Alexander v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 2/28/2013. (AVC)

FILED
2013 Feb-28 PM 12:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
SHANNON R. ALEXANDER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

}
}
}
}
}
}
}
}
}
}
}

Case No.: 6:11-CV-03417-RDP

MEMORANDUM OF DECISION
Plaintiff Shannon R. Alexander brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c) seeking review of the decision by the Commissioner of the Social Security Administration
denying his applications for Disability Insurance Benefits and Supplemental Security Income. Based
upon this court’s review of the record and the briefs submitted by the parties, the court finds that the
decision of the Commissioner is due to be reversed and remanded.
I.

Proceedings Below
Plaintiff filed an application for Disability Insurance Benefits (“DIB”) and Supplemental

Security Income (“SSI”) under the Social Security Act (the “Act”) on September 4, 2007. (Tr. 84,
86, 141). Plaintiff claims a disability onset date of March 1, 2000 due to right knee osteoarthritis,
peroneal nerve disorder effecting his right knee, pes anserinus bursitis, hamstring tendonitis,
depression, and anxiety. (Tr. 141, 146). Plaintiff’s applications were initially denied by the
Commissioner on November 27, 2007. (Tr. 84-90). Plaintiff then requested and received a hearing
before Administrative Law Judge (“ALJ”) Patrick R. Digby on August 14, 2009. (Tr. 46-83, 93-94).
In his September 28, 2009 decision, the ALJ determined Plaintiff was not disabled within the

meaning of the Act, and thus not eligible for DIB or SSI benefits. (Tr. 37). After the Appeals
Council denied Plaintiff’s request for review of the ALJ’s decision on July 22, 2011, that decision
became the final decision of the Commissioner. (Tr. 1). Accordingly, it is now a proper subject of
this court’s appellate review. 42 U.S.C. §§ 405(g), 1383(c).
At the time of the hearing, Plaintiff was 32 years old and testified that he had earned a high
school diploma. (Tr. 69). Plaintiff claims that he last engaged in substantial gainful activity as a
homebuilder from January to February 2000. (Tr. 157). Prior to that, Plaintiff worked in oil and gas
drilling, delivery and stocking at an office supply company, and as a cook at a restaurant. (Id.).
Plaintiff indicated in his application for benefits that he attempted to work at home remodeling in
September 2003, landscaping in September 2005, and maintenance at a resort in May 2006 after his
alleged onset date of disability; however, he claims that he has been unable to maintain any
substantial employment after his alleged disability onset date of March 1, 2000, due to his condition.
(Tr. 72, 157).
On March 4, 2000, Plaintiff fell between floor joists and injured his right knee. (Tr. 185-96).
Plaintiff was treated by Dr. Erich Wouters, who diagnosed Plaintiff with a peroneal nerve injury.
Dr. Wouters treated Plaintiff for this injury for approximately one year. Plaintiff frequently
complained of pain and was prescribed various pain relief medications, such as Celebrex,
Vicoprofen, Lortab, and Neurotin.

(Id.).

On September 26, 2000, after experiencing no

improvement, Plaintiff elected to undergo peroneal nerve decompression surgery in an effort to
alleviate his pain. (Tr. 183). During a follow-up visit on October 5, 2000, Dr. Wouters reported that
Plaintiff’s knee was healing well. (Tr. 193). Dr. Wouters released Plaintiff to return to light work
on November 2, 2000. (Tr. 194). On November 30, 2000, Dr. Wouters noted, “[Plaintiff] appears
2

