Harris v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/22/2017. (KEK)

FILED
2017 Sep-22 PM 02:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

LUCILLE HARRIS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No.: 5:16-CV-01050-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Lucille Harris seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied Ms. Harris’s claim for a period of disability, disability
insurance benefits, and supplemental security income. After careful review, the
Court remands the Commissioner’s decision.1
I.

1

PROCEDURAL HISTORY

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).

Ms. Harris applied for a period of disability, disability insurance benefits,
and supplemental security income on March 24, 2014. (Doc. 6-6, pp. 2-14). Ms.
Harris alleges that her disability began on February 1, 2014. (Doc. 6-6, pp. 2, 9).
The Commissioner initially denied Ms. Harris’s claims on May 30, 2014. (Doc. 65, pp. 4, 9). Ms. Harris requested a hearing before an Administrative Law Judge
(ALJ).

(Doc. 6-5, pp. 16-18).

The ALJ issued an unfavorable decision on

December 28, 2015. (Doc. 6-3, pp. 14-26). On April 28, 2016, the Appeals
Council declined Ms. Harris’s request for review (Doc. 6-3, p. 2), making the
Commissioner’s decision final and a proper candidate for this Court’s judicial
review. See 42 U.S.C. § 405(g) and § 1383(c).
II.

STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the

ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
“Substantial evidence is more than a

to support the ALJ’s factual findings.

scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
2

1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”

Costigan v.

Comm’r, Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
3

relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Ms. Harris has not engaged in substantial
gainful activity since February 1, 2014, the alleged onset date. (Doc. 6-3, p. 19).
The ALJ determined that Ms. Harris suffers from the following severe
impairments: asthma, pain in the shoulders, and diverticulitis. (Doc. 6-3, p. 19).
Based on a review of the medical evidence, the ALJ concluded that Ms. Harris
does not have an impairment or a combination of impairments that meets or
medically equals the severity of any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Doc. 6-3, p. 19).
In light of Ms. Harris’s impairments, the ALJ evaluated Ms. Harris’s
residual functional capacity or RFC. The ALJ determined that Ms. Harris has the
RFC to:
perform less than the full range of medium work as defined in 20 CFR
404.1567(c) and 416.967(c) except she can lift and carry 50 pounds
occasionally and 25 pounds frequently. She can stand, walk and si[t]
eight hours in an eight hour day. She can frequently push and pull
bilaterally with the lower extremities. She can frequent[ly] cli[mb]
ramps and stairs. She cannot climb ladders, ropes, and scaffolds. She
can frequently balance, stoop, crouch, crawl and kneel. She can
frequently perform front and lateral reaching with the bilateral upper
extremities. She cannot perform overhead reaching bilaterally. She
cannot be exposed to unprotected heights. She should avoid

4

concentrated exposure to fumes, odors, dust, gases, poor ventilation,
extreme cold, heat, humidity and wetness.

(Doc. 6-3, p. 20).
Based on this RFC, the ALJ concluded that Ms. Harris is able to perform her
past relevant work as a preschool teacher, a file clerk, and an aid. (Doc. 6-3, pp.
24-25). Based on testimony from a vocational expert, the ALJ also found that
other jobs exist in the national economy that Ms. Harris can perform, including
hand packager, janitor, and assembler. (Doc. 6-3, pp. 25-26). Accordingly, the
ALJ determined that Ms. Harris is not disabled within the meaning of the Social
Security Act. (Doc. 6-3, p. 26).
IV.

ANALYSIS
Ms. Harris argues that the ALJ failed to properly apply the Eleventh Circuit

pain standard. The Court agrees.
“To establish a disability based on testimony of pain and other symptoms,
the claimant must satisfy two parts of a three-part test by 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.’”
Zuba-Ingram v. Commissioner of Social Sec., 600 Fed. Appx. 650, 656 (11th Cir.
2015) (quoting Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per
5

curiam)). A claimant’s testimony coupled with evidence that meets this standard
“is itself sufficient to support a finding of disability.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991) (citation omitted). If the ALJ discredits a claimant’s
subjective testimony, then the ALJ “must articulate explicit and adequate reasons
for doing so.” Wilson, 284 F.3d at 1225; see SSR 16-3P, 2016 WL 1119029 at *9
(“The determination or decision must contain specific reasons for the weight given
to the individual’s symptoms, be consistent with and supported by the evidence,
and be clearly articulated so the individual and any subsequent reviewer can assess
how the adjudicator evaluated the individual’s symptoms.”).2

