Hanson v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further administrative action not inconsistent with the Orders of this Court, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 6/23/2014. (clr).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTHONY L. HANSON,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 13-0443-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (Docs. 1, 12).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and enter judgment in accordance with 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73 (see Doc. 23).
waived in this action (Doc. 22).

Oral argument was

Upon consideration of the

administrative record and the memoranda of the parties, it is
ORDERED that the decision of the Commissioner be REVERSED and
that this action be REMANDED for further administrative action
not inconsistent with the Orders of this Court.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the most recent administrative hearing,
Hanson was fifty years old, had completed a high school
education (Tr. 52), and had previous work experience as a
delivery truck driver, concrete truck driver, and an automobile
parts clerk (Tr. 74).

Plaintiff alleges disability due to a

history of deep vein thrombosis (hereinafter DVT) and
degenerative changes of the right knee (Doc. 12 Fact Sheet).
Hanson filed a protective application for disability
benefits on April 28, 2010 (Tr. 167-70; see also Tr. 23).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although he could not return
to his past relevant work, there were specific light work jobs
that Plaintiff could perform (Tr. 23-31).

Hanson requested

review of the hearing decision (Tr. 18-19) by the Appeals
Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence.
that:

Specifically, Hanson alleges

(1) The ALJ did not properly consider the opinions of the

treating physicians; (2) the ALJ did not properly consider his
complaints of pain and limitation; (3) the ALJ’s residual
functional capacity (hereinafter RFC) determination is
unsupported by the evidence; and (4) the ALJ did not pose a
proper hypothetical to the Vocational Expert (hereinafter VE)
(Doc. 12).

Defendant has responded to—and denies—these claims

(Doc. 18).

The relevant evidence of record follows.

On December 23, 2008, Dr. C. H. Wilson, IV, an Orthopaedic
Surgeon, examined Hanson for recurring right knee pain; the
doctor noted that Plaintiff was in no acute distress and had
right knee range of motion (hereinafter ROM) from 0 to 85
degrees (Tr. 292-93, 350; see generally Tr. 288-95).

Hanson had

diffuse pain and mild to moderate effusion with no warmth or
redness associated with the knee joint; x-rays revealed no acute
abnormality.

Plaintiff was recommended for physical therapy

with restrictions from stooping, climbing, or prolonged
standing.

On February 20, 2009, the Orthopaedist noted that

Hanson had made good progress, having full ROM in his knee with
no effusion and minimal pain; his diagnosis was right knee
degenerative changes (Tr. 290).

Plaintiff was encouraged to

continue his knee exercises and conditioning.

On April 28,

2010, Wilson noted that ROM was 0 to 130 degrees with mild pain;

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Hanson was told to use ice on his knee (Tr. 291).

On May 28,

2010, Dr. Wilson’s notes indicate that Plaintiff’s pain had
resolved and that he had only minimal tenderness (Tr. 289).
On September 1, 2010, Dr. William Gewin, an Internist
specializing in pulmonary disease, reported that Hanson had pain
and swelling in his right leg, similar to previous episodes of
DVT (Tr. 296-99, 349).

The Doctor noted swelling, in spite of

his use of a compression stocking, but indicated that Plaintiff
was in no acute distress.

Venous Doppler studies showed right

leg compression that appeared chronic.
Records from Dr. Glenn Esses, a Vascular Surgeon, on
September 2, 2010, reveal his examination of Hanson for right
leg heaviness, pain, and swelling (Tr. 313-17, 348).

Plaintiff

was unable to wear his compression stocking because of his
symptoms.

The Doctor noted that he had been treating Hanson for

about ten years for DVT.

Hanson was admitted to Mobile

Infirmary Medical Center for five nights for recurrent pain in
the right thigh and lateral thigh region (Tr. 300-12).

