to work at
light/medium duty, and recommended a functional capacity evaluation of the claimant. (R. 226).
On April 2, 2007, Dr. Mark Richman of Adamsville Family Medicine, a treating
physician and practitioner of internal medicine and family medicine, treated the claimant for
complaints of migraine headaches and insomnia. Records from Adamsville Family Medicine on
June 13, 2007 indicate that the claimant complained of knee pain and that her knees “sometimes
give way;” the claimant was treated for chronic constipation on August 15, 2007 (R. 328-9); the
claimant complained that Celebrex was not controlling her arthritis on September 21, 2007; and
the claimant complained of nausea, vomiting, leg and back pain, and leg cramps on November
27, 2007. On December 28, 2007, the claimant returned to the office complaining of increased
lower back pain, and Dr. Richman referred the claimant to Dr. Sean O’Malley. (R. 323-6).
The report, dated January 17, 2008, from Dr. Sean O’Malley, a neurosurgeon, concluded
that the claimant had a small central disc protrusion that did not seem to compress the root on
either side. He reported that the disc protrusion may be causing the claimant’s pain; however, Dr.
O’Malley concluded that surgery would not help because the protrusion was so small. Dr.
O’Malley suggested that the claimant was a candidate for pain management. (R. 321)
The claimant visited Adamsville Family Medicine several times from February 2008 to
May 2009, complaining of back and knee pain. (R. 315-19, 322). In February 2009, the claimant
reported that the drug Neurontin helped the pain, but she was still hurting. (R. 316). On May 1,
2009, the claimant complained of swollen feet as well as pain in her knees and lower back. The
doctor restarted the claimant on Celebrex and gave her a prescription for Percocet. (R. 314).
On September 18, 2007, Dr. David L. Gordon, consulting physician and specialist in
internal medicine, reported his impressions of foraminal stenosis L4 and L5/annular
bulge/hypertrohpic facets and chronic bilateral knee pain. Dr. Gordon examined x-rays of
claimant’s right knee and reported no compartment narrowing, no opsteophytes, and no varus or
valgus deformity. Dr. Gordon reported that the claimant had no problems sitting, even though she
did have a slight lurch and favored the right lower extremity. (R. 294).
The ALJ Hearing
After the Commissioner denied the claimant’s request for disability insurance benefits,
the claimant requested a hearing before an ALJ. (R. 87). On May 8, 2009, an ALJ conducted a
hearing on behalf of the claimant. (R. 34-79). At the hearing, the claimant testified that she had
chronic pain in her neck, lower back, hips, knees, and feet. (R. 44). The claimant testified that
she takes Percocet, Xanaflex, and Flexeril every day to help manage her pain. When her attorney
questioned her, the claimant testified that she had multiple epidural injections and was also
taking Neurontin, Prilosec, Atenolo, Gapnentin, and Amitica. (R. 49-52).
The ALJ asked the claimant why she could not do light duty or sedentary-type work, and
the claimant replied that her medication makes her dizzy and light headed. (R. 45-6). The
claimant further testified that the pain wakes her up at night and that even when she sits down,
her back bothers her, her feet swell, and she has tingling in her legs. When her attorney
questioned her about doing sedentary jobs, the claimant testified that she has trouble
concentrating, especially when she takes her pain medications. (R. 55-6).
The claimant testified that when she sits for a long period of time, she has pain “pressing
down on [her] back . . . like a knife.” The claimant also testified that sometimes when she walks
her legs give out, and she falls down. (R. 58). The claimant testified she is also in pain while
driving. (R. 61).
When her attorney asked her whether she had pain, numbness, burning, and tingling
going down her legs and lower back, the claimant answered in the affirmative. (R. 58). The
claimant indicated that moving around and lying down helps alleviate the pain. (R. 59). When
her attorney asked her whether she could walk without being in pain, the claimant responded that
she is constantly in pain and could not walk to the bathroom without hurting. (R. 60).
The claimant testified that on a scale from one to ten, with ten being the worst, her pain is
an eight on a daily basis. The claimant testified that with her medications, the pain is reduced to a
seven. (R. 62).
Later in the hearing, the claimant testified that she has sharp pains in her right arm and
hands. The claimant attributes this pain to arthritis. (R. 69-70). The claimant indicated that the
pain would affect her ability to handle and grip objects. (R. 71).
A vocational expert, Ms. Schulman, testified concerning the type and availability of jobs
that the claimant was able to perform. (R. 63-77). Ms. Schulman testified that the claimant would
not be able to perform any of her past work with her limitations, but that jobs exist in the
economy that such a person could perform. Ms. Schulman testified that these jobs included
assemblers and hand packers. (R. 67). The ALJ asked Ms. Schulman to identify any jobs that
were sedentary and required only occasional pushing and pulling with a leg, occasional postural
movements, but required no ladders and avoided cold, heat, wetness, humidity, vibration, and
hazards. Ms. Schulman identified assemblers and inspectors/checkers. (R. 68).
