Pouyadou v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 11/5/2013. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTHONY C. POUYADOU, Jr.,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 13-00171-N

MEMORANDUM OPINION AND ORDER
Plaintiff Anthony C. Pouyadou, Jr. brings this action seeking judicial review
of a final decision of the Commissioner of Social Security denying his applications for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The parties have consented to the
exercise of jurisdiction by the undersigned United States Magistrate Judge for all
proceedings in this Court pursuant to 28 U.S.C. § 636(c).

(See Doc. 15 (“In

accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in
this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”); see also Doc. 17 (order of reference).)
Upon consideration of the administrative record (“R.”) (Doc. 10), Pouyadou’s brief
(Doc. 12), and the Commissioner’s brief (Doc. 13), 1 it is determined that the
1

16, 18.)

The Court granted Pouyadou’s request to waive oral argument.

(See Docs.

Commissioner’s decision denying Pouyadou benefits should be AFFIRMED.2
I.

Procedural Background

On September 25, 2009, Pouyadou filed an application for DIB (R. 107-110)
and one for SSI (R. 111-113), alleging disability beginning September 1, 2006 (see R.
107, 111). His applications were initially denied. (See R. 9, 57-61.)

A hearing

was then conducted before an Administrative Law Judge on March 11, 2011 (see R.
23-46).

On June 8, 2011, the ALJ issued a decision finding Pouyadou was not

disabled (R. 9-22), and he sought review from the Appeals Council. The Appeals
Council issued its decision declining to review the ALJ’s determination on February
12, 2013 (see R. 1-4)—making the ALJ’s determination the Commissioner’s final
decision for purposes of judicial review, see 20 C.F.R. § 404.981—and a complaint
was filed in this Court on April 18, 2013 (see Doc. 1).
II.

Standard of Review and Claim on Appeal

In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work. Jones v. Bowen, 810 F.2d 1001,
1005 (11th Cir. 1986). In evaluating whether the plaintiff has met this burden, the
examiner must consider the following four factors: (1) objective medical facts and
clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4)
the plaintiff’s age, education, and work history. Id. Once the plaintiff meets this
Any appeal taken from this memorandum opinion and order and judgment
shall be made to the Eleventh Circuit Court of Appeals. (See Docs. 15, 17 (“An appeal from
a judgment entered by a Magistrate Judge shall be taken directly to the United States Court
of Appeals for this judicial circuit in the same manner as an appeal from any other judgment
of this district court.”).)
2

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burden, it then becomes the Commissioner’s burden to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Sryock
v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Although at the fourth step “the
[plaintiff] bears the burden of demonstrating the inability to return to [his or] her
past relevant work, the Commissioner of Social Security has an obligation to develop
a full and fair record.”

Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)

(citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny
plaintiff benefits is supported by substantial evidence.

Substantial evidence is

defined as more than a scintilla, and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Richardson v. Perales, 402
U.S. 389, 401 (1971). “In determining whether substantial evidence exists, [a court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.”

Chester v. Bowen, 792 F.2d 129, 131

(11th Cir. 1986). Courts are precluded, however, from “deciding the facts anew or
re-weighing the evidence.”

Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir.

Apr. 1, 2010) (per curiam) (citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir.
2005)).

And, “[e]ven if the evidence preponderates against the Commissioner’s

findings, [a court] must affirm if the decision reached is supported by substantial
evidence.”

Id. (citing Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155,

1158-59 (11th Cir. 2004)).
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On appeal to this Court, Pouyadou raises one issue: whether the ALJ
committed reversible error by failing to properly assess his pain?

(See generally

Doc. 12.)
III.
A.

Analysis

Standard for Assessing a Plaintiff’s Complaints of Pain and His
or Her Credibility.

It is clear that Pouyadou’s “subjective complaints of pain cannot in and of
themselves serve as conclusive evidence of disability. [Instead, t]he record must
document by medically acceptable clinical or laboratory diagnostic techniques the
existence of a medical impairment which could reasonably be expected to produce
the disabling pain.”

