Imperial v. Commissioner of Social Security

Filing 22

ORDER overruling 21 the Commissioner's Objections to the Report and Recommendation of the Magistrate Judge; adopting 20 Report and Recommendation; reversing and remanding the final decision of the Commissioner. The Clerk of Court is directed to enter judgment as stated herein and to close the file. Signed by Judge Paul G. Byron on 5/19/2017. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

PAUL C. IMPERIAL,
Plaintiff,
v.

Case No: 6:16-cv-1431-Orl-40GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER
This Social Security appeal comes before the Court on Magistrate Judge Gregory
J. Kelly’s March 28, 2017 Report and Recommendation. (Doc. 20). Magistrate Judge
Kelly recommends that the Commissioner’s final decision be reversed and remanded
pursuant to sentence four of 42 U.S.C. § 405(g). On April 10, 2017, the Commissioner
filed objections to the Magistrate Judge’s recommended disposition. (Doc. 21). Plaintiff
has not responded to the Commissioner’s objections and the time for doing so has
passed. This matter is therefore ripe for review.
I.

BACKGROUND
While working for a cable company at the age of nineteen, Plaintiff was standing

on a ladder when a woman crashed into the ladder with her car, causing Plaintiff to fall
approximately thirty feet to the ground. (R. 202). Plaintiff broke his pelvis and wrist and
suffered a concussion as a result of the fall. (Id.). Thirty years following this accident,
Plaintiff’s injuries continue to plague him, so much so that Plaintiff stopped working on

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October 31, 2012 on account of his condition. 1 (R. 180, 202–203).
On November 30, 2012, at the age of forty-nine, Plaintiff applied for Social Security
Disability Insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. (R.
151–155).

Plaintiff alleges that he suffers from chronic neck and back pain and

hypothyroidism. After conducting a hearing, Administrative Law Judge Bernard Porter
(the “ALJ”) entered a decision on January 8, 2015 denying Plaintiff’s application, finding
that Plaintiff was not disabled and had the residual functioning capacity to perform light,
unskilled work. (R. 7–28). On June 24, 2016, the Appeals Council denied Plaintiff’s
request for review. (R. 1–6). This appeal ensued, and the parties filed their Joint
Memorandum on February 27, 2017. (Doc. 19).
In the Joint Memorandum, Plaintiff challenges the ALJ’s decision on three grounds.
First, Plaintiff asserts that the ALJ failed to adequately weigh and consider the opinion of
his treating physician. Second, Plaintiff contends that the ALJ erred by relying on the
testimony of the vocational expert after posing a hypothetical that did not accurately
reflect Plaintiff’s limitations. Third, Plaintiff claims that the ALJ failed to adequately asses
his credibility concerning his subjective complaints of pain. Plaintiff submits that these
three errors caused the ALJ to reach the incorrect conclusion that Plaintiff is not disabled.
Upon consideration of the parties’ arguments, and after reviewing the
Administrative Record, Magistrate Judge Kelly submitted the instant Report and
Recommendation. Magistrate Judge Kelly concludes that substantial evidence supports
the ALJ’s determinations on the first two grounds raised by Plaintiff, but that the ALJ erred
as to Plaintiff’s third point by failing to adequately assess Plaintiff’s credibility concerning
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The Administrative Record shows that Plaintiff was employed full-time consistently
throughout the fifteen years immediately preceding when he stopped working on
October 31, 2012. Plaintiff worked for his final employer for over ten years. (R. 181).

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his subjective complaints of pain. Consequently, the Magistrate Judge recommends that
the ALJ’s final decision should be reversed and remanded for further proceedings. The
Commissioner objects to Magistrate Judge Kelly’s recommendation.
II.

STANDARDS OF REVIEW
A.

Review of the Magistrate Judge’s Report and Recommendation

A district judge may designate a magistrate judge to hear and determine both
dispositive and non-dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a),
(b). When a magistrate judge has been designated to decide a matter that is dispositive
in nature, as is the case here, the magistrate judge must issue a report to the district judge
specifying the magistrate judge’s proposed findings of fact and recommended disposition.
Fed. R. Civ. P. 72(b)(1).

