Davis v. Astrue (CONSENT)

Filing 19

MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Charles S. Coody on 10/3/2012. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
LINDA FAYE DAVIS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:11cv947-CSC
(WO)

MEMORANDUM OPINION and ORDER
The plaintiff, Linda Faye Davis (“Davis”), applied for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that she was
unable to work because of a disability.

Her application was denied at the initial

administrative level. The plaintiff then requested and received a hearing before 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 decision
consequently became the final decision of the Commissioner of Social Security
(Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is
now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(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
States Magistrate Judge conducting all proceedings in this case and ordering the entry of final
1

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.

judgment. Based on the court’s review of the record in this case and the briefs of the parties,
the court concludes that the decision of the Commissioner should be reversed and this case
remanded to the Commissioner for further proceedings.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable 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 12 months . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation 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
impairments 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?
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.”

2

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

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). 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.”
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (quotation marks
omitted). The court “may not decide the facts anew, reweigh the evidence, or substitute . .
. [its] judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240
n. 8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Davis was 52 years old at the time of the hearing before the ALJ,
and she has completed the twelfth grade. (R. 30). Following the hearing, the ALJ concluded
that Davis has severe impairments of fibromyalgia, sciatica, arthritis and pain in her joints

3

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).

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“all the time.” (R. 15). The ALJ concluded that the plaintiff was unable to perform her past
relevant work as a stocker, but, using the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404,
Subpt. P., App. 2, as a framework and relying on the testimony of a vocational expert, he also
concluded that there were significant number of jobs in the national economy that the
plaintiff could perform. (R. 22-23). Thus, the ALJ concluded that the plaintiff was not
disabled. (R. 23).
B. Plaintiff’s Claims. Davis presents four issues for the Court’s review. As stated
by Davis, they are as follows:
1.

The Commissioner’s credibility finding is not based on substantial
evidence.

2.

The Commissioner failed to provide good cause for rejecting treating
physician’s opinion.

3.

The new evidence submitted to the Appeals Council warrants remand.

4.

The Commissioner erred in properly evaluating the claimant’s RFC.

(Doc. # 14, Pl’s Br. at 7-16).
IV. Discussion
The plaintiff raises several issues and arguments related to this court’s ultimate
inquiry of whether the Commissioner’s disability decision is supported by the proper legal
standards and substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
However, the court pretermits discussion of the plaintiff’s specific arguments because the
court concludes that the ALJ erred as a matter of law, and, thus, this case is due to be

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remanded for further proceedings.
The Commissioner’s regulations require that a written decision contain several
elements.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphasis added). The ALJ’s written decision fails to state reasons
as required by the regulations.
During the administrative hearing, Davis testified that she suffers fibromyalgia and
osteoarthritis. “I have pain in my joints all the time.” (R. 32). She testified that she has been
treated at FirstMed in Dothan, Alabama, for many years for her chronic pain. (R. 33-34).
She suffers from pain in her knees, shoulders, neck, feet, and hands on a daily basis. (R. 3335).
The law is very well-established in this circuit. The Commissioner must consider a
claimant’s subjective testimony of pain if he finds evidence of an underlying medical
condition, and either (1) objective medical evidence to confirm the severity of the alleged
pain arising from that condition, or (2) that the objectively determined medical condition is
of a severity that can reasonably be expected to give rise to the alleged pain. Mason v.
Bowen, 791 F.2d 1460, 1462 (11th Cir. 1986); Landry v. Heckler, 782 F.2d 1551, 1553 (11th
Cir. 1986). If the Commissioner fails to articulate reasons for refusing to credit a claimant’s

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subjective pain testimony, then the Commissioner has, as a matter of law, accepted the
testimony as true. See Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991); Holt v.
Sullivan, 921 F.2d 1221 (11th Cir. 1991); Hale v. Bowen, 831 F.2d 1007 (11th Cir. 1987);
MacGregor v. Bowen, 786 F.2d 1050 (11th Cir. 1986).
Moreover, “[p]ain is clearly a non-exertional impairment that limits the range of jobs
the claimant can perform.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995); Walker,
826 F.2d at 1003 (“Pain is a nonexertional impairment.”). See also Phillips, 357 F.3d at 1242
fn 11 (“Nonexertional limitations or restrictions affect an individual’s ability to meet the
other demands of jobs and include . . . pain limitations. . .”) Furthermore, in this circuit, pain
itself can be disabling. See Foote, 67 F.3d at 1561; Marbury v. Sullivan, 957 F.2d 837, 839
(11th Cir. 1992).
Where an ALJ decides not to credit a claimant’s testimony, the ALJ must articulate
specific and adequate reasons for doing so, or the record must be obvious as to the credibility
finding. Foote, 67 F.3d at 1561-62; Jones v. Dept. of Health & Human Servs., 941 F.2d
1529, 1532 (11th Cir. 1991) (articulated reasons must be based on substantial evidence). If
proof of disability is based on subjective evidence and a credibility determination is,
therefore, critical to the decision, “‘the ALJ must either explicitly discredit such testimony
or the implication must be so clear as to amount to a specific credibility finding.’” Foote, 67
F.3d at 1562, quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir 1983) (although no
explicit finding as to credibility is required, the implication must be obvious to the reviewing

