Walker v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/1/2013. (PSM)

FILED
2013 Nov-01 PM 03:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
DARREN R. WALKER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CIVIL ACTION NO.
3:11-2906-AKK

Defendant.
MEMORANDUM OPINION
Plaintiff Darren R. Walker (“Walker”) 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, AFFIRMS the decision denying
benefits.
I. Procedural History
Walker filed an application for Disability Insurance Benefits on May 11,
2009, alleging a disability onset date of March 25, 2005, due to fasciitis, foot
surgery, tendon damage, nerve damage, and arthritis. (R. 24, 157). After the SSA

denied Walker’s claim, he requested a hearing before an ALJ. (R. 88). The ALJ
subsequently denied Walker’s claim, (R. 24-36), which became the final decision
of the Commissioner when the Appeals Council refused to grant review. (R. 1-6).
Walker then filed this action for judicial review pursuant to § 205(g) of the Act, 42
U.S.C. § 405(g). 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)
mandates 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

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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 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).

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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

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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
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

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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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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:
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 analysis, the ALJ initially determined that
Walker met the insured status requirements of the Act through December 31,
2010. (R. 27). The ALJ also found that there were no grounds for reopening
Walker’s prior application, which was denied on February 23, 2007. (R. 25). The
ALJ found the doctrine of res judicata applied to Walker’s prior denial of benefits.
Id. Therefore, he determined “disability cannot be found prior to February 23,
2007.” Id. Moving to the first step, the ALJ found that Walker had not engaged in

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substantial gainful activity since February 24, 2007, and, therefore, met Step One.
(R. 27). Next, the ALJ found that Walker satisfied Step Two because he suffered
from the severe impairments of “plantar fasciitis status-post tarsal tunnel release
and plantar fascial release, left carpal tunnel syndrome (CTS), ulnar nerve
entrapment at the left elbow, and obesity.” Id. The ALJ then proceeded to the next
step and found that Walker failed to satisfy Step Three because he “does not have
an impairment or combination of impairments that meets or medically equals one
of the listed impairments.” Id. 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 Walker
has the residual functional capacity [“RFC”] to perform the exertional
demands of light work as defined in 20 C.F.R. § 404.1567(a) except
he can stand and/or walk two hours and sit six hours total during an
eight-hour workday with normal breaks. The claimant can
occasionally use his lower extremities for pushing and pulling to
operate controls. The claimant can occasionally climb ramps and
stairs, balance, stoop, kneel and crouch. He cannot climb ladders,
ropes or scaffolds. The claimant has no limitation of his upper
extremities except that his left upper extremity is limited to feeling on
a frequent basis. The claimant should avoid extreme heat, cold and
humidity.
(R. 27). In light of Walker’s RFC, the ALJ held that he was “unable to perform
any past relevant work.” (R. 34). Lastly, in Step Five, the ALJ considered
Walker’s age, education, work experience, and RFC and determined “there are

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jobs that exist in significant numbers in the national economy that [Walker] can
perform.” Id. Therefore, the ALJ found that Walker “has not been under a
disability, as defined in the Social Security Act, from February 24, 2007, through
the date of this decision.” (R. 36).
V. Analysis
The court now turns to Walker’s contentions that (1) the ALJ’s credibility
finding is not based on substantial evidence; (2) the ALJ did not properly consider
the opinions of Dr. Michael Linville, and Dr. Robert Heilpern; and (3) the Appeal
Council abused its discretion in failing to review his case. Doc. 10. The court
addresses each contention in turn.
A.

The ALJ’s credibility finding
Walker argues the ALJ’s credibility finding is not based on substantial

evidence. Doc. 10 at 4. The record does not support Walker’s contention. At his
ALJ hearing, Walker testified that his pain was mostly a seven-and-a-half to eight
on a scale of one to ten, (R. 54), that it took between 30 minutes and one hour each
morning to get to the point where he could stand up in order to take a shower, (R.
55), that it took him 30 minutes to get to the bathroom in the morning, and that he
sometime had to crawl on his hands an knees, (R. 54), that he used a cane, and
considered it a necessity, (R. 59), and that he had fallen in the shower on occasion

