Kerr v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge J Foy Guin, Jr on 4/26/12. (CTS, )

FILED
2012 Apr-26 PM 03:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

DANIEL P. KERR,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 11-G-3138-NE
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MEMORANDUM OPINION
The plaintiff, Daniel P. Kerr, brings this action pursuant to the provisions
of section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking
judicial review of a final adverse decision of the Commissioner of the Social Security
Administration (the Commissioner) denying his application for Social Security
Benefits. Plaintiff timely pursued and exhausted his administrative remedies available
before the Commissioner. Accordingly, this case is now ripe for judicial review under
205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The sole 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. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To that
end this court “must scrutinize the record as a whole to determine if the decision

reached is reasonable and supported by substantial evidence.” Bloodsworth, at 1239
(citations omitted). Substantial evidence is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Bloodsworth, at 1239.
STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish his entitlement
for a period of disability, a claimant must be disabled. The Act defines disabled as 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); 42 U.S.C. § 416(i). For the purposes
of establishing entitlement to disability benefits, “physical or mental impairment” is
defined as “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether a claimant is disabled, Social Security regulations
outline a five-step sequential process. 20 C.F.R. § 404.1520 (a)-(f). The
Commissioner must determine in sequence:
(1)

whether the claimant is currently employed;

(2)

whether she has a severe impairment;

(3)

whether her impairment meets or equals one listed by the
Secretary;
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(4)

whether the claimant can perform her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); 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 past work, the
burden shifts to the Secretary to show that the claimant can perform some other job.”
Pope, at 477; accord Foot v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
In the instant case, the ALJ, Patrick R. Digby, determined the plaintiff
met the first two tests, but concluded did not suffer from a listed impairment. The
ALJ found the plaintiff unable to perform his past relevant work. Once it is
determined that the plaintiff cannot return to his prior work, “the burden shifts to the
[Commissioner] to show other work the claimant can do.” Foote, at 1559. When a
claimant is not able to perform the full range of work at a particular exertional level,
the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the
grids). Foote, at 1558-59. The presence of a non-exertional impairment (such as pain,
fatigue or mental illness) also prevents exclusive reliance on the grids. Foote, at 1559.
In such cases “the [Commissioner] must seek expert vocational testimony. Foote, at
1559.

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THE STANDARD WHEN THE CLAIMANT TESTIFIES HE
SUFFERS FROM DISABLING PAIN
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.” Foote, at 1560.
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.
Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). In this
circuit 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 at 1011.
Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir. 1991)(parenthetical
information omitted)(emphasis added). Furthermore, it must be kept in mind that “[a]
claimant’s subjective testimony supported by medical evidence that satisfies the pain
standard is itself sufficient to support a finding of disability.” Foote at 1561.

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Therefore, if a claimant testifies to disabling pain and satisfies the three part pain
standard, he must be found disabled unless that testimony is properly discredited.
When the Commissioner fails to credit a claimant’s pain testimony, he
must articulate reasons for that decision.
It is established in this circuit that if the Secretary fails to articulate
reasons for refusing to credit a claimant’s subjective pain testimony, then
the Secretary, 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 Secretary be supported by substantial evidence.
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Therefore, if the ALJ either
fails to articulate reasons for refusing to credit the plaintiff’s pain testimony, or if his
reasons are not supported by substantial evidence, the pain testimony of the plaintiff
must be accepted as true.
THE STANDARD FOR REJECTING THE TESTIMONY OF A
TREATING PHYSICIAN
As the Sixth Circuit has noted: “It is firmly established that the medical
opinion of a treating physician must be accorded greater weight than those of
physicians employed by the government to defend against a disability claim.” Hall v.
Bowen, 837 F.2d 272, 276 (6th Cir. 1988). “The testimony of a treating physician must
ordinarily be given substantial or considerable weight unless good cause is shown to
the contrary.” McGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); accord
Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1216 (11th Cir. 1991). In addition,
the Commissioner “must specify what weight is given to a treating physician’s opinion
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and any reason for giving it no weight ....” McGregor, 786 F.2d at 1053. If the
Commissioner ignores or fails to properly refute a treating physician’s testimony, as a
matter of law that testimony must be accepted as true. McGregor, 786 F.2d at 1053;
Elam, 921 F.2d at 1216. The Commissioner’s reasons for refusing to credit a
claimant’s treating physician must be supported by substantial evidence. See
McGregor, 786 F.2d at 1054; cf. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.
1987)(articulation of reasons for not crediting a claimant’s subjective pain testimony
must be supported by substantial evidence).
DISCUSSION
The plaintiff alleges he is disabled due to Meniere’s disease and
positional vertigo. The plaintiff began reporting dizziness in June 2007 to his primary
care provider. The dizziness was accompanied by hearing loss in the right ear and
continued to worsen. On October 9, 2007, the plaintiff was referred to Dr. LaFrentz,
who is a board certified in Otolaryngology. Doctor LaFrentz continued to treat the
plaintiff until March 31, 2008. He referred the plaintiff to Dr. McGrew, at the
Kirkland Otolaryngology/head and Neck Surgery Clinic. On May 30, 2008, Dr.
McGrew noted that the plaintiff complained of two to three episodes of vertigo per
week that lasted more than 30 minutes. The plaintiff also reported that nausea and
vomiting was associated with his dizziness. He also had tinnitus. Doctor McGrew
noted that the plaintiff had not improved on prescribed medications.

