Braggs v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 3/12/2015. (AVC)
2015 Mar-12 AM 10:01
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JENNIFER STARKS BRAGGS,
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
Case No.: 2:13-CV-2015-RDP
MEMORANDUM OF DECISION
Plaintiff Jennifer Starks Braggs brings this action pursuant to Sections 205(g) and 1631(c)(3)
of the Social Security Act (the “Act”), seeking review of the decision by the Commissioner of the
Social Security Administration (“Commissioner”) denying her applications for a period of disability
and disability insurance benefits (“DIB”) under Title II of the Act, and Supplemental Security
Income (“SSI”) benefits under Title XVI of the Act. Based upon the court’s review of the record and
the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to
be reversed and remanded. See 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff filed applications for a period of disability, DIB, and SSI on June 27, 2008, alleging
that she became disabled as of June 4, 2008.1 (Tr. 53). After Plaintiff’s applications were initially
Plaintiff’s date last insured for purposes of disability benefits was December 31, 2011. (Tr. 441). For DIB
claims, a claimant is eligible for benefits where she demonstrates disability on or before the last date for which she was
insured. 42 U.S.C. § 423(a)(1)(A) (2005).
denied, she then requested a hearing. (Tr. 54-59, 63-64). The hearing took place on February 24,
2010, before Administrative Law Judge Jill Lolley Vincent. (Tr. 23-50). In her decision dated May
3, 2010, the ALJ determined that Plaintiff had not been under a disability, as defined in the Act, at
any time from June 4, 2008, through the date of the decision. (Tr. 17-18). After the Appeals Council
denied Plaintiff’s request for review of the ALJ’s decision, that decision was appealed to the United
States District Court for the Northern District of Alabama. Braggs v. Astrue, Case No.: 2:11-cv-759CLS (N.D. Ala. Jan. 6, 2012). The Honorable Lynwood Smith, in an opinion dated January 6, 2012,
reversed the decision of the Commissioner and remanded the case for further proceedings, finding
that the decision of the ALJ was not based on substantial evidence.2 (See id. at 7).
After gathering additional medical records, the ALJ held another hearing on June 13, 2012.
(Tr. 462-93). In a decision dated June 29, 2012, the ALJ again found Plaintiff not to be under a
disability at any time from June 4, 2008, through the date of the decision. (Tr. 455). When the
Appeals Council denied Plaintiff’s request for review, the ALJ’s decision became the final decision
of the Commissioner. This appeal followed. (Doc. 1).
At the time of her June 2012 hearing, Plaintiff was 42 years old. (Tr. 466-67). She
completed the eleventh grade and never received a GED. (Tr. 467). She last worked in 2006 at
DSW. (Id.). Plaintiff stated she left that job because of health problems, including carpal tunnel in
both wrists, arthritis in both knees, plantar fasciitis, Type II diabetes, degenerative joint disease in
her right shoulder, and acid reflux. (Id.). She also reports suffering from migraine headaches and
sleep apnea. (Tr. 480, 482-83). She has reported that at times her hands become weak and numb,
Specifically, Judge Smith found that the Residual Functional Capacity (“RFC”) crafted by the ALJ was not
supported by the medical evidence of record. Id. at 7.
her right arm hurts if she tries to vacuum, she cannot walk very far, has trouble with her memory,
and gets sleepy and feels weak when her diabetes is not under control. (Tr. 468-76). Her feet
sometimes swell, burn, and are generally tender. (Tr. 480). She also suffers from depression and
anxiety. (Tr. 477). She has had auditory and visual hallucinations. (Id.). In her own estimation,
Plaintiff can stand and walk no more than ten minutes at a time, lift no more than five pounds and
sit no more than ten minutes at a time. (Tr. 478).
In 2006 Plaintiff was using splints for relief of symptoms from bilateral carpal tunnel
syndrome. (Tr. 279-80). November 2006 and June 2008 nerve conduction studies confirmed
moderate bilateral carpal tunnel syndrome. (Tr. 300-01). The splints helped more in her left hand
than her right, and her shoulder was noted to be tender with degenerative joint disease and positive
impingement. (Tr. 328-29, 338). She underwent a shoulder arthroscopy, debridement, and
decompression. (Tr. 336).
