Gable v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/6/2012. (JLC)

FILED
2012 Sep-06 PM 02:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
WALTER B. GABLE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner,
Social Security Administration,
Defendant.

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) Case No.: 5:11-CV-2428-VEH
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MEMORANDUM OPINION
Plaintiff Walter B. Gable (“Mr. Gable”) seeks review of a final adverse
decision of the Commissioner of the Social Security Administration (hereinafter
“Commissioner” or “Secretary”), who denied his application for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). Mr.
Gable timely pursued and exhausted his administrative remedies available before the
Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g) of the
Act.1 The court has carefully considered the record and, for the reasons which follow,
finds that the decision of the Commissioner is due to be AFFIRMED.
1

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.

FACTUAL AND PROCEDURAL HISTORY
Mr. Gable was a forty-five (45) year old male at the time of his hearing before
the Administrative Law Judge (“ALJ”). (R. at 4, 43.) He has a General Equivalency
Degree (“GED”), which he obtain in 1999. (R. at 97.) He previously worked as a
carpenter and laborer. (R. at 93, 111–18.)
Mr. Gable filed a claim for SSI on January 5, 2009, alleging disability
beginning on November 15, 2006. (R. at 31.) He eventually amended his disability
onset date to January 5, 2009. (Id.) His claim was initially denied on March 17,
2009. (Id.) Mr. Gable requested a hearing before an ALJ, who held a hearing on
March 17, 2010. (Id.) The ALJ denied Mr. Gable’s claim on July 28, 2010. Mr.
Gable asked the Appeals Council to review the ALJ’s decision, but it declined. (R.
at 1.) Thereafter, Mr. Gable filed this lawsuit.
STANDARD OF REVIEW
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); McRoberts
v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Graham v. Bowen, 790 F.2d 1572,
1575 (11th Cir. 1986); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). This court must “scrutinize the record as a whole to determine if the decision
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reached is reasonable and supported by substantial evidence.” Bloodsworth, 703 F.2d
at 1239. This court will determine that the ALJ’s opinion is supported by substantial
evidence if it finds “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. Substantial evidence is “more than a scintilla,
but less than a preponderance.” Id. The court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the [Commissioner.]” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citation omitted).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for SSI and establish his entitlement for a period of disability, a
claimant must be disabled as defined by the Act and the Regulations promulgated
thereunder.2 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. § 416.905(a).3 To establish an entitlement to disability benefits, a claimant
must provide evidence of a “physical or mental impairment” which “must result from
2

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, as current through August 30, 2012.
3

The language of this section (as well as 20 C.F.R. § 416.920 cited below) was amended
in 2012. The text of the new provision became effective on August 24, 2012. However, the
textual changes in these provisions are irrelevant for purposes of this memorandum opinion.
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anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §
416.908.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 416.920(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 Secretary;
whether the claimant can perform his past work; and
whether the claimant is capable of performing any work in the national
economy.

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord, McDaniel v.
Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied steps
one and two, [he] will automatically be found disabled if [he] suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform
[his] work, the burden shifts to the Secretary to show that the claimant can perform
some other job.” Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993), overruled in
part on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999); accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further

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show that such work exists in the national economy in significant numbers. Foote,
67 F.3d at 1559.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At Step One, the ALJ found that Mr. Gable has not engaged in substantially
gainful activity since January 5, 2009. At Step Two, the ALJ found that Mr. Gable
has the following severe impairments: Hepatitis C, cirrhosis of the liver, and asthma.
(R. at 33.) The ALJ also found that Mr. Gable has the following nonsevere
impairments: severe headaches, hypertension, chronic obstructive pulmonary disease
(“COPD”) or emphysema, and poor eyesight. (R. at 33–34.) At Step Three, the ALJ
found that Mr. Gable does not allege that his impairments meet or medically equal a
listed impairment in 20 C.F.R. Part 404, Subpart P, Appedix 1. (R. at 37.)
The ALJ next determined Mr. Gable’s residual functioning capacity (“RFC”),
which is the most a claimant can do despite his impairments. 20 C.F.R. § 416.945.
The ALJ found that Mr. Gable could perform light work with the following
limitations: occasionally lifting or carrying up to twenty (20) pounds, and frequently
lifting or carrying up to ten (10) pounds; standing or walking (with normal breaks)
for six (6) out of eight (8) hours; sitting (with normal breaks) for six (6) out of eight
(8) hours; frequently bending, stooping, kneeling, crouching, and climbing ramps or
stairs; and occasionally climbing ladders, ropes, and scaffolds. (R. at 38.) The ALJ
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restricted Mr. Gable from working around “fumes, odors, dusts, gases and poor
ventilation.” (Id.) In making his RFC determination, the ALJ largely and explicitly
discredited Mr. Gable’s subjective symptoms related to his impairments. (R. at
40–42.)
At Step Four, the ALJ determined that Mr. Gable cannot do his past work. At
Step Five, the ALJ found that, in light of Mr. Gable’s age, education, work
experience, and RFC, jobs exists in sufficient numbers in the national economy such
that Mr. Gable could still find work. (R. at 43.) Thus, the ALJ determined that Mr.
Gable is not disabled under the Act, and he denied Mr. Gable’s claim.
ANALYSIS
The court can reverse a finding of the Secretary if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This 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)).4

