Arnold v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/24/17. (SMH)

FILED
2017 Mar-24 PM 02:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JAMES ARNOLD,

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Plaintiff,

vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Civil Action Number
4:16-cv-00283-AKK

MEMORANDUM OPINION
James Arnold 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 (“ALJ”) applied the correct legal
standards and that her decision — which has become the decision of the
Commissioner — is supported by substantial evidence.

Therefore, the court

AFFIRMS the decision denying benefits.
I.

PROCEDURAL HISTORY

Arnold filed his application for Title II Disability Insurance Benefits and
Title XVI Supplemental Security Income on May 8, 2012, alleging a disability
onset date of May 3, 2010 due to pain from a back surgery in July 2010, “feet and
leg pain,” and depression. (R. 141–42, 165, 168). After the SSA denied his
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application, Arnold requested a hearing before an ALJ. (R. 85–86). The ALJ
subsequently denied Arnold’s claim. (R. 10–21). The Appeals Council denied
review, (R. 1–4), rendering the ALJ’s opinion the final decision of the
Commissioner. Arnold then filed this action pursuant to § 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 § 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, 791 (11th Cir. 1988); Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). 42 U.S.C. §§ 405(g) and 1383(c)
mandate 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, 894 F.2d at 1529
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(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 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
months.”

42 U.S.C. §§ 423(d)(1)(A), 416(i)(1)(A).

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;
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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 the finding is made that a claimant cannot return
to prior work the burden of proof 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).
IV.

The ALJ’s Decision

In performing the five-step analysis, the ALJ determined that Arnold met the
criteria for Step One, because he had not engaged in any substantial gainful
activity since his alleged onset date in May 2010.

(R. 12).

Next, the ALJ

acknowledged that Arnold’s impairments of “status post, lumbar fusion at L4-S1
(July 2010); mild lumbar disc protrusion; neuropathy; and obesity” met the
requirements of Step Two. (Id.). The ALJ then proceeded to the next step and
found that Arnold did not satisfy Step Three, because he did “not have an
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impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.” (R. 14) (internal citations omitted).
In this step, the ALJ considered the four “Paragraph B” categories. (R. 12).
With regard to activities of daily living, the ALJ found only “mild limitation,” as
Arnold helps care for the family pet, prepares meals, washes dishes, and performs
minor household repairs, and can independently bathe, dress, and groom. (R. 12,
181, 193, 196–99).

As to social functioning, Arnold drives, “go[es] out alone,”

shops in stores, and “goes to church on a regular basis.” (R. 13, 198–99). The
ALJ also found no problems with Arnold’s concentration, persistence, and pace, as
Arnold “needs no special reminders to take medications or groom,” can “pay bills,
count change, and handle a bank account,” and can “follow written and spoken
instructions very well.” (R. 13, 198, 200, 203–07). Finally, the ALJ noted that the
record shows no extended periods of decompensation. (R. 13).1
Although the ALJ answered Step Three in the negative, consistent with the
law, see McDaniel, 800 F.2d at 1030, she proceeded to Step Four, where she
determined that, at his date last insured, Arnold had the residual functional
capacity (“RFC”) to “perform light work as defined in 20 C.F.R. §§ 404.1567(b)

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The ALJ also stated that she “considered [Arnold’s] impairments under listings 1.00 et
seq. Musculoskeletal System and 12.00 et seq. Mental Disorders, but concluded that [Arnold]
does not have the requisite defects.” (R. 13).
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except [Arnold] must alternate the positions of sit and stand at will,” “cannot
operate foot controls,” “cannot climb stairs, ladders, ropes, or scaffolds,” “cannot
kneel, crouch, or crawl,” “must avoid exposure to excessive vibration,” and “must
avoid exposure around hazardous machinery and unprotected heights.” (R. 14). In
light of Arnold’s RFC and the testimony of a vocational expert, the ALJ
determined that Arnold was capable of performing his past relevant work as a
“radio dispatcher (sedentary and semiskilled),” as such work “does not require the
performance of work-related activities precluded by [Arnold’s] residual functional
capacity . . . .” (R. 20). Accordingly, the ALJ found that Arnold “has not been
under a disability, as defined in the Social Security Act, from May 3, 2010.” (Id.).
V.

