Hayes v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 05/23/13. (CVA)

FILED
2013 May-23 AM 10:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Civil Action Number
5:12-cv-03940-AKK

MEMORANDUM OPINION
Betty Lynn Hayes (“Hayes”) 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 Hayes.
I. Procedural History
Hayes protectively filed applications for Disability Insurance Benefits and
Supplemental Security Income benefits on March 26, 2010, alleging a disability

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onset date of April 3, 2008 due to a ripped lower disc and pinched nerves. (R. 24,
163, 170, 202). After the SSA denied Hayes’ claim, she requested a hearing
before an ALJ. (R. 107, 121). The ALJ subsequently denied Hayes’s claim, (R.
21-37), which became the final decision of the Commissioner when the Appeals
Council refused to grant review, (R. 1-6). Hayes 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. 10.
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)-(g). 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
The ALJ properly applied the five step analysis and first determined that
Hayes has not engaged in substantial gainful activity since April 3, 2008, and
therefore met Step One. (R. 26). The ALJ also acknowledged that Hayes’
degenerative disease of the lumbar spine was a severe impairment that met Step
Two. Id. The ALJ proceeded to the next step and found that Hayes 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. (R. 28). Although she answered Step Three
in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ
proceeded to Step Four where she determined that Hayes
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has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b). She can lift from floor to knuckle
ten pounds occasionally. She can lift from knuckle to shoulder twenty
pounds occasionally and ten pounds frequently. She can perform push
pull movements of ten pounds frequently and twenty pounds
occasionally. The claimant can frequently stoop, frequently sit/stand,
and never climb ladders, ropes or scaffolds. The claimant should avoid
all exposure to industrial hazards including working at unprotected
heights, working in close proximity to moving dangerous machinery and
operating motor vehicle equipment. (Frequently, for purposes of the
RFC, is defined as up to 2/3 of an eight hour workday.)
(R. 28-29). With respect to the pain standard, the ALJ found that “the claimant’s
medically determinable impairment could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.” (R.
29). As a result, the ALJ found that Hayes is unable to perform any past relevant
work. (R. 31). Lastly, at step five, the ALJ determined that, “[c]onsidering
[Hayes’s] age, education, work experience, and [RFC], there are jobs that exist in
significant number in the national economy that the claimant can perform.” Id.
Accordingly, the ALJ found that Hayes is not disabled. (R. 32); see also
McDaniel, 800 F.2d at 1030.
V. Analysis
Hayes alleges that the ALJ’s RFC finding is not supported by substantial
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evidence because the ALJ “adopt[ed] a vague opinion which was wholly
inadequate for vocational interpretation,” rather than “develop[ing] the record to
obtain an MSO [(medical source opinion)] by ME [(medical examiner)] or another
consultative examination (ME) consistent with 20 CFR 404.1519a.” Doc. 10 at 89. However, as Hayes concedes, doc. 10 at 7, the ALJ is not required to obtain a
consultative examination. Instead, the regulation states that the ALJ will only
seek a consultative examination “to try to resolve an inconsistency in the evidence,
or when the evidence as a whole is insufficient to allow [the ALJ] to make a
determination” after “consider[ing] not only existing medical reports, but also the
disability interview form containing [the claimant’s] allegations as well as other
pertinent evidence in [her] file.” 20 C.F.R. § 404.1519a. Hayes failed to point to
any purported inconsistency in or insufficiency of the medical evidence; rather,
Hayes appears to disagree with the ALJ’s reliance on a functional capacity
evaluation (“FCE”) performed by Dr. Keith Anderson. Doc. 10 at 7-9.
Unfortunately for Hayes, her disagreement alone, with Dr. Anderson’s FCE, is
insufficient to require the ALJ to obtain an additional medical opinion from a
consultative examiner.
Moreover, the ALJ properly relied upon Dr. Anderson’s report. Hayes’
treating physician, Dr. Scott Powers, referred Hayes to Dr. Anderson for the FCE
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and an impairment rating. (R. 520). Dr. Anderson performed a physical
evaluation, reviewed Hayes’ medical record, and ultimately reported to Dr. Powers
that
this patient has a 0% impairment of the whole person regarding her work
related injury. . . . Review of the patient’s physical examination,
previous medical records and ARCON testing reveals the patient gave
poor effort. She had inconsistencies on her FCE, as well as in her
physical examination. Therefore, work restrictions are probably an
underestimation of what the patient can actually perform.
WORK RESTRICTIONS:
1.
Lifting: Low lift (floor to knuckle) 10 pounds occasional.
Mid lift (knuckle to shoulder) 20 pounds occasional, 10
pounds frequent. High lift (shoulder and above) 10 pounds
occasional.
2.
Carrying: The patient did not participate.
3.
Pushing: 20 pounds occasional, 10 pounds frequent.
4.
Pulling: 20 pounds occasional, 10 pounds frequent.
5.
Walking: The patient declined to perform.
6.
Climbing Vertical Ladders: The patient declined to
perform.
7.
Balancing: Occasional.
8.
Stooping: The patient declined to perform.
9.
Kneeling: The patient declined to perform.
10. Crouching: The patient declined to perform.
11. Sitting: Frequent.
12. Standing: Frequent.
(R. 520-521) (emphasis added). After reviewing Dr. Anderson’s findings and
following up with Hayes, Dr. Powers adopted the FCE report and expressly opined
that he agreed with the 0% impairment rating. (R. 437). Following the Social

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Security regulation regarding the assignment of weight to medical opinions, the
ALJ afforded controlling weight to the opinion of Dr. Powers, Hayes’ treating
physician, which expressly adopted the findings of Dr. Anderson. (R.30-31); See
also 20 C.F.R. § 404.1527(c)(2) (A treating physician’s opinion is granted
controlling weight if it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] record[.]”). As the ALJ discussed, Dr. Powers’ opinions were
due controlling weight as a treating physician because of his extensive treatment
relationship with Hayes, use of acceptable techniques, and consistency with the
remaining medical evidence. See (R. 31). Moreover, Dr. Anderson’s report is
independently consistent with the objective medical evidence provided by Hayes.
Compare e.g., (R. 520-547) (Evidence from Dr. Anderson) with (R. 311-19)
(Evidence from Dr. Cheng W. Tao) and (R. 461-63) (Evidence from Dr. Cyrus
Ghavam). Therefore, the ALJ did not err in relying upon the FCE provided by Dr.
Anderson and the ALJ’s RFC finding is supported by substantial evidence.2
2

Hayes also briefly suggests that the ALJ erred in failing to find her disabled under
Medical-Vocational Rule 201.14. Under this rule, an ALJ must find a claimant of advanced age
disabled if their educational background is “high school graduate or more - does not provide for
direct entry into skilled work,” and their past work experience is “skilled or semi-skilled - skills
not transferable.” 20 C.F.R. § 404, subpart P, appx.2, Table no.1, rule 201.14. However, Hayes
was not of “advanced age” at the time of the determination. The appendix provides that, for a
claimant closely approaching advanced age like Hayes, a finding of disabled is warranted only
where the previous factors are present “and an individual’s vocational scope is further
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VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Hayes 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 23rd day of May, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

significantly limited by illiteracy or inability to communicate in English[.]” Id. at § 202.00(d)
(emphasis added). Hayes failed to demonstrate the requisite factors to establish a disability under
Rule 201.14. Accordingly, the ALJ did not err in finding that Hayes is not disabled.

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