Harris v. Astrue
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 7/20/2016. (AVC)
2016 Jul-20 AM 10:55
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No.: 2:14-CV-2185-RDP
MEMORANDUM OF DECISION
Plaintiff Willie Harris brings this action pursuant to Sections 205(g) and 1631(c)(3) of the
Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social
Security (“Commissioner”) denying his claims for a period of disability, disability insurance
benefits (“DIB”), and Supplemental Security Income (“SSI”). See also, 42 U.S.C. §§ 405(g) and
1383(c). Based on the court’s review of the record and the brief submitted by Defendant, the
court finds that the decision of the Commissioner is due to be affirmed.
Plaintiff applied for a period of disability, DIB, and SSI on October 21 and 28, 2009,
alleging a disability onset date in June 2008.1 (Tr. 127-37). These applications were denied on
March 31, 2010. (Tr. 59-72). On September 22, 2010, Plaintiff requested a hearing by an
Administrative Law Judge (“ALJ”) which was held on November 18, 2011. (Tr. 21, 73). Three
days later, on November 21, 2011, Plaintiff requested to withdraw his claim for disability
Plaintiff originally claimed he was disabled on June 30, 2008, but during the hearing requested his onset
date be changed to the date of his sobriety. (Tr. 26, 156). However, this is a moot issue because the ALJ
determined that Plaintiff had not engaged in substantial gainful activity since the earlier onset date. (Tr. 11).
benefits. (Tr. 196-97). Notwithstanding this request, the ALJ issued a decision finding Plaintiff
not disabled. (Tr. 16). Plaintiff filed his appeal with the sole argument that the ALJ does not
have the legal authority to determine whether Plaintiff was disabled after Plaintiff chose to
withdraw his disability claim. (Doc. 1, p. 2-3). The Appeals Council denied Plaintiff’s request
for review (Tr. 1), making this case ripe for judicial review.
Plaintiff was fifty-two years old at the time his hearing. (Tr. 26). Plaintiff testified that
he has, roughly, a fifth grade education and was functionally illiterate.2 (Tr. 25-26), Plaintiff has
past relevant work history as a van driver, truck driver, and moving truck driver. (Tr. 50).
Plaintiff testified during his hearing that he became disabled on November 1, 2009 due to a heart
attack and hammer toes. (Tr. 26).
On July 9, 2009, Plaintiff was seen by Dr. Lori Vazzana after a sudden onset of chest
pain that appeared to be induced by recent cocaine use. (Tr. 236). Dr. Vazzana reported that
Plaintiff had suffered a previous heart attack three years earlier and that was also induced by
cocaine use. (Id.). At the time, Plaintiff reported a “7/10 chest pain.” (Id.).
On August 7, 2009, Dr. Dagan Coppock, Plaintiff’s treating physician, saw Plaintiff in
connection with a follow-up exam to Plaintiff’s heart surgery. (Tr. 297). Dr. Coppock reported
that Plaintiff “has no complaints,” and was “[n]egative for chest pain.” (Id.). Dr. Coppock saw
Plaintiff again on November 25, 2009, this time for depression. (Tr. 305). Plaintiff reported no
The record concerning Plaintiff’s educational background is murky. (Tr. 15). Though Plaintiff testified at
his hearing that he only obtained a fifth grade education and could not read or write, Plaintiff stated to the social
security administration that he completed the ninth grade and had vocational training. (Tr. 166). Plaintiff also
informed a state Agency mental health examiner, Dr. Mark Sokal, that he had “completed the eighth grade” and
could “read and write and add and subtract without problem.” (Tr. 326). Supporting his statement to Dr. Sokal,
Plaintiff successfully spelled “world” during an oral memory test with the same doctor. (Tr. 327).
chest pains and Dr. Coppock reported that Plaintiff’s “[e]nergy level has improved significantly.”
On January 4, 2010, Dr. Coppock learned that Plaintiff had filed for disability. (Tr. 308).
During the exam, Dr. Coppock opined that Plaintiff “admits to poor med compliance and [is] not
following up with [his] cardiologist.” (Id.). Additionally, Dr. Coppock did not mention any
report of pain by Plaintiff, and noted that “he still feels impaired [in] his ability to engage with
work due to low energy/fatigue.” (Id.). During this exam, Plaintiff gave Dr. Coppock two
residual functional capacity (“RFC”) forms to fill out. (Tr. 276-82).
Dr. Coppock’s RFC questionnaires reflect what Plaintiff told him. The only symptom
listed in the report is “Shortness of Breath,” even though fatigue and chest pain were options.
