Thompson v. Commissioner of Social Security
Filing
20
OPINION AND ORDER reversing and remanding this matter with instructions; Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 8/20/2019. (BHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RENEE DOLORIS THOMPSON,
Plaintiff,
v.
Case No. 3:18-cv-606-J-JRK
1
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
2
I. Status
Renee Deloris Thompson (“Plaintiff”) is appealing the Commissioner of the Social
Security Administration’s (“SSA(’s)”) final decision denying her claims for disability income
benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff’s alleged inability to
work is the result of “chronic ankle pain due to tibia, fibula, ankle break”; neck spasms;
“straightening [of the] normal cervical lordosis”; type 2 diabetes; high blood pressure; “c4c5d central herniation abutting cervical spinal cord”; “significant degenerative disc disease
in neck”; diverticulitis; “loss of intervertebral disc space h[ei]ght and signal”; “c4-c5
par[a]central disc protrusion”; a hiatal hernia; “esophageal manometry”; “congestive
1
Andrew M. Saul became the Commissioner of Social Security on June 17, 2019. Pursuant
to Rule 25(d)(1), Federal Rules of Civil Procedure, Andrew M. Saul should be substituted for Nancy A.
Berryhill as Defendant in this suit. No further action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2
The parties consented to the exercise of jurisdiction by a United States Magistrate Judge.
See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 11), filed July 11,
2018; Reference Order (Doc. No. 13), entered July 12, 2018.
gastric mucosa”; hemorrhoids; anemia; menorrhagia; dyspareunia; high cholesterol; and
depression. See Transcript of Administrative Proceedings (Doc. No. 12; “Tr.” or
“administrative transcript”), filed July 11, 2018, at 77-78, 91-92, 105-06, 122-23, 228
3
(emphasis omitted). Plaintiff filed an application for DIB on October 2, 2014 and for SSI
4
on October 8, 2014, alleging a disability onset date of August 27, 2014. Tr. at 203 (DIB);
Tr. at 205 (SSI). The applications were denied initially, Tr. at 75, 77-88, 90, 140-42 (DIB);
Tr. at 76, 89, 91-102, 137-39 (SSI), and upon reconsideration, Tr. at 103, 104, 105-18,
148-52 (DIB); Tr. at 120, 121, 122-35, 153-57 (SSI).
On April 12, 2017, an Administrative Law Judge (“ALJ”) held a hearing, during which
he heard testimony from Plaintiff, who was represented by counsel, and a vocational
expert (“VE”). Tr. at 49-73. Plaintiff was forty-six years old at the time of the hearing. Tr. at
56. The ALJ issued a Decision on June 28, 2017, finding Plaintiff not disabled through the
date of the Decision. Tr. at 10-21.
On July 28, 2017, Plaintiff requested review of the Decision by the Appeals Council.
Tr. at 202. The Appeals Council received additional evidence in the form of a brief authored
by Plaintiff’s counsel. Tr. at 4-5; see Tr. at 309-10 (brief). On March 15, 2018, the Appeals
Council denied Plaintiff’s request for review, Tr. at 1-3, thereby making the ALJ’s Decision
the final decision of the Commissioner. On May 3, 2018, Plaintiff commenced this action
3
Although actually completed on October 2, 2014, see Tr. at 203, the protective filing date of
the DIB application is listed elsewhere in the administrative transcript as October 1, 2014, see, e.g., Tr. at
77, 105.
4
Although actually completed on October 8, 2014, see Tr. at 205, the protective filing date of
the SSI application is listed elsewhere in the administrative transcript as October 1, 2014, see, e.g., Tr. at
91, 122.
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under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1),
seeking judicial review of the Commissioner’s final decision.
On appeal, Plaintiff makes the following argument: “The ALJ’s analysis of treating
[physician Dr. Rene Pulido’s opinions] regarding Plaintiff’s physical limitations” was
erroneous and contrary to law. Plaintiff’s Memorandum – Social Security (Doc. No. 16;
“Pl.’s Mem.”), filed September 10, 2018, at 1, 14 (emphasis omitted). Although most of
Plaintiff’s argument revolves around the ALJ’s handling of Dr. Pulido’s opinions, Plaintiff
also contends that “[t]he ALJ did not give legally sufficient good reasons to
reject . . . Plaintiff’s self-description of her limitations . . . .” see Pl.’s Mem. at 24; see id. at
16-24. On December 6, 2018, Defendant filed a Memorandum in Support of the
Commissioner’s Decision (Doc. No. 19; “Def.’s Mem.”) addressing Plaintiff’s arguments.
