Rumph v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/13/2013. (JLC)
2013 Mar-13 AM 09:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ERIC DARRELL RUMPH,
MICHAEL J. ASTRUE,
) Case No.: 4:11-CV-3844-VEH
Plaintiff Eric Darrell Rumph (“Mr. Rumph”) brings this action under 42 U.S.C.
§ 405(g) (2006), Section 205(g) of the Social Security Act. He seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied his application for Disability Insurance Benefits
(“DIB”). Mr. Rumph timely pursued and exhausted his administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.
FACTUAL AND PROCEDURAL HISTORY
Mr. Rumph was thirty-four years old at the time of his hearing before the
Administrative Law Judge (“ALJ”). (See Tr. 130). He has completed the twelfth
grade and a year of technical college. (Tr. 127, 150). His past relevant work
experiences include employment as a route salesman and mail clerk. (Tr. 26, 145-46,
155-163). He claims he became disabled on February 24, 2007, due to a herniated
disc with associated low back pain. (Tr. 130, 143-44, 164-69). His last period of
work ended on February 23, 2007. (Tr. 38).
On September 24, 2007, Mr. Rumph protectively filed a Title II application for
a period of disability and DIB. (Tr. 19). On December 5, 2007, the Commissioner
initially denied these claims. (Id.). Mr. Rumph filed a written request for a hearing
on February 15, 2008, that was untimely but that the ALJ excused for good cause
shown. (Id.). The ALJ conducted a hearing on the matter on October 22, 2009, at
which Mr. Rumph appeared and testified. (Id.). On November 21, 2009, the ALJ
issued his opinion concluding Mr. Rumph was not disabled and denying him benefits.
(Tr. 27). Mr. Rumph timely petitioned the Appeals Council to review the decision
on December 8, 2009. (Tr. 14-15). On September 8, 2011, the Appeals Council
issued a denial of review on his claim. (Tr. 1-4).
Mr. Rumph filed a Complaint with this court on November 7, 2011, seeking
review of the Commissioner’s determination. (Doc. 1). With the parties having fully
briefed the matter, the court has carefully considered the record and reverses the
decision of the Commissioner.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The 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.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence
is “such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
This court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F. 2d
1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.1 The Regulations define “disabled” as “the
inability to do 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 (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(I-v). The Commissioner must determine in
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Commissioner;
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
whether the claimant can perform his/her past work; and
whether the claimant is capable of performing any work in the national
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
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 work, the burden shifts to the
[Commissioner] to show that the claimant can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ here found that Mr. Rumph met the insured status requirements of the
Social Security Act through December 31, 2011. (Tr. 20). He also found that Mr.
Rumph had not engaged in substantial gainful activity since February 24, 2007, the
alleged onset date of his disability. (Id.). He further concluded that Mr. Rumph had
degenerative disc disease at L5-S1 of his spine, which qualified as a severe
impairment. (Id.). The ALJ then held that this medically-determinable impairment
did not meet or medically equal one those listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 of the Regulations. (Tr. 21).
After considering Mr. Rumph’s stated symptoms and their congruence with the
objective medical evidence, the ALJ found that Mr. Rumph had the residual
functional capacity (“RFC”) to perform sedentary work with a few additional
limitations. (Id.). Specifically, he concluded that Mr. Rumph:
. . . [can] lift and carry up to 10 pounds occasionally and five pounds
frequently; can sit for a total of six hours in an eight-hour workday with regular
breaks and stand/walk for a total of two hours; has no limitations in
pushing/pulling with the upper and/or lower extremities; can frequently
(defined as two-thirds of a workday) climb ramps/stairs, balance, stoop, kneel,
crouch, and crawl but is unable to climb ladders/ropes/scaffolds; has no
manipulative, communicative, or visual limitations; can tolerate unlimited
exposure to temperature extremes, wetness, humidity, noise, vibration, and
respiratory irritants but should avoid concentrated exposure to hazards such as
unprotected heights; and can otherwise perform sedentary work at defined in
20 C.F.R. § 404.1567(a).
(Id.). He in turn discredited Mr. Rumph’s testimony at the hearing that he had pain
radiating from his back into his buttocks and down both legs. (Tr. 21). To justify this
conclusion, the ALJ pointed to (1) the relatively mild MRI results Mr. Rumph had
produced during the period of his claimed disability, (2) the fact that none of his
various doctors had prescribed surgical intervention, (3) the findings from one of his
medical examinations that confirmed “normal muscle strength and muscle tone in the
lower extremities . . . and no signs of muscle atrophy from disuse” as recent to the
decision date as October 2009; and (4) the inconsistent reports Mr. Rumph had given
regarding his pain management efforts and reported medication side effects. (Tr. 2125).
