Thompson v. Commissioner of Social Security
Filing
23
OPINION AND ORDER reversing the administrative decision and remanding the case for further proceedings. The Clerk is directed to enter judgment and close the file. Signed by Magistrate Judge Thomas B. Smith on 12/29/2016. (EC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CARRIE E. THOMPSON,
Plaintiff,
v.
Case No: 6:15-cv-1891-Orl-TBS
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
Plaintiff brings this action pursuant to the Social Security Act (the “Act”), as
amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the
Commissioner of the Social Security Administration (the “Commissioner”) denying her
claims for disability insurance benefits under the Act. Upon review of the record and after
due consideration, the Commissioner’s final decision is REVERSED and the case is
REMANDED.
Background
Plaintiff was 35 years old on her alleged disability onset date (R.163), with a
college education and work experience as a pay by mail representative, pricing manager
in a grocery store, produce clerk, cashier in a grocery store, receiving manager,
telephone customer service, building cleaner, laborer, and medical technician (R. 179,
197). Plaintiff alleged that she was disabled due to (1) chronic pain in her low back and
Both parties have consented to the exercise of jurisdiction by a magistrate judge
and the matter has been referred in accordance with 28 U.S.C. §636(c) and Fed .R. Civ.
P. 73.
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neck; (2) headaches; (3) pain in her shoulder, left arm, and hand; (4) fibromyalgia; and (5)
fatigue (R. 45-46, 178).
Plaintiff’s application was denied initially and on reconsideration, and she
requested and received an administrative hearing before an Administrative Law Judge
(“ALJ”). The ALJ issued an unfavorable decision on March 28, 2014 (R. 17). Plaintiff’s
request for review was denied by the Appeals Council on September 10, 2015 (R. 1).
Accordingly, the ALJ’s March 2014 decision finding Plaintiff not disabled is the final
decision of the Commissioner.
Having exhausted all available administrative remedies, Plaintiff timely filed this
action (Doc. 1). The parties have filed a Joint Memorandum (Doc. 20), Plaintiff has filed a
Supplemental Memorandum (Doc. 21), and the matter is now ripe for review.
The ALJ’s Decision
When determining whether an individual is disabled, the ALJ must follow the fivestep sequential evaluation process established by the Social Security Administration and
set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). The ALJ must determine
whether the claimant (1) is currently employed; (2) has a severe impairment; (3) has an
impairment or combination of impairments that meets or medically equals an impairment
listed at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform past relevant work;
and (5) retains the ability to perform any work in the national economy. See Phillips v.
Barnhart, 357 F.3d 1232, 1237-1240 (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); Phillips, 357 F.3d at 1241 n.10.
Here, the ALJ performed the required five-step sequential analysis (R. 20-29). At
step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since her
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September 3, 2010 alleged onset date (R. 22). At step two, the ALJ determined that
Plaintiff has the following severe impairments: degenerative disc disease of the cervical
and lumbar spine with radiculopathy, headaches, fibromyalgia, and osteoarthritis of the
bilateral hands (20 CFR 404.1520(c)) (R. 22). At step three, the ALJ found that Plaintiff
does not have an impairment or combination of impairments that medically meets or
equals the severity of any of the impairments listed in 20 CFR Part 404, Subpat1 P,
Appendix 1 (R. 23). Before proceeding to step four, the ALJ decided that Plaintiff had the
residual functional capacity (“RFC”) to perform a range of light work, finding she could:
lift and carry, push or pull, up to 20 pounds occasionally, ten
pounds frequently, stand or walk for up to six hours, and sit for
up to six hours of an eight hour workday. She can
occasionally, balance, stoop, kneel, crouch, and crawl and
occasionally climb ramps or stairs. However, she cannot climb
ladders, ropes, or scaffolds. Further, she should avoid
hazards such as unprotected heights and dangerous
machinery, as well as temperature extremes and full-body
vibration.
(R. 24). At step four, the ALJ found that Plaintiff was not able to perform any of her past
work (R. 27), but at step five, the ALJ concluded that there is other work in the national
economy that Plaintiff could perform, and she was not disabled (R. 27-28).
