George v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION and ORDER; the decision of the Commissioner is affirmed as more fully set out in order; costs are taxed against claimant. Signed by Judge C Lynwood Smith, Jr on 07/20/12. (SPT )

FILED
2012 Jul-20 PM 03:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JAMES DARREN GEORGE,
Claimant,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. CV-11-S-3518-M

MEMORANDUM OPINION AND ORDER
Claimant, James Darren George, commenced this action on September 29,
2011, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse
decision of the Commissioner, affirming the decision of the Administrative Law
Judge (“ALJ”) denying his claim for a period of disability and disability insurance
benefits. For the reasons stated herein, the court finds that the Commissioner’s ruling
is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ: (1) improperly considered claimant’s receipt of
unemployment benefits; (2) improperly evaluated claimant’s subjective complaints
of pain; (3) improperly considered the opinion of claimant’s treating physician; and
(4) failed to pose a question to the vocational expert that included all of claimant’s
limitations. Upon review of the record, the court concludes those contentions are not
correct.
A.

Unemployment Compensation
All of claimant’s arguments ultimately relate back to his first argument, about

unemployment benefits, so that is where the discussion should begin. During the
March 4, 2010 administrative hearing, claimant acknowledged that he was currently
receiving unemployment compensation benefits, and had been receiving them since
at least since the beginning of 2009. He also acknowledged that, when he applied for
those unemployment benefits, he had to certify to the State that he was able to work
and was looking for work.1 Claimant’s attorney represented that claimant sought
unemployment benefits because he needed the financial resources to pay his
1

Tr. 62.

2

mortgage.2 At the end of the hearing, the ALJ stated that he would not need to take
any vocational expert testimony, but
in light of the unemployment earnings’ [sic] situation, I’m going to just
do a little research to make sure there’s no discrepancy there. I know
that — I know for a fact that there’s case law from the Supreme Court
that says that [an] ADA claim does not conflict with a Social Security
claim and I think there’s some guidance of law on how unemployment
correlates with Social Security and I just want to do a little research to
clear that up before I — research and then write the decision.
If I get by that hurdle, you’ll have a favorable decision because
I’m confident based upon the level of pain and the quantities — mere
quantities of narcotic medications you’re taking preclude [you] from
being able to work.3
Claimant’s attorney expressed his hope that his client would be “okay on [the
unemployment compensation] issue,”4 and the ALJ responded:
I think you may be, but there is, you know, there is an issue and I know
that I’ve seen with respect to ADA claims because ADA, Social Security
doesn’t take into account reasonable accommodations that an ADA
account takes up, but I think that the case law may say that on the
unemployment side, because unemployment does, in fact, cover a
situation where you may be doing part-time work [INAUDIBLE] fulltime work that that may be a distinguishing factor that allows him to not
be [INAUDIBLE] as well. So it’ll probably come out all right.5
By the time he rendered his administrative decision on March 19, 2010,

2

Tr. 68.

3

Id. (bracketed alterations supplied).

4

Tr. 69 (bracketed alteration supplied).

5

Id. (bracketed alterations in original).

3

however, the ALJ had changed course. He stated:
Finally, the claimant testified that he received, and continues to
receive unemployment compensation. He noted when he applied for
unemployment compensation he certified to the State that he was
looking for work, but indicated in actuality he was not seeking
employment. Therefore, the undersigned notes that the claimant had
been receiving unemployment compensation through his alleged
disability period. As a condition of receiving unemployment payments,
the claimant must certify that he is ready, willing, and able to work, as
well, [sic] as actively looking for employment. Pursuant to Social
Security guidelines, the receipt of unemployment benefits [is] just one
factor to be considered by the adjudicator.
This policy flows from the Social Security policy and U.S.
Supreme Court precedent in Cleveland v. Policy Management Systems,
Corp., 526 U.S. 795 (1999), see also SSR 00-1C. [sic] In the Court case
the Supreme Court held that no adverse presumption should arose [sic]
in an Americans with Disabilities Act (ADA) case, and disability due to
the fact that circumstances could exist where the two statutes are not
inconsistent. [sic] The Court further held that such an individual must
explain the apparent discrepancy between the claimant being unable to
work and the claimant being able to work with reasonable
accommodation.
In the case at hand, the claimant through counsel explained that
the family financial situation was so dire that he had to seek
unemployment.
This explanation is completely plausible and
understandable; however, it in no way addressed the Court’s direction
to explain the difference in claims. The claimant had claimed via
application and weekly certification to the State that he was and is
actively seeking work; and is ready, willing, and able to go back to
work. The claimant was at the same time asserting to the Social Security
Agency (SSA) that he is unable to engage in substantial gainful activity
(SGA) due to physical and/or mental impairments. These are
inconsistent statements and the claimant’s explanation does not provide
a reasonable indication of how the two assertions could be consistent.
4