Petteway v. Commissioner of Soc. Sec., 353 Fed. App’x 287, 288

(11th Cir. Nov. 18, 2009) (per curiam) (quoting Chester, 792 F.2d at 132).
[In this Circuit, moreover, a] three-part “pain standard” applies when a
claimant attempts to establish disability through his own testimony of
pain or other subjective symptoms. Wilson v. Barnhart, 284 F.3d
1219, 1225 (11th Cir. 2002). The pain standard requires: (1) evidence
of an underlying medical condition, and either (2) objective medical
evidence confirming the severity of the alleged pain arising from that
condition, or (3) the objectively determined medical condition is of such
a severity it can be reasonably expected to give rise to the alleged pain.
Id.
When a claimant testifies to subjective complaints of pain, the ALJ
must clearly articulate adequate reasons for discrediting the claimant’s
allegations of disabling symptoms. Dyer, 395 F.3d at 1210. In
articulating his reasons, the ALJ need not specifically refer to every
piece of evidence, so long as the decision “is not a broad rejection which
is not enough to enable the district court or [, if necessary, the court of
appeals] to conclude that the ALJ considered [the] medical condition as
a whole.” Id. at 1210–11 (quotation omitted). A clearly articulated
credibility determination supported by substantial evidence will not be
disturbed. Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).

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Petteway, 353 Fed. App’x at 288-89 (some internal citations modified).
As to an ALJ’s credibility determination, as one court explained in the context
of discussing the three-part pain standard (first adopted in Hand v. Bowen, 793 F.2d
275 (11th Cir. 1986)), as long as “the implication [is] obvious to the reviewing court[,]
. . . the Eleventh Circuit does not require an explicit finding as to the claimant’s
credibility[.]”

Sharpe v. Astrue, No. 5:07cv74/RS-MD, 2008 WL 1805436, at *6

(N.D. Fla. Apr. 15, 2008) (citing Dyer, 395 F.3d at 1210). Moreover,
[t]he Eleventh Circuit has approved an ALJ’s reference to and
application of the standard set out in 20 C.F.R. § 404.1529 [or §
416.929], because that regulation “contains the same language
regarding the subjective pain testimony that this court interpreted
when initially establishing its three-part standard.” Wilson, 284 F.3d
at 1226. Thus, failure to cite to an Eleventh Circuit standard is not
reversible error so long as the ALJ applies the appropriate regulation.
Id.; see also Harville v. Colvin, No. 4:11–CV–3619–VEH, 2013 WL 1346565, at *6
(N.D. Ala. Mar. 29, 2013) (“If a claimant proves that he or she has an impairment
that could reasonably be expected to produce his or her alleged symptoms, then the
ALJ must evaluate the intensity and persistence of such symptoms and their affect
on his or her ability to work.

Foote, 67 F.3d at 1561. In doing so, the ALJ may

consider the nature of a claimant’s symptoms, the effectiveness of medication, a
claimant’s method of treatment, a claimant’s activities, and any conflicts between a
claimant’s statements and the rest of the evidence.

20 C.F.R. §§ 404.1529(c)(2)-(4),

416.929(c)(2)-(4). If the ALJ wishes to make a credibility determination, then the
ALJ ‘must either explicitly discredit such testimony or the implication must be so
clear as to amount to a specific credibility finding.’

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Foote, 67 F.3d at 1562 (citation

omitted).”).
B.

Application.

