Callaham v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/26/2014. (PSM)

FILED
2014 Sep-26 PM 03:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MICHELLE CALLAHAM,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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CIVIL ACTION NO.
4:13-cv-0814-AKK

Defendant.
MEMORANDUM OPINION
Plaintiff Michelle Callaham (“Callaham”) 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
Callaham, whose past relevant experience includes work as a retail store
manager and cashier, filed an application for Title II disability insurance benefits
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and Title XVI Supplemental Security Income on October 18, 2010, alleging a
disability onset date of October 11, 2010, due to back pain. (R. 13, 21, 170).
After the SSA denied Callaham’s claim, she requested a hearing before an ALJ.
(R. 87-88). The ALJ subsequently denied Callaham’s claim, (R. 10-23), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review. (R. 1-6). Callaham 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
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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
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)-(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;

(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, 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

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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 found that Callaham had not
engaged in substantial gainful activity since October 11, 2010, and, therefore, met
Step One. (R. 15). Next, the ALJ found that Callaham satisfied Step Two because
she suffered from the severe impairments of “depression, status post lumbar
hemilaminectomy and microdiskectomy, and obesity.” Id. The ALJ then
proceeded to the next step and found that Callaham failed to satisfy Step Three
because she “does not have an impairment or combination of impairments that
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meets or medically equals one of the listed impairments.” (R. 16). 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
Callaham has the residual functional capacity (RFC) to perform
less than the full range of sedentary work as defined in 20 C.F.R. §§
404.1567(a) and 416.967(a). [Callaham] should be able to alternate
between sitting and standing every thirty to sixty minutes throughout
the work day. [Callaham] cannot climb ramps, stairs, ladders, ramps,
or scaffolds. [Callaham] cannot crawl. [Callaham] can occasionally
balance, stoop, kneel, and crouch. [Callaham] should avoid
concentrated exposure to extreme temperatures and excessive
vibration. [Callaham] should avoid all exposure to hazardous
machinery and unprotected heights. [Callaham] is limited to
performing simple, routine, and repetitive one to three step tasks.
(R. 17). In light of her RFC, the ALJ held that Callaham “is unable to perform any
past relevant work.” (R. 21). Lastly, in Step Five, the ALJ considered Callaham’s
age, education, work experience,2 and RFC, and determined “there are jobs that
exist in significant numbers in the national economy [Callaham] can perform.” (R.
22). Therefore, the ALJ found that Callaham “has not been under a disability, as
defined in the Social Security Act, from October 11, 2010, through the date of this
decision.” (R. 23).

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As of the date of the ALJ’s decision, Callaham was 43 years old, had a high school
education, and past relevant light work as a retail store manager (skilled) and cashier (unskilled).
(R. 21).
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V. Analysis
Callaham takes issue with the ALJ’s decision denying her claim and has
moved to remand for consideration of new evidence. More specifically, Callaham
has moved to remand under sentence six of 42 U.S.C. § 405(g) to allow the
Commissioner to consider new evidence,3 and contends that (1) the Appeals
Council erred by refusing to consider new evidence; and (2) Callaham should
have been found disabled based on the ALJ’s RFC finding. See doc. 11 at 3-10.
The court addresses Callaham’s contentions of error in turn, and then her motion
for remand.
A.

The Appeals Council’s Decision

Callaham’s first contention of error is that the Appeals Council erred by
failing to review her claim in light of new evidence she submitted with her request
for review. Doc. 11 at 3. The new evidence is the report of an MRI scan
performed on October 29, 2012, which shows a “[s]ignificant broad-based
subligamental herniation [at] L5.” (R. 666). If a claimant “properly presents new

