Finch v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 10/17/12. (ASL)

FILED
2012 Oct-17 PM 04:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SEPTEMBER LAVONE FINCH,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,

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CV 12-J-0885-NE

Defendant.
MEMORANDUM OPINION
The plaintiff appeals from the decision of the Commissioner of Social Security
denying her supplemental security income. The case is now properly before the court.
See 42 U.S.C. § 405(g).
At the time of the hearing before the Administrative Law Judge (“ALJ”), the plaintiff
was 48 years old and had completed the twelfth grade (R. 55, 57). The plaintiff alleges an
inability to work due to Legg Calve Perthes disease1 as a child, which has left her with
severe arthritis in her hips (R. 49). She alleges she has pain in both legs and hips, with her
left worse than her right (R. 50).

Her doctor has recommended a complete hip

replacement on both sides, but the plaintiff has been unable to obtain insurance to have

1

Legg-Calve-Perthes disease is when the ball of the thighbone in the hip doesn't get enough blood,
causing the bone to die. Without enough blood to the area, the bone dies. The ball of the hip will collapse and
become flat. Usually only one hip is affected, although it can occur on both sides. The blood supply returns over
several months, bringing in new bone cells. The new cells gradually replace the dead bone over 2 - 3 years.
Osteoarthritis later in life is a recognized complication of this disease. See e.g., http://www.ncbi.nlm.nih.gov
/pubmedhealth/PMH0002244/.

the surgery (R. 50-51). Her pain ranges from an 8 to a 10 on a scale of 1-10, but she
cannot take prescription pain medication because it hurts her stomach (R. 51). She takes
Advil and ibuprofen, elevates her legs, uses hot baths and has to constantly move around
to relieve the pain (R. 52). In her estimation, she can walk less than half a block, and less
than 15 minutes (R. 53). She is unable to stand for more than 10 to 15 minutes, and can
sit about 30 minutes at a time (R. 54). She estimates that she could lift 10 pounds at most
(R. 62).
The plaintiff’s last job was as a patient care assistant in a hospital, but she had to
quit because she could not do the walking or the lifting required (R. 58). She described her
day prior to the hearing as spent caring for her 3 year old granddaughter (R. 66).
Approximately six months prior to the hearing, the plaintiff rode from Alabama to New
Jersey, with a stop in Arkansas, for her sister’s funeral (R. 67).
The ALJ found that the plaintiff’s impairment which is severe is bilateral
osteoarthritis of the hips secondary to Legg Calve Perthes disease (R. 26), but that the
same was not an impairment listed in, or medically equal to, any of those listed in Appendix
1 of Subpart P, 20 CFR Part 404 (R. 26). The ALJ agreed that the plaintiff did have an
impairment which met part one of the Eleventh Circuit pain standard, that evidence of an
underlying medical condition2 (R 27). However, the ALJ did not find objective medical
evidence that confirmed the severity of the pain alleged nor evidence which supported a
finding that her condition was of such severity that it reasonably could be expected to

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The 11th Circuit three-part pain standard requires 1) evidence of an underlying medical condition and
either 2) objective medical evidence that confirms the level of severity of the alleged pain arising from that
condition or 3) that the objectively determinable medical condition is of a severity which can reasonably be
expected to give rise to the alleged pain. See e.g Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991).

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cause such pain (R. 27). Based on consideration of the evidence, the ALJ concluded that
the plaintiff could perform a limited range of light work, and hence return to her past work
as a floral designer (R. 30). The ALJ thus concluded that the plaintiff was not disabled
within the meaning of the Social Security Act (R. 31).
The plaintiff argues that the Commissioner’s residual functioning capacity (RFC),
findings were not based on substantial evidence. Plaintiff memorandum at 6. However,
the court finds from the extremely sparse medical records that while plaintiff was noted to
have limitations on prolonged walking, sitting or standing, the ALJ took such limitations into
account in finding the plaintiff could return to her work as a florist. Additionally, while the
plaintiff argues that Dr. Bergquist’s opinion was entitled to significant weight, his opinion
before the ALJ was neither contradicted by any other evidence, nor reflective of opinions
concerning the plaintiff’s daily activities. Therefore, the plaintiff’s assertion that the ALJ
“clearly expressly rejected” Dr. Bergquist’s opinion and reached the “alternative conclusion”
that the plaintiff “does not in fact need surgery at this juncture” (plaintiff’s memorandum at
7), is a mischaracterization of the ALJ’s determination that the plaintiff could perform a
limited range of light work.3
The medical records reflect that when plaintiff was seen in 1994, she walked without
a limp and “literally jumped off the examining table” (R. 226). The recommendation at that
time was that if her job bothered her, she should find another job (R. 226). The plaintiff

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Whether or not the plaintiff needs surgery is not tantamount to a finding that she can or cannot work.
Even assuming that the record supported a finding that the plaintiff could not work until she has hip surgery, she
still must satisfy the requirement that she has an impairment which has or will last for more than twelve months.
Assuming she could return to work post surgery, she would not be entitled to benefits. Similarly, even if Dr.
Bergquist’s letter from September 2011 was entitled to controlling weight, the same would not establish disability
prior to the date of the August 2011 hearing.

