Forte v. Astrue

Filing 19

MEMORANDUM OPINION: This case will be reversed and remanded to the Commissioner with directions for an award of benefits. Signed by Honorable Charles S. Coody on 3/6/2009. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S A N D R A S. FORTE, 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. 2:08cv52-CSC (WO)

M E M O R A N D U M OPINION I . Introduction T h e plaintiff applied for disability insurance benefits pursuant to Title II of the Social S e c u rity Act, 42 U.S.C. §§ 401 et seq., alleging that she was unable to work because of a d is a b ility. Her application was denied at the initial administrative level. The plaintiff then re q u e ste d and received a hearing before an Administrative Law Judge ("ALJ"). Following t h e hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent r e q u e s t for review. The ALJ's decision consequently became the final decision of the C o m m issio n er of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 1 3 1 (11 th Cir. 1986). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties h a v e consented to the United States Magistrate Judge conducting all proceedings in this case a n d ordering the entry of final judgment. The case is now before the court for review
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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p u rs u a n t to 42 U.S.C. §§ 405 (g). Based on the court's review of the record in this case and th e briefs of the parties, the court concludes that the decision of the Commissioner must be re v e rs e d and this case remanded with directions to award benefits. II. 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.

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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 supports 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 s o n a b le n e s s 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. Plaintiff Sandra Forte ("Forte") was 38 years old at the time of the h e a rin g before the ALJ. (R. 444-46). She has a high school education. (R. 23, 447). Her p rio r work experience includes work as a machine operator, tester, and cashier. (R. 23).

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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F o llo w in g the hearing, the ALJ concluded that Forte has severe impairments of degenerative d isc disease and major depression. (R. 18). The ALJ concluded that the plaintiff was unable to perform her past relevant work, and, relying on the testimony of a vocational expert, c o n c lu d e d that there were jobs existing in significant numbers in the national economy that F o r te could perform. (R. 24). Accordingly, the ALJ concluded that Forte was not disabled. B. Plaintiff's Claims. As stated by the plaintiff, Forte presents two issues for the C o u rt's review: 1. T h e administrative law judge failed to adequately articulate his analysis o f Ms. Forte's testimony and credibility, especially in light of Ms. F o rte 's fibromyalgia. T h e administrative law judge failed to provide any analysis of State a g e n cy opinion.

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(P l's Br. at 10, 14). IV. Discussion F o r te raises several issues and arguments related to this court's ultimate inquiry of w h e th e r the Commissioner's disability decision is supported by the proper legal standards a n d by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). However, th e court pretermits discussion of Forte's specific arguments because they are intertwined w ith broader errors of the ALJ, and the court concludes that this case is due to be remanded f o r an award of benefits. T h e ALJ concluded that Forte suffers from severe impairments of degenerative disc d ise a se and major depression. However, the medical evidence also demonstrates that Forte 4

s u f f ers from fibromyalgia, carpel tunnel syndrome in both hands, chronic impingement syn d ro m e of the right shoulder, bulging discs, ulcerative colitis, pain disorder with p s yc h o lo g ic a l factors, and chronic migraine headaches. In 1986, Forte was diagnosed with ulcerative colitis. (R. 204). In 1998, she suffered a severe episode that necessitated her seeking treatment. (Id.) On October 3, 2000, Forte sought treatment for back, hip and leg pain. (R. 192-93). D u e to tender points on palpation, she was diagnosed with right sciatic notch pain. (Id.) An M R I revealed degenerative disc disease at L5-S1 with some minimal disc bulging and " d e cre a se d T2 signal in the lower two lumbar discs without any obvious herniation or s te n o sis ." (R. 190, 192). Examination revealed decreased flexion and range of motion in the sp ine. Prior treatment with Vioxx, Lorcet and prednisone injections offered only temporary re lief . (R. 190). On December 8, 2000, Forte called Dr. Bernard, her treating physician, to c o m p la in that neither the Vioxx nor the prednisone trigger point injections had been e f f e c tiv e . (R. 189). Dr. Bernard increased the dosage of Vioxx. (Id.) On December 11, 2000, Forte had "diffuse tenderness over the cervical paraspinal re g io n and over the right flank," despite having a full range of motion. (R. 186). Her m e d ic a tio n was changed from Vioxx to Zanaflex and Wygesic for pain. (Id.). She was also re f e rr e d to physical therapy. (Id.) Forte continued to have diffuse tenderness over the lu m b a r region. (R. 183). Her prescription for Zanaflex was discontinued as it irritated her G I tract. (Id.). On February 16, 2001, Forte was much improved and continued to work

