Hogwood v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 01/31/13. (CVA)

FILED
2013 Jan-31 AM 08:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JAMES HOGWOOD,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Civil Action Number
5:12-cv-01146-AKK

MEMORANDUM OPINION
Plaintiff James Hogwood (“Hogwood”) 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’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence and, therefore, AFFIRMS the decision denying
benefits to Hogwood.
I. Procedural History
Hogwood filed applications for Disability Insurance Benefits and

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Supplemental Security Income on March 25, 2009, alleging a disability onset date
of January 30, 2009 due to mental problems, migraines, blackouts, and injuries
from an automobile accident. (R. 170, 177, 287). After the SSA denied
Hogwood’s application, he requested a hearing before an ALJ. (R. 180). The ALJ
subsequently denied Hogwood’s claims, (R. 15-29), which became the final
decision of the Commissioner when the Appeals Council refused to grant review,
(R. 1-5). Hogwood then filed this action for judicial review pursuant to § 205(g)
and § 1631(c)(3) of the Act, 42 U.S.C. § 405(g) and § 1383(c)(3). Doc. 1; see also
doc. 9.
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.
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
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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.
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 impairments 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
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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;

(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 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

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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
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
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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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. Therefore, 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.
IV. The ALJ’s Decision
In properly applying the five step analysis, the ALJ first determined that
Hogwood has not engaged in substantial gainful activity since January 30, 2009,
and therefore met Step One. (R. 17). The ALJ also acknowledged that
Hogwood’s lumbago, seizure vs. syncope episodes, migraines, history of injuries
from an automobile accident, depression, anxiety, and alcohol abuse constituted
severe impairments that met Step Two. Id. The ALJ then proceeded to the next
step and found that Hogwood failed to meet or equal one of the listed impairments
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in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 and thus did not satisfy Step Three. Id.
at 15. Although he answered Step Three in the negative, consistent with the law,
see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four where he
determined that Hogwood
has the residual functional capacity to perform light work (lift, carry,
push, or pull 20 pounds occasionally and 10 pounds frequently; stand or
walk 6 hours in an 8-hour workday; and sit 6 hours in an 8-hour
workday) as defined in 20 CFR 404.1567(b) and 416.967(b) except with
the following limitations: have a sit/stand option; never climb
ladder/rope/scaffolds; occasionally climb ramp/stairs; occasionally
kneel, bend, and crawl; avoid exposure to all hazards; limited to
performing simple, repetitive, and routine tasks with only occasional
public contact and supervision that is tactful and constructive and
nonthreatening; perform work in a low stress environment, defined as
having only occasionally changes in work setting and decision making.
Id. at 20. With respect to the pain standard, the ALJ found that Hogwood’s
“medically determinable impairments could reasonably be expected to cause some
of the alleged symptoms; however, [Hogwood’s] statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above [RFC] assessment.” Id. at 21
(emphasis in original). Based on this RFC assessment, the ALJ found that
Hogwood is unable to perform any past relevant work. Id. at 27. Finally, at Step
Five, the ALJ determined that “there are jobs that exist in significant numbers in
the national economy that [Hogwood] can perform[,]” and, thus, denied
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Hogwood’s claim. Id.; see also McDaniel, 800 F.2d at 1030.
V. Analysis
Hogwood alleges that the ALJ’s decision is not supported by substantial
evidence. Specifically, Hogwood contends that the ALJ failed to give adequate
weight to the opinions of the treating psychiatrists or properly apply the pain
standard. Doc. 9. For the reasons stated more fully below, the court finds that the
ALJ’s decision is supported by substantial evidence.
A.

