Wallace v. Social Security Administation, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/1/2013. (JLC)

FILED
2013 Apr-01 PM 02:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICKY DALE WALLACE,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 2:12-CV-578-VEH
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MEMORANDUM OPINION1
Plaintiff Ricky Dale Wallace (“Wallace”) seeks review of a final adverse
decision of the Commissioner of the Social Security Administration (hereinafter
“Commissioner” or “Secretary”), who denied his application for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”).

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The court recently became aware that Carolyn W. Colvin was named the Acting
Commissioner of the Social Security Administration on February 14, 2013. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn
W. Colvin became the Acting Commissioner of Social Security.”) (last accessed on Mar. 13,
2013). Under 42 U.S.C. § 405(g), “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying the office of Commissioner of
Social Security or any vacancy in such office.” Accordingly, pursuant to 42 U.S.C. § 405(g) and
Rule 25(d) of the Federal Rules of Civil Procedure, the court has substituted Carolyn W. Colvin
for Michael Astrue in the case caption above and HEREBY DIRECTS the clerk to do the same
party substitution on CM/ECF.

Wallace timely pursued and exhausted his administrative remedies available
before the Commissioner. The case is ripe for review pursuant to 42 U.S.C. §
405(g) of the Act. The court has carefully considered the record and, for the
reasons which follow, finds that the decision of the Commissioner is due to be
REVERSED and REMANDED.
FACTS AND PROCEDURAL HISTORY
Wallace was a fifty (50) year old male at the time of his hearing before the
Administrative Law Judge (“ALJ”) on March 7, 2011. (R. at 44, 51.) Wallace has
an eighth grade education. He has previously worked as a wrecking mechanic and
for car parts pulling companies.
Wallace filed his application for SSI on April 22, 2009, alleging an initial
onset date of March 19, 2009. (R. at 89.) The Commissioner denied Wallace’s
application for SSI on August 3, 2009. (R. at 90–94.) Wallace requested a
hearing before an ALJ. (R. at 95–97.) After a hearing, the ALJ denied Wallace’s
claim on April 28, 2011. (R. at 20.) Wallace sought review by the Appeals
Council, but it declined his request on January 13, 2009. (R. at 42.) On that date,
the ALJ’s decision became the final decision of the Commissioner. Wallace then
brought this action.

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STANDARD OF REVIEW2
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of this court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. See Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). This court must “scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted).
This court will determine that the ALJ’s opinion is supported by substantial
evidence if it finds “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. Substantial evidence is “more than a
scintilla, but less than a preponderance.” Id. Factual findings that are supported
by substantial evidence must be upheld by the court. The ALJ’s legal conclusions,
however, are reviewed de novo, “because no presumption of validity attaches to
the [ALJ’s] determination of the proper legal standards to be applied.” Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the

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In general, the legal standards applied are the same regardless of whether a claimant
seeks Disability Insurance Benefits (“DIB”) or SSI. However, separate, parallel statutes and
regulations exist for DIB and SSI claims. Therefore, citations in this opinion should be
considered to refer to the appropriate parallel provision as context dictates. The same applies to
citations of statutes or regulations found in quoted court decisions.
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ALJ’s application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, the
ALJ’s decision must be reversed. See Cornelius v. Sullivan, 936 F. 2d 1143,
1145–46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for SSI as well as establish his entitlement for a period of
disability, a claimant must be disabled as defined by the Act and the Regulations
promulgated thereunder.3 The Regulations define “disabled” as the “inability to
do any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
[twelve] 12 months.” 20 C.F.R. § 416.905(a). To establish an entitlement to
disability benefits, a claimant must provide evidence of a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 416.908.
The Regulations provide a five-step process for determining whether a

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The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts 400 to 499,
as current through March 14, 2013.
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claimant is disabled. 20 C.F.R. § 416.920(a)(4)(i–v). The Commissioner must
determine in sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Secretary;
whether the claimant can perform his past work; and
whether the claimant is capable of performing any work in the
national economy.

