Spencer v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/22/2015. (KEK)

FILED
2015 Sep-22 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
STOKES SPENCER,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case Number: 4:14-cv-01121-JHE

MEMORANDUM OPINION 1
Plaintiff Stokes Spencer (“Spencer”) seeks review, pursuant to 42 U.S.C. § 405(g), §
205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying his application for a period of disability and
disability insurance benefits (“DIB”). (Doc. 1). Spencer timely pursued and exhausted his
administrative remedies. This case is therefore ripe for review under 42 U.S.C. §§ 405(g),
1383(c)(3). The undersigned has carefully considered the record and, for the reasons stated
below, the Commissioner’s decision is AFFIRMED.
I. Factual and Procedural History
Spencer was a forty-eight-year-old male at the time of the Administrative Law Judge’s
(“ALJ”) decision. (Tr. 19 & 119). He has a high school education, (tr. 18), and worked for the
Gadsden Housing Authority for 18 years as a maintenance mechanic responsible for “general
maintenance,” (tr. 32).

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In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 10).

Spencer filed a Title II application for a period of disability and DIB on September 21,
2011, alleging disability beginning August 15, 2011. (Tr. 119). The Commissioner denied his
application on November 10, 2011, (tr. 66), and Spencer filed a written request for a hearing
before an ALJ on January 17, 2012, (tr. 75-76). A video hearing before an ALJ was held on
February 15, 2013. (Tr. 25). The ALJ denied the disability claim on March 7, 2013. (Tr. 19).
Spencer sought review by the Appeals Council, (tr. 5), but it declined his request on April 28,
2014, (tr. 1-3). On that date, the ALJ’s decision became the final decision of the Commissioner.
On June 12, 2014, Spencer initiated this action. (Doc. 1).
II. Standard of Review 2
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 supported by substantial evidence. However, it
reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches to the

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In general, the legal standards applied are the same whether a claimant seeks DIB or
SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel
provision as context dictates. The same applies to citations for statutes or regulations found in
quoted court decisions.
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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 the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder. 3

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 entitlement to disability benefits, a claimant must provide evidence of 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 sequence:
(1)
(2)
(3)
(4)
(5)

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];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

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The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
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Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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 such work exists in the national economy in significant
numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found that Spencer meets the insured status requirements of the
Social Security Act through December 31, 2016, and that he did not engage in substantial gainful
activity from the alleged onset date of August 15, 2011. (Tr. 13). At Step Two, the ALJ found
Spencer to have the following severe impairments: status post three vessel coronary artery
bypass graft, coronary artery disease, obesity, obstructive sleep apnea, chronic obstructive
pulmonary disease (“COPD”), and osteoarthritis of the right knee. (Id.). At Step Three, the ALJ
found Spencer does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 14).
Before proceeding to Step Four, the ALJ determined Spencer’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite his impairments. See 20 C.F.R. §

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404.1545(a)(1). The ALJ determined Spencer has the RFC to perform sedentary work as defined
in 20 C.F.R. 404.1567(a), with the following specified limitations:
[He] can push and pull foot controls bilaterally no more than occasionally; [he]
can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; [he] can have no more than
occasional exposure to extreme heat or cold and no more than occasional
exposure to irritants, such as dusts, fumes, gases, and chemicals; and [he] can
never work around hazardous, moving machinery or unprotected heights.
(Tr. 14).
At Step Four, the ALJ determined that, through the date last insured, Spencer is unable to
perform any past relevant work. (Tr. 17). At Step Five, the ALJ determined that, based on
Spencer’s age, education, work experience, and RFC, jobs exist in significant numbers in the
national economy he could perform. (Tr. 18-19). Therefore, the ALJ determined Spencer has
not been under a disability, as defined in the Social Security Act, and denied his claim. (Tr. 19).
V. Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his 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)).
The court, however, “abstains from reweighing the evidence or substituting its own judgment for
that of the [Commissioner].” Id. (citation omitted).
Spencer contends generally that the ALJ’s decision must apply the correct legal standards
and be supported by substantial evidence. (Doc. 13 at 9). Next, he appends a laundry list of
arguments without always making clear which are discrete issues and which are merely support
for other issues. (Id. at 9-13). Specifically, he states the ALJ erred in his failure to properly
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evaluate the credibility of Spencer’s subjective testimony consistent with the Eleventh Circuit
pain standard, (id. at 9-10), but only briefly touches on the ALJ’s rationale for his credibility
determination, (id. at 11). Then, he goes on to briefly mention the ALJ’s failure to consider the
disability determination of Spencer’s former employer’s long-term disability carrier, (id. at 11);
the error of the ALJ’s sedentary RFC determination, (id. at 11); the ALJ’s failure to consider
Spencer’s strong work history, (id. at 12); and the insufficiency of the ALJ’s findings on the
effect of the combination of Spencer’s impairments, (id.). The following analysis attempts to
combine them under the relevant issues.
A. The ALJ Properly Applied the Eleventh Circuit Pain Standard, and There is
Substantial Evidence to Support His Decision
The Eleventh Circuit “has established a three part ‘pain standard’ that applies when a
claimant attempts to establish disability through his or her own testimony of pain or other
subjective symptoms. 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.” Holt v. Sullivan, 921
F.2d 1221, 1223 (11th Cir. 1991).

