Anderson v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/20/18. (SAC )

FILED
2018 Mar-20 PM 04:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
KAREN ANDERSON

Claimant,
v.

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY

Respondent.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
6:16-CV-2038-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On May 29, 2013, the claimant protectively applied for disability and
disability insurance benefits under Title II of the Social Security Act. The claimant
alleged disability beginning March 18, 2013, because of arthritis in her left leg, hip
pain, restless leg syndrome, migraine headaches, depression, anxiety, carpel tunnel
syndrome, anemia, high cholesterol, and acid reflux. The Commissioner denied
these claims on August 21, 2013. (R. 70-76, 124-29, 163-70). On September 19,
1

2013, the claimant filed a written request for a hearing before an Administrative
Law Judge, and he held a video hearing on April 27, 2015. (R. 8-39).
In a decision dated July 7, 2015, the ALJ found the claimant was not
disabled as defined by the Social Security Act and was, therefore, ineligible for
disability benefits. (R. 51-67). On October 24, 2016, the Appeals Council denied
the claimant’s request for review; consequently, the ALJ’s decision became the
final decision of the Commissioner of the Social Security Administration. (R. 3-5).
The claimant has exhausted her administrative remedies, and this court has
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated
below, the court REVERSES and REMANDS the decision of the ALJ because
substantial evidence does not support his residual functional capacity (RFC)
determination.
II. ISSUE PRESENTED
Whether the ALJ’s RFC determination that the claimant can perform work at
the medium exertion level lacks substantial evidence because he improperly
discounted the limiting effects of the claimant’s migraine headaches.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This
court must affirm the ALJ’s decision if he applied the correct legal standards and if
substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g);

2

Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826
F.2d 996, 999 (11th Cir.1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal
conclusions, including determination of the proper standards to be applied in
evaluating claims.” Walker, 826 F.2d at 999. This court does not review the
Commissioner’s factual determinations de novo. The court will affirm those factual
determinations that are supported by substantial evidence. “Substantial evidence”
is “more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 402 (1971).
The court must keep in mind that opinions such as whether a claimant is
disabled, the nature and extent of a claimant’s residual functional capacity, and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the Commissioner because they are administrative
findings that are dispositive of a case; i.e., that would direct the determination or
decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the
claimant meets the listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to
3

disagree with the ALJ about the significance of certain facts, the court has no
power to reverse that finding as long as substantial evidence in the record supports
it.
The court must “scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner]'s factual findings.” Walker, 826 F.2d at 999.
A reviewing court must not only look to those parts of the record that support the
decision of the ALJ, but also must view the record in its entirety and take account
of evidence that detracts from the evidence relied on by the ALJ. Hillsman v.
Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
The responsibility for determining the claimant's RFC rests with the ALJ. 20
C.F.R. '' 404.1546(c), 416.946(c). An RFC assessment involves consideration of
all relevant evidence in determining the claimant's ability to do work in spite of her
impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also
20 C.F.R. '' 404.1545(a), 416.945(a).
The ALJ determines the claimant's RFC only after establishing the extent of
the claimant's severe impairments. 20 C.F.R. '' 404.1520(e)-(f), 416.920(e)-(f). In
evaluating pain and other subjective complaints in making his RFC determination,
the Commissioner must consider whether the claimant demonstrated an underlying
medical condition, and either (1) objective medical evidence that confirms the
4

severity of the alleged pain arising from that condition or (2) that the objectively
determined medical condition is of such a severity that it can reasonably be
expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991). The ALJ may consider the claimant’s daily activities in
evaluating and discrediting complaints of disabling pain. Harwell v. Heckler, 735
F.2d 1292, 1293 (11th Cir. 1984).
If the ALJ decides to discredit the claimant’s testimony regarding the
intensity and limiting effects of her severe impairments, he must articulate explicit
and adequate reasons for that decision. Foote v. Chater, 67 F.3d 1553, 1561-62
(11th Cir. 1995). If substantial evidence does not support the ALJ’s findings
regarding the limiting effects of her severe impairments, the ALJ commits
reversible error. Foote, 67 F.3d at 1562.
V. FACTS
The claimant was sixty years old at the time of the ALJ’s final decision. The
claimant has a 12th grade education and past relevant work as a trucking detailer
and in a composite job involving clerical work, dispatching, delivering, and
cleaning. (R. 165). The claimant alleged disability beginning on March 18, 2013
because of arthritis in her left leg, hip pain, restless leg syndrome, migraine
headaches, depression, anxiety, carpel tunnel syndrome, anemia, high cholesterol,
and acid reflux. (R. 164).
5

