Grant v. Astrue

Full title: DAVID L. GRANT, Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL…

Court: United States District Court, M.D. Alabama, Northern Division

Date published: Mar 24, 2008

CIVIL ACTION NO. 2:07cv678-TFM (M.D. Ala. Mar. 24, 2008)

Opinion

CIVIL ACTION NO. 2:07cv678-TFM.

March 24, 2008

MEMORANDUM OPINION AND ORDER

TERRY MOORER, Magistrate Judge

Following administrative denial of his application for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq., David L. Grant ("Grant") appeared before an administrative law judge ("ALJ") who rendered an unfavorable decision. When the Appeals Council rejected review, the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner"). Judicial review proceeds pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and 28 U.S.C. § 636(c), and for reasons herein explained, the court AFFIRMS THE COMMISSIONER'S decision.

I. STANDARD OF REVIEW

Judicial review of the Commissioner's decision to deny benefits is limited. The court cannot conduct a de novo review or substitute its own judgment for that of the Commissioner. Walden v. Schweiker, 672 F.2d 835 (11^th Cir. 1982). This court must find the Commissioner's decision conclusive "if it is supported by substantial evidence and the correct legal standards were applied." Kelley v. Apfel, 185 F. 3d 1211, 1213 (11^th Cir. 1999), citing Graham v. Apfel, 129 F. 3d 1420, 1422 (11^th Cir. 1997).

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. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971).

If the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the court finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560.

The district court will reverse a 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. Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994).

II. ADMINISTRATIVE FINDINGS

Grant, age 50 at the time of the hearing, completed four years of college. Grant's past relevant work includes employment as a recreational therapist. Grant alleges he became disabled on September 14, 2004 from diabetes and hypertension.¹ He did not engage in substantial gainful work activity at any time relevant to his application period.

1 R. at 47, 217.

The ALJ found Grant was severely impaired by diabetes mellitus, diabetic retinopathy, diabetic neuropathy, and hypertension.² The ALJ also found Grant did not have any impairment or combination of impairments that meet or equal in severity any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.³ Grant's testimony of disabling pain and functional restrictions was found disproportionate to the objective medical evidence, and the ALJ cited this, along with little evidence of medical treatment, as a basis for discounting Grant's testimony.⁴ It was determined Grant had the residual functional capacity ("RFC") to perform a restricted range of light work activity, with specified physical and nonexertional limitations. Grant was found able to perform his past work as performed in the national economy, as well as other work including information order clerk, cashier, and teacher's aide.⁵ These findings regarding Grant's ability to work rendered him ineligible for disability benefits under the Act.

2 R. at 21, 26.

3 R. at 21-22.

4 R. at 24.

5 R. at 41, 42.

III. ISSUE

Grant raises a single issue for judicial review:⁶

Whether the ALJ correctly evaluated documentation and testimony concerning Grant's pain?

IV. DISCUSSION

The ALJ Correctly Evaluated Grant's Pain Under Eleventh Circuit Precedent.

Grant argues the ALJ erred in evaluating his pain and the record's evidence of medical conditions consistent with his claims. The Commissioner responds that the ALJ properly evaluated the credibility of Grant's subjective complaints and objective medical evidence. The court agrees that the ALJ gave well-reasoned grounds to reject Grant's allegations and testimony of disabling pain, and therefore, did not err in his evaluation of his pain.

The five-step sequential analysis set forth in regulations require that a claimant prove that he is disabled. 20 C.F.R. § 404.1512; Jones v. Apfel, 190 F.3d 1224, 1228 (11^th Cir. 1999). The Eleventh Circuit has set forth its approved criteria for establishing a disability based on testimony of pain and other symptoms. It explained that

a claimant must satisfy two parts of a three-part test showing: (1) evidence of an underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed pain. If the ALJ discredits subjective testimony, he must articulate explicit and adequate reasons for doing so. Failure to articulate the reasons for discrediting subjective testimony requires, as a matter of law, that the testimony be accepted as true.

