Summers v. Colvin
MEMORANDUM OPINION; further ORDER directing that, in accordance with Bergen v. Commr of Soc. Sec., 454 F.3d 1273, 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), as further set out in order. Signed by Honorable Judge Charles S. Coody on 1/11/17. Also mailed to SSA Chief Judge and SSA Office of Hearings and Appeals.(djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
) CIVIL ACTION NO. 3:15cv789-CSC
MEMORANDUM OPINION and ORDER
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. § 401 et seq., alleging that he was unable to work because of a
disability. His 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).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g). Pursuant to 28
U.S.C. § 636(c), the parties have consented to entry of final judgment by the United States
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
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.
Magistrate Judge. 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
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."
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
A "physical or mental impairment" is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
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).
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) (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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. The plaintiff, Corderal Summers (“Summers”), was 23 years old on
the alleged date of onset and 25 years old at the time of the administrative hearing. (R. 27, 38).
He has a 12th grade education. (R. 27, 40). Summers’ prior work experience includes work
as a customer service representative. (R. 27). Following the administrative hearing, the ALJ
concluded that the plaintiff has the severe impairment of “human immunodeficiency virus
(HIV).” (R. 21). Nonetheless, the ALJ concluded that Summers was not disabled because he
has the residual functional capacity to perform sedentary work. Using the Medical-Vocational
Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a framework and relying on the testimony
of a vocational expert, the ALJ concluded that there were significant number of jobs in the
national economy that Summers could perform including charge account clerk, order clerk, and
table worker. (R. 28). Thus, the ALJ concluded that Summers was not disabled. (Id.).
B. The Plaintiff's Claims. The plaintiff raises five issues for the Court’s review. As
stated by the plaintiff, the issues are as follows:
The Administrative Law Judge Failed to Appreciate the Severity of Mr.
Summers’ HIV+ Infection and According to CDC Guidelines, Mr.
Summers’ Laboratory Reports are Consistent with an AIDS diagnosis.
The Administrative Law Judge Failed to Obtain Medical Expert
Testimony Regarding Whether Mr. Summers’ Impairment Equaled in
Severity Listing 14.08.
The Administrative Law Judge Failed in Her Duty to Fully and Fairly
Develop the Record.
The Administrative Law Judge’s Residual Functional Capacity Finding is
Not Rooted in the Record.
The Administrative Law Judge Erred in Her Evaluation of Mr. Summers’
Statements Regarding the Nature and Limiting Effects of His HIV+
(Doc. # 12 at 1).
These issues are so intertwined that the court will not discuss them separately.
A disability claimant bears the initial burden of demonstrating an inability to return to
his past work. Lucas v. Sullivan, 918 F.2d 1567 (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 his 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).
This court’s ultimate inquiry is whether the Commissioner’s disability decision is
supported by the proper legal standards and by substantial evidence. See Bridges v. Bowen, 815
F.2d 622 (11th Cir. 1987). “Social Security proceedings are inquisitorial rather than adversarial.
It is the ALJ’s duty to investigate the facts and develop the arguments both for and against
granting benefits.” Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty of
the ALJ to investigate the facts and develop the arguments both for and against
granting benefits; review by the Appeals Council is similarly broad. Id. The
regulations also make the nature of the SSA proceedings quite clear. They
expressly provide that the SSA “conducts the administrative review process in an
informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
The ALJ must also state, with sufficient specificity, the reasons for her 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).
Summers contends that the ALJ erred because she failed to account for the severity of
his HIV condition based on his symptoms and side effects of his medications, including
opportunistic infections, pain and diarrhea. The plaintiff also contends that the ALJ failed to
consider whether he meets or equals Listing 14.08 and failed to fully and fairly develop the
record when she failed to secure medical testimony or evidence from a physician regarding
limitations caused by his HIV status and restrictions imposed by the side effects of his
Finally, Summers contends that the ALJ’s residual functional capacity
determination is not based on substantial evidence.
It is undisputed that Summers has HIV. Summers testified that this causes him to
experience gastrointestinal pain and diarrhea every day and sometimes as much as three to four
times daily. (R. at 41, 43-44, 48-49). The ALJ thought that the plaintiff’s activities of daily
living did not support his testimony.
Although Claimant has described daily activities that are fairly limited, two
factors weigh against considering these allegations to be strong evidence in favor
of finding Claimant disabled. First, allegedly limited daily activities cannot be
objectively verified with any reasonable degree of certainty. Second, even if
Claimant’s daily activities are truly as limited as alleged, it is difficult to attribute
that degree of limitation to Claimant’s medical condition, as opposed to other
reasons, in view of the relatively weak medical evidence and other factors
discussed in this decision. Overall, Claimant’s reported limited daily activities
are considered outweighed by the other factors discussed in this decision.