The ALJ also chose to afford “little weight” to the opinion of Dr. Stephen
Russell, M.D., Mr. Rumph’s treating physician at the time of the hearing. (Tr. 25).
He did so because (1) no party had provided him with Dr. Russell’s treatment records,
(2) there was no evidence to support the limitations on Mr. Rumph’s functional
capacity that Dr. Russell described on the Physical Capacities Form he completed on
October 21, 2009; and (3) Dr. Russell’s responses on that form were “inconsistent and
contradictory both on their face and with the other evidence of record.” (Id.). The
ALJ also afforded “little to no weight” to the opinion of Dr. Donald Blanton, PhD,
that Mr. Rumph was “100% disabled” or the opinion of Dr. William Crunk, PhD, that
Mr. Rumph had “100% loss of employability.” (Id.). He discredited these opinions
primarily because they addressed the ultimate issue of disability eligibility, which he
deemed the Commissioner’s sole prerogative to determine. (Id.).
The ALJ then found that Mr. Rumph was unable to perform any past relevant
work, as the demands of such occupations surpassed his capacity to perform “no more
than sedentary work.” (Tr. 26). He also found that Mr. Rumph was thirty-one years
old at the time of the alleged disability onset date, had at least a high school
education, and was able to communicate in English. (Id.). The ALJ also noted that
the transferability of job skills was not material to his determination of Mr. Rumph’s
eligibility because using the Medical-Vocational Rules as a framework supported a
finding that Mr. Rumph was not disabled, regardless of whether Mr. Rumph had
transferable job skills. (Id.).
Considering Mr. Rumph’s age, education, work experience, and RFC, the ALJ
concluded that there were jobs that existed in significant numbers in the national
economy that Mr. Rumph could perform. (Id.). In reaching this conclusion, he relied
on a vocational expert, Mr. Dan Kinard. (Id.). Mr. Kinard testified that, given all of
the stated factors, an individual in Mr. Rumph’s position would be able to perform
the requirements of representative occupations such as optical polisher, small parts
inspector, and semiconductor bonder. (Id.). Mr. Kinard further vouched that
available jobs for such positions existed in significant numbers in both the region and
across the nation. (Id.). Based on this assessment and on the entire record, the ALJ
found that Mr. Rumph was not disabled between February 24, 2007, through
November 21, 2009, the date of the decision. (Tr. 27).
The court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).2 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Mr. Rumph urges this court to reverse the Commissioner’s decision to deny
him benefits on two grounds: (1) the ALJ erred in rejecting the opinion of Dr.
Russell, Mr. Rumph’s treating physician, and (2) the ALJ’s RFC finding was not
based on substantial evidence. (Doc. 9 at 7-8). As the court agrees with Mr.
Rumph’s first objection, it does not address the latter.
THE ALJ FAILED TO APPLY THE PROPER LEGAL STANDARD IN
DISCREDITING DR. RUSSELL’S OPINION.
The ALJ wrongly discounted Dr. Russell’s medical evaluation of Mr. Rumph’s
physical capacity and functional limitations. The opinion of a treating physician
“must be given substantial or considerable weight unless good cause is shown to the
contrary.” Phillips v. Barnhard, 357 F.3d 1232, 1240 (11th Cir. 2004) (quoting Lewis
Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)) (internal quotation marks
omitted). “Good cause” exists when (1) the treating physician’s opinion was not
bolstered by the evidence, (2) the evidence supported a contrary finding; or (3) the
treating physician’s opinion was conclusory or inconsistent with his or her own
medical records. Id. at 1241 (citation omitted). The ALJ must clearly articulate his
or her reasons for disregarding a treating physician’s opinion, and the failure to do so
is reversible error. Lewis, 125 F.3d at 1440 (citation omitted); see also 20 C.F.R. §
404.1527(c)(2) (“We will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s opinion.”). However, when the
ALJ adequately states specific reasons for doing so, and those reasons are supported
by substantial evidence, there is no such error. Moore v. Barnhart, 405 F.3d 1208,
1212 (11th Cir. 2005) (per curiam).
In this case, Mr. Rumph submitted two documents to the ALJ that were
authored by Dr. Russell: a Clinical Assessment of Pain (“CAP”) form, dated October
21, 2009, and a Physical Capacities Evaluation (“PCE”) form, dated the same day.
