v. Presley et al

Filing 19

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/17/2018. (KBB)

FILED
2018 Jan-17 AM 11:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
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BOBBY PRESLEY,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Civil Action Number
4:17-cv-00722-AKK

MEMORANDUM OPINION
Bobby Presley brings this action pursuant to Section 405(g) of the Social
Security Act, 42 U.S.C. § 405(g), seeking review of the Administrative Law
Judge’s denial of disability insurance benefits, which has become the final decision
of the Commissioner of the Social Security Administration (“SSA”). For the
reasons explained below, the court reverses and remands for further consideration.
I.

Procedural History
Presley worked as a designer for an engineering firm from 1994 until 2012,

when he retired due to chronic back pain. Docs. 6-8 at 6; 11 at 2. He filed an
application for disability insurance benefits (“DIB”), and the SSA denied his
application on August 19, 2015. Doc. 6-5 at 4. Presley then requested a hearing

before an ALJ, who affirmed the denial on January 19, 2016. Doc. 6-3 at 8-21.
The SSA Appeals Council denied his request for review on March 9, 2017. Doc.
6-3 at 2-5. Presley timely filed this petition for review on May 4, 2017. Doc. 1.
II.

Standard of Review
First, federal district courts review the SSA’s findings of fact under the

“substantial evidence” standard of review. 42 U.S.C. §§ 405(g), 1383(c); 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 review the final decision as a whole and
determine if the decision is “reasonable and supported by substantial evidence.”
See Martin, 894 F2d at 1529 (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.” Id. (internal citations omitted).
If supported by substantial evidence, the court must affirm the Commissioner’s
factual findings, even if the evidence preponderates against the Commissioner. Id.
Credibility determinations are the province of the ALJ. Moore v. Barnhart,
405 F.3d 1208, 1212 (11th Cir. 2005). However, “[t]he testimony of a treating
physician must ordinarily be given substantial or considerable weight unless good

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cause is shown to the contrary,” and the failure of the Secretary “to specify what
weight is given to a treating physician’s opinion and any reason for giving it no
weight” constitutes reversible error. MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986). Courts have found good cause to discount a treating physician’s
report when it is “not accompanied by objective medical evidence, . . . wholly
conclusory,” or “inconsistent with [the physician’s] own medical records.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d
580, 583 (11th Cir. 1991). In contrast to the opinion of a treating physician, “the
opinion of a nonexamining physician is entitled to little weight if it is contrary to
the opinion of the claimant’s treating physician.” Broughton v. Heckler, 776 F.2d
960, 962 (11th Cir. 1985).
Second, federal courts review the SSA’s conclusions of law de novo, see
Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir.1987), and “[f]ailure to apply the
correct legal standards is grounds not for remand but, for reversal.” Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988). No presumption attaches to either the
ALJ’s choice of legal standard or to the ALJ’s application of the correct legal
standard to the facts. Id.
Finally, reviewing courts have the power “to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision

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of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g) (emphasis added).
III.

Statutory and Regulatory Framework

An individual applying for DIB bears the burden of proving that she is
disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To qualify, a
claimant must show “the inability 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 twelve months.” 42 U.S.C. § 423(d)(1)(A); 42
U.S.C. § 416(i)(I)(A). A physical or mental impairment is “an impairment that
results from anatomical, physiological, or 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 doing substantial gainful
activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or is medically
equivalent to one listed by the Secretary;

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(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).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must
meet additional criteria.

This standard, called the “Hand standard,” 1 requires

“evidence of an underlying medical condition,” and either “objective medical
evidence that confirms the severity of the alleged pain arising from that condition”
or evidence that the “objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged pain.” Holt v.
Barnhart, 921 F.2d 1221, 1223 (11th Cir. 1991). However, medical evidence of
pain itself, or of its intensity, is not required. Elam v. R.R. Ret. Bd., 921 F.2d 1210,
1215 (11th Cir. 1991). Moreover, “[a] claimant’s subjective testimony supported
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See Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985).
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by medical evidence that satisfies the pain standard is itself 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 a
disability unless the ALJ properly discredits the claimant’s testimony. Id. If,
however, the ALJ either fails to articulate reasons for refusing to credit the
plaintiff’s pain testimony or articulates reasons that are not supported by
substantial evidence, the court must accept the plaintiff’s pain testimony as true.
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987).
IV.

Analysis

In applying the five-step analysis, the ALJ determined that Presley “has not
engaged in substantial gainful activity since September 30, 2012” and that Presley
“has the following severe impairments: osteoarthritis and allied disorders and spine
disorders.”