Physical Limitations
On September 16, 2008, the claimant sought treatment at the Hope Clinic in
Jasper for a migraine, and the doctor prescribed Maxalt.1 From February 3, 2009
through February 28, 2012, the claimant sought treatment on approximately seven
occasions at the Hope Clinic for her migraine headaches. Although she was still
waking up with migraines, she reported in June and December 2010 that the
Maxalt was working. In August 2011, she complained that she had a burning
sensation in the right side of her head and then developed a migraine. (R. 251261).
The claimant also sought treatment for her back, leg, and joint pain at the
Hope Clinic beginning in November 2006. The record contains no medical
reports regarding the claimant’s back or joint pain again until February 3, 2009,
when she complained to a doctor at the Hope Clinic about her arthritis and tingling
pain in her left arm and shin. On June 9, 2009, she complained that her legs hurt,
tingled, and cramped at night, and the doctor at the Hope Clinic suspected restless
leg syndrome and prescribed Requip. (R. 259, 260, 269).
Between October 26, 2009 and July 26, 2010, the claimant sought treatment
with Dr. Morton Goldfarb at ENT Associates of Alabama on four occasions for
chronic external otitis and acute exacerbation in her right ear. The claimant
complained of headaches, dizziness, vomiting, and feeling “off balance.”
1

For each record from the Hope Center, the name of the treating doctor is illegible.

6

Audiograms revealed “rather significant loss in the high frequencies” and
“significant nerve loss.” At the July 26 visit, Dr. Goldfarb noted that the claimant
was on Prozac for depression and anxiety, Methacarbonol for arthritis, Mobic for
pain and inflammation, and Crestor for balance. Dr. Goldfarb ordered a brain CT
with contrast, but the record does not contain results of that CT scan. (R. 239242).
The claimant’s next documented complaint at the Hope Clinic on December
16, 2010 involved her left hip and leg tingling “all the time.” A doctor at the Hope
Clinic prescribed the claimant Neurontin for the tingling in her lower extremities.
On the claimant’s next visit to Hope Clinic on February 28, 2012, she complained
of a burning sensation in her neck at night. A doctor at the Hope Clinic assessed
the tingling as neuropathy, and continued the claimant on Neurontin. By her
follow-up on June 26, 2012, the claimant indicated that she had “no complaints.”
(R. 251, 253-54).
On April 23, 2013, the claimant complained of tingling in her left arm from
the elbow down to her fingertips. The doctor at Hope Clinic suspected “possible
carpel tunnel” syndrome and prescribed a wrist splint. (R. 294).
The claimant completed a “Function Report-Adult” on June 24, 2013 at the
request of the Social Security Administration. In that report, she stated that she
lives with her husband Royce Anderson and starts her day by straightening up her
7

house, but she has to sit several times because her feet and legs start to hurt. She
cleans and sweeps the house about one hour a day. She does a little laundry;
watches television; cooks supper; cleans the kitchen; watches television again; and
then goes to bed. She takes care of her husband by cooking for him and making
sure he takes his medications. Her husband walks the dog because she cannot walk
“a long distance.” Her restless leg syndrome makes her legs ache constantly. (R.
184-86).
The claimant drives and goes out “several times a day.” She grocery shops
with her husband twice a week for about one hour. She reads; watches television
about four hours a day but has to get up and walk around because her legs ache;
swims; works in the flower bed “some”; visits with her children and grandchildren
weekly; visits friends once a week. (R. 187-88).
She cannot walk or sit for long and cannot use her hands a lot because she
gets cramps in them. She stated that she can lift 15 pounds; cannot stand or walk
too long because her feet and legs hurt; can walk “about ½ a football field” before
she has to stop and rest for about fifteen minutes; has no problem paying attention,
following written or spoken instructions, or getting along with authority figures;
does not handle stress very well; and can handle changes in routine well. (R. 18991).