Standard of Review
The scope of the Court's review is limited to determining whether the ALJ applied
the correct legal standards and whether the Commissioner’s findings are supported by
substantial evidence. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). The Commissioner's findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a scintilla but less than
a preponderance. It is such relevant evidence that a reasonable person would accept as
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adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (citation omitted).
When the Commissioner's decision is supported by substantial evidence the
district court will affirm even if the reviewer would have reached a contrary result as finder
of fact, and even if the reviewer finds that the preponderance of the evidence is against
the Commissioner's decision. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The
district court “may not decide facts anew, reweigh the evidence, or substitute our
judgment for that of the [Commissioner.]” Id. "The district court must view the record as a
whole, taking into account evidence favorable as well as unfavorable to the decision."
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (per curiam); accord Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (the court must scrutinize the entire record to
determine the reasonableness of the factual findings).
Discussion
Plaintiff raises two issues: 1) whether the ALJ properly considered all the evidence
when evaluating her testimony pursuant to SSR 12-2p, given Plaintiff’s diagnosis of
fibromyalgia; and 2) whether the ALJ gave proper weight to the opinions of Plaintiff’s
physicians. The issues are intertwined, due to the nature of the impairment.
SSR 12-2p discusses what an individual must show to establish her fibromyalgia
(“FM”) constitutes a medically determinable impairment (“MDI”). See SSR 12-2p, 2012
WL 3104869, at *2-3. The ruling requires evidence of all of the following: (1) a history of
widespread pain; (2) at least eleven positive tender points or the repeated manifestation
at least six fibromyalgia symptoms; and (3) evidence that other disorders that could cause
the symptoms or signs were excluded. Id. Once it is established that a person has the
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MDI of fibromyalgia, the ruling provides that “we will consider it in the sequential
evaluation process to determine whether the person is disabled.” Id. at *5.
In evaluating a person’s statements about his or her symptoms and functional
limitations, the Commissioner follows a two-step process:
A. First step of the symptom evaluation process. There must
be medical signs and findings that show the person has an
MDI(s) which could reasonably be expected to produce the
pain or other symptoms alleged. FM which we determined to
be an MDI satisfies the first step of our two-step process for
evaluating symptoms.
B. Second step of the symptom evaluation process. Once an
MDI is established, we then evaluate the intensity and
persistence of the person's pain or any other symptoms and
determine the extent to which the symptoms limit the person's
capacity for work. If objective medical evidence does not
substantiate the person's statements about the intensity,
persistence, and functionally limiting effects of symptoms, we
consider all of the evidence in the case record, including the
person's daily activities, medications or other treatments the
person uses, or has used, to alleviate symptoms; the nature
and frequency of the person's attempts to obtain medical
treatment for symptoms; and statements by other people
about the person's symptoms. As we explain in SSR 96-7p,
we will make a finding about the credibility of the person's
statements regarding the effects of his or her symptoms on
functioning. We will make every reasonable effort to obtain
available information that could help us assess the credibility
of the person's statements.
Id. The ruling provides that before an ALJ finds a person with fibromyalgia disabled, the
ALJ should “ensure there is sufficient objective evidence to support a finding that the
person’s impairment(s) so limits the person’s functional abilities that it precludes him or
her from performing any substantial gainful activity.” Id. at *2.
Plaintiff contends that the ALJ failed to comply with this ruling because: 1) the ALJ
ignored the opinion of rheumatologist Dr. Stacy Davis that all other disorders that might
cause similar symptoms were excluded; 2) the ALJ wrongly insisted on objective
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evidence of the impairment; and 3) the ALJ did not consider the entire record, as
required. Upon review, I agree, in part.
Plaintiff’s contention that the ALJ ignored Dr. Davis’ opinion is not accurate. See R.
26 (discussing the opinion of Dr. Davis). The ALJ reviewed and credited Dr. Davis’
diagnosis of fibromyalgia and found that Plaintiff’s fibromyalgia was a medically
determinable severe impairment at step two of the sequential evaluation (R. 22).
