EDWARDS v. ASTRUE
Filing
17
MEMORANDUM DECISION AND ORDER. Carolyn W. Colvin is substituted for Michael J. Astrue as Dft in this action. Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner be REVERSED, the Commissioner is ordered to remand this case to the Administrative Law Judge for further proceedings consistent with this order, and the Clerk directed to close the file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on August 8, 2013. CAROLYN W COLVIN added. MICHAEL J ASTRUE (COMMISSIONER OF SOCIAL SECURITY) terminated. (kvg)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
LASHUNDA E. EDWARDS,
Plaintiff,
vs.
Case No.: 5:12cv124/EMT
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition pursuant to
the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the parties’ consent to
magistrate judge jurisdiction (see docs. 8, 9). It is now before the court pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act (“the Act”), for review of a final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying Plaintiff’s application for
disability insurance benefits (“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34, and
supplemental security income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.
Upon review of the record before this court, it is the opinion of the undersigned that the
findings of fact and determinations of the Commissioner are not supported by substantial evidence;
thus, the decision of the Commissioner should be reversed and remanded.
I.
PROCEDURAL HISTORY
On February 27, 2007, Plaintiff filed applications for DIB and SSI, and in each application
she alleged disability beginning November 1, 2004 (tr. 11).2 Her applications were denied initially
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to
Fed. R. Civ. P. 25(d), she is therefore automatically substituted for Michael J. Astrue as the Defendant in this case.
2
All references to “tr.” refer to the transcript of Social Security Administration record filed on July 12, 2012
(doc. 7). Moreover, the page numbers refer to those found on the lower right-hand corner of each page of the transcript,
as opposed to those assigned by the court’s electronic docketing system or any other page numbers that may appear.
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and on reconsideration, and thereafter she requested a hearing before an administrative law judge
(“ALJ”). A hearing was held on May 17, 2010, and on May 28, 2010, the ALJ issued a decision in
which he found Plaintiff “not disabled,” as defined under the Act, at any time through the date of
his decision (tr. 11–21). The Appeals Council subsequently denied Plaintiff’s request for review.
Thus, the decision of the ALJ stands as the final decision of the Commissioner, subject to review
in this court. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). This
appeal followed.
II.
FINDINGS OF THE ALJ
In denying Plaintiff’s claims, the ALJ made the following relevant findings (see tr. 11–21):
(a)
Plaintiff meets the insured requirements of the Act, for DIB purposes, through
September 30, 20093;
(b)
Plaintiff has not engaged in substantial gainful activity since November 1, 2004, the
date she alleges she became disabled;
(c)
Plaintiff has one severe impairment, degenerative disc disease of the lumbar spine,
status post diskectomy in June of 2005, and one non-severe mental impairment (depression), but she
has no impairment or combination of impairments that meets or medically equals an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1;
(d)
Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work with
certain restrictions;
(e)
Plaintiff cannot perform her past relevant work because that work was performed at
light, medium, and heavy levels of exertion, but Plaintiff can perform other available work which
accommodates her RFC and other factors; thus, she is not disabled.
III.
STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether the decision
is supported by substantial evidence from the record and was a result of the application of proper
legal standards. 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
3
Thus, the time frame relevant to Plaintiff’s claim for DIB is November 1, 2004 (date of alleged onset), through
September 30, 2009 (date last insured). The time frame relevant to her claim for SSI is February 27, 2007 (the date she
applied for SSI) through May 28, 2010 (the date the ALJ issued his decision). See Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (indicating that SSI claimant becomes eligible to receive benefits in the first month in which she
is both disabled and has an SSI application on file).
Case No.: 5:12cv124/EMT
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substantial evidence or that proper legal standards were not applied.”); see also Lewis v. Callahan,
125 F.3d 1436, 1439 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A
determination that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214
(11th Cir. 1991). As long as proper legal standards were applied, the Commissioner’s decision will
not be disturbed if in light of the record as a whole the decision appears to be supported by
substantial evidence. 42 U.S.C. § 405(g); Falge, 150 F.3d at 1322; Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a scintilla, but
not a preponderance; it is “such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.
2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L.