Therefore, the claimant has no credibility with the Court. This issue is
not dispositive but rather one factor. However, the undersigned invites
the claimant to pursue an appeal to address the issue of unemployment
compensation claims[’] effect on SSDI claims as this appears to be an
issue of first impression, capable of reproduction, which needs to be
adjudicated by higher Court authority.6
The ALJ’s credibility determination affected most other aspects of his decision.
For example, he found that while claimant’s medically determinable impairments
could reasonably be expected to cause the symptoms he alleged, claimant’s
statements concerning the intensity, persistence, and limiting effects of his symptoms
were not credible to the extent they are inconsistent with a residual functional
capacity to perform the full range of sedentary work. The ALJ found that claimant’s
assertion of inability to work after 2009 was not credible, in part because he had
suffered the same impairments since at least 2002, but nonetheless continued to
perform heavy work until 2009. The ALJ also discredited claimant’s assertion that
his pain medication had sedating side effects, noting that claimant continued to work
at the heavy exertional level for three years after starting that medication.7
Claimant asserts that the ALJ should have given him a further opportunity to
explain the inconsistencies in his representations to the unemployment compensation
board and to the Commissioner. Claimant relies primarily upon the Cleveland case
6

Tr. 16-17 (bracketed alterations supplied).

7

Tr. 16.

5

cited by the ALJ. There, the Supreme Court held that a plaintiff receiving Social
Security disability benefits — which she obtained as a result of establishing that she
could perform neither her previous job duties nor any other work existing in
significant numbers in the national economy — was not necessarily barred from also
pursuing an action for disability discrimination under the Americans With Disabilities
Act of 1990 (“ADA”), in which she would have to establish that she could perform
“the essential functions of her job” with “reasonable accommodation.” Cleveland,
526 U.S. at 797. The Court emphasized, however, that “an ADA plaintiff cannot
simply ignore the apparent contradiction that arises out of the earlier SSDI total
disability claim.” Id. at 806. The plaintiff can proceed on both theories, but only if
she can “proffer a sufficient explanation.” Id. The plaintiff’s explanation “must be
sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or
the plaintiff’s good-faith belief in, the earlier statement [that the plaintiff was unable
to work for Social Security disability purposes], the plaintiff could nonetheless
‘perform the essential functions’ of her job, with or without ‘reasonable
accommodation.’” Id. at 807 (bracketed alteration supplied). In Cleveland, the
plaintiff explained the inconsistency between her statements by asserting that her
representations to the Social Security Administration about her inability to work
“‘were made in a forum which does not consider the effect that reasonable workplace
6

accommodations would have on the ability to work,’” and were accurate for the time
period during which they were made. Id. The Supreme Court held that the plaintiff
should have been allowed to present those arguments to the trial court, and remanded
for that purpose. Id.
Claimant also relies upon an August 9, 2010 memorandum from Frank
Cristaudo, the Chief Administrative Law Judge for the Social Security
Administration, to all other Administrative Law Judges. In that memorandum, Judge
Cristaudo clarified the effect of the Cleveland decision on the Social Security
Administration’s policy regarding a claimant’s receipt of unemployment benefits:
Receipt of unemployment benefits does not preclude the receipt of
Social Security disability benefits. The receipt of unemployment
benefits is only one of many factors that must be considered in
determining whether the claimant is disabled. See CFR 404.1512(b) and
416.912(b).
In considering claims of individuals who have applied for
unemployment benefits, Administrative Law Judges (ALJs) should be
mindful of the principles discussed in Social Security Ruling 00-1c,
which incorporates Cleveland v. Policy Management Systems Corp., 526
U.S. 795 (1999). In that case, the Supreme Court held, in a unanimous
decision, that a claim for Social Security disability benefits is often
consistent with a claim for relief under the Americans with Disabilities
Act (ADA) even though there must be an ability to work in order to
obtain relief under the ADA. The Court noted that, under the
presumptions embodied in our five-step sequential evaluation process,
a person can qualify for Social Security disability benefits even though
he or she remains capable of performing some work. Similar logic
applies to applications for unemployment benefits.
7

