SAMETINI v. COLVIN

Filing 16

MEMORANDUM ORDER. Judgment will be entered in favor of pla. The decision of the dft Commissioner is REVERSED and pla's application for Disability Insurance Benefits is GRANTED. The court reserves jurisdiction for sixty (60) days in the event a motion for attorney's fees is filed. Signed by MAGISTRATE JUDGE CHARLES J KAHN, JR on March 18, 2014. (kvg)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SHEREE C. SAMETINI,
Plaintiff,
v.

Case No. 3:13cv107/CJK

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
____________________________________/
MEMORANDUM ORDER
This case is before the court pursuant to 42 U.S.C. § 405(g) for review of a
final determination of the Commissioner of Social Security (“Commissioner”)
denying Sheree C. Sametini’s application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34. The parties
have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73 for all proceedings in this case, including entry
of final judgment. Upon review of the record before this court, I conclude that the
findings of fact and determinations of the Commissioner are not supported by
substantial evidence and that the proper legal standards were not applied. The
decision of the Commissioner, therefore, will be reversed and the plaintiff will be
awarded benefits.
ISSUES ON REVIEW
Plaintiff, who will be referred to as claimant, plaintiff, or by name, raises four
issues. She claims: 1) the Administrative Law Judge (“ALJ”) erred by failing to pose
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a proper hypothetical question to the vocational expert; 2) the ALJ erred in finding
that she had transferable skills from her past relevant work as a file clerk; 3) the ALJ
failed to properly assess her credibility; and 4) the ALJ erred by rejecting the opinions
of her treating physicians and rendering a residual functional capacity assessment that
is not supported by the medical evidence.
PROCEDURAL HISTORY
The claimant filed her application for DIB on May 5, 2010, alleging disability
beginning on June 15, 2004. T. 161.1 Plaintiff’s claim initially was denied. T. 10207. Claimant appeared before an Administrative Law Judge (“ALJ”) for a hearing on
September 13, 2011, during which she amended her alleged onset date to December
8, 2007, her fiftieth birthday. T. 73-92. On October 19, 2011, the ALJ issued a
decision denying plaintiff’s claim for benefits. T. 56-72. Claimant petitioned the
Appeals Council of the Social Security Administration for a review of the ALJ’s
decision. T. 50-52. The Appeals Council denied claimant’s request for further
review; as a result, the ALJ’s decision became the final determination of the
Commissioner. T. 1-14.
FINDINGS OF THE ALJ
In her written decision, the ALJ made a number of findings relative to the
issues raised in this appeal:
•

Claimant has the following severe impairments: fibromyalgia, myofascial

pain, fatigue, idiopathic torsion dystonia, spasmodic torticollis, migraine headaches,

1

The administrative record, as filed by the Commissioner, consists of ten volumes (docs. 101 through 10-10), and has 595 consecutively numbered pages. References to the record will be by
“T.,” for transcript, followed by the page number.
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cervical degenerative disc disease, hypothyroidism, and osteoarthritis of the sacroilia
joints and lumbar spine. T. 58.
•

Claimant 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 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526).
T. 59.
• Claimant has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. 404.1567(a) except that she can sit for six hours out of eight,
walk for two hours out of eight, and stand for two hours out of eight. She also must
have a sit/stand option at her place of employment. T. 60.
• Claimant is unable to perform any past relevant work (20 C.F.R. 404.1565).
T. 65.
• Claimant was born on December 8, 1957, and was 46 years old on the initial
alleged disability onset date; as a result, she is defined as an individual closely
approaching advanced age (20 C.F.R. 1563). T. 65.
•

Claimant has acquired work skills from past relevant work (20 C.F.R.

404.1568). T. 65.
•

Considering claimant’s age, education, work experience, and residual

functional capacity, claimant has acquired work skills from past relevant work that
are transferrable to other occupations with jobs existing in significant numbers in the
national economy (20 C.F.R. 404.1569, 404.1569(a), and 404.1568(d)). T. 65-66.
• Claimant has not been under a disability, as defined in the Social Security
Act, from June 15, 2004, through the date of the decision (20 C.F.R. 404.1520(g)).
T. 66.
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STANDARD OF REVIEW
A federal court reviews a Social Security disability case to determine whether
the Commissioner’s decision is supported by substantial evidence and whether the
ALJ applied the correct legal standards. See Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991)
(“[T]his Court may reverse the decision of the [Commissioner] only when convinced
that it is not supported by substantial evidence or that proper legal standards were not
applied.”). Substantial evidence is “‘such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)).
With reference to other standards of review, the Eleventh Circuit has said that
“‘[s]ubstantial evidence is more than a scintilla . . . .’” Somogy v. Comm’r of Soc.
Sec., 366 F. App’x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at1439).
Although the ALJ’s decision need not be supported by a preponderance of the
evidence, therefore, “it cannot stand with a ‘mere scintilla’ of support.” See Hillsman
v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Even if the evidence preponderates
against the Commissioner’s decision, the decision must be affirmed if supported by
substantial evidence. See Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
When reviewing a Social Security disability case, the court “‘may not decide
the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
[Commissioner] . . . .’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). A
reviewing court also may not look “only to those parts of the record which support
the ALJ[,]” but instead “must view the entire record and take account of evidence in
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the record which detracts from the evidence relied on by the ALJ.” See Tieniber v.
Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). Review is deferential to a point, but
the reviewing court conducts what has been referred to as “an independent review of
the record.” See Flynn v. Heckler, 768 F.2d. 1273 (11th Cir. 1985); see also Getty ex
rel. Shea v. Astrue, No. 2:10–cv–725–FtM–29SPC, 2011 WL 4836220 (M.D. Fla.
Oct. 12, 2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011 WL 861785
(M.D. Fla. Feb. 28, 2011).2
The Social Security Act defines a disability as an “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). To qualify as a disability, the physical or mental impairment must be
so severe that the plaintiff not only is unable to do her previous work, “but cannot,
considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a
disability claim in five steps:
1. If the claimant is performing substantial gainful activity, she is not disabled.
2.

If the claimant is not performing substantial gainful activity, her

impairments must be severe before she can be found disabled.

