Rudder v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 5/25/2017. (JLC)

FILED
2017 May-25 PM 04:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
WILLIAM RUDDER,

)
)
Plaintiff,
)
)
v.
) Case No.: 4:16-CV-0717-VEH
)
NANCY A. BERRYHILL, ACTING )
COMMISSIONER, SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)
MEMORANDUM OPINION
Plaintiff William Rudder (“Mr. Rudder”) brings this action under 42 U.S.C.
§ 405(g), Section 205(g) of the Social Security Act. He seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”),1 who denied his applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”).2 Mr. Rudder timely pursued and

1

Nancy A. Berryhill was named the Acting Commissioner on January 23, 2017. See
https://www.ssa.gov/agency/commissioner.html. Under 42 U.S.C. § 405(g), “[a]ny action instituted
in accordance with this subsection shall survive notwithstanding any change in the person occupying
the office of Commissioner of Social Security or any vacancy in such office.” Accordingly, pursuant
to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil Procedure, the Court has
substituted Nancy A. Berryhill for Carolyn W. Colvin in the case caption above and HEREBY
DIRECTS the clerk to do the same party substitution on CM/ECF.
2

In general, the legal standards applied are the same regardless of whether a claimant seeks
DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel provision
as context dictates. The same applies to citations of statutes or regulations found in quoted court

exhausted his administrative remedies available before the Commissioner. The case
is thus ripe for review under 42 U.S.C. § 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Mr. Rudder was 61 years old at the time of his hearing before the
administrative law judge (“ALJ”). (Tr. 49). He has completed the twelfth grade. (Tr.
49). His past work experience includes employment as:

(1) a grocery store

merchandiser; (2) a merchandiser at Walmart; (3) a sales attendant at Home Depot;
and (4) a jewelry salesperson. (Tr. 44-58). Mr. Rudder originally claimed that he
became disabled on November 12, 2012, but he later amended his onset date to
November 20, 2012. (Tr. 39). His last period of work ended on November 20, 2012.
(Tr. 40).
On January 8, 2013, Mr. Rudder protectively filed a Title II application for a
period of disability, DIB, and SSI. (Tr. 17, 126-27). On May 15, 2013, the
Commissioner initially denied his claims. (Tr. 126-127). Mr. Rudder timely filed a
written request for a hearing on May 21, 2013. (Tr. 140). The ALJ conducted a
hearing on June 25, 2014, in Birmingham, Alabama. (Tr. 34). On October 29, 2014,
the ALJ issued a fully unfavorable decision concluding that Mr. Rudder was not
decisions.
3

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
2

disabled and denying both his DIB and SSI claims. (Tr. 17-29). Mr. Rudder then
timely petitioned the Appeals Council to review the decision on November 15, 2014.
(Tr. 9-11). On March 9, 2016, the Appeals Council issued a denial of review on his
claim. (Tr. 1-3).
Mr. Rudder filed a Complaint with this court on May 3, 2016, seeking review
of the Commissioner’s determination. (Doc. 1). The Commissioner answered on
August 17, 2016. (Doc. 8). Mr. Rudder filed a supporting brief (Doc. 10) on
September 30, 2016, and the Commissioner responded with her own (Doc. 11) on
October 31, 2016. With the parties having fully briefed the matter, the court has
carefully considered the record and remands the decision of the Commissioner.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
3

relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court. The ALJ’s legal conclusions, however, are reviewed de novo,
because no presumption of validity attaches to the ALJ’s determination of the proper
legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993).
If the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, the ALJ’s decision must be reversed. Cornelius v.
Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.4 The Regulations define “disabled” as
“the inability to do 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

4

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499, revised as of April 13, 2017.
4

twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
5

automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After consideration of the entire record, the ALJ made the following findings:
1.

Mr. Rudder met the insured status requirements of the Social
Security Act through December 31, 2016. (Tr. 20).

2.

He has not engaged in substantial gainful activity since November
20, 2012, the amended alleged onset date. Id.

3.

