Harris v. Social Security Administration, Commissioner
Filing
13
MEMORANDUM OPINION - The Court remands the Commissioners decision for further administrative proceedings consistent with this memorandum opinion. Signed by Judge Madeline Hughes Haikala on 2/15/2019. (KEK)
FILED
2019 Feb-15 PM 03:59
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MONICA DELANE HARRIS,
Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
}
}
}
}
}
}
}
}
}
}
}
Case No.: 7:17-cv-01025-MHH
MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Monica Delane Harris
seeks judicial review of a final adverse decision of the Commissioner of Social
Security. The Commissioner denied Ms. Harris’s claims for a period of disability
and disability insurance benefits. After careful review, the Court remands this
matter for additional administrative proceedings.
I.
PROCEDURAL HISTORY
In November of 2014, Ms. Harris applied for disability insurance benefits.
(Doc. 7-3, p. 16); (see Doc. 7-4, p. 17 (Box 7 – indicating disability insurance
benefits claim and Box 11 – indicating date of application); see also Doc. 7-6, p. 2
(Application Summary)). Ms. Harris alleges that her disability began on May 16,
2014. (Doc. 7-6, p. 2; Doc. 7-4, p. 17 (Box 11)). The Commissioner denied Ms.
Harris’s claim in March of 2015. (Doc. 7-3, p. 16; Doc. 7-5, p. 8). 1
Ms. Harris requested a hearing before an Administrative Law Judge (ALJ).
(Doc. 7-3, p. 12). On July 18, 2016, the ALJ held a hearing in Birmingham,
Alabama.
(Doc. 7-3, p. 33).
The ALJ issued an unfavorable decision on
September 13, 2016. (Doc. 7-3, pp. 13-15, 28). On May 24, 2017, the Appeals
Council declined Ms. Harris’s request for review (Doc. 7-3, p. 2), making the
Commissioner’s decision final for this Court’s judicial review. See 42 U.S.C. §§
405(g) and 1383(c).
II.
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.
“Substantial evidence is more than a
1
The Court notes that the Application Summary indicates that in November 2014, Ms. Harris
applied for supplemental security income, not disability insurance benefits. (Doc. 7-6, p. 2).
Based on other materials in the record, including the ALJ’s decision (Doc. 7-3, pp. 13-28), Ms.
Harris’s brief (Doc. 9, p. 1), and the Disability Determination Explanation (Doc. 7-4), the Court
believes that the identification of Ms. Harris’s claim on the Application Summary is incorrect
and understands that Ms. Harris applied for disability insurance benefits.
2
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotation marks omitted).
If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”
Costigan v.
Comm’r, Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
III.
SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ
follows a five-step sequential evaluation process. The ALJ considers:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
3
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant’s RFC, age, education, and work
experience.
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that the Ms. Harris met the insured status
requirements of the Social Security Act through December 31, 2018. (Doc. 7-3, p.
18). The ALJ determined that Ms. Harris had not engaged in substantial gainful
activity since May 16, 2014, the alleged onset date. (Doc. 7-3, p. 18).
The ALJ concluded that Ms. Harris suffers from the severe impairment of
degenerative disc disease of the lumbar spine status post diskectomy. (Doc. 7-3, p.
18). The ALJ determined Ms. Harris has the following non-severe impairments:
complex regional pain syndrome, essential hypertension, vertigo, obesity, and
anxiety. (Doc. 7-3, pp. 18-20). Based on a review of the medical evidence, the
ALJ concluded that Ms. Harris does not have an impairment or a combination of
impairments that meets or medically equals the severity of any listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 7-3, p. 21).
In light of Ms. Harris’s impairments, the ALJ evaluated Ms. Harris’s
residual functional capacity. The ALJ determined that Ms. Harris has the RFC to
perform:
4
Sedentary work . . . limited to unskilled work not involving complex
instructions or procedures. The claimant cannot climb ladders, ropes
or scaffolds, or work at unprotected heights or around hazardous
machinery. The claimant can occasionally climb ramps or stairs,
stoop, crawl, crouch and kneel. Lastly, the claimant can tolerate
frequent interaction with coworkers, supervisors and the general
public.