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11^th Cir. 2002) (citations omitted). A "claimant's subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability." Brown v. Sullivan, 921 F.2d 1233, 1236 (11^th Cir. 1991). "Indeed, in certain situations, pain alone can be disabling, even when its existence is unsupported by objective evidence." Foote v. Chater, 67 F.3d 1553, 1561 (11^th Cir. 1995). An ALJ must explicitly explain why he chose not to credit a claimant's testimony. Brown, 921 F.2d at 1236. When evaluating a claim based on disabling subjective symptoms, the ALJ considers medical findings, a claimant's statements, statements by the treating physician and evidence of how the pain affects the claimant's daily activities and ability to work. 20 C.F.R. § 416.929(a). "The decision concerning the plaintiff's credibility is a function solely within the control of the Commissioner and not the courts." Sellers v. Barnhart, 246 F.Supp.2d 1201, 1213 (M.D. Ala. 2002).

Grant contends the diabetes and complications documented in the record provides sufficient support for his allegations of pain and disability. The ALJ in this case found his allegations of pain and limitations "not credible," and set forth several factors presented by the record which led him to find Grant was not disabled by pain. Despite Grant's claim of following a "rigorous treatment regimen" for his condition, and his prescribed diabetic diet,⁷ a primary factor considered by the ALJ was Grant's noncompliance with the appropriate diet for a person with his diagnosis.⁸ During a February, 2006 visit to Dr. Mary Casals, Grant admitted to poor eating habits, and the report reflects his diet is "terrible."⁹ Dr. Alan Babb also noted Grant's poor diet as a negative factor in his ability to control his diabetes.¹⁰ The ALJ noted his obligation to consider a variety of factors in assessing Grant's allegations of pain, including precipitating and aggravating factors.¹¹ See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11^th Cir. 2003) (non-compliance a valid consideration in ALJ's finding of nondisability). Grant's credibility was further impacted by Dr. Babb's report, which indicated surprise at Grant's statement that he does not drive due to poor vision because such was not substantiated by visual records.¹² Additional credibility problems concerning Grant's claim of adverse side effects due to medication are highlighted in the Commissioner's brief, wherein it is noted Grant did not complain of drowsiness to his physician, but in fact took sleeping pills during his application period.¹³

7 Pl. Br. at 7; R. at 229-30.

8 R. at 24.

9 R. at 146.

10 R. at 180.

11 R. at 24.

12 R. at 177.

13 Def. Br. at 11.

As for functional limitations, Grant testified he could sit for a total of three to four hours in an eight-hour day.¹⁴ However, he reported watching television, while sitting or laying, from six a.m. to noon, and again from one p.m. until five or six p.m.¹⁵ Grant presented a clear conflict between his actual activities and professed abilities when he further stated he watched television for approximately four hours each day.¹⁶ The ALJ also noted Grant did not present the neurological deficits, weight loss, or muscle atrophy which indicates the level of pain alleged.¹⁷ Dr. Jack Evans testified Grant's condition escalated around April, 2006, but he still did not present an illness which met or equaled agency listings for disability.¹⁸

14 R. at 223.

15 R. at 225.

16 R. at 227.

17 R. at 24.

18 R. at 238-39, 232.

Here, the ALJ chose not to credit Grant's testimony. This decision is supported by the discrepancies between his testimony, and the medical reports of his conditions and activities.¹⁹ Essentially, the ALJ followed the second prong of the Wilson test to determine the record did not contain medical signs or laboratory findings which could be reasonably expected to produce the pain alleged. Wilson, id. Although Grant demonstrated the underlying medical conditions required under Wilson, he did not show objective medical evidence to confirm the severity of the alleged pain, or show the medical conditions could produce the pain alleged during her administrative hearing. The ALJ's decision provided specific reasons for discrediting Grant's subjective testimony. Id.; see also Foote, 67 F.3d at 1562 (a clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed).

19 R. at 24.

This statement of explicit reasons for the ALJ's rejection of Grant's subjective testimony of pain and disability satisfy the requirements in the Eleventh Circuit, and the ALJ cited substantial evidence for his decision on this issue. The record shows that Grant's subjective complaints of pain did not support a finding that he was disabled, or even that he was unable to perform her past relevant work, as generally performed in the national economy. Thus, he failed to meet her burden of proof, and the court finds no reversible error on this issue.

V. CONCLUSION

Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the court concludes that the ALJ's non-disability determination is supported by substantial evidence and proper application of the law. It is, therefore, ORDERED that the decision of the Commissioner is AFFIRMED. A separate judgment is entered herewith.