Plaintiff’s treating physician for most of the relevant time period was Dr. Jeremy Allen. (Tr.
485). Plaintiff was seen by Dr. Allen throughout 2007 for uncontrolled diabetes, knee pain, and
migraine headaches. (Tr. 207, 209, 212, 213, 267). His records reflect that Plaintiff has complained
of right shoulder pain since at least April 2008. (Tr. 202, 262, 307). Neurology Clinic records
reflect that nortiptyline helped with Plaintiff’s chronic migraine headaches, as did taking Pamelor
at the onset of a headache. (Tr. 264). Plaintiff is also followed for obstructive sleep apnea. (Tr.
302-04, 402). She had been using a C-PAP machine since October 2007 which improved her sleep
and increased her energy level. (Tr. 263).
In September 2008, a consultative mental examiner found Plaintiff to have no psychological
limitations other than she “simply does not exert herself.” (Tr. 350-51). A physical consultative
examination, also conducted in September 2008, noted Plaintiff suffered from a host of physical
ailments, that she was depressed, and that she needed help with bathing, dressing, grooming, and
preparing food. (Tr. 355). The consultative physician observed Plaintiff guarding her right arm, but
making good effort throughout the exam. (Id.). The examiner also noted limitations in her range
of motion in a variety of joints (Tr. 356-57) and diagnosed Plaintiff with bilateral carpal tunnel
syndrome, osteoarthritis, and sleep apnea. (Tr. 357). Plaintiff was also found to be limited to
standing or walking for less than two hours in an eight-hour workday due to osteoarthritis in the
knees, unlimited in sitting, and requiring an assistive device for uneven terrain and long distances.
(Id.). Further, she was limited to lifting and carrying no more than ten pounds frequently and ten
pounds occasionally due to carpal tunnel syndrome. (Tr. 358).
A March 2009 examination noted Plaintiff complained of bilateral knee pain, shoulder pain,
and wrist pain. (Tr. 385). In May 2009, Dr. Allen completed a Clinical Assessment of Pain form
in which he opined that Plaintiff suffered from pain to such an extent as to be distracting to
performance of work, that physical activity would greatly increase this pain, and that she had some
limitations from her medications. (Tr. 390). At the same time, Dr. Allen completed a Physical
Capacities Evaluation in which he shared his belief that Plaintiff could lift no more than ten pounds
occasionally to five pounds frequently, could not stand and walk for any length of time, could sit for
six hours in an eight-hour workday, had limitations on pushing and pulling movements, climbing,
fine and gross manipulation, bending, stooping, reaching, operating motor vehicles and working
around hazardous machinery, and would miss approximately four days of work per month due to her
impairments. (Tr. 391).
Follow up visits in 2009 noted that Plaintiff still had plantar fasciitis, bilateral knee pain, and
uncontrolled diabetes, as well as anxiety and continued shoulder pain. (Tr. 408). An MRI of her
right shoulder found mild degenerative changes in the AC joint and a partial rotator cuff tear. (Tr.
421). A June 2010 emergency room record reflects Plaintiff was seen for a migraine headache which
had began seven days previously. (Tr. 715).
A second psychological consultative examination was conducted in September 2010. (Tr.
593). William B. Beidleman, Ph.D., determined Plaintiff suffered from dythemic disorder and
generalized anxiety disorder, and assigned a Global Assessment of Functioning (“GAF”) Score of
58. (Tr. 594). He also believed Plaintiff had difficulties coping with ordinary work pressures. (Tr.
594). The same month, a second physical consultative examination was performed. (Tr. 596).
Again, it was determined Plaintiff had a limited range of motion in her right shoulder and both hips
(Tr. 598), although she retained bilateral hand dexterity. (Tr. 599). Plaintiff was diagnosed with
carpal tunnel syndrome, chronic low back pain, shoulder pain, and knee pain. (Id.). The examining
physician opined Plaintiff could stand or walk for two to four hours in an eight-hour workday with
frequent breaks; sit for six to eight hours without frequent breaks; and did not believe manipulative
or environmental limitations were warranted. (Id.).