Here, at the fourth step of the sequential analysis, after citing §§ 404.1529
and 416.929, among other authority, the ALJ stated:
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is
an underlying medically determinable physical or mental
impairment(s)—i.e., an impairment(s) that can be shown by medically
acceptable clinical or laboratory diagnostic techniques—that could
reasonably be expected to produce the claimant’s pain or other
symptoms.
Second, once an underlying physical or mental impairment(s) that
could reasonably be expected to produce the claimant’s pain or other
symptoms has been shown, the undersigned must evaluate the
intensity, persistence, and limiting effects of the claimant’s symptoms
to determine the extent to which they limit the claimant’s functioning.
For this purpose, whenever statements about the intensity, persistence,
or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must
make a finding on the credibility of the statements based on a
consideration of the entire case record.
[Pouyadou] testified that he was not able to work due to knee problems,
hurting all the time and mental health issues. He related that he had
been diagnosed with Hepatitis C and bipolar disorder. However, he
was not seeing anyone for mental health treatment. He has been
prescribed medication through the Health Department for
management of his anxiety. He had been referred to AltaPointe for
mental health care but does not yet have an appointment. He testified
that he stopped using alcohol 7 or 8 years ago. However, his testimony
is inconsistent with the record. While the claimant’s alcohol use is not
material, it is noted that in 2009 he was still drinking. He stated that
he needs “knee caps.” He gets spasms and pain through his legs,
which occurs about once or twice a month. He is not taking anything
for pain because he is scared it will harm his liver. He spends the
majority of his day watching television and lying down.
After careful consideration of the evidence, the undersigned finds that
[Pouyadou’s] medically determinable impairments could reasonably be
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expected to cause the alleged symptoms; however, [his] statements
concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.
(R. 13-14.)

The ALJ then—she claims, “[f]or historical purpose only”—recounts

Pouyadou’s relatively extensive medical history.

(See R. 14-15.)

She also

discusses the medical opinion evidence. (See R. 15-16.)
First, it is clear that the ALJ focused on both Pouyadou’s mental health issues
and his proclaimed knee pain as reasons to discount his subjective statements
concerning his alleged symptoms. While there is no error in that, this appeal is
focused on whether the ALJ properly assessed—and then discounted—Pouyadou’s
pain testimony. As such, the Court’s review of the ALJ’s decision is constrained to
whether the ALJ clearly articulated adequate reasons for discrediting Pouyadou’s
allegations of pain—that is, whether the ALJ’s credibility determination enables this
Court to conclude that she considered Pouyadou’s medical condition as a whole.
Wrapped into this Court’s review of the ALJ’s credibility determination is, of course,
whether the reasons the ALJ articulates for rejecting Pouyadou’s allegations of,
here, knee pain are proper; if they are not proper, the ALJ’s credibility
determination cannot be supported by substantial evidence.

See, e.g., Miles v.

Astrue, Civil Action No. 05-5892, 2007 WL 764037, at *4 (E.D. Pa. Mar. 9, 2007)
(“Based on [the] record, the Court concludes that the ALJ articulated proper reasons
for rejecting plaintiff’s subjective complaints, and as such the factual findings are
supported by substantial evidence.”).
Even proper reasons must, however, also be supported by substantial
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evidence for the Court to affirm an ALJ’s credibility determination.

Compare

Campbell v. Astrue, No. 5:07cv196/RS-EMT, 2008 WL 3979499, at *7 (N.D. Fla. Aug.
22, 2008) (“Thus, the reasons articulated by the ALJ for discrediting Plaintiff’s
subjective complaints are proper, and they are based upon substantial evidence in
the record. Accordingly, the ALJ did not err in discrediting Plaintiff's allegations.
(citing Jones v. Department of Health & Human Servs., 941 F.2d 1529, 1532 (11th
Cir. 1991) (emphasis added)); Harville, 2013 WL 1346565, at *6 (“Substantial
evidence must support the reasons given for discrediting [a claimant’s] testimony.”
(citing Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987)); and Lockhart v.
Barnhart, 148 Fed. App’x 628, 629 (9th Cir. Sept. 16, 2005) (mem. op.) (“The record
establishes that the ALJ applied the proper factors set forth in 20 C.F.R. § 404.1529,
did not reject the complaint of pain solely due to a lack of objective medical evidence,
and provided several clear and convincing reasons, supported by substantial
evidence, to justify his credibility determination.

Therefore, the ALJ did not

improperly reject Lockhart’s testimony regarding the impact of her disabilities on
her ability to work.”), with Harris v. Commissioner of Soc. Sec., Civil Action No. 10–
cv–13410, 2011 WL 3440755, at *12 (E.D. Mich. June 14, 2011) (“[T]he ALJ’s
decision is flawed for[, among other,] reasons: . . . Substantial evidence does not
support the ALJ’s decision to discount Plaintiff’s statements regarding his pain.”),
report and recommendation adopted, 2011 WL 3471436 (E.D. Mich. Aug. 8, 2011).
Further, “[t]he fact that one of the stated reasons for discounting a claimant’s
credibility concerning his or her subjective complaints is improper does not render
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an ALJ’s credibility determination invalid, as long as that determination is
supported by substantial evidence in the record[.]”