2

On March 28, 2016, SSR 16-3p superseded SSR 96-7p, the previous ruling concerning
subjective complaints about pain. 2016 WL 1237954 at *1. SSR 16-3p “provides guidance
about how [the Social Security Administration] evaluate[s] statements regarding the intensity,
persistence, and limiting effects of symptoms in disability claims.” 2016 WL 1119029 at *1.
SSR 16-3p eliminates the term “credibility” from social security policy but does not change the
factors that an ALJ should consider when examining subjective pain testimony. See 2016 WL
1119029 at *7. SSR 16-3p provides clarification of the subjective pain standard; it does not
substantively change the standard. The Appeals Council declined review on April 28, 2016
(Doc. 6-3, p. 2) which made the ALJ’s opinion the Commissioner’s final decision. See Sims. v.
Apfel, 530 U.S. 103, 106-07 (2000) (“SSA regulations provide that, if
the Appeals Council grants review of a claim, then the decision that the Council issues is
the Commissioner’s final decision. But if, as here, the Council denies the request for review, the
ALJ’s opinion becomes the final decision.”). SSR 16-3p applies to administrative decisions
issued on or after March 28, 2016. The Court has not located authority indicating that the
Appeals Council was required to apply SSR 16-3p to its review of the ALJ’s decision, but
because the ALJ’s opinion became the Commissioner’s final decision on April 28, 2016, it
appears that SSR 16-3p is the operative ruling concerning an evaluation of Ms. Harris’s pain
testimony. Under the circumstances of this case, the Court would remand for further
proceedings under either standard.

6

Ms. Harris alleges that she suffers from disabling pain in her hands, arms,
neck, back, left knee, and feet. (Doc. 6-3, pp. 44, 55, 57).3 At her administrative
hearing, Ms. Harris testified that she has numbness in her hands and thumbs.
(Doc. 6-3, p. 44). Ms. Harris testified that she suffers from flatfeet which began to
interfere with her ability to work around 2000. (Doc. 6-3, p. 56). Ms. Harris
testified that since 2008, she has experienced unbearable neck pain that travels
from her spine to her temple. (Doc. 6-3, p. 56). Ms. Harris testified that she
suffers from a stabbing pain in her lower back. (Doc. 6-3, p. 57). Ms. Harris
testified that she has had knee pain in her left knee since 2000, but she had not
sought treatment for her knee pain until shortly before the administrative hearing.
(Doc. 6-3, p. 57).
Ms. Harris testified that she can stand for no more than 15 minutes. (Doc. 63, p. 60). She stated that after sitting for 20 minutes, she “itch[es]” to get up.
(Doc. 6-3, p. 60). Ms. Harris testified that she can walk for 20-30 minutes at one
time. (Doc. 6-3, p. 60). A “[l]ot of times when [she] walks,” Ms. Harris’s left
knee “gives out,” and she falls. (Doc. 6-3, p. 60). Ms. Harris explained that she
cannot crawl, squat, or kneel. (Doc. 6-3, pp. 60-61). Ms. Harris testified that she
can lift only a half-gallon of milk. (Doc. 6-3, p. 62). She testified that she must lie

3

Ms. Harris does not challenge the ALJ’s evaluation of her complaints of pain associated with
her asthma or diverticulitis. (Doc. 10, pp. 5-12). Therefore, the Court focuses its analysis on
Ms. Harris’s complaints regarding musculoskeletal pain and the ALJ’s corresponding findings.
7

down for a couple of hours a day. (Doc. 6-1, p. 62). Ms. Harris testified that she
cooks, does a little sweeping, goes grocery shopping, and sometimes goes to
church. (Doc. 6-3, pp. 63-64).
The ALJ found that Ms. Harris’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [Ms.
Harris’s] statements concerning the intensity, persistence[,] and limiting effects of
these symptoms are not entirely credible.” (Doc. 6-3, p. 21).4 The ALJ stated that
she “considered the medical source opinion evidence to be a major factor in
assessing [Ms. Harris’s] limitations and in evaluating the credibility of her
subjective complaints.”

(Doc. 6-3, p. 23).

The ALJ rejected Ms. Harris’s

subjective pain testimony in part because she found that “not one of the medical
sources of record has offered an opinion that [Ms. Harris] has limitations greater
than those stated in the above residual functional capacity.” (Doc. 6-3, p. 23).5

Although the ALJ used the term “credible,” the ALJ did not base her findings on evidence in
the record that was unrelated to Ms. Harris’s impairments, and she did not assess whether Ms.
Harris generally was a truthful person. Assuming that SSR 16-3p applies to the analysis of Ms.
Harris’s subjective complaints, the ALJ properly reviewed Ms. Harris’s testimony about her
pain, the objective medical evidence, and Ms. Harris’s activities of daily living, and the ALJ
compared Ms. Harris’s statements to the record as whole. (Doc. 6-3, pp. 21-24). Even though
the ALJ’s analysis of Ms. Harris’s subjective complaints does not run afoul of SSR 16-3p in this
regard, as explained below, because the ALJ failed to acknowledge a treating physician’s lifting
restrictions, the Court is unable to determine whether substantial evidence supports the ALJ’s
overall analysis of Ms. Harris’s pain testimony.
4

5

The ALJ also found that objective medical examination findings, the conservative nature of Ms.
Harris’s care, Ms. Harris’s failure to follow certain recommended treatment, and Ms. Harris’s
daily activities undermine her subjective complaints of pain. (Doc. 6-3, pp. 21-24). The Court
does not consider Ms. Harris arguments with respect to this portion of the ALJ’s analysis
8

This finding is not supported by the record. In March 2014 and November 2014,
Dr. Marco Ortega, one of Ms. Harris’s treating physicians, instructed Ms. Harris to
“avoid lifting more than 5 [pounds] to prevent complications in [her] cervical
spine.” (Doc. 6-13, p. 81; Doc. 6-15, p. 48).
An ALJ must give the opinion of a treating physician like Dr. Ortega
“substantial or considerable weight unless ‘good cause’ is shown to the contrary.”
Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (internal quotation
marks and citation omitted).

