Robinson v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/05/12. (CVA)

FILED
2012 Nov-05 AM 11:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ANITA ROBINSON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
5:12-cv-00313-AKK

MEMORANDUM OPINION
Plaintiff Anita Robinson (“Robinson”) brings this action pursuant to
sections 205(g) and 1631(c)(3) of the Social Security Act (“the Act”), 42 U.S.C.
§§ 405(g) and 1383(c)(3), seeking review of the final adverse decision of the
Commissioner of the Social Security Administration (“SSA”). Doc. 1. This court
finds that the Administrative Law Judge’s (“ALJ”) decision - which has become
the decision of the Commissioner - is not supported by substantial evidence.
Therefore, for the reasons elaborated herein, the court will REVERSE and
REMAND the decision denying benefits to the ALJ for her to reach a disability
determination based on the medical record and to consult additional physicians to

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assess Robinson’s condition.
I. Procedural History
Robinson filed her application for Title II disability insurance benefits
(“DIB”) and Title XVI Supplemental Security Income (“SSI”) on May 18, 2009,
alleging a disability onset date of August 1, 2008, due, in part, to deterioration of
her spine and hip bone. (R. 119-121, 122-128). After the SSA denied her
application on June 26, 2009, Robinson requested a hearing on August 13, 2009.
(R. 93, 98, 102). At the time of the hearing on July 22, 2010, Robinson was 50
years old with an eleventh grade education, and her past relevant work included
working as a labeling machine operator, housekeeper, and janitor. (R. 119, 144,
166-175). Robinson has not engaged in substantial gainful activity since the date
of her application. (R. 141).
The ALJ denied Robinson’s claims on October 1, 2010, which became the
final decision of the Commissioner when the Appeals Council refused to grant
review on December 28, 2011. (R. 18-28, 1-6). Robinson then filed this action on
January 30, 2012, pursuant to 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.
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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)
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, 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.
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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); 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).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). 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

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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
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

1

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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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
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. As such, 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.
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IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that
Robinson met the insured status requirements of the Act through September 30,
2012. (R. 20). Moving to the first Step, the ALJ found that Robinson engaged in
substantial gainful activity between January and April 2009, i.e., after her alleged
onset date. However, because there was a continuous 12-month period during
which Robinson had not engaged in substantial gainful activity, the ALJ
determined that Robinson met Step One. Id. Next, the ALJ found that Robinson
satisfied Step Two because she suffered from the severe impairments of
“degenerative disc disease and joint pain in pelvis.” (R. 21). The ALJ then
proceeded to the next step and found that Robinson failed to satisfy Step Three
because she “does not have any impairments or combination of impairments that
meets or medically equals one of the listed impairments.” (R. 22). 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 she determined that
Robinson
has the residual functional capacity [“RFC”] to perform light work...
except she would be limited to occasional postural maneuvers such as
balancing, stooping, bending, crouching, crawling, and climbing.
Additionally, she would be limited to occasional walking and
standing, meaning 4 out of 8 hours.
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(R. 22). Moreover, in light of Robinson’s RFC, the ALJ held that Robinson is
“unable to perform any past relevant work.” (R. 26). Lastly, in Step Five, the ALJ
considered Robinson’s age, education, work experience, and RFC and determined
“there are jobs that exist in significant numbers in the national economy that
[Robinson] can perform.” Id. Therefore, the ALJ found that Robinson “has not
been under a disability, as defined in the Social Security Act, from August 1,
2008, through the date of this decision.” (R. 27).
V. Analysis
The court turns now to Robinson’s two contentions of error: that the ALJ
(1) failed to provide substantial evidence to support her decision to assign “little
weight” to treating physician Richard Bucco, M.D.’s opinion, and (2) misapplied
the pain standard. See doc. 8 at 1-15. The court addresses each contention in turn.
A.

Alleged failure to provide substantial evidence for determination that
Dr. Bucco’s opinion only entitled to “little weight”

“It is well-established that ‘the testimony of a treating physician must be
given substantial or considerable weight unless “good cause” is shown to the
contrary.’” Crawford v. Comm’r of Social Security, 363 F.3d 1155, 1159 (11th
Cir. 2004) (emphasis added) (quoting Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997)). See also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). “Good