Richard v. Colvin, No. 12–

5671BHS, 2013 WL 4522082, at *6 n.4 (W.D. Wash. Aug. 27, 2013) (citing
Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (credibility determination
based on, among other things, plaintiff’s “tendency to exaggerate” proper when
supported by “substantial evidence”); Bray v. Commissioner of Soc. Sec. Admin., 554
F.3d 1219, 1227 (9th Cir. 2009) (while ALJ relied on improper reason for discounting
claimant’s credibility, he presented other valid, independent bases for doing so, each
with “ample support in the record”)); see also Lankford v. Astrue, No. 1:07–cv–
01668–TAG, 2009 WL 817390, at *8 (E.D. Cal. Mar. 26, 2009) (“[E]ven if it had been
error [for the ALJ “to use ‘ordinary techniques’ in evaluating a claimant’s
credibility”] and, therefore, not a proper consideration in discounting the credibility
of Claimant’s subjective complaints, the ALJ nevertheless articulated other clear
and convincing reasons, supported by substantial evidence, for discrediting
Plaintiff’s subjective complaints of pain.” (citing Batson v. Commissioner of Soc. Sec.
Admin., 359 F.3d 1190, 1196 (9th Cir. 2004)).
Taking the ALJ’s stated reasons for discrediting Pouyadou’s pain testimony
one at a time, the Court finds that the ALJ has discredited Pouyadou’s testimony for
several proper reasons.

Those articulated proper reasons are, furthermore, all

supported by substantial evidence. E.g., Richard, 2013 WL 4522082, at *6 n.4.
Her credibility determination, accordingly, will not be disturbed, and the ALJ’s
decision will be affirmed.

Petteway, 353 Fed. App’x at 289 (“A clearly articulated
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credibility determination supported by substantial evidence will not be disturbed.”
(citing Foote, F.3d at 1562)).
•

Inconsistency of testimony regarding alcohol use. At the March

11, 2011 hearing before the ALJ, Pouyadou testified that he “stopped using alcohol
seven to eight years ago.”

(R. 32.)

And while the ALJ fails to provide a record

citation to support her assessment regarding Pouyadou’s alcohol use in 2009, it
appears that Dr. Lucille Williams, a clinical psychologist who examined Pouyadou
on November 23, 2009, reported that Pouyadou stated “he last drank ‘about eight
months ago.’”

(R. 196 (“He admits to substance abuse. ‘I guess I started drinking

when I was 20 years old. It became a problem in about 1990. I quit for ten years
and started drinking again when my dad died in 2001. I was probably drinking
some every day.’

He last drank ‘about eight months ago.’

He experienced

blackouts and withdrawal symptoms. No history of substance abuse treatment is
reported.

He smokes cigarettes.”).)

Williams diagnosed Pouyadou as alcohol

dependent in early partial remission.

Clearly, it is proper for an ALJ to consider

“any conflicts between a claimant’s statements and the rest of the evidence.”
Harville, 2013 WL 1346565, at *6; see 20 C.F.R. § 404.1529(c)(4) (“We will consider
whether there are any inconsistencies in the evidence and the extent to which there
are any conflicts between your statements and the rest of the evidence, including
your history, the signs and laboratory findings, and statements by your treating or
nontreating source or other persons about how your symptoms affect you.”); see also
Gontes v. Astrue, 913 F. Supp. 2d 913, 921 (C.D. Cal. 2012) (“Because Plaintiff’s
10

testimony conflicted with the evidence that her medical conditions only minimally
affected her ability to work and that her pain, diabetes, and asthma were
well-controlled with medication and other treatments, the ALJ properly discounted
it.” (citations omitted)); Fobian v. Astrue, No. ED CV 08–567 PJW, 2009 WL
3416219, at *3 (C.D. Cal. Oct. 18, 2009) (use of record evidence “to conclude that [a
claimant is] not truthful . . . is a valid reason to discredit a claimant’s testimony”).
Accordingly, this is a proper reason supported by substantial evidence to discredit
Pouyadou’s testimony.
•

Pouyadou “needs ‘knee caps’” comment. In describing his pain to

the ALJ at the hearing—Q: “You mentioned that you hurt all the time.

