Pendley v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 2/6/2017. (KAM, )

FILED
2017 Feb-06 AM 09:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LEONORA HEATON PENDLEY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 5:15-cv-01612-JEO

MEMORANDUM OPINION
Plaintiff Lenora Heaton Pendley brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”) denying her applications for disability insurance
benefits and supplemental security income. (Doc. 1).1 The case has been assigned
to the undersigned United States Magistrate Judge pursuant to this court’s general
order of reference. The parties have consented to the jurisdiction of this court for
disposition of the matter. (See Doc. 16). See 28 U.S.C. § 636(c), FED. R. CIV. P.
73(a). Upon review of the record and the relevant law, the undersigned finds that
the Commissioner’s decision is due to be reversed and remanded.

1

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.

I. PROCEDURAL HISTORY
Plaintiff had previously filed applications for a period of disability,
disability insurance benefits (“DIB”), and supplemental security income (“SSI”)
(R. 172-83),2 which were denied at the initial decision level in August 2013,
without any record of appeal (R. 59-80, 82, 93, 105-11). Plaintiff protectively
filed her current DIB and SSI applications on January 16, 2014. (R. 103-04,
184-99). The were initially denied. (R. 81-102). An administrative law judge
(“ALJ”) held a hearing on August 5, 2014 (R. 31-58) and issued an unfavorable
decision on October 30, 2014 (R. 10-24). The Appeals Council denied Plaintiff’s
request for review on July 15, 2015. (R. 1-3).
II. FACTS
Plaintiff was 51 years old at the time of the ALJ’s decision. (R. 24, 184).
She had two years of college education and had worked in the past as a
construction worker and a licensed practical nurse. (R. 49-50, 220). Plaintiff
alleged onset of disability on August 8, 2011, due to spinal stenosis, fibromyalgia,
spinal compression, possible hip fracture, severe nerve damage, and severe muscle
spasms. (R. 184, 274). Following a hearing, the ALJ found that Plaintiff retained
the residual functional capacity (“RFC”) to perform a reduced range of light work

2

References herein to “R.__” are to the page numbers of the administrative record.
2

with certain limitations. (R. 18-22). He further found that based on Plaintiff’s
age, education, work experience, and RFC and vocational expert testimony, she
could perform work existing in significant numbers in the national economy. (R.
23-24). The ALJ further found Plaintiff was not disabled. (Id.)
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
The 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). Substantial evidence is “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions 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
3

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
analysis has been conducted, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for DIB and SSI under the Social Security Act, a claimant must
show the inability to engage in “any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. §
1382c(a)(3)(A). A physical or mental impairment is “an impairment that results
from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D).
Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. §§ 404.1520(a)(4). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
4

work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)3 (citing 20
C.F.R. § 404.1520(a)(4)). The plaintiff bears the burden of proving that she was
disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). The applicable “regulations place a very heavy
burden on the claimant to demonstrate both a qualifying disability and an inability
to perform past relevant work.” Id.
IV. DISCUSSION
Plaintiff argues that the ALJ committed error in three ways: First, the ALJ
improperly evaluated her credibility; Second, he erred in rejecting Dr. Beretta’s
opinion regarding the nature and severity of her impairment and symptoms; and
Third, he failed to discuss her urinary incontinence in determining her credibility
and RFC. (Doc. 12 at 1). Each argument will be addressed below.
A.

Plaintiff’s Credibility
1.

Generally

Plaintiff challenges the ALJ’s decision concerning her credibility on four

3

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
5

grounds: (1) he improperly evaluated her failure to stop smoking and her recent
use of oxygen (Doc. 12 at 7-9); (2) he improperly evaluated her infrequent
treatment (id. 9-12); (3) he failed to make necessary functional limitation findings
(id. 12-13); and (4) he improperly evaluated her daily activities (id. 13-14). The
Commissioner retorts that substantial evidence supports the decision to discount
her credibility. (Doc. 13 at 3-12).
As noted in the last section, Plaintiff bears the burden of proving that she is
disabled within the meaning of the Social Security Act. See 42 U.S.C. §
423(d)(5)(A); 20 C.F.R. §§ 404.1512 (a) & (c), 416.912(a) & (c) (2015); Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). Specifically, Plaintiff has the burden to provide relevant
medical and other evidence she believes will prove her alleged disability resulting
from her physical or mental impairments. See 20 C.F.R. §§ 404.1512(a)-(b),
416.912(a)-(b). In analyzing the evidence, it is important to note that it is the
functional limitations caused by the impairments and not the impairments
themselves which affect a claimant’s ability to work. See 20 C.F.R. §§
404.1545(a), 416.945(a); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.
1986) (severity of impairments must be measured in terms of their effect on the
ability to work, not from purely medical standards of bodily perfection or
6

normality).
In addressing a claimant’s subjective description of pain and symptoms, the
law is clear:
In order to establish a disability based on testimony of pain and other
symptoms, the claimant must satisfy two parts of a three-part test
showing: (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. See Holt
v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If the ALJ
discredits subjective testimony, he must articulate explicit and
adequate reasons for doing so. See Hale v. Bowen, 831 F.2d 1007,
1011 (11th Cir. 1987). Failure to articulate the reasons for
discrediting subjective testimony requires, as a matter of law, that the
testimony be accepted as true. See Cannon v. Bowen, 858 F.2d 1541,
1545 (11th Cir.1988).
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also 42 U.S.C. §
423(d)(5)(A), 20 C.F.R. §§ 404.1529, 416.929.
2.

