Owens v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 6/6/2016. (KEK)
2016 Jun-06 PM 01:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Case No.: 2:15-CV-00815-MHH
Pursuant to 42 U.S.C. §§405(g) and 1383(c), plaintiff Juliet Owens seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied her claims for a period of disability and disability
insurance benefits and supplemental security income. After careful review, the
Court reverses the Commissioner’s decision.
Ms. Owens applied for a period of disability and disability insurance
benefits and supplemental security income on August 14, 2012. (Doc. 7-6, pp. 2,
9). Ms. Owens alleges that her disability began on July 10, 2012. (Doc. 7-6, pp.
2, 9). The Commissioner initially denied Ms. Owens claims on November 28,
2012. (Doc. 7-5, p. 2). Ms. Owens requested a hearing before an Administrative
Law Judge (ALJ). (Id. at 16-17). The ALJ issued an unfavorable decision on
February 4, 2014. (Doc. 7-3, pp. 11-19). On March 17, 2015, the Appeals Council
declined Ms. Owens’s request for review (Id. at 1), making the Commissioner’s
decision final and a proper candidate for this Court’s judicial review. See 42
U.S.C. §§405(g) and 1383(c).
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s findings. “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). In making this evaluation, the Court may not “decide the facts anew,
reweigh the evidence” or substitute its judgment for that of the ALJ. Winschel v.
Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal
quotations and citation omitted). If the ALJ’s decision is supported by substantial
evidence, the Court “must affirm even if the evidence preponderates against the
Commissioner’s findings.” Costigan v. Comm’r, Soc. Sec. Admin., 603 Fed. Appx.
783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ
follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Ms. Owens has not engaged in substantial
gainful activity since July 10, 2012, the alleged onset date. (Doc. 7-3, p. 12). The
ALJ determined that Mr. Plaintiff suffers from “the following severe impairments:
cervical radiculopathy with bilateral upper extremity involvement.” (Id.). The
ALJ also determined that Ms. Owens has type II diabetes and mild atrophy
associated with a stroke, but neither is a severe impairment. (Id. at 13). Based on
a review of the medical evidence, the ALJ concluded that Ms. Owens “does not
have an impairment or combination of impairments that meets or medically equals
the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.” (Id.).
Next, the ALJ determined that Ms. Owens has the residual functional
capacity (“RFC”) to perform sedentary work except:
the claimant is able to occasionally balance, stoop, kneel, crouch,
crawl and climb ramps and stairs but never ladders, ropes or scaffolds;
must avoid vibration, unprotected heights and hazardous machinery;
is able to occasionally reach overhead with right dominant extremity;
may perform no overhead work with the left upper extremity; will be
off task 10% of the day.
(Id.). Based on this RFC, the ALJ concluded that Ms. Owens is not able to
perform her past relevant work as a kriller or as a CNA. (Id. at 17). Relying on
testimony from a vocational expert concerning hypotheticals that the ALJ posed,
the ALJ found that jobs exist in the national economy that Ms. Owens can perform,
including document preparer, telephone information clerk, and product assembler.
(Id. at 18). Accordingly, the ALJ determined that Ms. Owens has not been under a
disability within the meaning of the Social Security Act. (Id. at 19).
Ms. Owens argues that she is entitled to relief from the ALJ’s decision
because the ALJ failed to properly evaluate her testimony of disabling symptoms
consistent with the Eleventh Circuit’s three part pain standard. The Court agrees.1
“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by showing ‘(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence
confirming the severity of the alleged pain; or (b) that the objectively determined
medical condition can reasonably be expected to give rise to the claimed pain.’”
Zuba-Ingram v. Commissioner of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir.
(2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
curiam)). A claimant’s testimony coupled with evidence that meets this standard
“is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (citation omitted). If the ALJ discredits a claimant’s
subjective testimony, the ALJ “must articulate explicit and adequate reasons for
doing so.” Wilson, 284 F.3d at 1225. “While an adequate credibility finding need
not cite particular phrases or formulations[,] broad findings that a claimant lacked
credibility . . . are not enough. . . .” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir.
Ms. Owens also alleges that the ALJ did not properly evaluate the opinion of Dr. Englert.