Though

there was no evidence of DVT, there was evidence of chronic
debris noted throughout the right lower extremity; there was
also evidence of severe venous reflux throughout the deep veins
in the extremity (Tr. 309).
On November 4, 2010, Orthopaedic Wilson noted that Hanson’s
pain was confined to the medial joint line of the right knee;

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ROM was 0 to 130 degrees (Tr. 318-19).

Plaintiff was given a

steroid injection.
Emergency Room records from Mobile Infirmary demonstrate
that Hanson was seen on December 3, 2010, complaining of neck
pain and right upper extremity tingling following a motor
vehicle collision (Tr. 337-47).

He was in no distress and was

non-tender over the cervical spine and neck muscles; Hanson had
full ROM in both upper extremities.

There was no tenderness to

palpation of any joints or muscle group.

Plaintiff was given

some nonsteroidal pain meds and muscle relaxants.
On February 4, 2011, Hanson returned to the Emergency Room
with complaints of intermittent sharp chest pain with shortness
of breath (Tr. 322-36).

Chest x-rays revealed no active

pathology; an EKG was normal.

He was admitted to the hospital

for four nights (Tr. 371-95).

A CT scan showed no pulmonary

embolus.

Hanson was told to stop smoking (Tr. 385).

Plaintiff

was discharged in improved, but stable, condition with a guarded
prognosis; the discharge diagnosis was atypical chest pain.
On December 29, 2010, Dr. Gewin completed a clinical
assessment of pain indicating that Hanson’s pain distracted him
from adequately performing work (Tr. 320).

Gewin was unable to

assess how pain medications affected Hanson’s performance.
On January 7, 2011, Dr. Esses completed a physical
capacities evaluation indicating that Hanson was capable of

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sitting, standing, or walking for one hour each at a time and
during an eight-hour day (Tr. 321).

Hanson was capable of

lifting and carrying up to five pounds frequently and twentyfive pounds occasionally; he would have no trouble using his
hands for simple grasping, pushing and pulling of arm controls,
and fine manipulation.

Hanson was not able to use either leg

for pushing and pulling of leg controls.

Esses further

indicated that Plaintiff could occasionally bend, squat, crawl,
and reach, but could never climb.

On that same date, the Doctor

completed a pain form in which he indicated that Hanson’s pain
distracted him from adequately performing work and that
medication side effects could be expected to be severe and limit
his effectiveness because of distraction, inattention, and
drowsiness (Tr. 396).
On May 10, 2011, Plaintiff was admitted to Mobile Infirmary
for one night, through the Emergency Room, following three-tofive days of swelling and pain in his right lower leg (Tr. 35170).

The pain was mild, similar to past episodes, and

exacerbated by activity.

Hanson was noted to have normal ROM,

though there was moderate edema of the right lower extremity
with calf tenderness.

Venous Dopplers of the lower legs showed

no DVT on either side, though there was chronic debris noted
throughout the right lower extremity (Tr. 356, 370).
On December 18, 2011, Plaintiff returned to the Mobile

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Infirmary Emergency Room for pain in the right ankle and thigh
for the previous three-to-five days (Tr. 407-32).

The pain was

moderate, similar to prior episodes, and aggravated by movement;
symptoms included loss of sensation and tingling.

Hanson had

normal ROM, though there was right leg swelling with truncated
nodules in the ankle area.

There was no evidence of DVT.

Plaintiff was discharged in stable, good condition.
At the first evidentiary hearing, on October 24, 2011,
Hanson testified that he had worked though November 15, 2009
when he was laid off because there was no work for him (Tr. 5072).

He stated that he saw Dr. Gewin only rarely and Dr. Esses

only when he was having trouble with his leg, the last time
being September 2010; he had last seen his Orthopaedic in
December 2010 (Tr. 58).

Plaintiff said that his right knee

pops, hurting every day; he elevates the leg above his heart.
If the pain gets too bad, he takes Lortab.1

He has sharp pain in

his thigh most of the time that Hanson rated as seven on a tenpoint scale; elevating the leg drops the pain level to four or
five.

