Love v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 2/24/16. (SAC )

FILED
2016 Feb-24 PM 03:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
MARSHA LOVE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

}
}
}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
6:15-cv-338-WMA

MEMORANDUM OPINION
Plaintiff Marsha Love brings this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the Commissioner’s final
decision denying her application for disability insurance benefits.
Wallace timely pursued and exhausted the administrative remedies
available to her before the Social Security Administration. Based
on the court’s review of the record and the briefs submitted by the
parties, the court finds that the Commissioner's decision is due to
be reversed and the action remanded to the Commissioner for an
award of benefits.
STATUTORY AND REGULATORY FRAMEWORK
To

qualify

for

social

security

benefits,

a

non-elderly

claimant must, inter alia, show that she is disabled. 42 U.S.C. §§
423(a)(1)(D), 1381a (2012). A person is disabled if she is unable
“to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be

1

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)

(2012).

To

determine

if

a

claimant

is

disabled, the Social Security Administration employs a five-step
process, which is followed at each level of administrative review.
20 C.F.R. § 404.1520(a)(4)(i)-(v). A conclusive finding may be made
at each step; if not, the Commissioner’s review continues to the
next step. 20 C.F.R. § 404.1520(a)(4).
First, the Commissioner must determine whether the claimant is
currently engaged in any substantial gainful activity. If so, the
claimant is not disabled. 20 C.F.R. § 404.1520(a)(4). Second, the
Commissioner must determine whether the claimant has “a severe
medically determinable physical or mental impairment” expected to
result in death or to last at least one year. If not, the claimant
is

not

disabled.

20

C.F.R.

§

404.1520(a)(4)(ii).

Third,

the

Commissioner must determine if any of the claimant’s impairments
meets or exceeds the requirements of an impairment within the
Listing of Impairments, found at 20 C.F.R. Part 404, Subpart P,
Appendix

1.

If

so,

the

claimant

is

disabled.

20

C.F.R.

§

404.1520(a)(4)(iii).
If the Commissioner has not made a conclusive determination
after the third step, she must assess the claimant’s Residual
Functional Capacity (RFC). 20 C.F.R. § 404.1520(a)(4). The RFC
measures

the

claimant’s

ability

2

to

work

in

spite

of

her

impairments. 20 C.F.R. § 404.1545(a)(1).
Fourth, the Commissioner must determine if the claimant’s RFC
allows her to perform her past relevant work. If so, the claimant
is

not

disabled.

20

C.F.R.

§

404.1520(a)(4)(iv).

Fifth,

the

Commissioner must determine whether there exist a significant
number of jobs in the national economy that the claimant’s RFC
allows her to perform. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c).
If a significant number of such jobs exist, the claimant is not
disabled; if not, she is disabled. Id.
FACTUAL BACKGROUND
Love applied for disability insurance benefits on March 22,
2012. (R. at 74). She alleges that she became disabled on August 1,
2011. (R. at 74). She complains of disabling pain in her lower back
and right leg. (R. at 44). Love has had three back surgeries, the
first two occurring in the 1990s. (R. at 48-50). The third occurred
due to a workplace injury in August 2006 in which she bent over and
attempted to lift a trash bag out of a cart, but the bag was much
heavier than she expected. (R. at 338, 366). After unsuccessful
attempts to

alleviate

her

pain

by

less

invasive

means,

Love

underwent an anterior lumbar interbody fusion in December 2006. (R.
at 363-66).
The surgery initially relieved much of her pain, but the pain
eventually returned due to degenerative discs observed by her
doctor. (R. at 51, 355). Her doctor attempted to treat the pain

