Joiner v. Colvin
MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits be REVERSED and REMANDED pursuant to sentence four of 42:405(g). Signed by Magistrate Judge William E. Cassady on 9/24/2015. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DAVID DYLAN JOINER,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying his
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 24 & 26 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States Magistrate Judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of the parties at the September 23, 2015 hearing before the
Court, it is determined that the Commissioner’s decision denying benefits should be
reversed and remanded for further proceedings not inconsistent with this decision.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 24 & 26 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Plaintiff alleges disability due to status-post right sided clavicle fracture, statuspost right shoulder fracture, right toe fracture, right rib fracture, status-post left
shoulder fracture, status-post cervical fusion, bilateral femur fractures, chronic pain,
traumatic arthritis, and depression. The Administrative Law Judge (ALJ) made the
following relevant findings:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2009.
The claimant has not engaged in substantial gainful activity since
June 1, 2009, the amended alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).
The claimant has the following severe impairments: status post
right sided clavicle fracture, right shoulder fracture, right toe fracture,
and right rib fracture; status-post left shoulder fracture; and status post
cervical fusion and bilateral femur fractures (20 CFR 404.1520(c) and
The claimant is a 37-year-old male with a self-reported tenth grade
(limited) education. A review of the documentary evidence establishes
that his history is remarkable for several health and medical problems.
Primarily, these include right sided clavicle fracture, right shoulder
fracture, right toe fracture, right rib fracture, left shoulder fracture,
cervical fusion, and bilateral femur fractures.
The claimant’s treatment records reflect that on June 25, 2005, he was
hospitalized following a motorcycle accident. Those records confirm that
he suffered several injuries, including right sided clavicle fracture, right
shoulder fracture, right toe fracture, and right rib fracture. Those records
also confirm a previous cervical fusion. The claimant was hospitalized for
about ten days, did well, and was discharged.
On February 8, 2009, the claimant was hospitalized for a left shoulder
fracture/dislocation secondary to a fall. For this, he underwent reduction
of the shoulder, which restored grossly normal anatomical position per xray results. He was restricted in activities for one day (the day of the
procedure) and to “light to normal activity” the following day and
thereafter. No other problems were endorsed.
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
On April 23, 2009, in connection with his previous applications for
disability, the claimant presented to Huey Kidd, D.O., for
medical/vocational examination at the request of the State Agency
Disability Determination Service (DDS). According to the doctor’s report,
the claimant reported that at the age of 18 he was working on a radio
tower for cell phones, fell, and broke bilateral femurs, his neck, right arm,
and several ribs. [Dr. Kidd found] no medical records [to] corroborate
these allegations. Since that time, the claimant stated that he had
continuous pain in his legs and in his right arm which, he shared, limited
him in activities of running and swimming. On exam, the claimant was 75
inches tall and weighed 206 pounds. . . . There was no clubbing, cyanosis
or edema. He had full range of motion and 5/5 strength in bilateral upper
and lower extremities. He was able to heel walk, toe walk, and bend and
touch his toes. He was able to squat and stand although he was holding
on to the exam table in order to do so. Deep tendon reflexes were intact
throughout, and he ambulated without any difficulty. X-ray of [the]
lumbar spine was essentially normal with no osteoarthritic changes and
preserved disk space. Based on the claimant’s history and his own
independent findings, Dr. Kidd opined that, from a vocational
perspective, the claimant “would have difficulty maintaining any type of
heavy labor; however, he should be able to work in some capacity that is
not heavy labor related[.]”
On October 26, 2011, in connection with his current applications for
disability, Stephen Robidoux, M.D., conducted a medical/vocational
examination of the claimant at the request of the DDS. At that time, the
claimant reported that he had not been seen by a treating doctor in four
years, and that he was taking no medication. Vocationally, he reported
last working in 2007 as a Bulldozer Operator on a contract job that ended
in 2007. He also reported that he had not worked since that time. On
exam, according to the doctor, the claimant had a normal examination for
his age, and that he could find no limitations to sitting, standing,
squatting, lifting, carrying, climbing, using hand and foot controls,
handling objects, talking, listening, or travel. The doctor’s report also
indicated that the claimant had a driver’s license and drove, and that he
reported he also drove a motorcycle “every now and then[.]”
