Irving Lindsey v. JoAnne B. Barnhart , 161 F. App'x 862 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13552 January 4, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00042-CV-RLH-1
IRVING LINDSEY,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 4, 2006)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Irving Lindsey, through counsel, appeals the district court’s judgment
affirming the Commissioner’s denial of his application for disability insurance
benefits, pursuant to 42 U.S.C. § 405(g), and supplemental security income,
pursuant to 42 U.S.C. § 1382(c)(3). After review, we affirm.
I. BACKGROUND
Because the validity of the issues raised by Lindsey depends, in part, on the
medical evidence in the record, we first review his medical history. After
reviewing Lindsey’s medical history, we discuss the Administrative Law Judge’s
(“ALJ”) decision.
A. Lindsey’s Application and Testimony
In his application for social security benefits, Lindsey alleged that, as of
May 1, 1998, he was disabled due to injuries to his back, neck, and left shoulder
suffered during a 1992 accident at work.1 After his injury, Lindsey claimed he
could not work because of the pain associated with his injuries.2
Specifically, Lindsey testified that his accident required shoulder surgery
and that the injury to his left shoulder still prevented him from having the strength
to grab and hold. Lindsey further claimed that his back hurts him every day and
often “goes out without reason.” The injury also prevents him from sitting or
1
While Lindsey was walking on some scaffolding, the scaffolding broke and he fell onto
a pile of iron.
2
At the time of his hearing, Lindsey was 61 years old, had an eighth grade education, and
had worked in the sheet metal business.
2
standing for extended periods of time.
Lindsey used a walker for two weeks in 2001 and tries not to lift anything
anymore because he does not want to have to use a walker again.
At the administrative hearing, Lindsey testified that he continues to have
pain in his lower back, neck, and left shoulder. Lindsey further stated that he
occasionally takes his grandson fishing and that he drives to the store to buy
tobacco, milk, and other items. Lindsey also testified that he walks to and from the
mailbox and is able to feed his chickens daily. Although Lindsey used to hunt
regularly, it has been a few years since he last hunted.
B. Medical History From Treating Physicians
On July 24, 1992, shortly after his fall at work, Dr. Rembert McLendon
examined Lindsey. Lindsey complained of lower back pain and stiffness after
sitting. Dr. McLendon noted that Lindsey was able to walk on his toes and heels,
had good segmental motion, and could bend over so that his fingertips were only a
foot from the floor.
On August 3, 1992, Dr. McLendon again examined Lindsey, who
complained of having problems sleeping because of back pain and having
difficulty standing erect after sitting. Additionally, Lindsey complained of pain in
his neck, left hip, left arm, and left thigh.
3
Dr. McLendon noted that Lindsey was able to forward flex within six inches
of touching the floor and had good segmental motion. Lindsey stated he had pain
with forward flexion and hyper-extension. Dr. McLendon observed that Lindsey
walked with a normal gait and could walk on his toes and heels. Furthermore,
Lindsey could touch overhead and behind his neck and back.
In August of 1992, Dr. Stephen Spain examined Lindsey and determined
that Lindsey had mild lumbar tenderness, lumbar strain, and decreased pain in left
leg. On August 18, 1992, Dr. Spain noted that Lindsey felt better, but still had
increased back pain.
Later in August of 1992, Dr. William D. Lowery, a neurologist, examined
Lindsey, who complained of tenderness in his entire spine and pain in his left
shoulder and arm. Dr. Lowery noted that there was no evidence of muscle atrophy
or weakness. A MRI of Lindsey’s cervical and lumbar spine revealed no
significant findings other than some mild degenerative changes. Dr. Lowery
recommended against surgery and suggested physical therapy.
On September 24, 1992, Dr. Lowery examined Lindsey again. Dr. Lowery
noted that Lindsey was somewhat better, but still had lower back pain, and pain
over the coccyx and in the left shoulder.
On September 29, 1992, Lindsey began to see Dr. Lamar H. Moree, an
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anesthesiologist. After conducting some range-of-motion tests, Dr. Moree gave
Lindsey two epidural steroid injections.