2

The Eleventh Circuit not only speaks of an independent review of the administrative record,
but it also reminds us that it conducts a de novo review of the district court’s decision on whether
substantial evidence supports the ALJ’s decision. See Ingram v. Comm'r of Soc. Sec. Admin., 496
F.3d 1253, 1260 (11th Cir. 2007); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
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3. If the claimant is not performing substantial gainful activity and she has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if her impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4. If the claimant’s impairments do not prevent her from doing her past
relevant work, she is not disabled.3
5. Even if the claimant’s impairments prevent her from performing her past
relevant work, if other work exists in significant numbers in the national economy
that accommodates her residual functional capacity and vocational factors, she is not
disabled.
“[R]esidual functional capacity is the most [claimant] can still do despite
[claimant’s] limitations.”4 20 C.F.R. § 404.1545(1). The ALJ establishes residual
3

Claimant bears the burden of establishing a severe impairment that keeps her from
performing her past work. Chester v. Bowen, 792 F. 2d 129, 131 (11th Cir. 1986).
4

In addition to this rather terse definition of residual functional capacity, the Regulations
describe how the Commissioner makes the assessment:
(3) Evidence we use to assess your residual functional capacity. We will assess your
residual functional capacity based on all of the relevant medical and other evidence.
In general, you are responsible for providing the evidence we will use to make a
finding about your residual functional capacity. (See § 404.1512(c).) However,
before we make a determination that you are not disabled, we are responsible for
developing your complete medical history, including arranging for a consultative
examination(s) if necessary, and making every reasonable effort to help you get
medical reports from your own medical sources. (See §§ 404.1512(d) through (f).)
We will consider any statements about what you can still do that have been provided
by medical sources, whether or not they are based on formal medical examinations.
(See § 404.1513.) We will also consider descriptions and observations of your
limitations from your impairment(s), including limitations that result from your
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functional capacity, utilizing the impairments identified at step two, by interpretation
of (1) the medical evidence, and (2) the claimant’s subjective complaints (generally
complaints of pain). Residual functional capacity is then used by the ALJ to make
the ultimate vocational determination required by step five.5 As the Eleventh Circuit
has explained,
[i]n practice, the burden temporarily shifts at step five to
the Commissioner. The Commissioner must produce
evidence that there is other work available in significant
numbers in the national economy that the claimant has the
capacity to perform. In order to be considered disabled, the
claimant must then prove that [s]he is unable to perform
the jobs that the Commissioner lists. The temporary
shifting of the burden to the Commissioner was initiated by
the courts, and is not specifically provided for in the
statutes or regulations.
Doughty v. Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001); see Brown v. Apfel, 192
F.3d 492, 498 (5th Cir. 1999) (quoting Walker v. Bowen, 834 F.2d 635, 640 fn.3 (7th
Cir. 1987) (“The shifting of the burden of proof is not statutory, but is a long-standing
judicial gloss on the Social Security Act.”)). Often, both the medical evidence and
the accuracy of a claimant’s subjective complaints are subject to a degree of conflict
and that conflict leads, as in this case, to the points raised on judicial review by

symptoms, such as pain, provided by you, your family, neighbors, friends, or other
persons. (See paragraph (e) of this section and § 404.1529.)[.]
20 C.F.R. § 404.1545(a)(3).
5

“Before we go from step three to step four, we assess your residual functional capacity.
(See paragraph (e) of this section.) We use this residual functional capacity assessment at both step
four and step five when we evaluate your claim at these steps.” 20 C.F.R. § 404.1520(a)(4).
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disappointed claimants.
FACT BACKGROUND AND MEDICAL HISTORY6
At the time of the hearing before the ALJ, the plaintiff was fifty-three years old.
T. 78. She was separated from her husband and living with a friend . T. 78. She had
completed two years of college and previously worked as a housekeeper, jewelry
salesperson, sales clerk, and file clerk but had been unemployed since December 31,
2007.7 T. 79-81, 88. According to her testimony, plaintiff was unable to work due
to severe pain and fatigue, which made it difficult for her to be “up and about” for
more than a few hours a day. T. 81-83. She also had difficulty concentrating and
needed to lie down for an hour at a time two to four times a day. T. 82-85. Plaintiff
stated that she has fibromyalgia, chronic fatigue syndrome, “something with [her]
neck,” and spasmodic torticollis.8 T. 82. Plaintiff also stated that she recently was
diagnosed with autoimmune thyroid disease. T. 82. She testified that her body feels
inflamed and achy, as if she has a bad flu and needs to go to bed.” T. 83. Her
symptoms are exacerbated by too much or too little activity and insufficient sleep.
T. 83. With sleep medication, claimant “generally sleep[s] pretty well,” although she

6

The recitation of medical and historical facts of this case, as set out below, is based on the
court’s independent review of the record. Although intended to be thorough and to provide an
overview of the claimant’s history of care and treatment, the synopsis of medical evidence will be
supplemented as necessary in the Analysis section.
7

Prior to discontinuing her employment, the plaintiff was a self-employed housekeeper and
worked approximately five hours per day, three to four days a week. T. 174-77, 193, 195.
8

Spasmodic torticollis, also known as cervical dystonia, “is a painful condition in which your
neck muscles contract involuntarily, causing your head to twist or turn to one side.”
http://www.mayoclinic.org/diseases-conditions/spasmodic-torticollis/basics/definition/con-20028
215. It also can cause your head to uncontrollably tilt forward or backward. Id.
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gets up two to three times a night. T. 83.
Plaintiff explained that her conditions “make [her] so fatigued and in so much
pain that [her] day is a constant juggling act of how much [she] can accomplish, or
what [she] can do in a day.” T. 82. “No two days are alike.” T. 82. Although
plaintiff “used to have more good days than bad days,” in the past few years, plaintiff
has had “more bad days than good days.” T. 82. She typically wakes up in the
morning in a lot of pain and fatigued. T. 82-83. She eats breakfast, takes pain
medication, and then goes back to bed “until the pain subsides enough to get up and
do anything.” T. 82-83. Once plaintiff is able to get out of bed, which generally is
after an hour or so of lying down, she takes a shower and gets dressed. T. 83. When
able, she does “a few things around the house,” visits with her daughter, and “maybe
go[es] to lunch with a friend.” T. 83. Although she has to work around her
condition, claimant is able to tend to her own needs by keeping things “pretty short
and brief.” T. 84. She drives and goes to church as often as possible, which is
approximately twice a month. T. 84. When plaintiff goes to church, she typically
attends only the worship service and not Sunday school. T. 84. Claimant testified
that she engages in few or no social activities. T. 84. In fact, plaintiff attributes her
martial problems to her inability to have a social life.9 T. 86. When asked if she
watches television, reads, or plays on the computer while lying down, plaintiff
responded that she does nothing other than “concentrate on getting out of pain” and