8

The claimant’s husband completed a “Function Report-Adult-Third Party”
on June 25, 2013. He stated that he helps the claimant up and down stairs, but she
feeds and “takes care of [him].” He said he “helps [the claimant] do everything in
her daily routine,” but marked on the form that the claimant has “NO PROBLEM”
with her personal care. Mr. Anderson noted that the claimant cleans the house “all
day depending on how she feels”; washes clothes; goes outside three to four times
a day; grocery shops once a week for about thirty minutes to one hour; can pay
bills, count change, handle a savings account, and use a checkbook; watches
television about one hour and has to move around because her legs hurt; visits her
grandchildren, sister, and mother every week; and needs someone with her in case
she falls.
Mr. Anderson indicated that the claimant can walk across the house before
she has to stop and rest; does well with other people; does not handle stress well;
cannot handle changes in her routine; is afraid to walk without someone with her at
all times in case she falls; and wears a brace on her wrist. He said he feels sorry
for his wife because she used to help him get around, but now needs help herself
because of her arthritis and restless leg syndrome. (R. 192-99).
The clamant returned to the Hope Clinic on July 11, 2013 complaining of
cramps in her legs, pain in her feet, and tingling in her hands and arms. She
reported that the wrist splint improved her carpel tunnel by about “50%.” The
9

doctor at the Hope Clinic continued the claimant on her current course of
treatment. (R. 293).
Dr. Johnathan Ledet evaluated the claimant on July 13, 2013 at the request
of the Disability Determination Service. Dr. Ledet reviewed all of the claimant’s
medical records and physically examined her. The claimant told Dr. Ledet that she
has “severe depression”; has difficulty interacting with others at times; has
difficulty walking or standing for long periods of time because of her restless leg
syndrome; can stand for about 15-20 minutes at a time and for two hours in an
eight-hour day on and off with breaks; can walk approximately 100 yards; cannot
sit for long periods of time without pain; can sit for approximately 45 minutes at a
time; can drive for an hour and a half at a time; has carpal tunnel in both hands,
with decreased strength in her right hand; can lift 20 pounds; has balance issues
and frequently falls; can sweep, mop, vacuum, cook, do dishes, and shop; and has
approximately two severe cluster headaches a week that are incapacitating but
relieved by Tylenol, Maxalt, and rest. (R. 272-73).
Dr. Ledet’s physical examination of the claimant revealed that she had no
difficulty getting on and off the examination table and could sit in and rise from a
chair with no problems. He noted the claimant’s arthritis in her feet; stiffness in
her legs; normal gait; full range of motion in all of her joints; negative straight leg
test; ability to walk on heels and toes; ability to squat and rise from a squatted
10

position with no difficulty; decreased grip strength of 4/5 in her right hand and
normal 5/5 grip strength in her left hand; and normal neurological findings and
sensation in her muscles and tendons. (R. 274-77).
The claimant completed a “Headache Questionnaire” on August 12, 2013 at
the request of the Disability Determination Service. She indicated that she has a
headache at least four times a week, but has a severe headache twice a week. Most
of the time, she wakes up with a headache that lasts about four to five hours. Her
headaches make her sick to her stomach, and she usually has to go to bed in a dark,
quiet room. Sometimes her prescription for Maxalt along with Advil helps, but
sometimes nothing helps. She experiences nausea sometimes after taking her
headache medications. She sometimes has to go to the AfterHours Clinic to get a
shot to help relieve her headaches; the last time she needed a shot was a year prior.
She tries to get over the headaches by herself because the shots make her sleepy
and cause her to be in the bed for several days. Sometimes her headaches affect
her balance. (R. 201-03).
On August 20, 2013, Dr. Gloria L. Sellman reviewed the claimant’s records
at the request of the Disability Determination Service, but did not personally
examine the claimant. Dr. Sellman opined that the claimant could occasionally lift
and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand and/or walk
with normal breaks for a total of six hours in an eight-hour workday; push and/or
11

