Scruggs v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/18/2014. (PSM)

FILED
2014 Aug-18 PM 02:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LEE GRIER SCRUGGS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CIVIL ACTION NO.
2:13-cv-0047-AKK

Defendant.
MEMORANDUM OPINION
Plaintiff Lee Grier Scruggs (“Scruggs”) 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. Therefore, for the reasons elaborated
herein, the court will affirm the decision denying benefits.
I. Procedural History
Scruggs, whose past relevant experience includes work as an automotive
technician, filed an application for Title II disability insurance benefits and Title

XVI Supplemental Security Income on November 18, 2009, alleging a disability
onset date of July 23, 2009, due to back, neck and shoulder pain. (R. 26, 144).
After the SSA denied Scruggs’ claim, he requested a hearing before an ALJ.
(R. 84-85). The ALJ subsequently denied Scruggs’ claim, (R. 23-34), which
became the final decision of the Commissioner when the Appeals Council
refused to grant review. (R. 1-6). Scruggs then filed this action for judicial
review pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). Doc. 1.
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) mandates 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 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
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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 impairment is “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrated by

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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)-(g), 416.920(a)-(g). 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, he
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

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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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testimony supported by medical evidence that satisfies the pain standard is itself
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
In performing the five step analysis, the ALJ found that Scruggs had not
engaged in substantial gainful activity since July 23, 2009, and, therefore, met
Step One. (R. 28). Next, the ALJ found that Scruggs satisfied Step Two
because he suffered from the severe impairments of a “history of cervical
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trauma status post accident in 2002.” Id. The ALJ then proceeded to the next
step and found that Scruggs failed to satisfy Step Three because he “does not
have an impairment or combination of impairments that meets or medically
equals one of the listed impairments.” (R. 29). Although the ALJ 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 Scruggs has the
residual functional capacity (RFC) to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except [Scruggs] can lift and carry twenty pounds occasionally and
ten pounds frequently; [Scruggs] can stand, walk, and sit for
approximately six hours in an eight hour day; [Scruggs] should
avoid concentrated exposure to cold, heat, dusts, gasses, odor,
chemicals and vibrations; [Scruggs] should avoid exposure to
unprotected heights or dangerous moving equipment; [Scruggs]
can never climb ladders, ropes, or scaffolds; [Scruggs] can
frequently balance, stoop, kneel, crouch, crawl; [Scruggs] can
frequently climb ramps and stairs; and [Scruggs] can generally
reach in all directions except overhead with the right upper
extremity.
(R. 30). In light of his RFC, the ALJ held that Scruggs “is unable to perform
any past relevant work.” (R. 32). Lastly, in Step Five, the ALJ considered
Scruggs’ age, education, work experience,2 and RFC, and determined “there are

2

As of the date of the ALJ’s decision, Scruggs was 47 years old, had at least a
high school education, and past relevant medium work as an automotive technician. (R.
33, 57).
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jobs existing in significant numbers in the national economy” that Scruggs can
perform. (R. 33). Therefore, the ALJ found that Scruggs “has not been under a
disability, as defined in the Social Security Act, from July 23, 2009, through the
date of this decision.” (R. 34).
V. Analysis
The court now turns to Scruggs’ contentions that the ALJ failed to
properly evaluate (1) the medical evidence from the consultative physical
examiner; and (2) Scruggs’ pain testimony. See doc. 8 at 6-11. The court
addresses each contention in turn.
A.

The Consultative Examiner’s Report

Scruggs contends the ALJ improperly discounted the opinion of Dr. M.
Scott Touger, who examined Scruggs at the request of the SSA, that Scruggs
“has symptoms that sound like he may have a stenosis of the nerve roots.” (R.
219). According to Scruggs, “the clear indication from Dr. Touger is that
[Scruggs] has debilitating pain which would preclude any work-related
activities.” Doc. 8 at 7-8. During the relevant examination, Scruggs reported to
Dr. Touger that his troubles began in 2002 when the trunk of a tree rolled over
him, and that his pain medication makes him unable to concentrate or remember
things. (R. 217). Although Scruggs reported that he was unable to bend over,
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Dr. Touger found Scruggs had full range of motion in his shoulders, elbows,
wrists, fingers, hips, knees, ankles, and lumbar spine. (R. 217-18). Dr. Touger
also found Scruggs’ sensation was intact, and that his dexterity and muscle
strength was normal in all areas. (R. 218, 221). However, Dr. Touger found the
range of motion in Scruggs’ cervical spine was reduced, and produced
significant pain with rotation, particularly to the right. Id. Dr. Touger noted
that x-rays showed “what may be a mild compression fracture of the C5
vertebral body,” with “decreased disc space at C5-6 with some anterior spurring
at the anterior inferior portion of the C5 vertebrae.” (R. 219). Based on his
examination, Dr. Touger made the following diagnostic impression:
History of trauma in 2002 particularly to the neck. He has
symptoms that sound like he may have a stenosis of the nerve roots.
Copies of his MRI reports that were done several years ago may be
of some help as plain x-rays do not show soft tissue as you know.
These should be easily obtainable at Greystone Imaging.
Id. Scruggs contends that this diagnostic impression establishes his disability
and that the ALJ erred by discounting Dr. Touger’s opinions. The court
disagrees because substantial evidence supports the ALJ’s decision.
As a nontreating physician, Dr. Touger’s opinions are not entitled to
controlling weight under 20 C.F.R. § 404.1527(c)(2). Consequently, the ALJ
had to consider several factors to determine the weight, if any, to give Dr.
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Touger’s opinions. These factors include whether Dr. Touger presented medical
evidence and provided an explanation to support his opinion, and whether his
opinion is consistent with the record as a whole. See 20 C.F.R. § 416.1527(c).
Moreover, the ALJ “may reject the opinion of any physician when the evidence
supports a contrary conclusion.” Bloodworth v. Heckler, 703 F.2d 1233, 1240
(11th Cir. 1983). Indeed, even a treating physician’s opinions, which are
entitled to more deference than those of Dr. Touger, may be rejected if the ALJ
has “good cause.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
The ALJ considered these factors and found Dr. Tougher’s opinions “to
be of some weight as to the physical findings of [Scruggs’] limitations.” (R. 32).
However, the ALJ found that “Dr. Touger’s opinion that [Scruggs] could have
stenosis of the nerve roots to be of no weight because Dr. Touger did not have
the medical imaging to support such a diagnosis.” Id. The ALJ had good cause
to give no weight to this opinion because an ALJ may properly reject a
physician’s opinion that “appears to be based primarily on [a claimant’s]
subjective complaints of pain.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1159 (11th Cir. 2004). This is especially true here because Dr. Touger
explicitly recognized that he did not have access to MRI reports that would be
necessary to make a proper diagnosis. (R. 219). This lack of diagnostic testing
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supporting Dr. Touger’s opinion provides good cause for rejecting the opinion.
See Crawford, 363 F.3d at 1159 ( good cause exists if the opinion is
“unsupported by the medical evidence”). Accordingly, because the ALJ
articulated good reasons–all of which are supported by substantial evidence–for
giving no weight to Dr. Touger’s opinion, there is no reversible error.
B.