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because he could not feel his feet, (R. 55). Based on the evidence, the ALJ found
Walker’s “medically determinable impairments could reasonably be expected to
cause [his] alleged symptoms.” (R. 29). Therefore, the ALJ found that Walker met
the requirements of the pain standard.
However, the ALJ found Walker’s allegations were not fully credible. (R.
29). Significantly, the ALJ articulated numerous reasons to support his credibility
finding. Among other things, the ALJ noted that Walker did not report that he
used a cane when he completed his Function Report on June 7, 2009, that no
doctor had prescribed a cane or other assistive devices since 2006, and that the
treatment records showed no reports of falls to Walker’s doctors. (R. 31). The
ALJ also found that the treatment notes failed to show reports to Walker’s doctors
that were consistent with Walker’s testimony that he was unable to walk on some
mornings, and had to crawl to the bathroom. Id. Next, the ALJ commented on the
long gaps in treatment, noting there was no record of treatment from May 2006
until August 2007, another long gap in treatment until May 28, 2008, and no
treatment records after April 2009, until Walker was seen at the VAMC in March
2010. (R. 32). The ALJ found “these long absences of medical treatment are
inconsistent with [Walker’s] complaints of severe, daily symptoms and
limitations.” Id. Ultimately, the ALJ concluded that the “description of the

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symptoms and limitations that the claimant has provided throughout the record has
generally been inconsistent and unpersuasive,” and that the “ record reflects
significant gaps in the claimant’s history of treatment.” (R. 33).
In making his credibility finding, the ALJ also remarked on Walker’s
demeanor while testifying:
Another factor influencing the conclusion reached in this decision is
the claimant’s generally unpersuasive appearance and demeanor
while [he] testified at the hearing. It is emphasized that this
observation is only one among many being relied on in reaching a
conclusion regarding credibility of the claimant’s allegations and the
claimant’s residual functional capacity. For example, the claimant
portrayed no evidence of pain or discomfort while testifying at the
hearing. While the hearing was short lived and cannot be considered a
conclusive indicator of the claimant’s overall level of pain on a dayto-day basis, the apparent lack of discomfort during the hearing is
given some slight weight in reaching the conclusion regarding the
credibility of the claimant’s allegations and the claimant’s residual
functional capacity. Further, he used no ambulatory device despite
testifying to the contrary.
(R. 33-34). The ALJ’s decision is consistent with case law since an “ALJ may
consider the claimant’s demeanor among other criteria in making credibility
determinations.” Norris v. Heckler, 760 F.2d 1154, 1158 (11th Cir. 1985). As the
Norris court explained,
[o]n appellate review, we defer often to the district court’s findings
based upon his observation and assessment of a witness’s demeanor
during trial. Likewise, an ALJ is afforded an opportunity to consider a
claimant’s demeanor during his hearing. The ALJ, however, must not
reject the objective medical evidence and claimant’s testimony solely
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upon his observation during the hearing; rather, the ALJ may consider
a claimant’s demeanor among other criteria in making credibility
determinations.
Id. (emphasis added). The Norris court distinguished Freeman v. Schweiker, 681
F.2d 727, 731 (11th Cir 1982), which had prohibited “sit and squirm”
jurisprudence, stating that “[i]n Freeman, we did not intend to prohibit an ALJ
from considering the claimant’s appearance and demeanor during the hearing.
Rather, an ALJ must not impose his observations in lieu of a consideration of the
medical evidence presented.” Norris 760 F.2d at 1158.
In the present case, the ALJ did not substitute his observations of Walker
for the medical evidence of record. Rather, the ALJ gave only “some slight
weight” to his observations of Walker in assessing his credibility and relied
instead upon the medical evidence of record. Specifically, the ALJ set forth
specific reasons, which are supported by substantial evidence, for his credibility
finding. Consequently, no basis exists to overturn the ALJ’s finding. See Foote,
67 F.3d at 1562 (“A clearly articulated credibility finding with substantial
supporting evidence in the record will not be disturbed by a reviewing court.”).
B.

