Davis v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/20/17. (SAC )
2017 Mar-20 PM 01:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF LABAMA
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
CIVIL ACTION NO.
On July 12, 2012, the claimant, Anita Davis, protectively applied for disability
benefits under Titles II and XVI of the Social Security Act. (R. 132-147). The claimant
alleged disability beginning on June 7, 2012, because of chronic moderately severe hip
and back pain. (R. 33, 50). The Commissioner denied the claims on September 7, 2012.
The claimant filed a timely request for a hearing before an Administrative Law Judge,
and the ALJ held a video hearing on November 30, 2013. (R. 27-49).
In a decision dated January 23, 2014, the ALJ found that the claimant was not
disabled as defined by the Social Security Act and was, therefore, ineligible for social
security benefits. (R. 11-20). On June 21, 2015, the Appeals Council denied the
claimant’s requests for review. (R. 1-5). Consequently, the ALJ’s decision became the
final decision of the Commissioner of the Social Security Administration. The claimant
has exhausted her administrative remedies, and this court has jurisdiction pursuant to 42
U.S.C. §§405(g) and 1383(c)(3). For the reasons stated below, this court reverses and
remands the decision of the Commissioner.
II. ISSUE PRESENTED
Whether the ALJ erred in evaluating the claimant’s allegations of the limiting
effects of her symptoms because substantial evidence does not support her findings
regarding the claimant’s need for a cane and her ability to frequently balance, stoop,
kneel, crouch, crawl, and climb stairs.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court
must affirm the ALJ’s decision if she applied the correct legal standards and if substantial
evidence supports her factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No…presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.”
Walker, 826 F.2d at 999. This court does not review the Commissioner’s factual
determinations de novo. The court will affirm those factual determinations that are
supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971).
The court must keep in mind that opinions, such as whether a claimant is disabled,
the nature and extent of a claimant’s residual functional capacity, and the application of
vocational factors, “are not medical opinions,…but are, instead, opinions on issues
reserved to the Commissioner because they are administrative findings that are
dispositive of a case; i.e., that would direct the determination or decision of disability.”
20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is
qualified for Social Security disability benefits is a question reserved for the ALJ, and the
court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for
that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Thus, even if the court were to disagree with the ALJ about the significance of certain
facts, the court has no power to reverse that finding as long as substantial evidence in the
record supports it.
The court must “scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A
reviewing court must not only look to those parts of the record that support the decision
of the ALJ, but also must view the record in its entirety and take account of evidence that
detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180
(11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when
the person is unable to “engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less
than 12 months….” 42 U.S.C. § 423(d)(1)(A). To make this determination the
Commissioner employs a five-step, sequential evaluation process:
(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); 20 C.F.R. §§ 404.1520,
The claimant was fifty-four years old at the time of the ALJ’s final decision (R.
29); has a high school education (R. 73); has past relevant work as a bus attendant,
sewing machine operator, sales clerk, and day care worker (R. 45); and alleges disability
based on chronic moderately severe hip and back pain (R. 33, 50).
The claimant sought treatment on April 6, 2010 with Dr. Joshua Miller at Cooper
Green Health Center, complaining of lower back pain that radiated into her left leg and
calf. She reported to Dr. Miller that the Ultram and Parafon Forte that she was taking for
pain was not working. He prescribed 500 mg of Naproxen and Tylenol 3 for pain and
ordered an MRI of her lumbar spine. The claimant underwent an MRI of her lumbar
spine on May 11, 2010 that showed shallow lordosis or curvature of the spine; normal
disc heights with no gross desiccation; no disc bulge or herniation; a well-preserved
central canal; “mild ligamentous hypertrophy at the lower of two levels with earliest of
facet changes resulting [in] mild foraminal compromise bilaterally”; and otherwise
unremarkable findings considering the claimant’s age. (R. 316, 332).
On June 8, 2010, the claimant returned to Dr. Miller complaining of back pain.
Dr. Miller noted that the claimant was involved in a car accident in 2006 and that
litigation was pending based on that accident. Regarding whether the pending litigation
contributed to the claimant’s complaints of continued pain, he noted “? factor in lack of
improvement.” Dr. Miller noted the findings on the MRI the previous month and referred
the claimant to physical therapy. (R. 269).