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Although Callaham’s motion requests that the court supplement the record on appeal
pursuant to sentence six of 42 U.S.C. § 405(g), doc. 10 at 2, her brief on the merits requests
remand for consideration of the additional evidence, doc. 11 at 5. Because “[a] reviewing court
is limited [to the record certified by the Commissioner] in examining the evidence,” Cherry v.
Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985), the record may only be supplemented via a
remand under sentence six. Accordingly, the court will review Callaham’s motion as one for
remand under sentence six for consideration of new evidence by the Commissioner.
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evidence to the [Appeals Council] and it denies review, [a reviewing court]
essentially consider[s] the claimant’s evidence anew to determine whether ‘that
new evidence renders the denial of benefits erroneous.’” Levie, 514 F. App’x. at
832 (quoting Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1262 (11th
Cir.2007). Accordingly, if the ALJ’s findings are supported by substantial
evidence when the new evidence is considered, the Appeals Council committed no
error by failing to review Callaham’s claim. Therefore, this court must consider
the record as a whole, including the evidence made part of the record by the
Appeals Council, to determine whether the ALJ’s findings are supported by
substantial evidence. Ingram, 496 F.3d at 1266.
According to Callaham, the new evidence is significant because “it reveals a
large herniation at the L5 level which was unknown at the time of [Callaham’s]
hearing,” doc. 11 at 3, that presumably supports her testimony of disabling pain.
However, a review of the ALJ’s credibility finding shows that he did not rely on
the absence of diagnostic imaging to find Callaham’s testimony not credible.
After considering Callaham’s subjective symptoms, the ALJ found that
Callaham’s allegations and testimony were only “partially credible,” (R. 20), and
explained his reasons. First, the ALJ noted that Callaham “sought only minimal
treatment during the alleged period of disability,” and only “takes over the counter
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medication for her pain,” which he properly found “undermines [Callaham’s]
claim that she has constant, severe pain.”4 Id.; see Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th. Cir. 2005) (ALJ properly considered lack of treatment in
assessing credibility); Falcon v. Heckler, 732 F.2d 827, 832 (11th Cir. 1984) (ALJ
properly considered conservative treatment in assessing credibility). Next,
consistent with the regulations, see 20 C.F.R. § 404.929(c)(4), the ALJ found that
inconsistencies in Callaham’s statements diminished her credibility because she
“testified that she has applied for and received unemployment benefits . . . during
the alleged period of disability.” (R. 21). As the ALJ explained:
By applying for unemployment benefits, [Callaham] has clearly and
unambiguously stated to the State of Alabama that she is physically
capable of working. However, in applying for disability benefits and
supplemental security income, [Callaham] has informed the
Administration that she is physically unable to perform any work.
Thus, [Callaham], under penalty of law, has given directly
contradictory statements to the State of Alabama and the
Administration. Such a direct contradiction in the face of criminal
prosecution could diminish . . . [Callaham’s] credibility and places
into doubt the veracity of her statements.
Id. (emphasis in original). Finally, the ALJ noted that “[a]lthough [Callaham]
testified she can only sit for thirty minutes, the undersigned observed [Callaham]
s[itting] during the entire fifty-three minute hearing and [she] displayed no signs

4

The ALJ found that Callaham’s ability to afford cigarettes undermined her testimony
that she could not afford medication or treatment. (R. 20).
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of pain or discomfort.” (R. 20). The ALJ explained that although his observation
was “certainly not dispositive in and of itself, this observation further marginalizes
the believability of her statements.” Id.; see Norris v. Heckler, 760 F.2d 1154,
1158 (11th Cir. 1985) (ALJ may “consider the claimant’s demeanor among other
criteria in making credibility determinations”). Because none of the reasons
articulated by the ALJ for discrediting Callaham’s allegations rests on the absence
of diagnostic imaging, the court finds that the evidence submitted to the Appeals
Council does not render the ALJ’s decision erroneous and that the substantial
evidence stills supports the ALJ’s credibility finding when that evidence is
considered.
Moreover, Callaham’s contention that the Appeals Council “refused to
consider [the new evidence] in support of [Callaham’s] disability benefits” misses
the mark because the Appeals Council stated that it “considered the reasons
[Callaham] disagree[d] with the decision and the additional evidence listed on the
enclosed Order of Appeals Council,” and “found that this information does not
provide a basis for changing the Administrative Law Judge’s decision.” (R. 2).
This is sufficient to show that the Appeals Council actually considered the new
evidence because “nothing requires the [Appeals Council] to further explain its
denial of review.” Levie v. Comm’r of Soc. Sec., 514 F. App’x 829, 832 (11th Cir.
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2013) (finding identical language sufficient); see also Mansfield v. Astrue, 395 F.
App’x 528, 530 (11th Cir. 2010) (“Because a reviewing court must evaluate the
claimant’s evidence anew, the Appeals Council was not required to provide a more
thorough explanation than it did.”). Accordingly, the court finds no error in the
Appeals Council’s explanation of its decision.
B.

