Holloway v. Astrue (CONSENT)

Filing 26

MEMORANDUM OPINION AND ORDER granting 18 Motion to Remand; This case will be reversed and remanded to the Commissioner with directions for an award of benefits. Signed by Honorable Charles S. Coody on 9/22/2009. Also mailed to SSA Office of Hearings and Appeals and SSA Chief Judge.(wcl, )

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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 D A V ID LAMAR HOLLOWAY, 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. 2:08cv774-CSC M E M O R A N D U M OPINION and ORDER 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 he was unable to work because of a d is a b ility. His 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 th 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). The case is now before the court for review pursuant to 42 U.S.C. 4 0 5 (g) and 1631(c)(3). Pursuant to 28 U.S.C. 636(c), the parties have consented to entry o f final judgment by the United States Magistrate Judge. Also pending before the court is th e Commissioner's motion to remand (doc. # 18) filed on May 1, 2009. 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 In his motion to remand, the Commissioner asks the court to remand this action so the A p p e a ls Council can "remand the case to an ALJ who will evaluate the credibility of P lain tiff 's subjective complaints in accordance with 20 C.F.R. 404.1529, Social Security R u lin g 96-7p, and applicable Eleventh Circuit case law. The ALJ will issue a new decision b a se d on the development on remand." 2 (Def's Mot. to Reverse and Remand at 1). The p lain tiff objects to the motion to remand asserting that the ALJ already had an opportunity to properly evaluate the testimony [the p la in tif f ] provided at his administrative hearing and the ALJ's misapplication th e re to requires that his testimony be accepted true as a matter of law. (P l's Res. to Def's Mot. to Remand at 1). The plaintiff asserts that taking his testimony as tru e , he is entitled to an award of benefits as a matter of law. (Id. At 3). The Commissioner c o n c ed e s in his reply that the "Administrative Law Judge's (ALJ's) decision was flawed b e c a u s e the ALJ did not fully address the credibility of Plaintiff's subjective complaints." (D e f 's Res. to Pl's Res. to Def's Mot. to Remand at 1). However, the Commissioner argues th a t "further factual findings are necessary" to properly adjudicate the plaintiff's disability c la im . (Id.). Based on the court's review of the motion to remand and the administrative re c o rd as well as the plaintiff's objections and arguments of the parties, the court concludes th a t the Commissioner's motion to remand is due to be granted and this case must be re v e rs e d and remanded with directions to award benefits. Pursuant to 42 U.S.C. 405(g), this court has the power to enter a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the cause for rehearing. 2 2 D IS C U S S IO N T h e Commissioner argues that remand is necessary for an ALJ to properly "evaluate th e credibility of Plaintiff's subjective complaints" in accordance with the law of this Circuit. T h e Commissioner concedes that the ALJ did not "fully address the credibility of Plaintiff's su b jectiv e complaints," and thus, his decision is "flawed." (Def's Res. to Pl's Res. to Def's M o t. to Remand at 1). However, the Commissioner takes the position that a remand is n e c es s a ry so that the ALJ can "more fully evaluate the credibility of Plaintiff's subjective c o m p la in ts ." (Id. at 2). According to the Commissioner, the court is not required to accept th e plaintiff's testimony as true because the ALJ considered the medical evidence in d is c o u n tin g the plaintiff's testimony. (Id.) T h e plaintiff argues that "the ALJ's misapplication of the pain standard and ina d eq u a te reasons for attempting to discredit [the plaintiff's] objectively confirmed pain te stim o n y requires that it be accepted as a matter of law under the well-established rule of la w citied in Karasek [v. Astrue, 2009 WL 692191, *3 (M.D. Ala. March 13, 2009)]." (Pl's R e s . to Def's Mot. to Remand at 3) (emphasis in original). Taking his testimony as true, c o u p l e d with the testimony of the vocational expert in this case, the plaintiff argues he is d is a b le d and entitled to an award of benefits. 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 3 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. 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). In this case, the ALJ concluded that the plaintiff suffers severe impairments of " m a rk e d spondylolithesis of the L5 on the S1 and marked degenerative disc disease of the in te rv e rte b ra l disc between the L5-S1 with right paracentral herniation of the intervertebral d is c ." (R. 17). X-rays and a MRI confirm the existence of spondylolisthesis at L5-S1. A J u n e 10, 2005, MRI established the following conditions. 1. 2. M a rk e d (two degrees) spondylolisthesis of L5 on S1 and spondylolysis o f the pars interarticularis of the fifth lumbar vertebra bilaterally. M ark ed degenerative disc disease of the intervertebral disc between L5S 1 , and postero-central and right paracentral herniation of this in te rv e rte b ra l disc. However see discussion above.3 M ild spinal stenosis and marked lateral recess stenosis bilaterally at the le v e l of the intervertebral disc between L5-S1. M ild to moderate osteoarthritic changes of the interarticular joints of th e lumbosacral spine with the more pronounced osteoarthritic changes in v o lv in g the interarticular joints between L5-S1. 