Davis v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION AND ORDER; further ORDERED that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11th Cir. 2006), the plf shall have 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); copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals. Signed by Honorable Judge Charles S. Coody on 5/22/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LEANA REBECCA DAVIS,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CIVIL ACTION NO. 2:13-CV-413-CSC
(WO)

MEMORANDUM OPINION AND ORDER
I. Introduction.
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. and for supplemental security income benefits under
Title XVI of the Social Security Act, 42 U.S.C. § 1381 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

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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.

to 42 U.S.C. §§ 405 (g) and 1383(c)(3).2 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 determination3 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.”

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Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
States Magistrate Judge.
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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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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
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); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007). “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.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004). A reviewing court may not look only to
those parts of the record which supports the decision of the ALJ but instead must view the
record in its entirety and take account of evidence which detracts from the evidence relied
on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986). 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) (citation and quotation marks omitted).
[The court must, however,] . . . 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).

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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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III. The Issues
A. Introduction. The plaintiff was 42 years old at the time of the ALJ’s decision and
has a 12th grade education. The plaintiff’s prior work experience includes work as a egg
packer, housekeeper and commercial cleaner. Following the administrative hearing, the ALJ
concluded that the plaintiff has the severe impairment of irritable bowel syndrome. (R. at 25)
Nonetheless, the ALJ concluded that the plaintiff was not disabled because the plaintiff has
the residual functional capacity to perform work as a counter clerk, electronics worker, and
remnant worker. (R. at 31)
B. The Plaintiff’s Claims. The plaintiff raises two claims. The plaintiff claims that
the Commissioner’s decision should be reversed because as stated by the plaintiff (1) the ALJ
failed to account for symptoms of irritable bowel syndrome in her RFC, despite being the
sole severe impairment at issue and (2) the ALJ improperly based her credibility finding on
an absence of helpful evidence and the plaintiff’s performance of minor activities. These
issues are so intertwined that the court will not discuss them separately.
IV. Discussion
A disability claimant bears the initial burden of demonstrating an inability to return
to his past work. Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990). In determining
whether the claimant has satisfied this burden, the Commissioner is guided by four factors:
(1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3)
subjective evidence of pain and disability, e.g., the testimony of the claimant and her family
or friends; and (4) the claimant’s age, education, and work history. Tieniber v. Heckler, 720

F.2d 1251 (11th Cir. 1983). 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 must also state, with sufficient
specificity, the reasons for his decision referencing the plaintiff’s impairments.
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) (emphases added). Within this analytical framework, the court will
address the plaintiff’s claims.
The plaintiff contends that the ALJ erred because she failed to account for symptoms
of irritable bowel syndrome in her residual functional capacity determination. See See 20
C.F.R. 416.945(a)(2) (“We will consider all of your medically determinable impairments of
which we are aware . . . when we assess your residual functional capacity.”). The plaintiff
is right. It is undisputed that the plaintiff has irritable bowel syndrome. The plaintiff
testified that this causes her to experience gastrointestinal pain and diarrhea as much as five
to six times daily. (R. at 45-47). The ALJ thought that the plaintiff’s activities of daily living
did not support her testimony.
The claimant has described daily activities which are not limited to the extent
one would expect, given the complaints of disabling symptoms and limitations.
She is able to care for herself, perform household tasks and go grocery
shopping every few days. In addition, given the claimant’s allegations of
totally disabling symptoms, one might expect to see some indication in the
treatment records of restrictions placed on the claimant by the treating doctor.
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Yet a review of the record in this case reveals no restrictions recommended by
her treating physicians.
(R. at 28)
Generally, an ALJ may consider a person’s activities of daily living in making a
credibility determination. 20 C.F.R. § 404.1529(c)(3)(i); see also Wilson v. Barnhart, 284
F.3d 1219, 1225–26 (11th Cir.2 002) (upholding ALJ’s decision to discredit claimant’s
testimony where it was inconsistent with medical evidence and claimant’s daily activities).
In this case, however, the generic approach to credibility led the ALJ astray because there is
no congruence between work and daily living with regard to limitations imposed by frequent
diarrhea. A person who is caring for herself, performing household tasks or shopping for
groceries can take frequent, unplanned breaks whenever she wants to. However, as the
vocational expert testified in this case, that is not true in a work setting.
Q Can we talk please about how break – how many break periods would be
acceptable for the performance of these jobs and what would be considered
excessive?
A There are 3 structured breaks during the day, there’s the morning and
afternoon breaks which are usually 15 minutes each and then a lunch break
which is usually 30 minutes. Employers are generally tolerant of a quick break
in between each of those breaks of not more than 5 minutes without incidence,
I mean, they’ll allow a quick five minute break in between each of those, if it
goes beyond that then employment becomes in question.
Q And how frequently would the allow for a quick five minute break?
A One in between each of the other breaks, so that would equate to actually
four more breaks during the day.
Q And breaks more frequently than that would be excessive and not be
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allowed?
A Either more frequent or of greater duration.
Q Okay. And that – the response to that question specifically applies to the 3
jobs? Counter clerk, electronic worker and remnant sorter, that you listed
previously?
A Yes, Judge.
(R. at 58-59).
Thus, the court is left with the fact that none of the jobs which the ALJ identified as
jobs the plaintiff could perform allow for excessive breaks as defined either in terms of
frequency or duration. Indeed, Social Security Ruling 96-8p defines an individual’s residual
functional capacity as the person’s “maximum remaining ability to do sustained work
activities in an ordinary work setting on a ‘regular and continuing basis’” and that “a ‘regular
and continuing basis’ means eight hours a day, five days a week, or an equivalent work
schedule.” The ALJ’s residual functional capacity description does not incorporate the
limitation of the need for frequent and unplanned interruptions in the work schedule.
To further compound the court’s difficulty with review of this case, as shown above,
the ALJ elicited testimony about the impact of those breaks on the ability of the plaintiff to
hold a job, but the ALJ did not discuss this in her opinion. The ALJ did note the existence
of “additional limitations” (R. at 31) but did not describe what they were. Rather, the ALJ
stated that, “[t]o determine the extent to which these limitations erode the unskilled
occupational base,” she asked the vocational expert about light work jobs which exist in the