In 2010 and 2011, Plaintiff was followed by Dr. Ramy Toma for uncontrolled diabetes,
GERD, depression, carpal tunnel syndrome, migraine headaches and osteoarthritis. (Tr. 670-72).
An August 2010 emergency room visit for leg pain diagnosed Plaintiff with peripheral neuropathy.
(Tr. 705-06). In September 2010, Plaintiff complained of bilateral foot pain she described as a sharp
burning pain made worse by walking. (Tr. 650). A nerve conduction study of her lower legs was
basically normal. (Tr. 647-48). A November 2010 visit record reflects Plaintiff had pain in her
knee, uncontrolled diabetes, and anxiety. (Tr. 641-42). Dr. Toma also concluded Plaintiff suffered
from depression, sleep apnea, carpal tunnel syndrome, migraine headaches, and osteoarthritis in her
lumbar spine and shoulders. (Tr. 627, 679). Plaintiff complained of constant parasthesias in her
right wrist, from which she obtained little relief from medications. (Tr. 631).
Plaintiff was seen by Theodis Bugg, Jr., M.D., for carpal tunnel syndrome and knee pain.
(Tr. 633, 675). He found only minimal degenerative changes in both knees, formed a diagnosis of
patellofemoral syndrome, and prescribed knee strengthening exercises and wrist braces. (Tr. 633,
Plaintiff returned to Dr. Allen in 2011. In a Physical Capacities Evaluation, he opined that
Plaintiff could lift ten pounds occasionally to five pounds frequently; sit for three to four hours in
an eight-hour workday; stand or walk no more than one hour in an eight-hour workday; and had
multiple postural and manipulative limitations, including only occasional grasping, handling and fine
manipulation with her hands. (Tr. 681). He believed Plaintiff would miss more than four days of
work per month due to her impairments. (Id.). His opinions about her limitations from pain
remained consistent with his prior assessment. (Tr. 682).
With this background, at the April 2012 hearing, the ALJ asked the vocational expert (“VE”)
to assume that Plaintiff had the residual functional capacity (“RFC”) to stand or walk six hours in
an eight-hour day; sit six hours in an eight-hour day, lift and carry twenty pounds occasionally, ten
pounds frequently, occasionally climb ramps and stairs, occasionally reach overhead and
occasionally bend, stoop, kneel, crouch and crawl. (Tr. 487). The VE testified that with such
limitations, Plaintiff could not perform her past work, but other jobs which fit those limitations such
as cloth folder, sorter I, and marker all existed in the national economy in significant numbers. (Tr.
488). When asked to assume someone of Plaintiff’s age, education and work experience, with
limitations against commercial driving and more than frequent handling, the cloth folder job would
no longer be available, but a laundry sorter job would be. (Tr. 489). Further limitations of standing
or walking for only two hours in a workday and lifting only ten pounds occasionally (and less weight
frequently) would eliminate the prior identified jobs, but others such as information clerk, telephone
order clerk, and document preparer still existed. (Tr. 490). Finally, if limitations such as those
described by Dr. Allen were considered appropriate, no unskilled jobs would exist in the national
economy that such an individual could perform. (Tr. 491). Additionally, a limitation of only
occasional feeling and handling would make such a person unemployable. (Id.).
The regulations require the Commissioner to follow a five-step sequential evaluation to
determine whether a claimant is eligible for a period of disability. See 20 C.F.R. §§ 404.1520,
416.920; Bowen v. City of New York, 476 U.S. 467, 470 (1986). “[A]n individual shall be
considered to be disabled for purposes of [determining eligibility for benefits] if [s]he 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
First, the Commissioner must determine whether the claimant is engaged in “substantial
gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If a claimant is engaged in
substantial gainful activity, the Commissioner will find that the claimant is not disabled, regardless
of the claimant’s medical condition, age, education, and work experience.
20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(I). The ALJ found that Plaintiff had not engaged in substantial
gainful activity since her alleged onset date. (Tr. 443).