9

Plaintiff testified that her first husband, to whom she was married almost twenty years,
“became so tired of [her] not being able to participate much in social activities that he found
somebody else.” T. 86. Plaintiff’s second husband, to whom she had been married for almost fifteen
years, was also “disillusioned with [her] ability to have a social life,” which “create[d] a lot of
problems.” T. 86
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perhaps sleep a bit T. 84. Claimant has difficulty concentrating and making
decisions because she “can’t think clearly enough because of the pain.” T. 85.
Claimant also has a hard time understanding instructions, although she “really tr[ies]
hard to concentrate and comprehend as much as [she] can.” T. 85. When asked if she
takes anything for depression, plaintiff testified that she takes Effexor, but that it is
for pain and fatigue. T. 85.
The ALJ asked the plaintiff about her past work – in particular, her work as a
medical records clerk in 1995 and 1996. T. 80-81. Claimant testified that she worked
at a doctor’s office for approximately one year, pulling and re-shelving files and
making copies of records for insurance purposes. T. 81. Plaintiff quit her job as a file
clerk because she “wasn’t getting paid very much at all because it didn’t require a lot
of skill.” T. 81. When asked if she could work again as a file clerk, plaintiff testified
that she could not “because being up and about for more than a couple, two or three
hours a day is too much for [her].” T. 81. Plaintiff testified that she “had done
everything [she] needed to keep working” but got to the point that she would “just
work a few hours and come home and not be able to do anything else.” T. 80.
Claimant explained that she was working full-time as a jewelry salesperson when she
had to cut back her hours, ultimately to two days a week. T. 80. It was as that point
that claimant became a housekeeper “because [she] could do something for a couple
hours and make what [she] was making at eight hours in the retail sales.” T. 80.
Claimant also testified that she worked as a housekeeper because her doctor advised
her to move and movement kept her “body from hurting so badly.” T. 80. Plaintiff
soon discovered, however, that she could not perform housekeeping work even a
couple of hours a day. T. 80.
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A vocational expert, Eric Anderson, also testified at the hearing. T. 86.
Anderson confirmed the plaintiff’s relevant work history, testifying that she worked
as a cleaner/housekeeper, which is classified as light, unskilled work; jewelry
salesperson, which is classified as light and skilled work; sales clerk, which is
classified as light and semiskilled; and file clerk, which is classified as light and
semiskilled. T. 87-88. Anderson also confirmed that plaintiff performed each job as
it generally is performed. T. 88. When asked whether any of claimant’s past relevant
work would provide skills that could be transferred to sedentary work, Anderson
responded “[n]o, ma’am.” T. 88. The ALJ then asked Anderson about the skills
required of a file clerk, which Anderson characterized as “[j]ust being able to put
together files.” T. 88. The ALJ inquired as to whether a file clerk would be required
to operate office equipment, such as a copy machine, and Anderson replied in the
affirmative. T. 88. The ALJ then asked whether a file clerk would be required to
answer a telephone. T. 88. Anderson explained that “there can sometimes be an
overlap between the work of a file clerk and a receptionist. So there is sometimes a,
some mix match in the duties and functions.” T. 88-89. The ALJ asked about the
classification of a receptionist, which Anderson testified was sedentary and
semiskilled. T. 89. When asked if a receptionist would be required to have skills not
required of a file clerk, Anderson responded that “[g]enerally speaking they tend to
be very similar in capacities as far as – I mean there is going to be answering the
phone and some light computer work.” T. 89. The ALJ then said “[b]ut you would
still be doing that as a file clerk too, is that right?” T. 89. Anderson responded “[i]t’s
a possibility. Generally the same types of skills are required for both jobs.” T. 89.

