Jordan v. Astrue

Filing 16

ORDER affirming the decision of the Commissioner. Ordered by US Mag Judge Stephen Hyles on 2/21/12. (lws)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
LINTON JORDAN JR.,

*

Claimant,

*

v.

*

CASE NO. 3:11-CV-69 MSH

MICHAEL J. ASTRUE, Commissioner *
Of Social Security,
*
Respondent.

Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law Judge=s
(ALJ=s) determination, denied Claimant=s applications for disability insurance benefits and
supplemental security income, finding that he was not disabled within the meaning of the
Social Security Act and Regulations. Claimant contends that the Commissioner=s decision
was in error and seeks review under the relevant provisions of 42 U.S.C. ' 405(g) and 42
U.S.C. ' 1383(c). All administrative remedies have been exhausted. Both parties have filed
their written consents for all proceedings to be conducted by the United States Magistrate
Judge, including the entry of a final judgment directly appealable to the Eleventh Circuit
Court of Appeals pursuant to 28 U.S.C. ' 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner=s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards were
applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam). “Substantial
evidence is something more than a mere scintilla, but less than a preponderance. If the

Commissioner's decision is supported by substantial evidence, this court must affirm, even if
the proof preponderates against it.” Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th Cir. 2005)
(internal quotation marks omitted). The court’s role in reviewing claims brought under the
Social Security Act is a narrow one. The court may neither decide facts, re-weigh evidence,
nor substitute its judgment for that of the Commissioner.1 Moore v. Barnhart, 405 F. 3d
1208, 1211 (11th Cir. 2005). It must, however, decide if the Commissioner applied the
proper standards in reaching a decision. Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980)
(per curiam). The court must scrutinize the entire record to determine the reasonableness of
the Commissioner=s factual findings. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). However, even if the evidence preponderates against the Commissioner=s decision, it
must be affirmed if substantial evidence supports it. Id.
The initial burden of establishing disability is on the claimant.

Kirkland v.

Weinberger, 480 F.2d 46, 48 (5th Cir. 1973) (per curiam). The claimant’s burden is a heavy
one and is so stringent that it has been described as bordering on the unrealistic. Oldham v.
Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).

A claimant seeking Social Security

disability benefits must demonstrate that she suffers from an impairment that prevents her
from engaging in any substantial gainful activity for a twelve-month period. 42 U.S.C. '
423(d)(1). In addition to meeting the requirements of these statutes, in order to be eligible for
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Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986)
(per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).

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disability payments, a claimant must meet the requirements of the Commissioner=s
regulations promulgated pursuant to the authority given in the Social Security Act. 20 C.F.R.
' 404.1 et seq.
Under the regulations, the Commissioner uses a five-step procedure to determine if a
claimant is disabled. 20 C.F.R. ' 404.1520, app. 1, pt. 404. First, the Commissioner
determines whether the claimant is working. If not, the Commissioner determines whether
the claimant has an impairment which prevents the performance of basic work activities.
Second, the Commissioner determines the severity of the claimant=s impairment or
combination of impairments. Next, the Commissioner determines whether the claimant=s
severe impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
regulations (the AListing@). Fourth, the Commissioner determines whether the claimant=s
residual functional capacity can meet the physical and mental demands of past work. Finally,
the Commissioner determines whether the claimant=s residual functional capacity, age,
education, and past work experience prevent the performance of any other work. In arriving
at a decision, the Commissioner must consider the combined effects of all of the alleged
impairments, without regard to whether each, if considered separately, would be disabling.
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984). The Commissioner=s failure to apply
correct legal standards to the evidence is grounds for reversal. Id.
ISSUES
I.
Whether the ALJ erred in failing to compose a complete hypothetical question
to the Vocational Expert.
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II.

Whether the ALJ erred in failing to issue a credibility finding in compliance
with Eleventh Circuit law.
Administrative Proceedings
Claimant protectively filed his current applications for disability, Disability Insurance

Benefits (DIB), and Supplemental Security Income (SSI) on May 10, 2005. (Cl.’s Br. 1, ECF
No. 12.) Claimant alleges a disability onset date of April 16, 2004. (Tr. 15, ECF No. 11.) In
his application, Claimant listed torn rotator cuff and a neck injury as his disabling
impairments. (Tr. 103.) His applications were denied initially and upon reconsideration.
After an administrative hearing on August 14, 2008, the ALJ found Claimant was not
disabled in a decision dated September 30, 2008.

(Tr. 15-21.)