(Doc. 7-3, p. 21)
Based on this RFC, the ALJ concluded that Ms. Harris cannot perform her
past relevant job as a food service worker. (Doc. 7-3, p. 26). Relying upon
testimony from a vocational expert, the ALJ found that other jobs existed in the
national economy that Ms. Harris could do, including optical goods assembler,
wire wrapper, and stuffer.
(Doc. 7-3, pp. 27, 49).
Accordingly, the ALJ
determined that Ms. Harris was not under a disability within the meaning of the
Social Security Act at any time from May 16, 2014, the alleged onset date, through
November 18, 2014, the date of the decision. (Doc. 7-3, p. 28).
IV.
ANALYSIS
On appeal, Ms. Harris maintains that the ALJ improperly evaluated her
credibility under the Eleventh Circuit pain standard and disregarded the side effects
of her pain medication.
(Doc. 9, pp. 7-11).
After considering the parties’
arguments and examining the record, the Court finds that the record does not
contain substantial evidence to support the ALJ’s decision.
5
To establish disability based on testimony about subjective pain, a claimant
must provide “(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) 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).
In determining the existence of a disability, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Foote v. Chater, 67 F.3d 1553, 1561
(11th Cir. 1995) (quoting Holt, 921 F.2d at 1223). If an ALJ finds that the
claimant’s testimony is not credible, then the ALJ must explain the reason for
discrediting that testimony. Moore v. Barnhart, 405 F.3d 1208, 1212 n.4 (11th Cir.
2005) (requiring “explicit articulation of the reasons justifying a decision to
discredit a claimant’s subjective pain testimony”) (internal citation omitted); Holt,
921 F.2d at 1223 (“Failure to articulate the reasons for discrediting subjective pain
testimony requires, as a matter of law, that the testimony be accepted as true.”).
Social
Security
Regulation
16-3p
governs
an
ALJ’s
credibility
determination. That regulation provides:
[W]e recognize that some individuals may experience symptoms
differently and may be limited by symptoms to a greater or lesser
extent than other individuals with the same medical impairments, the
same objective medical evidence, and the same non-medical evidence.
6
In considering the intensity, persistence, and limiting effects of an
individual’s symptoms, we examine the entire case record, including
the objective medical evidence; an individual’s statements about the
intensity, persistence, and limiting effects of symptoms; statements
and other information provided by medical sources and other persons;
and any other relevant evidence in the individual’s case record.
SSR 16-3p, 2016 WL 1119029, at *4.
Additionally, “[w]hen evaluating a
claimant’s subjective symptoms,” an ALJ must consider the following factors:
(i) the claimant’s ‘daily activities; (ii) the location, duration,
frequency, and intensity of the [claimant’s] pain or other symptoms;
(iii) [p]recipitating and aggravating factors; (iv) the type, dosage,
effectiveness, and side effects of any medication the [claimant took]
to alleviate pain or other symptoms; (v) treatment, other than
medication, [the claimant] received for relief . . . of pain or other
symptoms; and (vi) any measures the claimant personally used to
relieve pain or other symptoms.’
Leiter v. Comm’r of Soc. Sec., 377 Fed. Appx. 944, 947 (11th Cir. 2010) (quoting
20 C.F.R. § 404.1529(c)(3)).
Ms. Harris testified that she has experienced pain and other disabling
symptoms before and after her back surgery in June 2014. (Doc. 7-3, p. 45). Ms.
Harris stated that she experiences a 9 out of 10 pain level at least twice a week, but
her pain is usually at a level of 6 or 7 when she uses pain medication. (Doc. 7-3, p.
45).
Ms. Harris testified that she was taking Nucynta, Lyrica, and Ultram to
manage pain. (Doc. 7-3, p. 46). Ms. Harris testified that because Nucynta makes
her drowsy, she usually lies down usually for 30 minutes after the medication takes
7
effect. (Doc. 7-3, p. 46). Ms. Harris indicated that she takes Nucynta two to three
times daily. (Doc. 7-3, p. 46).
The ALJ concluded that Ms. Harris’s impairments meet the first part of the
pain standard but not the second part. The ALJ found:
[T]he claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence.