The ALJ then asked whether a person, like the claimant, could sustain employment in the
economy if this person had to be absent from work frequently or needed to go home early
because of pain. Ms. Schulman replied in the negative. (R. 69).
The claimant’s attorney asked Ms. Schulman whether the claimant could perform any of
the aforementioned jobs if the claimant were unable to use her right hand effectively. (R. 71).
Ms. Schulman replied that if the claimant were only able to use her arm occasionally throughout
the day, then that limitation would preclude the assembler and hand packing jobs, reduce the
inspector/checker jobs by fifty percent, and include packing machine vendor jobs. (R. 72-4). The
claimant’s attorney then questioned Ms. Schulman about other jobs that a person could perform
with the limitations of light work, occasional pushing and pulling, occasional postural
movements, and avoiding cold, heat, wetness, humidity, vibration, and hazards. Ms. Schulman
testified that greeter/hostess jobs would be available along with machine tending or packing
positions. (R. 74).
The claimant’s attorney then asked Ms. Schulman whether the claimant could do any of
the greeter/hostess or machine tending/packing jobs if the claimant had difficulty concentrating
on tasks. Ms. Schulman reiterated the fact that if the claimant could not “sustain in the pace and
persistence of full-time employment” then all jobs would be precluded. (R. 75). The ALJ then
clarified that the employer would not allow the claimant to lie down during the day while on the
job. (R. 76).
The ALJ concluded his examination of Ms. Schulman by asking how a sit-stand option
would affect greeter/hostess jobs. Ms. Schulman replied that a sit-stand option would reduce the
number of greeter/hostess jobs by twenty-five percent, but that certain jobs exist, specifically at
Walmart, where the employee is allowed to sit on some occasions. (R. 77).
The ALJ’s Decision
On June 2, 2009, the ALJ issued a decision finding the claimant was not disabled under
the Social Security Act. (R. 16). First, the ALJ found that the claimant met the insured status
requirements of the Social Security Act through December 31, 2010. Second, the ALJ found that
the claimant had not engaged in substantial gainful activity since the alleged onset of her
disability. Third, the ALJ found that the claimant’s obesity, degenerative joint
disease/osteoarthritis of the knees, and degenerative joint disease of the lumbar and cervical
spine qualified as severe impairments; he concluded, however, that these impairments did not
singly or in combination meet or medically equal one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1. (R 19-20).
Fourth, the ALJ considered the claimant’s residual functional capacity to perform
unskilled work at the light exertional range. The ALJ followed a two-step process in considering
the claimant’s symptoms. (R. 20). First, he determined that an underlying medically determinable
physical or mental impairment existed that could reasonably be expected to produce the
claimant’s pain; however, in the second step of the process, the ALJ evaluated the intensity,
persistence, and limiting effects of the claimant’s symptoms and determined that, while the
claimant can no longer perform her past relevant work, she is capable of performing some type of
work. (R. 21-2).
To support his conclusion, the ALJ referred to treating sources who released the claimant
to light or medium duty work. Additionally, the ALJ noted that the claimant continued to work
after the work-related injury and as she participated in conservative treatment for her pain. The
ALJ commented that he “[gave] great weight to the opinions that [the claimant] can return to
light type exertional work by her treating sources.” The ALJ also referenced the state medical
consultant’s conclusions as to the physical exertion abilities of the claimant, which included the
claimant’s ability to lift ten pounds frequently and sit up, stand, or walk for up to six hours
during an eight hour work day. (R. 23).
Additionally, the ALJ found the claimant “not entirely credible” as to her assertion that
she is incapable of performing any type of work. The ALJ based this determination on the
claimant’s “demeanor during the hearing in that she was not credible in describing her
limitations.” The ALJ also noted that the claimant’s attorney used “very leading questions” to
encourage the claimant to describe additional limitations that the claimant had not included in her
answers to the ALJ’s initial questions. (R. 22).
Finally, the ALJ determined, considering the claimant’s age, education, work experience,
and residual functional capacity, that jobs exist in significant numbers in the national economy
that the claimant can perform. (R. 24). The ALJ concluded that the claimant is capable of
performing a reduced range of simple, routine light work that requires only occasional pushing
and pulling with her legs and occasional postural movements and that she should avoid constant
exposure to cold, heat, wetness, humidity, vibration, and hazards. (R. 21). Based on these
findings and testimony from the vocational expert, the ALJ concluded that the claimant retains
the capacity for work that exists in significant numbers in the national economy and, therefore, is
not disabled under the Social Security Act. (R. 25).