(Tr. 303-307) The CAP form listed three multiple-choice questions:
To what extent is pain of significance in the treatment of this patient?
To what extent will physical activity, such as walking, increase the level
of pain experienced?
To what extent would side effects of medication impact the patient’s
ability to work?
(Tr. 303). In response, Dr. Russell circled the following corresponding answers on
Pain is present to such as [sic] extent as to be distracting to adequate
performance of daily activities or work.
Greatly increases pain to such a degree to distract from tasks or total
abandonment of task.
Side effects can be expected to be severe and limit effectiveness due to
inattentiveness and drowsiness.
(Id.). The PCE form included fifteen questions about Mr. Rumph’s functional
abilities. (Tr. 304-307). In filling it out, Dr. Russell opined that Mr. Rumph could:
Only sit, stand, or walk for one hour at a time during an eight-hour
Not sit, stand, or walk for any hours during the entire day.
Lift or carry up to 20 lbs. only occasionally and could never lift any
weight above that.
Use both hands for simple grasping, pushing and pulling of arms
controls, and fine manipulation.
Use both feet for repetitive movements such as pushing and pulling of
Bend, squat, crawl, climb, and reach only occasionally.
(Id.). Dr. Russell also vouched that Mr. Rumph’s impairments have lasted or could
be expected to last at least twelve months, that he was not malingering, and that his
impairments were reasonably consistent with the symptoms and functional limitations
described in the form. (Tr. 305). Dr. Russell further asserted that Mr. Rumph’s
experience of pain and other symptoms was severe enough that it would occasionally
interfere with his attention and concentration needed to perform even simple work
tasks and that he was only capable of low stress jobs. (Tr. 306). He explained that
Mr. Rumph’s “current depression due to prolonged illness/pain affects his ability to
deal with stress.” (Id.). Additionally, Dr. Russell agreed that Mr. Rumph needed a
job that permitted him to shift positions at will from sitting, standing, or walking and
that he would need to take about three to four unscheduled breaks during an eighthour workday. (Id.). According to Dr. Russell, Mr. Rumph did not need to have his
legs elevated during prolonged sitting, but he would have to take about four days off
per month due to his impairments. (Tr. 306-7). Last, Dr. Russell stated that Mr.
Rumph’s physical limitations had existed since his first visit with Dr. Williams on
October 25, 2006. (Tr. 307).
As noted, the ALJ afforded “little weight” to these opinions. (Tr. 25). He
justified this decision on three grounds: (1) the absence of Dr. Russell’s treatment
records; (2) the lack of support for his described limitations on Mr. Rumph’s physical
capacity from other evidence on the record; (3) the internal inconsistency of his
responses and their variance from the other record evidence. (Id.). He specified his
objections in the following manner:
[Dr. Russell] indicates that the claimant is able to sit, stand, and walk for a total
of one hour each at a time but also that he cannot sit or stand/walk for a total
of even one hour each over an eight-hour period. He indicates that the
claimant would be expected to experience pain or other symptoms severe
enough to interfere with concentration and attention only occasionally but also
characterizes him as having pain to such an extent as to be distracting to
adequate performance of daily activities or work. He indicates that the
claimant can use his arms and legs repetitively for pushing and pulling without
limitation and occasionally lift and carry up to 20 pounds, bend, squat, crawl,
climb but also indicates that physical activities would be expected to produce
pain to such an extent as to distract from or cause total abandonment of tasks.
Finally, Dr. Russell indicates that the claimant experiences severe medication
side effects that limit his effectiveness due to inattentiveness and drowsiness.
As noted above, according to Dr. Cosgrove’s notes, the claimant has denied
any medication side effects at all since initiating treatment with him in
November 2008 and has provided contradictory statements regarding side
effects prior to that time.
(Id.). The Commissioner further defends the ALJ’s judgment here by pointing to four
pieces of evidence that supposedly contradict Dr. Russell’s opinion: (1) an October
2008 MRI that revealed degenerative joint disease of the SI joints and “mild” L5-S1
degenerative disc disease with a “tiny” disc herniation; (2) a later discogram that
confirmed lumbar degenerative disc disease with lumbar radiculitis; (3) the fact that
Dr. Johnny Carter, Mr. Rumph’s former treating physician, restricted him to lifting,
pushing, or pulling over forty pounds; and (4) the fact that Dr. Feist, an examining
physician, released him to return to regular activity in March 2007. (Doc. 10 at 8-9).
