Ervin v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 06/11/12. (CVA)

FILED
2012 Jun-11 AM 11:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE J. ERVIN, JR.,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
2:11-cv-2579-AKK

MEMORANDUM OPINION
Plaintiff Willie J. Ervin, Jr. (“Ervin”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review
of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). In light of the Administrative Law Judge’s (“ALJ”)
failure to provide sufficiently an explanation of his reasoning based on the
objective medical evidence, this court finds that the ALJ’s decision - which has
become the decision of the Commissioner - is not supported by substantial
evidence. Therefore, the court will REVERSE and REMAND the decision
denying benefits to the ALJ for him to reach a disability determination based on

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the complete medical record.
I. Procedural History
Ervin filed his application for Title II disability insurance benefits and Title
XVI Supplemental Security Income on May 21, 2007, alleging a disability onset
date of August 5, 2006. (R. 74). Ervin alleges that he is unable to work due to
“arthritis, gout, no cartilage in knees,” and high blood pressure. (R. 79). After the
SSA denied his applications on June 28, 2007, (R. 34), Ervin requested a hearing
on July 3, 2007, (R. 46), which he received on August 12, 2009, (R. 22). At the
time of the hearing, Ervin was 46 years old, (R. 23), had three years of college, (R.
23-24), and past relevant work that included medium and unskilled work as a mail
inserter, heavy and unskilled work as a machine tender, and medium and
semiskilled work as an industrial truck or forklift operator. (R. 28). Ervin has not
engaged in substantial gainful activity since August 5, 2006. (R. 15, 79).
The ALJ denied Ervin’s claims on November 4, 2009, (R. 10), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on May 17, 2011, (R. 1-5). Ervin then filed this action pursuant to
section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
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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
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
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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
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.

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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
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, Ervin 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

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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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
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

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as true the pain testimony of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
The ALJ initially determined that Ervin had not engaged in substantial
gainful activity since his alleged onset date, and therefore met Step One. (R. 15).
Next, the ALJ acknowledged that Ervin’s severe impairments of degenerative joint
disease/osteoarthritis of the knees, diabetes mellitus, and hypertension met Step
Two. Id. The ALJ then proceeded to the next step and found that Ervin did not
satisfy Step Three since he “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” Id.
Although the ALJ 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 Ervin
has the RFC [residual functional capacity] to perform sedentary work
[ ] except that he requires a sit and stand option.
****
Medical records from Cooper Green Hospital confirm treatment for
hypertension, diabetes mellitus, and osteoarthritis of the knees, which
is confirmed by x-rays. However, there is no mention of any
complications related to [Ervin’s] hypertension or diabetes such as
end organ damage, ulcers, or neuropathy. While [Ervin] underwent a
right knee arthroscopy in August 2006, afterwards he was described
as stable with an independent gait and mobility, as well as the ability
to put pressure on both knees.
****
After careful consideration of the evidence, the undersigned finds that
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[Ervin’s] medically determinable impairments could reasonably be
expected to cause the alleged symptoms, however, [Ervin’s]
statements concerning intensity, persistence and limiting effects of
these symptoms are not entirely credible and would not preclude
sedentary work, as described above. The undersigned is in no way
implying that [Ervin] does not experience some limitations due to his
impairments. However, the limitations alleged [ ] that find support
within the objective medical record have been accommodated for by
the above RFC. Specifically, [Ervin] never underwent knee
replacement surgery and does not seek any ongoing treatment for any
condition. [Ervin’s] osteoarthritis in the knees with motion issues and
edema would render him unable to perform more than seated work
with occasional standing as afforded by sedentary work with a
sit/stand option. However, there is nothing in the objective medical
record which would support a complete inability to sit, stand, and/or
walk.
(R. 16, 17). In light of Ervin’s RFC and exertional limitations, the ALJ held that
Ervin was “unable to perform any past relevant work.” (R. 17). The ALJ then
moved on to Step Five where he considered Ervin’s age, education, experience,
and RFC, and determined that “jobs . . . exist in significant numbers in the national
economy that [Ervin] can perform.” (R. 18). As a result, the ALJ answered Step
Five in the negative, and determined that Ervin is not disabled. (R. 19); see also
McDaniel, 800 F.2d at 1030. It is this finding that Ervin challenges.
V. Analysis
Ervin contends that the ALJ committed reversible error by failing to (1)
comply with Social Security Rulings (“SSR”) 96-8p, 83-12, and 96-9p, (2) explain