After a thorough review of the entire record and consideration of the parties’ respective
memoranda, the undersigned determines that the Commissioner’s final decision is due to
be reversed and remanded for further administrative proceedings.
II. The ALJ’s Decision
5
When determining whether an individual is disabled, an ALJ must follow the fivestep sequential inquiry set forth in the Code of Federal Regulations (“Regulations”),
determining as appropriate whether the claimant (1) is currently employed or engaging in
substantial gainful activity; (2) has a severe impairment; (3) has an impairment or
combination of impairments that meets or medically equals one listed in the Regulations;
5
“Disability” is defined in the Social Security Act as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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(4) can perform past relevant work; and (5) retains the ability to perform any work in the
national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step
four, and at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 12-20. At step
one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since
August 27, 2014, the alleged onset date.” Tr. at 12 (emphasis and citation omitted). At step
two, the ALJ found that Plaintiff “has the following severe impairments: history of right lower
extremity fracture with residual limitations, adjustment disorder, degenerative disk disease,
depression, and osteoarthritis.” Tr. at 12 (emphasis and citation omitted). At step three,
the ALJ ascertained that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” Tr. at 13 (emphasis and citation omitted).
The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”):
[Plaintiff can] perform light work as defined in 20 [C.F.R. §§ 404.1567(b) and
416.967(b)] except limited to unskilled work not requiring complex
instructions or procedures; no climbing of ropes, ladders, or scaffolds; no
work at unprotected heights or with hazardous machinery; occasional
stooping, crouching, crawling, or kneeling; frequent use of foot controls with
right lower extremity; occasional climbing of ramps or stairs; frequent
overhead reaching bilaterally; frequent handling bilaterally; frequent
interaction with co-workers and supervisors; and occasional contact with the
general public.
Tr. at 15 (emphasis omitted).
At step four, the ALJ found that Plaintiff is “unable to perform any past relevant
work.” Tr. at 19 (emphasis and citation omitted). At step five, after considering Plaintiff’s
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age (“44 years old . . . on the alleged disability onset date”), education (“a limited
education”), work experience, and RFC, the ALJ relied on the testimony of the VE and
found that “there are jobs that exist in significant numbers in the national economy that
[Plaintiff] can perform,” Tr. at 19 (emphasis and citation omitted), such as “laundry folder,”
“mail sorter,” and “inspector/hand packager,” Tr. at 20. The ALJ concluded that Plaintiff
“has not been under a disability . . . from August 27, 2014, through the date of th[e
D]ecision.” Tr. at 30 (emphasis and citation omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence.’” Doughty
v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322
(11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less
than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard
is met when there is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Falge, 150 F.3d at 1322 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather,
the entire record is reviewed to determine whether “the decision reached is reasonable
and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991) (citation omitted). The decision reached by the Commissioner must be affirmed
if it is supported by substantial evidence—even if the evidence preponderates against the
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Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th
Cir. 2004) (per curiam).
IV. Discussion
As noted above, Plaintiff takes issue with the ALJ’s analysis of Dr. Pulido’s opinions
and the ALJ’s evaluation of Plaintiff’s subjective complaints. The undersigned addresses
each issue in turn.
A. Dr. Pulido’s Opinions
1. Parties’ Arguments
Plaintiff contends that “[t]he ALJ gave ‘little weight’ to Dr. Pulido’s opinion, even
though it is uncontradicted by any examining source of record, stating that it was not
consistent with the evidence as a whole, ‘particularly the objective findings.’” Pl.’s Mem. at
19 (emphasis and citation omitted). Plaintiff argues that “the ALJ did not offer any details
as to which ‘objective findings’ did not support the opinion.” Id. at 19 (citation omitted).
According to Plaintiff, the ALJ’s discussion of the evidence was “extremely selective.” Id.
at 22.