The claimant began physical therapy at Cooper Green on June 28, 2010, and
returned on July 9, 16, and 30. On July 9, she reported constant pain and numbness in
her lower extremities, but the therapist reported that “despite constant complaints of
pain/numbness, [the claimant] tolerate[d] exercises with no signs of discomfort.” The
claimant stated on July 16 that she had “on and off days with pain,” but she again
tolerated the session with no complaints of pain or discomfort. On July 30, the claimant
reported that she continued to do her exercise at home, but she continued to experience
pain and had swelling in her ankles. The therapist noted that the claimant had reached
the “maximum benefit” of physical therapy; encouraged her to continue her maintenance
program at home; and discharged her from physical therapy. (R. 264-267).
In a physical therapy evaluation form dated September 21, 2010, the therapist
reported that the claimant reported improvement in her pain, but listed her pain level as a
“7/10” on the pain scale. The therapist also noted that the claimant had weakened
strength of “4/5” in her lower extremities; had difficulty with her “household activities”
and “standing activities”; was able to tolerate prolonged standing and walking with some
pain; could participate in her activities of daily living; and should continue her
maintenance program at home. (R. 268).
On September 21, 2010, the claimant returned to Dr. Miller complaining of
constant pain in her back and legs when standing and swelling in both feet and ankles.
Dr. Miller noted that the claimant completed physical therapy and was to complete a
home exercise program. He continued the claimant’s prescriptions for Trazadone for
insomnia and Parafon Forte, Tylenol 3 and Naproxen for pain. (R. 262).
The claimant saw Dr. Bruce Pava at Cooper Green Medical Center on November
9, 2010 complaining of a shooting pain in her left hand that radiated to her left upper
extremity. Dr. Pava’s impression was “probable neuropathy,” and he prescribed the
claimant Neurontin. (R. 323).
Almost four months later, the claimant returned to the Cooper Green Medical
Center and saw Dr. James Floyd on March 7, 2011, complaining of hip and back pain.
Dr. Floyd noted both the car accident in 2006 and the MRI of her lumbar spine in 2010.
He also noted that the claimant had not taken her medications for two months, but the
records do no indicate the reason. X-rays of her hips showed normal bone and joint
structures; no soft tissue calcification; and no significant swelling. Dr. Floyd referred the
claimant back to Dr. Miller for a fibromyalgia assessment. (R. 255, 313).
The claimant returned to Dr. Miller on March 31, 2011 for a routine visit. Dr.
Miller noted the claimant’s chronic pain with an unknown origin; her insomnia; and her
hip x-rays from March 7 that were normal. His orders included a lab work for a
rheumatoid analysis for fibromyalgia, but the results are not in the record. 1
Dr. Jamie Bell at Cooper Green noted during a July 5, 2012 examination of the
claimant that her “RF AND ANA” tests were “NEGATIVE 3/2011.” (R. 293).
However, the court can find no medical records showing the results of those tests.
The record contains no medical reports for the claimant from March 31, 2011 to
June 7, 2012, when she sought treatment at the Emergency Room at Cooper Green
Hospital. The claimant reported a sharp, aching pain in her lower back, legs, and chest
that was worse with movement and better with rest. She assessed her pain as a “7/10” on
the pain scale. Dr. Raymond Broughton noted that she had “generalized joint pain”
tender on palpation; “mild stiffness” at times; no joint swelling; tenderness in her neck
with manipulation; normal range of motion in her lower extremities; tenderness with
bending or sitting for long periods of time; a normal gait; and no active medications. Dr.
Broughton ordered an x-ray of the claimant’s lumbar spine that showed no significant
abnormalities; well-maintained displaces; and an otherwise unremarkable vertebra.
Broughton’s clinical impression was arthralgias or joint pain that was stable at the time of
discharge. He noted that the claimant had “LUMBAR SPINE SEVERE DJD” and
ordered her to use warm moist heat on her lower back; to avoid heavy lifting; and to not
drive or operate heavy machinery. Dr. Broughton prescribed Prednisone for any
inflammation and Tramadol, Mobic, and Robaxin for pain and told her to take the
medications as prescribed. (R. 240-241,295-299, 307).
