Grier v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/31/2015. (JLC)

FILED
2015 Jul-31 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
TERESA GRIER,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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) Case No.: 6:14-CV-1403-VEH
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MEMORANDUM OPINION
Plaintiff Teresa A. Grier (“Ms. Grier”) brings this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act. She seeks review of a final adverse decision of
the Commissioner of the Social Security Administration, which denied her
application for Supplemental Security Income (“SSI”) benefits.1 Ms. Grier timely
pursued and exhausted her administrative remedies available before the
Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g), § 205(g)
of the Social Security Act.

1

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.

FACTUAL AND PROCEDURAL HISTORY
Ms. Grier was 45 years old at the time of her hearing before the Administrative
Law Judge (“ALJ”). (Tr. 161). Ms. Grier testified that she had a ninth (9th) grade
special education. (Tr. 32). Her past relevant work experience includes employment
as a painter. (Tr. 21). Ms. Grier stated she stopped working on December 31, 2002,
and claims she became disabled on that date.2 (Tr. 140, 166).
On May 24, 2011, Ms. Grier protectively filed a Title XVI application for SSI.3
(Tr. 55). On October 5, 2011, the Commissioner initially denied this claim. (Tr. 74).
Ms. Grier timely filed a written request for a hearing on October 24, 2011. (Tr. 80).
On February 1, 2012, a fully favorable decision of Ms. Grier’s application was
reached by an attorney advisor.4 (Tr. 56). On March 29, 2012, the Appeals Council
2

On Ms. Grier’s disability report she listed several conditions that affected her ability to work
including: fibromyalgia, bipolar, diabetes, fatty liver disease, asthma, arthritis, tendonitis, ADD, high
blood pressure, anxiety, depression, acid reflux, restless leg syndrome, muscle deterioriation, muscle
spasms, learning disability. (Tr. 166). The court notes that Disability Determination Service (“DDS”)
identified organic mental disorders as Ms. Grier’s primary diagnosis, and disorders of back
(discogenic and degenerative) as her secondary diagnosis. (Tr. 55).
3

The court notes that nearly every document states the application date as being May 24,
2011; however, the exhibit labeled “Application for Supplemental Security Income Benefits” states
that Ms. Grier applied on June 1, 2011. (Tr. 140).
4

The prehearing proceeding was conducted pursuant to 20 C.F.R. § 416.1442(a):
After a hearing is requested but before it is held, an attorney advisor
may conduct prehearing proceedings as set out in paragraph (c) of this
section. If after the completion of these proceedings [the
commissioner] can make a decision that is fully favorable to [the
claimant] and all other parties based on the preponderance of the
2

sent notice to Ms. Grier of its intention to review the decision reached by the attorney
advisor based on its own motion pursuant to 20 C.F.R. § 416.1469. (Tr. 96). On
October 17, 2012, the Appeals Council informed Ms. Grier that the previously
favorable decision had been vacated and her case had been remanded to an ALJ for
further proceedings. (Tr. 67). The ALJ conducted a hearing on the matter on July 7,
2013. (Tr. 30). On October 21, 2013, the ALJ issued his opinion concluding Ms.
Grier was not disabled and denied benefits. (Tr. 22). On May 20, 2014, the Appeals
Council issued a denial of review on her claim. (Tr. 1).
Ms. Grier filed a complaint with this court on July 22, 2014, seeking review of
the Commissioner’s determination. (Doc. 1). The Commissioner answered on
November 13, 2014. (Doc. 8). Ms. Grier filed a supporting brief (Doc. 12) on January
26, 2015, and the Commissioner responded with its own (Doc. 13) on February 27,
2015. With the parties having fully briefed the matter, the court has carefully
considered the record and, for the reasons stated below, reverses and remands the
decision of the ALJ.5

evidence, an attorney advisor, instead of an administrative law judge,
may issue the decision.
5

In general, the legal standards applied are the same regardless of whether a claimant seeks
SSI or Disability Insurance Benefits (“DIB”). However, separate, parallel statutes and regulations
exist for SSI and DIB claims. Therefore, citations in this opinion should be considered to refer to the
appropriate parallel provision as context dictates. The same applies to citations of statutes or
regulations found in quoted court decisions.
3

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
analysis has been conducted, the ALJ’s decision must be reversed. Cornelius v.
Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir. 1991).
4

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.6 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)
(2)
(3)

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];

6

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.
5

(4)
(5)

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
After consideration of the entire record, the ALJ made the following findings:
1.

The claimant has not engaged in substantial gainful activity since May
24, 2011, the application date. (20 C.F.R. § 416.971 et seq). (Tr. 12).

2.

The claimant has the following severe impairments: obesity,
fibromyalgia, diabetes (non-insulin dependent Type II), nicotine
dependent with episodes of bronchitis, mild degenerative disk disease
of the spine, sleep apnea, and depression. The claimant’s rectal polyp
was successfully removed without any complications and is, therefore,
considered by the undersigned to be a non-severe impairment. (20
C.F.R. § 416.920(c)). (Tr. 12).
6

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (20
C.F.R. §§ 416.920(d), 416.925, 416.926). (Tr. 13).

