Colburn v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 2/26/2016. (AVC)

FILED
2016 Feb-26 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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TODD COLBURN,
Plaintiff,

vs.
CAROLYN W. COLVIN,
Defendant.

Civil Action Number
2:15-cv-1062-AKK

MEMORANDUM OPINION
Todd Colburn brings this action pursuant to 42 U.S.C. § 1383(c)(3) and 42
U.S.C. § 405(g), seeking review of the final adverse decision of the Commissioner
of the Social Security Administration (“SSA”). This court finds that the
Administrative Law Judge (“ALJ”) applied the correct legal standard and that his
decision—which has become the decision of the Commissioner—is supported by
substantial evidence. Therefore, the court AFFIRMS the decision denying
benefits.
I.

Procedural History

Colburn, who has past relevant work as a door technician and metal shop
worker, (R. 19, 175), filed his application for Title XVI Supplemental Security
Income on July 16, 2012 (R. 126), alleging a disability onset date of July 1, 2008,

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id., due to lower back problems and nerve damage in his legs, (R. 174). After the
SSA denied his application on September 25, 2012 (R. 82), Colburn requested a
hearing, (R. 95). At the time of the hearing on October 31, 2013, Colburn was 52
years old and had a high school equivalency degree. (R. 19). Colburn has not
engaged in substantial gainful activity since his application date. (R. 14).
The ALJ denied Colburn’s claim on March 6, 2014, (R. 9–21), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on May 7, 2015, (R. 1–3). Colburn then filed this action pursuant to
42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g), on June 24, 2015. Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
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and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental 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)(I)(A). A physical or
mental impairment is “an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
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Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f).

Specifically, the Commissioner must determine in

sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, he must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
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The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added).

Moreover, “[a] claimant’s subjective

testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:

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This standard is referred to as the Hand standard, named after Hand v. Heckler, 761 F.2d 1545, 1548
(11th Cir. 1985).

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It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as a
matter of law, has accepted that testimony as true. Implicit in this rule is the
requirement that such articulation of reasons by the [ALJ] be supported by
substantial evidence
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially determined
that Colburn had not engaged in substantial gainful activity since his application
date and therefore met Step One. (R. 14). Next, the ALJ acknowledged that
Colburn’s severe impairment of degenerative lumbar disc disease met Step Two.
(Id.). The ALJ then proceeded to the next step and found that Colburn did not
satisfy Step Three since he “[did] not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Id.) (internal citations
omitted). Although the ALJ answered Step Three in the negative, consistent with
the law, see McDaniel, 800 F.2d at 1030, he then proceeded to Step Four where he
determined that Colburn
has the residual function capacity [“RFC”] to perform sedentary work
as defined in 20 CFR 404.1567(b) and 416.957(b) with the following
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limitations. He can occasionally climb ramps or stairs, balance, stoop,
kneel, crouch, or crawl, but cannot climb ladders, ropes, or scaffolds,
or perform around work hazards.
(R. 16). In light of Colburn’s RFC, the ALJ determined that Colburn “[was] unable
to perform any past relevant work.” (R. 19). Accordingly, the ALJ turned to Step
Five, considering Colburn’s age, education, work experience, RFC, and the
testimony of a vocational expert (“VE”), and determined that “[Colburn] is capable
of making a successful adjustment to other work that exists in significant numbers
in the national economy.” (R. 20). Because the ALJ answered Step Five in the
negative, he determined that Colburn was not disabled. (Id.).
V. Analysis
The court now turns to Colburn’s contentions on appeal—i.e., that the ALJ
failed to properly evaluate Colburn’s credibility and posed an incomplete
hypothetical to the VE. For the reasons stated below, the court finds that the ALJ
applied the correct legal standards and his opinion is supported by substantial
evidence.
1. Alleged failure to properly evaluate Colburn’s credibility
Colburn asserts that the ALJ erred by improperly evaluating the evidence
when the ALJ rejected Colburn’s subjective pain testimony as not credible. Doc.
12 at 16. As it relates to pain testimony, where the ALJ discredits subjective
testimony, he must “articulate explicit and express reasons for doing so.” Wilson v.
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Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). Moreover, “a clearly articulated
credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.
1995). A failure to provide articulated reasons, however, requires that the
testimony be accepted as true. Wilson, 284 F.3d at 1225 (citing Cannon v. Bowen,
858 F.2d 1541, 1545 (11th Cir. 1988)). As shown below, contrary to Colburn’s
contentions, the ALJ properly assessed Colburn’s credibility.
Relevant here, the ALJ found that “[Colburn’s] medically determinable
impairments could reasonably be expected to cause the alleged symptoms;
however, [Colburn’s] statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible.” (R. 17). The ALJ reached this
conclusion based on his finding that the medical records did not support Colburn’s
subjective claims of the intensity of his lower back pain. (R. 18). Colburn
challenges this finding based on his contention that the ALJ failed to account for
the impact of poverty on Colburn’s failure to seek medical treatment. Doc. 12 at
24. While Colburn is correct that the Eleventh Circuit recognizes poverty as a
reason for non-compliance or a failure to seek treatment, see Dawkins v. Bowen,
848 F.2d 1211, 1213 (11th Cir. 1988) (holding that the Circuit “agree[d] with
every circuit to consider the issue that ‘poverty excuses noncompliance’.”),