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w h ile wearing back support. (R. 182). Due to her chronic ulcerative colitis, on May 21, 2001, Forte underwent a colonoscopy w ith biopsy. (R. 199-202). There were minimal changes. (R. 199). She continued to follow u p with her treating physician for this condition. (R. 198). O n September 21, 2001, Forte returned to her treating physician complaining of pain in the back and left hip. (R. 181). She had previously been treated with Celebrex and Lorcet. S h e had decreased range of motion. (Id.). She was continued on her medication and referred to physical therapy. On June 17, 2002, Forte was seen by Dr. Bernard for neck, back, and right shoulder p a in . (R. 176). Two months earlier she was involved in a motor vehicle accident. She was tre a te d conservatively with pain medication but her pain had increased. (Id.) Her range of m o tio n was decreased in her lumbar spine and a May 23, 2002, MRI revealed degenerative c h a n g es at C5-6. (R. 177). She was diagnosed with cervical and lumbar strain and continued o n her medications. (Id.) On July 19, 2002, Forte had "diffuse tenderness over the paraspinal region." (R. 174). S h e was prescribed Vioxx again for the cervical strain. (Id.). On September 20, 2002, Forte w a s prescribed Neurontin because the pain was preventing her from sleeping. (R. 171). On October 11, 2002, Forte was in another car accident. (R. 170). She returned to D r . Bernard on October 18, 2002. Prior to the accident, she had been going to physical th e ra p y and was "about 50 percent improved." (Id.). An examination revealed a decreased

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ra n g e of motion and diffuse tenderness over the sternum. (Id.). Her diagnosis was "cervical s tr a in and lumbar strain superimposed on patient who has had a pre-existing symptomatic c e rv ic a l spondylosis." (Id.) She was continued on Vioxx and the dosage of her Neurontin w a s doubled. (Id.). Because an increase in her pain necessitated a trip to the emergency ro o m , Dr. Bernard suggested Forte undergo rheumatological testing. (R. 168). On November 15, 2002, Dr. Bernard noted that Forte's Rheumatoid factor was e le v a te d and that her family history was positive for Lupus. (R. 166). Her range of motion w a s also decreased. (Id.) He recommended repeating the rheumatoid testing and obtaining a n updated MRI. (Id.). On December 20, 2002, Forte presented to Dr. Bernard complaining o f "neck pain, right arm pain, back pain, left hip pain, and pain over the costochondral region o n the left side at about the T-4-T5 region." (R. 165). An MRI revealed a bulge in a disc at th e cervical spine as well as the lumbosacral junction. (Id.) Her rheumatological profile was a b n o rm a l. (Id.) On March 6, 2003, Forte was diagnosed with lumbar spondylosis, inflammatory bowel d isease and scaroiliitis. (R. 161). S a n d ra Forte was in today for followup. She has undergone further workup by D o c to r Vivas. She has had x-rays and bone scan, which showed some uptake in the left SI joint region. There were some concerns about osteitis condensans i l ii . G iv e n her symptoms and somewhat multiple somatic complaints about her n e c k and back, I am beginning to think an inflammatory etiology is probably th e right diagnosis. She has an abnormal disc on MRI. We have contemplated d isco g rap h y. She may have two problems. One problem is inflammatory c o n d itio n and second is a symptomatic lumbar disc. 7

