Turner v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 2/12/14. (ASL)

FILED
2014 Feb-12 AM 09:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JUANITA S. TURNER,
PLAINTIFF,
VS.

CASE NO.: CV-12-J-619-NE

MICHAEL J. ASTRUE,
Commissioner of Social Security,
DEFENDANT.
MEMORANDUM OPINION
This matter is before the court on the record and the briefs of the parties. This
Court has jurisdiction pursuant to 42 U.S.C. § 405. The plaintiff is seeking reversal
or remand of a final decision of the Commissioner. All administrative remedies have
been exhausted.
Procedural Background
The plaintiff applied for Supplemental Security Income on August 17, 2009,
alleging an inability to work due to back problems and COPD (R. 168, 179). The
administrative law judge (ALJ) reached a determination that the plaintiff was not
disabled at any time through the date of his decision, July 14, 2011 (R. 22). The
plaintiff appealed this decision to the Appeals Council which denied her request for
review on December 20, 2011 (R. 1-3). The ALJ’s decision thus became the final
order of the Commissioner. See 42 U.S.C.§ 405(g). This action for judicial review

of the agency action followed (doc. 1). The court has considered the entire record and
whether the decision of the ALJ is supported by substantial evidence. For the reasons
set forth herein, this case is REVERSED and REMANDED.
Factual Background
The plaintiff was born on May 31, 1960, and was fifty (50) years old as of the
date of the hearing (R. 104, 136). She went as far as the seventh grade in school, with
no GED or other education (R. 105). She had not worked in the ten years prior to her
hearing, and alleged she could not do so because of shortness of breath and tiring
easily, due to COPD (R.107). She uses a home nebulizer three times a day, which
takes 20-25 minutes at a time, and then about an hour and a half after each one
because its makes her shaky and dizzy (R. 108-109). Her lower back, hips and legs
are painful due to arthritis (R. 109). Walking and bending increase this pain (R. 110).
The plaintiff estimates she can stand for 30 minutes, walk for 15 minutes and sit for
about 30 minutes at a time (R. 110-111). She also has to lie down during the day, for
an hour or hour and a half at a time, because her pain medication makes her drowsy
(R. 111). She takes Lortab 10 five times a day (R. 111) and muscle relaxers four
times a day (R. 117). She also takes Xanax for anxiety (R. 117). Her pain is never
less than a five on a scale of one to ten (R. 112) but sometimes goes up to a seven (R.
113). She had been going to a pain management doctor for about 14 months at the
time of her hearing (R. 117).
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The plaintiff no longer attends church, because sitting on the benches is painful
(R. 114). She does not drive, but does cook using a microwave and does household
chores slowly (R. 114, 120-121). She has to rest as she does them though (R. 122123).
The vocational expert (VE) testified the plaintiff’s past work was that of a
janitor/cleaner, which was medium, unskilled work (R. 127). When asked to assume
a person who could lift 20 pounds occasionally, ten pounds frequently, and who could
stand for two of eight hours, walk for an additional two of eight hours, and sit for six
hours at a time, with frequent climbing, balancing, stooping, kneeling, crouching, and
crawling; pushing and pulling limited to occasional; and frequent reaching, handling
and fingering, and asked whether such a person could perform plaintiff’s past relevant
work, the VE said “no” (R. 128). However, light work such as assembler, machine
tender, and wire worker would be available within the above limitations (R. 128).
The medical evidence in the record at the time of the hearing demonstrates that
the plaintiff has complained of ongoing low back pain since before 1999 (R. 254264). These records reflect diagnoses of advanced spondylosis, mild to moderate in
her thoracic spine, with disc bulges at T7-T8, T11-T12, and T12-L1, with mild to
moderate loss of disc signal and height at all levels from T6-T7 and below. The T12L1 bulge exerted slight mass effect upon the thecal sac (R. 265). Early anterior
osteophytic lipping was seen at multiple locations in her lower thoracic spine (R.
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265). Plaintiff’s cervical spine showed advanced spondylosis for her age, loss of disc