The claimant returned to Cooper Green Clinic on July 5, 2012 complaining of low
back and hip pain at a “7/10” on the pain scale. She reported to Dr. Jamie Bell that in
June Dr. Broughton told her that her discs are “separating” and that she has “arthritis in
[her] spine” and a “high case of inflammation.” The claimant reported that her
medications include Methocarbamol, Naproxen, Tramadol, Trazadone, and Meloxicam,
but that nothing helped her pain. She told Dr. Jamie Bell that she “is planning to file for
Dr. Bell noted that the claimant ambulated with a cane and reported chronic pain
in her lower back and hips. During the physical examination, Dr. Bell noted that the
claimant “moves all extremities well”; had a negative bilateral straight leg test; and had
passive range of motion in her hips without pain. Dr. Bell ordered an x-ray of the
claimant’s hip that showed a slight widening of symphysis but no fracture deformity. He
also noted that her rheumatoid factor (RF) and antinuclear antibody (ANA) tests from
March 2011 were negative. He prescribed the claimant Naproxen, Robaxin and Ultram
and discontinued her prescription for Mobic and Meloxicam. (R. 289-294).
An MRI on July 24, 2012 revealed the early stages of degenerative disc disease;
no focal disc protrusion or herniation; no central stenosis; and “neural foraminal
compromise” in the lower two levels. (R. 303). On August 31, 2012, the claimant
underwent an MRI of her hips that showed well-maintained joint spaces with no effusion;
unremarkable musculature and subcutaneous fat; and otherwise negative results. (R.
At the request of the Social Security Administration, the claimant completed a
“Function Report-Adult” on July 30, 2012. In that report, the claimant stated that, on a
typical day, she takes a shower; straightens her bed if she is not hurting; reads; watches
television; talks to family members sometimes; cooks dinner about twice a week;
crotchets a little sometimes; and lays down to go to bed. She has trouble sleeping
because of pain in her back, spine, and hips. She can do most personal care activities by
herself, but she needs the assistance of a cane to use the toilet; can do laundry and iron a
little every day with help; can clean the house with help; goes outside five to six days a
week; shops for food once a week for thirty minutes to an hour; can sew a little but it
bothers her back and causes her feet and ankles to swell; and goes to church. (R. 191195).
In the Function Report, the claimant also indicated that she cannot squat, bend,
reach or kneel; that she hurts if she stands or walks too long or climbs stairs; and that she
cannot complete tasks or concentrate if she is hurting. She can walk about forty to fifty
feet before she needs to stop and rest for about ten minutes; can pay attention about one
hour at a time; can follow written and spoken instructions well; and handles stress well.
She indicated that she walks with a cane “daily,” and that a doctor prescribed the cane.
On October 30, 2012, Nurse Practitioner Annie McCartney with Cooper Green
Mercy Hospital noted the claimant’s DEXA or bone density test showed a new diagnosis
of osteoporosis. Ms. McCartney prescribed Fosamax and instructed the claimant to eat a
calcium-rich diet; to exercise “3 min X 3/week”; and to have another DEXA test in two
years. The claimant rejected hormone therapy with estrogen because of the risks. (R.
During an examination at Cooper Green Mercy Hospital on December 21, 2012
for the flu, Dr. Jacqueline Duke noted that the claimant had “Normal ROM,” but did not
identify any specific parts of the body.
The claimant did not seek medical treatment for her back or hip pain again until
May 17, 2013, when she returned to Cooper Green Mercy Hospital for a follow-up
appointment regarding her Fosamax use. The claimant stated that she tolerated the
medication well, but noted that she had “significant left hip and left knee pain.” Dr.
Rowell Ashford referred the claimant to an orthopedic doctor. (R. 357).
A week prior to her orthopedic appointment, the claimant returned to the Urgent
Care Clinic at Cooper Green Mercy Hospital on July 1, 2013, complaining of a rash.
During the physical examination, Nurse Practitioner LaFayette Holmes noted that the
claimant has a normal range of motion in her extremities; has a normal gait; and was
taking Methocarbamol for muscle spasms, Narpoxen and Tramadol for pain, and
Trazodone to help her sleep. Ms. Holmes gave the claimant a steroid injection in her hip
and prescribed a Prednisone taper for her rash. (R. 352-354).
The claimant presented to Dr. Lucas Routh, an orthopedic specialist at Cooper
Green Mercy Hospital, on July 10, 2013 upon Dr. Ashford’s referral. The claimant told
Dr. Routh that she has pain in her left hip and knee that worsened when laying on her left
side; that the pain comes and goes; that she has a sharp pain in her left knee that worsens
when walking; that Naproxen gives her “mild relief”; and that she has not tried physical
therapy lately. Upon examination of the claimant, Dr. Rough noted that the claimant
ambulated with a cane; had an abnormal Trendelenberg gait when walking; had full range
of motion in her left hip and knee; had no pain with a “logroll” of the hip; had a stable
knee with “V/V stress”; and had 5/5 strength “throughout.” (R. 348-349).
