Ray v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 9/7/2016. (KAM, )

FILED
2016 Sep-07 AM 09:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROGER ALLEN RAY,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

Case No. 2:15-cv-01041-JEO

MEMORANDUM OPINION
Plaintiff Roger Allen Ray (“Ray” or “the claimant”) brings this action
seeking judicial review of a final adverse decision of the Acting Commissioner of
the Social Security Administration (“the Commissioner”) denying his application
for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental
Security Income (“SSI”). (Doc.1 1). This court has carefully considered the
record, and for the reasons stated below, finds that the decision of the
Commissioner is due to be affirmed.
I. PROCEDURAL HISTORY
Ray filed for a period of disability, DIB, and SSI on December 26, 2013,

1

References herein to “Doc(s).__” are to the document numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the docket
sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
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alleging disability beginning October 3, 2013. (R.2 165-72). The Social Security
Administration initially denied his claim on April 10, 2014. (R. 96). He then
requested a hearing before an Administrative Law Judge (“ALJ”). (R. 110). Ray,
his counsel, and a Vocational Expert (“VE”) appeared at the hearing. (R. 28-61).
Following the hearing, the ALJ found that Ray was not disabled within the
meaning of the Social Security Act and was not entitled to DIB and SSI. (R. 23).
Ray requested the Appeals Council to review the ALJ’s decision. (R. 5).
The Appeals Council denied his request. (R. 1-3). Therefore, the ALJ’s decision
represents the final decision of the Commissioner. (Id. at 1). Ray timely filed this
action for judicial review, asserting that the Commissioner erred as a matter of law
in determining that he is not entitled to DIB and SSI and that the Commissioner’s
decision is not supported by substantial evidence. (Doc. 1 at 1).
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal
standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420,
1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court
must “scrutinize the record as a whole to determine if the decision reached is
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References herein to “R.__” are to the page numbers of the administrative record, which is
located at Docs. 7-1 through 7-8.
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reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983). 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.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions 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 application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for DIB or SSI based on a disability, 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. § 423(d)(1)(A); 42 U.S.C. § 416(i); 42 U.S.C.
§ 1382c(a)(3)(A). A physical or mental impairment is “an impairment that results
from anatomical, physiological, or psychological abnormalities which are
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demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(C).
Determination of disability under the Social Security Act requires a five step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014) (citing 20
C.F.R. § 404.1520(a)(4)). “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.’ ” McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th
Cir. 1986). “Once a finding is made that a claimant cannot return to prior work the
burden shifts to the [Commissioner] to show other work the claimant can do.”
Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.; Evans, 551 F. App’x at 524.

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IV. DISCUSSION
A.

The Facts
1.

Background

Ray was 53 years old when he filed his claim for DIB and SSI. He has past
relevant work experience as a flooring installer and dispatcher. (R. 22). In his
disability report, he identified numerous medical conditions that limited his ability
to work, including degenerative disk and bone disease, arthritis, spinal stenosis,
bone spurs in his neck, mitral valve prolapse, high blood pressure, high cholesterol,
and anxiety disorder. (R. 187). He last worked in 2011, when he was laid off from
his job as a dispatcher. (R. 188). He alleged a disability onset date of October 3,
2013. (R. 12, 165, 167).
At the hearing before the ALJ, Ray testified that since October 2013, the
pain in his lower back and upper neck has made it “almost impossible” for him to
do any sort of task for more than a few minutes. (R. 35). He stated that he cannot
stand or walk for more than three hours a day, cannot sit for more than three hours
a day, can sit for only 15 to 20 minutes at a time, and cannot lift more than five
pounds. (R. 48-49). He rated his daily pain at a seven out of ten, even with
medication. (R. 50-51). Ray testified that he deals with his pain by lying down
about two hours a day. (R. 54). Despite his pain, he performs some household
chores, shops for groceries, and plays guitar for ten minutes twice a week. (R. 375

40).
2.

ALJ Findings

The ALJ found that Ray has the “severe” physical impairments of spurring
and stenosis of the cervical spine, spinal stenosis and disk protrusion in the lumbar
spine, and degenerative joint disease/osteoarthritis. (R. 14). She concluded,
however, that Ray’s impairments, alone and in combination, did not meet or
medically equal the severity of one of the listed impairments in the Listings.3 (R.
18).
The ALJ then found that Ray has the residual functional capacity4 (“RFC”)
to lift and carry twenty pounds occasionally and ten pounds frequently; stand or
walk six hours in an eight-hour day; and sit eight hours in an eight-hour day. (R.
18). She further found that Ray can never climb a ladder, rope, or scaffolding and
can only occasionally stoop, kneel, crouch, crawl, and climb ramps or stairs. (Id.)
Premised on the testimony of the VE, the ALJ found that Ray was capable of
performing his past relevant work as a dispatcher, which the VE identified as light
work. (R. 22, 55). She thus concluded that Ray was not disabled from October 3,
2013, through the date of her decision. (R. 23).