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Colburn ignores that the ALJ’s credibility determination was not based on a
finding of noncompliance.
To the contrary, while the ALJ noted that Colburn did not make serious
attempts to find treatment at a free clinic or charitable institution, the ALJ based
his determination primarily on Colburn’s daily living activities and recent physical
examinations. (R. 18). More specifically, the ALJ first pointed to Colburn’s July
2012 visit to the emergency room at Cooper Green Mercy Hospital for back pain
treatment during which Colburn denied muscle and joint pain and had an
unremarkable physical examination. (R. 17). Second, the ALJ cited the
consultative physical examination done by Dr. Timothy Parish which found that
“Although [Colburn] complained of back and leg pain, [he] ambulated to the
examination room, sat comfortably, and was able to get on and off the examination
table, all without any difficulty or complaints.” (R. 18). Third, the ALJ pointed out
that although Dr. Parish noted “chronic worsening lower back pain, L5-S1
laminectomy, radiculopathy, sciatica, and para-vertebral lumbar fibromyalgia, he
made no indication these impairments would significantly limit or prevent
[Colburn] from engaging in work activity.” (Id.). Fourth, the ALJ cited the
secondary review of the medical record conducted by Dr. Harold Ramsey, a
disability specialist, that reflected that while Colburn’s statements of the existence
of pain were partially credible, Colburn’s “statements in the ADLs of difficulty
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lifting is out of proportion of the objective physical findings and other ADLs such
as driving.” (R. 282). Finally, the ALJ noted that Colburn’s daily living activities
were inconsistent with his claims of debilitating pain as Colburn and Dr. Parish
both reported that he “is able to maintain personal hygiene and care independently,
cook, perform household chores, drive, and shop.” (R. 18).
Perhaps because Colburn cannot challenge the ALJ’s reading of the medical
record cited by the ALJ, Colburn disputes instead the weight afforded to Dr. Renee
Philpot Bowen’s assessment of Colburn’s condition. According to Dr. Bowen,
Colburn’s x-rays show moderate degenerative changes in the lumbar spine and
mild degenerative changes in the cervical spine. (R. 317). Based on this, Colburn
contends that the medical record supports his pain testimony. The court disagrees
and notes that the ALJ properly articulated his reasons for discrediting Dr.
Bowen’s assessment of Colburn’s limitations—i.e., that Dr. Bowen is a
chiropractor, and as such is not a licensed physician or acceptable medical source.
(R. 18); see also Miles v Soc. Sec. Admin., Comm’r, 469 F. App’x 743 (11th Cir
2012) (ALJ has no duty to give significant weight to a chiropractor’s opinion
because for SSA purposes a chiropractor is not a proper medical source for SSA
purposes); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155 (11th Cir. 2004)
(same). The ALJ also noted that, while Dr. Bowen’s x-rays were consistent with
Colburn’s limitations, in Dr. Bowen’s functional assessment “it appears she relied
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heavily on [Colburn’s] subjective complaints as her treatment notes and x-rays of
the cervical and lumbar spine do not show such limitations.” (R. 18). Finally, the
ALJ pointed out that other than noting that Colburn did not appear to be a
“malingerer,” Dr. Bowen’s treatment notes show no objective review of Colburn’s
functional abilities. (R. 317–319). The ALJ’s assessment of Dr. Bowen is,
therefore, supported by the substantial evidence and the case law.
Colburn contends that the ALJ erred by failing to rely on the treatment notes
from Dr. Scott Boswell, Colburn’s pain management physician. Doc. 12 at 17. The
record belies Colburn’s contention, however, because other than stating that
Colburn has bilateral sensory lower extremity motor neuropathy as the result of a
2008 nerve test, (R. 215), Dr. Boswell’s treatment records are devoid of any
opinion that he considered Colburn’s pain disabling, (R. 207–240).
Based on the court’s review of the record, it is readily apparent that the ALJ
thoroughly recounted Colburn’s medical records and pointed to various examples
where the medical records belied Colburn’s subjective testimony of the intensity
and frequency of his pain. (R. 17–18). Accordingly, the court concludes that the
ALJ clearly articulated his reasons for discrediting Colburn’s pain testimony. See
Wilson v. Barnhart, 284 F.3d at 1226 (noting that the “ALJ made a reasonable
decision to reject [the claimant’s] subjective testimony, articulating in detail, the

