Hirt v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 9/4/15. (MRR )

FILED
2015 Sep-04 AM 10:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT A. HIRT,
Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION,
Commissioner,
Defendant.

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Case No.: 2:13-cv-02082-SGC

MEMORANDUM OPINION1
The plaintiff, Robert A. Hirt, appeals from the decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying his application for Disability
Insurance Benefits (“DIB”). Hirt timely pursued and exhausted his administrative remedies, and
the Commissioner’s decision is ripe for review pursuant to 42 U.S.C. § 405(g). For the reasons
discussed below, the Commissioner’s decision is due to be affirmed.
I. Procedural History
Hirt has two bachelor’s degrees and a master’s degree in education. (Tr. at 35). He has
previously worked as a clinical director, counselor, and truck driver. (Id. at 242, 248-54). In his
application for DIB, he claimed that he became disabled on October 30, 2006, due to a rotated
disc, back problems, hepatitis C, tuberculosis, a heart condition, and pulmonary problems. (Id. at
64, 70, 76, 197, 241).

After his claims were denied, Hirt requested a hearing before an

administrative law judge (“ALJ”). (Id. at 71-76, 79-80). Following a hearing, the ALJ denied
Hirt’s claims. (Id. at 10-18). Hirt was 61 years old when the ALJ issued her decision. After the

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In accordance with the provisions of 28 U.S.C. § 636(c) and Rule 72 of the Federal Rules of Civil Procedure, the
parties have voluntarily consented to the exercise of full dispositive jurisdiction by the undersigned magistrate
judge. (Doc. 15).

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Appeals Council declined to review the ALJ’s decision (id. at 1-3), that decision became the
final decision of the Commissioner, see Frye v. Massanari, 209 F. Supp. 2d 1246, 1251 N.D.
Ala. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). Thereafter, Hirt
initiated this action. (Doc. 1).
II. Statutory and Regulatory Framework
To establish his eligibility 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 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 months.” 42 U.S.C. §§
416(i)(1)(A), 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). Furthermore, a claimant must
show that he was disabled between his alleged initial onset date and his date last insured. Mason
v. Comm’r of Soc. Sec., 430 Fed. App’x 830, 831 (11th Cir. 2011) (citing Moore v. Barnhart, 405
F.3d 1209, 1211 (11th Cir. 2005); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)).
The Social Security Administration employs a five-step sequential analysis to determine an
individual’s eligibility for disability benefits. 20 C.F.R. § 404.1520(a)(4).
First, the Commissioner must determine whether the claimant is engaged in “substantial
gainful activity.”

Id. at §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

“Under the first step, the

claimant has the burden to show that [he] is not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Comm’r of Soc. Sec., 457 Fed. App’x 862, 863 (11th Cir. 2012). If the
claimant is engaged in substantial gainful activity, the Commissioner will find that the claimant
is not disabled. 20 C.F.R. § 404.1520(a)(4)(i) and (b). At the first step, the ALJ determined Hirt
last met the Social Security Administration’s insured status requirements on March 31, 2009, and

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did not engage in substantial gainful activity from his alleged onset date of October 30, 2006,
through March 31, 2009, his date last insured. (Tr. at 12).
If the claimant is not engaged in substantial gainful activity, the Commissioner must next
determine whether the claimant suffers from a severe physical or mental impairment or
combination of impairments that has lasted or is expected to last for a continuous period of at
least twelve months.

20 C.F.R. § 404.1520(a)(4)(ii).

An impairment “must result from

anatomical, physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques.” Id. at § 404.1508. Furthermore, it
“must be established by medical evidence consisting of signs, symptoms, and laboratory
findings, not only by [the claimant’s] statement of symptoms.”

Id.; see also 42 U.S.C. §

423(d)(3). An impairment is severe if it “significantly limits [the claimant’s] physical or mental
ability to do basic work activities . . . .” 20 C.F.R. § 404.1520(c). 2 “[A]n impairment can be
considered as not severe only if it is a slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the individual’s ability to work,
irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th
Cir. 1984); see also 20 C.F.R. § 404.1521(a). A claimant may be found disabled based on a
combination of impairments, even though none of her individual impairments alone is disabling.
20 C.F.R. § 404.1523.

The claimant bears the burden of providing medical evidence

demonstrating an impairment and its severity. Id. at § 404.1512(a) and (c). If the claimant does

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Basic work activities include:
(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) [c]apacities for seeking, hearing, and speaking; (3) [u]nderstanding,
carrying out, and remembering simple instructions; (4) [u]se of judgment; (5) [r]esponding
appropriately to supervision, co-workers and usual work situations; and (6) [d]ealing with changes
in a routine work setting.

