ABDUL K. KALLON, District Judge.
Alton Hodges ("Hodges") brings this action pursuant to Title II of Section 205(g) and Title XVI of Section 1631(c)(3) of the Social Security Act (the "Act"), seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying his claims for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI"). See also 42 U.S.C. §§ 405(g), 1383(c). After careful review, the court finds that the decision of the Commissioner is due to be affirmed.
Hodges applied for DIB and SSI on March 26, 2009 alleging disability beginning March 17, 2009
The only issues before this court are whether the record contains substantial evidence to sustain the ALJ's decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g) and 1383(c) mandate that the Commissioner's "factual findings are conclusive if supported by `substantial evidence.'" Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the Commissioner; instead, it must review the final decision as a whole and determine if the decision is "reasonable and supported by substantial evidence." See id. (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence; "[i]t is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Martin, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the court must affirm the Commissioner's factual findings even if the preponderance of the evidence is against the Commissioner's findings. See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ's findings is limited in scope, it notes that the review "does not yield automatic affirmance." Lamb, 847 F.2d at 701.
To qualify for disability benefits, a claimant must show "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrated by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). Specifically, the Commissioner must determine in sequence:
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). "An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of `not disabled.'" Id. at 1030 (citing 20 C.F.R. § 416.920(a)-(f)). "Once a finding is made that a claimant cannot return to prior work the burden shifts to the Secretary to show other work the claimant can do." Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, Plaintiff alleges disability because of pain, she must meet additional criteria. In this circuit, "a three part `pain standard' [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms." Holt v. Barnhart, 921 F.2d 1221, 1223 (11th Cir. 1991). Specifically,
Id. However, medical evidence of pain itself, or of its intensity, is not required:
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical information omitted) (emphasis added). Moreover, "[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. Therefore, if a claimant testifies to disabling pain and satisfies the three part pain standard, the ALJ must find him disabled unless the ALJ properly discredits his testimony.
Furthermore, when the ALJ fails to credit a claimant's pain testimony, the ALJ must articulate reasons for that decision:
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Therefore, if the ALJ either fails to articulate reasons for refusing to credit the plaintiff's pain testimony, or if the ALJ's reasons are not supported by substantial evidence, the court must accept as true the pain testimony of the plaintiff and render a finding of disability. Id.
In performing the five step sequential analysis, the ALJ initially determined that Hodges had not engaged in substantial gainful activity since March 17, 2009, the alleged onset date,
The court turns now to Hodges' contentions that the ALJ's decision is not supported by substantial evidence and that the ALJ applied improper legal standards by failing to properly determined Hodges' RFC. For the reasons stated below, the court concludes that substantial evidence supports that ALJ's decision and that the ALJ applied proper legal standards in determining Hodges' RFC.
The RFC is an assessment based upon all of the relevant evidence of a claimant's remaining ability to do work despite his impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing C.F.R. § 404.1545(a)). The ALJ must consider any statements by medical sources about what the claimant can still do, whether or not those statements are based on formal medical examinations. 20 C.F.R. § 404.1545(a)(3). The ALJ must also consider descriptions and observations of the limitations resulting from the claimant's impairments, including limitations that result from symptoms, such as pain. Id. Only "acceptable medical sources" can provide medical opinions, which are "statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of" a claimant's impairment, including symptoms, diagnosis and prognosis, what the claimant can still do despite the impairment, and the claimant's physical or mental restrictions. Id. § 404.1527(a)(2). The final responsibility for assessing a claimant's RFC rests with the ALJ. Id. § 404.1527(d)(2).
Here, the ALJ determined that Hodges retained an RFC to perform medium work. [R. 23]. According to the regulations, "[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work." 20 C.F.R. § 404.1567. Social Security Ruling 83-10 provides further detail, stating in pertinent part:
Social Security Ruling (SSR) 83-10.
Hodges submits that the ALJ's conclusion that he could perform medium work is contrary to the evidence. [Pl.'s Mem. 13; 15]. However, Hodges' allegation is completely conclusory as he points to no specific evidence supporting his argument.
The record shows that Hodges received treatment on seven different occasions at Decatur Primary Care from October 2005 through July 2007. [R. 281-87]. Treatment notes track Hodges' complaints of back pain and high blood pressure. [R.283; 286]. Although examination notes are difficult to read, they indicate Hodges failed to take his blood pressure medication regularly. [R. 282; 284]. During a visit on October 10, 2006, Hodges denied any complaints. [R. 285].