On November 26, 2012, the claimant was seen at Travis Clinic (Judy
Travis, M.D.) in order to establish himself as a patient and obtain pain
medication. The doctor referenced the claimant’s medical history of
multiple fractures as a result of a 1994 fall. On exam, the claimant’s blood
pressure was slightly elevated at 180/102, otherwise, examination was
essentially unremarkable. The claimant was counseled on smoking
cessation, and received prescribed pain medication with no refills.
On April 3, 2013, subsequent to the hearing, Dr. Travis completed a
Medical Source Statement at the request of the claimant’s attorney.
Therein she reported that, at best, the claimant could perform no more
than a restricted range of light to medium type work activity for no more
than five hours per day. In addition, she reported that the condition—
worsening arthritis—had existed since June 2009, which is his amended
alleged onset date of disability. The doctor also reported that the
claimant suffer[s] from significant pain, that physical activity (walking,
standing, etc.) exacerbate[s] pain to the extent that bed rest or medication
was necessary, and that he would miss work more than three days per
month due to impairments or treatment.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is
precluded from climbing ladders, ropes or scaffolds. He can frequently
climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. He is
precluded from operation or control of hazardous, moving machinery.
He must avoid exposure to unprotected heights. He can sustain
occasional exposure to extreme cold and excessive vibration.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and
96-7p. The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
In considering the claimant’s symptoms, the undersigned must follow a
two-step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)—
i.e., an impairment(s) that can be shown by medically acceptable clinical
and laboratory diagnostic techniques—that could reasonably be expected
to produce the claimant’s pain or other symptoms.
Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the claimant’s pain or other symptoms
has been shown, the undersigned must evaluate the intensity, persistence,
and limiting effects of the claimant’s symptoms to determine the extent to
which they limit the claimant’s functioning. For this purpose, whenever
statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical
evidence, the undersigned must make a finding on the credibility of the
statements based on a consideration of the entire case record.
At the hearing, the claimant testified that on a regular day, he has to lie in
bed for an hour or two before rising. He stated that after he gets up, he
sometimes has to lie back down for a couple of hours due to hip pain and
knee pain. He said he constantly has to move to ease the pain – no more
than 15 minutes sitting at a time. He testified that he can lift 25 pounds on
a good day, and that he has bad days where he cannot lift his arms. He
estimated that that he can walk 25-50 yards on a good day. He said he
sweeps, mops and takes the garbage out. He testified that he has 4-5 bad
days in a week where he [is] unable to do any activities. He reported that
he worked after he fell from the tower, but could no longer work due to
his legs and shoulder[s]. On average, he rated his pain as 7 out of 10. He
stated that his pain is rarely controlled by medication for more than 6
hours. He shared that he shops, maybe 10 minutes once a month. He said
beer helps ease his pain, and he does not mix beer and pain medication.
The claimant testified that he lived alone, but was helped out by his
mother who owns the travel trailer where he lives. He said he also cut
grass on a riding lawn mower, about 20-30 minutes at a time. He would
like to work, but said he had trouble lifting his arms up.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms; however, the claimant’s
statements and other allegations concerning the intensity, persistence or
limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.
In terms of the claimant’s alleged disability, the undersigned notes that he
has no significant mental impairments or mental impairment caused
limitation of function. Physically, his treatment records document that his
broken bones healed well with the medical treatment he received. The
only treatment record based restrictions from 2009 following the left
shoulder fracture/dislocation where he was restricted in activities for only
one day (the day of the procedure), and to “light to normal activity” the
following day and thereafter. Since that time, physical examinations have
been essentially unremarkable. Dr. Kidd reported that the claimant had
full range of motion and 5/5 strength in the bilateral upper and lower
extremities. He was able to heel walk, toe walk, and bend and touch his
toes. He was able to squat and stand, and he ambulated without any
difficulty. X-ray of [the] lumbar spine was essentially normal with no
osteoarthritic changes and preserved disk spaces. When seen by Dr.
