WILLIAMS v. ASTRUE
Filing
16
ORDER re 1 Complaint filed by JOHN E WILLIAMS: Decision of the Commission denying benefits is AFFIRMED. Clerk directed to enter final judgment and close the file. Signed by MAGISTRATE JUDGE GARY R JONES on 12/17/2013. (jws)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JOHN E. WILLIAMS,
Plaintiff,
vs.
CASE NO. 1:12-cv-236-GRJ
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.
/
ORDER
Plaintiff appeals to this Court from a final decision of the Commissioner of Social
Security (the “Commissioner”) denying Plaintiff’s application for supplemental security
income (SSI). (Doc. 1.) The Commissioner has answered, and both parties have filed
briefs outlining their respective positions. (Docs. 9, 14, 15.) The parties have
consented to have the undersigned United States Magistrate Judge conduct all
proceedings in this case. (Docs. 11, 13.) For the reasons discussed below, the
Commissioner’s decision is AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff filed for SSI under Title XVI of the act on January 4, 2010, alleging
disability due to pain at the site where his right leg had been amputated below the knee
following a 1994 motor vehicle accident. (R. 143, 157, 162, 231.) His applications were
denied initially and upon reconsideration. (R. 41-42.) Plaintiff filed a timely request for
an administrative hearing and a hearing was held before an Administrative Law Judge
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the defendant in this case.
Page 2 of 13
(“ALJ”) on October 18, 2011. (R. 17-32.) On October 21, 2011, the ALJ issued a
decision finding that Plaintiff was not disabled. (R. 46-53.) The Appeals Council
denied review. (R. 1-3.) Plaintiff filed the instant complaint on October 15, 2012, and
raises one issue on appeal: whether the ALJ made an improper credibility assessment
that is contrary to the Eleventh Circuit’s pain standard. (Docs. 1, 14.)
II. STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial
evidence.2 Substantial evidence is more than a scintilla, i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.3
Where the Commissioner's decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that the evidence preponderates against
the Commissioner's decision.4 The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.5
2
See 42 U.S.C. § 405(g) (2000).
3
Foote v. Chater, 67 F.3d 1553, 1560 (11 th Cir. 1995) (citing W alden v. Schweiker, 672 F.2d
835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d
842 (1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 th Cir. 1991).
4
Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 th Cir. 1991).
5
Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 th Cir. 1992)
(holding that the court m ust scrutinize the entire record to determ ine reasonableness of factual
findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court also m ust consider
evidence detracting from evidence on which the Com m issioner relied).
Case No. 1:12-cv-236-GRJ
Page 3 of 13
However, the district court will reverse the Commissioner's decision on plenary review if
the decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law.6
The law defines disability as the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or has lasted or can be expected to last for a continuous
period of not less than twelve months.7 The impairment must be severe, making Plaintiff
unable to do her previous work, or any other substantial gainful activity which exists in
the national economy.8
The ALJ must follow five steps in evaluating a claim of disability.9 First, if a
claimant is working at a substantial gainful activity, he is not disabled.10 Second, if a
claimant does not have any impairment or combination of impairments which
significantly limit his physical or mental ability to do basic work activities, then he does
not have a severe impairment and is not disabled.11 Third, if a claimant's impairments
meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
6
Keeton v. Dep’t Health and Hum an Servs., 21 F.3d 1064, 1066 (11 th Cir. 1994).
7
42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.
will be to the 2005 version unless otherwise specified.).
8
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
9
20 C.F.R. §§ 404.1520, 416.920. The claim ant has the burden of proving the existence of
a disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 th Cir.
1991).
10
20 C.F.R. § 404.1520(b).
11
20 C.F.R. § 404.1520(c).
Case No. 1:12-cv-236-GRJ
Page 4 of 13
disabled.12 Fourth, if a claimant's impairments do not prevent him from doing past
relevant work, he is not disabled.13 Fifth, if a claimant's impairments (considering his
residual functional capacity (“RFC”), age, education, and past work) prevent him from
doing other work that exists in the national economy, then he is disabled.14
The burden of proof regarding the plaintiff’s inability to perform past relevant
work initially lies with the plaintiff.15 The burden then temporarily shifts to the
Commissioner to demonstrate that “other work” which the claimant can perform
currently exists in the national economy.16 The Commissioner may satisfy this burden
by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive
determination that a claimant is disabled or not disabled.17
However, the ALJ should
not exclusively rely on the Grids when “the claimant has a non-exertional impairment
which significantly limits his or her basic work skills or when the claimant cannot
12
20 C.F.R. § 404.1520(d).
13
20 C.F.R. § 404.1520(e).
14
20 C.F.R. § 404.1520(f).
15
W alker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987); see also Doughty v. Apfel, 245 F.