He has the following severe impairments: chronic obstructive
pulmonary disease (“COPD”), asbestosis, fatigue, diabetes,
peripheral neuropathy, obesity, and obstructive sleep apnea. Id.

4.

Mr. Rudder does not have an impairment or combination of
impairments that met or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Tr. 23).

5.

He has the residual functional capacity (“RFC”) to perform
medium work as defined in 20 C.F.R. § 404.1567(c)5 and §
416.967(c), which allows for temperature controlled environment

5

“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that
he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).
6

with no excessive exposure to dust, fumes, or gases; no operation
of hazardous machinery; no unprotected heights; no driving; no
climbing; and no lower extremity pushing or pulling. (Tr. 25).
6.

Mr. Rudder is capable of performing past relevant work as a
jewelry sales person. This work [classified as light]6 does not
require the performance of work-related activities precluded by
his residual functional capacity. (Tr. 29).

7.

Mr. Rudder has not been under a disability, as defined in the
Social Security Act, from November 20, 2012,7 through the date
of this decision. Id.
ANALYSIS

A determination by the Commissioner that a claimant is not disabled must be
upheld if it is supported by substantial evidence. 42 U.S.C. § 405(g). “This does not
relieve the court of its responsibility to scrutinize the record in its entirety to ascertain
whether substantial evidence supports each essential administrative finding.” Walden
v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615

6

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities.” 20 C.F.R. § 404.1567(b).
7

Mr. Rudder amended his alleged disability onset date from November 12, 2012, to
November 20, 2012, during his hearing with the ALJ. Thus, the court presumes the ALJ intended
to state November 20, 2012, not November 12, 2012, as reflected in the ALJ’s findings.
7

F.2d 1103, 1106 (5th Cir. 1980)).8 However, the court “abstains from reweighing the
evidence or substituting its own judgment for that of the Commissioner.” Walden,
672 F.2d at 838 (citing Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977)). Mr.
Rudder asserts that: (1) “the ALJ did not properly assess the Plaintiff’s credibility
consistent with the Regulations,” (Doc. 10 at 4), and (2) “the ALJ failed to properly
articulate good cause for according less weight to opinion of Plaintiff’s treating
physician”–Wendy R. Miller, M.D. (“Dr. Miller”). (Doc. 10 at 10).
In its review, the court finds that this case should be remanded for further
development. Under the instant circumstances, substantial evidence does not exist in
the record to support the ALJ’s conclusion that Mr. Rudder is not disabled and can
perform medium work because the ALJ’s negative credibility finding is not based on
substantial evidence. Additionally, the court agrees with Mr. Rudder that the ALJ
committed reversible error in his evaluation of the medical evidence.
I.

The ALJ Failed To Follow The Eleventh Circuit Pain Standard And His
Credibility Finding Was Not Based On Substantial Evidence.
The Eleventh Circuit pain standard “applies when a disability claimant attempts

to establish disability through his own testimony of pain or other subjective

8

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
8

symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). This standard
requires “evidence of an underlying medical condition and either (1) objective
medical evidence that confirms the severity of the alleged pain arising from that
condition or (2) that the objectively determined medical condition is of such severity
that it can be reasonably expected to give rise to the alleged pain.” Landry v. Heckler,
782 F.2d 1551, 1553 (11th Cir. 1986). “The [pain] standard also applies to complaints
of subjective conditions other than pain.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th
Cir. 1991).
A claimant’s statements about pain or other symptoms do not alone establish
disability. 20 C.F.R. § 404.1529(a); 20 C.F.R. § 416.929(a). Rather, “there must be
medical signs and laboratory findings which show that [claimants] have a medical
impairment(s) which could reasonably be expected to produce the pain or other
symptoms alleged.” Id. Even if a claimant is able to show medical impairments that
could reasonably be expected to produce the alleged symptoms, the Commissioner
“must then evaluate the intensity and persistence of [the claimant’s] symptoms so that
[the Commissioner] can determine how [the claimant’s] symptoms limit [the
claimant’s] capacity for work.” 20 C.F.R. § 404.1529(c)(1).
The ALJ may reject a plaintiff’s complaints of pain if he finds them not
credible. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“[A]fter
9

