Waits v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 2/20/13. (ASL)
2013 Feb-20 PM 03:00
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
KELLY ANN WAITS,
MICHAEL J. ASTRUE,
Commissioner of the Social
The plaintiff appeals from the decision of the Commissioner of Social Security
denying her Disability Insurance Benefits The case is now properly before the court. See
42 U.S.C. § 405(g).
At the time of the hearing before the Administrative Law Judge (“ALJ”), the plaintiff
was 41 years old and had earned a G.E.D (R. 55). She also had cosmetology courses, but
did not complete the program (R. 69). The plaintiff alleges an inability to work due to back
pain, degenerative disc disease, leg pain, hip pain and bilateral carpal tunnel syndrome (R.
166). She alleges back pain which radiates into her hip, leg and knee, for which she is
prescribed methadone, Percocet, Ambien and Xanax (R. 62-63). The medications cause
her to be sleepy, and Xanax makes her slur (R. 62). She alleges her pain averages
between 6 and 8, but with medication it is 4 to 6 (R. 66). The plaintiff stated she did a very
limited range of housework (R. 67).
According to the plaintiff, she is unable to work because of the number of days she
is absent due to pain (R. 73). She believes she could lift ten pounds, but not 20 (R. 73-74).
She has trouble standing in one spot and has to move around, can walk for 10 to 15
minutes before she has to sit down, and can sit for 30 minutes to an hour before she needs
to get up (R. 74-75). She has problems gripping objects due to numbness in her fingers
(R. 76). Since 2005, the plaintiff has attempted eight different jobs but was unable to do
any of them for more than a month or two (R. 81-82).
According to the Vocational Expert (VE), the plaintiff’s past work ranged from
medium to sedentary and semi-skilled to unskilled (R. 84-86). The VE testified that the
only transferrable skills the plaintiff had were clerical in nature. Asked if a person of the
plaintiff’s age, education and work experience, who was limited to light work, with mild
restrictions in concentration, persistence and pace, and other areas of functioning, could
perform the plaintiff’s past work, the ALJ stated that work as a sales clerk, loan clerk and
cashier would be available (R. 86-87).
Other unskilled jobs such as assembler,
cleaner/polisher, and buffing machine tender would also be available (R. 87-88). When
the limitations claimed by plaintiff were considered by the VE as well, the VE stated there
would be no work available (R. 88-89).
The ALJ found that the plaintiff’s only severe impairment was “disorders of the back”
(R. 32), but that the same was not an impairment listed in, or medically equal to, any of
those listed in Appendix 1 of Subpart P, 20 CFR Part 404 (R. 33). The ALJ determined
that the plaintiff could not return to past relevant work, but could perform other jobs which
exist in significant numbers in the national economy, mandating a finding of not disabled
This court’s role under the Social Security Act is a narrow one. The scope of its
review is limited to determining: 1) whether there is substantial evidence in the record as
a whole to support the findings of the Commissioner, and 2) whether the correct legal
standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S. Ct.
1420, 28 L. Ed. 843 (1971); Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The
Court may not decide facts, reweigh evidence, or substitute its judgment for that of the
Commissioner. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
However, this limited scope does not render affirmance automatic,
for “despite [this] deferential standard for review of claims . . . [the] Court
must scrutinize [the] record in its entirety to determine reasonableness of the
decision reached.” Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
Lamb, 847 F.2d at 701. Moreover, failure to apply the correct legal standards is grounds
for reversal. See Bowen v. Heckler, 748 F.2d 629, 634 (11th Cir. 1984).
The plaintiff asserts that the ALJ failed to give appropriate weight to the opinion of
Dr. Aggarwal as plaintiff’s treating physician and further failed to obtain a consultative
examination. Plaintiff memorandum (doc. 9) at 7-10. The court also notes that the ALJ
did not consider the plaintiff’s complaints of pain under the Eleventh Circuit pain standard,
did not mention the plaintiff’s diagnosis of bilateral carpal tunnel syndrome, and failed to
find any limitation or even impairment based on mental status.
The ALJ found:
In terms of the claimant’s alleged disorders of the back, there is very little
medical treatment in the this file. The majority of the treatment records are
pain management records. While Dr. Aggarwal provided a disabling opinion,
his treatment records reflect that the claimant is doing well with pain
medications and is happy with her results. Furthermore, she reports no side
effects from this medication. While the claimant has some limitation due to
pain, she is only mildly restricted. Her neck has improved and she is making
acceptable progress. The treating physician reports that her motor strength
is 5/5 bilaterally. She does walk with a slow gait but otherwise she has no
more than mild restrictions or limitations associated with her back disorders
As for the opinion evidence, the undersigned has considered the opinion of
the treating physician, Dr. Aggarwal. Although Dr. Aggarwal has a (sic)
treated the claimant, the undersigned finds his opinion inconsistent with the
record as a whole and furthermore that this opinion is inconsistent with his
own reports and treatment of the claimant, which renders this opinion less
persuasive. The undersigned finds substantial evidence inconsistent with
the assessment of Dr. Aggarwal. There is no physical assessment
performed by a state agency physician. The undersigned has considered
the state agency physician’s mental assessment. This opinion is consistent
with that determined in this decision and is weighed as a statement from a
non-examining expert source.
