Speakman v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge J Foy Guin, Jr on 6/7/12. (CTS, )

FILED
2012 Jun-07 PM 02:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

JANET D. SPEAKMAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 11-G-2697-NE
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MEMORANDUM OPINION
The plaintiff, Janet D. Speakman, brings this action pursuant to the
provisions of section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner of the Social
Security Administration (the Commissioner) denying her application for Social Security
Disability benefits. Plaintiff timely pursued and exhausted his administrative remedies
available before the Commissioner. Accordingly, this case is now ripe for judicial review
under 205(g) of the Social Security Act (the Act), 42 U.S.C. §405(g).
STANDARD OF REVIEW
The sole 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. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To that
end this court “must scrutinize the record as a whole to determine if the decision reached

is reasonable and supported by substantial evidence.” Bloodsworth, at 1239 (citations
omitted). Substantial evidence is “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Bloodsworth, at 1239..
STATUTORY AND REGULATORY FRAMEWORK
In order to qualify for disability benefits and to establish her entitlement for
a period of disability, a claimant must be disabled. The Act defines disabled as 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). For the purposes of
establishing entitlement to disability benefits, physical or mental impairment is defined as
“an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether a claimant is disabled, Social Security regulations
outline a five-step sequential process. 20 C.F.R.§ 404.1520(a)-(f). The Commissioner
must determine in sequence:
(1)

whether the claimant is currently employed;

(2)

whether she has a severe impairment;

(3)

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

(4)

whether the claimant can perform her past work; and

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(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); accord McDaniel v. Bowen, 800 F.2d
1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied Steps One and Two, she
will automatically be found disabled if she suffers from a listed impairment. If the
claimant does not have a listed impairment but cannot perform her past work, the burden
shifts to the Secretary to show that the claimant can perform some other job.” Pope at
477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner
further bears the burden of showing that such work exists in the national economy in
significant numbers. Id.
In the instant case, ALJ Patrick R. Digby determined the plaintiff met the
first two tests, but concluded that while she has an impairment or impairments considered
“severe,” her impairments do not meet or equal in severity any impairment set forth at 20
C.F.R. Part 404, Subpart P, Appendix 1. [R. 20]. The ALJ found the plaintiff capable of
performing her past relevant work as a clothing presser. [R. 25].
THE STANDARD WHEN THE CLAIMANT TESTIFIES SHE SUFFERS
FROM DISABLING PAIN
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.” Foote, at 1560.
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

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determined medical condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain.
Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). In
this circuit 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. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Furthermore, it must be kept in mind that “[a]
claimant’s subjective testimony supported by medical evidence that satisfies the pain
standard is itself sufficient to support a finding of disability.” Foote at 1561. Therefore,
if a claimant testifies to disabling pain and satisfies the three part pain standard, she must
be found disabled unless that testimony is properly discredited.
When the Commissioner fails to credit a claimant’s pain testimony, he must
articulate reasons for that decision.
It is established in this circuit that if the Secretary fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the Secretary, 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 Secretary be supported by
substantial evidence.