(Doc. 9, p. 8). Because the Court finds the first issue meritorious, the Court will not address this
1995) (per curiam); see SSR 96-7P, 1996 WL 374186 at *2 (“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”).
Ms. Owens testified at her hearing “I can’t do the stuff that I used to do…
it’s hard, you know, lifting stuff. And with my neck, it’s hard for me to turn my
neck certain ways. And the pain goes through my neck and down my shoulder.”
(Doc. 7-3, pp. 30, 32). Ms. Owens testified that she could not cook, clean, do
laundry, participate in her stepson’s extracurricular activities, or drive due to the
pain in her neck. (Id. at 30-31). Ms. Owens stated that she “can’t lift” up her left
arm without losing “strength in [her] hand and [her] arm.” (Id. at 33). Ms. Owens
reported that she could “lift things over [her] head” with her right arm, but not her
left arm. (Id.). She estimated she could lift “not over five pounds” before losing
her grip strength. (Id. at 34). Ms. Owens testified that her anti-inflammatory
medication would occasionally control her pain, but it made her sleepy and made
focusing difficult. (Id. at 36). Even on her medication though, her pain would be
debilitating because she is “sitting up all day, and all night.” (Id.). She testified
that she spent “at least four or five” hours during normal work hours in bed to
control her pain. (Id. at 47). Ms. Owens testified the severity and intensity of her
pain was, on average, a nine out of ten. (Id. at 46).
Taken as a whole, Ms. Owens’s subjective pain testimony concerns her neck
and her left arm. Because of the pain in these locations, she alleges that she cannot
perform basic domestic tasks, cannot functionally lift with her left arm, and is
bedridden at least half of a normal workday.
The ALJ summarized Ms. Owens’s testimony.
(Id. at 14).
properly recited the pain standard by finding that Ms. Owens’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms.” (Id.). The ALJ then found that Ms. Owens’s testimony concerning
the “intensity, persistence and limiting effects” of her symptoms was not credible.
(Id. at 15).
The ALJ stated that “objective medical evidence” and “treatment notes”
undermine Ms. Owens’s subjective testimony on her “alleged cervical
Substantial evidence does not support the ALJ’s
interpretation of Ms. Owens’s medical records. Ms. Owens’s treatment notes are
consistent with her subjective pain testimony.
On July 16, 2012, Ms. Owens visited Dr. Robert Agee at Lemak Sports
Medicine. (Doc. 7-8, p. 119). Ms. Owens had “pain on palpation of her neck at
C5-C6, which is going to the left side. Which showed decreased sensation on the
left and decreased strength on the other side.”
X-Ray results showed
“degenerative disk disease with multiple two level C4-C5, C5-C6 with some neural
foraminal narrowing.” (Id.). Dr. Agee noted Ms. Owens’s chief complaint was
“neck pain” and continuing “pain that is going down her left arm.” (Id. at 118).
Dr. Agee did not believe the patient was incredible.
During an August 6, 2012 recheck, Dr. Agee found Ms. Owens had
“decreased pain, but still a fair amount of pain.” (Id. at 117). Dr. Agee opted to
try an epidural treatment and therapy to combat her pain and lack of flexibility.
On August 27, 2012, Dr. Agee noted that Ms. Owens continued “to have
pain in her cervical spine… with radiating [pain] down her left arm. She continues
to hurt on the left side and thinks she has spasm.” (Id. at 116). Dr. Agee opined
“she still has decreased range of motion. Still positive Spurling [test]. Pain
radiating down her left side.” (Id.). Dr. Agee refilled her “medications of Flexeril,
Naprosyn, and Lortab.” (Id.). He decided to keep her out of work until she could
see a specialist, Dr. J. Stanford Faulkner. (Id.). Dr. Agee noted that Ms. Owens
“has had no improvement with the conservative treatment of two epidural
therapies, Medrol Dosepak, and pain medication hasn’t given her any relief.” (Id.).
Dr. J. Stanford Faulkner examined Ms. Owens one month later. Harry
Wheelock, PA, wrote the report. (Id. at 115). Mr. Wheelock noted Ms. Owens’s
consistent pain complaints. (Id.). An examination found “exquisite tenderness to
the cervical spine with severe pain on motion and limitation of motion. Positive
Spurling’s [test] on the left. She has got some swelling in her… left shoulder….
