Keefer v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/24/14. (ASL)

FILED
2014 Jun-24 AM 11:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
WYATT N. KEEFER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Administration,
Defendant.

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Civil Action Number
5:12-cv-02138-AKK

MEMORANDUM OPINION
Plaintiff Wyatt N. Keefer 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 adverse
decision of the Administrative Law Judge (“ALJ”), which has become the final
decision of the Commissioner of the Social Security Administration (“SSA”). This
court finds that the ALJ’s decision is supported by substantial evidence and he
applied the correct legal standards. Thus, the court will AFFIRM the decision
denying benefits.
I. Procedural History
Keefer protectively filed his applications for disability insurance benefits
and supplemental security income on December 31, 2008, alleging a disability

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onset date of November 15, 2007, (R. 118-127), due to back problems, arthritis,
left leg numbness, and anxiety, (R. 181). After the SSA denied his applications on
March 11, 2009, (R. 96-105), Keefer requested a hearing, (R. 88-95). At the time
of the hearing on September 3, 2010, Keefer was thirty-four years old, (R. 118),
and had an eighth grade education, (R. 45). Keefer had past relevant medium,
skilled work as a house painter and light, semi-skilled work as an ambulance light
installer. (R. 22). Although the ALJ found Keefer has engaged in substantial
gainful activity since the alleged onset date, (R. 16), he also found that “[t]here has
been a continuous 12-month period(s) during which [Keefer] did not engage in
substantial gainful activity,” id.
The ALJ denied Keefer’s claim on January 3, 2011, (R. 14-24), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on April 11, 2012, (R. 1-6). Keefer then filed this action pursuant
to section 1631 of the Act, 42 U.S.C. § 1383(c)(3). 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.
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)

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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.
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

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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)(I)(A). 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).

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

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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, he 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
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). Moreover, “[a] claimant’s subjective testimony supported
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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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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. 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 performing the Five Step sequential analysis, the ALJ initially determined
that Keefer had engaged in substantial gainful activity since the alleged onset of his
disability, but that there had been a continuous 12-month period where he had not
engaged in substantial gainful activity. (R. 16). Next, the ALJ acknowledged that
Keefer’s severe impairments of degenerative disc disease of the lumbar spine,
failed back syndrome, status post microdiscectomy, anxiety disorder, personality

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disorder, and borderline intellectual functioning met Step Two. (R. 17). The ALJ
then proceeded to the next step and found that Keefer did not satisfy Step Three
since he “does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments.”

Id.

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 he determined that Keefer
has the residual functional capacity [“RFC”] to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except [the ALJ]
specifically f[ound] that [Keefer] can lift or carry up to 20 pounds
occasionally and 10 pounds frequently. He can stand and walk for 4
hours in an 8-hour workday and sit 6 hours in an 8-hour workday. He
can never climb a ladder, rope, or scaffold. He can occasionally climb
ramps/stairs, crouch, crawl, kneel, stoop, and balance. He should
avoid concentrated exposure to hazards and vibrations. He can
concentrate, persist, and work at pace to perform simple, routine,
repetitive tasks for 2-hour periods in an 8-hour workday. He can have
only occasional interaction with the public and can interact
appropriately with coworkers and supervisors in a stable, routine
setting.
(R. 19). Based on this assessment of Keefer’s RFC, the ALJ determined Keefer
was unable to perform his past relevant work. (R. 22). Lastly, in Step Five, the
ALJ considered Keefer’s age, education, work experience, and RFC, and
determined, based on the Medical Vocational Guidelines found in 20 C .F.R. Part
404, Subpart P, Appendix 2 and on the testimony of a vocational expert (“VE”),
that Keefer “is capable of making a successful adjustment to other work that exists
in significant numbers in the national economy.” (R. 23). Because the ALJ

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answered Step Five in the negative, he determined that Keefer was not disabled.
Id.
V. Analysis
The court now turns to Keefer’s contentions that the ALJ improperly (1)
applied the pain standard and (2) gave “great weight” to the opinion of Dr. H.
Gordon Mitchell. The court addresses these contentions below.
A. Pain Standard
As it relates to Keefer’s allegations of disabling pain, the ALJ found that
although Keefer’s “medically determinable impairments could reasonably be
expected to cause [his] alleged symptoms,” (R. 20), Keefer’s allegations of
disabling pain were not fully credible. Keefer contends that the ALJ’s credibility
finding is not supported by substantial evidence. Doc. 10 at 3. Unfortunately for
Keefer, the record belies his contention. Specifically, consistent with the pain
standard in this circuit, the ALJ discredited Keefer’s testimony because of the
“lack of objective medical evidence to fully support [Keefer’s] allegations” and the
“glaring inconsistencies in [Keefer’s] subjective statements.” (R. 20). The ALJ
noted, for example, that Keefer originally reported that he could not drive because
he did not have a driver’s license, (R. 191), but later testified that he in fact had
one, (R. 46), and that Keefer also reported that he stopped working because of his
medical condition, (R. 181), but told consultative examiners David Perez and