(Doc. 7-3, p. 22). The ALJ determined that Ms. Harris’s subjective testimony was
inconsistent with the objective medical evidence, and her daily activities
diminished the credibility of her testimony concerning subjective pain. (Doc. 7-3,
p. 25). The Court analyzes each category of evidence in turn.
A. Objective Medical Evidence
The ALJ found that the objective medical evidence sometimes conflicted
with Ms. Harris’s description of her symptoms. (Doc. 7-3, p. 25). An ALJ may
use objective medical evidence to discredit a claimant’s pain testimony. 20 C.F.R.
§ 404.1529(c)(2) (objective medical evidence can be “a useful indicator to assist us
in making reasonable conclusions about the intensity and persistence of [the
claimant’s] symptoms and the effect those symptoms, such as pain, may have on
[her] ability to work”). But an ALJ may not “reject [a claimant’s] statements about
the intensity and persistence of [] pain or other symptoms or about the effect []
8
symptoms have on [the claimant’s] ability to work solely because the available
objective medical evidence does not substantiate [the claimant’s] statements.” 20
C.F.R. § 404.1529(c)(2).
The ALJ explained why he found that the objective medical evidence
conflicted with Ms. Harris’s pain testimony:
After reviewing the evidentiary record in its entirety, the
administrative law judge finds no reasons why the claimant would be
unable to perform work within the scope of her residual capacity, as it
has been defined herein. As stated earlier in the decision, the claimant
presented to the consultative examination and to the hearing with a
cane. However, Dr. Summerlin clearly stated that not only was the
claimant not using the cane properly, the cane had not been prescribed
to her by any physician. Although the claimant presented to Dr.
Summerlin with an antalgic gait and a cane, her gait was perfectly
normal and she was not using any assistive device when she was
evaluated by Dr. Laubenthal just two days earlier (Exhibit 8F). The
administrative law judge acknowledges the claimant did have a
herniated disc causing impingement on the L5 nerve root prior to her
discectomy in June 2014; however, three independent MRIs of her
lumbar spine obtained after her surgery all showed no evidence of any
recurrent or residual disc herniation or evidence of nerve root
impingement at the L4/L5 level. A moderate disc protrusion was
noted at the L1/L2 level, although there was no evidence of nerve root
impingement and Dr. Givhan clearly indicated that this was not the
cause of any of the claimant’s symptoms.
The evidentiary record in this case simply fails to support the
claimant’s alleged limitations regarding her left lower extremity. A
nerve conduction study obtained in February 2015 revealed no
evidence whatsoever of peripheral neuropathy, and only evidence
‘most compatible’ with radiculopathy (Exhibit 20F). Subsequent
treatment records from Dr. Graham also document the presence of
normal sensation throughout all extremities and normal or almost
normal muscle strength in both her upper and lower extremities
(Exhibit 17F). Not only do the overwhelming majority of the
9
claimant’s treatment records document essentially normal physical
examinations, treatment notes from Dr. Barr indicate that the claimant
gave ‘questionable effort’ during muscle strength testing in March
2015 (Exhibit 13F).
In sum, the claimant’s testimony and other allegations of pain and
functional restrictions are inconsistent with the objective medical
evidence. The record does not contain objective signs and findings
that could reasonably be expected to produce the degree and intensity
of pain and limitations alleged. There are no diagnostic studies to
show abnormalities that could be expected to produce such severe
symptoms. The physical findings in the record do not establish the
existence of neurological deficits, significant weight loss, muscle
atrophy, or other observable signs often indicative of protracted pain
of the intensity, frequency, and severity alleged.
(Doc. 7-3, p. 25). Based on this Court’s review of the medical record, the ALJ has
overlooked several records indicating that Ms. Harris’s unresolved symptoms postsurgery may cause the pain that Ms. Harris reported.
On May 18, 2014, Ms. Harris visited DCH Regional Medical Center’s
Emergency Department in Tuscaloosa, Alabama and complained of back and left
hip pain. (Doc. 7-8, p. 13). Ms. Harris indicated that her back pain had begun
about one week earlier. (Doc. 7-8, p. 13). Ms. Harris did not know what caused
this pain, but she recalled doing some heaving lifting which required her to twist
her back. (Doc. 7-8, p. 13).
