Burns v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 05/07/12. (CVA)

FILED
2012 May-07 PM 01:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
ERIC E. BURNS,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
3:11-cv-1370-AKK

MEMORANDUM OPINION
Plaintiff Eric E. Burns (“Burns”) brings this action pursuant to Section
205(g) of the Social Security Act (“the Act”), 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’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence, and, therefore, will AFFIRM the decision
denying benefits.

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I. Procedural History
Burns filed applications for disability benefits and supplemental security
income on October 28, 2008, (R. 88, 95), alleging a disability onset date of
September 29, 2008, (R. 95), due to Legg Calv Perthes affecting his hip, a
herniated disc in his back, and adult ADD, that prevent him from standing, sitting,
or bending for long periods without major pain in his lower back and hips. (R.
116). Burns also alleges that back and hip pain limit his movement and prevent
him from working. Id.
After the SSA denied his application on December 9, 2008, (R. 71), Burns
requested a hearing, which occurred on January 28, 2010, (R. 80). At the time of
the hearing, Burns was 29 years old, 6 feet and one inch tall, weighed 350 pounds,
had a tenth grade education, and his past relevant work included work as a cashier
and a gate guard. (R. 19, 22). On April 26, 2010, the ALJ issued his decision in
which he found that Burns has degenerative disc disease of the lumbar spine,
plantar fasciitis, and obesity. (R. 18). However, the ALJ determined that Burns
had a residual functional capacity (“RFC”) that allowed Burns to perform a
reduced-range of light-level work and that Burns can perform his past relevant
work as a cashier and a gate guard. (R. 19, 22). Therefore, the ALJ denied
Burns’ claim. (R. 22-23). Burns appealed and on February 18, 2011, the Appeals
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Council denied Burns’ request for review. (R. 1). Burns then filed this action
pursuant to section 1631 of the Act, 42 U.S.C. § 1383(c)(3). 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
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
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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 impairments 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). 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).
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;
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(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, Burns alleges disability because of pain, he must
satisfy 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,
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

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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 at 1011.
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 him disabled unless the ALJ properly discredits his testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
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

1

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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the requirement that such articulation of reasons by the [ALJ] be supported
by substantial evidence.
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Therefore, if the ALJ either
fails to articulate reasons for refusing to credit the claimant’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 claimant and render a finding of disability. Id.
IV. The ALJ’s Decision
Turning now to the ALJ’s decision, the court notes that, performing the five
step analysis, initially, the ALJ determined that Burns has not engaged in
substantial gainful activity since September 29, 2008, and therefore met Step One.
(R. 18). Next, the ALJ acknowledged that Burns’ severe impairments of
“degenerative disk disease of the lumbar spine; plantar fasciitis; and obesity” met
Step Two. (R. 18). The ALJ then proceeded to the next step and found that Burns
did not satisfy Step Three since he does not have “an impairment or combination
of impairments that meets or medically equals one of the listed impairments . . . .”
(R. 18). Although the ALJ answered Step Three in the negative, consistent with
the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four, where
he determined that Burns
has the residual functional capacity to perform light work . . . except
he can lift 10 pounds occasionally with either hand; that he cannot
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tolerate a job requiring prolonged sitting and needs a sit/stand option;
and that, throughout an eight hour workday, the claimant can sit for
30 minutes at a time, stand for 10 minutes at a time and walk for 1/2 a
block at a time.
(R. 19). In light of Burns’ RFC, the ALJ held that Burns “is capable of performing
past relevant work as a gate guard and cashier,” (R. 22), and determined that
Burns is not disabled, (R. 29); see also McDaniel, 800 F.2d at 1030. It is this
finding that Burns challenges.
V. Analysis
The court turns now to Burns’ contentions of error. Specifically, Burns
alleges that the ALJ “erred as a matter of law in determining that he is not entitled
to SSDI and SSI benefits” for three reasons: (1) the ALJ’s finding discrediting
Burns’ pain testimony is not based on substantial evidence, (2) the ALJ’s finding
that Burns can return to his past relevant work as a cashier and gate guard is not
based on substantial evidence, and (3) the ALJ purportedly failed to consider the
effect Burns’ obesity had on his medical impairments. Doc. 12 at 1. The court
will address each contention in turn.
A.