But, it is apparent that the ALJ failed to consider the entire record. The ALJ
credited Plaintiff’s allegations of pain and limitation, to some degree, noting that Plaintiff
“clearly” has chronic pain and discomfort and that evidence suggests her pain and
symptoms increase upon seasonal change or colder temperatures (R. 25). Nonetheless,
the ALJ determined that “in analyzing the physical medical evidence of record, the
objective findings in this case are comparatively underwhelming and do not
independently bolster or support the claimant's underlying allegations or overall
testimony.” Id. While this finding, standing alone, would not be sufficient to discount
Plaintiff’s allegations of disabling limitations from her fibromyalgia, the ALJ made
numerous additional findings, noting:
Further, the record shows that the claimant alleges a 15-year
history of low back pain that radiates into her legs, hips, and
lower extremities (Exhibit 3E, p. 3, 4). She also describes an
ongoing history of throbbing neck pain that radiates into her
upper extremities and head, causing headaches (Exhibit 3E,
p. 3). However, the evidence of record indicates that the
claimant performed substantial gainful activity throughout
much of this time period wherein she alleges that such
debilitating pain existed (Exhibit 3D; 4D; 2E, p. 2, 3). In fact,
much of the objective findings relative to her cervical and
lumbar spine existed in 2006, the year of her highest net
earnings over the past 15 years (Exhibit 4D; lF, p. 1, 3).
Consequently, the undersigned finds substantial evidence to
show that despite chronic cervical and lumbar pain, the
claimant has displayed the ability to perform substantial
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gainful activity in spite of chronic pain. Furthermore, the
worsening of pain she reports is not supported by the
objective findings or nature of treatment sought throughout the
record (Exhibit lF, p. 1, 3; 3F, p. 3; 7F; 16F).
Additionally, the treatment options pursued by the claimant
appear to have been relatively successful in restoring or
salvaging functionality to a degree that she can continue
activities and work within reasonable parameters. She has
opted for prescription medication management, specifically
morphine and methadone to treat her chronic pain (Exhibit 7F;
15F; 16F; 19F). Although the treatment record shows some
ups and downs or times of breakthrough pain, overall with
pain medication treatment, she is generally 'stable' and
remains 'functional' with the current and the time-released
morphine medication treatment. Specifically, her response to
medical treatment has been described as "excellent" and
"effective" and or 'stable' (Exhibit 7F, p. 1, 3, 4 - 8; 8F, p. 2;
16F, p. 2). She also has shown a positive response to physical
therapy and trigger point injections (Exhibit 7F, p. l; 16F, p. 4,
6, 7, 9). Notes from January 2013, state that 'she benefits from
present treatment' and that her fibromyalgia symptoms are
'well-controlled' (Exhibit 16F, p. 9). Similarly, for late 2013,
treatment notes show her condition to be 'stable' and find her
to be doing 'reasonably well with present treatment' (Exhibit
19F, p. 5, 6, 9, 10). In light of these findings, the undersigned
finds that with proper treatment and care, the claimant's
functional ability is maintained such that a return to light
exertional work is possible and reasonable.
Moreover, despite her allegations of continuous ever-present
pain, clinical records have on numerous occasions, found her
to be in 'no acute pain or distress', to have no muscle atrophy,
to possess a normal gait and mobility, and to have normal
handgrip strength (Exhibit 5F, p. 1, 3; 10F, p. 11, 12; 17F, p. l
). Interestingly, the claimant has not necessarily adhered to all
medical advice or followed through with referrals from her
physician, which consequently undermines the credibility of
her allegations as to the intensity and persistence of her
symptoms. The claimant alleges debilitating neck and back
pain that radiates essentially all over her body and disabling
headaches; nonetheless, she did not continue or followthrough with a subsequent physical therapy referral, did not
show up or report to Omnicare for nearly a year, and she did
not continue or seek out further interventional painmanagement or therapy, according to clinical notes (Exhibit l
2F; l 4F; 17F). Wherefore, the undersigned finds significant
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evidence to suggest or indicate that the claimant was content
or satisfied with the efficacy of the current medication
management treatment and that such mitigation of pain was
sufficient or adequate to allow daily functioning and the
performance of light exertional activities on a sustained basis.
(R. 25-6).