ANALYSIS

Arnold raises four contentions of error. For the reasons below, the court
rejects each contention and affirms the ALJ’s decision.
A. Alleged Bias by the ALJ
Arnold seeks remand purportedly because he did not “receive a fair hearing
that comports with due process because [the ALJ, off the record] offered [him] one
year of benefits if he would not file another claim” and, after Arnold refused the
offer, the ALJ denied benefits. Doc. 19 at 3.2 Arnold’s contention is unavailing

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Arnold submitted an affidavit stating that “prior to the first hearing ALJ Helmer offered
my representative . . . one year of disability benefits but only if I agreed not to file another
claim.” Doc. 9-2 at 1.
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because, as an initial matter, “[t]here is a ‘presumption of honesty and integrity in
those serving as adjudicators.’” Martinez v. Acting Comm’r of Soc. Sec., 660 F.
App’x 787, 794 (11th Cir. 2016) (quoting Withrow v. Larkin, 421 U.S. 35, 47
(1975)). Moreover, the Eleventh Circuit, addressing similar facts, has stated that
although “it would be improper for [an] ALJ to refuse to award [the claimant]
social security benefits based on [the claimant’s] refusal to amend his onset date,”
such conduct would not raise any “fundamental due process concerns that would
warrant remanding th[e] case for another administrative hearing.”

Lindsey v.

Barnhart, 161 F. App’x 862, 870 (11th Cir. 2006). See also Moise v. Comm’r of
Soc. Sec., 404 F. App’x 424, 426 (11th Cir. 2010) (rejecting claimant’s allegation
of bias when, among other things, the “ALJ made a well-reasoned decision
supported by substantial evidence”); Cline v. Comm’r of Soc. Sec., No. 2:15-cv480-FTM-MRM, 2016 U.S. Dist. LEXIS 124671, at *25 (M.D. Fla. Sept. 14,
2016) (insufficient evidence of bias due to plaintiff’s refusal to amend the alleged
onset date because “the ALJ’s ‘on the record’ statements, at most, equate[d] to an
error in judgment,” and “[r]egardless, . . . [the plaintiff] failed to show how he
could have been penalized by the ALJ when substantial evidence support[ed] the
ALJ’s finding that Plaintiff was not entirely credible”) (emphasis omitted).
Therefore, because, even accepting Arnold’s allegations as true, remand
would not change the administrative result, and, as explained in Sections B and C
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below, substantial evidence supported the ALJ’s decision, the motion to remand,
doc. 9, is due to be denied.
B. Alleged Failure to Consider Fully the Duties of Arnold’s Past Work
Arnold contends next that the ALJ erred by not “consider[ing] all of the
duties of [Arnold’s] past work and evaluat[ing] [his] ability to perform those duties
in spite of the impairments.” Doc. 19 at 5. The record belies Arnold’s contention,
and supports the ALJ’s finding that Arnold could perform his past relevant work as
a radio dispatcher. (R. 20). As the record shows, Arnold reported that, as a
dispatcher, he used machines, tools, and equipment, sat for 8 hours per day, wrote,
typed, and handled small objects throughout the workday, and did no lifting or
carrying. (R. 181, 190–91). While the record shows a change in Arnold’s physical
abilities since his alleged onset date as it relates to his ability to remain seated for
long periods without taking breaks to stand, stretch, or elevate his feet, (see R. 200,
209), this fact does not mean that Arnold cannot work as a dispatcher. To the
contrary, the record shows that Arnold can “sit for reasonable periods of time,” (R.
441) — specifically, 2 hours at a time and 5 total hours in a workday. (R. 443).
Significantly, the ALJ accounted for this sitting limitation in her hypothetical
question to the vocational expert. 3 Moreover, Arnold’s abilities to perform the