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The ALJ asked why the skills would not transfer from a file clerk to a
receptionist, and Anderson responded that he thought they would. T. 89. He then
acknowledged that he was changing his testimony in that regard and added that file
clerk skills would transfer not only to a receptionist, but also to a telephone answering
service operator. T. 89-90. The ALJ asked Anderson to confirm that the skills they
had discussed – assembling files, operating office equipment, answering the
telephone, and basic computer usage – were all interchangeable and transferrable
within the positions of file clerk, receptionist, and telephone answering service
operator. T. 90. Anderson agreed that they were. T. 90. He also testified that each
job would accommodate someone who needed to sit and stand throughout the day but
not someone who needed to lie down two or three times a day for an hour at a time.
T. 90-91. On cross-examination, plaintiff’s counsel asked Anderson if a file clerk
who was not required to answer telephones would have acquired telephone answering
skills. T. 91. Anderson testified that she would not. T. 91.
In her Decision, the ALJ found that claimant had a number of severe
impairments: fibromyalgia, myofascial pain, fatigue, idiopathic torsion dystopia,
spasmodic torticollis, migraine headaches, cervical degenerative disc disease,
hyperthyroidism, and osteoarthritis of the sacroiliac joints and lumbar spine, all of
which are supported by the medical evidence of record. T. 58. Moreover, plaintiff’s
medical records are replete with complaints of significant pain stemming from the
conditions cited by the ALJ, for which plaintiff took an array of medications,
including Opana, Lortab, Nucynta, Lyrica, Ultram, Ultracet, Effexor, Neurontin,
Oxycodone, Flexeril, Zanaflex, and Valium. T. 16, 34, 41, 99, 360, 368-71, 374, 391,
392, 394-400, 445, 474, 479, 480, 514, 521, 525, 552. Plaintiff also received physical
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therapy, cervical epidural injections, chiropractic manipulation, massage, muscle
stretching, ultrasound, electric stimulation, trigger point pressure and injections, and
aquatic therapy. T. 31, 40-41, 99, 362-67, 391-402, 445-47, 483-513. Claimant
nevertheless consistently reported constant generalized burning into her neck, back,
and arms and pain that was aching, throbbing, radiating, sharp, stabbing, shooting,
and intolerable. T. 16, 41, 409.
Plaintiff saw a number of doctors in an effort to manage her pain, including
primary care physician, Laura S. Ray, M.D., who completed a Physical Capacities
Evaluation (“PCE”) on July 28, 2010. T. 403. In the PCE, Dr. Ray indicated that
plaintiff could sit and stand/walk for less than one hour at a time, sit for three hours
in an eight-hour work day, and stand for two hours in an eight-hour work day. T.
403. Dr. Ray also indicated that plaintiff could frequently lift and carry up to five
pounds, occasionally lift and carry six to ten pounds, and never lift or carry anything
above that. T. 403. She further indicated that plaintiff could engage in limited simple
grasping, no pushing and pulling of arm controls, limited fine manipulation, and no
repetitive movements with her feet. T. 403. According to Dr. Ray, plaintiff could
occasionally bend, squat, and reach but never crawl or climb. T. 403. In a Clinical
Assessment of Pain (“CAP”) completed the same say, Dr.Ray indicated that
claimant’s pain was frequently present and found to be intractable and virtually
incapacitating. T. 404. She further stated that the side effects of claimant’s
medications could be expected to be severe and to limit claimant’s effectiveness due
to distraction, inattention, drowsiness, etc. T. 404.
In a subsequent PCE completed on July 14, 2011, Dr. Ray indicated that
plaintiff was able to sit and stand/walk for less than one hour at a time, sit for three
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hours in an eight-hour work day, stand/walk for two hours in an eight-hour work day,
and frequently lift and carry up to five pounds, occasionally lift and carry six to ten
pounds, and never lift or carry anything above that. T. 565. She also indicated that
plaintiff could not engage in simple grasping, pushing and pulling of arm controls,
fine manipulation, or repetitive movements with her feet. T. 565. According to Dr.
Ray, plaintiff was unable to bend or crawl but could occasionally squat and reach and
frequently climb. T. 565. In a CAP, also completed on July 14, 2011, Dr.Ray
reiterated that claimant’s pain was frequently present and found to be intractable and
virtually incapacitating and that the side effects of claimant’s medications could be
expected to be severe and to limit her effectiveness as a result of distraction,
inattention, drowsiness, etc. T. 566.
One of plaintiff’s chiropractors, Justin Southall, D.C., also completed a PCE
on October 6, 2010. T. 407. Like Dr. Ray, Dr. Southall indicated that plaintiff could
sit and stand for less than one hour at a time. T. 407. He opined that plaintiff could
sit and stand/walk for two hours in an eight-hour work day and frequently lift and
carry up to five pounds, occasionally lift and carry six to twenty pounds, and never
lift or carry anything above that. T. 407. According to Dr. Southall, plaintiff could
engage in simple grasping with both hands and repetitive movement with her feet but
could not push or pull or engage in fine manipulation. T. 407. She also could
occasionally bend, squat, climb, and reach but could never crawl. T. 407. On the
CAP form, Dr. Southall indicated that plaintiff’s pain was frequently present to such
an extent as to be distracting to the adequate performance of work activities and that
plaintiff’s medications could cause side effects that imposed some limitations on her
but not to such a degree as to create serious problems in most instances. T. 408. Dr.
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Southall completed a Fibromyalgia Residual Functional Capacity Questionnaire on
which he indicated that claimant met the American Rheumatological criterial for
fibromyalgia, had been diagnosed with cervical degeneration disease and
osteoarthritis, and had a fair prognosis with a guarded outcome due to her history.
T. 405. Dr. Southall noted that claimant’s symptoms included multiple tender points,
carpal tunnel syndrome, numbness and tingling, chronic fatigue, depression, muscle
weakness, and hypothyroidism with pain in her shoulders, arms, hand/fingers, hips,
legs, knees/ankles/feet, lumbosacral spine, cervical spine, and thoracic spine. T. 405.
He further noted that plaintiff’s pain was precipitated by changing weather, fatigue,
movement/overuse, cold, stress, and static position and often was severe enough to
interfere with plaintiff’s attention and concentration. T. 405. Dr. Southall indicated
that claimant was markedly limited in her ability to deal with work stress and was not
a malingerer. T. 405. Finally, Dr. Southall opined that plaintiff could sit and stand
for forty-five minutes at a time and for approximately two hours in an eight-hour
work day and could occasionally lift and carry less than ten pounds but never lift or
carry anything above that. T. 406.
Another of claimant’s chiropractors, Renee Lopez, D.C., completed a PCE on
July 28, 2011. T. 568. Dr. Lopez opined that plaintiff could sit and stand for less
than an hour at a time and for a total of two hours during an eight-hour work day. T.
568. According to Dr. Lopez, plaintiff could continuously lift and frequently carry
up to five pounds, occasionally lift and carry six to ten pounds, and never lift or carry
anything in excess of that. T. 568. Dr. Lopez indicated that plaintiff could not
engage in simple grasping, pushing and pulling, fine manipulation, or repetitive
movement of her feet; could occasionally bend, climb, and reach; but could never
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squat or crawl. T. 568. On a CAP form, also completed on July 28, Dr. Lopez
indicated that plaintiff’s pain frequently was present, intractable, and virtually
incapacitating and that plaintiff would be totally restricted and thus unable to function
at a productive level of work as a result of her medications. T. 567.
Finally, claimant’s rheumatologist, W. F. Sullivan, M.D., completed a
Fibromyalgia Residual Functional Capacity Questionnaire on September 8, 2011. T.
589. Like Dr. Southall, Dr. Sullivan indicated that plaintiff met the American
Rheumatological criteria for fibromyalgia; he also indicated that plaintiff had other
diagnosed impairments, including degenerative joint disease in the lumbar spine. T.
589. Dr. Sullivan noted that plaintiff’s symptoms included multiple tender points,
anxiety, chronic fatigue, and non restorative sleep with pain in her shoulders,
hand/fingers, knees/ankles/feet, lumbosacral spine, cervical spine, and thoracic spine.
T. 589. Dr. Southall further noted that plaintiff’s pain was precipitated by fatigue and
movement/overuse and often was severe enough to interfere with her attention and
concentration. T. 589. According to Dr. Southall, claimant was moderately limited
in her ability to deal with work stress and was not a malingerer. T. 589. Dr. Southall
opined that plaintiff could sit for two hours and stand for twenty minutes at a time,
could sit for approximately four hours in an eight-hour work day, and could stand for
less than two hours in an eight-hour work day. T. 590. In Dr. Southall’s opinion,
plaintiff could occasionally lift and carry less than ten pounds but never lift or carry
anything above that. T. 405. In a CAP form completed the same day, Dr. Sullivan
agreed with Dr. Ray’s assessment that claimant’s pain frequently was present to such
an extent as to be distracting to the adequate performance of work activities and that
the side effects of claimant’s medication could be expected to be severe and to limit
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her effectiveness due to distraction, inattentiveness, drowsiness, etc. T. 591.
Based on all of the evidence, the ALJ assigned plaintiff an RFC to perform
sedentary work limited to sitting for six hours out of eight and walking and standing
for two hours out of eight. T. 60. She also found that plaintiff was required to have
a sit/stand option in the workplace. T. 60. After determining plaintiff’s RFC, the
ALJ found that although claimant could not perform any past work, she had acquired
transferable work skills from her past work as a file clerk. T. 64-66. Building upon
that finding, and based on the testimony of the vocational expert, the ALJ concluded
that claimant could work as a receptionist or telephone answering service operator.
T. 66. Accordingly, the ALJ determined that plaintiff was not under a disability, as
defined by the Social Security Act.
ANALYSIS
1.