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why Ervin did not qualify for a closed period of disability and ignoring the
objective medical evidence, (3) properly develop the record through a medical
source opinion, and (4) assign the proper weight to consulting physician Dr. Guy
Dewes’ opinion. Doc. 8 at 5-8. For the reasons stated below, this court finds that
the ALJ’s opinion is not supported by substantial evidence and that remand is
warranted.
A.

The ALJ’s RFC finding
As it relates to the SSRs, Ervin contends that the ALJ determined his RFC

improperly by failing to conduct a “function by function analysis” as required by
SSR 96-8p,2 determine the amount of time Ervin can spend in the sit and stand
option as required by SSR 83-12,3 and utilize SSR 96-9p’s4 guidelines for RFCs

2

SSR 96-8p states that the “RFC assessment must first identify the individual’s functional
limitations or restrictions and assess his or her work-related abilities on a function-by-function
basis, including the function in paragraphs (b), (c), and (d) or 20 C.F.R. 404.1545 and 416.945.
Only after that may the RFC be expressed in terms of the exertional levels of work, sedentary,
light, medium, heavy, and very heavy.” Relevant here is the physical abilities function in
paragraphs (b) of 20 C.F.R. §§ 404.1545 and 416.945, that state that the Commissioner will
assess a claimant’s physical limitations, i.e., the ability to sit, stand, walk, lift, carry, push, pull,
reach, handle, stoop, and crouch, and then determine the claimant’s RFC for regular and
continuing work activity.
3

SSR 83-12 provides guidelines for determining a claimant’s RFC where the exertional
limitations are within a range of work or between ranges of work.

SSR 96-9p provides guidelines when assigning an RFC for less than a full
range of sedentary work.
4

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that are less than a full range of sedentary work.5 Doc. 8 at 5-6. In a nutshell,
Ervin takes issue with the ALJ’s decision regarding Ervin’s ability to perform
sedentary work with a sit/stand option. Basically, Ervin contends that the ALJ’s
decision is contrary to the three SSRs Ervin references.
Based on the court’s review of the three SSRs, the court disagrees with
Ervin as it relates to his diabetes and hypertension. Contrary to Ervin’s
contentions, the ALJ correctly determined that the objective medical evidence
failed to reveal complications regarding Ervin’s diabetes mellitus and
hypertension. Id. In fact, this court’s review of the record revealed limited
information regarding Ervin’s diabetes diagnosis. Moreover, as it relates to the
hypertension, Ervin was non-complaint with his high blood pressure medicine.
(R. 147). Significantly, no evidence exists that shows that medication would not
control Ervin’s hypertension. See R. 131. Therefore, the ALJ’s decision that
Ervin’s diabetes and hypertension do not preclude him from sedentary work with a
sit and stand option is supported by substantial evidence.
However, as to Ervin’s knee pain, the court finds that the ALJ’s decision is