to be doing better and has returned to work.” (Id.). At the hearing, however, Plaintiff testified that
he attempted to return to work after his surgery, but was unable to do so. (Tr. 55). Plaintiff further
testified that he believed his 2000 surgery actually worsened his condition, resulting in greater pain
that diminished his ability to work. (Tr. 59-60).
Plaintiff’s medical records indicate he returned to see Dr. Wouters on March 1, 2001 with
complaints of unresolved knee pain. (Tr. 194). Dr. Wouters prescribed Lortab and ordered an MRI
of Plaintiff’s knee, the results of which were unremarkable. (Tr. 194-95). Dr. Wouters encouraged
Plaintiff to consult with a pain specialist to determine if anything further could be done for his
condition; however, Plaintiff did not receive medical treatment again until 2006, when he fell on wet
stairs injuring his right knee ACL. (Tr. 57, 195). On March 17, 2006, Plaintiff underwent right knee
ACL reconstructive surgery performed by Dr. Gary Russell. (Tr. 201). Following this knee surgery,
records indicate that Plaintiff repeatedly reported to the emergency room beginning in February 2006
through April 2007 with complaints of knee pain. (Tr. 223-55).
Plaintiff began to see Dr. Charles Cross shortly after his ACL surgery for treatment of his
knee pain. (Tr. 263-88). Dr. Cross continued to treat Plaintiff through the date of the hearing and
submitted a written report to the ALJ answering questions posed by Plaintiff’s prior counsel
regarding Plaintiff’s condition and limitations. (Tr. 388). Likewise, Dr. Russell also continued to
treat Plaintiff for his knee injuries through the date of the hearing and beyond. (See Tr. 361-82).
Plaintiff was prescribed pain medications and received multiple Supartz injections for his knee pain.
(Tr. 257).

Additionally, on July 23, 2009, Dr. Russell performed another peroneal nerve

decompression surgery on Plaintiff’s knee — three weeks prior to the hearing. (Tr. 361).

3

On November 19, 2007, Dr. Marlin D. Gill, an examining physician, conducted a disability
examination of Plaintiff for the Commissioner. (Tr. 290). Dr. Gill noted that Plaintiff complained
of severe pain dating back to his original surgery. (Id.). Dr. Gill also noted that while Plaintiff
claimed Dr. Russell indicated he would eventually need a knee replacement, an MRI of Plaintiff’s
knee from March 9, 2007 made mention of ACL repair, but stated “no significant degenerative joint
disease.” (Id.). Dr. Gill remarked Plaintiff was able to take care of basic needs, feed his dog, and
do some house chores. (Id.). Furthermore, Dr. Gill noted that Plaintiff was able to walk around the
room with little difficulty without his self-prescribed cane. (Tr. 291).
II.

The ALJ’s Decision
Claimants under DIB and SSI must prove “disability” within the meaning of the Act. 42

U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(a). The law and
regulations governing claims for DIB and SSI are identical. Therefore, claims for DIB and SSI are
treated identically for the purpose of determining whether a claimant is disabled. Patterson v.
Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir. 1986). A person is entitled to disability benefits when
the person is unable 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 has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). “Substantial gainful activity” is work that involves significant
physical or mental activities done for pay or profit. 20 C.F.R. § 404.1572. A “physical or mental
impairment” is one resulting from anatomical, physiological, or psychological abnormalities, which
are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§§ 423(d)(3), 1382c(a)(3)(D).
4

The Commissioner employs a five-step, sequential evaluation process to determine whether
a claimant is entitled to benefits:
1.
2.
3.
4.
5.

Is the claimant performing substantial gainful activity?
Does the claimant have an impairment or a combination of impairments that is
severe?
Does the claimant’s severe impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Can the claimant perform past relevant work?
Based on the claimant’s age, education, and work experience, can the claimant
perform other work within the national economy?

20 C.F.R. §§ 404.1520, 416.920. The burden of proof rests squarely on a claimant through step four
in the process. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004). If a claimant meets
his burden through step four, the burden then shifts to the Commissioner at step five. Id. at 1241
n.10. However, before performing the fourth and fifth steps, the ALJ must determine the claimant’s
residual functional capacity (“RFC”). Phillips at 1237-39. A claimant’s RFC is the most the
claimant is able to do despite his impairments and is based on all relevant medical and other
evidence. Id. at 1238. It can contain both exertional and nonexertional limitations. Id. at 1242-43.
If a claimant is unable to perform his previous work, the Commissioner must show there are
a significant number of jobs in the national economy that the claimant can perform. Id. at 1239.
This determination is based on the claimant’s RFC, age, education, and work experience. Id. The
ALJ can either use the Medical Vocational Guidelines (“the Grids”) or hear testimony from a
vocational expert (“VE”) in making this determination. Id. at 1239-40.
The ALJ found that Plaintiff had the severe impairments of right knee peroneal nerve
entrapment, post surgery and bursitis; however, the ALJ determined that Plaintiff’s impairments did

