Houser v. Colvin
MEMORANDUM OPINION AND ORDER entered 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), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 12/21/2015. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ELIJAH HOUSER, JR.,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying his claim for
disability insurance benefits. 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. 17 & 19 (“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
December 9, 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. 17 & 19 (“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 herniated nucleus pulposus with foraminal
stenosis at L5-S1, status-post posterior lumbar inter-body and spinal fusion L4-5 with
incidental dural tear (2007 and revision in 2011), status-post posterior lumbar interbody and spinal fusion at L5-S1, status-post spondylolisthesis, foraminal stenosis, facet
arthosis, bilateral leg pain, and chronic back pain; uncontrolled diabetes; severe
headaches; hypertension; obesity; depression; chronic liver disease; and fatigue. The
Administrative Law Judge (ALJ) made the following relevant findings:
The claimant last met the insured status requirements of the
Social Security Act on June 30, 2012.
The claimant did not engage in substantial gainful activity
during the period from his alleged onset date of January 23, 2010
through his date last insured of June 30, 2012 (20 CFR 404.1571 et seq.).
Through the date last insured, the claimant had the following
severe impairments: history of subarachnoid hemorrhage; obesity;
degenerative disc disease of the lumbar spine; and depression (20 CFR
Claimant’s above stated impairments cause limitations that have more
than a minimal effect on claimant’s capacity to perform basic work
The claimant’s diabetes mellitus is a nonsevere impairment because it
does not cause a limitation that has more than a minimal effect on
claimant’s capacity to perform basic work activities. By way of history, the
claimant presented to Julio C. Delgado, M.D., for diabetes mellitus care.
On April 22, 2008, Dr. Delgado opined his blood sugars were out of
control at level 167. During follow-up visits in May, the claimant’s blood
sugar levels increased as high as 191. Dr. Delgado placed him on Symlin.
In June of 2008, his glucose level was 167. On September 9, 2008, the
claimant had severe fatty liver infiltration; and his pain had been
depriving him of sleep. His glucose level was 225. His physical
examination was generally unremarkable. Dr. Delgado diagnosed him
with diabetic neuropathy, Type II, metabolism disorder, benign
hypertension, stable, systolic heart failure, and stable chronic liver
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
disorder. At follow-up on May 11, 2011, his glucose level was 246. He had
not taken Symlin for the past three weeks. Dr. Delgado restarted his
Symlin (Insulin used for treatment of diabetes mellitus); and he adjusted
his Levemir (generic brand of Insulin used to treat diabetes mellitus). The
claimant presented to Dr. Delgado for follow-up care for his diabetes
mellitus in January of 2011. He had no insurance[,] so he was buying overthe-counter medications and he was checking his blood sugar level with
someone else’s meter. On March 22, 2012, during another follow-up for
his diabetes mellitus, his blood glucose was 256. Dr. Delgado refilled his
medications. The aforementioned presents clear evidence of
noncompliance. Moreover, the record indicates he has no vision difficulty;
and he denied end organ damage during the consultative examination.
Therefore, this condition has established only a slight abnormality or a
combination of slight abnormalities that would have no more than a
minimal effect on the claimant’s ability to work. Additionally, there has
been no substantial evidence to contradict the effectiveness of medication
and/or medical advice compliance; and the medical evidence fails to
support a finding that the impairment is a severe impairment that
considered singly and in combination caused more than a minimal
limitation on the claimant’s ability to perform basic work activities and is
Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).
After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant has the residual
functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) except the claimant can perform occasional pushing or
pulling with the lower extremities. The claimant is precluded from
climbing ladders, ropes, or scaffolds. The claimant can perform
occasional climbing of ramps and stairs. The claimant can perform
occasional balancing, kneeling, crouching, crawling, and stooping. He
must avoid concentrated exposure to extreme heat, cold, and vibration.