Dr. Routh ordered a left hip x-ray that revealed “mild superior joint space
narrowing consistent with mild OA” and a left knee x-ray that showed “early
degenerative changes of the medial compartment and patellofemoral joint.” He assessed
that the claimant has “left greater trochanteric bursitis” and mild osteoarthritis in her left
hip and knee. He did not give her a steroid injection because of the steroid injection a
week earlier; discontinued her prescription for Trazodone; continued her prescriptions for
Methocarbamol, Tramadol and Naproxen; and prescribed her Alendronate for
osteoporosis. Dr. Routh also referred the claimant to physical therapy. (R. 349-350).
The claimant went for a physical therapy evaluation at Cooper Green Mercy
Hospital on July 19, 2013. Physical Therapist Herman Turner noted that the claimant
reported difficulty with standing and walking activities; used a cane for mobility;
reported walking in the park three times a week for exercise; and stated that she cannot
continue physical therapy because of financial and transportation issues but would do the
exercises at home. The claimant assessed her pain as a “7/10” on the pain scale and
described it as “intermittent, variable, [and] daily.” Mr. Turner noted the claimant’s
“lower extremity weakness” and described the claimant’s gait as “Mild Antalgic Pattern
with Standard Cane.” Her range of motion in her lower extremities was “within
functional limits.” He gave the claimant instructions about how to properly use her cane
and therapeutic exercises to do at home. (R. 346).
The claimant returned to Dr. Routh on August 21, 2013 for a follow-up
examination complaining of severe left hip and knee pain. The claimant reported that her
pain worsens when she lays on her left side or stands too long; that her left knee pain has
worsened and was now “popping, catching[,] and giving out”; and that she continues to
ambulate with a cane. Dr. Routh noted that the claimant requested a knee brace for
“subjective knee instability” and that she stated her medications only give her “mild
relief.” During the physical examination of the claimant, Dr. Routh reported that her knee
was “stable to v/v stress,” but ordered an MRI of her left knee “given [the] worsening
knee pain and mechanical instability.” 2 He told the claimant to return for follow-up at
The record does not contain the results of an MRI of her knee after this examination.
the clinic following the MRI and discussed steroid injections for the pain, but the
claimant wanted to “think this over” because she has osteoporosis and “is concerned this
will lead to its progression.” (R. 342-344).
A few weeks later on September 12, 2013 at her annual gynecological exam, Dr.
Bell noted that the claimant ambulated with a cane and wore a left knee brace. The
claimant complained of insomnia, so Dr. Bell re-instated her prescription for Trazadone.
The ALJ Hearing
At the hearing before the ALJ on November 30, 2013, the claimant testified that
she lives with her husband in an apartment. She last worked in June 2012 as a bus
attendant lifting wheelchairs but had to stop working because of her pain. The claimant
stated that she received unemployment from June to July 2012, but when she told them
about her disability, her benefits ended. She receives food stamps and has no health
insurance. The claimant testified that she tried to get free or reduced services from
Cooper Green, but she did not qualify because of the money her husband receives for his
disability. (R. 30-33, 38).
She described that on a typical day she gets up, takes a shower, and lays down for
a “majority of the day.” Her husband fixes breakfast and brings it to her in bed. She sits
in the living room to eat her dinner but then goes back to the bedroom to lie down. She
testified that she does drive “sometimes.” (R. 30-31).
When asked why she cannot work, the claimant stated that she cannot lift, pull, or
bend because those activities affect her back and hips. The ALJ asked the claimant about
the fact that she used a cane at the hearing to ambulate and whether she has a doctor’s
prescription for the cane. The claimant said that “Dr. Bratton” 3 prescribed the cane, but
her attorney could not find an actual medical prescription for the cane in the medical
records. She also stated that she requested a knee brace from her orthopedic doctor, Dr.
Routh, to help with her balance in her left knee. (R. 33-34).
The claimant testified that she walks thirty minutes or so in the house on and off
during the day. She said she used to walk at the park around the trail but had to stop
because the pain in her left hip worsened. Her hips and lower back hurt when she stands
too long; she needs to lie down between four and five hours in an eight hour work day;
and she can sit thirty to forty minutes at a time and then needs to stand about ten minutes.
She testified that she was in pain at the hearing from sitting. (R. 35-37).