considering a claimant’s complaints of pain, the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence”).
However, if the ALJ discredits a claimant’s testimony regarding the severity of his
symptoms, that determination must be supported by substantial evidence. Id.; see also
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (explaining that the
Commissioner’s factual findings must be supported by substantial evidence).
While a credibility determination is the province of the ALJ, he may not reject
the claimant’s statements as to the intensity and persistence “solely because the
available objective medical evidence does not substantiate [claimant’s] statements.”
20 C.F.R. § 404.1529(c)(2); see also SSR 96-7p (“[T]he effect the symptoms have on
[the claimant’s] ability to work may not be disregarded solely because they are not
substantiated by objective medical evidence.”).9 Instead, the ALJ is bound to consider
other evidence, in addition to the objective medical evidence, because “symptoms
sometimes suggest a greater severity of impairment than can be shown by objective
medical evidence alone.” 20 C.F.R. § 404.1529(c)(3).
This other evidence includes “any symptom-related functional limitations and
restrictions which [the claimant], [the claimant’s] treating or non-treating source, or

9

Although they lack the force of regulations, Social Security Rulings are “binding on all
components of the Social Security Administration.” 20 C.F.R. § 402.35(b)(1).
10

other persons report, which can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” Id. Relevant factors that may show
the effect of the claimant’s symptoms on his or her functional abilities include: the
claimant’s daily activities; the location, duration, frequency, and intensity of the
claimant’s pain; any precipitating and aggravating factors; the type, dosage,
effectiveness, and side effects of medication taken to alleviate the pain; and other
treatments or measures taken by the claimant, not including medication. Id. Using
these other evidence factors, the ALJ must show substantial evidence supporting his
attempt to discredit the claimant’s pain testimony. Id.
In applying the Eleventh Circuit pain standard to the present case, the ALJ
found Mr. Rudder provided sufficient medical evidence of his underlying medical
conditions and, thus, satisfied the first prong of the Eleventh Circuit framework for
evaluating pain. (Tr. 25). However, when applying the second alternative of the
second prong of the standard,10 the ALJ found Mr. Rudder’s “assertions [were] not

10

The second prong of the Eleventh Circuit pain standard has two disjunctive parts and, as
a result, the entire framework for pain evaluation has sometimes been referred to as the three-part
pain standard. See, e.g., Elam v. Railroad Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (“Our
decisions since Hand and Landry have consistently applied this three-part pain standard.”) (footnotes
omitted). Further, as the Elam court summarized the administrative and federal case history for
Hand:
In Hand the Appeals Council, on its own motion, reversed the administrative
law judge’s finding of disability based on pain. The panel’s decision adopted the
three-part standard set out above and affirmed the Appeals Council’s action. 761 F.2d
11

entirely credible or established by the preponderance of the evidence.” (Tr. 27). As
explained infra, the court finds the ALJ’s reasons for discrediting the claimant’s
subjective limitations, while explicit, are inadequate as a matter of law.
In support of his credibility determination, the ALJ attempted to discredit Mr.
Rudder’s testimony concerning the alleged debilitating effects of his symptoms based
primarily upon a lack of supporting objective medical evidence, the relative
effectiveness of Mr. Rudder’s Continuous Positive Air Pressure (“CPAP”) treatment,
and Mr. Rudder’s noncompliance with medical advice to stop smoking. (Tr. 27-28).
As addressed in detail below, the court finds that the ALJ’s proffered reasons for
discrediting Mr. Rudder’s pain testimony are flawed and, therefore, they do not
satisfy the substantial evidence standard.
A.