He can have no exposure to dangerous machinery, unprotected
heights[,] or work requiring walking on uneven terrain. During a
regularly scheduled workday, or the equivalent thereof, the claimant
can understand and remember short and simple instructions; but he is
unable to do so with detailed or complex instructions. He can do simple,
routine, and repetitive tasks; but he is unable to do so with detailed or
complex tasks. The claimant can have no more than occasional, casual,
non-transactional contact with the general public. His contact with the
general public should not be his usual job duty. He can accept
constructive, non-confrontational supervisor criticism. Finally, the
claimant can deal with changes in the workplace, if they are introduced
occasionally and gradually.
At the hearing, the claimant testified that he could not work because of
pain, his diabetes mellitus, and trouble concentrating.
After careful consideration of the evidence, the undersigned finds that the
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 credible for the reasons explained in this
As for his degenerative disc disease of the lumbar [spine], he has had
surgical treatment of this condition and the evidence revealed that his
lumbar spine MRI was normal except for some degeneration at L5-S;
and there was no significant right-sided nerve root impingement causing
right leg pain. Additionally, his musculoskeletal examination revealed no
peripheral synovitis or arthropathy; and he had a negative neurologic
with no neurologic deficits. Likewise, he had normal grip strength and
dexterity. His blood pressure was okay during the examination.
Furthermore, the pain management notes indicated that his reduced pain
allowed him to go to church: he reported pain as 5/10; and he reported
30% pain level improvement with current treatment plan that allowed
him to be independent with his activities of daily living, help with
housekeeping, and attend church. Furthermore, upon examination, his
treating physician found him stable on medications. Finally, the surgically
treated condition was described as resolved except for his current
condition—perhaps his subjective pain complaints.
His activities of daily living are not consistent with a disability. He can
feed himself. He can toilet independently. He prepares his own meals
such as sandwiches, fruits, cereal, and popcorn. He folds clothes and
irons. He drives. He shops. He spends time with his family attending
church. He goes to church and the grocery store on a regular basis: and he
has never been fired because of problems getting along with others
(Exhibit B2E2). In conclusion, the undersigned finds the objective medical
evidence and the activities of daily living indicative that the claimant’s
impairments are not as disabling as alleged.
Through the date last insured, the claimant was unable to
perform any past relevant work (20 CFR 404.1565).
The undersigned cites this Exhibit number—while excluding all other citations—
because the ALJ made reference to this exhibit earlier in his opinion, as follows:
The claimant[,] along with his wife[,] completed a function report dated
February 16, 2011 that indicated the following: He lives in a house with his new
wife. They were married December 31, 2010. During the day, he gets up and
takes his medicine and moves around as much as possible. He is limited [i]n his
activities dependent upon the amount of pain he is experiencing. He tries to do
things before taking his medication because it makes him “high”. Some days are
better than others. He has problems putting on his socks and shoes, bathing
lower extremities such as ankle[s] and feet; and he never takes baths because it is
hard to get out of the tub. His wife or barber takes care of his hair. He can feed
himself. He can toilet independently. He needs reminders to care for personal
grooming; and he needs someone to accompany him to appointments because he
forgets. He prepares his own meals such as sandwiches, fruits, cereal, and
popcorn. He folds clothes and irons. He does not repair anything or do any
mowing. His father and nephew take care of the outside and his wife takes care
of the housework. He goes outside as often as he can, except in extreme cold or
rainy weather because of pain. He drives when he is not heavily medicated or in
a lot of pain. His wife or family goes with him shopping. He is not able to pay
bills, count change, handle a savings account, or use a checkbook because he gets
confused and angry. He spends time with his family attending church. He goes
to church and the grocery store on a regular basis. He has problems getting along
with family, friends, neighbors, or others because he does not have a normal life.
He has problems lifting, squatting, bending, standing, reaching, walking, sitting,
kneeling, stair climbing, completing tasks, concentrating, understanding,
following instructions, using his hands; and he has problems with his memory.