In October 1992, Dr. Moree again examined Lindsey. Lindsey reported that
his pain had decreased, and Dr. Moree gave Lindsey additional injections. Later
that month, Lindsey reported that he continued to have pain in his lower back, and
he had difficulty walking long distances. Dr. Moree prescribed oral drug therapy
for the pain.
In November 1992, Dr. Moree again examined Lindsey. Lindsey reported
that his pain had moderated some, but he still had lower back pain. Dr. Moree
noted that Lindsey was making progress, but it was slow and gradual.
On November 10, 1992, Lindsey returned to Dr. Lowery, who noted that
Lindsey was doing better. According to Dr. Lowery, Lindsey was neurologically
normal. Dr. Lowery dismissed Lindsey from his care because there was nothing
further he could do for Lindsey.
Later in November 1992, Lindsey returned to Dr. Moree and reported that
his pain had moderated some. Dr. Moree concluded that Lindsey was improving,
but should continue with the oral drug therapy.
In December, Dr. Moree placed Lindsey in TENS unit therapy. According
to the record, TENS unit therapy is a form of physical therapy.
5
On December 29, 1992, Lindsey reported to Dr. Moree that the pain in his
lower back had moderated some from TENS unit therapy. Dr. Moree noted that
there was gradual progress and continued TENS unit therapy.
In January 1993, Lindsey reported to Dr. Moree that he had received
significant benefits from TENS unit therapy. Lindsey stated he still had left
shoulder pain, but the neck and back had improved significantly. Dr. Moree
recommended that Lindsey continue with TENS unit therapy.
On February 9, 1993, Lindsey reported to Dr. Moree that his neck and back
were improved from TENS unit therapy, but he still had pain in his left shoulder.
Dr. Moree subsequently administered steroid injections in Lindsey’s left shoulder.
On February 23, 1993, Lindsey informed Dr. Moree that the injection in his
left shoulder only gave him partial relief and he still had pain there. However,
Lindsey reported that his back and neck pain had significantly improved. Dr.
Moree continued to prescribed oral drug therapy.
In March 1993, Dr. Moree noted that Lindsey was making progress but still
reported pain in his left shoulder.
In April 1993, Dr. Champ Baker, an orthopedic surgeon, examined Lindsey.
According to Dr. Baker, Lindsey suffered from a rotator cuff tear in his left
shoulder. After a subsequent MRI, Dr. Baker recommended surgery.
6
On June 14, 1993, Lindsey had surgery on his shoulder. According to Dr.
Thomas N. Bernard, Lindsey had normal behavior, posture, and gait after the
surgery. Although Lindsey had tenderness where he had surgery, he had a full
range of motion in his lumbar spine. Dr. Bernard recommended light exercise for
Lindsey’s spine along with rehabilitation of his shoulder.
On August 25, 1993, Lindsey returned to Dr. Bernard and complained that
his left shoulder was “frozen.” Dr. Bernard recommended aggressive rehabilitation
for neck and back but did not think Lindsey had a surgical problem. Dr. Bernard
further recommended light support of Lindsey’s lumbar spine and continuing with
as much activity as possible.
Dr. Bernard concluded that Lindsey had improved as much as he was going
to with regard to his cervical and lumbar spine problems. Dr. Bernard determined
that, disregarding the shoulder problem, Lindsey could function in a medium job
profile with no repetitive bending, stooping, or squatting with a 50-pound weight
limit.
Lindsey had follow-up visits on September 27, December 6, and December
10, 1993, at a clinic. During his visits, Lindsey was examined by either Dr. Baker
or Dr. Bernard. Both doctors noted that Lindsey was improving but still had pain.
For the rest of 1993, Lindsey continued with physical therapy.
7
After receiving a report from Lindsey’s physical therapist, Dr. Bernard
concluded that Lindsey had a weight limitation that placed him in the light to
medium job profile range.
On July 5, 1994, Lindsey underwent a residual functional capacity (“RFC”)
assessment with Dr. Samuel Wright. Dr. Wright concluded that Lindsey could
occasionally lift or carry 50 pounds, he could frequently lift or carry 25 pounds, he
could stand or sit six hours in an eight-hour day, and he was unlimited in pushing
and pulling. For postural limitations, Lindsey could frequently balance, kneel, and
crouch, and occasionally could climb, stoop, and crawl. For manipulative
limitations, Lindsey was limited in overhead reaching with the left arm.
