Peterson v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 07/09/12. (CVA)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONNELL FITZGERALD
PETERSON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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2012 Jul-09 AM 11:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

Civil Action Number
2:11-cv-02480-AKK

MEMORANDUM OPINION
Plaintiff Donnell Fitzgerald Peterson (“Peterson”) brings this action
pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (“the Act”),
42 U.S.C. § 405(g) and §1383(c)(3), seeking review of the final adverse decision
of the Commissioner of the Social Security Administration (“SSA”). This Court
finds that the Administrative Law Judge’s (“ALJ”) decision - which has become
the decision of the Commissioner - is supported by substantial evidence, and,
therefore, AFFIRMS the decision denying benefits.
I. Procedural History
Peterson filed his application for Disability Insurance Benefits and Title
XVI Supplemental Security Insurance on September 19, 2007, alleging a disability
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onset date of January 1, 2007, from “systemic lupus erythematosus [“SLE”] with
discoid lesions, hypertension, anxiety disorder NOS, panic disorder without
agoraphobia, dysthymia, history of bipolar disorder, and history of polysubstance
dependence.” (R. 18). After the SSA denied his application, Peterson requested
and received a hearing on June 16, 2009. (R. 26-63, 83). At the time of the
hearing, Peterson was 44 years old with a high school diploma and two years of
college. (R. 31). Peterson’s past relevant work included work as a mail handler,
park worker, and a trash collector. (R. 55).
On August 17, 2009, the ALJ denied Peterson’s claim. (R. 16-25). The ALJ
found that Peterson has SLE with discoid lesions, hypertension, anxiety disorder
NOS, panic disorder without agoraphobia, dysthymia, history of bipolar disorder,
and history of polysubstance dependence. (R. 18). The ALJ found also that
Peterson cannot perform any past relevant work, but that he has a residual
functional capacity (“RFC”) to perform light work with limitations. (R. 21, 24).
On May 9, 2011, the Appeals Council refused to grant review. (R. 1-3). Peterson
then filed this action for judicial review pursuant to 42 U.S.C. § 405(g). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
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correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
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engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments 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). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

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

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20

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C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, Peterson alleges disability because of pain, he must
meet additional criteria. 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.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
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.1
Id. However, 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. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
1

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find him disabled unless the ALJ properly discredits his testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], 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 [ALJ] 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
the ALJ’s reasons are not supported by substantial evidence, the court must accept
as true the pain testimony of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
As a threshold matter, the court notes that the ALJ properly applied the five
step analysis. Initially, the ALJ determined that Peterson had not engaged in
substantial gainful activity since January 1, 2007, and therefore met Step One. (R.
15). The ALJ acknowledged that Peterson’s combination of severe impairments of
SLE with discoid lesions, hypertension, anxiety disorder NOS, panic disorder
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without agoraphobia, dysthymia, bipolar disorder, and polysubstance dependence
met Step Two. Id. The ALJ proceeded to the next step and found that Peterson
did not satisfy Step Three since his impairments or combination of impairments
neither met nor equaled the requirements for any listed impairment. (R. 19).
Although he answered Step Three in the negative, consistent with the law, see
McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four where he determined
that Peterson had the RFC to
lift, carry, push, and/or pull 20 pounds occasionally and 10 pounds
frequently; he can stand and/or walk six hours in an eight-hour day
with normal breaks; and he can sit for six hours in an eight-hour day
with normal breaks. The claimant cannot climb ladders, ropes, and
scaffolds and he should avoid exposure to hazards (machinery,
heights, and the like) in the work place. The claimant can remember,
understand, and carryout simple instructions, but would have greater
difficulty with sustained execution of more detailed and complex
instructions. He can sustain attention and concentration for two-hour
periods at a time; he can complete a normal workday at an acceptable
pace and schedule; and he would not require excessive breaks. The
claimant can be expected to miss one or two days a month due to
exacerbation of psychiatric symptoms. The claimant can
appropriately manage casual and informal contact with the generalpublic, co-workers, and supervisors; his proximity with others should
not be intensive or prolonged; and he may have difficulty interacting
effectively with others when taxed or stressed. The claimant can
accept and utilize supervision; respond to appropriate levels of
feedback and constructive instructions; and he can respond to simple
and infrequent changes in work routine.
(R. 21). Further, the ALJ held that Peterson could not perform any of his past
relevant work. (R. 24). Lastly, in Step Five, the ALJ considered Peterson’s age,