Responding, Defendant identifies the evidence discussed by the ALJ, with citations
to the record. See Def.’s Mem. at 6-8. In addition, Defendant points to the opinion of Dr.
Robert Steele (the state agency medical consultant who reviewed the evidence at the
reconsideration level), which the ALJ gave “good” weight to. Id. at 8 (citation omitted).
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2. Applicable Law
6
7
The Regulations establish a “hierarchy” among medical opinions that provides a
framework for determining the weight afforded each medical opinion: “[g]enerally, the
opinions of examining physicians are given more weight than those of non-examining
physicians[;] treating physicians[’ opinions] are given more weight than [non-treating
physicians;] and the opinions of specialists are given more weight on issues within the
area of expertise than those of non-specialists.” McNamee v. Soc. Sec. Admin., 164 F.
App’x 919, 923 (11th Cir. 2006) (citing 20 C.F.R. § 404.1527(d)(1), (2), (5) (2006)). The
following factors are relevant in determining the weight to be given to a physician’s opinion:
(1) the “[l]ength of the treatment relationship and the frequency of examination”; (2) the
“[n]ature and extent of [any] treatment relationship”; (3) “[s]upportability”; (4)
“[c]onsistency” with other medical evidence in the record; and (5) “[s]pecialization.” 20
C.F.R. §§ 404.1527(c)(2)-(5), 416.927(c)(2)-(5); see also 20 C.F.R. §§ 404.1527(f),
416.927(f).
8
With regard to a treating physician the Regulations instruct ALJs how to properly
weigh such a medical opinion. See 20 C.F.R. § 404.1527(c)(2). Because treating
6
As noted, the SSA revised the rules regarding the evaluation of medical evidence and
symptoms for claims filed on or after March 27, 2017. See Revisions, 82 Fed. Reg. 5844-01, 5844. Because
Plaintiff filed her claims before that date, the undersigned cites the rules and Regulations applicable to
Plaintiff’s claims, unless otherwise noted.
7
“Medical opinions are statements from physicians or other acceptable medical sources that
reflect judgments about the nature and severity of [a claimant’s] impairment(s), including [the claimant’s]
symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1); see also 20 C.F.R. § 404.1502
(defining “[a]cceptable medical sources”); 20 C.F.R. § 404.1513(a).
8
A treating physician is a physician who provides medical treatment or evaluation to the
claimant and who has, or has had, an ongoing treatment relationship with the claimant, as established by
medical evidence showing that the claimant sees or has seen the physician with a frequency consistent
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physicians “are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s),” a treating physician’s medical
opinion is to be afforded controlling weight if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence” in the record. Id. When a treating physician’s medical opinion is not
due controlling weight, the ALJ must determine the appropriate weight it should be given
by considering the factors identified above (the length of treatment, the frequency of
examination, the nature and extent of the treatment relationship, as well as the
supportability of the opinion, its consistency with the other evidence, and the specialization
of the physician). Id.
If an ALJ concludes the medical opinion of a treating physician should be given less
than substantial or considerable weight, he or she must clearly articulate reasons showing
“good cause” for discounting it. Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302,
1305 (11th Cir. 2018) (citation omitted); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997). Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the
evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with
the treating physician’s own medical records. Hargress, 883 F.3d at 1305 (citation
omitted); Phillips, 357 F.3d at 1240-41; see also Edwards v. Sullivan, 937 F.2d 580, 58384 (11th Cir. 1991); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (stating that a
treating physician’s medical opinion may be discounted when it is not accompanied by
objective medical evidence).
with accepted medical practice for the type of treatment and/or evaluation required for the medical
condition. See 20 C.F.R. § 404.1502.
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An ALJ is required to consider every medical opinion. See 20 C.F.R.
§§ 404.1527(c), 416.927(c) (stating that “[r]egardless of its source, we will evaluate every
medical opinion we receive”). While “the ALJ is free to reject the opinion of any physician
when the evidence supports a contrary conclusion,” Oldham v. Schweiker, 660 F.2d 1078,
1084 (5th Cir. 1981) (citation omitted); see also 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2), “the ALJ must state with particularity the weight given to different medical
opinions and the reasons therefor,” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179
(11th Cir. 2011) (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987)); Moore v.
Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005); Lewis, 125 F.3d at 1440.
3. Dr. Pulido’s Treatment and Opinions
Dr. Pulido is Plaintiff’s primary care physician at Emed Primary Care and Urgent
Care Clinic (“Emed”). The administrative transcript contains more than fifty treatment notes
from Emed dated May 2015 through October 2016. See Tr. at 1367-625. At Emed, Plaintiff
had appointments with Dr. Pulido and with other physicians who were directly supervised
by Dr. Pulido. See Tr. at 1367-625.
In 2015, Dr. Pulido saw Plaintiff on a monthly basis, sometimes multiple times a
month. See Tr. at 1537-40, 1554-62, 1567-625. In July 2015, for example, Plaintiff had six
appointments with Dr. Pulido. See Tr. at 1583-605. In 2016, Dr. Pulido did not see Plaintiff
as often as she did in 2015, but Plaintiff’s treatment at Emed continued to be extensive,
sometimes consisting of multiple visits in one month. See Tr. at 1367-524. For example,
in June 2016, Plaintiff had five appointments. See Tr. at 1410-33.
On October 26, 2015, Dr. Pulido completed a Physical Medical Source Statement
containing opinions regarding the effects of Plaintiff’s physical impairments on Plaintiff's
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ability to perform work-related functions. See Tr. at 1048-50. Dr. Pulido opined as follows.
Plaintiff’s impairments are reasonably consistent with the symptoms and limitations
described in the Medical Source Statement. Tr. at 1048. Plaintiff’s symptoms are severe
enough to constantly interfere with her attention and concentration needed to perform even
simple work tasks during the workday. Tr. at 1048. Plaintiff can walk less than two city
blocks without needing to rest or without severe pain. Tr. at 1049. She can sit and stand
for an hour and ten minutes each. Tr. at 1049. Plaintiff can stand/walk and sit for less than
two hours each in an eight-hour workday. Tr. at 1049. In an eight-hour workday, she needs
to take unscheduled breaks every hour. Tr. at 1049. Each break lasts more than one hour.
Tr. at 1049.
Further, Plaintiff needs to elevate her legs with prolonged sitting. Tr. at 1049.
Plaintiff sometimes needs to use a cane or other assistive device when engaging in
occasional walking and standing. Tr. at 1049. Plaintiff can occasionally lift less than ten
pounds. Tr. at 1049. She cannot lift more than ten pounds. Tr. at 1049. Plaintiff’s
impairments are likely to produce both “good” and “bad” days. Tr. at 1050. As a result of
her impairments and treatment, she would likely be absent from work two days per month.
Tr. at 1050. Plaintiff’s impairments require her to lie down for up to one hour at unscheduled
times during an eight-hour workday. Tr. at 1050.
9
4. Analysis
The ALJ stated the following with regards to Dr. Pulido’s opinions:
[Dr. Pulido] completed a medical source statement and opined [Plaintiff] was
not capable of even sedentary work. However, little weight is given to this
9
In the Medical Source Statement, Dr. Pulido answered “yes” to the question “Is your patient
a malingerer?” Tr. at 1048. In light of the rest of Dr. Pulido’s opinions, it is reasonable to assume her answer
is a typographical error. Further, neither the ALJ nor Defendant mention this answer.
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opinion, as it is not consistent with the evidence as a whole particularly the
objective findings. While [Plaintiff] has limitations, the evidence, as discussed
in the [D]ecision previously, does not support an inability to perform even
sedentary work.
Tr. at 16 (citation omitted).
The evidence the ALJ “discussed in the [D]ecision previously,” Tr. at 16, is scant;
the ALJ laid out in one paragraph some of the voluminous medical evidence of Plaintiff’s
physical impairments. See Tr. at 16. Importantly, the ALJ did not discuss any of the
objective evidence that, according to him, does not support Dr. Pulido’s opinions. The ALJ
stated that “[t]here [is] evidence of multi-level degenerative disk disease in [Plaintiff’s]
cervical and lumbar spine,” but he did not explicitly refer to any objective evidence. Tr. at
16. At the end of the brief paragraph describing the evidence regarding Plaintiff’s physical
impairments, the ALJ cited twelve exhibits, with no page numbers. See Tr. at 16. The
exhibits cited total nearly 900 pages. See Tr. at 311-41, 422-814, 869-937, 952-1003,
1057, 1122-29, 1164-281, 1365-654, 1712-30, 1751-85, 2029-43. Oddly, one of these
exhibits (Exhibit 22F) states that it “has been removed as it pertains to another claimant.”