(R . 161). She was prescribed a TENS unit as Dr. Vivas had previously prescribed Elavil. ( I d .). On April 17, 2003, Forte presented to Dr. Bernard complaining of neck and back pain. H e r range of motion in her lumbar spine was decreased but she had full range of motion in h e r cervical spine. A small bulging disc was noted at C5-6. Dr. Bernard renewed her Vioxx a n d Neurontin prescriptions as well as her TENS unit. He did not recommend surgical in te rv e n tio n . (R. 160). On June 10, 2003, Forte underwent a colonoscopy as a follow-up for her ulcerative c o litis . (R. 148-49). At that time, the disease was active and worsening. (Id.) O n September 5, 2003, Dr. Bernard referred Forte to a pain clinic. (R. 158). On J a n u a ry 22, 2004, Dr. Bernard noted that she was "a cogwheel type algidity (sic) in the s h o u ld e rs ." (R. 157). A MRI on January 22, 2004, indicated "[m]ild early cervical

s p o n d ylo s is at the level of C5-6 with mild posterior bulge impinging upon the thecal sac but n o t upon the cervical spinal cord. There is some mild early left-sided neural foraminal n a rro w in g at this level." (R. 194). Because the MRI revealed minimal findings, and Forte c o n tin u e d to experience neck pain and weakness, Dr. Bernard recommended a referral to a rh e u m a to lo g is t or neurologist. (R. 156). He also prescribed a Medrol dosepak. (Id.). On February 25, 2004, Forte was seen by internist Dr. Roman. (R. 250-53). She c o m p la in e d of chest pain, ulcerative colitis, extensive abdominal pain, neck and shoulder p a in , with pain radiating to the arms. (R. 258).

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O n March 16, 2004, rheumatologist Dr. In Young Soh informed Dr. Roman that he w a s treating Forte for fibromyalgia syndrome using Elavil. (R. 152). He also suggested that F o rte follow up with an orthopedic surgeon and physical therapy. (Id.) Forte saw Dr. Bernard on June 4, 2004. At that time, she was taking Topamax, B e x tra , Desyrel and Baclofen. Although she had "almost" a full range of motion in her neck, sh e had pain in her right shoulder. (R. 153). O n July 7, 2004, Forte underwent a psychological evaluation by licensed psychologist J. Walter Jacobs. (R. 217-19). During the examination, Forte was in obvious discomfort. (R . 217). Dr. Jacob opined that Forte was suffering from "Pain Disorder Associated with B o th Psychological Factors and a General Medical Condition, Major Depression, Recurrent, M o d e ra te , [and] Anxiety Disorder NOS." (R. 218-19). She was also suffering from Low B ac k Syndrome, Neck Pain and Ulcerative Colitis. (R. 219). Dr. Jacobs opined that Forte's m e d ic a tio n s of trazodone and amitriptyline were below therapeutic levels necessary to treat h e r depression. (Id.) Forte continued to be treated for pain at the Southeast Pain Management Center.4 (R. 2 2 1 -24 ). O n August 3, 2004, Forte underwent surgery for chronic impingement syndrome and rotator cuff surgery. (R. 209-15). An MRI confirmed a tear in her tendon. (R. 209, 354). F o rte immediately began rehabilitative therapy. (R. 334-38, 339-56).
According to Forte, she had been treated at the Pain Management Clinic since October 2002. (R. 217). She was not a candidate for surgery because surgery "would likely worsen" her condition. (Id.).
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O n September 28, 2004, Forte participated in psychotherapy to help distract her from h e r preoccupation with pain. (R. 216). On September 29, 2004, the physical therapist noted that Forte might be experiencing e a rly symptoms of RSD/shoulder hand syndrome. (R. 333). On October 6, 2004, Dr. Lolley a d d e d cervical traction to her physical therapy, noting that Forte was "very emotional and d ep resse d " during therapy. (R. 331). Forte continued with physical therapy. (R. 323-30). O n November 15, 2004, after positive Tinel tests, Dr. Roman diagnosed Forte as s u f f erin g from bilateral carpel tunnel syndrome. (R. 240-41). Dr. Roman next saw Forte on D e c em b e r 5, 2004. (R. 227-35). At that time, Forte had "palpation focal tenderness" over h er trapezius. Nerve conduction tests also confirmed carpel tunnel syndrome. (R. 228, 266). O n December 20, 2004, Forte was referred to the University of Alabama R h e u m a to lo g y Clinic for an evaluation of her diffuse pain and previously diagnosed f ib ro m ya lg ia . (R. 398-407). [T]he patient was diagnosed with fibromyalgia by Dr. Soh in Dothan. The p a tie n t was provided Elavil and neck MRI revealed minimal cervial (sic) s p o n d ylo s is was noted. Orthopedic evaluation of physical therapy was re c o m m e n d e d . The patient states she has been seen at the Southeast Pain M a n a g em e n t Center for several months, undergoing epidural and selective n e rv e root blocks. She notes that these provide transient relief (approximately o n e to two weeks). Based on the records she provides this visit, her most re c en t evaluation there was 10/08/04. She notes her Elavil has recently been c h a n g ed to Cymbalta last week. The patient reports diffuse pain in bilateral a rm s , legs, hands, buttocks, back. She notes some episodes of dizziness and lig h th ea d ed n ess. I asked her if she has discussed with her primary care p h ys ic ia n and she states that she had. The patient reports she was provided w h a t sounds like a Holter monitor last month and no significant abnormalities w e re identified. The patient also notes carpal tunnel was diagnosed. She 10