signal at C5-C6, with moderate disc bulging and early posterior osteophytosis (R.
266). Moderate degenerative disc disease was diagnosed at C5-C6, along with a
small bulge at C3-C4 (R. 266). The plaintiff’s lumbar spine also showed spondylosis,
bulging discs and mild foraminal stenosis (R. 267).
A consultative disability examination was conducted on December 28, 2009,
by Dr. V.S. Reddy, M.D. (R. 294). He noted cataracts, hearing loss and shortness of
breath, with decreased breath sounds (R. 294). Dr. Reddy described plaintiff’s
musculoskeletal system as remarkable, noting tenderness on palpation of the posterior
neck and lumbar spine (R. 295). He found the plaintiff limited from squatting
completely, with a diagnosis of marked degenerative disc disease, cervical and
lumbar spine; lumbar radiculopathy; and COPD (R. 295). The plaintiff’s range of
motion was determined to be limited in her spine, shoulders, hips, and knees (R. 296297).
Chest x-rays due to plaintiff’s history of COPD noted a potential L1
compression fracture with thoracolumbar discogenic degenerative disease (R. 326).
A hospital admission in July of 2010 discharged the plaintiff with diagnoses of
encepholopathy (resolved), rhabdomyolysis with renal failure (resolved), pneumonia
(resolving), COPD exacerbation (resolving), tobacco dependence, hypertension,
chronic pain syndrom, and leukocytosis (resolving) (R. 328).
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Although one of plaintiff’s regular treating physicians, Dr. Ronald E. Calhoun,
declined to complete a Physical Capacities Evaluation (doc. 317), he did opine in a
“To whom it may concern letter” that the plaintiff “is unable to work due to her
medical condition” (R. 361). The plaintiff is also followed by Dr. Bart Bailey for
pain management (R. 370). He has performed two epidural injections (R. 370-377).
He completed a Physical Capacities Evaluation, in which he opined the plaintiff could
lift ten pounds occasionally to five pounds frequently, could sit no more than two
hour in an eight hour day, and stand or walk no more than one hour in an eight hour
day (R. 387). He also believed the plaintiff limited to no more than occasional
pushing and pulling, reaching, and working around hazardous machinery, and only
rarely climbing or bending and stooping (R. 387). He based his opinion on plaintiff’s
degenerative joint disease (R. 387), with no mention of COPD. He further opined
plaintiff had pain to an extent as to be distracting, physical activity would cause
greatly increased pain to a point that caused distraction or abandonment of tasks, that
medication would be necessary, and further that medication limited but did not
eliminate plaintiff’s ability to work (R. 388).
Standard of Review
In a Social Security case, the initial burden of establishing disability is on the
claimant, who must prove that due to a mental or physical impairment he is unable
to perform his previous work. If the claimant is successful the burden shifts to the
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Commissioner to prove that the claimant can perform some other type of work
existing in the national economy. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir.1987).
This court’s review of the factual findings in disability cases is limited to
determining whether the record contains substantial evidence to support the ALJ’s
findings and whether the correct legal standards were applied. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971); Wolfe v. Chater, 86
F.3d 1072, 1076 (11th Cir.1996); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th
Cir.1990). “Substantial evidence” is generally defined as “such relevant evidence as
a reasonable mind would accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59
S.Ct. 206 (1938)); Miles v. Chater, 84 F.3d 1397 (11th Cir.1996); Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir.1983).
In determining whether substantial evidence exists, this court must scrutinize
the record in its entirety, taking into account evidence both favorable and unfavorable
to the Commissioner’s decision. Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir.1988);
Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir.1987). “Even if the Court finds that
the evidence weighs against the Commissioner’s decision, the Court must affirm if
the decision is supported by substantial evidence.” Allen v. Schweiker, 642 F.2d

