Lane v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 10/14/14. (SAC )
2014 Oct-14 PM 04:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CIVIL ACTION NO.
CAROLYN W. COLVIN, Acting
Commissioner of Social
April Lane brings this action pursuant to 42 U.S.C. § 405(g),
denying her applications for supplemental security income and
disability insurance benefits. Lane timely pursued and exhausted
the administrative remedies available to her before the Social
Security Administration. Based on the court’s review of the record
and the briefs submitted by the parties, the court finds that the
Commissioner's decision must be reversed and the action remanded to
the Commissioner for an award of benefits.
STATUTORY AND REGULATORY FRAMEWORK
claimant must, inter alia, show that she is disabled. 42 U.S.C. §§
423(a)(1)(D), 1381a (2012). A person is disabled if she is unable
“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 12 months.” 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (2012). To determine if a
claimant is disabled, the Social Security Administration employs a
416.920(a)(4)(i)-(v). A conclusive finding may be made at each
step; if not, the Commissioner’s review continues to the next step.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
First, the Commissioner must determine whether the claimant is
currently engaged in any substantial gainful activity. If so, the
416.920(a)(4). Second, the Commissioner must determine whether the
claimant has “a severe medically determinable physical or mental
impairment” expected to result in death or to last at least one
404.1520(a)(4)(ii), 416.920(a)(4)(ii). Third, the Commissioner must
determine if any of the claimant’s impairments meets or exceeds the
requirements of an impairment within the Listing of Impairments,
found at 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, the
If the Commissioner has not made a conclusive determination
after the third step, she must assess the claimant’s Residual
416.920(a)(4). The RFC measures the claimant’s ability to work in
Fourth, the Commissioner must determine if the claimant’s RFC
allows her to perform her past relevant work. If so, the claimant
416.920(a)(4)(iv). Fifth, the Commissioner must determine whether
there exist a significant number of jobs in the national economy
that the claimant’s RFC allows her to perform. 20 C.F.R. §§
404.1520(a)(4)(v), 404.1560(c), 416.920 (a)(4)(v), 416.960(c). If
a significant number of such jobs exist, the claimant is not
disabled; if not, she is disabled. Id.
supplemental security income on August 11, 2009. (R. at 128-36).
She alleges that she became disabled on July 20, 2009. (R. at 145).
Lane testified that she is unable to work primarily due to pain in
her right shoulder (resulting from a herniated disc), pain in her
hips (resulting from fibromyalgia), and migraine headaches. (R. at
40, 52). According to Lane, the pain in her shoulder and hips often
preparing meals impossible, and her frequent migraines, including
three to four per month that are uncontrollable, often force her to
lie down in a dark room. (R. at 32, 40). Lane testified that her
pain, on a zero to ten scale, is a six or seven daily, and she
cannot carry on her daily activities seven to ten days in any given
month because of the pain. (R. at 41-42).
After the hearing, the ALJ found that Lane is not disabled.
(R. at 11). She began with conceding that Lane has not engaged in
substantial gainful activity since the onset date, and that she
listing. (R. at 12-13). The ALJ next determined Lane’s Residual
Functional Capacity, which she listed as follows:
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), lifting and carrying up to 20 pounds
occasionally and up to 10 pounds frequently. She would
require an option to sit and stand during the workday,
for 1-2 minutes every hour or so and could stand and walk
an hour at a time. She can occasionally push and pull
with her upper extremity and can occasionally reach
overhead. She should avoid concentrated exposure to cold
temperatures, dampness, and vibration. She would be
limited to occupations, which do not require climbing of
ropes, ladders, or scaffolding. She would not be able to
tolerate a lot of stress and may miss one day a month due
to her physical or mental problems.
(R. at 13-14). To the extent Lane’s testimony contradicted this
finding, the ALJ found the testimony not credible. (R. at 14).
Based on the RFC finding, the ALJ found that Lane is capable
representative, a hotel desk clerk, and a hotel night auditor.” (R.
at 17). The ALJ consequently found Lane not to be disabled. (R. at
A. Standard of Review
“[R]eview of the Commissioner’s decision is limited to an
inquiry into whether there is substantial evidence to support the
findings of the Commissioner, and whether correct legal standards
were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). Review of the Commissioner’s factual findings is highly
deferential; “[i]f the Commissioner’s decision is supported by
preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004) (quoting Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996)). “Substantial evidence is more than a
scintilla, but less than a preponderance. It is such relevant
evidence as a reasonable person would accept as adequate to support
a conclusion.” Bloodsworth v. Heckler, 703 F.3d 1233, 1239 (11th
Cir. 1983). “A ‘substantial evidence’ standard, however, does not
permit a court to uphold the [Commissioner's] decision by referring
only to those parts of the record which support the ALJ. A
reviewing court must view the entire record and take account of
evidence in the record which detracts from the evidence relied on
by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.
