Bush v. Social Security Administration, Commissioner

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 1/15/16. (MRR, )

FILED
2016 Jan-15 PM 04:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
TODD JARED BUSH,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 3:14-cv-02467-TMP

MEMORANDUM OPINION
I.

Introduction
The plaintiff, Todd Jared Bush, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying
his application for Disability Insurance Benefits (“DIB”) and setting his onset date
of disability as June 1, 2012.1

Mr. Bush timely pursued and exhausted his

administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to
magistrate judge jurisdiction. (Doc. 12).

1

The plaintiff filed an application for DIB as well as supplemental security income (“SSI”),
alleging disability beginning on October 13, 2009.

Mr. Bush was forty years old at the time of the Administrative Law Judge’s
(“ALJ”) decision, and he has a high school education and training as a machinist.
(Tr. at 18). His past work experiences include employment as a machinist. (Id.)
Mr. Bush claims that he became disabled on October 13, 2009, due to lower back
pain, foot problems, neck pain, carpal tunnel syndrome, hernia surgery, and
enlarged prostate. (Tr. at 11, 199).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If
he or she is, the claimant is not disabled and the evaluation stops. Id. If he or she is
not, the Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends on the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant’s impairments are not severe, the analysis stops.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step

2

three, which is a determination of whether the claimant’s impairments meet or
equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s
impairments fall within this category, he or she will be found disabled without
further consideration. Id. If they do not, a determination of the claimant’s residual
functional capacity will be made and the analysis proceeds to the fourth step. 20
C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an
assessment, based on all relevant evidence, of a claimant’s remaining ability to do
work despite his or her impairments. 20 C.F.R. § 404.945(a)(1).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or her from returning to past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his or her past
relevant work, the claimant is not disabled and the evaluation stops. Id. If the
claimant cannot do past relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the claimant’s RFC, as well as the
claimant’s age, education, and past work experience, in order to determine if he or
she can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the
claimant can do other work, the claimant is not disabled. Id. The burden is on the
Commissioner to demonstrate that other jobs exist which the claimant can

3

perform; and, once that burden is met, the claimant must prove his or her inability
to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224,
1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Mr. Bush
meets the nondisability requirements for a period of disability and DIB and was
insured through December 31, 2011. (Tr. at 11). However, the ALJ determined
that the plaintiff was not disabled prior to June 1, 2012, and, accordingly, was not
entitled to DIB benefits because his insured status expired prior to that date of
disability. (Id.) He determined that Mr. Bush has not engaged in substantial
gainful activity since the alleged onset of his disability. (Tr. at 13). According to
the ALJ, the plaintiff has the severe impairments of carpal tunnel syndrome after a
bilateral carpal tunnel surgery, right shoulder surgery, low back pain, and
exogenous obesity, since his alleged disability onset of October 13, 2009. (Id.) The
ALJ determined that, since June 1, 2012, the established onset date of disability, the
plaintiff has had the severe impairments of degenerative disc disease of the lumbar
and cervical spine, chronic low back pain with radicular pain to the right leg
consistent with a herniated nucleus pulposus, status post right shoulder surgery,
carpal tunnel syndrome after a carpal tunnel release with residual paresthesias after
surgery, and obesity. (Id.)

4

The ALJ found that, between the alleged onset date of disability and the
established onset date of disability, “the claimant has not had 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.” (Tr. at 14).
He determined that prior to the established onset date of disability, the plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible” and that the plaintiff had the RFC to “perform
the full range of sedentary work as defined in §§ 20 CFR 404.1567(a) and
416.967(a).” (Tr. at 14, 15). Beginning June 1, 2012, however, the ALJ determined
that the plaintiff’s testimony regarding the limiting effects of his impairments was
generally credible, and the plaintiff no longer could perform even sedentary work.
(Tr. at 17).
According to the ALJ, Mr. Bush has been unable to perform any of his past
relevant work since June 1, 2012. (Tr. at 18). At the time of the ALJ’s decision,
the claimant was a “younger individual” with at least a high school education, as
those terms are defined by the regulations. (Id.) The ALJ determined that, prior to
June 1, 2012, transferability of skills was not an issue in the plaintiff’s case, and
“[b]eginning on June 1, 2012, the claimant has not been able to transfer job skills to
other occupations.” (Id.) Prior to June 1, 2012, the plaintiff had the RFC to