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord McDaniel v.
Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied
steps one and two, [he] will automatically be found disabled if [he] suffers from a
listed impairment. If the claimant does not have a listed impairment but cannot
perform [his] work, the burden shifts to the Secretary to show that the claimant can
perform some other job.” Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993),
overruled in part on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Foote, 67 F.3d at 1559.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At Step One, the ALJ found that Wallace has not engaged in substantially
gainful activity since April 22, 2009, the application date. At Step Two, the ALJ
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found that Wallace had the following severe impairments: degenerative disc
diseases of the lumbar spine and degenerative joint disease of the right shoulder.
(R. at 25.) Additionally, the ALJ found that Wallace has the following nonsevere
impairments: status post burn injuries with skin grafting; hepatitis C; recurrent
hemorrhoids; recurrent ear infections; and “nerves.” (R. at 26.) The ALJ found
these impairments, either alone or in combination, are only slight abnormalities
that “cannot reasonably be expected to produce more than minimal, if any, workrelated limitations.”4 (R. at 26.) At Step Three, the ALJ determined that
Wallace’s impairments, alone or in combination, do not meet or medically equal a
listed impairment. (R. at 27.)
Before proceeding to Step Four, the ALJ determined Wallace’s residual
functioning capacity (“RFC”), which is the most a claimant can still do despite his
impairments. See 20 C.F.R. § 404.1545(a)(1). The ALJ determined that Wallace
has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) with the
following limitations: Wallace is limited to occasionally bending, stooping, and
climbing; occasionally pushing or pulling with the right leg; and no overhead
lifting, pushing, or pulling with the right shoulder. (R. at 28.)

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Wallace does not challenged this administrative finding.
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At Step Four, the ALJ determined that Wallace is unable to perform his past
relevant work. (R. at 30.) At Step Five, the ALJ determined that, based on
Wallace’s age, education, work experience, and RFC, jobs exist in sufficient
numbers in the national economy such that Wallace is not disabled. Therefore, the
ALJ denied Wallace’s claim. (R. at 31–32.)
ANALYSIS
This court is limited in its review of the Commissioner’s decision in that the
Commissioner’s findings of fact must be reviewed with deference. See Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen, 790
F.2d 1572, 1574–75 (11th Cir. 1986)). In contrast to factual findings, however,
the Commissioner’s conclusions of law are subject to an “exacting examination”
or de novo review. See Martin, 894 F.2d at 1529 (citing Graham, 790 F.2d at
1574–75); Martin, 894 F.2d at 1529 (“The Secretary’s failure to apply the correct
legal standards or to provide the reviewing court with sufficient basis for a
determination that proper legal principles have been followed mandates reversal.”)
(citations omitted). In particular, this court has a “responsibility to scrutinize the
record in its entirety to ascertain whether substantial evidence supports each
essential administrative finding.” See Walden v. Schweiker, 672 F.2d 835, 838

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(11th Cir. 1982) (emphasis added) (citing Strickland v. Harris, 615 F.2d 1103,
1106 (5th Cir. 1980)).5
Wallace contends that the ALJ’s RFC finding is not supported by
substantial evidence. Specifically, Wallace points out two reasons the ALJ’s RFC
finding is erroneous. First, he contends that the record contains no medical source
statement from a physician regarding the functional limitations imposed by
Wallace’s impairments. (Doc. 7 at 8.) Second, Wallace contends that the ALJ
failed to consider all the medical evidence. (Doc. 7 at 10.) Because the first issue
is dispositive, the court will not address the second issue.
A claimant’s RFC is “an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite [his] impairments.”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 C.F.R.
§ 404.1545). In assessing a claimant’s physical ability to work, the ALJ considers
his ability to sit, stand, walk, lift, carry, push, pull, and perform other physical
functions. See 20 C.F.R. § 404.1545(b). The ALJ must base his assessment on
“all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). The
Regulations require the ALJ to “consider any statements about what you can still