The opinions of treating and reviewing doctors
Walker argues next that the ALJ did not properly consider the opinion of

Dr. Linville, one of Walker’s treating podiatrists. Doc. 10 at 9. Under the

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Commissioner’s regulations, a treating physician’s opinion will be given
controlling weight if it is well supported and not inconsistent with other
substantial evidence in the record:
If we find that a treating source's opinion on the issue(s) of the nature
and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record,
we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2).
The opinion of Dr. Linville that Walker relies on is contained in his August
7, 2007, treatment note. Dr. Linville noted that Walker “returns today after not
being seen for quite a while because he is disabled mostly from the surgery he had
by another podiatrist.” (R. 378). However, an opinion that a claimant “is disabled”
is not a medical opinion because the finding of disability is an issue reserved to
the Commissioner. As the regulations explain,
Opinions on some issues, such as the examples that follow, are not
medical opinions . . . but are, instead, opinions on issues reserved to
the Commissioner because they are administrative findings that are
dispositive of a case; i.e., that would direct the determination or
decision of disability.
(1) Opinions that you are disabled. We are responsible for
making the determination or decision about whether you meet
the statutory definition of disability. In so doing, we review all
of the medical findings and other evidence that support a
medical source's statement that you are disabled. A statement
by a medical source that you are “disabled” or “unable to
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work” does not mean that we will determine that you are
disabled.
20 C.F.R. § 404.1527(d). Because Dr. Linville’s opinion was not a medical
opinion, the ALJ did not err in failing to give it controlling weight.
Walker also argues the ALJ erred in his consideration of the opinions of Dr.
Heilpern, the State agency reviewing physician. Doc. 10 at 8. An ALJ must
consider the findings of a State agency medical or psychological consultant, who
is considered an expert, and must explain the weight given to such findings. See
20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). The portion of Dr. Heilpern’s report
relevant here is his finding that Walker’s
statements regarding his symptoms and limitations are credible.
[Medical evidence of record] from Dr. Michael Linville documents
his opinion that [Walker’s] foot procedure, did not help with his pain
relief and may have made the condition a little worse. [Walker’s]
ADLs document completion of daily activities but with constant pain.
(R. 275). Dr. Heilpern made this statement as part of his RFC opinion, which
found Walker capable of a limited range of light work. (R. 270-77). In his
decision, the ALJ stated that he generally concurred with Dr. Heilpern’s RFC
finding, and his RFC finding closely matches Dr. Heilpern’s. (R. 27, 34).
However, the ALJ did not adopt Dr. Heilpern’s opinions as to Walker’s credibility.
The ALJ committed no error since he is “not bound by any findings made by State
agency medical . . . consultants.” 20 C.F.R. §§ 404.1527(e)(2)(i),
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416.927(e)(2)(i). Because the ALJ independently made detailed credibility
findings supported by substantial evidence, he was not required to adopt Dr.
Heilpern’s credibility finding.
C.

The Appeals Council’s decision to deny review
Walker submitted new evidence to the Appeals Council in connection with

his request for review. That evidence consists of a treatment note from Dr. Linville
dated February 11, 2011, and a Medical Source Statement of Ability to do WorkRelated Activities (Physical) form completed March 9, 2011. (R. 386-94). Walker
argues that the Appeals Council erred in not granting benefits or ordering
additional administrative proceedings based on Dr. Linville’s medical source
statement. Doc. 10 at 10. On that form, Dr. Linville indicated Walker was “totally
disabled from any gainful employment that involves manual labor,” (R. 388),
could never lift objects weighing up to 10 pounds, (R. 389), is able to sit for a
total of one hour, stand for no more than 15 minutes, and walk for no more than 15
minutes in an eight-hour day, (R. 390), required a cane to ambulate, and could
only ambulate for a few steps without a cane, (R. 390), would never be able to
operate foot controls, (R. 391), and that these limitations dated back to June 13,
2005. (R. 394). Walker argues Dr. Linville’s medical source statement contradicts

