McDaniel v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge J Foy Guin, Jr on 6/21/12. (CTS, )

FILED
2012 Jun-21 PM 12:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARMEN MCDANIEL,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 11-G-2308-S
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MEMORANDUM OPINION
The plaintiff, Carmen McDaniel, brings this action pursuant to the
provisions of section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner of the Social
Security Administration (the Commissioner) denying her application for Social
Security Benefits. Plaintiff timely pursued and exhausted her administrative remedies
available before the Commissioner. Accordingly, this case is now ripe for judicial
review under 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The sole 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. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983). To that end this court “must scrutinize the record as a whole to determine if
the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth, at 1239 (citations omitted). Substantial evidence is “such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Bloodsworth, at 1239.
STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish his entitlement
for a period of disability, a claimant must be disabled. The Act defines disabled as 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). For the purposes
of establishing entitlement to disability benefits, “physical or mental impairment” is
defined as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether a claimant is disabled, Social Security
regulations outline a five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The
Commissioner must determine in sequence:
(1)

whether the claimant is currently employed;
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(2)

whether she has a severe impairment;

(3)

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

(4)

whether the claimant can perform 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); 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 past work,
the burden shifts to the Secretary to show that the claimant can perform some other
job.” Pope, at 477; accord Foot v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the instant case, the ALJ, J. Dennis Reap, determined the plaintiff met
the first two tests, but concluded did not suffer from a listed impairment. The ALJ
found the plaintiff was able to perform her past relevant work, and accordingly found
her not disabled.
THE STANDARD WHEN THE CLAIMANT TESTIFIES HE
SUFFERS FROM DISABLING PAIN
In this circuit, “a three part ‘pain standard’ [is applied] when a claimant
seeks to establish disability through his or her own testimony of pain or other
subjective symptoms.” Foote, at 1560.

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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.
Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). In
this circuit 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 at 1011.
Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir. 1991)(parenthetical
information omitted)(emphasis added). Furthermore, it must be kept in mind that “[a]
claimant’s subjective testimony supported by medical evidence that satisfies the pain
standard is itself sufficient to support a finding of disability.” Foote at 1561.
Therefore, if a claimant testifies to disabling pain and satisfies the three part pain
standard, he must be found disabled unless that testimony is properly discredited.
When the Commissioner fails to credit a claimant’s pain testimony, he
must articulate reasons for that decision.
It is established in this circuit that if the Secretary fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony,
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then the Secretary, 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 Secretary be supported by substantial evidence.
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Therefore, if the ALJ either
fails to articulate reasons for refusing to credit the plaintiff’s pain testimony, or if his
reasons are not supported by substantial evidence, the pain testimony of the plaintiff
must be accepted as true.
THE STANDARD FOR REJECTING THE TESTIMONY OF A
TREATING PHYSICIAN
As the Sixth Circuit has noted: “It is firmly established that the medical
opinion of a treating physician must be accorded greater weight than those of
physicians employed by the government to defend against a disability claim.” Hall v.
Bowen, 837 F.2d 272, 276 (6th Cir. 1988). “The testimony of a treating physician
must ordinarily be given substantial or considerable weight unless good cause is
shown to the contrary.” McGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986);
accord Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1216 (11th Cir. 1991). In
addition, the Commissioner “must specify what weight is given to a treating
physician’s opinion and any reason for giving it no weight ....” McGregor, 786 F.2d at
1053. If the Commissioner ignores or fails to properly refute a treating physician’s
testimony, as a matter of law that testimony must be accepted as true. McGregor, 786
F.2d at 1053; Elam, 921 F.2d at 1216. The Commissioner’s reasons for refusing to

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credit a claimant’s treating physician must be supported by substantial evidence. See
McGregor, 786 F.2d at 1054; cf. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.
1987)(articulation of reasons for not crediting a claimant’s subjective pain testimony
must be supported by substantial evidence).
THE IMPACT OF A VOCATIONAL EXPERT’S TESTIMONY
WHEN PAIN OR OTHER SUBJECTIVE SYMPTOMS ARE
INVOLVED
It is common for a vocational expert (“VE”) to testify at a claimant’s
hearing before an ALJ, and in many cases such testimony is required. The VE is
typically asked whether the claimant can perform his past relevant work or other jobs
that exist in significant numbers within the national economy based upon hypothetical
questions about the claimant’s abilities in spite of his impairments. “In order for a
vocational expert’s testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments.” Jones v.
Apfel, 190 F.3d 1224, 1229 (11 th Cir. 1999).
If the claimant is unable to perform his prior relevant work the burden
shifts to the Commissioner to establish that he can perform other work. In such cases,
if the vocational expert testimony upon which the ALJ relies is based upon a
hypothetical question that does not take into account all of the claimant’s impairments,
the Commissioner has not met that burden, and the action should be reversed with
instructions that the plaintiff be awarded the benefits claimed. This is so even if no
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other hypothetical question is posed to the VE. See Gamer v. Secretary of Health and
Human Services, 815 F.2d 1275, 1280 (9th Cir. 1987)(noting that when the burden is
on the Commissioner to show the claimant can do other work, the claimant is not
obligated to pose hypothetical questions in order to prevail). However, it is desirable
for the VE to be asked whether the claimant can perform any jobs if his subjective
testimony is credited. Such a hypothetical question would allow disability claims to
be expedited in cases in which the ALJ’s refusal to credit the plaintiff’s pain testimony
is found not to be supported by substantial evidence.
In Varney v. Secretary of Health and Human Services, 859 F.2d 1396
(9th Cir. 1987), the Ninth Circuit adopted the Eleventh Circuit rule which holds that if
the articulated reasons for rejecting the plaintiff’s pain testimony are not supported by
substantial evidence, that testimony is accepted as true as a matter of law. Id at 1401.
The court noted that “[a]mong the most persuasive arguments supporting the rule is
the need to expedite disability claims.” Id. If the VE is asked whether the claimant
could perform other jobs if his testimony of pain or other subjective symptoms is
accepted as true, the case might be in a posture that would avoid the necessity of a
remand. As Varney recognized, if the VE testifies the claimant can perform no jobs if
his pain testimony is accepted as true, the only relevant issue would be whether that
testimony was properly discredited. Id.