3. 4. (R . 100-01). X-rays on June 30, 2005, confirm "Grade II to III spondylolisthesis." (R. 1033 The discussion above refers to the possibility of a "prominent osteophyte" at this location. 4 0 4 ). A f te r reciting the law and describing the medical evidence, the ALJ acknowledged th a t Holloway has impairments that would reasonably be expected to produce the type of pain a b o u t which he complains but the ALJ concluded that Holloway's testimony was "not e n tire ly credible." (R. 21). In discrediting Holloway's testimony, the ALJ said only 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 impairment could have been reasonably e x p e c ted to produce the alleged symptoms, but that the claimant's statements c o n c e rn in g the intensity, persistence and limiting effects of these symptoms a re not entirely credible. T h e undersign does not dispute the MRI findings; however, testing disclosed th e claimant was able to heel toe walk; there was a negative straight leg raise, n o muscle wasting or Murphy's abnormality. (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 c re d ib ility determination is, therefore, critical to the decision, "`the ALJ must either explicitly d i s c r e 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, 5 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). The Commissioner concedes that the ALJ's decision is "flawed because the ALJ did n o t fully address the credibility of Plaintiff's subjective complaints." (Def's Res. to Pl's Res. to Def's Mot. to Remand at 1). In fact, the ALJ wholly failed to articulate any reason for d is c o u n tin g the plaintiff's credibility and his pain testimony. Rote recitation of the medical e v id e n c e is not a substitute for articulating clear reasons for discrediting the plaintiff. The A L J 's listing of the plaintiff's ability to heel toe walk, his negative straight leg raising and th e absence of two symptoms are not reasons; they are facts. And it is not at all obvious to th e court that these facts are sufficient to discredit the plaintiff's testimony about the severity o f his pain. The facts recited by the ALJ might support reasons, but the ALJ did not a rticu late those reasons. In this circuit, the Commissioner does not get a second chance to try and get the credibility determination right. See Hale, 831 F.2d at 1012 (the Eleventh C irc u it remanded the case for an award of benefits, not a proper credibility determination.) T h u s , because the ALJ did not articulate any reasons for discounting the plaintiff's pain te s tim o n y, as a matter of law, his pain testimony must be accepted as true. The plaintiff testified during the administrative hearing that he is "in pain all the tim e ." (R. 136). He further testified that he can't sit for extended periods of time; he can o n ly walk for 50 yards; that he has "pain across [his] hips and down in [his] right leg if [he] s ta n d [ s] there for 15 minutes or more." (R. 139-40). He further testified that he is taking 6 F lexe ril and Lorcet for pain, and that he has to lay down to ease the pain. (R. 138-39). T h e vocational expert in this case testified that if the plaintiff's pain testimony is fully c re d ite d , he is disabled. Q: M r. Miller, if Judge Ryan take (sic) the claimant's testimony as fully c re d ib le would he be able to perform any work in the national e c o n o m y? B a se d on Mr. Holloway's testimony regarding his inability really to p e rf o rm pretty much the most basic activities of daily living, I would sa y not. A: (R . 151). B e c au s e there is objective medical evidence in the record that demonstrates the ex isten ce of a condition that could reasonably be expected to give rise to the Holloway's p a in , and his testimony about his pain has, as a matter of law, been accepted as true by the C o m m is s io n e r, the court concludes that Holloway is disabled and entitled to an award of b e n e f its . Hale, 831 F.2d at 1012. See also Lamb v. Bowen, 847 F.2d 698, 701 (11 th Cir. 1 9 8 8 ) (failure to apply the correct legal standards is grounds for reversal and an award of b e n e f its ). Conclusion F o r the reasons as stated, the court concludes that it is appropriate to reverse the d e c is io n of the Commissioner so that benefits may be awarded to the plaintiff. See Davis v. S h a la la , 985 F.2d 528, 534 (11 th Cir. 1993) (reversal with award of benefits appropriate w h e re the Commissioner has already considered the essential evidence and it is clear that the 7 e v id e n c e establishes disability without any doubt); See also Lamb v. Bowen, 847 F.2d 698, 7 0 1 (11 th Cir. 1988) ( failure to apply the correct legal standards is grounds for reversal and a n award of benefits). Accordingly, it is O R D E R E D that the Commissioner's motion to remand be and is hereby GRANTED. T h is case will be reversed and remanded to the Commissioner with directions for an award o f benefits. A separate order will be entered. Done this 22 n d day of September, 2009. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 8

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