Stowe v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 9/10/2015. (AVC)
2015 Sep-10 PM 03:18
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social Security,
Case No. 2:14-cv-01065-TMP
The plaintiff, Otis Stowe, appeals from the decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying his application for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits
(“DIB”). Mr. Stowe timely pursued and exhausted his administrative remedies
and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C.
§§ 405(g), 1383(c)(3).
Mr. Stowe was forty-two years old at the time of the alleged onset of
disability, August 1, 2010.
(Tr. at 52).
His past work experiences include
employment as a delivery truck driver, a tractor trailer truck driver, and a concrete
truck driver. Id. Mr. Stowe claims that he became disabled on August 1, 2010, due
to a knee injury, back pain, and diabetes. (Tr. at 43, 157).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). If
he or she is, the claimant is not disabled and the evaluation stops. Id. If he or she is
not, the Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. pt. 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, he will be found disabled without further
consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step. 20
C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite his or her impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if he or
she can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled. Id. The burden is on the
Commissioner to demonstrate that other jobs exist which the claimant can
perform; and, once that burden is met, the claimant must prove his or her inability
to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Mr. Stowe
meets the insured status requirements of the Social Security Act through
December 31, 2015. (Tr. at 45). He further determined that Mr. Stowe has not
engaged in substantial gainful activity since the alleged onset of his disability. Id.
According to the ALJ, Plaintiff’s diabetes mellitus with neuropathy, degenerative
disc disease of the cervical and lumbar spine, osteoarthritis of the knees, right
shoulder AC separation, and borderline intellectual functioning are considered
“severe” based on the requirements set forth in the regulations. Id. However, he
found that the plaintiff does not have an impairment or combination of
impairments that meet or medically equal any of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 47). The ALJ did not find Mr.
Stowe’s statements regarding the severity and limiting effects of his impairments to
be fully credible, and he determined that he has the RFC to perform sedentary
work as described in 20 CFR 404.1567(a) and 416.967(a) and can occasionally climb
ramps and stairs, balance, stoop, kneel, crouch, and crawl; can only frequently
reach overhead; cannot climb ladders, ropes, or scaffolds; cannot tolerate
concentrated exposure to extreme cold, wetness, or humidity or any exposure to
unprotected heights or hazardous moving machinery; has the ability to understand,
remember, and carry out simple but not detailed or complex instructions; can
perform work activities involving no more than occasional decision-making and no
more than occasional changes that are gradually introduced and well explained; can
interact with the public, co-workers, and supervisors on no more than an occasional
basis; and should avoid performing tandem tasks with coworkers. (Tr. at 49, 50).
According to the ALJ, Mr. Stowe is unable to perform any of his past
relevant work. He was a “younger individual” as of the alleged disability onset
date. He has a limited education and is able to communicate in English, as those
terms are defined by the regulations. (Tr. at 52-53). The ALJ determined that
transferability of job skills is not material to the determination of disability. (Tr. at
53). Even though Plaintiff cannot perform the full range of sedentary work, the
ALJ determined that he can perform a limited range of sedentary work and there
are a significant number of jobs in the state and national economy that he is capable
of performing, such as button and notion assembler, final assembler in the optical
goods industry, and pharmaceutical packer. Id. The ALJ concluded his findings by
stating that Plaintiff “has not been under a disability, as defined in the Social
Security Act, from August 1, 2010, through the date of this decision.” (Tr. at 54).
Standard of Review
This court’s role in reviewing claims brought under the Social Security Act
is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting), quoting Consolo v. Federal Mar.
Comm’n, 383 U.S. 607, 620 (1966). Indeed, even if this court finds that the
evidence preponderates against the Commissioner’s decision, the court must
affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400.
No decision is automatic, however, for “despite this deferential standard [for
review of claims] it is imperative that the Court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal
standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.”