He has to sit for about half-a-day with his leg elevated.

He can walk no more than fifteen minutes without his knee or
legs bothering him; he can stand no longer than an hour.
Plaintiff can sit for only an hour.

Hanson testified that he

1Error! Main Document Only.Lortab is a semisynthetic narcotic

analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).

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cleans a little around the house; he does some cooking and
laundry, but nothing outside.

Plaintiff can and does drive.

At the second evidentiary hearing, on April 18, 2012,
Plaintiff testified that he had been to the hospital a week
earlier for swelling and pain in his right leg (Tr. 40-44).
Hanson stated that his leg has steadily gotten worse since 2001,
swelling up so bad that he cannot walk, sit, or drive.

For

relief, he props his leg up higher than his heart, sometimes
four-to-five hours at a time.

In between those periods, he

washes clothes or dishes if necessary.

Plaintiff testified that

on the day he went to the hospital, he had severe pain and
swelling and that this was not normal (Tr. 42).

This concludes

the review of the relevant evidence.
In bringing this action, Hanson has asserted that the ALJ
did not properly consider the opinions of the treating
physicians.

Plaintiff specifically references Drs. Esses and

Gewin (Doc. 12, pp. 21-22).

It should be noted that "although

the opinion of an examining physician is generally entitled to
more weight than the opinion of a non-examining physician, the
ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion."

Oldham v. Schweiker,

660 F.2d 1078, 1084 (5th Cir. 1981);2 see also 20 C.F.R. §

2The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

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404.1527 (2013).

In her determination, the ALJ rejected Internist Gewin’s
conclusions regarding Hanson’s pain as unsupported by his
examination notes, inconsistent with the record as a whole, and
contradicted by Plaintiff’s own testimony (Tr. 27-28).

The

Court further notes that Gewin examined Hanson only once in the
two years’ worth of medical records post-dating the asserted
disability date of November 15, 2009.

While the fact that there

was only a single exam would not invalidate his conclusions, the
lack of medical evidence to support them does.
The ALJ gave great weight to Dr. Esses’ conclusion that
Hanson was able to sit, stand, and walk, each, for an hour at a
time while giving little weight to his conclusion that an hour
each for those activities during an eight-hour period was all
that he could do (Tr. 28).

The ALJ found these latter

conclusions unsupported by the Doctor’s medical records, the
record as a whole, and Hanson’s work history and testimony.

The

Court notes that Dr. Esses, like Dr. Gewin, apparently examined
Plaintiff only once during the two years following his onset
date, though he did admit him to the hospital following that
visit.

Nevertheless, Esses’ conclusions do not have medical

support in his own notes or in this record.

The Court finds

decisions of the former Fifth Circuit rendered prior to October 1,
1981.

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substantial support for the ALJ’s rejection of Drs. Esses’ and
Gewin’s conclusions regarding Plaintiff’s pain and limitation.
Hanson next claims that the ALJ did not properly consider
his pain (Doc. 12, pp. 21-28).

The standard by which the

Plaintiff's complaints of pain are to be evaluated 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."

Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)

(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986)).

The Eleventh Circuit Court of Appeals has also held

that the determination of whether objective medical impairments
could reasonably be expected to produce the pain was a factual
question to be made by the Secretary and, therefore, "subject
only to limited review in the courts to ensure that the finding
is supported by substantial evidence."

Hand v. Heckler, 761

F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774
F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275
(11th Cir. 1986).

Furthermore, the Social Security regulations

specifically state the following:
statements about your pain or other symptoms
will not alone establish that you are

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disabled; there must be medical signs and
laboratory findings which show that you have
a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent with the medical signs and
laboratory findings), would lead to a
conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2013).
In her determination, the ALJ found that although Hanson’s
impairments caused him pain, his “statements concerning the
intensity, persistence and limiting effects of these symptoms
[were] not credible” (Tr. 27).

