Ogle vs. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/22/2014. (PSM)

FILED
2014 Aug-22 PM 03:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

BERRY KEVIN OGLE,

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

CIVIL ACTION NO.
4:13-CV-0129-AKK

MEMORANDUM OPINION
Plaintiff Berry Kevin Ogle (“Ogle”) 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
Ogle, whose past relevant experience includes work as a carpet installer,
warehouse worker, and cleaner, filed an application for Title XVI Supplemental Security
Income on February 4, 2010, alleging a disability onset date of January 25, 2010, due to a

back injury and abdominal hernia.1 (R. 8, ). After the SSA denied Ogle’s claim, he
requested a hearing before an ALJ. (R. 66). The ALJ subsequently denied Ogle’s claim,
(R. 5-14), which became the final decision of the Commissioner when the Appeals
Council refused to grant review. (R. 1-4). Ogle 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

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Ogle testified that he had no problems other than with his back, (R. 52), and
does not contend on appeal that any other condition causes restrictions in his ability to
work.
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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
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)-(g), 416.920(a)-(g). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;
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(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 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.2

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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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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 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

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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 Ogle had not engaged in
substantial gainful activity since February 4, 2010, and, therefore, met Step One. (R. 10).
Next, the ALJ found that Ogle satisfied Step Two because he suffered from the severe
impairments of “degenerative arthritis of the lumbar spine and hypertension.” Id. The
ALJ then proceeded to the next step and found that Ogle 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.” (R. 11). 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 Ogle has the residual functional
capacity (RFC) to perform
sedentary work as defined in 20 CFR 416.967(a) that allows for occasional
stooping, bending, and climbing and no climbing of ladders and scaffolds.
He is precluded from concentrated exposure to extreme cold and heat. He
is to avoid exposure to continuous vibrations and cannot work around
unprotected heights.
Id.. In light of his RFC, the ALJ held that Ogle “is unable to perform any past relevant
work.” (R. 13). Lastly, in Step Five, the ALJ considered Ogle’s age, education, work
experience,3 and RFC, and determined “there are jobs that exist in significant numbers in

3

As of the date of the ALJ’s decision, Ogle was 31 years old, had a limited
education, and past relevant heavy semi-skilled work as a carpet installer/helper, medium
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the national economy [Ogle] can perform.” Id.

Therefore, the ALJ found that Ogle

“has not been under a disability, as defined in the Social Security Act, since February 4,
2010, the date the application was filed.” (R. 14).
V. Analysis
The court now turns to Ogle’s contentions that the ALJ erred (1) in assessing his
credibility; (2) by failing to include his pain and herniated disc in the hypothetical
question to the vocational expert; and (3) because the RFC finding was not supported by
substantial evidence. See doc. 11 at 7-19. The court addresses each contention in turn.
A.

The ALJ’s Credibility Finding

Ogle contends that the ALJ provided inadequate reasons to support his finding
that Ogle’s pain testimony was not credible. Doc. 11 at 10. In considering Ogle’s
subjective symptoms, the ALJ first found that Ogle’s “medically determinable
impairments could reasonably be expected to cause [his] alleged symptoms,” (R. 11),
and, therefore, that Ogle met the requirements of the pain standard in this circuit. See
Section III, supra. However, the ALJ found Ogle’s allegations of disabling symptoms
were not fully credible. (R. 12). It is this determination that Ogle challenges, and in
light of his appeal, this court must review the ALJ’s finding to determine if it is
supported by substantial evidence.

semi-skilled work as a warehouse worker, and light unskilled work as a cleaner. (R. 13).
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In considering Ogle’s testimony, the ALJ systematically discussed the factors
relevant to his credibility finding. First, the ALJ properly assessed Ogle’s credibility by
noting that although Ogle had “received treatment for acute low back pain in January
2010 at Gadsden Regional Medical Center,” and that an “MRI of the lumbar spine at that
time revealed generally mild spondylosis with chronic degenerative disc disease at L5-S1
and L4-5 including disc herniations,” that his condition had improved by March 2010
when Ogle was examined by Dr. James Richardson, the SSA consultative examiner. (R.
12). To illustrate this improvement, the ALJ observed that Dr. Richardson noted that
Ogle “walked with a normal gait and was able to get off the chair and on and off the
exam table without any difficulty,” and that Dr. Richardson’s examination showed “a
negative straight leg raise all the way to 90 degrees, as well as no muscle spasms,
tenderness, crepitus, effusions, or deformities,” and also “5/5 motor strength and a
normal sensory exam.” Id. Second, consistent with the regulations, the ALJ considered
“the type, dosage, effectiveness, adverse side effects of any medication,”4 and observed
that Ogle “takes no prescription pain medication.” Id. Similarly, the ALJ found Ogle’s
lack of treatment since January 20105 made his allegations of disabling pain less credible.
Id.; see Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th. Cir. 2005) (finding the ALJ
properly considered gaps in treatment in assessing credibility). Moreover, contrary to

