Duey v. Colvin (CONSENT)

Filing 18

MEMORANDUM OPINION AND ORDER: it is ORDERED that the decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this opinion. Signed by Honorable Judge Gray M. Borden on 9/18/2017. (Copies furnished to SSA Chief Judge and SSA Office of Hearings and Appeals) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSHUA KYLE DUEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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CASE NO. 1:16-cv-372-GMB
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Joshua Kyle Duey filed this action on May 24, 2016, seeking judicial
review of a final adverse decision of the Commissioner of Social Security denying his
application for a period of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security Act. Doc. 1. Duey applied
for benefits for a disability with an alleged onset date of December 10, 2012. His
applications were denied at the initial administrative level. Duey then requested and
received a hearing before an Administrative Law Judge (“ALJ”) on July 10, 2014.
Following the hearing, the ALJ denied Duey’s claims. The Appeals Council rejected a
subsequent request for review, making the ALJ’s decision the final decision of the

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin, Acting
Commissioner of Social Security, as the defendant in this lawsuit. No further action needs to be taken to
continue this lawsuit pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The Clerk
of Court is DIRECTED to take the appropriate steps to reflect this change on the docket sheet.

Commissioner of Social Security (the “Commissioner”).2
With briefing complete, this case is now ripe for review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). The parties have consented to the entry of a final judgment by
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b), Rule 73
of the Federal Rules of Civil Procedure, and Rule 73.1 of the Local Rules for the United
States District Court for the Middle District of Alabama. Docs. 9 & 10. Based upon a
review of the evidentiary record, the parties’ briefs, and the relevant authority, the court
finds that the Commissioner’s decision is due to be REVERSED and REMANDED, as
explained below.
I. STANDARD OF REVIEW
The court reviews a social security case to determine whether the Commissioner’s
decision “is supported by substantial evidence and based upon proper legal standards.”
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court “may not decide the
facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner,”
but rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (internal quotation marks
omitted). Indeed, the court must affirm the Commissioner’s decision “if it is supported by
substantial evidence and the correct legal standards were applied.” Kelly v. Apfel, 185 F.3d
1211, 1213 (11th Cir. 1999) (citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.

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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.
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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.” Jones ex rel.
T.J.J. v. Astrue, 2011 WL 1706465, at *1 (M.D. Ala. May 5, 2011) (citing Lewis, 125 F.3d
at 1440). The court must scrutinize the entire record to determine the reasonableness of
the decision reached. Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir. 1987). “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 a finder of fact, and even if the
court finds that the evidence preponderates against the Commissioner’s decision.” Jones,
2011 WL 1706465, at *2 (citing Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991)). The court will reverse the Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the court with sufficient
reasoning to determine that the Commissioner properly applied the law. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991); Jones, 2011 WL 1706465, at *2 (citing
Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). There
is no presumption that the Commissioner’s conclusions of law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
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 12 months.” 42 U.S.C. § 423(d)(1)(A); 42
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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).
Duey bears the burden of proving that he is disabled, and he is responsible for producing
evidence to support his claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003).
Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). Specifically, the Commissioner must determine in
sequence:
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’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 claimant unable to perform his or her former occupation?
(5) Is the claimant unable to perform any other work within the economy?
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 (quoting 20 C.F.R. § 416.920(a)−(f)). “Once
the finding is made that a claimant cannot return to prior work the burden of proof shifts to
the Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d 1553,
1559 (11th Cir. 1995) (citing Gibson v. Heckler, 762 F.2d 1516 (11th Cir. 1985)).

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III. DISCUSSION
A.

Facts
Duey was 25 years old on the alleged disability onset date. He has a ninth-grade

education and prior work experience as a structural steel worker and butcher’s assistant.
Duey is married, but he testified at the hearing before the ALJ that he had been
separated from his wife for three years. Duey also testified during the hearing that he began
living with his mother after he and his wife separated so that his mother could help him
take care of his twin daughters who were then two years old; however, it is unclear from
the record exactly when Duey began living with his mother. A June 4, 2013 psychological
report from Dr. Scott Stewart states that Duey lived alone, at least at that time. However,
Duey’s mother, Vicki Faircloth, provided written statements on June 21, 2013 and June 18,
2014, stating that Duey lives with her. Duey’s estranged wife, Kaylin Bryant, also
provided a written statement on June 5, 2014, stating that Duey lives with Faircloth. Duey
testified that he watches his daughters, with his mother’s help, during the day while their
mother works two jobs; his daughters stay with their mother most nights.
The ALJ held an administrative hearing on July 10, 2014. Following that hearing,
the ALJ found that Duey had not engaged in substantial gainful activity since the alleged
disability onset date of December 10, 2012. The ALJ then concluded that Duey had the
severe impairments of status post C1 fracture; status post comminuted fracture of L3 body
with discectomy and instrumentation L2-L4; left foot drop; status post traumatic brain
injury; depression; and marijuana abuse, but that none of those impairments or a
combination of those impairments meets or medically equals the severity of one of the
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listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Ultimately, the ALJ found that
Duey was not disabled within the meaning of the Social Security Act and denied his claims.
B.