Regarding her medications, she testified that she takes Alendronate for her
osteoarthritis, Naproxen for pain, and Robaxin for inflammation. She stated that she
takes her medication when she is has the funds to get it and that she has to “spread out”
her mediations so she “can have something to take.” The last time she could afford her
medications was June 2013 and she got thirty pills, and the last time she took her
medications was in August 2013 because she had spread them out over time. The
claimant testified that she was “cautious” of steroid shots because she already has
osteoporosis and does not want her bones to get “any weaker than what they are.” She
does not take over the counter medications because she is concerned about her liver. (R.
The court can find no “Dr. Bratton” in the record. However, the claimant did seek
treatment from a “Dr. Broughton” on June 7, 2012 at Cooper Green Hospital Emergency
Room. (R. 240-241, 295-299, 307).
A vocational expert, Dr. Uno, 4 testified concerning the type and availability of
jobs that the claimant was able to perform. Dr. Uno testified that the claimant’s past
relevant work was as a bus attendant, classified as light, unskilled work; a day care
worker, classified as light, semi-skilled work; a sewing machine operator, classified as
light, unskilled work; and a sales clerk, classified as light, low-semi-skilled work. The
ALJ asked Dr. Uno to assume a hypothetical individual the same age, education, and
experience as the claimant with a residual functional capacity to perform light work who
can frequently balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; can never
use ladders, ropes, or scaffolds; must avoid concentrated exposure to extreme cold and
vibration; and can have no exposure to unprotected heights and hazardous machinery.
Dr. Uno testified that individual could perform the claimant’s past work. (R. 46-47).
In her second hypothetical, the ALJ asked Dr. Uno to assume all of the prior
limitations except the individual must be allowed to alternate between standing and
sitting every forty-five minutes to an hour while remaining on-task. Dr. Uno testified that
individual could not perform the claimant’s past work, but that individual could work as a
cashier, classified as light work, with 67,200 jobs in Alabama and 3,314,000 jobs in the
nation; an informational clerk, classified as light work, with 11,450 jobs in Alabama and
966,150 jobs in the nation; a small products assembler, classified as light work, with
1,820 jobs in Alabama and 218,740 jobs in the nation. (R. 46-47).
In her third hypothetical, the ALJ added an additional limitation that the
individual could do only sedentary work and had to use a cane to ambulate. Dr. Uno
testified that individual could not perform the claimant’s past work and that the claimant
The record does not contain Dr. Uno’s first name.
had not acquired any skills in her past work that would transfer to any jobs at the
sedentary level. (R. 48).
The ALJ’s Decision
On January 23, 2014, the ALJ issued a decision finding that the claimant was not
disabled under the Social Security Act. (R. 11-20). First, the ALJ found that the claimant
met the insured status requirements of the Social Security Act through September 30,
2017, and had not engaged in substantial gainful activity since her alleged onset date of
June 7, 2012. (R. 13).
Next, the ALJ found that the claimant had the severe impairment of “left greater
trochanteric bursitis.” However, she found that the claimant’s degenerative disc disease,
knee impairment, and osteoporosis were non-severe impairments. She noted that the
June 2012 x-ray of the claimant’s lumbar spine showed no significant abnormality; that
the May 2010 and July 2012 MRIs showed only early stages of degenerative disc disease;
and that the claimant had negative straight leg raise tests, normal range of motion in her
back, and tenderness in her back on only one occasion. The ALJ also noted that the
claimant’s left knee x-ray showed only early degenerative changes; she only had mild
tenderness on palpation, full range of motion, and full motor strength in her knees; her
knee was stable to v/v stress; and her orthopedic noted the claimant requested a knee
brace for subjective knee instability in August 2013. Regarding the claimant’s
osteoporosis, the ALJ stated that the records do not show how that impairment limits her
function and that the recommendation that she exercise shows no significant limitation.
The ALJ next found that the claimant did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15). The ALJ considered
whether the claimant met the criteria for Listing 1.02 involving major dysfunction of a
joint, but found that she did not have the gross anatomical deformity or chronic joint pain
and stiffness or joint space narrowing to meet that Listing. (R. 15).
Next, the ALJ determined that the claimant has the residual functional capacity to
perform light work, except that she can frequently balance, stoop, kneel, crouch, crawl,
and climb ramps and stairs; never climb ladders, ropes, or scaffolds; must avoid
concentrated exposure to extreme cold and vibration; and must avoid all exposure to
unprotected heights and hazardous machinery. (R. 15-16).
