Parker v. Astrue
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 AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 7/18/2012. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
CIVIL ACTION 11-0683-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 12).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 18).
argument was waived in this action (Doc. 19).
consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
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 Cir. 1983), which must be supported by substantial
Richardson v. Perales, 402 U.S. 389, 401 (1971).
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 administrative hearing, Plaintiff was
fifty-four years old, had completed two years of college
education (Tr. 173), and had previous work experience as a sheet
metal fabricator (Tr. 170).
In claiming benefits, Plaintiff
alleges disability due to pulmonary embolus, emphysema, and a
hearing impairment (Doc. 12 Fact Sheet).
The Plaintiff filed protective applications for disability
benefits and SSI on August 25, 2008 (Tr. 141-47; see also Tr.
Benefits were denied following a hearing by an
Administrative Law Judge (ALJ) who determined that although
Parker was not capable of performing his past relevant work, he
was able to perform other jobs existing in the national economy
Plaintiff requested review of the hearing decision
(Tr. 140) by the Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Parker alleges
(1) The ALJ did not properly consider his treating
physician’s opinions; (2) the ALJ improperly determined that his
hearing loss was not a severe impairment; (3) the ALJ did not
properly consider his testimony; and (4) the ALJ did not apply
the pain standard properly (Doc. 12).
Defendant has responded
to—and denies—these claims (Doc. 13).
The relevant evidence of
On July 7, 2008, Dr. Charles Lett examined Parker at the
Vaughan Regional Medical Center and noted that he was not
compliant with his medications, smoked regularly, and drank
alcohol; a CAT scan showed severe pain and a clot in the left
lower lobe with evidence of emphysema (Tr. 200-01; see generally
Radiologic results from July 8 demonstrated
mitral valve prolapse with mild mitral regurgitation, mild
tricuspid regurgitation, and mild pulmonary hypertension (Tr.
203-04); an echocardiogram produced the same results, indicating
a pulmonary embolism (Tr. 208).
A week in the hospital rendered
a diagnosis of left pulmonary thromboembolus and emphysema;
Plaintiff was advised to stop smoking (Tr. 212).
Records from the Veterans Administration from August 22-29,
2008 show that Parker admitted to drinking six or more drinks
and smoking a half-pack of cigarettes daily; he was advised to
stop both (Tr. 247-48; 220-49).
Plaintiff complained of
intermittent pain in his left chest which was eight on a tenpoint scale; he stated that he had been experiencing the pain
for a month and that the pain varied from four to nine (Tr.
Tylenol helped relieve the pain (Tr. 241).
A physical residual functional capacity (hereinafter RFC)
assessment was completed on October 23, 2008 by a non-examining
non-physician who found that Parker was capable of lifting and
carrying twenty pounds occasionally and ten pounds frequently;
it was suggested that Plaintiff could stand or walk for six
hours a day as well as sit for six hours a day (Tr. 250-57).
The Examiner found that Parker could use either foot or hand
controls on an unlimited basis; he would never be able to climb
a ladder, rope, or scaffolds.
More records from Dr. Lett show that he was told once again
on July 21, 2008 that he must stop smoking (Tr. 266; see
generally Tr. 258-86).
On December 8, 2008, it was noted that
Parker had been drinking before the examination; he was told he
must stop drinking and smoking (Tr. 259).
Records from the Central Alabama Veterans Health Care show
that, on September 29, 2008, Plaintiff underwent a hearing
evaluation during which he reported recurrent bilateral
tinnitus; test results revealed a hearing loss that was greater
than what would be expected for someone his age (Tr. 320-21; see
generally Tr. 287-321).
The hearing impairment was considered
disabling, but hearing aids were ordered for Parker (Tr. 320).
On October 20, Plaintiff complained of left chest pain, rating a
seven on a ten-point scale; he was advised to go to the
emergency room (Tr. 318-19).
On March 25, 2009, Parker was
noted to be non-compliant with his medications (Tr. 313).
April 22, Plaintiff was seen for complaints of sinus congestion
and shortness of breath with limited activity; he was diagnosed
with Chronic Obstructive Pulmonary Disease (hereinafter COPD)
and encouraged to stop smoking (Tr. 310).
On May 13, Parker was
seen after he had been spitting up sputum; Plaintiff stated that
he smoked three-to-four cigarettes a day (Tr. 308-09).
doctor’s impression was COPD and Bullous Lung Disease for which
he was referred to a thoracic surgeon.
A CT scan of the chest
revealed extensive bullous emphysema (Tr. 288).
On August 5,
2009, Plaintiff reported that he had not consumed any alcohol in
a year; he also complained of abdominal pain at a level of five
on a scale of ten (Tr. 341).
Parker was still smoking four
cigarettes a day and was advised to quit; his hypertension was
well controlled with a low salt diet (id.).
On September 2,
Plaintiff admitted that he had skipped some of his medications;
he also stated that he drank occasionally (Tr. 334).