SSR 12-2p provides: “If objective medical evidence does not substantiate the
person's statements about the intensity, persistence, and functionally limiting effects of
symptoms, we consider all of the evidence in the case record, including the person's daily
activities, medications or other treatments the person uses, or has used, to alleviate
symptoms; the nature and frequency of the person's attempts to obtain medical treatment
for symptoms; and statements by other people about the person's symptoms.” Here, after
finding that objective medical evidence did not corroborate Plaintiff’s allegations, the ALJ
considered the evidence and discredited Plaintiff’s allegations of disabling pain based on:
1) substantial gainful activity throughout much of the time period wherein she alleges
debilitating pain; 2) the nature of treatment sought; 3) the success of that treatment; 4)
lack of follow through on referrals; and 5) findings on examination of no acute pain or
distress and other inconsistencies. In making these findings, it is apparent that the ALJ
did not consider the entire record, as required by SSR 12-2p.
Substantial Gainful Activity
The ALJ relied upon Plaintiff’s earnings record, particularly in 2006, to support the
finding that Plaintiff performed substantial gainful activity throughout much of this time
period, in spite of chronic pain. But, Plaintiff produced evidence from her ex-employer that
verified that during this time period her employer made numerous accommodations for
her impairments—including allowing Plaintiff to lie down in the back of her car for an
extended period during her shift, adjusting her hours to allow for frequent and extended
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breaks, use of special equipment (pillows, cushions, ice for her back), allowance for
positional changes at will, and allowances for frequent absences from work (R. 257-58).
The ALJ did not meaningfully discuss this pertinent evidence 2 which shows that during
this time period, Plaintiff functioned in a real word environment at a level well below her
RFC as determined by the ALJ.
The nature of the treatment sought and results obtained
The ALJ cites to selective portions of the treatment records to support her finding
that Plaintiff was “relatively successful in restoring or salvaging functionality to a degree
that she can continue activities and work within reasonable parameters.” The ALJ relies
on snippets of the treatment notes that suggest Plaintiff was “stable,” “functional” and
doing “reasonably well.” (R. 26). As discussed more thoroughly below, however, the
decision does not reflect that the ALJ considered the entirety of the treatment notes.
The ALJ cites the treatment notes at Exhibits 7F, 8F and 16F as support for her
finding that Plaintiff’s “response to medical treatment has been described as ‘excellent’
and ‘effective’ and or 'stable' (Exhibit 7F, p. 1, 3, 4 - 8; 8F, p. 2; 16F, p. 2).” (R. 26). While
the notes contain those words, the ALJ did not set forth or consider the context of those
words, as explained in the treatment notes. The cited pages, for example, also include
the following findings made by Plaintiff’s long time treating pain management specialist
Dr. Arthur Horn:
•
“Unfortunately, at this point she is essentially nonfunctional and can [not] even do
simple things such as standing for short periods of time without significant
2 The sole reference to this exhibit in the ALJ’s decision is a statement that a “third party attests
that [Plaintiff] must change positions frequently to afford any measure of comfort or pain mitigation. (Exhibit
...17E).” (R. 25). The Court finds this to be an inaccurate summary of the many accommodations the
employer allowed to make employment possible for Plaintiff.
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discomfort.” (R. 318; Ex. 7F, p. 3);
•
“She remained stable but does note that she has been a very modest stability and
improvement” and “she remains limited” (R. 321, Ex. 7F, p. 6);
•
“She remains clinically stable but unfortunately is only doing reasonably well from
a pain management standpoint. She still has a lot [of] breakthrough pain and
functionality for activities of daily life has been met but you cannot due to [sic]
much more on a day-to-day basis” and she is “clearly limited from a functional
standpoint.” (R. 323; Ex. 7F at 8)
•
“Unfortunately she continues to have considerable issues with pain and inability to
function on a day-to-day basis.” (R. 326; Ex. 8F, p. 2);
•
“She remains medically stable but unfortunately has not made much progress in
Selassie. However she remains functional for basic activities of daily life once
again still limited.” (R. 385; Ex. 16F, p. 3).
A finding that a condition is “stable” is not a finding that the condition is not limiting.
Stability over a period of time implies that a condition is no worse and no better. Similarly,
while the record includes sporadic findings of “reasonable control” of her symptoms, such
findings are often accompanied by a clarifying comment that Plaintiff’s fibromyalgia is
under reasonable control “at low-level functioning.” (See R. 400; Ex. 19F p. 6).