Assigning Weight to Treating Physicians
According to Hogwood, the ALJ failed to properly assign weight to the

treating psychiatrists Drs. Daniel McDonough and Sarah Boxley by failing to
address Dr. McDonough’s opinion or to re-contact Dr. Boxley prior to speculating
that the opinion was based upon Hogwood’s subjective complaints. Doc. 9 at 6-9.
These contentions are unavailing for two reasons. First, Dr. McDonough issued
his reports before Hogwood’s alleged onset date. Therefore, the ALJ properly
declined to address any opinions contained in those reports. See 20 C.F.R. §§
404.1512(c), 416.912(c) (“You must provide medical evidence showing that you
have an impairment(s) and how severe it is during the time you say that you are
disabled.”) (emphasis added). Second, the duty to re-contact a physician for
clarification regarding a medical opinion under SSR 96-5p arises only “if the
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evidence does not support a treating source’s opinion on any issue reserved to the
Commissioner and the adjudicator cannot ascertain the basis of the opinion from
the case record[.]” SSR 96-5p. Where, as here, the medical evidence is adequate
to determine whether the claimant is disabled, the ALJ is not obligated to recontact a medical source. Vesy v. Astrue, 353 Fed. Appx. 219, 224-25 (11th Cir.
2009), citing 20 C.F.R. § 416.912(e). Moreover, the reports completed by Dr.
Boxley fail to indicate any formal testing and instead state either “[Hogwood]
says,” “[Hogwood] feels,” “client reports,” or “client verbalizes” as the basis for
Dr. Boxley’s assessments. (R. 675-684). Therefore, the ALJ correctly noted that
Dr. Boxley’s findings are based on Hogwood’s subjective assertions.
Accordingly, the court finds that the ALJ properly assigned weight to the opinions
of Drs. McDonough and Boxley.2
B.

The Eleventh Circuit Pain Standard
Hogwood contends also that the ALJ failed to properly apply the Eleventh

2

Hogwood additionally alleges that “when a physician is instructed to give his opinion
based on his own examination and he does so, it is assumed to be the doctors own professional
assessment.” Doc. 9 at 8, citing Hale v. Bowen, 831 F.2d 1007, 1012 n.7 (11th Cir. 1987).
Accordingly, Hogwood asserts that Dr. Boxley’s note stating that she “believe[s] [Hogwood] is
unable to work,” (R. 610), is an objective assessment the ALJ should have afforded significant
weight. However, the case cited is in reference to a doctor completing a physical capacities
evaluation at the direction of the Secretary, not an opinion provided at the direction of the client.
See Hale, 831 F.2d at 1012 n.7. Moreover, an opinion regarding whether a claimant is disabled is
not due special weight because such determinations are reserved to the Commissioner. See 20
C.F.R. §§ 404.1527(d), 416.927(d).
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Circuit’s pain standard when he discredited Hogwood’s pain testimony. Doc. 9 at
9-11. This standard requires “evidence of an underlying medical condition” that is
either (a) supported by “objective medical evidence that confirms the severity of
the alleged pain arising from that condition,” or (b) “of such a severity that it can
be reasonably expected to give rise to the alleged pain.” Holt, 921 F.2d 1221 at
1223. Moreover, a claimant’s subjective testimony regarding pain, if supported by
the medical evidence, is sufficient to support a finding of disability. Id.
Accordingly, an ALJ must articulate the reasons for discrediting a claimant’s pain
testimony and substantial evidence must support the reasons. Hale, 831 F.2d at
1012.
At the hearing before the ALJ, Hogwood testified that back pain from
degenerative disc disease is his single most severe impairment and that it causes
pain and a tingling sensation that prevents him from lifting more than a grocery
bag or bending. (R. 42-43, 55-56). Hogwood testified also that he has mental
disorders such as anxiety and depression that cause him to have mood swings, an
uncontrolled temper, and “to do stupid stuff.” Id. at 46. Moreover, Hogwood
added that these mental disorders prevent him from properly dealing with stress
and that he attempted suicide in 2006 as a result. Id. at 47. With respect to his
seizures/syncopal episodes, Hogwood testified that “they are under control”
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because of his medications and that he had not had a seizure in at least six months.
Id. at 50-51.
As noted by the ALJ, although Hogwood provided “evidence of []
underlying medical condition[s],” he failed to present sufficient evidence to
support his testimony regarding the pain purportedly caused by those conditions.
Rather, most of the medical evidence Hogwood provided is from the time period
before his alleged onset date.3 As it relates to this current claim, the relevant
medical evidence begins in February 2009 when Hogwood continued psychiatric
treatment at Mountain Lakes Behavioral Healthcare with Dr. Boxley. Dr. Boxley
noted that Hogwood suffers from recurring depression, alcohol abuse, and a
history of back pain with disc disease, but assigned a GAF score of 52 – indicating
moderate symptoms. (R. 618). Hogwood followed up with Dr. Boxley until May
11, 2009. However, the progress notes indicate that Hogwood’s symptoms
improved after an increase in medication and, in fact, Hogwood informed Dr.
Boxley that he “thinks the [medication] is helping.” Id. at 619; see also id. at 619622, 676-684. Hogwood also saw Dr. Ronald Calhoun at Family Practice, but
progress notes from March 9 and February 9, 2009 indicated only that Dr. Calhoun