Robidoux in October 2011, the claimant’s examination was “normal” for
his age, and the doctor found no limitations. He had full range of motion
of his back and other joints, negative straight leg raising, normal gait, 4/4
deep tendon reflexes, normal fine and gross manipulation, and no muscle
atrophy. When the claimant was examined by Dr. Travis in November
2012, the doctor reported that the claimant’s pain was controlled, and that
physical examination revealed no deformities, good muscle mass
bilaterally, full range of motion of all joints, and that all muscles were
functioning well with no atrophy.
The claimant returned to work following his 1994 accident and, according
to the report of Dr. Robidoux, worked after his 2005 motorcycle accident,
until 2007 when the job was over. Treatment records do not document any
deterioration in his physical status since that time. Dr. Kidd indicated that
the claimant could do all but heavy labor type jobs. Dr. Robidoux reported
that the claimant had no limitations, which is generally consistent with the
examination notes provided most recently by Dr. Travis that reflect no
limitations and controlled pain. Further, the claimant continues to ride a
As for the opinion evidence, the undersigned gives great weight to the
opinions of Drs. Kidd and Robidoux. Their opinions are consistent with
and supported by the weight of the evidence in this case, including the
claimant’s x-rays and treatment records.
The undersigned gives little weight to the opinion of Dr. Travis regarding
the Medical Source Statement she completed subsequent to the hearing.
The statement is inconsistent with the weight of the evidence, including
her own treatment records of the claimant that reveal both that he has no
significant problems and that his pain is under control with low dose pain
In sum, the above residual functional capacity assessment is supported by
treatment records, as well as the detailed reports of Drs. Kidd and
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
The claimant was born on April 13, 1976, and is vocationally
classified as a younger individual age 18-49 at all times relevant hereto
(20 CFR 404.1563 and 416.963).
The claimant has a limited education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 404.1568(d), 416.969, and 416.969(a)).
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.18. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
which these limitations erode the unskilled light occupational base, the
undersigned asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work
experience, and residual functional capacity. Dr. Kessler testified that
given all of these factors the individual would be able to perform the
requirements of representative occupations such as: Inspector Tester, DOT
# 529.687-114, unskilled/svp2, light, with 2,300 jobs in the regional
(Alabama) economy and 130,200 jobs in the national (United States)
economy; Cashier, DOT # 211.462-010, unskilled/svp2, light, with 19,300
jobs in the regional economy and 1,126,400 jobs in the national economy;
and Assembler, DOT # 706.684-022, unskilled/svp2, light, with 6,200 jobs
in the regional economy and 90,000 jobs in the national economy.
Pursuant to SSR 00-4p, the undersigned has determined that the
vocational expert’s testimony is consistent with the information contained
in the Dictionary of Occupational Titles.
Based on the persuasive testimony of the vocational expert, the
undersigned concludes that considering the claimant’s age, education,
work experience, and residual functional capacity, the claimant is capable
of making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of “not disabled” is therefore
appropriate under the framework of the above-cited rule.
The claimant has not been under a disability, as defined in the
Social Security Act, from June 1, 2009, through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
(Tr. 16-18, 19, 19-21, 21-22 & 22 (internal citations and footnote omitted; emphasis in
original).) The Appeals Council affirmed the ALJ’s decision (Tr. 1-3) and thus, the
hearing decision became the final decision of the Commissioner of Social Security.
In all Social Security cases, the claimant bears the burden of proving that he is
unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the examiner must consider the
following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; and (4) the claimant’s age, education and
work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the
Commissioner’s burden to prove that the claimant is capable, given his age, education
and work history, of engaging in another kind of substantial gainful employment,
which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that he can perform those light jobs
identified by the vocational expert, is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla and means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether
substantial evidence exists, we must view the record as a whole, taking into account
evidence favorable as well as unfavorable to the Commissioner’s] decision.” Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).2
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
In this case, the plaintiff contends that the following errors were committed in
this case: (1) the ALJ erred in failing to assign substantial weight to the opinion of the
treating physician, Dr. Judy Travis; (2) the ALJ failed to follow the Eleventh Circuit’s
pain standard; and (3) the ALJ’s RFC assessment is not supported by substantial
evidence because the ALJ ignored the impact of all of his impairments.