The Vocational Expert’s Testimony

Callaham contends that the ALJ improperly relied on the testimony of a
vocational expert (VE) to find Callaham could perform other work, and raises two
alleged errors. First, Callaham contends that the ALJ “never questioned the [VE]
about less than a full range of sedentary [work] as is generally found in the [RFC]
ascribed to [Callaham].” Doc. 11 at 10. However, contrary to Callaham’s
contention, the ALJ’s hypothetical question to the VE exactly matched the ALJ’s
RFC finding. (R. 17, 61). In particular, the hypothetical question included a
sit/stand option, with no crawling or climbing. (R. 61). Therefore, this contention
of alleged error is without merit. Second, Callaham contends that the VE’s
testimony about the availability of jobs with a sit/stand option “was purely
speculative.” Doc. 11 at 10. Callaham bases her contention on the VE’s refusal
to give an opinion as to the number of individual employers who would not allow

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a sit/stand option, and on the DOT’s5 failure to address a sit/stand option. Id. at 89. Unfortunately for Callaham, when a VE testifies about the availability of jobs
“statistical specificity is not required.” Pena v. Comm’r of Soc. Sec., 489 F.
App’x. 401, 402 (11th Cir. 2012). Moreover, “when the VE’s testimony conflicts
with the DOT, the VE’s testimony ‘trumps’ the DOT.” Jones v. Apfel, 190 F.3d
1224, 1229-30 (11th Cir. 1999). Here, the VE was unequivocal in testifying that
the jobs he identified could be performed with a sit/stand option: “What I am
saying is that the jobs can be performed with the sit/stand option. I’m not
speculating at all.” (R. 67). Accordingly, the ALJ properly relied on the VE’s
testimony to find Callaham can perform other work.
C.

Callaham’s Motion to Remand

Callaham has moved to remand under sentence six of 42 U.S.C. § 405(g),6
contending that new evidence supports her application for disability benefits.
Doc. 11 at 3. To obtain a remand under sentence six, the settled law in this circuit
requires Callaham to establish that (1) there is new, noncumulative evidence; (2)

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The DOT (Dictionary of Occupational Titles) is published by the Department of Labor
and used by the Commissioner to take administrative notice of the presence of jobs in the
national economy. 20 C.F.R. §§ 404.1566(d)(2), 416.966(d)(2).
6

Sentence six states, in relevant part, that “[t]he court . . . may at any time order
additional evidence to be taken before the Commissioner, but only upon showing that there is
new evidence which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
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the evidence is material; and (3) there is good cause for failure to submit the
evidence at the administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th
Cir. 1986). The new evidence is material if it is “relevant and probative so that
there is a reasonable possibility that it would change the administrative result.” Id.
The new evidence proffered by Callaham consists of a treatment note from
Dr. J. Stanford Faulkner, Jr., dated November 29, 2012, doc. 10 at 10-11, and Dr.
Faulkner’s deposition taken September 9, 2013, doc. 10 at 47-84. When Dr.
Faulkner saw Callaham on November 29, 2012, he reviewed the October 2012
MRI and diagnosed “[r]ecurrent herniated disk with subarticular foraminal
stenosis, [and] disk space collapse at L5-S1 on the left.” Doc. 10 at 10. Dr.
Faulkner also opined that he did not think Callaham was able to work in her
current condition. Id. In his deposition, Dr. Faulkner explained that he based his
opinion on Callaham’s complaints of pain: “If she came in and said she wasn’t in
pain, then I wouldn’t take her off work looking at the MRI.” Doc. 10 at 72.
Because Dr. Faulkner’s opinion rested on Callaham’s subjective complaints of
pain, it is unlikely to change the administrative result because, as discussed above,
see supra Part V.A., the ALJ properly discredited Callaham’s pain testimony
based on the lack of significant treatment and Callaham’s inconsistent statements.
Likewise, Dr. Faulkner’s diagnosis of a recurrent herniated disk is unlikely to
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change the result because the ALJ did not rely on the absence of a medical
condition that could cause Callaham’s pain to discredit her testimony.
Accordingly, remand is not warranted here because Callaham has not established
that the evidence is material.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Callaham 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 26th day of September, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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