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Ginger Newton that he left one job because of a “disagreement” and two others
because the company went out of business, (R. 309). Moreover, the ALJ noted that
Mr. Perez and Mrs. Newton overheard Keefer “brag[ging] to other consumers
about his past ability to trick and cheat people.” (R. 311). Furthermore, the ALJ
cited “the inconsistencies in [Keefer’s] tax returns,” (R. 20), as an additional
reason to discredit his testimony:
[Keefer’s] income tax returns show he usually only had a few hundred
dollars in business expenses. However, his 2008 tax return showed
business expenses of $5,000 for supplies [(R. 153)], which far exceeds
the expenses of other years and would be enough to drop his actual
income below substantial gainful activity levels if he was attempting
to manipulate his tax returns and credits. [Keefer] stated his wife did
the work during some of the period[,] but she claimed on the return
that she was disabled as well. These contradictory statements and
allegations do not enhance [Keefer’s] credibility.
(R. 16).

Ultimately, contrary to Keefer’s contentions, these reasons provide

substantial support for the ALJ’s credibility determination.2 Therefore, this court
will not “substitute [its] judgment for that of the [Commissioner].” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

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Keefer does not address the reasons cited by the ALJ to discredit his pain testimony. Instead, Keefer summarizes
the medical evidence that supports his subjective allegations. See generally doc. 10, pp. 5-14. For example, Keefer
argues that “records show that [he] consistently reported … that he suffered low[er] back pain of a magnitude of 6 or
7.” Id. at 9. These contentions are unavailing because this court does “not decide the facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner].” Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). Moreover, “[e]ven if … the evidence preponderates against the [Commissioner’s] decision, [the
court] must affirm if the decision is supported by substantial evidence.” Id. (citations omitted).
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B. Physician’s Opinions
As his final contention of error, Keefer takes issues with the ALJ’s reliance
on the opinion of Dr. Mitchell, a state agency consultant,3 who opined that Keefer
could lift 10 pounds frequently, 20 pounds occasionally, and could stand for four
hours in a work-day. (R. 21-22, 304). According to Keefer, Dr. Mitchell’s opinion
is written “in some type of cryptic language known only to Dr. Mitchell.” Doc. 10,
p. 10. Presumably, Keefer is referring to Dr. Mitchell’s assessment in which Dr.
Mitchell noted Keefer’s failed back syndrome and “S/P Microdiscectomy” and
wrote “20/10 with 4 hours standing.”

(R. 304).

The ALJ had no trouble

understanding Dr. Mitchell’s shorthand expression of his opinion on Keefer’s
functional limitations, and neither does the court. Thus, Keefer’s contention on
this issues is unavailing.
Next, Keefer contends that “[i]t is especially disconcerting to the plaintiff
that the ALJ [gave] ‘great weight’ to [the] opinion of [Dr.] Mitchell [ ] at the
expense of medical evidence from treating and consulting sources and at the
expense of the testimony of the plaintiff and the [VE] at the evidentiary hearing.”
Doc. 10, p. 14. Keefer’s contentions miss the mark for several reasons. First, the
ALJ properly discredited Keefer’s testimony without relying on Dr. Mitchell’s
3

“State agency medical and psychological consultants and other program physicians, psychologists, and other
medical specialists are highly qualified physicians, psychologists, and other medical specialists who are also experts
in Social Security disability evaluation. Therefore, administrative law judges must consider findings and other
opinions of State agency medical and psychological consultants and other program physicians, psychologists, and
other medical specialists as opinion evidence.” 20 C.F.R. § 404.1527(e)(2)(I).
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opinion. See supra Part A. Therefore, a separate basis exists to affirm the ALJ’s
decision. Second, the VE’s testimony that a hypothetical individual limited to
sedentary work, with a level of pain from 7-8, is unable to work, (R. 58-60), – and
which forms part of the basis for Keefer’s contention that he is disabled – is
irrelevant to a credibility determination on a physician’s opinion. See Stephan v.
Barnhart, 06-2261, 2006 WL 3337489, at *5 (E.D. Pa. Nov. 15, 2006) (“[T]he
ALJ may disregard the VE’s testimony if he or she discredits the facts underlying
the hypothetical question posed to the VE.”). Put differently, the VE’s testimony
provides no evidence to discredit, or support, Dr. Mitchell’s opinion.
Third, and more significantly, the ALJ’s determination to give great weight
to Dr. Mitchell’s opinion is supported by substantial evidence. The record does not
contain – and Keefer does not point to – any treating physician’s opinion that
conflicts with Dr. Mitchell’s opinion. Instead, Keefer supports his contentions by
noting only his diagnoses of back pain and self-reported level of pain when seeking
treatment at Huntsville Hospital and Central North Alabama Health Services. Doc.
10, p. 11; see (R. 235-279; 327-392). However, these diagnoses are consistent
with Dr. Mitchell’s findings.