3

The Listings are located at 20 C.F.R. pt. 404, subpt. P, app. 1.

4

Residual functional capacity is the most a claimant can do despite his impairment(s). See 20
C.F.R. §404.1545(a)(1).
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B.

Analysis
Ray argues that the Commissioner’s decision should be reversed and

remanded for two reasons. First, he argues that the ALJ failed to properly evaluate
the credibility of his complaints of pain consistent with the Eleventh Circuit’s pain
standard. Second, he argues that the ALJ failed to articulate good cause for
according only “little weight” to the opinion of his treating physician, Dr. Jeffrey
Davidson. The court will address each argument in turn.
1.

Ray’s Credibility

When a claimant asserts disability premised on pain or other subjective
symptoms, he or she must present evidence to support the Eleventh Circuit’s pain
standard:
In order to establish a disability based on testimony of pain and other
symptoms, the 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); see also Foote,
67 F.3d at 1560. Applying this standard, Chief United States District Judge
Karon O. Bowdre has stated:
If an ALJ discredits a claimant’s subjective complaints, he must give
“explicit and adequate reasons” for his decision. See [Foote], [67
F.3d] at 1561-62. “A clearly articulated credibility finding with
substantial supporting evidence in the record will not be disturbed by
a reviewing court.” Id. at 1562. The ALJ’s credibility determination
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need not cite “particular phrases or formulations” as long as it enables
the court to conclude that the ALJ considered the claimant’s medical
condition as a whole. See Dyer v. Barnhart, 395 F.3d 1206, 1210-11
(11th Cir. 2005) (citing Foote, 67 F.3d at 1561).
Siquina v. Colvin, Case No. 3:11-cv-3269-KOB, 2013 WL 5521156, *6 (N.D. Ala.
Sept. 30, 2013).
Here, the ALJ found that Ray’s “medically determinable impairments could
reasonably be expected to cause some symptoms.” (R. 22). She determined,
however, that Ray’s “alleged difficulties and restrictions, when compared to the
objective medical evidence, the physical examinations, and his demonstrated
ability, indicate that [he] has overstated the severity of his symptomology resulting
from his underlying impairments.” (R. 19-20). Ray challenges this assessment of
his credibility, arguing that the ALJ’s determination is not supported by substantial
evidence and that the ALJ failed to properly consider the progressive nature of his
conditions and the entirety of the medical evidence within the record. (Doc. 11 at
6-9). The Commissioner retorts that the ALJ’s determination of Ray’s credibility
is supported by substantial evidence. (Doc. 12 at 8). The court agrees with the
Commissioner.
In support of his contention that the ALJ ignored the progressive nature of
his conditions, Ray points to his spinal stenosis and degenerative disc disease. Ray
was first diagnosed with spinal stenosis and degenerative disc disease in 2003. (R.
14, 255). The record reflects that an MRI of Ray’s spine was taken on October 10,
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2003, and that Dr. Daniel Thompson interpreted the MRI as showing moderately
severe spinal stenosis at L4-L5; changes at the L5-S1 disc that were likely
degenerative; and mild disc protrusion at L5-S1. (Id.) Ray argues that the ALJ
failed to consider “the high likelihood that [his] spinal stenosis and degenerative
disc disease worsened over the years” and that he “undoubtedly suffers from
significant back pain which limits him to sedentary work, at best.” (Doc. 11 at 78). Even assuming that Ray’s spinal stenosis and degenerative disc disease did
worsen over time, substantial evidence supports the ALJ’s determination that Ray
has overstated the severity of his symptoms resulting from these impairments.
The ALJ noted in her decision that Ray “continued to perform substantial
gainful activity [at] the light exertional level for numerous years” after his back
problems were initially diagnosed in 2003. (R. 19). She also noted that “the
various physical examinations within the record indicate no substantial restriction
to [Ray’s] ability to ambulate, or perform work-related tasks.” (R. 20). The ALJ
summarized the medical evidence as follows:
The claimant underwent a physical examination conducted by Dr.
Davidson on October 3, 2013 (the alleged onset date). Dr. Davidson
noted that the claimant was doing well and had no current complaints.
… Dr. Davidson reported that the claimant had no spinal tenderness or
misalignment, his leg raising was negative, and no CVA tenderness
was noted.
Moreover, the claimant underwent a consultative physical
examination conducted by Ammar Aldaher, M.D., on April 2, 2014.
… [The claimant] had no edema, clubbing, or stenosis in the