4.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform less
than the full range of light work defined in 20 C.F.R. § 416.967(b). The
claimant can occasionally lift and/or carry 20 pounds and frequently lift
and/or carry 10 pounds. Claimant can stand and/or walk, with normal
breaks, for a total of 6 hours in an 8-hour workday and sit, with normal
breaks, for a total of 6 hours in an 8-hour workday. Pushing and/or
pulling of foot controls with the left lower extremity is limited to
occasionally, with the total restriction of climbing ladders, ropes, or
scaffolds and also crawling. Balancing, stooping, kneeling, and
crouching would be occasional. She should avoid concentrated exposure
to cold, heat, humidity, vibration, fumes, odors, dust, gases, and poor
ventilation. The claimant should not work at unprotected heights or
around dangerous moving unguarded machinery. The claimant is limited
to performing unskilled work with no more than occasional interaction
with supervisors, coworkers, and the general public. Otherwise, she
would appear to be able to perform such work for periods up to 2
consecutive hours without a standard work break. (Tr. 14).

5.

The claimant is unable to perform her past relevant work. (20 C.F.R. §
416.965). (Tr. 21).

6.

The claimant was 43 years old, which is defined as a younger individual
age 18-49, on the date the application was filed. (20 C.F.R. § 416.963).
(Tr. 21).

7.

The claimant has a limited education and is able to communicate in
English. (20 C.F.R. § 416.964). (Tr. 21).

8.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
7

claimant has transferable job skills. (See SSR 82-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2). (Tr. 21).
9.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform. (20
C.F.R. §§ 416.969 and 416.969(a)). (Tr. 21).

10.

The claimant has not been under a disability, as defined in the Social
Security Act, since May 24, 2011, the date the application was filed. (20
C.F.R. § 416.920(g)). (Tr. 22).
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
Cir. 1980)).7 However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Ms. Grier asserts that “the ALJ improperly discounted Grier’s testimony of disabling
limitations and failed to fully and fairly develop the record.” (Doc. 12 at 11).
The court has carefully reviewed the record and finds that this case should be

7

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).
8

remanded for further development. Under the instant circumstances, substantial
evidence does not exist in the record to support the ALJ’s conclusion that Ms. Grier
is not disabled and can perform reduced light work because: (1) the ALJ’s negative
credibility finding was not based on substantial evidence; and (2) independent of the
ALJ’s erroneous negative credibility finding, the ALJ’s RFC determination is not
supported by substantial evidence. While the court has endeavored to separate the
issues into their respective subparts, it recognizes the overlap and interrelated nature
of these findings.
I.

The ALJ’s Credibility Finding Is Not Based On Substantial Evidence.
Ms. Grier argues that “the ALJ did not properly assess [Ms. Grier]’s credibility

consistent with the Regulations.” (Doc. 12 at 4). The court agrees. More specifically,
the ALJ’s decision that Ms. Grier does not meet the pain standard is based on an
inadequate negative credibility finding as to Ms. Grier’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
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
9

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. See 20 C.F.R. § 404.1529(a) (“However, 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 claimant’s complaints of pain if he finds them not
credible. 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 [sic], and that determination will be reviewed for substantial evidence.”).
However, if the ALJ discredits a claimant’s testimony regarding the severity of her
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
10

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.”).8 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 be reasonably be accepted as consistent with the
objective medical evidence and other evidence[.]” Id. Relevant factors that may show
the effect of claimant’s symptoms on her functional abilities include: the claimant’s
daily activities; the location, duration, frequency and intensity of the claimant’s pain;

8

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 F. App’x 410, 416 (11th Cir. 2006), 2006 WL 177576 (citing SSR 96-6p as
authoritative, for example).
11

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 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 found that “the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms.” (Tr. 15). However, the ALJ determined “the claimant’s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” Id. As
explained infra, the court finds that the ALJ’s reasons for discrediting the claimant’s
statement, while explicit, are not adequate as a matter of law.
The ALJ attempted to articulate several adequate reasons for his credibility
finding adverse to Ms. Grier, including: her failure to seek additional treatment for
her mental impairments; her noncompliance with treatment recommendations; silence
from her treating physicians concerning whether she is disabled; his determination
that Ms. Grier’s treatment for her impairments has generally been routine and
conservative; and her testimony regarding her daily activities cannot be objectively
verified. As addressed in detail below, the court finds that the ALJ’s proffered
12

reasons for discrediting the claimant’s pain testimony are flawed and, therefore, do
not satisfy the substantial evidence standard.
A.

The ALJ improperly considered Ms. Grier’s lack of treatment
by a mental health professional as evidence weighing against
her credibility.

