Landry v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 02/21/13. (CVA)

FILED
2013 Feb-21 PM 12:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
HARVEY DALE LANDRY, SR,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Civil Action Number
6:12-cv-02177-AKK

MEMORANDUM OPINION
Plaintiff Harvey Dale Landry, Sr. (“Landry”) 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 Landry.
I. Procedural History
Landry protectively filed applications for Disability Insurance Benefits

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(“DIB”) and Supplemental Security Income (“SSI”) benefits on May 15, 2008,
alleging a disability onset date of February 3, 2003 due to back problems. (R.
130-336, 141). Landry was insured, for purposes of DIB benefits, until June 30,
2008 and thus was required to demonstrate disability on or before that date. (R.
137). After the SSA denied Landry’s applications, he requested a hearing before
an ALJ. (R. 60, 66). The ALJ subsequently denied Landry’s claims, (R. 48-59),
which became the final decision of the Commissioner when the Appeals Council
refused to grant review, (R. 1-8). Landry 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
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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
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
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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, 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
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
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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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
The ALJ properly applied the five step analysis and first determined that
Landry has not engaged in substantial gainful activity since February 3, 2003, and
therefore met Step One. (R. 52). The ALJ also acknowledged that Landry’s “very
minimal ostephytes at L3-4, L4-5” was a severe impairment that met Step Two.
Id. The ALJ proceeded to the next step and found that Landry failed to meet or
equal one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 and
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thus did not satisfy Step Three. Id. 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 Landry
has the residual functional capacity to lift 10 pounds frequently and 20
pounds occasionally; to stand, walk, and/or sit for six hours each in an
eight-hour workday with normal breaks; to push/pull without limitation;
to frequently balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs; and to otherwise perform unskilled light work as defined in 20
CFR 404.1567(b) and 416.967(b)
(R. 52). With respect to the pain standard, the ALJ found that the medical record
and Landry’s “daily activities belie the severity of pain alleged.” Id. at 53. As a
result of his RFC assessment, the ALJ found that Landry is unable to perform any
past relevant work. Id. at 54. Finally, the ALJ proceeded to step Five and found
that “there are jobs that exist in significant numbers in the national economy that
[Landry] can perform.” Id. at 55. Accordingly, the ALJ determined that Landry is
not disabled. Id.; see also McDaniel, 800 F.2d at 1030.
V. Analysis
Landry contends that the ALJ erred by failing to properly weigh the opinion
of Landry’s treating physician. Doc. 10. Under the Social Security regulations,
treating physicians are generally given more weight than other medical sources.
20 C.F.R. § 404.1527(c)(2). However, a treating source opinion is only due

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controlling weight when it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record[.]” Id. Otherwise, the ALJ will assign
weight to a treating source opinion based on the length of the treatment
relationship, the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion through relevant evidence, consistency
with the record as a whole, specialization of the source, and other relevant factors.
20 C.F.R. § 404.1527(c)(2)(i-ii) and (3)-(6). In determining whether the ALJ’s
assignment of weight to Landry’s treating physician is supported by substantial
evidence, the court examines the relevant evidence below.
A.

Dr. E.A. Mangieri’s Opinions
On August 19, 2008, Dr. Eugene A. Mangieri performed a clinical

assessment of fatigue/weakness, mental medical assessment, physical functional
assessment, and clinical assessment of pain on Landry. (R. 369-376). In the
fatigue/weakness assessment, Dr. Mangieri found that the fatigue and weakness
Landry experiences due to his impairment is “virtually incapacitating” and that
even minimal physical activity like standing would increase this fatigue and
weakness so much that Landry would require bed rest or medication. Id. at 370.
On the mental assessment form, Dr. Mangieri indicated that Landry’s impairment
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would moderately affect his ability to follow work rules, maintain attention or
concentration, carry out or remember or understand job instructions, maintain
personal appearance, and demonstrate reliability. Id. at 371-72. On the physical
functional assessment form, Dr. Mangieri opined that Landry would be able to
stand for only 15-20 minutes at a time, walk for only 20 feet, and would need to lie
down for 1-2 hours at least 2-3 times per day . Id. at 373. Additionally, Dr.
Mangieri indicated that Landry could only occasionally push, pull, use his arms or
legs, or kneel and could never climb, balance, stoop, crouch, crawl or reach. Id.
Even more limiting, Dr. Mangieri opined that Landry could never work in nearly
all environments, including extreme cold, extreme heat, vibration, near fumes,
noxious odors, dusts, mists, gases or poor ventilation, near moving mechanical
parts, in high, exposed places, or “other.”2 Id. at 374. Finally, in his clinical
assessment of pain, Dr. Mangieri indicated that Landry’s pain is “virtually
incapacitating,” that an increase in activity would force the need to lie down or
take medication, and that the pain would cause Landry to miss more than 4 days of
work per month. Id. at 375.
The ALJ properly discredited the opinions contained in these reports based

