Whigham v. Astrue (CONSENT)

Filing 18

MEMORANDUM OPINION AND ORDER directing that this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. Signed by Honorable Charles S. Coody on 10/13/09. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION IO L A P. WHIGHAM, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 1:08cv575-CSC

M E M O R A N D U M OPINION and ORDER T h e plaintiff, Iola Whigham ("Whigham"), applied for disability insurance benefits p u rs u a n t to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and supplemental s e c u rity income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et s e q ., alleging that she was unable to work because of a disability. Her application was d e n ie d at the initial administrative level. The plaintiff then requested and received a hearing b e f o re an Administrative Law Judge ("ALJ"). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's d e c isio n consequently became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). The case is n o w before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1631(c)(3). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
1

S ta te s Magistrate Judge conducting all proceedings in this case and ordering the entry of final ju d g m e n t . Based on the court's review of the record in this case and the briefs of the parties, th e court concludes that the decision of the Commissioner should be reversed and this case r e m a n d e d to the Commissioner for further proceedings. I I . Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months . . . To make this determination,2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ."

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

2

2

M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. Whigham was 60 years old at the time she applied for disability b en ef its, (R. 57), and 62 years old at the time of the first hearing before the ALJ. (R. 585). S h e completed the tenth grade. (R. 578). Following the hearing, the ALJ concluded that

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

3

3

W h i g h a m has severe impairments of hepatitis B, diabetes mellitus, and status post breast c a n ce r. (R. 15). He further determined that the plaintiff's hiatal hernia, acid reflux, and h yp e rte n sio n were not severe impairments because these conditions were controlled by m e d ic a tio n and did not cause more than a minimal impact on Whigham's ability to work. (Id .). The ALJ concluded that because Whigham could return to her past relevant work as a clothes pricer or clothes hanger, she was not disabled. (R. 17). B. Plaintiff's Claims. Whigham presents two issues for the Court's review. As s ta te d by Whigham, they are as follows: 1. T h e Commissioner's decision should be reserved, because the ALJ c o m m itte d reversible error when he implicitly determined that Ms. W h ig h a m ' s degenerative disc disease of the lumbar spine resulted in a m e re non-severe impairment. T h e Commissioner's decision should be reversed, because the ALJ's R F C assessment lacks the support of substantial evidence.

2.

(P l's Br. at 3). I V . Discussion T h e plaintiff raises several issues and arguments related to this court's ultimate in q u iry of whether the Commissioner's disability decision is supported by the proper legal s ta n d a rd s and substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). H o w ev er, the court pretermits discussion of the plaintiff's second argument because the court c o n c lu d e s that the ALJ erred as a matter of law when he ignored evidence that the plaintiff s u f f e rs from degenerative disc disease.

4

T h e plaintiff argues that the ALJ erred when he "implicitly determined that Ms. W h ig h a m 's chronic back pain did not impact her ability to perform basic work activities." (P l's Br. at 3) (footnote omitted). More fundamentally, the court concludes that the ALJ e rre d at step two of the sequential analysis because he failed to properly consider whether the p lain tiff 's degenerative disc disease or its concurrent pain constitute severe impairments. It f o llo w s , therefore, that his determination that the plaintiff is not disabled is not supported by s u b s ta n tia l evidence. Whigham filed for disability in May 2004 alleging that she was disabled due to breast c a n ce r. (R. 70). Medical records demonstrate that on November 14, 2003, Whigham p re se n te d to the Southeast Alabama Medical Center complaining of sharp, moderate back p a in . (R. 307). She was diagnosed with acute myofascial strain. (R. 308). She was d isch arg ed with a prescription for Toradol and a note for light duty for three days. (R. 313). D u rin g a consultative examination on August 12, 2004, Whigham complained of severe a rth ritis in the hands and feet but did not complain about back pain. (R. 328). On November 15, 2004, Whigham presented to the Southeast Alabama Medical C e n ter complaining that she fell and injured her knee. (R. 366). She was prescribed Motrin a n d Lortab and discharged. (R. 379). She returned to the Southeast Alabama Medical Center in January 2005 complaining o f back and hip pain. (R. 479-80). An x-ray on January 5, 2005, revealed "mild grade I s p o n d ylo lis th e sis " at L4-5. (R. 391, 480). On January 29, 2005, Whigham presented to the