3

with pain medication and epidurals, but with little to no success.
(R. at 350). He recommended in March 2012 that she begin to see a
pain specialist. (R. at 350). Love also underwent gastric bypass
surgery in March 2011, (R. at 221), and she lost 145 pounds as a
result of the surgery. (R. at 393).
After a visit with a different specialist in August 2012, Dr.
Kendrick became Love’s treating pain management specialist in
October 2012. (R. at 302, 392). Dr. Kendrick diagnosed Love with
post-laminectomy syndrome, (R. at 392), also known as “failed back
surgery syndrome,” and attempted treatment with a variety of
medications, largely with limited success. (R. at 385-411, 426-49).
Dr. Kendrick has administered two epidurals to Love, which provided
some temporary relief. (R. at 53).
Love worked full-time until August 2011. (R. at 296). She then
transitioned to a part-time job, where she worked until April 2013.
(R. at 41, 432). She testified that her part-time job involved
answering phones, receiving money, checking truck rentals in and
out, and handling paperwork. (R. at 42-43). She was allowed to
alternate standing and sitting at her desk as needed to alleviate
her back and right leg pain, and she occasionally walked outside to
inspect the returned rental trucks. The inspection only required
walking around the truck and opening the back door, not climbing
into the truck. (R. at 43-44, 62-63). Love never lifted more than
ten pounds, only lifting and moving papers. (R. at 192).

4

Love reported that she initially worked approximately twenty
hours per week. She typically worked three days a week in four- to
eight-hour shifts. (R. at 192). Love testified, however, that her
symptoms eventually caused her to reduce her work schedule.1 She
was sometimes unable to complete two days of work per week, and
after she completed the second day of work she was heavily fatigued
and in great pain. (R. at 43). She testified that there was “no
way” she could have worked more days per week. (R. at 44). She
eventually stopped working entirely in April 2013. (R. at 41, 432).
Love testified that she cannot sit, stand, or walk for long
periods of time because of her pain. She can only stand for five to
fifteen minutes at a time, sit for thirty to forty minutes at a
time, and walk for thirty to forty feet at a time. (R. at 56-57,
183). Her daily activities are accordingly limited - she can do
some dusting, fold laundry, sweep, and pick up clutter on good
days, but she cannot clean dishes or do other chores that require
standing for long periods. (R. at 46-47). She can drive short but
not long distances because of the pain from sitting. Consequently,
she is regularly driven to her appointments with Dr. Kendrick. (R.
at 64). She goes grocery shopping weekly but needs help lifting
items heavier than milk. (R. at 63). She can dress herself and
prepare frozen meals and sandwiches but does not have the stamina

1

This reduction is evidenced by her pay records, which show
that she averaged much less than twenty hours per week at work.
(R. at 149).
5

to cook full-course meals. (R. at 178, 180). Her children largely
take care of themselves and assist with chores. For instance, they
wash the dishes and remove clothes from the dryer. (R. at 47, 17880). In connection with this case, Dr. Kendrick stated his opinion
that Love’s medical conditions cause her pain and that she is not
malingering,

opining

that

“[h]er

symptoms

are

anatomically

appropriate for her levels of previous surgery.” He stated that a
job requiring Love to sit or stand for prolonged periods during an
eight-hour

workday

without

the

opportunity

to

recline

would

increase her pain, and that such a pain increase would “cause
serious distraction from job tasks and/or result in a failure to
complete job tasks in a timely manner on more than an occasional
basis.” (R. at 450-52).
After a hearing, the ALJ on September 30, 2013, found Love not
to be disabled. (R. at 30). He began by finding that Love has not
engaged in substantial gainful activity since August 1, 2011, the
alleged onset date, because her part-time work since that date “did
not exceed the threshold for substantial gainful activity.” (R. at
23). He next found that Love suffers from the following severe
impairments: “degenerative disc disease of the lumbar spine, status
post lumbar surgery, obesity, hypertension, depression, obsessive
compulsive disorder, and panic disorder,” though none of the
impairments met or exceeded a listing. (R. at 23, 25). The ALJ next
determined Love’s RFC, which he listed as follows:

6

[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), except the claimant can frequently push/pull
with her upper extremities bilaterally. She can
occasionally balance, stoop, kneel, crouch, crawl, and
climb ramps and stairs. She is precluded from climbing
ladders, ropes or scaffold. She can maintain occasional
exposure to extreme cold and heat; she should avoid all
exposure to unprotected heights and hazardous, moving
machinery. She can understand, remember, and carry out
simple instructions for two-hour periods and with normal
breaks can complete an eight-hour day. She can sustain
occasional decision-making and infrequent changes in the
work setting. She can maintain occasional interaction
with the public and co-workers, but no tandem tasks.
(R. at 27-28). To the extent Love’s testimony and Dr. Kendrick’s
submitted opinion contradicted this finding, the ALJ found those
statements not credible for the varied reasons discussed below. (R.
at 27-28).
Based on the RFC finding, the ALJ found that Love was able to
perform her past relevant work as a housekeeper/cleaner and is
therefore not disabled. (R. at 29). According to the ALJ, the VE’s
testimony established that the demands of this job fall within
Love’s above-described RFC. The VE also testified, however, that a
person would not be able to sustain employment if she suffered from
increased pain levels due to prolonged sitting and standing that
seriously interfered with her ability to complete jobs in a timely
manner on more than an occasional basis. (R. at 71).
Love appealed the ALJ’s decision, but the Appeals Council
denied review on December 30, 2014. She timely appealed to this
court

on

February

25,

2015.

On

7

appeal,

Love

challenges

the

Commissioner’s decision on four grounds. Because the court finds
two of those grounds to be dispositive, the court will limit its
review to those two grounds.
DISCUSSION
A. Standard of Review
“[R]eview of the Commissioner’s decision is limited to an
inquiry into whether there is substantial evidence to support the
findings of the Commissioner, and whether correct legal standards
were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). Review of the Commissioner’s factual findings is highly
deferential; “[i]f the Commissioner’s decision is supported by
substantial

evidence

[the

court]

must

affirm,

even

if

proof

preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232,
1240 n.8 (11th Cir. 2004) (quoting Miles v. Chater, 84 F.3d 1397,
1400 (11th Cir. 1996)). “Substantial evidence is more than a
scintilla, but less than a preponderance. It is such relevant
evidence as a reasonable person would accept as adequate to support
a conclusion.” Bloodsworth v. Heckler, 703 F.3d 1233, 1239 (11th
Cir. 1983). “A ‘substantial evidence’ standard, however, does not
permit a court to uphold the [Commissioner's] decision by referring
only to those parts of the record which support the ALJ. A
reviewing court must view the entire record and take account of
evidence in the record which detracts from the evidence relied on
by the ALJ.” Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.
8

1983).
“In

contrast

to

the

deferential

review

accorded

to

the

[Commissioner's] findings of fact, the [Commissioner's] conclusions
of law, including applicable review standards, are not presumed
valid.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
Such conclusions of law are reviewed de novo. Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). “The
[Commissioner's] failure to apply the correct legal standards or to
provide

the

reviewing

court

with

sufficient

basis

for

a

determination that proper legal principles have been followed
mandates reversal.” Martin, 894 F.2d at 1529.
B. Rejection of Love’s Subjective Testimony
In making his RFC finding, the ALJ rejected much of Love’s
testimony concerning her pain and limitations. Specifically, Love
testified that her back and right leg pain prevent her from sitting
or standing uninterrupted for more than 40 minutes at a time, (R.
at 56-57), and that there was “no way” that her pain would allow
her to work more frequently than she did at her part-time job. (R.
at 44). Eleventh Circuit precedent “requires that an ALJ apply a
three part ‘pain standard’ when a claimant attempts to establish
disability through his or her own testimony of pain or other
subjective symptoms.” Foote v. Chater, 67 F.3d 1553, 1560 (11th
Cir. 1995).
The pain standard requires (1) evidence of an underlying
medical condition and either (2) objective medical
9