At step two, the Commissioner must determine whether the claimant suffers from a severe
impairment or combination of impairments that significantly limit the claimant’s physical or mental
ability to do basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). “[A]n
impairment can be considered as not severe only if it is a slight abnormality which has such a
minimal effect on the individual that it would not be expected to interfere with the individual’s
ability to work, irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984); see also 20 C.F.R. §§ 404.1521(a); 416.921(a). A claimant may be found
disabled based on a combination of impairments even though none of the individual impairments
alone are disabling. Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. §§
404.1523, 416.923. The ALJ found that Plaintiff had the following severe impairments: “obesity,
bilateral carpal tunnel syndrome, diabetes mellitus II, bilateral knee pain, minimal degenerative
changes in bilateral knees, plantar fasciitis, status post arthroscopy on right shoulder, mild
degenerative changes in the right shoulder, generalized anxiety disorder, major depressive disorder,
and history of migraine headaches.” (Tr. 443).
If a claimant has a severe impairment, at step three the Commissioner must then determine
whether the claimant’s impairment meets the duration requirement and whether it is equivalent to
any one of the listed impairments in 20 C.F.R. Part 404, Appendix 1.
20 C.F.R. §§
404.1520(a)(4)(iii), (d)-(e), 416.920(a)(4)(iii), (d)-(e). If a claimant’s impairment meets or equals
a Listing, the Commissioner must find the claimant disabled, regardless of age, education, and work
experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). Here, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that met or medically equaled any Listing. (Tr. 20).
If the impairment does not meet or equal the criteria of any Listing, a claimant must prove
that her impairment prevents her from performing her past relevant work. See 20 C.F.R. §§
404.1520(a)(4)(iv), (f), 416.920(a)(4)(iv), (f). At step four, the Commissioner “will first compare
[the Commission’s] assessment of [the claimant’s] residual functional capacity with the physical and
mental demands of [the claimant’s] past relevant work.” 20 C.F.R. §§ 404.1560(b), 416.960(b). The
ALJ found that Plaintiff has the RFC to
stand/walk six hours in an eight-hour day; sit six hours in eight-hour workday and lift
and carry twenty pounds occasionally and ten pounds frequently. She can
occasionally climb ramps and stairs; never climb a ladder, rope or scaffold; and
occasionally reach overhead with bilateral upper extremities. She must avoid
concentrated exposure to extreme heat, extreme cold, wetness humidity, dusts,
fumes, odors, gases. Poor ventilation and vibration. She must avoid all exposure to
hazardous machinery and unprotected heights. She can occasionally bend, stoop,
kneel, crouch and crawl; never perform commercial driving; and frequently handle
and finger with the bilateral upper extremities. She can understand, remember and
carry out simple instructions; can maintain attention and concentration for at least
two hour time periods in order to complete an eight-hour workday; can maintain
occasional interaction with the general-public and can adapt to changes in the
workplace that are introduced gradually and infrequently.
(Tr. 446-47). Considering this RFC, the ALJ determined that Plaintiff was unable to perform any
of her past relevant work. (Tr. 454).
At the fifth and final step of the analysis, if a claimant establishes that she is unable to
perform her past relevant work, the Commissioner must show that the claimant -- in light of her
RFC, age, education, and work experience -- is capable of performing other work that exists in
substantial numbers in the national economy. 20 C.F.R. §§ 404.1560(c)(1); 416.960(c)(1). If the
claimant is not capable of performing such other work, the Commissioner must find she is disabled.
20 C.F.R. §§ 404.1520(g); 416.920(g).
At the hearing, the ALJ asked the VE whether jobs existed in the national economy for
someone of Plaintiff’s age, education, work experience, and RFC. (Tr. 487-92). Based on the VE’s
testimony, the ALJ determined jobs exist in the national economy that Plaintiff could perform. (Tr.
Plaintiff’s Argument for Remand or Reversal
Plaintiff seeks reversal or remand of the ALJ’s decision based on two arguments: (1) the ALJ
failed to give great weight to the opinion of her treating physician, and (2) the ALJ failed to properly
consider her credibility. (Doc. #16 at 8).
Standard of Review
Judicial review of disability claims under the Act is limited to analyzing whether the
Commissioner’s decision is supported by substantial evidence and whether the correct legal
standards were applied. 42 U.S.C. §§ 405(g), 1631(c)(3); Wilson v. Barnhart, 284 F.3d 1219, 1529
(11th Cir. 2002). “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.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s factual
findings are conclusive when supported by substantial evidence. Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed, even if the record preponderates against the Commissioner’s findings. Crawford
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). Legal standards are reviewed de
novo. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). “[N]o . . . presumption
of validity attaches to the [Commissioner’s] conclusions of law.” Wiggins v. Schweiker, 679 F.2d
1387, 1389 (11th Cir. 1982).