5

e m erg e n c y room complaining of Sciatica pain and was prescribed Ultram. (R. 470-78). On F e b ru a ry 17, 2005, Whigham requested more pain medication but was instead referred to the S o u th e rn Bone and Joint Clinic for evaluation. On February 20, 2005, Whigham presented to the emergency room complaining of back and sciatica pain (R. 457-65). She was p re sc rib e d Celebrex and Norflex for her back pain and Lorcet for her Sciatica pain. She was also referred to the Southern Bone and Joint Clinic for evaluation. (R. 458). O n March 8, 2005, Whigham presented at the emergency room complaining of back p a in . (R. 448-57). She was prescribed Anaprox and Norflex for her back pain and Lorcet fo r her Sciatica pain. (R. 449). O n March 11, 2005, Whigham presented to the Southern Bone and Joint Clinic (" C lin ic " ) complaining of back pain. (R. 390). According to Whigham, she had been s u f f erin g from back pain since she fell in November 2003. X-rays revealed degenerative s p o n s ylo lis th e s is at L4-5. (R. 390). She was treated with an epidural injection. (Id.). On September 26, 2005, Whigham presented to the Clinic complaining of lower back p a in and right leg pain. (R. 395). On January 20, 2006, Whigham presented to the emergency room complaining of ch ron ic low back pain that radiated down her leg. (R. 413-14). O n February 1, 2006, Whigham presented to the Family Health Clinic in Dothan, A la b a m a , complaining of pain. (R. 497). She complained that her back pain was no better d e sp ite an epidural injection at the emergency room as well as prescriptions for Flexeril and

6

U ltr a m . (Id.). Her back was tender to palpitation. (R. 498). She was prescribed Neurontin. ( I d .). On February 27, 2006, Whigham returned to the Clinic where she reported that while h e r back and leg pain were "much better," she still had back pain. (R. 493). On May 8, 2006, Whigham presented to the Family Health, complaining of back pain. (R . 490). She was diagnosed with "chronic low back pain with radiculopathy" and

p resc rib ed Neurontin. (R. 491). O n September 10, 2006, Whigham presented to the emergency room complaining of m o d e ra te to sharp back pain. (R. 503-13). She received an epidural injection as well as p resc rip tio n s for Flexeril and Ultram. (R. 513). D u rin g the administrative hearing held on September 11, 2006, Whigham asserted that s h e was disabled due to "[d]iabetes, hypertension, obesity, chronic back pain, which x-rays w ill reveal she has degenerative spondylolisthesis at L4-5, degenerative joint disease in the hands and legs, and the residuals of a mastectomy." (R. 577) (emphasis added).

W h ig h a m testified that she could not work because of her back. (R. 580). She testified that s h e can't sit for very long because her back starts to ache and she can't stand or walk. (R. 5 8 4 ). Q: A: Q: A: Q: M s. Whigham, going back to your back pain, is this something that's b e e n affecting you for awhile. Is that right? Y es. D o you experience pain in your back on a daily basis? Y es. D o e s your back pain ever radiating to any other parts of your body?

7

A: Q: A:

Y e s. My right leg. Mess with my nerve. D o you ever feel like your back goes out on you? Y es, sir. * * *

Q: A: Q: A: Q: A: Q: A: (R . 585-87).

A n d your back pain has required you to go to the emergency room m u l tip l e times? Y e s, it do. M o s t recently, you had to go yesterday? Y e s, I did. W h y did you have to go yesterday? B ec a u s e I was hurting about my pain, about seven or eight, you know. M s. Whigham, have you ever been administered epidural injections to a lle v ia te your pain? Y e s, I have.