Despite the ALJ’s pronouncement that he finds “substantial evidence inconsistent
with the assessment of Dr. Aggarwal,” the court finds no other medical records from the
time period during which the plaintiff has been treated by Dr. Aggarwal. The medical
records in the file reflect that in April 2009 the plaintiff was seen for bilateral hand pain,
tingling numbness and weakness, left leg pain, tingling and weakness and left foot pain,
tingling and weakness (R. 329). Her past history of back surgeries was noted, as were the
current x-rays showing moderate degenerative disc disease in her cervical lumbar spine
with multi-level spondylosis and stenosis (R. 329-330). The plaintiff was then referred to
Dr. Aggarwal for pain management (R. 335). At the time, her pain was reflected as a 7 out
of 10 currently becoming a 9 out of 10 at its worst (R. 335). Upon examination, Dr.
Aggarwal noted moderate tenderness in the paraspinal muscles and a 25% limitation in
range of motion (R. 336). She was diagnosed with chronic low back pain due to arthritis
and failed back syndrome as well as carpal tunnel syndrome (R. 337). The court finds no
records which contradict Dr. Aggarwal’s findings, and no records which suggest any
treatment other than pain management has been recommended or is available to the
In support of medical records and allegations that the plaintiff has bilateral hand
pain, numbness and weakness are records of a nerve conduction study in July 2002 which
found carpal tunnel syndrome bilaterally, worse on the right (R. 298-300). Further nerve
conduction studies in April 2009 found nonspecific sensory neuropathy and a possible
median neuropathy in the right wrist (R. 315). Dr. Michael Dick noted the plaintiff’s findings
were consistent with carpal tunnel, lumbar radiculopathy, foot drop and nerve root
compression (R. 320). Despite the objective medical evidence of carpal tunnel syndrome,
the ALJ included no limitations on the plaintiff’s use of her hands in his hypothetical
questions to the VE.
In support of plaintiff’s complaints of back pain and Dr. Aggarwal’s treatment of the
same with narcotic pain medication, a series of x-ray on April 3, 2009, found disc space
narrowing at C6-7 and L3-4, L4-5, and L5-S1 suspicious for degenerative disc disease (R.
330). On May 28, 2009, Dr. Aggarwal noted that the plaintiff rated her pain as a 7 out of
10, which increased to a 9 out of 10 (R. 335). The plaintiff related that her pain was made
worse by coughing, bending, lifting, sitting and standing for prolonged periods, and eased
by rest and medication (R. 335). Dr. Aggarwal found moderate tenderness in the plaintiff’s
paraspinal muscles and her range of motion limited by 25% (R. 336). He noted her motor
strength was normal but sensation was diminished and that she walked with a slow gait (R.
336). Thus, he formed the diagnoses stated above and prescribed Methadone and
Percocet for breakthrough pain, as well as Ambien and Xanax for help sleeping and for
anxiety (R. 337). The June 2009 record from Dr. Aggarwal reflects that the plaintiff was
receiving benefit from the medications, but still had breakthrough pain (R. 360). In July
2009, November 2009, and February 2010, Dr. Aggarwal noted that the plaintiff had good
days and bad days, but was benefitting from the medication without side effects, and listed
plaintiff’s diagnosis as chronic pain syndrome (R. 357-359).
In July 2010 Dr. Aggarwal opined by letter that the plaintiff suffers from chronic low
back pain from arthritis and disc disease, and failed back syndrome with a history of two
prior back surgeries (R. 364). In his opinion, the plaintiff should lift no more than 10
pounds on an occasional basis, should not climb ladders or work at unprotected heights,
and in his opinion she could not work, due to chronic severe pain. Id. Despite this
limitation against lifting more than ten pounds occasionally, the ALJ ignored the same in
his hypothetical questions to the VE and in fact adopted a functional capacity for the
plaintiff which greatly exceeded this limitation.
Having considered the medical records, the court finds that the ALJ should have
applied the Eleventh Circuit pain standard in assessing the plaintiff's credibility. That
standard requires the ALJ to consider whether there is "(1) evidence of an underlying
medical condition; and (2) either (a) objective medical evidence confirming the severity of
the alleged pain; or (b) that the objectively determined medical condition can reasonably
be expected to give rise to the claimed pain." Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th
Cir.2002). Here, there is evidence of an underlying medical condition, objectively
determined, that "can reasonably be expected to give rise to the claimed pain."