The ALJ’s Evaluation of Scruggs’ Pain

Scruggs’ final contention is that the ALJ would have found him disabled
if the ALJ had properly considered Scruggs’ pain. Doc. 8 at 11. In considering
Scruggs’ subjective symptoms, the ALJ first found that Scruggs’ “medically
determinable impairments could reasonably be expected to cause [his] alleged
symptoms,” (R. 32), and, therefore, that Scruggs met the requirements of the
pain standard in this circuit. See Section III, supra. However, the ALJ found
Scruggs’ allegations of disabling symptoms were not fully credible. (R. 32). It
is this determination that Scruggs challenges, and in light of his appeal, this
court must review the ALJ’s finding to determine if it is supported by substantial
evidence.
In considering Scruggs’ testimony, the ALJ systematically discussed the
factors relevant to his credibility finding. First, the ALJ noted that Dr. Touger
found a full range of motion in all areas except the cervical spine, and that this
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contradicts Scruggs’ testimony that he cannot bend over or raise his arm over his
head. (R. 31). Reliance on a report showing normal range of motion to assess
credibility is proper. See Powell v. Comm’r of Soc. Sec. , ___ F. App’x___ ,
2014 WL 3377650 at *2 (11th Cir. 2014). Second, consistent with the
regulations,3 the ALJ considered “the type, dosage, effectiveness, adverse side
effects of any medication,” and any “other measures used to relieve pain or other
symptoms,” and observed that Scruggs testified that he takes Lortab 7.5 mg
daily, lies down up to thirty minutes a day, and that his medications cause
memory problems. (R. 31). Third, as required by the regulations,4 the ALJ
considered Scruggs’ “daily activities and any other factors concerning
[Scruggs’] functional limitations and restrictions due to pain.” In making this
assessment, the ALJ found that Scruggs “described daily activities which are not
limited to the extent one would expect, given the complaints of disabling
symptoms and limitations.” (R. 32). The ALJ noted that Scruggs testified that
he “leaves his house daily, drives a car to visit his parents and gets together with
friends,” that he “is able to do all his grocery shopping and his laundry,” and
“has successfully lived on his own for a number of years.” Id. The ALJ

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20 C.F.R. § 404.1529(c)(3)(iv), (vi).
20 C.F.R. § 404.1529(c)(3)(i), (vii).
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properly considered these activities in accordance with the law of this circuit to
find Scruggs’ testimony was not fully credible. See Harwell v. Heckler, 735
F.2d 1292, 1293 (11th Cir. 1984); Powell, 2014 WL 3377650 at *2. Fourth,
because the ALJ was obligated to consider inconsistencies between Scruggs’
statements and the rest of the evidence,5 the ALJ properly found that Scruggs’
testimony of concentration problems was inconsistent with his testimony that he
watched, on average, three hours of television at night. (R. 32). Finally, after
considering all these factors, the ALJ reasonably found that Scruggs’ allegations
were not credible to the extent they were inconsistent with his RFC assessment.
Id.
Ultimately, based on this record, Scruggs has failed to show that the ALJ
erred in failing to credit his testimony of disabling pain. In fact, the ALJ
articulated specific reasons for discounting Scruggs’ testimony of disabling
symptoms–all of which are supported by substantial evidence. Moreover, even
though the ALJ did not credit Scruggs’ testimony of disabling symptoms, he
recognized that Scruggs had some limitations as reflected in his RFC for a
reduced range of light work that included a restriction on overhead reaching
with the right upper extremity. (R. 30). Therefore, based on this record, the

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20 C.F.R. § 404.1529(c)(4).
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court finds that substantial evidence supports the ALJ’s determination that these
restrictions account for Scruggs’ symptoms. Accordingly, because this court
does not reweigh the evidence, there is no reversible error in the ALJ’s
credibility finding.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Scruggs 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. A separate order in
accordance with the memorandum of decision will be entered.
Done the 18th day of August, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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