September 23, Plaintiff was advised to quit smoking (Tr. 333);
Parker complained of chronic left shoulder pain at a level five
At the evidentiary hearing, Plaintiff testified that he was
fifty-four years old and has problems with both of his knees;
though he has braces, they are not much good (Tr. 27-30).
Parker goes to church two-or-three Sundays every month; he also
visits with family and likes to cook (Tr. 32-33).
eight cigarettes a day and has been smoking for thirty years
Parker takes medication for his stomach, allergies,
and breathing; he also uses an inhaler (Tr. 33-35).
medication side effects.
He has no
Plaintiff has chest pain, which feels
like gas, sometimes, four times a week; it can last up to three
hours (Tr. 35-37).
If he does not take his medication, the pain
can be eight on a scale of ten; with medicine, it reaches five
Over time, the pain has gotten worse (Tr. 38).
can dress himself, though he has some balance problems; he can
bathe himself (Tr. 38-39).
Parker can vacuum a little, but
tries not to because of the dust (Tr. 40).
He has a veteran’s
disability for his legs (Tr. 45); he has worked as a sheet metal
fabricator and in the tree-cutting business (Tr. 46-47).
Plaintiff said that he could lift as much as twenty pounds and
stand for forty-five minutes; to walk 150 yards, he has to stop
and rest twice, taking about thirty minutes because of his
breathing (Tr. 48-49).
Parker can sit for forty-five minutes
He has problems gripping with his left hand;
kneeling, crawling, and climbing a ladder causes problems (Tr.
Hot and cold weather cause breathing problems; gas,
fumes, odors, and dust cause problems as well (Tr. 53).
has to take ten-to-fifteen minute breaks when he works, does
chores around the house, or cooks (Tr. 54-57).
He has been
working part-time, working three or four days each week (Tr. 5859).
In his decision, the ALJ determined that Parker had the RFC
to perform light work except that he could “never climb and he
must avoid heat, wetness, fumes, odors, dust, gases, poor
ventilation, and dangerous machinery” (Tr. 13).
The ALJ found
that Plaintiff’s testimony regarding his impairments and
limitations was not credible (Tr. 14).
In bringing this action, Parker alleges that the ALJ did
not properly consider his treating physician’s opinions.
specifically, Plaintiff asserts that the ALJ “impermissibly
found that Mr. Parker’s treating physician’s silence, regarding
his RFC, disqualified him from disability” (Doc. 12, pp. 15-17).
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
Oldham v. Schweiker, 660 F.2d 1078, 1084
(5th Cir. 1981);1 see also 20 C.F.R. § 404.1527 (2011).
Court further notes Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.
1988), in which the Eleventh Circuit Court of Appeals held that
a physician’s silence regarding a patient’s ability to work did
not mean that the patient was capable of performing that work.
In the written decision, the ALJ stated the following:
The medical evidence clearly
establishes that claimant has severe
problems with his lung, but there is nothing
in the medical evidence that even suggests
The Eleventh Circuit, in the en banc decision Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
that claimant is unable to work. None of
claimant’s treating physicians opined as to
claimant’s ability to work or his residual
functional capacity; and based on the
evidence in the record, claimant’s symptoms
improve when he is taking medication.
Later in the opinion, the ALJ stated that “[n]one of
claimant’s treating physicians stated that he was unable to
perform light work, and based on the fact claimant is currently
working part-time, I find that claimant has the residual
functional capacity to perform light work” (Tr. 16).
The Court is aware of Lamb but finds it inapplicable here.
In two different instances, the ALJ stated that Plaintiff’s
physicians had not given an opinion as to Parker’s ability to
work (Tr. 15-16).
These are statements of fact.
The ALJ goes
on to reach the legal conclusion that Plaintiff was capable of
performing a reduced range of light work.
The Court finds
substantial evidence for that conclusion in this record.
extent that the ALJ has committed error, it is, at most,
Parker next claims that the ALJ improperly determined that
his hearing loss was not a severe impairment (Doc. 12, pp. 1315).
In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984),
the Eleventh Circuit Court of Appeals held that "[a]n impairment
can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual
that it would not be expected to interfere with the individual's
ability to work, irrespective of age, education, or work
Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.
1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf. 20
C.F.R. § 404.1521(a) (2011).2
The Court of Appeals has gone on
to say that "[t]he 'severity' of a medically ascertained
disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality."
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
It is also
noted that, under SSR 96-3p, “evidence about the functionally
limiting effects of an individual’s impairment(s) must be
evaluated in order to assess the effect of the impairment(s) on
the individual’s ability to do basic work activities.”
In his decision, the ALJ determined that Plaintiff had a
non-severe impairment, noting that he had been diagnosed to have
sensorineural hearing loss (Tr. 13).