Hodges sought primary care from Mark Murphy, M.D. as early as January 3, 2006. [R. 581]. At this time, Hodges reported low back pain, and treatment notes indicate that an April 2005 MRI showed mild disc bulging at L4/5 and an annular tear. [R. 581]. Dr. Murphy diagnosed Hodges with degenerative disc disease, gout, and degenerative joint disease in his knee. [R. 581]. The next visit to Dr. Murphy occurred on January 26, 2009, during which Hodges completed a pain questionnaire and indicated that at its worst over the past month, his pain level was a four or five, and two or three after medication. [R. 521]. When Hodges returned in March 2009, he reported his pain level at its worst over the past month was a four or five. [R. 497].
During a visit on May 18, 2009, Hodges described his overall pain with treatment as a six on a ten point scale. [R. 339]. Examination notes indicate muscoloskeletal "arthritis, gout, and stiffness." [R. 339]. Hodges reported being depressed and stressed but stated that Xanax helped. [R. 339]. Dr. Murphy refilled Hodges' medications. However, an addendum dated May 19, 2009 indicates that after a consultation with a Dr. Kirk L. Jackson, Dr. Murphy's office called and left Hodges a voice message instructing Hodges to stop all medication and to seek mental health services before resuming his dosages. Dr. Murphy cancelled Hodges' refills, which caused Hodges to return to Dr. Murphy's office questioning why his refills were cancelled. Hodges stated that he did not get the phone message. [R. 341]. Dr. Murphy had reviewed medical records from Decatur General Hospital documenting a stay on April 29, 2009, during which Hodges had "a deterioration in his mental status, to the point where he was threatening to shoot the nurses."
Hodges saw Dr. Murphy again on June 29, 2009, during which treatment notes indicate muscle spasms and tenderness along Hodges' spine. [R. 348]. During the visit, Hodges completed a pain questionnaire. [R. 483]. On a ten point scale, Hodges indicated that his pain at its worst during the last month was a four, that after taking his pain medication the pain level was a two or three, that his average level of pain during the previous month was a four, and that his current pain level was a three. [R. 483]. Hodges returned on July 27, 2009. However, the examination notes from this visit contain no substantive information.
On August 24, 2009, Hodges reported that his pain level post-treatment was a two. [R. 514]. In November 2009, Hodges reported to Dr. Murphy that his pain in his wrist had increased and that he could no longer use a can opener or screw tops. [R. 568]. According to a pain questionnaire filled out during this visit, Hodges indicated that his average level of pain over the past month was a seven; however, treatment notes state that Hodges' overall level of pain post-treatment was a four. [R. 568]. Treatment notes from a December 14, 2009 visit indicate that Hodges was tolerating pain management with no side effects and that Hodges was "pleased with his meds." [R. 562].
Hodges continued to see Dr. Murphy in 2010. The first visit occurred on January 12, 2010, during which Dr. Murphy's examination notes indicate that Hodges' level of pain with treatment was a two or three. [R. 553]. Hodges completed a pain questionnaire during this visit and stated that at its worst, his pain level over the previous month was a four. [R. 531]. His average level of pain was a three or four. [R. 531]. Hodges desired no treatment changes during this visit. [R. 553]. Dr. Murphy's records indicate that Hodges was released from care in February 2010. [R. 525]. However, Hodges returned for a follow-up visit in July 2010, [R. 525], during which he stated that he was told he detoxed and did not need the medications he was previously prescribed. [R. 525]. Upon examination, Dr. Murphy refilled Hodges' Lortab, Soma, and Xanax.
The final entry from Dr. Murphy occurred on March 9, 2011, during which Hodges filled out a pain questionnaire and indicated that at its worst, his pain level over the past month was a six or seven. [R. 579]. With medication, Hodges reported his pain level was a four. [R. 579]. He also indicated that his average level of pain during the previous month was a four or five. [R. 579].