In addition, it is often uncertain whether we will find a person
who applies for unemployment benefits ultimately to be disabled under
our rules, and our decisionmaking process can be quite lengthy.
Therefore, it is SSA’s position that individuals need not choose between
applying for unemployment insurance and Social Security disability
benefits.
However, application for unemployment benefits is evidence that
the ALJ must consider together with all of the medical and other
evidence. Often, the underlying circumstances will be of greater
relevance than the mere application for and receipt of the benefits. For
instance, the fact that a person has, during his or her alleged period of
disability, sought employment at jobs with physical demands in excess
of the person’s alleged limitations would be a relevant factor that an
ALJ should take into account, particularly if the ALJ inquired about an
explanation for this apparent inconsistency.
Accordingly, ALJs should look at the totality of the circumstances
in determining the significance of the application for unemployment
benefits and related efforts to obtain employment.8
Judge Cristaudo’s memorandum is consistent with the decisions of other
Circuit Courts of Appeal, which have held that a claimant’s application for and
receipt of unemployment compensation benefits is one factor the ALJ may consider
in evaluating a claimant’s credibility. See, e.g., Carmickle v. Commissioner, Social
Security Administration, 533 F.3d 1155, 1161-62 (9th Cir. 2008) (acknowledging that
“receipt of unemployment benefits can undermine a claimant’s alleged inability to
work fulltime”); Schmidt v. Barnhart, 395 F.3d 737, 745 (7th Cir. 2005) (“[W]e are

8

Doc. no. 8 (claimant’s brief), at Exhibit 1 (August 9, 2010 Memorandum).

8

not convinced that a Social Security claimant’s decision to apply for unemployment
benefits and represent to state authorities and prospective employers that he is able
and willing to work should play absolutely no role in assessing his subjective
complaints of disability.”) (emphasis in original); Workman v. Commissioner of
Social Security, 105 F. App’x 794, 801-02 (6th Cir. 2004) (“Applications for
unemployment and disability benefits are inherently inconsistent,” and that
inconsistency can be considered in evaluating the claimant’s credibility.).
The ALJ in this properly applied these principles in evaluating claimant’s
credibility. It is clear that the ALJ did not rely solely on claimant’s unemployment
compensation application in evaluating claimant’s credibility; instead, the application
was only one factor in the ALJ’s analysis.9 While this court is not convinced, as the
ALJ suggested, that a claimant is obligated to explain the inconsistency in the same
manner that the Cleveland decision requires an ADA plaintiff to explain
inconsistencies, the court also sees no reason why the ALJ could not consider any
explanation, or lack thereof, in making a credibility determination.
This court understands that claimant may have had valid, even compelling,
personal reasons for applying for unemployment compensation and Social Security

9

See Tr. 17 (“Pursuant to Social Security guidelines, the receipt of unemployment benefits
[is] just one factor to be considered by the adjudicator.”); id. (“This issue is not dispositive but rather
one factor.”).

9

disability benefits at the same time. But the ALJ nonetheless was entitled to consider
the inconsistencies in claimant’s representations to various agencies in evaluating
claimant’s credibility. The court also understands that claimant likely was surprised
and confused after receiving the ALJ’s administrative decision, given that the ALJ
indicated during the administrative hearing that he was likely to rule in claimant’s
favor. Unfortunately, however, there is no rule preventing an ALJ from changing his
mind between the hearing and the time of his decision. In summary, the ALJ’s
consideration of claimant’s application for and receipt of unemployment
compensation benefits was in accordance with controlling law and supported by
substantial evidence.
B.