The ALJ went on to
specifically find that Parker’s “hearing loss is greater than
"An impairment or combination of impairments is not severe if
it does not significantly limit your physical or mental ability to do
basic work activities."
normal and disabling without the use of hearing aids .
there is evidence that supports the fact that claimant has
problems with his hearing, there is no evidence that claimant’s
hearing problems cause any functional limitations” (Tr. 13).
The Court notes that Plaintiff did not initially claim
disability based on a hearing loss (Tr. (Tr. 169); likewise, in
a form completed for the Social Security Administration in
seeking benefits, Parker did not check hearing as one of his
problems, though he did note that he had hearing aids (Tr. 16566).
The Court further notes that Plaintiff made no mention of
having a hearing loss at the evidentiary hearing (Tr. 27-59).
Finally, the Court notes that there is no evidence that, with
the hearing aids, Parker suffers any hearing dysfunction; he has
certainly not shown that his hearing limits his ability to
The Court finds no merit in Plaintiff’s claim that
the ALJ improperly classified his hearing loss as a non-severe
Parker next claims that the ALJ did not properly consider
his testimony (Doc. 12, pp. 9-13).
More specifically, Plaintiff
asserts that the “ALJ failed to properly consider Mr. Parker’s
credibility by impermissibly finding that (1) Mr. Parker’s
participation in part time work disqualifies him from disability
and (2) Mr. Parker’s alleged noncompliance with prescribed
treatment disqualified him from disability”3 (Doc. 12, p. 10).
The Court notes that Plaintiff testified that the last time
he was working he “worked 24, 32 hours – I would say it probably
averaged about four days a week sometime and three days
sometime” (Tr. 59).
The ALJ’s remarks regarding this testimony
was that Parker was “working part-time (three-to-four days) as a
sheet metal shop helper.
Claimant’s job duties include greasing
machines and picking up scraps of metal (Hearing Testimony).
Claimant’s current part-time work is considered light work and
thus consistent with his residual functional capacity (Hearing
Testimony)” (Tr. 16).
The ALJ went on to find that Plaintiff
was able to perform a reduced range of light work.
Parker has argued that his working three-to-four days a
week does not indicate that he can work full-time as the ALJ has
The Court finds that the ALJ only used the fact that
Plaintiff was working three-to-four full days a week as part of
the evidence to consider whether he can work.
found that Plaintiff could perform a reduced range of light
work; Parker does not directly challenge that finding in this
The Court is unsure that these sub-claims are true credibility
issues; however, as they are raised as such by Plaintiff and defended
as such by the Government, the Court will address them here.
The Court finds no error in the ALJ’s consideration of
Plaintiff’s testimony that he works part-time.
Parker also challenges the ALJ’s considering his “alleged
noncompliance with prescribed treatment” as a factor in finding
The ALJ found that Plaintiff “has been
repeatedly advised to quit smoking and drinking because of the
negative impact it has on claimant’s health and, as of the date
of the hearing, claimant has failed to do so” (Tr. 16).
Plaintiff suffers from pulmonary embolus and emphysema.
continues to smoke in spite of being told by every physician
that he needs to quit.
The Social Security regulations state
that “[i]n order to get benefits, you must follow treatment
prescribed by your physician if this treatment can restore your
ability to work.”
20 C.F.R. 404.1530(a) (2011).
goes on to state that “[i]f you do not follow the prescribed
treatment without a good reason, we will not find you disabled
or, if you are already receiving benefits, we will stop paying
20 C.F.R. § 404.1530(b) (2011); see also Dawkins
v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
that the ALJ improperly found him non-credible because of his
smoking is without merit.
Finally, Plaintiff asserts that
the ALJ did not apply the
pain standard properly (Doc. 12, pp. 7-9).
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
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)
(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
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
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) (2011).
The ALJ correctly referenced the pain standard before
determining that Parker’s testimony about his pain was not
credible (Tr. 13-14).
The ALJ specifically noted the following:
“Claimant testified that his pain is at a level of seven or
eight on a scale of one to ten without medication; however, when
he is taking medication that pain level decreases to a four or
five (Hearing Testimony; Exhibit B2F)” (Tr. 15).
The Court finds that although Plaintiff has evidence of an
underlying medical condition, he has not satisfied either of the
other two prongs of the pain analysis.
The medical records show
that he has never taken anything other than over-the-counter
medications for his pain.
Furthermore, though the medical
evidence demonstrates that Parker has complained of pain on
numerous occasions, no doctors have ever confirmed that
Plaintiff experiences pain at the intensity and with the
The Court only found one instance where
medical records confirmed severe pain (Tr. 201).
claim that the ALJ did not properly consider his complaints of
pain is without merit.
Plaintiff has raised four different claims in bringing this
action; all are without merit.
Upon consideration of the entire
record, the Court finds "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.
Therefore, it is ORDERED that the
Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
F.2d 947, 950 (5th Cir. 1980), and that this action be
Judgment will be entered by separate Order.
DONE this 18th day of July, 2012.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?