Failure to Stop Smoking and Recent Use of Oxygen

As to the first issue - Plaintiff’s continued smoking and use of oxygen Plaintiff initially argues that her failure to stop smoking does not support a finding
that her testimony was not credible. (Doc. 12 at 8). In support of this argument,
she cites Seals v. Barnhart, 308 F. Supp. 2d 1241, 1250 (N.D. Ala. 2004) (J.
Guin). The Commissioner argues Seals is inapposite because the ALJ in that case
“relied on little other than the claimant’s [failure to quit] smoking for his finding
7

that the claimant was not disabled.” (Doc. 13 at 7-8).
United States District Judge Virginia E. Hopkins provided a detailed
analysis of Seals in Grier v. Colvin, 117 F. Supp. 3d 1335 (N.D. Ala. 2015). She
stated:
In Seals v. Barnhart, 308 F. Supp. 2d 1241, 1247 (N.D. Ala.
2004), the ALJ refused to credit the claimant’s subjective complaints
because the claimant continued smoking despite numerous warnings
from doctors to stop. Because the claimant had failed to follow
prescribed treatment to quit smoking, the ALJ found that 20 C.F.R. §
404.1530[] precluded the claimant from being found disabled. Id.
In addressing the claimant’s appeal in Seals, Judge Guin began
his analysis by correcting one of his previous holdings, stating “[t]his
court has previously held that ‘continuing to smoke despite a
physician’s warning as to consequences indicates that a claimant has
made a conscious lifestyle choice which is inconsistent with a finding
of disability.’ ” Id. at 1248 (quoting Wilda Elliot v. Apfel, No.
5:98–CV–00820–JFG, (Doc. 8 at 2) (N.D. Ala. Nov. 18, 1998)).
Judge Guin determined that his prior holding “is not correct as a
general statement of the law.” Id. The court then discussed and
adopted the approach utilized by the Seventh Circuit in Shramek v.
Apfel, 226 F.3d 809 (7th Cir. 2000). See id.
In Shramek, the court found that “the ALJ erred in relying on
[claimant’s] inability to quit smoking as evidence of noncompliance
and as a basis to find her incredible.” 226 F.3d at 813. The Seventh
Circuit reached this decision after noting that “the ALJ here made no
finding that the prescribed treatment would restore [claimant’s]
ability to work, and the record would not in fact support such a
finding.” Id. Furthermore, no connection had been made between the
claimant’s symptoms and her smoking. Id.
Finally, the court commented that failure to quit smoking is not
synonymous with treatment in the typical sense, stating:
8

[w]e note that even if medical evidence had established a
link between smoking and her symptoms, it is extremely
tenuous to infer from the failure to give up smoking that
the claimant is incredible when she testifies that the
condition is serious or painful. Given the addictive
nature of smoking, the failure to quit is as likely
attributable to factors unrelated to the effect of smoking
on a person’s health. One does not need to look far to
see persons with emphysema or lung cancer—directly
caused by smoking—who continue to smoke, not
because they do not suffer gravely from the disease, but
because other factors such as the addictive nature of the
product impacts their ability to stop. This is an
unreliable basis on which to rest a credibility
determination.
Shramek, 226 F.3d at 813.
In applying these rules set forth in Shramek, the court in Seals
stated that even assuming the doctor’s statements did constitute a
prescribed course of treatment, “the [claimant]’s failure to stop
smoking does not necessarily constitute a refusal to follow that
prescribed treatment. A willful refusal to follow treatment may not be
assumed from a mere failure to accomplish the recommended
change.” Seals, 308 F. Supp. 2d at 1250 (citing McCall, 846 F.2d at
1319) (holding that a claimant’s failure to lose weight does not
constitute a refusal to follow the treatment). The court found
evidence in the record that the claimant had been trying to quit, and
determined that “the record does not contain substantial evidence to
support a finding that the plaintiff did not try to stop smoking in the
present case.” Id. at 1251.
Judge Guin also commented about how the claimant’s
addiction necessitates a slightly different analysis than the typical
noncompliance situation, stating:
[b]reaking an addiction is not a simple matter of
rationally deciding to cease the addictive behavior,
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whether it be smoking, drinking or drug abuse. The
world would obviously be a better place if that were so.
In the case of nicotine addiction, a mere failure to
successfully stop smoking will not support a finding of
willful refusal to try. If the plaintiff was unable to stop
smoking because she was addicted to nicotine, her
noncompliance would not be unjustified. The burden is
on the Commissioner to produce evidence of unjustified
noncompliance. Dawkins v. Bowen, 848 F.2d 1211,
1214, n. 8 (11th Cir. 1988). In the present case, the ALJ
made no finding that the plaintiff was actually able,
mentally and physically, to stop smoking. Nor did the
Commissioner cite to any evidence, other than the
plaintiff’s failure to stop smoking, to show that her
noncompliance was unjustified.
Seals, 308 F. Supp. 2d at 1251.
Further, the ALJ also failed to make another essential finding
when discrediting because of noncompliance with treatment. More
specifically, the ALJ omitted any determination that, had the claimant
followed the prescribed treatment, the claimant’s ability to work
would be restored. Id. Although the ALJ found that the claimant’s
condition would improve if she stopped smoking, “[i]mprovement
does not equal an ability to work.” Id. at 1251–52.
Assuming that the statements made to Ms. Grier by her treating
physicians do constitute prescribed treatment, the ALJ did not inquire
whether her failure was unjustified. Similar to the claimant in Seals,
Ms. Grier is nicotine dependent and, thus, because of her addiction,
her inability to quit smoking does not constitute an unjustified reason
for noncompliance without any further inquiry by the ALJ. (Tr. 13);
see Seals, 308 F. Supp. 2d at 1251 (“If the plaintiff was unable to stop
smoking because she was addicted to nicotine, her noncompliance
would not be unjustified. The burden is on the Commissioner to
produce evidence of unjustified noncompliance.”); see also SSR
96–7p (“individual’s statements may be less credible ..., if the medical
reports or records show that the individual is not following the
10