On August 26, 1994, Dr. Kenneth Burkus, an orthopedic surgeon, found that
Lindsey was neurologically intact without focal deficits. Dr. Burkus, noting that
Lindsey still complained of lower back pain and neck pain, determined that
Lindsey could return to work on August 26, 1994, with limitations documented in
the above RFC assessment. According to Dr. Burkus, Lindsey would hopefully be
released from all limitations in six months.
Six months later, on February 21, 1995, Dr. Burkus gave Lindsey another
neurological exam and found Lindsey was neurologically intact without focal
deficits and had a normal gait. Dr. Burkus concluded that Lindsey could return to
8
work without restrictions and that Lindsey’s permanent partial disability rating was
zero percent.
Despite Dr. Burkus’ recommendations, Lindsey did not return to work.
Rather, on July 7, 1996, another RFC assessment was performed, this time by Dr.
Ronald Lohman. Dr. Lohman concluded that Lindsey could occasionally lift 50
pounds, frequently lift or carry 25 pounds, stand or sit for a total of six hours in an
eight-hour day, and push and pull were unlimited. As for postural limitations,
Lindsey could frequently climb stairs, balance, stoop, kneel, and crouch;
occasionally crawl; and never climb scaffolds.
In July 1997, Dr. Spain completed a form concerning Lindsey’s ability to
work. In contrast to his earlier examinations of Lindsey, Dr. Spain concluded that
Lindsey, in an eight-hour work day, could sit for no hours, stand for no hours, and
walk for no hours. Dr. Spain stated that Lindsey could occasionally lift up to ten
pounds but never lift anything heavier than ten pounds, and could occasionally
carry up to five pounds but never carry anything over five pounds. Also, Dr. Spain
stated that Lindsey could not use his left hand for pushing or pulling arm controls
or for fine manipulation, and could not use his left foot for pushing or pulling leg
controls. Lindsey could “not at all” bend, squat, crawl, climb, or reach; had “total
restriction” for unprotected heights, being around moving machinery, exposure to
9
marked changes in temperature, and exposure to dust, fumes, and gases; and had
only “moderate restriction” for driving automotive equipment. Dr. Spain
concluded that Lindsey had permanent total disability due to coronary artery
disease, lumbar disk disease, and osteoarthritis.
On March 13, 2000, Dr. Rotimi Samuel examined Lindsey. Dr. Samuel
found that Lindsey described a history of multiple joint aches without any
significant objective findings or limiting range of motion. Dr. Samuel stated that
Lindsey should be able to function independently, strongly doubted there was any
limitation of range of motion in left shoulder, and thought Lindsey gave active
resistance on evaluations of his left shoulder.
On May 7, 2000, Dr. Lina Caldwell conducted yet another RFC assessment.
Dr. Caldwell concluded that Lindsey could occasional lift 50 pounds, could
frequently lift 25 pounds, could stand and or walk six hours a day, sit for six hours
a day, and had unlimited pushing and pulling. The only postural limitations for
Lindsey were that he could never work on a scaffold, and he had limited overhead
reaching in the left upper extremity. Dr. Caldwell stated that the exam failed to
support Lindsey’s claim that he could not lift or turn his neck.3
3
There was another RFC assessment on August 30, 2000, by a medical consultant with an
illegible name. In this assessment, the consultant concluded Lindsey had no exertional
limitations, no postural limitations, and no manipulative limitations. For symptoms, the
consultant stated that Lindsey did not seek care for his problems, and that greater weight needed
to be given to the lack of objective evidence to support his symptoms.
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C. The ALJ’s Decision
Before we discuss the ALJ’s decision in this case, we outline generally the
five-step process the ALJ must follow in reviewing an application for social
security benefits. Under the circumstances of this case, an ALJ must evaluate
Lindsey’s claim with respect to the following five criteria, as set forth in 20 C.F.R.
