Dickerson v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/29/12. (CVA)

FILED
2012 Nov-29 PM 02:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERIC DICKERSON,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Civil Action Number
2:12-cv-0842-AKK

MEMORANDUM OPINION
Plaintiff Eric Dickerson (“Dickerson”) 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”). This court finds that the Administrative Law Judge’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence and, therefore, AFFIRMS the decision denying
benefits to Dickerson.
I. Procedural History
Dickerson protectively filed applications for Disability Insurance Benefits

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and Supplemental Security Income benefits on October 24, 2008, alleging a
disability onset date of September 11, 2008 due to blood clots, gastroesophageal
reflux disease, and right leg pain. (R. 140, 143, 176). The SSA denied
Dickerson’s applications initially and on reconsideration, prompting Dickerson to
request a hearing before an ALJ. (R. 87, 97, 12). The ALJ subsequently denied
Dickerson’s claims (R. 14-31), which became the final decision of the
Commissioner when the Appeals Council refused to grant review, (R. 1-7).
Dickerson then filed this action for judicial review pursuant to § 205(g) and §
1631(c)(3) of the Act, 42 U.S.C. § 405(g) and § 1383(c)(3). Doc. 1; see also doc.
9.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
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
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evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
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
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impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

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

(4)

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

(5)

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

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
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).

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Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].
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
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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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 a disability unless the ALJ properly discredits the claimant’s
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, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
Turning now to the ALJ’s decision, the court notes initially that the ALJ
properly applied the five step analysis. The ALJ first determined that Dickerson
has not engaged in substantial gainful activity since September 11, 2008, and
therefore met Step One. (R. 19). The ALJ also acknowledged that Dickerson’s
severe impairments of “recurrent deep vein thrombosis and degenerative disc
disease” met Step Two. Id. The ALJ proceeded to the next step and found that
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Dickerson failed to meet or equal one of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, Appendix 1 and thus did not satisfy Step Three. Id. at 20.
Although he answered Step Three in the negative, consistent with the law, see
McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four where he determined
that Dickerson has the residual functional capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except [Dickerson] can never push or pull with the lower
extremities, requires a sit/stand option, can occasionally climb stairs and
ramps and can never climb ladders or ropes. Further, [Dickerson] can
frequently balance and stoop, occasionally kneel, crouch and crawl, and
should never be exposed to hazardous conditions such as heights and
moving machinery.
Id. The ALJ, therefore, determined that Dickerson is unable to perform any past
relevant work. Id. at 25. With respect to the pain standard, the ALJ found that
Dickerson’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, [Dickerson’s] statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above residual functional capacity
assessment.” Id. at 21. As a result, the ALJ proceeded to Step Five where he
considered Dickerson’s age, education, work experience, and RFC and determined
that “there are jobs that exist in significant numbers in the national economy that
[Dickerson] can perform.” Id. at 25. Consequently, the ALJ found that Dickerson
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is not disabled. Id. at 27; see also McDaniel, 800 F.2d at 1030.
V. Analysis
Dickerson raises two contentions of error: (1) that the ALJ failed to find a
period of disability of at least twelve months, and (2) that the ALJ’s RFC findings
are not based on substantial evidence. See doc. 9. As set forth more fully below,
the court finds that the ALJ’s decision is supported by substantial evidence.
A.

Twelve Month Period of Disability
In order to receive disability benefits, a claimant must prove that he is