treatment as prescribed and there are no good reasons for this
failure”) (emphasis added).
In the present case, the ALJ did not state whether Ms. Grier
was mentally and physically capable of quitting smoking, nor did the
ALJ cite to any evidence, other than her failure to stop, to show that
her noncompliance was unjustified.[] Furthermore, the ALJ did not
cite to any evidence that showed that, if Ms. Grier quit smoking, her
condition would improve to the point in which she could be capable
of performing work. While the record does show instances of Ms.
Grier being warned that her condition will not improve unless she
quits smoking, the court is unable to find any report that establishes
that if Ms. Grier did quit, her condition would improve to the point
that she could work. Therefore, the court finds that the ALJ’s
reliance on Ms. Grier’s failure to quit smoking as evidence weighing
against her credibility does not serve as substantial evidence
supporting the ALJ’s credibility determination.
Grier, 117 F. Supp. 3d at 1346-48.
In this instance, it is important to begin by stating what the ALJ found and
did not find. Specifically, he found that Plaintiff’s failure to quit smoking
undermined her credibility. He did not find that she would not be disabled if she
had followed the medical advice to stop smoking. (R. 20). Thus, the relevant
question is whether the ALJ properly considered Plaintiff’s failure to quit smoking
in determining her credibility. The undersigned finds that he did.
It is undisputed that one of Plaintiff’s severe impairments is chronic
obstructive pulmonary disease (“COPD”). (R. 16). What is disputed is the ALJ’s
finding that “the disabling limitations alleged by [Plaintiff] are not credible in light
11

of the recent nature of her treatment and her continued noncompliance with
recommendations for smoking cessation.” (Id.) The evidence shows that Plaintiff
went to the emergency room with complaints of congestion, coughing, and
shortness of breath on May 18, 2014. (R. 379, 383 & 392). She refused
admission and was sent home with steroids, antibiotics, and inhaler treatments.
She returned two days later with complaints of worsening symptoms. She was
diagnosed with COPD exacerbation with acute hypoxemic respiratory failure. She
was placed on COPD protocol, including oxygen therapy. (R. 399). She was
discharged three days later with mild expiratory wheezing and a prescription for
continued home oxygen therapy with the intent that she be “wean[ed]” from using
the oxygen. (R. 401-02). Tobacco cessation again was encouraged by the health
care providers. (R. 402).
Plaintiff’s next reported treatment was on July 7, 2014, for a progress
review. (R. 416). She was found to have a pulse oxygen level of 92% while on
oxygen therapy. (R. 417). She again was told to stop smoking. (R. 416). At her
administrative hearing on August 5, 2014, Plaintiff stated she was no longer
smoking. (R. 33, 45). She also stated that she smoked before she went into the
hospital, but she “totally quit since then.” (R. 47). The ALJ’s decision was
rendered on October 30, 2014. (R. 24).
12

In view of the foregoing testimony, it was appropriate and reasonable for
the ALJ to consider Plaintiff’s noncompliance with the instruction to cease
smoking. While this evidence is not dispositive on the issue of credibility, it
certainly is relevant. When an individual with a severe medical condition does not
follow medical direction, it certainly brings into question the severity of the
condition or the limitations imposed by the condition. In reaching this
determination, the court recognizes the addictive nature of smoking.4 The court
does not find, however, that to be sufficient to disregard such evidence in its
entirety when considering a claimant’s credibility.5 Additionally, Plaintiff stated
she quit smoking after her hospital visit but the medical records indicate she was
still being told to quit smoking two months later. The only evidence she quit
smoking is her testimony at the hearing. This is a credibility issue properly
considered by the ALJ.
Plaintiff next argues in conclusory fashion that the ALJ erred by not
determining whether her use of portable oxygen to treat her shortness of breath

4

The court recognizes this may be particularly true in Plaintiff’s situation because in
February 2013 she reported smoking one pack per day for twenty-one years. (R. 339).
5

To the extent Plaintiff argues in her reply that Seals “directs the court to review her
subjective disabling limitations from COPD without using her failure to quit somking as a reason
to find her less than credible,” the court disagrees. (Doc. 14 at 4). Seals is not binding
precedent. It is pervasive authority only.
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would meet the duration requirements for disability. (Doc. 12 at 8). As just noted,
Plaintiff’s full-time oxygen use commenced on May 18, 2014. (Doc. 12 at 8).
Thus, any impairment caused by this treatment could not meet the twelve-month
durational requirement for disabling impairments since the hearing was only two
and one-half months later and there was no evidence offered at the hearing that her
use of oxygen treatments would continue. Additionally, there is no evidence in
the record demonstrating that the condition necessitating the oxygen treatment was
expected to last for a continuous period of not less than twelve months. See 20
C.F.R. §§ 404.1505(a), 404.1509 & 416.905(a), 416.909. Cf. Pritchett v. Comm’r
Soc. Sec., 315 F. App’x 806, 815 (11th Cir. 2009) (affirming Appeals Council
decision to deny review despite new evidence because new records demonstrated
that the claimant suffered liver problems, “but did not demonstrate that [her] liver
impairment would not resolve with treatment and proper diet, or otherwise lasted
or would last for 12 continuous months...”). To the contrary, the evidence shows
that the oxygen therapy was implemented with the intent that she be “wean[ed]”
from using it. (R. 401-02). Plaintiff has not argued otherwise. Thus, this claim is
without merit.
3.