(Tr. 276). When asked what degree Plaintiff could tolerate work stress, Dr. Coppock reported
that Plaintiff could not perform even low stress jobs because “[Plaintiff] reports inability to
perform low stress jobs.” (Tr. 277). Dr. Coppock opined that Plaintiff’s cardiac condition could
“often” be expected to interfere with his attention and concentration. (Id.). Dr. Coppock
estimated that Plaintiff could walk one block before needing rest, could only sit, stand, or walk
consistently for less than two hours, and would likely be absent from work more than three times
a month. (Tr. 278). On the second form, Dr. Coppock either referred to the form containing the
information above or put the same information. (Tr. 280-82).
Plaintiff’s next visit was on March 9, 2010. (Tr. 310). Plaintiff reported getting winded
when climbing three flights of stairs, but otherwise had nothing negative to report. On April 12,
2010, Dr. Coppock observed that Plaintiff was negative for fatigue and chest pain, and had a
stable respiratory system. (Tr. 312). On May 12, 2010, Plaintiff reported he could not work due
to chronic dyspnea. (Tr. 315). However, Dr. Coppock reported that Plaintiff was not in distress
and had a normal respiratory system. (Id.). Plaintiff’s cardiovascular system report included a
finding of Recurrent Respiratory Papillomatosis and a potential heart murmur. (Id.).
On July 22, 2010, Dr. R.C. Brown performed a physical RFC assessment to determine if
Plaintiff was physically disabled. (Tr. 324). Dr. Brown relied on Plaintiff’s medical records,
concluding that Plaintiff could occasionally lift fifty pounds and frequently lift twenty-five
pounds or less. (Tr. 318). Dr. Brown reported that Plaintiff could stand or sit for six hours
during an eight hour workday. (Id.). Dr. Brown concluded that Plaintiff could work because
Plaintiff had several normal cardiac evaluations, was stable and non-severe, and no foot issue
was mentioned in the medical record or in Plaintiff’s disability paperwork. (Tr. 324).
Dr. Mark Sokol performed a mental evaluation for the state agency on August 12, 2010.
(Tr. 325). Plaintiff complained that he could not work because he was “constantly short of
breath and exhausted.” (Id.). Plaintiff reported he was two years sober and graduated from the
North Cottage program. (Tr. 326). Plaintiff reported no learning difficulties, and that he was
literate. (Id.). Plaintiff complained of occasional throbbing pain in his feet. (Id.). Dr. Sokol
concluded that Plaintiff suffered from a moderate form of depression and had a mildly impaired
short term memory. (Tr. 327-28). Dr. Sokol made no conclusions on whether Plaintiff was
disabled from his mental condition.
On October 30, 2010, Dr. Stacey Fiore reviewed Dr. Sokol’s report and the rest of his
medical records to determine if Plaintiff met the Listings. (Tr. 329). Dr. Fiore concluded that
Plaintiff’s statements on his drug and alcohol abuse are inconsistent and that even with his
depression diagnosis, had no higher than moderate functional limitations in his capacity to work.
(Tr. 341-43). Dr. Fiore further concluded that Plaintiff could maintain concentration for up to
two hours at a time, and could tolerate both the social demands of a work setting and reasonable
changes that might occur at a job. (Tr. 344).
Plaintiff saw Dr. Coppock again on July 12, 2011, after going more than a year without
Dr. Coppock noted that Plaintiff had not been taking his
medication compliantly, his respiratory system was fine, he was not in any distress, and his
cardiovascular system was unchanged since his last check-up. (Id.). Dr. Coppock stressed to
Plaintiff that it was very important that he take his medication. (Tr. 348).
Plaintiff was admitted to Aultman Hospital on September 18, 2011.
Plaintiff’s only complaint was his chest pain. (Tr. 353). Plaintiff told hospital staff that the chest
pain occurred while he was having alcoholic beverages, though he denied any vomiting or
strenuous activity during the onset of the pain. (Id.). Plaintiff reported to hospital staff that he
drinks “approximately a six pack of beer a day”; he denied using any illegal drugs. (Tr. 354).
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520.
