Howton v. Social Security Administration, Commissioner

Filing 23

MEMORANDUM OPINION. Signed by Judge James H Hancock on 5/24/2016. (JLC)

FILED
2016 May-24 PM 12:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

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Case. No.: 6:15-cv-762-JHH

MEMORANDUM OPINION
Claimant Rodney Dwight Howton brought this action pursuant to Section
205(g) of the Social Security Act (“the Act”) seeking review of the decision of the
Commissioner of Social Security (“Commissioner”) denying his application for a
period of disability and Disability Insurance Benefits (“DIB”) under Title II. See 42
U.S.C. §§ 405(g), 1383(c)(3).

On October 8, 2015, Amber D. Howton was

substituted as the Plaintiff in this case following the death of her father, Claimant
Rodney Dwight Howton.1 (See Docs. # 10-13). For the reasons outlined below, the
court finds that the decision of the Commissioner is due to be reversed because it is
not supported by substantial evidence and proper legal standards were not applied.

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For clarity’s sake, throughout this memorandum opinion, Amber D. Howton will be referred to
as Plaintiff and Rodney Dwight Howton will be referred to as Claimant.

I.

Proceedings Below
Claimant protectively filed his application for a period of disability and DIB

on April 30, 2012, alleging a disability onset date of July 31, 2011. (R. 80, 135). On
June 14, 2012, Claimant’s application was denied, (R. 73-86) and on July 5, 2012
Claimant timely requested a hearing before an Administrative Law Judge (“ALJ”).
(R. 89-90). An administrative hearing was held before an ALJ on August 8, 2013,
in Jasper, Alabama. (R. 32-51).

Both Claimant and Vocational Expert Julia A.

Russell, Ph.D. testified at the hearing. (R. 32-51). Claimant was represented by
counsel at the hearing. (R. 32-51).
In the September 8, 2013 decision, the ALJ determined that Claimant was not
eligible for DIB because he was not under a “disability,” as defined by the Act, from
July 31,2011 through the date of decision. (R. 17-26). Thereafter, Claimant
requested review of the ALJ decision by the Appeals Council. (R. 1-4). After the
Appeals Council denied Claimant’s request for review, (R. 1-4), that decision became
the final decision of the Commissioner, and therefore a proper subject of this court’s
appellate review.
At the time of Claimant’s alleged onset of disability, he was fifty-five (55)
years old and had a “marginal” education ad had not completed the sixth grade. (R.
25-26, 80). Claimant’s past relevant positions as a mobile home assembler and a
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grass cutter. (R. 45-46). According to Claimant, he has been unable to engage in
substantial gainful activity since July 31, 2011, mainly due to lower back pain and
trouble breathing. (R. 20, 39-42).
At the August 8, 2013 hearing, Claimant testified that he testified that he was
widowed and lived with a 75-year old woman who helped take care of him. (R. 38).
She provided the house, utilities, and performed all of the shopping. (R. 38).
Claimant received $200 in food stamps each month to help pay for his necessities.
(R. 40).
Claimant testified that in the two years before his alleged onset date, he
attempted to remain self-employed, while working at the mobile home plant three to
four times per week, but was finally forced to concede that he “just couldn’t do it
anymore.” (R. 39-40). Claimant stated that his “number one ailment” was his lower
back, and that affected his legs and breathing. (R. 40- 41). According to Claimant,
his lower back would “just give out on him” and caused Claimant not to be able to
bend, stoop, and lift. (R. 41). Claimant testified that the pain had gotten worse since
2011. (R. 41).
Claimant further testified that he could not sit for more than 10 to 15 minutes
at a time. (R. 42). He stated that he could only stand in one place for 5 to 10 minutes

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and was restricted to the same times in his walking. (R. 42). Claimant testified that
his back pain caused him to have to lie down for three to four hours per day between
the time period of 8:00 a.m. to 5:00 p.m. (R. 42-43). The back pain also interfered
with his sleep. (R. 43). Claimant stated that he was not able to afford to have a
physician treat his pain and that he did not have any insurance and had not had any
since 2011. (R. 43).
With regard to his breathing, Claimant testified that he simply could not
breathe well. (R. 41). He stated that he was short of breath “all the time” and had “to
stop, lean up against something, [or] prop on something” until he could catch his
breath. (R. 41). Hot air, humidity, fumes and dust made his breathing problems
worse. (R. 41-42).
As far as daily activities, in his Function Report, Claimant stated that he tries
to shower every day but “some days are so bad I cannot get in the shower.” (R. 166).
On some days, he attempted to do light housework to help out, but mostly he
“watched TV and lived in pain.” (R. 166). He stated that he dressed and bathed in
pain, and even his hair care caused him some pain. (R. 167). Additionally, Claimant
stated that it was “very hard” for him to use the toilet. (R. 167). He prepared his own
meals, but the meals consisted of sandwiches. (R. 168). He could shop once a week
for about fifteen minutes and could ride in a car on the rare occasions he was outside.
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(R. 169). Although Claimant stated that he did attend church on Sundays, he could
not get out much otherwise because of the pain and frequently needing the bathroom.2
(R. 171).
II.