Infrequent Treatment

Plaintiff next argues that the ALJ erred in considering her infrequent
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treatment for back pain. (Doc. 12 at 9). Specifically, she argues that the ALJ
failed to consider her inability to afford treatment. (Id. at 9-11).
Plaintiff alleges that she cannot work due to pain and physical dysfunction.
In her function report, she stated that her medical condition affects her ability to
lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, and use her hands. (R.
19, 308). She also alleges that her pain is “constant” and “severe.” (R. 303, 308,
309). She further states that she can only sit for fifteen minutes, stand for five to
ten minutes, and walk for ten minutes at a time. (R. 44).
In addressing this claim, the court sets forth the following guiding
principles:
To demonstrate that pain or another subjective symptom
renders her disabled, claimant must “produce ‘evidence of an
underlying medical condition and (1) objective medical evidence that
confirms the 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.’ ” Edwards v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991)
(quoting Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)).
If an ALJ discredits subjective testimony on pain, “he must articulate
explicit and adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011
(11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th
Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.
1986)). Furthermore, once an ALJ determines whether the pain
standard has been met, he can move forward to consider whether
claimant’s complaints are credible in light of the substantial evidence
of record. See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.
1992) (“After considering a claimant’s complaints of pain, the ALJ
may reject them as not creditable, and that determination will be
15

reviewed for substantial evidence.”) (citing Wilson v. Heckler, 734
F.2d 513, 517 (11th Cir. 1984)) (emphasis supplied). In making the
credibility determination, the ALJ should consider such factors as: the
objective medical evidence; other statements by medical providers;
work history; other people’s observations; daily activities; location,
duration, frequency, and intensity of the alleged symptoms;
precipitating and aggravating factors; type, dosage, effectiveness, and
side effects of any medication taken to alleviate symptoms; treatment
other than medication; other measures used to relieve the symptoms;
and other factors.
Jones v. Colvin, 5:11-cv-3222-CLS, 2013 WL 1909485, *4 (N.D. Ala. May 6,
2013) (J. Smith). Additionally, when addressing frequency of treatment issues, the
following applies:
[T]he Eleventh Circuit has recognized that a claimant’s failure to seek
treatment for a period of time is a factor which may be considered
against a claimant. See, e.g., Dyer [v. Barnhart], 395 F.3d [1206,]
1211 [(11th Cir. 2005)]; Watson v. Heckler, 738 F.2d 1169, 1173
(11th Cir. 1984). For example, in Dyer v. Barnhart, the ALJ
discredited the claimant’s subjective complaints of pain testimony by
explaining that the alleged pain had not required routine or consistent
treatment, and the claimant often went for months or years without
complaining to his physicians of this pain. 395 F.3d at 1211. In that
case, the Eleventh Circuit reversed the district court’s opinion to the
contrary, and concluded that the ALJ’s findings and denial of benefits
were correct. Id. at 1212. Similarly, in Watson v. Heckler, the court
implicitly sanctioned the ALJ’s consideration of the claimant’s
“failure to seek treatment after June 1981 (until after the denial of
benefits by the administrative law judge).” 738 F.2d at 1173. The
Watson court ultimately concluded that the claimant’s lack of medical
treatment along with other evidence properly supported the ALJ’s
decision to discredit the claimant’s pain testimony. Id. at 1173.
Plaintiff offers no case law contradicting these controlling precedents.
On the other hand, a claimant who cannot afford prescribed medical
16

treatment and can find no way to obtain it, may be excused from
noncompliance. See Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th
Cir. 1988). When compliance with a prescribed source of treatment is
at issue, the ALJ has a duty to fully investigate possible reasons for
the alleged noncompliance. See Lucas, 918 F .2d at 1574.
Wright v. Colvin, 4:13-cv-01425, 2015 WL 526806, *17 (N.D. Ala. Feb. 9, 2015)
(J. Proctor).
Plaintiff relies on Social Security Ruling (“SSR”) 96-7p and Dawkins v.
Bowen in support of her contention that the ALJ improperly considered her
infrequent treatment. SSR 96-7p requires that when evaluating credibility, the
adjudicator should consider all the evidence and give specific reasons for the
weight assigned specific statements. Id., 1996 WL 374186, *4 (July 2, 1996).
Any finding “must be grounded in the evidence and articulated in the
determination or the decision.” Id. An “individual’s statements [about pain] may
be less credible if the level or frequency of treatment is inconsistent with the level
of complaints, or if the medical reports or records show that the individual is not
following the treatment as prescribed and there are no good reasons for this
failure.” Id. at *7. However, the regulation also provides that the
adjudicator must not draw any inferences about an individual’s
symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations
that the individual may provide, or other information in the case
record, that may explain infrequent or irregular medical visits or
failure to seek medical treatment.
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Id. One of the specific examples of valid reasons for not obtaining treatment listed
in the regulation is that the individual “may be unable to afford treatment and may
not have access to free or low cost medical services.” Id. at *8.
In Dawkins, the Eleventh Circuit stated that “while a remediable or
controllable medical condition is generally not disabling, when a ‘claimant cannot
afford the prescribed treatment and can find no way to obtain it, the condition that
is disabling in fact continues to be disabling in law.’ ” Id., 848 F.2d at 1213 (citing
Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986) (footnote omitted)). The
court then found that “the ALJ explicitly noted [the claimant’s] noncompliance,
but did not consider her poverty as a good excuse.” Id. at 1214. Reversing for
further administrative proceedings, the court stated:
The problem with this case is that it is unclear from the ALJ’s opinion
whether or not he based his determination that appellant was not
entitled to benefits on [claimant]’s failure to follow prescribed
medical treatment. Although the ALJ found that [claimant]’s
testimony was “inconsistent with the findings of her attending
physicians,” the only inconsistency identified by the ALJ involved
noncompliance with prescribed treatment.
Id. In Wright, the plaintiff alleged that the ALJ erred in drawing adverse
inferences from her lack of medical treatment. 2015 WL 526806, *17. She
further alleged he failed to ask follow-up questions and otherwise develop the
record concerning the lack of treatment – particularly concerning her inability to
18