Did the ALJ Err in Failing to Give Great Weight to the Opinion of Plaintiff’s
Eleventh Circuit case law is well settled: an ALJ must give the opinion of a treating physician
“substantial weight” unless “good cause” is shown to the contrary. See, e.g., Winschel v. Comm’r
of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011); Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004); Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (stating the ALJ may reject
the opinion of any physician if the evidence supports a contrary conclusion). A non-examining
doctor’s opinion that contradicts an examining doctor’s medical report is accorded little weight and
cannot, standing alone, constitute substantial evidence. Edwards v. Sullivan, 937 F.2d 580, 584
(11th Cir. 1991). In assessing medical evidence, an ALJ is required to state with particularity the
weight he or she gave the different medical opinions and the reasons therefore. Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987). However, “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in [her] decision, so long as the ALJ’s decision” enables
the district court “to conclude that the ALJ considered [Plaintiff’s] medical condition as a whole.”
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quotations and alterations omitted).
This appeal involves a review of the ALJ’s second determination of Plaintiff’s benefits
claim. Clearly, if substantial weight is given to Plaintiff’s treating physicians in this action, she must
be found disabled. The ALJ, in this a second review, has found there is “good cause” not to give
substantial weight to the treating physicians’ opinions. Once again, the court disagrees.
Dr. Allen, Plaintiff’s treating physician, stated on May 8, 2009, that Plaintiff was limited as
follows: lifting and carrying ten pounds occasionally to five pounds frequently; sitting for six hours
in an eight-hour workday; reducing her walking and standing; only rarely reaching, bending,
stooping, and performing fine manipulation; and only occasionally pushing, pulling, and performing
gross manipulation; and operating motor vehicles. (Tr. 391). Additionally, Dr. Allen observed that
Plaintiff’s pain would be increased by physical activity such that it would cause distraction from or
complete abandonment of tasks. (Tr. 390). In September 2008, Malaika Hakima, M.D., performed
a consultative physical examination and concluded that Plaintiff could stand or walk less than two
hours in an eight-hour day due to osteoarthritis in her knees. (Tr. 357). Approximately two years
later, a second physical consultative examiner, Laurie Douglas, M.D., determined Plaintiff could
stand or walk two to four hours in an eight-hour workday. (Tr. 599). When asked for his opinion
again in October 2011, Dr. Allen found Plaintiff could sit for three to four hours a day and stand or
walk one hour a day. (Tr. 681).
Despite all this evidence to the contrary, the ALJ determined Plaintiff could stand/walk for
six hours in an eight-hour workday, based on the opinion of Stuart Stephenson, M.D., the nonexamining, non-consulting State Agency doctor who reviewed Plaintiff’s medical records and
completed forms on September 26, 2008. (Tr. 373-80, 449). In support of this determination, the
ALJ considered that a consultative psychological examiner, in September 2008, noted Plaintiff’s
gait, posture, balance and coordination were normal. (Tr. 449). The ALJ explained that although
this doctor’s “area of specialty is not that of a physical nature his observations indication that
[Plaintiff] has overstated the severity of her symptoms.” (Tr. 449). The ALJ gave no explanation
as to why a psychologist, who had not examined Plaintiff’s knees and feet, was able to opine that
Plaintiff is able to stand or walk for six hours in an eight-hour day. Nor was there a sufficient
explanation provided by the ALJ concerning why the opinions of Drs. Hakima, Allen, and Douglas
were conclusory, not supported by treatment records, or against the weight of the evidence. See
Phillips, 357 F.3d at 1240-41. Rather, the opinions of the three physicians -- who actually examined
Plaintiff -- all support their independent determination that Plaintiff has some degree of limitation
as to the number of hours in an eight-hour workday that she can spend standing or walking.