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education, work experience, RFC, and impairments, and determined that there are
a significant number of jobs in the national economy that Peterson can perform,
such as an assembler, sorter, and material handler. (R. 24-25). Because the ALJ
answered Step Five in the negative, the ALJ determined that Peterson is not
disabled. (R. 25).
V. Analysis
The court turns now to Peterson’s contentions that the ALJ failed to
properly consider the pain caused by his physical impairments and the opinion of
the Vocational Expert (“VE”). Doc. 10 at 9-10. The court addresses each
contention below.
A.

The ALJ considered the entire record and properly applied the three-part
pain standard.
As it relates to Peterson’s contention of disabling pain, the ALJ found that

Peterson’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms.” (R. 22). However, the ALJ found also that
Peterson’s “statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the . . .
[RFC] assessment.” Id. Peterson disagrees and contends that the “ALJ
concentrated primarily on [Peterson’s] mental impairments as the basis for his
RFC findings” and that “the pain and fatigue documented in connection with his
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lupus treatment are significant and should have been considered under the
Eleventh Circuit pain standard.” Doc. 10 at 14. Moreover, Peterson contends
that “[w]hile the ALJ provided an extensive rationale for his findings as to
Plaintiff’s mental impairments, he virtually discounted that the . . . pain, fatigue,
and other symptoms from SLE would have a limiting effect.”2 Based on the
court’s review of the entire record, the court finds that the ALJ properly applied
the pain standard and that his decision is supported by substantial evidence.
As a threshold matter, the court notes that subjective complaints of pain
alone are insufficient to prove disability. See 20 C.F.R. § 416.929(a); see also
Holt, 921 F.2d at 1223. Rather, 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. It is undisputed that
Peterson has underlying medical conditions and, in fact, the ALJ found as such in
Step Two. The disagreement centers on whether Peterson’s conditions can be
2

