Hill v. Commissioner of Social Security
Filing
23
OPINION AND ORDER. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 9/20/2017. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAMMY HILL,
Plaintiff,
v.
Case No: 8:16-cv-1899-T-DNF
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.1
_____________________________
OPINION AND ORDER
Plaintiff, Tammy Hill, seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“SSA”) denying her claim for Supplemental Security Income
(“SSI”). The Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.”
followed by the appropriate page number), and the parties filed a joint memorandum setting forth
their respective positions. For the reasons set out herein, the decision of the Commissioner is
REVERSED AND REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §
405(g).
I.
Social Security Act Eligibility, Standard of Review, Procedural History, and the
ALJ’s Decision
A. Social Security Act Eligibility
The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
1
Nancy A. Berryhill became the Acting Commissioner of the Social Security on January 23, 2017.
Pursuant to Fed. R. Civ. P. 25(d)(1), Nancy A. Berryhill is substituted as the defendant in this case.
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 20 C.F.R. §§ 404.1505-404.1511, 416.905-416.911.
B. Standard of Review
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 and is such relevant evidence
as a reasonable person would accept as adequate support to a conclusion. Even if the evidence
preponderated against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.” Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). In conducting this review, this Court may not reweigh the evidence
or substitute its judgment for that of the ALJ, but must consider the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).
The Court reviews de novo the conclusions of law made by the
Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
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The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that she is not undertaking substantial gainful
employment.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §
404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, she will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that she is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit her physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that her impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If she meets this burden, she will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that her impairment meets or equals one of the
impairments listed in Appendix 1, she must prove that her impairment prevents her from
performing her past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of her past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform her past relevant work, then
she will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
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the claimant is capable of performing other work, she will be found not disabled. Id.
In
determining whether the Commissioner has met this burden, the ALJ must develop a full and fair
record regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d
1200, 1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination.
The first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the
use of a vocational expert (“VE”). Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Only after the Commissioner meets this burden does the burden shift back to the claimant to show
that she is not capable of performing the “other work” as set forth by the Commissioner. Doughty
v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff protectively filed an application for SSI on July 5, 2012, alleging a disability onset
date of April 1, 2012. (Tr. 237-42, 279). Plaintiff’s application was denied initially on August 29,
2012, and on reconsideration on November 2, 2012. (Tr. 156-62, 166-71). Plaintiff requested a
hearing and one was held before Administrative Law Judge Jonathan Baird (“the ALJ”) on July
28, 2014. (Tr. 19-77). On October 1, 2014, the ALJ entered a decision finding that Plaintiff was
not disabled. (Tr. 133-53). Plaintiff requested review of this decision and the Appeals Council
denied Plaintiff’s request on May 3, 2016. (Tr. 1-6). Plaintiff initiated the instant action by
Complaint (Doc. 1) on June 30, 2016. The parties having filed a joint memorandum setting forth
their respective positions, this case is ripe for review.
D. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since July 5, 2012, the alleged onset date. (Tr. 138). At step two, the
ALJ found that Plaintiff had the following severe impairments: low back pain, temporomandibular
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joint, obesity, headaches, Major Depressive Disorder, and a cognitive disorder. (Tr. 138). At step
three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that
meets or medically equals the severity of any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 138).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to
perform sedentary work as defined in 20 CFR 416.967(a) except the
claimant is limited to occasional balancing, stooping, kneeling, crouching
and crawling. The claimant is restricted from climbing ladders, ropes, or
scaffolds, but may occasionally climb ramps or stairs. The claimant is
limited to frequent fingering, handling and reaching bilaterally. The
claimant must avoid work environments with extreme cold and wetness.
The claimant is limited to simple, routine, repetitive tasks, and cannot
understand, remember, or carry out detailed instructions. The claimant can
tolerate no more than occasional proximity to and/or interaction with the
general public. Work must be in a low stress job, defined as only
occasional decision making and occasional changes in work setting.
(Tr. 140). At step four, the ALJ found that Plaintiff is unable to perform her past relevant work as
a department store stocker, convention service worker, and assistant. (Tr. 146).