Issues Presented
Duey presents four issues for the court’s review: (1) whether the ALJ erred by

failing to consider the written statements of his mother, Vicki Faircloth, or his estranged
wife, Kaylin Bryant; (2) whether the ALJ failed to apply the pain standard properly; (3)
whether the ALJ erred in assessing Duey’s residual functional capacity; and (4) whether
the ALJ erred in assigning substantial weight to the opinion of the non-examining
reviewing physician.3 Doc. 12. The Commissioner contends that the ALJ made proper
determinations supported by substantial evidence on the record as a whole. Doc. 13. For
the reasons that follow, the court finds that the Commissioner’s decision is due to be
reversed and remanded with respect to the first two issues raised by Duey. As a result of
these findings, the court pretermits a discussion of the other two issues raised by Duey.
C.

Analysis
In finding Duey not disabled, the ALJ relied heavily on the fact that Duey lives

alone. Indeed, at the step three analysis (i.e., whether Duey has an impairment or a
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Subpart P, Appendix 1), the ALJ concluded that Duey has

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These are the issues as presented by Duey in his brief. See Doc. 12 at 1. Any other issue not raised before
the court is deemed waived. See Dial v. Berryhill, 2017 WL 459859, at *3 (M.D. Ala. Feb. 2, 2017) (citing
Simpson v. Comm’r of Soc. Sec., 423 F. App’x 882, 885 (11th Cir. 2011) (concluding in a social security
case that issues not raised before the district court are waived)).
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moderate restriction in activities of daily living because, among other things, he “lives
alone and can independently manage his activities of daily living.” Doc. 14-2 at 17. In
determining that Duey has the residual functional capacity to perform sedentary work with
certain postural, environmental, and mental limitations, the ALJ relied on, among other
things, his finding that Duey “lives alone” (although the ALJ also acknowledged that
Duey’s mother helps him take care of his daughters). Doc. 14-2 at 19. In giving “little
probative weight” to Duey’s testimony about the severity of his impairments, the ALJ
noted Dr. Stewart’s June 2013 psychological consultative examination, which reflected
that Duey “lived” by himself and received no assistance with activities of daily living
functions. Doc. 14-2 at 20. Ultimately, the ALJ expressly rejected Duey’s subjective
complaints of pain because, among other considerations, he “remained capable of a wide
range of activities of daily living including take care of two young children and living
alone.” Doc. 14-2 at 21.
Duey contends that the ALJ erred by finding that he was not disabled, in part,
because he lives alone and does not need assistance from others in his activities of daily
living, despite the fact that his mother and his estranged wife both submitted written
statements representing that Duey lives with his mother, rather than alone. The court
agrees that it was error for the ALJ not to consider the testimony by Faircloth and Bryant
that Duey lives with his mother and to rely on Duey “living alone” to discount his
credibility and, ultimately, to find that he is not disabled.
In a disability appeal report from June 21, 2013, Faircloth stated that Duey lives
with her. Doc. 14-6 at 251. On June 5, 2014, Bryant submitted a written statement that
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Duey lives with his mother and that he could no longer take care of his children like he
could before his disability. Doc. 14-6 at 265. On June 18, 2014, Faircloth submitted
another written statement representing that Duey lives with her and that she provides most
of the daily care for his young daughters. Doc. 14-6 at 276-77. Even Duey testified at the
July 2014 hearing before the ALJ that he “lives with [his] Mom now” and that he has been
living with her since he separated from his wife three years earlier so he could have help
taking care of his daughters. Doc. 14-2 at 38.
The ALJ did not address or even mention this evidence in his decision. Rather, he
appears to have relied on Dr. Stewart’s June 4, 2013 consultative psychological report,
which reflects that Duey “lives by himself” and receives no assistance with activities of
daily living. Doc. 14-8 at 378.