The ALJ inferred from Ms. Grier’s lack of treatment by a mental health
professional that her statements about the negative effect of her mental impairments
on her ability to work were not entirely credible.9 After discussing evidence in the
record concerning Ms. Grier’s history of mental illness, the ALJ states, “the
undersigned notes that the claimant has continued to fail to seek any treatment by a
mental health professional and she has received her medication from her treating
physicians.” (Tr. 20). The court finds that the ALJ did not inquire whether Ms. Grier
had any reasonable explanations for her decision not to seek treatment from a mental
health professional, and ignored a significant amount of evidence which support her
stated limitations attributable to her mental conditions.
SSR 96-7p provides a detailed explanation for how lack of medical treatment
should be handled by an ALJ when determining a claimant’s credibility, stating:
the adjudicator must not draw any inferences about an individual's

9

While the ALJ’s disability determination does not explicitly contain this conclusion, the
hypothetical presented to the vocational expert that the ALJ relies upon in his decision indicates that
he did not credit all of Ms. Grier’s stated limitations stemming from her mental impairments.
13

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. The adjudicator may need to recontact the individual
or question the individual at the administrative proceeding in order to
determine whether there are good reasons the individual does not seek
medical treatment or does not pursue treatment in a consistent manner.
The explanations provided by the individual may provide insight into
the individual’s credibility.
Id. In the case at hand, the ALJ’s questioning of Ms. Grier to see if she had a
justifiable reason for not seeking treatment for her mental impairments was
inadequate.
At the hearing, the ALJ’s inquiry into the status of Ms. Grier’s treatment for
her mental health issues consisted of the following questions:
ALJ: And you’ve been diagnosed with some bipolar and depression; is
that correct?
Ms. Grier: Yes, sir.
ALJ: Are you seeking any kind of treatment for that, though?
Ms. Grier: Not right now.
ALJ: In what ways does your bipolar and depression affect you?
Ms. Grier: I stay in bed 90% of the time. I don’t have -- I don’t go
anywhere unless I have to. I just mainly stay in my room and stay in bed
ALJ: And why do you stay in your room?
Ms. Grier: Because I hurt too much to get up and move around. I just
14

rather just lay in the bed and just -(Tr. 40-41). Absent in the ALJ’s inquiry is any question asking Ms. Grier why has she
not sought out treatment.
Additionally, the ALJ either overlooked, or simply ignored, other credibilityrelated evidence in the record that supports Ms. Grier’s stated limitations caused by
her mental conditions. For example, according to the report produced by Dr. Bentley,
Ms. Grier has a long history of psychiatric symptoms. (Tr. 294). In 1992, Ms. Grier
was treated for two years at a Mental Health Center in Georgia. Id. Her mental
condition degraded to the point that she attempted suicide on three occasions. Id. Ms.
Grier has taken various antidepressants and benzodiazepines over the last fifteen
years which she claims improves her mood on some days. Id. Dr. Bentley concluded
that Ms. Grier’s prognosis is guarded. (Tr. 296).
Moreover, Ms. Grier’s sister described in a third-party function report that Ms.
Grier has problems getting along with others, does not handle stress well, does not
handle changes well, and that she has effectively shut everybody out. (Tr. 194-96).
The ALJ did not acknowledge, much less give any reasons for rejecting the report
made by Ms. Grier’s sister. On remand, the ALJ should review this report and state
the weight accorded and the reasons for accepting or rejecting this piece of evidence
corroborating Ms. Grier’s subjective limitations. See Lucas v. Sullivan, 918 F.2d
15

1567, 1574 (11th Cir. 1990) (reversed and remanded for further proceedings partially
because the ALJ failed to review the testimony of the claimant’s daughter and
neighbor and did not give reasons for rejecting such testimony); id. (“On remand the
ALJ should state the weight he accords to each item of impairment evidence and the
reasons for his decision to accept or reject that evidence, including all testimony
presented at the previous hearing or any subsequent hearings.” (citing Gibson v.
Heckler, 779 F.2d 619 (11th Cir. 1986))).
In sum, the ALJ’s conclusion that Ms. Grier’s stated limitations caused by her
mental illnesses are incredible based upon his limited questioning during the hearing
constitutes reversible error. As explained above, an ALJ may not draw any negative
inferences without first considering any reasonable explanations behind a claimant’s
lack of treatment. See SSR 96-7p. Despite this legal principle, as shown through the
hearing transcript, the ALJ made no attempt to ask Ms. Grier if she had a reason for
not seeking treatment from a mental health professional. (Tr. 28-52). Furthermore, the
ALJ did not consider and/or adequately address other evidence in the record that
supports Ms. Grier’s credibility regarding the limitations associated with her mental
health. Therefore, the ALJ’s decision to discount Ms. Grier’s subjective testimony
regarding her vocational limitations caused by her mental health conditions is not
backed by substantial evidence.
16

B.

The ALJ mischaracterized Ms. Grier’s inability to quit
smoking as evidence of noncompliance with treatment
recommendations.