The ALJ went on to note that the

medical records did not support his claims of debilitating pain
as doctors noted that his pain, swelling, and edema were mild at
worst and that he retained full range of motion in his right leg
(Tr. 27).

The ALJ noted that the treatment was conservative,

relying on ice packs, leg elevation, physical therapy at home,
medication, and the use of compression stockings (Tr. 27).

The

ALJ also noted that Hanson only rarely required medical
treatment (Tr. 27).3

Furthermore, the ALJ noted that, by his own

3

The Court notes that Plaintiff makes much of the ALJ’s finding
that he only rarely sought medical care, pointing out four specific
Emergency Room treatments (Doc. 12, p. 24). The Court finds the
argument without merit, noting that one visit followed a motor vehicle
collision (Tr. 337-47), one was for chest pains (Tr. 322-26, 371-95),
while the third was for problems associated with his right leg (Tr.
351-70), and the fourth was, again, for problems associated with his

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testimony, Plaintiff indicated that he was not laid off from his
jobs for medical reasons and that he sought unemployment
payments for a period he now claims to have been disabled though
he sought work when those benefits ceased (Tr. 27-28).

Finally,

the ALJ noted that Hanson’s testimony regarding his most recent
Emergency Room visit was inconsistent as he first reported the
pain and swelling to be abnormal, though later characterizing
them as an everyday occurrence (Tr. 28).

The Court would

further note that Plaintiff testified that his pain does not
require him to take pain medication though it has been
prescribed for him.

The Court finds that the ALJ has provided

many reasons, supported by substantial evidence, for rejecting
Plaintiff’s assertions of pain.

Hanson’s claim otherwise is

without merit.
Hanson next claims that the ALJ’s RFC determination is
unsupported by the evidence (Doc. 12, pp. 3-21).

The Court

notes that the ALJ is responsible for determining a claimant’s
RFC.

20 C.F.R. § 404.1546 (2013).

That decision cannot be

based on “sit and squirm” jurisprudence.
F.2d 513, 518 (11th Cir. 1984).

Wilson v. Heckler, 734

However, the Court also notes

leg, for which no records exist. While the first two hospital visits
are not to be ignored, they do not form the basis of Hanson’s
disability claim and only seek to emphasize the ALJ’s finding that
Plaintiff only rarely sought treatment for his purported disabling
impairments. More specifically, the Court notes that there are no
treatment records from Hanson’s physicians after the examination by
Orthopaedic Wilson on November 4, 2010, nineteen months before the
ALJ’s determination.

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that the social security regulations state that Plaintiff is
responsible for providing evidence from which the ALJ can make
an RFC determination.

20 C.F.R. § 404.1545(a)(3).

In her determination, the ALJ found that Hanson had the RFC
to perform light work4
except the claimant is limited to work which
will only require the claimant to:
occasionally lift/carry 25 pounds;
frequently lift/carry 10 pounds; sit 1 hour
at a time and 6 hours during an 8-hour
workday; stand/walk 1 hour at a time and 6
hours during an 8-hour workday; never
operate foot controls with the right leg;
never climb ladders/scaffolds/ropes; never
kneel, crouch or crawl; never work around
unprotected heights or dangerous equipment;
and occasionally climb ramps/stairs.
(Tr. 26).
The Court notes that, for the most part, this RFC is
similar to the physical capacities evaluation completed by
Hanson’s treating doctor (Tr. 321) though there are some
differences.

The Court will focus, however, on Hanson’s

4“Light work involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b)
(2013).

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assertion that Dr. Esses found him able to bend and reach only
occasionally, a finding the ALJ accepted but did not include in
his findings (Doc. 12, p. 10).

The Court acknowledges the ALJ’s

acceptance of these conclusions as shown by her giving “great
weight” to that portion of Esses’ opinion (Tr. 28).
The Court finds this particularly relevant in light of
Plaintiff’s claim that the ALJ did not pose a proper
hypothetical to the VE (Doc. 12, p. 10-11; cf. Tr. 75-76).