In making this finding, the ALJ considered the claimant’s symptoms and
corresponding medical record. The ALJ concluded that, although the claimant’s
medically determinable impairments could reasonably be expected to cause her
symptoms, the claimant’s allegations regarding the intensity, persistence, and limiting
effects of those symptoms were not fully credible when compared with the evidence.
Specifically, the ALJ found that the objective evidence does not support the debilitating
level of pain and difficultly alleged by the claimant. The ALJ noted the July 2012 hip xrays and August 2012 MRI that showed no obvious fracture deformity and pointed out
that the mild superior joint space narrowing did not manifest until the July 2013 x-ray.
The ALJ also found that the physical examinations did not show abnormalities
that would support the alleged severity of the claimant’s symptoms. The ALJ pointed to
the June 2012 examination where the claimant had normal range of motion and a normal
gait; the July 2012 examination where she ambulated with a cane, but could move her
extremities well and had passive range of motion in her hips with no pain; the October
2012 examination where the nurse practitioner encouraged the claimant to exercise three
time a day; and the December 2012 visit where the claimant could move her extremities
well. (R. 17).
The ALJ also noted that the claimant had a lapse of treatment from December
2012 to May 2013, and that, although the claimant used a cane during her July 2013
orthopedic visit, no doctor had prescribed her a cane. To support her findings that the
claimant’s symptoms were not as limiting as she alleged, the ALJ pointed to the facts that
the claimant used a cane without a doctor’s prescriptions and with normal findings in her
lower extremities; only intermittently takes her medications; has declined steroid
injections; does not take over-the-counter medications; and could walk around the park
but stopped even though the objective evidence does not show a decline in her condition.
The ALJ acknowledged that the claimant could not continue physical therapy because of
her finances and transportation, but stated that both the claimant and her husband can
drive and that she was declined charity care because of her family’s resources. The ALJ
also found that the objective evidence and physical examination findings do not support
that the claimant has such severe limitations in her daily activities.
The ALJ found that, given her residual functional capacity, the claimant could
perform her past relevant work as a bus attendant, sewing machine operator, sales clerk,
and daycare worker. The ALJ also noted that the vocation expert testified that the
claimant could also perform other jobs at the light exertion level even if her residual
functional capacity included the need to alternate between sitting and standing every
forty-five minutes to one hour, while staying on task.
Therefore, the ALJ concluded that the claimant was not disabled as defined in the
Social Security Act.
The claimant argues that the ALJ erred in evaluating her allegations of the
limiting effects of her symptoms under the pain standard because substantial evidence
does not support his findings. The court agrees and finds that substantial evidence does
not support the ALJ’s findings regarding the claimant’s use of a cane and her ability to
frequently balance, stoop, kneel, crouch, crawl, and climb stairs.
The pain standard applies when a claimant attempts to establish disability through
her own testimony of pain or other subjective symptoms. Holt v. Sullivan, 921 F.2d 1219,
1223 (11th Cir. 1991). “The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably expected to give rise to the
alleged pain.” Id. (emphasis added).
A claimant’s subjective testimony supported by medical evidence that satisfies the
pain standard is itself sufficient to support a finding of disability. Foote v. Chater, 67
F.3d 1553, 1561 (11th Cir. 1995). In applying the pain standard, if the ALJ decides not
to credit a claimant’s subjective testimony of pain, he must discredit it explicitly and
articulate his reasons for doing so. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir.
1991). Substantial evidence must support the ALJ’s findings regarding the limiting
effects of the claimant’s symptoms. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.
In the present case, the ALJ found that the claimant had medically determinable
impairments that could “reasonably be expected to cause [her] alleged symptoms.” Yet,
the ALJ found that the claimant’s “statements concerning the intensity, persistence[,] and
limiting effects of her symptoms are not entirely credible. . . .” (R. 16).
substantial evidence does not support the ALJ’s reasons for discrediting the claimant’s
statements regarding the use of her cane and the ALJ’s residual functional capacity
finding that the claimant can frequently balance, stoop, kneel, crouch, crawl, and climb
The claimant testified at the hearing that “Dr. Bratton” prescribed her cane, and
she also indicated in her Function Report in July 2012 that a doctor prescribed the cane
that she used daily. (R. 33, 191-195). Although the court reporter at the hearing spelled
the name “Dr. Bratton [phonetic],” the logical conclusion is that the claimant meant “Dr.
Broughton” who treated her in June 2012. See (R. 33).