pull hand and foot controls in an unlimited fashion; occasionally climb ramps and
stairs; never claim ladders, ropes, or scaffolds; and frequently balance, stoop,
kneel, crouch, and crawl.
In making her physical capacity assessment of the claimant, Dr. Sellman
noted that the record contains no objective findings to support the claimant’s
allegations that she has imbalance issues and falls. Although she noted the
claimant’s migraine headaches, Dr. Sellman noted that the claimant did not take
any prophylactic medications for her headaches; had “good results” with the
Maxalt prescription; and did not seek neurological treatment for her migraines. Dr.
Sellman also referenced Dr. Ledet’s objective findings that the claimant had full
range of motion in all of her joints and normal strength throughout her body,
except in her right hand grip at 4/5. (R. 46-49).
The claimant returned to the Hope Clinic on October 15, 2013 for a followup complaining of leg cramps and a burning sensation in her feet at night. The
doctor at Hope Clinic did not change any of her medications. (R. 292).
On January 8, 2014, the claimant presented to the AfterHours Clinic in
Jasper complaining of a migraine headache that she had for four days. The notes
for that visit state “has 1-2/year.” The attending physician gave the claimant shots
of Bupap and Phenergan for her migraine, and she was in bed for several days after
that visit. The next month, on February 25, 2014, the claimant complained to a
12

doctor at the Hope Clinic that the Maxalt did not help her migraines. At that visit,
she also complained of low back and left hip pain; the doctor noted the need for a
x-ray and MRI of her left hip. (R. 291, 302).
The claimant saw Dr. Goldfarb on June 4, 2014 for ear issues she had
several years before. She complained about ear pain and drainage; imbalance
issues causing her to fall down; headaches; tingling in her lips, hands, and feet;
joint pain; and depression. Dr. Goldfarb diagnosed her with acute bilateral otitis
externa and prescribed drops and a steroid to help with her ear pain. (R. 286-87).
The claimant returned to the Hope Clinic on July 3, 2014 reporting leg,
back, and hip pain that was “getting worse” and knots on her wrist that caused her
hand to “lock up.” The record for that visit lists the claimant’s medications as 500
mg Robaxin as a muscle relaxer; 250 mg Depakote used to treat anxiety and
migraines; Prozac for depression and anxiety; 25 mg Antivert to treat nausea and
dizziness; 10 mg Maxalt for her migraines; 10 mg Crestor for balance; 25 mg
Phenergan for nausea; Ropinirole for her restless leg syndrome; 15 mg Mobic for
inflammation; and 300 mg Neurontin for her nerve pain. (R. 290).
When the claimant returned to Dr. Goldfarb on August 26, 2014 for a
follow-up for her ears, she reported “general good health lately” and denied joint
pain, depression, and tingling in her feet or hands. (R. 278-79). But two months

13

later on October 8, 2014, she reported to the doctor at the Hope Center that her
balance was off. (R. 289).
She returned to the Hope Clinic on January 14, 2015 complaining of a
severe headache for two days with no relief with her prescription medications.
Three days later, she presented to the AfterHours Clinic complaining that she still
had the migraine with nausea from days before. Dr. Pruett gave the claimant a shot
of 2 mg Stadol and 50 mg Phenergan to help alleviate her pain and nausea. Two
days after that visit, the claimant went to Walker Baptist Medical Center
complaining of that same migraine getting worse. The record from Walker Baptist
is unclear as to whether Dr. Jarvis Patton gave the claimant any additional
medications or shots for this migraine. (R. 288, 301, 304-11).
ALJ Hearing
After the Commissioner denied the claimant’s request for disability benefits,
the claimant requested and received a hearing before an ALJ on April 27, 2015. (R.
8-39). The claimant testified that she stopped working because she could not sit
very long in a job where she was “running parts and stuff” and could not carry the
parts because of her pain. She worked for her employer for about twenty years;
her employer “cut her some slack the last couple of years of her work,” and was
very good to her, “but then [she] just couldn’t do it anymore.” She tried to find