evidence that confirms the severity of the alleged pain
arising from that condition or (3) that the objectively
determined medical condition is of such a severity that
it can be reasonably expected to give rise to the alleged
pain.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The
standard seeks to ensure that objective medical evidence confirms
the existence

or

likelihood

of

the

pain

or

other

subjective

symptoms complained of by the plaintiff.
If the plaintiff’s testimony satisfies this standard, the ALJ
may still discredit the testimony, but he “must articulate explicit
and adequate reasons for doing so,” Foote, 67 F.3d at 1561-62, and
“such articulation of reasons by the [ALJ must] be supported by
substantial evidence,” Hale v. Bowen, 831 F.2d 1007, 1012 (11th
Cir. 1987). “Failure to articulate the reasons for discrediting
subjective testimony,” or a failure to support those reasons by
substantial evidence, “requires, as a matter of law, that the
testimony be accepted as true.” Wilson, 284 F.3d at 1225.
In

this

case,

the

ALJ

found

that

Love’s

“medically

determinable impairments could reasonably be expected to cause some
symptoms,” thus satisfying the requirements of the pain standard.
(R. at 28). The ALJ found, however, that her subjective testimony
regarding the intensity, persistence, and limiting effects of her
symptoms was not entirely credible for two reasons. (R. at 28). The
court

finds

that

neither

of

the

ALJ’s

given

reasons

for

discrediting Love’s testimony is supported by substantial evidence.

10

1. Love’s part-time job and daily activities
First, the ALJ found that Love performed greater exertional
tasks than would be possible while suffering from her alleged
limitations, as evidenced by her part-time work and by her daily
activities. According to the ALJ, Love’s part-time work required
her to walk, stand, and sit for 4-8 hour periods, three days a
week. (R. at 29). The ALJ also noted that Love was able to dress
herself, drive, handle money, prepare meals, fold clothes, dust,
mop, shop, leave the house alone, read, and care for two teenaged
children.2 (R. at 26, 29).
The

Commissioner

is

expressly

permitted

to

consider

a

claimant’s daily activities when evaluating the credibility of the
claimant’s

complaints

of

subjective

symptoms.

20

C.F.R.

§

404.1529(c)(3)(i). Evidence of daily activities is a proper basis
to discredit a claimant’s testimony when her daily activities
demonstrate

a

higher

level

of

functioning

than

her

alleged

disabling symptoms would allow. See, e.g., Wilson v. Barnhart, 284
F.3d 1219, 1226 (11th Cir. 2002).
The ALJ placed strong emphasis on Love’s ability to work parttime during the alleged period of disability to discredit her
testimony of disabling limitations. According to the ALJ, the fact

2

The ALJ also noted, without explanation, that Love in
August 2012 dropped a 6x6 piece of wood on her left foot. (R. at
28). Without more information, the court does not find that this
one-time accident supports the ALJ’s discrediting of Love’s
testimony.
11

that Love was able to work four to eight hours per day for three
days per week demonstrates that her abilities to sit, stand, and
walk are not as impaired as she alleges. The court disagrees and
finds that the ALJ improperly decided that Love was able to
complete her part-time work without significant difficulty and that
her part-time work demonstrated an ability to work full-time.
Almost all evidence in the record regarding Love’s part-time
job was provided by Love. She stated that she worked up to three
days per week, four to eight hours per day, and twenty hours per
week. (R. at 172, 192). She noted that she was permitted to move
around the office as needed to help her pain, (R. at 44, 192, 294),
but even this freedom did not allow her to sufficiently function.
She testified without contradiction that she was frequently unable
to

work

even

requesting

to

two

days

leave

per

work

week

early.

because
(R.

at

of

her

43-44).

pain,
Indeed,

often
this

testimony is supported by her pay records, which show that she
actually worked substantially less than twenty hours per week. (R.
at 149, 172). In July 2012, she reported to her doctors at Southern
Orthopedic Spine & Rehab that her pain caused her to take four sick
days

per

month.

(R.

at

335).