Subjective Complaints of Pain
Claimant next asserts that the ALJ improperly considered his subjective

complaints of pain. To demonstrate that pain renders him disabled, claimant must
“produce ‘evidence of an underlying medical condition and (1) objective medical
evidence that confirms the severity of the alleged pain arising from that condition or
(2) that the objectively determined medical condition is of such severity that it can be
reasonably expected to give rise to the alleged pain.’” Edwards v. Sullivan, 937 F. 2d
580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986)). If an ALJ discredits subjective testimony on pain, “he must articulate explicit
10

and adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing
Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986); MacGregor v. Bowen, 786
F.2d 1050, 1054 (11th Cir. 1986)). Furthermore, once an ALJ determines whether
the pain standard has been met, he can move forward to consider claimant’s
complaints are credible in light of the substantial evidence of record. See Marbury
v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“After considering a claimant’s
complaints of pain, the ALJ may reject them as not creditable, and that determination
will be reviewed for substantial evidence.”) (citing Wilson v. Heckler, 734 F.2d 513,
517 (11th Cir. 1984)) (emphasis supplied).
As noted above, the ALJ found that claimant’s medically determinable
impairments could reasonably be expected to cause the symptoms he alleged, but that
claimant’s statements concerning the intensity, persistence and limiting effects of
those symptoms were not credible to the extent they were inconsistent with a residual
functional capacity to perform a full range of sedentary work.10 It has already been
determined that the ALJ properly considered claimant’s application for and receipt
of unemployment compensation benefits in deciding not to fully credit claimant’s
subjective complaints.

The ALJ also found that claimant’s allegations were

inconsistent with his history of working at the heavy exertional level for several years
10

Tr. 16.

11

after his physical symptoms first began, and after he started his current, allegedly
sedating, medication regime. He further found that claimant’s alleged level of
impairment was inconsistent with the report of consultative examiner Dr. Jariwala,
who assessed only mild impairments. These are all valid reasons for the ALJ’s
decision not to fully credit claimant’s allegations of pain and other subjective
symptoms, and the ALJ’s conclusions in this regard are supported by substantial
evidence.
C.

Treating Physician
Next, claimant argues that claimant improperly considered the opinion of his

treating physician, Dr. Michael G. Gibson. The opinion of a treating physician “must
be given substantial or considerable weight unless ‘good cause’ is shown to the
contrary.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (internal
citations omitted). Good cause exists when “(1) [the] treating physician’s opinion
was not bolstered by the evidence; (2) [the] evidence supported a contrary finding;
or (3) [the] treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Id. Additionally, the ALJ is not required to accept
a conclusory statement from a medical source, even a treating source, that a claimant
is unable to work, because the decision whether a claimant is disabled is not a
medical opinion, but is a decision “reserved to the Commissioner.” 20 C.F.R. §
12

416.927(e). Social Security regulations also provide that, in considering what weight
to give any medical opinion (regardless of whether it is from a treating or non-treating
physician), the Commissioner should evaluate: the extent of the examining or
treating relationship between the doctor and patient; whether the doctor’s opinion can
be supported by medical signs and laboratory findings; whether the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors.
See 20 C.F.R. § 404.1527(d). See also Wheeler v. Heckler, 784 F.2d 1073, 1075
(11th Cir. 1986) (“The weight afforded a physician’s conclusory statements depends
upon the extent to which they are supported by clinical or laboratory findings and are
consistent with other evidence as to claimant’s impairments.”).
Dr. Gibson submitted two letters in support of claimant’s application for
disability benefits. On May 12, 2009, he stated:
Mr. George is currently in my professional care and treatment for
a disabling condition of his lumbar spine. As a result of his physical
condition, it is my opinion based on my education, training, experience
and examination of Mr. George that he is in fact permanently and totally
disabled to a reasonable degree of medical certainty. His condition is
degenerative in nature and is such that it will continue to worsen despite
time and treatment. Also, Mr. George is currently taking methadone, a
narcotic medication to control his pain. These medications are sedating
for him and would decrease his ability to function in a workplace
setting.11

11

Tr. 867.