ALJ’s Hypothetical
Plaintiff first argues that the ALJ erred in failing to pose a proper hypothetical

question to the vocational expert. Such shortcoming harmed her, she says, because
the ALJ’s finding regarding ability to perform the jobs of receptionist and telephone
answering service operator was based on expert testimony in response to a
hypothetical that did not fairly or accurately depict her vocational profile.
As set forth above, the vocational expert testified that one who had acquired
telephone answering skills could work as a receptionist and telephone answering
service operator. T. 89-90. The ALJ asked the vocational expert whether those jobs
would allow someone to sit and stand throughout the day, and the expert responded
that “opportunities to sit and stand [would be available] throughout the workday.”

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Social Security Ruling 96-9p acknowledges that the need to alternately sit and
stand erodes the sedentary occupational base and that the extent of such erosion
depends on the facts of the case, such as the frequency of the need to alternate sitting
and standing and the length of time needed to stand. SSR 96-9p further states that the
“RFC assessment must be specific as to the frequency of the individual’s need to
alternate sitting and standing” and that “[i]t may be especially useful in these
situations to consult a vocational resource in order to determine whether the
individual is able to make an adjustment to other work.” Despite these guidelines, the
ALJ did not incorporate in her hypothetical any information regarding the frequency
with which plaintiff would be required to alternate between sitting and standing or
the length of time plaintiff would be required to stand; the ALJ likewise did not
incorporate any information in the hypothetical pertaining to the extent to which the
jobs of receptionist and telephone answering service operator would be conducive to
plaintiff’s limitations.
As the Eleventh Circuit has explained,“[i]f nonexertional impairments exist,
the ALJ may use Medical–Vocational Guidelines as a framework to evaluate
vocational factors, but must also introduce independent evidence, preferably through
a vocational expert’s testimony, of existence of jobs in the national economy that the
claimant can perform.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002).
“In order for a vocational expert’s testimony to constitute substantial evidence, the
ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Id. Because the ALJ failed to incorporate claimant’s impairments in
the hypothetical, the vocational expert’s testimony does not constitute substantial
evidence in support of the Commissioner’s decision. Indeed, the vocational expert’s
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testimony does not establish that there are any jobs that the plaintiff in this case is
capable of performing. See id. (“The ALJ must articulate specific jobs that the
claimant is able to perform, and this finding must be supported by substantial
evidence, not mere intuition or conjecture.”). Accordingly, the Commissioner erred
in relying upon such faulty evidence.
2.

Transferrability of Skills
As the second assignment of error, plaintiff argues that the ALJ erred in finding

that she has transferrable skills from her past relevant work as a file clerk. Plaintiff
points out that the finding of transferrable skills makes a critical difference in this
case because, if plaintiff lacks such skills, she may be deemed disabled based on her
age, education, and physical limitations.

As recognized in the regulations,

“[i]ndividuals approaching advanced age (age 50–54) may be significantly limited in
vocational adaptability if they are restricted to sedentary work.

When such

individuals have no past work experience or can no longer perform vocationally
relevant past work and have no transferable skills, a finding of disabled ordinarily
obtains.” 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(g); see also Watson v. Astrue,
376 Fed. Appx. 953,958 n. 11 (11th Cir. 2010). “Whether an individual of advanced
age (over age 55) has transferable skills ‘depends largely on the similarity of
occupationally significant work activities among different jobs.’” Zimmer v. Comm’r
of Soc. Sec., 211 Fed. Appx. 819, 820 (11th Cir. 2006) (quoting 20 C.F.R. §§
404.1568(d)(1), 416.968(d)(1)). “Transferability is most likely among jobs that
require the same or a lesser degree of skill, utilize the same or similar tools, and use
the same or similar products, processes, or services.” Id. (citing 20 C.F.R. §§
404.1568(d)(2), 416.968(d)(2)). “Complete similarity among all these factors is not
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necessary for transferability.” Id. (citing 20 C.F.R. §§ 404.1568(d)(3), 416.968(d)(3).
The ALJ determined that plaintiff has the RFC to perform a limited range of
sedentary work except that she can sit for only six hours and walk/stand for only two
hours in an eight-hour work day and must have a sit/stand option at her place of
employment. Based on this RFC, the ALJ determined that plaintiff cannot perform
any past relevant work. The ALJ also found that plaintiff acquired skills from her
past relevant work as a file clerk that are transferrable to the positions of receptionist
and telephone answering service operator. The ALJ’s conclusion regarding the
transferrability of plaintiff’s skills relied upon testimony of the vocational expert in
response to a hypothetical regarding plaintiff’s past work as a file clerk. Curiously,
the hypothetical depended upon the assumption that plaintiff acquired telephone
answering skills while working as a file clerk when plaintiff had testified to her actual
job duties, which did not include answering the telephone. Indeed, the undisputed
evidence shows, as it did at the time of the hearing, that plaintiff’s duties as a file
clerk consisted only of pulling and re-shelving files and making copies. As the
vocational expert testified, an individual who was not required to answer the
telephone in a job would not have acquired telephone answering skills.
Again, the Eleventh Circuit has cautioned that “[i]f the ALJ finds that the
claimant is able to perform other work, he must articulate specific jobs that the
claimant is able to perform, and this finding must be supported by substantial
evidence, not mere intuition or conjecture.” Davis-Grimplin v. Comm’r Soc. Sec.
Admin., No. 13-12472, 2014 WL 702608, at *4 (11th Cir. Feb. 25, 2014) (internal
marks omitted). Because the ALJ’s finding regarding transferrability of claimant’s
skills was premised on an incorrect assumption, it is not supported by substantial
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evidence. Based on the overall tenor of the vocational expert’s testimony and the
evidence of record in this case, the court finds no substantial evidence that plaintiff
acquired transferrable skills as a result of her past relevant work. Considering that
fact, as well as plaintiff’s age, education, and physical limitations, the court will find
plaintiff disabled as a matter of law. See 20 C.F.R. pt. 404, subpt. P, app. 2 §
200.00(g); Watson, 376 Fed. Appx at 958 n.11.
3.