See Tr. at 1057. The ALJ’s conclusory statement that Dr. Pulido’s opinions are inconsistent
with the “evidence as a whole” and his citation to exhibits in general, without any page
numbers, Tr. at 16, frustrates judicial review. On remand, the ALJ shall support his
conclusions with specific findings, adequate explanations, and specific citations to the
record.
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B. Plaintiff’s Subjective Symptoms
1. Parties’ Arguments
Plaintiff contends the ALJ failed to give “legally sufficient good reasons” to reject
Plaintiff’s subjective complaints. Pl.’s Mem. at 24. According to Plaintiff, the ALJ’s
discussion of Plaintiff’s activities of daily living is “extremely selective.” Id. at 22; see id. at
22-23. Plaintiff asserts that “when an ALJ misstates and/or misrepresents those activities,
such a finding cannot be substantial evidence supporting his decision to deny benefits.”
Id. at 23. Responding, Defendant notes that the ALJ “considered Plaintiff’s statements
about her daily activities.” Def.’s Mem. at 8 (citation omitted). Defendant then summarizes
the ALJ’s findings as to Plaintiff’s activities of daily living, with citations to the record. See
id. at 8-9.
2. Applicable Law
“[T]o establish a disability based on testimony of pain and other symptoms, the
claimant must satisfy two parts of a three-part 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.” Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). “The
claimant’s subjective testimony supported by medical evidence that satisfies the standard
is itself sufficient to support a finding of disability.” Holt, 921 F.3d at 1223.
“When evaluating a claimant’s subjective symptoms, the ALJ must consider such
things as: (1) the claimant’s daily activities; (2) the nature, location, onset, duration,
frequency, radiation, and intensity of pain and other symptoms; (3) precipitating and
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aggravating factors; (4) adverse side-effects of medications; and (5) treatment or
measures taken by the claimant for relief of symptoms.” Davis v. Astrue, 287 F. App’x 748,
760 (11th Cir. 2008) (unpublished) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vi)). To reject a
claimant’s assertions of subjective symptoms, “explicit and adequate reasons” must be
articulated by the ALJ. Wilson, 284 F.3d at 1225; see also Dyer, 395 F.3d at 1210; Marbury
v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992).
The SSA recently issued new guidance to ALJs about how to evaluate subjective
complaints of pain and other symptoms. The SSA has “eliminat[ed] the use of the term
‘credibility’ from [its] sub-regulatory policy, as [the R]egulations do not use this term.” Social
10
Security Ruling 16-3P, 2017 WL 5180304, at *2 (Oct. 25, 2017).
“In doing so, [the SSA
has] clarif[ied] that subjective symptom evaluation is not an examination of an individual’s
character.” Id. Accordingly, ALJs are “instruct[ed] . . . to consider all of the evidence in an
individual’s record when they evaluate the intensity and persistence of symptoms after
they find that the individual has a medically determinable impairment(s) that could
reasonably be expected to produce those symptoms.” Id. “The change in wording is meant
to clarify that [ALJs] aren’t in the business of impeaching claimants’ character; obviously
[ALJs] will continue to assess the credibility of pain assertions by applicants, especially as
such assertions often cannot be either credited or rejected on the basis of medical
evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (emphasis in original).
10
There was a prior version of SSR 16-3P in place at the time of the ALJ’s Decision. See SSR
16-3P, 2016 WL 1119029 (Mar. 16, 2016). The same relevant language quoted in this Opinion and Order
appears in this prior version. See id. at *1.
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3. Analysis
The ALJ found that Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [her] impairments are not consistent with the objective medical evidence.”
Tr. at 16. The ALJ’s rejection of Plaintiff’s subjective symptoms suffers from a number of
critical deficiencies.
