Dix v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 01/24/13. (CVA)

FILED
2013 Jan-24 AM 09:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Civil Action Number
5:12-cv-02436-AKK

MEMORANDUM OPINION
Plaintiff Roy Lee Dix (“Dix”) 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 Dix.
I. Procedural History
Dix filed an application for Disability Insurance Benefits on March 6, 2009,
alleging a disability onset date of June 1, 2008 due to blindness in his right eye,

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back problems, shoulder problems, and “nerves.” (R. 94, 133, 181). After the
SSA denied Dix’s application, he requested a hearing before an ALJ. (R. 60, 69,
77). The ALJ subsequently denied Dix’s claims, (R. 9-29), which became the
final decision of the Commissioner when the Appeals Council refused to grant
review, (R. 1-6). Dix 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
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,
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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
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
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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
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

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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
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

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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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 Dix
has not engaged in substantial gainful activity since June 1, 2008, and therefore
met Step One. (R. 14). The ALJ also acknowledged that Dix’s neuropathy, status
post right shoulder surgery, early lumbar spondylosis with ddd predominating at
L3-4, early osteoarthritis of L5-S1 facets, history of blindness of the right eye
since age 6 or 7, anxiety disorder, personality disorder, depressive disorder,
reading disorder, disorder of written expression, and borderline intellectual
functioning were severe impairments that met Step Two. Id. The ALJ proceeded
to the next step and found that Dix failed to meet or equal one of the listed
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impairments 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 Dix
has the residual functional capacity to occasionally lift and/or carry
including upward pulling of 20 pounds and frequently up to 10 pounds;
sit for six hours out of an eight-hour workday with normal breaks and
he should sit no more than 30 minutes at a time without the ability to
stand and shift position; stand and walk for four hours out of an eighthour work day but no longer than 15 minutes at a time without the
ability to sit; he is limited to occasional postural maneuvers such as
balancing, stooping, and crouching; he can occasionally climb ramps
and stairs but should never work on ladders, ropes or scaffolds or at
unprotected heights; he has no limitation of the upper extremities for
fine fingering and gross handling; he can understand and remember
simple instructions but not detailed or complex; he can concentrate for
two-hour periods across an eight-hour workday with normal breaks; he
should have a low stress job defined as SVP-2 or less involving only
simple work related decisions; he should work for an hourly wage as
opposed to piece work; and any changes in the workplace should be
infrequent and well explained.
Id. at 14-15. With respect to the pain standard, the ALJ found that Dix’s
“medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, [Dix’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 17. Based on this
RFC assessment, the ALJ found that Dix is unable to perform any past relevant
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work. Id. at 24. Finally, at Step Five, the ALJ determined that “there are jobs that
exist in significant numbers in the national economy that [Dix] can perform[,]”
and, thus, that Dix is not disabled. Id.; see also McDaniel, 800 F.2d at 1030.
V. Analysis
Dix contends that the ALJ erred by (1) failing to properly consider Dix’s
potential absenteeism, and (2) failing to consider the negative impact Dix’s
emotional/psychological problems would have on his ability to perform work.
Doc. 9. For the reasons stated more fully below, the court finds that the ALJ’s
decision is supported by substantial evidence.
A.

Consideration of Absenteeism
Dix’s first contention of error is based on the ALJ’s alleged failure to

include absenteeism in a hypothetical posed to the vocational expert or to mention
absenteeism in the RFC assessment. Doc. 9 at 5-12. The court addresses each
contention in turn.
1.

Hypotheticals Posed to the Vocational Expert

When a vocational expert testifies at a claimant’s hearing before an ALJ, he
or she is ordinarily asked questions regarding whether the claimant can perform
past relevant work or other jobs in the national economy. In these circumstances,
the vocational expert’s responses are based on hypothetical questions about the
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claimant’s established impairments and abilities. For an ALJ to use a vocational
expert’s testimony as substantial evidence, “the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Jones v. Apfel, 190
F.3d 1224, 1229 (11th Cir. 1999).
At the hearing, the ALJ asked the vocational expert whether a hypothetical
individual with Dix’s limitations would be able to perform any work in the
national economy. (R.51-52). The ALJ then inquired whether the vocational
expert’s opinion would change “if . . . the hypothetical individual would miss one
day a month[.]” Id. at 53. Dix’s counsel subsequently asked the vocational expert
whether it would be acceptable for an individual to “consistently miss one to two
days per month” in “unskilled, entry-level work at the light and sedentary level.”
The ALJ responded that “[o]ne day a month is up against the threshold of being
excessive but i[s] still generally acceptable for unskilled employment” while
“missing more than one day a month consistently . . . [is] excessive to maintain
any type of work.” Id. at 53-54. Despite the follow up question by his counsel,
Dix asserts that the ALJ’s hypothetical was insufficient because it did not
specifically address excessive absenteeism, i.e. more than one day per month.
Doc. 9 at 9. The court disagrees.
The record contains only one opinion regarding Dix’s potential
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absenteeism, that of state agency psychiatrist Dr. Robert Estock.2 (R. 301-318).
Dr. Estock opined that Dix “would be expected to miss 1-2 days of work per
month due to anxiety, and personality disorder.” Id. at 317. The ALJ gave weight
to other parts of Dr. Estock’s report, but discredited this statement regarding
absenteeism because Dr. Estock “does not explain what symptoms he bases this on
and the evidence of record is inconsistent with evidence to support this opinion.”
Id. at 20. Under 20 C.F.R. § 404.1527, the ALJ properly discredited this portion
of the report because Dr. Estock failed to adequately explain his finding and
inconsistency with the medical evidence.3 Indeed, the only other two medical
reports regarding Dix’s mental disorders are those of Dr. Storjohann and Dr. Mary
Arnold, Psy. D., who both failed to discuss potential absenteeism or indicate that
Dix’s symptoms were severe enough to warrant missing more than one day of