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court).
After reciting the law, the ALJ regurgitated Davis’ statements and testimony regarding
her pain. He then acknowledged that Davis has impairments that would reasonably be
expected to produce the symptoms about which she complains, but the ALJ then concluded
that her statements were not credible “to the extent that they are inconsistent” with his
residual functional capacity determination. (R. 19). In discrediting Davis’ testimony, the
ALJ’s credibility determination, in its entirety, is as follows:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional
capacity assessment.
(Id.).
The ALJ wholly fails to articulate any reason for discounting the plaintiff’s credibility
or her pain testimony. The ALJ’s determination amounts to nothing more than a recitation
of the applicable law, and a conclusory finding. There is no analysis whatsoever, leaving the
court to guess at the ALJ’s specific reasons for discounting Davis’ testimony. The ALJ
simply recounts what Davis reported. He does not evaluate her testimony or articulate any
reasons for discrediting it. The ALJ’s conclusory credibility and pain analyses are simply
deficient as a matter of law. It is the responsibility of the ALJ to conduct the appropriate
legal analysis, and his written decision must include sufficient reasoning to permit the court
to determine that he has done so. “In the absence of such a statement, it is impossible for a
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reviewing court to determine whether the ultimate decision on the merits is rational and
supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
The ALJ then compounded his errors by failing to properly consider the medical
records of Davis’ treating physicians from FirstMed. An ALJ must accord “substantial
weight” or “considerable weight” to the opinion, diagnosis, and medical evidence of the
claimant’s treating physician unless good cause exists for not doing so. Jones v. Bowen, 810
F.2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985).
The Commissioner, as reflected in his regulations, also demonstrates a similar preference for
the opinion of treating physicians.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations,
such as consultive examinations or brief hospitalizations.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)).
The ALJ’s failure to give considerable weight to the treating physician’s opinion is reversible
error. Broughton, 776 F.2d at 961-2. See also Lawton v. Comm’r of Soc. Security, 431 Fed.
Appx. 830, 835 (11th Cir. 2011) (remand to the agency is required when the ALJ fails to
properly determine weight and credibility of treating physicians’ opinions.)
After reviewing the medical records, the ALJ gave
significant weight to the opinion of Dr. Christopher Ahmed,4 who on July 8,
4

The court notes that Dr. James Ballard interpreted Davis’ MR scan, not Dr. Ahmed. (R. 278).

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2010, noted magnetic resonance imaging of the lumbar spine . . . showed mild
degenerative disc disease without evidence of disc bulge or herniation; mild
hypertrophic changes of facet joints with evidence of synovitis; and no
evidence of spinal stenosis . . .. The undersigned interprets the above to mean
that claimant has no difficulties with her lower extremities.
*

*

*

. . . The undersigned rejects the opinion of Oneil Culver, M.D., at Exhibit 7B
that opined claimant has a very sedentary life style with inability to bend at the
waist, squat, climb stairs, or stand for any significant time and claimant finds
sitting upright unsupported by her elbows unbearable with claimant in constant
pain throughout the day.
(R. 21).
The problem with the ALJ’s determination is two-fold. First, the ALJ may not
substitute his judgment for the judgments of Davis’ treating physicians. By “interpreting”
the MRI, he does just that. Next, and more importantly, while the ALJ rejects the opinion
of Dr. Culver, the ALJ makes no findings whatsoever regarding Davis’ other treating
physicians.
The ALJ may disregard the opinion of a physician, provided that he states with
particularity reasons therefor. Sharfarz v. Bowen, 825 F.2d 278 (11th Cir. 1987). While the
ALJ parroted portions of the medical evidence, he did not discuss the weight he assigns to
that medical evidence. For example, Davis testified that she was been treated at FirstMed
for over twenty years. (R. 33). The medical records from FirstMed demonstrate that Davis
was first complained of pain in her feet and legs on January 28, 2008. (R. 264) She was
diagnosed with fibromyalgia on September 11, 2008. (R. 265-66).

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On March 29, 2010, Davis was treated for knee pain. (R. 276-77) She had difficulty
standing from a squatting position. (Id.) She had tenderness to palpation “along medial and
lateral aspects of both knees.” (Id.) She was prescribed Tramadol for pain. (Id.) On April
26, 2010, she was again treated for knee pain, and diagnosed with osteoarthritis in her knees.
(R. 276). On July 6, 2010, she was treated for low back pain as well as pain in her lower
back, hips, thighs and legs. (R. 274-75). She displayed tenderness over the lower lumbar
region and over both SI joints. She had a reduced range of motion, and pain on forward
flexion and lateral bending. (Id.)