Peterson fails to cite the record nor does he discuss any evidence as to how his alleged
pain and fatigue caused him more limitations than the ALJ’s RFC. While “[i]t is wellestablished that the ALJ has a basic burden to develop a full and fair record[,] [n]evertheless, the
claimant bears the burden of proving that he is disabled, and consequently, he is responsible for
producing evidence in support of his claim.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003) (citations omitted).
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reasonably expected to cause the alleged pain Peterson claims. In that respect, to
support his contention that he suffers from disabling pain, Peterson alleges that he
is unable to work on a regular basis because the SLE causes joint pain daily and
that once a week the pain is so severe that it incapacitates him for three days. (R.
42, 53). Peterson further contends that the SLE causes his knees, ankles, and
wrists to swell, (R. 54), pain in his groin and ankle, (R. 42), and restricts him to
being able to only sit two to three hours a day, stand thirty-five minutes at a time,
lift ten pounds, and walk around a city block, (R. 43).
Unfortunately for Peterson, a review of the ALJ’s opinion and the medical
evidence shows that the ALJ properly considered the pain and fatigue documented
in connection with Peterson’s SLE. Specifically, the ALJ noted initially that
Peterson “has been diagnosed with [SLE] with discoid lesions, which causes
generalized fatigue, photosensitivity, and arthralgias.” (R. 18). However, the ALJ
then found that even though Peterson’s medically determinable impairments could
cause some of his symptoms, that Peterson’s statements concerning the intensity
and limiting effects were not credible to the extent they were inconsistent with the
RFC. (R. 22). Moreover, the ALJ stated that “[i]n terms of [Peterson’s]
allegations as to the severity of his symptoms and limitations, the [ALJ] does not
afford [Peterson’s] statements full credibility and finds they are not supported by
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the evidence of record,” id., specifically, Peterson’s paid work activities, daily
activities, and records from the Veterans Administration Medical Center
(“VAMC”).
The ALJ’s findings are supported by substantial evidence. First, as it relates
to paid work, Peterson testified that his joint pain prevents him from working on a
regular basis and that he has not engaged in “substantial gainful activity” since the
January 1, 2007, alleged onset date. (R. 18, 42). Peterson added that he receives
$122.00 from the VA and $200.00 in food stamps monthly and that he has no
additional monthly income. (R. 33). However, the ALJ confronted Peterson with
statements Peterson made to his medical providers which contradicted Peterson’s
contentions. Specifically, on August 18, 2008, Peterson’s treating physician at the
VAMC noted Peterson’s report that Peterson worked as a handyman, was able to
perform most activities, and that his pain was doing “quite well.” (R. 408-09).
Additionally, on February 19, 2009, Peterson again reported to the VAMC that “he
works as a handyman and has been able to perform most activities. He only
complains of occasional pain and some subjective feelings of instability while
walking on an uneven surface.” (R. 399). Notably, Peterson also stated again that
“his pain is doing quite well . . . .” Id. When the ALJ confronted Peterson with
this evidence, Peterson admitted that he “help[s] [his] cousin out every once in a
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while when [his cousin] invites [Peterson] to help him” and he gets paid $20.00 to
$40.00 depending on the job. (R. 34-35). In light of this evidence, the ALJ found
correctly that “the evidence shows [Peterson] has continued to be involved with
paid work activities that were not reported.” (R. 22).
While the ALJ noted correctly also that “[a]lthough [Peterson] engaged in
work activity after his alleged onset date, [Peterson’s] earnings did not exceed the
threshold for substantial gainful activity,” (R. 18), the Regulations are clear
nonetheless that “work . . . that you have done during any period in which you
believed you are disabled may show that you are able to work at the substantial
gainful activity level.” 20 C.F.R. § 404.1571. In other words, although Peterson’s
work for his cousin may fall short of substantial gainful activity, the ALJ must still
consider it, in addition to the medical and vocational evidence, to decide whether
Peterson has the ability to engage in substantial gainful activity.
This is precisely what the ALJ did. First, the ALJ relied, in part, on
Peterson’s Daily Activities Questionnaire in which Peterson stated that on an
average day he is able to take short walks, handle personal business and needs
(bathing, grooming, and dressing, on a regular basis), unless he is having severe
joint pain, cook, take his medications, clean, watch television, read, shop for
personal needs once a month, and watch and cooks for his sons on the weekends.
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(R. 136-138).
Second, the ALJ relied also on the extensive medical evidence from the
VAMC. In that regard, the evidence shows that on October 5, 2007, Peterson
visited the VAMC with complaints of a rash and pain in the ankles, shoulders,
knees, and fingers. (R. 214). The treating physician found no tenderness,
effusions, or instability in Peterson’s knees and no swelling or tenderness in his
ankles. (R. 216). The physician also noted that Peterson’s internal rotation of the
shoulders was “well preserved.” Id. The next visit to the VAMC occurred four
months later when, on February 17, 2008, Peterson visited the VAMC emergency
room for an ankle fracture he sustained when he jumped off a 30 foot ladder to
avoid a moving tree limb. (R. 441). This visit was unrelated to the ailments
Peterson claims makes him disabled and, in fact, supports the ALJ’s findings as it
shows that Peterson is capable of doing more than he claims. On April 3, 2008,
Peterson visited the VAMC for a follow-up on his ankle and everything “on his xrays . . . look[ed] in good position.” (R. 428). The record is unclear whether the
VAMC removed the cast on April 3 or earlier. In any event, four days later, on
April 7, 2008, Peterson contacted the VAMC to report that his leg was still
swollen and that he could not walk even though he was no longer in a cast. (R.
427). Notably, further undermining Peterson’s contentions of disabling pain, six
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months after Peterson fractured his ankle, on August 18, 2008, his treating VAMC
physician stated that “[o]ver the interim he has returned to work; he works as a
handyman and has been able to perform most activities.” (R. 408).
Peterson had four other visits to the VAMC for alleged pain due to his
regular ailments. The first occurred on July 25, 2008, during which the VAMC
noted the Peterson had new and active discoid lesions in both arms, and several in
his scalp. (R. 417). However, Peterson had no swelling or tenderness in the hands
or elbows and no tenderness, effusions or instability in his knees. Id. The second
visit occurred five months later when, on December 26, 2008, Peterson visited the
VAMC emergency room complaining of a three day battle with joint pain, sore
throat, cough, and cold. (R. 407). Critically, Peterson admitted he had not taken
his medications for three days. (R. 405). The treating physician noted some mild
inflamation in the finger joints, no effusion of elbows, knees, and ankles, and
released Peterson the same day in stable condition. (R. 405-06). The third visit
occurred on February 19, 2009, when Peterson returned to the VAMC for a
follow-up visit during which he complained of occasional pain. (R. 399). Finally,
Peterson visited the VAMC on February 27, 2009, complaining of eye irritation
from paint flakes that flew in his eye while scraping paint. (R. 390).
Based on the court’s own review, the VAMC medical records support the
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ALJ’s findings that Peterson’s allegations of pain are not supported by the medical
evidence. First, as to Peterson’s contention that the ALJ “discounted that
[Peterson’s] pain, fatigue, and other symptoms from the SLE would have a
limiting effect,” doc. 10 at 10, the court disagrees because the ALJ had sufficient
medical evidence to support his RFC determination and to discount Peterson’s
alleged limitations. For example, while Peterson contends that the joint pain
prevents him from working on a regular basis, the record shows that Peterson is
able to work as a handyman. (R. 408). In fact, although it is unfortunate that
Peterson fell from a 30 foot ladder, the accident shows that Peterson can climb a
ladder to engage in work activity and belies his contention that he suffers from
severe disabling joint pain. Moreover, Peterson admitted also to engaging in daily
activities (short walks, handling personal business, cooking, cleaning, and
personal needs), (R. 136), that further support the ALJ’s decision to discredit
Peterson’s contention of disabling pain. Significantly, these activities are
consistent with Peterson’s statements to VAMC physicians on multiple occasions
that he was doing “quite well.” (R. 399, 409). In fact, the VAMC records contain
no reports from Peterson that he is suffering from disabling pain or that he is
unable to work because of pain. Finally, as to Peterson’s contention that the ALJ
refused to consider his pain, the court notes that the ALJ placed additional
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limitations on Peterson’s light work RFC, i.e., no climbing of ladders, ropes, and
scaffolds or exposure to hazards in the work place. (R. 21). Accordingly, the
ALJ’s RFC determination is supported by substantial evidence.
B.