These arguments require the Court to set forth the proper analysis for
consideration of RFC “issues” raised in cases like the instant one. Initially, the Court
notes that the responsibility for making the residual functional capacity determination
rests with the ALJ. Compare 20 C.F.R. § 404.1546(c) (“If your case is at the administrative
law judge hearing level . . ., the administrative law judge . . . is responsible for assessing
your residual functional capacity.”) with, e.g., Packer v. Commissioner, Social Security
Admin., 542 Fed. Appx. 890, 891-892 (11th Cir. Oct. 29, 2013)3 (per curiam) (“An RFC
determination is an assessment, based on all relevant evidence, of a claimant’s
remaining ability to do work despite her impairments. There is no rigid requirement
that the ALJ specifically refer to every piece of evidence, so long as the ALJ’s decision is
not a broad rejection, i.e., where the ALJ does not provide enough reasoning for a
reviewing court to conclude that the ALJ considered the claimant’s medical condition as
a whole.” (internal citation omitted)). A plaintiff’s RFC—which “includes physical
abilities, such as sitting, standing or walking, and mental abilities, such as the ability to
understand, remember and carry out instructions or to respond appropriately to
supervision, co-workers and work pressure”—“is a[n]  assessment of what the
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
claimant can do in a work setting despite any mental, physical or environmental
limitations caused by the claimant’s impairments and related symptoms.” Watkins v.
Commissioner of Social Security, 457 Fed. Appx. 868, 870 n.5 (11th Cir. Feb. 9, 2012), citing
20 C.F.R. §§ 404.1545(a)-(c), 416.945(a)-(c). Here, the ALJ’s RFC assessment consisted of
the following: “After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except he is precluded from climbing
ladders, ropes or scaffolds. He can frequently climb ramps or stairs, balance, stoop,
kneel, crouch, and crawl. He is precluded from operation or control of hazardous,
moving machinery. He must avoid exposure to unprotected heights. He can sustain
occasional exposure to extreme cold and excessive vibration.” (Tr. 19 (emphasis in
To find that an ALJ’s RFC determination is supported by substantial evidence, it
must be shown that the ALJ has “’provide[d] a sufficient rationale to link’” substantial
record evidence “’to the legal conclusions reached.’” Ricks v. Astrue, 2012 WL 1020428,
*9 (M.D. Fla. Mar. 27, 2012) (quoting Russ v. Barnhart, 363 F. Supp. 2d 1345, 1347 (M.D.
Fla. 2005)); compare id. with Packer v. Astrue, 2013 WL 593497, *4 (S.D.Ala. Feb. 14, 2013)
(“’[T]he ALJ must link the RFC assessment to specific evidence in the record bearing
upon the claimant’s ability to perform the physical, mental, sensory, and other
requirements of work.’”), aff’d, 542 Fed. Appx. 890 (11th Cir. Oct. 29, 2013)4; see also
Hanna v. Astrue, 395 Fed. Appx. 634, 636 (11th Cir. Sept. 9, 2010) (per curiam) (“The ALJ
In affirming the ALJ, the Eleventh Circuit rejected Packer’s substantial evidence
argument, noting, she “failed to establish that her RFC assessment was not supported by
substantial evidence” in light of the ALJ’s consideration of her credibility and the medical
evidence. Id. at 892.