§ 404.1520:
1. Is Lindsey performing substantial gainful activity?
2. Does Lindsey have a severe impairment?
3. Does Lindsey have a severe impairment that meets or equals a listed
impairment?
4. Can Lindsey perform his past relevant work?
5. Based on Lindsey’s age, education, and work experience, can Lindsey
perform other work of the sort found in the national economy?
In this case, the ALJ followed the five step process. As for the first step, the
ALJ concluded that Lindsey “had not engaged in substantial gainful activity since
July 10, 1992.”
As for the second step, the ALJ concluded that Lindsey suffered from “a
history of left rotator cuff tear[] and degenerative disc disease.” The ALJ further
determined that these were “severe” impairments.
As for the third step, the ALJ compared Lindsey’s impairments to the listed
impairments. Although the list is too voluminous to recite here, the purpose of the
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listings is to “streamline[] the decision process by identifying those claimants
whose medical impairments are so severe that it is likely they would be found
disabled regardless of their vocational background.” Bowen v. Yuckert, 482 U.S.
137, 153, 107 S. Ct. 2287, 2297 (1987). The ALJ concluded that Lindsey’s
impairments did not meet or equal any of the listed impairments.
As for the fourth step, the ALJ concluded that Lindsey “was unable to
perform his past relevant work as a sheet metal mechanic.” As for Lindsey’s RFC,
the ALJ found that Lindsey’s “capacity for the full range of medium work was
diminished by his inability to perform tasks requiring overhead reaching.” In
determining Lindsey’s RFC, the ALJ determined that Lindsey’s “statements
concerning his impairments and their impact on his ability to work on the date his
insured status expired are not entirely credible.”
At step five, the ALJ called a vocational expert (“VE”) to testify as to
Lindsey’s ability to make the necessary adjustments to other work. The VE opined
that someone with Lindsey’s RFC could work as a hospital janitor, palletizer
operator, companion, gate guard, and front end load operator, of which there were
1,000, 2,500, 20,000, 1,000, and 1,800 positions, respectively, in the Georgia/north
Florida economy. The ALJ then found that Lindsey was not disabled because there
was work in the national economy that he could perform.
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The district court affirmed the ALJ’s decision, and Lindsey now appeals to
this Court.4
II. DISCUSSION
On appeal, Lindsey argues that the ALJ improperly determined his RFC and
that the ALJ improperly penalized him for not amending his alleged onset date.5
We disagree and conclude that substantial evidence supports the ALJ’s decision in
this case.6
A. Lindsey’s RFC
4
“Our review in a Social Security case is the same as that of the district court.” Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th
Cir. 1990)). “We may not decide the facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner].” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983). Rather, we must defer to the Commissioner's decision if it is supported by
substantial evidence. Id. “Substantial evidence is more than a scintilla, but less than a
preponderance. It is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 1427 (1971)) (other citations omitted). “If the Commissioner’s decision is
supported by substantial evidence we must affirm, even if the proof preponderates against it.”
Miles, 84 F.3d at 1400 (citing Martin, 894 F.2d at 1529).
5
On appeal, Lindsey also argues that the ALJ improperly determined the skill level of his
past, relevant work. Specifically, Lindsey argues that his specific vocational preparation
(“SVP”) should have been two, not seven as determined by the ALJ. Although Lindsey testified
that his previous work was unskilled and, thus, should have been assigned an SVP of two, there
were independent assessments that Lindsey’s previous work was skilled and had an SVP of
seven. These included a worker’s compensation claim settlement signed by Lindsey and his
lawyer, as well as 1994, 1996, and 2000 vocational assessments by state consultants.
Consequently, we readily conclude that substantial evidence supports the ALJ’s determination
that Lindsey’s previous work was skilled and had an SVP of seven.
6
Lindsey also argues that the district court failed to analyze properly the ALJ’s decision.
However, we do not address this argument because we review the ALJ’s finding, not the district
court’s decision. See Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991).
13
To determine the physical exertion requirements of work in the national
economy, jobs are classified as sedentary, light, medium, heavy, and very heavy.