2

Dix contends that Dr. Robert Storjohann, Ph.D.’s opinion is also relevant to the
absenteeism issue. However, Dr. Storjohann’s report indicates only that he estimates Dix will be
unable to complete a regular workday 20 days of each month. (R. 252). As conceded by Dix,
“Dr. Storjohann does not seem to be stating that the plaintiff would miss entirely 20 days per
month[] but that the plaintiff would be unable to complete a normal work day without
interruptions from psychologically based symptoms for at least 20 days per month.” Doc. 9 at 6.
Therefore, Dr. Storjohann’s opinion is not indicative of Dix’s potential absenteeism.
3

A state agency medical or psychological consultant’s report is considered opinion
evidence and the ALJ “evaluates the findings using the relevant factors in paragraphs (a) through
(d) of this section, such as . . . the supporting evidence in the case record [and] supporting
explanations the medical or psychological consultant provides[.]” 20 C.F.R. § 404.1527(e)(2)(ii).
Discrediting such opinion evidence is proper so long as the ALJ “explain[s] in the decision the
weight given[.]” Id.
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work per month. See (R. 245-252, 291-94). Accordingly, the court finds that the
ALJ’s decision regarding assignment of weight to Dr. Estock’s opinion is
supported by substantial evidence and that there was no need to pose a
hypothetical to the vocational expert containing an additional impairment of
excessive absenteeism.
2.

RFC Assessments

Dix contends also that the ALJ’s disability determination is not supported
by substantial evidence because the ALJ “does not mention absenteeism in his
residual functional capacity assessment[.]” Doc. 9 at 9. While an established
limitation should be included in an RFC assessment, Dix failed to establish
excessive absenteeism as an existing impairment. As discussed above, the
examining and non-examining physicians who performed psychological
evaluations of Dix either failed to indicate that Dix would miss more than one day
of work per month due to his disorders or did not support their opinion regarding
absenteeism. Moreover, the remaining medical evidence pertaining to Dix’s
physical impairments likewise fails to indicate that Dix will miss more than one
day of work per month. See generally (R. 237-370). Accordingly, the ALJ did not
err in failing to include excessive absenteeism in his RFC assessment.

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B.

Consideration of Emotional Complications
Dix contends next that the ALJ erred by failing to find Dix disabled based

on the vocational expert’s testimony regarding Dix’s emotional complications.
Doc. 9 at 14. More specifically, Dix asserts that, according to the vocational
expert, “if you cannot get along with co-workers and supervisors” or have a more
than moderate concentration impairment you are essentially disabled, and that Dr.
Storjohann’s report supports a finding of disability based on this standard. Id. at
14-15, citing (R. 56-57). Dr. Storjohann found that Dix “appears to have marked
deficits in his ability to respond appropriately to supervision, coworkers, and work
pressures in a work setting” and that Dix “displayed low average skills in his
working memory and attention.” (R. 248-249). This does not, however, indicate a
complete inability to get along with co-workers and supervisors or a more than
marked impairment in concentration, and the ALJ specifically included these
impairments in his RFC assessment.4 Moreover, the other physician reports, which
the ALJ also relied upon, regarding these impairments indicate that Dix has only a
moderate limitation in his ability to maintain social functioning and concentration.

4

Specifically the ALJ found that Dix “can understand and remember simple instructions
but not detailed or complex; he can concentrate for two-hour periods across an eight-hour
workday with normal breaks; he should have a low stress job defined as SVP-2 or less involving
only simple work related decisions; he should work for an hourly wage as opposed to piece work;
and any changes in the workplace should be infrequent and well explained.” (R. 16)
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(R. 311). Even assuming the vocational expert is correct that marked or extreme
limitations in abilities to socialize or concentrate would warrant a finding of
disability, Dix failed to establish his limitations to that degree. Accordingly, the
ALJ’s RFC assessment is supported by substantial evidence.5
VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Dix is not disabled is supported by substantial evidence. Therefore, the
Commissioner’s final decision is AFFIRMED.
DONE the 24th day of January, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

5

Additionally, irrespective of the vocational expert’s testimony regarding what
impairments would warrant a finding of disability, the final responsibility for determining a
claimant’s RFC rests only with the ALJ. See 20 C.F.R. §§ 404.1527(d)(2) and 404.1546.
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