The ALJ states in his opinion that Ms. Grier “has consistently been
noncompliant with treatment recommendations” regarding her nicotine dependence,
despite its negative impact on her conditions of bronchitis and her sleep apnea. (Tr.
17). Although the ALJ never explicitly states that her noncompliance is a factor he
relied upon when discounting her credibility, it is implicitly apparent that the ALJ
considered this to be one of the reasons for his adverse credibility determination.10
(Tr. 15). The court finds that the ALJ improperly concluded that Ms. Grier’s inability
to quit smoking constituted noncompliance with treatment recommendations. Thus,
this reason does not serve as substantial evidence supporting the ALJ’s credibility
determination.
The Commissioner may deny benefits for the failure to follow treatment when
the claimant, without good reason, fails to follow a prescribed course of treatment
that could restore the ability to work. See Lucas v. Sullivan, 918 F.2d 1567, 1571
(11th Cir. 1990) (“The Secretary may deny SSI disability benefits if the Secretary

10

The ALJ included this piece of evidence after stating his broad credibility assessment that
Ms. Grier’s “symptoms are not entirely credible for the reasons explained in this decision.” (Tr. 15).
At no point does the ALJ explicitly delineate which “reasons” did, or did not, affect his view of Ms.
Grier’s credibility, thus the undersigned can only presume that every reason stated was considered
by the ALJ.
17

determines that 1) the claimant failed to follow a prescribed course of treatment, and
2) her ability to work would be restored if she had followed the treatment.”); McCall
v. Bowen, 846 F.2d 1317, 1319 (11th Cir. 1988) (“Secretary may deny SSI disability
benefits only when a claimant, without good reason, fails to follow a prescribed
course of treatment that could restore her ability to work.”). While the court is
unaware of any Eleventh Circuit published decision that speaks directly to the issue
of noncompliance to quit smoking, there is an analogous case decided within the
district that this court adopts as persuasive authority.
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.
§ 404.153011 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

11

“In order to get benefits, you must follow treatment prescribed by your physician if this
treatment can restore your ability to work.” 20 C.F.R. § 404.1530(a)
18

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:
[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
19

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, 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.
20

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
21

. . . , 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”) (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.12
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.
C.

The ALJ improperly concluded that Ms. Grier’s testimony is
not credible because of the absence in the record of a treating
physician’s opinion stating Ms. Grier was disabled.

The ALJ made the following observation about the medical record:

12

When asked about her smoking at her hearing, Ms. Grier testified that she quit smoking
about a month and a half before the hearing took place. (Tr. 33). The ALJ did not inquire why she
had not quit earlier.
22

[t]he undersigned notes that as for opinion evidence, given the
claimant’s allegations of disabling pain symptoms, one might expect to
see some indication in the treatment record of restrictions placed on the
claimant by a treating physician. Yet, a review of the record does not
contain any opinions from treating or examining physicians that indicate
that the claimant was disabled or even had limitations greater than those
determined in this decision.
(Tr. 20). This finding by the ALJ not only runs afoul of Eleventh Circuit precedent,
but also misstates the evidence in the record.
The Eleventh Circuit has held that a physician’s silence regarding a claimant’s
functional capacity does not translate into an opinion that a claimant can work. See
Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). In Lamb, the Commissioner
attempted to argue that because claimant’s treating physicians only noted that the
claimant could not return to his past work, the Commissioner’s finding that the
claimant could perform light work was uncontradicted. Id. The court rejected this
argument, stating:
[claimant’s physician] opined in June of 1984 that appellant's condition
and the restriction of activity necessitated by the condition was not
compatible with his former employment. It is true that [claimant’s
physician] did not restrict appellant from light work. It is equally true
that he did not recommend light work. In fact, Dr. Kane did not address
the issue of any type of work but appellant's former work. Such silence
is equally susceptible to either inference, therefore, no inference should
be taken.
Id. (emphasis added). The ALJ in the instant case committed an error comparable to

23

the one described in Lamb.
It is plain from the ALJ’s statement that he treated silence by her treating
physicians regarding Ms. Grier’s limitations as evidence showing that the degree of
her stated limitations is not credible. This is inconsistent with the principle espoused
in Lamb.
Furthermore, the ALJ’s description of the record, specifically that “a review of
the record does not contain any opinions from treating or examining physicians that
indicate that the claimant was disabled or even had limitations greater than those
determined in this decision,” misstates the evidence. (Tr. 20). Ramesh Reddy, MD,
performed a complete physical examination of Ms. Grier on August 2, 2011, and
concluded that, in his opinion, Ms. Grier is unable to work.13 (Tr. 286). For the
reasons described above, the court finds that the ALJ’s reliance on the lack of opinion
evidence in an effort to discredit Ms. Grier’s subjective limitations was improper and
does not serve as substantial evidence supporting the ALJ’s adverse credibility
determination.