In addition to Dr. Murphy, Hodges also sought treatment at the emergency room. In early 2009, Hodges reported to the emergency room at Decatur General Hospital on at least four occasions. [R. 288-338]. First, on January 6, 2009, Hodges complained of left wrist pain, denied any recent injury, and treatment notes indicate swelling. [R. 328]. At the time, Hodges could not close his left hand, and reported that he had been on antibiotics, which had helped the swelling initially. [R. 328]. Hodges was prescribed three medications including Bactrim and Lortab. [R. 330]. Second, on March 23, 2009, Hodges complained of back pain and right knee pain. [R. 320]. Although difficult to read, treatment notes appear to indicate that no additional medication was prescribed. [R. 322]. Third, on April 11, 2009, Hodges returned to the emergency room and requested that doctors refill his blood pressure prescriptions, [R. 315], which the doctors provided after examining Hodges. Finally, in May 2009, Hodges complained of heartburn and nausea. Doctors performed an abdominal procedure to remove an obstruction. [R. 294-95; 306-11].
On January 27, 2010, Hodges was admitted to Decatur General Hospital and treated for an opiate overdose. [R. 402]. Hodges reported taking three tablets of Lortab. [R. 402]. Doctors provided IV fluids and oxygen. [R. 402]. Hodges was discharged in alert condition and instructed to follow up with Dr. Murphy. [R. 402]. In April 2010, Hodges returned to the emergency room at Decatur General Hospital and requested refills of his blood pressure medication. Doctors prescribed the requested refills. [R. 399]. Subsequent emergency room records show that Hodges presented on February 22, 2011 with right writs pain and swelling. Doctors diagnosed him with right hand cellulitis/gout arthropathy. On March 12, 2011, Hodges was seen for left ankle and foot pain. Impressions included narcotic and benzodiazepine use, drug intoxication, and altered mental status. [R. 585-603].
Marlin Gill, M.D. performed a consultative physical examination on September 18, 2009. [R. 349-51]. Hodges complained of low back pain. He told Dr. Gill the pain was not constant and that it happened "off and on at different times unexpectedly." [R. 349]. Hodges reported that the pain was worse if he was overactive or stood or walked for too long. [R. 349]. Hodges stated that his knee hurt whenever he stood or walked. [R. 349]. Hodges also reported that he had neck pain that would generally occur if he turned his head quickly. [R. 349]. Upon examination, Hodges was in no distress. Dr. Gill saw no indentations or scars indicating a previous halo. Hodges' eyes, ears, neck, chest, and abdomen were all normal. Hodges walked with a normal gait and unassisted. [R. 350]. Hodges' neck was non-tender, although he complained of discomfort with neck movement. Hodges used his arms normally with no limitations and demonstrated a full range of motion in his joints. [R. 350]. Hodges could close his right hand into a full fist with grip strength of 5/5. Hodges could fold his left hand into a full fist with grip strength of 4/5. [R. 350]. Hodges' back appeared "normal" and no tenderness was observed. [R. 350]. From a standing position, Hodges could bend forward 90 degrees and return to an erect position with no difficulty. Hodges' legs appeared normal and symmetrical with good muscle tone. Hodges' right knee appeared "normal" and showed no signs of swelling or joint effusion. [R. 350]. Holding the exam table, Hodges could squat and return to a standing position. [R. 351]. Dr. Gill diagnosed Hodges with low back pain-reported history of bulging discs, right knee pain-undiagnosed, and neck pain-reported history of neck fracture in September 2007. [R. 351].
On September 24, 2009, state agency decision maker, M.K. Fendley, completed a Physical RFC Assessment. [R. 352-59]. After reviewing Hodges' medical records, Findley opined that Hodges has the following exertional limitations: he can occasionally lift and/or carry 50 pounds and he can frequently lift and/or carry 25 pounds; he can stand and/or walk (with normal breaks) for a total of six hours in an 8-hour work day; he can sit (with normal breaks) for a total of six hours in an 8-hour work day; and, he has no restrictions in his ability to push and/or pull. [R. 353]. Regarding postural limitations, Findley opined that Hodges can frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl but can only occasionally balance. [R. 354]. Findlay found no manipulative or communicative limitations. Regarding environmental limitations, Findlay found that Hodges should avoid concentrated exposure to hazardous machinery and heights. [R. 356].
Barry Wood, Ph.D., completed a consultative mental examination on October 6, 2009. [R. 360-62]. Dr. Wood noted that Hodges received his first psychiatric treatment in prison 12 years earlier. [R. 361]. Hodges received some medication for three to four years to treat depression, and he participated in counseling. [R. 361]. Hodges reported that his psychiatric/behavioral status deteriorated after his brother was shot and killed in 1997. Hodges had taken Xanax throughout the past six years. Hodges denied any history of substance abuse issues. [R. 361]. He described his mood as "blessed" and indicated that he was sleeping normally. [R. 361].