[Commissioner's] findings of fact, the [Commissioner's] conclusions
of law, including applicable review standards, are not presumed
valid.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
Such conclusions of law are reviewed de novo. Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). “The
[Commissioner's] failure to apply the correct legal standards or to
determination that proper legal principles have been followed
mandates reversal.” Martin, 894 F.2d at 1529.
B. The Pain Standard
Lane only challenges one aspect of the ALJ’s ruling — whether
the ALJ failed to evaluate properly Lane’s subjective testimony
regarding her symptoms. Eleventh Circuit precedent “requires that
an ALJ apply a three part ‘pain standard’ when a claimant attempts
to establish disability through his or her own testimony of pain or
other subjective symptoms.” Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995).
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
determined medical condition is of such a severity that
it can be reasonably expected to give rise to the alleged
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The
standard seeks to ensure that objective medical evidence confirms
symptoms complained of by the plaintiff.
If the plaintiff’s testimony satisfies this standard, the ALJ
explicit and adequate reasons for doing so,” Foote, 67 F.3d at
1561-62, and “such articulation of reasons by the [Commissioner
must] be supported by substantial evidence,” Hale v. Bowen, 831
F.2d 1007, 1012 (11th Cir. 1987). “Failure to articulate the
reasons for discrediting subjective testimony,” or a failure to
support those reasons by substantial evidence, “requires, as a
matter of law, that the testimony be accepted as true.” Wilson, 284
F.3d at 1225.
determinable impairments could reasonably be expected to cause the
alleged symptoms,” thus satisfying the requirements of the pain
subjective testimony was not credible because it was inconsistent
with the ALJ’s RFC finding. (R. at 14). Lane contends that the
ALJ’s refusal to properly credit her testimony is not supported by
substantial evidence. Although the ALJ cited two reasons in support
Commissioner’s decision is due to be reversed.
1. Lane’s Daily Activities
The ALJ stated in her decision, “The claimant has alleged an
inability to work, but has continued to show an ability to perform
a wide range of daily activities.” (R. at 14). The Commissioner is
expressly permitted to consider a claimant’s daily activities when
416.929(c)(3)(i). Evidence of daily activities is a proper basis to
disabling symptoms would allow. See, e.g., Leiter v. Comm’r of Soc.
Sec. Admin., 377 Fed. App’x 944, 948 (11th Cir. 2010) (finding that
the claimant’s work two days a week as a substitute teacher was not
consistent with her assertion that she was unable to perform even
Numerous courts in this circuit, however, have found that
“participation in everyday activities of short duration” does not
decisions relying on such participation to discredit the claimant.
Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997); see also
Early v. Astrue, 481 F. Supp. 2d 1233, 1238-39 (N.D. Ala. 2007)
(finding that doing house and yard work, caring for pets, grocery
activities upon which to discredit the claimant’s testimony);
Horton v. Barnhart, 469 F. Supp. 2d 1041, 1046-47 (N.D. Ala. 2006)
cooking, reading, watching television, caring for personal needs,
testimony); Stewart v. Astrue, 551 F. Supp. 2d 1308, 1321 (N.D.
Fla. 2008) (“Activities of daily living are often not substantial
evidence in the record to discount a claimant's testimony, and the
ALJ should proceed with caution in relying upon them to discredit
a claimant.”). “It is the ability to engage in gainful employment
household chores or drive short distances.” Early, 481 F. Supp. 2d
activities in her August 2009 Adult Function Report to show that
Lane’s activities undermine her pain testimony. From this report,
the ALJ stated that Lane is able to take care of her personal
needs, care for her children, prepare meals, do housework and
laundry, drive, shop, pay bills, count change, watch television,
and cross-stitch. (R. at 14).
