KATHERINE P. NELSON, Magistrate Judge.
In this action under 42 U.S.C. § 405(g) Plaintiff, Willie James Caffey, Jr., ("Caffey" or "Plaintiff") seeks judicial review of an adverse social security ruling denying disability insurance benefits. (Docs. 1, 16). With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 22, 23). The parties moved to waive oral argument and their request was granted. (See Docs. 21, 24). After considering the administrative record and the memoranda of the parties, it is
Plaintiff protectively applied for disability insurance benefits on May 20, 2013. (Doc. 16 at 1; Tr. 1301-38). Plaintiff alleged a disability onset date of November 3, 2012. (Tr. at 18; 73). Plaintiff's application was initially denied on July 5, 2013, after which he requested a hearing. (Doc. 16 at 1; Tr. 82-86, 89-93). Plaintiff attended a video hearing before an Administrative Law Judge ("ALJ") on August 13, 2014, and the ALJ rendered an unfavorable decision on December 24, 2014. (Doc. 16 at 1; Tr. at 12-70).
At the time of his application, Plaintiff was forty years old, had completed the twelfth grade plus one year of trade school, and had previous work history as a shipping supervisor, shipping and receiving clerk, and warehouse worker. (Doc. 15; Tr. at 55). Plaintiff alleges he is disabled due to left clavicle fracture, left rotator cuff repair, essential hypertension, degenerative joint disease, tendinosis, chronic severe pain, depression, right arm and shoulder pain, numbness in hands, side effects of medications, neck pain, and back pain. (Doc. 15). On December 24, 2014, an ALJ denied benefits after determining that Plaintiff was capable of performing a limited range of light work. (Tr. at 19-27). Plaintiff requested review of the hearing decision, but the Appeals Council denied the request on May 24, 2016. (Id. at 1-9). On July 22, 2016, Plaintiff filed the instant action asserting three grounds for error. (Doc. 1; Doc. 16). The issues have been briefed and are ripe for review. (Docs. 16, 19).
"In Social Security appeals, [the Court] must determine whether the Commissioner's decision is `"supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." "`Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the Court "`may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].' "Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). "`Even if the evidence preponderates against the [Commissioner]'s factual findings, we must affirm if the decision reached is supported by substantial evidence.'" Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
"Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [The court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]" Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) ("We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts."). "In determining whether substantial evidence exists, [a court] must...tak[e] into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the "claimant 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). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) ("It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim." (citations omitted)). "This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole." Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council denied review of that decision, the Court "review[s] the ALJ's decision as the Commissioner's final decision." Doughty, 245 F.3d at 1278. "[W]hen the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).
At step two of the sequential process, the ALJ found that Plaintiff had the following severe impairments: "status post osteotomy of left clavicular malunion; open reduction and internal fixation of left clavicle with bone grafting (1/25/13) with revision of open reduction and internal fixation of clavicle nonunion with additional bone grafting (4/18/14), and osteoarthritis (20 CFR 404.1520(c))." (Tr. at 17). At step three, the ALJ found that "[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR, 4104.1520(c), 404.1525 and 404.1526)." (Id. at 18). The ALJ then determined Plaintiff's Residual Functional Capacity ("RFC") as follows:
(Tr. at 19). With the help of a vocational expert, the ALJ then determined, at step five, that Plaintiff was capable of performing his past relevant work as a shipping supervisor as generally performed, but not as actually performed. (Tr. at 26). The ALJ additionally determined that Plaintiff was capable of performing other jobs which existed in the national economy and that Plaintiff was not disabled. (Id. at 26-27).
Plaintiff asserts the following grounds for error: (1) the ALJ's determination that Plaintiff can return to his past relevant work is not supported by substantial evidence, (2) the ALJ erred in not including a statement of Plaintiff's pain and its functional effects and erred in assessing Plaintiff's credibility; and (3) the ALJ was biased, incapable of conducting a non-adversarial hearing, and should have recused himself. (Doc. 16 at 1-2). Defendant contends the ALJ's decision was based on substantial evidence, that the ALJ properly assessed Plaintiff's pain, and that recusal was unwarranted. (Doc. 19, generally). The undersigned will address each contention of error in turn.
Plaintiff asserts that the ALJ erred in determining that Plaintiff could return to his previous position as a shipping supervisor because Plaintiff's previous job was a composite job (warehouse worker, shipping and receiving clerk, and shipping supervisor) that required additional physical abilities which the ALJ did not properly consider. In support of his position, Plaintiff points to the description of his job that he provided in his application which stated as follows:
(Doc. 16 at 2). Based on the above physical requirements, Plaintiff asserts that substantial evidence does not support that Plaintiff could return to his previous work.