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national economy. Id. The problem with all this is that it is not at all clear what limitations
the vocational expert considered in identifying those jobs. While, as shown above, the ALJ
asked the vocational expert about “break periods,” the ALJ did not incorporate any need for
frequent, unscheduled breaks in describing the claimant’s limitations. Thus, the court has no
idea what the ALJ found with regard to the impact of diarrhea on the ability of the plaintiff
to work at any job, much less the three the ALJ identified.
The ALJ noted that no doctor had indicated that the plaintiff’s “physical impairments
would preclude work activit[y]” (R. at 29) as another basis for discrediting the plaintiff. In
most cases, this normative approach to determining credibility is certainly acceptable.
However, in this case it is not, because a doctor could say little in the way of work
restrictions except “don’t get too far from a bathroom.” The absence of physician comments
about the plaintiff’s physical ability to do work does not support the ALJ’s conclusions
because the plaintiff’s impairment - frequent diarrhea - is a non-exertional impairment
unrelated to the strength to do a job. See Haynes v. Heckler, 716 F.2d 483, 485 (8th Cir.
1983) (holding that colon discomfort and recurrent episodes of diarrhea are nonexertional
impairments). “The ALJ must make a specific finding as to whether the nonexertional
limitations are severe enough to preclude a wide range of employment at the given work
capacity level indicated by the exertional limitations.” Foote v. Chater, 67 F.3d 1553, 1559
(11th Cir. 1995) (citation and quotation marks omitted). The ALJ did not make that finding.
The ALJ correctly noted that “limited medical evidence [was] provided in this case.”

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(R. at 28). Although the ALJ did not directly say so, it is a fair inference to conclude that the
ALJ did not fully credit the plaintiff’s testimony about her impairment because of the lack
of medical evidence. However, the Eleventh Circuit has held that, where the record contains
evidence that the plaintiff is financially unable to obtain medical care, the ALJ may not draw
an adverse inference from the plaintiff’s failure to seek medical treatment without first
determining whether the claimant is able to afford the medical care. Ellison v. Barnhart, 355
F.3d 1272, 1275 (11th Cir. 2003). In her opinion, the ALJ noted that the plaintiff testified
she had been unable to obtain medical treatment because she lacked insurance (R. 27), but
the ALJ did not pursue this any further, and there is no indication in the ALJ’s opinion about
how she considered this question, if at all. Cf. Dawkins v. Bowen, 848 F.2d 1211, 1213-14
(11th Cir. 1988) (“The problem with this case is that it is unclear from the ALJ’s opinion
whether or not he based his determination that appellant was not entitled to benefits on
appellant’s failure to follow prescribed medical treatment.”).
In short, in this case, the ALJ failed to fully develop the record with regard to the
impact of the plaintiff’s diarrhea on her ability to perform work and failed to develop the
record regarding the plaintiff’s financial ability to obtain medical treatment for her condition.
This case will be remanded to the Commissioner for further proceedings consistent with this
opinion.
A separate final judgment will be entered. It is further
ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273,

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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).
Done this 22nd day of May, 2014.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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