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the ALJ’s RFC finding, and asserts that the Appeals Council erred when it denied
him relief. Doc. 10 at 10.
If a claimant submits new and material evidence to the Appeals Council, it
must “review the case if it finds that the administrative law judge’s action,
findings, or conclusion is contrary to the weight of the evidence currently of
record.” 20 C.F.R. § 404.970(b). In the present case, the Appeals Council
considered the evidence, but found it did not provide a basis for changing the
ALJ’s decision. (R. 1-2). Because Walker properly presented the evidence to the
Appeals Council, which considered it, it is part of the administrative record.
Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). In
reviewing the decision of the Appeals Council to deny review, “a reviewing court
must consider whether that new evidence renders the denial of benefits
erroneous.” Id. at 1262. Therefore, this court must consider whether the Appeals
Council correctly concluded that the ALJ’s decision was not contrary to the weight
of the evidence then in the record. See id. at 1266-67 (remanding to the district
court to determine whether the Appeals Council correctly found the ALJ’s
decision was not contrary to the weight of the evidence). This court must consider
the record as a whole, including the evidence submitted to the Appeals Council, to

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determine whether the final decision of the Commissioner is supported by
substantial evidence. Id. at 1266.
Having reviewed the evidence submitted to the Appeals Council, the court
finds that Dr. Linville’s medical source statement does not render the ALJ’s denial
of benefits erroneous. Portions of Dr. Linville’s medical source statement contain
opinions about whether Walker is disabled from gainful employment, which are
not medical opinions. (R. 386-94). Such opinions may not be given controlling
weight, and do not render the ALJ’s decision erroneous. Moreover, Dr. Linville’s
medical source statement also contains opinions about Walker’s ability to do
work-related activities, which qualify as opinions. See Winschel v. Comm’r of Soc.
Sec, 631 F.3d 1176, 1179 (11th Cir. 2011) (finding treatment notes containing a
judgment about the severity of a claimant’s impairment are medical opinions)
(citing 20 C.F.R. §§ 1527(a)(2), 416.927(a)(2)); 20 C.F.R. §§ 404.1527(a)(2),
416.927(a) (a physician’s judgments about a claimant’s physical restrictions are
medical opinions).
In determining how much weight to give to each medical opinion, the
Commissioner must consider several factors including: (1) whether the doctor has
examined the claimant; (2) whether the doctor has a treating relationship with the
claimant; (3) the extent to which the doctor presents medical evidence and

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explanation supporting his opinion; (4) whether the doctor's opinion is consistent
with the record as a whole; and (5) whether the doctor is a specialist. 20 C.F.R. §§
404.1527(c), 416.927(c). Here, Dr. Linville’s opinions are not supported by testing
and are inconsistent with the record as a whole. For example, although Dr. Linville
opined Walker would never be able to lift items weighing up to ten pounds, (R.
389), Walker testified he was able to lift a gallon of milk and a ten pound bag of
sugar, (R. 62), and that he could lift a twenty pound bag of oranges, albeit without
being able to move it very far. Id. Likewise, Dr. Linville’s contention that Walker
could never use foot controls, (R. 391), and was unable to travel without a
companion for assistance, (R. 394), was belied by Walker’s testimony that he
drove to the store twice a week, which requires the use of foot controls. (R. 52).
Finally, Dr. Linville’s treatment notes, which do not reflect Walker ever indicated
a difficulty with sitting, undermine his opinion that Walker is only able to sit for a
total of only one hour in an eight-hour day. (R. 224-53, 312-15, 377-78, 386, 390).
Critically, Dr. Linville’s medical source opinion is also weakened because he
treated Walker only sporadically. After May 2006, Dr. Linville saw Walker only
twice prior to the date of the ALJ’s decision, with the last two visits occurring on
May 28, 2008. In other words, Dr. Linville had not seen Walker in over two and
one-half years when he saw Walker on February 21, 2011 and yet despite the gaps

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in treatment – which is one reason the ALJ gave for refusing to credit Walker’s
allegations of disabling symptoms, (R. 32), – Dr. Linville still submitted a medical
source opinion, alleging that Walker is disabled and that his limitations were first
present on June 13, 2005. The evidence simply does not support such an opinion.
Based on a review of the record, the court concludes the evidence submitted
to the Appeals Council does not render the ALJ’s decision erroneous or
unreasonable. Therefore, the ALJ’s decision is supported by substantial evidence.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Walker 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 1st day of November, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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