As an initial matter, Plaintiff does not allege that the RFC determined by the ALJ is not supported by substantial evidence. Rather, Plaintiff alleges that after determining his RFC, the ALJ improperly considered Plaintiff's past relevant work of a shipping supervisor as light work and, therefore, improperly determined that Plaintiff could to return to that position based on his RFC. However, Plaintiff does not address the fact that while the ALJ determined Plaintiff could return to his previous position, he specifically noted that such a return would be based on the job as generally performed, not as Plaintiff performed it. (Tr. at 26) ("The vocational expert testified that the claimant could perform work as a Shipping supervisor per the DOT but not per his testimony. As noted above, the DOT indicates that this work activity is performance of work activity at the light exertional level. Accordingly, although the claimant may not be able to perform work as a Shipping supervisor as actually performed, the claimant would be able to perform past relevant work as Shipping supervisor as generally performed.") The record is clear that the ALJ properly evaluated the exertional demands of Plaintiff's past work based on Plaintiff's testimony and acknowledged that Plaintiff performed his previous job at a medium level, and not the light level that the RFC dictated. Therefore, Plaintiff's position that the ALJ erred by failing to consider all of the physical duties of Plaintiff's composite job, when determining that Plaintiff could return to his past relevant work as a shipping supervisor, is without merit. Namely, because the ALJ did not determine that Plaintiff could return to his previous job as it was performed by Plaintiff or that his previous work, as performed, was at the light exertional level. Further, there is no evidence that the ALJ erred in determining that Plaintiff could return to his previous position as a shipping supervisor, as it was generally performed.
Plaintiff's second assignment of error is that the ALJ erred in not including a statement of Plaintiff's pain and its functional effects and that he improperly assessed Plaintiff's credibility. (Doc. 16 at 4). Plaintiff asserts that the ALJ erroneously cherry-picked small portions of Dr. King's (Plaintiff's treating physician) deposition testimony to discredit Plaintiff. (Doc. 16 at 4). In support of his position, Plaintiff refers to the testimony of Dr. King, wherein Dr. King explained that "there's going to be periods of time, several days out of the month or whatever, where he may have issues with that and not be able to complete that task [...] Because of pain related to the shoulder, sure." (Doc. 16 at 4; Tr. 495). Plaintiff also asserts that another portion of Dr. King's testimony, contrary to the ALJ opinion, makes it clear that Dr. King was not confused about the exertional level of Plaintiff's work and still opined that Plaintiff would not likely be able to sustain his previous work. (Id.) Lastly, Plaintiff contends that ALJ did not consider the correct pain standards when assessing Plaintiff's subjective complaints of pain. (Doc. 16 at 5).
After summarizing Plaintiff's Disability Reports and Function Report and Plaintiff's testimony at the hearing the ALJ found "Claimant's allegations and testimony of disabling pain and functional restrictions disproportionate to the objective medical evidence". (Tr. at 20). Specifically, the ALJ stated that the record did not contain objective signs and findings that could reasonably be expected to produce the degree and intensity of pain and limitations alleged and the physical findings did not establish the existence of deficits usually associated with protracted pain of the intensity, frequency, and severity alleged. (Id.) The ALJ summarized Plaintiff's medical records, including Dr. King's records, and stated as follows:
(Tr. at 22-23). The ALJ went on to point out that Plaintiff's testimony that he had significant physical limitations was given just twelve days after Dr. King's testimony wherein "he allowed Claimant to resume normal activities without restriction." (Id. at 23). As a result, the ALJ found Plaintiff's testimony to be less than credible. The ALJ also stated that Plaintiff's testimony relating to his daily living activities was not strong evidence in favor of disability because "allegedly limited daily activities cannot be objectively verified" and even if the alleged limitations were valid, "it is difficult to attribute that degree of limitation to Claimant's medical condition, as opposed to other reasons, in view of the relatively weak medical evidence. . .". (Tr. at 25).
Further, the ALJ discredited Dr. King's vocational opinions because Dr. King was not a vocational expert and because vocational findings are reserved for the Commissioner. (Id. at 23-24). Lastly, the ALJ addressed Dr. King's testimony relating to Plaintiff's ability to return to his past work (referred to by Plaintiff) and explained that such testimony was based on "leading questions from Claimant's counsel . . . [who] . . . mischaracterized [Plaintiff's] vocational profile by ineloquently describing him as `. . . a heavy laborer, he does, you know, heavy lifting, or whatever, that's what he's trained to do, so that's what he does (Exhibit 10F at 81), that's probably all he's able to do . . ." The ALJ acknowledged that following the above characterization, Dr. King opined that Claimant had not been able to do such work since the time he began seeing him. (Tr. at 24). However, the ALJ also distinguished Plaintiff's counsel's characterization of Plaintiff's last work as a Shipping supervisor as "heavy work" from the DOT guidelines that state the job required light exertion and from Plaintiff's description of the job that was determined to be at the medium exertional level. (Id.)
As for Plaintiff's assignment of error based on the ALJ's diminishing Dr. King's vocational opinion, Plaintiff's argument is not compelling. It is clear that the ALJ considered Dr. King's opinions and specifically stated why those opinions which were vocational in nature were not controlling or given great weight. While Plaintiff may be able to point to evidence in the record which would support a contrary conclusion, the same does not overcome that substantial evidence existed in the record that warranted the ALJ's diminution of Dr. King's vocational testimony.
