Griffin v. Colvin

Filing 21

MEMORANDUM OPINION: The decision of the Commissioner is due to be REVERSED. A separate judgment will be entered. Signed by Honorable Judge Susan Russ Walker on 10/22/2015. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JAMES LEE GRIFFIN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 3:14cv541-SRW

MEMORANDUM OPINION
Plaintiff James Lee Griffin (“Plaintiff”) brings this action pursuant to 42 U.S.C.§
405(g) and § 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social
Security (“Commissioner”) denying his application for disability insurance benefits under
Title II of the Social Security Act (“the Act”) and supplemental security income under Title
XVI of the Act. The parties have consented to entry of final judgment by the Magistrate
Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the
parties, the court concludes that the decision of the Commissioner is due to be reversed.
STANDARD OF REVIEW
The court's review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ's factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145

(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145. A
reviewing court may not look only to those parts of the record which support 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 (11th
Cir. 1986). Factual findings that are supported by substantial evidence must be upheld by the
court. The ALJ's legal conclusions, however, are reviewed de novo because no presumption
of validity attaches to the ALJ’s determination of the proper legal standards to be applied.
Davis, 985 F.2d at 531. If the court finds an error in the ALJ's application of the law, or if
the ALJ fails to provide the court with sufficient reasoning for determining that the proper
legal analysis has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d
at 1145-46.
BACKGROUND
Plaintiff filed an application for disability insurance benefits and supplemental
security income, alleging that he became disabled on August 13, 2010. (R. 213, 215). The
administrative law judge (“ALJ”) held a hearing on November 20, 2012. (R. 78-98). On
January 31, 2013, the ALJ ruled that Plaintiff could perform his past relevant work as a floor
cleaner. (R. 72).
The ALJ followed the five step evaluation for determining disability benefits and
concluded that Plaintiff had not engaged in substantial gainful activity since August 13,

2

2010, and that Plaintiff had severe impairments of degenerative disc disease of the lumbar
spine and depression. 20 C.F.R. § 404.1520(c), § 416.920(c)). (R. 67). He concluded at step
three that none of Plaintiff’s impairments or combination of impairments met or medically
equaled one of the listings. (R. 69). The ALJ determined that Plaintiff had the residual
functional capacity (“RFC”) to perform a full range of medium work,1 although limited in
his ability to maintain attention and concentration for extended periods due to his depression.
(R. 69.) The ALJ found transferability of job skills was not material because Plaintiff’s past
relevant work is unskilled. (R. 96). At step four, the ALJ determined that Plaintiff was able
to perform his past relevant work as a floor cleaner. (R. 72). Consequently, the ALJ found,
Plaintiff was not disabled. (R. 72). Plaintiff then filed the present action seeking review of
the Commissioner’s final decision. (Doc. No. 1).
DISCUSSION
Plaintiff raises two primary claims for reversal of the Commissioner’s decision. First,
he argues that the ALJ’s decision that Plaintiff has the RFC to perform the full range of
medium work, limited by an inability to maintain attention and concentration for extended
periods due to depression, is not supported by substantial evidence. Second, he argues that
the ALJ’s credibility determination is not supported by substantial evidence. (Doc. No. 12,
at 3-4).
Inquiry into Plaintiff’s Financial Status
1

Medium work is defined as “lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R.§§ 404.1567(c), 416.967(c).
3

In connection with Plaintiff’s second argument challenging the ALJ’s credibility
determination2 that Plaintiff’s “allegations of disabling pain exceed objective findings of
record” (R. 72), Plaintiff maintains that the ALJ incorrectly found that Plaintiff “has made
no attempt to avail himself of [free or low-cost medical treatment] programs.” (Doc. No. 12,
at 9; R. 72). The ALJ acknowledged that Plaintiff had been diagnosed with mild degenerative
disc disease, but noted that
he is able to move about in a satisfactory manner. There is no evidence of any
motor or sensory deficits. No surgery has been recommended, and the
claimant’s treatment has been somewhat limited allegedly due to lack of
finances. However, any individual experiencing the debilitating limitations Mr.
Griffin alleges would have found some way to obtain medical treatment as
there are programs which enable individuals to obtain medical treatment free
or at low cost. The claimant has made no attempt to avail himself of such
programs.
(R. 72)(emphasis added). Plaintiff responds that his “only treatment has been at emergency
rooms and at Mercy Medical Clinic, which is the low-cost medical treatment that is available
in this county.” (Doc. No. 12, at 9). Plaintiff maintains that “[t]he ALJ never asked claimant
or anyone else at the hearing about the issue,” and that “[t]here is absolutely no evidence at
all, much less substantial evidence, that claimant had not ‘availed himself of such