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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 his reasons are
not supported by substantial evidence, the pain testimony of the plaintiff must be accepted
as true.
THE IMPACT OF A VOCATIONAL EXPERT’S TESTIMONY
It is common for a vocational expert (“VE”) to testify at a claimant’s
hearing before an ALJ, and in many cases such testimony is required. The VE is typically
asked whether the claimant can perform his past relevant work or other jobs that exist in
significant numbers within the national economy based upon hypothetical questions about
the claimant’s abilities in spite of his impairments. “In order for a vocational expert’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical question
which comprises all of the claimant’s impairments.” Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999).
If the claimant is unable to perform his prior relevant work the burden shifts
to the Commissioner to establish that he can perform other work. In such cases, if the
vocational expert testimony upon which the ALJ relies is based upon a hypothetical
question that does not take into account all of the claimant’s impairments, the
Commissioner has not met that burden, and the action should be reversed with
instructions that the plaintiff be awarded the benefits claimed. This is so even if no other
hypothetical question is posed to the VE. See Gamer v. Secretary of Health and Human
Services, 815 F.2d 1275, 1280 (9th Cir. 1987)(noting that when the burden is on the
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Commissioner to show the claimant can do other work, the claimant is not obligated to
pose hypothetical questions in order to prevail). However, it is desirable for the VE to be
asked whether the claimant can perform any jobs if his subjective testimony or the
testimony of his doctors is credited. Such a hypothetical question would allow disability
claims to be expedited in cases in which the ALJ’s refusal to credit that testimony is
found not to be supported by substantial evidence.
In Varney v. Secretary of Health and Human Services, 859 F.2d 1396 (9th
Cir. 1987), the Ninth Circuit adopted the Eleventh Circuit rule which holds that if the
articulated reasons for rejecting the plaintiff’s pain testimony are not supported by
substantial evidence, that testimony is accepted as true as a matter of law. Id at 1401.
The court noted that “[a]mong the most persuasive arguments supporting the rule is the
need to expedite disability claims.” Id. If the VE is asked whether the claimant could
perform other jobs if his testimony of pain or other subjective symptoms is accepted as
true, the case might be in a posture that would avoid the necessity of a remand. As
Varney recognized, if the VE testifies the claimant can perform no jobs if his pain
testimony is accepted as true, the only relevant issue would be whether that testimony was
properly discredited. Id. This also holds true for the opinions of treating physicians.
DISCUSSION
The plaintiff was 46 years old at her amended alleged onset date of May 1,
2006, and 50 years old at the time of ALJ Patrick R. Digby’s decision. The ALJ found
that the plaintiff has the following severe impairments: fibromyalgia; chronic neck pain;
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headaches; anxiety and depression; and possible seizures. [R. 17]. He found that the
plaintiff has the residual functional capacity to perform a less than full range of light
work.1 [R. 21]. Accordingly, the ALJ found that the plaintiff could perform her past
relevant work as a clothing presser, and therefore, is not disabled. [R. 25-26].
The medical evidence of record shows that the plaintiff has been primarily
treated from April 2004 through October 2009 at the Good Samaritan Clinic, which
provides free medical care for uninsured low income individuals. [R. 203-244, 292-297,
and 320-349]. Diagnoses from the physicians at the clinic include chronic back pain,
fibromyalgia, headaches, GERD and irritable bowel syndrome, depression and anxiety.
Id. Although the plaintiff has seen physicians at the clinic over her treatment history,
most treatment records are from Carol Livingston, a certified registered nurse practitioner
(“CRNP”).
In connection with the plaintiff’s disability application, the Commissioner
sent her to Jack L. Bentley, Jr., Ph.D., for a mental status examination. Dr. Bentley

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Specifically, the ALJ found that:

she could occasionally lift 20 pounds and frequently lift/carry 10 pounds;
stand/walk/sit six hours out of an eight hour day; frequently climb, stoop,
kneel, crouch, and crawl; no work around ladders/ropes/scaffolds, extreme
cold, vibrations, fumes, odors, dust, gases, etc.;no work at unprotected
heights or hazardous machinery. As for her ability to respond to mental
demands of work, she could understand short instructions but not detailed,
perform simple tasks for two hour periods, have casual contact with the
general public and have gradual changes in the work setting.
[R. 21].
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reported that the plaintiff has a history of chronic pain syndrome due to fibromyalgia,
degenerative disk disease in her lumbar spine, irritable bowel syndrome with chronic
constipation, and an acid reflux disorder. [R. 246]. Dr. Bentley noted the plaintiff’s
complaints:
She began experiencing significant anxiety and depression in the early
1990s. The client took antidepressants which significantly improved her
mood. Ms. Speakman again started suffering severe anxiety and depression
approximately 18 months ago when her health began to deteriorate. She
readily admitted that the pain and loss of lifestyle has been the substantial
cause for her psychiatric difficulties. The claimant used to perform many
household activities that she is now unable to complete in a timely manner.
The client gets frustrated over her pain disorder. Ms. Speakman suffers
persistent fatigue, moodiness, irritability and loss of self-esteem.
The claimant has not received any formal psychiatric treatment. She is
currently being medicated with Lexapro 20 mgs hs. Use of this
antidepressant has not significantly altered her mood. The client needs to
consult her physician again but does not have the financial resources to
pursue these services.
Id. Dr. Bentley estimated, without the benefit of intelligence testing, that the plaintiff
falls in the upper end of the borderline range to the lower end of the low average range.
[R. 247]. His diagnostic impression was depressive disorder, not otherwise specified,
with anxiety, and drug dependence (nicotine). [R. 248]. As far as the reliability of his
examination, Dr. Bentley noted that the plaintiff “was reasonably motivated and
cooperative” with him, and that she had “become more despondent recently due to
continued pain disorder without receiving any benefit” from her drug regimen. [R. 248249].