The claimant argues that the ALJ improperly applied the Eleventh Circuit’s three-part
pain standard. To the contrary, this court finds that the ALJ properly applied the pain standard
and that substantial evidence supports his decision.
The three-part pain standard applies when a claimant attempts to establish disability
through his or her own testimony of pain or other subjective symptoms. Holt v. Sullivan, 921
F.2d 1219, 1223 (11th Cir. 1991). “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.” Id.
(emphasis added). A claimant’s subjective testimony supported by medical evidence that satisfies
the pain standard is itself sufficient to support a finding of disability. Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995).
In applying the three-part standard, the regulations require the ALJ to consider the
claimant’s statements regarding the intensity, persistence, and limiting effects of the claimant’s
symptoms in relation to objective medical evidence and other evidence to reach a conclusion
about whether the claimant is disabled. 20 C.F.R. § 404.1529(c)(4). Additionally, the ALJ may
include claimant’s “appearance and demeanor during the hearing” as evidence of claimant’s
credibility; however, the ALJ must not reject objective medical evidence solely upon the ALJ’s
observation during the hearing. Norris v. Heckler, 760 F.2d 1154, 1158 (11th Cir. 1985). If the
ALJ decides not to credit a claimant’s subjective testimony of pain, he must discredit it explicitly
and articulate his reasons for doing so. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
Failure to articulate the reasons for discrediting the claimant’s subjective complaints of pain
requires that the testimony be accepted as true. Id.
In this case, the claimant argues that her allegation of pain is supported by objective
medical evidence. The claimant notes the diagnosis, reported by both Dr. Reynolds and Dr.
Gordon, of bilateral neural foraminal stenosis at L4-5 secondary to diffuse annular bulge and
hypertrophic facet arthritic changes. In addition, the claimant notes the failed treatment of the
three epidural blocks administered to the claimant between February and March 2006. The
claimant also notes Dr. Gordon’s report of abnormal findings in the claimant’s spine and an
abnormal range of motion in the claimant’s knees. The claimant argues that the objective medical
evidence proves that her medical condition is of such a severity that it can reasonably be
expected to cause the alleged pain.
The ALJ conceded the claimant suffers from an underlying medical condition capable of
generating pain; however, he found that the entirety of the medical evidence failed to support the
claimant’s allegations regarding the severity, persistence, and limiting effects of her pain. The
ALJ explicitly articulated his reasons for discrediting the claimant’s allegations regarding the
severity, persistence, and limiting effects of her pain. First, the ALJ referred to several treating
sources that released the claimant to return to light or medium duty work. Even though the
claimant states that the epidural injections failed to alleviate her pain, Dr. Bowen still released
claimant for light duty work in April 2006, only one month after her last epidural injection.
Additionally, Dr. Turnley released claimant for light-medium duty work two times in January
2007. The ALJ also considered the fact that the claimant continued to work until April 2007
after her work-related injury in January 2006.
Next, the ALJ considered the conclusions of the state medical consultant. The state
medical consultant reported that the claimant could, among other things, stand/walk or sit up to a
total of about six hours for each during an eight hour work day and carry twenty pounds on
occasion and ten pounds frequently. The findings of the state medical consultant are consistent
with the findings of one of the claimant’s treating physicians, Dr. Turnley, who reported that
during work conditioning in January 2007, the claimant could lift thirty pounds safely.
Therefore, the objective medical evidence does not support the claimant’s allegations regarding
the severity, persistence, and limiting effects of her pain.
Finally, the ALJ based his decision on the claimant’s demeanor at the hearing. The ALJ
noted that the claimant was not credible in describing her limitations at the hearing.
Additionally, the ALJ noted that the claimant’s attorney used leading questions to get the
claimant to describe additional limitations that she failed to describe during the ALJ’s initial
questioning. The ALJ found that the claimant’s statements concerning the intensity, persistence,
and limiting effects of her symptoms were credible only to the extent that she was in some pain;
however the statements were “less than credible” to the severity and persistence of the pain.
Therefore, while the claimant was credible to the extent that she is no longer able to perform the
functions of her past relevant work, the statements were “not entirely credible as to the assertion
that she is incapable of performing any type of work.” (R. 22).
Based on the explicit findings of the ALJ, this court concludes that he properly applied
the Eleventh Circuit’s three-part pain standard and that substantial evidence supports his
decision. Therefore, this court affirms the decision of the Commissioner.
For the reasons as stated, this court concludes that the decision of the Commissioner is
supported by substantial evidence and is to be AFFIRMED.
A separate order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this 30th day of April, 2012.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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