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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do that have been provided by medical sources, whether or not they are based on
formal medical examinations.” Additionally, the ALJ must “consider descriptions
and observations of your limitations from your impairment(s), including
limitations that result from your symptoms, such as pain, provided by you, your
family, neighbors, friends, or other persons.” Id.
The ALJ will make the ultimate decision on what a claimant can and cannot
do. See 20 C.F.R. § 404.1546(c). However, the ALJ is not a medical expert and is
not qualified to interpret raw medical data. See Manso-Pizarro v. Sec’y of Health
& Human Serv., 76 F.3d 15, 17 (1st Cir. 1996); Rohrberg v. Apfel, 26 F. Supp. 2d
303, 311 (D.Mass 1998); Rose v. Astrue, No. 11-CV-1186-VEH, Doc. 10 at 17–18
(N.D.Ala. Nov. 1, 2011). “[W]here the medical evidence shows relatively little
physical impairment, an ALJ permissibly can render a commonsense judgment
about functional capacity even without a physician’s assessment.” See
Manso-Pizarro, 76 F.3d at 17. Conversely, when the extent of a claimant’s
functional loss would not be apparent to a lay person, the ALJ cannot play doctor
and guess at the claimant’s ability to work. See id.
There is no bright line rule about when an ALJ must request an MSS. In
some cases, a treating physician’s MSS is necessary. See, e.g., Coleman v.
Barnhart, 264 F. Supp. 2d 1007, 1010 (S.D. Ala. 2003). In others, it is not. See,
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e.g., Green v. Social Security Admin., 223 F. App’x 915, 923 (11th Cir. 2007)
(affirming ALJ’s RFC assessment as supported by substantial evidence even
though the ALJ discredited the only MSS in the record). The ultimate question in
each case is whether substantial evidence supports the ALJ’s RFC assessment.
Here, the ALJ’s RFC finding is not supported by substantial evidence.
Admittedly, Wallace’s own testimony supports much of the ALJ’s RFC finding.
For example, Wallace testified that he could lift 50 pounds. (R. at 69.) This
amount would enable him to perform the lifting component of medium work. See
20 C.F.R. § 404.1567(c). Additionally, Wallace testified that he has constant pain
in his right shoulder. (R. at 58.) The ALJ apparently credited this testimony and
limited Wallace to no pushing or pulling with his right arm and no overhead lifting
with his right shoulder. (R. at 28.)
But Wallace also complained of back pain, and it is here that the ALJ’s
reasoning goes astray. (R. at 54.) Pain itself can be disabling. See Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987) (“Subjective pain testimony that is
supported by objective medical evidence of a condition that can reasonably be
expected to produce the symptoms of which the claimant complains is itself
sufficient to sustain a finding of disability.”) (citations omitted). The Eleventh
Circuit has adopted a two pronged test to determine if a claimant’s pain is
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disabling. The claimant must show “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of
the alleged pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.” Wilson v. Barnhart, 284
F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir.1991)); see also Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986); Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985)). A claimant’s
subjective complaints of pain are insufficient to support a finding of disability.
See 42 U.S.C. § 423(d)(5)(A); Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214–15
(11th Cir. 1991). The complaints must be supported by “medical signs and
findings, established by medically acceptable clinical or laboratory diagnostic
techniques, which show the existence of a medical impairment . . . which could
reasonably be expected to produce the pain.” Id.
An ALJ may discredit a claimant’s testimony regarding his subjective pain.
See Wilson, 284 F.3d at 1225. However, if the ALJ elects to discredit a claimant’s
testimony, “he must articulate explicit and adequate reasons for doing so.” Id.
Furthermore, under the Secretary’s regulations, an ALJ is not entitled to “reject [a
claimant’s] statements about the intensity and persistence of [his] pain . . . solely

