Whiteside v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/4/2014. (AVC)

FILED
2014 Dec-04 PM 02:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
DAVID S. WHITESIDE,
Plaintiff,
vs.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.

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6:13-cv-1739-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, David S. Whiteside, appeals from the decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying his
application for Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”). Mr. Whiteside timely pursued and exhausted his administrative
remedies and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. §§ 405(g), 1383(c)(3).
Mr. Whiteside was forty-one years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a high school education and finished three
years of college. (Tr. at 29.) His past work experiences include employment as an

insurance salesman, a mobile home salesman, and a professional baseball player. (Tr.
at 29-31.) Mr. Whiteside claims that he became disabled on January 5, 2008, due to
back pain, resulting from impairments to his lumbar and spine and from thoracic
radiculitis, and due to anxiety and situational depression. (Tr. at 13, 28.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus eligible
for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until
making a finding of either disabled or not disabled; if no finding is made, the analysis
will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
first step requires the evaluator to determine whether the plaintiff is engaged in
substantial gainful activity. See id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the
plaintiff is engaged in substantial gainful activity, the evaluator moves on to the next
step.
The second step requires the evaluator to consider the combined severity of the
plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational

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requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The decision
depends on the medical evidence contained in the record. See Hart v. Finch, 440 F.2d
1340, 1341 (5th Cir. 1971) (concluding that “substantial medical evidence in the
record” adequately supported the finding that plaintiff was not disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal to
the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509 and
416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id. §§
404.1520(e), 416.920(e). The fourth step requires the evaluator to determine whether
the plaintiff has the RFC to perform the requirements of his past relevant work. See
id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

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If the plaintiff’s impairment or

combination of impairments does not prevent him from performing his past relevant
work, the evaluator will make a finding of not disabled. See id.
The fifth and final step requires the evaluator to consider the plaintiff’s RFC,
age, education, and work experience in order to determine whether the plaintiff can
make an adjustment to other work. See id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
If the plaintiff can perform other work, the evaluator will find him not disabled. Id.;
see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff cannot perform other
work, the evaluator will find him disabled.

20 C.F.R. §§ 404.1520(a)(4)(v),

404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Mr. Whiteside
met the insured status requirements of the Social Security Act through her date of
decision. (Tr. at 12.) She further determined that Mr. Whiteside had not engaged in
substantial gainful activity since the alleged onset of his disability. (Id.) According to
the ALJ, Plaintiff’s post lumbar fusion is considered a “severe” impairment based on
the requirements set forth in the regulations. (Tr. at 12-13.) In addition, she found that
Mr. Whiteside’s anxiety and situational depression were “nonsevere” because they
did “not cause more than minimal limitations in [his] ability to perform[.]” (Tr. at 13.)
The ALJ then found that the “severe” post lumbar fusion neither meets nor medically

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equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. at 14.) The ALJ did not find Mr. Whiteside’s representations to be totally
credible, and she determined that he has the RFC to perform light work, except that
he can only occasionally climb, crouch, crawl, stoop, and kneel, and he requires an
option to sit or stand at will. (Tr. at 15.)
According to the ALJ, Mr. Whiteside is able to perform some of his past
relevant work as an insurance salesman and as a mobile home salesman. (Tr. at 19.)
She determined he is unable to perform his past relevant work as a baseball player
since that work requires the ability to perform at a medium exertional level. (Id.)
However, since his RFC to perform light work activity does not disturb his ability to
perform his past relevant work as an insurance or mobile home salesman, he retains
the capacity to do that work both as he actually performed it, and as it is generally
performed in the national economy. (Id.) The ALJ concluded her findings by stating
that Plaintiff “has not been under a disability, as defined in the Social Security Act,
from January 5, 2008, through the date of this decision[.]” (Tr. at 20.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is

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substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone
v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives deference
to the factual findings of the Commissioner, provided those findings are supported by
substantial evidence, but applies close scrutiny to the legal conclusions. See Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)).
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181
(11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)). Indeed, even if this Court finds that the proof preponderates
against the Commissioner’s decision, it must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400 (citing Martin v. Sullivan, 894 F.2d 1520,

