Allums v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate-Judge Harwell G Davis, III on 4/25/2014. (AVC)
2014 Apr-25 PM 02:20
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,1
Acting Commissioner of
Social Security Administration,
Case No. 2:12-cv-04190-JHE
Plaintiff Lynn Allums (“Allums”) seeks review, pursuant to 42 U.S.C.
§ 405(g), § 205(g) of the Social Security Act, of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”), denying his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
Allums timely pursued and exhausted his administrative remedies. The case is
Carolyn W. Colvin was named the Acting Commissioner 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 December 17,
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.
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therefore ripe for review under 42 U.S.C. §§ 405(g).2 The undersigned has carefully
considered the record and, for the reasons stated below, the decision of the
Commissioner is AFFIRMED.3
I. Factual and Procedural History
Allums was a 50-year-old male with a limited education at the time of his
hearing before the Administrative Law Judge (“ALJ”) on September 20, 2010.
(Tr. 39, 47).
Allums filed an application for DIB and SSI on April 30, 2009, alleging an
initial onset date of January 1, 2006. (Tr. 138-41, 142-48, 161). The State Agency
denied Allums’ applications, and he requested a hearing before an ALJ. (Tr. 98).
After a hearing on September 20, 2010, the ALJ denied Allums’ claim for benefits in
a decision dated April 21, 2011. (Tr. 20-38). Allums sought review by the Appeals
Council, but it declined his request on October 26, 2012. (Tr. 1-5). On that date, the
ALJ’s decision became the final decision of the Commissioner. See Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Allums then initiated this action.
42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 15).
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II. Standard of Review4
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 Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420 (1971); 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 the ALJ’s decision 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. Id. 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 ALJ’s
In general, the legal standards applied are the same whether a claimant seeks 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 for statutes or regulations found in quoted court decisions.
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application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining 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
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.5 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
12 months.” 20 C.F.R. § 416.905(a). To establish 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. § 404.1508.
The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts 400 to 499,
revised April 1, 2013.
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The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 416.920(a)(4)(i–v). The Commissioner must determine in
whether the claimant is currently engaged in substantial gainful
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
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, [she] will automatically be found disabled if [she] suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform
[her] 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 by 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.
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IV. Findings of the Administrative Law Judge
At Step One, the ALJ found Allums met the insured status requirements of the
Social Security Act through December 31, 2010, and had not engaged in substantial
gainful activity since January 1, 2006, the alleged onset date. (Tr. 26). At Step Two,
the ALJ found Allums had the following severe impairments: low back pain
secondary to mild degenerative changes of lumbar spine; chronic obstructive
pulmonary disease; left radial nerve palsy; and history of polysubstance abuse. (Id.).
At Step Three, the ALJ found Allums does not have an impairment or a combination
of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 29).
Before proceeding to Step Four, the ALJ determined Allums’ 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 Allums has the
RFC to perform light work activity which allows for a low average IQ; occasional
bending and stooping; occasional gross manipulation; and a sit/stand option;
restricted to working in a temperature-controlled environment; and further restricted
to performing simple repetitive non-complex tasks. (Tr. 29).
At Step Four, the ALJ determined Allums is unable to perform any past
relevant work. (Tr. 33). At Step Five, the ALJ determined, based on Allums’ age,
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education, work experience, and RFC, jobs exist in significant numbers in the
national economy Allums can perform. (Tr. 33-34). Therefore, the ALJ denied
Allums’ claim. (Tr. 34).
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, 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) (“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 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir.
1980)).6 However, the court “abstains from reweighing the evidence or substituting
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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its own judgment for that of the [Commissioner].” Id. (citation omitted). The court
must review the Commissioner’s decision and determine whether it is supported by
substantial evidence and he applied the correct legal standards. Wilson, 284 F.3d at
Allums contends the Commissioner’s decision is not supported by substantial
evidence and should be reversed. (Doc. 8 at 2). Allums specifically argues the ALJ
improperly discredited Allums’ testimony based on his daily activities. (Id. at 7).
The ALJ Clearly Articulated His Credibility Finding is Supported
by Substantial Evidence
A claimant’s RFC is the most a claimant can do despite his physical and mental
limitations. See 20 C.F.R. §§ 404.1545(a), 416.945(a). An ALJ is required to
evaluate a claimant’s RFC before proceeding to Step Four and Step Five of the
sequential evaluation process. See 20 C.F.R. §§ 404.1520(e), 416.920(e). In making
this finding, the ALJ must consider all relevant evidence, including medical source
statements and the claimant’s description of his symptoms.
See 20 C.F.R.
§§404.1545(a)(3), 416.945(a)(3), SSR 96-8p, 1996 WL 374184 at *5.