Credibility Assessment
The matter also is due to be reversed on claimant’s remaining points. Claimant

argues that the ALJ erred with regard to the credibility assessment. Despite the
numerous references to pain in plaintiff’s medical records, the ALJ found plaintiff’s
allegations regarding the frequency and severity of her pain “less than credible
because she has alleged symptoms that are greater than those supported by the totality
of the medical evidence.” T. 64. The ALJ also found plaintiff’s allegations regarding
the severity of her symptoms inconsistent with the plaintiff’s actions, stating as
follows:
[a]lthough the claimant has described a very limited
lifestyle, she did state that she visits with family, may go
out to lunch on occasion, and to church . . . . There is some
evidence that her lifestyle may be more active than she has
alleged. For instance, on April 29, 2009, it is noted in the
record that she had to quit caring for her mother-in-law . .
. . Although it is stating her illness caused her to quit
caring for an individual, it is important to note that the
claimant has never stated caring for her mother-in-law as
part of her daily activities . . . . The claimant testified that
she quit working in 2007 because of her illness, yet, at
some point after that, she was able to care for her motherin-law . . . . This generally calls her credibility into
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question. Furthermore, on July 28, 2010, the claimant
reported to Dr. Ray that she hurt her back while playing
with her grandkids . . . . When the claimant was asked
about her daily activities at the hearing, she did not
mention that she had grandkids or that she saw her
grandkids . . . . Such less than forthcoming testimony
generally calls the claimant’s credibility into question and
suggests that she is able to do more activities on a regular
basis than she has alleged.
T. 64.
Pain is treated by the Regulations as a symptom of disability. Title 20 C.F.R.
§ 404.1529, provides, in part, that the Commissioner will not find disability based on
symptoms, including pain alone, “unless medical signs or findings show that there is
a medical condition that could be reasonably expected to produce these symptoms.”
Accord 20 C.F.R. § 416.929. The Eleventh Circuit has articulated a three-part pain
standard, sometimes referred to as the Hand10 test, as follows:
In order to establish a disability based on testimony of pain and other
symptoms, the claimant must satisfy two parts of a three-part test
showing: (1) evidence of an underlying medical condition; and (2) either
(a) objective medical evidence confirming the severity of the alleged
pain; or (b) that the objectively determined medical condition can
reasonably be expected to give rise to the claimed pain.
Wilson, 284 F.3d at 1225 (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)); Adamo v. Comm’r of Soc. Sec., 365 Fed. Appx. 209 (11th Cir. 2010); Elam
v. R.R. Retirement Bd., 921 F.2d 1210, 1216 (11th Cir. 1991). The Eleventh Circuit

10

See Hand v. Bowen, 793 F.2d 275, 276 (11th Cir.1986) (the case originally adopting the
three-part pain standard).
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also has approved an ALJ’s reference to and application of the standard set out in 20
C.F.R. § 404.1529 because that regulation “contains the same language regarding the
subjective pain testimony that [the Eleventh Circuit] interpreted when initially
establishing its three-part standard.” Wilson, 284 F.3d at 1226.
Notably, “while both the Regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to cause the pain
alleged, neither requires objective proof of the pain itself.” Elam, 921 F.2d at 1215.
Indeed, the Eleventh Circuit has recognized that “pain alone can be disabling, even
when its existence is unsupported by objective evidence.” Foote v. Chater, 67 F.3d
1553, 1561 (11th Cir. 1995) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.
1992)); Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987); Hurley v. Barnhart,
385 F. Supp. 2d 1245, 1259 (M.D. Fla. 2005). However, a reviewing court may
consider the presence or absence of evidence to support symptoms of the severity of
pain claimed. Marbury, 957 at 839-40; Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).
If the Commissioner refuses to credit the plaintiff’s subjective testimony
concerning pain, she must do so explicitly and give reasons for her decision in that
regard. MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986). Where she
fails to do so, the testimony may be accepted as true as a matter of law.11 Holt, 921

11

In MacGregor, the court advised that:

If the Secretary refuses to credit such testimony he must do so explicitly and give
reasons for that decision. Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir.1982).
Where he fails to do so we hold as a matter of law that he has accepted that testimony
as true.
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F.2d at 1223; MacGregor, 786 F.2d at 1054. Although the Eleventh Circuit does not
require an explicit finding as to a claimant’s credibility, the implication must be
obvious to the reviewing court. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005). The credibility determination does not need to cite particular phrases or
formulations, but it cannot merely be a broad rejection, which is insufficient to enable
the reviewing court to conclude that the ALJ considered the claimant’s medical
condition as a whole. Id. (internal quotations and citations omitted). And of course,
the reasons articulated for disregarding the plaintiff's subjective pain testimony must
be based upon substantial evidence. Wilson, 284 F.3d at 1225-26; Jones v. Dep’t of
Health and Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991); Hurley, 385 F.
Supp. 2d at 1259.
Underlying the Hand standard is the need for a credibility determination
concerning a plaintiff’s subjective complaints of pain. See Shallow v. Schweiker, 655
F.2d 645, 649 (5th Cir. 1981) (noting that “the ascertainment of the existence of an
actual disability depended on [the ALJ’s determination of] the truth and reliability of
[the claimant’s] complaints of subjective pain”).12 People with objectively identical
conditions can experience significantly different levels of pain, and pain is more

786 F. 2d at 1054. Relying upon the earlier case of Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th
Cir.1982), however, courts in the Eleventh Circuit are now generally opting for remand in cases of
inadequate credibility determinations (as well as cases involving rejection of treating physician
opinion). See, e.g., Lawton v. Comm’r,431 Fed. Appx. 830, 835 (11th Cir. 2011); see also Albery
v. Comm’r of Soc. Sec., No. 6:11cv437-Orl-19GJK, 2012 WL 2589297, at *10 (M. D. Fla. June 7,
2012) (“The Eleventh Circuit has recently receded from [the MacGregor] language.”).
12