5

perform the full range of sedentary work and, therefore, significant jobs existed in
the state and national economy that the plaintiff could perform. However, the ALJ
found that “[b]eginning on June 1, 2012, considering the claimant’s age, education,
work experience, and residual functional capacity, there are no jobs that exist in
significant numbers in the national economy that the claimant can perform.” (Tr.
at 19). The ALJ ultimately found that “[t]he claimant was not disabled prior to
June 1, 2012, but became disabled on that date and has continued to be disabled
through the date of this decision.” (Id.) Accordingly, the ALJ decided that the
plaintiff was eligible for SSI benefits beginning on June 1, 2012, but, because the
plaintiff was not disabled prior to December 31, 2011 (the plaintiff’s date last
insured), he was not eligible for DIB benefits.
II.

Standard of Review
This court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there
is substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.

6

See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide
facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id.
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,
1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar.
Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that the
evidence preponderates against the Commissioner’s decision, the court must
affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400.
No decision is automatic, however, for “despite this deferential standard [for
review of claims] it is imperative that the court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal
standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
1984).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,

7

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.”

20 C.F.R. §§ 404.1527(e), 416.927(d).

Whether the

plaintiff meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record
supporting it.
III.

Discussion
The plaintiff contends that the ALJ’s determination that he did not become

disabled until June 1, 2012, is not based on substantial evidence. In support of this
argument, the plaintiff makes three points. First, he claims that the medical
evidence prior to June 1, 2012, supports the conclusion that the plaintiff had only a
limited ability to feel and finger with the bilateral upper extremities. Second, the
plaintiff asserts that the opinion evidence of Dr. Woodfin, a consulting physician,
does not support the ALJ’s determinations. Third, the plaintiff argues that the

8

activities of daily living attested to by the plaintiff prior to June 1, 2012, is not
inconsistent with the inability to perform work.
A. Medical Evidence of Record
The plaintiff first argues that the plaintiff’s medical records prior to June 1,
2012 support a determination of disability. Primarily, the plaintiff focuses on Dr.
Philip A. Maddox’s treatment of the plaintiff’s carpal tunnel syndrome. The
plaintiff argues that, because he suffered from bilateral hand pain and limitations of
mobility and grip strength when treated by Maddox between October 2011 and
January 2012, he could not meet the requirements for performing sedentary work.
He explains that the ALJ acknowledged such bilateral hand limitations when
determining that the plaintiff was disabled after June 1, 2012, and argues that, had
the ALJ acknowledged that the plaintiff suffered from the same limitations in 2011,
he would have determined that no work existed in the state or national economy
that the plaintiff could perform at that time.
The plaintiff self-referred to Dr. Maddox at the Orthopaedic Center on
October 25, 2011, complaining of bilateral hand pain. (Tr. at 361). In addition to
pain, the plaintiff noted loss of mobility and grip strength as well as stinging and
numbness in both hands. (Id.) The plaintiff stated that his symptoms had been
ongoing for roughly five years but had progressively increased. (Id.) Dr. Maddox

9

noted that the plaintiff had a full range of motion (“ROM”) and pain over his right
elbow. (Id.) Dr. Maddox’s impression was that the plaintiff suffered from bilateral
carpal tunnel syndrome (“CTS”) and tennis elbow of the right elbow. (Tr. at 362).
He ordered an electromyogram (“EMG”) and nerve conduction studies for the
plaintiff’s hands, and injected the plaintiff’s elbow with Depo-Medrol and
Lidocaine. (Id.) The plaintiff had x-rays of the right shoulder on his return visit on
November 8, 2011. (Tr. at 364). The x-rays showed “some osteoarthritis at the
acromioclavicular joint.” (Id.) Dr. Maddox noted that the plaintiff’s EMG and
nerve conduction velocity studies were consistent with bilateral CTS. (Tr. at 359).
Dr. Maddox planned to do two carpal tunnel release surgeries on the plaintiff,
beginning with his right hand. (Id.) He also planned to do a right shoulder
arthroscopy with debridement, subacromial decompression, and distal clavicle
resection. (Id.) The plaintiff’s surgery was scheduled for November 28, 2011.
(Id.)
After undergoing surgery, the plaintiff saw Dr. Woodfin on December 19,
2011, regarding problems with his right shoulder and back. (Tr. at 366). Dr.
Woodfin noted the patient’s November 28, 2011, surgery, and further noted that
the plaintiff’s ROM was the only physical limitation the plaintiff experienced with
regard to his right shoulder. (Id.) The plaintiff alleged low back pain starting after