Ms. Harris reported a pain level of 9 out of 10. (Doc. 7-8, p. 7). Ms. Harris
described her pain as “shock” pain—an intensity different from what she had
experienced with back strains. (Doc. 7-8, p. 13). Ms. Harris received several
10
medications to treat her acute pain including orphenadrine, ketorolac, and
morphine. (Doc. 7-8, p. 11). Ms. Harris received a prescription for 7.5mg Norco
upon discharge. (Doc. 7-8, p. 12).
Ms. Harris continued to receive treatment for her back pain. On May 30,
2014, Dr. Spruill gave Ms. Harris an epidural steroid injection in the left L4-L5
back area. (Doc. 7-8, p. 24). On June 5, 2014, Ms. Harris went to Dr. Givhan for a
surgical evaluation. (Doc. 7-8, p. 60). Dr. Givhan’s assessment of Ms. Harris
included these observations:
severe lumbar radiculopathy secondary to a large free fragment disc
herniation to the left at L4-5, causing severe neural impingement. The
patient has been treated conservatively over a long period of time and
has a partial foot drop. Based on this, we think that surgical
intervention is indicated. We have discussed the risks versus benefits
of left L4-5 microdiscectomy. These include . . . bleeding, infection,
anesthetic risk, injury to the existing nerve root, continued pain,
recurrent disc herniation, continued weakness, and possibility of
complete foot drop on the left.
(Doc. 7-8, p. 60).
On June 13, 2014, Dr. Givhan performed a L4-L5 diskectomy on Ms.
Harris’s back. (Doc. 7-8, p. 48). Following that surgery, Dr. Givhan noted on July
8, 2014, that Ms. Harris “is improving with regard to her pain, but . . . had a large
herniated disc to the left at L5-S1 with severe neural impingement and still has to
have symptom resolution.” (Doc. 7-8, p. 59). At Dr. Givhan’s direction, Ms.
Harris attended physical therapy on July 14, 2014, at the Tuscaloosa Rehabilitation
11
and Hand Center. (Doc. 7-8, p. 65). At the appointment, Ms. Harris reported no
leg pain, but Ms. Harris described other symptoms including “left lower leg and
foot numbness and weakness as well as continued [lower back pain] . . . . left leg
tingling and [lower back pain] increas[ing] with walking.” (Doc. 7-8, p. 65). Ms.
Harris attended at least three more physical therapy sessions in July of 2014. (Doc.
7-8, p. 85-90). Thus, Ms. Harris required additional treatment for pain after her
surgery.
Ms. Harris returned to Dr. Givhan on July 29, 2014. (Doc. 7-8, p. 58). Ms.
Harris reported “still having some significant radicular symptoms.” (Doc. 7-8, p.
58).
Dr. Givhan indicated that a “nerve injury related to her massive disc
herniation” could cause some of Ms. Harris’s symptoms. Dr. Givhan ordered an
MRI to explore the source of Ms. Harris’s continued pain and to rule out recurrent
disc herniation. The ALJ did not address this visit in his analysis of the objective
medical evidence.
Thus, the ALJ relied upon Dr. Givhan’s July 8, 2014 note which reflected
improvement in Ms. Harris’s pain, but the ALJ did not mention a note later in the
same month that supports Ms. Harris’s pain testimony. See Iheanacho v. Berryhill,
No. 6:17-CV-0910-MHH, 2018 WL 4680173, at *6 (N.D. Ala. Sept. 28, 2018)
(ALJ may not take a “snapshot” of notes that show immediate improvement and
12
then disregard notes that show the pain returning) (citing Robinson v. Colvin, No.
5:12-cv-1954-AKK, 2014 WL 2214294, at *5 (N.D. Ala. May 28, 2014)).
Dr. Bankston performed an MRI of Ms. Harris’s spine on August 4, 2014.