He has a problem paying attention, following written and spoken instructions
because of forgetfulness or falling asleep. He has never been fired because of
problems getting along with others. He does not handle stress because he has to
take medicine for it. He does not handle changes in routine because he hates his
current life (Exhibit B2E). The undersigned has considered the part of this opinion
as that of the claimant’s wife as a non-medical, third-party opinion in
accordance with 20 CFR 416.913(d) and SSR 06-03p. In doing so, the undersigned
gives no weight to that portion of this opinion.
(Tr. 284-285 (emphasis supplied).)
The claimant was born on September 30, 1971 and was 40 years
old, which is defined as a younger individual age 18-44, on the date last
insured (20 CFR 404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
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).
Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there were
jobs that existed in significant numbers in the national economy that
the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
Through the date last insured, if the claimant had the residual functional
capacity to perform the full range of sedentary work, a finding of “not
disabled” would be directed by Medical-Vocational Rule 201.28. However,
the claimant’s ability to perform all or substantially all of the requirements
of this level of work was impeded by additional limitations. To determine
the extent to which these limitations erode the unskilled sedentary
occupational base, through the date last insured, the Administrative Law
Judge asked the vocational expert whether jobs existed in the national
economy for an individual with the claimant’s age, education, work
experience, and residual functional capacity. The vocational expert
testified that given all of these factors the individual would have been able
to perform the requirements of representative occupations such as
inspector (sedentary and unskilled), DOT# 739.687-182, 3,000 local jobs
available and 100,000 national jobs available; sorter (sedentary and
unskilled), DOT# 521.687-086, 6,000 local jobs available and 400,000
national jobs available; and machine tender (sedentary and unskilled),
DOT# 690.685-258, 2,000 local jobs available and 100,000 national jobs
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 testimony of the vocational expert, the undersigned
concludes that, through the date last insured, considering the claimant’s
age, education, work experience, and residual functional capacity, the
claimant was capable of making a successful adjustment to other work
that existed in significant numbers in the national economy. A finding of
“not disabled” is therefore appropriate under the framework of the abovecited rule.
The claimant was not under a disability, as defined in the Social
Security Act, at any time from January 23, 2010, the alleged onset date,
through June 30, 2012, the date last insured (20 CFR 404.1520(g)).
(Tr. 280-281, 281, 283, 285, 288-289, 289, 290 & 291 (most internal citations omitted;
footnotes omitted; emphasis in original).) The Appeals Council affirmed the ALJ’s
decision (Tr. 1-4) and thus, the hearing decision became the final decision of the
Commissioner of Social Security.
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform h[is] past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)3 (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the
burden, at the fourth step, 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
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
claimant establishes that he cannot perform his past relevant work, 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. 1985).
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 sedentary 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).4 Courts are precluded, however, from
“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence preponderates against the
Commissioner’s findings, [a court] must affirm if the decision reached is supported by
substantial evidence.’” Id. (quoting Crawford v. Commissioner of Social Security, 363 F.3d
1155, 1158-1159 (11th Cir. 2004)).
In this case, the plaintiff contends that the following errors were committed in
this case: (1) the ALJ erred in finding that his diabetes is a non-severe impairment; (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).
the ALJ failed to follow the Eleventh Circuit’s pain standard; and (3) the Appeals
Council failed to adequately examine the additional evidence submitted to it. Because
the undersigned finds, in this decidedly “pain” case, the ALJ’s analysis of plaintiff’s
credibility particularly lacking, the undersigned only parenthetically considers
plaintiff’s other issues.
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). 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)).