The ALJ’s Credibility Finding is Based on Substantial Evidence
Burns’ first argument is that the ALJ erred by discrediting his pain

testimony. The relevant point of contention is the ALJ’s finding that:

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[Burns’] medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects
of these symptoms are not credible to the extent they are inconsistent
with the . . . residual functional capacity assessment. [Burns’]
allegations of disabling back and leg pain are not supported by the
medical evidence of record.
(R. 20). Burns maintains that he is “limited to less than the full range of sedentary
work and that based on the testimony the Vocational Expert (“VE”) . . . a finding
of disabled in this case is justified.” Id. at 8. Consequently, Burns disagrees with
the ALJ and contends that the “ALJ uses the objective medical evidence in the file
to discredit the allegations of [Burns], when this evidence supports the testimony
of [Burns].” Doc. 12 at 4. According to Burns, the objective medical testing
shows that his conditions could reasonably be expected to cause severe pain. Id.
at 5.
Subjective complaints of pain alone are insufficient to prove disability. See
20 CFR § 416.929(a); see also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.).
Instead, 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 (2) that the objectively determined
medical condition is of such a severity that it can be reasonably expected to give
rise to the alleged pain. Id. Unfortunately for Burns, a review of the entire
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objective medical evidence reveals that he does not have an underlying condition
that can reasonably be expected to produce the alleged severe pain Burns claims.
Although Burns is correct that the medical record shows that he has “moderately
large central disc herniation at L5-S1 compression . . .[and] a small disc bulge at
L4-5,” (R. 261), Burns overlooks that the medical evidence as a whole supports
the ALJ’s decision to discredit Burns’ allegations of severe pain. For example, on
October 4, 2006, after examining Burns, Dr. J. Gregory Adderholt found that
Burns’ lower back pain is degenerative in origin, without evidence of lumbar
radiculopathy, recommended that Burns lose weight, and prescribed Naprosyn, an
anti-inflammatory drug. (R. 262). Although Burns complained of low back pain,
he complained only of occasional pain in the hips and legs and alleged no
weakness, numbness, or other neurological complaints. (R. 261). Notably, Dr.
Adderholt determined that Burns “is a well developed overweight man in no acute
distress,” id. (emphasis added), and opined that Burns would need surgery only if
Burns developed signs of radiculopathy, id. at 262. In other words, nothing in Dr.
Adderholt’s report supports Burns’ contention that he has disabling pain.
The next report of pain occurred almost two years later when, on August 15,
2008, Burns visited Eliza Coffee Memorial Hospital because of low back pain that
radiated into his right leg. (R. 212). Burns rated his pain at 6, conveyed that he
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was not taking anything for his pain, and was discharged in good condition that
same day. (R. 208, 212). Given that Burns apparently waited almost two years
after visiting Dr. Adderholt to again seek treatment for his back pain and reported
that he was not even taking over the counter medications for his alleged disabling
pain, the Eliza Coffee medical reports simply do not help Burns establish that the
ALJ erred when he rejected Burns’ contentions of disabling pain.
The final medical treatment visits occurred on November 28 and 30, 2008,
when Burns sought treatment for foot paint at Eliza Coffee Memorial Hospital.
(R. 187-192, 197-204). On November 28, the ER physician documented that
Burns’ foot had only mild tenderness, which is the lowest severity level on the
tenderness spectrum, (R. 198), and discharged Burns the same day in good
condition, (R. 199). On November 30, Burns’ foot had moderate tenderness, (R.
188), and the ER discharged him the same day in fair condition, (R. 189).
Notably, X-rays of Burns’ foot showed no abnormalities and the physician’s
impression was lumbar radiculopathy. (R. 203, 208).
The final medical report occurred on December 3, 2008, when the Disability
Determination Service referred Burns for a consultative physical examination with
Dr. Bharat K. Vakharia. (R. 240). Burns reported to Dr. Vakharia that “at times,
pain is very severe, unbearable. Prolonged standing, bending, lifting, make pain
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worse.” Id. Dr. Vakharia found that Burns had low back pain with radiculopathy,
possibility of gout, plantar fasciitis, and obesity. (R. 242). However, despite these
findings, Dr. Vakharia stated that Burns is morbidly obese, but in no acute
distress. (R. 241).
In short, on two separate occasions, despite Burns’ subjective complaints of
pain, two different physicians found that Burns was in no acute distress. While
Burns believes that his own subjective reports of pain, coupled with his diagnosis,
are sufficient to establish that he is disabled, the record before this court simply
does not support such a finding. Rather, based on this record, the ALJ’s finding
that Burns’ pain is not disabling is supported by substantial evidence.
1.