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799,800 (5th Cir.1981); see also Harwell v. Heckler, 735 F.2d 1292 (11th Cir.1984);
Martin v. Sullivan, 894 F.2d 1520 (11th Cir.1990).
This court must also be satisfied that the decision of the Commissioner is
grounded in the proper application of the appropriate legal standards. McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Bridges v. Bowen, 815 F.2d 622, 624
(11th Cir.1987); Davis v. Shalala, 985 F.2d 528 (11th Cir. 1993).

No such

presumption of correctness applies to the Commissioner’s conclusions of law,
including the determination of the proper standard to be applied in reviewing claims.
Brown v. Sullivan, 921 F. 2d 1233, 1235 (11th Cir. 1991); Cornelius v. Sullivan, 936
F.2d 1143, 1145 (11th Cir. 1991). Furthermore, the Commissioner’s “failure to ...
provide the reviewing court with sufficient reasoning for determining that the proper
legal analysis has been conducted mandates reversal.” Cornelius, 936 F.2d at 11451146.
When making a disability determination, the ALJ must consider the combined
effects of all impairments. Davis v. Shalala, 985 F.2d at 533; Swindle v. Sullivan,
914 F.2d 222, 226 (11th Cir.1990); Walker v. Bowen, 826 F.2d 996, 1001 (11th
Cir.1987). When more than one impairment exists, the plaintiff may be found
disabled even though none of the impairments considered alone would be disabling.
Id. The ALJ must evaluate the combination of impairments with respect to the effect
they have on the plaintiff’s ability to perform the duties of work for which he or she
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is otherwise capable. Lucas v. Sullivan, 918 F.2d 1567, 1574 (11th Cir.1990). Merely
reciting that the plaintiff’s impairments in combination are not disabling is not
enough. Walker, 826 F.2d at 1001.
Legal Analysis
In this case, the ALJ found that the plaintiff suffered from degenerative disc
disease and COPD, which are severe impairments, but neither of which, singly or in
combination, met or medically equaled the criteria of any of the Listing of
Impairments found in 20 CFR 404, Subpart P, Appendix 1 (R. 14-15).1
The ALJ considered the plaintiff’s subjective complaints of pain, but found the
plaintiff’s statements about the intensity, persistence and limiting effects of her
symptoms “not credible to the extent they are inconsistent with the above residual
functional capacity assessment” (R. 17). The ALJ made a residual functional capacity
assessment that the plaintiff could engage in a limited range of light work (R. 16).
He determined that the plaintiff’s statements that she could prepare meals in a
microwave, wash dishes slowly, and engage in other limited daily activities meant
that her testimony concerning her limitations was not credible (R. 17).

1

Oddly, no mention is made of the findings by Dr. Reddy of cataracts, or hearing loss (R.
294). While the plaintiff did not allege either of these as ailments in her disability report, in
meeting his duty to develop a full and fair record, the ALJ should have at least asked whether the
plaintiff did experience any limitations from the same. See e.g., Graham v. Apfel, 129 F.3d 1420,
1422 (11th Cir.1997).
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The ALJ noted the objective medical evidence concerning degenerative disc
disease in the plaintiff’s spine at multiple levels, as well as Dr. Reddy’s finding of
marked degenerative disease (R. 18). He discussed the findings of COPD, but found
it was not as severe as alleged (R. 18). The ALJ also discounted the opinion of Dr.
Calhoun, one of plaintiff’s treating physicians, that the plaintiff could not work based
on the determination that “the other evidence in the record, which I acknowledge
shows degenerative disc disease and COPD, does not show much in the way of
limitations that would completely disable her” (R. 18). Similarly, the ALJ found Dr.
Bailey’s assessment of plaintiff’s limitations entitled to little weight (R. 19), although
Dr. Bailey is also one of plaintiff’s treating physicians. In part, the ALJ made this
decision based on his own opinion that the plaintiff would require a limited
environment due to COPD, which was not mentioned by Dr. Bailey (R. 19).
However, Dr. Bailey’s opinion clearly states it is based solely on degenerative disc
disease and not on any other ailment the plaintiff may have (R. 387).
Having considered the findings of the ALJ, the court finds the record devoid
of any medical opinions to support his determination. The only possible place for
support of the ALJ’s determination is the opinion of Deborah Wright, a nonexamining, non-consulting, non-physician, DDS Single Decision Maker (R. 19),
which the ALJ found was consistent with his own opinion.

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Despite the fact that the April 2009 MRIs found at least six bulging discs, mild
to moderate thoracic spondylosis, moderate cervical degenerative disc disease,
advanced spondylosis in her lumbar spine, and mild foraminal stenosis (R. 265-267),
and despite that fact that Dr. Reddy referred to these findings as showing “marked”
degenerative disc disease, as well as lumbar radiculopathy (R. 295), the ALJ’s
determined that the plaintiff’s degenerative disc disease did not limit her as much as
believed by Dr. Bailey or noted as marked by Dr. Reddy. The court finds the ALJ’s
opinion is wholly unsupported by the objective medical evidence in the record and
flies in the face of the substantial evidence actually contained therein.
The law requires the ALJ to clearly articulate the reasons for giving less weight
to the opinion of the treating physician, and the failure to do so is reversible error.
Court have found “good cause” to not give controlling weight to a treating physician
when the doctor’s opinion was not bolstered by the evidence, where the evidence
supported a contrary finding, or where the doctors’ opinions were conclusory or
inconsistent with their own medical records. Winschel v. Commissioner of Social
Sec., 631 F.3d 1176, 1179 (11th Cir.2011) ; Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir.1997). In order to disregard a treating physicians’ opinion, the ALJ “must
articulate [the] reasons” for doing so. Winschel, 631 F.3d at 1179. The fact that the
treating physician’s opinion is contradicted by a non-examining physician is not good