5

not meet or medically equal the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 31-32).
The ALJ determined that Plaintiff had the following RFC:
occasionally can lift and carry 20 pounds and frequently can lift and
carry 10 pounds. He must have the option to sit or stand at will. He
can walk approximately 20 yards, stand for 30 minutes, and sit for
one hour, alternating all three across an eight-hour workday. He
occasionally can operate foot controls. He occasionally can climb
ramps and stairs; balance; stoop; kneel; and crouch. He cannot work
on ladders, ropes, or scaffolds. He should avoid concentrated
exposure to vibration and extreme cold. He cannot work with
exposure to unprotected heights or dangerous machinery.
(Tr. 32-33). In making this determination, the ALJ found Plaintiff’s allegations of disabling knee
pain and dysfunction were not credible to the extent they were inconsistent with the above RFC. (Tr.
33). The ALJ noted that records from Plaintiff’s treating physicians showed that his condition had
improved in March 2001. (Id.). The ALJ also noted that Plaintiff failed to seek medical treatment
from 2001 until 2006. (Id.).
The ALJ did not accept the opinion of Plaintiff’s treating physician, Dr. Cross, who
submitted documentation regarding Plaintiff’s condition. (Tr. 35). The ALJ indicated that he gave
substantial weight to Dr. Gill, the disability examiner who observed Plaintiff’s condition for the
Commissioner. (Id.). The ALJ noted that Dr. Gill’s report indicated that Plaintiff engages in daily
activities such as driving short distances, going to the store, and caring for his personal needs. (Id.).
The ALJ further noted that Plaintiff had income in 2003 and 2005 and “the fact that [Plaintiff] was
working and not reporting income serves to lessen his credibility.” (Id.). At this step, the ALJ
concluded that Plaintiff was unable to return to his past relevant work. (Id.).

6

In the final step of the analysis, step five, the ALJ determined that considering Plaintiff’s age,
education, work experience, RFC, and testimony from a vocation expert (“VE”), there were jobs that
exist in significant numbers in the national economy that Plaintiff could perform. (Tr. 36). Thus,
the ALJ ruled Plaintiff was not disabled as defined by the Act and, therefore, not entitled to DIB or
SSI benefits. (Tr. 37).
III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff presents two arguments that his case should be reversed: (1) the ALJ failed to apply

the proper legal standards and to state adequate reasons for rejecting the testimony of his treating
physician, Dr. Cross (Pl.’s Mem. at 11); and (2) the ALJ failed to properly apply the Eleventh
Circuit’s pain standard. (Pl.’s Mem. at 18). The court will address each of these arguments in turn.
IV.

Standard of Review
Judicial review of disability claims under the Act is limited to whether the Commissioner’s

decision is supported by substantial evidence and whether the correct legal standards were applied.
42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). “Substantial
evidence is less than a preponderance, but rather such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The Commissioner’s factual findings are conclusive when supported by substantial evidence.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed, “even if the evidence preponderates against the
Commissioner’s findings.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004);
see also Martin, 894 F.2d at 1529. Legal standards are reviewed de novo. Moore, 405 F.3d at 1211.
7

V.

Discussion
A.

The ALJ’s Decision to Reject the Medical Opinion of Plaintiff’s Treating
Physician is Not Supported by Substantial Evidence
Plaintiff first argues that the ALJ failed to show “good cause” for rejecting the medical

opinion of his treating physician, Dr. Cross. (Pl.’s Mem. at 11). After reviewing the record, this
court agrees.
The relevant Social Security Regulation states, in part:
Treatment relationship. Generally, we give more weight to opinions
from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal
picture of your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalization
20 C.F.R. § 404.1527(c)(2) (emphasis added). The regulation further states, “Generally, the longer
a treating source has treated [a claimant] and the more times [the claimant has] been seen by a
treating source, the more weight we will give to the source’s medical opinion.” § 404.1527(c)(2)(ii).
Medical opinions include “statements from physicians . . . that reflect judgments about the nature
and severity of [the claimant’s] impairment(s), including [] symptoms, diagnosis and prognosis, what
[the claimant] can still do despite impairment(s), and [] physical or mental restrictions.” 20 C.F.R.
§ 404.1527. Such medical opinions may take the form of a physician’s treatment notes. Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
In the Eleventh Circuit, of course:
Absent “good cause,” an ALJ is to give the medical opinions of
treating physicians substantial or considerable weight. Good cause
exists when the: (1) treating physician’s opinion was not bolstered by
8