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extremities. His range of motion in the upper and lower extremities
was within normal limits. Dr. Aldaher related that the claimant had
no abnormality of range of motion in the lumbosacral area. In fact,
Dr. Aldaher observed that the claimant’s gait was normal without
ataxia or spasticity. The claimant had no muscle weakness, normal
reflexes, and a normal grip. His seated leg raising was negative. Dr.
Aldaher opined that the claimant would be able to do work-related
activities, such as sitting, standing, walking, lifting, carrying, and
handling objects.
…
The physical examination conducted by Dr. Mullen[s] on August 22,
2014, also support[s] the findings and opinions of Dr. Aldaher’s
physical examination. … Dr. Mullen[s’s] examination revealed that
the claimant had no substantial musculoskeletal difficulties. Dr.
Mullen[s] reported the claimant had a normal full range of motion of
all joints without clubbing, cyanosis, edema, or deformity. He noted
the claimant had normal muscular tone for his age. … Moreover, the
claimant subsequently underwent an exercise stress test on August 25,
2014, without noted difficulty.
Furthermore, during a follow-up on October 30, 2014, Dr. Davidson
again noted that the claimant was doing well with no current
complaints. Additionally, the claimant denied having any limitation
of motion. In fact, Dr. Davidson’s physical examination of the
claimant was ostensibly normal. The claimant had no spinal
tenderness or misalignment. His leg raising test was negative, and no
CVA tenderness was noted. The claimant’s range of motion with the
spine was normal. Moreover, Dr. Davidson observed that the
claimant’s gait was normal and the claimant was able to stand without
difficulty.
(R. 20-21 (exhibit citations omitted); see R. 276, 302-303, 331-39, 355-58). All of
this medical evidence provides substantial support for the ALJ’s decision to
discredit Ray’s testimony regarding the severity of his symptoms and belies his
assertion that the ALJ failed to consider the entirety of the medical evidence in the
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record.
Ray also argues that the ALJ erroneously relied on “isolated inconsistencies”
in the record to support her negative credibility finding. (Doc. 11 at 7).
Specifically, Ray cites the ALJ’s observation that although “the claimant testified
[at the hearing] that he had not exercised during the summer of 2014 … Dr.
Mullens documented, during his cardiac evaluation [in August 2014], that the
claimant exercised.” (R. 20). Ray argues that the ALJ’s “reliance upon one
notation in the record that was ‘inconsistent’ with [his] testimony is irrational and
not supported by substantial evidence.” (Doc. 11 at 7).
An ALJ “is entitled to consider inconsistencies between a claimant’s
testimony and the evidence of record.” McCray v. Massanari, 175 F. Supp. 2d
1329, 1338 (M.D. Ala. 2001). That is what the ALJ did here. Moreover, Ray’s
suggestion that the ALJ relied on a single inconsistency to discredit his testimony
is unfounded. The inconsistency between Ray’s testimony and the evidence of
record regarding whether he exercised in 2014 was simply one of many reasons
cited by the ALJ in support of her negative credibility finding. (See R. 20-22). For
example, the ALJ observed that Ray was able to sit throughout the entire hour-long
hearing despite his assertion that he was capable of sitting for only 10 to 15
minutes at a time and despite being advised that he could stand if he needed to. (R.
20). She also observed that Ray was able to testify and answer questions with little
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difficulty, even though he claimed to be experiencing a pain level of seven on a
zero-to-ten point scale. (Id.) Such observations are appropriate considerations in
making a credibility determination. See Social Security Ruling (SSR) 96-7p, 1996
WL 374186, *8 (July 2, 1996) (noting that the ALJ “should consider any personal
observations in the overall evaluation of the credibility of the individual’s
statements”)5; Norris v. Heckler, 760 F.2d 1154, 1158 (11th Cir. 1985) (“an ALJ
may consider the claimant’s demeanor among other criteria in making credibility
determinations”). The ALJ also cited all of the medical evidence discussed above.
In sum, notwithstanding Ray’s assertions to the contrary, the ALJ considered
the entirety of the record in evaluating his testimony regarding the severity of his
symptoms. She gave “explicit and adequate reasons” for deciding not to credit his
testimony. Foote, 67 F.3d at 1561. Accordingly, the court finds that the ALJ
properly applied the Eleventh Circuit’s pain standard and that her decision to
discredit Ray’s testimony is “reasonable and supported by substantial evidence.”
Bloodsworth, 703 F.2d at 1239.
2.