10

cause for rejecting the treating physician’s opinion in favor of the non-examining
physician’s opinion. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.1988).
Having considered the medical records above, including the opinions of Dr.
Calhoun, Dr. Bailey and Dr. Reddy, and then finding that the plaintiff could perform
a limited range of light work, the ALJ thus discounted both of the plaintiff’s treating
physicians and the consultative examiner. The ALJ’s logic for such a conclusion
included that plaintiff’s pain management doctor did not provide limitations based on
COPD, and her doctor who treats her for COPD does not do more than provide
medication (R. 18-19). Additionally, the ALJ found fault with Dr. Bailey’s opinion
that “pain is present to such an extent as to distracting to adequate performance of
daily activities or work” because the plaintiff did not specifically state that very thing
in her Function Report (R. 19).
The plaintiff’s Function Report, so relied on by the ALJ, contains the following
allegations by the plaintiff:
I get up take my pain pill before I can even get around. I lay in bed alot
(sic), watch T.V. I have to lay so long than I have to sit so so, mine left
hip is awful, I can’t breath without my inhaler. I can’t breath long
enough to wash my hair.
(R. 160). As to her sleep, the plaintiff states “I wake up can’t breath, mine back and
hips hurt so bad, sometimes I’m up for 2 hours” (R. 161). As far as meal preparation,
which the ALJ determined the plaintiff did, she states she is “limited, because of
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breathing, and back pain, even my neck hurts if I’m trying to do the things I can’t. (R.
162). Similarly, as to the cleaning and laundry activities the ALJ found the plaintiff
performed, she stated, “About 2 pm in the day I feel half good enough to wash my
cloth’s and try to do what I can” but then added “When I’m doing anything, I have
to take a break [every] 20 or 30 min.” (R. 162). She added that family members help
her out a lot (R. 162).
The ALJ’s use of the above statements to reach a determination that the
plaintiff “has admitted to being able to perform various activities such as meal
preparation, laundry, dishwashing, sweeping and grocery shopping” (R. 17)
completely misconstrues plaintiff’s testimony and Function Report.

More

importantly, the plaintiff’s statements do not provide any basis to find her treating
physicians’ opinions inconsistent with the evidence of record. Rather, the ALJ chose
to ignore their opinions, ignore the Function Report and ignore plaintiff’s testimony,
and pick and choose at Dr. Reddy’s opinion to support his own opinion regarding
what the plaintiff could do. In other words, once the ALJ eliminated all of the
evidence in the record, he then determined there was no evidence which supported
the limitations the plaintiff alleged.
Applying the Eleventh Circuit pain standard to assess the plaintiff’s credibility
regarding her symptoms, the court finds evidence of underlying medical conditions
with objectively determined medical conditions that can reasonably be expected to
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give rise to the claimed pain. See Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th
Cir.2002). No doctor has opined that the plaintiff was exaggerating her symptoms,
shortness of breath, or pain and limitations arising from her degenerative disc disease.
20 C.F.R. § 404.1529 provides that once such an impairment is established, all
evidence about the intensity, persistence, and functionally limiting effects of pain or
other symptoms must be considered in addition to the medical signs and laboratory
findings in deciding the issue of disability. Foote v. Chater, 67 F.3d 1553, 1561 (11th
Cir.1995). “When evaluating a claimant’s subjective symptoms, the ALJ must
consider the following factors: (i) the claimant’s daily activities; (ii) the location,
duration, frequency, and intensity of the [claimant’s] pain or other symptoms;
(iii)[p]recipitating and aggravating factors; (iv) the type, dosage, effectiveness, and
side effects of any medication the [claimant took] to alleviate pain or other symptoms;
(v) treatment, other than medication, [the claimant] received for relief ... of pain or
other symptoms; and (vi) any measures the claimant personally used to relieve pain
or other symptoms.’” Leiter v. Commissioner of Social Security Administration, 377
Fed.Appx. 944, 947 (11th Cir.2010), quoting 20 C.F.R. §§ 404.1529(c)(3); see also
SSR 96–7p (“In recognition of the fact that an individual's symptoms can sometimes
suggest a greater level of severity of impairment than can be shown by the objective
medical evidence alone, 20 CFR 404.1529(c) and 416.929(c) describe the kinds of
evidence ... that the adjudicator must consider in addition to the objective medical
13

