Self v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 1/7/2019. (AFS)

FILED
2019 Jan-07 PM 04:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
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KEITH BURRELL SELF,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Civil Action Number
6:17-cv-01482-AKK

MEMORANDUM OPINION
Keith Burrell Self brings this action pursuant to Section 405(g) of the Social
Security Act, 42 U.S.C. § 405(g), seeking review of the Administrative Law
Judge’s denial of disability insurance benefits, which has become the final decision
of the Commissioner of the Social Security Administration (“SSA”). For the
reasons explained below, the court reverses and remands for further consideration.
I.

Procedural History
Self worked as an assembly line inspector, door assembler, and metal

furniture assembler until his alleged disability in December 2014. Docs. 7-3 at 53;
7-6 at 2. Self filed his application for Disability Insurance Benefits (“DIB”)
roughly a month later, doc. 7-6 at 2, asserting a disability onset beginning on

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December 3, 2014 due to obesity, degenerative disc disease, and degenerative joint
disease. Doc. 7-3 at 20. After the SSA denied his application, Self requested a
formal hearing before an ALJ. Docs. 7-4 at 13; 7-5 at 4-16. Ultimately, the ALJ
found that Self was not disabled. Doc. 7-3 at 14. The Appeals Counsel affirmed,
rendering the ALJ’s decision the final decision of the Commissioner. Id. at 2. Self
filed this appeal pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g). Doc. 9.
II.

Standard of Review
First, federal district courts review the SSA’s findings of fact under the

“substantial evidence” standard of review. 42 U.S.C. §§ 405(g), 1383(c); Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).

The district court may not

reconsider the facts, reevaluate the evidence, or substitute its judgment for that of
the Commissioner; instead, it must review the final decision as a whole and
determine if the decision is “reasonable and supported by substantial evidence.”
See Martin, 894 F2d at 1529 (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)). Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Id. (internal citations omitted).
If supported by substantial evidence, the court must affirm the Commissioner’s
factual findings, even if the evidence preponderates against the Commissioner. Id.

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Credibility determinations are the province of the ALJ. Moore v. Barnhart,
405 F.3d 1208, 1212 (11th Cir. 2005). However, “[t]he testimony of a treating
physician must ordinarily be given substantial or considerable weight unless good
cause is shown to the contrary,” and the failure of the Secretary “to specify what
weight is given to a treating physician’s opinion and any reason for giving it no
weight” constitutes reversible error. MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986). Courts have found good cause to discount a treating physician’s
report when it is “not accompanied by objective medical evidence, . . . wholly
conclusory,” or “inconsistent with [the physician’s] own medical records.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d
580, 583 (11th Cir. 1991). In contrast to the opinion of a treating physician, “the
opinion of a nonexamining physician is entitled to little weight if it is contrary to
the opinion of the claimant’s treating physician.” Broughton v. Heckler, 776 F.2d
960, 962 (11th Cir. 1985).
Second, federal courts review the SSA’s conclusions of law de novo, see
Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir.1987), and “[f]ailure to apply the
correct legal standards is grounds not for remand but, for reversal.” Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988). No presumption attaches to either the
ALJ’s choice of legal standard or to the ALJ’s application of the correct legal
standard to the facts. Id.

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Finally, reviewing courts have the power “to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision
of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g) (emphasis added).
III.

Statutory and Regulatory Framework

An individual applying for DIB bears the burden of proving that she is
disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To qualify, a
claimant must show “the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A); 42
U.S.C. § 416(i)(I)(A). A physical or mental impairment is “an impairment that
results from anatomical, physiological, or psychological abnormalities which are
demonstrated by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520. Specifically, the Commissioner must determine, in sequence:
(1)
(2)
(3)
(4)

whether the claimant is doing substantial gainful activity;
whether the claimant has a severe impairment;
whether the impairment meets or is medically equivalent to one
listed by the Secretary;
whether the claimant is unable to perform his or her past work;
and
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(5)

whether the claimant is unable to perform any work in the
national economy, based on his residual functional capacity.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work, the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV.

The ALJ’s Decision

Applying the five-step analysis for DIB claims, the ALJ found at step one
that Self had not engaged in substantial gainful activity since his alleged onset
date.

Doc. 7-3 at 20.

