White v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/31/2014. (PSM)

FILED
2014 Mar-31 PM 12:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
RACHAEL WHITE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

)
)
)
)
) CIVIL ACTION NO.
) 4:12-CV-0808-AKK
)
)
)
)
)

MEMORANDUM OPINION
Rachael White brings this action pursuant to Section 205(g) of the Social
Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the final adverse
decision of the Commissioner of the Social Security Administration (“SSA”).
This Court finds that the Administrative Law Judge (“ALJ”) failed to apply the
proper legal standards. Therefore, for the reasons explained below, the court will
REVERSE and REMAND the decision denying benefits for further proceedings.
I. Procedural History
White filed her applications for Title II disability insurance benefits and
Supplemental Security Income on December 16, 2008, alleging a disability onset
date of March 1, 2007, due to fibromyalgia, lupus, gastroparesis, and migraines.
(R. 10, 140-46, 159). After the denial of her applications on April 10, 2009, (R.

80-94), White requested a hearing, (R. 96). At the time of the hearing on October
6, 2010, White was 39 years old, had a high school diploma with two years of
college, and past relevant light and skilled work as an administrative assistant,
light and semi-skilled work as a furniture salesperson, pharmacy technician, and
customer service representative, and sedentary and skilled work as a secretary. (R.
70-72). The ALJ denied White’s claim on February 16, 2011, which became the
final decision of the Commissioner on January 9, 2012, when the Appeals Council
refused to grant review. (R. 1-24). White then filed this action pursuant to section
1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must

2

review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments 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. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or

3

psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).

4

Lastly, where, as here, Lloyd alleges disability because of pain, she must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
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.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale at 1011.
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself

1

This standard is referred to as the Hand standard, named after Hand v. Heckler,
761 F.2d 1545, 1548 (11th Cir. 1985).
5

sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find him disabled unless the ALJ properly discredits his testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as
a matter of law, has accepted that testimony as true. Implicit in this rule is
the requirement that such articulation of reasons by the [ALJ] be supported
by substantial evidence.
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Therefore, if the ALJ either
fails to articulate reasons for refusing to credit the plaintiff’s pain testimony, or if
the ALJ’s reasons are not supported by substantial evidence, the court must accept
as true the pain testimony of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially
determined that White had not engaged in substantial gainful activity since March
1, 2007 and therefore met Step One. (R. 13, 23). Next, the ALJ acknowledged
that White’s severe impairments of “gastroparesis, lupus, and low back pain” met
Step Two. (R. 18, 23). The ALJ then proceeded to the next step and found that
White did not satisfy Step Three since she “does not have an impairment or

6

combination of impairments that meets or equals the criteria of an impairment
listed in Appendix 1, Sub part P, 20 CFR Part 404.” Id. Although the ALJ
answered Step Three in the negative, consistent with the law, see McDaniel, 800
F.2d at 1030, the ALJ proceeded to Step Four, where he determined that White has
the residual functional capacity (“RFC”) to “perform light work that allows for
occasional bending and stooping; no driving; a sit/stand option; occasional
climbing; no lower extremity pushing and/or pulling; and no upper extremity
pushing and/or pulling.” (R. 23). In light of White’s RFC, the ALJ determined
that White was “able to perform past relevant work as an administrative assistant
and customer service representative.” Id. Consequently, the ALJ determined that
White is not disabled. (R. 23-24). It is this finding that White challenges.
V. Analysis
White contends that the ALJ failed to properly articulate good cause for
rejecting the opinions of her treating physician, and failed to properly evaluate the
credibility of her testimony of disabling symptoms. The court discusses each
contention in turn below.
A.

Dr. Tuomah Sahawneh’s opinion
On March 18, 2010, Dr. Sahawneh noted that White had lower back pain

with recurrent exacerbations, (R. 534), and opined that White “is unable to obtain