10

a motor vehicle accident in 1997. He previously had epidurals in his back to
address the pain. The plaintiff told Dr. Woodfin that he could not lift or carry
more than 15 pounds, and could only do limited stooping or kneeling. (Id.) He
could not squat and was limited in his ability to twist or bend. (Id.) Dr. Woodfin
opined that the plaintiff “should be able to lift and carry 10 to 15 lbs. occasionally
and sit, be on his feet, and walk frequently.” (Tr. at 368). He surmised that the
plaintiff should “get along fairly well” if he avoided frequent bending and heavy
lifting. (Id.) Due to the plaintiff’s recent surgeries on his hands and right shoulder,
Dr. Woodfin noted that he had “no idea what [the plaintiff’s] physical status
regarding the hands or right shoulder might be 6 months from now.” (Id.)
The plaintiff argues that the ALJ’s determination that the plaintiff was not
disabled prior to his date last insured hinges on the problems the plaintiff
experienced with his hands. Specifically, he argues that “[t]he records support
that prior to December 31, 2011, the date Mr. Bush’s entitlement for the receipt of
benefits under Sections 216(i) and 223(d) of the Social Security Act expired, Mr.
Bush was experiencing the level of limitations in his ability to finger and feel with
his bilateral upper extremities that when credited by the ALJ, as beginning as of
June 1, 2012, where [sic] significant to prevent the ability to perform even

11

sedentary exertion level work.” (Doc. 15, p. 9). With regard to the plaintiff’s
limitations prior to June 1, 2012, the ALJ determined that,

[t]he objective medical evidence is fully consistent with the above
residual functional capacity and is inconsistent with allegations of
disabling levels of pain and numbness. MRI evidence shows rotator
cuff tendonosis but no tear. He had no point tenderness with full
range of motion in both shoulders upon internal and external rotation
with no trigger points. Following carpal tunnel release, he had some
complaints of numbness and tingling in his hands. However, in follow
up he was noted to be improved. Additionally, he had 5/5 motor
strength and manual dexterity was normal. There is no evidence of
motor loss or atrophy.
(Tr. at 16).
By contrast, the ALJ noted the plaintiff’s consultation with Dr. Crouch, a
consultative medical examiner, in August 2012. The ALJ noted that Dr. Crouch,

Found positive straight leg raising on the right with a noted limp on
the right when walking. An x-ray of the lumbar spine shows
degenerative changes throughout the lumbar spine with moderate
anterior lipping due to osteophyte formation. X-ray of the cervical
spine shows severe degenerative changes with prominent narrowing of
C4-5, C5-6 as well as C6-7. There is diminished range of motion of
the lumbar and cervical spine and shoulder upon range of motion
testing. Dr. Crouch diagnosed chronic low back pain with radicular
pain to the right leg consistent with herniated nucleus pulposus,
degenerative disc disease of the lumbar and cervical spine, chronic
paresthesias of the hands due to bilateral carpal tunnel syndrome
status post surgery, and chronic right shoulder pain status post
12

surgical resection of the distal right clavicle. The claimant stated that
he drops things easily due to numbness of the fingertips of both hands.
He stated that he is unable to lift any weight above shoulder level, and
has numbness and burning in his feet when standing (Exhibit 19F).

(Tr. at 17).
Based on the medical evidence of record, as well as the ALJ’s decision, it
appears to the court that the plaintiff’s impairments due to his CTS were not the
only factor used by the ALJ to determine that the plaintiff became disabled on June
1, 2012, but not before. The plaintiff’s impairments appear to have worsened in
every respect between the time he saw Dr. Woodfin and his consultation with Dr.
Crouch. Accordingly, the plaintiff’s argument that, had the ALJ only taken into
consideration the plaintiff’s CTS and the resulting problems, he would have found
the plaintiff disabled prior to his date last insured, does not stand.
B. Dr. Woodfin’s Opinion Evidence
The plaintiff further argues that the opinion evidence offered by Dr.
Woodfin does not support the ALJ’s determination that the plaintiff could perform
the full range of sedentary work prior to June 1, 2012. The Act defines sedentary
work as that which “involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain amount
13

of walking and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary
criteria are met.” 20 C.F.R. § 404.1567. The plaintiff argues that “Dr. Woodfin
makes no opinion as to limitations in the claimant’s ability to use his hands to finger
or feel and does not note that the claimant can perform lifting or carrying on a
frequent basis, [so] Dr. Woodfin’s opinion is not consistent with the ability to
perform the full range of sedentary work.” (Doc. 15, p. 10). He further argues that
“Dr. Woodfin’s limiting the claimant to less than frequent bending would place an
additional limitation that would further reduce the ability to perform sedentary
work.” (Id.)
Sedentary work, however, is not defined as work that requires “frequent”
lifting and carrying or bending.