At step two, the ALJ found that Self has “severe

impairments” caused by obesity, degenerative disc disease, and degenerative joint
disease. Id. (citing 20 CFR 404.1520(c) and 416.920(c)). At step three, the ALJ
concluded that Self’s impairments did not meet the severity level or medically
equal the severity of one of the impairments listed in 20 CFR Pt. 404, Subpt. P,
App. 1, § 1.04 for spinal disorders and § 1.02 for major dysfunction of a joint
because the record did not reflect that Self is unable to ambulate effectively. Id. at
21-22. Next, the ALJ determined Self’s residual functional capacity (“RFC”) and
found that Self can “perform light work” with limitations on postural maneuvers,
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climbing, standing, dangerous machinery, and extreme temperatures. Id. at 22
(citing 20 CFR 404.1567(b) and 416.967(b)). Based on the RFC, and relying on
the testimony of a vocational expert (“VE”), at step four, the ALJ found that Self
could not return to his past relevant work. Id. at 24. The ALJ then proceeded to
step five, where based on Self’s RFC, age, prior work experience, and the VE’s
testimony, the ALJ concluded that Self is “capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy,” including work as a garment folder, bagger, and marker. Id. at 25.
Therefore, the ALJ concluded that Self was not disabled from the alleged onset
date through the date of her decision.
V.

Analysis
Self argues that the ALJ erred by (1) failing to properly evaluate Self’s

subjective complaints of pain and (2) issuing a RFC finding that was not supported
by substantial evidence. Doc. 9 at 6, 10.

For the reasons discussed below,

specifically the ALJ’s failure to properly explain why she discredited the medical
opinions that allegedly supported Self’s subjective pain testimony, the Secretary’s
decision is due to be reversed.

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A. Whether the ALJ erred by failing to properly evaluate Self’s subjective
complaints of pain
A plaintiff alleging disability because of pain must meet additional criteria to
prevail. Doc. 9 at 5-12. This three-part “pain standard”1 requires (1) “evidence of
an underlying medical condition,” and either (2) “objective medical evidence that
confirms the severity of the alleged pain arising from that condition” or (3)
evidence 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.
Barnhart, 921 F.2d 1221, 1223 (11th Cir. 1991). “If the ALJ discredits subjective
testimony, he must articulate explicit and adequate reasons for doing so.” Wilson
v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Marbury v. Sullivan,
957 F.2d 837, 839–40 (11th Cir. 1992) (“After considering a claimant’s complaints
of pain, the ALJ may reject them as not creditable, and that determination will be
reviewed for substantial evidence.”).
At issue here is the ALJ’s finding that although Self’s impairments could
reasonably cause knee and back pain, Self’s statements “concerning the intensity,
persistence, and limiting effects of these symptoms” are inconsistent with the
“medical evidence and . . . record.” Doc. 7-3 at 23. Self attacks this determination
on four grounds, arguing that the ALJ improperly relied on (1) the nine-year “gap”
in his treatment, (2) the noncompliance with the “routine and conservative” nature
1

See Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985).
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of his prescribed treatment, (3) the insufficient medical evidence, and (4) Self’s
doctor’s decision not to recommend surgery or to seek treatment from a spine
specialist. Doc. 9 at 6. The court addresses these contentions below.
1. Alleged Reliance on the “Gap in Treatment”
The ALJ has “an obligation to scrupulously and conscientiously probe into
the reasons” for a treatment plan and may not make credibility determinations
based on a “failure to seek additional medical treatment” without developing the
record as to the reasons for that failure. Henry v. Comm’r of Soc. Sec., 802 F.3d
1264, 1269 (11th Cir. 2015) (internal quotations omitted) (finding error where “in
the absence of additional information regarding [petitioner’s] financial ability to
seek alternate treatment, the ALJ could not fairly assess the severity of
[petitioner’s] back pain and potential disability”).