Despite the claimant’s testimony at the hearing, the ALJ disregarded the
claimant’s statements that Dr. Broughton prescribed the cane based solely on the fact that
the record contained no actual, written doctor’s prescription for a cane. Social Security
Regulation 96-9p states that a hand-held assistive device is medically required where
medical documentation “establish[es] the need for a hand-held device to aid in walking or
standing, and describe[es] the circumstances for which it is needed.” The ALJ must
“always consider the particular facts of a case” when determining the need for a handheld device. SSR 96-9p, 1996 WL 374185, *7 (1996). Notably absent from this standard
is any requirement for a “prescription.”
Even though the record does not contain an actual “prescription” for a cane from
Dr. Broughton, the record supports the claimant’s testimony that Dr. Broughton
prescribed the cane for her. Dr. Broughton found during his June 2012 examination of
the claimant that she had tenderness on palpation in her joints; “mild stiffness” at times;
tenderness in her neck with manipulation; tenderness with bending; and “LUMBAR
SPINE SEVERE DJD.” Dr. Broughton told the claimant to avoid heavy lifting, driving,
and operating heavy machinery. These findings and limitations on Dr. Broughton’s
physical examination of the claimant support her statement that Dr. Broughton prescribed
her a cane and could support that medical documentation exists that Dr. Broughton
prescribed the cane for the claimant.
Moreover, the claimant showed up for her appointment with Dr. Bell a month
later in July 2012, ambulating with a cane and stating that Dr. Broughton told her during
that June visit that her discs were “separating” and that she has “arthritis in [her] spine”
and a “high case of inflammation.” The court also notes that, although the record does
not reflect the claimant’s use of a cane to ambulate at every doctor’s visit after June 2012,
many of the visits do reflect her use of a cane. Also, the physical therapist did not
discourage the claimant from using a cane to ambulate because it was not necessary, but
instead instructed her on the proper way to use the cane in July 2013.
If Dr. Broughton told the claimant to use a cane to ambulate in June 2012 and
believed the claimant’s use of a cane was medically necessary given his physical
examination of her on that date, the claimant’s use of a cane during the July 2012 visit
with Dr. Bell is credible contrary to the ALJ’s finding that the claimant took it upon
herself to use a cane unnecessarily. The ALJ simply disregarded the claimant’s statement
about Dr. Broughton telling her to use a cane based on the lack of a written prescription
for one in the record. Yet, the ALJ had no other evidence in the record from a doctor to
show that a cane was not medically necessary or to support the ALJ’s finding that she had
the ability to frequently balance, stoop, kneel, crouch, crawl, and climb stairs given her
Instead of disregarding the claimant’s statements about Dr. Broughton prescribing
the cane because no written prescription for one was in the record, the ALJ should have
ordered a consultative examination to ascertain whether the claimant’s use of cane was
medically required. An ALJ has a duty to fully and fairly develop the record. See Lucas
v. Sullivan, 918 F.2d 1567, 1573 (11th Cir. 1990). The court notes that the record not
only contains no consulting physician’s examination of her ability to ambulate with or
without a cane, but the record contains no opinions from any doctor regarding the
exertional or non-exertional limitations of the claimant given her underlying medical
Moreover, in the alternative and given the claimant’s testimony, the ALJ should
have contacted Dr. Broughton and asked him whether the claimant’s use of a cane to
ambulate was medically necessary. The court recognizes that the ALJ is not obligated to
re-contact a physician if she finds inconsistencies within the record. See 20 C.F.R. §
404.1520b(c)(1). However, the court notes that the ALJ obtained no consulting
examinations of the claimant to support his finding that the claimant could frequently
balance, stoop, kneel, crouch, crawl, and climb stairs. But see Johnson v. Astrue, No.
5:11-cv-1666-KOB, 2012 WL 4339507 *12-13 (11th Cir. 2012) (finding that the ALJ
properly considered the claimant’s subjective testimony regarding the reliance on a cane
and did not err in refusing to re-contact the treating physician where the claimant testified
no physician prescribed the cane and a consultative examination specifically noted that
she could move around the room without an assistive device). If Dr. Broughton believed
that the claimant’s use of a cane was necessary, the ALJ’s finding that she can frequently
perform the non-exertional limitations listed above could not stand. Therefore, in this
instance and given these specific facts, the ALJ’s complete disregard for the claimant’s
testimony regarding Dr. Broughton’s prescription of her cane was error. The court finds
that substantial evidence does not support the ALJ’s finding that the claimant could
frequently balance, stoop, kneel, crouch, crawl, and climb stairs.