Is it

musculoskeletal type pain? Do you have something wrong with you, you have back
problems, any type . . .”—Pouyadou stated, “I need kneecaps, but I was so young,
being on my knees for 30 years laying floors, I’ve, I have burned the center of my
knees out.”

(R. 33.)

Thus, the Court is confused why the ALJ uses, without any

explanation whatsoever, “He stated that he needs ‘knee caps’” as a reason to
discredit Pouyadou’s testimony.

This statement is therefore not a proper reason

not supported by substantial evidence to discredit Pouyadou’s testimony.
•

“[S]pasms and pain through his legs[ ] occur about once or

twice a month.” Pouyadou made this admission in answer to a follow-up on his
kneecap testimony (see R. 33 (“. . . Now far as, far as the spasms, the, the pains I get
through my legs where I’ve got, where I’m totally hollering and yelling where my
wife, luckily my wife’s there most of the time, and I wrap cold tourniquets around
11

them. And it’s very, very painful where you, where you have to gnaw on a piece of
wood. [Q:] How often does that happen for you a week? [A:]

Once or twice a

month.”). The clear implication here is that Pouyadou’s pain is not always present,
and, in assessing whether to discount a claimant’s testimony, an ALJ may certainly
“consider the nature of the claimant’s symptoms[.]”

Harville, 2013 WL 1346565, at

*6; see 20 C.F.R. § 404.1529(c)(4) (“We will consider your statements about the
intensity, persistence, and limiting effects of your symptoms, and we will evaluate
your statements in relation to the objective medical evidence and other evidence, in
reaching a conclusion as to whether you are disabled.”).

As such, this is a proper

reason supported by substantial evidence to discredit Pouyadou’s testimony.
•

Failure to take “anything for pain because he is scared it will

harm his liver.” Where the record reflects a claimant’s health concerns are well
founded, as is the case here, it is improper to discount his or her pain
testimony/credibility because he or she testifies to a concern that pain medicine will
cause or contribute to, i.e., organ damage without further addressing the
claimant’s stated concern. See, e.g., Fobian, 2009 WL 3416219, at *3 (“[T]he
ALJ overlooked Plaintiff’s explanation as to why he did not use more powerful
medicine, i.e., because it was addictive and had the potential to harm his liver, which
was already at risk from hepatitis.

This was error.” (citing Carmickle v.

Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (holding ALJ
erred by rejecting credibility of witness based in part on claimant’s failure to take
more potent pain medication without addressing his claim that he chose not to
12

because of adverse side effects of medication)).
•

Pouyadou “spends the majority of his day watching television

and lying down.” Similar to the “kneecap” comment, the ALJ states, without
further explanation, “[Pouyadou] spends the majority of his day watching television
and lying down.”

(R. 13.) While an ALJ can consider “a claimant’s activities,”

Harville, 2013 WL 1346565, at *6, there is no obvious implication to this Court how
this statement properly discredits Pouyadou’s pain testimony.

Therefore, this

statement standing alone is not a proper reason supported by substantial evidence to
discredit Pouyadou’s testimony.
IV.

Conclusion

As discussed above, the ALJ articulated multiple reasons for discounting
Pouyadou’s credibility concerning his subject complaints. The Court has found that
some of these reasons are not proper. That does not, however, invalidate the ALJ’s
credibility determination.

E.g., Bray, 554 F.3d at 1227 (9th Cir. 2009). To the

contrary, the multiple proper reasons for discounting Pouyadou’s credibility, all of
which are supported by substantial evidence, necessitate a finding of no error.
Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Pouyadou benefits be AFFIRMED.
DONE and ORDERED this the 5th day of November, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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