Daily Activities

Related to Burns’ contention that the ALJ erred by discrediting Burns’ pain
testimony, Burns asserts also that the ALJ “failed to properly consider the
evidence of record pertaining to [Burns’] daily activities [and that] Burns’ limited
daily activities simply to [sic] not translate into the ability to perform the work
related activities . . ., which is entailed in the performance of light work.” Doc. 12
at 6-7. To support this contention, Burns states, “the ALJ focused on the claimant
driving without a drivers license, serving three months in the penitentiary for
illegal possession of xanax and lortab in 2007 but at the same time holds the fact
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that the claimant does not take pain medicine reflect adversely on his credibility
and form some basis for showing the claimant had the ability to perform work
related activities.” Id. at 6. This contention is unavailing for several reasons.
First, driving without a license and serving three months in penitentiary are not
daily activities, as that term is used in the regulations. Second, as the
Commissioner stated in its brief, “[t]he ALJ, however, did not state that Burns’
ability to perform these activities reflects an ability, nor did he cite any of Burns’
alleged daily activities as a basis for his credibility determination.” Doc. 14, at 9;
see generally (R. 19-21). Indeed, Burns failed to cite any portion of the decision
where the ALJ used any of Burns’ daily activities to infer that Burns is capable of
work related activities. In that regard, in trying to gauge Burns’ daily activities,
the ALJ specifically asked Burns:
Q.

What do you do all day?

A.

On a daily basis, between up and down on the couch and laying in the
bed, that’s about it. I don’t ever leave home. I feed my dogs on a
daily basis. I lay down - -

(R. 61). The ALJ considered this testimony and the rest of Burns’ testimony and
the medical records in deciding Burns’ RFC and held that Burns’ “allegations of
disabling back and leg pain are not supported by the medical evidence of record in
deciding Burns’ RFC, ” (R. 20), and that Burns is capable of performing at least a
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reduced-level of light-work, (R.19). In other words, the ALJ never found that
Burns’ allegations of disabling pain are not supported by Burns’ daily activities.
Consequently, Burns’ contention that the ALJ committed reversible error by
purportedly relying on evidence of Burns driving or serving time in prison to find
Burns not disabled fails.
B.

The ALJ’s Finding that Burns Can Work as a Cashier and Gate Guard is
Based on Substantial Evidence
Burns’ next contentions of error center around certain alleged failures by the

