Swift v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 3/11/2013. (AVC)
2013 Mar-11 PM 12:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CURTIS EDWARD SWIFT,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Case No.: 2:11-CV-03137-RDP
MEMORANDUM OF DECISION
Plaintiff Curtis Edward Swift brings this action pursuant to Section 1631(c) of the Social
Security Act (the "Act"), 42 U.S.C. § 1383(c), seeking review of the decision of the Commissioner
of Social Security ("Commissioner") denying his application for supplemental security income
("SSI"). Upon careful review, the court finds that the ALJ's decision is due to be affirmed.
I. Proceedings Below
Plaintiff filed his application for SSI on April 27, 2009, alleging a disability onset date of
March 17, 2009. (R. 48, 107). Plaintiff claimed that he could not work because of a back injury
resulting from a motor vehicle accident. (R. 110-11). Plaintiff's application was denied initially on
August 31, 2009 (R. 49), and on September 30, 2009, he requested a hearing before an
administrative law judge ("ALJ"). (R. 59). Plaintiff's request was granted and a video hearing was
held on December 15, 2010 in Birmingham, Alabama. (R. 27-47, 62). The ALJ ultimately
determined that Plaintiff had not been disabled within the meaning of the Act through February 15,
2011, the date of her decision. (R. 16-23). On March 1, 2011, Plaintiff appealed the ALJ's decision
to the Social Security Administration Appeals Council (the "Appeals Council"). (R. 11). The
Appeals Council denied Plaintiff's request for review of the ALJ's decision (R. 1), and that decision
became the final decision of the Commissioner, and therefore a proper subject of this court's
appellate review. 42 U.S.C. § 1383(c).
At the time of the hearing, Plaintiff was 42-years old and had a twelfth-grade education. (R.
31, 115). Plaintiff testified that after high school he joined the Navy1 and completed schoolwork in
retail sales. (R. 31-32). Plaintiff had past work history as an automobile detailer and janitor. (R.
Plaintiff was involved in a motor vehicle accident on March 17, 2009. (R. 160). Plaintiff
was seen at the University of Alabama at Birmingham Hospital ("UAB"). (Id.). The attending
radiologist at UAB reported that Plaintiff's X-rays indicated normal cervical spine alignment and no
evidence of fracture or subluxation, except for minimal loss of height on the front side of three
vertebrae in Plaintiff's lower back, which possibly indicated Scheuermann's disease (i.e., curving of
the spine that causes a bowing or rounding of the back). (R. 158-59, 183-84). Plaintiff's treating
physician at UAB found only minimal cervical spine and lumbar spine tenderness, no thoracic spine
(i.e., vertebrae in the middle of the back) tenderness, and no evidence of trauma. (R. 160). Plaintiff
was diagnosed with cervical strain, lumbar strain, and single episode of hypertension. (R. 161).
Plaintiff was discharged with anti-inflammatories, muscle relaxers, and a cervical and lumbar spine
strain instruction sheet. (R. 160).
On April 18, 2009 and May 14, 2009, Plaintiff presented at the MedplexMD Medical Clinic
("MedplexMD") with complaints of back pain. (R. 179). Plaintiff was prescribed a back brace and
During the hearing, when questioned by the ALJ if he "ha[d] an honorable discharge," Plaintiff
responded, "no, ma'am." When asked if it was "a dishonorable or honorable discharge from the
Navy," Plaintiff responded, "[a]ll of them." (R. 31).
acetaminophen with codeine, as well as Loritab. (R. 179-81). Plaintiff was instructed to return in
ten days. (Tr. 179). Plaintiff missed his follow-up appointments with MedplexMD and did not refill
his prescriptions. (R. 188).
On August 22, 2009, Plaintiff received a consultative examination from Dr. David Brower.
(R. 202). During this examination, Plaintiff indicated to Dr. Brower that he was fully independent
for his daily activities and housework, and that he was able to enjoy walks through the park. (Id.).