20 C.F.R. § 404.1521(b).

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not have a severe impairment or combination of impairments, the Commissioner will find that
the claimant is not disabled. Id. at § 404.1520(a)(4)(ii) and (c).
At the second step, the ALJ determined Hirt had the following severe impairments
through his date last insured: degenerative joint disease of the shoulder, bilaterally; status post
multiple rotator cuff surgeries; obstructive sleep apnea; degenerative arthritis of the lumbar
spine; and plantar fasciitis. (Tr. at12).
If the claimant has a severe impairment or combination of impairments, the
Commissioner must then determine whether the impairment meets or equals one of the
“Listings” found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii);
see also id. at § 404.1525-26. The claimant bears the burden of proving that his impairment
meets or equals one of the Listings. Reynolds-Buckley, 457 Fed. App’x at 863. If the claimant’s
impairment meets or equals one of the Listings, the Commissioner will find that the claimant is
disabled. 20 C.F.R § 404.1520(a)(4)(iii) and (d). At the third step, the ALJ determined Hirt did
not have an impairment or combination of impairments that met or medically equaled the
severity of one of the Listings through his date last insured. (Tr. at 13).
If the claimant’s impairment does not meet or equal one of the Listings, the
Commissioner must determine the claimant’s residual functional capacity (“RFC”) before
proceeding to the fourth step. 20 C.F.R. § 404.1520(e); see also id. at § 404.1545. A claimant’s
RFC is the most he can do despite his impairment. See id. at § 404.1545(a)(1). At the fourth
step, the Commissioner will compare her assessment of the claimant’s RFC with the physical
and mental demands of the claimant’s past relevant work. Id. at § 404.1520(a)(4)(iv) and (e),
404.1560(b). “Past relevant work is work that [the claimant] [has] done within the past 15 years,
that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do

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it.” Id. § 404.1560(b)(1). The claimant bears the burden of proving that his impairment prevents
him from performing his past relevant work. Reynolds-Buckley, 457 Fed. App’x at 863. If the
claimant is capable of performing his past relevant work, the Commissioner will find that the
claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b)(3).
Before proceeding to the fourth step, the ALJ determined that through his date last
insured, Hirt had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a),3
except he could lift or carry up to 10 pounds occasionally and five pounds frequently; should
avoid work above shoulder level; could push or pull between the waist and shoulder; should not
engage in repetitive lifting above the waist; and should avoid all hazards, including ladders,
ropes, scaffolds, and heights. (Tr. at 13).
At the fourth step, the ALJ determined Hirt was capable of performing his past relevant
work as clinical director through his date last insured. (Id. at 17). Therefore, the ALJ concluded
Hirt was not disabled at any time between October 30, 2006 and March 31, 2009, and denied his
claim. (Id.).
III. Standard of Review
Review of the Commissioner’s decision is limited to a determination whether that
decision is supported by substantial evidence and whether the Commissioner applied correct
legal standards. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). A
district court must review the Commissioner’s findings of fact with deference and may not

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Sedentary work:
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledges, and small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria
are met.

20 C.F.R. § 404.1567(a).

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reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007);
Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district 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) (internal
citations omitted). Substantial evidence is “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a
preponderance.” Id. A district court must uphold factual findings supported by substantial
evidence, even if the preponderance of the evidence is against those findings. Miles v. Chater,
84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990)).
A district court reviews the Commissioner’s legal conclusions de novo. Davis v. Shalala,
985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner’s] failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the proper legal
analysis has been conducted mandates reversal.” Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991).
IV. Discussion
Hirt raises the following issues on appeal: (1) the ALJ did not apply the correct legal
standard in determining Hirt could perform his past work as a clinical director through his date
last insured, and that determination is not supported by substantial evidence, and (2) the ALJ’s
credibility finding is not supported by substantial evidence. (Doc. 11 at 2). Because the second
issue goes to the first, the undersigned considers them together.

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At the fourth step of the sequential analysis, the ALJ compared her assessment of Hirt’s
RFC with the physical and mental demands of Hirt’s past relevant work. (Tr. at 17). This was
the appropriate way to determine whether Hirt could perform any of his past relevant work. See
20 C.F.R. §§ 404.1520(a)(4)(iv) and (e), 404.1560(b).
As an initial matter, the ALJ determined Hirt’s RFC. (Tr. at 13-17). She did so by
considering Hirt’s alleged symptoms, the objective medical evidence, and opinion evidence.
(Id.). This was consistent with the social security regulations’ instruction that a claimant’s RFC
should be “based on all the relevant evidence in [the claimant’s] case record.” 20 C.F.R. §
404.1545(a)(1).
When a claimant attempts to establish disability through his own testimony of pain or
other subjective symptoms, the pain standard articulated by the Eleventh Circuit in Holt v.
Sullivan, 921 F.2d 1221 (11th Cir. 1991), applies. See also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005).
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.”
Dyer, 395 F.3d at 1210 (quoting Holt, 921 F.2d at 1223). Provided the Holt pain standard is met,
an ALJ considers a claimant’s testimony of pain or other subjective symptoms. Foote v. Chater,
67 F.3d 1553, 1560 (11th Cir. 1995).
An ALJ is permitted to discredit a claimant’s subjective testimony of pain or other
symptoms if she “clearly ‘articulate[s] explicit and adequate reasons’” for doing so. Dyer, 395
F.3d at 1210 (quoting Foote, 67 F.3d at 1561-62). “A clearly articulated credibility finding with
substantial supporting evidence will not be disturbed by a reviewing court.” Foote, 67 F.3d at

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1562.