(Doc. 7-8, p. 62). Dr. Bankston reported a “mild to moderate diffuse disc bulge
with mild facet degenerative change[,]” but he did not see evidence of a recurrent
or residual disc herniation. (Doc. 7-8, pp. 62-63). On August 5, 2014, Ms. Harris
returned to Dr. Givhan. (Doc. 7-8, p. 57). Dr. Givhan reported that the MRI scan
did not “show any recurrent or residual disc herniation of the nerve root.” (Doc. 78, p. 57). Dr. Givhan stated that “[t]here certainly is a chance that [Ms. Harris] has
some long-standing nerve damage which . . . is playing a role in her symptoms at
this point.” (Doc. 7-8, p. 57). Dr. Givhan indicated that Ms. Harris should
continue her therapy and “hope the nerve spontaneously heals itself.” (Doc. 7-8, p.
57). Dr. Givhan explained to Ms. Harris that her partial foot drop and numbness
might be permanent. (Doc. 7-8, p. 57). Although the ALJ reported that the MRI
did not show recurrent disc herniation, the ALJ did not discuss Dr. Givhan’s
concerns about potential nerve damage.
As the ALJ indicated, the next record of treatment is dated nearly six months
after Ms. Harris’s August 2014 visit with Dr. Givhan. 2 Ms. Harris visited DCH
2
There is no indication that Ms. Harris stopped taking her pain medication during those six
months. See Somogy v. Comm’r of Soc. Sec., 366 Fed. Appx. 56, 64 (11th Cir. 2010) (“[T]he
13
Regional Medical Center on January 20, 2015, after falling. She reported severe
back pain. (Doc. 7-9, p. 78).
On January 29, 2015, Ms. Harris’s primary care
physician, Dr. Laubenthal, examined her for “numbness in [her] lower leg and feet
swelling.”
(Doc. 7-8, pp. 91, 94).
Ms. Harris reported that she had been
experiencing the numbness for eight months, and she stated that “[t]he problem has
been progressively worsening.” (Doc. 7-8, p. 94). Dr. Laubenthal noted that Ms.
Harris walked normally, exhibited a reduced sensation to touch in foot and ankle,
and stood without difficulty. (Doc. 7-8, p. 96). According to Dr. Laubenthal’s
diagnosis, Ms. Harris was experiencing paresthesia and neuropathy in her left foot
and radiculopathy in her back. (Doc. 7-8, p. 96).
On January 31, 2015, Dr. Summerlin, a consultative radiologist, examined
Ms. Harris. (Doc. 7-9, pp. 3, 8). Dr. Summerlin noted that Ms. Harris’s walking
was moderately antalgic. (Doc. 7-9, p. 5). 3 Dr. Summerlin reported that Ms.
Harris carried an unprescribed cane in her left hand. (Doc. 7-9, p. 5). The absence
of a prescription does not mean that Ms. Harris’s use of a cane is unnecessary. See
Iheanacho, 2018 WL 4680173, at *4 n.2 (citing Davis v. Berryhill, No. 2:15-cv1429-KOB, 2017 WL 1074451, at *9 (N.D. Ala. Mar. 20, 2017) (“[T]he lack of
credibility of [the claimant]’s complaints of disabling pain are bolstered by evidence that she . . .
was prescribed numerous medications.”).
3
Merriam-Webster’s Medical Dictionary defines antalgic as: “marked by or being an unnatural
position or movement assumed by someone to minimize or alleviate pain or discomfort (as in the
leg or back).” Antalgic, MERRIAM-WEBSTER ONLINE MEDICAL DICTIONARY,
https://www.merriam-webster.com/medical/antalgic (last visited Jan.16, 2019).
14
prescription does not necessarily indicate that a claimant does not require such a
device.”)).
Dr. Summerlin diagnosed Ms. Harris with “possible peripheral nerve injury
with weakness in the left lower extremity.”
(Doc. 7-9, p. 7).
This record
undermines the ALJ’s finding that Ms. Harris does not have peripheral neuropathy
because “there is no such diagnosis within the evidentiary record from an
acceptable medical source.”
(Doc. 7-3, p. 19).
The ALJ discounted Dr.
Summerlin’s pain-related diagnosis and focused instead on Dr. Summerlin’s
functional assessment of Ms. Harris’s ability to stand, walk, sit, and lift. (Doc. 7-3,
p. 23).