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By September 2, 2008, Dr. McGrew noted that the plaintiff had elected to
proceed with surgery to treat his Meniere’s disease. That surgery was performed on
September 3, 2008. In his first follow-up visit with Dr. McGrew on October 1, 2008,
the plaintiff reported “a dramatic improvement in symptoms already with his episodes
of dizziness decreasing from once every other day to now approximately once per
month.” Record 214. Doctor McGrew’s impression was “right meniere’s disease
effectively treated with right endolymphatic to mastoid shunt.”
The final treatment note from Dr. McGrew is dated April 3, 2009. That
treatment note states the plaintiff reported
he has continued to have spinning episodes. He said that these episodes
last anywhere from 15 to 30 minutes, sometimes up to an hour 2 to 3
times per week. These episodes also will occur multiple times in a given
day. He also reports some position is affecting or initiating the episodes.
He has not had his associated nausea and vomiting that he had preprocedure.
Record 215. Doctor McGrew’s treatment plan stated that “many other symptoms are
consistent with the history of benign positional vertigo.” Record 215. The plaintiff
was instructed on the importance of vestibular exercises. Because the vestibular
exercises would not work so long as the plaintiff was taking Valium, Dr. McGrew
instructed the plaintiff to taper off a Valium.
At his ALJ hearing the plaintiff testified that he continued to have severe
spinning episodes three to four times per week. Record 33. He testified that these
spinning episodes sometimes lasted 20 minutes, but other times they lasted a few
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hours. Record 32. He testified that during the severe portion of these attacks he had to
lie down.
The ALJ refused to credit the plaintiff’s testimony about the severity and
frequency of his spinning episodes. One of the reasons given by the ALJ was that the
plaintiff’s testimony “contrasts sharply with what he told Dr. McGrew and suggests he
was not fully credible at the hearing.”. However, when the plaintiff saw Dr. McGrew
on April 3, 2009, he reported the following:
The patient reports that he has continued to have spinning episodes. He
said that these episodes last anywhere from 15 to 30 minutes, sometimes
up to an hour two to three times per week. These episodes will also
occur multiple times in a given day.
Record 215. Therefore, contrary to the ALJ’s assertions, the plaintiff’s hearing
testimony did not contrast sharply with what he reported to Dr. McGrew. His
testimony was in fact quite consistent with his reports to Dr. McGrew on April 3, 2009.
The ALJ also found the plaintiff’s activities of daily living to be
inconsistent with his testimony of disabling spinning episodes:
He testified he was able to wash dishes, vacuum, cook and take care of
his own personal needs. He also watched television and worked puzzles.
These activities require sustained concentration and would seemingly be
difficult to perform with tinnitus and a sensation of spinning.
Record 13. However, the plaintiff’s testimony was not as recited by the ALJ. He
testified that he vacuumed “when I’m able.” Record 30. The plaintiff explained that it
was mostly bending over that prevented him from vacuuming. Record 31. He testified

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that he could not “bend over without becoming so dizzy, I stagger and sometimes fall
down.” Record 31. This testimony is consistent with Dr. McGrew’s diagnosis of
positional vertigo. Record 215. The plaintiff’s testimony about working puzzles, and
cooking were also qualified as being activities he engaged in when he was able. When
asked at the hearing what he did during the day he responded: “Watch a lot of TV.
When I’m able, I try to cook. I work some jigsaw puzzles, if I’m not too dizzy. I try to
read. Some days I can read, some days I can’t, you know.” Record 32 (emphasis
added). Therefore, the plaintiff’s testimony about his daily activities is in no way
inconsistent with his testimony of disabling spinning episodes. This testimony is also
consistent with his report of symptoms to Dr. McGrew.
Therefore, the ALJ’s recited reasons for not crediting the plaintiff’s
hearing testimony are not supported by substantial evidence. Under the law of this
circuit that testimony must be accepted as true. Because the ALJ found the plaintiff
was unable to perform his past relevant work, the burden shifted to the Commissioner
to show the plaintiff could perform other work. The Commissioner failed to carry his
burden at step five of showing the plaintiff could perform other work because the
hypothetical questions posed to the vocational expert did not take into account the
plaintiff’s frequent spinning episodes. Accordingly, the plaintiff is disabled within the
meaning of the Social Security Act. This is a case where “the [Commissioner] has
already considered the essential evidence and it is clear that the cumulative effect of

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the evidence establishes disability without any doubt.” Davis v. Shalala, 985 F.2d 528,
534 (11th Cir. 1993). In such a case the action should be reversed and remanded with
instructions that the plaintiff be awarded the benefits claimed. Id. Accordingly, an
appropriate order remanding the action with instructions that the plaintiff be awarded
the benefits claimed will be entered contemporaneously herewith.
DONE this 26 April 2012.

UNITED STATES DISTRICT JUDGE
J. FOY GUIN, JR.

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