The Appeals Council

thereafter denied Claimant=s request for review. (Tr. 5-7), and this appeal followed.
Statement of Facts and Evidence
Following the hearing in this case, the ALJ concluded that Claimant had the severe
impairments of right shoulder and neck pain and status post rotator cuff tear and surgery, but
that none of these impairments, nor any combination of impairments, met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 21.)
The ALJ next found that Claimant had the residual functional capacity (ARFC@) to perform
sedentary work, except that he would be unable to use his right arm and must keep it still.
(Tr. 18.) Since the ALJ found that Claimant could not perform past relevant work, he
determined that transferability of job skills was not an issue. (Tr. 19.) The ALJ then
determined that Claimant was a younger individual on the date that the application was filed,
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with at least a high school education, who could communicate in English. (Id.)

Considering

the Claimant=s age, education, work experience, and RFC, the ALJ found that jobs existed in
significant numbers in the national economy that Claimant could perform. (Id.) Thus, the
ALJ concluded that Claimant was not disabled within the meaning of the Social Security Act.
(Tr. 19.)
DISCUSSION
I.

Whether the ALJ composed a complete hypothetical question to the
Vocational Expert.
The first issue for determination in this case is whether the ALJ erred in failing to

compose a complete hypothetical question to the Vocational Expert (“VE”).

(Cl.’s Br. 3;

ECF No. 12.) Specifically, Claimant argues that in posing hypothetical questions to the VE,
the ALJ failed to address his inability to use his right arm and his need to keep it still;
limitations that were found to exist by the ALJ when he determined Claimant’s RFC. (Id.)
It is the law of this circuit that hypothetical questions posed to a vocational expert
must contain adequate assumptions or the answers given cannot constitute substantial
evidence of ability to engage in substantial gainful activity. Stubbs v. Mathews, 544 F.2d
1251, 1256-57 (5th Cir. 1977). See also Freeman v. Schweiker, 681 F.2d 727, 730 (11th Cir.
1982); Brenem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980). In order for a vocational
expert’s testimony in response to this question to constitute substantial evidence on which the
ALJ may rely, the question must comprise all of the claimant’s impairments. Vega v. Comm'r
of Soc. Sec., 265 F.3d 1214, 1220 (11th Cir. 2001). The ALJ is not required to include in the
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question claims of impairment that he has found unsupported. Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Claimant contends that the ALJ committed reversible error where the hypothetical
question he asked of the vocational expert did not include the fact that he would not be able to
use his right hand. (Cl.’s Br. 4). A review of the relevant testimony reveals that Claimant
was extensively questioned by the ALJ and his attorney regarding the use of his right arm.
(Tr. 310-18.)

The VE then asked the ALJ’s permission to question Claimant, asking what

issues Claimant would have if he could sit down and keep his right arm still; i.e. not have to
manipulate his right arm. (Tr. 319.) Claimant responded that he when he sits too long, it
feels like a weight on his neck and arm and that he would have to get up and stretch it. (Id.)
The ALJ then began to question the VE, first asking what Claimant’s previous work entailed
and what sedentary jobs would be available in the region where Claimant lives. (Tr. 320a.)
The VE then described several positions that Claimant could perform, and stated that he
“limited these jobs because they’re -- they’d be actually they’d be performed with less than
full use of both arms. . .” (Tr. 320b.) Later, he stated that “one other job that I would have
listed would be a bench and table worker’s job which is sedentary and unskilled. There are a
large number of those … but they require the use -- repetitive use of both hands and arms.
(Id.) The ALJ then asked if two jobs that the VE had described- surveillance monitor and
cashier- involved any lifting, to which the VE answered in the negative, except that the
cashier position would involve counting out bills or making change. The ALJ asked if the
upper arm restrictions that Claimant testified to would preclude the two jobs, and the VE
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responded that as long as the Claimant had use of one arm, there might be movement needed
with the other arm, but no lifting, gripping or substantial reaching would be required. (Tr.
321.)
In this case, any failure of the ALJ to specifically include the restriction of Claimant’s
right arm in his questions to the VE is found to be harmless error. At the hearing it is more
than apparent that the jobs cited by the VE following the questioning of the Claimant
included his right arm limitations. The record reflects that in his consideration of jobs that
the Claimant could perform, the VE specifically eliminated two jobs expressly based on his
opinion of the limited use of Claimant’s right arm. Furthermore, Claimant was represented
by counsel at the hearing who could have objected to the ALJ’s questions at any time or
further developed the issue by questioning the Claimant or VE as to the right arm limitations.
It is clear that the jobs listed in response to the ALJ’s questions included the limitation
that Claimant could not use his right arm. Thus, this claim lacks merit and the ALJ’s decision
is based on substantial evidence.
II.