Ed. 126 (1938)); Lewis, 125 F.3d at 1439. 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) (citations omitted). Even if the evidence preponderates against the
Commissioner’s decision, the decision must be affirmed if supported by substantial evidence.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The 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 claimant is not only 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),4 the Commissioner analyzes a disability claim in five steps:
4
In general, the legal standards applied are the same regardless of whether a claimant seeks DIB or SSI, but
separate, parallel statutes and regulations exist for DIB and SSI claims (see 20 C.F.R. §§ 404, 416). Therefore, citations
in this Order should be considered to refer to the appropriate parallel provision. The same applies to citations of statutes
or regulations found in quoted court decisions.
Case No.: 5:12cv124/EMT
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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.
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.
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
RFC and vocational factors, she is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps her from
performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes such an impairment,
the burden shifts to the Commissioner at step five to show the existence of other jobs in the national
economy which, given the claimant’s impairments, the claimant can perform. MacGregor v. Bowen,
786 F.2d 1050, 1052 (11th Cir. 1986). If the Commissioner carries this burden, the claimant must
then prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen, 831 F.2d
1007, 1011 (11th Cir. 1987).
IV.
PLAINTIFF’S PERSONAL, EMPLOYMENT AND MEDICAL HISTORY5
A.
Personal History
Plaintiff was born on July 20, 1970, and was thirty-four years of age on the date she alleges
she became disabled. Plaintiff previously worked as a fast food worker, sign erector, and nurse
assistant (tr. 19, 38). She sustained a work-related injury at an assisted care facility in late March
2004, when she trying to lift a patient out of a bed (tr. 15–16, 18, 38–39). This injury ultimately
resulted in a diagnosis of lumbar radiculopathy and led to a L4-5 diskectomy in June 2005 (tr.
15–16, 18).
5
Unless otherwise noted, the information in this section is derived from the ALJ’s opinion (see tr. 15–18).
Case No.: 5:12cv124/EMT
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B.
Relevant Medical History
Following Plaintiff’s work-related injury, she was treated by a chiropractor and initially
assessed with lumbar strain. Magnetic resonance imaging (“MRI”) of the lumbar spine was obtained
in September of 2004, however, which showed a disc herniation at L4-5 (tr. 262). Additionally,
electromyogram (“EMG”) studies from October 2004 showed a posterior primary rami nerve root
irritation, primarily in the L4-5 region, consistent with radiculopathy (tr. 267). Nerve conduction
studies of the left lower extremity were normal (id.).6
Karin S. Maddox, M.D., a neurologist with the Brain & Spine Center, began treating Plaintiff
in December 2004 (tr. 301). Plaintiff complained of lower back pain that radiated into the left leg
and caused numbness and tingling in the leg (id.). Dr. Maddox administered lumbar epidural steroid
injections, but the injections were only minimally successful (and, apparently, other conservative
treatment measures failed as well). Plaintiff underwent a L4-5 diskectomy on June 21, 2005.
Plaintiff followed up with Dr. Maddox on August 16, 2005, and reported feeling somewhat
better but noted she still had some back and left leg pain. Dr. Maddox observed that Plaintiff walked
with an antalgic gait (tr. 298). In November 2005, Plaintiff reported back pain with radiation but
stated that Lortab was helping. An examination revealed tenderness to palpation of the lumbar spine
and an antalgic gait, but strength was full (“5/5”) in all extremities and sensory was intact to light
touch and pinprick. Dr. Maddox noted Plaintiff was not at maximum medical improvement
(“MMI”) and decided a repeat lumbar MRI was in order (tr. 297). On February 6, 2006, Plaintiff
reported extreme, radiating low back pain and stated her surgery did “not help at all”; she also
reported extreme difficulty “even getting up in the morning” and stated her life had drastically
changed as a result of her pain (see tr. 296). Examination revealed tenderness to palpation of the
lumbar spine, decreased lumbar range of motion (“ROM”), a positive straight leg raising test on the
left, and an antalgic gait (tr. 295–97).
Plaintiff obtained another lumbar MRI on February 17, 2006. It revealed a moderately wide
disc extrusion at L4-5 that was causing significant neural deformity, primarily affecting the left L5
nerve root; partial sacralization of L5; mild DDD at T11-12, without herniation; and mild facet
6
At the time of these studies, Plaintiff, who is 5’9” tall, weighed 250 pounds (tr. 269).