Dr. Wood noted that Hodges was oriented and that his mood fell within normal limits. He was prosocial and cooperative. [R. 361]. Based upon his academic history, command of general information during the interview, and command of vocabulary, Dr. Wood suggested that Hodges' IQ was in the average range. [R. 361]. Dr. Wood diagnosed Hodges with recurrent major depressive disorder that was currently in remission (with medication) and panic disorder without agoraphobia (in remission with medication). [R. 362]. Dr. Wood noted that Hodges' Global Assessment Functioning ("GAF") score was 82. [R. 362].
Dr. Wood concluded that Hodges' reports suggested that his past psychiatric symptoms were currently controlled with medication. [R. 362]. Dr. Wood opined that he believed Hodges is able to function independently, understand instructions, recall instructions, and follow instructions to the extent allowed by his physical status. [R. 362]. Dr. Wood further opined that he believed Hodges could attend to tasks for at least two consecutive hours. [R. 362]. Dr. Wood also indicated that Hodges possesses the social skills necessary to interact with coworkers, customers, and supervisors. [R. 362].
Finally, on October 6, 2009, Robert Estock, M.D. completed a Psychiatric Review Technique. [R. 363-76]. Dr. Estock found no "Paragraph B" limitations. [R. 373].
Hodges' treating physician, Dr. Murphy, completed a Physical Capacities Assessment ("PCE") and a Clinical Assessment of Pain on April 4, 2011.
The ALJ properly considered the objective medical evidence in making his RFC determination. The ALJ referred to Hodges' May 2009 hospitalization to surgically repair his bowels and noted that upon discharge he recovered without incident and ambulated without difficulty. [R. 24]. His surgeon limited Hodges to lifting no greater than 10 pounds for one month only. [R. 417]. Other records from Decatur General Hospital indicated that Hodges had normal ranges of motion, no neurologic deficits, and no swelling. [R. 391; 401; 411; 430; 469; 475]. The ALJ also noted that 2010 discharge notes indicate that Hodges purposefully overdosed on Lortab but was found to have no outward symptomatic limitations upon his release home. [R. 25].
The ALJ also reviewed Dr. Murphy's treatment notes. The ALJ noted that during his visits, Hodges self-rated his pain level at a two or three on most occasions. [R. 24], that Dr. Murphy's examination notes contain general findings of "L Spine MM spasm, TP and tender, RSIJ positive and LSIJ positive," [R. 340; 348; 481; 496 503; 510; 515; 520; 526; 529; 538; 544; 551; 554; 563; 569; 577], and that Dr. Murphy followed Hodges for a great part of the alleged period of disability but never suggested that Hodges had any other impairment-borne limitations,
The ALJ then discussed Dr. Gill's consultative examination findings, which noted that Hodges reported non-constant back pain, no recommendation that he undergo surgery, and that Hodges discussed proficiency in activities of daily living during his examination. [R. 24]. During the examination, Dr. Gill observed that Hodges had a normal gait and that he walked around the room without use of a cane. [R. 24]. Finally, the ALJ noted Hodges' examination revealed full range of motion and strength, and the ability to use his extremities fully with no limitations. [R. 24].
The ALJ also commented on Dr. Wood's consultative psychological examination findings that Hodges' major depressive disorder and anxiety were in remission. [R. 25]. Dr. Wood also found that Hodges had the social skills necessary to interact with co-workers and supervisors and that his memory, processing, and overall cognitive functioning were within normal ranges. [R. 25].
After considering the objective medical evidence, the ALJ also documented the opinion evidence he evaluated to determine Hodges' RFC. [R. 25]. See SSR 96-8p, 1996 WL 374184, at *5 (noting that in assessing the RFC, an ALJ may consider medical source statements). The ALJ must "state with particularity the weight given different medical opinions and the reasons therefor." Sharfarz v. Bowen, 816 F.2d 278, 279 (11th Cir. 1987). In reviewing this opinion evidence, the ALJ noted that he assigned "particularly persuasive weight" to the two consultative examiner's reports. [R. 27; 349-50; 360-62]. Although not treating sources, Dr. Gill's and Dr. Wood's opinions may be entitled to "great weight." See 20 C.F.R. §§ 404.1527(c), 416.1527(c); SSR 96-2p, 1996 WL 374188, at *2 (1996). The ALJ accorded these opinions "persuasive weight" because they were consistent with the medical evidence in the record that demonstrated Hodges could ambulate without assistance and could use his extremities fully and without any limitation. [R .27]. The ALJ also noted that these opinions were consistent with other test results and treatment notes suggesting Hodges had no significant musculoskeletal limitations. [R. 28].