On July 14, 2010, Dr. Owens at FirstMed noted that

Davis had some “hypoesthesia over L5,”5 and prescribed Neurontin. (R. 274).
On March 24, 2010, Davis presented to FirstMed complained of knee pain and pain
on bending or lifting. (R. 256). Dr. Fountain noted that Davis’ bilateral knee pain was
worsening and injected her with Decadron. (R. 258). On July 1, 2010, Davis complained
for “constant leg and back pain.” (R. 254).
Despite this longitudinal treatment history, the ALJ completely ignores this medical
evidence which contradicts his interpretation that Davis “has no difficulties with her lower
extremities.” The ALJ is not free to simply ignore medical evidence, nor may he pick and
choose between the records selecting those portions which support his ultimate conclusion
without articulating specific, well supported reasons for crediting some evidence while
discrediting other evidence. Marbury, 957 F.2d at 840-841.

5

Hypoesthesia refers to a lack of sensation or reduced sensitivity.

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A mere statement that the ALJ carefully considered all the testimony and exhibits is
not sufficient to comply with his duty to state with particularity the weight given to different
medical evidence and to provide his reasoning for his decision. Sharfarz, 825 F.2d at 279;
Cowart, 662 F.2d at 735. The ALJ does not explain what specific evidence he relies on,
what weight he gives the evidence and why he relies on some evidence but not other
evidence. Although the ALJ finds that the plaintiff suffers from the severe impairment of
fibromyalgia, the ALJ does not discuss the effects of this impairment on Davis’ ability to
work. Consequently, the court cannot ascertain from the ALJ’s decision what consideration,
if any, the ALJ gave to the effect of Davis’ fibromyalgia on her ability to work. See
generally Dempsey v. Comm’r of Soc. Security, 454 Fed. Appx. 729, 733-34 (11th Cir. 2011)
(ALJ did not consider fibromyalgia and its symptoms on claimant’s ability to work). Without
an explanation of the weight accorded by the ALJ to all of the various medical opinions and
evidence, it is impossible for a reviewing court to determine whether the ultimate decision
on the merits of the claim is rational and supported by substantial evidence. Id.
Finally, because the ALJ did not delineate what evidence he considered, it is
impossible for the court to determine whether the vocational expert considered all of the
plaintiff’s impairments when testifying about her abilities. The ALJ determined that Davis
has the residual functional capacity to perform light work with mild postural limitations, and
“should not be hazards (sic) of heights or machinery.” (R. 16). Unfortunately, the ALJ
makes no more specific findings regarding Davis’ residual functional capacity taking into

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consideration the effects of her fibromyaglia or pain on her ability to stand, squat and walk,
or on her ability to lift, reach, handle or carry. At the administrative hearing, the ALJ posits
the following hypothetical question to the vocational expert.
Q:

Assume I find a hypothetical individual, the same age as Ms. Davis, the
same educational level and vocational ability. In addition, I find that
following additional limitations, that this hypothetical individual can
perform a full range of light work with mild or moderate postural
limitations with mild manipulative limitations, environmental
limitations would be avoiding hazardous, dangerous machinery and
heights and there would be no mental limitations. Given those
limitations, would this hypothetical person be able to perform the work
in which Ms. Davis previously performed?

A:

Yes sir.

Q:

Given the same limitations, would there be any jobs in this region and
the nation that such a hypothetical person could perform?

A:

Yes sir.

(R. 39-40).
Although the ALJ relied on the testimony of the vocational expert to determine that
Davis is not disabled, the court is unable to determine what evidence the ALJ relied upon
to reach his RFC determination. Consequently, the court cannot determine whether the
ALJ’s residual functional capacity determination is supported by substantial evidence, and
doubt is necessarily cast upon the vocational expert’s testimony and the ALJ’s conclusion
that the plaintiff is not disabled
“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s
duty to investigate the facts and develop the arguments both for and against granting
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benefits.” Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty
of the ALJ to investigate the facts and develop the arguments both for and
against granting benefits; review by the Appeals Council is similarly broad.
Id. The regulations also make the nature of the SSA proceedings quite clear.
They expressly provide that the SSA “conducts the administrative review
process in an informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
For these reasons, the court concludes that the Commissioner erred as a matter of law,
and that the case should be remanded for further proceedings. And, since this case must be
remanded, the plaintiff will have an opportunity to present updated evidence to the ALJ,
including the evidence submitted to the Appeals Council.
Accordingly, this case will be reversed and remanded to the Commissioner for further
proceedings consistent with this opinion. It is further
ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273,
1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after she receives notice
of any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C. § 406(b).
See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11th Cir. 2008). A separate final
judgment will be entered.
Done this 3rd day of October 2012.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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