Anglin v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge J Foy Guin, Jr on 7/3/12. (CTS, )

FILED
2012 Jul-03 PM 01:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION

SERENA L. ANGLIN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
) CIVIL ACTION NO. 11-G-2168-NW
)
)
)
)
)

MEMORANDUM OPINION
The plaintiff, Serena L. Anglin, brings this action pursuant to the provisions
of section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking
judicial review of a final adverse decision of the Commissioner of the Social Security
Administration (the Commissioner) denying her application for Social Security Benefits.
Plaintiff timely pursued and exhausted her administrative remedies available before the
Commissioner. Accordingly, this case is now ripe for judicial review under 205(g) of the
Social Security Act (the Act), 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal standards
were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To that

end this court “must scrutinize the record as a whole to determine if the decision reached
is reasonable and supported by substantial evidence.” Bloodsworth, at 1239 (citations
omitted). Substantial evidence is “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Bloodsworth, at 1239.
STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish his entitlement for
a period of disability, a claimant must be disabled. The Act defines disabled as 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). For the purposes of
establishing entitlement to disability benefits, “physical or mental impairment” is defined
as “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether a claimant is disabled, Social Security regulations
outline a five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The Commissioner
must determine in sequence:
(1)

whether the claimant is currently employed;

(2)

whether she has a severe impairment;

2

(3)

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

(4)

whether the claimant can perform her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); accord McDaniel v. Bowen, 800 F.2d
1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied Steps One and Two, she
will automatically be found disabled if she suffers from a listed impairment. If the
claimant does not have a listed impairment but cannot perform her past work, the burden
shifts to the Secretary to show that the claimant can perform some other job.” Pope, at
477; accord Foot v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the instant case, the ALJ, Patrick R. Digby, determined the plaintiff met
the first two tests, but concluded did not suffer from a listed impairment. The ALJ found
the plaintiff unable to perform her past relevant work. Once it is determined that the
plaintiff cannot return to his prior work, “the burden shifts to the [Commissioner] to show
other work the claimant can do.” Foote, at 1559. When a claimant is not able to perform
the full range of work at a particular exertional level, the Commissioner may not
exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59.
The presence of a non-exertional impairment (such as pain, fatigue or mental illness) also
prevents exclusive reliance on the grids. Foote, at 1559. In such cases “the
[Commissioner] must seek expert vocational testimony. Foote, at 1559.

3

THE STANDARD WHEN THE CLAIMANT TESTIFIES HE
SUFFERS FROM DISABLING PAIN
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.” Foote, at 1560.
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.
Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). In this
circuit 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. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir. 1991)(parenthetical
information omitted)(emphasis added). Furthermore, it must be kept in mind that “[a]
claimant’s subjective testimony supported by medical evidence that satisfies the pain
standard is itself sufficient to support a finding of disability.” Foote at 1561. Therefore,
if a claimant testifies to disabling pain and satisfies the three part pain standard, he must
be found disabled unless that testimony is properly discredited.
4

When the Commissioner fails to credit a claimant’s pain testimony, he must
articulate reasons for that decision.
It is established in this circuit that if the Secretary fails to articulate reasons
for refusing to credit a claimant’s subjective pain testimony, then the
Secretary, 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
Secretary 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 plaintiff’s pain testimony, or if his reasons
are not supported by substantial evidence, the pain testimony of the plaintiff must be
accepted as true.
THE IMPACT OF A VOCATIONAL EXPERT’S TESTIMONY
WHEN PAIN OR OTHER SUBJECTIVE SYMPTOMS ARE
INVOLVED
It is common for a vocational expert (“VE”) to testify at a claimant’s
hearing before an ALJ, and in many cases such testimony is required. The VE is typically
asked whether the claimant can perform his past relevant work or other jobs that exist in
significant numbers within the national economy based upon hypothetical questions about
the claimant’s abilities in spite of his impairments. “In order for a vocational expert’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical question
which comprises all of the claimant’s impairments.” Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999).

5

If the claimant is unable to perform his prior relevant work the burden shifts
to the Commissioner to establish that he can perform other work. In such cases, if the
vocational expert testimony upon which the ALJ relies is based upon a hypothetical
question that does not take into account all of the claimant’s impairments, the
Commissioner has not met that burden, and the action should be reversed with
instructions that the plaintiff be awarded the benefits claimed. This is so even if no other
hypothetical question is posed to the VE. See Gamer v. Secretary of Health and Human
Services, 815 F.2d 1275, 1280 (9th Cir. 1987)(noting that when the burden is on the
Commissioner to show the claimant can do other work, the claimant is not obligated to
pose hypothetical questions in order to prevail). However, it is desirable for the VE to be
asked whether the claimant can perform any jobs if his subjective testimony is credited.
Such a hypothetical question would allow disability claims to be expedited in cases in
which the ALJ’s refusal to credit the plaintiff’s pain testimony is found not to be
supported by substantial evidence.
In Varney v. Secretary of Health and Human Services, 859 F.2d 1396 (9 th
Cir. 1987), the Ninth Circuit adopted the Eleventh Circuit rule which holds that if the
articulated reasons for rejecting the plaintiff’s pain testimony are not supported by
substantial evidence, that testimony is accepted as true as a matter of law. Id at 1401.
The court noted that “[a]mong the most persuasive arguments supporting the rule is the
need to expedite disability claims.” Id. If the VE is asked whether the claimant could