must state the grounds for his decision with clarity to enable us to conduct meaningful
review. . . . Absent such explanation, it is unclear whether substantial evidence
supported the ALJ’s findings; and the decision does not provide a meaningful basis
upon which we can review [a plaintiff’s] case.” (internal citation omitted)).5 However,
in order to find the ALJ’s RFC assessment supported by substantial evidence, it is not
necessary for the ALJ’s assessment to be supported by the assessment of an examining
or treating physician. See, e.g., Packer, supra, 2013 WL 593497, at *3 (“[N]umerous court
have upheld ALJs’ RFC determinations notwithstanding the absence of an assessment
performed by an examining or treating physician.”); McMillian v. Astrue, 2012 WL
1565624, *4 n.5 (S.D. Ala. May 1, 2012) (noting that decisions of this Court “in which a
matter is remanded to the Commissioner because the ALJ’s RFC determination was not
supported by substantial and tangible evidence still accurately reflect the view of this
Court, but not to the extent that such decisions are interpreted to require that
substantial and tangible evidence must—in all cases—include an RFC or PCE from a
It is the ALJ’s (or, in some cases, the Appeals Council’s) responsibility, not the
responsibility of the Commissioner’s counsel on appeal to this Court, to “state with clarity” the
grounds for an RFC determination. Stated differently, “linkage” may not be manufactured
speculatively by the Commissioner—using “the record as a whole”—on appeal, but rather,
must be clearly set forth in the Commissioner’s decision. See, e.g., Durham v. Astrue, 2010 WL
3825617, *3 (M.D. Ala. Sept. 24, 2010) (rejecting the Commissioner’s request to affirm an ALJ’s
decision because, according to the Commissioner, overall, the decision was “adequately
explained and supported by substantial evidence in the record”; holding that affirming that
decision would require that the court “ignor[e] what the law requires of the ALJ[; t]he court
‘must reverse [the ALJ’s decision] when the ALJ has failed to provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis has been conducted’”
(quoting Hanna, 395 Fed. Appx. at 636 (internal quotation marks omitted))); see also id. at *3 n.4
(“In his brief, the Commissioner sets forth the evidence on which the ALJ could have relied . . . .
There may very well be ample reason, supported by the record, for [the ALJ’s ultimate
conclusion]. However, because the ALJ did not state his reasons, the court cannot evaluate
them for substantial evidentiary support. Here, the court does not hold that the ALJ’s ultimate
conclusion is unsupportable on the present record; the court holds only that the ALJ did not
conduct the analysis that the law requires him to conduct.” (emphasis in original)); Patterson v.
Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . . affirm the ALJ’s decision only upon
the reasons he gave.”).
physician” (internal punctuation altered and citation omitted)); but cf. Coleman v.
Barnhart, 264 F.Supp.2d 1007 (S.D. Ala. 2003). The linkage requirement is simply
another way to say that, in order for this Court to find that an RFC determination is
supported by substantial evidence, ALJs must “show their work” or, said somewhat
differently, show how they applied and analyzed the evidence to determine a plaintiff’s
RFC. See, e.g., Hanna, supra, 395 Fed. Appx. at 636 (an ALJ’s “decision [must] provide a
meaningful basis upon which we can review [a plaintiff’s] case”); Ricks, 2012 WL
1020428, at *9 (an ALJ must “explain the basis for his decision”); Packer, 542 Fed.Appx.
at 891-892 (an ALJ must “provide enough reasoning for a reviewing court to conclude
that the ALJ considered the claimant’s medical condition as a whole” (emphasis
In this case, the Court finds that the ALJ did not completely link his RFC
assessment—that is, a limited range of unskilled light work—to specific evidence in the
record bearing upon Joiner’s ability to perform the physical, mental, sensory and other
requirements of work because he failed to set forth his reasons for finding that
“claimant’s statements and other allegations concerning the intensity, persistence and
limiting effects of [his] symptoms are not entirely credible” (Tr. 20), as more precisely
set out hereinafter.
The Eleventh Circuit has consistently and often set forth the criteria for
establishing disability based on testimony about pain and other symptoms. See, e.g.,
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citations omitted); Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
[T]he claimant must satisfy two parts of a three-part test showing: (1)
evidence of an underlying medical condition; and (2) either (a) objective
medical evidence confirming the severity of the alleged pain; or (b) that
the objectively determined medical condition can reasonably be expected
to give rise to the claimed pain. If the ALJ discredits subjective testimony,
he must articulate explicit and adequate reasons for doing so. Failure to
articulate reasons for discrediting subjective testimony requires, as a
matter of law, that the testimony be accepted as true.
Wilson, supra, 284 F.3d at 1225 (internal citations omitted; footnote added).