7

employment, especially since she is unable to afford adequate evaluation with
needed MRI,” (R. 524). Dr. Sahawneh also reported on a physical capacity
evaluation on September 3, 2010 that White could sit for two hours and stand and
walk for zero hours in an eight-hour workday, (R. 652), continuously experienced
moderately severe pain, (R. 654), displayed muscle spasms and spinal tenderness
as objective signs of her pain, id., and that White’s condition would last twelve or
more months, (R. 653). White contends that Dr. Sahawneh’s opinions support her
disability claim and that the ALJ failed to articulate good cause for rejecting them.
Doc. 8 at 5.
When determining how much weight to assign to a medical opinion, the
ALJ must consider several factors including: (1) whether the doctor has examined
the claimant; (2) whether the doctor has a treating relationship with the claimant;
(3) the extent to which the doctor presents medical evidence and explanation
supporting his opinion; (4) whether the doctor's opinion is consistent with the
record as a whole; and (5) whether the doctor is a specialist. 20 C.F.R. §§
404.1527(c), 416.927(c). The ALJ will give a treating physician’s opinion
controlling weight if it is well supported and not inconsistent with other
substantial evidence in the record:
If we find that a treating source’s opinion on the issue(s) of the nature
and severity of your impairment(s) is well-supported by medically
8

acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record,
we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2).
In considering whether an ALJ has properly rejected a treating physician’s
opinion, “[t]he law of this circuit is clear that the testimony of a treating physician
must be given substantial or considerable weight unless ‘good cause’ is shown to
the contrary.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). “Good
cause” exists when the evidence does not bolster the treating physician’s opinion,
a contrary finding is supported by the evidence, or the opinion is conclusory or
inconsistent with the treating physician’s own medical records. Id. If a treating
physician’s opinion is rejected, “[t]he ALJ must clearly articulate the reasons for
giving less weight to the opinion of a treating physician, and the failure to do so is
reversible error.” Id.
Here, the ALJ rejected Dr. Sahawneh’s opinions for three reasons. First, the
ALJ found that White “sought treatment for chronic pain and that Dr. Sahawneh
suggested that she has resulting limitations greater than determined in this
decision. The documentary record, however, fails to corroborate that degree of
restriction on a consistent basis.” (R. 21). To support this finding, the ALJ cited
Dr. Ryan Aaron’s April 26, 2009 consultative physical examination:

9

As previously discussed, the consultative physical examination was
basically normal other than some tenderness to palpation at two
locations of her right trapezius and left trapezius, as well as some
tenderness to palpation at the right greater trochanter and the left
superior patella (Exhibit B11F). The examiner, Dr. Aaron, also noted
full range of motion in the lumbar spine and in the extremities. Dr.
Aaron further observed that pain behaviors were not demonstrated
and that the claimant is independent with respect to personal care and
cooking.
(R. 21). However, Dr. Aaron’s examination is limited to a single occasion and
does not account for any subsequent deterioration White may have experienced
and, in that respect, does not contradict Dr. Sahawneh’s opinions. In fact, Dr.
Aaron’s findings in April 2009 are consistent with Dr. Sahawneh’s examination
notes in 2009. Specifically, on January 8, 2009, White reported to Dr. Sahawneh
that she woke up with low back pain, but had suffered no injury, trauma or
radiculopathy. (R. 487). On March 2, 2009, White reported to Dr. Sahawneh that
her back pain was much better. (R. 483). The difference then is on alleged events
that occurred afterwards. Because the ALJ failed to consider the deterioration in
White’s condition after 2009, the ALJ’s reliance on Dr. Aaron’s opinion as a basis
to reject Dr. Sahawneh’s opinions in 2010 may be improper if, in fact, Dr.
Sahawneh based his opinions on treatment notes that show that White’s back pain
worsened.

10

Prior to January 2010, the treatment records from Dr. Sahawneh document
limited complaints of back pain. (R. 431-478, 522). However, beginning on
January 25, 2010, and monthly thereafter, White visited Dr. Sahawneh
complaining of back pain. (R. 520-521). Dr. Sahawneh’s notes consistently
reference muscle spasms and vertebral tenderness in White’s lower back and
showed no general improvement in White’s condition. See R. 520-521; 670-671;
656-669; 674. Significantly, during these visits that began over eight months after
Dr. Aaron’s examination, Dr. Sahawneh conducted physical examinations and
found muscle spasm and vertebral tenderness at each of White’s monthly visits
between January and October 2010. (R. 655-671). White’s last visit to Dr.
Sahawneh occurred four days prior to her ALJ hearing. Put differently, the
treatment records establish White’s pain complaints, which were confirmed by
objective exam findings, increased in frequency and severity after Dr. Aaron’s
consultative examination.2 Consequently, the ALJ’s reliance on Dr. Aaron’s
2