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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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Before this court, Mr. Gable complains that the ALJ erred in determining his
RFC. Specifically, Mr. Gable complains that the ALJ (1) erred in finding that some
of his impairments are nonsevere, and (2) failed to consider all of Mr. Gable’s
impairments, including pain, in determining his RFC. Additionally, Mr. Gable
complains that the ALJ’s hypothetical question to the vocational expert (“VE”) did
not include all of Mr. Gable’s impairments. For the reasons that follow, this court
finds no reversible error and affirms the decision of the Commissioner.
A. The ALJ’s Decision Regarding Mr. Gable’s Severe and Nonsevere
Impairments is Supported by Substantial Evidence
An impairment is severe if it significantly restrict a claimant’s ability to do
basic work activities. See 20 C.F.R. §§ 416.920(c) & 416.921. An impairment “must
result from anatomical, physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory diagnostic techniques.” 20
C.F.R. § 416.908. Subjective statements unsupported by medical evidence are
insufficient to establish an impairment. Id.
In this case, the ALJ found that Mr. Gable’s alleged impairments of severe
headaches, hypertension, COPD, and poor eyesight are nonsevere. This finding is
supported by substantial evidence. First, the ALJ found little evidence of treatment
for severe headaches. (R. at 34.) Furthermore, Mr. Gable’s headaches appear

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controlled with medication (R. at 237, 243–44), and he has reported long periods
without headaches (R. at 261) (no headaches for three months). Second, Mr. Gable’s
hypertension (which caused dizzy spells) appears well-controlled by medication. (R.
at 34, 237, 242, 261, 287.) The ALJ found only one incident of fainting related to
Mr. Gable’s hypertension, and that incident resulted from an accidental overdose of
his medication. (R. at 34,193.) Third, Mr. Gable’s respiratory system showed no
significant restriction or limitation when tested in February 2009. (R. at 281–82.)
The only respiratory medication in Mr. Gable’s medical records regards his asthma,
not COPD. And, though Mr. Gable complained to his doctors about COPD beginning
in 2008, those doctors have no record of his diagnosis with COPD. (R. at 34–35.)
Nor did Mr. Gable present evidence of a COPD diagnosis to the ALJ (or this court).
Finally, the ALJ found that Mr. Gable’s complaints of poor eyesight are
unsubstantiated by the medical record. (R. at 35.) Though Mr. Gable has complained
of poor eyesight in the past, there is no evidence of testing or treatment for this
condition. Moreover, his daily activities are inconsistent with his claim of poor
eyesight. (R. at 35–36.)
Similarly, the ALJ found that Mr. Gable’s alleged mental impairments are
nonsevere. This finding is also supported by substantial evidence. The ALJ noted
that Mr. Gable has repeatedly denied depression during his medical exams and that
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his doctors described him as alert and oriented. (R. at 36–37, 237, 243, 261, 265.)
The ALJ also cited Mr. Gable’s appearance and demeanor at his hearing. The ALJ
found him alert, responsive, and possessing good recall of important information.
(R. at 37.)

His speech was “intelligible,” “logical,” and “coherent.”

(Id.)

Furthermore, Dr. Robert Estock (a state-agency consultant) found that Mr. Gable’s
mental impairments are not severe. (R. at 175.) The ALJ credited Dr. Estock’s
findings. The ALJ also credited Dr. Mary Arnold’s findings to the extent they
support Dr. Estock’s assessment.
The ALJ discredited Dr. Arnold’s Global Assessment of Functioning (“GAF”)
score of 59 (suggesting moderate mental limitations) for two reasons. First, Dr.
Arnold’s observations suggested only mild limitations due to any mental condition.5
She reported that Mr. Gable was alert, oriented, well groomed, well dressed, and
presented no deficits in abstract reasoning, thought processing, thought content, or
judgment. (R. at 37, 161.) Second, the ALJ doubted Mr. Gable’s effort and frankness

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“GAF scores between 51 and 60 reflect moderate symptoms, including moderate
difficulty in social, occupational, or school settings. GAF scores between 61 and 70 reflect mild
symptoms, with some difficulty in social and occupational functioning.” Wind v. Barnhart, 133
F. App’x. 684, 687 (11th Cir. 2005) (citing Am. Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed.2000)).