Good cause exists when “(1) [the] treating

physician’s opinion was not bolstered by the evidence; (2) [the] evidence
supported a contrary finding; or (3) [the] treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Id. at 1240-41;
see also Crawford, 363 F.3d at 1159. An ALJ “must clearly articulate the reasons
for giving less weight to the opinion of a treating physician, and the failure to do so
is reversible error,” unless the ALJ’s failure to give the physician’s opinion proper
weight is harmless error. Wright v. Barnhart, 153 Fed. Appx. 678, 684 (11th Cir.
2005) (citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). An error
is harmless if the correct application of the treating physician standard “would not
contradict the ALJ’s ultimate findings.” Wright, 153 Fed. Appx. at 684.

because the Court finds that the ALJ’s failure to consider a treating physician’s opinion requires
remand.
9

This is not a case where Dr. Ortega’s opinion “merely supported the ALJ’s
conclusion,” such that the ALJ’s failure to account for Dr. Ortega’s lifting
restrictions is harmless error. Nyberg v. Comm’r of Soc. Sec., 179 Fed. Appx. 589,
592 (11th Cir. 2006). Dr. Ortega’s opinion that Ms. Harris should not lift more
than five pounds directly contradicts the ALJ’s RFC determination which indicates
that Ms. Harris is able to “lift and carry 50 pounds occasionally and 25 pounds
frequently.” (Doc. 6-3, p. 20). In addition, Dr. Ortega’s opinion supports Ms.
Harris’s testimony that she can lift only a half-gallon of milk.

Without

acknowledging or assigning weight to the lifting restriction that Dr. Ortega
identified, the ALJ relied on consultative examiner Dr. Shelly Lewis’s opinion that
Ms. Harris can work and rejected Ms. Harris’s pain testimony. (Doc. 6-3, p. 24).
Because the parties did not address the lifting restriction that Dr. Ortega
placed on Ms. Harris, the Court entered an order giving the parties an opportunity
to explain the impact of the ALJ’s failure to consider Dr. Ortega’s opinion. (Doc.
14). The Commissioner argues that the ALJ’s failure to mention Dr. Ortega’s
opinion is harmless because Dr. Ortega did not continue the 5 pound lifting
restriction after November 14, 2014 and because Dr. Ortega did not note the 5
pound lifting restriction when he referred Ms. Harris to physical therapy in

10

February 2015. (Doc. 15, pp. 2-4).6 Ms. Harris explains that there is no evidence
that Dr. Ortega changed the lifting restriction and that treatment notes that postdate the lifting restriction indicate that Ms. Harris continued to experience
problems with her cervical spine. (Doc. 16, pp. 2-3). Ms. Harris also contends that
Dr. Ortega ordered physical therapy to treat her patellofemoral syndrome, not her
cervical radiculopathy; therefore, according to Ms. Harris, Dr. Ortega reasonably
would not have included the lifting restriction associated with Ms. Harris’s cervical
spine in notes concerning physical therapy to treat an unrelated issue. (Doc. 16, p.
3). The parties’ arguments demonstrate why the Court cannot find that the ALJ’s
failure to credit Dr. Ortega’s opinion is harmless error “without re-weighing the
evidence and engaging in conjecture that invades the province of the ALJ.”
Nyberg, 179 Fed. Appx. at 592; compare Wright, 153 Fed. Appx. at 684
(“Although the ALJ did not explicitly state what weight he afforded the opinions of
[various physicians], none of their opinions directly contradicted the ALJ’s
findings, and, therefore, any error regarding their opinions is harmless.”).
Because the ALJ did not consider or assign weight to the lifting restrictions
that Dr. Ortega placed on Ms. Harris, the Court cannot determine whether
substantial evidence supports the ALJ’s analysis of Ms. Harris’s subjective

6

The physical therapy form to which the Commissioner refers requests, as the Commissioner
noted, information about weight bearing limitations, not weight lifting limitations. (Doc. 6-16, p.
29).
11

complaints of pain. See e.g., Short v. Comm’r of Soc. Sec. Admin., 581 Fed. Appx.
754, 757 (11th Cir. 2014) (“[W]ithout a clear articulation of the reasons the ALJ
rejected Dr. Martin’s opinion, it is impossible to determine whether the ultimate
decision was rational and supported by substantial evidence.”) (citing Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). Therefore, the Court remands this
case to the Commissioner for an evaluation of Ms. Harris’s pain testimony in light
of Dr. Ortega’s opinion that Ms. Harris cannot lift more than five pounds.7
V.

CONCLUSION
For the reasons discussed above, the Court remands this case to the

Commissioner for administrative proceedings consistent with this memorandum
opinion. The Court will enter a separate final order.
DONE and ORDERED this September 22, 2017.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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The Court also recommends that the ALJ reconsider the RFC in light of Dr. Ortega’s opinion.
12