A review of the record here

shows that the ALJ only briefly inquired about Self’s physical therapy regimen,
and failed to develop the record as to the reasons that Self’s doctors did not
recommend surgery. See doc. 7-3 at 41-47. Also, the ALJ made no reference to
the multiple records that indicated Self failed to pursue treatment due to financial
issues and a lack of insurance. Indeed, during the hearing, Self testified that he
“had to wait on physical therapy” because his family “didn’t have any type of
insurance at the time.” Id. at 41. Self’s testimony is consistent with the record
which shows that in June 2013, Nurse Practitioner Amanda Godsey of Family Care

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First indicated that Self “has been out of his blood pressure medication . . . [and]
does not have insurance and has not had lab work in a long time,” doc. 7-8 at 46,
and Self was unable to get “fasting labs . . . due to his financial situation.” Id. at
47. Despite Self’s testimony and the medical record, the ALJ only briefly noted
during the hearing that Self had no insurance and then moved on to ask about
Self’s ability to attend his granddaughter’s softball games. Id. The failure to fully
probe this issue constitutes reversible error.
2. Alleged Failure to Comply with Prescribed Treatment
Based on treatment notes from one of Self’s treating physicians stating that
Self was “not interested in weight loss, bracing, or injections,” the ALJ found that
Self was “not . . . entirely compliant” with his prescribed treatment. Doc. 7-9 at 8,
24. The record, which reflects that Self in fact tried bracing and injections, albeit
without any relief, belies this conclusion. See doc. 7-9 at 5 (“[Self] states that
arthroscopy did not alleviate his symptoms . . . [and his] orthopedic surgeon in the
past recommended a knee replacement but he was not ready at that time.”) and
doc. 7-10 at 48 (“[Self] then had epidural injections and these did not help.”). Self
also expressed a willingness to do physical therapy and made “good” progress
toward his goals. Id. at 12, 27. Similarly, the record contradicts the conclusion
that Self was not interested in losing weight. Self’s weight decreased from 292
pounds in January 2015 to 288 pounds in April 2016, see docs. 7-8 at 16; 7-10 at 2,

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and at the hearing in May 2016, Self testified that he has lost weight by “eating a
lot less than [he] did before” and currently weighed 284 pounds, see doc. 7-3 at 40.
Indeed, the ALJ noted the evidence about the alleged weight loss and sought to
confirm it during the hearing. However, based on the ALJ’s failure to find the
relevant documents, the ALJ never returned to the subject. See id. (“[W]hile I’m
looking for [those documents], what are you doing with respect to your
diabetes?”). On remand, the ALJ should revisit this issue to ascertain whether the
evidence supports Self’s contention about his weight loss. Also, because poverty
may excuse Self’s failure to comply with his doctors’ orders and prescribed
treatment, the ALJ must “conscientiously probe into the reasons” for that
noncompliance. Henry, 802 F.3d at 1269; see also Beegle v. Social Security
Administration, Commissioner, 482 F. App’x 483, 487 (11th Cir. 2012) (“[T]he
ALJ must consider evidence showing that the claimant is unable to afford medical
care before denying disability insurance benefits based upon the claimant’s noncompliance with such care . . .”); Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th
Cir. 1988) (holding that “poverty excuses non-compliance” with prescribed
medical treatment or the failure to seek treatment).
3. Alleged Insufficient Medical Evidence
The ALJ also found that Self’s subjective complaints of pain were only
“partially supported by the objective medical evidence of record.” Doc. 7-3 at 23.

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The ALJ reached this conclusion despite noting Self’s “long history of medical
treatment for knee degenerative joint disease,” that Self experienced “pain,
tenderness, crepitus, and diminished range of motion,” and that Self had a “long
history of lumbar degenerative disease.” Id. at 23-25. Ultimately, based on the
gaps in medical treatment, Self’s alleged lack of full compliance with his
treatment, and purported inconsistent medical record, the ALJ characterized Self’s
medical evidence as “relatively weak.” Id.2
A review of the medical record shows, however, that despite partial
compliance with the prescribed medical treatment, Self’s longitudinal history of
complaints and attempts at relief support his pain allegations.

Indeed, Self

consistently complained of pain: (1) Dr. Amanda Reed noted that Self had
symptoms of back and joint pain, doc. 7-8 at 54; (2) Dr. Suzanne Oparil noted that
Self complained of shortness of breath for several weeks and had swelling of his
left shin that “may represent a mass,” id. at 73-75; (3) Dr. Jeffery Long noted that
Self experiences “shoulder pain, osteoarthritis, obesity,” “shortness of breath while
climbing stairs,” “lumbar spine pain,” and “chronic back pain and [a] bulging
lumbar disc,” doc. 7-10 at 8; (4) Dr. Michael Rodriguez noted that Self had
“moderate multiple level discongent degenerative pain,” doc. 7-8 at 78; (5) Dr.
2