Case No.: 5:12cv124/EMT
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degeneration at L2-3 and L3-4 (tr. 388–89). Plaintiff followed up with Dr. Maddox on February 20,
2006, and stated she was doing better with a Medrol Dosepak, Cymbalta, and pain medication,
although she continued to have back pain (tr. 294–95).7 Plaintiff also reported she had begun
physical therapy, which had “helped her tremendously” (tr. 294). An examination revealed, in
pertinent part, tenderness to palpation of the lumbar spine and decreased ROM (tr. 294). Dr.
Maddox assessed lumbar radiculopathy (id.). Dr. Maddox’s treatment records from March 15, 2006,
reflect her discomfort (and/or ARNP Breland’s discomfort) with the idea of releasing Plaintiff to
work without a surgical consultation (tr. 292). Examination revealed decreased lumbar ROM and
pain with hyperextension and flexion, although at this visit Plaintiff’s gait was normal (id.). Dr.
Maddox assessed lumbar radiculopathy and advised Plaintiff to continue physical therapy (tr.
291–92). An examination in April 2006 was essentially the same, although Plaintiff’s gait was noted
to be antalgic (tr. 289). In May 2006, Dr. Maddox again opined that Plaintiff had not reached MMI
and continued to assess lumbar radiculopathy, and in doing so she noted the MRI results from
February 2006 (tr. 286). Dr. Maddox’s treatment notes from June and July 2006 are essentially the
same, although in July Dr. Maddox definitively stated Plaintiff was “unable to work” (tr. 283–85).
In August Plaintiff reported continued low back pain with worsening symptoms, such as bilateral
radiculopathy and loss of strength in both lower extremities (tr. 281). Additionally, Plaintiff’s
weight had increased to 323 pounds (id.).8 Examination revealed full strength in all extremities and
a normal gait, but Plaintiff displayed reduced lumbar ROM and tenderness to palaption (id.). Dr.
Maddox assessed lumbar radiculopathy (id.). In September 2006, Plaintiff presented with a cane
and stated it was necessary for ambulation (tr. 280). Dr. Maddox commented that Plaintiff’s gait
7
Beginning with the February 20, 2006, treatment record, and continuing through approximately mid-June of
2007, Dr. Maddox’s records contain a signature line that states “Stephanie Breland, ARNP-C [Advanced Registered
Nurse Practitioner - Certified] for Karin S. Maddox, M.D.,” but the records nevertheless bear signatures that read “Karin
Maddox” (see, e.g., tr. 295, 291, 288). However, some of the signatures differ (compare, e.g., tr. 288 with tr. 291). It
thus seems that on occasion someone may have signed the records for Dr. Maddox. Regardless of who signed the
records, however, they appear to reflect the opinions of Dr. Maddox (either directly, because they are signed by her, or
indirectly, because she appears to have concurred with or adopted the opinions of ARNP Breland). Some of Dr.
Maddox’s more recent treatment records contain signatures lines for both ARNP Breland and Dr. Maddox and bear each
of their signatures (see, e.g., tr. 345, 347). The undersigned will refer to all of the records as being those of Dr. Maddox.
8
As noted supra, in October 2004 Plaintiff weighed 250 pounds. Thus, in less than two years she gained
seventy-three pounds.
Case No.: 5:12cv124/EMT
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was “extremely antalgic” (id.). Dr. Maddox indicated she would refer Plaintiff for a surgical
consultation and schedule lumbar facet injections (id.). October 2006, Plaintiff again reported low
back pain with bilateral radiculopathy (tr. 278). Dr. Maddox noted “positive numbness and tingling
as well as muscle spasms” (id.). Dr. Maddox advised Plaintiff that “narcotic medication is
potentially addicting and [Plaintiff was] to take as little of this . . . as possible to control the pain”
(tr. 277). On November 14, 2006, Plaintiff stated she was progressively getting worse, and she
stated that “now her left leg gives out on her a lot of the time” (tr. 276). She also reported she was
depressed because “everything [was] falling apart,” and she was upset because her children were
in Arizona and she had planned to move there to be with them but now was unable to do so (id.).