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because the available objective medical evidence does not substantiate [his]
statements.” 20 C.F.R. § 404.1529(c)(2).
Wallace testified that his back pain is located in the “right lower part of [his]
back and [his] right leg.” (R. at 54–55, 64.) Wallace said that his pain comes in
spells every two months or so and that these spells lasts for about two weeks at a
time. (R. at 55.) He described his pain, on a bad day, as a nine or a ten on a pain
scale where 10 is the worst. (R. at 56.)
The ALJ found that Wallace’s testimony about his pain did not establish his
disability. (R. at 29.) The reason for the ALJ’s finding is not clear. First, the ALJ
said “the claimant’s statements concerning the intensity, persistence, and limiting
effects of these symptoms are not fully credible . . . .” (R. at 29.) Thus, it appears
that the ALJ found Wallace’s allegations to be not credible. However, the ALJ
also said that “the objective medical evidence simply does not support the
disabling level of pain and restrictions alleged by Mr. Wallace.” (R. at 30.) Thus,
it appears that the ALJ may have found that Wallace failed to meet the Eleventh
Circuit’s pain standard. Regardless of the path the ALJ took, neither reason can
sustain his RFC determination in this case.
To the extent the ALJ found Wallace’s testimony not credible, the ALJ
misapplied the Regulations. Under 20 C.F.R. § 404.1529(c)(2), the Secretary will
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not “reject [a claimant’s] statements about the intensity and persistence of [his]
pain . . . solely because the available objective medical evidence does not
substantiate [his] statements.” 20 C.F.R. § 404.1529(c)(2). But here, the only
reason the ALJ gave for rejecting Wallace’s subjective testimony is that such
testimony is not supported by the objective medical evidence. For example, the
ALJ noted that Wallace “has generally exhibited normal range of motion with no
positive straight leg raise tests. He is able to ambulate effectively. Moreover,
motor strength and sensory examination have been normal bilaterally.” (R. at 30.)
If the ALJ discredited Wallace’s pain testimony based solely on the objective
medical evidence, he misapplied 20 C.F.R. § 404.1529(c)(2). And, if the ALJ had
other reasons for discrediting Wallace’s testimony, he failed to comply with
Eleventh Circuit case law, which requires an ALJ to articulate clearly his reasons
for rejecting a claimant’s subjective pain testimony. See Wilson, 284 F.3d at 1225.
Thus, in either event, to the extent the ALJ discredited Wallace’s subjective
testimony, he applied an incorrect legal standard.
Alternatively, the ALJ found that the objective medical evidence failed to
satisfy the Eleventh Circuit’s pain standard. If the ALJ took this path, then his
RFC determination is based on nothing more than speculation and conjecture. The
first prong of the pain standard requires proof of an underlying medical condition.
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The ALJ found, among other things, that Wallace suffers from degenerative disc
disease of the lumber spine. (R. at 25.) This finding is supported by objective
medical evidence—namely, X-rays showing moderate degenerative changes in
Wallace’s spine as well as observations of moderate muscle spasms and
tenderness. (R. at 26, 29.) Thus, Wallace satisfies the first prong of the Eleventh
Circuit pain standard.
To satisfy the second prong, Wallace must show “either (a) objective
medical evidence confirming the severity of the alleged pain; or (b) that the
objectively determined medical condition can reasonably be expected to give rise
to the claimed pain.” Wilson, 284 F.3d at 1225 (emphasis added). It appears
Wallace has no objective medical evidence confirming the severity of his alleged
pain. But, what about evidence of an “objectively determined medical condition
[which could] reasonably be expected to give rise to the claimed pain?” Id. Can
degenerative disc disease of the lumber spine reasonably be expected to cause the
pain Wallace alleges?
The ALJ determined it could not. (R. at 30.) To reach this conclusion, the
ALJ focused on the fact that Wallace has exhibited normal range of motion, that
his straight leg tests have been negative, and that his motor strength and sensory
examinations have been normal bilaterally. (Id.) At first glance, the ALJ’s
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finding may seem reasonable. But, on closer examination, it is clear that the ALJ
considered the raw medical data (i.e., the doctor’s reports regarding Wallace’s
range of motion, the results of his straight leg raise tests, and the findings about
his motor strength and sensory functioning) and drew a medical conclusion. This