She has some weakness in her deltoids especially on the left.” (Id. at 114). An XRay and MRI performed on Ms. Owens supported her complaints. (Id.).
Dr. Faulkner examined Ms. Owens on October 3, 2012 to determine if she
had a mass in her shoulder. She did not. (Id. at 110). The negative test enabled
Dr. Faulkner to begin Ms. Owens on a nerve root block to reduce her pain. (Id.).
Dr. Faulkner examined Ms. Owens’s motion range during this visit. He found that
her spine movement was reduced by roughly half of the normal range. (Id. at 86).
Ms. Owens’s right arms suffered no real limitations, while her left arm movement
was reduced to half of the normal motion range, not counting her near-normal
external rotation. (Id.).
On October 29, 2012, Dr. Abiodun Badewa examined Ms. Owens at the
request of the State agency. (Docs. 7-3, p. 16; 7-8, p. 121). Dr. Badewa noted Ms.
Owens “is presented with neck pain…. It is described as aching and chronic….
The frequency of episodes is daily…. It is radiating down the left arm. The
complaint is severe 8/10.”
(Doc. 7-8, p. 121).
During the consultative
examination, Dr. Badewa tested Ms. Owens’s flexibility and confirmed Dr.
Faulkner’s results from earlier in the month. (Id. at 125). Dr. Badewa did not note
a specific cause of the pain during the examination.
In 2013, Ms. Owens started receiving treatment at Cooper Green after losing
her insurance. (Doc. 7-3, pp. 44-45). During a March 14, 2013 visit, Dr. Nassif
Cannon noted that Ms. Owens had several blocks but continued to experience pain
“to her left arm and back from neck.” (Doc. 7-8, p. 139). Ms. Owens’s vertebral
bodies were tender, her left arm strength was “3/5,” and when she elevated her left
arm, she experienced a “tremor” with “decreased sensations.” (Id. at 140). Like
the physicians before him, Dr. Cannon did not find Ms. Owens’s account of her
pain to be incredible.
On May 17, 2013, Ms. Owens saw a Cooper Green neurologist for “[n]eck
and shoulder pain.” (Id. at 137). Ms. Owens complained “of worsening pain,
which rates a 7-9 of 10 and varies throughout the day, but is present every day.
She also complains of left hand and arm ‘tingling’ and pain progressing from her
neck to her right shoulder.” (Id.). The examining physician ordered an MRI of
Ms. Owens’s cervical spine to compare her current results to those from an MRI in
July 2012. Treatment records from this visit indicate that “conservative medical
management” had failed and that Ms. Owens “continues to have pain.” (Id. at
Medical records from June 12, 2013 present one exception to Ms. Owens’s
longitudinal treatment history: her left and right arms had a “full range of motion,”
though her cervical spine was still “limited.” (Id. at 136). The limited movement
was accompanied by “neck pain.” (Id. at 135).
On August 2, 2013, Ms. Owens returned to Cooper Green’s neurology
clinic. (Id. at 132). Under general observations, the doctor wrote, “patient sitting
on bed, apparently in pain.” (Doc. 7-8, p. 133). Ms. Owens reported that since her
visit in May, she believed her pain had “been stable and somedays a bit worse.”
(Id.). Ms. Owens complained that “she has knots of her [left] shoulder and her
[right] thumb gets stuck.” (Id.). She rated her pain as “7-9 of 10,” varying
throughout the day. (Doc. 7-8, p. 132). Treatment records revealed that Ms.
Owens “has been relying heavily on her husband to help with chores around the
house for the past year. Her husband thinks that things have been about the same
over the past year.” (Id.). The physician referred Ms. Owens to the pain clinic at
UAB. (Id. at 133).
On December 6, 2013, Ms. Owens reported “having continued cervicalgia
with pain radiating down her arm as well as paresthesias in her hand.” (Id. at 128).