afford medication. Id. The court held that the ALJ did make the requisite
inquiries and consider the plaintiff’s explanation. Id. It also noted, in pertinent
part, that “the ALJ only inferred from Plaintiff’s lack of medical treatment that
Plaintiff's disability was ‘generally under control’ .... which is different than the
circumstance in which the Commissioner infers from a claimant’s noncompliance
that, if claimant were medicated, she would not to be disabled.” Id. at *18.
In this case, the ALJ did reference Plaintiff’s infrequent treatment
concerning her alleged back and neck pain and her COPD. (R. 19-20). He also
made terse inquiries during the administrative hearing concerning her inability to
pay for treatment. (R. 57). However, he also based his decision on other factors
besides non-treatment. Concerning the pain, the ALJ stated that Plaintiff’s
treating pain management physician, Dr. James Beretta, “only saw [her] in April
2013 and March 2014.” (R. 19). She was diagnosed with spinal stenosis, but Dr.
Beretta “noted few objective findings on physical examination.” (Id.) Dr. Beretta
also opined during the April 2013 visit that Plaintiff was a “spinal stenosis
patient” who would “die soon without ACDF surgery.” (R. 22). He further
concluded that Plaintiff was “disabled for more than 12 months for a lifetime.”
(Id.) Dr. Beretta treated Plaintiff with narcotic analgesic pain medication and
recommended that she followup with a neurosurgeon, which she did not do. (R.
19

19). In July 2013, Plaintiff went to the Community Free Clinic where she reported
multiple areas of pain and she was referred to Dr. Beretta.
Concerning her COPD, the ALJ found that premised on her recent onset as
evidenced by her May 2014 hospital experience and her July 2014 Community
Clinic visit and her noncompliance with smoking cessation recommendations,
Plaintiff was not credible. (R. 20).
While it is a close call, the court finds Plaintiff is not entitled to relief on
this claim for various reasons. First, while the ALJ’s inquiry into Plaintiff’s
financial circumstances and availability of public assistance was limited, it was
addressed by him. Second, Plaintiff’s financial circumstances only limited her
ability to see a “heart and lung doctor.” (R. 57). She was able to go to the
emergency room and the free clinic when necessary, and she was able to fill her
oxygen prescription via public support. (See R. 57). The ALJ’s decision finding
that Plaintiff is not credible is otherwise supported by substantial evidence.
3.

Lack of Functional Limitation Findings

Plaintiff next argues that while the ALJ relied on the overall normal
findings from Dr. Hikel Boohaker, he failed to consider the objective medical
findings made during a prior consultative examination by Dr. Grant Clark. (Doc.
12 at 13). The Commissioner argues that Dr. Clark’s findings were provided in
20

relation to a prior determination denying her claims; therefore, res judicata
principles apply. (Doc. 13 at 10).
As noted initially herein, Plaintiff previously filed SSI and DIB
applications, which were denied at the state agency level in August 2013. There
was no appeal of the same, nor did Plaintiff seek to reopen the prior proceeding.
(See R. 14, 59-80, 82, 93, 109-11). The ALJ in this matter, “after reviewing all the
evidence,” concluded that “no grounds exist upon which the [prior] determinations
may be reopened.” (R. 14). He further found that res judicata applies through
August 9, 2013. (Id.) This resulted in consideration being “given only to whether
[Plaintiff] may receive benefits by virtue of her current applications.” (Id.)
Under the applicable regulations, administrative res judicata applies when
the agency has made a previous final determination or decision regarding a
claimant’s rights on the same facts and issues. See 20 C.F.R. §§ 404.957(c)(1),
416.1457(c)(1). If a claimant fails to proceed to the next level of administrative
review, the last determination is binding. See 20 C.F.R. §§ 404.905, .921, .955,
.981 & 416.1405, .1421, .1455, .1481.
Because Dr. Clark’s assessment was derived and considered in relation to
Plaintiff’s prior claims and because Plaintiff did not appeal the denials of her prior
claims, those decisions are subject to res judicata. Accordingly, the ALJ did not
21

err in failing to consider Dr. Clark’s findings.
Additionally, Plaintiff has failed to argue, much less demonstrate, any
impact that Dr. Clark’s findings might have. (See Doc. 2 at 12-13). A review of
Dr. Clark’s report demonstrates that his findings were consistent with the ALJ’s
RFC finding. See Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005)
(stating, “Although the ALJ did not explicitly state what weight he afforded the
opinions of [several physicians], none of their opinions directly contradicted the
ALJ’s findings, and, therefore, any error regarding their opinions is harmless” and
“while each of these doctors found that [claimant] suffered from chronic pain or
conditions associated with chronic pain, not one of these doctors indicated that
[claimant] is unable to perform sedentary work as a result of that pain.”).
Accordingly, any purported error is harmless.
4.