Decisions of the United States Court of Appeals for the Fifth Circuit decided prior to
September 30, 1981, are binding precedent in the Eleventh Circuit. See Bonner v. Pritchard, 661
F.2d 1206, 1207 (11th Cir.1981) (en banc).
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readily and effectively treated in some than in others. “Reasonable minds may differ
as to whether objective medical impairments could reasonably be expected to produce
[the claimed] pain. This determination is a question of fact which, like all factual
findings by the [Commissioner], is subject only to limited review in the courts . . . .”
Hand, supra, at 1548-49. It is within the ALJ’s “realm of judging” to determine
whether “the quantum of pain [a claimant] alleges [is] credible when considered in
the light of other evidence.” Arnold v. Heckler, 732 F.2d 881, 884 (11th Cir. 1984).
Thus, a physician may be told by a patient that he or she is in pain, and the physician
may believe it, but the ALJ is not bound by that. The evidence as a whole, including
the existence of corroborating objective proof or the lack thereof, and not just a
physician’s belief or the plaintiff’s claims, is the basis for the ALJ’s credibility
determination.
Here, plaintiff unquestionably was diagnosed with a number of conditions that
reasonably could be expected to cause pain, including fibromyalgia, myofascial pain
syndrome, and spasmodic torticollis. Moreover, plaintiff’s medical chart is replete
with ongoing and consistent complaints of pain. The medical records also make it
clear that plaintiff had difficulty managing her pain, having been prescribed numerous
pain medications and undergone various pain management procedures. The Hand
standard thus is facially satisfied. The ALJ nevertheless discredited claimant’s
allegations based largely on two incidents claimant failed to mention when describing
her daily activities – caring for her mother-in-law and playing with her grandchildren.
The ALJ, however, never asked plaintiff a question clearly eliciting the responses she
faults plaintiff for not providing. Instead, she asked plaintiff whether she engaged in
“any activities at all, other than get up, go to bed, get up, go to bed,” which plaintiff
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reasonably could have construed as referring only to her current, daily activities. T.
83. And the ALJ failed to acknowledge that, on July 8, 2010, claimant reported that
she was unable to play with her grandchildren, socialize more than an hour or two,
or do anything other than “just maintaining.” T. 480. The ALJ also failed to cite any
medical evidence in support of her rejection of plaintiff’s credibility. The court thus
agrees with the plaintiff that the ALJ unreasonably discredited plaintiff’s testimony
and finds that the Commissioner erred to the extent she relied upon the erroneous
credibility determination.
4.

Treating Physician Opinions and RFC
Finally, plaintiff argues that the ALJ erred in rejecting the opinions of her

treating physicians and in assigning the RFC, which plaintiff contends is not
supported by the evidence of record. Absent good cause, the opinion of a claimant’s
treating physician must be accorded considerable or substantial weight by the
Commissioner.13 Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004);
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Broughton v. Heckler, 776
F.2d 960, 960-61 (11th Cir. 1985); Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). “Good cause” exists when: (1) the treating physician’s opinion was not
bolstered by the evidence; (2) the evidence supported a contrary finding; or (3) the
treating physician’s opinion was conclusory or inconsistent with the doctor’s own

13

The court recognizes that, as chiropractors, Drs. Southall and Lopez are not “acceptable
medical sources” under the applicable regulations. See 20 C.F.R. § 404.1513(a). Nevertheless, their
opinions may be considered with regard to the severity of plaintiff’s impairments and the manner
in which the impairments affect plaintiff’s ability to work. See 20 C.F.R. § 404.1513(d); see also
SSR 06-03p.

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medical records. Phillips, 357 F.3d at 1241; see also Lewis, 125 F.3d at 1440 (citing
cases). If a treating physician’s opinion as to the nature and severity of a claimant’s
impairments is well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with other substantial evidence in the
record, the ALJ is to give it controlling weight. See 20 C.F.R. § 404.1527(c)(2).
Where a treating physician has merely made conclusory statements, however, the ALJ
may afford them such weight as is supported by clinical or laboratory findings and
other consistent evidence of a claimant’s impairments. See Wheeler v. Heckler, 784
F.2d 1073, 1075 (11th Cir. 1986); see also Schnorr v. Bowen, 816 F.2d 578, 582
(11th Cir. 1987).
The ALJ gave the opinions of plaintiff’s treating physicians little weight
because she found them inconsistent with the doctors’ own treatment records and the
longitudinal medical evidence.

T. 61, 63.

As examples of the alleged

inconsistencies, the ALJ cited the fact that on June 24, 2010, Dr. Ray noted that
plaintiff was not having any joint or muscle pains but completed a PCE one month
later in which she indicated that plaintiff had debilitating pain and extreme limitations
in abilities. T. 61. The ALJ also noted that Dr. Ray consistently found that claimant
had normal gait and station and “performed lower extremity inspections bilaterally”
that were “‘normal.’” T. 61. The ALJ then turned to Dr. Ray’s July 14, 2011, PCE,
in which Dr. Ray imposed an additional restriction regarding plaintiff’s ability to use
her hands for simple grasping, fine manipulation, and pulling and pushing of arm
controls. According to the ALJ, not only was Dr. Ray’s July 14, 2011, opinion
inconsistent with her treatment notes and the longitudinal medical evidence, but there

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was no objective medical evidence to support the additional restriction she imposed.
T. 62. The ALJ observed that Dr. Ray’s medical records reflect no restrictions on
claimant’s performance of activities and that Dr. Ray, in fact, advised plaintiff to
walk for exercise. T. 62. She also acknowledged Dr. Ray’s references to plaintiff’s
back and muscle pain, but noted that Dr. Ray once indicated that plaintiff had no joint
pain or stiffness or muscle weakness. T. 62. Finally, the ALJ noted that Dr. Ray
performed a mental status examination on plaintiff on multiple occasions and found
that plaintiff demonstrated appropriate judgment and insight and that plaintiff’s
attention span and ability to concentrate were normal, which the ALJ found
contradicted Dr. Ray’s pain assessments. T. 62.
As for Dr. Sullivan, the ALJ noted a July 2007 note that claimant appeared to
be doing okay although reporting her medications caused constipation and fatigue.
T. 63. Dr. Sullivan also reported that claimant had good range of motion in her
shoulders, elbows, wrists, hips, knees, and ankles and that claimant’s strength was 5/5
in her upper and lower extremities and encouraged claimant to exercise. T. 63-64.
As the ALJ observed, Dr. Sullivan did not see plaintiff again until 2011, at which
time he noted that plaintiff’s muscles exhibited some tenderness and that plaintiff was
positive for back pain and arthralgias but negative for joint swelling and gait
problems and reported no side effects of her medications. T. 64. In rejecting Dr.
Sullivan’s opinion, the ALJ also commented that the treatment records reflect no
restrictions. The ALJ acknowledged that the records reference neurological and
psychological findings, but pointed out that there is no indication that plaintiff had
difficulty concentrating as a result of pain or medications. T. 64.