13

The ALJ did state in his opinion that he afforded little weight to Dr. Reddy’s opinion, but,
for reasons which will be developed in Part II, the court finds that the ALJ’s reasoning for placing
little weight with Dr. Reddy’s opinion is not supported by substantial evidence.
24

D.

The ALJ incorrectly characterized the treatment received by
Ms. Grier for her fibromyalgia and back pain as generally
conservative and effective.

The ALJ notes that the treatment Ms. Grier has received for her diagnosed
impairments of fibromyalgia, mild degenerative disk disease of the spine, and
diabetes (non-insulin dependant Type II) has been “essentially routine and
conservative in nature and has been successful in controlling her symptoms.” (Tr. 1516, 19). Ms. Grier argues that the ALJ mischaracterized her treatment and that the
ALJ failed to properly credit the longitudinal treatment history for her pain. (Doc. 12
at 5). The court agrees with Ms. Grier that the ALJ did not accurately described the
treatment received by Ms. Grier for fibromyalgia and the ALJ also failed to credit Ms.
Grier’s longitudinal history of back pain.14
The Regulations state that relevant factors for an ALJ to consider when
evaluating a claimant’s pain symptoms include, “the type, dosage, effectiveness, and
side effects of any medication” taken by the claimant, as well as any “[t]reatment,
other than medication, [claimant] receives or ha[s] received for relief of [claimant’s]
pain or other symptoms[.]” 20 C.F.R. § 404.1529(c)(3)(iv)-(v). A claimant’s

14

The court finds that the ALJ did not necessarily mischaracterize the treatment received by
Ms. Grier for her diabetes; however, as explained fully in section E, the ALJ’s reliance upon this
evidence to discredit Ms. Grier’s subjective complaints of pain was improper under the
circumstances of this case.
25

statements “may be less credible if the level or frequency of treatment is inconsistent
with the level of complaints[.]” SSR 96-7p; see also Farley v. Astrue, No. 2:08-CV2219-VEH, (Doc. 11 at 9-12) (N.D. Ala. Dec. 2, 2009) (holding that exaggeration of
pain versus treatment sought was substantial evidence for the ALJ’s credibility
determination). However, the ALJ
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.
96-7p (emphasis added). In the instant case, the ALJ did not consider the obvious
explanations for Ms. Grier’s perceived conservative treatment for her fibromyalgia.
On February 28, 2013, Ms. Grier was examined by one of her treating
physicians, William J. Shergy, MD. (Tr. 441). Dr. Shergy noted in his report that “Ms.
Grier has underlying fibromyalgia, most likely secondary to severe sleep apnea. She
clearly will not improve from her fibromyalgia symptoms unless her sleep apnea is
addressed and she begins to exercise.” Id. (emphasis added). The ALJ failed to
recognize this link between her fibromyalgia and her severe sleep apnea condition.
Consequently, the treatment prescribed for Ms. Grier’s sleep apnea condition
also relates to managing her symptoms associated with fibromyalgia. Further, after

26

reviewing Ms. Grier’s treatment for sleep apnea, the record lacks substantial evidence
to support the ALJ’s conclusion that such treatment was conservative or effective.
Ms. Grier was evaluated at the Shoals Sleep Center on September 6, 2012. (Tr. 358).
The study found that Ms. Grier suffered from obstructive sleep apnea syndrome. (Tr.
379). It was recommended that Ms. Grier use a continuous positive airway pressure
machine (CPAP) to treat her sleep apnea; however, Ms. Grier did not have the ability
pay for a CPAP initially.15 (Tr. 349, 382). Ms. Grier did eventually obtain a CPAP
machine; however, she continued to report to her physicians that the CPAP machine
was not successful in controlling her symptoms.16 Therefore, as shown above, the
court finds that this evidence does not constitute substantial evidence supporting the
ALJ’s credibility determination because the ALJ failed to address the dependent
relationship her fibromyalgia shares with her sleep apnea; and such error is not
harmless because the undersigned is unable to conclude that her sleep apnea treatment
is conservative, or successful in controlling her symptoms.

15

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, she is excused from
noncompliance. See Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“We agree with every
circuit that has considered the issue that poverty excuses noncompliance.”).
16

On January 31, 2013, Ms. Grier visited Dr. Ridgeway because of symptoms associated with
her sleep apnea condition. (Tr. 478). Dr. Ridgeway noted that Ms. Grier’s sleep apnea condition has
been present for several months, that she is treating the condition with a CPAP machine, and that
she is completely compliant to therapy. Id.
27