The medical evidence demonstrates that Claimant’s HIV is well controlled and
not likely to cause significant functional limitations beyond those imposed by
some related joint pain and swelling in the hands and feet and some mild
synovitis of the metacarpal phaleangeal joints of the fingers. However, Claimant
has been prescribed several medications including Lortab 5 mg and Tramadol for
pain, STRIBILD for HIV, and dicyclomine for treatment of symptoms of irritable
bowel syndrome (Exhibit 8E). These medications can sometimes cause side
effects including lactic acidosis, feeling very weak or tired, unusual (not normal)
muscle pain, trouble breathing, drowsiness, stomach pain, nausea, vomiting,
dizziness, weakness, and lightheadedness. In combination with limitations
imposed by HIV, Claimant’s medications could reasonably be expected to cause
significant functional limitations limiting him to a range of sedentary work
activity as well causing nonexertional limitations, as specified in his residual
I have considered all the evidence of record and the testimony at the hearing.
However, the record in its entirety does not contain objective signs and findings
that could reasonably be expected to produce the degree and intensity of pain and
limitations Claimant alleges. The claimant has presented medical evidence
demonstrating that he has impairments that could reasonably be expected to
produce some pain and discomfort. I further note that some pain and discomfort
while working is not, per se, determinative of disability. Mild to moderate pain
and discomfort is not, in itself incompatible with the performance of sustained
activities. Neither the objective medical evidence, Claimant’s statements, nor the
testimony discussed above establishes that his ability to function has been so
severely eroded as to preclude work activity.
As for the opinion evidence, no medical provider has offered an opinion as to
Claimant’s functional capabilities.
No restrictions placed on him have been noted in the medical evidentiary record.
However, the diagnoses and findings of the practitioners at East Alabama
Medical Center and University Wellness Clinic have been of great probative
value in identifying Claimant’s impairments, the severity thereof, and the impact
they could be reasonably expected the (sic) have upon his residual functional
(R. at 26-27).
The problem with the ALJ’s analysis can be succinctly stated. The ALJ failed to
adequately develop the record regarding the limitations imposed on Summers by his HIV status
and the side effects of his medications which include diarrhea. The ALJ concluded that while
the medications treating Summers’ HIV status could cause side effects including nausea,
vomiting and diarrhea, and could cause “significant functional limitations,” those side effects
only limited him to sedentary work. (R. 26). The ALJ offers no explanation and points to no
evidence in the record to support this conclusion. The ALJ discredited Summers’ complaints
of abdominal pain, nausea and vomiting because Summers only presented to the emergency
room complaining one time of those symptoms. (R. 25). While it is true that Summers only
reported once to the emergency room with complaints of abdominal pain and nausea, he
routinely complained about pain, tenderness and nausea. See R. 211/233,5 214/297, 215-298,
Prior to being placed on medication to treat his HIV, Summers had no complaints of
nausea or diarrhea. (R. 219/339, 220/319/340, 223/322/343, 318). However, in January 2013,
Summers was prescribed Zithromax and Stribild to treat his HIV. (R. 392). On February 20,
2013, he complained to his treating physician of diarrhea 4 to 5 times a day. (R. 211/233). A
common side effect of Zithromax and Stribild is diarrhea.
On October 16, 2013, Summers presented to the East Alabama Medical Center
complaining of nausea and vomiting and abdominal pain. (R. 312).
The slash denotes a duplicate medical record.
Nausea is also a side
effect of Stribild.
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.2002) (upholding ALJ’s decision to discredit claimant’s testimony
where it was inconsistent with medical evidence and claimant's daily activities). But in this
case, there is no congruence between work and daily living with regard to limitations imposed
by Summers’ frequent diarrhea and nausea. A person who is caring for himself, performing
household tasks or shopping for groceries can take frequent, unplanned breaks whenever he
wants to. However, as the vocational expert testified in this case, that is not true in a work
Assuming, if you would, a finding of credibility as to the claimant’s
testimony concerning the symptoms of his illness and the resulting need
for additional bathroom breaks as well as the additional rest period, would
such a worker be able to perform the jobs, or reasonably compete for the
jobs you’ve just listed?
No, sir, his testimony indicates that he has to have three or four bathroom
breaks per day, lasting 10 to 15 minutes apiece, and two or three times a
week are going to last longer than that to deal with clothing. And
testimony indicates three to four hours per workday of rest and reclining.
That in combination is going to prevent him from maintaining an eighthour day, five days a week, or a 40-hour equivalent.
Thus, the court is left with this. For the jobs which the ALJ identified as jobs the
plaintiff could perform, none of them allow for excessive breaks 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 the 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 accommodate Summers’
diarrhea and nausea.
To further compound the court’s difficulty with review of this case, as shown above,
testimony was elicited about the impact of bathroom breaks on the ability of the plaintiff’s
ability to hold a job,6 but the ALJ did not discuss this in her opinion. The ALJ did note that side
effects from Summers’ medications also caused “nonexertional limitations,” (R. 26), but she
did not describe what those limitations were. The problem with all this is that it is not at all
clear what limitations the vocational expert considered in identifying jobs the plaintiff could
perform. While as shown above, the vocational expert was asked about “bathroom breaks,” the
ALJ did not incorporate in her description of limitations any need for frequent, unscheduled
breaks. Moreover, in her opinion, the ALJ recognized that Summers’ medications could cause
side effects including diarrhea and nausea. However, she then failed to address how these side
effects would impact Summers’ ability to perform work on a sustained basis. Thus, the court
has no idea what the ALJ determined with regard to the impact of his medication’s side effects
of diarrhea and nausea and Summers’ need for frequent breaks on his ability to perform work.