4

20 C.F.R. § 404.1529(c)(3)(iv), (vi).

5

In fact, the January 30, 2010, admission for complaints of severe back pain after
lifting a piano at work is the only treatment note in the record.
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Ogle’s contention that the ALJ did not consider whether Ogle could afford treatment in
making his credibility finding, doc. 11 at 17-19, the ALJ observed that while Ogle
“testified about not having insurance, the record does not indicate that he has sought
treatment at charity clinics.” (R. 12). Third, as required by the regulations, the ALJ
considered “other factors concerning [Ogle’s] functional limitations and restrictions due
to pain,”6 and observed that although Ogle “testified about trying to go back to work at
. . . a job that is heavy in physical exertion, . . . there is no indication he looked for jobs
that are at a lighter level of exertion.” Id. Finally, after considering all these factors, the
ALJ reasonably found that “while the record supports some limitations, the record does
not support chronic moderately severe to severe pain allegations and an inability to work
at a reduced range of the sedentary level of exertion on a sustained basis.” Id.
Ultimately, based on this record, Ogle has failed to show that the ALJ erred in
failing to credit his testimony of disabling pain. In fact, the ALJ articulated specific
reasons for discounting Ogle’s testimony of disabling symptoms–all of which are
supported by substantial evidence. Moreover, even though the ALJ did not credit Ogle’s
testimony of disabling symptoms, he recognized that Ogle had some limitations as
reflected in his RFC for a reduced range of sedentary work. Therefore, based on this
record, the court finds that substantial evidence supports the ALJ’s determination that

6

20 C.F.R. § 404.1529(c)(3)(i), (vii).
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these restrictions account for Ogle’s symptoms. Accordingly, because this court does not
reweigh the evidence, there is no reversible error in the ALJ’s credibility finding.
B.

The Hypothetical Question to the Vocational Expert

Ogle next contends that the ALJ’s hypothetical question to the vocational expert
(VE) was inaccurate and incomplete because it “did not consider [Ogle’s] herniated disc
and related pain.” Doc. 11 at 10. “[F]or a vocational expert’s testimony to constitute
substantial evidence, the ALJ must pose a hypothetical question which comprises all of
the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.2002).
However, an ALJ is “not required to include findings in the hypothetical that the ALJ
had properly rejected as unsupported.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1161 (11th Cir. 2004). Here, the ALJ properly found that Ogle’s pain allegations
were not fully credible. Therefore, because the ALJ’s hypothetical question to the VE
included all of the impairments that the ALJ reasonably found were supported by the
evidence, the ALJ committed no error and properly relied on the VE’s testimony to find
Ogle could perform other work.
C.

The ALJ’s RFC Finding

Ogle’s final contention is that the ALJ’s “RFC assessment is simply conclusory
and does not contain any rationale or reference to the supporting evidence as required by
SSR 96-8p.” Doc. 11 at 16. As pointed out by Ogle, SSR 96-8P states that “[t]he RFC
assessment must include a discussion of why reported symptom-related functional
limitations and restrictions can or cannot reasonably be accepted as consistent with the
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medical and other evidence,” 1996 WL 374184 at *7, and this is precisely what the ALJ
did. As discussed above, the ALJ provided a detailed analysis of why Ogle’s alleged
symptom-related limitations were not fully credible based on the evidence, which
included negative examination findings and showed a lack of treatment or prescription
pain medications. See Section V.A., supra. Moreover, contrary to Ogle’s assertion that
the ALJ found he “has minor physical limitations,” doc. 11 at 17, the ALJ’s RFC
assessment restricted Ogle to less than the full range of sedentary work, which represents
the presence of significant physical limitations. In short, as required by SSR 96-8p, the
ALJ considered Ogle’s alleged functional limitations and explained why he found they
were not supported by the medical evidence. Accordingly, the court finds no error in the
ALJ’s RFC finding.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination that
Ogle 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 this 22nd day of August, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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