Sasnette v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/21/2015. (JLC)

FILED
2015 Jul-21 PM 04:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
GERRY MACK SASNETTE,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 5:14-CV-362-VEH
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MEMORANDUM OPINION
Plaintiff Gerry Mack Sasnette (hereinafter “Mr. Sasnette”) brings this action
under 42 U.S.C. § 405(g), Section 205(g) of the Social Security Act. He seeks review
of a final adverse decision of the Commissioner of the Social Security Administration
("Commissioner"), who denied his application for Disability Insurance Benefits
("DIB"). Mr. Sasnette timely pursued and exhausted his administrative remedies
available before the Commissioner. The case is thus ripe for review under 42 U.S.C.
§ 405(g).
FACTUAL AND PROCEDURAL HISTORY
Mr. Sasnette was 61 years old at the time of his hearing before the
Administrative Law Judge ("ALJ"). (Tr. 105). He graduated from a four-year college

in 1984. (Tr. 142). His past work experience includes employment as a policy
director, salesman, recruiter for a health training program, insurance claims examiner,
stockbroker, and eligibility worker in health care. (Tr. 18). He claims he became
disabled on January 17, 2011, due to his back problems, knee problems, and arthritis.
(Tr. 105, 141). His last period of work ended on January 14, 2011. (Tr. 30).
On June 14, 2011, Mr. Sasnette protectively filed a Title II application for a
period of disability and DIB. (Tr. 53). On July 27, 2011, the Commissioner initially
denied his DIB claim. (Tr. 54). Mr. Sasnette timely filed a written request for a
hearing on August 26, 2011. (Tr. 62-63). The ALJ conducted a hearing on the matter
on September 12, 2012. (Tr. 11). On November 1, 2012, the ALJ issued her opinion
concluding Mr. Sasnette was not disabled and denying him benefits. (Tr. 11-20). Mr.
Sasnette timely petitioned the Appeals Council to review the decision on December
11, 2012. (Tr. 6). On January 10, 2014, the Appeals Council issued a denial of review
on his claim. (Tr. 1-3).
Mr. Sasnette filed a Complaint with this court on March 2, 2014, seeking
review of the Commissioner's determination. (Doc. 1).The Commissioner answered
on August 25, 2014. (Doc. 7). Mr. Sasnette filed a supporting brief (Doc. 11) on
November 7, 2014, and the Commissioner responded with her own (Doc. 12) on
December 8, 2014. With the parties having fully briefed the matter, the court has
2

carefully considered the record and concludes that the decision of the Commissioner
is due to be reversed and the case remanded.
STANDARD OF REVIEW
The court's review of the Commissioner's decision is narrowly circumscribed.
The 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.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must "scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence."
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ's opinion is supported by substantial evidence if it finds "such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion." Id. Substantial evidence is "more than a scintilla, but less than a
preponderance." Id. Factual findings that are supported by substantial evidence must
be upheld by the court. The ALJ's legal conclusions, however, are reviewed de novo,
because no presumption of validity attaches to the ALJ's determination of the proper
legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993).
If the court finds an error in the ALJ's application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
3

analysis has been conducted, the ALJ's decision must be reversed. Cornelius v.
Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.1 The Regulations define “disabled” as
“the inability to do 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 (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:

1

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of June 26, 2014.
4

(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
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 work, the burden shifts to the [Commissioner]
to show that the claimant can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found that Mr. Sasnette met the insured status requirements of the
Social Security Act through June 30, 2015. (Tr. 13). The ALJ concluded that he has
not engaged in substantial gainful activity throughout the whole period after the onset
date of his disability on January 17, 2011. Id. Additionally, the ALJ found that Mr.
5