White also sought treatment in emergency rooms beginning on February 20, 2010,
when White arrived at the St. Vincent’s Blount Hospital emergency room via ambulance
complaining of lower back pain. (R. 634). The notes show that White requested pain
medications, stated she had run out, (R. 629), had taken Soma and Xanax prior to arrival, had
slurred speech and was cursing heavily, (R. 629), and that when the hospital concluded that
White’s condition was not an emergency, White “walked very easily” and “fast paced” while
cursing as she left the emergency room, (R. 630). While this visit does not help White’s
credibility, no similar issue existed during White’s next emergency room visit two weeks later.
On this occasion, White visited Cooper Green Hospital complaining of pain in her back, hip, and
leg and reported a six month history of back pain that had worsened during the two previous
weeks and radiated into her left leg. (R. 588). A physical examination of White’s neck found

11

examination to reject Dr. Sahawneh’s opinions rendered months later was
unreasonable.
The second reason the ALJ gave for failing to credit Dr. Sahawneh’s
opinions is that “there is indication of exaggeration on the claimant’s part, which
further casts doubt on the reliability of her allegations and Dr. Sahawneh’s
medical opinion.” (R. 21). The ALJ described that exaggeration as follows:
St. Vincent’s Blount records reflect treatment for chronic back pain
on February 19, 2010, but they also indicate that she was seeking pain
medication the next day for pain at an alleged 10/10 intensity (Exhibit
B17F). The physician indicated her condition was non-emergent, sent
her home, and observed that she left the emergency room cursing
while walking very easily and fast-paced.
(R. 21). The medical records from February 2010, discussed infra, see n. 2, lend
support to the ALJ’s finding that White exaggerated her symptoms. However, this
fact does not fully diminish the objective findings of muscle spasms and spinal
tenderness Dr. Sahawneh observed on separate occasions, including after the
February 2010 emergency room visit at issue. Furthermore, Dr. Sahawneh based
his Physical Capacity Evaluation (PCE), as instructed, “on [his] clinical evaluation

limited range of motion, with muscle spasm, and paraspinous muscle tenderness. (R. 589). An
examination of her back showed an abnormal straight leg raise test on the left. (R. 589). Cooper
Green staff diagnosed White with sciatica and prescribed Robaxin, Ultram, and Prednisone for
pain. (R. 589-590). The straight leg raise (SLR) test is used to diagnose sciatica. “In sciatica,
flexion of the hip is painful when the knee is extended, but painless when the knee is flexed.
This distinguishes the disorder from disease of the hip joint.” Dorland’s Illustrated Medical
Dictionary 1525 (28th Edition).

12

of the claimant and/or test results.” (R. 652). In Hale v. Bowen, 831 F.2d 1007,
1012 n.7 (11th Cir. 1987), the court found a PCE form that “instructs the physician
to complete the form based on the physician’s ‘clinical evaluation of the claimant
and other testing results,’” represents the doctor’s “own professional assessment of
[the claimant’s] capacities and limitations.” Therefore, the ALJ must assume that
Dr. Sahawneh’s opinions represented his clinical judgment about the intensity and
vocational impact of White’s symptoms. As such, standing alone, White’s
exaggeration of symptoms on one occasion does not provide good cause for
rejecting Dr. Sahawneh’s opinions.
The ALJ’s third reason for rejecting Dr. Sahawneh’s opinions relates to
White’s failure to take prescription medications for her pain: “Additionally, the
claimant testified that she only takes prescription medication for her
gastrointestinal problems, which further indicates that her pain allegations are not
as serious as alleged, and that Dr. Sahawneh’s opinion is not well supported.” (R.
21). As the Commissioner concedes, this determination was inaccurate because
White, in fact, sought and received prescription medication for her hip and back
pain. Doc. 9 at 10. Therefore, this articulated reason for rejecting Dr. Sahawneh’s
opinions is not supported by substantial evidence.

13

Taken together, the ALJ’s articulated reasons for rejected the treating
physician’s opinion fail to provide the requisite good cause required. As the court
discussed previously, Dr. Sahawneh’s opinions were not conclusory or
inconsistent with his treatment records, and his objective findings provide support
for his opinions. Significantly, Dr. Aaron’s consultative examination is consistent
with Dr. Sahawneh’s treatment notes from early 2009, and, because of its temporal
limitations, does not constitute substantial evidence contradicting Dr. Sahawneh’s
opinions rendered in 2010. Finally, White’s one-time exaggeration of her
symptoms in the emergency room does not significantly call into question Dr.
Sahawneh’s opinions, which he formed based on multiple clinical evaluations of
White’s condition, including assessments completed after the emergency room
visit. Therefore, the ALJ erred in not giving “substantial or considerable weight”
to the opinions of Dr. Sahawneh. Lewis, 125 F.3d at 1440. This failure requires
reversal and remand so that the ALJ can properly consider Dr. Sahawneh’s
opinions.
B.