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The ALJ’s question incorporated, among other limitations, that the individual requires a
“sit-stand option at will.” (R. 44). Despite this limitation, the VE found that “[t]he dispatcher
job would still be viable.” (Id.).
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other tasks involved with his past work as a radio dispatcher have not changed.
(See, e.g., R. 38 (Arnold testified at the hearing that his back and legs are the “only
conditions that interfere with [his] ability to work”); R. 441 (Arnold can “lift and
carry light to medium weights”); R. 470 (Arnold reports cross-stitching, reading,
and text messaging). For all of these reasons, the court finds no error in the ALJ’s
conclusion that Arnold can perform his past relevant work as a radio dispatcher.
C. Alleged Improper Evaluation of the Opinion of Dr. Hisham Hikam
Arnold also contends that the ALJ erred by failing to afford proper weight to
the opinion of consultative examiner Dr. Hisham Hikam, (doc. 19 at 9), who
determined that Arnold suffered from “chronic back pain,” “post-surgical
changes,” and “nerve root irritation,” and that Arnold could “frequently” use his
hands, “occasionally” work around pulmonary irritants and chemicals, and tolerate
only “moderate” noise at work. (R. 536, 538). The court finds no reversible error
because, as an initial matter, the ALJ was not required to give any particular
deference to the opinion of Dr. Hikam, a consulting physician. See Meade v.
Astrue, No. 8:09-cv-02027-T-27AEP, 2010 U.S. Dist. LEXIS 139669, at *10
(M.D. Fla. Dec. 17, 2010), adopted by 2011 U.S. Dist. LEXIS 3473 (M.D. Fla. Jan.
13, 2011) (quoting Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007)) (“[A]
consulting physician’s opinion ‘deserves no special weight.’”). Moreover, the ALJ
explained why she only afforded “some weight” to Dr. Hikam’s opinion, i.e., that
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Arnold does not allege, and the record does not establish, any limitations related to
Arnold’s hands, respiratory system, or hearing. (R. 18). Based on the court’s
independent review of the medical record, the court agrees that Arnold does not
allege any limitations related to his hands, respiratory system, or hearing. In fact,
Arnold testified at his hearing that his back and leg problems are the “only
conditions that interfere with [his] ability to work.” (R. 38).
Therefore, contrary to Arnold’s contention, it is clear that the ALJ
considered the full medical history and, in making her determination of Arnold’s
RFC, properly and comprehensively analyzed the medical evidence as a whole. As
such, the court concludes that the ALJ properly considered the medical evidence in
determining Arnold’s ability to perform his past relevant work as a radio
dispatcher in spite of his impairments, and made “clear the weight accorded to
each item of evidence and the reasons for those decisions . . . .” Himes v. Comm’r
of Soc. Sec., 585 F. App’x 758, 764 (11th Cir. 2014).
D. Alleged Improper Application of Social Security Ruling 16-3p
Finally, Arnold requests remand for further proceedings because the ALJ
purportedly failed to assess the “intensity and persistence of [his] symptoms,”
pursuant to Social Security Ruling 16-3p, which became effective March 28, 2016
and which, Arnold claims, applies retroactively. (Doc. 15 at 1). As an initial
matter, the court notes that SSR 16-3p announced that the SSA would depart from
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“assess[ing] the ‘credibility’ of an applicant’s statements,” and instead “focus on
the ‘intensity and persistence of [the applicant’s] symptoms.’” Cole v. Colvin, 831
F.3d 411, 412 (7th Cir. 2016) (citing 81 Fed. Reg. 14166, 14167). Relevant here,
however, Arnold fails to cite any binding authority to support his contention that
SSR 16-3p applies retroactively. See doc. 15 (citing Cole, a Seventh Circuit case
which does not endorse (or otherwise discuss) retroactive application, and
Mendenhall v. Colvin, No. 3:14-cv-3389, 2016 U.S. Dist. LEXIS 105404 (C.D. Ill.
Aug. 9, 2016), which found that retroactive application was “appropriate,” id. at
*10).

Moreover, even assuming that the SSA intended SSR 16-3p to apply

retroactively, a retroactive application would not help Arnold because the ALJ
evaluated Arnold’s symptoms, and not Arnold’s overall credibility, by reviewing
Arnold’s allegations, medical records, treatment notes, and activities of daily
living. (See R. 14–20). 4 For these reasons, the court concludes that the motion to
remand, doc. 15, is due to be denied.

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The court notes, however, that a physical therapist and physician raised questions about
Arnold’s credibility. (See, e.g., R. 415 (“Client’s physical abilities indicate activities in the
LIGHT to MEDIUM physical demand levels, but the client’s perceived abilities predict work in
the less than SEDENTARY physical demand category. This indicates that the client can
actually do a little more than he thinks he can.”) (emphasis in original); R. 375 (“[Arnold] has . .
. vague subjective complaints of back pain. He says he doesn’t feel he will be able to go back to
his previous job. . . . The upshot [sic] of the conversation is that he doesn’t feel able to work.
The extended therapy has really not caused his complaints to go away. He says his muscles
don’t hurt but then in the next breath he says his back hurts. I am not quite sure what he is trying
to convey to me.”)).
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VI.

CONCLUSION

Based on the foregoing, the court concludes that the ALJ’s determination
that Arnold is not disabled and has the RFC to perform his past relevant work as a
radio dispatcher 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. The court will enter a separate
order in accordance with this Memorandum Opinion.
DONE the 24th day of March, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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