Furthermore, Dr. Mitchell’s opinion is also

consistent with consultative examiner Dr. John Lary, who opined that Keefer’s
“ability to sit, stand, walk, lift, carry, bend, squat, and reach is impaired.” (R. 298).
As the record plainly shows, Dr. Mitchell also opined, (R. 304), and the ALJ

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found, (R. 19), that Keefer had impairments in these areas. As the ALJ stated, “I
agree [Keefer] has some restrictions; however, Dr. Lary did not specifically state
what restriction [Keefer] requires. … [W]e agree [Keefer] has some limitations.”
(R. 21). In other words, contrary to Keefer’s contentions, the ALJ simply did not
credit Dr. Mitchell’s opinion “at the expense of” other evidence. Doc. 10, p. 14.
Rather, the ALJ found that the record as a whole supports Dr. Mitchell’s opinion.
In further support of his contention of error, Keefer briefly contends that
“there are 87 additional pages of medical evidence … which w[ere] not considered
by Dr. Mitchell.” Doc. 10, p. 14. Keefer bases this contention on his meeting with
Mrs. Newton and Mr. Perez of the Alabama Department of Rehabilitation Services
after Dr. Mitchell’s evaluation, and their opinion that Keefer “does not exhibit
potential for employment at this time.”4 (R. 311). The ALJ, however, gave little
weight to their opinion because neither is an accepted medical source. See 20
C.F.R. § 404.1513(d); Montgomery v. Astrue, 5:12-CV-00613-RDP, 2013 WL
3152278, at *8, n.5 (N.D. Ala. June 18, 2013). Notably, Keefer does not challenge
the ALJ’s determination that Mrs. Newton and Mr. Perez are not accepted medical
sources. Therefore, Keefer “has waived this issue because he did not elaborate on
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Keefer also bases this contention on the records of his treatment at Central North Alabama Health Services. While
the subsequent treatment records from Central North Alabama Health Services contain diagnoses of back pain and
self-reported levels of pain, (R. 327-392), they do not undermine Dr. Mitchell’s opinions because these diagnoses
are consistent with Dr. Mitchell’s opinion. Therefore, the fact that Dr. Mitchell did not have access to these
subsequently created records does not mean that the ALJ erred when he gave weight to Dr. Mitchell’s opinions. See
Lee v. Astrue, 5:11-CV-2315-LSC, 2012 WL 4479288, at *6 (N.D. Ala. Sept. 26, 2012) (“The consistency of [the
physician’s] September 2006 opinions with subsequent treatment notes concerning Plaintiff constitutes substantial
evidence supporting the ALJ’s decision to give great weight to [the physician’s] opinions.”).
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this claim or provide citation to authority about this claim.” Outlaw v. Barnhart,
197 Fed. App’x 825, 828 (11th Cir. 2006). Moreover, their opinions regarding
Keefer’s alleged inability to work has no binding effect on the ALJ because “issues
regarding whether the claimant is . . . ‘unable to work’ are reserved to the
Commissioner.” Saucier v. Comm’r, Soc. Sec. Admin., 552 Fed. App’x 926, 928
(11th Cir. 2014) (citing 20 C.F.R. § 404.1527(d)(1)). Significantly, however, by
discrediting Mrs. Newton and Mr. Perez’s opinion by finding that it is contrary to
the evidence, (R. 21), the ALJ properly weighed the medical record in reaching a
determination in this case. Therefore, the ALJ committed no reversible error.
VI. Conclusion
Based on the foregoing, this court concludes that the ALJ’s determination
that Keefer is not disabled is supported by substantial evidence and that the ALJ
applied proper legal standards in reaching this determination.

Therefore, the

Commissioner’s final decision is AFFIRMED. The court will enter a separate
order to that effect simultaneously.
DONE the 24th day of June 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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