The ALJ improperly relied mostly upon a lack of objective
medical evidence to discredit Mr. Rudder’s subjective lower
extremity symptoms and limitations.

at 1547, n.1. We vacated the panel’s opinion and granted a rehearing en banc. Parker
v. Heckler, 774 F.2d 428 (11th Cir. 1985). The sole issue considered on rehearing
was the proper scope of court review in cases in which the Council reverses the
ALJ’s ruling on its own motion. Parker v. Bowen, 788 F.2d 1512 (11th Cir. 1986)
(en banc). We determined the proper scope of review and remanded to the panel for
further proceedings. Id. at 1522. On remand the panel reinstated without change the
part of its opinion that had adopted the three-part pain standard. Hand v. Bowen, 793
F.2d 275, 276 (11th Cir. 1986).
Elam, 921 F.2d at 1215 n.1.
12

It is “well established that reversible error exists if complaints of subjective
pain are disregarded simply because they are not supported by objective clinical and
laboratory medical findings.” Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986).
“[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.” Elam, 921 F.2d at 1215; see
id. (recognizing that neither the regulations nor the Hand standard “requires objective
proof of the pain itself”).11 “[P]ain and other subjective symptoms cannot be
objectively measured and . . . the same physical impairment may produce differing
levels of pain in different individuals.” Carr v. McMahon, 481 F. Supp. 2d 1227,
1232 (N.D. Ala. 2007) (citing 20 C.F.R. §404.1545(e)).
The medical evidence in the record establishes that the pain Mr. Rudder has
experienced in his lower extremities is attributable to neuropathy that is caused by
diabetes. (Tr. 393, 398, 402, 421). In making his credibility determination regarding
Mr. Rudder’s subjection symptoms tied to his neuropathy, the ALJ relied mostly upon
the absence of objective medical evidence confirming the level of severity claimed
11

Although Elam involved disability benefits under the Railroad Retirement Act, the
Eleventh Circuit has determined that “[p]rovisions of Railroad Retirement Act are so closely
analogous to those of Social Security Act that regulations and cases interpreting latter are applicable
to former.” 921 F.2d at 1215. Given that Eleventh Circuit determination in Elam, this court finds that
the converse is likewise true–cases interpreting the Railroad Retirement Act are equally applicable
to the Social Security Act.
13

by Mr. Rudder. (See, e.g., Tr. 27 (“Findings from a consultative examination revealed
that the claimant had full range of motion in all extremities.”); id. (“Although mild
decreased sensation was observed in the right lower extremity, Mr. Rudder
maintained a normal gait and motor strength in all extremities.”); id. (“[C]laimant’s
extremities were consistently normal and symmetric with the exception of some
redness on the right foot, which required no treatment.”)). In doing so, the ALJ has
not adequately discredited Mr. Rudder’s subjective limitations tied to his neuropathy
because, under his faulty analysis, the ALJ has required Mr. Rudder to not only
establish with objective medical evidence his disabling condition, but also the
claimed severity of that disabling condition. This is contrary to Eleventh Circuit law.
See Johns v. Bowen, 821 F.2d 551, 557 (11th Cir. 1987) (“[T]he ALJ . . . erroneously
considered only objective medical evidence, to evaluate claimant’s testimony about
her pain.” (citing Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984))); cf. Elam,
921 F.2d at 1215 (“The claimant may show either that objective medical evidence
confirms the pain testimony, or that the objectively determined medical condition
could reasonably be expected to give rise to the alleged pain.” (emphasis omitted)
(citing MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986))).
The ALJ also inadequately relied upon positive results from Mr. Rudder’s use
of a CPAP machine (to treat his severe impairment of sleep apnea) to discredit his
14