“Subjective pain testimony that is supported by objective medical
evidence of a condition that can reasonably be expected to produce the
symptoms of which the claimant complains is itself sufficient to sustain a
finding of disability.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)
(citations omitted). However, if the ALJ decides not to credit a claimant’s
subjective complaints as to her pain, “he must articulate specific and
adequate reasons for doing so.” 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.” Id. (citation
omitted).5 “A clearly articulated credibility finding with substantial
supporting evidence in the record will not be disturbed by a reviewing
court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per curiam)
“[I]f the ALJ either fails to articulate reasons for refusing to credit the plaintiff’s
pain testimony, or if his reasons are not supported by substantial evidence, the pain testimony
of the plaintiff must be accepted as true.” Frizzell v. Astrue, 487 F.Supp.2d 1301, 1305 (N.D. Ala.
Leiter, supra, 377 Fed.Appx. at 947 (footnote added).
In this case, the ALJ clearly recognized that plaintiff’s underlying medically
determinable impairments “could reasonably be expected to cause the alleged
symptoms[,]” (Tr. 288); however, his additional finding that “the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible[,]” (Tr. 289), is not supported by substantial evidence.
The plaintiff testified that he has pain in his back, legs, and hips; that he
constantly changes positions to relieve his pain; that he takes strong painkilling
medications (at the time of the hearing, he was taking Oxycodone and Lyrica); that a
stimulator was surgically implanted in his back to help relieve his chronic pain; and
that while he does go to church twice a month, shops with his wife, reads, watches TV,
and walks for short periods of time, he has difficulty putting on his shoes and cannot
pick up his five-month old son and walk around with him. (See Tr. 305-306 & 308-309.)
Interestingly, although the ALJ did not set forth the specifics of plaintiff’s hearing
testimony (see Tr. 285 (“At the hearing, the claimant testified that he could not work
because of pain, his diabetes mellitus, and trouble concentrating.”)), it is apparent that
he found plaintiff’s pain allegations inconsistent with his daily activities (see Tr. 289
(“His activities of daily living are not consistent with a disability.”)). The ALJ relies on
Exhibit B2E (Tr. 427-434) to support his contention in this regard (Tr. 289). However, the
undersigned is unable to find that this Function Report (Tr. 427-434) supplies
substantial evidence to support the ALJ’s credibility determination because, earlier in
his opinion, the ALJ rejected at least a portion of the report on the basis that it
constituted the opinion of plaintiff’s wife (see Tr. 284-285 (“The undersigned has
considered the part of this opinion as that of the claimant’s wife as a non-medical, thirdparty opinion in accordance with 20 CFR 416.913(d) and SSR 06-03p. In doing so, the
undersigned gives no weight to that portion of this opinion.”)), without specifically
identifying what portion of the report (which was indisputably completed by both
plaintiff and his wife—Tr. 434) he was rejecting (see id. at 284 & 285). Moreover, in
recounting the daily activities plaintiff and his wife set forth in the report, the ALJ
ignored the full scope of the information supplied in the report. (Compare Tr. 289 with
Tr. 284 & 427-434.) For instance, the ALJ emphasized that plaintiff reported he can drive
(Tr. 284) but ignored that plaintiff only drives if he is not heavily medicated or in a lot of
pain (Tr. 430). In addition, the ALJ noted plaintiff can feed himself and toilet
independently (Tr. 284) but ignored that plaintiff and his wife reported that he has
numerous problems with personal care, including that at times he has a hard time
putting on socks and shoes (if he can put them on at all), if is hard for him to bathe his
lower extremities, he needs help with his hair and shaving, and even though he can
toilet independently, using the restroom “take[s] a lot out of [him][.]” (Tr. 428.) These
are but a few examples of the ALJ’s wholesale “cherry-picking” in this regard.
It is recognized in the Eleventh Circuit that “participation in everyday activities
of short duration, such as housework or fishing,” does not disqualify a claimant for
disability. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997); see also Frizzell, supra,
487 F.Supp.2d at 1306 (“The ability to watch television, do occasional shopping, or
perform other sporadic activities does not mean the plaintiff is not disabled.”). This is
particularly true where, as here, the ALJ selectively describes the plaintiff’s activities by
simply listing them without concomitantly setting forth the plaintiff’s limiting
description of those activities. See Horton v. Barnhart, 469 F.Supp.2d 1041, 1047 (N.D.
