Gamez v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/20/2014. (PSM)

FILED
2014 Jun-20 PM 03:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

MARY ELIZABETH GAMEZ,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO.
4:12-cv-2522-AKK

MEMORANDUM OPINION
Plaintiff Mary Elizabeth Gamez (“Gamez”) 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.
Therefore, for the reasons elaborated herein, the court will affirm the decision denying
benefits.
I. Procedural History
Gamez filed an application for Title II disability insurance benefits and Title XVI
Supplemental Security Income on January 13, 2009, alleging a disability onset date of
March 6, 2008, due to limitations caused by a right leg injury. (R. 38, 208). After the
SSA denied Gamez’s claim, she requested a hearing before an ALJ. (R. 124-25). The

ALJ subsequently denied Gamez’s claim, (R. 35-45), which became the final decision of
the Commissioner when the Appeals Council refused to grant review. (R. 1-6). Gamez
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 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
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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;

(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.

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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, she 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 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

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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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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 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 found that Gamez had not engaged
in substantial gainful activity since March 6, 2008, and, therefore, met Step One. (R.
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40). Next, the ALJ found that Gamez satisfied Step Two because she suffered from the
severe impairments of “status-post surgery of the right lower extremity with pain, and
obesity.” Id. The ALJ then proceeded to the next step and found that Gamez failed to
satisfy Step Three because she “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 Gamez
has the residual functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) except that she could perform simple
not complex tasks, maintain attention and concentration for 2 hours in an 8
hour workday, with all customary provided breaks, contact with
supervisors and others should be casual and nonconfrontational, changes in
the work setting should be gradual, slowly introduced and well-explained,
occasionally lift and/or carry 10 pounds and 5 pounds frequently, sit for 6
hours total (or more) out of an 8 hour workday, stand and/or walk for a
total of 2 hours in an 8 hour workday, no concentrated exposure to extreme
cold, heat, wet, vibration, no unprotected heights, no dangerous or moving
equipment, occasional balancing, stooping, crawling, climbing of ramps
and stairs.
(R. 40-41). In light of her RFC, the ALJ held that Gamez “is unable to perform any past
relevant work.”2 (R. 43). Lastly, in Step Five, the ALJ considered Gamez’s age,
education, work experience, and RFC and determined “there are jobs that exist in
significant numbers in the national economy [Gamez] can perform.” (R. 44). Therefore,

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As of the date of the ALJ’s decision, Gamez was 28 years old, had a limited
education, and past relevant unskilled work as an assisted living center floor aid, which
ranged from medium to heavy exertional level. (R. 43-44).
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the ALJ found that Gamez “has not been under a disability, as defined in the Social
Security Act, from March 6, 2008, through the date of this decision.” (R. 45).
V. Analysis
The court now turns to Gamez’s contentions that the ALJ erred (1) because
Gamez’s RFC as assessed by the ALJ would not allow her to complete an eight-hour
workday; (2) by improperly discounting the examination and vocational analysis
performed by John McKinney; and (3) by failing to properly consider Gamez’s pain. See
doc. 8 at 11. The court addresses each contention in turn.
A.

The ALJ’s RFC assessment

Gamez contends the ALJ’s RFC assessment would prevent her from completing
an eight-hour workday. Doc. 8 at 7. This contention is based on the literal wording of
the ALJ’s formal RFC finding, which provides Gamez has the capacity to “maintain
attention and concentration for 2 hours in an 8 hour workday, with all customary
provided breaks.” (R. 40). Gamez argues the ALJ’s RFC assessment limits her to “only
two hours of concentration in an eight hour day.” Doc. 8 at 7. Although the language
used by the ALJ is ambiguous at best, or perhaps the result of a clerical error, there is no
error here because the ALJ’s intended meaning can be discerned from other portions of
his decision and the record. In that regard, the court notes that the ALJ discussed
Gamez’s RFC when he explained the rationale for finding that Gamez would be able to
perform other work:

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[T]he claimant’s ability to perform all or substantially all of the
requirements of [sedentary] work has been impeded by additional
limitations. To determine the extent to which these limitations erode the
unskilled sedentary occupational base, the Administrative Law Judge asked
the vocational expert [VE] whether jobs exist in the national economy for
an individual with the claimant’s age, education, work experience, and
residual functional capacity.
(R. 44) (emphasis added). In other words, the ALJ has indicated unequivocally that his
RFC finding contains restrictions identical to those contained in the hypothetical
question posed to the VE. Indeed, the ALJ’s hypothetical question to the VE assumed an
individual who “could maintain attention and concentration for two hours at a time and
complete an eight hour day provided all customary breaks were given.” (R. 101-02)
(emphasis added). Put simply, when considered together, the ALJ’s decision and the
hypothetical question posed to the VE specifically identify the nature and extent of the
limitation in Gamez’s ability to maintain attention and concentration during an eighthour workday. See Powers v. Comm’r of Soc. Sec. 195 F. App’x. 407, 412-413 (6th Cir.
2006) (unpublished) (omissions in an ALJ’s formal findings do not constitute reversible
error if intended meaning may be discerned from text of decision and the VE’s
testimony). Therefore, because the record is clear that the ALJ found that Gamez can
concentrate two hours at a time, instead of two hours total, in an eight-hour workday, any
ambiguity in the ALJ’s formal RFC finding does not constitute reversible error.
Alternatively, the alleged error is harmless because a remand to allow the ALJ to
incorporate the restrictions contained in the hypothetical question into his RFC finding
would not change the ALJ’s ultimate finding. See Caldwell v. Barnhart, 261 F. App’x
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188, 190 (11th Cir. 2008) (unpublished) (“When . . . an incorrect application of the
regulations results in harmless error because the correct application would not contradict
the ALJ’s ultimate findings, the ALJ’s decision will stand.” ) (citing Diorio v. Heckler,
721 F.2d 726, 728 (11th Cir.1983).
B.