20 C.F.R. §§ 404.1527(e), 416.927(d).
plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record
Mr. Stowe argues that the ALJ’s decision should be reversed and remanded
for two reasons: first, he contends that the ALJ failed to incorporate all of his
impairments into the RFC determination, specifically as it concerns neck flexion,
extension, and rotation; and, second, that the ALJ failed to properly apply the
Eleventh Circuit’s pain standard.
Incorporation of Impairments
The plaintiff argues that, despite finding the plaintiff had the severe
impairment of degenerative disc disease (“DDD”) of the cervical spine, the ALJ
failed to take into account all the limitations from this impairment in making his
RFC determination. Due to the ALJ’s failure to incorporate limitations from the
plaintiff’s degenerative disc disease, the plaintiff argues that the ALJ’s RFC
determination is not supported by substantial evidence and is due to be reversed.
The plaintiff points out that medical records from his examination by Dr. Larry O.
Skelton illustrate that the plaintiff has a severely reduced range of motion in his
Specifically, the plaintiff suffers from reduced flexion, extension, and
rotation of the neck. Dr. Skelton’s findings show that the plaintiff has actual
flexion of 30 degrees, actual extension of 10 degrees, right lateral flexion of 15
degrees, left lateral flexion of 15 degrees, and right and left rotation of 50 and 40
degrees, respectively. (Tr. at 253). The state agency physician, Dr. Marcus
Whitman, requested an x-ray of the plaintiff’s cervical spine. (Tr. at 255). The xray indicated a loss of normal curvature, osteophyte formation, and crowding of the
neural foramen of C3 through C8, which, according to the records, resulted in the
plaintiff’s diagnosis of severe degenerative joint disease of the cervical spine.
The plaintiff further claims that the ALJ failed to include any limitations in
neck movement in his hypotheticals to the VE and, therefore, the VE’s testimony
cannot constitute substantial evidence to support the ALJ’s determination of the
plaintiff’s ability to perform certain jobs. The ALJ stated the following regarding
the plaintiff’s cervical spine:
Specifically, the claimant’s musculoskeletal impairments fail to meet
or medically equal listings 1.02 or 1.04. . . . Similarly, while x-ray and
CT results reveal degenerative changes in his cervical and lumbar
spine, the evidence of record overall fails to establish evidence of
neural impingement, spinal stenosis, or neural foraminal stenosis
(Exhibits 3F, 4F, 7F, 12F, 13F).
(Tr. at 47). In his determination of the plaintiff’s RFC, the ALJ also discusses the
plaintiff’s musculoskeletal impairments:
The claimant’s musculoskeletal complaints are also documented. . . .
The claimant also demonstrated decreased ROM in both shoulders
and his neck at that examination as well as 3+/5+ muscle strength in his
arms and 3+/5+ grip strength bilaterally. April 2011 right shoulder
films revealed a grade two AC separation while cervical spine x-rays
revealed osteophyte formations crowding the neural foramen from C3
through C8 that Dr. Skelton described as suspicious for severe degenerative
joint disease (Exhibit 7F).
It is . . . reasonable that he would see an exacerbation of neck and
shoulder pain with more than frequent overhead lifting. The
undersigned has considered all of these factors as well as the nature of
the claimant’s particular impairments in the residual functional
capacity for a restricted range of sedentary work set forth above.
As for the opinion evidence, the undersigned accords partial weight to
Dr. Skelton’s opinions as reflected in this report of examination but
notes that the examiner included no clear functional limitations in that
report other than a recommendation that the claimant use a cane for
balance when necessary (Exhibit 4F).
(Tr. at 50-52) (italics added).