Dr. Davidson’s Opinion

As noted above, Ray’s treating physician, Dr. Davidson, examined Ray on

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SSR 96-7p, which was in effect when the ALJ issued her decision, has been superseded by SSR
16-3p effective March 28, 2016. SSR 16-3p eliminates the use of the term “credibility” and
instead provides that the ALJ “will consider any personal observations of the individual in terms
of how consistent those observations are with the individual’s statements about his or her
symptoms as well as with all of the evidence in the file.” SSR 16-3p, 2016 WL 1119029, *7
(March 16, 2016).
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October 30, 2014. (R. 355-58). That same day, Dr. Davidson completed a “checkbox” form titled “Non-Exertional Factors Affecting Your Patient.”6 (R. 353). Dr.
Davidson opined that Ray suffers from “moderately severe” pain that “[c]ould be
tolerated but would cause some handicap in the performance of the activity
precipitating the pain.” (Id.) He indicated that Ray would need frequent rest
periods during the day to relieve the pain and would likely have to miss three or
more days per month from work. (Id.) He also indicated that there might be
“possible side effects” from Ray’s medications. (Id.)
The ALJ acknowledged the opinions expressed by Dr. Davidson on the
check-box form, but gave those opinions “little weight.” (R. 21). Ray argues that
the ALJ erred in according Dr. Davidson’s opinions only “little weight” and that
she failed to articulate good cause for doing so. (Doc. 11 at 9-10). The court does
not agree.
The opinion of a treating physician such as Dr. Davidson “must be given
substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “Good cause” exists
“when the: (1) treating physician’s opinion was not bolstered by the evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Phillips v.

6

The origin of the form is not apparent from the record.
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Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) (citing Lewis, 125 F.3d at 1440).
“When electing to disregard the opinion of a treating physician, the ALJ must
clearly articulate [her] reasons.” Id.
Here, the ALJ clearly and thoroughly articulated her reasons for according
little weight to the opinions expressed by Dr. Davidson on the check-box form:
Dr. Davidson’s opinions contained within this form are not consistent
with the claimant’s longitudinal treatment history or even Dr.
Davidson’s own findings. Dr. Davidson’s physical examination of the
claimant on October 30, 2014, was ostensibly normal. The claimant
had no spinal tenderness or misalignment. The claimant’s leg raising
test was negative, and no CVA tenderness was noted. The claimant’s
range of motion with the spine was normal. Moreover, Dr. Davidson
observed that the claimant’s gait was normal and the claimant was
able to stand without difficulty. Therefore, I give the check box form
little weight.
Dr. Davidson’s written observations are significantly different than
Dr. Davidson’s opinions noted in the check box sheet[ ]. In the check
box sheet[ ], Dr. Davidson related that the claimant would need
frequent rest period[s] during the day to walk about or to lie down to
relieve pain. Yet, Dr. Davidson’s own examination does not reflect
that the claimant experiences a significant level of pain. Dr.
Davidson’s check box opinions note that the claimant had possible
side effects from medication. On the other hand, the clinical notes are
devoid of the claimant’s complaining of any side effects. In the check
sheet form, Dr. Davidson opined that the claimant would likely miss
three or more days of work per month due to his medical condition,
attendant limitations, pain, and/or side effects of the medications.
However, this opinion is not supported by any of the treating source
records, including the medical records for the claimant’s visit on the
same date that the check box form was filled out. Therefore, I afford
[sic] the opinions Dr. Davidson contained within this form minimal
weight.
(R. 21-22 (exhibit citations omitted)). These reasons demonstrate good cause for
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discounting the opinions of Dr. Davidson reflected on the check-box form.
Dr. Davidson’s opinions on the check-box form are also inconsistent with
Dr. Aldaher’s findings from April 2, 2014, and Dr. Mullens’s findings from
August 25, 2014. (R. 302-304). Dr. Aldaher observed that Ray had a normal range
of motion in his spine and extremities and no muscle weakness, a normal grip, and
a normal gait. (R. 303). Dr. Mullens noted no signs of pain beyond shortness of
breath when Ray performed his exercise stress test. (R. 331). These findings
provide further support for according little weight to the opinions expressed by Dr.
Davidson on the check-box form.
V. CONCLUSION
Based on the foregoing, the court finds that substantial evidence supports the
Commissioner’s decision and that the decision is due to be AFFIRMED.
DATED, this 7th day of September, 2016.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

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