The plaintiff also testified that he had been fired from his last job because he took too many
The ALJ also noted that no medical provider had “offered an opinion as to Claimant’s
functional capabilities” as another basis for discrediting the plaintiff. (R. 26). This presents two
problems in this case. In most cases, this normative approach to determining credibility is
certainly acceptable. However, that approach does not work in this case because what would
a doctor say? “Don’t get too far from a bathroom.” Here, the absence of comments about the
plaintiff’s physical ability to do work does not support the ALJ’s conclusions because the side
effect of medications used to treat his HIV impairment - frequent diarrhea - is a non-exertional
impairment7 unrelated to the strength to do a job. “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) (quotation omitted). The ALJ did not make that
finding. “[T]he severity of a medically ascertained disability must be measured in terms of its
effect upon ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986);
Gray v. Comm’r of Soc. Sec., 426 F. App’x 751, 753 (11th Cir. 2011); Manzo v. Comm’r of Soc.
Sec., 408 F. App’x 265, 269 (11th Cir. 2011).
The second problem in this case is the ALJ concluded that Summers’ “HIV is well
controlled and not likely to cause significant functional limitations imposed beyond those
imposed by some related joint pain and swelling in the hands and feet and some mild synovitis
Diarrhea is a nonexertional impairment. See Haynes v. Heckler, 716 F.2d 483, 485 (8th Cir. 1983)
(colon discomfort and recurrent episodes of diarrhea are nonexertional impairments).
in the metacarpal phalangeal joints of the fingers.” (R.26). This conclusion is speculative,
ignores Summers’ nonexertional impairment of diarrhea and substitutes her judgment for that
of a medical professional. In this case, the ALJ failed to “discuss meaningfully how [Summers’
HIV status] might affect [his] ability to perform” work. See Barrio v. Comm’r of Soc. Sec.
Admin., 394 F. App’x 635, 638 (11th Cir. 2010). While it is undisputed that Summers is HIV,
it is unclear how this condition affects his ability to work. “[W]hen the ALJ fails to ‘state with
at least some measure of clarity the grounds for [her] decision,’ we will decline to affirm
‘simply because some rationale might have supported the ALJ’s conclusion.’ ” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (quoting Owens v. Heckler, 748
F.2d 1511, 1516 (11th Cir.1984) (per curiam)). Without a more developed record and further
inquiry, the court concludes that the ALJ erred as a matter of law when she failed to develop
the record regarding the effects of Summers’ HIV status on his ability to perform work.
Moreover, there is sufficient evidence in the record from which the ALJ should have
concluded that it was necessary to secure additional medical evidence regarding Summers’ HIV
status before rendering a decision regarding his disability. The ALJ failed to order any
consultative examination for Summers. As noted, no medical professional offered any opinion
on Summers’ ability to perform work. The ALJ also did not require any updated blood work
or medical testing to determine the extent or effects of his HIV condition on his ability to work.
She took no action to ascertain how this impairment might impact Summers’ ability to perform
work. See Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988) (ALJ is not required to
order consultative examination unless the record establishes that such an evaluation is necessary
to make informed decision); Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984) (error for ALJ
not to order consultative examination where the evaluation is needed to make an informed
decision). “Failure to apply correct legal standards or to provide the reviewing court with the
sufficient basis to determine that the correct legal principles have been followed is grounds for
reversal.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
Pursuant to 20 C.F.R. § 416.917, the ALJ is required to order additional medical tests
when the claimant’s medical sources do not give sufficient medical evidence to make a
determination as to disability. The ALJ acknowledged that there were no medical opinions in
the record regarding Summers’ limitations, but she then failed to order a consultative evaluation
or any additional medical testing. (R. 26-27). The ALJ’s failure to fully develop the record
requires that this case be remanded for further proceedings because the ALJ could not make an
informed decision based on the record before her. Thus, her decision is not supported by
substantial evidence. On remand, to make a full and fair determination of Summers’ disability
claim, the ALJ shall secure a consultative evaluation from a physician who is qualified to
determine the extent and effects of Summers’ HIV impairment and the corresponding side
effects of his medications on his ability to perform work. The ALJ should also consider
whether expert medical testimony is necessary to determine whether Summers meets or equals
Listing 14.08, generally or Listing 14.08K specifically.
In short, the ALJ failed to fully develop the record with regard to the impact of the
plaintiff’s diarrhea on his ability to perform work and failed to develop the record regarding the
limitations imposed on the plaintiff due to his HIV 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, 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 F. App’x 241, 242 fn.1 (11th Cir. 2008).
Done this 11th day of January, 2017.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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