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was seen in an emergency room in December 2010 for vertigo (R. 244-251). In February
2011 the plaintiff was seen by Dr. Bergquist, who noted that the plaintiff suffered from
bilateral osteoarthritis of the hip secondary to Legg-Calve-Perthes disease and back pain
(R. 253). He recommended a total hip orthoplasty and due to the complexity of the
surgery, that the same be performed at UAB (R. 253). He noted severe limitations in the
plaintiff’s range of motion in her hips (R. 253). In September 2011 Dr. Bergquist wrote in
a “to whom it may concern” letter that the plaintiff has severe osteoarthritis of her hips, and
is unable to perform substantial gainful employment due to the severity of her hip pain (R.
257). He added to “[p]lease consider this patient for disability benefits” (R. 257).
In a consultative evaluation in July 2010 by Rachel Kennedy, M.D., the plaintiff was
noted to be in no acute distress, walked normally, and had no trouble getting on and off the
exam table, getting out of a chair, or getting dressed and undressed (R. 241). Although
limitation of motion in her hip was noted, the plaintiff could also heel and toe walk, and
squat, although she needed assistance rising (R. 241-242). Dr. Kennedy concluded that
the plaintiff had limitations in her range of motion and severe limitations against prolonged
walking, prolonged standing, prolonged standing, bending, squatting and lifting (R. 242).
This court’s role under the Social Security Act is a narrow one. The scope of its
review is limited to determining: 1) whether there is substantial evidence in the record as
a whole to support the findings of the Commissioner, and 2) whether the correct legal
standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S. Ct.
1420, 28 L. Ed. 843 (1971); Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The
Court may not decide facts, reweigh evidence, or substitute its judgment for that of the

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Commissioner. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
However, this limited scope does not render affirmance automatic,
for “despite [this] deferential standard for review of claims . . . [the] Court
must scrutinize [the] record in its entirety to determine reasonableness of the
decision reached.” Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
Lamb, 847 F.2d at 701. Moreover, failure to apply the correct legal standards is grounds
for reversal. See Bowen v. Heckler, 748 F.2d 629, 634 (11th Cir. 1984).
The court finds that the decision of the ALJ is supported by substantial evidence.
Although the record clearly reflects that the plaintiff does have limitations which could
cause pain, the ALJ accommodated the consultative examiner’s opinion that the plaintiff
should not engage in prolonged standing, walking or sitting by specifically asking the
vocational expert about jobs which allow for a sit/stand option. Such an option is also
within the limitations the plaintiff herself described, such as sitting for 30 minutes at a time
and standing for 15 minutes at a time. Although the plaintiff alleges pain at a disabling
level, for which she takes only over the counter pain relievers, such a level of pain is
contradicted by activities such as caring for a 3 year old child.4 Despite plaintiff’s argument

4

When a claimant's symptoms suggest a greater level of severity of impairment than can be shown by
the objective medical evidence alone, 20 CFR 404.1529 describes the kinds of evidence the ALJ must consider
in addition to the objective medical evidence when assessing the credibility of the claimant's statements. This
includes (1) The claimant's daily activities; (2) The location, duration, frequency, and intensity of the claimant's
pain or other symptoms; (3) Factors that precipitate and aggravate the symptoms; (4) The type, dosage,
effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other
symptoms; (5) Treatment, other than medication, the claimant receives or has received for relief of pain or other
symptoms; (6) Any measures other than treatment the claimant uses or has used to relieve pain or other symptoms
(e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) Any
other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms (SSR
96-7p). Here, the ALJ clearly considered such factors.

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otherwise, the ALJ did not have to afford more weight to the opinion of Dr. Bergquist than
Dr. Kennedy, because these medical opinions in no way contradicted each other.
Similarly, nothing in Dr. Bergquist’s September 2011 letter requires remand. See
plaintiff’s memorandum, at 10. That letter was provided to and within the list of materials
considered by the Appeals Council. In it, although Dr. Bergquist opines that the plaintiff
is not able to perform substantial gainful employment because of persistent hip pain, and
that she “may benefit” from hip replacements, that letter neither establishes disability during
the time period before the ALJ, or establishes that the plaintiff would have a limitation from
substantial gainful employment lasting twelve months or more. See 42 U.S.C. § 416.
1436(c).
Based on the foregoing, the court is of the opinion that the ALJ’s determination is
due to be and hereby is AFFIRMED.
Done, this 17th of October, 2012.

INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE

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