On the other hand, when a claimant attempts to establish a disability based on
his subjective complaints, including pain, he must provide evidence of an underlying
medical condition and either objective medical evidence confirming the severity of
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the alleged symptoms or that the medical condition could be reasonably expected to
give rise to the alleged symptoms. See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p,
1996-374186. If the claimant establishes he has an impairment that could reasonably
be expected to produce his alleged symptoms, then the intensity and persistence of
his alleged symptoms and their effect on his work must be evaluated. See 20 C.F.R.
§§ 404.1529(c)(1), 416.929(c)(1).
When evaluating the credibility of a claimant’s statements regarding the
intensity, persistence, or limiting effects of his symptoms, the ALJ considers all
evidence, objective and subjective. See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p,
1996 WL 364186 at * 4-5. The ALJ may consider the nature of a claimant’s
symptoms, the effectiveness of medication, a claimant’s method of treatment, a
claimant’s activities, and any conflicts between a claimant’s statements and the rest
of the evidence. See 20 C.F.R. §§ 404.1529(c))(3), (4), 416.929(c)(3), (4); SSR 967p, 1996 WL 364186 at * 4-8. If an ALJ discredits a claimant’s subjective
complaints, “he must articulate explicit and adequate reasons for doing so.” Wilson
v. Comm’r of Soc. Sec., 284 F.3d 1219, 1225 (11th Cir. 2002).
The ALJ properly evaluated Allums’ subjective complaints of pain in
accordance with regulatory criteria, Eleventh Circuit precedent, and SSR 96-7p. (See
Tr. 29-32). Citing the appropriate standard and relevant legal authority, (Tr. 29-30),
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the ALJ found Allums’ medically determinable impairments could reasonably be
expected to cause the alleged symptoms, but Allums’ statements regarding the
intensity, persistence, and limiting effects of the symptoms were not entirely credible.
(Tr. 31); see 20 C.F.R. §§ 404.1529, 416.929; Dyer v. Barnhart, 395 F.3d 1206, 2010
(11th Cir. 2005).
An ALJ is permitted to consider a claimant’s daily activities when evaluating
subjective complaints and determining a claimant’s RFC.
See 20 C.F.R.
§§ 404.1529(c)(3)(i), 416.929(c)(3)(i); Macia v. Bowen, 829 F.2d 1009, 1012 (11th
Cir. 1987). Allums argues the ALJ placed undue emphasis on his activities of daily
living when determining his RFC. (Doc. 8 at 7-9).
The non-binding case law Allums cites to support his position is not
persuasive. (See Doc. 8 at 8). Here, the ALJ considered Allums’ daily activities
together with medical evidence and other record evidence to assess his RFC. (Tr. 2932). The case law from the Eighth Circuit and other district courts7 is clearly
distinguishable. In Easter v. Bowen, 867 F.2d 1128, 1130-31 (8th Cir. 1989), the
Eighth Circuit noted the ALJ failed to expressly find the claimant’s testimony not
Venette v. Apfel, 14 F. Supp. 2d 1307, 1314 (S.D. Fla. 1998), concluding the ALJ failed
to explain the standard applicable to credibility determinations and failed to set forth a reasonable
basis for rejecting the claimant’s testimony, and Hogard v. Sullivan, 733 F. Supp. 1465, 1469-70
(M.D. Fla. 1990), noting the only reason given by the ALJ for rejecting the claimant’s subjective
complaints was the finding the claimant married, adopted a child, and had a child of his own after
his date last insured, are distinguishable.
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credible and found the ALJ erred by disregarding the treating and consulting
physician’ opinions in favor of his own assessment of the claimant’s condition.
Additionally, in Gude v. Sullivan, the Eighth Circuit determined the claimant’s
subjective complaints were corroborated by her treating physician and consistent with
her diagnosis). 956 F.2d 791, 794-95 (8th Cir. 1992). Neither of these circumstances
exist in this case.
Plaintiff also cites Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997). (Doc.
8 at 8). In Lewis, the Eleventh Circuit states: “Nor do we believe that participation
in everyday activities of short duration, such as housework or fishing, disqualifies a
claimant from disability.” 125 F.3d at 1441. The court continued by explaining these
daily activities were not inconsistent with the limitations recommended by Lewis’s
treating physicians and found the ALJ’s decision to rely on the opinion of the
consulting physician over those of Lewis’s treating physician was not supported by
substantial evidence. Id. Here, the ALJ did not rely on Allums’ daily activities to
avoid a treating physician’s opinions. Instead, the ALJ considered Allums’ daily
activities along with other record evidence, including objective medical evidence, to
assess Allums’ credibility.