Subjective testimony supported by medical evidence

satisfying the standard is sufficient to support a finding of disability. Id. However, the ALJ may
still make a credibility determination on the claimant’s statements about the intensity and effect
of that pain. See Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Hogard v. Sullivan,
733 F.Supp. 1465, 1469 (M.D. Fla. 1990). The ALJ’s adverse credibility determination must be
supported by “explicit and adequate reasons,” Holt, 921 F.2d at 1223, and substantial evidence,
see Foote, 67 F.3d at 1561-62. An ALJ’s clearly articulated credibility determination will not be
disturbed if supported by substantial evidence. Petteway v. Comm’r of Soc. Sec., 353 Fed.
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App’x. 287, 288 (11th Cir. 2009).
When evaluating the credibility of a plaintiff’s statements regarding the intensity,
persistence, or limiting effects of his symptoms, the ALJ considers all available subjective and
objective evidence. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1); S.S.R. 96-7p. This may include
the nature of a plaintiff’s symptoms, the effectiveness of medication, his method of treatment, his
activities, and any conflicts between a plaintiff’s statements and the rest of the evidence.
20 C.F.R. §§ 404.1529(c)(3) & (4), 416.929(c)(3) & (4). In articulating reasons for discrediting
subjective testimony, an ALJ need not refer to every piece of evidence in the record as long as
the decision is not a broad rejection which leaves a district or appellate court unable to conclude
that the medical condition was considered as a whole. Petteway, 353 Fed. App’x. at 288.
Here, the ALJ concluded Spencer’s medically determinable impairments could be
reasonably expected to cause his alleged symptoms; however, he discredited Spencer’s
subjective testimony regarding the intensity, persistence and limiting effects of his pain he
claimed rendered him unable to work. (Tr. 15).
The only time Spencer clearly addresses the credibility analysis is when he states “[t]he
fact that the claimant may have had a relatively normal stress test in July 2011 does not mean
that his chest pain and leg pain where they took the vein is not truthful or credible.” (Doc. 13 at
10). If this were the only basis for the ALJ’s decision, Spencer would be right; however, the
ALJ pointed to substantial evidence in the record—including a State medical consultant’s
evaluation of Spencer’s medical history and his admitted ability to perform daily chores and
leisure activities—to support his conclusion.
Although Spencer claimed in his hearing testimony with the ALJ he is in constant pain,
(tr. 38-39), the only medication Spencer has been prescribed to relieve this alleged pain is

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Lortab, which he takes for knee pain with no complaints or mentioned side effects, (tr. 53).
In his analysis of Spencer’s testimony of activities, the ALJ noted that Spencer “has
described daily activities that are not limited to the extent one would expect, given the
complaints of disabling symptoms and limitations.” (Tr. 17). The ALJ found Spencer has been
able to not only participate in everyday activities, such as personal care and grooming, cooking,
and light chores, but also more extensive activities, such as driving his daughter to school and
extracurricular activities, going to high school football games, and playing cards at a community
recreational center a few times a week. (Tr. 17) (citing tr. 43-44, 51, & 348).
Additionally, the ALJ gave the opinion of the State agency medical consultant, Dr.
Robert Heilpern, partial weight in determining the extent of Spencer’s abilities.

(Tr. 17).

According to Dr. Heilpern, whose conclusions are based on all the medical evidence included in
Spencer’s file, Spencer should be able to stand or walk (with normal breaks) for a total of about
six hours in an eight-hour workday and sit (with normal breaks) for a total of about six hours in
an eight-hour workday. (Tr. 342). As reflected in the RFC, Spencer is limited somewhat in his
ability to climb, kneel, crawl, operate hazardous machinery, and be exposed to extreme
temperatures or fumes, odors, gases, and chemicals. (Tr. 343-45).
To the extent Spencer tries to undermine the ALJ’s credibility analysis with the
arguments the ALJ did not mention the long-term disability carrier’s disability determination or
Spencer’s alleged strong work history, these arguments are ineffective. Spencer’s assertion the
ALJ did not consider or gave these pieces of evidence no weight is speculation, and he cites no
authority evidence of a private insurer’s disability determination or of a strong work history must
be specifically mentioned and rejected for an ALJ to state a proper credibility analysis. See
Kelley v. Colvin, No. 7:14-CV-00336-SLB, 2015 WL 4426239, at *5 (N.D. Ala. July 20, 2015)

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(“Past performance of heavy work does not demonstrate that [claimant’s] testimony was
credible, and the ALJ was not required to discuss it on the record.”); Washington v. Colvin, No.
CV513-092, 2014 WL 2505656, at *5 (S.D. Ga. June 3, 2014) (affirming ALJ’s credibility
finding over claimant’s assertion ALJ did not consider strong work history); cf. Falcon v.
Heckler, 732 F.2d 827, 831 (11th Cir. 1984) (requiring great weight be given to the findings of
other state and federal agencies applying the same disability definition).
He also contends at one point that his use of compression socks to reduce edema is
consistent with his testimony he has to lie down a lot during the day. (Id. at 12). However, the
standard is not whether any evidence supports Spencer’s position or credibility, but whether
there is “such relevant evidence as a reasonable person would accept as adequate to support” the
ALJ’s contrary conclusion.

