Holman v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/8/14. (ASL)

FILED
2014 Sep-08 PM 03:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DONNA DOWDY HOLMAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No.: 4:13-CV-00502-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. § 405(g), claimant Donna D. Holman seeks judicial
review of a final adverse decision of the Commissioner of Social Security,
affirming the decision of the Administrative Law Judge (“ALJ”) who denied Ms.
Holman’s claim for a period of disability and disability insurance benefits. For the
reasons stated below, the Court remands the Commissioner’s decision for further
evaluation.
I.

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

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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 “reweigh the evidence or
decide the facts anew,” and the Court must “defer to the ALJ’s decision if it is
supported by substantial evidence even if the evidence may preponderate against
it.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013).
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).
II.

PROCEDURAL AND FACTUAL BACKGROUND
On August 12, 2009, Ms. Holman applied for a period of disability and

disability insurance benefits pursuant to Title II of the Social Security Act. (R. 11,

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86).1 The Social Security Administration denied Ms. Holman’s application on
December 14, 2009. (R. 11, 59). At Ms. Holman’s request, on July 26, 2011, an
Administrative Law Judge conducted a hearing concerning Ms. Holman’s
application. (R. 11-24). Ms. Holman and an impartial vocational expert, Dr. David
W. Head, testified at the hearing. (R. 11). At the time of the hearing, Ms. Holman
was 46 years old, and she had a tenth grade education. (R. 35, 86). She previously
worked as a general clerk, a material handler in a textile mill, a spinner in a textile
mill, a cashier, a dietary aide in a nursing home, and a patient attendant in an
assisted living center. (R. 52-53).
On July 26, 2011, the ALJ denied Ms. Holman’s request for disability
insurance benefits. (R. 11-24). The ALJ concluded that Ms. Holman “had not
engaged in substantial gainful activity since September 1, 2007, the alleged onset
date” of disability. (R. 13).

The ALJ also found that Ms. Holman had the

following severe impairments: mitral valve prolapse, migraine headaches,
fibromyalgia, possible degenerative joint disease of the cervical and lumbar spine
and hips, tendonitis/arthritis of the shoulders, hypothyroidism, and depression. (R.
13). However, the ALJ determined that Ms. Holman did not have an impairment
or combination of impairments that meets or medically equals any of the listed
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The ALJ’s decision and both Ms. Holman and the Commissioner’s brief state that Ms. Holman
filed her application on August 12, 2009. (R. 11). The application summary contained in the
record indicates that Ms. Holman filed her application on August 27, 2009. (R. 86). Whether
Ms. Holman originally filed her application for benefits on August 12, 2009 or August 27, 2009
is immaterial to the Court’s analysis.
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impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 17).
The ALJ found that “[Ms. Holman] had the residual functional capacity to
perform light work as defined in 20 C.F.R. §404.1567(b) except she is limited to
noncomplex . . . tasks and simple one to two step procedures; no work around
unprotected heights; or exposure to extremes of temperature or humidity; and no
exposure to continuous vibrations.” (R. 18). In making this finding, the ALJ
concluded that Ms. Holman’s medical impairment could reasonably be expected to
cause some symptoms; however, according to the ALJ, her statements concerning
the intensity, persistence, and limiting effects of her pain conflicted with the RFC
assessment. (R. 20).
To reach this conclusion, the ALJ considered Ms. Holman’s symptoms and
whether they were reasonably consistent with objective medical evidence, opinion
evidence, and “other evidence” submitted. 2 (R. 19; 20 C.F.R. § 404.1529). The
ALJ noted that there was no indication that Dr. Kathleen Duryea, a treating
physician, “believed [Ms. Holman] to have impairments that would interfere with
her ability to work on a sustained basis.”3 (R. 20). The ALJ also reviewed reports
from Dr. Terisa Thomas, a physician treating Ms. Holman for depression, hot
flashes, fatigue, and headaches. (R. 13). The ALJ considered reports from Dr.
2

20 C.F.R 1529(c)(3) states that “other evidence” includes statements about a claimant’s
symptoms, evidence submitted by non-treating sources, and observations by other persons.