“[un]able to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or can be
expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. §
423(d)(1)(A) (emphasis added). Dickerson asserts that the ALJ’s finding of no
disability, (R. 20-25), is erroneous because “[t]he medical evidence of record
reasonably supports a finding that a threshold period of disability in excess of
twelve months was established.” Doc. 9 at 5.
To evaluate Dickerson’s contentions, the court must review the relevant
medical evidence. In that regard, Dickerson’s treatment history began in early
2008 at the North Clinic when Dr. Daniel Cohan diagnosed him with popliteal
deep vein thrombosis (“DVT”) in his right calf, bilaterial pulmonary emboli,
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persistent right leg pain, gastroesophageal reflux disease (“GERD”), and tobacco
use. (R. 242). Dr. Cohan gave Dickerson a “GI cocktail,” administered an
anticoagulant, prescribed Coumadin as ongoing DVT treatment, and released
Dickerson after his symptoms “drastically improved.” Id. at 242, 248. Following
this treatment, Dickerson returned for back pain after falling down some stairs but
x-rays revealed no fractures or other abnormalities and Dr. Cohan prescribed pain
medicines. Id. at 271, 269. Dickerson returned for follow up appointments each
month until January of 2009 when his anticoagulation levels reached the
therapeutic range after months of Coumadin treatment. Id. at 288. At that time,
Dr. Cohan noted that Dickerson’s GERD improved and Dickerson also stated that
his back pain was “getting better” and he was “not really needing to take
medications for the back.” Id. During this treatment period, Dickerson asked Dr.
Cohan to fill out a form for housing assistance stating that Dickerson would have a
disabling condition for no less than 12 months. Id. at 265-66. Dr. Cohan,
however, declined and stated “I do not anticipate that this problem he has with his
leg will last more than 12 months.” Id.
Following his fall down the stairs, Dickerson had a physical therapy initial
evaluation on November 7, 2008 at the Institute for Athletic Medicine Fairview
Hand Center. Id. at 258. During this evaluation, the doctors noted that Dickerson
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became unemployed in September following his DVT, but that he was only
expected to be unemployed until February of the following year – about five
months. Id. Moreover, Dickerson’s physical therapy goals stated that he would be
able to stand for longer than 20 minutes in 2-4 weeks and that Dickerson would
“have no limitation with standing within 10-12 weeks so can return to normal
work duties as cook.” Id. at 260. Additionally, in April of 2009, Dr. Cohan
referred Dickerson to Brook West Chiropractic Clinic, PLLC for chronic low back
pain treatment. Id. at 298. After Dr. Chad Clementson performed an initial
consultation and examination, Dr. Thomas Trainer assessed Dickerson with
“chronic lumbar myofascial strain/sprain associated with lumbalgia” that could be
easily treated with “light force lumbar adjustments, intersegmental lumbar traction
and adjunctive physiotherapy modalities.” Id.
In September and October of 2010, Dickerson presented twice at UAB
Hospital Emergency Medicine. Id. at 311, 317. The first time, Dr. Andrew
Edwards treated Dickerson’s GERD with a GI cocktail, prescribed nexium, and
discharged Dickerson that same evening as “asymptomatic.” Id. at 317. The
second time, Nurse Practitioner Marie Bolivar-Cano diagnosed Dickerson’s back

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pain as DJD2 and also noted probable COPD3. Id. at 311.
Also in 2010, Dickerson presented at Cooper Green Mercy Hospital for
back and calf pain. A physical exam in September yielded normal results and an
x-ray showed only “mild degenerative change of the lumbar spine.” Id. at 308. In
November and December, Dickerson returned for anticoagulation treatment
because he developed another DVT after being off his Coumadin for about 6
months. Id. at 334. At that time, Dr. Martin Bohnenkamp noted that Dickerson
“will require lifelong therapy with coumadin” to prevent future DVTs. Dickerson
was also diagnosed with COPD with no acute process. Id. at 364, 372.
Ultimately, Dr. Ahmed Farah performed an inferior vena cava filter placement
surgery to prevent recurrent DVTs and noted that Dickerson “tolerated [the]
procedure well and [was] taken back to recovery room in stable condition.” Id. at
390.
Based on the court’s review of the medical record, the evidence shows that
Dickerson failed to prove an inability to engage in substantial gainful activity

2

DJD, degenerative joint disease, is also called osteoarthritis and refers to a common
joint disorder caused by aging and “wear and tear” on a joint. See OSTEOARTHRITIS in A.D.A.M.
Medical Encyclopedia, available at http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001460/.
3

COPD, chronic obstructive pulmonary disease, is a lung disease that presents as either
chronic bronchitis or emphysema and is commonly caused by smoking. See CHRONIC
OBSTRUCTIVE PULMONARY DISEASE in A.D.A.M. Encyclopedia, available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001153/.
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because of a disabling condition lasting at least 12 months. To the contrary,
Dickerson stated that back pain from his DJD was improved with pain medicine
and that he did not expect to need continued use of the drugs. Also, Dr. Cohan,
Dickerson’s treating physician, noted that Dickerson’s inability to work because of
DVT would not last twelve months and, specifically, that he expected Dickerson
to return to work in as little as 5 months. Moreover, notes from Dickerson’s
evaluations for physical therapy and chiropractic care reported expectations of a
full recovery and a return to work in, at most, 12 weeks. Finally, although Dr.
Farah inserted a filter to prevent Dickerson’s DVTs and Dr. Bohnenkamp noted
that Dickerson needed lifelong Coumadin treatment, there is no indication in the
record that these treatments failed to restore Dickerson to a work-ready state.
Despite Dickerson’s assertion to the contrary, his failure to present medical
evidence of treatment for any of his impairments between April 2009 and
September 2010 is relevant in determining that he did not have a twelve month
period of disability. An ALJ may consider not only objective medical evidence,
but also other evidence such as failure to seek treatment, use of effective treatment
methods like medicines, daily activities, and the claimant’s own statements. 20
C.F.R. § 416.929(c)(3); see also Watson v. Heckler, 738 F.2d 1169, 1173 (11th
Cir. 1984). Given the objective medical evidence, Dickerson’s own statements,
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the effectiveness of the treatments, and Dickerson’s failure to seek treatment for
over a year during his alleged period of disability, the court finds that the ALJ’s
decision is supported by substantial evidence.
B.