the evidence; (2) evidence supported a contrary finding; or (3)
treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.
Id. at 1179 (citations omitted). “The ALJ must clearly articulate the reasons for giving less weight
to the opinion of a treating physician, and the failure to do so is reversible error.” Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997).
The record indicates that Dr. Cross became one of Plaintiff’s treating physicians beginning
in April 2006 and continuing through the date of the hearing. (Tr. 282, 390). Dr. Cross submitted
medical opinion evidence prior to the hearing and noted the following about Plaintiff: suffers from
chronic severe pain syndrome and COPD/asthma; can’t walk or stand without pain; suffers severe,
chronic pain; would have to miss more than two days of work each month as a result of his
condition; was totally disabled at that time; and he (Dr. Cross) recommended Plaintiff for disability
benefits. (Tr. 388-89). Attached to this document were Dr. Cross’s treatment notes covering over
twenty of Plaintiff’s appointments from November 7, 2007 through July 16, 2009. (Tr. 390-413).
In addition, the record contains notes from (approximately) twenty of Dr. Cross’s prior appointments
with Plaintiff. (Tr. 264-82).
Despite this submission, the ALJ’s discussion of Dr. Cross’s opinion was limited to the
following paragraph:
The undersigned does not accept the comment or opinion of Dr.
Cross who recommended that [Plaintiff] receive Social Security
disability benefits. The opinion that [Plaintiff] should receive
benefits is an assessment of [Plaintiff]’s ability to perform work,
which is an opinion of an issue reserved (sic) the Commissioner. As
a result, it is not entitled to any special significance. Further, (sic)
opinion of Dr. Cross that [Plaintiff] would miss two or more days a
month due to pain is inconsistent with the medical evidence of record
and [Plaintiff]’s activities of daily living. The opinion is not
9

consistent or supported by his treatment notes, nor is it consistent
with the remainder of the medical evidence of record. Such an
opinion is based upon no objective basis nor was any rationale
provided. [Plaintiff] is not working and such an opinion is pure
speculation on the possibility of a future limitation.
(Tr. 35) (citations omitted).
The ALJ is correct that certain of Dr. Cross’s comments – those indicating that Plaintiff is
disabled and recommending him for disability benefits – are entitled to no weight. Nevertheless,
other opinions expressed by Dr. Cross were due to be considered. Moreover, while Dr. Cross
certainly could have been more articulate, his opinions regarding Plaintiff’s chronic severe pain
syndrome – i.e., that he experiences severe, chronic pain, and cannot walk or stand without pain (see
Tr. 264-88) – were entitled to substantial weight absent a showing of good cause. To that end, the
court notes that despite owing a duty to give substantial weight to these opinions, the ALJ failed to
discuss or even mention Dr. Cross’s relevant opinions regarding these matters.
Furthermore, the ALJ noted that he gave “substantial weight” to Dr. Gill, the disability
examiner, and cited to specific references from his report. (Tr. 35). Again, the court notes that the
regulations specifically state that more weight is given to “opinions from [] treating sources, since
these sources. . . may bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual examinations, such as
consultative examinations.” 20 C.F.R. § 404.1527(c)(2) (emphases added). Unlike the disability
examiner, who saw Plaintiff on one occasion, Plaintiff has maintained a long term treating
relationship with Dr. Cross, dating back to April 2006. (Tr. 282). As Dr. Cross’s medical opinion
was only discussed in the one paragraph noted above and the ALJ’s decision does not contain a

10

sufficient reason for this, the court must conclude that the ALJ erroneously gave greater weight to
Dr. Gill’s report.
Finally, regarding the sole portion of Dr. Cross’s opinion that was discussed by the ALJ –
that Plaintiff would miss two or more days a month of work due to his condition – the ALJ drew
broad (and unsupported) conclusions that Dr. Cross’s opinion is not buttressed by medical records
or his treating notes. As the ALJ failed to articulate any reasoning for this conclusion, the court is
unable to properly understand and review this finding.
In sum, the court finds the ALJ failed to show “good cause” for rejecting the medical opinion
of Dr. Cross. The record indicates that the ALJ gave weight to the examiner’s report over Plaintiff’s
treating physician without providing adequate reasoning for this decision. As such, the ALJ’s
decision is not supported by substantial evidence and is due to be reversed and remanded.
B.