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cause” exists when the “(1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) [the] treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).
Additionally, the “ALJ must clearly articulate the reasons for giving less weight to
the opinion of a treating physician, and the failure to do so is reversible error.”
Lewis, 125 F.3d at 1440.
Reversal is warranted here because the ALJ failed to articulate “good cause”
for her decision to give “little weight” to treating physician Dr. Bucco’s opinion.
(R. 23). Specifically, the ALJ found that (1) Dr. Bucco appeared to have “relied
quite heavily on the subjective report of symptoms and limitations provided by
[Robinson] herself, and seemed to uncritically accept as true most, if not all, of
what [Robinson] reported,” and (2) “Dr. Bucco’s treatment records do not support
the limitations he expressed in his opinion.” (R. 23). However, a review of Dr.
Bucco’s treatment records shows that Dr. Bucco based his opinions on his
objective physical examinations and MRIs, and that his treatment records support
his opinions.
Dr. Bucco treated Robinson beginning in April 2007 for Robinson’s general
health and chronic pain complaints associated with her lower back, neck, and hip.
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(R. 364). Throughout this treatment, Dr. Bucco consistently stated in his treatment
records that Robinson’s “pain has been controlled under current strategy,” which
included use of narcotics, including Lortab. See (R. 366, 224, 227, 231, 233, 236,
242, 250, 307). However, in July 2010, as part of Robinson’s application for
benefits, Dr. Bucco responded to a Lumbar Spine Medical Assessment
Questionnaire that he called a “disability physical” in which he opined after
examining Robinson, that Robinson’s pain was disabling and that “[d]espite
medical compliance and pain control efforts,[ Robinson] is unable to work.” (R.
363, 364, 366). Specifically, Dr. Bucco noted that his physical examination
revealed that Robinson had “pain in left rib cage area that radiates up into her
axillary area[,]...[p]ain in the right inguinal area extending from the anterior
superior iliac spine down to the right labial area[,]...pain and stiffness in the neck
and thoracic area from C4-T2...[m]uscle pain mostly in the paravertabral area of
the mid and lower neck as well as the lower back[,]...pain on palpation of the
thoracic facets, moderate pain on L5 lumbar facets, moderate pain on L5 lumbar
intervertebral disc bases[,]...moderate pain in right sacrolliac joints corresponding
with S1S2[,] Pain radiates down leg with palpation[,] Pain goes down entire right
thigh[,] Subjective pain in right sole of the foot.” (R. 365-66). Dr. Bucco added
that steroid injections proved ineffective, that Robinson (1) has joint pain,
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swelling, and stiffness, back pain, muscle pain, and neck pain, (2) can walk with a
limping gait, (3) can put her socks and shoes on with difficulty, (4) cannot sit for
any period of time without having to move due to pain and muscle spasms, (5) is
unable to stand for more than 30 minutes, (6) is limited in ambulation to 20
minutes, (7) is unable to push, pull, or lift objects over 5 pounds, (8) cannot bend
over and has difficulty squatting and rising from a seated position, and (9) has
numbness and tingling in her feet, hands, and right leg. (R. 364-367). Critically,
Dr. Bucco added that Robinson’s pain and medical conditions affect her mental
status, concentration, sex life, ambulation, and sleep. (R. 366).
While the July 2010 assessment on first blush seems contradictory to Dr.
Bucco’s statements in his treatment notes that Robinson’s “pain has been
controlled under current strategy,” a thorough review of Dr. Bucco’s treatment
notes shows that they actually support his July 2010 opinions. Robinson regularly
visited Dr. Bucco for pain treatment and Dr. Bucco regularly conducted range of
motion testing and palpation of Robinson’s spine, which showed that Robinson
had decreased range of motion due to pain in her back and neck, and pain that
radiated down her leg on palpation of her thoracic facets, L5 lumbar facets, and L5
lumbar intervertebral disc bases. (R. 366). Further, Robinson’s MRIs showed
small disc protrusions and multilevel disc desiccation, which provides some
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objective evidence for the pain Robinson alleges. (R. 262, 318).
Moreover, the court cannot disregard Dr. Bucco’s July 2010 assessment
because there is no other medical evidence in the record that contradicts Dr.
Bucco’s opinion or his treatment notes. In fact, the medical record only has two
other unrelated treatment notes from Dr. Thomas Moody, M.D. of the Urology
Centers of America, who treated Robinson for a bladder surgery in 2007, (R. 209220), and Dr. Thomas Cawthon who treated Robinson for chest pain from 2007 til
2010, (R. 368-419). Further, there are no consultative examinations or reviewing
opinions provided in the record. The only other related evidence is a Physical
RFC which is unfavorable to Robinson. However, the ALJ gave it “no weight”
because she found that “the state agency disability specialist opinion that the
claimant could perform a wide range of light work...[was completed by] someone
with no known medical expertise, and it is deemed to be an adjudicatory document
only with no evidentiary weight.” (R. 26, 78-85).
Overall, because Dr. Bucco’s treatment notes support his July 2010 opinion
that Robinson is disabled and there is no contrary or inconsistent medical evidence
in the record, the ALJ failed to provide “good cause” for not giving Dr. Bucco’s
opinions substantial or considerable weight. See Phillips, 357 F.3d at 1240-41.
Therefore, based on this medical record, the ALJ’s RFC determination was not
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supported by substantial evidence.
B.

