Kimbrough v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/13/2013. (PSM)

FILED
2013 Nov-13 AM 10:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
JOHNNY KIMBROUGH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION NO.
6:11-3997-AKK

MEMORANDUM OPINION
Plaintiff Johnny Kimbrough (“Kimbrough”) 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, AFFIRMS the decision denying benefits.
I. Procedural History
Kimbrough filed an application for Title II Disability Insurance Benefits
(“DIB”) and Title XVI Supplemental Security Income (“SSI”) on May 29, 2008,
alleging a disability onset date of May 12, 2008, due to problems with his back
and diabetes. (R. 26, 110). After the SSA denied Kimbrough’s claim, he requested

a hearing before an ALJ. (R. 70). The ALJ subsequently denied Kimbrough’s
claim. (R. 23-34). The Appeals Council granted review, (R. 81-83), and issued
Kimbrough an unfavorable decision. (R. 1-8). The Appeals Council adopted all of
the ALJ’s findings and conclusions, except it disagreed with the ALJ’s finding that
Kimbrough had transferable work skills. (R. 5). However, the Appeals Council
found the issue of transferability was not material, and that Kimbrough was able to
perform other jobs in the national economy. (R. 6). Therefore, it found Kimbrough
was not disabled.1 (R. 7). Kimbrough then filed this action for judicial review
pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). 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)
mandates that the Commissioner’s “factual findings are conclusive if supported by
‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
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The only finding by the ALJ not adopted by the Appeals Council is irrelevant to
any issue raised on appeal. Therefore, the court’s consideration of the merits of
Kimbrough’s appeal will address the ALJ’s findings directly, rather than the Appeals
Council’s adoption of those findings.
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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 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

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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).
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).
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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.2
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
2

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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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 analysis, the ALJ initially determined that
Kimbrough met the insured status requirements of the Act through the date of his
decision. (R. 28). Moving to the first step, the ALJ found that Kimbrough had not
engaged in substantial gainful activity since May 12, 2008, and, therefore, met
Step One. Id. Next, the ALJ found that Kimbrough satisfied Step Two because he

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suffered from the severe impairments of “failed back syndrome, nonradicular and
obesity.” Id. The ALJ then proceeded to the next step and found that Kimbrough
failed to satisfy Step Three because he “does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments.” (R. 29). 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 Kimbrough “has the residual functional
capacity [“RFC”] to perform the exertional demands of light work as defined in 20
C.F.R. § 404.1567(b) and 416.967(b) lifting and carrying up to 20 pounds
occasionally and 10 pounds frequently. In addition he can occasionally squat,
stoop, and bend.” (R. 29). In light of Kimbrough’s RFC, the ALJ held that
Kimbrough was “unable to perform any past relevant work.” (R. 32). Lastly, in
Step Five, the ALJ considered Kimbrough’s age, education, work experience, and
RFC and determined that jobs existed in significant numbers in the national
economy that Kimbrough could perform.3 (R. 33). Therefore, the ALJ found that
Kimbrough “has not been under a disability, as defined in the Social Security Act,
from May 12, 2008, through the date of this decision.” Id.

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Although the Appeals Council found Kimbrough had no acquired work skills
that were transferable to the jobs identified by the ALJ, it found he could nevertheless
perform those jobs. (R. 6).
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V. Analysis
The court now turns to Kimbrough’s contentions that the ALJ erred by
failing to (1) find his chronic obstructive pulmonary disease (COPD) and diabetes
were severe impairments at Step Two, and (2) properly consider his pain. Doc. 8.
The court addresses each contention in turn.
A.

The ALJ’s failure to find Kimbrough’s COPD and diabetes to be severe
impairments at Step Two
Kimbrough challenges the ALJ’s finding at Step Two that Kimbrough’s

COPD and diabetes were not severe impairments. Doc. 8 at 8-9. The regulations
provide that in order to progress beyond Step Two, a claimant must have an
impairment that significantly limits his ability to do basic work activities. “If you
do not have any impairment or combination of impairments which significantly
limits your physical or mental ability to do basic work activities, we will find that
you do not have a severe impairment and are, therefore, not disabled.” 20 C.F.R.
§§ 1520c), 416.920(c). Therefore, the vocational impact of an impairment is the
crucial issue in determining whether an impairment is severe at Step Two. If an
impairment does not significantly limit the claimant’s “physical or mental ability
to do basic work activities,” it cannot be found to be a severe impairment at Step
Two.

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1.

COPD

Substantial evidence supports the ALJ’s finding that Kimbrough’s COPD
was not a severe impairment. In fact, the medical evidence does not show the
COPD imposed vocationally-restrictive limitations, and Kimbrough did not even
allege at his hearing that his COPD was a severe impairment. In response to the
prehearing order, Kimbrough listed COPD as a nonsevere impairment, and stated
“we are not considering this to be a severe impairment.” (R. 152-53).
Kimbrough’s decision was not surprising since there are only two treatment notes
in the record related to his COPD: (1) a November 26, 2008, visit to the Lakeland
Community Hospital emergency department with complaints of shortness of
breath starting that day, (R. 206), and (2) a December 3, 2008, visit to his primary
care physician, Dr. John Boswell, complaining of a cough and shortness of breath
of one week’s duration. (R. 251). Consistent with this sparse record, Dr. Boswell’s
November 3, 2009, letter to Kimbrough’s attorney concerning Kimbrough’s
impairments makes no references to COPD and only mentions “chronic tobacco
abuse with associated episodes of acute bronchitis.” (R. 270). In other words,
nothing in the record shows that Kimbrough’s COPD caused significant ongoing
limitations in his ability to perform work related activities. Consequently, the
ALJ’s finding is supported by substantial evidence.