At step five, the ALJ found that considering Plaintiff’s age, education, work experience and
RFC, there are jobs that exist in significant numbers in the national economy Plaintiff can perform.
(Tr. 146). Relying on the testimony of a vocational expert, the ALJ found that could perform the
jobs of table worker, bench hand, and surveillance system monitor. (Tr. 147). The ALJ concluded
that Plaintiff was not under a disability since July 5, 2012, the date the application was filed. (Tr.
147).
II.
Analysis
Plaintiff raises three issues on appeal: (1) whether the ALJ properly considered the
combination of Plaintiff’s impairments; (2) whether the ALJ properly considered Plaintiff’s
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credibility and subjective complaints; and (3) whether the ALJ’s RFC and hypothetical question
to the VE was supported by substantial evidence.
The Court begins with the second raised issue, i.e., whether the ALJ properly considered
Plaintiff’s credibility and subjective complaints.
Plaintiff contends that the ALJ erred by
repeatedly citing to the credibility finding contained in a previous unfavorable decision entered by
ALJ Richard Oullette on April 2, 2010. (Doc. 20 p. 25). Plaintiff argues that it was improper for
the ALJ to rely on the credibility finding made by an ALJ rendered two years prior to the
adjudicated period at issue in this case. (Doc. 20 p. 26).
Defendant argues that the ALJ properly determined that Plaintiff’s statements about the
intensity and persistence of her symptoms were not credible given that: (1) Plaintiff’s treating
sources did not recommend any restrictions, (2) Plaintiff failed to follow up with some medical
recommendations, and (3) Plaintiff misrepresented her work history. (Doc. 20 p. 35).
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(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.3d 1221, 1223 (11th Cir. 1991)).
After an ALJ has considered a plaintiff’s complaints of pain, the ALJ may reject them as
not credible, and that determination will be reviewed to determine if it is based on substantial
evidence. Moreno v. Astrue, 366 F. App’x 23, 28 (11th Cir. 2010) (citing Marbury v. Sullivan,
957 F.2d 837, 839 (11th Cir. 1992). If an ALJ discredits the subjective testimony of a plaintiff,
then he must “articulate explicit and adequate reasons for doing so. [citations omitted] Failure to
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articulate the reasons for discrediting subjective testimony requires, as a matter of law, that the
testimony be accepted as true.” Wilson v. Barnhart, 284 F.3d at 1225. “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)). The factors an ALJ
must consider in evaluating a plaintiff’s subjective symptoms are: “(1) the claimant's daily
activities; (2) the nature and intensity of pain and other symptoms; (3) precipitating and
aggravating factors; (4) effects of medications; (5) treatment or measures taken by the claimant for
relief of symptoms; and other factors concerning functional limitations.” Moreno v. Astrue, 366
F. App’x. at 28 (citing 20 C.F.R. § 404.1529(c)(3)).
In this case, the Court finds that the ALJ’s finding that Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of these symptoms are not entirely credible is not
supported by substantial evidence. The Court agrees with Plaintiff that it was improper for the
ALJ to rely so heavily upon the findings of ALJ Oullette in the April 2, 2010 unfavorable decision.
In the instant decision, while considering Plaintiff’s credibility, the ALJ devoted three paragraphs
to ALJ Oullette’s findings concerning Plaintiff’s credibility:
The undersigned also acknowledges the previous denial by Administrative
Law Judge Richard Oullette in April 2010, two years prior to the
claimant’s motor vehicle accident. At the time, Judge Oullette outlined the
claimant’s similar allegations, including an ability to walk, stand, or sit for
long, or lift more than ten pounds, as well as her false testimony related to
work activity, that she was apparently doing while she had her alleged
limitations. Judge Oullette also noted that multiple treating sources felt the
claimant was magnifying her symptoms. Moreover, the claimant was
making similar allegations four years prior to her motor vehicle accident.