Sasnette has the following severe impairments: degenerative joint disease, bilateral
knees, and degenerative disk disease (20 C.F.R. § 404.1520(c)). (Tr. 14). Moreover,
the ALJ found that these impairments, when considered individually or in
combination, did not meet or equal one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). (Tr.
14).
The ALJ evaluated Mr. Sasnette’s residual functional capacity (“RFC”) and
found that Plaintiff retains:
the residual functional capacity to perform sedentary work as defined in
20 C.F.R. 404.1567(a).2 He can frequently climb ramps and stairs,
balance, and stoop. He can occasionally crouch. He cannot climb
ladders, ropes, scaffolds, kneel or crawl. He should not work at
unprotected heights or around dangerous moving unguarded machinery.
(Tr. 14).
The ALJ determined that Mr. Sasnette is capable of performing past relevant
work as a policy director (DOT #166.017-010),3 sedentary in exertional requirements

2

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
3

The Dictionary of Occupational Titles (“DOT”) provides different examples of work
activities that fall within the residual functioning capacity for sedentary work. (Washington,
D.C.: U.S. Dept. Of Labor, Employment and Training Administration: U.S. G.P.O., 1993).
Available online at: http://www.occupationalinfo.org.
6

and skilled in nature; recruiter health training program (DOT #166.267-010)
sedentary in exertional requirements and skilled in nature; insurance claims examiner
(DOT #168.267-010), sedentary in exertional requirements and skilled in nature;
stockbroker (DOT #162.167-038), sedentary in exertional requirements and skilled
in nature; and eligibility worker in health care (DOT #195.267-010), sedentary in
exertional requirements and skilled in nature. (Tr. 18). The ALJ concluded that none
of the limitations stated in the RFC assessment are inconsistent with his past relevant
work except for his sales positions. Id. In addition, the ALJ noted that Mr. Sasnette
has not been under a disability, as defined in the Social Security Act, from January
17, 2011, through the date of this decision (20 C.F.R. § 404.1520(f)). (Tr. 19).
Accordingly, the ALJ concluded that Mr. Sasnette was not disabled as defined by §§
216(i) and 223(d) of the Social Security Act. (Tr. 20).
ANALYSIS
The court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th

7

Cir. 1980)).4 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Mr. Sasnette asserts that the ALJ lacked substantial evidence to support her
decision to deny disability benefits and that improper legal standards were applied.
(Doc. 11 at 6). In its review, the court agrees and finds that the ALJ’s decision was
not supported by substantial evidence.
I.

The ALJ’s Conclusion that Mr. Sasnette Was Not Disabled Is Not
Supported by Substantial Evidence.
Mr. Sasnette argues he meets the Eleventh Circuit’s pain standard, and the

ALJ’s contrary decision is not supported by the evidence. (Doc. 11 at 6). The court
agrees. More specifically, the ALJ’s decision that Mr. Sasnette does not meet the pain
standard is based on an inadequately substantiated negative credibility finding
regarding Mr. Sasnette’s subjective pain testimony.
The pain standard “applies when a disability claimant attempts to establish a
disability through his own testimony of pain or other subjective symptoms.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). This standard requires “evidence of
an underlying medical condition and (1) objective medical evidence that confirms the

4

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981).
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severity of the alleged pain arising from that condition or (2) that the objectively
determined medical condition is of such severity that it can be reasonably expected
to give rise to the alleged pain.” Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986). A claimant's statements about pain or other symptoms do not alone establish
disability. 20 C.F.R. § 404.1529(a) (“[h]owever, statements about [the claimant’s]
pain or other symptoms will not alone establish that you are disabled”); accord 20
C.F.R. § 416.929(a) (same). Rather, “there must be medical signs and laboratory
findings which show that [claimants] have a medical impairment(s) which could
reasonably be expected to produce the pain or other symptoms alleged . . . .” Id. Even
if a claimant is able to show medical impairments that could reasonably be expected
to produce the alleged symptoms, the Commissioner “must then evaluate the
intensity, persistence of [the claimant’s] symptoms so that [the Commissioner] can
determine how [the claimant’s] symptoms limit [the claimant’s] capacity for work.”
20 C.F.R. § 404.1529(c)(1).
The ALJ may reject a plaintiff’s complaints of pain if he finds them not
credible. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“[a]fter
considering a claimant’s complaints of pain, the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence”).
However, if the ALJ discredits a claimant’s testimony regarding the severity of his
9