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Dr. Duryea examined Ms. Holman ten times between August 2007 and August 2008. (R. 266298).
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Beth Hughes, who examined Ms. Holman multiple times between October 2008
and August 2010. (R. 20; 149-162; 215-247). Although Dr. Hughes diagnosed
Ms. Holman with fibromyalgia in October 2008 and in December 2008, the ALJ
found no reports of disabling pain or limitations as a result of the fibromyalgia. (R.
20, 155, 158). The ALJ noted that Dr. Hughes even encouraged Ms. Holman to
engage in exercise and physical activity. (R. 20, 150, 155). Additionally, the ALJ
reviewed records from Dr. Allison Vann, a treating physician who examined Ms.
Holman in November 2010 and January 2011. (R. 20). Dr. Vann recorded Ms.
Holman’s history of fibromyalgia in November 2010 treatment notes, but Dr. Vann
did not make an independent fibromyalgia diagnosis during any of Ms. Holman’s
examinations. (R. 20, 250). Dr. Vann diagnosed Ms. Holman with hypothyroidism
and right elbow tendinitis. (R. 250-251). However, the ALJ concluded that:
Dr. Vann’s records do not indicate that [Ms. Holman] complained of pain all
over her body so severe that she was unable to work, sleep, concentrate, or
do housework or yard work . . . .
(R. 20, 250).
Furthermore, the ALJ found that Ms. Holman’s daily activities were not
consistent with disabling physical or mental limitations. In Ms. Holman’s
psychological evaluation, Dr. Wilson concluded that Ms. Holman had severe
depression, and the combination of her problems “ma[d]e it unlikely that she could
maintain employment in a competitive work environment.” (R. 196). However,

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the ALJ found that Ms. Holman’s own accounts of her daily activities, including
caring for her son, household chores, watching television, working on the
computer, shopping, going to church, and visiting family, were inconsistent with
“disabling pain or limitations related to any impairment or combination of
impairments.” (R. 20). Further, the ALJ discredited Dr. Wilson’s assessment of
Ms. Holman’s physical limitations because this conclusion was inconsistent with
Ms. Holman’s treating physicians’ medical records and because Dr. Wilson, a
licensed psychologist who evaluated Ms. Holman once, was unqualified to
evaluate her physical impairments. (R. 21).
The ALJ also noted that Ms. Holman’s claims about the intensity,
persistence, or functionally limiting effects of her impairments could not be
substantiated by objective medical evidence. 4 (R. 20). For example, Ms. Holman
testified that no medication helped her pain; however, her medical records indicate
that she has taken different pain medications with varying success since the alleged
date of her disability. (R. 20). The ALJ cited a March 2008 report by Dr. Duryea
where Ms. Holman reported her arthralgia medication to be “effective.” (R. 20,
281). The ALJ also noted that on July 23, 2008, Ms. Holman told Dr. Duryea that
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The ALJ noted that when Ms. Holman completed form SSA-3368, the Adult Disability Report,
she responded, as an answer to Question J, that she quit working in June 2006 because she
“would have been laid off due to cutbacks not because of any health problems.” (R. 104). In her
report, Ms. Holman cited “depression, fibromyalgia, and mitral valve prolapse” as illnesses or
conditions that limit her ability to work. (R. 104).

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Cymbalta might be the cause of her headaches, and Dr. Duryea promptly changed
her medication. (R. 269).
Additionally, the ALJ commented that Ms. Holman never reported
headaches to Dr. Vann, nor did Dr. Virenjan Narayan, a cardiologist treating Ms.
Holman for mitral valve prolapse, report any disabling pain or limitations.5 (R. 21,
257). Thus, the ALJ determined that Ms. Holman’s medical records were
inconsistent with her allegations of severe and frequent “headache pain” lasting
approximately one to two days. (R. 21). Moreover, the ALJ found inconsistencies
between Ms. Holman’s medical records and her claims of thyroid disorder,
significant fatigue, swelling, insomnia, limitations in movement, and medication
side effects. (R. 21). The ALJ noted that Ms. Holman’s medical records do not
support allegations of thyroid disorder, fatigue, or swelling; she complained of
insomnia but testified that she does not have a sleep disorder; and she testified that
her medications caused hair loss, dizziness, and ringing in her ears, but there is no
evidence that she complained about these symptoms to her doctors. (R. 21). The
ALJ also cited inconsistencies between reports of Ms. Holman watching television
and working at a computer for prolonged periods and her allegations that she
cannot concentrate and suffers from memory problems. (R. 22).
In making his RFC determination, the ALJ assigned significant weight to a
5

The record indicates that Dr. Narayan examined Ms. Holman on January 12, 2010, February
24, 2011, and March 8, 2011. (R. 255-262).
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report by Dr. Sathyan Iyer, a physician who examined Ms. Holman at the state’s
request. The ALJ found Dr. Iyer’s report to be consistent with Ms. Holman’s
medical records as a whole. (R. 21-22, 179). Dr. Iyer concluded that Ms. Holman
“may have an impairment of functions involving bending, lifting, overhead
activities, walking for long distance[s, and carrying].”

(R. 181).