She

testified,

again

without

contradiction, that the work caused her severe pain and fatigue and
that she could not possibly work more often than she did. (R. at
43-44). The day after she completed her work for the week, she was
essentially unable to function because of the pain and fatigue. (R.

12

at 43). She eventually stopped working altogether. (R. at 41).
Despite this evidence, and despite the lack of contrary
evidence,

the

ALJ

discussed

Love’s

part-time

work

as

if

she

performed it without difficulty and thereby demonstrated an ability
to walk, sit, or stand for four to eight hours. From there, the ALJ
essentially found that her part-time work and requisite abilities
showed that she is able to work full-time. But this stands in
direct contradiction to Love’s unrebutted testimony that there was
“no way” her symptoms would allow her to work any more than she
did, corroborated by her pay records showing that she did not
regularly work even twenty hours per week. (R. at 44, 149). Given
that her part-time work did not reach the level of substantial
gainful activity (R. at 23), and given the lack of evidence that
Love could work any more hours than at the part-time job, the ALJ’s
conclusion that this work demonstrated an ability to work full-time
is unsupported by substantial evidence.
Love’s

daily

activities

similarly

do

not

discredit

her

testimony that she is unable to sit, stand, or walk with the
requisite stamina to maintain full-time work. Numerous courts in
this circuit have found that “participation in everyday activities
of short duration” does not disqualify a claimant from disability
and have reversed ALJ decisions relying on such participation to
discredit the claimant. Lewis v. Callahan, 125 F.3d 1436, 1441
(11th Cir. 1997); see also Early v. Astrue, 481 F. Supp. 2d 1233,

13

1238-39 (N.D. Ala. 2007) (finding that doing house and yard work,
caring for pets, grocery shopping, and occasional fishing were not
substantial daily activities upon which to discredit the claimant’s
testimony); Horton v. Barnhart, 469 F. Supp. 2d 1041, 1046-47 (N.D.
Ala. 2006) (finding that driving, shopping, attending church,
cleaning,

cooking,

reading,

watching

television,

caring

for

personal needs, keeping up with friends, and walking for exercise
were

not

substantial

activities

sufficient

to

discredit

the

claimant’s testimony); Stewart v. Astrue, 551 F. Supp. 2d 1308,
1321 (N.D. Fla. 2008) (“Activities of daily living are often not
substantial

evidence

in

the

record

to

discount

a

claimant's

testimony, and the ALJ should proceed with caution in relying upon
them to discredit a claimant.”). “It is the ability to engage in
gainful employment that is the key, not whether a plaintiff can
perform minor household chores or drive short distances.” Early,
481 F. Supp. 2d at 1239.
In this case, Love’s daily activities are not inconsistent
with her alleged disabling limitations. For instance, while Love
testified that she is able to drive, she also noted that she can
only drive short distances because of the pain associated with
sitting for long periods. If she needs to drive a longer distance,
she has someone else drive for her. (R. at 64). Her children
similarly assist her with the laundry - she needs help removing
clothes from the dryer and is only able to fold the laundry because

14

she can do so while seated. (R. at 46-47). She primarily prepares
microwavable meals and sandwiches due to her difficulties with
standing long enough to cook full meals. (R. at 178-80, 196). Her
children largely take care of themselves and perform most of the
household chores. (R. at 178-79, 195). Because Love’s testimony
about her daily activities shows that her day-to-day life is
strongly limited by her inability to stand, sit, or walk for
extended periods, the court readily finds that these “everyday
activities of short duration,” Lewis, 125 F.3d at 1441, do not
discredit her testimony.
2. Medical Records
Second, the ALJ relied on two medical records created in
connection

with

Love’s

claim

for

benefits

to

discredit

her

testimony. The first was an examination performed by Dr. Celtin
Robertson in May 2012. (R. at 285). The ALJ noted that Dr.
Robertson found that Love was able to walk into the examination
room and sit without acute distress, get on and off the exam table,
walk with a normal gait, stand but not walk on her toes and heels,
and squat about halfway down with assistance. Dr. Robertson noted
no

tenderness

to

palpation

of

the

lower

back

and

that

Love

possessed good muscle strength. (R. at 28, 286-87). Dr. Robertson
diagnosed Love with back pain, (R. at 288), but he made no findings
on the extent of her pain or its effect on her ability to work. In
the total absence of such findings, Dr. Robertson’s evaluation is