The plaintiff argues that the VE’s testimony regarding the plaintiff’s ability
to perform certain jobs is not adequately supportive of the RFC determination
because the ALJ did not specifically mention the plaintiff’s decreased range of
motion in his hypothetical questions to the VE. However, the transcript reflects
that the ALJ put forth a hypothetical restricting the plaintiff to sedentary work with
limited overhead reaching. The ALJ specified in his RFC determination that the
reaching restriction was pursuant to the plaintiff’s musculoskeletal impairments,
including the reduced ROM in his neck and the evidence of severe DDD in the
cervical spine. The fact that the ALJ did not find the impairment to be as severely
limiting as the plaintiff argues does not mean that the ALJ failed to consider and
evaluate the impairment, or that the determination is not based on substantial
evidence. The nature and extent of the plaintiff’s RFC and the application of
vocational factors are “opinions on issues reserved to the commissioner because
they are administrative findings that are dispositive of a case; i.e., that would direct
the determination or decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d).
The ALJ is not required to refer to every piece of evidence in his
determination, so long as his denial of the plaintiff’s claim is not an arbitrary
dismissal that does not consider the plaintiff’s medical condition as a whole. Dyer
v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (internal citations omitted). A
review of the ALJ’s RFC determination persuades the court that the ALJ did
consider the plaintiff’s medical condition as a whole, including the ROM
limitations in his neck. After considering the entire record, the ALJ determined
that the plaintiff has the RFC to perform sedentary work with several exceptions.
He specifically addressed the plaintiff’s cervical spine impairments in his
discussion of the plaintiff’s RFC. It is not the purview of the court to make factual
determinations or reweigh the evidence, so long as the ALJ’s decision is supported
by substantial evidence. In light of the medical records and subjective testimony
addressed in the ALJ’s opinion, the court is convinced that the ALJ’s
determination is supported by substantial evidence.
The plaintiff argues that the ALJ’s decision should be reversed and
remanded because the ALJ failed to evaluate properly the credibility of the
Plaintiff’s testimony regarding his disabling symptoms consistent with the Eleventh
Circuit pain standard. Subjective testimony of pain and other symptoms may
establish the presence of a disabling impairment if it is supported by medical
evidence. See Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). To establish
disability based upon pain and other subjective symptoms, “[t]he 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 v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citing Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991)); see also Landry v. Heckler, 782 F.2d 1551, 1553 (11th
The ALJ discussed the plaintiff’s allegations of the pain and severity of his
impairments in conjunction with the medical record:
The claimant alleges constant pain in his back, left leg, neck,
shoulders, and/or head that he rates as seven to eight on a scale of one
to 10 (7-8/10) on an average day but with occasional exacerbations to
even more severe levels. He alleges that he is able to stand no longer
than 10 to 15 minutes, sit no longer than 30 minutes, walk less than a
block, and lift no more than five to 10 pounds. He testified that he
uses a cane for balance as necessary on the recommendation of Dr.
Skelton. The claimant testified that his diabetes medications have had
to be changed numerous times because his condition is getting worse
and that he takes several pain medications in addition to his diabetes
After careful consideration of the evidence, the undersigned finds that
the claimant has medically determinable impairments that could
reasonably be expected to cause symptoms such as those alleged;
however, the statements concerning the intensity, persistence and
limiting effects of the claimant’s symptoms are inconsistent with the
evidence of record and are not fully credible.
Objective medical evidence establishes that the claimant has poorly
controlled diabetes but also establishes a history of poor compliance
with treatment (Exhibits 2F, 3F, 12F, 13F). He has frequently been
found to be off medications or taking them incorrectly, fails to follow a
diabetic diet consistently, and does not monitor his blood sugar
regularly. It was during one such a period that the claimant filed his
application for disability and established care at Whatley Health
Services. His glucose level was 323 at the time, and he demonstrated
decreased sensation over the dorsal aspect of both feet consistent with
diabetic neuropathy. However, the claimant’s records also show that
his blood sugar control improves significantly when his compliance
improves. He was prescribed medications through the clinic, and
when he returned for follow-up, his glucose was 117, and his HbA1c, a
test used to determine how well an individual’s diabetes is being
controlled, was 5.6% -- well below the goal of less than 7% generally
sought for known diabetics. The claimant’s compliance had waned by
the time of his next visit with expected results – his glucose was 147
and his A1C had increased to 7.2%. The examination also found
decreased sensation in the bottom of his right foot. The pattern has
continued despite his receiving counseling on the importance of
medication and diet compliance.