symptoms, that determination must be supported by substantial evidence. Id.; see also
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (explaining that the
Commissioner’s factual findings must be supported by substantial evidence).
Furthermore, the ALJ may not reject the claimant’s statements as to the
intensity and persistence “solely because the available objective medical evidence
does not substantiate [claimant’s] statements.” 20 C.F.R. § 404.1529(c)(2); see also
SSR 96-7p (“[T]he effect the symptoms have on [the claimant’s] ability to work may
not be disregarded solely because they are not substantiated by objective medical
evidence.”).5 Instead, the ALJ is bound to consider other evidence, in addition to the
objective medical evidence, because “symptoms sometimes suggest a greater severity
of impairment than can be shown by objective medical evidence alone.” 20 C.F.R. §
404.1529(c)(3).
This other evidence includes “any symptom-related functional limitations and
restrictions which [the claimant], [the claimant’s] treating or non-treating source, or
other persons report, which can reasonably be accepted as consistent with the
objective medical evidence and other evidence[.]” Id. Relevant factors that may show

5

Although they lack the force of regulations, Social Security Rulings are “binding on all
components of the Social Security Administration.” 20 C.F.R. § 402.35(b)(1); see also McCloud
v. Barnhart, 166 Fed. Appx. 410 (11th Cir. 2006), 2006 WL 177576 (citing SSR 96-6p as
authoritative, for example).
10

the effect of the claimant’s symptoms on his or her functional abilities include: the
claimant’s daily activities; the location, duration, frequency and intensity of the
claimant’s pain; any precipitating and aggravating factors; the type, dosage,
effectiveness, and side effects of medication taken to alleviate the pain; and other
treatments or measures taken by the claimant, not including medication. Id. Using
these other evidence factors, the ALJ must show substantial evidence supporting his
attempt to discredit the claimant’s pain testimony. Id.
In applying this standard to the present case, the ALJ ultimately found that Mr.
Sasnette’s medically determinable impairments could reasonably be expected to cause
his alleged symptoms.6 (Tr. 18). However, the ALJ determined “the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” Id.
Mr. Sasnette contends that “the ALJ’s reasoning for failing to discredit [sic] the
Plaintiff’s testimony of disabling limitations is woefully inadequate.” (Doc. 11 at 8).

6

While the ALJ stated this finding explicitly in her opinion, the statement contradicted
earlier statements by the ALJ that Mr. Sasnette’s medically determinable impairments could not
reasonably be expected to cause the alleged symptoms. (Tr. 15, 17-18) (emphasis added). Had
the ALJ applied the counter finding to the pain standard, her analysis would not have reached the
credibility determination. As a result of the court’s determination that the case should be
remanded because of the ALJ’s inadequate credibility finding, the court does not address whether
the ALJ’s inconsistent statements constitute reversible error.
11

As explained infra, the court finds that the ALJ’s credibility determination is not
supported by substantial evidence. The ALJ articulated only two factors that
substantially support her decision not to fully credit Mr. Sasnette’s testimony. The
first factor she identified was Mr. Sasnette’s seemingly inconsistent positions of
receiving unemployment benefits while simultaneously applying for disability
benefits. (Tr. 14). The second factor identified by the ALJ is inconsistencies noted by
physicians concerning the severity of Mr. Sasnette’s pain. (Tr. 17). The court
addresses the factors in the order the ALJ addressed them in her opinion.
A.