Lastly, regarding Ms. Grier’s mild degenerative disk disease of the spine, the
ALJ again erroneously labeled her treatment received as “routine and conservative
in nature and has generally been successful in controlling her symptoms.” (Tr. 16).
Ms. Grier argues that the ALJ failed to credit Ms. Grier’s “longitudinal history for her
pain and continued treatment for the same.” (Doc. 12 at 5). The court agrees with Ms.
Grier. SSR 96-7p, defines longitudinal history of pain as the following:
In general, a longitudinal medical record demonstrating an individual's
attempts to seek medical treatment for pain or other symptoms and to
follow that treatment once it is prescribed lends support to an
individual's allegations of intense and persistent pain or other symptoms
for the purposes of judging the credibility of the individual's statements.
Persistent attempts by the individual to obtain relief of pain or other
symptoms, such as by increasing medications, trials of a variety of
treatment modalities in an attempt to find one that works or that does not
have side effects, referrals to specialists, or changing treatment sources
may be a strong indication that the symptoms are a source of distress to
the individual and generally lend support to an individual's allegations
of intense and persistent symptoms.
Id. Ms. Grier’s medical record shows that she has continuously sought medical
treatment for her back pain, and the ALJ was incorrect in classifying her treatment as
conservative and effective.
The record reveals that Ms. Grier has consistently been complaining of back
since March of 2009. (Tr. 254). Ms. Grier returned twice that year with complaints
of back pain. (Tr. 252-53). On August 5, 2010, Ms. Grier reported that her back pain

28

seemed to be getting worse. (Tr. 249). On April 18, 2012, Ms. Grier was examined
at the Shoals Pain Center where she was diagnosed with lumbar radiculopathy and
lumbar disc displacement. (Tr. 344-45). Following this diagnoses, Ms. Grier
underwent an interlaminar lumbar steroid injection at the L5-S1 level; however,
instead of getting relief, Ms. Grier reported that the injections made her feel worse.
(Tr. 346, 412). She further stated that she had increased her pain medication without
much relief. (Tr. 412). Because of Ms. Grier’s history of continuously complaining
about her back pain, while also getting little to no relief from medication, the court
finds that the ALJ erred in classifying her treatment as conservative and effective.
Therefore, the ALJ’s observation about Ms. Grier’s treatment received for her
fibromyalgia and mild degenerative disc disease does not constitute substantial
evidence supporting the ALJ’s credibility determination.
E.

The ALJ improperly relied upon Ms. Grier’s diabetes
treatment to discredit unrelated debilitating limitations.

The ALJ addressed Ms. Grier’s diabetic condition by noting the following,
“[r]egarding the claimant’s alleged diabetes (non-insulin dependent Type II), again
the undersigned notes while the claimant has undergone treatment for her alleged
impairment, the treatment she has received has again been essentially routine and
conservative in nature and has been successful in controlling her symptoms.” (Tr. 19).

29

The ALJ is generally correct that the treatment received for Ms. Grier’s diabetes has
been conservative and effective; however, the court finds that the ALJ’s inclusion of
Ms. Grier’s conservative treatment for diabetes as a factor weighing against her
credibility is inappropriate under the circumstances of this case.17
While Ms. Grier did state in her initial disability report that her diabetic
condition affected her ability to work (Tr. 166), this impairment is not the crux of her
SSI claim. In fact, the court is only able to find one statement made by Ms. Grier
where she alleges that her diabetic condition has had some effect on her functional
abilities.18 The insignificance of her diabetic condition to her SSI claim is
underscored by (1) the disability determination document completed by the SSA
which identifies organic mental disorders as Ms. Grier’s primary diagnoses, and
disorders of the back as her secondary diagnoses (Tr. 55); and (2) the ALJ never
questioned Ms. Grier about her diabetic condition during the hearing. (Tr. 28-52).

17

The ALJ included this piece of evidence after stating his broad credibility assessment that
Ms. Grier’s “symptoms are not entirely credible for the reasons explained in this decision.” (Tr. 15).
At no point does the ALJ explicitly delineate which “reasons” did, or did not, affect his view of Ms.
Grier’s credibility, thus the undersigned can only presume that every reason stated was considered
by the ALJ.
18

In a handwritten note by Ms. Grier, she stated that she has an appointment with an
optometrist because of complications to her vision caused by her diabetic condition. (Tr. 215). While
there is no document in the record from an optometrist, Dr. Reddy noted in his report that Ms. Grier
did have an eye exam two months prior to his examination, and that she was prescribed glasses. (Tr.
284).
30

The ALJ also made no attempt to explain how evidence of routine treatment
for her diabetic condition somehow makes Ms. Grier’s subjective complaints caused
by her other independent impairments not credible, including, in particular her mental
limitations. Nonetheless, the ALJ partially and inadequately based his decision to
discredit Ms. Grier’s entire subjective disabling symptoms because of routine
treatment she received to deal with her diabetic condition. Therefore, to the extent
that Ms. Grier’s diabetes treatment is appropriately characterized as conservative and
successful in controlling her symptoms, such evidence does not serve as substantial
evidence supporting the ALJ’s entire credibility determination.19
F.

The ALJ improperly discounted Ms. Grier’s testimony
pertaining to her daily activities.