The ALJ also found that the objective evidence in the record did not support the
claimant’s allegations regarding the limiting effects of her pain. The court disagrees
specifically as his finding relates to the claimant’s ability to frequently balance, stoop,
kneel, crouch, crawl, and climb stairs. The ALJ found that the claimant’s left greater
trochanteric bursitis was a severe impairment, but pointed to MRI’s and x-rays of the
claimant’s hips and knees that showed mostly negative results to discredit the claimant’s
statements that she cannot squat, bend, kneel, or climb stairs because of her pain.
However, the June 2012 x-ray of her left hip showed sacroilitis and a slight
widening of the symphysis in her hips; the July 2012 MRI of her hips revealed early
stages of degenerative disc disease and a “neural foraminal compromise” of the lower
two levels; the July 2013 x-ray revealed a worsening of her hips in that it showed mild
superior joint space narrowing; and the July 2013 x-ray of her left knee showed “early
degenerative changes of the medial compartment and patellofemoral joint” for which the
doctor recommended steroid injections. These objectives findings do not reflect someone
who can frequently balance, stoop, kneel, crouch, crawl, and climb stairs, but instead
support her statements about her difficulty and pain in moving her hips, back, and knees
in these positions.
The ALJ also found that the claimant’s allegations of the limiting effects of her
pain were inconsistent with the doctor’s physical examinations that showed she had a full
range of motion during several doctor’s visits. As the claimant stated, her pain is often
constant, but does come and go as she has good and bad days. Having a full range of
motion in her hips, knees, and back on occasions does not negate the fact that she has
medical determinable conditions that could limit her ability to frequently balance, stoop,
kneel, crouch, crawl, and climb stairs. The physical therapist acknowledged the
claimant’s “lower extremity weakness” in September 2010 and in July 2013, and Dr.
Routh ordered an additional MRI of her left knee in August 2013 because of her
worsening knee pain and mechanical instability.” Although the ALJ pointed out that the
claimant asked Dr. Routh for a knee brace, as an orthopedic specialist, he would have
declined her request had he found a knee brace completely unnecessary. Instead, Dr.
Routh gave her a knee brace and ordered an additional MRI to evaluate the claimant’s
alleged worsening of her knee.
The court is also concerned about the ALJ discrediting of the claimant’s
subjective testimony on the basis that she did not regularly take her medications. The
claimant testified that she could not afford her medications and had to “spread them out”
so she would have something to take. On remand, the ALJ should inquire further into the
claimant’s ability to afford her medications before discrediting her need for them. The
ALJ merely stated that the claimant was declined charity care because of her “family’s
resources,” but did not explain how her husband’s meager disability income negates the
fact that she could not afford her medications, especially given that she receives food
stamps because of her financial situation.
The ALJ also indicated that instructions for the claimant to exercise meant that
her pain was not as limiting as she stated. However, the ability to perform limited
exercises does not mean that the claimant can frequently balance, stoop, kneel, crouch,
crawl, and climb stairs. Moreover, the claimant stated that she walked around the park
but had to stop around June of 2013 because her pain worsened. The ALJ said that the
claimant’s condition had not worsened to justify the claimant’s statement that she had to
stop walking in the park in 2013, but the record does reflect that she complained that her
pain had increased in her knee and that she had abnormal gaits after her July 2013
examination by Dr. Routh. Moreover, the claimant did state in her Function Report in
July 2012 that she had to stop and rest for about ten minutes after walking about forty to
fifty feet and that she used her cane “daily.” Even if the claimant could walk around the
park for exercise in 2013 with these limitations, that fact does not support that she can
frequently balance, stoop, kneel, crouch, crawl, and climb stairs.
Moreover, even though the ALJ in his opinion noted that jobs existed in
significant numbers for the claimant even with the sit/stand option, that finding does not
affect this court’s decision. The ALJ’s residual functional capacity still contained the
finding that the claimant could frequently perform those listed non-exertional activities.
The court finds that substantial evidence does not support the ALJ’s finding
regarding the claimant’s use of a cane and her ability to frequently balance, stoop, kneel,
crouch, crawl, and climb stairs.
For the reasons as stated, this court concludes that the decision of the
Commissioner is due to be REVERSED and REMANDED to the Commissioner for
The court will enter a separate Order in accordance with the Memorandum
DONE and ORDERED this 20th day of March, 2017.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT
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