subjective lower extremity symptoms and limitations caused by his neuropathy,
including his “allegations of an inability to walk more than 20 feet, an inability to sit
or stand for more than 15 to 20 minutes, and an inability to lift the weight of a gallon
of milk . . . .” (Tr. 28). In particular, the ALJ underscored that the objective “test
results from a polysonmogram with CPAP titration revealed that the claimant’s sleep
apnea greatly improved in the reduced frequency of obstructive events, and he
maintained adequate oxygen saturation.” (Tr. 28). The ALJ also pointed to evidence
that Mr. Rudder “admitted the CPAP was tolerable and beneficial” during an
examination on May 2, 2013. (Tr. 28); (see also Tr. 405 (“[H]e tolerated the machine
well and had benefit but is having nasal congestion.”)).
In reaching his conclusion about the credibility of Mr. Rudder’s exertional
limitations, the ALJ did not point to any self-reporting by Mr. Rudder to his sleep
apnea doctor (or other medical provider) which undermined his subjective testimony
about his limited ability to walk, sit, stand , or lift. In fact, the record reflects that Mr.
Rudder testified at his hearing that the neuropathy in his lower extremities, not
obstructive sleep apnea, was the source of his exertional limitations. (See Tr. 41 (“Q
And when you say your pains in your legs, are you referring to the diagnosis of
neuropathy? A Yes, ma’am.”); (Tr. 42 (“Q Do you have trouble lifting and carrying
objects? A Yes, I do. Q A gallon of milk weighs eight and a half pounds. Would you
15

be able to lift and carry that, without aggravating the leg pain or - - A No. I don’t. I
get my daughter to do that.”)). Therefore, because the ALJ has used evidence of Mr.
Rudder’s favorable results from the CPAP treatment to discredit his subjective
allegations about his exertional limitations that are attributable to a different severe
impairment–Mr. Rudder’s neuropathy–the court finds that the ALJ has not adequately
discredited Mr. Rudder’s claimed exertional limitations. Alternatively, to the extent
that such CPAP evidence is relevant to the ALJ’s credibility determination about Mr.
Rudder’s claimed exertional limitations, such minimal proof cannot, without more,
constitute substantial evidence for discounting them.
B.

The ALJ also improperly relied mostly upon a lack of
objective medical evidence to discredit Mr. Rudder’s
subjective respiratory symptoms and limitations.

Similarly, the ALJ has not adequately discredited Mr. Rudder’s subjective
respiratory symptoms and limitations tied to his COPD. Instead, the ALJ ineffectively
stated that “the medical evidence does not substantiate the limitations asserted.” (Tr.
27). The ALJ then discussed various objective parts of Mr. Rudder’s medical record
in an effort to discount Mr. Rudder’s subjective complaints about fatigue and other
subjective complications associated with his COPD. (See, e.g., Tr. 27 (“Pulmonary
function test results from April 4, 2013, revealed that the claimant had no greater than
a mild restrictive respiratory defect.”); id. (“When consultatively examined by Dr.
16

Lott, the claimant had fair to good air movement throughout both lung fields and only
a few distant scattered expiratory wheezes were heard with forced expiration.”); id.
(“Dr. Miller’s treatment notes from July 29, 2013, November 13, 2013, and January
23, 2014, provide that claimant’s lungs had an even and easy respiratory effort with
no use of accessory muscles.”)).
In determining whether or not Mr. Rudder’s exertional limitations were
credible, the ALJ did not point to any statements made or symptoms described by Mr.
Rudder to a physician or other medical provider that undermined his subjective
testimony about his respiratory symptoms and COPD-related limitations. To the
contrary, the record reflects that, at the ALJ hearing, Mr. Rudder testified that his
fatigue and shortness of breath affected his ability to function on a daily basis because
he has “no energy” and must “lie down a part of everyday because of the fatigue.”
(Tr. 40-42).
Further, when the ALJ asked Mr. Rudder about the duration of his fatiguerelated symptoms, Mr. Rudder testified that he had experienced fatigue for “probably
two or three years. It’s progressively gotten worse. But it’s been a problem for a
while. It just keeps getting worse instead of better.” (Tr. 49). Lastly, when pressed by
the ALJ regarding his shortness of breath, Mr. Rudder stated that sitting, moving
around, and “[d]oing anything triggers the shortness of breath. The oxygen helps the
17

breathing when I’m sitting down. It doesn’t help moving.” (Tr. 53).
In his evaluation, the ALJ failed to sufficiently point to evidence in the record
that Mr. Rudder had described his symptoms in a manner that was undermined by
other subjective evidence of his respiratory limitations. Accordingly, based upon the
record, the Court concludes that the ALJ erroneously considered only objective
medical evidence of Mr. Rudder’s respiratory symptoms.
C.