Similarly, the ALJ relied on a statement from Cooper Green Emergency Department in
August 2011, when Plaintiff was seen for gastritis and hyperglycemia, that Plaintiff could return to
work or school. (Tr. 450). The ALJ concludes that “[c]ertainly, [Plaintiff] would not receive such
a release if she could only stand and walk zero to one hour in an eight-hour day.” (Id.). But (again),
as with the ALJ’s erroneous assumption that a consultative psychological examiner would consider
Plaintiff’s allegations of knee and foot pain, an ER visit because she was “light headed, blood sugar
keeps dropping” (Tr. 746) provides no evidence concerning whether Plaintiff can stand for one or
six or eight hours in an eight-hour workday, or whether ER doctors even considered that different
Turning to Dr. Allen’s October 2011 opinion that Plaintiff’s ability to stand and walk was
limited to one hour in an eight-hour workday, the ALJ found this conclusion is not supported by the
medical evidence because “[c]onsulting physician Dr. Stuart X. Stephenson4 opined that [Plaintiff]
could stand and walk six hours in an eight-hour day in September 2008,” and consulting physician
Dr. Douglas found she was limited to two to four hours a day, which “is considerably higher than
Dr. Allen’s Evaluations.” (Tr. 450). Finally, the ALJ relies on the statement of a non-examining,
non-consulting State Agency physician, Dr. Robert Heilpern, that Plaintiff can stand and walk six
hours in an eight-hour workday. (Id.). A review of this evidence demonstrates that no doctor who
actually performed a physical examination on Plaintiff believed she could stand or walk for six hours
in an eight-hour day. For this and other reasons, the court does not hesitate in concluding that the
ALJ has failed to show the “good cause” necessary to reject these medical opinions. See, e.g.,
Winschel, 631 F.3d at 1179 (requiring the ALJ to “state with particularity the weight given to
different medical opinions and the reasons therefor” (citing Sharfarz, 825 F.2d at 279)).
Moving to Plaintiff’s ability to use her hands to perform work, the ALJ found that Plaintiff
suffers from bilateral carpal tunnel syndrome. Despite the opinions of Drs. Allen and Hakima that
Plaintiff was limited to lifting and carrying no more than ten pounds occasionally, and despite Dr.
Allen’s limitations on Plaintiff’s ability to frequently use fine and gross manipulation, the ALJ found
Plaintiff could frequently handle and finger with both hands, as well as lift and carry twenty pounds
The court notes that just two months later, emergency room records reflect, “The patient does not feel well
for the past couple of days which is generalized fatigue and weakness activated by arthralgias in her legs and her plantar
fasciitis. Due to her pain she had increased difficulty walking with increased dyspnea with exertion.” (Tr. 684).
Dr. Stephenson was the State Agency doctor who completed a Physical Residual Functional Capacity
Assessment form in September 2008. (Tr. 373-80).
occasionally and ten pounds frequently. (Tr. 446). After considering the medical records detailing
testing on Plaintiff’s hands, her complaints of parathesis and the prescription of splints, the ALJ
determined Drs. Allen and Hakima’s opinions were not supported by substantial evidence because
when Plaintiff was seen at the hospital emergency room on August 13 and August 15, 2011, for
light-headedness, stomach pain, reflux, headaches, and diabetes, she did not complain about her
hands. (Tr. 451, 746-58). Again, such evidence does not provide the good cause needed to reject
a treating physician’s opinion. 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 (11th Cir. 1986). When considered in light of the medical records as a whole, Plaintiff’s
failure to complain about her wrists when she was seen for a different complaint (i.e., what was
determined to be hyperglycemia) does not support a finding that she is capable of frequent hand
usage. Multiple treating doctors, as detailed above, have prescribed medicines and wrist splints to
ease Plaintiff’s carpal tunnel induced wrist pain. The ALJ’s findings concerning Plaintiff’s ability
to use her hands frequently is simply against the great weight of the evidence.
For the foregoing reasons, the court finds the RFC findings of the ALJ, which were based at
least in large part on her rejection of Plaintiff’s treating physicians’ opinions, are not supported by
Did the ALJ Properly Assessed Plaintiff’s Credibility?
SSR 96–7p provides the following guidance to ALJs tasked with assessing the credibility of
Because symptoms, such as pain, sometimes suggest a greater severity of impairment
than can be shown by objective medical evidence alone, the adjudicator must
carefully consider the individual’s statements about symptoms with the rest of the
relevant evidence in the case record in reaching a conclusion about the credibility of
the individual’s statements . . . .