c a n n o t assess that she has prolonged morning stiffness, stating she hurts and f e els stiff around the clock. She believes she has had some swelling in the b ilate ra l MCP joints and around the bilateral IP joints. She is not sleeping well d e sp ite increasing doses of trazodone. She is not participating in any aerobic e x e rc is e at this time. She is also using Darvocet and Lortab provided by her p ri m a r y care physician. Throughout the encounter, she had episodes of te a r f u ln e s s and notes frustration over her condition. She notes some stress o v e r discussing her condition with her children. Her mother reports weight lo ss over the past several months (approximately 15 pounds over the past six m o n th s ). . . . (R. 398). D if f u s e tender points were noted at the bilateral lower and upper extremities. (R. 3 9 9). Dr. Turkiewicz confirmed Forte's diagnosis of fibromyalgia based on "non-restorative s le e p , diffuse myalgias, and associated conditions (carpal tunnel syndrome)." (R. 399). Forte was discharged from rehabilitative therapy on December 22, 2004, having re a ch e d an "[a]cceptable level of therapeutical goals attained with some unresolved im p a irm e n t that is not amendable to physical therapy." (R. 322). On January 10, 2005, Forte returned to Dr. Turkiewicz for a follow-up evaluation of h er diffuse pain. (R. 394-97). Her blood work "revealed mildly positive rheumatoid factor, . . . but negative anti-CCP antibody." (R. 394). A review of x-rays indicated mild joint s p a c e narrowing, bilaterally in the hands. (R. 395). Dr. Turkiewicz's assessments included: m ic ro s c o p ic hematuria, fibromyalgia, positive rheumatoid factor, ulcerative colitis and n a rc o tic use (from her treating primary physician). (Id.) Dr. Turkiewicz referred Forte to p h ys ic a l therapy. (R. 321). On January 24, 2005, Forte presented for physical therapy. (R. 318-20). She had 11