2

Although the form indicates that the doctor should specify what “other” environments
the claimant cannot work in, Dr. Mangieri failed to do so. (R. 374).
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on Dr. Mangieri’s failure to support them. See 20 C.F.R. § 404.1527. According
to the fatigue/weakness assessment form, Dr. Mangieri’s opinion is an “estimate”
based on “the nature of the impairment, the degree to which fatigue/weakness is
typically of concern in that impairment, and the extent to which the patient
exp[r]esses the presence of fatigue/weakness and requests medical for its relief.”
(R. 370). However, Dr. Mangieri failed to explain these factors in relation to
Landry’s specific condition. Likewise, the mental assessment report again fails to
indicate how Dr. Mangieri reached his conclusions. Id. at 371-72. The physical
functional assessment form specifically asks the completing physician to “relate
particular medical findings to any assessed reduction in capacity” because “the
usefulness of this assessment depends on the extent to which you do this.” Id. at
373. Unfortunately, Dr. Mangieri either failed to indicate any clinical findings or
wrote simply “due to pain” on the assessment. Id. at 373-74. Lastly, the pain
assessment’s indication of disabling pain is unsupported based on Dr. Mangieri’s
conclusion, within the same report, that Landry’s prescribed medication would
effectively treat the pain without creating any serious problems or side effects. Id.
at 375.
Likewise, the ALJ properly discredited Dr. Mangieri’s reports because of an
inconsistency with Dr. Mangieri’s own treatment records. See 20 C.F.R. §
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404.1527. Landry visited Dr. Mangieri nearly every month between April 2007
and December 2011 for pain management and consistently indicated that his pain
ranged between a two or three on a ten point pain scale with his medication. (R.
277-341, 378-397, 416-436). Moreover, Dr. Mangieri never changed Landry’s
pain medication or indicated that another form of treatment was necessary. See id.
This suggests that Landry’s pain was well treated by his medications and
undermines Dr. Mangieri’s statements that Landry is unable to work due to pain.
Additionally, none of these reports indicate any symptoms beyond lower back
pain. See id. Accordingly, the court agrees with the ALJ that Dr. Mangieri’s
conclusions regarding other symptoms such as disabling fatigue, inability to
understand instructions, and limited use of extremities are not supported by Dr.
Mangieri’s other medical reports.
B.

The Remaining Medical Evidence
Although the ALJ properly discredited Dr. Mangieri’s reports based on a

lack of internal supportability, the reports are also inconsistent with the remaining
medical evidence. The medical evidence begins in 1995 when Landry began
seeing Dr. Michael Cozza for back pain stemming from a work-related injury. (R.
198). In 2001 Landry again sprained his back at work, but did not stop working
until 2003 when he decided it was interfering with his physical therapy. Id. at 238.
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However, by May 2003 Dr. Cozza noted that continued physical therapy and use
of the TENS Unit helped Landry’s occasional pain and that he could use these
techniques while working. Id. at 235. Dr. Cozza’s finding that Landry’s pain was
merely occasional and could be effectively treated through rehabilitation exercises
directly contradicts Dr. Mangieri’s opinion that Landry’s pain is completely
disabling. Dr. Cozza’s follow up low back exams showed “unremarkable” results,
despite Landry’s continued complaints of pain. Id. at 234. Eventually, Dr. Cozza
recommended that Landry undergo a rhizotomy to prevent future flare ups of pain
and informed Landry that he would fully recover four weeks after the procedure.
Id. at 233. However, Landry refused the procedure because he was preparing to
move from Pennsylvania to Alabama. Id. In short, Dr. Cozza’s reports further
contradict Dr. Mangieri’s findings in that they show Landry’s condition could be
effectively treated with a short recovery time and that Landry could in fact
continue to work while undergoing therapy.
Following his appointments with Dr. Cozza, Landry presented at
HealthSouth Diagnostic Center of Tuscaloosa in November 2004 for a post
mylogram lumbar CT exam. Id. at 270. The exam indicated mild disc bulging at
L3-4, moderate disc bulging at L4-5, and mild bulging at L5-S1 with disc bulging
being slightly more prominent to the right of the midline. Id. at 270-71. However,
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Landry failed to provide any evidence of medical treatment for pain between this
exam and his first appointment with Dr. Mangieri in 2007. Landry’s purported
failure to seek medical attention for his back pain for nearly 3 years belies his
contention that his back pain is disabling.
Additionally, when Dr. James R. Saxon at the Radiology Clinic reviewed
the CT exam results and performed an additional examination in July 2008, he
noted “very minimal degenerative change.” Id. at 358. Ultimately, Dr. Saxon
assessed Landry with “chronic mechanical lower back pain with degenerative disc
disease at three levels” but with no evidence suggesting complete disability. Id. at
356-57. Lastly, Wendy L. Bouyer performed a physical RFC assessment on
Landry in July 2008. Id. at 362-68. Consistent with the medical evidence,
exclusive of Dr. Mangieri’s reports, Bouyer opined that Landry could frequently
lift or carry 10 pounds, stand, walk or sit for 6 of 8 hours per work day with
normal breaks, and had no manipulative or postural limitations. See id.
In other words, while Landry suffers from a disorder that could cause some
pain, there is no evidence in the record supporting Dr. Mangieri’s conclusion
regarding the extreme severity of that pain or an inability to treat this pain through
medication and/or physical therapy. To the contrary, the medical record indicates
that Landry’s occasional lower back pain can be kept at a pain level of two with
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medication and could likely be eliminated through a medical procedure or
continued physical therapy. Accordingly, the court finds that the ALJ properly
applied the standard for assigning weight to Dr. Mangieri’s opinions under 20
C.F.R. § 404.1527 and that the ALJ’s decision is supported by substantial
evidence.
VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Landry 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 21st day of February, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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