In determining the credibility of the individual’s statements, the adjudicator must
consider the entire case record, including the objective medical evidence, the
individual’s own statements about symptoms, statements and other information
provided by treating or examining physicians or psychologists about the symptoms
and how they affect the individual, and any other relevant evidence in the case
record. An individual’s statements about the intensity and persistence of pain or
other symptoms or about the effect the symptoms have on his or her ability to work
may not be disregarded solely because they are not substantiated by objective medical
It is not sufficient for the adjudicator to make a single, conclusory statement that “the
individual’s allegations have been considered” or that “the allegations are (or are not)
credible.” It is also not enough for the adjudicator simply to recite the factors that are
described in the regulations for evaluating symptoms. The determination or decision
must contain specific reasons for the finding on credibility, supported by the evidence
in the case record, and must be sufficiently specific to make clear to the individual
and to any subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.
SSR 96-7p, 1996 WL 374186, at *4 (July 2, 1996).
The ALJ found Plaintiff’s statements concerning the intensity, persistence, and limiting
effects of her medically determinable impairments were not credible to the extent they were
inconsistent with the ALJ’s RFC findings. (Tr. 447). The ALJ first noted that Plaintiff alleged her
pain had been an eight on a zero-to-ten pain scale since 2000, although Plaintiff worked for at least
two of those years. (Id.). The ALJ also observed that Plaintiff “has not been compliant with postoperative instructions and the objective medical evidence demonstrates her conditions are not as
severe as alleged.” (Tr. 449). However, the ALJ failed to point to any objective medical evidence
used to make that determination. (Id.). The failure to comply postoperatively after a shoulder
arthroscopy, standing alone, does not provide substantial evidence that Plaintiff’s conditions are not
as severe as alleged.
The ALJ also determined that, because Plaintiff had surgery on her shoulder but not for
carpal tunnel syndrome, this “implies that [Plaintiff] was not suffering as much from the carpal
tunnel syndrome.” (Tr. 450). No evidence in the record suggests that any doctor has recommended
surgery on Plaintiff’s wrists, or that surgery would cure Plaintiff’s complaints of pain, tingling, and
numbness in her wrists.5 Rather, treatment records reflect that Plaintiff complained of “persistent
carpal tunnel in right wrist, constant parasthesias worse at night. She wears her wrist splint, has seen
Dr Buggs (sic), minimal relief with Mobic, gabapentin.” (Tr. 690).
Simply stated, Plaintiff’s testimony is not at odds with her medical records or treatment.
Plaintiff testified, “at times, my hands get weak and numb, and I have a burning sensation in them.”
(Tr. 468). She testified on cloudy and rainy days, her hands tend to hurt. (Id.). She testified she has
problems gripping, pushing, pulling, and untwisting caps. (Tr. 478). Nothing in this testimony is
contradicted by Plaintiff’s medical records reflecting she was directed to wear bilateral braces at all
The ALJ’s articulated reasons for discounting Plaintiff’s credibility are not supported by
substantial evidence. The VE’s testimony demonstrated that if the evidence from each examining
physician and Plaintiff were believed, no substantial gainful employment exists in the national
economy which Plaintiff can perform. The ALJ’s reasons for opting to ignore this wealth of
evidence are not supported by the substantial evidence in the record.
Under similar facts, where the ALJ cited to no medical evidence of record to support the clinical opinion that
because no surgery was recommended, Plaintiff’s symptoms were not as bad as alleged, another court noted, “[t]he ALJ,
therefore, “succumbed to the [forbidden] temptation to play doctor and make [his] own independent medical findings.”
Bennett v. Barnhart, 288 F.Supp.2d 1246, 1251 (N.D.Ala. 2003) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.
1996) (alterations in original)).
The court concludes that the ALJ’s determination that Plaintiff was not disabled at any time
through the date of the decision is not supported by substantial evidence. The Commissioner’s final
decision is due to be reversed and remanded. A separate order in accordance with this memorandum
of decision will be entered.
DONE and ORDERED this
day of March, 2015.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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