14

another job, but her pain required her to sit a while and then stand a while and no
one would want to hire her with those limitations. (R. 21-22).
The claimant testified that she has degenerative osteoarthritis in her left hip
and leg that causes constant severe pain and problems walking. She loses her
balance because her leg feels like its “going to buckle from under [her],” and she
has fallen several times. She does not use a cane or crutch. (R. 15).
When she goes to the grocery store with her husband, he holds onto her
when she walks around. She testified that she can drive sometimes but someone is
always with her; can climb stairs if she leads with her right foot and holds on to the
railing; can carry something ten pounds or less when walking upstairs; can walk
“pretty good on uneven ground” but has “fallen walking on uneven ground”; and
hurts when walking up inclines. (R. 16-17).
She takes Ropinirol for her leg cramps and Celebrex, but neither medication
helps with her pain. She has a “constant nag” that affects her sleeping. Her legs
feel like they are constantly moving at night, and, although she sleeps with a pillow
under her left leg, she cannot get comfortable at night. (R. 17-18).
Regarding her migraine headaches, she stated she has a really severe one
about once a month, and some months she has them really bad. When one hits,
they last usually around two days, but sometimes longer. When one of her really
severe migraines hits, sometimes it takes several days to fully get rid of the
15

headache. She has to go to her room; shut the blinds; turn off the lights; and lay in
the dark. She takes Maxalt that helps her migraines “sometimes.” She testified
that sometimes she gets “deathly sick” from the headaches and has to go the
hospital or a doctor for a shot of medication; her last headache that severe was in
January 2015 when she was “deathly sick” for four-and-a-half days of the seven
day headache. (R. 19-20).
Her typical day involves trying to get up and “do stuff,” but she has to do
everything in moderation. She folds laundry but her husband carries the baskets
because she is afraid she will fall. She walks around a little; sits down for a little
while and watches TV; props up her leg while she sits in the recliner; and gets up
again to move around a little. During an eight or nine hour day, she sits in the
recliner a total of about four-and-a-half to five hours. “That’s basically what [she
does] all day.” She testified that she can cook, but she has to lean up against the
stove while she stands to cook; sit down at the bar while the food cooks; and get up
to finish cooking. (R. 18-19, 25).
The claimant indicated that she helps take care of her husband, who is
disabled from severe back problems and a heart attack in 2003. She cooks for her
husband and makes sure he takes his medications. Every four to six months, they
take weekend camping trips in their friend’s motor home and “just sit around the

16

campground and talk and laugh.” She and her husband also sometimes ride with
her friends to fish in Tennessee. (R. 23-26).
The claimant testified that she sees her grandkids about five times a week;
she walks to her son’s house about four houses down the street to visit at least once
a week. She goes to their activities, like ball games and beauty pageants, but has
had to miss some because “she wasn’t feeling good at the time.” She also
sometimes sits on a blanket and pulls weeds out of the flowerbed. (R. 26-28).
Regarding her work history, the vocational expert Dr. Dallas Russell
testified that the claimant previously worked from 1999 until January 2003 as a
detailer, classified as medium and unskilled work. Dr. Russell stated that from
January 2003 through March 2013 when the claimant stopped working, she “only
worked part-time, 20 hours a week in a composite job that had four components.”
That composite job included work as a clerical worker, classified as light and semiskilled; a dispatcher, classified as sedentary and skilled; a merchandise deliverer,
classified as medium but performed as light and unskilled; and a cleaner, classified
as heavy but performed as light and unskilled. (R. 29, 38-40).
Dr. Russell then testified concerning the type and availability of jobs that the
claimant was able to perform. Dr. Russell stated that a hypothetical person the
same age, education, and work history as the claimant, who could perform medium
work, could perform the claimant’s past relevant work at the composite job that
17

involved work as a clerk, dispatcher, merchandise deliverer, and cleaner.
However, he testified that such a hypothetical individual could not perform the
claimant’s past relevant work as a detailer. Dr. Russell also testified that
alternative medium-exertion work was available for such an individual, including
work as a hand packager, with 3000 positions available in the state and 248,000
positions available nationally; box maker, with 1,200 positions available in the
state and 86,000 positions available nationally; and machine tender, with 2,100
positions available in the state and 184,000 positions available nationally. (R. 3334).
The ALJ then asked Dr. Russell about the impact that migraine headaches
could have on the hypothetical individual’s ability to work in a medium exertion,
unskilled job. Dr. Russell testified that unskilled workers are expected to work
two-hour periods at a time in an eight-hour workday with custom breaks; a person
who must be off-task more than nine minutes per hour cannot sustain employment;
and employers would not tolerate an employee missing more than two days a
month. Dr. Russell also testified that no jobs would be available for someone who
had to prop up her feet at waist level or above for half of a workday. (R. 34-36).
VI. ALJ OPINION
On July 7, 2015, the ALJ determined that the claimant was not disabled
under the Social Security Act. The ALJ found the claimant met the insured status
18