During Ms. Grier’s hearing in front of the ALJ, she testified that her
impairments have a profound effect on her daily activities. She stated that she is
unable to sit or stand for longer than about fifteen minutes. (Tr. 38). She testified that
she is unable to walk to her mailbox without stopping. (Tr. 39). Ms. Grier testified
that because of her depression and bipolar disorder and her physical pain she stays
in bed 90% of the day. (Tr. 40). Ms. Grier also indicated that she does the laundry and

19

Alternatively, assuming the conservative nature of Ms. Grier’s diabetes treatment does serve
as substantial evidence to discredit her alleged physical limitations, the case should still be remanded
because, as described in section A, the ALJ inadequately discredited Ms. Grier’s alleged limitations
caused by her mental impairments.
31

dishes with the aid of her nephew or daughter. (Tr. 41). She stated that she only goes
to the grocery store about once a month and is only able to stay in the store ten to
fifteen minutes at a time. (Tr. 43). Ms. Grier indicated that she usually drives herself
to the grocery store or to doctor appointments; however, she testified that when she
makes the thirty-minute commute to her doctor’s office she sometimes has to stop and
walk around her car because of the pain. (Tr. 43-44).
The ALJ attempted to explain his reasoning for not crediting her statements
about her limited daily activities, stating:
Although the claimant has described daily activities which are fairly
limited, two factors weigh against considering these allegations to be
strong evidence in favor of finding the claimant disabled. First, allegedly
limited daily activities cannot be objectively verified with any
reasonable degree of certainty. Secondly, even if the claimant’s daily
activities are truly as limited as alleged, it is difficult to attribute that
degree of limitation to the claimant’s medical condition, as opposed to
other reasons, in view of the relatively weak medical evidence and other
factors discussed in this decision.
Id. The court finds that both factors listed by the ALJ are inadequate.
As to the first factor mentioned by the ALJ, the court is 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
32

testimony about limited daily activities, unless the claimant allows some third-party
to observe her daily activities for some period of time.
The ALJ’s second reason for discrediting Ms. Grier’s testimony about her
limited daily activities is also inadequate. Regarding the “other factors” mentioned
by the ALJ, the court has determined that none of the other factors mentioned by the
ALJ constitute substantial evidence supporting the ALJ’s credibility determination.
See supra sections (A)-(E). The “weak medical evidence” the ALJ mentions was an
erroneous finding as described in section (C) above. Lastly, the ALJ’s statement that
“it is difficult to attribute that degree of limitation to the claimant’s medical condition,
as opposed to other reasons” seemingly implies that the ALJ believes Ms. Grier 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.
For all the reasons described above, the ALJ failed to adequately support his
credibility assessment of Ms. Grier. On remand, the ALJ should re-assess the effect
of the claimant’s testimony on her ability to work after either accepting her testimony,
including her sister’s corroborating statements, or by articulating adequate reasons
to reject Ms. Grier’s subjective pain and mental limitations.

33

II.

Alternatively And Independent Of The ALJ’s Erroneous Negative
Credibility Finding, The ALJ’s RFC Determination Is Not Supported By
Substantial Evidence.
In determining Ms. Grier’s RFC, the ALJ placed “great weight” on the mental

and physical assessments prepared by state agent medical consultants who never saw
Ms. Grier and only reviewed her record. (Tr. 20). The ALJ gave “little weight” to the
opinions prepared by Dr. Reddy and Dr. Bentley because they “only saw the claimant
on one occasion and they did not treat her, and their assessments appear to be based
primarily on the claimant’s subjective complaints and they are not consistent with the
medical record.” Ms. Grier contends that the non-examining opinions produced by
the state agency consultants are “flawed and incomplete at best.” (Doc. 12 at 8). The
court agrees with Ms. Grier. More specifically, the court finds that the ALJ’s reasons
for placing more weight to the non-examining reports over the examining reports is
not backed by substantial evidence.
The opinion of a non-examining physician “is entitled to little weight and taken
alone does not constitute substantial evidence to support an administrative decision.”
Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir. 1990) (citing Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)). When the opinion of an examining
physician is compared with an opinion of a non-examining physician, “[t]he opinion
of an examining physician is generally entitled to more weight than the opinion of a
34

non-examining physician.” Broughton, 776 F.2d at 962 (internal quotation omitted).
An ALJ may accord substantial weight to the opinion of a non-examining physician
if certain conditions are present.
An ALJ may accord substantial weight to the opinion of a non-examining
physician if the opinion is consistent with examining physician reports. See Edwards
v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991) (finding that the ALJ did not err
in relying on the opinion of the non-examining physician since this opinion did not
contradict the opinions of the examining physicians). Reports from non-examining
sources must also be supported by other evidence in the record. See 20 C.F.R. §
404.1527(d)(3) (“[B]ecause nonexamining sources have no examining or treating
relationship with [the claimant], the weight will depend on the degree to which [the
physicians] provide supporting explanations for their opinions[.]”). These opinions
will be evaluated by “the degree to which these opinions consider all of the pertinent
evidence in [the claimant’s] claim, including opinions of treating and other examining
sources.” Id. (emphasis added).
The ALJ stated in his opinion that
[b]oth State Agency medical consultants have provided extensive
evaluations from both a physical and mental standpoint, and considering
the totality of the medical record in this case, as well as the consistency
of the findings of the State Agency medical consultants with the
objective record, the undersigned has adopted those opinions as
35