D e sp it e this testimony and the numerous references in the record to back pain and d e g e n era tiv e disc disease, the ALJ simply ignored evidence that Whigham suffers from d e g e n e ra tiv e disc disease and chronic back pain. In this circuit, the law is clear. The Commissioner must consider a claimant's s u b je c tiv e testimony of pain if he finds evidence of an underlying medical condition, and e ith e r (1) objective medical evidence to confirm the severity of the alleged pain arising from th a t condition, or (2) that the objectively determined medical condition is of a severity that c a n reasonably be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460, 1 4 6 2 (11 th Cir. 1986); Landry v. Heckler, 782 F.2d 1551, 1553 (11 th Cir. 1986). If the C o m m iss io n e r fails to articulate reasons for refusing to credit a claimant's subjective pain te stim o n y, then the Commissioner has, as a matter of law, accepted the testimony as true.

8

T h is rule of law is well-established in this circuit. See Brown v. Sullivan, 921 F.2d 1233, 1 2 3 6 (11 th Cir. 1991); Holt v. Sullivan, 921 F.2d 1221 (11 th Cir. 1991); Hale v. Bowen, 831 F .2 d 1007 (11 th Cir. 1987); MacGregor v. Bowen, 786 F.2d 1050 (11 th Cir. 1986). P r io r to reciting the law and describing the medical evidence, the ALJ acknowledged th a t Whigham has impairments that would reasonably be expected to produce the type of p a in about which she complains but the ALJ then concluded that Whigham's testimony was " n o t entirely credible." (R. 16). In discrediting Whigham's testimony, the ALJ said the f o llo w in g : A f te r considering the evidence of record, the undersigned finds that the c la im a n t's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning th e intensity, persistence and limiting effects of these symptoms are not e n tire ly credible. (R . 21). Where an ALJ decides not to credit a claimant's testimony, the ALJ must articulate s p e c if ic and adequate reasons for doing so, or the record must be obvious as to the credibility f in d in g . Foote v. Chater, 67 F.3d 1553, 1561-62 (11 th Cir. 1995); Jones v. Dept. of Health & Human Servs., 941 D.2d 1529, 1532 (11 th Cir. 1991) (articulated reasons must be based o n substantial evidence). If proof of disability is based on subjective evidence and a credib ility determination is, therefore, critical to the decision, "`the ALJ must either explicitly d isc re d it such testimony or the implication must be so clear as to amount to a specific c re d ib ility finding.'" Foote, 67 F.3d at 1562, quoting Tieniber v. Heckler, 720 F.2d 1251,

9

1 2 5 5 (11 th Cir 1983) (although no explicit finding as to credibility is required, the implication m u s t be obvious to the reviewing court). In this case, the ALJ wholly failed to articulate any reason for discounting the p la in tif f 's credibility and her pain testimony. Rote recitation of the medical evidence is not a substitute for articulating clear reasons for discrediting the plaintiff. The ALJ's listing of th e plaintiff's medication regimen of Neurontin is not a reason to discredit her; it is a fact that s u p p o rts her condition. And it is not at all obvious to the court that the fact that Whigham ta k e s Neurontin for back pain and radiculopathy is at all sufficient to discredit her testimony a b o u t the severity of her pain. The facts recited by the ALJ might support reasons, but the A L J did not articulate those reasons. The ALJ's conclusory credibility analysis is simply d e f icie n t as a matter of law. The court notes that this is not the first time that it has seen this typ e of conclusory credibility analysis and is, quite frankly, disturbed by the frequency by w h ic h this flawed analysis continues to appear. Compounding the problem is the Commissioner's argument that any error by the ALJ a t step two of the sequential analysis is "surely harmless." (Mem. in Supp. of Comm'r Dec., a t 10). The Commissioner is painfully and patently wrong. In this circuit, "[p]ain is clearly a non-exertional impairment that limits the range of jobs the claimant can perform." Foote, 6 7 F.3d at 1559; Walker, 826 F.2d at 1003 ("Pain is a nonexertional impairment."). See also P h i llip s v. Barnhart, 357 F.3d 1232, 1242 fn 11 (11 th Cir. 2004) ("Nonexertional limitations o r restrictions affect an individual's ability to meet the other demands of jobs and include .