However, Dr. Stewart’s report predates Faircloth’s

representations in the June 21, 2013 disability report and her June 18, 2014 written
statement that Duey lives with her; Bryant’s June 5, 2014 statement that Duey lives with
his mother; and Duey’s own testimony during the administrate hearing in July 2014 that
he lives with his mother. To the extent that it is unclear from the July 2014 hearing
testimony precisely when and for how long Duey has been living with his mother, the ALJ
made no attempt to clarify this issue with additional questioning. At best, there is
conflicting evidence concerning whether Duey actually lived alone during the relevant time
period, and at worst the ALJ ignored this contradiction.
The Commissioner urges the court to overlook this error by the ALJ because the
testimony of Faircloth and Bryant was duplicative of Duey’s testimony. While this may
be true with respect to certain aspects of their testimony, like Duey’s inability to lift his
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daughters, it is not duplicative on the issue of whether he lived alone. If anything, the
evidence on this particular issue is conflicting. See Ladd ex rel. J.J.L.G. v. Colvin, 2014
WL 1230255, at *9 (S.D. Ala. Mar. 25, 2014) (finding that ALJ erred in not mentioning or
discussing evidence from non-medical source); Starks v. Astrue, 2008 WL 1805438, at *4
(M.D. Ala. Apr. 18, 2008) (finding that ALJ erred by misstating medical expert’s testimony
and then relying on that misstated testimony in rendering his step 3 decision).
The court is also not persuaded by the Commissioner’s argument that the ALJ’s
statement that Duey “lives” alone—rather than “lived” alone, as he testified—was a
typographical error. Doc. 13 at 6. Such an argument is believable if the error happened
once, but for the ALJ to state that Duey lives alone three different times was hardly
unintentional.4 Doc. 14-2 at 17 (“The claimant lives alone”), 19 (“The claimant lives
alone”) & 21 (“living alone”).
“There is no requirement in the Social Security regulations or rulings that the ALJ
assign any weight to non-medical sources, only that the evidence be considered.” Reed v.
Astrue, 2009 WL 3571699, at *3 (S.D. Ala. Oct. 26, 2009) (citing 20 C.F.R. § 416.913(d);
SSR 06-03p). However, the “ALJ has a duty to make clear the weight accorded to each
item of evidence and the reasons for his decision in order to enable a reviewing court to
determine whether the decision was based on substantial evidence.” Id. “Indeed, findings
may be by implication if they are obvious to the reviewing court.” Ladd, 2014 WL

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Although the ALJ references Duey’s living situation four times in his decision, only three of those
references state that he lives or is living alone. Doc. 14-2 at 17 (“lives alone”), 19 (“lives alone”) & 21
(“living alone”). The fourth reference states that Duey “lived” alone. Doc. 14-2 at 20 (“lived by himself”).
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1230255, at *10 (internal quotation marks omitted). In this case, “despite the ALJ’s
assertion that he considered all of the relevant evidence in the case record, it is far from
clear, for the reason set forth above, that the ALJ appropriately considered the ‘other
source’ evidence,” particularly when he repeatedly stated that Duey lives alone, even
though the statements from Faircloth, Bryant, and even Duey contradict this conclusion.
For these reasons, the court finds that remand is warranted on the issue of whether the ALJ
failed to consider the written statements of Faircloth and Bryant. On remand, the ALJ shall
reconsider whether Duey lived alone or with his mother during the relevant time period
and, in so doing, shall specifically consider the written statements provided by Faircloth
and Bryant.
The ALJ’s finding that Duey lives alone also tainted his application of the pain
standard to Duey’s claims. Subjective complaints of pain and other limitations may
establish the presence of a disabling condition if supported by medical evidence. See Foote
v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). In the Eleventh Circuit, to establish
disability based on pain and other subjective symptoms, a claimant must present (1)
evidence of an underlying medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that condition or (3) evidence that
the objectively determined medical condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005). “Once a claimant has met the pain standard, the ALJ may still discredit the
claimant’s subjective testimony of pain and other symptoms if he articulates explicit and
adequate reasons for doing so based on substantial evidence.” Harmon v. Colvin, 2013 WL
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4827549, at *3 (N.D. Ala. Sept. 10, 2013) (citing Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002)).
Here, the court assumes, without deciding, that Duey met the pain standard. The
problem arises with the reasons the ALJ provided for finding his subjective complaints of
pain not to be credible. One of those reasons was that, despite Duey’s complaints of pain
and other disabling symptoms, “he nonetheless has remained capable of a wide range of
activities of daily living including taking care of two young children and living alone.”
Doc. 14-2 at 21. However, the court has already concluded that, at best, there is a
conflicting evidence as to whether Duey did indeed live alone during the relevant time
period. Both his mother and his estranged wife testified that he lived with his mother and
not alone. Thus, the ALJ’s rationale for discounting Duey’s credibility was defective to
the extent he relied on the fact that Duey lives alone. For this reason, the court finds that
remand is warranted on whether the ALJ properly applied the pain standard to Duey’s
claims. On remand, the ALJ should reapply the pain standard to Duey’s claims following
a reevaluation of whether Duey lived alone or with his mother during the relevant time
period.
IV. CONCLUSION
The court has carefully and independently reviewed the record and concludes that,
for the reasons stated above, it is ORDERED that the decision of the Commissioner is
REVERSED and REMANDED for further proceedings consistent with this opinion. A
final judgment will be entered separately.

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DONE this 18th day of September, 2017.

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