evidence when assessing the credibility of an individual’s statements[.]” (emphasis
supplied)).
Here, the ALJ engaged in none of this analysis. He did not consider that
plaintiff takes five ten milligram Lortab daily to help control her pain, he did not
consider her testimony that she has to frequently stop and rest to perform activities
such as washing dishes, that she lies down often during the day, or that she takes
breathing treatments which are time consuming and sometimes make her dizzy.
Failing to engage in any of the relevant analysis, the ALJ merely applied a
“pick and choose and eliminate it all” method to determine the plaintiff’s severe
ailments, and to support the limitations to the VE in his hypothetical he seemingly
crafted out of thin air. While some of the given limitations may be grounded on a
finding that the plaintiff is limited in her ability to perform work related activity due
to her back, the court can only guess. The ALJ’s determination that the plaintiff can
carry 10 pounds frequently, stand and walk for two hours each in an eight hour work
day, sit for six hours in an eight hour work day, frequently climb, balance stoop,
kneel, crouch and crawl, but only occasionally push and pull with her arms and legs
has no basis in the record, unless the ALJ both credited and discredited the severity
of the plaintiff’s degenerative disc disease. Furthermore, this seemingly ignores Dr.
Reddy’s finding that the plaintiff was wholly unable to squat, and noted on the
accompanying range of motion chart the limitations in her knees (R. 297).
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Significantly, Dr. Reddy opined, based upon his review of her records, the degree of
plaintiff’s degenerative disc disease was “marked.” Accordingly, under the facts of
this case, the ALJ’s RFC determination is not substantially supported.
Having disposed of all of the medical evidence by doctors who actually
examined the plaintiff, the ALJ cites the opinion of Deborah Wright, the DDS Single
Decision Maker, states he did not rely on it as a medical opinion, and then states he
gave “it such weight as is consistent with this opinion. The SDM found the claimant
capable of performing less than the full range of light work with some postural and
environmental limitations.... This opinion is consistent with my findings...” (R. 19).
Thus, it is really only his own medical opinion on which the ALJ relies.
This court finds that the records of the treating and consultative physicians in
evidence support each other. No medical evidence contradicts these physicians’
conclusions, and none of them opined that the plaintiff was malingering. Rather, they
demonstrate that each of the plaintiff’s treating physicians took her complaints
seriously and have tried to treat plaintiff’s symptoms to provide her with pain and
breathing relief. The court finds the record devoid of substantial evidence to support
the decision of the ALJ. The Commissioner’s “failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the proper
legal analysis has been conducted mandates reversal.” Cornelius v. Sullivan, 936
F.2d 1143, 1145-1146 (11th Cir.1991).
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“[A]s a hearing officer [the ALJ] may not arbitrarily substitute his own hunch
or intuition for that of a medical professional.” Marbury v. Sullivan, 957 F.2d 837,
840-41 (11th Cir.1992). See also Graham v. Bowen, 786 F.2d 1113, 1115 (11th
Cir.1986). The ALJ cannot arbitrarily reject uncontroverted medical testimony.
Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982); see also Flynn v. Heckler,
768 F.2d 1273, 1275 (11th Cir. 1985). He also cannot reject the treating physicians’
opinions in favor of a non-examining doctor. “A corollary to the treating physician
rule is that the opinion of a non-examining doctor by itself cannot constitute the
contrary substantial evidence required to override the treating physician’s diagnosis.”
Hidalgo v. Bowen, 822 F.2d 294, 297 (2nd Cir.1987); citing Strickland v. Harris, 615
F.2d 1103, 1009 (5th Cir.1980) (“the reports of physicians who did not examine the
claimant, taken alone, would not be substantial evidence on which to base an
administrative decision).
By inferring that the plaintiff was able to work from his selective review of the
evidence, the ALJ substituted his opinion for that of all of the medical reports in the
file. The ALJ did not consider all of the evidence that was introduced. His finding
that the plaintiff is not disabled is against the substantial weight of the evidence.
Conclusion
When evidence has been fully developed and unequivocally points to a specific
finding, the reviewing court may enter the finding that the Commissioner should have
16

made. Reyes v. Heckler, 601 F.Supp. 34, 37 (S.D.Fla.1984). Thus, this court has the
authority under 42 U.S.C. §405(g) to reverse the Commissioner’s decision without
remand, where, as here, the Commissioner’s determination is in plain disregard of the
overwhelming weight of the evidence. Davis v. Shalala, 985 F.2d at 534; Bowen v.
Heckler, 748 F.2d 629, 636 (11th Cir.1984).

Here, the ALJ has disregarded the

evidence in the record . Based on the lack of substantial evidence in support of the
ALJ’s findings, it is hereby ORDERED that the decision of the Commissioner is
REVERSED. This case is REMANDED to the Agency to calculate the plaintiff’s
monetary benefits in accordance with this Opinion.
DONE and ORDERED the 12th day of February, 2014.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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