requirement of the Social Security Act through December 31, 2017 and had not
engaged in substantial gainful activity since March 18, 2013, the alleged onset date
of disability. (R. 56).
Next, the ALJ found that the claimant suffered from the severe impairments
of migraine headaches, back pain/lumbar radiculopathy, and osteoarthritis.
Regarding her gastroesophageal reflux disease, hearing loss, and carpel tunnel
syndrome, the ALJ found those impairments non-severe because they caused no
more than a minimal functional limitation, if any, on the claimant’s ability to
perform work-related activities.
The ALJ also found the claimant’s generalized anxiety disorder and
depression non-severe because the claimant takes medications as prescribed to
control her symptoms; she did not allege at the hearing that these impairments keep
her from working; and they cause no more than a mild limitation in her activities of
daily living, social functioning, concentration, persistence, and pace. In making
his finding regarding her mental limitations, the ALJ noted that the claimant is
independent in her personal care and grooming; can drive a car; cooks meals; goes
grocery shopping with her husband weekly; does household chores like cleaning
and laundry; takes walks to visit her family down the street on a weekly basis;
attends sporting events to see her grandchildren play; gets along well with
authority figures; has never been fired from a job for not getting along with others;
19

is socially active with her family about five times a week; has a good attention
span; can follow directions well; enjoys reading and watching television; and has
had no episodes of decompensation. (R. 56-58).
The ALJ next found that none of the claimant’s impairments, singly or in
combination, manifested the specific signs and diagnostic findings required by the
Listing of Impairments. He noted that the evidence of record does not contain any
“diagnostic findings, signs, symptoms, or laboratory results” or medical opinions
to support that the claimant meets a Listing. (R. 58-59).
The ALJ then determined that the claimant had the RFC to perform medium
work, except that she can never climb ladders, ropes, or scaffolds; can occasionally
climb ramps and stairs; can frequently balance, stoop, kneel, crouch, and crawl;
cannot be exposed to extreme cold, heat, or wetness; and can have occasional
exposure to hazardous machinery, unprotected heights, and uneven terrain. In
making this RFC determination, the ALJ indicated he carefully considered the
entire record and recounted parts of the record to supports his finding. (R. 59).
In considering the claimant’s subjective allegations of pain, the ALJ applied
the controlling pain standard of the Eleventh Circuit and found that the claimant’s
allegations of pain were not fully credible when considered in light of the entire
record. The ALJ concluded that, although the claimant’s medically determinable
impairments could reasonably be expected to cause symptoms, the claimant’s
20

allegations regarding intensity, persistence, and limiting effects of these symptoms
were “not entirely credible.” (R. 59).
He noted that the claimant stated at the hearing that she could not work
because of her “pain in her legs and back, as well as her migraine headaches.”
Regarding her leg and back pain, the ALJ acknowledged that the objective record
showed that the claimant had pain in her lower back and left leg, but noted that
doctors only prescribed muscle relaxers and non-narcotic anti-inflammatory
medication for those impairments. The ALJ also acknowledged the objective
evidence of record regarding her migraine headache complaints, but noted that the
claimant reported that the prescription for Maxalt controlled her migraines; that she
had only been to the AfterHours Clinic twice in January 2014 and January 2015 for
her headaches; and that she reported in January 2014 that she only had migraines
“one to two times a year.” (R. 60).
In assessing the claimant’s daily activities as they relate to her complaints of
disabling pain, the ALJ noted that she can care for herself; can drive a car, goes
grocery shopping; does household chores; cares for her disabled husband; sees her
grandchildren several times a week; attends her grandchildren’s activities; and
travels with her husband in a camper on some weekends. He found that these
activities are inconsistent with someone who has disabling pain. The ALJ
considered the Third Party Function Report by the claimant’s husband and gave it
21