The ALJ did not adequately explain why Mr. Rudder’s
inability to quit smoking constituted good cause for
discounting his subjective respiratory symptoms and
limitations.

As an additional ground for discrediting Mr. Rudder’s subjective symptoms
attributable to his COPD, the ALJ pointed out that Mr. Rudder had “admitted a few
episodes of smoking cigarettes, even though he had been instructed to refrain from
such activity.” (Tr. 27). The ALJ further stated that, “[i]n order to get benefits, a
claimant must follow treatment prescribed by his physician if this treatment can
restore his ability to work,” and, “[n]o acceptable reason exists for the claimant’s
inability to comply with the doctor’s instructions to stop smoking.” (Tr. 28). As
discussed in more detail below, the court finds that the ALJ failed to adequately
explain why Mr. Rudder’s admission that he had smoked a few times despite
treatment recommendations that he quit smoking constituted good cause for

18

discounting Mr. Rudder’s subjective respiratory limitations.
The court is unaware of any Eleventh Circuit published decision that directly
addresses whether a claimant’s failure to quit smoking provides good cause for
discrediting his subjective allegations. The undersigned has previously issued an
opinion–Grier v. Colvin, 117 F. Supp.3d 1335 (N.D. Ala. 2015)–that deals with this
issue in great detail and adopts it as persuasive authority under the circumstances of
this case.
As a general matter, it is clear that “the Commissioner may deny benefits for
the failure to follow treatment when the claimant, without good reason, fails to follow
a prescribed course of treatment that could restore the ability to work.” Grier, 117 F.
Supp.3d at 1346; see also Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990)
(“The Secretary may deny SSI disability benefits if the Secretary determines that 1)
the claimant failed to follow a prescribed course of treatment, and 2) her ability to
work would be restored if she had followed the treatment.”); McCall v. Bowen, 846
F.2d 1317, 1319 (11th Cir. 1988) (“Secretary may deny SSI disability benefits only
when a claimant, without good reason, fails to follow a prescribed course of treatment
that could restore her ability to work.”).
In Grier, the ALJ had discredited the claimant’s subjective complaints because
the plaintiff did not follow her physician’s instructions to stop smoking. 117 F. Supp.
19

3d at 1348. The undersigned, following the approach adopted in Seals v. Barnhart,
308 F. Supp. 2d 1241, 1251 (N.D. Ala. 2004) and Shramek v. Apfel, 226 F.3d 809
(7th Cir. 2000), concluded in Grier that the ALJ’s reliance on plaintiff’s failure to
quit smoking did not serve as substantial evidence supporting the ALJ’s credibility
determination because the ALJ did not inquire as to whether the claimant’s failure to
stop smoking was unjustified. Grier, 117 F. Supp. 3d at 1348. Ms. Grier was nicotine
dependent and, thus, because of her addiction, her inability to quit smoking did not
constitute an unjustified reason for noncompliance without any further inquiry by the
ALJ. Id.; see also Seals, 308 F. Supp. 2d at 1251 (“If the plaintiff was unable to stop
smoking because she was addicted to nicotine, her noncompliance would not be
unjustified. The burden is on the Commissioner to produce evidence of unjustified
noncompliance.”); SSR 96-7p (“individual’s statements may be less credible . . . , if
the medical reports or records show that the individual is not following the treatment
as prescribed and there are no good reasons for this failure”) (emphasis added).
Further, the undersigned found in Grier that the ALJ’s credibility determination was
not supported by substantial evidence because “the ALJ did not cite to any evidence
that showed that, if Ms. Grier quit smoking, her condition would improve to the point
in which she could be able to work.” Grier, 117 F. Supp. 3d at 1348.
In the instant case, the ALJ did not discuss whether Mr. Rudder was nicotine
20