The Court recognizes that the ALJ gave other reasons for discrediting Plaintiff’s
statements of limitation, such as a lack of follow through on recommendations for
additional treatment. It is also true that Plaintiff carries the burden to prove she is
disabled. Nonetheless, the Eleventh Circuit has observed that fibromyalgia “often lacks
medical or laboratory signs, and is generally diagnosed mostly on an individual's
described symptoms,” and that the “hallmark” of fibromyalgia is therefore “a lack of
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objective evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.2005) (per
curiam); Somogy v. Comm'r of Soc. Sec., 366 F. App'x 56, 63 (11th Cir. 2010). Due to the
nature of this impairment, once an ALJ determines that a claimant has fibromyalgia, it is
not enough to pluck a word or two out of the record, combine it with a lack of objective
evidence, and pronounce her fit for duty. The ruling requires consideration of “all of the
evidence in the case record.” This includes a fair review of the treatment records and the
statements of third parties, such as Plaintiff’s ex-employer. As the administrative decision
here does not reflect such consideration, remand is warranted.
Although this conclusion is dispositive, the Court notes that Plaintiff has also
objected to the evaluation of the opinions of her physicians. Treating physician Dr. Horn
issued an opinion that Plaintiff was severely limited in her ability to function (R. 356-359).
The ALJ discounted the opinion, finding it to be “in contrast or slightly contradictory to the
history and record of treatment he has rendered over the years,” which “in general finds
the claimant to be responsive to treatment, independent, and functional with stable or
controlled symptoms” (R. 27).
The Eleventh Circuit has held that whenever a physician offers a statement
reflecting judgments about the nature and severity of a claimant’s impairments, including
symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her
impairments, and the claimant’s physical and mental restrictions, the statement is an
opinion requiring the ALJ to state with particularity the weight given to it and the reasons
therefor. Winschel , 631 F.3d at 1178–79 (citing 20 CRF §§ 404.1527(a)(2), 416.927(a)(2);
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).) When evaluating a physician's
opinion, an ALJ considers numerous factors, including whether the physician examined
the claimant, whether the physician treated the claimant, the evidence the physician
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presents to support his or her opinion, whether the physician's opinion is consistent with
the record as a whole, and the physician's specialty. See 20 C.F.R. §§ 404.1527(c),
416.927(c).
Substantial weight must be given to the opinion, diagnosis and medical evidence
of a treating physician unless there is good cause to do otherwise. See Lewis v. Callahan,
125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991);
20 C.F.R. § 404.1527(d). Good cause for disregarding an opinion can exist when: (1) the
opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or
(3) the opinion is conclusory or is inconsistent with the source’s own treatment notes.
Lewis, 125 F.3d at 1440. By contrast, a consultative examiner’s opinion is not entitled to
the deference normally given a treating source. See 20 C.F.R. § 404.1527(c)(2);
Crawford v. Comm'r, of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) (noting a onetime examiner’s opinion is not entitled to controlling weight). Nonetheless, all opinions,
including those of non-treating state agency or other program examiners or consultants,
are to be considered and evaluated by the ALJ. See 20 C.F.R. §§ 404.1527, 416.927,
and Winschel. As remand is required for additional consideration of the treatment
records, the ALJ should revisit her findings with respect to the opinions offered by the
physicians, including Dr. Horn.
Conclusion
Upon consideration of the foregoing:
(1) The Commissioner's decision is REVERSED and this case is REMANDED for
further administrative proceedings consistent with the foregoing.
(2) The Clerk is directed to enter judgment accordingly and CLOSE the file.
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(3) The deadline for Plaintiff to file a motion for attorney’s fees pursuant to 42
U.S.C. § 406(b) shall be thirty (30) days after she receives notice from the Social Security
Administration of the amount of past due benefits awarded.
(4) Upon receipt of such notice, Plaintiff shall promptly email Mr. Rudy and the
OGC attorney who prepared the Commissioner’s brief to advise that the notice has been
received.
DONE and ORDERED in Orlando, Florida on December 29, 2016.
Copies furnished to Counsel of Record
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