Whereas several practitioners questioned the claimant’s honesty and
suspected symptom magnification, and the claimant was working at
substantial gainful activity levels. Judge Oullette found the claimant’s
allegations were not credible (Exhibit C1A). Neither objective medical
evidence, nor the testimony of the claimant, establishes that the claimant’s
ability to function has been severely impaired as to preclude all types of
work activity.
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....
In the previous denial by Administrative Law Judge Richard Oullette in
April 2010, the claimant also complained of hallucinations. A
psychological evaluation at the time included suspicion of malingering.
Judge Oullette mentioned that several practitioners questioned the
claimant’s honesty and suspected symptom magnification, and the
claimant was working at substantial gainful levels. As previously noted,
Judge Oullette found the claimant’s allegations were not credible (Exhibit
C1A).
....
The undersigned notes the previous denial by Administrative Law Judge
Richard Oullette in April 2010, two years prior to the claimant’s motor
vehicle accident. As previously mentioned, Judge Oullette noted that
multiple treating sources felt the claimant was magnifying her symptoms
and found the claimant’s allegations were not credible (Exhibit C1A).
While the undersigned notes that the claimant was since involved in a
motor vehicle accident, and she does have significant degenerative disc
disease, she was reporting similar symptoms prior to the motor vehicle
accident. The undersigned is not persuaded that the claimant is unable to
do any type of work.
(Tr. 143-145).
By the ALJ’s own admission, ALJ Oullette’s credibility finding was made before
Plaintiff’s April 2012 motor vehicle accident which, the record shows, “aggravated her
degenerative symptoms.” (Tr. 142). Given the new evidence since ALJ Oullette made his
credibility finding, it is ambiguous at best as to how his finding relates to Plaintiff’s credibility in
the instant case. Evidently, the ALJ found that Plaintiff’s credibility had increased, assessing an
RFC of a limited range of sedentary work, while ALJ Oullette had found only an RFC of a limited
range of light work. While the ALJ notes that ALJ Oullette found that some practitioners suspected
symptom magnification, the ALJ fails to identify this evidence in the record himself, relying solely
on ALJ Oullette’s findings. It is unclear if these practitioners’ findings are even present in the
current record.
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Defendant contends that the ALJ cited ALJ Oullette’s decision “to show Plaintiff had
alleged symptoms similar to those alleged in the current matter and did so while she continued to
work.” (Doc. 20 p. 31, footnote 5). It is unclear, however, how this fact is relevant to the instant
case. In the previous case, Plaintiff had alleged an onset date in 2003 but her work history showed
that she had performed substantial gainful activity through 2009. (Tr. 84-85). ALJ Oullette found
that Plaintiff’s was not credible, in part, because of this inconsistency. (Tr. 86-92).
In this case, however, Plaintiff has alleged that she became disabled on April 1, 2012. (Tr.
237). The record indicates that Plaintiff had no earnings for 2010 through 2014. (Tr. 277). The
fact that Plaintiff misreported her earnings through 2009 sheds little light on Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of her symptoms since April 1, 2012,
especially in light of the automobile accident which aggravated her degenerative symptoms.
Defendant also contends that the ALJ “only mentioned” ALJ Oullette’s in three paragraphs
in the decision and did not treat ALJ Oullette’s decision as medical evidence. (Doc. 20 p. 31). The
length of the block quotes above demonstrates the depth in which the ALJ considered ALJ
Oullette’s findings. The fact that the ALJ cited to ALJ Oullette’s decision three times demonstrates
the importance the ALJ placed in this previous credibility finding, even if he did not treat it as a
medical opinion. The ALJ erred by basing his credibility finding on ALJ Oullette’s credibility
finding. Upon remand, the Court will require the ALJ to re-evaluate Plaintiff’s credibility and to
perform further proceedings as deemed necessary.
As the ALJ’s error in analyzing Plaintiff’s credibility is interrelated with the remaining
issues, the Court will defer from addressing them at this time.
III.
Conclusion
The decision of the Commissioner is REVERSED AND REMANDED pursuant to
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sentence four of Section 405(g). The Clerk of the Court is directed to enter judgment consistent
with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on September 20, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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