The examination and vocational analysis performed by John McKinney

Gamez next contends that the ALJ did not properly consider or assign weight to
the examination and vocational analysis performed by John McKinney, a licensed
professional counselor. Doc. 9 at 9-12. Mr. McKinney conducted a vocational
assessment on December 22, 2008, to determine Gamez’s “future employability and any
potential wage loss she may incur,” (R. 345), and rendered the following opinion on that
issue:
When her residual physical limitations and reports of pain are taken into
consideration with her poor academic/intellectual functioning, extended
absence from the labor market, obvious appearance of having a severe
physical disability, lack of a high school diploma/GED, and other negative
employability factors, there does not appear to be a reasonable expectation
at the present time that Ms. Gamez could return to the competitive labor
market. Therefore, she is considered to be 100% vocationally disabled.
(R. 348). Mr. McKinney also stated that Gamez had swelling and discoloration in her
right lower extremity that “results in bursting of the graft sites and oozing of fluid.” (R.
347).
Because Mr. McKinney is not an acceptable medical source, see 20 C.F.R. §
404.1513(a) (listing acceptable medical sources), his opinions are not medical source
opinions. 20 C.F.R. § 404.1527(a)(2). Nonetheless, evidence from non-acceptable
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sources may be used to show the severity of a claimant’s impairment. 20 C.F.R. §
404.1513(d); SSR 06-03p, 2006 WL 2329939, at *6 (S.S.A.) (explains that because
“there is a requirement to consider all relevant evidence in an individual’s case record,” it
is the policy of the SSA that the “case record should reflect the consideration of opinions
from . . . ‘non-medical sources’ who have seen the claimant in their professional
capacity”). However, because “there is a distinction between what an adjudicator must
consider and what the adjudicator must explain,” the ALJ “generally should explain the
weight given to opinions from these ‘other sources,’ or otherwise ensure that the
discussion of the evidence in the . . . decision allows a claimant or subsequent reviewer
to follow the adjudicator’s reasoning, when such opinions may have an effect on the
outcome of the case.” See SSR 06-03p at *6.
The record here shows that the ALJ considered Mr. McKinney’s opinions. In a
nutshell, the ALJ summarized Mr. McKinney’s report in discussing the evidence, and
quoted Mr. McKinney’s opinion that Gamez “is considered to be 100% vocationally
disabled.” (R. 42, 348). Although the ALJ did not explicitly explain the weight he gave
to Mr. McKinney’s opinions, his conclusion that the RFC assessment “is supported by
the opinions of Drs. Leberte and Tenchavez,” (R. 43), is sufficient to show that he
rejected Mr. McKinney’s opinions because they were contrary to the opinions of treating
and examining physicians. As the evidence shows, Dr. Mark Leberte, one of Gamez’s
treating physicians, opined on January 16, 2008, that while “it may be difficult for
[Gamez] to do any prolonged standing or walking,” her condition “will not preclude her
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from doing any type of sit-down type duty or jobs where only minor standing and
walking are involved,” (R. 338), and Dr. Alvin Tenchavez, the SSA consultative
examiner, found “no skin changes suggestive of varicosities, ulcers, or swelling” in the
lower extremities when he examined her on March 26, 2009. These opinions directly
contradict Mr. McKinney’s findings, and provide substantial evidence to support the
ALJ’s implicit rejection of Mr. McKinney’s report. Significantly, the ALJ complied with
the policy expressed in SSR 06-3p because his reason for rejecting Mr. McKinney’s
report can be discerned from his decision. Therefore, Gamez’s contention that the ALJ
failed to properly consider Mr. McKinney’s opinion is without merit.
C.

The ALJ’s consideration of Gamez’s pain

Finally, Gamez contends the ALJ “failed to consider the pain standard in the
disability determination,” and “does not indicate he even considered the impact of the
Plaintiff’s residual pain.” Doc. 8 at 11. Contrary to Gamez’s contention, the ALJ
properly addressed the pain standard:
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)–i.e.,
an impairment(s) that can be shown by medically acceptable clinical and
laboratory diagnostic techniques–that could reasonably be expected to
produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning. For this purpose, whenever
statements about the intensity, persistence, or functionally limiting effects
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of pain or other symptoms are not substantiated by objective medical
evidence, the undersigned must make a finding on the credibility of the
statements based on a consideration of the entire case record.
(R. 41). Moreover, the ALJ stated that he had “considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” Id. Finally, the ALJ explained why he only
found Gamez’s statements partially credible:
In sum, the above residual functional capacity assessment is supported by
the opinions of Drs. Leberte and Tenchavez, along with the other medical
evidence in file, and is given significant weight, as the objective evidence
supports a limited sedentary residual functional capacity. Therefore, the
claimant’s statements regarding the severity of her condition are considered
partially credible.
(R. 43). In light of Dr. Leberte’s opinion that Gamez’s condition “will not preclude her
from doing any type of sit-down type duty or jobs where only minor standing and
walking are involved,” and Dr. Tenchavez’s findings of “no skin changes suggestive of
varicosities, ulcers, or swelling,” the court finds that the record supports the ALJ’s
decision not to fully credit Gamez’s allegations of disabling symptoms. Where, as here,
the ALJ articulated specific reasons, which are supported by substantial evidence, for
discounting Gamez’s testimony of disabling symptoms, and because this court does not
reweigh the evidence, the court finds no reversible error in the ALJ’s credibility finding.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Gamez is not disabled is supported by substantial evidence, and that the ALJ applied

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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 this 20th day of June, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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