The ALJ’s credibility determination

White challenges the ALJ’s finding that the evidence as a whole did not
support a finding that White’s objectively determined medical conditions were of
such severity that they could reasonably be expected to give rise to disabling

14

limitations. (R. 21). According to White, the ALJ failed to properly evaluate her
testimony of disabling symptoms by ignoring “the voluminous medical records
which document the severity of White’s gastrointestinal problems which required
numerous hospitalizations for vomiting, nausea and dehydration,” and medical
records documenting the consistent treatment she sought for her back pain. Doc. 8
at 10-11.
1. Gastrointestinal impairment
The ALJ listed several reasons for discrediting White’s testimony of pain
related to White’s gastrointestinal impairments. Specifically, the ALJ concluded
White’s “condition improved in 2008 with a proper diet and then later stabilized,”
(R. 20), that White’s medical visits in 2009 and 2010 were “mostly related to
headaches, back pain, and hip pain,” id., and that Dr. Sahawneh “indicated that
mainly [White’s] chronic back pain affects her ability to work,” id. Consequently,
the ALJ found that White’s gastrointestinal condition “does not prevent her from
performing work activity on a sustained basis (with normal breaks) within the
parameters of the below-stated residual functional capacity.” (R. 20-21).
Substantial evidence supports this finding because although the medical records
demonstrate that White suffered from significant gastrointestinal symptoms during
late 2007 and early 2008, the medical visits after early 2008 show that White

15

rarely complained of significant gastrointestinal symptoms. In fact, even Dr.
Sahawneh noted during a hospitalization on April 21, 2010 that although White
had a history of gastroparesis with severe nausea and vomiting at times, she had
recently “been stable and asymptomatic.” (R. 595). Based on this record, the ALJ
committed no error with respect to the gastrointestinal ailments.
2.

Back pain

The ALJ rejected White’s testimony regarding her back pain for the same
reasons the ALJ rejected Dr. Sahawneh’s opinions: i.e. that Dr. Aaron’s April
2009 consultative examination findings did not support White’s testimony, that
White exaggerated her symptoms during the emergency room visit in February
2010, and that White took no prescription medications for her back pain. (R. 21).
As discussed, supra, the ALJ’s findings are not supported by substantial evidence.
See section IV.A.
The Commissioner argues that the ALJ’s erroneous finding regarding the
prescription pain medication constitutes harmless error. Doc. 9 at 10-12. The
cases the Commissioner cites support finding that an ALJ’s erroneous
determination is harmless when other evidence supports his decision. See Majkut
v. Comm’r of Soc. Sec., 394 F. App’x 660, 665 (11th Cir. 2010) (finding the ALJ
“relied heavily on other evidence” to find the claimant could do light work); Vesy

16

v. Astrue, 353 F. App’x 219, 224 (11th Cir. 2009) (finding the ALJ’s erroneous
statement that the claimant had not requested any bathroom breaks during the
hearing was harmless because her “subjective testimony was inconsistent with the
record”). The Commissioner also cited a case finding an erroneous statement by
the ALJ harmless because “the record d[id] not indicate that it affected the ALJ’s
decision.” Carson v. Comm’r of Soc. Sec., 300 F. App’x 741, 743 (11th Cir. 2008).
The court does not have to reach this issue because the ALJ’s mistaken belief that
White did not take prescription pain medications prevented him from properly
considering White’s use of pain medications as required by the regulations. Moore
v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005). Because the court is unable to
determine whether the ALJ would have found White’s testimony not credible if he
had properly considered her use of prescription pain medications, the court
declines to find the ALJ’s error harmless. Therefore, remand is warranted for the
Commissioner to properly consider White’s pain testimony in accordance with the
regulations.
VI. CONCLUSION
The court concludes that the ALJ failed to apply the proper legal standards
in his consideration of the opinions of White’s treating physician, Dr. Sahawneh,
and failed to properly consider White’s pain testimony in accordance with the

17

regulations. Therefore, the decision of the Commissioner will be reversed and the
case remanded to the Commissioner to make a disability determination in
accordance with the proper legal standards. The court will enter an appropriate
order.
Done the 31st day of March, 2014.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

18