A review of the record, however, demonstrates that Lane’s
daily activities are not as substantial as the ALJ claimed. The ALJ
seemed willing to accept Lane’s listing of activities but ignored
improper. See Horton, 469 F. Supp. 2d at 1047 (“The ALJ’s selective
description of the plaintiff’s activities is disingenuous, as he
description of them.”); see also Tieniber, 720 F.2d at 1253 (“A
‘substantial evidence’ standard, however, does not permit a court
to uphold the [Commissioner's] decision by referring only to those
parts of the record which support the ALJ. A reviewing court must
view the entire record and take account of evidence in the record
which detracts from the evidence relied on by the ALJ.”).
For example, in Lane’s Adult Function Report, she stated that
she will clean the house “if able”; she receives help from her
grandmother and neighbor with taking care of her children and doing
housework; she usually only prepares cereal, sandwiches, frozen
dinners, or canned food for meals, while cooking a complete meal
“once in a blue moon”; and she sometimes cannot go outside or drive
on her own. (R. at 162-66). Further, Lane testified that her
children; she cannot get her children ready for school or drive
them once or twice a week because of her pain; and she usually
cannot vacuum, sweep, or mop. (R. at 33, 43, 44).
The ALJ, however, did not mention or discuss this evidence.
ignored any conditions or limitations placed on the listings, and
found that “[t]he level of activities reported by . . . the
claimant . . . [is] inconsistent with disabling limitations.” (R.
The ALJ did cite Lane’s testimony that she was no longer able to go
boating, bowling, or riding on all-terrain vehicles (R. at 14), but this does
not excuse omission of the other key facts.
at 15). Because of this omission, the ALJ did not properly explain
how Lane’s activities contradict her testimony concerning her pain
and inability to work. Therefore, the court finds that the ALJ’s
reliance on Lane’s daily activities to discredit her subjective
testimony is not supported by substantial evidence.
2. Support of the Alleged Limitations by Medical Records
The ALJ also discredited Lane’s subjective testimony because
“medical evidence has not supported the limitations alleged by the
claimant.” (R. at 15). The ALJ discussed Lane’s medical history and
symptoms chronologically and determined that, overall, the medical
evidence did not support Lane’s testimony. For purposes of review,
this court will organize and examine the ALJ’s findings by the
a. Non-Disabling Impairments
First, the ALJ mentioned several different records that relate
to impairments other than Lane’s herniated disc, fibromyalgia, and
migraines. These include (1) a hysterectomy; (2) diverticulosis and
colitis causing abdominal pain; (3) an arachnoid cyst; (4) chronic
disabling (R. at 52-53), so evidence regarding the lack of severity
of these conditions does not discredit Lane’s testimony regarding
fibromyalgia, and migraines.
inconsistent in regard to her smoking cessation. At the ALJ hearing
on May 24, 2011, Lane testified as follows:
Q: [H]ow much tobacco are you using on a daily basis?
approximately two months ago, when Dr. Neuthy diagnosed
me with the COPD, he explained to me, you know, the full
cigarettes the past couple days because my little boy’s
been in the hospital.
(R. at 38). The ALJ also pointed out that Lane’s treatment records
from Central North Alabama Health Services list “smoking” as an
assessment during her April 8, 2011, visit (R. at 347), which was
less than two months prior to the ALJ hearing, contradicting her
testimony. Based on this evidence, the ALJ found that “[h]er
inconsistencies limit her credibility.” (R. at 17).
While this statement does have some impact on her credibility,
this court is unable to find that it, standing alone, rises to the
level of substantial evidence upon which to disbelieve her entire
pain testimony, for two reasons: (1) this is not a case in which
smoking contributed to Lane’s allegedly disabling limitations, so
it does not represent “a conscious lifestyle choice which is
inconsistent with a finding of disability,” Seals v. Barnhart, 308
F. Supp. 2d 1241, 1248 (N.D. Ala. 2004); and (2) it is possible
that Lane was not being intentionally untruthful — her quoted
testimony does not necessarily contradict itself, and she may have
simply mistaken the timeframe of the last doctor’s visit by a week
“approximately”). If she did indeed quit routinely smoking after
discussing the hazards with her doctor, as she testified (R. at
39), this is an excusable error. Thus, while the evidence does not
necessarily reflect well on her credibility, it is not substantial
evidence sufficient to discredit the entirety of Lane’s subjective
testimony. See Bloodsworth, 703 F.3d at 1239 (“Substantial evidence
is . . . . such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.”).
b. Herniated Disc
Lane was diagnosed with a herniated disc on February 19, 2009.