“some weight,” but found that the claimant’s treatment records did not support the
level of severity he alleged for the claimant’s limitations. (R. 60-61).
The ALJ gave examining consultant Dr. Ledet’s opinion great weight
because “he performed a comprehensive examination of the claimant and his
findings are consistent with his opinions.” He also gave consulting physician Dr.
Sellman great weight because her opinion is consistent with the medical records
and with Dr. Ledet’s opinion. (R. 61).
Lastly, the ALJ found that the claimant could not perform any past relevant
work, citing that the “vocational expert testified that the claimant, with the residual
functional capacity [assessed by the ALJ] would not be able to perform any of her
past relevant work as classified.”2 However, the ALJ found that the claimant could
perform other medium exertion work that exists in significant numbers in the
national economy. Based on the vocational expert’s testimony, the ALJ found that
the claimant could perform representative occupations including a hand packager,
box maker, and machine tender. Thus, the ALJ concluded that the claimant was not
disabled as defined by the Social Security Act. (R. 62-63).

VII. DISCUSSION
2

The ALJ incorrectly stated that Dr. Russell testified that the claimant could not perform any of her past relevant
work. Instead, Dr. Russell indicated that the claimant could not perform her past relevant work as a detailer, but
could work at the composite job involving clerical work, dispatching, merchandise delivering, and cleaning if she is
able to drive. (R. 33).

22

The claimant argues that the ALJ’s RFC determination that the claimant
could do medium exertion work on a full-time basis lacks substantial evidence to
support it. This court agrees.
The ALJ found that the claimant suffers from the severe impairment of
migraine headaches. In making his RFC determination, the ALJ must consider the
extent that the claimant’s migraine headaches affect her ability to work full-time.
See Lewis, 125 F.3d 1440 (the ALJ must assess the claimant’s ability to work fulltime in spite of her impairments and must consider all relevant evidence in making
that assessment).
In determining the claimant’s RFC, the ALJ applied the pain standard to
evaluate the claimant’s subjective statements regarding the limiting effects of her
migraine headaches. The ALJ found that her migraines could reasonably be
expected to cause the claimant’s symptoms, but the claimant’s statements
regarding the intensity, persistence, and limiting effects of her symptoms were “not
entirely credible.” The ALJ’s reasons, however, for discrediting the limiting
effects of the claimant’s migraines lack substantial evidence. See Foote, 67 F.3d at
1562 (substantial evidence must support the ALJ’s reasons for discrediting the
limiting effects of a claimant’s severe impairment).
The ALJ improperly disregarded any limiting effects of the claimant’s
migraine headaches in making his RFC determination. In discounting the
23

claimant’s migraine headaches, the ALJ stated that the claimant reported to a Hope
Center doctor that her prescription medication Maxalt controls her migraines.
Although the claimant stated in 2010 that the Maxalt helped her migraines, the
ALJ ignored the claimant’s headache questionnaire in August 2013 that sometimes
her Maxalt does not help her migraines and her report to the Hope Clinic doctor in
February 2014 that Maxalt was not helping her migraines. The claimant’s
indication on a few occasions in 2010 that Maxalt helped her migraines is not
inconsistent with her statements in 2013 and 2015 regarding the frequency and
severity of her migraine headaches.
The ALJ acknowledged that the claimant sought treatment at the AfterHours
Clinic for extremely severe migraine headaches in January 2014 and January 2015.
But as grounds for discounting the claimant’s subjective statements regarding the
limiting effects of her migraines in performing full-time work, the ALJ stated that
the claimant reported in January 2014 that “she had migraine headaches one to two
times a year.” However, given the claimant’s headache questionnaire in 2013 and
her hearing testimony in 2015, the ALJ seems to mischaracterize the claimant’s
statement to the Hope Clinic doctor in January 2014.
The claimant consistently maintained in 2013 and 2015 that she has a severe
headache about twice a week; a really severe migraine about once a month but
some months are worse; and that sometimes she gets “deathly sick” and has to go
24