Bloodsworth, 703 F.2d at 1239.

If so, the Court will not

“substitut[e] its own judgment for that of the [Commissioner].” Walden, 672 F.2d at 838. Here,
the ALJ properly applied the Eleventh Circuit pain standard, and substantial evidence supports
his decision to discredit Spencer’s subjective testimony of disabling pain.
B. The ALJ Properly Considered Spencer’s Obesity in Combination With His Other
Impairments
Spencer also argues the ALJ’s opinion does not properly address his impairments in
combination. (Doc. 13 at 11-12). When “a [plaintiff] has alleged a multitude of impairments, a
claim for social security benefits may lie even though none of the impairments, considered
individually, is disabling.” Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984). Therefore,
“an ALJ must make specific and well-articulated findings as to the effect of the combination of
impairments when determining whether an individual is disabled.” Walker v. Bowen, 826 F.2d
996, 1001 (11th Cir. 1987).
Spencer’s argument begins with the acknowledgement the ALJ considered the obesity in
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combination with Spencer’s COPD and osteoarthritis in determining Spencer should be limited
to sedentary work, followed by Spencer’s assertion that, because of his “extreme obesity,”
substantial evidence does not support the ALJ’s conclusion. (Doc. 13 at 11). Spencer provides
no support for this conclusory assertion. He cites Social Security Ruling (“S.S.R.”) 02-01p,
which recognized obesity can cause exertional and postural limitations, and briefly mentions his
inability to lose weight due to his other impairments. (Id. at 11-12). However, nothing Spencer
cites from S.S.R. 02-01p is inconsistent with the ALJ’s opinion, and the S.S.R.’s statement
obesity can make other impairments worse and cause effects such as pain does not require a
finding it worsens those impairments or causes such pain to the point it prevents the claimant
from working. It merely states “the effects of any symptoms (such as pain or fatigue) that could
limit functioning” will be considered, S.S.R. 02-01p, which the ALJ did, (tr. 16-17).
Lastly, he contends (and his argument appears to hinge on) that, although the ALJ
acknowledged his obesity could combine to exacerbate his other impairments, the ALJ did not
“explain how such an individual [with combined obesity and osteoarthritis] would be able to stay
on task despite his pain for a full 8 hour workday 5 days a week.” (Doc. 13 at 12). The issue
with this statement is that it contains the implicit assumption the ALJ’s finding of both obesity
and osteoarthritis implies pain of a disabling degree.

“However, the mere existence

of . . . impairments does not reveal the extent to which they limit [his] ability to work or
undermine the ALJ’s determination in that regard.” Moore v. Barnhart, 405 F.3d 1208, 1213
(11th Cir. 2005).
As Spencer admits, the ALJ clearly and explicitly considered Spencer’s diagnosed
morbid obesity as a factor contributing to his evaluation that Spencer is able to perform
sedentary work. (Doc. 13 at 8) (“The ALJ concluded that given the claimant’s obesity combined

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with his chronic obstructive pulmonary disease and his osteoarthritis of the right knee, it was
reasonable to limit Mr. Spencer to sedentary work, with the further limitations included in the
ALJ’s residual functional capacity determination.”). The ALJ noted in his opinion that the
objective evidence of the record shows that Spencer has been counseled by his primary care
physician to lose weight, and that despite his compliance with diet and exercise, he has been
unable to do so. (Tr. 15). The ALJ also explicitly factored obesity’s effect on Spencer’s COPD
and osteoarthritis into his conclusion Spencer should be limited to a sedentary exertion level and
have no more than occasional exposure to extreme heat and cold or to irritants, such as dusts,
fumes, gases, and chemicals. (Tr. 16).
In addition, one of the other specific findings the ALJ made after considering Spencer’s
obesity in combination with his other impairments was that Spencer’s pain was not as significant
as Spencer claimed it was and did not prevent him from working at the sedentary level with the
stated limitations. (Tr. 15-17). As discussed above, he based this on the conservative treatment
(which prescribed only Lortab), evidence of daily activities inconsistent with that expected from
the stated pain level, and the opinion of Dr. Heilpern, who based his conclusions on all of the
medical evidence included in Spencer’s file and stated that, in an eight-hour workday, Spencer
should be able to stand or walk (with normal breaks) for a total of about six hours and sit (with
normal breaks) for a total of about six hours. (Tr. 16-17).
The ALJ made sufficiently specific and articulated findings, buttressed by substantial
evidence, to support his conclusion Spencer could, with the limitations imposed by the RFC,
maintain work at a sedentary exertional level.
VI. Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative

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record and memoranda of the parties, the decision of the Commissioner of Social Security
denying Spencer’s claim for a period of disability and disability insurance benefits is
AFFIRMED and this action DISMISSED WITH PREJUDICE.
DONE this 22nd day of September 2015.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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