ALJ Decision
Determination of disability under the Social Security Act requires a five-step

analysis. See 20 C.F.R. § 404.1 et. seq. First, the Commissioner determines whether
the claimant is working (“Step One”). Second, the Commissioner determines whether
the claimant has an impairment which prevents the performance of basic work
activities (“Step Two”). Third, the Commissioner determines whether claimant’s
impairment meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (“Step Three”). Fourth, the Commissioner determines whether the
claimant’s residual functional capacity can meet the physical and mental demands of
past work (“Step Four”). The claimant’s residual functional capacity consists of what
the claimant can do despite his impairment. Finally, the Commissioner determines
whether the claimant’s age, education, and past work experience prevent the
performance of any other work (“Step Five”). In making a final determination, the
Commissioner will use the Medical-Vocational Guidelines in Appendix 2 of Part 404

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Claimant testified about his prostate problem, but admitted that he could work with that
problem alone; it was his lower back that was truly debilitating. (R. 42).
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of the Regulations when all of the claimant’s vocational factors and the residual
functional capacity are the same as the criteria listed in the Appendix. If the
Commissioner finds that the claimant is disabled or not disabled at any step in this
procedure, the Commissioner will provide no further review of the claim.
The court recognizes that “the ultimate burden of proving disability is on the
claimant” and that the “claimant must establish a prima facie case by demonstrating
that he can no longer perform his former employment.” Freeman v. Schweiker, 681
F.2d 727, 729 (11th Cir. 1982) (other citations omitted). Once a claimant shows that
he can no longer perform his past employment, “the burden then shifts to the
[Commissioner] to establish that the claimant can perform other substantial gainful
employment.” Id.
The ALJ found that Claimant meets the insured status requirements of the Act
through December 31, 2011, (R. 19, No. 1), and that he has not engaged in substantial
gainful activity since his alleged onset of disability on July 31, 2011. (R. 20, No. 2).
The ALJ found that, during the relevant time period, Claimant suffered from the
medically determinable impairments of disorders of the back and hypertension, which
he characterized as “severe.” (R. 20, No. 3). Nevertheless, he determined that
Claimant did not have an impairment or combination of impairments that meet or
medically equal the criteria of an impairment listed at 20 C.F.R. pt. 404, subpt. P, app.
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1. (R. 22, No. 4). According to the ALJ, Claimant’s subjective complaints
concerning his alleged impairments and their impact on his ability to work are not
fully credible due to the degree of inconsistency with the medical evidence
established in the record. (R. 23-24, No. 5).
Based upon his review of the record, the ALJ concluded that Claimant retains
the residual functional capacity (“RFC”) to perform medium work as defined in 20
C.F.R. 404.1567(c) that allows for occasional stooping and crouching and a
temperature-controlled environment. (R. 22, No. 5). With the help of testimony from
a VE, the ALJ found that Claimant could not return to his past relevant work, which
is heavy and semi-skilled in nature, (R. 24, No. 6), although he did determine there
are jobs that exist in significant numbers that Claimant can perform, even considering
his age, education, work experience, and RFC. (R. 25, No. 10). Specifically, the ALJ
relied on the VE’s testimony that Claimant could perform certain medium
occupations that exist in significant numbers in the regional and national economy,
such as hand packager, dining room attendant, and box maker. (R. 26, No. 10).
Thus, the ALJ found that Plaintiff was not under a “disability” from July 31, 2011,
through the date of the decision. (R. 26, No. 11).

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III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff seeks to have the ALJ’s decision, which became the final decision of

the Commissioner following the denial of review by the Appeals Council, reversed,
or in the alternative, remanded for further consideration. (Doc. # 20). Specifically,
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence and
improper legal standards were applied because the ALJ (1) “failed to properly
evaluate Mr. Howton’s credibility” and (2) “posed an incomplete hypothetical
question to the Vocational Expert.” (Doc. #20 at 14-26).
IV.

Standard of Review
The only issues before this court are whether the record reveals 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 correct legal
standards were applied, 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 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
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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, 894 F.2d at 1529 (quoting Bloodsworth,
703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed even if the evidence preponderates
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, the court
also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
V.

Discussion
Plaintiff argues that the decision of the ALJ should be reversed because the

ALJ did not apply the appropriate legal standards in addressing Claimant’s
credibility. Specifically, Plaintiff contends that the ALJ erred in the following ways:
(1) dismissal of Claimant’s inability to afford medical treatment; and (2) selective

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review of the objective medical evidence.3 The court agrees for the reasons stated
below.
In this circuit a “pain standard” is applied “when a claimant attempts to
establish disability through his or her own testimony of pain or other subjective
symptoms.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995). The standard
requires a claimant 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). “[W]hether objective medical
impairments could reasonably be expected to produce the pain complained of is a
question of fact . . . subject to review in the courts to see if it is supported by
substantial evidence.” Id.
“[A] claimant’s subjective testimony supported by medical evidence that
satisfies the standard is itself sufficient to support a finding of disability.” Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). “If the ALJ decides not to credit