“20 C.F.R. § 404.1529 provides that once such an impairment is established, all
evidence about the intensity, persistence, and functionally limiting effects of pain or
other symptoms must be considered in addition to the medical signs and laboratory
findings in deciding the issue of disability.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995) (emphasis supplied). In other words, once the issue becomes one of credibility
and, as set forth in SSR 96-7p, in recognition of the fact that a claimant’s symptoms can
sometimes suggest a greater level of severity of impairment than can be shown by
objective medical evidence alone, the adjudicator (ALJ) in assessing credibility must
consider in addition to the objective medical evidence the other factors/evidence set
forth in 20 C.F.R. §§ 404.1529(c) and 416.929(c). More specifically, “[w]hen evaluating a
claimant’s subjective symptoms, the 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. Commissioner of Social
Security Administration, 377 Fed.Appx. 944, 947 (11th Cir. May 6, 2010) (emphasis
supplied), quoting 20 C.F.R. §§ 404.1529(c)(3); see also SSR 96-7p (“In recognition of the
fact that an individual’s symptoms can sometimes suggest a greater level of severity of
impairment than can be shown by the objective medical evidence alone, 20 CFR
404.1529(c) and 416.929(c) describe the kinds of evidence . . . that the adjudicator must
consider in addition to the objective medical evidence when assessing the credibility of
an individual’s statements[.]” (emphasis supplied)).
In this case, the ALJ clearly recognized that plaintiff’s impairments meet the pain
standard (see Tr. 20 (“[T]he undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected to cause some of the alleged
symptoms[.]”)) yet found that his subjective complaints were not entirely credible (id.
(“[T]he claimant’s statements and other allegations concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible[.]”)).6 However, the
ALJ, in making his credibility finding, see Foote, supra, at 1561, considered only the
objective medical evidence of record7 but did not consider the other factors/evidence
set forth in 20 C.F.R. §§ 404.1529(c) and 416.929(c) (see Tr. 20-21). This was error. In other
words, in this decidedly “pain” case,8 Foote, supra, at 1562 (“’[W]here proof of a
disability is based upon subjective evidence and a credibility determination is,
therefore, a critical factor in the [Commissioner]’s decision, the ALJ must either
This type of conclusory analysis is simply not useful in a pain case. In other
words, if district courts allow such analysis to suffice, there would be no reason for ALJs to
account for the “other factors” set forth in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3). Indeed,
sanctioning such approach would effectively allow ALJs to reject a claimant’s testimony of pain
(and other symptoms) without articulating “explicit and adequate reasons for doing so.” See
Wilson, supra, 284 F.3d at 1225 (emphasis supplied).
This Court finds curious the ALJ’s failure to include in his analysis any mention
of numerous office visits made by plaintiff to Dr. Travis (see Tr. 309-311 & 315-323) or the
objective findings made by Travis supportive of Joiner’s pain complaints (compare Tr. 310
(“DECREASED LORDOTIC CURVE AND ROM. 4++++MUSCLE SPASMS[.] OTHERWISE,
LEFT KNEE AND BOTH SHOULDERS HAVE PAIN AND DECREASED ROM.”) with Tr. 313
(same findings made)).
(Compare, e.g., Tr. 249 (“He will be in chronic pain.”) with Tr. 296 (“Chronic
pain.”) and Tr. 309 (“Chronic Pain.”).) Although the ALJ indicated he was according “great
weight” to Dr. Kidd’s opinion (Tr. 21), the Court does not find that the hearing officer mentions
anywhere in his decision that Dr. Kidd specifically determined that plaintiff would “be in
chronic pain.” (Tr. 249.) This “opinion” articulated by Dr. Kidd certainly does nothing to
undermine plaintiff’s pain testimony and/or credibility. In fact, it does just the opposite.