Residual Functional Capacity
In determining Dickerson’s RFC, the ALJ properly applied a two-step

process and found (1) that Dickerson has some impairments that could reasonably
be expected to produce the alleged pain or other symptoms, but (2) that
Dickerson’s statements regarding the severity and limiting effects of these
impairments are inconsistent with the medical record. (R. 21). Dickerson,
however, asserts that the ALJ’s RFC finding is not supported by substantial
evidence because the ALJ failed to obtain a medical opinion in the form of a
consultative examination and because the ALJ failed to specify the frequency of
Dickerson’s need to alternate sitting and standing. Doc. 9 at 7-13. Each
contention is addressed below.
1.

Obligation to Obtain a Medical Opinion

Dickerson asserts that the ALJ erred in not obtaining a medical opinion
prior to making an RFC determination “in light of the subsequent medical
evidence of recurrent deep vein thrombosis requiring filter surgery and lifelong
anticoagulation therapy on which the ALJ stated she relied in order to derive her
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own RFC.” Doc. 9 at 8. The regulation Dickerson cites to support this contention,
however, states that a consultative examination is required only “when the
evidence as a whole, both medical and nonmedical, is not sufficient to support a
decision on your claim.” 20 C.F.R. 404.1519a(b). Additionally, the regulation
states that “a change in your condition that is likely to affect your ability to work,
but the current severity of your impairment is not established” will “normally
require a consultative examination[.]” Id. (emphasis added). Assuming a change
from temporary anticoagulation therapy to lifelong anticoagulation therapy with
the aid of surgery constitutes a “change in condition,” Dickerson’s assertion is still
unavailing.
Dickerson failed to show that this changed condition is likely to affect his
ability to work or that the severity of his condition is unknown. As noted in
subsection A, the medical record does not indicate that these treatments proved
ineffective at restoring Dickerson’s ability to perform substantial gainful activity.4
Moreover, the medical record indicates that anticoagulation treatment within the
therapeutic range, especially in combination with filter surgery, is expected to
prevent recurrent DVT. The severity of Dickerson’s current condition can,
4

Dr. Cohan expected Dickerson to have no limitations within five months of his DVT,
and the recurrence only appeared after Dickerson stopped anticoagulation treatment for a period
of several months. (R. 265-66, 334). This implies that maintaining his Coumadin at theraputic
levels will prevent future DVTs.
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therefore, be established based on his prior DVT and treatment history. Since the
information needed to make a determination “is readily available from the records
of [Dickerson’s] medical sources[,]” 20 C.F.R. § 404.1519a(a)(1), and an exam is
normally required “only when necessary information is not in the record and
cannot be obtained from the claimant’s treating medical sources or other medical
sources[,]” id. at § 404.1519a(b), the ALJ’s failure to ask Dickerson to attend a
consultative examination is not erroneous. The court thus finds that the ALJ’s
determination is based on substantial evidence.
2.

Frequency of Sitting and Standing

The ALJ determined that Dickerson has the RFC to perform sedentary work
with several limitations, including the need for a “sit/stand option.” (R. 20). At
the hearing, “[t]o determine the extent to which [Dickerson’s limitations] erode the
unskilled sedentary occupational base, the [ALJ] asked the vocational expert
whether jobs exist in the national economy for an individual with the . . . residual
functional capacity set forth above except for the sit/stand option.” (R.26).
Despite the inclusion of the sit/stand option in the hypothetical, Dickerson asserts
that the ALJ failed to meet the burden set forth in SSR 83-12 and 96-9p by failing

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to specify the frequency of Dickerson’s need to alternate sitting and standing.5
This assertion fails, however, because “[a]lthough the ALJ failed to specify the
frequency that [Dickerson] needed to change his sit/stand position, the reasonable
implication of the ALJ’s description was that the sit/stand option would be at
[Dickerson’s] own volition.” Williams, 140 Fed. Appx. at 937. Thus, the ALJ met
his burden under SSR 83-12 and 96-9p. Moreover, Dickerson failed to show
prejudice by presenting evidence that he is unable to perform the jobs identified by
the vocational expert based on his inability to sit or stand for a specific period of
time. See Williams, 140 Fed. Appx. at 937-38. Accordingly, the ALJ’s RFC
finding is supported by substantial evidence.
VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Dickerson is not disabled is supported by substantial evidence, and that the
ALJ applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED.

5

SSR 83-12 states that in instances where “the medical facts lead to an assessment of
RFC which is compatible with the performance of either sedentary or light work except that the
person must alternate periods of sitting and standing . . . a VS should be consulted to clarify the
implications for the occupational base.” Id. Additionally, where the occupational base for a full
range of unskilled sedentary work is eroded by the need to alternate sitting and standing, “[t]he
RFC assessment must be specific as to the frequency of the individual’s need to alternate sitting
and standing.” SSR 96-9p.
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DONE the 29th day of November, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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