Alleged misapplication of the pain standard

Citing Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985), Robinson
also asserts that the ALJ misapplied the Eleventh Circuit pain standard and
incorrectly rejected Robinson’s complaints of disabling pain. Doc. 8 at 14. As a
threshold matter, the court notes that subjective complaints of pain alone are
insufficient to prove disability. See 20 C.F.R. § 416.929(a); see also Holt, 921
F.2d at 1223. Rather, 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. Id. As the ALJ found at Step Two,
Robinson has underlying medical conditions of degenerative disc disease and joint
pain in the pelvis. (R. 21). Therefore, Robinson satisfies the first prong of the
pain standard. As to the second prong, Robinson contends there is objective
evidence in the record confirming the severity of her alleged pain, including her
MRIs and Dr. Bucco’s physical examinations. Doc. 8 at 17. Because Robinson’s
testimony concerning her medical condition is supported by the medical record,
which the ALJ did not dispute, Robinson asserts that her testimony alone is
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sufficient to support a finding of disability, see Holt, 921 F.2d at 1223, and that
the ALJ’s failure to properly discredit Robinson’s testimony and articulate reasons
for doing so is reversible error, see Hale, 831 F.2d at 1012.
The ALJ found that Robinson failed to meet the second prong of the threepart pain standard because the “[m]edical evidence shows that [Robinson] has
underlying medical conditions, but it does not support her allegations of severe
and chronic limitation of function to the degree that it would preclude the
performance of all substantial gainful activity.” (R. 25-26). The ALJ proffered
three reasons for her finding: (1) Robinson engaged in work activity after her
alleged onset date, (2) Robinson cared for her grandchildren (ages 7 and 10), a
task the ALJ described as both “physically and emotionally demanding,” and (3)
Robinson only obtained routine and conservative treatment for her allegedly
disabling impairments, and the medications effectively controlled Robinson’s
symptoms. (R. 26). The court finds that this evidence is not substantial enough
such that “a reasonable person would accept [it] as adequate to support [the]
conclusion” that Robinson’s pain complaints have no credibility. See Martin, 849
F.2d at 1529.
As it relates to the first reason the ALJ articulated, i.e., Robinson’s work
activity, this contention falls short because even the ALJ found that the work did
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not constitute disqualifying substantial gainful activity. (R. 26). Moreover,
Robinson stated that she only worked 10-12 hours a week, that she was in pain
afterwards, and that her sister did the heavier tasks of the housecleaning job. (R.
138, 59-60). Therefore, the court finds that Robinson’s limited work activity is
insufficient to discredit Robinson’s complaints of pain.
Likewise, the ALJ’s second reason, i.e., caring for grandchildren, does not
necessarily provide substantial evidence of physically or emotionally demanding
activity. In fact, Robinson testified that the children cared for themselves with
some supervision, including bathing and dressing themselves and preparing their
own breakfast cereal. (R. 68, 70). Further, there is nothing in the record that
supports the finding that the actual activity Robinson engaged in was physically or
emotionally demanding.
Finally, as to the ALJ’s third reason, while there is evidence that Robinson’s
medication alleviates her pain, the record also indicates that Robinson only
obtained partial relief. For example, Robinson regularly complained of pain,
causing Dr. Bucco to increase her Lortab prescription. (R. 259, 228). Despite the
increase, Dr. Bucco opined that Robinson still suffered from disabling pain. (R.
364). On remand, the evidence regarding Robinson’s pain medication regimen
and how well it alleviates her pain may require further development in the record.
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However, the current record does not substantially support the conclusion that
Robinson’s pain complaints are not credible.
In short, because Robinson has established that she suffers from a condition
that one can reasonably expect to give rise to the pain she alleges and there is
objective proof of the condition, including MRIs and physical exams, and because
the ALJ failed to articulate valid reasons to discredit Robinson’s testimony, the
ALJ’s finding that Robinson’s pain complaints were not credible is not supported
by substantial evidence.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination is
not based on substantial evidence. Therefore, the Commissioner’s final decision is
REVERSED and REMANDED for the ALJ to make a disability determination
based on the medical record, and to consult additional physicians, as necessary, to
assess Robinson’s condition. Upon remand, the ALJ is charged with finding an
RFC consistent with the medical evidence available to the ALJ such that
Robinson’s impairments are properly assessed. A separate order in accordance
with the memorandum of decision will be entered.

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Done the 5th day of November, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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