The ALJ also considered Hodges' credibility in making his RFC determination. Although Hodges does not challenge the ALJ's credibility assessment, the court has reviewed the record and finds that substantial evidence supports the ALJ's decision to reject Hodges' subjective complaints regarding the intensity and persistence of his symptoms and their effect on his ability to work. When evaluating the credibility of a claimant's statements regarding the intensity, persistence, or limiting effects of his symptoms, the ALJ considers: the objective medical evidence; the claimant's daily activities; the location, duration, frequency, and intensity of the pain symptoms; factors that precipitate or aggravate the symptoms; type, dosage, and effectiveness of medication; side effects of medication; treatment received; measures used to relieve pain; and any conflicts between the claimant's statements and the medical evidence of record. See 20 C.F.R. §§ 404.1519(c)(3)-(4), 416.929(c)(3)-(4); SSR 97-7p, 1996 WL 374186, at *3, *5-6.
Here, the ALJ found that Hodges' medically determinable impairments could reasonably be expected to cause the alleged symptoms. [R. 26]. However, the ALJ concluded that Hodges' statements regarding the intensity, persistence, and limiting effects of the symptoms were not entirely credible, [R. 13], and offered specific reasons for this finding. Specifically, the ALJ rejected Hodges' alleged pain and range of motion limitations as inconsistent with and contradicted by the medical evidence of record. The ALJ noted that Dr. Murphy's treatment notes that indicate Hodges' self-reported pain level never exceeded a four. [R. 27]. The ALJ also considered Dr. Gill's examination findings that Hodges could walk, perform motion drills, and had full or near full strength. [R. 27]. The court concludes the ALJ properly rejected Hodges' complaints as inconsistent with the record as a whole. See 20 C.F.R. §§ 404.1519(c)(4), 416.929(c)(4) (noting that, in assessing credibility, the ALJ will consider conflicts between a claimant's statements and the remainder of the record).
The ALJ also appropriately considered Hodges' activities of daily living. The ALJ noted that Hodges could function independently and could engaged in a wide range of activities. [R. 27]. For example, Hodges reported that he could do laundry, sweep, dust, take out small bags of trash, and prepare simple meals. [R. 25; 234-36; 361]. Hodges also reported that he visited friends and family and shopped. [R. 25]. The Eleventh Circuit has commented that "participation in everyday activities of short duration, such as housework or fishing" does not disqualify a claimant from disability. Lewis v. Callahan, 125 F.3d 1436, 1441 (11 th Cir. 1997). Moreover, courts have recognized that a claimant need not be bedridden in order to be disabled. See Bennett v. Barnhart, 288 F.Supp.2d 1246, 1252 (N.D. Ala. 2003). However, the ALJ is expressly permitted to consider activities of daily living in making a credibility determination. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i); Dyer v. Barnhart, 395 F.3d 1206, 1208, 1212 (11th Cir. 2005) (consideration of claimant's activities of daily living, including limited housework, driving short distances, and reading the paper, was permissible as part of credibility determination).
The court finds that the ALJ's rationale for rejecting Hodges' subjective complaints of disabling pain provides the specificity required to withstand any allegations of error. The ALJ is the sole determiner of credibility. Daniels v. Apfel, 92 F.Supp.2d 1269, 1280 (S.D. Ala. 2000) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971)). Consequently, the court should not disturb a clearly-stated credibility finding unless substantial evidence does not support it. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). The ALJ's assessment of Hodges' credibility is clearly articulated and corroborated by substantial evidence in the record. Therefore, the court concludes that substantial evidence exists to support the ALJ's conclusion that Hodges' testimony of disabling pain is disproportionate to the objective medical evidence
In sum, the court finds that the ALJ's RFC determination, based upon consideration of the objective medical evidence, the opinion evidence, and Hodges' credibility, is based upon substantial evidence. Accordingly, the Commissioner's decision is due to be affirmed.
The court concludes that the ALJ's determination that Hodges is not disabled is supported by substantial evidence and that proper legal standards were applied. Therefore, the Commissioner's final decision is due to be affirmed. A separate order in accordance with this memorandum opinion will be entered.