explicitly discredit such testimony or the implication must be so clear as to amount to a
specific credibility finding.’”), the ALJ’s adverse credibility determination is not
supported by substantial evidence because he failed to utilize any of the many reasons
at his disposal for finding Joiner’s testimony not fully credible, including daily
activities, see Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (noting activities
such as caring for personal needs, visiting a sick aunt, helping his spouse around the
house, and carrying out the garbage supported the ALJ’s finding that the claimant did
not suffer disabling pain),9 sporadic use of narcotic pain medication, see Davis v. Astrue,
2011 WL 3875620, *8 (M.D. Ala. Aug. 31, 2011) (“The court finds the ALJ’s decision to
discount plaintiff’s testimony to be minimally adequate. He stated at least one specific
reason—i.e., that plaintiff’s ‘use of medication does not suggest the presence of any
impairment(s) which is more limiting than found in this decision.’ The ALJ’s failure to
cite the evidence in support of this stated reason within his credibility analysis is not the
best practice, and it needlessly complicates review. However, it is apparent from the
decision as a whole that the ALJ here refers to plaintiff’s sporadic use of narcotic pain
medication, described fully within the ALJ’s summary of the evidence and supported
by evidence of record. Accordingly, the court finds without merit plaintiff’s contention
that the ALJ’s credibility determination is flawed as to his testimony of disabling pain.”
(internal citations and footnote omitted)),10 and the like.11
Although the ALJ mentioned some activities plaintiff engages in during the
course of the recounting/summarization of his hearing testimony (see Tr. 20), the hearing officer
nowhere indicates that the activities about which plaintiff testified are indicative of the fact that
plaintiff does not suffer from disabling pain (see id. at 20 & 21).
The undersigned does not mean to suggest that Joiner uses his pain medication
sporadically as there is no indication that he does anything other than take the medication, in
particular, Oxycodone, as prescribed. Oxycodone “is indicated for relief of moderate to severe
pain.” https://en.wikipedia.org/wiki/Oxycodone (last visited September 21, 2015, 3:16 p.m.).
Because the ALJ’s credibility determination is flawed, this Court is unable to find
that the ALJ provided the linkage necessary to substantiate his RFC determination.12
Accordingly, this cause is due to be remanded to the Commissioner of Social Security
for further proceedings not inconsistent with this decision.
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157,
115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The
remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for
Such credibility determination should take the shape of that noted in Leiter,
supra, 377 Fed. Appx. at 948 (daily activities), or Witherspoon v. Astrue, CA 12-0220-C, Doc. 21, at
7-9 (no pain medication, etc.). The need to perform such analysis is particularly apparent where,
as here, the vocational expert testified that an individual limited in the manner plaintiff alleged
secondary to musculoskeletal pain could perform no work in the national economy. (Compare
Tr. 53 with Tr. 38-41.)
While the ALJ never once references the RFC determination of the state agency
Single Decision Maker, Shekitha Sanders (compare Tr. 14-23 with Tr. 260-267), it appears that all
“limitations” on light work noted in the ALJ’s RFC assessment (Tr. 19 (“[H]e is precluded from
climbing ladders, ropes or scaffolds. He can frequently climb ramps or stairs, balance, stoop,
kneel, crouch, and crawl. He is precluded from operation or control of hazardous, moving
machinery. He must avoid exposure to unprotected heights. He can sustain occasional
exposure to extreme cold and excessive vibration.”)) all but “track” the RFC assessment of
Sanders (compare id. with Tr. 262 & 264). Sanders, of course, is not an acceptable medical source,
see Siverio v. Commissioner of Social Security, 461 Fed.Appx. 869, 871-872 (11th Cir. Feb. 23, 2012)
(per curiam) and because her opinion is entitled to no weight, compare id. at 871 (“’SDMcompleted forms are not opinion evidence at the appeals level.’”) with Brown v. Astrue, 2012 WL
920973 (M.D. Fla. Mar. 19, 2012) (finding that an RFC assessment completed by an SDM with no
apparent medical credentials is not an opinion of an acceptable medical source and is not
entitled to any weight) and Hall v. Astrue, 2012 WL 2499177, *2-3 (N.D. Ala. Jun. 22, 2012)
(finding ALJ erred in “affording any weight, even minimal weight,” to the assessment of the
SDM), the ALJ’s obvious “ghost reference” to Sanders’ assessment does not provide the
necessary linkage between the ALJ’s RFC assessment and specific evidence in the record
bearing upon the plaintiff’s ability to perform the physical, mental, sensory, or other
requirements of work.
purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S.
292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over
DONE and ORDERED this the 24th day of September, 2015.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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