2

See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (discussing the three-part
standard in the Eleventh Circuit for assessing pain). If the standard is met, the ALJ must consider
the testimony regarding the claimant's subjective symptoms. Marbury v. Sullivan, 957 F.2d 837,
839 (11th Cir. 1992).“If the ALJ discredits subjective testimony, he must articulate explicit and
adequate reasons for doing so.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing
Hale v. Bowen, 831 F.2d 1007 (11th Cir. 1987)). “Substantial evidence must support the ALJ's
reasons for discrediting pain testimony.” Douglas v. Commissioner of Social Security, 486 F.
App’x 72, 75 (11th Cir. 2012) (citation omitted).
4

programs.’” (Doc. No. 12, at 9-10).
“When the ALJ ‘primarily if not exclusively’ relies on a claimant's failure to seek
treatment, but does not consider any good cause explanation for this failure, this court will
remand for further consideration. However, if the ALJ's determination is also based on other
factors, such as RFC, age, educational background, work experience, or ability to work
despite the alleged disability, then no reversible error exists.” Henry v. Comm'r of Soc. Sec.,
No. 15-11381, 2015 WL 5778938, at *2 (11th Cir. Oct. 5, 2015) (published) (per curiam)
(citations omitted). In Henry, the claimant maintained that he was unable to pay for continued
medical treatment. Id. at *2. Without developing the record or addressing the claimant’s
financial ability to pursue more treatment, the ALJ found that the claimant’s testimony
regarding his back symptoms and vision limitations was not credible because the claimant
“worked after his initial injury, received ‘conservative treatment,’ and did not take narcotics.”
Id. at *2-3. The Court of Appeals held that “[t]he ALJ had an obligation to ‘scrupulously and
conscientiously probe’ into the reasons underlying [the claimant’s] course of treatment, yet
there is nothing in the record indicating the ALJ inquired into or considered [the claimant’s]
financial ability to seek an alternate treatment plan. Instead, the ALJ focused on the absence
of aggressive treatment as a proxy for establishing disability.” Id. at 3 (quoting Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). The Eleventh Circuit determined that,
“[a]bsent proper factual development, we cannot say there is ‘such relevant evidence as a
reasonable person would accept as adequate to support [the] conclusion’ that [the claimant’s]

5

testimony is not credible.” Id. at *3 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d
1176, 1178 (11th Cir. 2011) (internal quotation marks omitted)) (alterations added). The
Court of Appeals remanded for further factual development because “the ALJ could not
fairly assess the severity of [the claimant’s] back pain and potential disability.” Id. at *3, *5
(alterations added).
Similarly, the ALJ in Plaintiff’s case knew that Plaintiff was relying on low cost
medical care and financial help to obtain medication, and that Plaintiff had testified that the
medication only “mildly” alleviated Plaintiff’s pain. (R. 85-86). Nevertheless, the ALJ did
not inquire into Plaintiff’s ability to seek additional medical care3 for his back, instead simply
making the conclusory statement that someone with Plaintiff’s alleged pain “would have
3

Plaintiff went to the emergency room in May 2010, complaining of pain “primarily in the right lower
lumbar region, sometimes radiates into his right thigh,” but he denied numbness, tingling, or weakness to the
extremities.” (R. 70, 383). During that visit, Plaintiff stated that he had been unable to have further evaluation
because he was unemployed and had no health insurance, but pain medication he previously took helped him. (R.
383). He was referred for follow up at Mercy Medical Clinic. (R. 384). He did not seek further treatment until he
returned to the emergency room in September 2010, and was diagnosed with diabetes (R. 385-93). He went back in
October 2010 for complaints of blurred vision and chest pain (R. 394-96). He did not return to Mercy Medical Clinic
for treatment of back pain until November 2010. (R. 70, 408).
Melvin Williams, M.D., performed a consultative physical examination on March 12, 2011. (R. 440-46).
He observed that Plaintiff was in no acute distress; he ambulated with a slow but normal gait, with the use of a
straight cane; he sat comfortably with no abnormal movements; he had no difficulty moving from the chair to the
examination table; and he had no difficulty taking off his shoes for the exam. (R. 443-44). Dr. Williams found that
Plaintiff “did show tenderness to palpation over the cervical spine, but no spinal spasms. There was some mild
tenderness into the rest of the spine over the spinous processes.” (R. 445). He remarked that Plaintiff “is tender from
his lumbar spine over the spinous processes and over the paraspinal musculature, as well as over his sacrum with a
loss of lordosis in the lumbar spine.” (R. 445). He found, among other things, that Plaintiff’s motor strength and
muscle tone was within normal limits; his straight leg raises were negative, sitting and supine; and his light touch and
pinprick sensation were intact throughout lower and upper extremities. (R. 445). Dr. Williams diagnosed Plaintiff
with “[l]ow back pain, chronic, with x-rays documenting mild degenerative disk disease.” (R. 446).
A month later, in April 2011, Plaintiff sought treatment for his back pain at Mercy Medical Clinic and
received the medication Skelaxin, which, Plaintiff told the health care provider, worked the best for him. (R. 449).
He received medication refills in May 2011. (R. 449). He returned to Mercy Medical Clinic in August 2011, and
again in October 2011; during the latter visit, he said “his back is feeling better. The medicine seems to help.” (R.
450, 467). Plaintiff received medication refills from Mercy Medical Clinic four months later, in February 2012. (R.
467). His most recent visit to Mercy Medical Clinic before the hearing was in May 2012, at which time he was noted
to have chronic low back pain. (R. 466).