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DISCUSSION
The plaintiff alleges she is disabled due to symptoms caused by
rheumatoid arthritis, degenerative disk disease and hepatitis C. The plaintiff testified
that she suffers from pain at a level of 7 or 8 on a scale of 1 to 10 on a daily basis.
Record 24. The plaintiff testified that in the average eight hour day, her pain requires
her to lie down 3 to 4 hours. Record 25. At the ALJ hearing, the vocational expert
was asked whether the plaintiff would be able to perform work in the national
economy if she experiences moderate to severe pain that requires her to lie down 3 to
4 hours during an eight hour workday. The vocational expert testified that such pain
would preclude both the plaintiff’s past relevant work and any other work. Record 35.
The ALJ found that the plaintiff’s medical conditions could reasonably be expected to
cause her alleged symptoms. Record 17. Therefore, unless he properly discredited the
plaintiff’s pain testimony under the Eleventh Circuit pain standard, she is disabled.
The ALJ cited to various medical records showing full range of motion
at times in some joints, the lack of swelling that certain medical exams, and the
plaintiff’s reported daily activities to discredit her testimony. The ALJ’s recited
reasons are not supported by substantial evidence. That the plaintiff had variable
symptoms at various medical evaluations is not inconsistent with the presence of
disabling pain. Nor do the activities of daily living recited, such as doing 50% of the
household chores with her mother doing the rest, contradict the plaintiff’s testimony
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of disabling pain. The ability to perform the limited activities noted by the ALJ does
not rule out the presence of disabling pain. As has been noted:
[S]tatutory disability does not mean that a claimant must be a
quadriplegic or an amputee. Similarly, shopping for the necessities of
life is not a negation of disability and even two sporadic occurrences
such as hunting might indicate merely that the claimant was partially
functional on two days. Disability does not mean that a claimant must
vegetate in a dark room excluded from all forms of human and social
activity. . . . It is well established that sporadic or transitory activity
does not disprove disability.
Smith v. Califano, 637 F.2d 968, 971-72 (3rd Cir. 1981)(emphasis added). It is the
ability to engage in gainful employment that is the key, not whether a plaintiff can
perform minor household chores or drive short distances. In Easter v. Bowen, the
court observed as follows:
Moreover, an applicant need not be completely bedridden or unable to
perform any household chores to be considered disabled. See Yawitz v.
Weinberger, 498 F.2d 956, 960 (8th Cir.1974). What counts is the
ability to perform as required on a daily basis in the "sometimes
competitive and stressful" environment of the working world. Douglas
v. Bowen, 836 F.2d 392, 396 (8th Cir.1987) (quoting McCoy v.
Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc)).
867 F.2d 1128, 1130 (8th Cir. 1989). The Easter court further noted that "[e]mployers
are concerned with substantial capacity, psychological stability, and steady attendance
. . . .” 867 F.2d at 1130 (quoting Rhines v. Harris, 634 F.2d 1076, 1079 (8th
Cir.1980)).

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Therefore, the ALJ failed to satisfy the requirements of Hale. The
conclusion of that court is equally appropriate in the instant case. “[T]he Secretary
has articulated reasons for refusing to credit the claimant’s pain testimony, but none of
these reasons is supported by substantial evidence. It follows, therefore, that
claimant’s pain testimony has been accepted as true.” Hale, at 1012.
The ALJ also refused to give appropriate weight to the opinion of one of
the plaintiff’s treating physicians, Dr. Marks, who completed a form indicating that
the plaintiff was not physically able to work due to her rheumatoid arthritis and
hepatitis C. Record 279. This statement does not qualify as a medical opinion under
the Commissioner’s regulations. 20 C.F.R. § 404.1527(e)(1). However , the ALJ
must still “review all the medical findings and other evidence that support” Dr. Marks’
opinion. A review of the medical evidence of record shows that the medical treatment
notes support Dr. Marks’ opinion that the plaintiff was unable to work due to her
medical condition. Furthermore, Dr. Marks opinion and treatment notes provide
strong support for the plaintiff’s pain testimony.
CONCLUSION
The ALJ failed to properly discredit the plaintiff’s testimony of
disabling pain. Therefore, that testimony must be accepted as true. Accordingly, the
expert vocational testimony adduced at the ALJ hearing establishes that the plaintiff is
unable to work. Additionally, the ALJ failed to properly consider the opinion of Dr.
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Marks, one of the plaintiff’s treating physicians, that she was unable to work. This is
a case where “the [Commissioner] has already considered the essential evidence and it
is clear that the cumulative effect of the evidence establishes disability without any
doubt.” Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993). In such a case the action
should be reversed and remanded with instructions that the plaintiff be awarded the
benefits claimed. Id.
An appropriate order will be entered contemporaneously herewith.
DONE 21 June 2012.

UNITED STATES DISTRICT JUDGE
J. FOY GUIN, JR.

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