Dr. Summerlin observed that Ms. Harris showed “consistent pain behavior”
by “shift[ing] positions several times during the course of the 15 minute interview
and subsequent 10 minute examination.” (Doc. 7-9, p. 4). The ALJ did not
acknowledge this evidence. (Doc. 7-3, p. 23).
In February and March of 2015, Ms. Harris sought treatment from Dr. Barr,
a neurologist. (Doc. 7-9, pp. 30-31, 393). On February 25, 2015, Dr. Barr noted
that Ms. Harris’s EMG showed an “irritated nerve in her back [that] could be left
over from last year.” (Doc. 7-9, p. 31). Dr. Barr indicated that Ms. Harris showed
“questionable effort” when he tested her left foot motor strength on March 30,
2015. (Doc. 7-9, p. 36). The ALJ relied on Dr. Barr’s observation about Ms.
15
Harris’s strength testing effort in his decision, but did not discuss Dr. Barr’s
opinion about nerve irritation in Ms. Harris’s back. (Doc. 7-3, p. 25).
Dr. Barr diagnosed Ms. Harris with “a complex regional pain syndrome in
the left leg secondary to her lumbar radiculopathy syndrome.” (Doc. 7-9, p. 36).
The ALJ classified Ms. Harris’s complex regional pain syndrome as a non-severe
impairment. (Doc. 7-3, pp. 18, 19).
Ms. Harris returned to Dr. Barr on March 30, 2015. (Doc. 7-9, pp. 35, 38).
Dr. Barr indicated that Ms. Harris’s nerve “[was] not healing well,” and her pain
was not improving; epidural blocks did not help. (Doc. 7-9, p. 35). Dr. Barr noted
that
Duloxetine
was
not
easing
Ms.
Harris’s
pain,
and
Gabapentin
“makes her sleepy if she takes higher than the dose she is on now.” (Doc. 7-9, p.
35). Dr. Barr recommended that Ms. Harris switch from Gabapentin to Lyrica
because Lyrica “sometimes has fewer sedating side effects.” (Doc. 7-9, p. 36).
The ALJ did not address Dr. Barr’s March 30, 2015 notes in his decision.
In 2015, Ms. Harris continued to see Dr. Laubenthal and Dr. Graham, a
spine and pain specialist. (Doc. 7-9, pp. 67-72; Doc. 7-9, pp. 99-105). Dr. Barr
referred Ms. Harris to Dr. Graham. (Doc. 7-9, 95). In July of 2015, Ms. Hester, a
certified registered nurse practitioner who works with Dr. Graham, described Ms.
Harris’s pain level as 7 out of 10 with medications. (Doc. 7-9, p. 102, 105). Ms.
16
Harris indicated that prolonged standing, sitting, walking, and bending aggravated
her back pain and that medications and rest alleviated it. (Doc. 7-9, p. 102).
In November of 2015, Ms. Harris visited Ms. Hester and reported a pain
level of 6 out of 10 with medications. (Doc. 7-9, p. 99). Ms. Hester noted that Ms.
Harris “continues to describe her [lower back pain] as a constant ache that radiates
to bilateral hips and into [her left] leg.” (Doc. 7-9, p. 99). Ms. Harris indicated
that prolonged standing, sitting, walking, and bending aggravated her back pain
and that medications and rest alleviated it. (Doc. 7-9, p. 99).
In March of 2016, Ms. Harris visited Dr. Graham and described her pain
level as 7 out of 10 with medications. (Doc. 7-9, p. 95). Ms. Harris reported that
prolonged standing, sitting, walking, bending aggravated her pain and that
medications and rest alleviated it. (Doc. 7-9, p. 95). Ms. Harris also indicated to
Dr. Graham that she would become sleepy after taking Nucynta. (Doc. 7-9, p. 95).
Dr. Graham decreased Ms. Harris’s dosage from 75 mg to 50 mg. (Doc. 7-9, p.
98). Ms. Harris’s report about the negative side effects she experiences from
taking Nucynta is consistent with her hearing testimony.
As detailed above, the ALJ did not discuss or credit the many treatment
records that corroborate Ms. Harris’s subjective reports of pain. See Swindle v.