15

not substantial evidence upon which to discredit Love’s testimony.
The ALJ then focused on the RFC assessment performed by Marsha
Cameron, a Single Decision Maker (SDM), the title given to a person
making

an

initial

disability

determination.

See

20

C.F.R.

§

404.906(b)(2). Importantly, Cameron found that Love could stand,
sit, and/or walk for about six hours in an eight-hour workday. (R.
at 81). Her RFC assessment was affirmed in August 2012 by Thomas O.
Thomson, M.D.,

with

the

statement:

“I

have

reviewed

all

the

evidence in the file, and the RFC dated 6/19/2012 is affirmed as
written.”

(R.

at

384).

Because

of

this

affirmation,

the

ALJ

considered the RFC assessment as opinion evidence. These opinions,
however, were rendered without the benefit of any of the medical
records submitted by Dr. Kendrick; without Dr. Kendrick’s opinion
that Love’s pain would severely limit her ability to work (which
conflicts with the RFC assessment, as discussed below); and without
Love’s testimony regarding her pain, its effects on her ability to
work, and her cessation of work altogether. For these reasons, and
for the reasons more fully discussed below, the RFC assessment is
not substantial evidence upon which to discredit Love’s testimony.
Therefore, given that both of the ALJ’s reasons to discredit Love’s
testimony are unsupported by substantial evidence, her testimony
must be accepted as true.
C. Rejection of Dr. Kendrick’s Opinion
“The testimony of a treating physician must ordinarily be

16

given substantial or considerable weight unless good cause is shown
to the contrary.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th
Cir. 1986). “Good cause 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.’”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004)). “The [Commissioner] must specify what weight is given to a
treating physician’s opinion and any reason for giving it no
weight, and failure to do so is reversible error.” MacGregor, 786
F.2d at 1053. “[T]he ALJ must state with particularity the weight
given to different medical opinions and the reasons therefor.”
Winschel, 631 F.3d at 1179. “Where the [Commissioner] has ignored
or failed properly to refute a treating physician’s testimony, [the
Commissioner] as a matter of law . . . has accepted it as true.”
MacGregor, 786 F.2d at 1053.
In

this

case,

Dr.

Kendrick

opined

that

Love’s

medical

conditions cause her pain and that she is not malingering, stating
that “[h]er symptoms are anatomically appropriate for her levels of
previous surgery.” According to Dr. Kendrick, a job requiring Love
to sit or stand for prolonged periods during an eight-hour workday
without the opportunity to recline would increase her pain, and
such a pain increase would “cause serious distraction from job

17

tasks and/or result in a failure to complete job tasks in a timely
manner on more than an occasional basis during a typical workday
and/or workweek.” (R. at 450-52). The ALJ considered this opinion
but failed to explicitly state the weight given to it. This is
itself reversible error. See MacGregor, 786 F.2d at 1053. The ALJ
did, however, list four reasons for his implicit discounting of Dr.
Kendrick’s opinion. One of those reasons, that the opinion is not
supported by the extent of Love’s admitted activities, is the same
as one of the ALJ’s previously discussed reasons for discounting
Love’s subjective testimony. For the same reasons, that basis is
not good cause to discredit Dr. Kendrick’s opinion.
The next two reasons given by the ALJ, that Dr. Kendrick’s
opinion appears to rely only on Love’s reporting of her symptoms
and to be inconsistent with his own treatment notes, are largely
related. The ALJ noted that Dr. Kendrick was aware of Love’s parttime work but did not place any restrictions on her work and that
he did not indicate any detected nerve root impingement when
reviewing an MRI. (R. at 28). In defense of the ALJ’s position, the
Commissioner also pointed to Love’s normal static tests (such as
sitting erect and straight-leg raising) and (in the Commissioner’s
view) a somewhat moderate pain treatment regimen. (Doc. 13 at 14).
These reasons are not good cause to discredit Dr. Kendrick’s
opinion. During Love’s visits, Dr. Kendrick repeatedly observed
muscle spasms, back tenderness, a slowed gait with a limp, and