dependent or whether his smoking a few times while otherwise refraining from
smoking constitutes a substantial failure to follow recommended treatment. (Tr. 2728). The ALJ also did not cite to any evidence to support his conclusion that “[n]o
acceptable reason exists for the claimant’s inability to comply with the doctor’s
instructions to stop smoking.” (Tr. 28).
Further, the ALJ did not cite to any evidence indicating that, if Mr. Rudder had
quit smoking, his COPD would have improved to such a degree that he would have
been capable of working. To the contrary, a note from Mr. Rudder’s treating
physician, Dr. Miller, states that she “will not be able to help the disease that is
already there but . . . will go ahead and try to help out,” with regard to Mr. Rudder’s
COPD. (Tr. 396). Thus, guided by Grier, the court finds that the ALJ’s reliance on
Mr. Rudder’s failure to completely quit smoking is an inadequate reason to discredit
his subjective allegations pertaining to his COPD. Alternatively, to the extent that
such evidence of noncompliance is relevant to the ALJ’s credibility determination,
such proof cannot, without more, constitute substantial evidence for discounting Mr.
Rudder’s credibility. Cf. Pendley v. Colvin, No. 15-CV-1612-JEO, 2017 WL 476556,
at *6 (N.D. Ala. Feb. 6, 2017) (“While this evidence is not dispositive on the issue
of credibility, it certainly is relevant.”).
Therefore, based upon the above analysis, while the ALJ has provided explicit
21

reasons for discrediting Mr. Rudder’s subjective exertional and non-exertional
limitations caused by his neuropathy and COPD, the court finds that his rationale is
inadequate because, for the most part, he only relies upon a lack of objective evidence
to carry his burden. Further, the ALJ’s reliance upon Mr. Rudder’s limited periodic
instances of smoking and upon his reported improvement from using a CPAP
machine to treat his sleep apnea are inadequate reasons for discrediting Mr. Rudder’s
exertional limitations caused by his neuropathy. Alternatively, to the extent that Mr.
Rudder’s sporadic smoking and positive results from using a CPAP machine are
relevant to the ALJ’s credibility determination about Mr. Rudder’s claimed exertional
limitations, that slight level of proof, without more, fails to meet the substantial
evidence standard based upon a totality of the record.
II.

The ALJ Improperly Disregarded The Eleventh Circuit’s Rules In
Assigning Weight To The Various Medical Opinions.
The court also finds that the ALJ committed reversible error in his treatment

of the medical opinions. With respect to an ALJ’s consideration of medical opinions,
the following framework applies:
In assessing the medical evidence in this case, the ALJ was required to
state with particularity the weight he gave the different medical opinions
and the reasons therefor. MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986). Further, he was required to accord considerable weight
to appellant’s treating physician’s opinion absent good cause for not
doing so. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985)
22