3

Additionally, Plaintiff argues that the decision should be reversed because the ALJ posed an
incomplete hypothetical question to the VE. The court notes that the Commissioner did not respond
to this argument. That being said, however, the court does not consider this argument in its decision
because reversal is warranted for other reasons.
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such testimony, he must articulate explicit and adequate reasons for doing so.” Id.
“A clearly articulated credibility finding with substantial supporting evidence in the
record will not be disturbed by a reviewing court.” Id.
However, an ALJ’s decision that “focus[es] upon one aspect of the evidence
and ignor[es] other parts of the record” is not supported by substantial evidence.
McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986). Likewise, when a court
reviews the ALJ’s decision, it should not affirm unless the record as a whole shows
that the decision is supported by substantial evidence. “It is not enough to discover
a piece of evidence which supports that decision, but to disregard other contrary
evidence. The review must take into account and evaluate the record as a whole.”
Id. (citing Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487–88 (1951)).
In discrediting Claimant’s subjective complaints of pain, the ALJ focused on
Claimant’s lack of medical treatment as well as reports from treating and examining
practitioners and clinical findings upon examination. (R. 23-24). Upon review of the
entire record, however, the court finds that the ALJ’s credibility finding is not
supported by substantial evidence.
With regard to lack of medical care, the ALJ stated that “the claimant has not
generally received the type of medical treatment one would expect for a disabled
individual or for someone who has to lie down for up to 4 hours during the day as
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alleged” and noted that Claimant had “not sought treatment for back-related pain.”
(R. 23). These statements misconstrues the record on a number of fronts. First,
although passively acknowledging that “cost of treatment has been an obstacle to
obtaining medical care,” (R. 23), the ALJ relied on the fact that Claimant sought care
at the emergency room for acute problems such as a urinary tract infection or a skin
disorder. Although not said directly, the implication by the ALJ is that Claimant
should have sought treatment for his chronic pain via the emergency room as well.
This reasoning is nonsensical as emergency rooms do not exist for the treatment and
management of chronic pain, and the ALJ should not have penalized Claimant for not
using the emergency room as such.
Instead, the record is clear that Claimant could not afford treatment for his
chronic back pain. The ALJ had an obligation to “scrupulously and conscientiously
probe” into the reasons underlying Claimant's course of treatment (or lack thereof),
yet there is nothing in the record indicating the ALJ fully inquired into or
thoughtfully considered Claimant’s financial ability to seek medical care or pay for
any medicines. See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
Because a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic
obligation to develop a full and fair record. Id. This obligation exists even if the
claimant is represented by counsel. Id. (citing Thorne v. Califano, 607 F.2d 218, 219
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(8th Cir. 1979)). This duty requires the ALJ to “scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts.” Cowart, 662 F.2d at 735
(citations omitted). The ALJ must be “especially diligent in ensuring that favorable
as well as unfavorable facts and circumstances are elicited.”

Id. The ALJ’s

determination that Claimant’s testimony is not credible is not supported by substantial
evidence because the ALJ failed to fully and fairly develop the record with respect
to Claimant’s ability to pursue medical treatment. See id.
Additionally, the ALJ discredited Claimant’s subjective complaints of pain in
his review of the objective medical evidence, including reports from treating and
examining physicians. As Plaintiff’s brief highlights (doc. # 20 at 16-25), however,
the ALJ seems to pick and choose among the medical findings and relies only upon
the evidence unfavorable to Claimant. For example, the ALJ dismissed the objective
findings of Dr. Bowen of limited motion in flexion and rotation of the upper spine
with lumbar x-rays showing “compression of L4 body. Severe degenerative changes
L3, 4,5.” (R. 270). But this dismissal was based upon the examination of Claimant
by Dr. Moizuddin who did not x-ray Claimant and whose examination pre-dated that
of Dr. Bowen.

Additionally, the ALJ rejected every objective finding of

hypertension, including Dr. Moizuddin’s, whose opinion he otherwise gave great
weight, and Dr. Carmichael, whose opinion he gave some weight. (R. 23-24). He
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also dismissed the diagnosis of “possible” COPD by the CE, but in doing so used
the otherwise totally disregarded functional capacity assessment by Dr. Bowen . (R.
24).
The court concludes that the ALJ neglected to consider all of the objective
evidence and to consider the combined impact of all the findings regarding
Claimant’s pain and overall condition. The ALJ “reached the result that it did by
focusing upon one aspect of the evidence and ignoring other parts of the record. In
such circumstances, [the court] cannot properly find that the administrative decision
is supported by substantial evidence.” McCruter v. Bowen, 791 F.2d 1544, 1548
(11th Cir. 1986). Simply put, “[t]he review must take into account and evaluate the
record as a whole.” Id.
VI.

Conclusion
For the reasons stated above, the Commissioner’s final decision is due to be

remanded for further consideration consistent with this opinion. A separate order will
be entered.
DONE this the

24th

day of May, 2016.

SENIOR UNITED STATES DISTRICT JUDGE

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