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contrary evidence as his reasons for doing so”). The court finds that substantial
evidence supports the ALJ’s decision.
2. Alleged failure to pose a complete hypothetical to the VE
As his final contention of alleged error, Colburn focuses on the ALJ’s
determination of his RFC, contending that the ALJ failed to provide a complete
hypothetical to the VE. The “determination of residual functional capacity is
within the authority of the ALJ and the assessment should be based upon all of the
relevant evidence of a claimant’s remaining ability to do work despite her
impairments.” Beech v. Apfel, 100 F. Supp. 2d 1323, 1330 (S.D. Ala. 2000); see
also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). In order for the
testimony of a VE to constitute substantial evidence, “the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments.” Wilson
v. Barnhart, 284 F.3d at 1227 . However, “the hypothetical need only include the
claimant’s impairments, not each and every symptom of the claimant.” Ingram,
496 F.3d at 1270 (internal citations omitted).
In his hypothetical to the VE, the ALJ appropriately included Colburn’s age,
education, and past relevant work. The ALJ first described Colburn’s background
and limitations:
[An] individual closely approaching advanced age with a high school
equivalency education and work experience as both a door assembler and a
metal fabrication shop helper. This individual has some mental impairments
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but they don’t reduce any significant functional limitations. The individual
also has some physical impairments and they do produce limitations.
(R. 47). The ALJ then provided the VE with five separate hypotheticals, each
assuming a greater level of physical limitations due to disabling pain. (R. 48–49).
This series of hypotheticals clearly contained Colburn’s restrictions relating to his
lumbar pain and were designed to elicit testimony as to whether jobs existed that
Colburn could perform. Further, the VE sat through the entire hearing, and thus
heard all of the testimony, including Colburn’s testimony as to the intensity and
duration of his pain. (R. 27). The VE then testified that given his physical
restrictions, Colburn would not be able to return to his previous employment as a
door assembler or metal fabrication shop helper. (R. 48). However, the VE also
testified that even if Colburn is unable to perform jobs that required standing, such
as laundry worker or housekeeping cleaner, based on Colburn’s ability to sit or
stand, light exertional jobs existed, such as cashier and ticket taker, which “could
be performed either seated or standing, as required.” (R. 53).
In short, the ALJ and VE clearly took into account Colburn’s documented
limitations in making an assessment of Colburn’s ability to perform jobs that exist
in the national economy. Therefore, substantial evidence supports the ALJ’s
assessment that Colburn was not disabled.
VI. Conclusion

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Based on the foregoing, the court concludes that the ALJ’s determination
that Colburn is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 26th day of February, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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