Receipt of Unemployment Benefits Was Properly Considered
by The ALJ in Discrediting Mr. Sasnette’s Subjective
Testimony

The ALJ stated that Mr. Sasnette’s application for and receipt of unemployment
compensation was a factor weighing against the credibility of his testimony. (Tr. 14).
The ALJ found:
Application for and receipt of unemployment compensation benefits in
the State of Alabama are inconsistent with a claimant’s alleged
disability. Alabama law specifically precludes eligibility for such
benefits where the claimant is unemployed due to sickness or disability
(Section 25-4-78, Code of Alabama of 1975 as amended). Further, to be
eligible for such benefits, the claimant must be “... physically and
mentally able to perform work of a character which he is qualified to
perform by past experience or training, and he is available for such
work...” (Section 25-4-77, Code of Alabama of 1975 as amended).
(Tr. 13). However, as the ALJ correctly stated, “there is no basis under the Social
12

Security Administration regulations for denial of disability benefits merely because
the claimant has received unemployment compensation.” (Tr. 13-14). It is generally
accepted that ALJs “may consider receipt of unemployment benefits as a factor when
determining a Plaintiff’s credibility.” Lampley v. Colvin, No. 2:13-CV-00850-WC,
2014 WL 5419330, at *5 (M.D. Ala. Oct. 23, 2014); see also Turner v. Colvin, No.
5:12-CV-2648-LSC, 2013 WL 5574920, at *4 (N.D. Ala. Oct. 10, 2013) (“The ALJ’s
conclusion that the receipt of unemployment benefits is a factor undermining
Plaintiff’s credibility is consistent with the Cristaudo memorandum and the great
weight of legal authority.”); George v. Astrue, No. 2:11-CV-03518-CLS, 2012 WL
3030157, at *1-*5 (N.D. Ala. July 20, 2012) (holding that the ALJ properly
considered the claimant’s receipt of unemployment benefits as a factor weighing
against the claimant’s credibility).
The undersigned has previously addressed the impact of unemployment
compensation on disability claims in Readus v. Astrue, No. 5:08-CV-1675-VEH,
(Doc. 16) (N.D. Ala. Mar. 10, 2010). In Readus, the court held that the claimant’s
receipt of state unemployment benefits was “irreconcilable with [claimant]’s claim
that she stopped working due to back pain . . . .” Id. at 21. In addition to the receipt
of unemployment benefits, the court also noted several inconsistencies concerning the
claimant’s allegation of pain and her daily activities. Id. at 20. The combination of the
13

two observations led the court to conclude that substantial evidence supported the
ALJ’s negative credibility finding. Id.
A few months after the court decided Readus, a memorandum (“Memo”) was
circulated to every ALJ with instructions on how to treat unemployment
compensation under the Social Security Act. The Memo provides support for the
court’s handling of the issue in Readus and guidance in the instant case.
In the Memo, written by Chief Administrative Law Judge Frank A. Cristaudo,
receipt of unemployment benefits is one of many factors that must be considered in
determining whether the claimant is disabled. Memorandum from Frank A. Cristaudo,
Chief Administrative Law Judge, to all Administrative Law judges (Aug. 9, 2010),
http://www.socialsecurityinsider.com/ wp-content/uploads/20100809-SS
A-memo-unemployment-insurance-ui-soical-security.pdf. The Social Security
Administration (“SSA”) adopted the position that “individuals need not choose
between applying for unemployment insurance and Social Security disability benefits.
However, application for unemployment benefits is evidence that the ALJ must
consider with all of the medical and other evidence.” Id. The Memo indicated an ALJ
should take into account whether the claimant sought employment at jobs with
physical demands in excess of his stated limitations during his period of disability.
Id. Finally, ALJs are reminded in the Memo to follow the principles discussed in SSR
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00-1c.7 Id.
While the Eleventh Circuit has not addressed the effect of unemployment
benefits on disability applications in a published decision, the Memo’s guidance is
consistent with this court’s handling of the issue in Readus. Further, the Seventh and
Ninth Circuits have both held, in published decisions, that receipt of unemployment
compensation is a relevant factor. See Schmidt v. Barnhart, 395 F.3d 737, 745 (7th
Cir. 2005) (“[W]e are not convinced that a Social Security claimant's decision to
apply for unemployment benefits and represent to state authorities and prospective
employers that he is able and willing to work should play absolutely no role in
assessing his subjective complaints of disability.”) (emphasis in original); Carmickle
v. Commissioner, Social Security Administration, 533 F.3d 1155, 1161–62 (9th Cir.
2008) (acknowledging that “receipt of unemployment benefits can undermine a
claimant's alleged inability to work fulltime”).
One of the first cases to address the Memo’s effect on disability claims was