The ALJ’s Decision Discrediting Plaintiff’s Subjective Pain Testimony is Not
Supported by Substantial Evidence

Plaintiff next contends that the ALJ misapplied the pain standard in rejecting his complaints
of disabling pain. After a careful review of the record, the court again agrees. In this jurisdiction,
to establish disability based upon pain, it is necessary to show:
evidence of an underlying medical condition and (1) objective
medical evidence that confirms the severity of the alleged pain arising
from that condition or (2) that the objectively determined medical
condition is of such a severity that it can be reasonably expected to
give rise to the alleged pain.
Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). “If a claimant testifies as to subjective
complaints of disabling pain,” and the ALJ decides not to credit such testimony, the ALJ “must
clearly articulate explicit and adequate reasons for discrediting the claimant’s allegations.” Dyer v.

11

Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Failure to articulate reasons for discrediting
subjective pain testimony requires, as a matter of law, that the testimony be accepted as true. Holt,
921 F.2d at 1223.
In this case, the ALJ determined that Plaintiff failed to meet part two of the pain standard.
(Tr. 33). The ALJ found that Plaintiff’s subjective testimony of disabling pain was not credible to
the extent it was inconsistent with Plaintiff’s RFC assessment. (Tr. 33). The court has located three
references in the ALJ’s opinion wherein he made findings or conclusions that have bearing on
Plaintiff’s credibility. The court is, however, unable to say these reasons constitute explicit and
adequate reasoning for discrediting Plaintiff’s testimony.
First, the ALJ noted that Plaintiff’s “allegations are inconsistent with [his] daily living
activities.” (Tr. 34). The ALJ specifically noted that Dr. Gill’s report shows Plaintiff “last worked
in April 2007 as a landscape laborer and [he] drives for short distances, goes to the store, and cares
for his personal needs.” (Tr. 35). However, the court notes it is well established in this Circuit that
ordinary, daily activities do not necessarily disqualify a claimant from receiving Social Security
benefits. Lewis, 125 F.3d at 1441. Furthermore, regarding Plaintiff’s April 2007 work, Dr. Gill’s
report also noted that, “[Plaintiff] says he tried to do [the landscape] job for about a month but could
not tolerate it.” (Tr. 290). This second sentence was also not cited by the ALJ; however, short-term
attempts at work also do not disqualify a claimant.
Second, the ALJ noted that “the long gap of no medical treatment by [Plaintiff] from
September 2000 to February 2006 certainly is an inference that any pain [he] suffered is not
disabling.” (Tr. 35) (emphasis added). That is certainly the case. However, the ALJ failed to

12

account for the numerous medical records submitted by Plaintiff from 2006 through the date of the
hearing, including the nearly forty individual records of Dr. Cross, previously discussed.
The court finds the ALJ failed to articulate explicit and adequate reasoning for rejecting
Plaintiff’s testimony of disabling pain. For this reason, the court cannot conclude that the ALJ’s
decision is based upon substantial evidence and accordingly it is due to be reversed and remanded.1
VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is not

supported by substantial evidence. Specifically, the court finds that the ALJ failed to articulate
“good cause” for discrediting Plaintiff’s treating physician and that the ALJ failed to state explicit
and adequate reasoning for discrediting Plaintiff’s subjective complaints of pain. Therefore, the
Commissioner’s final decision is due to be reversed and remanded. A separate order in accordance
with this memorandum of decision will be entered.
DONE and ORDERED this

28th

day of February, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

1

In addition, the ALJ’s rationale for concluding that Plaintiff’s work history and non-reporting of income had
substantial bearing upon his credibility is unclear. These statements of the ALJ would seem to more logically fit into
an analysis of step one and two of the disability process. The court notes the ALJ, of course, could have determined
Plaintiff engaged in substantial gainful activity after March 1, 2000, or that Plaintiff’s onset date was considerably later
than claimed. See Moncrief v. Astrue, 300 F. App’x 879, 880-81 (11th Cir. 2008) (“Although a claimant’s alleged onset
date is the starting point for determining the disability onset date, the ALJ need not adopt that date if it is unsupported
by the medical evidence.”).

13