First, the ALJ must determine whether the claimant is engaging in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing
significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is
work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant
engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
404.1520(b). Second, the ALJ must determine whether the claimant has a medically
determinable impairment or a combination of medical impairments that significantly limits the
claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such
impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether
the claimant’s impairment meets or medically equals the criteria of an impairment listed in 20
C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under
the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ
must first determine the claimant’s RFC, which refers to the claimant’s ability to work despite
his impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines whether the
claimant has the RFC to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the
claimant is determined to be capable of performing past relevant work, then the claimant is
deemed not disabled. Id. If the ALJ finds the claimant unable to perform past relevant work,
then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last
part of the analysis, the ALJ must determine whether the claimant is able to perform any other
work commensurate with his RFC, age, education, and work experience.
20 C.F.R. §
404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the
existence, in significant numbers, of jobs in the national economy that the claimant can do given
his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).
Here, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since his alleged onset date and has the following severe impairments: coronary artery disease,
status post myocardial infarction with three stenting procedures, mood disorder, and substance
abuse disorder. (Tr. 11). The ALJ then found that Plaintiff “does not have an impairment or
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,” noting that:
Listing 4.04 requires chest discomfort associated with myocardial ischemia with:
(A) sign or symptom limited exercise test; (B) three separate ischemic episodes or
(C) coronary artery disease; AND, marked limitation of physical activity. The
record contains no medical findings that meet the criteria of this listing.
The severity of [Plaintiff]’s mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of listings 12.04 and
The ALJ also concluded that Plaintiff:
Has the residual functional capacity to perform a wide range of medium work as
defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c): lifting and carrying 50
pounds occasionally and 25 pounds frequently; standing and/or walking six hours
out of an eight-hour workday and sitting six hours out of an eight-hour workday.
[Plaintiff] is capable of frequently climbing ramps and stairs, balancing, stooping,
kneeling, crouching and crawling: however, [Plaintiff] is limited to occasionally
climbing ladders, ropes and scaffolds. [Plaintiff] is limited to maintaining
concentration, persistence or pace in two-hour increments, eight hours per day,
forty hours per week. [Plaintiff] is limited to performing work with a specific
vocational preparation of three or less.
During Plaintiff’s hearing, the ALJ asked vocational expert Dr. James F. Scorzelli if a
person with Plaintiff’s designated RFC could perform any of Plaintiff’s past relevant work. Dr.
Scorzelli responded that Plaintiff “could return to the job as a van driver and a truck driver.” (Tr.
The ALJ concluded on the basis of Dr. Scorzelli’s testimony that Plaintiff “is capable of
performing past relevant work as a van driver and truck driver. This work does not require the
performance of work-related activities precluded by [Plaintiff]’s residual functional capacity.”
(Tr. 15). The ALJ determined that Plaintiff has not been under a disability, as defined in the
Social Security Act, from June 30, 2008, through the date of the ALJ’s decision. (Tr. 16).
Plaintiff’s Argument for Reversal
Before the ALJ, Plaintiff attempted to dismiss his petition and argued that the ALJ was
without authority to issue a decision on the merits of his claim. Plaintiff has not submitted a
brief in support of overturning the ALJ’s disability determination or the Commissioner’s
decision. There is no argument challenging the ALJ’s decision other than the allegation in
Plaintiff’s complaint that the ALJ could not determine if Plaintiff was disabled after Plaintiff
withdrew his claim. (Doc. 1, p. 2-3). Thus, the court considers all arguments on issues of fact
waived. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (“because
Cunningham has offered no argument on this issue on appeal, we find that he has abandoned
Standard of Review
The only issues before this court relating to the contents of the ALJ’s decision are
whether the record reveals 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 correct legal
standards were applied. 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 findings are conclusive if supported by “substantial evidence.”
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 Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
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, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed even if the evidence preponderates 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, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
The ALJ Had the Authority to Determine if Plaintiff was Disabled After
Plaintiff Withdrew His Claim
The controlling regulations on this issue are 20 C.F.R. §§ 404.957(a), and 416.1457(a).
The texts of both regulations are the same:
An administrative law judge may dismiss a request for a hearing under any of the
(a) At any time before notice of the hearing decision is mailed, you or the party
or parties that requested the hearing ask to withdraw the request. This request
may be submitted in writing to the administrative law judge or made orally at
20 C.F.R. §§ 404.957(a), 416.1457(a) (emphasis added). The text clearly grants the ALJ the
discretion to either accept or deny Plaintiff’s withdrawal request. The ALJ did not err in
determining that Plaintiff was not disabled after Plaintiff withdrew his disability request.