3

Hogwood previously filed for disability benefits for the period including February 22,
2006 through January 29, 2009. However, Hogwood did not appeal the prior decision denying
benefits. (R. 40-42, 147-50).
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prescribed pain medication for Hogwood’s lower back pain. Id. at 611-612.
After suffering what he believed to be a seizure, Hogwood saw Dr. Jeffrey
Harris at Harris Neurological Associates for an evaluation on April 9, 2009. Id. at
623-24. Dr. Harris’s impression was epileptic versus nonepileptic disorder,
syncope, migraines and chronic back pain. Id. To allay related symptoms, Dr.
Harris prescribed medications intended to prevent seizures and migraines. Id.
Two months later when Hogwood returned for a follow up, Hogwood stated that
he still suffered from headaches and back pain, but that the pain from both was
less severe. Id. at 673. After Dr. Harris changed Hogwood’s pain medication in
July, Hogwood stated that he no longer suffered daily headaches and that the pain
was “much improved.” Id. at 671, 669. Additionally, at Hogwood’s final
appointment on February 12, 2010, Hogwood described his headaches as only
“mild” and indicated that he had only one seizure since his last appointment the
previous August. Id. at 668.
The final portion of relevant medical evidence is from Dr. Robert Estock’s
psychiatric review technique and mental RFC performed in June 2009. Based on
his review of Hogwood’s medical record, and largely on the opinion of Dr.
Boxley, Dr. Estock concluded that Hogwood indeed suffers from a depression
disorder, but with only moderate symptoms. Id. at 638. Ultimately, Dr. Estock
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determined that Hogwood
would be expected to understand, remember, and carry out short simple
instructions and tasks but would likely have difficulty with more
detailed tasks and instructions[;]. . . Would be expected to maintain
attention and concentration for 2 hours with customary rest breaks. A
well-spaced work environment would be best for maximum
concentration[;] . . . Contact with the public should be infrequent and
non-intensive. Supervision should be tactful and constructive and nonthreatening[;] . . . Changes in the workplace should be infrequent and
gradually introduced.
(R. 640-642).
Based on this record, the court finds that the ALJ properly discredited
Hogwood’s pain testimony. The record shows that although Hogwood previously
suffered from seizures, his current medication effectively treats the disorder and
that Hogwood has not suffered from a seizure in at least six months. Likewise,
Hogwood’s migraines decreased from daily to not more than twice a week with
only “mild” associated pain. Moreover, the pain from Hogwood’s allegedly most
severe impairment, degenerative disc disease, is also “much improved” and well
treated with pain medication. Hogwood failed to present evidence that his
symptoms are as severely limiting as he testified before the ALJ. Since
Hogwood’s testimony is not supported by the objective medical evidence, the ALJ
properly discredited it. See Holt, 921 F.2d 1221 at 1223. Accordingly, the court
finds that the ALJ’s decision is supported by substantial evidence.
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VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Hogwood is not disabled is supported by substantial evidence and that proper
legal standards were used in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED.
DONE the 31st day of January, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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