Dr. Brower observed that Plaintiff was able to move about, get on and off the exam table, and take
his shoes on and off without difficulty. (R. 203). Plaintiff was able to bend forward at the waist at
a ninety-degree angle, and he was able to bend at the waist both sideways and backwards at a twentyfive-degree angle. (R. 204). Dr. Brower found that Plaintiff had spasms in the left lower back and
diagnosed lumbrosacral radiculopathy (nerve irritation caused by damage to the disc in between
vertebrae). (R. 204-05).
At his hearing, Plaintiff testified that on a scale of one to ten, with one being the least and
ten being the greatest amount of pain possible, his pain is around nine on an average day. (R. 42).
Plaintiff stated that he has lower back pain that shoots down through his leg and causes him to lose
bowel control. (R. 36).
Following his hearing, Plaintiff received a second consultative examination with Dr. Jack
Zaremba. (R. 207). Dr. Zaremba found Plaintiff had (1) some tenderness and spasms when pressure
was applied to his back, and (2) a limited range of motion because of his back pain. (R. 208). This
led Dr. Zaremba to diagnose Plaintiff with degenerative disc disease of the lower back, possible
Scheuermann's disease, lumbar radiculopathy with parathesias, weakness of the lower left leg,
cervical strain, hypertension, and left shoulder trapezial pain. (R. 208-09). Dr. Zaremba determined
that Plaintiff experienced pain to such a degree that it would distract him from adequate performance
of daily activities or work. (R. 211).
II. ALJ Decision
Determination of disability under the Act requires a five step analysis. See 20 C.F.R. §
404.1520(a). First, the ALJ must determine whether the claimant is engaged in any substantial
gainful activity, i.e., activity done for pay or profit which involves significant mental or physical
activity. See 20 C.F.R. § 404.1520(b). Second, if the claimant is not engaged in any such activity,
the ALJ must determine whether the claimant has a medically determinable impairment or a
combination of medical impairments that is "severe," i.e., an impairment which significantly limits
the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). Third,
the ALJ must determine whether the claimant's impairment or combination of impairments meets
or medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1
(the "Listings"). See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the
claimant is declared disabled. If the claimant does not fulfill the requirements necessary to be
declared disabled under the third step, the ALJ may still find disability under the next two steps of
Before proceeding to steps four and five, the ALJ must first determine the claimant's residual
functional capacity ("RFC"), which refers to the claimant's ability to work despite his impairments.
20 C.F.R. § 404.1520(e). The ALJ determines the claimant's RFC based on all the relevant medical
and other evidence in the case record. 20 C.F.R. § 404.1545. In the Eleventh Circuit, if the claimant
alleges disabling pain, the ALJ must evaluate the claimant's subjective pain testimony using the
standard articulated in Hand v. Heckler, 761 F.2d 1545 (11th Cir. 1985), and its progeny.
Once the ALJ has determined the claimant's RFC, the ALJ moves on to the fourth step of the
analysis, where a determination is made about whether the claimant is capable of performing past
relevant work. 20 C.F.R. § 404.1520(f). If the claimant is determined to be capable of performing
past relevant work, the claimant is deemed not to be disabled. However, if the ALJ finds the
claimant unable to perform past relevant work, the analysis proceeds to the fifth and final step in
which the ALJ must determine whether the claimant is able to perform any other work. 20 C.F.R.
§ 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the existence,
in significant numbers, of jobs in the national economy that the claimant can do given his RFC, age,
education, and work experience. Id.
To determine the number of jobs that a claimant can perform, the ALJ may apply the Medical
Vocational Guidelines (the "grids"), found in 20 C.F.R. § 404, Subpart P, Appendix 2, or consult a
vocational expert ("VE") by "posing hypothetical questions to the VE to establish whether someone
with the claimant's impairments would be able to find employment." Watson v. Astrue, 376 F.
App'x. 953 (11th Cir. 2011) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1239-40 (11th Cir. 2004)).
In this case, the ALJ concluded that Plaintiff was not under a disability at any time relevant
to her decision. (R. 23). The ALJ found that: Plaintiff had not engaged in any substantial gainful
activity since his alleged onset date of April 27, 2009; his degenerative changes of the lumbar spine
constituted a severe impairment; however, his impairment did not meet or medically equal one of
the listed impairments in the Listings (R. 18-20). The ALJ specifically noted that Plaintiff's
impairments were not attended by any of the criteria described in the revised Musculoskeletal
Listings in Section 1.00 of the Listings. (R. 20).