7

SSR 00-1c incorporates the decision reached in Cleveland v. Policy Management
Systems Corp., 526 U.S. 795 (1999).In Cleveland, 526 U.S. at 797, the Supreme Court held that a
plaintiff receiving Social Security Disability payments was not necessarily barred from also
pursuing an action for disability discrimination under the Americans with Disabilities Act of
1990 ("ADA"), in which she would have to establish that she could perform the "essential
functions of her job" with "reasonable accommodation." The Court emphasized, however, that
"an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier
SSDI total disability claim." Id. at 806. The plaintiff can proceed on both theories, but only if she
can "proffer a sufficient explanation." Id.
15

George v. Astrue, supra at 13. In George, the claimant asserted that the ALJ
improperly considered his receipt of unemployment benefits and, based upon the
Cleveland decision, should have been given a further opportunity to reasonably
explain the inconsistent representations made to the unemployment compensation
board and to the Commissioner.8 Id. at *1, *3. The Honorable C. Lynwood Smith
held:
The ALJ in this properly applied these principles in evaluating
claimant's credibility. It is clear that the ALJ did not rely solely on
claimant's unemployment compensation application in evaluating
claimant's credibility; instead, the application was only one factor in the
ALJ's analysis. While this court is not convinced, as the ALJ suggested,
that a claimant is obligated to explain the inconsistency in the same
manner that the Cleveland decision requires an ADA plaintiff to explain
inconsistencies, the court also sees no reason why the ALJ could not
consider any explanation, or lack thereof, in making a credibility
determination.
This court understands that claimant may have had valid, even
compelling, personal reasons for applying for unemployment
compensation and Social Security disability benefits at the same time.
But the ALJ nonetheless was entitled to consider the inconsistencies in
claimant's representations to various agencies in evaluating claimant's
credibility . . . . In summary, the ALJ's consideration of claimant's
application for and receipt of unemployment compensation benefits was
in accordance with controlling law and supported by substantial
evidence.

8

The claimant did testify at his hearing that he sought unemployment benefits because of
his family financial situation, and he acknowledged that when he applied for unemployment
benefits he had to certify to the State that he was able to work and was looking for work. George,
2012 WL 3030157, at *1-*2.
16

Id. at *5. Judge Smith’s treatment of unemployment compensation in George is
consistent with the undersigned’s holding in Readus; specifically, that receipt of
unemployment benefits, in addition to other evidence in the record, can serve as
substantial evidence for an ALJ’s negative credibility finding. See Readus, No.
5:08-CV-1675-VEH, (Doc. 16 at 20-21).
Mr. Sasnette began receiving unemployment benefits shortly after his last day
of work on January 14, 2011. (Tr. 13). Mr. Sasnette was receiving unemployment
compensation at the time of his hearing in front of the ALJ, and he continued to
receive unemployment compensation until about the second week of October 2012.
Id. Mr. Sasnette testified that he had looked for work during the same time period in
which he claimed he was disabled. (Tr. 30). Actively looking for work, along with the
Alabama unemployment compensation requirement that he be able and available for
work, represent significant inconsistencies with his present claim of disability, and
the ALJ was entitled to consider this evidence when assessing Mr. Sasnette’s
credibility. Thus, persuaded by pre-Memo Readus and post-Memo George, an ALJ
may adequately discredit a claimant’s subjective allegations of pain if unemployment
compensation is not the only reason supporting the ALJ’s negative credibility finding.
As explained more fully in the next section of the court’s analysis, in this case the
ALJ did not adequately explain any other factor for discrediting Mr. Sasnette’s
17

subjective allegations of pain. Therefore, the ALJ’s finding on credibility is not
supported by substantial evidence.
B.