The ALJ stated that in assessing Plaintiff’s subjective allegations, he “must
consider” the factors set out in the Regulations. Tr. at 15 (citing 20 C.F.R. §§ 404.1529,
416.929). Upon review of the Decision, however, it is unclear whether the ALJ actually
considered these factors. The ALJ merely concluded that Plaintiff’s statements are
inconsistent with the objective medical evidence without any explanation. See Tr. at 16.
Like the ALJ’s evaluation of Dr. Pulido’s opinions, see supra p. 11, the ALJ’s analysis of
Plaintiff’s subjective symptoms was erroneous because the ALJ failed to explain how the
objective evidence is inconsistent with Plaintiff’s subjective symptoms.
To the extent the ALJ relied on Plaintiff’s daily activities—discussed much later in
the Decision, see Tr. at 18-19—the ALJ failed to consider certain evidence regarding
Plaintiff’s activities. The ALJ found that Plaintiff “cares for a child with cerebral palsy,” Tr.
at 18, but did not recognize Plaintiff’s testimony that she has a nurse that helps her take
care of her daughter during the day from 9:00 AM to 5:00 PM and at night/early morning
from 9:00 PM to 5:00 AM, Tr. at 61; see also Tr. at 243 (stating that “nurse helps [Plaintiff]
care for [her] daughter with disabilities (Total Care)”). Indeed, elsewhere in the Decision,
the ALJ stated that Plaintiff “reported full, active day caring for her daughter after her
daughter’s nurse leaves in the morning” Tr. at 18 (emphasis added). This is not an
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accurate portrayal of Plaintiff’s statements. Moreover, Plaintiff clarified that her husband
also helps her care for her daughter. Tr. at 243.
The ALJ stated that Plaintiff can perform “household chores,” Tr. at 18, but that is
not a complete and accurate portrayal of Plaintiff’s statements and testimony. Although
Plaintiff stated she performs some household chores, such as sweeping and washing
dishes, she also stated that her husband cleans the tub, folds laundry, hangs up clothes,
and does “all the strenuous things, repairs, [and] mowing the lawn.” Tr. at 244. Plaintiff
testified that when she “do[es] some things at home,” she does them at her “own pace.”
Tr. at 60. She said, “I don’t do them at long periods of time; I break in between, as long as
I can do it.” Tr. at 60. Plaintiff stated that her children also do some chores and that they
are “not messy, so it’s not like they do a whole lot, either.” Tr. at 61. Upon review of
Plaintiff’s statements as a whole, it is clear that the household chores she does are minimal
and not inconsistent with her alleged symptoms, she takes numerous breaks while she
does them, and she receives help from others in doing them. Plaintiff’s performance of
“everyday activities of short duration, such as housework” is insufficient. Lewis, 125 F.3d
at 1441. “[T]he ALJ’s discretionary power to determine the credibility of testimony is limited
by his obligation to place on the record explicit and adequate reasons for rejecting that
testimony.” Holt, 921 F.2d at 1223. This, the ALJ failed to do.
Although there is no rigid requirement that the ALJ specifically refer to every piece
of evidence, the ALJ’s failure to meaningfully address Plaintiff’s activities of daily living
constitutes such a broad rejection that judicial review is frustrated. See Dyer, 395 F.3d at
1211. On remand, the ALJ must consider Plaintiff’s daily activities as a whole.
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V. Conclusion
For the foregoing reasons, it is
ORDERED:
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four of
42 U.S.C. § 405(g) and pursuant to § 1383(c)(3), REVERSING the Commissioner’s final
decision and REMANDING this matter with the following instructions:
(A)
Reevaluate the opinions of Dr. Rene Pulido and articulate the reasons
for the weight given to them;
(B)
Reevaluate Plaintiff’s subjective complaints, and if the complaints are
rejected, clearly articulate the reasons for doing so; and
(C)
Take such other action as may be necessary to resolve this matter
properly.
2.
The Clerk is further directed to close the file.
3.
In the event benefits are awarded on remand, Plaintiff’s counsel shall ensure
that any § 406(b) fee application be filed within the parameters set forth by the Order
entered in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures for Applying for Attorney’s
Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)).
DONE AND ORDERED in Jacksonville, Florida on August 14, 2019.
bhc
Copies to:
Counsel of Record
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