The

Eleventh Circuit Court of Appeals has held that an ALJ's failure
to include severe impairments suffered by a claimant in a
hypothetical question to a vocational expert to be reversible
error where the ALJ relied on that expert's testimony in
reaching a disability decision.
1561 (11th Cir. 1985).

Pendley v. Heckler, 767 F.2d

More recently, in Winschel v.

Commissioner of Social Security, 631 F.3d 1176, 1181 (11th cir.
2011), the Eleventh Circuit Court of Appeals held that, after
determining that a claimant had a moderate limitation in
maintaining concentration, persistence, or pace, an ALJ had to
either determine that the limitation would not affect the
claimant’s ability to work or include that limitation as part of
the hypothetical question to the VE.

Although Hanson does not

have a moderate limitation in maintaining concentration,
persistence, or pace, the Court finds that the reasoning of
Winschel is instructive here.

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The ALJ, in examining the VE, presented a hypothetical
question encompassing the components of what would become her
finding of Hanson’s RFC (Tr. 75).

The VE responded that

although he could not perform his past previous work, there were
two light work jobs5 that Hanson would be capable of performing
(Tr. 75-76).

In her determination, the ALJ summarized the VE’s

testimony and then relied on it to find that Plaintiff was not
disabled (Tr. 30).
The problem arises in that the ALJ failed to include in the
hypothetical question Dr. Esses’ conclusion that Plaintiff was
able to reach and bend only occasionally; likewise, the ALJ did
not state that those limitations would not affect Hanson’s
ability to work as required in Winschel.

The two jobs that the

VE said that Plaintiff was capable of performing, based on the
hypothetical, were courier and school bus monitor (Tr. 30, 76).
The Court has reviewed the descriptions of those jobs, in the
Dictionary of Occupational Titles, and found the description for
courier to be as follows:
Delivers messages, telegrams,
documents, packages, and other items to
business establishments and private homes,
traveling on foot or by bicycle, motorcycle,
automobile, or public conveyance. May keep

5Plaintiff has posed an objection to a third job found by the VE

and the ALJ that Hanson could perform and though that objection may be
correct (Doc. 12, p. 20), the Court declines to address the argument
in light of the Court’s other findings.

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log of items received and delivered. May
obtain receipts or payment for articles
delivered. May service vehicle driven, such
as checking fluid levels and replenishing
fuel. May be designated according to item
delivered, as Telegram Messenger (tel. &
tel.).
See http://www.occupationalinfo.org/23/230663010.html.6

The

description for the second position, school bus monitor, is as
follows:
Monitors conduct of students on school
bus to maintain discipline and safety:
Directs loading of students on bus to
prevent congestion and unsafe conditions.
Rides school bus to prevent altercations
between students and damage to bus.
Participates in school bus safety drills.
May disembark from school bus at railroad
crossings and clear bus across tracks.
See http://www.occupationalinfo.org/37/372667042.html.
The Court notes that it is not its responsibility to fill
in the blanks when the ALJ leaves gaps in the determination.
However, a cursory review of the Dictionary may have led to the
conclusion that the ALJ’s failure to include Plaintiff’s
limitation in bending and reaching in the RFC and the
hypothetical question to have been, at most, harmless error.
However, the Court cannot reach that decision.

The Court cannot

6This description is based on Listing 230.663-010 in the

Dictionary of Occupational Titles. Though the VE and the ALJ cited
Listing 237.667-010, the Court found no such listing.

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say that the ALJ’s determination that Hanson is capable of
performing the jobs of courier and school bus monitor is
supported by substantial evidence.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is ORDERED that the action be REVERSED and

REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding what work Plaintiff can perform.

Judgment

will be entered by separate Order.
DONE this 23rd day of June, 2014.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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