Inconsistencies Noted by Physicians Concerning Severity of
Pain Support Negative Credibility Finding

After discussing Mr. Sasnette’s unemployment compensation, the ALJ next
identified inconsistencies noted by physicians and therapists as an additional reason
for not fully crediting his subjective testimony. (Tr. 17). More specifically, the ALJ
found that, “given the claimant’s diagnoses, his physicians’ observations and his
description of his daily activities and his functional abilities, that his pain is no more
than moderate with medication.” (Tr. 17-18). From this determination, the ALJ found
that “[Mr. Sasnette] may reasonably be expected to have some level of limitation due
to his musculoskeletal impairments, but the evidence does not show that he has any
limitations inconsistent with sedentary work, limited as discussed above.”9 (Tr. 18).
The ALJ then stated that Mr. Sasnette’s subjective testimony “concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above [RFC].” Id.
Mr. Sasnette argues that this is a “woefully inadequate” attempt to discredit Mr.
Sasnette’s subjective testimony. (Doc. 11 at 8). He argues that the ALJ failed to

9

This finding corresponds to the ALJ’s determination that Mr. Sasnette has the RFC to
perform sedentary work. (Tr. 14).
18

“specifically delineate as to what observations or daily activities she is referencing
to support her decision.” Id. The court does not completely agree with Mr. Sasnette’s
argument. The ALJ did cite two reports in support of her determination; however, the
court finds that the two reports relied upon by the ALJ do not provide substantial
evidence for her credibility determination.
If the ALJ rejects the allegations of pain, “he must articulate explicit and
adequate reasons” for doing so. Foote, supra at 5. The ALJ may not “simply recite
the factors that are described in the regulations for evaluating symptoms.” SSR 96-7p.
The reasoning “must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements
and the reasons for that weight.” Id. The first document identified by the ALJ was a
report generated by a treating physician of Mr. Sasnette, Dr. Bramlett. (Tr. 18). The
second report relied upon was the physical RFC assessment produced by a nonexamining state agent medical consultant, Dr. Heilpern. Id. The court finds that the
ALJ’s reliance on both reports was improper under the circumstances of this case.
On September 1, 2010, Mr. Sasnette underwent a total right knee joint
replacement procedure performed by orthopedic surgeon, Kenneth W. Bramlett, M.D.
(Tr. 238-39). Mr. Sasnette twice returned to visit Dr. Bramlett for post-operational
examination. (Tr. 234-36). On his last visit, dated October 28, 2010, Dr. Bramlett
19

noted the following: “[o]n exam [Mr. Sasnette] has full extension and easy flexion
to 120. He is stable and can walk and stand. He is back to work. He is routinely doing
what he needs to do. He is back to 95% of normal roughly . . . . He is in good shape.”
(Tr. 234). Dr. Bramlett’s treatment plan for Mr. Sasnette’s knee included allowing
Mr. Sasnette to ride his bike, exercise continually, and generally be comfortable. Id.
The ALJ cited to this language as evidence showing what physical activities Mr.
Sasnette is capable of performing. (Tr. 18).
The ALJ’s reliance on Dr. Bramlett’s examination notes cannot constitute good
cause for her partial negative credibility finding for multiple reasons. First, Dr.
Bramlett’s examination provides an incomplete picture of Mr. Sasnette’s
impairments; second, Dr. Bramlett does not appear to be making a statement about
Mr. Sasnette’s physical capabilities; and lastly, Dr. Bramlett’s report was written
approximately three months before Mr. Sasnette’s claimed disability onset date.
The ALJ erred by relying upon Dr. Bramlett’s examination notes in order to
make a general determination about Mr. Sasnette’s physical capabilities because the
notes only concern Mr. Sasnette’s surgically replaced right knee. Dr. Bramlett does
not make any observation regarding Mr. Sasnette’s back impairments, which is the
primary source behind his stated limitations. Furthermore, it does not appear that Dr.
Bramlett examined Mr. Sasnette’s left knee on this day. This is also significant,
20