Plaintiff’s Daily Activities

Plaintiff also argues the ALJ erred in evaluating her activities of daily
living. (Doc. 12 at 13-14). Relying on two recent opinions from this court,
Plaintiff argues that the ALJ’s findings are inadequate. They are decisions by
Judge Hopkins in Grier v. Colvin, 117 F. Supp. 3d 1335 (N.D. Ala. 2015) and
Springer v. Colvin, 5:14-cv-1827-VEH, 2015 WL 6503700 (N.D. Ala. July 30,
2015). The Commissioner argues that the ALJ provided specific reasons
22

supported by substantial evidence to discount Plaintiff’s credibility. (Doc. 13 at
12).
After characterizing Plaintiff’s daily activities as “fairly limited,” the ALJ
discounted their weight because they could not “be objectively verified with any
reasonable degree of certainty” and because “of the relatively weak medical
evidence and other factors discussed in th[e] decision.” (R. 21). Concerning the
second factor, the ALJ stated that “it is difficult to attribute that degree of
limitation to the claimant’s medical condition, as opposed to other reasons.” (Id.)
In Grier, the ALJ discounted the plaintiff’s activities of daily living using
reasoning that is almost identical to the language at issue in this case. Concerning
the absence of “objectively verified” evidence, Judge Hopkins stated that she was
unable to find any binding authority that states testimony regarding
daily activities must be objectively verified. Furthermore, if a
claimant is not required to provide objective proof of pain, it follows
that the claimant’s testimony regarding daily activities does not need
to be objectively verified either. Seemingly, the ALJ would never
credit a claimant’s testimony about limited daily activities, unless the
claimant allows some third-party to observe her daily activities for
some period of time.
117 F. Supp. 3d at 1353. As to the second reasoning for discrediting the plaintiff’s
testimony - other factors - Judge Hopkins found that none of them constituted
substantial evidence supporting the determination. Id. Judge Hopkins further
found that “the ALJ’s statement that ‘it is difficult to attribute that degree of
23

limitation to the claimant’s medical condition, as opposed to other reasons’
seemingly implies that the ALJ believes [the plaintiff] has chosen to live her
limited lifestyle. While the ALJ’s theory may be correct, he did not point to
adequate evidence to back up this conclusion.” Id.
In Springer, Judge Hopkins again commented on an ALJ’s reference to
daily activities not being “objectively verified with any reasonable degree of
certainty.” She stated that such reasoning
is almost a tautology that objective verification of a witness’s
statement is impossible. See United States v. Hall, 165 F.3d 1095,
1119 (7th Cir. 1999) (Easterbrook, J., concurring) (quoting Krist v.
Eli Lilly and Co., 897 F.2d 293, 297 (7th Cir. 1990) (Posner, J.) (“The
basic problem about testimony from memory is that most of our
recollections are not verifiable.”). Whatever significance that
observation may have for policy discussions, it is outside of the scope
of adjudication. Cf. id. (“[A] trial about the process of trials would
divert attention from the main question.”). Second, this court has
noted before, and takes the opportunity to do so again, that there is no
requirement that testimony regarding daily activities be objectively
verified....
2015 WL 6503700 at *9.
While this court agrees with Judge Hopkins that objective verification of a
claimant’s activities is not required, it certainly is helpful when such exists.
However, that is the exception rather than the rule. The ALJ in this instance has
done little to demonstrate that substantial evidence supports his conclusion. Thus,
it is inadequate on its own. The ALJ did provide a second reason - weak medical
24

evidence and other factors previously discussed in the opinion. This court does
not find such a conclusory statement helpful, but it still must evaluate the
reasoning under the circumstances.
With regard to her back and neck pain, the record shows that Plaintiff has
suffered from multilevel degenerative changes in her back and neck since at least
October 2011.6 (R. 337-38). During the relevant period, she was seen only twice
for back and neck pain by Dr. Beretta and once by the Community Free Clinic.
She was diagnosed with spinal stenosis. The medical notes from those visits do
not enumerate disabling symptoms or recommended significant medical
restrictions. With regard to her COPD, her first significant event was in May 2014
when she went to the emergency room. While this episode resulted in her being
placed on an oxygen regiment, the record shows this is intended to be temporary.
Finally, with regard to her obesity, the ALJ found that no medical provider found
her obesity to be a limiting medical condition. (R. 21). By looking at the entire
record, the undersigned finds that the ALJ has offered “particular reasons
supported by substantial evidence” to overcome Plaintiff’s challenges.
B.

Opinion of Plaintiff’s Treating Doctor
Plaintiff next argues that the ALJ improperly rejected the medical opinion of

6

Plaintiff attributes the condition to an accident occurring on August 8, 2011. (R. 337).
25

her treating source – Dr. Beretta. (Doc. 13-12-15). The opinion at issue was
issued on a “Patient Charity Care Application-Physician Disability Confirmation”
dated May1, 2014. (R. 334). It states under the “major illness, injury, or
condition” question as follows: “Spinal stenosis pt to die soon without ACDF
surgery.”7 (Id.) It further provides that she has been disabled for a “lifetime.”8
The ALJ gave “little weight” to Dr. Beretta’s’s opinion for multiple reasons,
stating as follows:
First, it is inconsistent with Dr. Beretta’s treatment notes. Dr. Baretta
referred the claimant to a neurosurgeon but did not ever himself
recommend surgery. Moreover, the record shows that the claimant
did not follow up with his referral. In addition, as noted above, after
April 2013, Dr. Beretta did not treat the claimant again until March
2014, almost a year later. Furthermore, the undersigned notes that Dr.
Beretta’s opinion is vague in that it does not specify function by
function limitations and [is] conclusory without explanation. In
addition, it addressed an issue that is reserved to the Commissioner....
(R. 22). Plaintiff challenges the foregoing findings, asserting that the ALJ did not
articulate his reasoning as is required. (Doc. 12 at 15). Specifically, she
challenges the findings that (1) Dr. Beretta’s opinion is inconsistent with his
treatment notes; (2) Plaintiff’s failure to have surgery discredits the severity of her

7

Counsel for the Commissioner believes, and counsel for Plaintiff does not contest, that
ACDF surgery stands for Anterior Cervical Discectomy and Fusion surgery. (Doc. 13 at 12, n.5).
8

It also states: “Disabled for more than 12 months for a lifetime per Dr. Beretta.” (R.