In determining Plaintiff's RFC, the ALJ found that Plaintiff's impairment could reasonably
be expected to cause some of his alleged symptoms, but his statements concerning the intensity,
persistence, and limiting effects of those symptoms were not credible because they were inconsistent
with the objective medical evidence. (R. 20-21). The ALJ further found that although Plaintiff was
unable to return to his past relevant work, there were a significant number of jobs in the national
economy that Plaintiff could perform, given his age, education, work experience, and RFC. (R. 2122). Accordingly, the ALJ concluded that Plaintiff retained the RFC to perform light work that does
not require any climbing of ladders, ropes or scaffolds; more than occasional stooping, kneeling,
crouching, crawling, or climbing of stairs or ramps; and no concentrated exposure to workplace
III. Plaintiff's Argument
Plaintiff advances two arguments for remand or reversal: (1) the ALJ should have credited
his subjective pain testimony and found him disabled because of his pain (Pl.'s Mem. 8-9); and (2)
the ALJ arbitrarily substituted her own judgment for that of Dr. Zaremba. (Pl.'s Mem. 10).
IV. Standard of Review
Judicial review of disability claims under the Act is limited to whether the Commissioner's
decision is supported by substantial evidence and whether the correct legal standards were applied.
42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). "Substantial
evidence is less than a preponderance, but rather such relevant evidence as a reasonable person
would accept as adequate to support a conclusion." Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). While less than a preponderance, substantial
evidence is also "more than a scintilla, i.e., evidence that must do more than create a suspicion of the
existence of the fact to be established." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). The
Commissioner's factual findings are conclusive when supported by substantial evidence. Doughty
v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). When supported by substantial evidence, the
Commissioner's factual findings must be affirmed, even if the record preponderates against the
Commissioner's findings. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004);
see also Martin, 894 F.2d at 1529. Legal standards are reviewed de novo. Moore, 405 F.3d at 1211.
For the reasons stated below, the court concludes that the ALJ's decision is supported by
substantial evidence and that the ALJ correctly applied the law in reaching her decision. Regarding
Plaintiff's specific allegations, the court determines that there is substantial evidence to support the
ALJ's determination that Plaintiff's condition could not reasonably be expected to cause his alleged
pain, and the ALJ did not arbitrarily substitute her own judgment for that of Dr. Zaremba.
Substantial Evidence Supports the ALJ's Application of the Pain Standard.
Plaintiff contends that the ALJ should have credited his subjective pain testimony and found
him disabled because of his pain. (Pl.'s Mem. 8-9). In his hearing before the ALJ, Plaintiff testified
that lower back pain and shooting pain through his leg causes him to lose bowel control, and during
the day his pain, on a scale of one to ten, is around nine. (R. 36, 42). Plaintiff's argument seems to
indicate that he believes the court's review of the ALJ's decision on this issue is de novo; it is not.
The court's review is limited to whether the ALJ correctly applied the Eleventh Circuit's standard
when evaluating Plaintiff's subjective pain complaints and whether the ALJ's determination is
supported by substantial evidence. The court finds that the ALJ applied the correct legal standard
and there is substantial evidence to support the ALJ's decision to discredit Plaintiff's subjective pain
The rule in the Eleventh Circuit is well-established: a claimant seeking to show disabling
pain must present (1) evidence of an underlying medical condition, and (2) either objective medical
evidence that confirms the severity of the alleged pain arising from that condition, or that the
objectively determined medical condition is of such severity that it can be reasonably expected to
give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Hand v.
Heckler, 761 F.2d at 1548 (quoting S.Rep. No. 466 at 24); see also Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986). If the ALJ finds that a claimant meets this threshold requirement, the
ALJ may still discredit a claimant's subjective allegations of disabling pain, but the ALJ "must
clearly articulate explicit and adequate reasons for discrediting the claimant's allegations." Dyer v
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); see also Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991), Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). Failure to articulate the
reasons for discrediting subjective pain testimony requires, as a matter of law, that the testimony be
accepted as true. Holt, 921 F.2d at 1223; Cannon v. Bowen, 858. F.2d 1541, 1545 (11th Cir. 1988).