considering that Mr. Sasnette testified that his left knee also needs replacing. (Tr. 31).
Mr. Sasnette’s testimony is supported by a August 7, 2012, examination in which it
is noted that Mr. Sasnette’s left knee “is a legit case of deformity.” (Tr. 519). X-rays
showed severe degenerative joint disease changes medially and at the patellofemoral
joint in the left knee. Id. Thus, because of the narrow scope of Dr. Bramlett’s
examination notes, the ALJ should not have relied upon them to only partially credit
his credibility.
The second flaw related to the ALJ’s reliance on Dr. Bramlett’s examination
notes is her mischaracterization of them as being an affirmative statement about Mr.
Sasnette’s ability to perform physical activities. Because of the limited scope of the
notes, as mentioned above, it is impossible to decipher whether Dr. Bramlett’s
statements, specifically that Mr. Sasnette “is routinely doing what he needs to do[,]
he is back to 95% of normal roughly . . . [,] he is in good shape[,]” refers to Mr.
Sasnette’s condition generally, or merely the condition of his surgically replaced right
knee. (Tr. 234). Considering the context, a reasonable interpretation of those
statements is that they are limited to the condition of Mr. Sasnette’s right knee.
Furthermore, Dr. Bramlett’s treatment plan, which stated that Mr. Sasnette “can ride
his bike, exercise continually[,]” cannot be relied upon as evidence to discredit Mr.
Sasnette for the same reasoning stated above.
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Lastly, even if the court were to assume that Dr. Bramlett was speaking about
Mr. Sasnette’s general condition, the ALJ’s reliance would still be improper,
considering the date of the examination notes. The examination took place
approximately three months prior to Mr. Sasnette’s claimed disability onset date. The
ALJ’s reliance on this evidence, particularly Dr. Bramlett’s statement that Mr.
Sasnette is “back to work[,] [and] is routinely doing what he needs to do[,]” to
discredit Mr. Sasnette is problematic and inadequate, especially when Mr. Sasnette
does not contend he was incapable of work during this time. (Tr. 18). Alternatively,
while the ALJ may have been entitled to use the evidence to discredit the level of any
limitations caused by his right knee, the ALJ relies on this report in an effort to
discredit the impact of all of Mr. Sasnette’s subjective limitations in combination.
Therefore, for all these reasons, Dr. Bramlett’s examination notes do not serve as
substantial evidence supporting the ALJ’s credibility determination.
The second piece of evidence the ALJ relies upon for her credibility
determination is the report produced by state agency medical consultant, Dr. Heilpern.
(Tr. 18). Dr. Heilpern determined that Mr. Sasnette could perform the requirements
of light work. The ALJ stated that she accorded “significant weight” in assessing Mr.
Sasnette’s RFC. Id. For reasons that will be developed below, the court finds that Dr.
Heilpern’s report does not serve as substantial evidence for the ALJ’s credibility
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determination.
Evidence that can be considered by ALJs when assessing a claimant’s RFC
includes “any statements about what [the claimant] can still do that have been
provided by medical sources, whether or not they are based on formal medical
examinations.” 20 C.F.R. § 404.1545(a)(3). Also, any “descriptions and observations
of your limitations from impairment(s), including limitations that result from your
symptoms, such as pain, provided by you, your family, neighbors, friends, or other
persons” will be considered. Id. If inconsistencies arise between the medical opinions
and the other relevant evidence, the ALJ must “weigh all of the evidence and see
whether [the ALJ] can decide whether [the claimant] [is] disabled based on the
evidence . . . .” 20 C.F.R. § 404.1527(c)(2). “[The claimant’s] symptoms, including
pain, will be determined to diminish [the claimant’s] capacity for basic work activities
to the extent that [the claimant’s] alleged functional limitations and restrictions due
to symptoms, such as pain, can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4).
Nevertheless, as mentioned earlier, the ALJ may not reject the claimant’s
statements as to the intensity and persistence “solely because the available objective
medical evidence does not substantiate [claimant’s] statements.” 20 C.F.R. §
404.1529(c)(2). It is plain from Dr. Heilpern’s report that he formulated his RFC
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assessment of Mr. Sasnette solely from objective medical evidence. While Dr.
Heilpern mentions Mr. Sasnette’s alleged limitations, any stated limitations that were
inconsistent with his RFC determination were discredited. (Tr. 381). The report does
not suggest that Mr. Sasnette lied about his daily activities, made any inconsistent
statements regarding his pain to physicians, or mention anything in general that
would contradict Mr. Sasnette’s subjective complaints.
Therefore, as a result of the court’s prior finding that Dr. Bramlett’s report is
not substantial evidence supporting the ALJ’s credibility determination, Dr.
Heilpern’s report is the only evidence remaining cited by the ALJ as support for her
determination that Mr. Sasnette’s pain is no more than moderate with medication. In
accordance with the Regulations, this determination by the ALJ cannot be affirmed
since it is based solely upon the fact that objective medical evidence does not
substantiate Mr. Sasnette’s statements.10
The reports from Dr. Bramlett and Dr. Heilpern were the only two pieces of
additional evidence mentioned in support of the ALJ’s statement that, “given [Mr.
Sasnette]’s diagnoses, his physicians’ observations and his description of his daily
10