Ala. 2006) (“The ALJ’s selective description of the plaintiff’s activities is disingenuous,
as he accepts her listing of her activities, but not her limiting description of them.”).
Because the ALJ’s rejection of plaintiff’s back, leg and hip pain complaints is founded
solely on a description of plaintiff’s daily activities, a description replete with
inaccuracies or only partial “truths,” the ALJ’s sole articulated reason for rejecting
plaintiff’s back and leg pain testimony6 is not supported by substantial evidence. Cf.
Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“Failure to articulate the reasons for
discrediting subjective pain testimony requires, as a matter of law, that the testimony be
accepted as true.”). Therefore, this error requires remand of this action to the
Commissioner of Social Security.
It is relatively clear to the undersigned that the ALJ focused on plaintiff’s daily
activities because it did not behoove him to focus on any other factor in § 404.1529(c)(3),
particularly since the record is replete with evidence of surgeries plaintiff received to relieve his
pain (compare Tr. 590 (on July 18, 2011, plaintiff had the following surgical procedure: “Revision
posterior spinal fusion, L4-5, with titanium Biomet Polaris instrumentation, platform DBM
insertion of EBI electrical bone stimulator, repair of dural tear, re-exploration microscopic
partial hemilaminectory, foraminotomy L4-5, discectomy L4-5 on the right, with PLIF, posterior
lumbar interbody fusion, with OsteoStim implant, and aspiration of right posterior iliac crest
bone marrow.”) with Tr. 633 (“This patient is seen for back and bilateral leg pain, status post
lumbar surgery times 4[,] including multilevel fusion[.]”)), the need for him to constantly
change positions to relieve pain (Tr. 305), and his dependence on strong painkilling medication,
even after surgical insertion of the stimulator (see, e.g., Tr. 633 (on September 14, 2011, plaintiff
was prescribed Oxycodone, Lyrica, and Cymbalta); 639 (on November 3, 2011, plaintiff was
prescribed Roxicodone, Lyrica, and Cymbalta); 643 (on January 15, 2012, plaintiff was continued
on Roxicodone, Lyrica, and Cymbalta); Tr. 706 (on April 18, 2012, plaintiff was continued on
Roxicodone, Lyrica, and Cymbalta); Tr. 722 (on July 11, 2012, plaintiff was continued on
Roxicodone, Lyrica, and Cymbalta); Tr. 738 (on October 1, 2012, plaintiff was continued on
Roxicodone, Lyrica, and Cymbalta) & 772 (on December 20, 2012, plaintiff was continued on
Roxicodone, Lyrica, and Cymbalta)). The record in this case is notable for the fact that no
medical provider has ever suggested that plaintiff does not have chronic low back pain (or
associated bilateral leg pain) or questioned plaintiff’s description of the severity of that pain.
(See, e.g., Tr. 497-509, 588-590, 594-597, 599-602, 633-639, 643, 653-661, 665-669, 675-676, 706-707,
722-727, 737-752 & 771-774.)
The undersigned simply notes that Roxicodone tablets are “an immediate-release oral
formulation of oxycodone hydrochloride indicated for the management of moderate to severe
http://www,drugs.com/roxicodone.html (last visited, December 15, 2015, at 10:47 a.m.). In
addition, Lyrica is indicated for the management of neuropathic pain associated with spinal
cord injury, http://www.druglib.com/druginfo/lyrica/indications_dosage (last visited,
December 15, 20125, at 10:51 a.m.), and Cymbalta is indicated for the management of chronic
musculoskeletal pain, http://www.druglib.com/druginfo/cymbalta/indications_usage (last
visited, December 15, 2015, at 10:53 a.m.); see also id. (“This has been established in studies in
patients with chronic low back pain (CLBP) and chronic pain due to osteoarthritis.”).