6

perform other jobs if his testimony of pain or other subjective symptoms is accepted as
true, the case might be in a posture that would avoid the necessity of a remand. As
Varney recognized, if the VE testifies the claimant can perform no jobs if his pain
testimony is accepted as true, the only relevant issue would be whether that testimony was
properly discredited. Id.
DISCUSSION
In the present case the plaintiff alleges she is disabled due to symptoms
caused by Ménière’s disease. The plaintiff testified at her hearing that her Ménière’s
disease caused dizziness on a weekly basis. She testified that these attacks of dizziness
varied in duration and intensity. She testified that on some days the attack would subside
after 15 or 20 minutes. On some days she testified that she might have to sit down for
two or three hours. Record 42. However, she testified that on some days “I might sit
down and not get up the rest of the day....” Record 42. She also testified there were
entire weeks in which she was unable to get up because of her Ménière’s disease. Record
40.
At the hearing the vocational expert testified that if a person would be
required to miss more than two or three days a month on an ongoing basis, she would be
unable to work. Record 53. The plaintiff’s testimony was clearly that she would be
unable to work for more than two to three days per month on average. The ALJ found
that the plaintiff’s medically determinable impairments could reasonably be expected to

7

cause her alleged symptoms. Therefore, unless the ALJ properly discredited the plaintiff’s
testimony, she must be found disabled based upon the testimony of the vocational expert.
The ALJ gave the following reasons for discrediting the plaintiff’s
testimony:
She is able to drive and shop for groceries. She does housework, uses the
computer at home and is a homemaker with young children that she cares
for and is raising as well as a disabled spouse. While she testified that she
used a motorized cart to shop for groceries, there is nothing in the evidence
to indicate why she would need a cart. Interestingly, the claimant’s [sic]
alleges dizziness yet is capable of maneuvering a motorized cart [through]
throngs of other customers and aisles while shopping. Such suggests that
her symptoms are not as troublesome as she alleges and are exaggerated.
Record 17. These reasons, either singly or in combination, do not provide substantial
evidence for rejecting the plaintiff’s testimony. None of the activities cited by the ALJ is
inconsistent with the presence of sporadic episodes of dizziness lasting from hours up to
several days. In Easter v. Bowen, the court observed as follows:
Moreover, an applicant need not be completely bedridden or unable to
perform any household chores to be considered disabled. See Yawitz v.
Weinberger, 498 F.2d 956, 960 (8th Cir.1974). What counts is the ability to
perform as required on a daily basis in the "sometimes competitive and
stressful" environment of the working world. Douglas v. Bowen, 836 F.2d
392, 396 (8th Cir.1987) (quoting McCoy v. Schweiker, 683 F.2d 1138,
1147 (8th Cir.1982) (en banc)).
867 F.2d 1128, 1130 (8th Cir. 1989). The Easter court further observed that "[e]mployers
are concerned with substantial capacity, psychological stability, and steady attendance.....”
867 F.2d at 1130 (quoting Rhines v. Harris, 634 F.2d 1076, 1079 (8th Cir.1980)).

8

With this standard in mind, it is clear that the ALJ’s articulated reasons for
rejecting the plaintiff’s pain testimony are not supported by substantial evidence.
Therefore, the ALJ failed to satisfy the requirements of Hale. The conclusion of that
court is equally appropriate in the instant case. “[T]he Secretary has articulated reasons
for refusing to credit the claimant’s pain testimony, but none of these reasons is supported
by substantial evidence. It follows, therefore, that claimant’s pain testimony has been
accepted as true.” Hale, at 1012. Therefore, the Commissioner failed to carry his burden
at step five of showing the plaintiff could perform other work. Accordingly, the plaintiff
is disabled within the meaning of the Social Security Act.
An appropriate order remanding the action with instructions that the
plaintiff be awarded the benefits claimed will be entered contemporaneously herewith.
DONE and ORDERED 3 July 2012.

UNITED STATES DISTRICT JUDGE
J. FOY GUIN, JR.

9