3d 1274, 1278 (11 th Cir. 2001).
16
Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:
In practice, the burden tem porarily shifts at step five to the Com m issioner. The
Com m issioner m ust produce evidence that there is other work available in
significant num bers in the national econom y that the claim ant has the capacity to
perform . In order to be considered disabled, the claim ant m ust then prove that he is
unable to perform the jobs that the Com m issioner lists. The tem porary shifting of the
burden to the Com m issioner was initiated by the courts, and is not specifically provided
for in the statutes or regulations.) (Internal citations om itted).
17
W alker, 826 F.2d at 1002 (“[T]he grids m ay com e into play once the burden has shifted to the
Com m issioner to show that the claim ant can perform other work.”).
Case No. 1:12-cv-236-GRJ
Page 5 of 13
perform a full range of employment at the appropriate level of exertion.”18 In a situation
where both exertional and non-exertional impairments are found, the ALJ is obligated to
make specific findings as to whether they preclude a wide range of employment.19
The ALJ may use the Grids as a framework to evaluate vocational factors so
long as he introduces independent evidence of the existence of jobs in the national
economy that the claimant can perform.20 Such independent evidence may be
introduced by a vocational expert’s testimony, but this is not the exclusive means of
introducing such evidence.21 Only after the Commissioner meets this burden does the
burden shift back to the claimant to show that he or she is not capable of performing
the “other work” as set forth by the Commissioner.
III. SUMMARY OF THE RECORD
A. Medical Records
Medical records from Plaintiff’s incarceration indicate that in 2008 he received
physical and psychological testing. (R. 241-54.) Aside from his right leg prosthesis,
Plaintiff had no abnormalities or musculoskeletal problems. (R. 242, 244.) Plaintiff was
required to participate in substance abuse treatment while incarcerated. (R. 254.)
Plaintiff was released from prison in January 2010, and Dr. Eftim Adhami
18
W olfe v. Chater, 86 F.3d 1072, 1077 ( 11th Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229
(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids m ay be used only when each variable on the
appropriate grid accurately describes the claim ant’s situation.”).
th
19
W alker, 826 F.2d at 1003.
20
W olfe, 86 F.3d at 1077-78.
21
See id.
Case No. 1:12-cv-236-GRJ
Page 6 of 13
performed a consultative examination on February 20, 2010. Plaintiff denied any
problems with his prosthesis. On physical exam, Plaintiff’s muscle strength was 5/5 in
all muscles, there was no muscle atrophy, no abnormal movements, and his walk was
normal with the prosthesis in place. His right leg had been amputated 17 centimeters
below the knee. The stump was generally in good condition but had a small area of
drainage and the beginning of an infection. The drainage point was also a pressure
pont. At that point in the exam, Plaintiff reported frequent infections of the stump. Dr.
Adhami’s diagnosis was right leg prosthesis with some infection of the stump;
amputation 17 centimeters below the mid-knee. (R. 231-35.) The ALJ gave Dr.
Adhami’s assessments great weight. (R. 51.)
Dr. Lance Chodosh performed a consultative examination on June 10, 2010.
Plaintiff’s stump was well healed, and he was able to ambulate in an almost normal
manner, but not very extensively. Plaintiff needed a new liner for his prosthesis but
could not afford one. Extensive standing and walking caused discomfort in his stump.
Plaintiff reported being independent in his activities of daily living. He could not walk
more than 30 minutes or stand more than 15 minutes. He could sit normally but could
not bend over well and was unable to squat. Plaintiff could lift up to 20 pounds.
On physical exam, Dr. Chodosh noted that Plaintiff’s standing balance was
normal. His gait reflected a right lower leg amputation but was almost normal. Plaintiff
could not walk on heel or toe and could not squat and rise. Dr. Chodosh assessed a
remote below-knee amputation of the right leg with fairly good functional result using a
prosthesis; and hypertension, untreated and without complications. Dr. Chodosh
Case No. 1:12-cv-236-GRJ
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opined that based on the objective evidence, Plaintiff could stand and walk
occasionally; sit; bend over somewhat; could not squat or kneel; could lift 20-30
pounds; could carry 15 pounds occasionally; could handle objects; and could see, hear,
and speak normally. (R. 255-63.) The ALJ gave Dr. Chodosh’s assessments great
weight. (R. 51.)
State agency expert Dr. Sharmistha Desai reviewed Plaintiff’s medical records
on June 15, 2010, and opined that Plaintiff could lift 50 pounds occasionally; lift 25
pounds frequently; stand and/or walk six hours in an eight-hour day; and sit about six
hours in a workday. (R. 264-71.) The ALJ gave Dr. Desai’s opinion little weight, as it
was inconsistent with the medical evidence of record. (R. 51.)