Any party who disagrees with the magistrate judge’s

recommended decision has fourteen days from the date of the recommendation to seek
the district judge’s review by filing objections to those specific portions of the
recommendation disagreed with. Fed. R. Civ. P. 72(b)(2). The district judge must then
make a de novo determination of each issue to which objection is made. Fed. R. Civ. P.
72(b)(3). De novo review “require[s] independent consideration of factual issues based
on the record.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (per
curiam). The district judge may then accept, reject, or modify the magistrate judge’s
recommendation, receive additional evidence or briefing from the parties, or return the
matter to the magistrate judge for further review. Fed. R. Civ. P. 72(b)(3).
B.

Review of the ALJ’s Decision

In a Social Security appeal, the Court’s review is limited to determining whether
the ALJ’s decision is supported by substantial evidence in the record and is based on
proper legal standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.

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2011). “Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. (quoting
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)).
“[The Court] may not decide the facts anew, reweigh the evidence, or substitute [its]
judgment for that of the [ALJ].” Id. (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8
(11th Cir. 2004)). The ALJ’s decision must be affirmed if it is supported by substantial
evidence, even if the Court finds that the evidence more likely supports a different
conclusion. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
III.

DISCUSSION
The Commissioner objects only to Magistrate Judge Kelly’s conclusion that the

ALJ failed to adequately assess Plaintiff’s credibility concerning his subjective complaints
of pain. The Court limits its analysis accordingly. 2
“To receive disability insurance benefits, a claimant must prove he was disabled
on or before the last date for which he was insured.” Martinez v. Comm’r of Soc. Sec.,
660 F. App’x 787, 791 (11th Cir. 2016) (per curiam). Pertinent to this case, “[p]ain alone
can be disabling.” Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (per curiam).
To that end, the Eleventh Circuit has announced a “pain standard” for ALJs to
apply when determining whether a claimant is disabled because of pain. The pain
standard requires:
(1) evidence that the claimant has an underlying medical
condition; and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that
condition; or (3) that the objectively determined medical

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Upon an independent de novo review of the record, the Court agrees with Magistrate
Judge Kelly’s findings of fact and conclusions of law regarding Plaintiff’s first two
arguments in the Joint Memorandum.

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conditions is of such a severity that it can be reasonably
expected to give rise to the alleged pain.
Marshall v. Comm’r of Soc. Sec., 660 F. App’x 874, 877 (11th Cir. 2016) (per curiam). A
claimant’s subjective complaints of pain that are confirmed by objective medical evidence
will satisfy the pain standard and support a finding of disability. Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995) (per curiam). However, in cases where the claimant attempts
to prove disability solely through subjective testimony about the claimant’s pain, the ALJ
must assess the claimant’s credibility when deciding whether the claimant is disabled.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per curiam).
To assess a claimant’s credibility regarding his subjective complaints of pain, the
ALJ “must consider the entire case record, including the objective medical evidence, the
[claimant’s] own statements about symptoms, statements and other information provided
by treating or examining physicians . . . and other persons about the symptoms and how
they affect the [claimant], and any other relevant evidence in the case record.” SSR 967p, 1 Fed. Reg. 34483-01, 34484, 1996 WL 362209 (July 2, 1996). “If the ALJ decides
not to credit a claimant’s testimony as to [his] pain, [the ALJ] must articulate explicit and
adequate reasons for doing so.” Foote, 67 F.3d at 1561–62. A reviewing court will not
disturb a clearly articulated credibility finding that is supported by substantial evidence.
Id. at 1562. However, a conclusory credibility determination or one that fails to inform the
claimant why he is not believed warrants remand. See id.
In this case, the ALJ found that Plaintiff suffers from an underlying medical
condition, thus satisfying the first part of the pain standard test. (R. 12). While the ALJ
found that Plaintiff’s subjective statements about his pain were not confirmed by objective
medical evidence, the ALJ concluded that Plaintiff’s medical condition is of such severity
that it can be reasonably expected to give rise to the pain Plaintiff claims, thus satisfying