d e c re a se d cervical mobility, decreased range of motion in her spine, muscle spasms and " m u ltip le trigger points noted bilateral upper traps, levator scap, rhomboids, and suboccipital m u sc les ." (R. 319). On January 26, 2005, Forte was extremely sensitive to touch with m u l ti p l e trigger points noted. (R. 317). On January 27, 2005, Forte's trigger points and in f la m m a tio n had decreased but she still had muscle spasms and was tender to palpation. (R. 3 1 6 ). On February 1, 2005, the physical therapist noted improvement on the trigger points b u t tightness and tenderness remained. (R. 315). Forte was seen by Dr. Turkiewicz on February 3, 2005. (R. 392-93). Dr. Turkiewicz re c o m m e n d e d continued physical therapy for fibromyalgia to manage her tender points and im p ro v e her range of motion. (R. 393). He also recommended continuing on Effexor and tra z o d o n e while discontinuing Cymbalta and Elavil. (Id.). Forte continued with physical thera p y with some improvement. (R. 300-13). O n December 20, 2005, Forte complained to Dr. Turkiewicz of migraine headaches a n d diffuse pain. (R. 363-64). Her regimen currently includes Cymbalta and trazodone, although she reports s h e ran out of Cymbalta earlier this week. She has also been provided Imitrex f o r migraines, although she reports continued problems with chronic and th ro b b in g headaches in the frontal and occipital lobes. She has problems with c h ro n ic neck and shoulder pain, which is exacerbated by her migraines. She h a s had no joint swelling in the interim. She is no longer on Effexor of F le x e ril. She sees a local psychologist and gets Cymbalta from that office. S h e is not participating in any aquatic or physical exercise at this juncture. She n o te s diffuse myalgias without change. Otherwise, no new complaints. (R . 363).

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D r . Turkiewicz again confirmed the diagnosis of fibromyalgia with her "most d o m in a n t symptom appear[ing] to be her chronic and progressive migraine headaches." (R. 3 6 4 ). Dr. Turkiewicz also recommended a neurological evaluation of her migraine

h e a d a c h e s and a return to physical therapy. (Id.). On January 3, 2006, the physical therapist noted "[a]ctive trigger points . . . th r o u g h o u t upper back and neck." (R. 379). On January 6, 2006, Forte tolerated physical t h e r a p y, although she was "very tender upon palpation in bilateral c-spine and B upper tra p e ziu s muscles." (R. 371). On January 18, 2006, Forte complained to the therapist of in c re a se d headaches, pain bilaterally in upper trapezius and cervical areas, and radicular pain b ilate r a ll y down her back. (R. 369). In February 2006, Forte was still experiencing pain d u rin g physical therapy. (R. 368). Forte underwent a neurological evaluation by Dr. Sidhpura on March 9, 2006. (R. 4 2 2 -23 ). Although the neurological examination was "essentially normal," Dr. Sidhpura re c o m m e n d e d a MRI of the brain and increased her Topamax prescription. (R. 423). The M R I revealed a "5.0 mm nonspecific lesion at the base of the brain on the right side anterior to the anterior commissure of uncertain significance and of uncertain etiology." (R. 421). O n March 17, 2006, Forte was treated with trigger point injections by Dr. Roman. (R. 4 1 7 -1 8 ). On April 18, 2006, Forte was seen by Dr. Sidhpura. He reviewed the MRI of Forte's b ra in and concluded that the 5 mm lesion at the base of her brain was not the cause of her

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h e a d a c h e s . (R. 420). However, Dr. Sidhpura diagnosed Forte with "[m]ixed type headaches, s o m e vascular component, uncontrolled." (Id.). He increased her Topamax dosage. (Id.). O n April 25, 2006, Forte received another trigger point injection from Dr. Roman. (R . 412-13). On May 23, 2006, Dr. Roman treated Forte's migraines and fibromyalgia by in je c tin g her with Toradol. (R. 410-11). On June 20, 2006, Dr. Roman prescribed Cymbalta, F lexe ril, Topamax and Vicodin to treat Forte's pain. (R. 409). O n July 6, 2006, Forte was seen by Dr. Turkiewicz for a follow up. (R. 381-91). She re p o rte d continued migraine headaches, diffuse pain, stress, anxiety, pain in her hands, and c h e s t pain. (R. 381). No change was noted in her diffuse bilateral lower and upper e x tre m itie s' tender points. (R. 382). Dr. Turkiewicz noted that Forte's fibromyalgia c o n tin u e d with "recurrent symptoms including migraine, reported ulcerative colitis, stress a n x ie ty." (Id.). X-rays revealed "increased density on the iliac sides of the SI joints s u g g e s tin g osteitis condensans," (R. 385), and "mild narrowing of the intervertebral disc sp a c e s consistent with degenerative disc disease." (R. 386). Osteoarthritis of the right hip w a s also noted. (Id.) On July 25, 2006, Dr. Sidhpura increased Forte's dosage of Topamax as her chronic m ix e d headaches were only "moderately controlled." (R. 419). On December 19, 2006, Forte was evaluated by Dr. Serrato at the Columbus Pain C e n te r. (R. 434-39). She had "generalized tenderness of fibromyalgia with no point te n d e rn e s s or spasm." (R. 435).