10

. . pain limitations. . .") Furthermore, in this circuit, pain itself can be disabling. See Foote, 6 7 F.3d at 1561; Marbury v. Sullivan, 957 F. 2d 837, 839 (11 th Cir. 1992). A lth o u g h the ALJ mentions Whigham's degenerative disc disease, he makes no f in d in g s regarding this condition or her pain in his disability determination. Consequently, h e makes no findings about whether the degenerative disc disease or her pain constitute s e v e re impairments. The severity step is a threshold inquiry which allows only "claims based o n the most trivial impairment to be rejected." McDaniel, 800 F.2d at 1031. Indeed, a severe im p a irm e n t is one that is more than "a slight abnormality or combination of slight a b n o rm a lities which would have no more than a minimal effect on an individual's ability to w o rk ." Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987) (citing with approval Social S e c u rity Ruling 85-28 at 37a). A physical or mental impairment is defined as "an impairment that results from a n a to m ic a l, physiological or psychological abnormalities which are demonstrable by m e d ic a lly acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §

1 3 8 2 c (a )(3 )(c ). The plaintiff has the "burden of showing that [her] impairments are `severe' w ith in the meaning of the Act." McDaniel, 800 F.2d at 1030-31. Once the plaintiff e sta b lis h e s that she suffers from a severe impairment, the ALJ is not entitled to ignore that e v id e n c e . Furthermore, because the ALJ simply ignored evidence that Whigham suffers from d e g e n e r a tiv e disc disease and pain, he could not have properly consider the effects of these

11

im p a irm e n ts on Whigham's ability to work. Consequently, the court is unable to determine w h e th e r the ALJ's conclusion that Whigham is not disabled is supported by substantial e v i d e n c e. In fact, that conclusion is contrary to the evidence. It is plain that the plaintiff s u f f ers from both a physical impairment as well as the non-exertional impairment of pain. W h a t is not plain is the effect of those impairments. "`Even a "mild" . . . impairment may " p re v e n t [a] claimant from engaging in the full range of jobs contemplated by the exertional c a te g o ry for which the claimant otherwise qualifies.'" Allen v. Sullivan, 880 F.2d 1200, at 1 2 0 2 (11 th Cir. 1989). F o r these reasons, the court concludes that the Commissioner erred as a matter of law, a n d that the case should be remanded for further proceedings regarding the severity of the p lain tiff 's degenerative disc disease and her concurrent pain, and their effect on her ability to work. The ALJ must consider every impairment alleged by the plaintiff and determine w h e th e r the alleged impairments are sufficiently severe ­ either singly or in combination ­ to create a disability. See Gibson v. Heckler, 779 F.2d 619, 623 (11 th Cir. 1986). All of the p lain tiff 's impairments must be considered in combination even when the impairments c o n s id e re d separately are not severe. Hudson v. Heckler, 755 F.2d 781, 785 (11 th Cir. 1985). In light of the ALJ's failure to fully and fairly consider the evidence in the record of th e plaintiff's degenerative disc disease and her concurrent pain, and the ALJ's failure to c o n d u c t a proper credibility analysis, the court concludes that the ALJ failed to meet his b u rd e n in this regard. As a result of his failure to consider the plaintiff's impairments in

12

c o m b in a tio n , doubt is necessarily cast upon the ALJ's conclusion that the plaintiff is not d is a b le d . V . Conclusion A c c o rd in g ly, this case will be reversed and remanded to the Commissioner for further p ro c e ed in g s consistent with this opinion. A separate order will be entered. D o n e this 13 th day of October, 2009.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

13