Plaintiff visited the health department on June 20, 2011, complaining of low back
pain and tenderness in his stump. He admitted to daily alcohol use of 2 quarts of beer
per day. Impressions included post traumatic right below the knee amputation;
hypertension; alcohol abuse; right stump pain due to poorly fitting prosthesis; and
clubbing of fingers. Plaintiff was referred to orthopedics for assistance with replacing
his prosthesis. Additional testing was recommended, and medication for hypertension
was prescribed. Other medications disclosed in the progress note were flexeril for low
back pain and ibuprofen. (R. 277-81.)
B. Hearing Testimony
Plaintiff testified that he has not worked since his onset date of January 4, 2010,
and has no history of alcohol or drug abuse. He does not have a driver’s license and
lives with his two uncles. He is able to cook and clean as well as bathe and dress
Case No. 1:12-cv-236-GRJ
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himself. He does not go to the store because it puts a strain on his stump. He usually
gets up at 8:00 a.m. and cleans the kitchen, vacuums, showers, and then watches
television. The pain from his right leg prosthesis is what prevents him from being able
to work full time–it hurts from his back down to his stump. His ability to stand is limited.
Plaintiff testified that he receives treatment at the health department, and they give him
medication which stops his pain and an ointment for his stump. He does not
experience any side effects from the medication.
Plaintiff estimated that in an eight-hour day, he could sit for six hours and stand
and walk for 30 minutes. He could lift and carry 20 pounds. He uses a cane because it
helps him walk better and relieves the pressure on his stump. (R. 15-32.)
C. ALJ’s Decision
The ALJ determined that Plaintiff suffered from the severe impairments of
amputation of the right leg 17 centimeters below the mid knee and hypertension. He
found that Plaintiff has the RFC to perform light work with exertional, postural, and
environmental limitations. Although Plaintiff had no past relevant work, jobs do exist in
significant numbers in the national economy that Plaintiff can perform (cashier, parking
lot attendant, ticket taker). Accordingly, the ALJ found that Plaintiff is not disabled. (R.
46-53.)
IV. DISCUSSION
Plaintiff contends the ALJ erred in evaluating Plaintiff’s pain complaints. For the
reasons discussed below, the Commissioner’s decision is due to be affirmed because
the ALJ properly evaluated Plaintiff’s credibility and pain complaints.
Case No. 1:12-cv-236-GRJ
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A claimant may establish his disability through his own testimony of pain or other
subjective symptoms. See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005);
Foote v. Chater, 67 F.3d 1553, 1560–61 (11th Cir.1995). The ALJ must consider a
claimant's testimony of pain and other subjective symptoms where the claimant meets
the Eleventh Circuit’s three-part “pain standard.” See Foote, 67 F.3d at 1560. Under
that test, evidence of an underlying medical condition must exist. Id. If that threshold is
met, then there must be either objective medical evidence that confirms the severity of
the alleged pain or symptoms arising from the underlying medical condition, or evidence
that the objectively-determined medical condition is of such a severity that it can
reasonably be expected to give rise to the alleged pain or symptoms. Id. A claimant's
subjective testimony supported by medical evidence that satisfies the pain standard is
sufficient to support a finding of disability. Id. at 1561.
If the record shows that the claimant has a medically-determinable impairment
that could reasonably be expected to produce his symptoms, the ALJ must evaluate the
intensity and persistence of the symptoms in determining how they limit the claimant's
capacity for work. 20 C.F.R. § 404.1529(c)(1). In doing so, the ALJ considers all of the
record, including the objective medical evidence, the claimant's history, and statements
of the claimant and his doctors. Id. § 404.1529(c)(1)-(2). The ALJ may consider other
factors, such as: (1) the claimant's daily activities; (2) the location, duration, frequency,
and intensity of the claimant's pain or other symptoms; (3) any precipitating and
aggravating factors; (4) the type, dosage, effectiveness, and side effects of the
claimant's medication; (5) any treatment other than medication; (6) any measures the
Case No. 1:12-cv-236-GRJ
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claimant used to relieve his pain or symptoms; and (7) other factors concerning the
claimant's functional limitations and restrictions due to his pain or symptoms. Id. §
404.1529(c)(3). The ALJ then will examine the claimant's statements regarding his
symptoms in relation to all other evidence, and consider whether there are any
inconsistencies or conflicts between those statements and the record. Id.
§ 404.1529(c)(4).
If the ALJ decides not to credit the claimant's testimony as to his subjective
symptoms, the ALJ must articulate explicit and adequate reasons for doing so or the
record must be obvious as to the credibility finding. See Foote, 67 F.3d at 1561–62.