6

found some way to obtain medical treatment as there are programs which enable individuals
to obtain medical treatment at free or at low cost.” (R. 72).4
Absent such inquiry, this case must be remanded under Henry for further factual
development unless the ALJ adequately determined that Plaintiff was not disabled “based on
other factors, such as RFC, age, educational background, work experience, or ability to work
despite the alleged disability.” Id. at *2. For the following reasons, the court concludes that
there is not substantial evidence of record to support these other potential grounds for
upholding the ALJ’s decision.
Vocational Expert Testimony
Plaintiff argues that the ALJ erred in relying on the vocational expert (“VE”) to find
that Plaintiff could perform his past relevant work as a floor cleaner, which the VE classified
as medium, unskilled work. (R. 72, 96); (Doc. No. 12, at 6-8). The ALJ stated,
In comparing the claimant’s residual functional capacity with the physical and
mental demands of this work, the undersigned finds that the claimant is able
to perform his medium past work of a floor cleaner, as actually and generally
performed. The vocational expert testified that Mr. Griffin is able to return to
his past relevant work given his exertional and non-exertional limitations (SSR
00-4p).
(R. 72). Plaintiff correctly points out that the ALJ made a factual error in reporting that the
VE testified that Plaintiff is “able to return to his past relevant work given his exertional and
4

The Commissioner’s argument that Plaintiff admits that he received low cost treatment
does not address the question of whether Plaintiff would have pursued additional treatment if he
had the ability to pay for it. The implication of Plaintiff’s argument is that the ALJ erroneously
assumed that Plaintiff could have sought more treatment from “programs” the ALJ identified.
(Doc. No. 12, at 9-10.).
7

non-exertional limitations” when, in fact, the ALJ asked the VE about Plaintiff’s
nonexertional limitations only. (R. 72, 96). The ALJ asked the expert:
Q Consider a hypothetical candidate for employment of the same age,
education, and work experience as the claimant who has the non-exertional
capabilities and limitations set out in the consultative exam from Dr. P.
Thorton [phonetic] at 12F. Did you see that?
A Yes, sir.
Q Considering each and every capability and limitation, non-exertional,
reflected in that consultative examination, could a hypothetical candidate for
employment do the claimant’s past work or other work?
A He would be able to return to past work with these non-exertional limits.
(R. 96) (emphasis added). In addition, Plaintiff argues that Dr. P. Thornton assessed no
specific exertional or nonexertional work-related limitations,5 which the ALJ himself
acknowledged in his decision. (R. 71) (Dr. Thornton imposed “[n]o specific work-related
limitations ... on the claimant’s ability to function”). Thus, Plaintiff contends, it was
impossible to know what mental limitations the VE was addressing in the response to the
ALJ’s question, and the VE’s testimony is not substantial evidence to support the ALJ’s
decision that Plaintiff can do his past relevant work.
The Commissioner responds that the VE’s testimony was not even required where,
as here, the ALJ concludes at step 4 that the claimant can perform past relevant work. See

5

In assessing Plaintiff’s judgment, Dr. Thornton stated, “Mr. Griffin would not be able to
manage benefits, should they be awarded, because of his math and concentration problems.” (R.
425). She diagnosed Plaintiff with major depressive disorder, recurrent, and estimated low
average to average range of intellectual functioning. (R. 425). Dr. Thornton did not complete a
Psychiatric Review Technique or list any specific work-related limitations in her report. (R. 425).
The state agency mental health expert who completed a Psychiatric Review Technique in March
2011 found that Plaintiff had only mild difficulties in maintaining concentration, persistence, or
pace. (R. 436).
8