13

Dr. Gibson submitted an almost identical letter on March 1, 2010.12 The only
difference between the two letters is that, on March 1, 2010, Dr. Gibson specified that
claimant had been prescribed 100 mg of methadone each day.
The ALJ afforded “official notice but not controlling weight” to Dr. Gibson’s
opinion. As reasons for that decision, the ALJ stated that the ultimate decision of
whether claimant was disabled was reserved for the Commissioner, and that the ALJ’s
assessments about the sedating effects of claimant’s medications were not credible,
for the same reasons discussed above, with regard to unemployment compensation
benefits. Furthermore, the ALJ concluded that the opinion of Dr. Hasmukh Jariwala,
the consultative examiner, was entitled to more weight than Dr. Gibson’s opinion.
Dr. Jariwala examined claimant on April 21, 2009, and reported that claimant had
mild impairment of his lumbar spine and right shoulder, minimal impairment of his
left shoulder, minimal to mild impairment of the bilateral knees, and no impairment
of any other joints. Claimant’s gait was normal, his reflexes were intact, and he had
no muscle spasms, but he did have some difficulty walking on his heels and toes, as
well as with squatting and rising. He had unremarkable neurological findings, and
his grip strength was fully intact. Dr. Jariwala did acknowledge claimant’s complaint
of drowsiness from his medications, but he made no independent medical findings
12

Tr. 869.

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about drowsiness.
The court finds that the ALJ adequately articulated his reasons for failing to
fully credit Dr. Gibson’s opinion of total disability, and the ALJ’s findings were
supported by substantial evidence. Given the propriety, as discussed above, of the
ALJ’s decision not to fully credit claimant’s subjective testimony, including his
complaints of medication side effects, the ALJ was entitled to give more weight to Dr.
Jariwala’s opinion than to Dr. Gibson’s, if he found Dr. Jariwala’s opinion to be more
consistent with the record evidence as a whole.
Furthermore, the ALJ was not required, as claimant asserts, to recontact Dr.
Gibson for additional explanation of his assessment of total disability. According to
claimant, an ALJ is required to recontact a treating physician anytime the physician
makes a finding on an ultimate issue, like disability, that is reserved to the
Commissioner. Claimant’s argument blatantly misconstrues applicable regulatory
authority. Claimant cites to Social Security Ruling 96-5p, which states that “opinions
from any medical source on issues reserved to the Commissioner must never be
ignored.” SSR 96-5p. That is a true statement, but it has no applicability here,
because the ALJ did not ingore Dr. Gibson’s opinion. Instead, he specifically
discussed that opinion, but ultimately decided to discredit it. SSR 96-5p also states
that “[f]or treating sources, the rules also require that we make every reasonable effort
15

to recontact such sources for clarification when they provide opinions on issues
reserved to the Commissioner and the bases for such opinions are not clear to us.”
Id. Here, the ALJ did not conclude that the basis for Dr. Gibson’s opinion was
unclear; instead, he disagreed with the opinion. There was no reason for the ALJ to
recontact Dr. Gibson, and claimant’s argument in this regard is without merit.
D.

Hypothetical Question to the Vocational Expert
Finally, claimant argues that the ALJ failed to pose a hypothetical question to

the vocational expert that encompassed all of his diagnosed limitations. Indeed, the
ALJ did not pose any questions to the vocational expert, because he concluded during
the administrative hearing that vocational expert testimony would not be necessary.13
Claimant speculates that the ALJ’s reason for failing to obtain vocational expert
testimony was that, at the conclusion of the hearing, the ALJ expected to find
claimant disabled. Even if that was the reason, the court concludes that the ALJ did
not err. Claimant asserts that, after he decided to “rule against” claimant on the
unemployment compensation benefits issue, the ALJ should have held a supplemental
hearing in order to obtain vocational expert testimony. It is true that the ALJ has a
basic duty to develop “a full and fair record,” Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981), but claimant has offered no convincing argument that the ALJ’s
13

See Tr. 68.

16

duty in this case required him to conduct a separate hearing and obtain vocational
expert testimony. Claimant also has presented no convincing evidence that he was
incapable of performing anything less than a full range of sedentary work, or that he
had additional non-exertional limitations.14 Consequently, the ALJ was not required
to consult a vocational expert in order to determine claimant’s ability to work. See
Phillips, 357 F.3d at 1242 (holding that an ALJ must contact a vocational expert if the
claimant is unable to perform a full range work at a particular exertional level, or if
he has additional non-exertional impairments).
E.

Conclusion and Order
In summary, the court finds that the decision of the Commissioner was in

accordance with applicable law and supported by substantial evidence. Accordingly,
the decision of the Commissioner is AFFIRMED. Costs are taxed against claimant.
The Clerk is directed to close this file.
DONE this 20th day of July, 2012.

______________________________
United States District Judge

14

As discussed repeatedly above, the ALJ correctly found that claimant’s subjective
complaints, including his complaints of medication side effects, were less than fully credible.

17