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1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard [for
review of claims], it is imperative that th[is] Court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d
622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir. 1984)).
Moreover, failure to apply the correct legal standards is grounds for reversal. See
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Mr. Whiteside alleges that the ALJ’s decision should be reversed and remanded

for two reasons. First, he believes the ALJ failed to assign enough credibility to his
testimony about his pain and was therefore inconsistent with Eleventh Circuit
precedent. (Doc. 10 at 3.) Second, Plaintiff contends that the ALJ did not satisfy her
duty to fully develop the record. (Id. at 9-10, 12.)
A.

The ALJ’s Determination that Mr. Whiteside’s Testimony Was Not
Credible

Plaintiff argues that the ALJ failed to properly evaluate the credibility of his
testimony of his disabling symptoms in a manner consistent with the standards of the
Eleventh Circuit. (Id. at 3). Specifically, Mr. Whiteside alleges that “[t]he ALJ
articulates several reasons for refusing to credit the Plaintiff’s testimony of disabling
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back pain, none of which are supported by substantial evidence.” (Id. at 7.) He
contends that the ALJ’s opinion is not supported by substantial evidence because she
failed to attribute proper weight to certain facts in the record. (Id. at 7-11.)
Subjective testimony of pain and other symptoms may establish the presence
of a disabling impairment if it is supported by medical evidence. See Foote v. Chater,
67 F.3d 1553, 1561 (11th Cir. 1995). To establish disability based upon pain and other
subjective symptoms, the claimant must produce “(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.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citing
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)); see also Landry v. Heckler, 782
F.2d 1551, 1553 (11th Cir. 1986).
The ALJ is permitted to discredit the claimant’s subjective testimony of pain
and other symptoms if she articulates explicit and adequate reasons for doing so.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Soc. Sec. Rul. 96-7p,
1996 WL 374186 (1996) (“[T]he adjudicator must carefully consider the individual’s
statements about symptoms with the rest of the relevant evidence in the case record

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in reaching a conclusion about the credibility of the individual’s statements.”). In
making a credibility determination, an ALJ may consider the opinions of treating
physicians and consultative examiners, as well as those of other medical doctors. See
20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). “[T]here is no rigid requirement that the
ALJ specifically refer to every piece of evidence in his decision [regarding credibility],
so long as the ALJ’s decision . . . is not a broad rejection which is not enough to enable
[the district court or this Court] to conclude that [the ALJ] considered h[is] medical
condition as a whole.” Dyer, 395 F.3d at 1211 (internal quotations omitted).
Mr. Whiteside testified that he experienced severe back pain that rendered him
incapable of sitting for longer than 30-45 minutes at a time, unable to walk for longer
than 15-20 minutes at a time, and that he could not even hoist a gallon of milk. (Tr. at
28-29, 32-33.) He testified that he experienced back spasms, a burning sensation in his
right leg, and pain in his hip when walking. (Tr. at 32.) He further testified that he has
to lie down sometimes during the day, and that his medication caused him to become
lethargic. (Tr. at 33, 35.) He also complained of difficulty going up and down stairs,
as well as a general worsening of his symptoms when the weather is cold. (Tr. at 34,
36.)
In this case, the ALJ found that Mr. Whiteside met the first prong of the

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Eleventh Circuit’s pain standard, but she did not believe that he had put forth
objective medical evidence that could confirm the severity of the alleged pain arising
from that condition or that any impairment of such severity could reasonably be
expected to give rise to the disabling pain and other limitations alleged by Plaintiff.
(Tr. at 16.)
Substantial evidence supports the ALJ’s decision. The ALJ made note of Mr.
Whiteside’s allegations of pain in his hip and down his leg and his alleged inability to
sit or stand for longer than half an hour at a time. (Tr. at 15-16.) She also noted his
representation that he had undergone diagnostic testing with a Dr. Longmire two
years prior to the hearing. (Id.) However, she discovered that, in contrast to his
testimony, Mr. Whiteside had deferred the diagnostic testing that Dr. Longmire had
recommended. (Id.; see generally, tr. at 251-260.) As a result of not having undergone
diagnostic testing, the ALJ found that Mr. Whiteside had not produced “objective
clinical or diagnostic testing of record to support his alleged pain and limitation.” (Tr.
at 16.) The ALJ also noted that Mr. Whiteside’s chiropractor had determined in
December 2010 that while his “symptoms prevent[ed] him from playing baseball[,]”
that that conclusion did not support his alleged inability to lift more than a loaf of
bread. (Tr. at 17.) To the contrary, as noted by the ALJ, the consultative examiner, Dr.