The claimant’s musculoskeletal complaints are also documented. He
was evaluated for a possible disc herniation in October 2009 based on
his complaints of severe back pain with lower extremity numbness, but
a lumbar spine MRI showed only mild DDD at L4-5 and L5-S1 with no
neural impingement (Exhibit 2F). He has continued to report pain in
his lower back off and on throughout the pertinent period and exhibits
decreased lumbar range of motion (ROM) on examination; however,
straight leg raising is negative and, as recently as March 201, a
lumbar CT scan produced results similar to the benign October 2009
results (Exhibit 13F). The claimant voiced complaints of constant
knee pain as well as constant back pain at the March 2011 consultative
physical examination (Exhibit 4F). He exhibited decreased flexion in
his right knee on examination, and x-rays of that joint revealed
moderate osteophyte formation. The claimant also demonstrated
decreased ROM in both shoulders and his neck at that examination as
well as 3+/5+ muscle strength in his arms and 3+/5+ grip strength
bilaterally. April 2011 right shoulder films revealed a grade two AC
separation while cervical spine x-rays revealed osteophyte formations
crowding the neural foramen from C3 through C8 that Dr. Skelton
described as suspicious for severe degenerative joint disease (Exhibit
7F). Dr. Skelton also found decreased muscle strength in both of the
claimant’s legs and, noting that the claimant’s gait was so antalgic that
he had to grab onto things to keep from falling, observed that he
appeared to need a cane.
At the hearing, the claimant testified that he was using a cane because
of Dr. Skelton’s recommendation; however, according to his February
2011 function report, he reported that he was using a cane before he
ever saw Dr. Skelton (Exhibit 6E). Additionally, contrary to the
severe gait disturbance that Dr. Skelton observed, Dr. Davis observed
no instability or other gait abnormalities at all when he saw the
claimant less than a month later, and the claimant again presented
without a cane or other assistive device (Exhibit 6F). Even more
notable, records from the claimant’s treating chiropractor consistently
reflect a finding of normal gait – including his most recent
documented visit in May 2012 (Exhibit 13F). The undersigned also
finds it pertinent that the significant deficits in upper and lower
extremity motor strength noted at the consultative examination
presented as equal and symmetrical bilaterally. Additionally, despite
the severe gait instability, the significant weakness in the arms and
legs, and the significant reduction in grip strength demonstrated
during Dr. Skelton’s examination, the claimant reported that he had
been changing oil and working on cars when he sought treatment for
dermatitis at his PCP clinic a short time later. The undersigned notes
also that while the claimant complained of lower extremity pain at the
hearing, he identified the site of that pain as his left leg and voiced no
complaints of right knee pain or any other right lower extremity
Despite his allegations of constant pain that, at its best, is 7-8/10, the
claimant has received conservative treatment in the form of
chiropractic adjustment, NSAIDs, and muscle relaxants. There is no
evidence that treatment with stronger, narcotic pain medications or a
referral to a pain clinic has been suggested. The claimant has
identified his drowsiness and amount of time he sleeps during the day
as contributing to his overall inability to work. The undersigned notes,
however, that he was specifically prescribed medications to induce
sleep in response to his complaints of insomnia and pain-based sleep
disturbances and was advised to take those medications at bedtime.
There is no evidence that the claimant has complained of excessive
sedation or that he has requested that medications be changed or
reduced because of excessive sedation.