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X -ra ys on January 16, 2007, revealed "mild disk space between C5 and C6 with m in im a l osteophytes anterior to these bodies." (R. 443). "Reversal of the normal lordotic c u rv e of the cervical spine" was also noted, possibly due to "muscle spasm or positioning." (Id .). On February 7, 2007, Dr. Serrato prescribed Felden and Vicodin for Forte's neck pain. (R . 433). On March 6, 2007, Dr. Serrato increased Forte's medications due to her increased p a in . (R. 432). On March 15, 2007, Dr. Serrato treated Forte with an epidural injection. (R. 4 4 1 ). On April 18, 2007, Dr. Serrato increased Forte's dosage of Vicodin. (R. 431). On M a y 30, 2007, Forte underwent another epidural injection. (R. 440). An MRI on May 30, 2 0 0 7 revealed "minimal cesiccation of the disc" at L1-2, L2-3, and L3-4. (R. 442). The MRI a ls o indicated central disc protrusion at L4-5 and "moderate cesiccation of the disc" and disc p ro tru s io n at L5-S1. (Id.). D e sp ite the medical evidence that clearly demonstrates that Forte suffers from fib rom yalg ia, carpel tunnel syndrome, chronic impingement syndrome of the right shoulder, c e rv ic a l and lumbar spondylosis, chronic ulcerative colitis, pain disorder with psychological f a cto rs , anxiety, and chronic migraine headaches, inexplicably, the ALJ did not find that any o f these medical conditions constituted "severe" impairments. In fact, he made no findings a t all about these impairments. The severity step is a threshold inquiry which allows only "claims based on the most triv ia l impairment to be rejected." McDaniel, 800 F.2d at 1031. Indeed, a severe impairment is one that is more than "a slight abnormality or combination of slight abnormalities which

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w o u l d have no more than a minimal effect on an individual's ability to work." Bowen v. Y u c k e r t, 482 U.S. 137, 154 n. 12 (1987) (citing with approval Social Security Ruling 85-28 a t 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 [her] impairment is `severe' within th e meaning of the Act." McDaniel, 800 F.2d at 1030 - 31 ("Unless a claimant can prove, a s early as step two, that she is suffering from a severe impairment, she will be denied d isab ility benefits.") Because the ALJ did not making any findings regarding the plaintiff's fibromyalgia, c a rp e l tunnel syndrome, chronic impingement syndrome of the right shoulder, cervical and lu m b a r spondylosis, chronic ulcerative colitis, pain disorder with psychological factors, a n x ie ty, and chronic migraine headaches, the ALJ did not pursue the sequential evaluation b e yo n d step 2 of the analysis. The ALJ's rote recitation of the medical evidence is simply insu ff icien t as a matter of law to meet his burden at this step. Consequently, the court c o n c lu d e s that the ALJ erred as a matter of law at step two of the sequential analysis when h e failed to consider whether Forte's fibromyalgia, carpel tunnel syndrome, chronic im p in g e m e n t syndrome of the right shoulder, cervical and lumbar spondylosis, chronic u lc e ra tiv e colitis, pain disorder with psychological factors, anxiety, and chronic migraine