Doc. 6-3 at 13 (citing 20 CFR 404.1520(c)).

At the third step,

however, the ALJ concluded that these impairments did not “meet[] or medically
equal[] the severity” of one of the impairments listed by the Secretary. Id. at 16.
Specifically, the ALJ found that
Listing 1.02 for Major dysfunction of a joint(s) is not met because the
evidence of record does not document involvement of one major
peripheral weight-bearing joint resulting in inability to ambulate
effectively, or involvement of one major peripheral joint in each upper
extremity resulting in inability to perform fine and gross movement
effectively. Listing 1.04 for Disorders of the spine is not met because
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there is no evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and positive straight
leg raising test (sitting and supine); spinal arachnoiditis; or, lumbar
spinal stenosis.
Id. Beyond a bare recitation of the potentially applicable listings, however, the
ALJ failed to explain why Presley’s impairment did not meet these criteria.
“Failure to apply the correct legal standards or to provide the reviewing court with
the sufficient basis to determine that the correct legal principles have been
followed is grounds for reversal.” Wiggins v. Schweiker, 679 F.2d 1387, 1389
(11th Cir. 1982). Accordingly, the Secretary’s decision is due to be reversed.
In addition, the ALJ committed reversible error by discounting the opinion
of Presley’s treating physician without adequate explanation. The ALJ gave “little
weight” to Dr. Scott Martin’s medical source statement because, “although Dr.
Martin is a treating source, his opinion is not consistent with his own records of
treatment . . . and not consistent with the record as a whole.” Doc. 6-3 at 20. The
ALJ’s “conclusory statement is not sufficient” because it fails to explain why Dr.
Martin’s opinion is inconsistent with his own records or the record as a whole.
Elam, 921 F.2d at 1216. The failure to explain his reasoning deprives this court of
the ability to adequately review the decision and thus constitutes reversible error.
Id.; see also Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (“[T]he ALJ’s
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discretionary power to determine the credibility of testimony is limited by his
obligation to place on the record explicit and adequate reasons for rejecting that
testimony.”).

Therefore, because a treating physician’s opinion is entitled to

considerable weight unless the ALJ articulates good cause otherwise, see
MacGregor, 786 F.2d at 1053, remand is warranted here to allow the ALJ to
articulate good cause. Elam, 921 F.2d at 1216.
Finally, the ALJ’s decision “contains no indication that he applied [the Hand
pain] standard . . . as is required by law.” Holt, 921 F.2d at 1223. Moreover, the
ALJ committed a separate error by discrediting Presley’s pain testimony, in part,
because “he testified that he is currently taking no medication because he ran out
of money to see a doctor” and “has not sought free or subsidized medical
assistance.” Doc. 6-3 at 18. A claimant’s subjective complaints should not be
discredited for lack of treatment where, as here, the record establishes that he could
not afford it. See Dawkins v. Bowen, 848 F.2d 1211, 1214 (11th Cir. 1988)
(holding that “poverty excuses noncompliance”); see also Soc. Sec. Ruling 16-3p
Titles II & XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A.
Oct. 25, 2017) (“When we consider the individual’s treatment history, we may
consider [that a]n individual may not be able to afford treatment and may not have
access to free or low-cost medical services.”).

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To the extent the ALJ wishes to base a credibility determination on whether
Presley sought alternative sources of care, the ALJ bears the responsibility of
developing the record on whether such services existed. Henry v. Comm’r of Soc.
Sec., 802 F.3d 1264, 1268 (11th Cir. 2015) (holding that the ALJ’s decision was
“not supported by substantial evidence because the record is underdeveloped with
respect to . . . whether financial status prevented Henry from receiving alternate
treatment for his back pain”); see also Funderburk v. Astrue, No. 2:10CV852-CSC,
2012 WL 904682, at *8 (M.D. Ala. Mar. 15, 2012) (“[T]he ALJ did not develop
the record as to whether [community medical care for the indigent] existed and
were available to Funderburk”). Accordingly, the ALJ’s failure to apply the pain
standard, along with his inappropriate consideration of Presley’s lack of efforts to
seek free or subsidized care, are grounds for reversal. See Holt, 921 F.2d at 1223;
Dawkins, 848 F.2d at 1214.
CONCLUSION
Based on the foregoing, the court concludes that the ALJ failed to
adequately explain his findings with respect to the Listings criteria, provided only
conclusory reasons for his decision to give Presley’s treating physician’s opinion
little weight, and disregarded and/or misapplied the pain standard. Accordingly,

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the Secretary’s decision is due to be reversed and remanded for reconsideration. A
separate order will be entered.
DONE the 17th day of January, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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