to the AfterHours Clinic to get a shot. On that January 2014 doctor’s visit, the
claimant reported that she had that migraine for four days before she went to the
clinic seeking relief from that severe migraine. The doctor’s notation in that
January 2014 record indicating “has 1-2/year” could refer to those migraines that
sometimes make her “deathly sick” and last for days and is not necessarily
inconsistent with the number of severe migraines the claimant consistently stated
she experiences each week and month. The fact that the claimant only goes to the
AfterHours Clinic for shots when her migraines make her “deathly sick” and last
for days does not negate that the claimant has debilitating headaches that could
cause her to miss more than two days a month and affect her ability to sustain fulltime work.
The court finds that, in making his RFC determination, the ALJ’s reasons for
discounting the claimant’s subjective statements regarding the intensity and
limiting effects of her migraine headaches are not supported by substantial
evidence.

Other Concerns
The court is also concerned whether substantial evidence supports the ALJ’s
RFC determination that the claimant could perform medium exertion work on a
25

full-time basis. The vocation expert Dr. Russell testified at the hearing that the
claimant only worked part-time at the composite job from January 2003 until
March 2013 when the claimant stopped working allegedly because of her severe
impairments. (R. 29). That composite job included work at the sedentary and light
level. Although the merchandise deliverer job was a medium exertion job, Dr.
Russell testified that the claimant performed that job part-time at the light exertion
level. Given that Dr. Russell found that the claimant could not return to her fulltime job as a detailer at the medium exertion level and she worked for ten years
only part-time at sedentary and light work, the court questions how the claimant
could function full-time at medium exertion work in light of her severe
impairments. Also, the claimant told Dr. Ledet and testified at the hearing that she
could lift 15-20 pounds, but Dr. Sellman, after only reviewing the claimant’s
medical records, assessed that the claimant could lift 50 pounds occasionally to do
medium exertion work. The court finds nothing on which Dr. Sellman based that
lifting finding.
Dr. Ledet did not assess the claimant’s residual functional capacity, and the
results of his physical examination were not inconsistent with the claimant’s
statements regarding the pain she experienced because of her impairments. The
fact that she can get on and off an exam table, squat on one occasion, and had full
range of motion in her joints on that one date does not negate the years the
26

claimant consistently complained to doctors at the Hope Center about her leg and
hip pain and migraine headaches.
The court is also concerned that the ALJ failed to include any type of sitstand option in his hypothetical to Dr. Russell. The objective medical record
supports that the claimant has restless leg syndrome and osteoarthritis and takes
prescription medications for these conditions. The record supports that the
claimant cannot stand or sit for long periods of time because of her conditions and
on remand the ALJ should consider a sit-stand option in his hypothetical to the
vocational expert.
The court also questions the ALJ’s finding that the claimant’s daily activities
negate her subjective statements about the limiting effects caused by her hip and
leg pain and her migraine headaches. The facts that the claimant can care for her
personal hygiene, drive a car sometimes, go shopping occasionally, and cook while
she leans up against the stove and sits down while the meal cooks do not mean that
she can sustain full-time employment. Even a disabled person can take a trip every
four to six months in a RV to sit around and talk with her friends. The claimant
does not have to be an invalid who does absolutely nothing and never leaves her
home to be disabled and unable to work full-time. See Parker v. Bowen, 793 F.2d
1177, 1180 (11th Cir. 1986) (substantial evidence did not support the ALJ’s
finding that the claimant’s ability to do simple household chores negated her
27

claims that she had to lie down every two hours because of her impairments);
Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981) (“[S]tatutory disability
does not mean that a claimant must be a quadriplegic or an amputee. . . . Disability
does not mean that a claimant must vegetate in a dark room excluded from all
forms of human and social activity. . . . It is well settled that sporadic or transitory
activity does not disprove disability.”) (citations and quotations omitted.)
On remand, the ALJ should specifically discuss how the claimant’s activities
are inconsistent with the limitations she alleges because of her severe impairments,
including her migraines.
VIII. CONCLUSION
For the reasons stated above, this court concludes that substantial evidence
does not support the ALJ’s RFC finding that the claimant can perform medium
exertion work on a full-time basis. Therefore, the court REVERSES and
REMANDS the decision of the ALJ consistent with this Memorandum Opinion.
The court will enter a separate Order to that effect simultaneously.
DONE and ORDERED this 20th day of March, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

28