However,

according to Dr. Iyer, Ms. Holman “does not have significant limitation of function
involving sitting, standing, handling, hearing, and speaking.” (R. 181).
The ALJ concluded that Ms. Holman is capable of performing her past
relevant work as a material handler in a mill and as dietary aide. (R. 22). The ALJ
also determined that other jobs exist in the national economy that she also is able to
perform, including office or hospital cleaner, sorter, and fast food worker. (R. 2223). Accordingly, the ALJ found that Ms. Holman was not disabled under sections
216(i) and 223(d) of the Social Security Act. (R. 24).
On September 21, 2011, Ms. Holman filed a request for review with the
Appeals Council, and on January 11, 2013, she sent a one-sentence letter
requesting a status update. (R. 7). Seven months later, on February 7, 2013, the
Appeals Council denied Ms. Holman’s request for review. (R. 1, 83). Thus, the
ALJ’s July 26, 2011 decision became the final decision of the Commissioner. (R.
1). Having exhausted all administrative remedies, Ms. Holman filed this action for
judicial review pursuant to §205(g) of the Social Security Act. 42 U.S.C. §405(g).

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III.

ANALYSIS
Ms. Holman presents three issues on appeal. First, Ms. Holman contends

that the Appeals Council erred in its decision to deny her request for review
because it did not consider Social Security Ruling 12-2p. (Doc. 15, p 11; Doc. 18,
pp. 2-4). Alternatively, Ms. Holman contends that the Appeals Council should
have remanded her case to the ALJ for a revised step three determination using
SSR 12-2p. (Doc 15, 11-12; Doc 18, pp. 2-4). Second, Ms. Holman argues that
this Court should reverse the decision because the ALJ did not correctly evaluate
fibromyalgia under the third step of the evaluation process. (Doc 15, pp. 12, 14).
Third, Ms. Holman contends that the ALJ did not give proper weight to Dr.
Wilson’s medical findings concerning her severe and disabling depression. As
explained below, the Court remands this action to the Commissioner so that the
ALJ may consider Ms. Holman’s fibromyalgia pursuant to SSR 12-2p. Therefore,
the Court does not reach Ms. Holman’s other arguments on appeal.
After the ALJ issued his decision on July 26, 2011, but before the Appeals
Council denied Ms. Holman’s appeal on February 7, 2012, the Social Security
Administration published SSR 12-2p. The ruling became effective on July 25,
2012 and applied to the ALJ’s July 26, 2011 decision because Ms. Holman’s
appeal was before the Appeals Council for review on the effective date. See SSR
12-2p, 2013 WL 3104869, at *1 n. 1 (“[T]he policy interpretations in this SSR also

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apply . . . to claims above the initial level.”); see also Iles v. Colvin, 2014 WL
1330010, at * 4 (W.D. Okla. March 31, 2014).6
SSR 12-2p provides instruction on how an ALJ should develop evidence and
assess fibromyalgia in disability claims.

The ALJ found that Ms. Holman’s

fibromyalgia was a severe impairment at step two of the evaluation process.
However, the ALJ did not have the benefit of SSR 12-2p while considering
whether Ms. Holman’s fibromyalgia is disabling. SSR 12-2p provides guidance
for evaluating whether fibromyalgia medically equals a listing alone or in
combination with other impairments. Further, SSR 12-p states that when making
an RFC determination, an ALJ should “consider a longitudinal record whenever
possible because the symptoms of [fibromyalgia] can wax and wane so that a
person may have ‘good days and bad days.’” SSR 12-2p, 2013 WL 3104869, at
*6. Additionally, when determining whether a claimant is capable of doing any
past relevant work or any other work that exists in significant numbers in the
national economy, SSR 12-2p instructs an ALJ to consider widespread pain or
other symptoms associated with fibromyalgia (such as fatigue) and to “be alert to
the possibility that there may be exertion or nonexertional” limitations, such as
postural or environmental limitations, that may impact the analysis. Id.
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The parties did not submit, and the Court has not found, Eleventh Circuit authority that explains
whether SSR 12-2p is retroactive. Through its independent research, the Court located the Iles
opinion. Under similar facts, the Iles court remanded the Commissioner’s decision to the ALJ
for further consideration of the claimant’s fibromyalgia under SSR 12-2p. Iles, 2014 WL
1330010, at *3-5. The Court finds Iles persuasive.
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The Court cannot determine whether the ALJ would or should have reached
different results at steps three, four, and five of the sequential analysis had his
decision been informed by SSR 12-2p. Therefore, remand to the Commissioner is
proper for the ALJ to evaluate Ms. Holman’s fibromyalgia under SSR 12-2p.
IV.

CONCLUSION
Consistent with the reasons stated above, the Court REMANDS this action

for further findings and proceedings consistent with this opinion. The Court will
enter a separate order consistent with this opinion.
DONE and ORDERED this September 8, 2014.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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