20 C.F.R. § 404.1567(a).

Accordingly, Dr.

Woodfin’s opinion that the plaintiff should lift 10 to 15 pounds only occasionally
and avoid frequent bending and heavy lifting is in line with the Act’s description of
the requirements of sedentary work. The plaintiff also argues, however, that Dr.
Woodfin’s statement that he had “no idea” what the status of the plaintiff’s hands
and right shoulder may be in the future indicates a failure to state an opinion on the
plaintiff’s ability to use his hands to finger or feel. (Doc. 15, p. 10). According to
the plaintiff, this “lack of opinion” by Dr. Woodfin means that the ALJ’s

14

determination is not based on substantial evidence. In addition to Dr. Woodfin’s
opinion, to which the ALJ gave great weight, the ALJ also cited the plaintiff’s
follow-up appointment with Dr. Maddox, after his carpal tunnel release surgery.
(Tr. at 15, 16).

Dr. Maddox noted that the plaintiff reported “tingling and

numbness in his fingers.” (Tr. at 370). However, the plaintiff did not report that
the symptoms hindered him severely in activities of daily living, whereas, he later
reported to Dr. Crouch that “he tends to drop things easily and has trouble feeling
and manipulating small objects.” (Tr. at 401).

The ALJ relied, not only on Dr.

Woodfin’s assessment of the plaintiff’s abilities, but also on the medical records
from the plaintiff’s surgeon, Dr. Maddox. Although the plaintiff contends that the
ALJ should have interpreted Dr. Woodfin’s opinion differently, it is not within the
purview of the court to reweigh evidence. See Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1996). The medical evidence substantially supports the conclusion of the
ALJ that the plaintiff could perform sedentary work, notwithstanding the tingling
and numbness in his fingers
C. Activities of Daily Living
Finally, the plaintiff argues that, contrary to the ALJ’s findings, the
plaintiff’s activities of daily living are not inconsistent with the inability to perform
sustained work activities. (Doc. 15, p. 11). Although the ALJ found the claimant’s

15

allegations regarding his symptoms to be generally credible beginning on June 1,
2012, he found that prior to June 1, “the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
credible.” (Tr. at 15, 17). One reason the ALJ listed for determining that the
plaintiff’s allegations of the limiting effects of his symptoms were not entirely
credible were the plaintiff’s activities of daily living. Regarding the plaintiff’s
activities of daily living, the ALJ stated as follows:
The claimant’s activities of daily living are fully consistent with the
above residual functional capacity assessment and are inconsistent
with disabling levels of pain and symptoms he alleges preclude him
from working. For example, he prepares his meals, washes dishes,
feeds the dog, does light housekeeping including sweeping, assists his
parents with day to day things, watches television, reads the
newspaper, and cares for his personal needs independently. This
evidence clearly supports the claimant having the ability to engage in
the range of work described above.
(Tr. at 16).
The plaintiff correctly notes that “participation in everyday activities of
short duration, such as housework or fishing does not disqualify a claimant from
disability.” Lewis v. Callahan, 125 F.3d 1346, 1441 (11th Cir. 1997). However, the
plaintiff mischaracterizes the ALJ’s use of daily activity evidence. The ALJ does
not use evidence of the plaintiff’s activities of daily living, on its own, to determine

16

that the plaintiff was capable of doing sedentary work prior to June 1, 2012. He
does, however, reference various activities Mr. Bush participated in to illustrate
that the plaintiff’s subjective pain testimony was not credible for the time period
before the established onset of disability. The ALJ also considered the medical
evidence in the record to make his credibility determination, comparing Dr.
Woodfin’s observations with those of Dr. Crouch after June 1, 2012. It is the ALJ’s
responsibility to consider the plaintiff’s subjective testimony and determine its
credibility. See Soc. Sec. Ruling 96-7p, 1996 WL 374186 (1996). Thus, the ALJ
justifiably determined that the plaintiff’s subjective pain testimony was not credible
when compared to the medical evidence in the record for the relevant time period.
See Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr. Bush’s

arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.
DONE this 15th day of January, 2016.

_______________________________

T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
17