The ALJ recognized the record reflects Allums took care of his personal needs
(although he testified could not button or zip), prepared simple meals, mowed his
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lawn with a riding lawn mower, visited with family and his landlord, visited the
Methadone clinic weekly, shopped for groceries, watched television, read, and
maintained a relationship with his girlfriend. (Tr. 32, 58, 62, 65-66, 67, 164-68, 232).
Contrary to Allums’ arguments, there is no indication the ALJ placed any special
emphasis on these daily activities. Instead, he considered these activities along with
other evidence to assess Allums’ credibility and concluded this evidence did not
indicate Allums’ condition caused disabling limitations.
See 20 C.F.R.
§§ 404.1529(c)(2)-(4), 416.929(c)(2)-(4); Dyer, 395 F.3d at 1211. The ALJ provided
ample reasons for reaching this conclusion.
The ALJ noted the objective medical findings do not support Allums’
allegations of disabling limitations. Although Allums alleged a disability onset date
of January 1, 2006, the record does not include any evidence of medical treatment
prior to April 2009. (Tr. 218-19). Allums testified he suffers from shortness of
breath that limits his ability to walk. (Tr. 49). At his consultative examination in
June 2009, Allums attributed his shortness of breath to emphysema, although he
reported he had not been diagnosed and had not seen a physician for this condition.
(Tr. 221). A chest X-ray taken in April 2009 reflected only mild increased interstitial
markings with no acute cardiopulmonary disease and no pleural effusion. (Tr. 216).
Allums’ June 2009 pulmonary function test showed Allums to have mild obstructive
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ventilator defects, which the consultative examiner concluded did not contradict the
performance of work at a mild exertion level. (Tr. 222, 224).
In February 2010, Allums sought treatment for shortness of breath and was
diagnosed with emphysema and was prescribed medication. (Tr. 256-57). Physical
examinations in April and June 2009 and September 2010 revealed normal breath
sounds and clear lungs with no wheezes or rales. (Tr. 221, 250, 254). Allums was
hospitalized with pneumonia in May 2010 and again in July 2010, with the July 2010
chest x-ray revealing a “dramatic improvement” over the May 2010 comparison with
most changes appearing to be scar-like in nature. (Tr. 275). In July 2010, Allums had
an echocardiogram with largely normal findings, showing only minimal valve
insufficiency and minimal right ventricular enlargement. (Tr. 271). Allums’ August
2010 chest X-ray reflected stable findings with no pleural effusion and slightly
diminished inspiration and the possibility of left lung base calcified granulomas. (Tr.
None of the medical records indicate permanent activity or exercise restrictions
were imposed based Allums’ lung impairments, and there is no evidence of any
opinions from treating physicians setting forth limitations caused by his lung
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Allums also alleged lower back pain (radiating into his left leg) and problems
using his left hand. (Tr. 50-51, 53-54, 59-60). A lumbar spine X-ray revealed mild
degenerative changes and the possible reduction of L5-S1 space. (Tr. 222). In June
2009, Allums’ physical examination reflected normal gait, the ability to walk on heels
and toes and rise from a deep squat without difficulty, and full active motion of all
joints, extremities, and spine. (Tr. 222). In July 2010, Allums went to the emergency
room with left radial nerve palsy, reportedly likely due to a methadone overdose.
(Tr. 273-74). During his hospitalization, Allums’ radial nerve palsy improved
slightly, and he received a splint and occupational therapy. (Tr. 273).
Allums was taken to the emergency room on August 2010 with an altered
mental state after he doubled his methadone dosage due to back pain from working
in the yard for two days. (Tr. 268). After that visit, an X-ray did not show any
evidence of injury to Allums’ left hand. (TR. 268). The medical records do not note
any restrictions due to Allums’ left radial nerve palsy.
The ALJ’s credibility findings are supported by substantial evidence. The ALJ
properly considered the relevant evidence in assessing the credibility of Allums’
allegations and clearly articulated his finding and the supporting evidence. This
finding will not be disturbed. See Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.
1995) (citing MacGregory v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)) (“A
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clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court.”).
To the extent Allums argues the ALJ did not consider “evidence of record,”
(Doc. 8 at 9-11), the ALJ’s decision reflects a detailed analysis and discussion of the
medical and other evidence. (TR. 29-32). Despite his argument to the contrary, as
Allums was represented by counsel, the ALJ had no “special duty” to “scrupulously
and conscientiously probe into, inquire of, and explore for all the relevant facts.”
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
The ALJ applied the proper legal standards, and there is substantial evidence
to support his findings. Plaintiff fails to point to a deficiency in either regard. The
court has scrutinized the entire record and determined the ALJ’s decision is
reasonable and supported by substantial evidence. Accordingly, the decision of the
Commissioner is due to be AFFIRMED and this action is due to be DISMISSED.
A separate order will be entered.
DONE this 25th day of April, 2013.
HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE
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