Lucas v. Sullivan, 918 F.2d 1567, 1573 n.2 (11th Cir. 1990) (“because the ALJ concluded
that she is capable of performing her past relevant work, testimony from a vocational expert
was not necessary”). However, it is clear in this case that the VE’s testimony is the only
evidence that the ALJ cited in support of his finding that the plaintiff's past relevant work did
not require activities precluded by the RFC (see R. 72, Finding No. 6), and the hypothetical
posed to the VE omitted Plaintiff’s nonexertional impairments. See Wilson v. Barnhart, 284
F.3d 1219, 1227 (11th Cir. 2002) (per curiam) (“In order for a vocational expert's testimony
to constitute substantial evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments.”). The ALJ’s hypothetical to the VE failed to
include or otherwise implicitly account for all of Plaintiff’s impairments; therefore, the VE’s
testimony is not “substantial evidence” and cannot support the ALJ's conclusion that Plaintiff
can perform his past relevant work.
The Commissioner argues that even if the ALJ erred, the error was harmless because
the ALJ accounted for any limitations in concentration by restricting Plaintiff to unskilled
work. The Commissioner maintains that, irrespective of the VE’s testimony, substantial
evidence supports the ALJ’s decision that Plaintiff’s RFC enables him to perform his prior
job of unskilled work. (Doc. No. 13, at 6-7).
However, the court cannot discern from the ALJ’s decision how the ALJ determined
that the functional effect of Plaintiff’s limitations permit him to perform simple, unskilled
work. The ALJ’s specific mental RFC determination is that Plaintiff “is limited in his ability

9

to maintain attention and concentration for extended periods due to his depression.” (R. 69).
The ALJ’s finding of “limited” does not itself indicate the degree of Plaintiff’s limitation,
but the degree of limitation – that is, moderate – can be gleaned from the ALJ’s statement
at step 2 that, “[w]ith regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant’s depression impacts his ability to maintain attention and
concentration.” (R. 68) (emphasis added). When the ALJ determined that Plaintiff’s mental
RFC was “limited” based on “new evidence”6 that Plaintiff’s “depression would impact his
ability to maintain attention and concentration on an extended basis,” the ALJ did not
specifically identify the “new evidence” except to imply that it appeared after the DDS
physicians and psychologists assessments, which occurred in early 2011. (R. 69, 71). The
ALJ then determined that Plaintiff’s “depression would impact his ability to maintain
attention and concentration for extended periods, but he could perform simple unskilled work
activity.” (R. 72). The ALJ reasoned that Plaintiff
reports no side effects from his medication. He has required no psychiatric
hospitalization for his depression. Mental health treatment records demonstrate
that his depression is controlled appropriately with medication. Thus, the
undersigned concludes that Mr. Griffin is capable of some type of unskilled
medium work activity.

6

The ALJ wrote, “Disability Determination Service physicians and psychologists assessed
the claimant as having no severe physical or mental impairment. However, these assessments
were made without benefit of examination or review of new evidence, which cause them to be
less accurate of the claimant’s true ability than the entire objective findings of record. Thus, the
undersigned concludes that the claimant’s depression would impact his ability to maintain
attention and concentration on an extended basis.” (R. 71).
10

(R. 72). The ALJ did not identify, and the court has not located in the record, any medical
evidence that Plaintiff retains the ability to do simple, unskilled work despite his moderate
deficiencies in concentration and attention. (R. 72, 453, 458-59, 466, 478-82, 488-502).
Without such medical evidence, the ALJ’s RFC limitation to simple, unskilled work does not
account for all of Plaintiff’s difficulties in maintaining attention and concentration. Cf.
Winschel, 631 F.3d at 1180 (noting, with approval, that “[o]ther circuits have also rejected
the argument that an ALJ generally accounts for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical question [to the VE] to simple, routine
tasks or unskilled work... . But when medical evidence demonstrates that a claimant can
engage in [those tasks], courts have concluded that limiting the hypothetical to include only
unskilled work sufficiently accounts for such limitations.”) (citations omitted) (emphasis
added); Richter v. Commissioner of Soc. Sec., 379 F. App’x 959, 962 (11th Cir. 2010)
(“[W]e conclude that the ALJ's failure to include all of Richter's impairments in his
hypothetical question was error. This error was not harmless because the inquiry conducted
by the vocational expert did not implicitly account for Richter's deficiencies in concentration,
persistence, and pace. Additionally, there is no medical evidence that, despite these
limitations, Richter nevertheless retained the ability to perform simple, repetitive, and routine
tasks or unskilled labor.”); 20 C.F.R. Pt. 404, Subpt. P, App. 1, ¶ 12.00(C)(3)
(“Concentration, persistence, or pace refers to the ability to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate completion of tasks