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On December 11, 2007, Amit V. Vora, M.D., performed a consultative
physical examination at the behest of the Commissioner. During the physical
examination, straight leg raising2 tests were positive at about 30 degrees on both sides. [R.
254]. An x-ray of the lumbosacral spine revealed that the intervertebral disc spaces
looked normal, except for the disc space between L5 and S1, which Dr. Vora said “is
definitely narrowed.” [R. 255]. Dr. Vora’s summarized his examination:
Ms. Speakman, who is a 48 year-old white female, has chronic severe back
pain. She probably has a mild to moderate degree of degenerative disc
disease involving the lumbar spine and is constant severe pain. She also has
overlapping pain with fibromyalgia syndrome also. [sic] Besides she has a
history of depression and anxiety as well as history of black out type of
spells in the past. The back movements are significantly restricted. She is a
chronic heavy smoker and has mild COPD. She definitely looks older than
her age. She had multiple GYN surgeries including partial hysterectomy,
removal of the ovaries, tubal ligation and has chronic pelvic pain probably
secondary to adhesions. She was advised not to lift over 15 pounds on
account of her lower abdominal surgeries, [sic] however, she cannot even
lift 10 pounds because of her back. She has some restricted movements of
both shoulders and the movements are somewhat painful. This could be
related to possible bursitis or fibromyalgia syndrome.
Id.
On September 29, 2009, CRNP Livingston completed a “Medical Opinion
re: Ability to do Work-Related Activities (Physical)” questionnaire, in which she
estimated that the plaintiff could lift and carry 10 pounds occasionally, and less than 10
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A positive SLR (Straight Leg Raise test) is recognized by the regulations as a
clinically appropriate test for the presence of pain and limitation of motion of the spine.
(See Listing 1.00(B), ¶5) The SLR test is also known as Lasègue’s sign: “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).
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pounds frequently, in an eight-hour day. [R. 342]. She thought the plaintiff could stand
and walk less than two hours, and sit for less than two hours, in an eight-hour day. Id.
She thought that the plaintiff would need to lie down at unpredictable intervals during the
day. [R. 343]. CRNP Livingston noted that the plaintiff has multiple trigger points
consistent with fibromyalgia. Id. She identified the objective signs of positive SLR tests,
abnormal gait, tenderness and impaired sleep, and estimated that the plaintiff would be
absent from work more than four days a month because of her impairments. [R. 344].
CRNP Livingston thought that the plaintiff’s pain was moderately severe to severe. Id.
The ALJ rejected the opinion of Dr. Vora, the Commissioner’s own
consultative physical examiner, giving it little weight. The ALJ stated, “Dr. Vora’s
opinion is inconsistent with the other medical evidence in the file and appears based
predominately on accepting the claimant’s statements as to her condition without
question.” [R. 24]. This conclusion is not supported by substantial evidence. Dr. Vora
conducted a thorough examination, including a musculoskeletal examination that resulted
in positive SLR testing, x-rays of the lumbar spine which showed a definite narrowing
between L5 and S1, and range of motion testing which was restricted and resulted in pain.
[R. 254-256]. Instead of being inconsistent with the medical evidence of record, Dr.
Vora’s opinion is entirely consistent with the plaintiff’s allegations of disabling pain.
The ALJ also rejected the opinion of CRNP Livingston, giving it little
weight and citing similar reasons:

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There is no supporting evidence submitted. The opinion is not only
unsupported by the medical evidence of record but is also unsupported by
her treatment of the claimant. Ms. Livingston is a nurse practitioner and
nurse practitioners are not considered acceptable medical sources by the
agency.
[R. 25]. It is true that CRNPs are not acceptable medical sources for proving the claimant
has a severe impairment. Once medical evidence establishes the presence of a severe
impairment, however, their testimony may be utilized to show how a claimant’s
impairment affects her ability to work.. 20 CFR § 404.1513(e). The ALJ found that the
plaintiff’s severe impairments included fibromyalgia. [R. 17]. Then, in rejecting the
CRNP’s finding of multiple trigger points consistent with fibromyalgia, he held that
“there is no evidence that the claimant has been diagnosed with this condition by any
medical doctor.” [R. 22]. However, a review of the treatment records from Good
Samaritan Health Clinic reveals that two medical doctors have diagnosed the plaintiff
with fibromyalgia. [R. 222, 223]. Based on these diagnoses, certainly this CRNP is
competent to testify about how the plaintiff’s fibromyalgia affects her abilities. It was
improper and unreasonable for the ALJ to reject CRNP Livingston’s testimony.
At the hearing, the plaintiff testified that her back and shoulders hurt all the
time, evidenced by spasms. [R. 35]. Her pain is aggravated by activities of light
housework, such as sweeping or mopping. [R. 40]. She testified that she could do
housework for ten minutes at a time, but then she has to sit down to rest. Id. She has
headaches about three to four times a month which cause her to lie down in a dark
bedroom for one to two days. [R. 39]. The ALJ discounted the plaintiff’s pain testimony:
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Although the claimant has described daily activities which are fairly
limited, two factors weigh against considering these allegations to be strong
evidence in favor of finding the claimant disabled. First, allegedly limited
daily activities cannot be objectively verified with any reasonable degree of
certainty. Secondly, even if the claimant’s daily activities are truly as
limited as alleged, it is difficult to attribute that degree of limitation to the
claimant’s medical condition, as opposed to other reasons, in view of the
relatively weak medical evidence and other factors discussed in this
decision. Overall, the claimant’s reported limited daily activities are
considered to be outweighed by the other factors discussed in this decision.
[R. 25]. It is clear that the ALJ’s articulated reasons for rejecting the plaintiff’s pain
testimony are not supported by substantial evidence. Therefore, the ALJ failed to satisfy
the requirements of Hale. The conclusion of that court is equally appropriate in the
instant case. “[T]he Secretary has articulated reasons for refusing to credit the claimant’s
pain testimony, but none of these reasons is supported by substantial evidence. It follows,
therefore, that claimant’s pain testimony has been accepted as true.” Hale, at 1012.
The ALJ’s finding at Step 4 that the plaintiff is capable of performing her
past relevant work as a clothing presser is not supported by substantial evidence. At the
hearing, the plaintiff’s attorney questioned the vocational expert as to the job of clothing
presser:
Q:

In response to the first hypothetical that the judge gave you, Patsy,
you said that the clothing presser was in, was consistent with the
limitations that the judge gave you. But because that was only one
part of her past relevant work it would rule out all past relevant
work, would it not, the restrictions that he gave?

A:

Well, it would as she performed it. Since that was sort of a
composite job where two different DOT titles had to be identified to
cover what she did as she performed it, it would be ruled out.

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[R. 56-57]. However, the ALJ made an additional finding at Step 5 that there are other
jobs in the national economy that the plaintiff is capable of performing. [R. 25, 26]. The
VE was asked further about how the need to lie down at least one hour three to four days
a week because of moderately severe to severe pain would affect a hypothetical
individual’s ability to work. The VE testified that the need to lie down “would eliminate
past work and all other work,” and that the moderately severe to severe pain “would be
distracting to performance of work.” [R. 58-59]. Taking the plaintiff’s testimony as true,
the VE’s testimony establishes disability without a doubt.
CONCLUSION
Therefore, the Commissioner failed to carry his burden at step five of
showing the plaintiff could perform other work. Accordingly, the plaintiff is disabled
within the meaning of the Social Security Act. An appropriate order remanding the action
with instructions that the plaintiff be awarded the benefits claimed will be entered
contemporaneously herewith.
DONE and ORDERED 7 June 2012.

UNITED STATES DISTRICT JUDGE
J. FOY GUIN, JR.

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