As for the ALJ's determination relating to Plaintiff's subjective complaints of pain, the record reflects that the ALJ considered the proper pain standard. Pain is not amenable to objective measurement. See 20 C.F.R.§ 416.928. As a result, the Eleventh Circuit in Holt v. Sullivan, 921 F.2d 1221 (11th Cir. 1991), articulated the "pain standard," which applies when a disability claimant attempts to establish a disability through his own testimony of pain or other subjective symptoms. The pain standard requires:
Dyer v. Barnhart, 395 F.3d 1206, 1210-11 (11th Cir. 2005); see 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.929. "A claimant's subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability." Holt, 921 F.2d at 1223. If a claimant satisfies these criteria, an ALJ must explain the reasons for discrediting the claimant's allegations of subjectively disabling symptoms. Dyer, 395 F.3d at 1210-11. "It is established in this circuit that if the [ALJ] fails to articulate reasons for refusing to credit a claimant's subjective pain testimony, then the [ALJ], as a matter of law, has accepted that testimony as true. Implicit in this rule is the requirement that such articulation of reasons by the [ALJ] be supported by substantial evidence." Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987).
In assessing the credibility of an individual, the following factors should be considered:
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also SSR 96-7p.
Plaintiff focuses on the ALJ's evaluation of Plaintiff's daily living activities and the ALJ's consideration of medical records which pre-date Plaintiff's second surgery to show that the ALJ erred. (Doc. 16 at 6). However, as quoted above, the ALJ's credibility determination included a thorough summary of Plaintiff's medical history, both before, during, and after, his first and second surgeries, Plaintiff's testimony as to his subjective complaints and capabilities, and Dr. King's deposition testimony. While Plaintiff asserts the that ALJ ignored Dr. King's testimony and Plaintiff's second surgery, the record reflects that the ALJ specifically considered it and discounted it. Moreover, the record reflects that in determining the credibility of Plaintiff, the ALJ considered the seven factors utilized in the 11th Circuit, i.e., medical history, pain, medication, daily activities, etc., and determined that intensity, persistence and limiting effects of the pain Plaintiff alleged was not credible when considered in the light of all the evidence. Moreover, the ALJ articulated the reasons for his determination that Plaintiff was not entirely credible.
Despite Plaintiff's contention that the ALJ ignored the seven factors he is required to consider when determining credibility, the ALJ's articulated reasoning addresses those very factors and there was substantial evidence on which the ALJ relied in reaching his determination. As a result, the undersigned finds Plaintiff's second contention of error to be without merit.
Plaintiff's third assignment of error is that the ALJ was biased, incapable of conducting a non-adversarial hearing, and should have recused himself from Plaintiff's proceedings. (Doc. 16 at 7-11). In support of his position, Plaintiff points to the following excerpts from the hearing:
(Tr. 36-37, 41-42). Plaintiff also points out that when Plaintiff's counsel finished questioning Plaintiff, the ALJ asked "Do you care to address the inconsistencies at all, counsel?" and when counsel responded, the ALJ stated "Counsel, do you ever attempt to answer a question as asked?" after which the following transpired:
(Tr. 52-53). Plaintiff argues that these conversations establish that the ALJ had made up his mind about Plaintiff and that he planned to deny him benefits before the hearing took place and that they, therefore, establish unfair bias.
"The Social Security Act `contemplates that disability hearings will be individualized determinations based on evidence adduced at a hearing." Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66, 74 (1983). A claimant is entitled to a hearing that is both full and fair. Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir. 1981). The regulations governing Title II dictate that "[a]n administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision." 20 C.F.R. § 404.940. As cited by Plaintiff, "The ALJ plays a crucial role in the disability review process. Not only is he duty-bound to develop a full and fair record, he must carefully weight the evidence, giving individualized consideration to each claim that comes before him. Because of the deferential standard of review applied to his decision-making, the ALJ's resolution will usually be the final word on a claimant's entitlement to benefits. The impartiality of the ALJ is thus integral to the system." Miles v. Chater, 84. F.3d 1397, 1401 (11th Cir. 1996).
A review of the record in this action, including those portions of the hearing testimony pointed out by Plaintiff, do not establish that the ALJ was biased or unfairly prejudicial to Plaintiff. While the record reflects that the ALJ questioned both Plaintiff and Plaintiff's attorney with regard to what the ALJ classified as inconsistencies within the record, there is no indication that the ALJ was impartial to Plaintiff or that his questions and or comments were inappropriate. "[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). Bias or partiality are not established by "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women . . . sometimes display." Id. at 555-56, 114 S.Ct. at 1157. Even where a judge is "stern and short-tempered," the judge's "ordinary efforts at courtroom administration" do not demonstrate inappropriate bias. Id. at 556, 114 S.Ct. at 1157. In the instant action, there is no evidence that the ALJ's questions or responses were more than expressions of impatience, dissatisfaction, or annoyance. As a result, Plaintiff's contention that the ALJ was unfairly prejudicial and biased is without merit.
Plaintiff has raised three claims in bringing this action and all three 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." Richardson v. Perales, 402 U.S. 389, 401 (1971). Therefore, it is