Compounding the error, no medical opinion supports the limitations adopted by the
ALJ. No medical opinion regarding the plaintiff's ability to perform work, other than the very
limiting opinion of Dr. Aggarwal, appears anywhere in the record before this court. The
ALJ gives little weight to the Dr. Aggarwal’s opinion as it is “inconsistent with the record as
a whole,” but fails to identify any contradiction in the medical records or within Dr.
Aggarwal’s own records (R. 35).
For reasons wholly unexplained by the ALJ, he determined that the plaintiff could
perform none of her past work, which was within the limitations he set forth, but found other
light level jobs the plaintiff could perform. As stated above, after rejecting the opinion of
Dr. Aggarwal, and noting no other such opinions were in the record, the ALJ then found the
plaintiff could do a limited range of light work. However, the hypotheticals posed to the VE
failed to take medically confirmed limitations of the plaintiff into account. Although a
consultative examination including opinions regarding the plaintiff's limitations would have
been of great help given the record in this case, none was obtained.
The ALJ always has an affirmative duty to develop a fair, full record. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir.1997). In some cases, this duty extends to obtaining
a consultative examination when the same would be of benefit in the administrative
process. See e.g., 20 C.F.R. §§ 404.1517; 416.917. The failure of an ALJ to order a
consultative examination, when such an evaluation is necessary to make an informed
decision, constitutes justifiable cause for a remand to the Commissioner. Reeves v.
Heckler, 734 F.2d 519, 522 n.1 (11th Cir.1984).
In spite of having no consultative examination upon which to rely, the ALJ also
rejected the opinions of the plaintiff's treating physician. Under Eleventh Circuit precedent,
the ALJ must provide "good cause" for rejecting a treating physician's medical opinions.
See Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997); Winschel v. Commissioner
of Social Sec., 631 F.3d 1176, 1179 (11th Cir.2011) (Absent "good cause," an ALJ is to give
the medical opinions of treating physicians "substantial or considerable weight."); see also
20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). In order to disregard a treating
physician's opinion, the ALJ "must clearly articulate [the] reasons" for doing so. Winschel,
631 F.3d 1176 at 1179. A statement that the ALJ carefully considered all the testimony
and exhibits is not sufficient. Because the ALJ gave little weight to the only medical
opinion in the record, the court finds a remand is necessary for the ALJ to explicitly
consider, and explain the weight accorded to, that opinion. See e.g., Winschel, 631 F.3d
After applying the "pick and choose" method to determine plaintiff's "severe"
ailments, the ALJ seemingly crafted limitations to the VE in his hypothetical 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 activities due to her back, the ALJ’s complete lack of
recognition of other limitations undermines any basis for the hypotheticals so posed to the
VE. For example, the ALJ ignored the plaintiff’s complaints of disabling pain, ignored the
diagnostic testing which confirmed bilateral carpal tunnel syndrome, and ignored repeated
references in the medical records to anxiety and depression. Thus, the hypothetical did
not reflect all of the plaintiff's limitations as required. See e.g., Smith v. Social Security
Admin., 272 Fed.Appx.789, 800 (11th Cir.2008), citing Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir.1999) ("to constitute substantial evidence, the VE's testimony must be based on
a hypothetical posed by an ALJ which encompasses all of the claimant's impairments");
Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.2002). Therefore, the ALJ's finding,
based on the VE's testimony, that there were jobs the plaintiff could perform, is not
supported by substantial evidence because the hypothetical was incomplete. See Jones
v. Apfel, 190 F.3d at 1229, cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644
(2000) (“the VE's task, therefore, is to determine whether there are jobs in the region which
the claimant can perform with her precise disabilities or limitations”).
The plaintiff seeks to have this court either award benefits or remand to require
consideration of new evidence. A court may reverse for an award of benefits in two narrow
circumstances: 1) where the Commissioner has already considered all the essential
evidence and the cumulative effect of the evidence establishes disability without any doubt;
and 2) where a claimant has suffered an injustice. See Davis, 985 F.2d at 534; Walden,
672 F.2d at 839. Based on the record and the ALJ's decision, the court finds the proper
remedy is a remand to the ALJ for further proceedings. Specifically, the court is of the
opinion that the plaintiff should be afforded a new hearing, including VE testimony to
include relevant hypotheticals comprised of plaintiff's impairments, further consideration
of the evidence, proper application of the law, and further development of the record,
including a consultative examination should the plaintiff's physical limitations remain in
question upon remand.
Based on the above stated reasons, it is ORDERED that the decision of the
Commissioner is REVERSED and this case is REMANDED to the Agency for further action
consistent with this opinion, as set forth herein.
Done, this 20th of February, 2013.
INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE
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