18

decreased sensation in her back. He prescribed many different pain
medications in an attempt to alleviate her observed symptoms. (R.
at 385-411, 426-49). Dr. Kendrick administered two epidurals to
Love to more aggressively combat the pain. (R. at 53). He did not
find

her

to

be

malingering,

as

evidenced

by

his

continued

aggressive treatment and by his submitted opinion. The ALJ’s narrow
reasons for finding a lack of support for Dr. Kendrick’s opinion in
his medical records fall far short of the good cause required to
discredit a treating physician’s opinion and substitute the ALJ’s
judgment based on the treating physician’s own medical records. The
lack of identified nerve root impingement or lifting restrictions
come

nowhere

near

offsetting

the

objective

evidence

of

pain

observed by Dr. Kendrick through his treating relationship with
Love and the aggressive treatment undertaken.
Lastly,
inconsistent
discredited

the

ALJ

found

with

the

remainder

it

on

that

Dr.

basis.

In

Kendrick’s
of

the

opinion

medical

support,

he

to

record

cited

the

be
and
RFC

assessment performed by Marsha Cameron, SDM, and affirmed by Dr.
Thomson, which found that Love could stand, sit, and/or walk for
about six hours in an eight-hour workday, in contradiction with Dr.
Kendrick’s opinion. (R. at 81). These types of findings, made by
state agency consultant physicians, are to be considered as opinion
evidence and evaluated by the Commissioner under 20 C.F.R. §
404.1527. SSR 96-6P, 1996 WL 374180. Under that regulation, all

19

opinions are considered, but more weight is generally given to an
examining relationship over a non-examining one and a treating
source over a non-treating source. 20 C.F.R. § 404.1527(c). Given
that Dr. Kendrick examined Love as her treating physician and that
Dr. Thomson apparently did not examine Love, the ALJ must overcome
a tall hurdle to use this opinion to discredit Dr. Kendrick. Other
factors to consider include the length, nature, and extent of the
treating relationship; the support cited for an opinion, which the
regulation

notes

is

particularly

important

for

non-examining

sources; consistency of the opinion with the record as a whole; and
whether the holder of the opinion is a specialist in the area in
which he opined. Id.
Dr. Kendrick’s opinion plainly surpasses the RFC assessment in
each of these areas. Dr. Kendrick is Love’s examining and treating
physician,

while

Dr.

Thomson

is

neither.

Love

visited

Dr.

Kendrick’s office eight times in the span of the six months for
which records were submitted. Dr. Kendrick is a pain management
specialist, while Dr. Thomson has no specialties noted in the
record. And most importantly, the RFC assessment’s finding that
Love is able to work six hours in an eight-hour workday is only
supported by a listing of Love’s reported daily activities and
brief summaries of some of the medical evidence in the record (none
of which include Dr. Kendrick’s records). (R. at 77-78, 80). Dr.
Thomson’s affirmance is similarly limited; he briefly summarized