One error the ALJ cited occurred during a February 2015 visit with Dr. Jeffrey W. Long. Doc.
7-8 at 72. During the visit, Self “denied” having painful joints and weakness in his
musculoskeletal but the ALJ noted that the word “denied” was “repeated [in] several different
places” and might be a result of a “problem with the electronic medical records.” Doc. 7-3 at 51.
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Laura Kezar noted that Self “has been toughing the pain out, . . . had [four]
episodes where he cannot even get out of bed, . . . [experiences] current pain
radiates like an electric jolt down [his] right leg, . . . [and] “uses a cane to help
ambulate,”

doc. 7-10 at 42-52; (6) Dr. Sara Gould noted that “standing

exacerbates [Self’s] pain,” “rest is the only alleviating factor,” and Self’s “range of
motion [in his knee] is diminished in flexion with pain,” id. at 44; (7) PTA
Courtney Pettus notes that Self only “feels better for a short while after [physical]
therapy but the pain returns in a little while,” doc. 7-9 at 26; and (8) PTA Julie
Glasgow notes that Self had “poor body mechanics [and] moderate difficulty with
bed mobility due to lack of core control,” id. at 33. Because the ALJ did not fully
explain why she failed to “give considerable weight to the treating [and examining]
physician’s opinion,” she committed “reversible error.”3 Wiggins v. Schweiker, 679
F.2d 1387 (11th Cir. 1982); see also MacGregor, 786 F.2d at 1053 (“Where the
Secretary has ignored or failed properly to refute a treating physician’s testimony,
we hold as a matter of law that he has accepted it as true.”).

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“In assessing medical opinions, the ALJ must consider a number of factors in determining how
much weight to give to each medical opinion, including: (1) whether the physician has examined
the claimant; (2) the length, nature, and extent of the physician’s relationship with the claimant;
(3) the medical evidence and explanation supporting the physician’s opinion; (4) how consistent
the physician’s opinion is with the record as a whole; and (5) the physician’s specialization.”
Kennedy v. Comm’r of Soc. Sec., No. 6:14-CV-1776-ORL-GJK, 2016 WL 633729, at *2 (M.D.
Fla. Feb. 17, 2016) (citing 20 C.F.R. §§ 404.1527(c); 416.927(c)).
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4. Alleged Failure to Recommend Surgery or Specialized Treatment
A review of the record shows that the ALJ improperly rejected the medical
record in part because Self “was recommended only conservative physical
therapy” and was “not offered any further surgical intervention or . . . referred to a
spine specialist.” Doc. 7-3 at 22. As an initial matter, the record indicates that Dr.
Gould diagnosed Self with “bilateral degenerative joint disease,” but did not
recommend surgery due to Self’s inability to lose sufficient weight rather than a
belief that Self would not benefit from surgery. Doc. 7-3 at 24, 7-10 at 44. Also,
although the record also does not detail why Self was not referred to a spine
specialist, Self was referred to a cardiologist, orthopedic, and nephrologist, doc. 710 at 37, and in February 2016, Dr. Saurabh Gupta performed an MRI and noted
Self’s “chronic back pain” and “multilevel advanced degenerative changes of the
lumbar spine with spinal canal and neural foramen narrowing,” id. at 42-43. In
light of the ALJ’s failure to find that Self’s treating physicians were incompetent or
should be discredited, remand is warranted here so that the ALJ can articulate why
the opinions of the medical providers are entitled to little or no weight. See e.g.,
Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988) (The ALJ “may not arbitrarily
substitute his own hunch or intuition for the diagnosis of a medical professional.”);
Marbury, 957 F.2d at 841 (“Although Social Security disability benefits must be

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reserved only for those who qualify to receive them, an ALJ may not arrogate the
power to act as both judge and physician.”).
CONCLUSION
Based on the foregoing, the court concludes that the ALJ failed to develop
the record as to the reasons for discrediting Self’s pain testimony and medical
record. Consequently, it is unnecessary to review Self’s second contention
regarding the alleged error in the ALJ’s RFC finding. See Crow v. Colvin, 36 F.
Supp. 3d 1255, 1260 (N.D. Ala. 2014). Accordingly, the Commissioner’s decision
is due to be reversed and remanded for reconsideration consistent with this
opinion. A separate order will be entered.
DONE the 7th day of January, 2019.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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