Alternatively, Dr. Heilpern’s report cannot serve as substantial support for the ALJ’s
determination that Mr. Sasnette’s pain is no more than moderate with medication, because
Eleventh Circuit precedent precludes non-examining physician reports from acting as the sole
support for any administrative finding. See Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir.
1985) (“[R]eports of physicians who do not examine the claimant, taken alone, do not constitute
substantial evidence on which to base an administrative decision.”) (emphasis added).
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activities and his functional abilities, that his pain is no more than moderate with
medication.” (Tr. 17-18). While the undersigned has come across evidence in the
record that would appear to support the ALJ’s finding, the ALJ failed to mention such
evidence in her decision, and the court declines to speculate what other evidence, if
any, the ALJ considered. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005) (“This limited review precludes deciding the facts anew, making credibility
determinations, or re-weighing the evidence.”); see also Richardson v. Perales, 402
U.S. 389, 399, 91 S. Ct. 1420, 28 L. Ed. 2d. 239 (1971) (“We therefore are presented
with the not uncommon situation of conflicting medical evidence. The trier of fact has
the duty to resolve that conflict.”). Therefore, for the reasons discussed above, the
ALJ’s credibility determination is not supported by substantial evidence because she
failed to articulate another adequate reason to discredit Mr. Sasnette in combination
with the unemployment compensation factor. This appeal is due to be remanded for
this independent reason. See Williams v. Astrue, No. 5:07-CV-1914-VEH, (Doc. 14
at 19) (N.D. Ala. Aug. 5, 2008) (holding that the ALJ’s failure to adequately discredit
the claimant was an independent reason for remanding); Hollis v. Astrue, No. 4:07CV-2061-VEH, (Doc. 12 at 21) (N.D. Ala. Oct. 24, 2008) (similar holding).

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CONCLUSION
Based upon the court's evaluation of the evidence in the record and the parties'
submissions, the court finds that the decision of the Commissioner is not supported
by substantial evidence. Accordingly, the decision of the Commissioner is reversed
and the case remanded.
DONE and ORDERED this the 21st day of July, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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