In addition, 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.7 Accordingly, this cause is due to be remanded to the Commissioner of
Social Security for further proceedings not inconsistent with this decision.
The ALJ’s decision is troublesome because he goes to much greater lengths than
this Court has ever seen to reach the determination that plaintiff’s insulin-dependent diabetes
mellitus is a non-severe impairment (Tr. 280-281), when the evidence of record (see, e,g, Tr. 514,
588, 599-600, 606, 612, 615, 617, 622-623, 626-627, 712-716 & 757-758), and case law, compare
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (“Step two is a threshold inquiry. It
allows only claims based on the most trivial impairments to be rejected.”) with Arnold v. Colvin,
2015 WL 1458149, *1 (N.D. Fla. Mar. 30, 2015) (“The claimant has the following severe
impairments: diabetes mellitus, insulin dependent, . . . .”); Davis v. Colvin, 2014 WL 793589, *1
(N.D. Ga. Feb. 26, 2014) (severe impairments found by ALJ included insulin-dependent diabetes
mellitus) and Byrd v. Astrue, 2010 WL 3749083, *1 (S.D.Ala. Sept. 21, 2010) (noting the ALJ’s
finding that the claimant’s severe impairments included “a history of insulin[-]dependent
diabetes mellitus with secondary mild diabetic peripheral neuropathy in lower extremities . .
. .” (emphasis in original)); cf. Brown v. Astrue, 280 Fed.Appx. 872, 875 (11th Cir. Jun. 3, 2008)
(“The ALJ determined that Brown had the following [severe] impairments: non-insulin
dependent diabetes mellitus.” (emphasis supplied)), cert. denied, 555 U.S. 1115, 129 S.Ct. 936, 173
L.Ed.2d 137 (2009), support a contrary conclusion, and the ALJ failed to determine whether
plaintiff’s documented noncompliance was excusable because he lacked insurance, compare
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“[P]overty excuses noncompliance.”) with
Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (finding an ALJ must determine whether
the claimant could afford the prescribed treatment) and Moffatt v. Commissioner of Social Security,
2015 WL 1038014, *3 (M.D. Fla. Mar. 10, 2015) (“The language in Dawkins suggests that less than
exclusive reliance on noncompliance does not excuse the failure to consider the poverty issue.”).
This Court has a hard time wrapping its head around why the ALJ did not simply find
plaintiff’s insulin-dependent diabetes mellitus to be a severe impairment before addressing the
remaining steps in the sequential evaluation process.
Finally, on remand the ALJ can certainly consider the relevance, if any, of the Medical
Source Statement and Clinical Assessment of Pain completed by plaintiff’s treating surgeon, Dr.
Scott Faulkner, on December 27, 2013 (Tr. 248-252), particularly in light of Dr. Faulkner’s
statement that the limitations reflected on the medical source statement existed during the
relevant time period (compare Tr. 252 (noted limitations in effect since 2008) with Tr. 280
(claimant’s insured status expired on June 30, 2012)) and the fact that the one item lacking
before the ALJ at the time of the administrative decision on June 20, 2013 (see Tr. 291) was a
competent statement regarding plaintiff’s physical ability to sit, stand, walk, lift and carry
weight, etc., in light of his undeniable back pain and numerous surgeries. The ALJ’s apparent
determination that plaintiff is capable of performing the substantial sitting required of
sedentary work, compare Tr. 283 (“[T]he claimant had the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can perform
occasional pushing or pulling with the lower extremities.”) with 20 C.F.R. § 404.1567(a)
(“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined
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
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 21st day of December, 2015.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
as one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.”), is curious in light of all the hardware in Houser’s low
back (see Tr. 683-684) and plaintiff’s testimony that he constantly has to change positions to
relieve his back and leg pain (see Tr. 305).
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