This evidence is not “good cause” to disregard Dr. Russell’s medical opinion.
The Commissioner implicitly admits that Dr. Russell’s assessment of Mr. Rumph, if
fully credited, would support the conclusion that Mr. Rumph was “disabled” under
the Social Security Act during the claimed eligibility period. Therefore, in order to
meet the “good cause” standard, he must show that Dr. Russell’s opinion was either
not bolstered by the evidence, conclusory, or inconsistent with his own medical
records. Phillips, 357 F.3d at 1241 (citation omitted). The Commissioner largely
argues the first point, but he fails to make his case. As a preliminary matter, the
Commissioner does not cite any law that dictates a claimant must substantiate a
treating physician’s (authenticated) opinion with that physician’s treatment records.
So, the absence of such records is not dispositive on the issue of disability eligibility.
Indeed, the court will treat it as an irrelevant consideration here.3
More important, the substance of the Commissioner’s objection – that Dr.
Russell’s opinion contradicts the thrust of the remaining record evidence – is
inaccurate. The Commissioner’s rendition of the medical evidence ignores the fact
that Mr. Rumph’s pain symptoms progressively worsened over the period of claimed
disability. When this dynamic is taken into consideration, Dr. Russell’s diagnosis
adequately aligns with the earlier findings on Mr. Rumph’s condition. It would
specifically explain the asserted inconsistency between Dr. Russell’s assessment and
The court is not responsible for addressing underdeveloped arguments made by the
parties. See U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007) (refusing to
address a party's “perfunctory and underdeveloped argument”) (citing Flanigan's Enters., Inc. v.
Fulton County, 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument
if the party “fail[s] to elaborate or provide any citation of authority in support” of the argument).
those of Dr. Carter and Dr. Feist. The latter physicians examined Mr. Rumph in the
spring and summer of 2007. (See 225-45; 262-63). As the record reflects, however,
Mr. Rumph’s symptoms aggravated in 2008. (See generally Tr. 23-24; 276-299). By
the time Dr. Russell referred Mr. Rumph to Dr. David Cosgrove for “management of
low back pain and paresthesias in both legs” on November 20, 2008, Mr. Rumph
reported his pain at an eight on a scale of ten and was experiencing medicationrelated hallucinations. (Tr. 23). Specifically, he reported that bending forward,
walking, prolonged standing, and sitting all heightened his pain. (Id.). He also
exhibited fatigue and sleep problems, headaches and vertigo, nausea with occasional
vomiting, hematuria, dizziness and weakness, and hallucinations. (Id.). While Dr.
Cosgrove initially speculated that Mr. Rumph had lumbar DDD, lumbar radiculitis,
lumbar spondylosis, lumbago, and osteoarthrosis of the SI joint, he further added
chronic pain syndrome to his list of assessment impressions after seeing Mr. Rumph
again in January 2009. (Tr. 24). This severe diagnosis followed the October 2008
MRI and December 2008 discogram cited by the Commissioner as evidence
undercutting Dr. Russell’s later evaluation. The Commissioner’s suggested inference
simply does not follow from this evidence.
Indeed, none of the evidence referenced by the Commissioner, whether
considered separately or collectively, rises to the level needed to override a treating
physician’s opinion. Where medical evidence does not conclusively counter a
treating physician’s opinion, and no other good cause is presented, the Commissioner
cannot discount the treating doctor’s opinion. Schnorr v. Bowen, 816 F.2d 578, 582
(11th Cir. 1987) (emphasis added). This indictment includes the specific allegations
made by the ALJ. The only genuine inconsistency that the ALJ identified is between
Dr. Russell’s assertion that Mr. Rumph could only sit, stand, or walk for one hour at
a time during a workday and the alternative statement that he could not sit, stand, or
walk for any hours during an entire day. It appears that Dr. Russell misinterpreted the
question to mean whether Mr. Rumph could sit, stand, or walk throughout an entire
day. Without commenting on the accuracy of this interpretation, the discrepancy was
still not sufficient to undermine conclusively his summary opinion on Mr. Rumph’s
physical capacity. The same judgment applies to the other complaints listed in the
ALJ’s opinion; either they are not as inconsistent as they appear, or they are
insufficiently conclusive. With these observations in mind, given the inadequacy of
his objections, the ALJ incorrectly afforded “little weight” to Dr. Russell’s opinion.
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner did not apply proper
legal standards in reaching his final decision. Accordingly, the decision will be
reversed and remanded by separate order.
DONE and ORDERED this 12th day of March, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?