ALJ related to the VE’s testimony. First, Burns asserts that the ALJ’s finding that
Burns “retained the [RFC] to perform a limited range of light work and is capable
of performing his past relevant work as a cashier and gate guard” is improper
because “the ALJ failed to inquire from the [VE] if the description of Burns’ Past
Relevant Work was consistent with the Dictionary of Occupational Titles [“DOT”]
. . . .” Doc. 12 at 8. However, this omission did not violate a substantial right
because the ALJ used the VE’s testimony and other evidence in the record in
determining Burns’ relationship between the RFC and his past relevant work. (R.
19-22). As such, the error is harmless at best. See Hennes v. Commissioner of
Social Security Admin. 130 F. App’x. 343, 346 (11th Cir. 2005). As courts have
held, “[p]rocedural perfection in administrative proceedings is not required. This
court will not vacate a judgment unless the substantial rights of a party have been
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affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
Second, Burns contends that “the testimony of the [VE] does not, in fact,
support the ALJ’s findings nor is the testimony of the VE consistent with the
DOT,” because “[t]he DOT does not address the sit/stand option found by the ALJ
in his RFC determination [and that] [i]nstead, the DOT recognizes that light work
requires the ability to stand and walk for six hours of an eight hour workday.”
Doc. 12 at 8. While Burns is correct that the occupational requirements for gate
guard and cashier do not specifically address the sit/stand option, doc. 14-1 at 1-4,
he overlooks that neither position excludes such an option, id. For example, while
working at Logan’s as a line cook, Logan’s allowed Burns “to walk off line and
sit down as [he] needed to as long as there was somebody there to cover what [he]
was supposed to be doing” because of Burns’ medical condition. (R. 52).
Logan’s allowed this option even though the DOT also does not specifically
mention a sit/stand option for a line cook position. See DOT Job No. 313.361014. Thus, Burns’ argument about the VE’s alleged inconsistent testimony
ignores the reality that there are jobs that generally “require[] the ability to stand
and walk for six hours of an eight hour workday,” doc. 12 at 8, that nonetheless
allow a sit/stand option for individuals with medical conditions. In that regard, as
the VE testified, “there would be some cashier jobs that would allow for a person
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to sit and stand . . . [and] there would be some gate guard jobs where they would
be able to stand in the guard shack, or they might have to get out and walk around
and look at the car, or vehicle.” (R. 62). In other words, there is noting
inconsistent between the VE’s testimony and the DOT regulations.
Finally, Burns seizes on the discrepancy between the VE’s testimony that
Burns’ past relevant work as a cashier was DOT #211.462- 010 and was a light
unskilled job with a specific vocational preparation (“SVP”) of 2, (R. 49), and the
ALJ’s finding that Burns’ relevant work included a “cashier (DOT 211.462-014),
which was light and unskilled” and has a SVP of 3, (R. 22). Based on this
discrepancy in the DOT and SVP numbers, Burns alleges that the ALJ erred since
the VE never purportedly stated that Burns could perform his past specific cashier
job. Doc. 12 at 11. Unfortunately for Burns, the numbers discrepancy constitutes
harmless error because there is substantial evidence that supports the ALJ’s
finding that Burns can perform his past relevant work. First, Burns admits that he
can lift about 10 pounds on a regular basis without pain, can sit for about 30
minutes before his lower back starts hurting, and can stand for about ten minutes.
(R. 50-51). More importantly, Burns admitted that he can work as a security
guard, which has a SVP of 3, doc. 12-1 at 1, if he can get up and move about when
needed. (R. 54-55). Obviously, given Burns’ admission that he can work as a
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security guard, it was logical for the ALJ to conclude that Burns can perform his
past relevant work as a cashier, which has a lower SVP of 2. Additionally, in
reaching this determination, the ALJ considered Burns’ admission and limitations:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work . . . except he can lift 10 pounds with either hand; that he cannot
tolerate a job requiring prolonged sitting and needs a sit/stand option;
and that, throughout an eight hour workday, the claimant can sit for
30 minutes at a time, stand for 10 minutes at a time, and walk for 1/2
of a block at a time.
(R. 19). Likewise, the VE also took Burns’ limitations into consideration when
making his determination that Burns can perform the past jobs. (See R.62) (VE
testimony that there are “cashier jobs that would allow for a person to sit and
stand” and gate guard jobs that would allow the employee to stand in the guard
shack or walk around as needed). Therefore, the ALJ’s determination that Burns
can perform his past jobs as a cashier and gate guard is supported by substantial
evidence, including Burns’ own testimony that he can perform reduced-range
light-level jobs with a sit/stand option.
C.

The ALJ Took Burns’ Obesity Into Account
Finally, Burns alleges that the ALJ erred by failing to properly discuss his

morbid obesity. Doc. 12, at 11. This contention fails for several reasons. First,
Burns failed to cite any evidence in the record to support his contention that the
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ALJ did not adequately consider his obesity in combination with his medical
history. Burns has the burden on this issue and failed to carry it. 20 CFR §
404.1512(a). Second, the ALJ determined Burns’ RFC after considering the entire
evidence, including Burns’ obesity, and found “that [Burns’] medically
determinable impairments could reasonably be expected to cause the alleged
symptoms” but that Burns’ “statements concerning the intensity, persistence, and
limiting effects of these systems are not credible to the extent they are
inconsistent” with the RFC. (R. 20). The ALJ’s thorough review of Burns’ entire
medical history, (R. 20-21), suggests that he made determinations based on the
combined effect of Burns’ severe impairments, including the obesity. Based on
the record as a whole, including the ALJ’s finding as related to Burns’ RFC, the
court finds that the ALJ considered Burns’ obesity in combination with Burns’
medical history and that the ALJ’s finding that Burns is not disabled is supported
by substantial evidence.
VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Burns 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
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with the memorandum of decision will be entered.
DONE the 7th day of May, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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