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h e a d a c h e s , constitute severe impairments. T h e ALJ then compounded his errors by failing to properly consider Forte's subjective c o m p la in ts of pain. Subjective pain testimony supported by objective medical evidence of a condition that can reasonably be expected to produce the symptoms of which the plaintiff c o m p la in s is itself sufficient to sustain a finding of disability." Hale v. Bowen, 831 F.2d 1 0 0 7 (11 th Cir. 1987). The Eleventh Circuit has established a three-part test that applies w h e n a claimant attempts to establish disability through his or her own testimony of pain or o th e r subjective symptoms. Landry v. Heckler, 782 F.2d 1551, 1553 (11 th Cir. 1986); see a ls o Holt v. Sullivan, 921 F.2d 1221, 1223 (11 th Cir. 1991). This standard requires evidence o f an underlying medical condition and either (1) objective medical evidence that confirms t h e severity of the alleged pain arising from that condition or (2) that the objectively d e te rm in e d medical condition is of such severity that it can reasonably be expected to give ris e to the alleged pain. Landry, 782 F. 2d at 1553. 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 one o f the two Landry tests. Mason v. Bowen, 791 F.2d 1460, 1462 (11 th Cir. 1986); Landry, 782 F .2 d at 1553. Where an ALJ decides not to credit a claimant's testimony, the ALJ must articulate sp 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

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& 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 c re d ib 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, 1 2 5 5 (11 th Cir 1983) (although no explicit finding as to credibility is required, the implication m u st be obvious to the reviewing court). Thus, if the Commissioner fails to articulate re a so n s for refusing to credit a claimant's subjective pain testimony, then the Commissioner h a s, as a matter of law, accepted the testimony as true. This rule of law is well-established in this circuit. See Brown v. Sullivan, 921 F.2d 1233, 1236 (11 th Cir. 1991); Holt v. Sullivan, 9 2 1 F.2d 1221 (11 th Cir. 1991); Hale v. Bowen, 831 F.2d 1007 (11 th Cir. 1987); MacGregor v . Bowen, 786 F.2d 1050 (11 th Cir. 1986). F o r te testified during the hearing that she stopped working due to migraine headaches, n a u se a , fatigue, chronic pain, ulcerative colitis, stomach cramps, pain, numbness and tingling in her right shoulder and arm, fibromyalgia, and carpal tunnel in both hands. (R. 450-52). S h e testified that she has "real bad" pain at tender points that start at the top of her skull and g o down her back and hips to her knees. (R. 454-55). She further testified that she has m igraine headaches two to three times a week that are treated by epidural injection. (R. 456). T he ALJ acknowledged that Forte has impairments that would reasonably be expected to produce the type of pain about which she complains but he concluded that her testimony

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w a s "not entirely credible." (R. 19). In discrediting Forte's testimony, the court replicates th e ALJ's credibility determination in its entirety. 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 . 19). The ALJ wholly failed to articulate any reason for discounting the plaintiff's c re d ib ility and her pain testimony. 5 Thus, as a matter of law, her pain testimony must be
5

The ALJ's reliance on evidence from Covenant Rehabilitation regarding Forte's physical therapy can be construed as an attempt to discredit her pain testimony and credibility. The ALJ relied on early records that indicate early in the claimant's therapy that although she reported her pain to be a 9 out of 10, she appeared to be tolerating post-operative discomfort well. Throughout her therapy her symptoms continued to improve, including an a (sic) great increase in range of motion and decrease in pain. On September 8, 2004, she was walking well and a week later her joint tightness was minimal. In February 2005 her trigger points in the bilateral upper extremities were less tender following treatment, and she had decreased arm pain. In April 2005 there was significant decrease in c-spine musculature tension. In May 2005, she was doing much better and had no radicular pain on the upper extremities. She continued with therapy through at least February 21, 2006 with decrease in pain and increase in strength. (R. 22). The ALJ, however, fails to consider other evidence from Covenant Rehabilitation that suggests that Forte's condition was deteriorating. When Forte was discharged from rehabilitative therapy on December 22, 2004, she had reached an "[a]cceptable level of therapeutical goals attained with some unresolved impairment that is not amendable to physical therapy." (R. 322) (emphasis added). When she resumed physical therapy in January 2005, she had decreased cervical mobility, decreased range of motion in her spine, muscle spasms and "multiple trigger points noted bilateral upper traps, levator scap, rhomboids, and suboccipital muscles." (R. 319). On January 26, 2005, she was extremely sensitive to touch with multiple trigger points noted. (R. 317). On January 27, 2005, while Forte's trigger points and inflammation had decreased, she still had muscle spasms and was tender to palpation. (R. 316). On February 1, 2005, the physical therapist noted improvement on the trigger points but tightness and tenderness remained. (R. 315). On January 3, 2006, the physical therapist noted "[a]ctive trigger points . . . throughout upper back and neck." (R. 379). A January 6, 2006 treatment note indicates that Forte tolerated physical therapy, but