334).
26

neck pain; and (3) her treatment consisted of two visits almost a year apart. (Id. at
15-16). Additionally, she challenges his determination that Dr. Beretta’s opinion
was vague. (Id. at 16).
As noted above, Plaintiff bears the burden of proving that she is disabled
and, consequently, she is responsible for producing evidence in support of her
claim. See 42 U.S.C. §§ 423(d)(5); Moore, 405 F.3d at 1211 (11th Cir. 2005);
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (“the claimant bears the
burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim”). Plaintiff must prove the inability “to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A).
Eleventh Circuit precedent is clear in evaluating this claim:
“Medical opinions are statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the claimant]
can still do despite impairment(s), and [the claimant’s] physical or
mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
Absent “good cause,” an ALJ is to give the medical opinions of
treating physicians “substantial or considerable weight.” Lewis [v.
Callahan], 125 F.3d [1436,] 1440 [(11th Cir. 1997)]; see also 20
C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause exists
27

“when the: (1) treating physician’s opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s
own medical records.” Phillips [v. Barnhart], 357 F.3d [1232,]
1241[(11th Cir. 2004)]. With good cause, an ALJ may disregard a
treating physician’s opinion, but he “must clearly articulate [the]
reasons” for doing so. Id. at 1240–41.
Moreover, the ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor. Sharfarz v.
Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam). “In the
absence of such a statement, it is impossible for a reviewing court to
determine whether the ultimate decision on the merits of the claim is
rational and supported by substantial evidence.” Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
Winschel v. Comm’r, 631 F.3d 1176, 1178-79 (11th Cir. 2011). “Additionally, the
Commissioner, not a claimant’s physician, is responsible for determining whether
the claimant is statutorily disabled. 20 C.F.R. § 404.1527(d)(1). Specifically, ‘[a]
statement by a medical source that [a claimant is] “disabled” or “unable to work”
does not mean that [the Commissioner] will determine that [the claimant is]
disabled.’ ” Forsyth v. Comm’r, 503 F. App’x 892, 894 (11th Cir. 2013).
With regard to the ALJ’s statement that Dr. Beretta’s opinion is inconsistent
with his treatment notes, the record is confusing. The Commissioner is correct
that Dr. Beretta did not recommend surgery. However, it is undisputed that he is a
pain management physician, not a neurosurgeon. To the extent Plaintiff argues
that the ALJ is incorrect that she did not follow through on the UAB Neurosurgery
28

consult, the record shows that on March 29, 2013, Dr. Beretta’s treatment plan
included UAB Neurosurgery. (R. 368). On April 26, 2013, Dr. Beretta’s progress
note reflects a referral to UAB Neurosurgery. (R. 364). The next reference to
surgery is in Dr. Beretta’s March 12, 2014 progress note stating that Plaintiff was
“nonsurgical.” (R. 362). The court does not find this evidence significant. If
Plaintiff did not go as directed, it tends to support the ALJ’s decision that she did
not follow Dr. Beretta’s direction. If Plaintiff did go, and was found to not be a
surgical candidate, that undermines Dr. Beretta’s opinion that without surgery,
Plaintiff would die. Either way, this evidence does not support Plaintiff’s
contention challenging the ALR’s decision. See Phillips v. Barnhart, 357 F.3d
1232, 1240-41 (11th Cir. 2004) (noting that “good cause” for discounting the
opinion of a treating physician exists when the (1) treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician's opinion was conclusory or inconsistent with the doctor’s
own medical records.).
Next, Plaintiff argues that her failure to have surgery does not discredit the
severity of her neck pain. (Doc. 12 at 16). The Commissioner argues the
opposite, stating the absence of surgery specifically contradicts the opinion of Dr.
Beretta. (Doc. 13 at 14). The court must consider the fact that a more
29

conservative treatment plan was followed in this instance. This supports the
ALJ’s decision to discount Dr. Beretta’s opinion. See Brown v. Comm’r of Soc.
Sec., 425 F. App’x 813, 815-18 (11th Cir. 2007) (approving consideration of the
lack of treatment and further conservative treatment to discount the plaintiff’s pain
testimony); Peters v. Astrue, 232 F. App’x 866, 871 (11th Cir. 2007) (finding that
conservative treatment supported the ALJ’s decision to discount treating
physicians’ opinions).
Plaintiff further argues that the ALJ incorrectly noted that her treatment
consisted of two visits almost a year apart when, in fact, there were three visits
about eleven months apart. (Id. at 16). Plaintiff is correct that there were three
visits and that the time between the second and third visit was about eleven
months. The court does not find these distinctions significant. They do not
change the fact that Plaintiff’s treatment was relatively conservative and Dr.
Beretta’s notes do not reflect disabling symptoms or pain.
Lastly, Plaintiff challenges the ALJ’s determination that Dr. Beretta’s
opinion was vague. (Id. at 16). The ALJ found that Dr. Beretta’s opinion was
vague in that it did not specify the functional limitations on her abilities and did
not contain any explanation. Plaintiff asserts Dr. Beretta’s opinion did not need to
provide a function-by-function assessment because it was a medical source
30

opinion about the nature and severity of her impairments and symptoms. (Id.
(citing 20 C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2)). The ALJ’s decision to
discount the opinion because it was vague and conclusory was appropriate. He
considered the opinion as he was required to do. The opinion is of little use due to
the lack of specificity and the lack of support in the record, and because it
provides no direction concerning Plaintiff’s ability to work, which is the necessary
inquiry. Cf. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005) (the
“mere existence of these impairments does not reveal the extent to which they
limit her ability to work or undermine the ALJ’s determination in that regard”).
C.

