Beverly v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 02/27/13. (CVA)

FILED
2013 Feb-27 PM 02:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Civil Action Number
5:12-cv-02890-AKK

MEMORANDUM OPINION
Plaintiff Judy A. Beverly (“Beverly”) 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 Beverly.
I. Procedural History
Beverly protectively filed an application for a period of disability and

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Disability Insurance Benefits on September 7, 2006, alleging a disability onset
date of August 10, 2006 due to major back problems and depression. (R. 169,
185, 190). After a remand from the Appeals Council, Beverly had a hearing
before an ALJ. (R. 46-78). The ALJ subsequently denied Beverly’s claim, (R.
17-35), which became the final decision of the Commissioner when the Appeals
Council refused to grant review, (R. 1-6). Beverly 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. 7.
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
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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
psychological abnormalities which are demonstrated by medically acceptable
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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
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]

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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
a claimant testifies to disabling pain and satisfies the three part pain standard, the

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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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
The ALJ properly applied the five step analysis and first determined that
Beverly has not engaged in substantial gainful activity since August 10, 2006, and
therefore met Step One. (R. 23). The ALJ also acknowledged that Beverly’s
degenerative disc disease, spondylosis, minimal to mild protruding discs at the C34, C4-5, C5-6, and C6-7 level, and chronic neck pain were severe impairments that
met Step Two. Id. The ALJ proceeded to the next step and found that Beverly
failed to meet or equal one of the listed impairments in 20 C.F.R. Pt. 404, Subpt.
P, Appendix 1 and thus did not satisfy Step Three. Id. at 27. Although he
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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 Beverly
has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b). As opined by Dr. Levine, a medical expert, the
claimant can occasionally lift 20 pounds and frequently lift 10 pounds
but not above shoulder level, sit for 6 out of 8 hours with customary
breaks, and stand/or walk for 6 out of 8 hours with customary breaks.
The claimant can occasionally climb stairs, kneel, crouch, or stoop, and
she should avoid climbing ladders, crawling, being around unprotected
heights, heavy vibratory machinery, and extreme cold exposure. The
claimant has unlimited use of the upper extremities for fine and gross
manipulation except for above shoulder level, and she should not be
made to look upward (above the shoulder level).
(R. 28). With respect to the pain standard, the ALJ found that Beverly’s
“medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, [Beverly’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 29. As a result, the
ALJ found that Beverly is capable of performing past relevant work as an
electrical assembler and sewing machine operator. Id. at 30. Accordingly, the
ALJ determined that Beverly is not disabled. Id.; see also McDaniel, 800 F.2d at
1030.
V. Analysis
Beverly contends that the ALJ’s opinion is due to be reversed and remanded
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because he allowed the medical expert to testify at the hearing by telephone and
because certain passages of the expert’s testimony are incomplete. Doc. 7. For
the reasons stated more fully below, the court finds that the ALJ’s decision is
supported by substantial evidence.
A.

Expert Testimony by Telephonic Appearance
Beverly contends that “[t]he ALJ relied heavily if not exclusively on

testimony of the medical expert[, Dr. Allan Levine,] at the most recent evidentiary
hearing.” Doc. 7 at 4. Although Beverly does not contend that the ALJ
erroneously weighed the medical evidence or relied on this testimony, she asserts
that the ALJ’s decision should nevertheless be overturned because (1) Dr. Levine
should have testified in person or by video teleconference instead of by telephone,
and (2) the Commissioner must supply a complete transcript of Dr. Levine’s
testimony since some of it was transcribed as “INAUDIBLE” at the hearing. Id. at 4,
9. These assertions are unavailing.
With respect to the manner in which Dr. Levine testified at the hearing,
Beverly correctly states that the regulations make reference only to testifying in
person or by video teleconferencing. See 20 C.F.R. §§ 404.936(c), 404.950(a).
However, the Hearings, Appeals, and Litigation Law Manual specifically provides
that an ALJ may allow a witness to testify in person, by video teleconferencing, or
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by telephone. HALLEX I-2-5-30, 1994 WL 637367. The manual also provides
that, just as with any other aspect of the hearing, the claimant may object to the
form of appearance at or before the hearing. Id. In this instance, Beverly failed to
object at or before the hearing to Dr. Levine testifying by telephone. Accordingly,
the ALJ did not err in allowing this form of appearance and Beverly’s objection is
untimely.
Additionally, the ALJ did not rely exclusively on the hearing transcript in
reaching his determination that Beverly is not disabled. Since portions of Dr.
Levine’s hearing testimony were inaudible, the ALJ asked Dr. Levine to review
additional evidence and complete an interrogatory. (R. 27). Dr. Levine responded
to this request by clarifying the inaudible portions of his testimony and providing
additional information based on the entire medical record. Id. at 590-92. The
ALJ’s opinion indicates that he relied primarily upon Dr. Levine’s interrogatory
response report instead of the incomplete testimony transcript. Id. at 27.
Moreover, the ALJ’s opinion is largely based on medical evidence provided by
Beverly’s treating physicians, which Beverly does not dispute fails to support her
claim of disability. Id. at 23-30; see also doc. 7. Accordingly, the ALJ did not
erroneously rely on the testimony transcript of Dr. Levine and the ALJ’s opinion is
based on substantial evidence.
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VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Beverly is not disabled is supported by substantial evidence and proper legal
standards were used in making this determination. Therefore, the Commissioner’s
final decision is AFFIRMED.
DONE the 27th day of March, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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