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the second part of the pain standard test. (R. 21). The ALJ’s decision regarding whether
Plaintiff is disabled therefore hinged on an assessment of Plaintiff’s credibility.
In that respect, the ALJ had this to say about Plaintiff’s credibility:
After careful consideration of the evidence, the undersigned
[ALJ] 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
stated in this decision. While the claimant does have a good
work history, and this does bolster his overall credibility, the
objective medical evidence shows some impairments that
would be expected to reduce the claimant’s capacity for heavy
work activities, but would not preclude light exertional level
work on a sustained basis.
The claimant alleges disabling impairments, but a review of
the longitudinal the [sic] medical evidence of record does not
document complications due to the impairments that would be
disabling under governmental guidelines. The claimant
alleged significant restrictions in his ability to perform activities
of daily living, but the severity of impairment alleged by the
claimant is not supported by objective medical evidence. The
objective medical evidence does document a history of back
pain, neck pain, and hypothyroidism. However, objective
diagnostic testing has consistently failed to show significant
abnormalities, and does not corroborate the alleged level of
severity. Additionally, the evidence does not contain
recommendation [sic] for surgical correction for any of the
claimant’s conditions.
In addition to objective medical evidence and limited
treatment, the claimant has several activities [sic] that are
inconsistent with the total inability to work. He is able to do
some household chores, occasionally cook, and go to the
grocery store. The claimant is able to take care of his own
personal hygiene needs, and is able to drive regularly.
(R. 21–22). To summarize, while not entirely clear, the ALJ appears to discount Plaintiff’s
subjective complaints of pain for three reasons: (1) Plaintiff’s alleged pain is not supported
by objective medical evidence, (2) Plaintiff’s “limited treatment,” and (3) Plaintiff engages
in daily activities that belie the extent of the pain he alleges.

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The Court agrees with Magistrate Judge Kelly that the ALJ’s credibility
determination is inadequate and is not supported by substantial evidence in the record.
Regarding the ALJ’s third asserted reason for discrediting Plaintiff’s subjective statements
about his pain, the ALJ mischaracterizes the evidence in the record and departs from the
law concerning consideration of a claimant’s daily activities. The ALJ specifically
references Plaintiff’s “[ability] to do some household chores, occasionally cook, and go to
the grocery store,” along with Plaintiff’s “[ability] to take care of his own personal hygiene
needs [and] drive regularly.” (R. 22). While there is evidence indicating that Plaintiff can
vacuum, dust, do laundry, dress himself, and go to the grocery store, the ALJ omits that
Plaintiff finds it difficult to physically perform these activities, cannot perform these
activities for prolonged periods of time, does not perform these activities regularly, and
cannot perform these activities without experiencing immense pain. (R. 42, 45, 51, 200,
215). While there is evidence that Plaintiff occasionally cooks, the ALJ omits that Plaintiff
cannot cook for a prolonged period of time, does not cook regularly, and cannot complete
the preparation of a meal without taking a break to sit or lie down. (R. 45, 64, 200). While
there is evidence that Plaintiff has the capacity to drive a car, there is no evidence
indicating that Plaintiff “drive[s] regularly” as the ALJ posits; rather, the evidence in the
record shows that Plaintiff finds it painful to drive, avoids driving long distances, and only
occasionally drives his daughter a short distance to or from school, amounting to no more
than fifteen to twenty miles of driving per week. (R. 36, 201, 212). The ALJ additionally
omits that Plaintiff relies almost exclusively on his wife and daughter to perform the
household, cooking, and driving activities that the ALJ uses to discredit Plaintiff’s
subjective complaints of pain. (R. 36, 45, 212, 215). The ALJ ultimately fails to articulate