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during his examination. For example, Dr. Arnold reported that Mr. Gable was
marginally compliant and a “guarded informant.” (R. at 162.) The ALJ interpreted
these notations, in light of Dr. Arnold’s observations, as indicative of “questionable
motivation/cooperation” from Mr. Gable. (R. at 37.) The ALJ cited Mr. Gable’s
questionable motives as a key reason for discrediting the GAF score of 59. (R. at 37.)
As described above, the ALJ’s findings regarding Mr. Gable’s severe and
nonsevere impairments are supported by substantial evidence and, therefore, are due
to be affirmed.
B. The ALJ Properly Considered Mr. Gable’s Impairments in Determining His
RFC
Mr. Gable contends that the ALJ failed to consider all of his impairments,
including pain, in determining his RFC. A claimant’s RFC is the most he can still do
despite his impairments. 20 C.F.R. § 416.945(a)(1). In determining a claimant’s
RFC, the ALJ must consider “the limiting effects of all [his] impairment(s), even
those that are not severe.” 20 C.F.R. § 416.945(e). The RFC determination includes
an assessment of a claimant’s subjective symptoms, such as pain. (Id.) However,
subjective symptoms, such as pain and fatigue, are only considered to the extent they
are supported by the medical record. See 20 C.F.R. §§ 416.908 & 416.929; see also
SSR 96-3p, 1996 WL 374181 at *2.

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Moreover, the ALJ may discredit a claimant’s allegations of his subjective
symptoms. See Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Tieniber
v. Heckler, 720 F.2d 1251, 1254 (11th Cir. 1983). If an ALJ discredits a claimant’s
testimony regarding the severity of his symptoms, the ALJ must “articulate explicit
and adequate reasons for doing so.” Foote, 67 F.3d at 1561-62. “A clearly articulated
credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.” Id. at 1562 (citing MacGregor v. Bowen, 786 F.2d
1050, 1054 (11th Cir. 1986)).
In this case, the ALJ considered Mr. Gable’s alleged subjective symptoms,
including fatigue, respiratory problems, and pain.6 (R. at 39–40.) The ALJ found that
Mr. Gable’s underlying medical conditions (i.e., his severe and nonsevere
impairments) could reasonably be expected to produce these symptoms, but that Mr.
Gable’s “statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible.” (R. at 40.)
The ALJ explicitly articulated numerous and adequate reasons to discredit Mr.
Gable’s allegations of subjective symptoms. First, the ALJ found Mr. Gable’s

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Mr. Gable argues that the ALJ failed to consider his allegations of pain. Pl.’s Br. at 8.
However, Mr. Gable has failed to point out to this court any allegations of pain which the ALJ
did not address. Further, the court examined Mr. Gable’s testimony before the ALJ and finds
that the ALJ addressed all of Mr. Gable’s allegations of pain or other subjective symptoms.
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treatment history to be inconsistent with the alleged severity of his symptoms.
Specifically, the ALJ noted that Mr. Gable only started seeing a doctor for his alleged
symptoms in 2008 and denied seeing a doctor for three or four years before that time.
(R. at 40.) The ALJ also noted that Mr. Gable had not yet started treatment for his
Hepatitis C, even though he was diagnosed more than a year earlier. (Id.) Second,
the ALJ found that Mr. Gable’s daily activities are inconsistent with his allegations
of disabling fatigue. (R. at 39, 41.) For example, Mr. Gable claims he sweeps, mops,
and picks up after his nephews. (R. at 36, 123, 162.) He cared for his sister while she
recovered from a broken leg. (R. at 11, 41, 121.) He walks thirty (30) minutes to the
post office and does chores for his mother, such as replacing a door. (R. at 162.) Mr.
Gable also goes to his friend’s home to watch TV (id.), takes care of the family pets
(R. at 122), and mows the lawn with a riding mower (R. at 123). The ALJ found that
the inconsistencies between Mr. Gable’s alleged symptoms and his daily activities
negatively impacted his credibility.
Third, at his hearing, Mr. Gable testified that his lower legs often swell and
require him to prop them up. (R. at 17.) The ALJ found a complete absence of
support for this allegation in Mr. Gable’s medical history. (R. at 41.) Because the
ALJ found this allegation not credible, he doubted the sincerity of Mr. Gable’s other
allegations. (Id.) Fourth, the ALJ noted Mr. Gable’s evasiveness in answering
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questions at his hearing and with his physicians. (Id.) In particular, the ALJ noted
Mr. Gable’s inconsistent reporting of his substance abuse to his treating doctors. (Id.)
Additionally, the ALJ noted that Mr. Gable’s work history, which showed that he
often failed to report his income and pay taxes, further decreased his credibility. (R.
at 42.)
Having largely discredited Mr. Gable’s subjective symptoms, the ALJ
considered his ability to work despite his credible impairments. (R. at 40.) Because
the ALJ properly considered the total limiting effects of all of Mr. Gable’s
impairments, see 20 C.F.R. § 416.945(e), the ALJ did not err in determining his RFC.
C. The ALJ Presented a Proper Hypothetical to the Vocational Expert
The ALJ must present a comprehensive hypothetical to the VE. See Pendley
v. Heckler, 767 F.2d 1561, 1562 (11th Cir. 1985). Here, the ALJ’s hypothetical
adequately encompassed Mr. Gable’s RFC as determined by the ALJ. (R. at 23, 37.)
Because the ALJ’s properly determined Mr. Gable’s RFC, see Anaylsis, A & B supra,
this argument necessarily fails.

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CONCLUSION
For the forgoing reasons, the decision of the Commissioner is due to be
AFFIRMED.
DONE and ORDERED this the 6th day of September, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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