In determining credibility an ALJ may consider objective medical evidence and a

claimant’s reported daily activities, amongst other things. 20 C.F.R. §§ 404.1529(c), 416.929(c).
Hirt testified that he cannot work on account of his chronic pain, which averages nine on
a scale from zero to ten. (Tr. at 35-45). He testified that he can sit for no more than five minutes
and cannot stand for a prolonged period without leaning on something. (Id. at 35). He testified
that he has numbness in both hands. (Id. at 38). He testified that his pain affects his ability to
sleep, as does his required use of oxygen and a CPAP machine. (Id. at 45). Finally, he testified
that his pain has caused him to become depressed and affected his concentration. (Id. at 39).
The ALJ found that although Hirt’s medically determinable impairments could
reasonably be expected to have caused his alleged symptoms, Hirt’s statements concerning the
intensity, persistence, and limiting effects of these symptoms were not credible. (Id. at 13-17).
She clearly articulated her reasons for discrediting Hirt’s testimony of his symptoms and their
limiting effects, and that credibility determination is supported by substantial evidence.
Specifically, she found that Hirt’s testimony that his pain prevented him from working was
contradicted by his testimony that he continued to look for work for some time after leaving his
job as a clinical director. (Id. at 16; see also id. at 41-42). She further found that Hirt’s
testimony describing the extremely limited nature of his daily activities could not be objectively
verified with any reasonable degree of certainty. (Id. at 16-17). Finally, she found that the
medical evidence did not support Hirt’s allegations as to the limiting effects of his symptoms.
(Id.).
Hirt’s medical records reveal the following: Hirt had surgery to repair his left rotator cuff
in December of 2005 and surgery to repair his right rotator cuff in February of 2006. (Id. at 310,
364). He had no post-operative complaints as to his left rotator cuff but continued to experience

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pain in his right shoulder after repair of that rotator cuff. (Id. at 381, 391). In May of 2007, Hirt
had an elective revision of the repair done to his right rotator cuff. (Tr. at 381-82). Hirt
continued to experience some pain following that procedure. (Id. at 387, 389). However, by
December of 2007, Hirt had “pretty good range of motion of both shoulders without much pain,”
according to his primary care physician. Furthermore, in April of 2008, Hirt’s primary care
physician noted that Hirt had obtained good results from his rotator cuff surgeries. (Id. at 413).
Also in April of 2008, Hirt’s primary care physician noted that, despite degenerative arthritis in
his lower back that was a chronic, recurring problem and plantar fasciitis that limited his
exercise, Hirt “seem[ed] to be doing well.” (Id. at 413). Hirt’s medical records indicate he has
been advised to eliminate or limit overhead work, but they do not describe any of his
impairments as disabling. (Id. at 324, 369, 381-82, 402-03, 406, 413-20). Finally, as noted by
the ALJ, Hirt’s medical records do not indicate a diagnosis of a mental impairment. (Id. at 17).
The ALJ found that Hirt’s medical records, rather than support the degree of limitation
alleged by Hirt, instead supported the functional capacity to which a medical expert retained by
the Social Security Administration testified during the hearing. (Id. at 17). Specifically, the
medical expert testified that Hirt was limited to sedentary work and should not push or pull
above his shoulders, should only occasionally (and not repetitively) lift from below the waist,
and should avoid ladders, ropes, scaffolds, heights, and hazardous machinery. (Id. at 32). In
sum the ALJ applied the correct legal standard in determining Hirt’s RFC, and that determination
is supported by substantial evidence.
Having determined Hirt’s RFC, the ALJ then compared his RFC with the physical and
mental demands of Hirt’s past relevant work. (Id. at 17). Contrary to Hirt’s assertion (Doc. 11 at
11), the ALJ did develop the record as to the requirements of Hirt’s past relevant work and

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evaluated Hirt’s ability to undertake those requirements in light of his RFC. Specifically, the
ALJ relied on the testimony of a vocational expert. (Id.). A vocational expert is “an expert on
the kinds of jobs an individual can perform based on his or her capacity and impairments.”
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004). The ALJ was permitted to consider
the testimony of the vocational expert in determining whether Hirt had the ability to perform any
of his past relevant work through his date last insured. Waldrop v. Comm’r of Soc. Sec., 379
Fed. App’x 948, 952 (11th Cir. 2010) (citing 20 C.F.R. § 404.1560(b)(2)). The vocational expert
testified that serving as a clinical director is a sedentary occupation. (Tr. at 40). He further
testified that a person with Hirt’s RFC could perform work as a clinical director and confirmed
that his testimony was consistent with the Dictionary of Occupational Titles. (Id. at 50-51).
Accordingly, the ALJ applied the correct legal standard in determining Hirt could perform his
past work as a clinical director through his date last insured, and that determination is supported
by substantial evidence.
V.

Conclusion
Having reviewed the administrative record and considered all of the arguments presented

by the parties, the undersigned find the Commissioner’s decision is supported by substantial
evidence and in accordance with applicable law.

Therefore, that decision is due to be

AFFIRMED. A separate order will be entered.
DONE this 4th day of September, 2015.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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