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why Plaintiff is “not entirely credible” and fails to reconcile the vast amount of record
evidence that contradicts his conclusion.
Moreover, the ALJ departs from the law concerning the consideration of a
claimant’s daily activities. It is certainly true that an ALJ may consider a claimant’s daily
activities when assessing the credibility of the claimant’s subjective statements about his
pain. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (per curiam); Bear v.
Astrue, 838 F. Supp. 2d 1267, 1281 (M.D. Fla. 2011). However, it is wholly improper for
an ALJ to consider such daily activities if they are of a short duration, limited, and not
vigorous. See, e.g., Lafond v. Comm’r of Soc. Sec., No. 6:14-cv-1001-Orl-DAB, 2015 WL
4076943, at *10 (M.D. Fla. July 2, 2015) (finding that ALJ erred by considering evidence
that the claimant drove short distances, washed dishes, prepared meals, shopped for
groceries, and did her own laundry in assessing the claimant’s credibility); Wolfe v.
Comm’r of Soc. Sec., No. 6:11-cv-1316-ORL-DAB, 2012 WL 3264916, at *6 (M.D. Fla.
Aug. 10, 2012) (finding that ALJ erred by considering evidence that the claimant went
grocery shopping, prepared meals, and performed household chores in assessing the
claimant’s credibility); cf. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997) (“Nor
do we believe that participation in everyday activities of short duration, such as
housework . . . disqualifies a claimant from disability or is inconsistent with the limitations
recommended by . . . treating physicians.”). Here, there is no evidence in the record
indicating that Plaintiff is able to vigorously complete household chores, cook, shop for
groceries, or drive for prolonged periods of time and without limitation; in fact, all of the
evidence in the record points to the opposite conclusion. The ALJ therefore erred by
considering these particular daily activities when assessing Plaintiff’s credibility.

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Regarding the ALJ’s second asserted reason for discrediting Plaintiff’s subjective
statements about his pain, the ALJ does not explain what is meant by Plaintiff’s “limited
treatment” or what evidence in the record supports his conclusion that “limited treatment”
undermines Plaintiff’s complaints of pain. This inadequacy alone is enough to find that
the ALJ erred by considering “limited treatment.” To the extent the ALJ’s reference might
mean that he believes Plaintiff pursued and/or received limited medical treatment for his
back and neck injuries and hypothyroidism and that this undercuts Plaintiff’s contention
that the pain he experiences is disabling, the ALJ’s conclusion is not supported by any
evidence in the record. To the contrary, the record is well-documented that Plaintiff has
pursued and received consistent and extensive medical and pharmacological treatment
for his conditions since at least 1999. (R. 40–42, 52–53, 202–203, 234–235, 236, 240–
250, 251–292, 293–296, 297–309, 314–325, 326–332).
After excluding the ALJ’s second and third reasons supporting his credibility
determination, the only reason remaining is that Plaintiff’s alleged pain is not supported
by objective medical evidence.

However, while the Court finds that this reason is

supported by substantial evidence in the record, it is well-established that an ALJ may not
rely on the absence of objective medical evidence confirming the pain alleged as the sole
reason for rejecting a claimant’s subjective complaints about pain. 20 C.F.R.
§ 404.1529(c)(2); Manzo v. Comm’r of Soc. Sec., 408 F. App’x 265, 268 (11th Cir. 2011)
(per curiam). Without more, the ALJ failed to adequately assess Plaintiff’s credibility.
In sum, the ALJ erred in assessing the credibility of Plaintiff’s subjective complaints
about his pain. Two of the ALJ’s three stated reasons for discrediting Plaintiff are not
supported by substantial evidence, are not adequately articulated, or depart from the law.
And the ALJ’s third reason cannot legally serve as the ALJ’s only reason for discrediting

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Plaintiff’s testimony. The ALJ’s decision must therefore be reversed and remanded for
further proceedings.
IV.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
1. The Commissioner’s Objections to the Report and Recommendation of the
Magistrate Judge (Doc. 21) are OVERRULED.
2. The Magistrate Judge’s March 28, 2017 Report and Recommendation
(Doc. 20) is ADOPTED and CONFIRMED and is made a part of this Order.
3. The final decision of the Commissioner (R. 7–28) is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).
4. The Clerk of Court is DIRECTED to enter the following Judgment:
Judgment is entered in favor of Plaintiff, Paul C. Imperial,
and against Defendant, Commissioner of Social Security.
The final decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C.
§ 405(g).
5. The Clerk of Court is thereafter DIRECTED to close the file.
DONE AND ORDERED in Orlando, Florida on May 19, 2017.

Copies furnished to:
The Honorable Magistrate Judge
Counsel of Record

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