5

Sedentary work “involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties.” 20 C.F.R. § 404.1567(a).
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not supported by substantial evidence. As stated earlier in section V., supra, the
full extent of the ALJ’s analysis is that (1) Ervin’s “statements concerning the
intensity, persistence, and limiting effects of [his symptoms] are not entirely
credible and would not preclude sedentary work,” (2) the limitations supported by
objective medical evidence “were accommodated for by the above RFC,” (3)
Ervin’s osteoarthritis, swelling, and limited range of motion limit him to the RFC
the ALJ assigned, (4) the objective medical evidence does not support a “complete
inability” to sit, stand, and/or walk, and (5) Ervin failed to undergo knee surgery
or continued medical treatment. (R. 16, 17). Unfortunately, the ALJ’s RFC and
non-disability findings contain no meaningful reference to the medical record and
fail to explain sufficiently the ALJ’s reasoning for his findings. As a result, this
court does not have the benefit of the ALJ’s full reasoning making review at this
juncture inappropriate. Lawton v. Comm’r, 431 F. App’x 830, 832 (11th Cir.
2011) (“[W]e will reverse where the ALJ fails to apply the correct law or to
provide us with sufficient reasoning to allow us to determine that the proper legal
analysis has been conducted.”), citing Keeton v. Dep’t of Health & Human Servs,
21 F.3d 1064, 1066 (11th Cir. 1994).
Although the court does not have the benefit of the ALJ’s full analysis and
thus offers no opinion on whether Ervin is disabled, the court notes that the
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medical record contains relevant objective medical evidence regarding Ervin’s
knee pain and addresses the surgery issue the ALJ relied on, in part, for his
decision. Specifically, in chronological order, the evidence shows that on August
15, 2006, a Cooper Green Hospital (“Cooper Green”) radiologist reviewed x-rays
of Ervin’s knees and opined that Ervin had “degenerative joint disease involving
the knees.” (R. 135). The next day, Cooper Green admitted Ervin for a right knee
arthroscopy and discharged Ervin that same day in “stable” condition and as “able
to place pressure on both knees.” (R. 131).
On September 21, 2006, treating physician Dr. Martin Bohnenkamp
(“Bohnenkamp”) evaluated Ervin for, among other things, “weakness and pain [in
his] knees [and] feet,” and frequent gout flare ups. (R. 147). Dr. Bohnenkamp
noted that Ervin was following a prescribed drug regimen for his gout and feet and
knee pains. Id. A month later, on October 13, 2006, Dr. Bohnenkamp evaluated
Ervin again and noted no changes in Ervin’s drug regimen and that Ervin still
suffered from severe knee pain and gout flare ups twice per month. (R. 145). Dr.
Bohnenkamp referred Ervin to a rheumatologist and recommended that he return
in six to eight weeks. Id. On January 18, 2007, Dr. Bohnenkamp examined Ervin
again during a routine visit and noted that Ervin was “‘doing good’ until [two
weeks] ago when [Ervin’s right] knee became swollen.” (R. 144). Dr.
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Bohnenkamp again referred Ervin to a rheumatologist. Id.
A month later, on February 5, 2007, a rheumatologist at Cooper Green
evaluated Ervin for “knee and joint pain” and observed that Ervin’s right knee was
stiff, warm, swollen, and throbbing. (R. 142). The rheumatologist ordered x-rays,
(R. 143), which revealed “fairly prominent” and “more extensive web like”
calcifications, “mild spurring with joint space narrowing medially” in the right
knee, severe and mild joint spurring in the left knee, prominent osteoarthritis in the
right knee and ankle, and “widening of the medial malleolar talar space in the left
ankle,” (R. 134). Two weeks later, the rheumatologist examined Ervin again and
noted that Ervin’s knee started throbbing a week earlier and that Ervin had
decreased swelling in his ankles. (R. 140). The rheumatologist referred Ervin to
an orthopedic surgeon and recommended that Ervin continue his steroid treatment
for an additional week and take Tylenol for his arthritis pain. (R. 141).
On March 20, 2007, Ervin received an MRI of his left knee that revealed (1)
“severe cartilage loss in the medial joint compartment” and some loss in the lateral
joint compartment, (2) “complete degenerative maceration of the medial meniscus;
oblique tear posterior horn lateral meniscus,” (3) “chronic appearing
deficiency/tear of the anterior cruciate ligament,” (4) small joint effusion, and (5)
small popliteal cyst. (R. 148). Two months later, on May 14, 2007, the
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rheumatogist evaluated Ervin again and noted that Ervin suffered from knee pain,
that Ervin had good range of motion in his left knee, and that Ervin experienced
pain during testing of his right knee’s range of motion. (R. 139). The
rheumatologist recommended that Ervin continue taking Tylenol and Aleve for his
knee and ankle pain and ordered again an orthopedic consultation. Id. Later that
month, orthopaedic surgeon Dr. James Floyd (“Dr. Floyd”) evaluated Ervin’s knee
pain and noted that Ervin had “significant edema” in his right knee, swelling in his
right ankle, and pain that rated a seven on a ten point scale. (R. 137).
Significantly, Dr. Floyd opined that Ervin was a “poor surgical risk, potential for
post-operative complications [with] wound and rehab[ilitation]. [ ] Needs to be
medically optimal with edema.”6 Id. The rest of the progress note is illegible.
On June 11, 2007, Dr. Bohnenkamp examined Ervin again and opined that
Ervin continued to have knee pain, and that a knee replacement was planned
although “there are concerns about wound healing, rehab., [blood pressure] and
edema.” (R. 136). Ervin’s last visit with Dr. Bohnenkamp occurred on July 11,
2007, when Dr. Bohnenkamp noted that Ervin continued to have knee pain. (R.
166).