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a c c e p te d as true. The vocational expert in this case testified that if the plaintiff's pain testimony is a c c e p te d as true, she is disabled. Q: M r. Murphy, if the Judge found that the Claimant's testimony was d e e m e d to be credible and supported by the evidence contained in her file, would a so-described person be able to do her past relevant work o r any other work in the national economy? N o , ma'am. I believe, by her testimony today, she would not be c a p a b le of sustaining work activity. O k a y. Now in reviewing the file, did you get a chance to review the e x h ib its from the physical therapist where they did pain assessment r a tin g s ? That is ­ Y e s , ma'am. ­ seemed that their pain ratings went from no lower than five up to a e ig h t on average. If an individual had those consistent type pain

A: Q:

A: Q:

she was "very tender upon palpation in bilateral c-spine and B upper trapezius muscles." (R. 371). She had active trigger points "throughout upper back and neck," and she had a "decrease in functional status. (R. 373). Her problems included "[f]lexibility restricting normal movement patterns," "[d]ecreased postural strength and awareness," and "[d]ecreased ROM preventing full functional activity." (Id.). A January 18, 2006, treatment note indicated that Forte had radicular pain. (R. 369). On February 21, 2006, the physical therapist noted that Forte was "very sensitive," and one goal was to "[d]ecrease active trigger points" by more than 50%. (R. 368). The court has an obligation to scrutinize the record in its entirety to determine the reasonableness of the ALJ's decision. See Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The ALJ must conscientiously probe into, inquire of and explore all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). 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 v. Sullivan, 957 F.2d 837, 839, 840-841 (11th Cir. 1992). While the ALJ is entitled to make reasonable evidentiary conclusions, the ALJ does not explain why he chose to ignore salient portions of the records from Covenant Rehabilitation, particularly when that evidence reflects favorably on the plaintiff's credibility. It appears that the ALJ culled the record for selective references, ignoring comments that did not support his conclusions. This he cannot do. Thus, to the extent that his recitation of the medical records from Covenant Rehabilitation can be considered an attempt to discredit the plaintiff's credibility and pain testimony, the court concludes that the ALJ's determination is not supported by substantial evidence.

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A:

ra tin g s, would a so-described person be able to do any work available in the national economy on a sustained basis? I'd have to say pain that ranges from a five to an eight would be in the m o d e ra te ly severe to severe range and I'd have to say that that in d iv id u a l could not sustain work activity due to distraction and p o s s ib ly even the effects of medication.

(R. 461-62). B e c au s e the medical evidence supports Forte's pain testimony, and that testimony has a s a matter of law been accepted as true by the Commissioner, the court concludes that Forte is disabled and entitled to an award of benefits. Hale, 831 F.2d at 1012. See also Lamb v. B o w e n , 847 F.2d 698, 701 (11 th Cir. 1988) (failure to apply the correct legal standards is g ro u n d s for reversal and an award of benefits). V. Conclusion A c c o rd in g ly, this case will be reversed and remanded to the Commissioner with d i re c tio n s for an award of benefits. A separate order will be entered. D o n e this 6 th day of March, 2009.

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

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