Plaintiff’s Urinary Incontinence
Plaintiff argues that the ALJ erred in failing to evaluate her allegations of

urinary incontinence. (Doc. 12 at 17-21). The Commissioner argues that the ALJ
did not err in his evaluation of Plaintiff. (Doc. 13 at 17). She also asserts that
much of Plaintiff’s evidence of incontinence was subject to administrative res
judicata. (Id. at 16-17).
During Plaintiff’s administrative hearing, she stated that she could not work
because of her spinal problems and the related incontinence. (R. 39-40, 42). She
stated that she had “severe pain in [her] back and the doctor said [she] ha[d]
anterior and posterior slipping of the disc, spinal stenosis.” (R. 39). As a result,
31

she had difficulty controlling her “bathroom habits” and has muscle spasms and
nerve damage. (Id.) She also stated that the pain from her back prevents her from
working. (R. 39-40). She further stated that typically she wears 10 to 12 diapers
and as many as 20 per day when she is taking a Lasix. (R. 42). She did not
include any allegation of incontinence in her present application for disability. (R.
274). This condition was listed on her previous applications for benefits, which
were denied. (See R. 218, 255).
During the consideration process on her previous applications, Plaintiff was
examined by Dr. Grant Clark at the request of the Alabama Disability
Determination Services. (R. 353). In his Clinical History, Dr. Clark stated that
Plaintiff informed him of her incontinence as follows:
Ms. Pendley states that she has been having difficulty with
incontinence. She states that it is mostly a bladder incontinence then
bowel incontinence. She states that physicians have told her this may
be related to her low back injury. In particular she wears adult
diapers and goes six to eight times a day. She states that essentially
around the clock, she is largely incontinent of urine as she is unable
to have the sensation of when she needs to go to the bathroom. She
states when she does get the sensation that she does need to urinate,
she is unable to control this.
(R. 354). In the section of his notes discussing his impression, Dr. Clark states:
Ms. Pendley does give a clinical history of neurologic incontinence
issue rather than a stress incontinence issue from pelvic floor atrophy.
She is having over 6 to 8 diapers a day. She did have [an] exam
finding of a positive straight leg test on the left that is conceivable
32

that she may have a nerve outlet impingement impinging upon her
ability to sense when her bladder is full. However, I am not aware
about further workup that would elucidate medical dimensions of
eulogy for incontinence. However, her clinical history is consistent
with neurogenic bladder.
(R. 358). Additional medical records from Dr. Lorn Miller on February 18, 2013,
state Plaintiff was positive for intermittent bladder incontinence three to four times
a day. (R. 341). Dr. Beretta also mentioned incontinence in his progress notes on
March 29, 2013, and April 26, 2013. (R. 364, 368).
As to the Commissioner’s argument that res judicata precludes
consideration of the evidence from Drs. Clark and Miller, the court agrees in part.
To the extent there has been a “previous determination or decision ... about
[Plaintiff’s] rights on the same facts and on the same issue or issues, and [that]
previous determination or decision [had] become final by either administrative or
judicial action,” it is not reviewable. Luckey v. Asture, 331 F. App’x 634, 638
(11th Cir. 2009) (citing 20 C.F.R. § 404.957(c)(1)). However, to the extent that
information is relevant background information on the new application for a
different period, it should be considered in determining and assessing Plaintiff’s
medical history for determining her disability, if any, for a subsequent time. (See
R. 14 (“Consideration, therefore, will be given only to whether claimant may
receive benefits by virtue of her current applications.”)).
33

The Commissioner further argues that “the ALJ did not err in evaluating her
incontinence.” (Doc. 13 at 17). In support of her contention, the Commissioner
cites Norton v. Comm’r of Soc. Sec., 607 F. App’x 913 (11th Cir. 2015). The
problem with this argument is that as best as the court can discern, the ALJ did not
evaluate Plaintiff’s incontinence. Norton is significant in that it sets forth relevant
guiding principles:
“It is well-established that the ALJ has a basic duty to develop a full
and fair record.” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir.
1995). Consequently, the ALJ must “ ‘scrupulously and
conscientiously probe into, inquire of, and explore for all relevant
facts.’ ” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)
(quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)). The
ALJ must consider all of the impairment evidence presented at the
hearing, stating the weight accorded to each item and the reasons for
accepting or rejecting the evidence. Lucas v. Sullivan, 918 F.2d
1567, 1574 (11th Cir. 1990).
607 F. App’x at 915. Additionally, the court recognizes that an ALJ is not
required to discuss every piece of evidence in detail. Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005) (stating “there is no rigid requirement that the ALJ
specifically refer to every piece of evidence in his decision, so long as the ALJ’s
decision, ... , is not a broad rejection which is ‘not enough to enable [the district
court or this Court] to conclude that [the ALJ] considered her medical condition as
a whole.’ ” (quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)
(internal quotation omitted)).
34

Norton is distinguishable from the present matter because the ALJ in that
case actually reviewed the urinary incontinence impairment. Id. at 916
(“Substantial evidence also supported the ALJ’s conclusion that Norton did not
suffer from a severe impairment caused by urinary incontinence, which was not
included in his application as a disabling impairment.”). In this case, the ALJ
made no findings and did not discuss the evidence in the record. The court cannot
say on this record that the ALJ adequately addressed this issue.
Because the record is not fully developed concerning Plaintiff’s
incontinence impairment, the case must be remanded for a complete analysis of the
matter. The review should include the following: an analysis of the nature and
degree, if any, of the impairment; the impact this condition may have in
combination with her other conditions (e.g. obesity, oxygen treatments); and the
effects of this impairment on Plaintiff’s residual functional capacity. This list is
intended to provide direction, not to hamstring the ALJ’s further review of this
impairment or Plaintiff’s present condition.
VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the case is
due to be reversed and remanded to the Commissioner for further proceedings
consistent with this opinion. An appropriate order will be entered separately.
35

DONE, this the 6th day of February, 2017.

______________________________
JOHN E. OTT
Chief United States Magistrate Judge

36