In the instant case, the ALJ found that Plaintiff does have an underlying medically
determinable impairment that could reasonably be expected to cause some of the alleged symptoms,
but discredited Plaintiff's testimony regarding the intensity, persistence, and limiting effects of those
symptoms. (Tr. 20). Therefore, the question before the court is whether the ALJ articulated explicit
and adequate reasons for discrediting Plaintiff's allegations.
The ALJ explicitly articulated eight reasons for discrediting Plaintiff's subjective pain
testimony: (1) all of Plaintiff's treatment had been conservative in nature, with no referrals for
surgery or other aggressive measures; (2) the radiologist determined that Plaintiff's X-rays showed
only minimal degenerative changes in his lumbar spine; (3) Plaintiff's medical records from
MedplexMD and his consultative examinations with Dr. Brower and Dr. Zaremba indicate that
Plaintiff's pain is related more to spasm and that there are no neurological abnormalities associated
with Plaintiff's spine; (4) Plaintiff did not require use of a cane, except temporarily in conjunction
with a sprain of his right Achilles tendon; (5) Plaintiff missed follow-up appointments and failed to
fill his prescriptions; (6) Plaintiff obtained no medical treatment for any condition after May 2009;
(7) Plaintiff did not require any emergency care or inpatient management for pain control; and (8)
Plaintiff did not utilize a pain control device such as a transcutaneous electrical nerve stimulation
("TENS") unit. (R. 21). Taken together, a reasonable person may find these reasons adequate to
support the conclusion that Plaintiff's pain is not as severe as he alleges. Therefore, the ALJ's
decision to discredit Plaintiff's testimony regarding the severity and persistence of his pain is
supported by substantial evidence.
The ALJ Did Not Arbitrarily Substitute Her Own Judgment for That of the
Plaintiff alleges that the ALJ arbitrarily substituted her own judgment for that of Dr.
Zaremba, a non-treating physician. (Pl.'s Mem. 10-11). In support of this claim, Plaintiff points to
inconsistencies between the ALJ's determination of Plaintiff's RFC and Dr. Zaremba's findings. Id.
This argument misses the mark. A review of the record reveals that the ALJ did consider Dr.
Zaremba's opinion. For example, while determining Plaintiff's RFC, the ALJ observed that Dr.
Zaremba did not recommend surgery or other aggressive measures to treat Plaintiff's condition and
that Dr. Zaremba found no neurological abnormalities related to Plaintiff's spine. (R. 21). However,
the ALJ did not blindly accept Dr. Zaremba's findings when they conflicted with other evidence in
the record, nor was she required to do so. For example, while the ALJ did acknowledge Dr.
Zaremba's diagnosis of lumbar radiculopathy, she also noted that this diagnosis conflicted with the
report of Plaintiff's treating physicians at UAB, who examined Plaintiff's X-rays and found only
minimal degenerative changes to his lumbar spine. (R. 21, 160). Indeed, to the extent that the ALJ's
determination departed from Dr. Zaremba's findings, the difference does not reflect an attempt by
the ALJ to substitute her opinion for that of a non-treating physician, but rather is the result of the
ALJ giving more weight to the opinions of treating physicians over the opinion of Dr. Zaremba, a
non-treating physician. An ALJ's decision to give more weight to a treating physician than to a nontreating physician is not only permissible, it is required by the regulations absent a sufficient reason
for not doing so. See 20 C.F.R. §§ 404.1527(d) and 416.927(d) (explaining that in the evaluation
of medical opinions from "acceptable medical sources," treating physicians are given more weight
than non-treating physicians). Therefore, the court does not find that the ALJ substituted her
judgment for that of a medical expert, but rather followed the instructions set by the regulations to
accord more weight to the opinions of treating physicians over non-treating physicians.
The court concludes that the ALJ's determination that Plaintiff is not disabled is supported
by substantial evidence and that proper legal standards were applied in reaching this determination.
The Commissioner's final decision is, therefore, due to be affirmed and a separate order in
accordance with this memorandum of decision will be entered.
DONE and ORDERED this
day of March, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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