Sullivan, 914 F.2d 222, 225 (11th Cir. 1990) (“In determining whether substantial
evidence exists, we must view the record as a whole, taking into account evidence
17
favorable as well as unfavorable to the Secretary’s decision.”) (quoting Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986)). Therefore, the ALJ’s reliance upon
the absence of objective evidence does not support his credibility determination.
B. Daily Activities
In discrediting Ms. Harris’s subjective pain testimony, the ALJ also relied
upon Ms. Harris’s report of her daily activities. (Doc. 7-3, p. 25). “An ALJ may
not rely on a claimant’s daily activities alone in making a disability determination.”
Hill v. Comm’r of SSA, No. 2:14-cv-01322-SGC, 2015 WL 5559758, at *5 (N.D.
Ala. Sept. 18, 2015) (citing Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir.
1997) ); see also Sparks v. Colvin, No. 2:12-cv-02092-LSC, 2013 WL 2635263, at
*5 (N.D. Ala. June 10, 2013) (“The ALJ cannot use daily activities alone to
determine whether a claimant is disabled.”). Procedurally then, this Court may not
affirm the ALJ’s decision solely on the basis of his evaluation of Ms. Harris’s daily
activities. Moreover, substantial evidence does not support the ALJ’s finding that
Ms. Harris’s daily activities diminish her credibility.
An ALJ may consider a claimant’s daily activities when reaching a
conclusion regarding credibility. See 20 C.F.R. §§ 404.1529(c)(3) (listing “daily
activities” as a relevant factor to consider in evaluating a claimant’s subjective pain
testimony). The ALJ described Ms. Harris’s daily activities as follows:
Despite her impairments, the claimant readies her children for school,
prepares simple meals, watches TV, performs routine household
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chores, helps her children with their homework, cares for her own
personal needs with minimal assistance, drives a vehicle, visits with
her family, shops for her household needs, attends her children’s
sporting events and handles her own financial affairs (Exhibits 6E and
7E).
(Doc. 7-3, p. 25). The ALJ characterized these daily activities as “essentially
normal” and consistent with his RFC finding of non-skilled sedentary work. (Doc.
7-3, p. 25).
When examining daily activities, an ALJ must consider the record as a
whole. See Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (Appeals
Council erred in finding that claimant’s “daily activities . . . have not been
significantly affected” when the Appeals Council “ignored other evidence that her
daily activities have been significantly affected.”). “[P]articipation in everyday
activities of short duration, such as housework or fishing” will not preclude a
claimant from proving disability. Lewis, 125 F.3d at 1441. Instead, “[i]t is the
ability to engage in gainful employment that is the key, not whether a Plaintiff can
perform chores or drive short distances.” Early v. Astrue, 481 F. Supp. 2d 1233,
1239 (N.D. Ala. 2007); see Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985)
(claimant who “read[s], watch[es] television, embroider[s], attend[s] church, and
drive[s] an automobile short distances . . . . performs housework for herself and her
husband, and accomplishes other light duties in the home” still can suffer from a
severe impairment).
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The ALJ’s description of Ms. Harris’s daily activities is incomplete. For
example, in January of 2015, Dr. Summerlin reported that Ms. Harris could:
bathe herself but has difficulty putting on socks and shoes. She does
light cooking activities as long as she can sit down. She does not
clean[]. She can drive short distances and get a few groceries but
reports that she is no longer able to walk through Wal-Mart.
(Doc. 7-9, p. 4). During the administrative hearing, Ms. Harris testified that she
can drive for 20 minutes, but then must get out of the vehicle. (Doc. 7-3, p. 42).
Ms. Harris explained that pain prevents her from doing much at home. (Doc. 7-3,
p. 42). Ms. Harris stated that when she can manage to do a single load of laundry,
she has to lie down to avoid leg pain. (Doc. 7-3, p. 42). Ms. Harris indicated she
is able to cook in an oven, but not on the stove because standing hurts her back.
(Doc. 7-3, p. 43).
The ALJ’s discussion of Ms. Harris’s daily activities does not include these
limitations. Consequently, on remand, the ALJ must consider all of the evidence
concerning Ms. Harris’s daily activities.
V.
CONCLUSION
The Court remands the Commissioner’s decision for further administrative
proceedings consistent with this memorandum opinion.
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DONE this 15th day of February, 2019.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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