(R. at 272). The ALJ found Lane’s alleged limitations caused by the
herniated disc unsupported by medical evidence for three reasons:
(1) Lane did not pursue the rehabilitation therapy recommended by
her physician in May 2009; (2) she did not see a doctor for her
pain at all between July 2009 and August 2010; and (3) she did not
report pain due to the herniated disc during her 2011 visits to
Central North Alabama Health Services.
attention, and such failure may be a proper basis to discredit a
claimant’s subjective testimony, since a person suffering from
disabling symptoms would normally seek regular treatment. See Dyer
v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (discrediting
claimant’s subjective pain testimony because he “often went for
2693387, *8 (M.D. Ala. July 7, 2011) (finding that the claimant’s
lack of ongoing medical treatment and wide gaps in such treatment
experiencing physical and/or mental difficulties to a disabling
degree, she would have presented to her physicians for ongoing
The ALJ’s cited reasons, however, are not a proper basis to
entirely discredit Lane’s testimony, because they are not supported
by substantial evidence. First, the ALJ noted Lane’s failure to
pursue the rehabilitation therapy suggested by her physicians at
Harris Neurological Associates. (R. at 15). While an unexplained
failure to seek treatment could show that Lane’s symptoms are not
as severe as she alleges, the ALJ failed to note that a different
reason for refusing treatment is evident from the medical record.
In the same treatment note in which rehabilitation therapy was
suggested, the nurse practitioner noted that Lane was unable to
attend the therapy because she had no one available to look after
her daughter during the hour-long sessions, which were to occur
three times a week for four to six weeks. (R. at 266-67). Thus,
while a discrediting inference could arise from this type of
evidence, the record is clear that no such inference should arise
in this case, since Lane declined rehabilitation for a reason
entirely separate from the lack of severity of her condition.
Second, the ALJ pointed to a gap in Lane’s treatment of her
herniated disc, namely that she did not seek any medical treatment
for her pain from July 2009 to August 2010. (R. at 16). The ALJ
relied heavily on this gap to discredit Lane’s testimony as to all
of her symptoms, but the ALJ once again ignored Lane’s explanation.
At the outset of the hearing, the ALJ expressed her concern with
the gap in treatment, and Lane testified that Dr. Harris left the
area and closed his practice after her last visit. Before leaving,
however, he gave her enough prescription refills (a three-months’
supply) to last until her visit to Central North Alabama Health
Services in August 2010. (R. at 27). There is no documentation in
the record for these prescription refills, but they likely occurred
treatment less substantial, but the ALJ did not note the testimony
in her decision, even while placing nearly controlling weight on
the gap. Just as with the lack of rehabilitation therapy, this
unacknowledged explanation for the gap in treatment undercuts the
assumption that the alleged failure to seek treatment occurred
because Lane’s condition does not warrant treatment, so it is not
substantial evidence upon which to discredit her testimony.
Finally, the ALJ noted that the 2011 treatment records from
Central North Alabama Health Services do not mention back pain or
other pain related to Lane’s herniated disc. (R. at 16-17). While
the statement is true, this is not substantial evidence upon which
to disbelieve Lane’s testimony, for two reasons. First, while these
three particular records do not mention Lane’s herniated disc, the
record is replete with complaints of pain and treatment for this
impairment. In 2009-10, Lane was treated at least seven times for
her herniated disc. (R. at 264, 266, 268, 272, 352, 354, 356).
Particularly because the last such visit occurred in December 2010,
this court cannot allow the controlling weight the ALJ gave to
three records that do not mention Lane’s herniated disc when the
rest of the medical record clearly demonstrates the severity of the
impairment. Second, Lane’s insured status expired after December
31, 2010, so the visits in 2011 are outside the pertinent time
period for evaluating her disability and are irrelevant to the
determination. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005) (“Because Moore’s last insured date was December 31,
1997, her DIB appeal requires a showing of disability on or before
that date.”). None of the reasons given by the ALJ to discredit
Lane’s testimony regarding the subjective symptoms of her herniated
disc are supported by substantial evidence.