is something the ALJ cannot do. See Manso-Pizarro, 76 F.3d at 17; Rohrberg, 26
F. Supp. 2d at 311; Rose v. Astrue, No. 11-CV-1186-VEH, Doc. 10 at 17–18
(N.D.Ala. Nov. 1, 2011).
The ALJ is not a medical professional. He is not trained to determine what
symptoms, if any, degenerative disc disease of the lumbar spine could reasonably
be expected to cause. Nor does he have experience which enables him to
recognize a typical presentation of pain versus an atypical presentation.
Conversely, a medical doctor has training and experience regarding the
presentation of pain. She is in a much better position to determine whether a
patient’s allegations of pain are typical, atypical but credible, or simply not
credible.
Here, the ALJ crossed the line from fact finder to doctor. He evaluated the
medical records showing normal range of motion, negative straight leg tests, and
normal motor strength and sensory examinations and concluded Wallace’s
degenerative disc disease could not reasonably be expected to cause his pain. But,
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without the expertise of a medical professional, the ALJ’s conclusion is nothing
more than a hunch. The record contains no evidence from a medical professional
which substantiates the ALJ’s conclusion. In fact, Wallace’s medical records
show that, when he visited the hospital for his back pain, a doctor prescribed him
pain medication. (R. at 539.)
Additionally, this is not a case where the ALJ is entitled to determine
Wallace’s functional limitations based on commonsense. If anything,
commonsense and experience suggests that pain is often different from person to
person. But, just because a person’s presentation of pain is not typical does not
mean the pain is not real.
And, even if the ALJ could rely on commonsense, the focus of his reasoning
shows his conclusion is not in line with the Eleventh Circuit’s pain standard. The
Eleventh Circuit’s pain standard does not ask whether the claimant’s impairment is
actually causing the alleged pain. Instead, it asks whether the claimant’s
impairment could reasonably be expected to cause the alleged pain. Here, the ALJ
focused on Wallace’s actual and reported symptoms instead of considering
whether his degenerative disc disease could cause the alleged pain. See Hale v.
Bowen, 831 F.2d 1007, 1009, 1011–12 (11th Cir. 1987) (holding that degenerative
disc disease, along with the claimants other symptoms, could be expected to cause
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the claimant’s disabling pain even though the claimant showed no significant loss
of sensory or motor function).
Indeed, the record suggests that Wallace’s impairment could reasonably be
expected to cause his pain. Wallace says his pain is in his lower back, which is
where one would expect it to be with a problem involving the lumber spine. When
Wallace has sought treatment for his back pain, a medical professional has
prescribed pain medication. (R. at 539.) Conversely, no doctor has denied him
pain medication. Additionally, Wallace alleges that his pain is intermittent. He
says that it comes in spells about once every two months, and lasts for about two
weeks at a time. While this allegation may seem strange, especially when Wallace
has not identified the trigger of his attacks, he has reported this cycle to his
doctors. (R. at 558.) Commonsense suggests there is something odd about
Wallace’s alleged pain. This conclusion further reinforces the fact that Wallace’s
pain could reasonably be expected to result from his degenerative disc disease.
Thus, to the extent the ALJ determined that Wallace had failed to meet the
Eleventh Circuit’s pain standard, the ALJ’s decision is based on mere speculation.
In this case, the ALJ erred in determining Wallace’s RFC. Either the ALJ
erred by misapplying the Regulations (that is, 20 C.F.R. § 404.1529(c)(2)), or he
erred in concluding that Wallace’s allegations fail to meet the Eleventh Circuit’s
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pain standard. Regardless of which route the ALJ took, his error was not
harmless. The vocational expert testified that if Wallace’s pain testimony were
credited, he would be unemployable. (R. at 87.) Because the ALJ erred in
determining Wallace’s RFC, the decision of the Commissioner is due to be
REVERSED and REMANDED for further proceedings.
IV.

CONCLUSION
For the foregoing reasons, the decision of the Commissioner is due to be,

and hereby is, REVERSED. This case is REMANDED for further proceedings
consistent with this memorandum opinion. A separate final judgment will be
entered.
DONE and ORDERED this the 1st day of April, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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