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The ALJ made similar findings with respect to plaintiff’s chiropractors. T. 6263. Specifically, the ALJ gave Dr. Southall’s opinion little weight because Dr.
Southall is not an acceptable medical source and because Dr. Southall’s opinion, in
the ALJ’s view, was inconsistent with the longitudinal evidence “which shows that
while the claimant’s condition generally waxes and wanes, her medications help
improve her condition, and she has always presented to her physicians with good
hygiene and appearance showing she can adequately perform her activities of daily
living.” T. 63. The ALJ likewise gave Dr. Lopez’s opinion little weight because Dr.
Lopez is not an acceptable medical source and because Dr. Lopez’s opinion was
“generally inconsistent with the longitudinal medical evidence, which shows that the
claimant’s condition improves with treatment and medications.” T. 63.
In discounting the opinions of plaintiff’s treating physicians, it appears that the
ALJ failed to consider the nature of plaintiff’s alleged disability, which is pain. As
set forth above, pain is treated as a symptom of disability and alone can support of
finding of disability if the medical evidence demonstrates a condition that reasonably
could be expected to produce the symptoms alleged. Title 20 C.F.R. §§ 404.1529,
416.929. Objective proof of the pain itself is not required, although the court may
consider the presence or absence of evidence to support the symptoms of the severity
of pain claimed. Elam, 921 F.2d at 1215; Foote, 67 F.3d at 1561; Walker, 826 F.2d
at 1003; Hurley, 385 F. Supp. 2d at 1259. In this case, plaintiff indisputably suffers
from multiple medical conditions that reasonably could be expected to produce severe
pain, and the medical records contain countless references to plaintiff’s complaints
of pain and the degree thereof. Although plaintiff’s doctors may not have imposed

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limitations on her other than when filling out forms pertaining to her disability claim,
plaintiff was unemployed and lived a fairly sedentary lifestyle for most, if not all, of
the time at issue, thus eliminating the need for any such restrictions. And the fact that
plaintiff may have retained most of her physical functioning does not undermine her
complaints of pain or even the severity thereof. Indeed, an individual does not have
to be physically infirm in order to be disabled as a result of pain. The court thus finds
a lack of substantial evidence to support the Commissioner’s reliance upon
inconsistencies between the opinions of plaintiff’s treating physicians and the
medical records of the same doctors.
Significantly, claimant’s treating physicians uniformly agreed that she is unable
to maintain full-time employment. The only conflicting evidence is a Residual
Functional Capacity Assessment completed on June 17, 2010, in which a single
decision maker, who is not a medical doctor, acknowledged that claimant’s medical
records support a finding of significant limitations but opined that claimant
nevertheless can sit and stand/walk for six hours of an eight-hour work day. T. 95,
99. Although the ALJ rejected the opinions of plaintiff’s treating physicians, she did
not adopt the limitations set forth in the RFC Assessment. Instead, the ALJ found
that plaintiff could sit for six hours out of eight and walk/stand for two hours out of
eight, citing no medical evidence in support of her finding in that regard. Where, as
here, the ALJ “fail[s] to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted,” Hubbard v. Comm’r
of Soc. Sec., 348 Fed. Appx. 553-54 (11th Cir. 2009) (internal marks omitted), and
provides no explanation to link the evidence to the residual functional capacity

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assessment, a reviewing court cannot determine whether the proper analysis occurred.
Accordingly, the ALJ’s acts rejecting the opinions of plaintiff’s treating physicians,
and determining RFC without regard to those opinions, are without support in
substantial evidence.
The court notes that its findings in this matter are bolstered by a letter Dr. Ray
prepared on March 6, 2012, after the ALJ rendered her decision, which was submitted
to the Appeals Council in support of the plaintiff’s claim.14 In the letter, Dr. Ray
explained that she has treated plaintiff since 2002 for fibromyalgia and migraine
headaches and that plaintiff’s condition “has been progressive and complicated by the
cervical degenerative disc disease which exacerbates both conditions.” T. 594. Dr.
Ray described plaintiff’s condition, as well as the discrepancies in the forms she
completed, as follows:
While there might not be a radiculopathy, the muscle pain
and spasm are worsened in the bodies’ [sic] attempt to
prevent a nerve impingement. Additionally cervicogenic
migraines are well documented and tend to be more severe,
last longer and be refractory to previously effective
migraine medications. I have observed all of these things
with Sheree over the last several years. She has the most
intense and diffuse muscle spasm/rigidity in her back, neck
and paraspinous muscles that I have ever seen. She has
required more intensive pain medication regimens over the
lest [sic] several years as well which had increasing side
effects including, but not limited to, mental impairment.

14

“[W]hen a claimant properly presents new evidence to the Appeals Council, a reviewing

court must consider whether that new evidence renders the denial of benefits erroneous.” Ingram
v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007).

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While my office notes indicate alertness and cognitive
functioning for the most part, it is likely due to the fact that
she has foregone her medications long enough to come to
my office because she knew she had to be unimpaired to
drive to the appointment. She definitely had slowing of her
thought processes at our last visit (she had someone drive
her).
Often, the only way she is able to get any relief is to lie
down. I can’t think of any job that would allow one to
change positions frequently and also allow a break to go lie
down at random intervals. When the pain is severe, any
physical activity (push/pull/lift/carry) would be precluded
as it would only aggravate the pain and spasm. Her
medications hinder fine motor control. While previously
her migraines were treatable with conventional
medications, the addition of the cervicogenic component
frequently puts Sheree to bed for days at a time. The
differences in my opinions on the physical disability forms
are largely due to the progression and worsening of her
illnesses and were based on the information that . . . Ms.
Sametini gave me.
T. 594.
CONCLUSION
For the reasons set forth above, the court finds that the Commissioner’s
decision is not supported by substantial evidence and by application of the proper
legal standards and therefore should be reversed.15 See Carnes, 936 F.2d at 1218
(“[T]his Court may reverse the decision of the [Commissioner] only when convinced
15

The court notes that, to the extent it reviewed the legal principles upon which the ALJ’s
decision is based, it conducted a de novo review. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005).

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that it is not supported by substantial evidence or that proper legal standards were not
applied.”). The court also finds that the plaintiff is entitled to the benefits she seeks.
ACCORDINGLY, it is ORDERED:
1. Judgment will be entered in favor of plaintiff. The decision of the defendant
Commissioner is REVERSED and plaintiff’s application for Disability Insurance
Benefits is GRANTED.
2. The court reserves jurisdiction for sixty (60) days in the event a motion for
attorney’s fees is filed.
DONE AND ORDERED this 18th day of March, 2014.

/s/

Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.
UNITED STATES MAGISTRATE JUDGE

Case No. 3:13cv107/CJK