Whether the ALJ erred in determining Claimant’s credibility.
Claimant next argues that the ALJ failed to make a determination of his credibility that

was in compliance with Eleventh Circuit law. (Cl.’s Br. 6.) Particularly, the Claimant argues
that the ALJ failed to comply with the ruling in Holt v. Sullivan, 921 F. 2d 1221, 1223 (11th
Cir. 1991) in assessing his subjective allegations of right arm and shoulder pain. (Id.)
The Eleventh Circuit has held that in order for a claimant’s subjectively alleged pain to
be deemed credible by the ALJ, he must first show “evidence of an underlying medical
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condition and (1) objective medical evidence that confirms the severity of the alleged pain
arising from that condition or (2) that the objectively determined medical condition is of such
severity that it can reasonably be expected to give rise to the alleged pain.” Holt, at 1223.
The Eleventh Circuit has also held that:
[W]here proof of a disability is based upon subjective evidence and a credibility
determination is, therefore, a critical factor in the Secretary’s decision, the ALJ
must either explicitly discredit such testimony or the implication must be so
clear as to a specific credibility finding. . . . Although this circuit does not
require an explicit finding as to credibility, . . the implication must be obvious
to the reviewing court.
Foote v. Chater, 67 F. 3d 1553, 1562 (11th Cir. 1995); quoting Tieniber v. Heckler, 720 F.2d
1251, 1255 (11th Cir. 1983). Social Security Regulation 96-7p states in relevant part, that:
In determining the credibility of the individual’s statements, the adjudicator
must consider the entire case record, including the objective medical evidence,
the individual’s own statements about symptoms, statements and other
information provided by treating or examining physicians or psychologists and
other persons about the symptoms and how they affect the individual, and any
other relevant evidence in the case record. An individual’s statements about the
intensity and persistence of pain or other symptoms or about the effect the
symptoms have on his or her ability to work may not be disregarded solely
because they are not substantiated by objective medical evidence.
Additionally, 20 C.F.R. § 416.929(a), in relevant part, states that:
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.

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In his Findings in this case, the ALJ discussed Claimant’s medical history and cited to
medical evidence regarding the Claimant’s allegations of the severity of his pain. (Tr. 18-19.)
The ALJ also referenced the pain standard. Id. The ALJ acknowledged the requirements and
procedures he must follow in assessing Claimant’s residual functional capacity, making
specific reference to 20 C.F.R. § 404.1529 and Social Security Rulings 96-4p and 96-7p, as
well as 20 C.F.R. § 416.927 and Social Security Rulings 96-2p, 96-5p and 96-6p. Id. The
record reveals that the ALJ considered Claimant’s testimony, medical evidence provided by
the Claimant, along with his functional restrictions, to find that his allegations of pain were
less than credible, and that the medical evidence of record did not support the severity
alleged. Id.
In evaluating credibility, “[b]ased on a consideration of all of the evidence in the case
record, the adjudicator may find all, only some, or none of an individual’s allegations to be
credible.” SSR 96-7p. A limitation cannot be established solely by a claimant’s own report.
See 20 C.F.R. § 416.928(a). The record must contain medical evidence, in the form of
observable abnormalities or laboratory findings, that “shows the existence of a medical
impairment(s) . . . which could reasonably be expected to produce” the alleged limitation. Id.
Furthermore, the ALJ must “clearly articulate explicit and adequate reasons for discrediting
the claimant's allegations of completely disabling symptoms.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (quotations and citations omitted). While “[t]he credibility
determination does not need to cite particular phrases or formulations,” it must sufficiently

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indicate that the ALJ considered the claimant’s medical condition as a whole. Id. (quotations
and citations omitted).
Applying the Holt test to this Claimant’s pain allegations, the Court concludes that he
failed to overcome the Findings of the ALJ by establishing either that the medical evidence
confirmed the severity of his pain or that his medical condition was so severe as to reflect the
alleged pain. It is further found that the ALJ’s credibility determination was in compliance
with prevailing Eleventh Circuit law. As noted above, the court may not decide facts, reweigh evidence, nor substitute its judgment for that of the Commissioner, but must decide if
the Commissioner applied the proper standards in reaching a decision. Here, the ALJ applied
the proper pain standard and supported his credibility assessment with substantial evidence in
the record.
CONCLUSION
WHEREFORE, it is hereby ordered that the decision of the Commissioner be
AFFIRMED.
THIS the 31st day of January, 2012.

S/Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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