See 20 C.F.R. § 404.1567. On appeal, Lindsey argues that the evidence does not
support the ALJ’s determination that he had an RFC to perform medium work.7
Rather, Lindsey asserts that he is limited to light work.8
In his brief on appeal before this Court, Lindsey claims that the ALJ should
have placed greater emphasis on Dr. Bernard’s assessment of his condition.
However, Dr. Bernard’s report explicitly stated that the RFC assessment gave
Lindsey a weight limitation that placed him “in the light to medium job profile
range.” Specifically, Dr. Bernard’s report stated that Lindsey could occasionally
lift up to 36 pounds and frequently carry up to 23 pounds. Dr. Bernard’s
conclusions regarding Lindsey’s RFC are consistent with the definition of medium
7
Medium 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(c).
8
Light work involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work,
[a claimant] must have the ability to do substantially all of these activities. If
someone can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or inability
to sit for long periods of time.
20 C.F.R. § 404.1567(b).
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work in the regulations. See 20 C.F.R. § 404.1567(c) (defining medium work as
“lifting no more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds”). Furthermore, there were several RFC
assessments that concluded Lindsey had the ability to perform medium work as
defined by the regulations.
Given all the medical evidence in the record, we readily conclude that the
ALJ’s determination that Lindsey had an RFC to perform medium work is
supported by substantial evidence.9
B. Lindsey’s Alleged Onset Date
During Lindsey’s administrative hearing the ALJ commented that he would
be willing to rule in Lindsey’s favor if Lindsey was willing to amend the onset date
of his disability. Specifically, the ALJ stated:
That the comment is made from the perspective of a softhearted Judge
9
In fact, the only medical evidence in the record that would have supported a
determination that Lindsey’s RFC should be limited to light work was Dr. Spain’s 1997 report.
The opinion of a treating physician, such as Dr. Spain, “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997) (citation omitted). This Court has concluded “good cause” exists
when the: (1) treating physician’s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records. Id. When electing to disregard the opinion of a treating
physician, the ALJ must clearly articulate its reasons. Id. In this case, the ALJ found “Dr.
Spain’s assessment greatly lacking in support based on the medical records. His own records
include no support for his conclusions . . . .” The ALJ therefore rejected Dr. Spain’s assessment
of Lindsey’s RFC. We conclude that the ALJ’s rejection of Dr. Spain’s assessment is supported
by substantial evidence.
15
that maybe would like to give Mr. Lindsey something here. But I am
completely open-minded as to where this goes if we have to – if I
have to write a decision. . . . And as I set [sic] here now in view of
what I see, I would be agreeable to issuing a fully favorable decision
with amending the onset date at age 60. I’m certainly not requiring
anything.
On appeal, Lindsey asserts that the ALJ denied his application for social security
benefits because he refused to change the onset date of his alleged disability.
Lindsey is entitled to a fair hearing that comports with due process. See
Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 1464 (1975). Obviously, it
would be improper for the ALJ to refuse to award Lindsey social security benefits
based on Lindsey’s refusal to amend his onset date. However, we do not read the
ALJ’s comments as creating any fundamental due process concerns that would
warrant remanding this case for another administrative hearing.
Rather, the ALJ simply stated that it believed that Lindsey had made a
sufficient showing of a disability as of the age of 60. Although it was arguably
improper for the ALJ to make such an offer, nothing in the record suggests that the
ALJ held Lindsey’s refusal to amend his onset date against him. Instead, the ALJ
repeatedly stated that it had an open mind as to the merits of Lindsey’s claim.
In short, we conclude that Lindsey’s administrative hearing complied with
due process and that the ALJ corrected any impression of bias via its repeated
statements that it had an open mind as to the merits of Lindsey’s claim. See Diorio
16
v. Heckler, 721 F.2d 726, 728 (11 th Cir. 1983) (determining that the ALJ’s
discussion of irrelevant factors was harmless because the ALJ applied the proper
factors in the end); Isom v. Schweiker, 711 F.2d 88, 90 (8 th Cir. 1983) (permitting
the ALJ to correct any potential bias associated with negative comments by
conducting a fair and impartial hearing).
For all the above reasons, we affirm the ALJ’s denial of Lindsey’s
application for social security benefits.
AFFIRMED.
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