A neurological exam found “pronounced weakness as follows: WE 3/5, WF 4/5,
HI 4/5, APB 3/5, FE 3/5.” (Id. at 129). All other neurological signs appeared
normal with the exception of decreased senses in C6-7 on the right and median
nerve distribution on the left. (Id.). During this visit, Ms. Owens’s neurologist
reviewed an MRI from September 9, 2013 and noted multi-level mild degenerative
changes from C2-3 to C6-7. (Id. at 130). The neurologist diagnosed Ms. Owens’s
with “likely cervical radiculopathy, failing conservative medical management . . .
and continues to have pain, now with sudden onset of profound weakness of right
arm with exam findings concerning for acute C6-7 radiculopathy. Left extremity
symptoms have progressed subtly to involve sensory loss as C7 dermatome.” (Id.).
The neurologist ordered an additional MRI of Ms. Owens’s cervical spine “[d]ue to
acute change over the last 24 [hours] and concern for right sided cervical (C6-7)
radiculopathy based on examination with profound weakness and sensory loss.”
(Tr. 412). The neurologist also refilled Ms. Owens’s “Mobic, Neurontin, and
muscle relaxer.” (Id.).
This medical evidence is consistent with Ms. Owens’s subjective pain
testimony. The records contain no statement by a doctor indicating Ms. Owens’s
neck or arm condition was less severe than she described, and there is no indication
that Ms. Owens’s description of her limited daily activities was inaccurate. See 20
C.F.R. §416.929(c)(3) (relevant factors to consider when weighing subjective pain
testimony include “daily activities,” severity of pain symptoms, “aggravating
factors,” “medication,” and treatment received).2
evidence does not support the ALJ’s decision to discredit Ms. Owens’s testimony
regarding her neck and left arm pain. See SSR 96-7P 1996 WL 374186 at *7 (“In
general, a longitudinal medical record demonstrating an individual’s attempts to
seek medical treatment for pain or other symptoms and to follow that treatment
once it is prescribed lends support to an individual’s allegations of intense or
persistent pain or other symptoms for the purposes of judging the credibility of the
Because substantial evidence does not support the ALJ’s credibility
determination, the Court will remand this action to the Commissioner. Powell v.
Astrue, 250 Fed. Appx. 960, 964-65 (11th Cir. 2007) (“[B]ecause neither of the
The ALJ seemed to question Ms. Owens’s credibility generally. The ALJ challenged Ms.
Owens’s report that she was told that she experienced a TIA in December 2013, and the ALJ
remarked that she was unable to find objective support for Ms. Owens’s description of the
severity of her diabetes. (See, e.g., Doc. 7-3, pp. 33, 35). The medical records indicate that Ms.
Owens had chronically high blood sugar in 2011, and a December 2013 medical record
substantiates the report of a TIA. (Doc. 7-8, pp. 21, 22, 27, 29, 128). The credibility issue in this
case focuses on Ms. Owens’s credibility as it pertains to her reports of neck and arm pain.
During her administrative hearing, Ms. Owens admitted that in 2012, Dr. Faulker opined that
she could perform “light duty” work. (Doc. 7-3, p. 43). The ALJ found that “treatment records
from December 2013 … support a reduction [from light work] to sedentary work as described in
the residual functional capacity outlined herein.” (Id. at 17). Objective medical evidence
demonstrates that Ms. Owens’s neck and arm pain worsened after Dr. Faulkner’s 2012
examination. (Doc. 7-8, p. 130). Therefore, Dr. Faulkner’s 2012 opinion does not change the
result here. See Crow v. Colvin, 36 F. Supp. 3d 1255, 1262 (N.D. Ala. 2014) (“[T]he medical
evidence and the ALJ’s own findings demonstrate that Crow’s impairments deteriorated after Dr.
Bowling’s treatment in 2005. Consequently, Crow’s ability to work in 2005 does not provide
substantial evidence to discredit her testimony that she suffers from disabling limitations in
ALJ’s reasons for discrediting Powell’s incontinence testimony amounts to
substantial evidence supporting his decision to reject that testimony, we must
remand this case so that the ALJ can re-assess the effect of Powell’s claimed
incontinence after either accepting her testimony or by articulating an adequate
reason to reject it”).
For the reasons discussed above, the Court remands the decision of the
Commissioner for reevaluation of the subjective testimony as it relates to Ms.
Owens’s neck and left arm pain. The Court will enter a separate order consistent
with this memorandum opinion.
DONE and ORDERED this June 6, 2016.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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