The ALJ also discredited Lane’s subjective testimony regarding
her fibromyalgia symptoms, citing three reasons: (1) Lane did not
pursue the rehabilitation therapy recommended by her physicians at
Harris Neurological Associates (R. at 15); (2) Lane did not seek
any treatment for her pain from July 2009 to August 2010 (R. at
16); and (3) while Lane was “diagnosed with fibromyalgia, . . .
records have not supported a level of limitation that significantly
impacted her daily activities” (R. at 17). The first two cited
similarly unsupported by substantial evidence and provide no basis
to discredit Lane’s testimony.
As to the third reason, while the ALJ stated that the medical
evidence. A review of the record reveals extensive complaints of
pain and treatment for Lane’s fibromyalgia. Beginning with her
fibromyalgia pain during at least ten treatment visits, up to the
last treatment date contained in the record, on April 8, 2011. (R.
at 235, 264, 266, 268, 270, 347, 350, 352, 354, 356). She was
consistently prescribed medication to treat her fibromyalgia and
resulting pain, including powerful pain medication such as Lortab.
(Id.). The ALJ cited treatment records from February and July 2009
as evidence that her fibromyalgia is non-disabling. These records
indicate that Lane had, respectively, eight and twelve trigger
points of fibromyalgia pain, out of a possible eighteen. (R. at
15). These two records are not enough to provide substantial
support for the ALJ’s position, because Lane only complains of one
trigger point — her hips — as a source of disabling pain. During
the July 2009 visit, Lane specifically complained of hip pain (R.
at 264), while she complained of muscle aches more generally in
February (R. at 270). Therefore, any lack of trigger points is
irrelevant, and the ALJ’s contention that the medical records do
unsupported by substantial evidence.
regarding her pain caused by migraine headaches. She gave three
reasons for this conclusion: (1) Lane did not take any preventative
medication; (2) Lane’s headaches improved with treatment and could
significant improvement with her migraines in July 2009, no further
treatment for her headaches is evident from the record. In support
of the first reason, the ALJ stated that Lane “indicated her
migraines were triggered by the weather, fluorescent lights, foods,
and high pollen days, but she does not take any preventative
allergy or other medications.” (R. at 17). The ALJ, however, cited
no evidence to show that medication would actually help prevent or
control Lane’s migraines. Rather, the only relevant evidence in the
record is Lane’s testimony, in which she stated that her allergies
are not a significant cause of the headaches, and the best she can
do is to avoid the triggers or take pain medication early on. (R.
uncontrollable migraines per month. (R. at 32). Because the ALJ
seemingly operated on an assumption that preventative allergy
medication would contain Lane’s migraines without any supporting
evidence in the record, it is an improper basis upon which to
entirely disregard Lane’s testimony.
The ALJ’s remaining reasons are, however, more substantial and
persuasive. Improvement in a claimant’s condition, especially if it
leads to a discontinuation of treatment, is a sufficient basis to
improvement contradicts her complaints of pain or other symptoms.
See Green v. Soc. Sec. Admin., 223 Fed. App’x 915, 922 (11th Cir.
2007) (finding the ALJ’s discrediting of claimant’s subjective
testimony supported by substantial evidence when the claimant’s
condition steadily improved, culminating in a doctor’s instruction
to discontinue the treatment); Cooper v. Comm’r of Soc. Sec., 521
claimant’s conditions had improved, contradicting the claimant’s
The medical records show that Lane complained of migraine
headaches as early as 2006 and continuing into 2009. (R. at 15).
Records from March and July 2009, however, show marked improvement
headaches occurred three to four times per week, but this amount
dropped to twice a week in March 2009. (R. at 15). Finally, in July
2009, Lane reported that she had not had a headache in two weeks.
(R. at 15). After this reported improvement, the record reveals no
further treatment for migraines. (R. at 15-16).
differing conclusions. The ALJ found that the noted improvement in
Lane’s migraines, followed by a lack of any subsequent treatment,
undermines her claims of disabling pain from the migraines. The ALJ
reasonably thought that otherwise she would have continued to seek
treatment. (R. at 16-17). Lane, on the other hand, contends that
the migraines persisted and that the ALJ placed inordinate weight
on the July 2009 treatment records, improperly assuming that the
reported improvement continued into perpetuity. (Doc. 9 at 9). This
court need not and will not decide the migraine issue, because the
ALJ’s decision, unlike in the other instances discussed above, is
discrediting Lane’s subjective testimony concerning her migraine
42 U.S.C. § 405(g) provides that a reviewing district court
“shall have power to enter, upon the pleadings and transcript of
the record, a judgment . . . reversing the decision of the
Commissioner of Social Security, with or without remanding the case
for a rehearing.” When reversing a decision of the Commissioner the
district court may either remand the action to the Commissioner for
further proceedings, potentially including a rehearing by the ALJ,
or simply remand with the instruction that the Commissioner award
benefits to the claimant. While the statute does not provide a
standard for courts to employ, the Eleventh Circuit has stated:
Generally, a reversal with remand to the Secretary is
warranted where the ALJ has failed to apply the correct
legal standards. This court, however, may reverse the
judgement of the district court and remand the case for
an entry of an order awarding disability benefits where
the Secretary has already considered the essential
evidence and it is clear that the cumulative effect of
the evidence establishes disability without any doubt.
Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (internal
The Eleventh Circuit has found it proper to reverse an ALJ’s
improperly applied the pain standard. This is true because the
claimant’s testimony must be accepted as true and it, when combined
with evidence in the record such as the uncontroverted testimony of
a Vocational Expert, often conclusively shows that the claimant is
disabled. See, e.g., Hale, 831 F.3d at 1012 (reversing the ALJ’s
undisputed and confirmed by the VE that if the claimant’s testimony
was accepted as true, the claimant could perform none of her past
jobs and there were no jobs in significant numbers in the national
economy that she could perform); Brown v. Sullivan, 921 F.2d 1233,
1236 (11th Cir. 1991) (“The Secretary's failure to apply the proper
standard requires that Brown's testimony regarding pain be accepted
as true. Therefore, we reverse the district court's affirmance of
the Secretary's determination that Brown was not totally disabled
. . . and remand the case with instructions that it be returned to
the Secretary for an award of additional disability benefits.”)
persuasive arguments supporting the [pain standard] is the need to
expedite disability claims,’” Pollard v. Astrue, 867 F. Supp. 2d
1225 (N.D. Ala. 2012) (quoting Varney v. Sec’y of Health & Human
Serv., 859 F.2d 1396, 1401 (9th Cir. 1988)), so the court should
not hesitate to award benefits instead of remanding for further
proceedings when the testimony of a VE “avoid[s] the necessity of
a remand,” id.
During the hearing, Lane testified that her daily pain level
is at a six or seven on a zero to ten scale, and there are seven to
ten days in any given month in which her pain prevents her from
carrying out her planned activities, such as getting her children
ready, driving them to school, attending doctor’s appointments, and
attending lawyer’s appointments. (R. at 41-42). The Vocational
Expert testified that a hypothetical person with the exact RFC the
ALJ found Lane to possess, except that she would miss more than two
days of work per month because of her impairments, would be totally
unable to hold down a job — all of Lane’s previous jobs and “all
other jobs” would be eliminated. (R. at 60-61). The VE also
testified that a person with a pain level of six to seven on a zero
to ten scale who had to lie down during the day during more than
normal work breaks would similarly be precluded from all work. (R.
This would be a clear case for a remand with instructions to
discredited Lane’s subjective testimony concerning her migraines.
But the ALJ’s findings as to her herniated disc and fibromyalgia
were not supported by substantial evidence. This leaves the court
entirely, this court finds “that the cumulative effect of the
evidence establishes disability without any doubt,” Davis, 985 F.2d
at 534. Lane testified that she is unable to function because of
her pain seven to ten days in a given month (R. at 41), and she
suffers from three to four uncontrollable migraines per month (R.
at 32). Even assuming arguendo that the migraines are Lane’s only
reason for her inability to function for four days per month, and
ignoring those four days for purposes of this review, Lane should
still be found disabled. Removing the four days of migraine pain
still leaves three to six days per month when Lane is unable to
function, and the VE testified that missing more than two days of
work per month would preclude Lane from all work (R. at 60-61).
accepted as a matter of law as true, firmly establishes that she is
disabled, so that the appropriate remedy is to reverse the ALJ’s
decision and remand for an award of benefits.
The ALJ’s listed reasons for discrediting Lane’s subjective
testimony are largely unsupported by substantial evidence, so
Lane’s testimony regarding her herniated disc and fibromyalgia pain
must be accepted as true. Because this testimony establishes that
Lane is disabled without any serious doubt, the ALJ’s decision will
be reversed and the action will be remanded to the Commissioner
with the instruction that the Commissioner award supplemental
security income and disability insurance benefits to Lane. A
separate order will be entered.
DONE this 14th day of October, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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