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Boyde J. Harrison, had determined on March 22, 2011, that Mr. Whiteside “walked
with a normal gait and was able to squat and []rise without difficulty” and that he felt
that the plaintiff “should be able to perform his insurance salesman activities.” (Tr.
at 18.) See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (providing that an ALJ
considers medical opinions when assessing credibility).
Further, there was substantial evidence supporting a finding that while Mr.
Whiteside experienced some symptoms, he did not experience them to the limiting
extent that the claimed. For example, after he re-injured his back after a fall in August
2006, a physician observed that Mr. Whiteside had normal strength, intact soft touch,
and fluid gait with “good” heel and toe walking bilaterally “with encouragement.”
(Tr. at 223.) A CT scan from September 2006 showed mild degenerative changes at
L3-4, a variety of changes at L4-5, and post operative scarring at L5-S1. (Tr. at
220-22.) In October 2006, a physician reviewed the September scan and found that
flexion and extension films did not show abnormal motion. (Tr. at 217, 222.) A new
MRI taken in February of 2007 confirmed degenerative changes at L4-5 and L5-S1.
(Tr. at 260.) The same month, a specialist found no significant swelling or deformity
of the thoracolumbar spine and that Mr. Whiteside had a full range of motion in all
planes. (Tr. 237-38.) The specialist also found that he had some pain upon moving,

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but that he had 5/5 strength, normal tone, as well as intact reflexes and sensation in
his lower extremities. (Tr. at 238.) Mr. Whiteside received an epidural injection the
same month and reported a 30% reduction in his pain for two weeks. (Tr. at 229.) In
April of 2009, Mr. Whiteside’s treating physician noted that he walked with a normal
gait and strength and without tenderness to palpation. (Tr. at 289.) Notes from his
treatment over 2010 documented occasional complaints of pain with otherwise normal
objective findings. (Tr. at 259, 264, and 280.)
The foregoing establishes that the ALJ’s determination that Mr. Whiteside’s
testimony was not credible did not amount to a broad rejection of that evidence. She
recognized that Mr. Whiteside had failed to produce objective medical evidence
confirming the severity of his pain. She noted a glaring inconsistency between his
testimony, that he had undergone diagnostic testing, and his treatment record, which
showed that he had never undergone diagnostic testing. (Tr. at 251-60.) She also cited
to evidence supporting the conclusion that his underlying medical condition caused
some limiting symptoms, but none to the level of severity that he testified to. Among
that evidence is the consistent opinion of different physicians and specialists who
recorded complaints of pain and simultaneously documented normal objective
findings. In fact, she pointed out, “the record does not contain any opinions from

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treating or examining physicians indicating that the claimant is disabled or has
limitations” beyond not being able to play professional baseball. (Tr. at 18.) In sum,
the ALJ articulated adequate reasons for her finding that his testimony was not
credible and that it did not meet the Eleventh Circuit’s pain standard.
B.