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2.

Diabetes

Substantial evidence also supports the ALJ’s finding regarding
Kimbrough’s diabetes. Although Kimbrough testified that he stopped working as
a truck driver after having dizzy spells, the treatment record, which includes visits
to Dr. Boswell on May 9, 2008, December 3, 2008, and March 19, 2009, does not
reflect any complaints of dizziness after Kimbrough’s alleged onset date. (R. 161,
251, 248). Also, Dr. Boswell’s letter does not indicate Kimbrough’s diabetes
causes dizziness. (R. 270). In light of the record, the ALJ concluded that despite
being noncompliant with treatment for his diabetes, “evidence has failed to show
resulting limitations which have significantly impacted his functioning.” (R. 31).
This finding is supported by substantial evidence.
3.

Harmless error

Alternatively, any error by the ALJ in finding Kimbrough’s COPD and
diabetes were not severe impairments is harmless because the ALJ proceeded
beyond Step Two. Since he found that Kimbrough had severe impairments, the
ALJ recognized that he must consider Kimbrough’s nonsevere impairments in
assessing his RFC. (R. 28). Consequently, he discussed Kimbrough’s COPD and
diabetes in his discussion of how Kimbrough’s impairments affected his ability to
work, (R. 29-31), and found that “although the claimant has alleged an inability to

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do work due to several impairments including headaches, COPD, and diabetes,
evidence has not supported a severity of these impairments which limits the
claimant’s level of functioning.” (R. 32). Therefore, any alleged error is harmless
because the ALJ considered the vocational impact of Kimbrough’s nonsevere
impairments at later steps. See Burgin v. Comm’r of Soc. Sec., 420 F.App’x 901,
903 (11th Cir. 2011) (unpublished) (explaining that failure to find an impairment
severe at Step Two is harmless error if all impairments are considered at later
steps).
Ultimately, it is the claimant’s responsibility to provide evidence showing
the presence of an impairment and how it affects his functioning:
You must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say that you
are disabled. You must provide evidence . . . showing how your
impairment(s) affects your functioning during the time you say that
you are disabled . . . .
20 C.F.R. §§ 404.1512(c), 416.912(c). Consistent with the regulations, in Ellison
v. Barnhart, the court emphasized that “the claimant bears the burden of proving
that he is disabled, and, consequently, he is responsible for producing evidence in
support of his claim.” 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20 C.F.R. §
416.912(a), (c)). Kimbrough failed to meet his burden of establishing that his

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COPD is a severe impairment. Therefore, the substantial evidence supports the
ALJ’s decision.
B.

The ALJ’s consideration of Kimbrough’s pain
Kimbrough argues the ALJ erred “by failing to consider the non-exertional

impairment of pain and the effect that this would have on his ability to work.”
Doc. 8 at 9. However, the ALJ, in fact, considered the impact of Kimbrough’s pain
on his ability to work, and concluded that after “considering the combined effects
of the claimant’s impairments with resulting pain, [Kimbrough] retains the ability
to perform a reduced range of work at the light level of exertion.” (R. 32)
(emphasis added). A review of the ALJ’s decision shows that he properly
considered and rejected Kimbrough’s pain allegations.
The ALJ found Kimbrough’s “medically determinable impairments could
reasonably be expected to cause [his] alleged symptoms.” (R. 30). Therefore,
Kimbrough met the requirements of the pain standard. However, the ALJ found
Kimbrough’s allegations were not fully credible and articulated multiple reasons
to support his credibility finding. Id. Specifically, the ALJ found that
Kimbrough’s daily activities, which included performing light housework,
preparing meals once or twice a day, shopping once or twice per week, and fishing
once or twice per month, were inconsistent with Kimbrough’s allegations of

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disabling pain. (R. 30). The ALJ also found the medical evidence failed to support
the limitations Kimbrough alleged. In reaching this decision, the ALJ noted that
after the alleged onset date of May 12, 2008, Kimbrough did not seek treatment
for back pain until March 2009, (R. 30), that Kimbrough did not see Dr. J. Stephen
Howell, his pain management doctor, after June 11, 2009, (R. 31), and that
Kimbrough failed to return for his October 2009 follow-up visit with Dr. Howell.
Id. The ALJ also noted the absence of any evidence that Kimbrough sought
treatment for his back pain from any other source after June 2009, including the
emergency room even though he sought such treatment on two occasions for
shortness of breath and flu-like symptoms. Id. Next, the ALJ noted that Dr.
Boswell’s letter stated that he had not “formally evaluated the current status of
[Kimbrough’s] back and was unable to comment on how it might contribute to his
employability.” Id. Finally, the ALJ pointed out that the treatment records from
North Alabama Bone & Joint Clinic did not indicate “that the level of pain the
claimant experienced would prevent all work activity.” Id.
Based on the court’s review of the record, the court finds that, in assessing
Kimbrough’s pain allegations, the ALJ considered the medical evidence of record
and set forth specific reasons for his credibility finding. Consequently, the reasons
articulated by the ALJ are supported by substantial evidence and are due to be

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affirmed. See Foote, 67 F.3d at 1562 (“A clearly articulated credibility finding
with substantial supporting evidence in the record will not be disturbed by a
reviewing court.”).
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Kimbrough 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. A separate order in accordance
with the memorandum of decision will be entered.
Done the 13th day of November, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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