6

In other words, contrary to the ALJ’s finding, Ervin did not have surgery because of the
risk of complications and not because he did not need surgery.
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Based on this court’s review of the medical evidence, the court cannot
determine whether the ALJ’s opinion that Ervin is not disabled is supported by
substantial evidence because the ALJ provided inadequate reasoning and failed to
substantiate his finding with specific references to the objective medical record.
For example, while the ALJ references the “objective medical record,” (R. 17), he
does not identify the medical evidence he relied on to conclude that Ervin’s knee
pain does not render him disabled. Although the court recognizes that it is not
charged with reconsidering the facts, the ALJ’s opinion must nonetheless
sufficiently reflect that the ALJ considered the facts fully. Based on this record,
this court cannot ascertain whether substantial evidence supports the ALJ’s
decision. Therefore, to maintain the integrity of this court’s judicial review,
remand is warranted for the ALJ to make a RFC finding and disability
determination that contains sufficient explanations and is substantiated by the
objective medical evidence.
B.

Dr. Dewes’ consultative examination
Finally, Ervin contends that the ALJ improperly rejected the opinion of

consultative examiner Dr. Guy Dewes (“Dr. Dewes”), who on July 15, 2009,
performed a physical capacities evaluation and opined that Ervin could sit and
stand for one hour in an 8-hour work day, lift 10 pounds, reach, bend, and use
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gross and fine manipulation occasionally, but could never push, pull, climb,
balance, or stoop. (R. 169). Dr. Dewes diagnosed Ervin with severe
osteoarthritis, gouty arthritis, diabetes mellitus, and hypertension. Id.
Significantly, Dr. Dewes opined that Ervin could not “work at any job eight hours
a day, forty hours a week, fifty weeks a year, even if [the job] were of a light or
sedentary nature,” and that Ervin was “totally and permanently disabled by his
arthritic problems.” (R. 176). The ALJ gave Dr. Dewes’ opinion “little weight”
because Dr. Dewes (1) “examined [Ervin] one time,” (2) was not a treating
physician, (3) based his opinion on Ervin’s subjective statements, and (4) was
solicited by Ervin’s attorney. (R. 17). While these reasons have merit, they
overlook that the regulations provide also that the weight given to medical
opinions depends also on the supportability and consistency of the medical
opinion. 20 C.F.R. § 404.1527(d). In that respect, although it is undisputed that
Dr. Dewes was not Ervin’s treating physician and evaluated Ervin once at the
request of Ervin’s lawyer, remand is warranted because the ALJ failed to support
fully his decision to assign “little weight” to Dr. Dewes’ opinion. On remand, the
ALJ should explain whether the medical evidence is consistent or inconsistent

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with Dr. Dewes’ reasoning for finding Ervin disabled.7
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Ervin is not disabled is not based on substantial evidence. Therefore, the
Commissioner’s final decision is REVERSED and REMANDED for the ALJ to
make a disability determination based on the complete medical record. A separate
order in accordance with the memorandum of decision will be entered.
Done the 11th day of June, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

7

Because remand is warranted here, the court declines to consider Ervin’s argument that
the ALJ failed to develop the record.
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