The ALJ’s Duty to Fully Develop the Record

Mr. Whiteside alleges that the ALJ failed to fully develop the record by not
obtaining diagnostic testing results. (Doc. 10 at 9-10.) The ALJ “has a basic obligation
to develop a full and fair record.” Welch v. Bowen, 854 F.2d 436, 438 (11th Cir. 1988)
(internal citations and quotations omitted). This basic duty requires that the ALJ make
specific findings of fact to support her conclusions of law regarding the plaintiff’s
disability status. Id. at 439-440 (holding that the ALJ had failed to fully develop the
record where he made no specific factual findings supporting her conclusion that
“there [were] a significant number of jobs in the national economy which [the
plaintiff] could perform.”). This duty exists to ensure that the ALJ has “scrupulously
and conscientiously probe[d] into, inquire[d] of, and explore[d] . . . all relevant facts.”
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (quoting Cox v. Califano, 587
F.2d 988, 991 (9th Cir. 1978)). It also enables the court on appeal “to determine
whether the ultimate decision on the merits is rational and supported by substantial

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evidence.” Welch, 854 F.2d at 440 (internal citations and quotations omitted).
However, “[a]n ALJ is not required to seek the independent testimony of a
medical expert where the record is sufficient to determine whether the claimant is
disabled and additional medical expert testimony would be unnecessary.” Prince v.
Comm’r, 551 F. App’x 967 (11th Cir. 2014) (citing Wilson, 179 F.3d at 1278).
Similarly, “[t]reating physicians should be re-contacted when the evidence from that
physician is insufficient to determine whether the claimant is disabled.” Id. (citing 20
C.F.R. § 404.1512) (emphasis added).
Additionally, notwithstanding the ALJ’s well-established basic duty to develop
a full and fair record, “the claimant bears the burden of proving that he is disabled,
and, consequently, he is responsible for producing evidence in support of his claim.”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); see, e.g., 20 C.F.R. §
416.912(a) (“[claimant] must furnish medical and other evidence that we can use to
reach conclusions about your medical impairment(s)”). Not only is the ultimate
evidentiary burden placed on Plaintiff, but Plaintiff must also make a “clear showing
of prejudice before it is found that the claimant’s right to due process has been
violated to such a degree that the case must be remanded . . . for further development
of the record.” Graham v. Apfel, 129 F.2d 1420, 1422 (11th Cir. 1997). Therefore it

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is up to Plaintiff to show that there was an evidentiary gap which resulted in prejudice.
See Edwards v. Sullivan, 937 F.2d 580, 586 (11th Cir. 1991).
Mr. Whiteside suggests that it was the ALJ’s responsibility to obtain diagnostic
testing results, and that she erred in discrediting his testimony on the basis of those
results being absent from the record. (Doc. 10 at 9-10.) However, Plaintiff’s failure to
follow through with his physician’s recommendation to undergo diagnostic testing
and to introduce any objective medical evidence in support of his testimony does not
mean that the ALJ failed to fully develop the record. In fact, the ALJ made an effort
to elicit more evidence supporting his testimony about the severity of his pain by
searching for the results of diagnostic testing that he claimed he had underwent. (Tr.
at 16.) Only in fulfilling her duty to create a full and fair record did she begin searching
for that objective medical evidence and discover that Mr. Whiteside had not yet
undergone diagnostic testing. (Id.) In other words, she sought to elicit evidence in
support of the severity of Mr. Whiteside’s pain symptoms and instead discovered
evidence suggesting his testimony was not entirely credible.
Here, because the record contained sufficient evidence for the ALJ to make an
informed decision concerning Plaintiff’s capabilities, the ALJ was not obligated to
order additional testing from Plaintiff’s physician. To the contrary, and as noted

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above, the record included the opinions of several physicians and was sufficient for a
decision. Moreover, Plaintiff makes no “clear showing of prejudice” as is required
when arguing that the record was inadequately developed. Graham, 129 F.2d at 1422.
Without evidence that the ALJ’s decision would have been different in the light of
new information, the ALJ is not required to perform any further fact-finding. See
Robinson v. Astrue, 365 F. App’x 993, 999 (11th Cir. 2010). In this case, Plaintiff offers
no new information and makes no showing of prejudice warranting remand for further
develop of the record. Thus, the record was sufficiently developed in this case.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr.

Whiteside’s arguments, the Court finds the Commissioner’s decision is supported by
substantial evidence and in accord with the applicable law. A separate order will be
entered.
Done this 4th day of December 2014.

L. Scott Coogler
United States District Judge
[160704]

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