The ALJ Correctly Followed the Five Step Test
After reviewing the ALJ’s decision, the court finds that the ALJ properly engaged in the
five-step test. The ALJ determined that Plaintiff: (1) did not engage in substantial gainful
activity (Tr. 1); (2) had “impairments [that] are severe, in combination if not singly” (Id.); and
(3) did not meet relevant Listing requirements (Tr. 12). In light of these findings, the ALJ
created an RFC determination for Plaintiff (Tr. 13); and determined, with the aid of a vocational
expert, that certain jobs in Plaintiff’s past relevant work could be performed by an individual
with Plaintiff’s RFC. (Tr. 15). The court finds therefore concludes that the ALJ followed the
proper legal standards. See 20 C.F.R. §§ 404.1520(a); 416.920(b).
The ALJ’s Disability Determination is Supported by Substantial Evidence
After review, the court also finds that the ALJ’s decision is supported by substantial
evidence. The ALJ’s list of severe impairments is well-supported by the medical record, and is
likely every impairment Plaintiff would argue he suffers from on appeal. (Tr.11). The ALJ
determined Plaintiff did not meet Listings 12.04 and 12.09, and his conclusion that Plaintiff does
not have any severe or extreme impairments is supported by Dr. Fiore’s medical report. (Tr. 12,
341-43). Furthermore, Dr. Fiore’s report is buttressed by Dr. Susan Witkie, who testified as to
similar findings at Plaintiff’s hearing. (Tr. 43-46).
Additionally, the court finds that the ALJ’s RFC determination is supported by
substantial evidence. Dr. Brown’s medical consultation report matches the ALJ’s determination
almost perfectly. (Tr. 13, 318-19). While an argument could be made that Dr. Coppock’s RFC
statement is entitled to controlling weight because Dr. Coppock was Plaintiff’s treating
physician, this argument fails upon a review of the record. Plaintiff had several normal cardiac
examinations, infrequently complained of shortness of breath to Dr. Coppock, and infrequently
took his medications. (Tr. 297, 305, 308, 312, 347-48). This constitutes good cause to reject Dr.
Coppock’s assessment. See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (“We have
found ‘good cause’ to exist where the doctor’s opinion was not bolstered by the evidence, or
where the evidence supported a contrary finding. We have also found good cause where the
doctors’ opinions were conclusory or inconsistent with their own medical records.”) (internal
Substantial evidence also supports the ALJ’s determination that Plaintiff’s subjective
testimony was incredible. The Eleventh Circuit follows a two-prong pain standard, which
In order to establish a disability based on testimony of pain and other symptoms, a
claimant must satisfy two parts of a three-part test showing: (1) evidence of an
underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991)).
After an ALJ determines that an objectively determined medical condition can reasonably
be expected to cause the pain, an ALJ may reject the subjective pain testimony as incredible if
the ALJ can show inconsistencies between the claimant’s testimony and their daily activities,
medical record, doctor’s notes, and any other relevant evidence. See 20 C.F.R. § 416.929(c)(3).
The ALJ properly recited the pain test (Tr. 13), and found Plaintiff’s subjective testimony
on his fatigue not fully credible. (Tr. 14). The ALJ cited the report of Dr. Brown in discrediting
Plaintiff’s alleged physical limitations, and Dr. Fiore’s mental report to discredit Plaintiff’s
alleged difficulty concentrating. (Tr. 14). Dr. Coppock’s report was properly rejected for
reasons discussed above. (See intra. 9). Moreover, Plaintiff’s inconsistent testimony regarding
his sobriety3 and educational history support the conclusion that Plaintiff is incredible. (Tr. 1415). An ALJ may reject subjective testimony on the basis of a discrepancy about a claimant’s
substance abuse, when that abuse is relevant. See Green v. Colvin, 2014 WL 1379969 *7 (S.D.
Ga. 2014) (“In making these credibility determinations, the ALJ was free to cite Green’s
Specifically, although the ALJ noted that Plaintiff, through his attorney, reported at the hearing that
Plaintiff had been “free of all substances, either drugs or alcohol” since November 1, 2009, that representation is
inconsistent with Plaintiff’s September 18, 2011 admission to hospital staff that he drank a six-pack of beer a day.
(Tr. 354). Though there are other inconsistencies in the record, this is the most egregious.
January 2009 report of no drug or alcohol in the prior six months, only to then claim (six months
later) that he had last used drugs or alcohol ‘about two years’ ago.”).
Finally, the ALJ’s determination that Plaintiff could perform past relevant work given
Plaintiff’s RFC is supported by the hearing testimony of the vocational expert. (Tr. 51).
The court concludes that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence and the proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed. A separate
order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this July 20, 2016.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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