While the ALJ does not have to cite particular phrases or formulations, broad findings
that a claimant was incredible and could work are, alone, insufficient for the Court to
conclude that the ALJ considered the claimant's medical condition as a whole. Id. at
1562. The ALJ's articulated reasons must also be supported by substantial evidence.
Jones v. Dep't of Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir.1991). The
Court will not disturb a properly articulated credibility finding that is supported by
substantial evidence. Foote, 67 F.3d at 1562. The failure to articulate reasons for
discrediting a claimant's subjective testimony, however, requires that the testimony be
accepted as true and becomes grounds for remand where credibility is critical to the
outcome of the case. Id.
In this case, the ALJ determined that Plaintiff has a medically-determinable
impairment that could reasonably be expected to produce his symptoms, and therefore
the ALJ evaluated the intensity and persistence of Plaintiff’s symptoms in determining
Case No. 1:12-cv-236-GRJ
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how they limit his capacity for work, as reflected in the records and hearing testimony.
See 20 C.F.R. § 404.1529(c)(1)-(2). The ALJ concluded that Plaintiff’s complaints were
not credible to the extent they are inconsistent with the RFC. (R. 50.) The ALJ went on
to articulate additional support for his credibility findings. After reviewing the evidence,
the ALJ evaluated Plaintiff’s complaints as follows:
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to cause
the alleged symptoms; however, the claimant’s 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. The claimant spent nine years in prison for aggravated assault
with intent to commit felony and was released on January 1, 2010 (Exhibit
3F). The claimant reported during his imprisonment that he served as an
“houseman” doing simple tasks (Exhibit 4F). Moreover, the claimant testified
that he could lift/carry 20 pounds and sit for six hours out of an eight hour
day. The claimant also testified that he did not have a history of drug or
alcohol abuse, but according to the Department of Corrections records the
claimant[‘s] “drug of choice” was cocaine and alcohol (Exhibit 3F at 13).
In terms of the claimant’s alleged medical complaints, they are not supported
by medical findings and they are contradicted by medical doctors, the
assessments of the consultative examiner, the vocational expert’s testimony,
and the claimant’s own activities, such as providing for his own personal
grooming, cooking, cleaning, vacuuming, and watching television.
(R. 50-51.)
Despite Plaintiff’s contentions, the ALJ did explain why he only partially credited
Plaintiff’s subjective complaints of disabling pain. The ALJ pointed to medical evidence
that supports his conclusions regarding Plaintiff’s credibility. See 20 C.F.R. §§
404.1529(c)(2), 416.929(c)(2). For example, the ALJ pointed out that Dr. Chodosh and
Dr. Ahami observed that Plaintiff had normal sensation throughout and five out of five
muscle strength in all muscles, including the ability to walk normally with his prosthesis
Case No. 1:12-cv-236-GRJ
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in place. (R. 231-32, 256-59.) Dr. Chodosh also opined that based only on the
objective evidence, Plaintiff could stand and walk occasionally; could sit; could bend
over somewhat; could lift 20-30 pounds; could carry 15 pounds occasionally; and could
handle object. (R. 258.)
The ALJ also considered Plaintiff’s allegations in the context of his daily
activities. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). The ALJ noted that
although Plaintiff alleged that his impairments were so debilitating as to render him
unable to work, he testified that he could lift/carry 20 pounds and sit for six hours out of
an eight hour day. He also testified to numerous activities of daily living, such as taking
care of his personal needs, cooking and cleaning. (R. 23, 49.) Further, Plaintiff
testified that his pain was well-controlled with medication, and he had no side effects.
(R. 23.) He reported in January 2010 that he was prescribed ibuprofen 600 mg and
that it stopped the aching in his stump. (R. 183.)
The ALJ also considered the inconsistencies in Plaintiff’s statements. While he
testified at the hearing that he had no history of drug or alcohol abuse (R. 20), record
evidence indicates that he had previous drug and alcohol dependency problems, and
received treatment for them while incarcerated. (R. 50-51, 231, 251, 254, 277.)
Plaintiff points to nothing specific in the medical records that undermines the
ALJ’s conclusion that his complaints regarding the intensity and persistence of his pain
were not fully credible in view of the opinions of the consultative physicians and
Plaintiff’s daily activities. On this record, the Court concludes that the ALJ properly
articulated the credibility finding, and the ALJ’s finding is supported by substantial
Case No. 1:12-cv-236-GRJ
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evidence. Foote, 67 F.3d at 1562.
V. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that the decision of
the Commission denying benefits is AFFIRMED. The clerk is directed to enter final
judgment and close the file.
DONE AND ORDERED this 17th day of December 2013.
s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge
Case No. 1:12-cv-236-GRJ
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