20

some of the evidence, then simply affirmed the RFC assessment. (R.
at 383-84). Without any real explanation for the finding that Love
is able to work six hours in an eight-hour workday, the assessment
cannot serve as a basis to discredit the more thoroughly explained
opinion of Dr. Kendrick, Love’s treating, examining pain management
specialist. This is especially true given that the RFC assessment
and affirmance were made before Love’s visits with Dr. Kendrick and
were therefore made without consideration of his records and
expertise. Accordingly, the ALJ has not demonstrated good cause to
discredit Dr. Kendrick’s opinion, so it also must be accepted as
true.
CONCLUSION
42 U.S.C. § 405(g) provides that a reviewing district court
“shall have power to enter, upon the pleadings and transcript of
the record, a judgment . . . reversing the decision of the
Commissioner of Social Security, with or without remanding the case
for a rehearing.” When reversing a decision of the Commissioner,
the district court may either remand the action to the Commissioner
for further proceedings, potentially including a rehearing by the
ALJ, or simply remand with the instruction that the Commissioner
award benefits to the claimant. While the statute does not provide
a standard for courts to employ, the Eleventh Circuit has stated:
Generally, a reversal with remand to the [Commissioner]
is warranted where the ALJ has failed to apply the
correct legal standards. This court, however, may reverse
the judgement of the district court and remand the case
21

for an entry of an order awarding disability benefits
where the [Commissioner] has already considered the
essential evidence and it is clear that the cumulative
effect of the evidence establishes disability without any
doubt.
Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (internal
citations omitted).
The Eleventh Circuit has found an award of benefits to be
proper in cases where the ALJ improperly discredited the claimant’s
subjective testimony or the opinion of a treating physician. This
is true because the claimant’s testimony and physician’s opinion
must be accepted as true and they, when combined with evidence in
the record such as the uncontroverted testimony of a VE, often
conclusively show that the claimant is disabled. See, e.g., Hale,
831 F.3d at 1012 (reversing the ALJ’s decision and awarding the
claimant benefits because it was undisputed and confirmed by the VE
that if the claimant’s testimony was accepted as true, the claimant
could perform none of her past jobs and there were no jobs in
significant

numbers

in

the

national

economy

that

she

could

perform); Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1216-17 (11th Cir.
1991) (awarding the claimant benefits under the Railroad Retirement
Act, a statute the court explicitly treated identically to the
Social Security Act, because the Board improperly discounted a
treating

physician’s

opinion).

Further,

“‘[a]mong

the

most

persuasive arguments supporting the [pain standard] is the need to
expedite disability claims,’” Pollard v. Astrue, 867 F. Supp. 2d

22

1225, 1229 (N.D. Ala. 2012) (quoting Varney v. Sec’y of Health &
Human Serv., 859 F.2d 1396, 1401 (9th Cir. 1988)), so the court
should not hesitate to award benefits instead of remanding for
further proceedings when the testimony of a VE “avoid[s] the
necessity of a remand,” id. “This also holds true for the opinions
of treating physicians.” Id.
In this case, Love testified that she can only stand for five
to fifteen minutes at a time, sit for thirty to forty minutes at a
time, and walk for thirty to forty feet at a time, (R. at 56-57,
183), and that there was “no way” that she could work more than she
did at her part-time job. (R. at 44). Dr. Kendrick opined that a
job requiring Love to sit or stand for prolonged periods during an
eight-hour

workday

without

the

opportunity

to

recline

would

increase her pain, and that such a pain increase would “cause
serious distraction from job tasks and/or result in a failure to
complete job tasks in a timely manner on more than an occasional
basis during a typical workday and/or workweek.” (R. at 450-51).
The VE testified that a person would not be able to sustain
employment if she suffered from increased pain levels due to
prolonged sitting and standing that seriously interfered with her
ability to complete jobs in a timely manner on more than an
occasional basis and that missing more than two days of work per
month would preclude employment. (R. at 69, 71).
Given that Love’s testimony and Dr. Kendrick’s opinion must be

23

accepted

as

true,

the

court

readily

concludes

that

their

statements, in light of the VE’s testimony, “establishes disability
without any doubt,” Davis, 985 F.2d at 534. Accordingly, the court
will by separate order reverse the decision of the Commissioner and
remand the action for an award of benefits.
DONE this 24th day of February, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

24