(per curiam). The opinions of nonexamining, reviewing physicians, such
as those of Drs. Thomas and Register, when contrary to those of the
examining physicians, are entitled to little weight, and standing alone do
not constitute substantial evidence. See Spencer ex rel. Spencer v.
Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (per curiam). Of course,
the ALJ may reject any medical opinion if the evidence supports a
contrary finding. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)
(per curiam).
The ALJ, here, disregarded these rules in assigning weight to the
various medical opinions. The only opinions that indicated that
appellant could meet the medium work requirements of 20 C.F.R.
404.1567(c) (1986) were those of the nonexamining physicians, Drs.
Thomas and Register. Their opinions were entitled to little weight,
however, and could not serve as substantial evidence.
Shafarz v. Bowen, 825 F.2d 278, 279-80 (11th Cir. 1987) (emphasis added); see also
Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990) (“Because Dr. Hibbett did
not examine Ms. Swindle, his opinion is entitled to little weight and taken alone does
not constitute substantial evidence to support an administrative decision.” (citing
Broughton, 776 F.2d at 962)).
Regarding the Eleventh Circuit’s treating physician rule more particularly, the
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.” MacGregor, 786 F.2d
at 1053. 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 to give less than substantial or
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considerable weight to the opinion of a treating physician exists where a treating
doctor’s opinion is not bolstered by the evidence, where the evidence supported a
contrary finding, or where the doctor’s opinion is conclusory or inconsistent with
their own medical records. Id.
Here, the ALJ’s decision runs afoul of these rules. More specifically, in
evaluating the vocational impact of Mr. Rudder’s severe impairments, the ALJ gave
“[t]he opinions offered by Dr. Miller . . . minimal weight.” (Tr. 28). However, the
ALJ’s articulated reasons for assigning this low level of weight are not supported by
substantial evidence.
As justification, the ALJ articulated that good cause existed because Dr.
Miller’s “findings are internally inconsistent with opinions offered.” (Tr. 28). The
ALJ specifically referenced a letter from Dr. Miller dated January 23, 2014, in which
she opined that Mr. Rudder “could only walk less than 25 feet[,] [y]et, she found no
respiratory, musculoskeletal or neurological deficit that would limit the claimant to
only being able to walk less than 25 feet.” (Tr. 28). While the ALJ correctly described
part of Dr. Miller’s letter (see Tr. 443 (“[Mr. Rudder] has an inability to walk > 25
feet without stopping to rest.”)), he mischaracterized the rest of it. (See, e.g., id. (“He
has severe COPD and a lung nodule. . . . He also has coronary artery disease and
diabetes which has been difficult to control.”)). Therefore, the ALJ has not pointed
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to any internal inconsistency within the January 2014 letter that adequately justified
discrediting the opinions of Dr. Miller.
Also, the impairments referenced by Dr. Miller in the 2014 letter are consistent
with her treatment notes. For example, the record reflects that Dr. Miller documented
the presence of respiratory, cardiovascular, musculoskeletal, and neurological deficits
in Mr. Rudder on May 2, 2013 (Tr. 394), and respiratory deficits on May 28, 2013.
(Tr. 398). Further, the record reflects consistent complaints and treatment relating to
Mr. Rudder’s COPD, fatigue, diabetes, and neuropathy. (Tr. 323, 393, 398, 402, 418).
Thus, the ALJ’s rationale of an internal inconsistency is clearly refuted by the
contents of Dr. Miller’s treatment notes and the ALJ did not provide good cause to
afford Dr. Miller’s opinion only minimal weight.
The ALJ also did not give a reason–tied to any contradictory evidence in the
record–for only partially crediting the opinions of James Lott, III, M.D. (“Dr. Lott”),
who conducted a physical consultative examination and pulmonary function testing
of Mr. Rudder on April 4, 2013. (Tr. 21). Based upon his consultative examination
of Mr. Rudder, “Dr. Lott . . . opined that the claimant would have some limitation in
mobility due to his multiple problems, including his pulmonary disease and obesity.”
(Tr. 28). In partially discounting Dr. Lott’s opinions, the ALJ indicated that “[w]hile
[he] agree[d] that the claimant[] experiences some limitation in mobility, such
25

limitations would not preclude the claimant from performing all work-related
activities.” (Tr. 28). However, because the ALJ’s conclusion to discount Dr. Lott’s
opinion lacks any corresponding evidentiary support, it cannot meet the substantial
evidence standard.
Therefore, the ALJ’s discounting of the medical source opinions substantiating
Mr. Rudder’s inability to physically perform the demands of medium or light work
(as a jewelry sales person) does not satisfy the Eleventh Circuit framework and his
decision is not supported by the substantial evidence for this alternative reason.12
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that substantial evidence does not support the
Commissioner’s final decision and that the ALJ did not apply proper legal standards.
Accordingly, the decision will be reversed and remanded by separate order.
DONE and ORDERED this the 25th day of May, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

12

Robert Estock, M.D. (“Dr. Estock”), a non-examining state agency consultant, was the
only other medical source that the ALJ referenced in terms of assigning weight and that reference
was unrelated to Mr. Rudder’s physical impairments. (Tr. 28). The ALJ assigned “[s]ignificant
weight” to Dr. Estock’s opinions about Mr. Rudder’s “non-severe mental impairment[.]” (Tr. 28).
26