The claimant clearly has functional limitations associated with his
diabetes and musculoskeletal conditions, and it is reasonable that he
experiences pain and fatigue associated with those conditions;
however, the evidence simply fails to support the severity of
symptoms alleged. His development of neuropathic symptoms is not
unexpected given his long history of uncontrolled diabetes and, as set
forth above, there is objective evidence of cervical and lumbar DDD
and knee and shoulder OA. The undersigned finds it reasonable that
prolonged standing and lifting and/or carrying more than 10 pounds or
so could cause an exacerbation of his knee and back impairments and
that his diabetes-related fatigue would preclude his ability to walk
prolonged distances. It is also reasonable that he would see an
exacerbation of neck and shoulder pain with more than frequent
overhead lifting. The undersigned has considered all of these factors
as well as the nature of the claimant’s particular impairments in the
residual functional capacity for a restricted range of sedentary work set
forth above. . . . The residual functional capacity is also consistent with
the claimant’s report that he cooks, performs light housekeeping and
yard work, shops as necessary, drives short distances, collects rocks
for a hobby, attends church, handles his own finances, etc.
(Tr. at 50-52).
The ALJ is permitted to discredit the claimant’s subjective testimony of pain
and other symptoms if he or she articulates explicit and adequate reasons for doing
so. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul.
96-7p, 1996 WL 374186 (1996)(“[T]he adjudicator must carefully consider the
individual’s statements about symptoms with the rest of the relevant evidence in
the case record in reaching a conclusion about the credibility of the individual’s
statements.”). Although the Eleventh Circuit does not require explicit findings as
to credibility, “‘the implication must be obvious to the reviewing court.’” Dyer,
395 F.3d at 1210 (quoting Foote, 67 F.3d at 1562).
“[P]articular phrases or
formulations” do not have to be cited in an ALJ’s credibility determination, but it
cannot be a “broad rejection which is not enough to enable [the district court or
this Court] to conclude that [the ALJ] considered [his] medical condition as a
whole.” Id. (internal quotations omitted). In the present case, the ALJ found that
the plaintiff meets the first prong of the Eleventh Circuit’s pain standard, but that
“the statements concerning the intensity, persistence and limiting effects of the
claimant’s symptoms are inconsistent with the evidence of record and are not fully
credible.” (Tr. at 50). The ALJ further proceeded to provide a detailed discussion
of the discrepancies between the plaintiff’s allegations of the severity of his
symptoms and the medical record and the plaintiff’s testimony regarding activities
of daily living (changing oil and repairing cars).
He also noted the very
conservative nature of the treatment plaintiff received, which suggested that the
pain was not as great as claimed by plaintiff. The ALJ adequately explained why he
found the plaintiff’s subjective testimony regarding the pain and severity of his
symptoms to be less than credible.
The plaintiff further argues that the ALJ did not properly consider his
medical records and the opinions of consulting physicians. The ALJ addressed the
medical opinions as follows:
As for the opinion evidence, the undersigned accords partial weight to
Dr. Skelton’s opinions as reflected in his report of examination but
notes that the examiner included no clear functional limitations in that
report other than a recommendation that the claimant use a cane for
balance when necessary (Exhibit 4F). Similarly, the undersigned
accorded partial weight to the opinions of the State agency medical
consultant; however, given the combined effect of neuropathy with
DDD and OA, a restriction to sedentary work appears more
reasonable (Exhibit 10F).
(Tr. at 52). Although the ALJ did not address each piece of medical evidence
provided in the record, there is no requirement that he do so as long as the ALJ
does not arbitrarily dismiss the plaintiff’s claims. Dyer, 395 F.3d at 1211. The ALJ
considered the plaintiff’s medical records and provided an adequate discussion of
his reasoning for giving certain medical opinions less than full weight. Opinions
regarding whether the plaintiff is disabled, his RFC, and the application of
vocational factors are not medical decisions. Such decisions are reserved for the
Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(d).
Upon review of the administrative record, and considering all of Mr. Stowe’s
arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
DONE this 10th day of September, 2015.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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