indicative of the claimant’s [RFC].
(Tr. 20). The first of many flaws associated with the ALJ’s analysis is his assessment
that the non-examining physicians provided “extensive evaluations.” Dr. Callins’s
physical RFC assessment of Ms. Grier was based on, at most, three treatment notes,
not including Dr. Reddy’s examination. (Tr. 324). Kirstin J. Bailey, Ph.D., produced
the mental evaluation which the ALJ relies upon. (Tr. 299). As Ms. Grier points out
in her brief, it is unclear if Dr. Bailey examined any of Ms. Grier’s actual treatment
records. (Doc. 12 at 8). The only report that Dr. Bailey cites in her notes section is the
report produced by consultative examiner Dr. Bentley.
The second critical flaw about the ALJ’s analysis is the lack of support
provided by the ALJ for his determination that the non-examining physician reports
were deserving of greater weight than the examining physician reports of Dr. Reddy
and Dr. Bentley. The ALJ’s first reason for not placing greater weight with the
examining physicians’ reports was because they “only saw the claimant on one
occasion and they did not treat her[.]” (Tr. 20). The undersigned might have been
persuaded by this observation had the ALJ not placed greater weight to reports
produced by physicians who have never seen nor treated Ms. Grier.
The second justification the ALJ proffers is that “their assessments appear to
be based primarily on the claimant’s subjective complaints and they are not consistent
36

with the medical record.” Id. Assuming this is correct, the ALJ’s reliance on Dr.
Bailey’s non-examining report should be discounted for the same reasoning,
considering her report is based solely from Dr. Bentley’s report. Further, the ALJ’s
contention that Dr. Reddy’s report is based primarily on subjective complaints is not
backed by substantial evidence. Dr. Reddy reviewed the medical record provided to
him by DDS and he conducted various physical tests on Ms. Grier, including a
straight-leg raising test which resulted in a positive result for lumbosacral pain at
thirty degrees.20 (Tr. 284-86).
Lastly, and possibly most critically, the ALJ’s RFC analysis is unsupported by
substantial evidence because it is based solely on the reports of the non-examining
physicians. See Swindle, 914 F.2d at 226 n.3 (explaining that the opinion of a nonexamining physician “is entitled to little weight and taken alone does not constitute
substantial evidence to support an administrative decision.”). Therefore, for the
reasons discussed above, the ALJ’s RFC determination is not supported by substantial
evidence. This alone requires that the ALJ’s decision be reversed.21

20

A straight-leg raise is recognized by the regulations as a clinically appropriate test for the
presence of pain and limitation of motion of the spine. See 20 C.F.R. Pt. 404, Subpt. P, App. 1(D).
21

The undersigned has rendered several other comparable decisions which address the
inadequacies of the respective ALJ’s RFC determinations from which the disposition of this case
persuasively flow. See, e.g., Mahaley v. Astrue, No. 5:09-CV-0347-VEH, (Docs. 12, 13) (N.D. Ala.
Feb. 18, 2010) (reversing and remanding under similar circumstances in which the court found that
the ALJ’s RCF finding was not supported by substantial evidence); Glover v. Astrue, No. 3:09-CV37

Furthermore, because Dr. Reddy’s finding is ambiguous as to whether he was
referring to all work at any exertional level or only her past work,22 the case should
be remanded to allow the ALJ to seek clarification from Dr. Reddy to resolve this
uncertainty. See Rivers v. Colvin, No. 2:12-CV-00792-VEH, (Doc. 10 at 10-13) (N.D.
Ala. Aug. 2, 2013) (holding that the case should be remanded so that the ALJ could
resolve an ambiguous statement in the consultative examiner’s report).
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision was
not supported by substantial evidence. More specifically, the ALJ inadequately
discredited Ms. Grier’s subjective testimony, and failed to provide a proper,
medically-supported RFC. Accordingly, the decision of the Commissioner is due to
be reversed and remanded. A separate order in accordance with this memorandum
opinion will be entered.

0033-VEH, (Docs. 15, 16) (N.D. Ala. Mar. 4, 2010) (same); Johnson v. Astrue, No. 3:08-CV-1761VEH, (Docs. 15, 16) (N.D. Ala. Mar. 12, 2010) (same); Martin v. Astrue, No. 5:09-CV-1029-VEH,
(Docs. 11, 12) (N.D. Ala. Mar. 25, 2010) (same).
22

Dr. Reddy concluded his examination report of Ms. Grier by stating, “I feel that the
claimant is unable to work given her history and physical exam.” (Tr. 286).
38

DONE and ORDERED this the 31st day of July, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

39