11

commonly found in work settings.”); SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)
(“RFC is an assessment of an individual’s ability to do sustained work related physical and
mental activities in a work setting on a regular and continuing basis.”); Walker v. Astrue,
2010 WL 4226485, at *6 (M.D. Ala. Oct. 21, 2010) (rejecting the Commissioner's argument
that a limitation to unskilled work accounts for a moderate limitation in concentration,
persistence or pace). The holding in Winschel was in the context of a VE’s testimony at step
5, but the rationale applies equally to the ALJ’s RFC determination that a claimant can do
past unskilled work in light of moderate deficits in concentration and attention. E.g.,Kelley
v. Colvin, 2014 WL 4230038, at *6 (discussing Winschel and related cases, and concluding
that “[t]he ALJ does not cite the medical evidence on which he relied in formulating the
mental limitations he included in his RFC finding, and the court has found no medical
opinion of record indicating that plaintiff remains able to sustain concentration, persistence,
and pace sufficiently to perform ‘simple 1-2 -step” work”); Trammell v. Colvin, 2013 WL
4028489, at *4 (M.D. Ala. Aug. 7, 2013) (discussing Winschel and related cases, and
concluding that “[w]hile it is possible that the ALJ's RFC limitations of ‘work limited to
simple, routine, and repetitive tasks; in a work environment free of fast paced production
requirements; involving only simple, work related decisions; with few, if any, work place
changes,’ accounts for plaintiff's moderate difficulties in maintaining concentration,
persistence, or pace—deficiencies found by the ALJ to exist—the court simply cannot
determine from the ALJ's written decision how she concluded that this is so”). The ALJ’s

12

ruling here, that Plaintiff can do simple, unskilled work despite his mental limitation of
moderate inability to maintain attention and concentration, is not adequately explained or
clearly supported by substantial evidence of record.
In addition, the ALJ determined that Plaintiff “is able to perform his medium past
work of a floor cleaner, as actually and generally performed,” but did not identify the
demands and job duties of the job of floor cleaner, as actually or generally performed. (R.
72). The ALJ did not ask Plaintiff about the actual physical or mental demands of his past
work at the hearing.7 (R. 82). Plaintiff’s statements in his Work History Report8 also shed
little light on whether Plaintiff is capable of performing his past work as a floor cleaner given
the ALJ’s finding that his “depression would impact his ability to maintain attention and
concentration on an extended basis.” (R. 71, 274).
It is the claimant’s burden to demonstrate an inability to return to his past work.
Lucas, 918 F.2d at 1571. However, the ALJ’s decision in Plaintiff’s case includes evidentiary
gaps, is not supported by substantial evidence, and fails to provide the court with sufficient
reasoning to determine that the proper legal analysis has been conducted regarding Plaintiff’s

7

A claimant’s statements regarding past work usually are sufficient in determining the
skill level, exertional demands, and nonexertional demands of the work. SSR 82-82, 1982 WL
31386, at *3 (Jan. 1, 1982); (SSR 82-61, 1982 WL 31387, at *1-2 (Jan. 1, 1982).
8

Plaintiff’s Work History Report includes contradictory answers regarding the nature of
his job as a floor cleaner. Plaintiff reported that he carried 30 pounds once or twice a week, but
he frequently lifted 25 pounds, and the heaviest weight he lifted was 20 pounds. (R. 274).
13

ability to do his past relevant work.9 See Cornelius, 936 F.2d at 1145-46. In particular, the
ALJ’s failure to address or inquire sufficiently into Plaintiff’s ability to obtain alternative
treatment despite his financial circumstances – where the ALJ relied primarily on Plaintiff’s
failure to seek treatment as grounds for finding that Plaintiff’s allegations of pain are not
credible, without adequately determining that Plaintiff was not disabled based on other
factors, such as RFC, age, educational background, work experience, or ability to work
despite the alleged disability – prevented the ALJ from making the full and fair assessment
of the severity of Plaintiff’s pain and potential disability required by the Henry Court. See
Henry, 2015 WL 5778938, at *3-5.
Because the court concludes that the ALJ’s decision must be reversed for these
reasons, the court does not address Plaintiff’s other grounds for reversal.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is due to be REVERSED.
A separate judgment will be entered.
DONE, this 22nd day of October, 2015.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

9

The court expresses no opinion regarding whether plaintiff should prevail on remand.
14