The ALJ Properly Considered the Opinion of the Vocational Expert
Peterson’s final contention is that the ALJ failed to properly consider the

opinion of the VE because “the ALJ’s findings including the expectation that
Plaintiff would miss one to two days per month due to exacerbation of psychiatric
symptoms would rule out the unskilled representative occupations cited by the
ALJ.” Doc. 10 at 10. Moreover, Peterson contends that “based on the medical
evidence of record and testimony, his absences would exceed this acceptable level
and he would thus be incapable of performing continuous SGA.” Id. Notably,
Peterson fails to cite any medical evidence or testimony to support his contention
that he would miss more than two days the ALJ presented in his hypothetical to
the VE. In the ALJ’s hypothetical, the ALJ asked the VE to consider whether an
individual, who in addition to other limitations, “may be expected to miss one or
two days per month due to exacerbation of psychiatric symptoms,” could perform
other full-time work which exists in the economy and the VE responded, yes. (R.
58). The VE stated further that
[a]bsenteeism of one, but not six, say two days per month, and for an
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unskilled entry level worker there is often a probationary period
[INAUDIBLE] onset, which would vary for industry and even for
employer, but it could be up to three months. During a probationary
period absenteeism for any reason is typically not tolerated. Beyond
one, but definitely no more than two days per month.
(R. 60). The VE then identified three jobs that Peterson could perform within the
limitations set forth by the ALJ, i.e., an assembler, a sorter, and a material
handler. (R. 58). Significantly, contrary to Peterson’s contention, the ALJ relied
on the VE’s testimony because the ALJ explicitly stated that “[b]ased on the
testimony of the vocational expert, the [ALJ] concludes that . . . [Peterson] is
capable of making a successful adjustment to other work that exists in significant
numbers in the national economy.” (R. 25). In other words, the evidence does not
support Peterson’s contention that the ALJ failed to properly consider that VE’s
opinion.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Peterson is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. The final decision
of the Commissioner is, therefore, AFFIRMED. A separate order in accordance
with this memorandum of decision will be entered.

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Done the 9th day of July, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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