In short, Plaintiff said she was upset because she used to work and have money, but she was now
dependant on her mother, and her “whole way of life” had changed (id.). Dr. Maddox stated she
would refer Plaintiff to a counselor (tr. 275). She again stated Plaintiff had not reached MMI (tr.
276). Treatment notes from December 2006 are essentially the same (tr. 273–74). On January 17,
2007, Plaintiff reported continued low back pain with radiation and worsening symptoms, as well
as depression (tr. 272). Examination revealed decreased lumbar ROM, tenderness to palpation of
the lumbar spine, and an antalgic gait (id.). Dr. Maddox stated she would refer Plaintiff for to a
surgeon to administer lumbar facet injections (tr. 356). Notes from a visit with Dr. Maddox in
February 2007 are essentially the same, although at this visit Dr. Maddox administered a Toradol
injection “for immediate [pain] relief” (tr. 354–55). Dr. Maddox continued to assess lumbar
radiculopathy throughout Plaintiff’s treatment (see 274, 275, 351, 440).
On March 12, 2007, Plaintiff was evaluated by C.W. Koulisis, M.D., an orthopedist, in
connection with her claim for Workers’ Compensation benefits (see tr. 304–06). Dr. Koulisis noted
Plaintiff’s subjective complaints of severe pain and resulting limitations, and he reviewed the results
of her October 2004 EMG studies and February 2006 lumbar MRI (tr. 304). Examination revealed
the following: (1) reduced ROM in the lumbar spine and decreased sensation to light touch and
pinprick at L5; (2) a positive straight leg raising test and pain with testing on the left; (3) a slow and
deliberate gait; and (4) an ability to tandem walk, heel walk, and toe walk (tr. 305). Dr. Koulisis
diagnosed status post L4-5 disc herniation with recurrent herniation and recommended a repeat MRI
of the lumbar spine (tr. 305–06).
Case No.: 5:12cv124/EMT
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Plaintiff returned to Dr. Maddox on March 14, 2007, at which time she reported similar
symptoms as before, but—for the first time—she also reported urinary incontinence (tr. 353). Dr.
Maddox assessed lumbar radiculopathy (tr. 352). Dr. Maddox also commented that Plaintiff seemed
more depressed, and she recommended psychiatric care and/or counseling (id.).
Pursuant to Dr. Koulisis’ recommendation, an MRI of the lumbar spine was obtained on
April 3, 2007 (tr. 386–87). The MRI revealed that the posterior disc herniation had decreased in size
since the February 2006 MRI. It was noted to be “most characteristic of [an] extrusion, but []
smaller than on the previous [MRI]” and “slightly more prominent to the left of the midline” with
less obvious asymmetry than before (tr. 386). Additionally, a mild deformity of the thecal sac was
observed, as well as mild perineural fibrosis involving the L5 nerve root and partial sacralization
of L5, more obvious on the right (id.). The L4-5 disc degeneration had progressed slightly since the
previous study, and more bony edema was present in the adjacent endplates. Finally, a small
posterior disc bulge was noted at T11-12, which was mildly degenerated.
Plaintiff returned to Dr. Maddox on April 12, 2007 (tr. 351). Dr. Maddox noted that the
recent MRI revealed that the herniated disc at L4-L5 had decreased in size, but the disc had
narrowed (id.). Dr. Maddox assessed lumbar radiculopathy and depression (id.). In May, Dr.
Maddox expressed concern that Plaintiff was not taking the Lortab she prescribed (tr. 349). In June,
Plaintiff told Dr. Maddox she had seen “the surgeon in Crestview,” and he stated she did not need
surgery9 (tr. 348). In July 2007 Dr. Maddox noted Plaintiff “has not been back to see the counselor
or the psychiatrist for her treatment of her depression” and that “Worker’s Compensation has not
yet approved sacroiliac or lumbar facet injections” (tr. 346). Dr. Maddox opined that Plaintiff was
“unable to work” and had not reached MMI (id.), as she did again in October 2007 (tr. 443). Also
in October 2007, Plaintiff denied urinary incontinence and stated that although her pain was severe
at times, she had “weaned herself off Lortab” and functioned better without it (id.). Dr. Maddox
administered Demerol and Toradol injections and assessed lumbar radiculopathy and depression (tr.
442).
9
Plaintiff presumably was referring to Dr. Koulisis, as he is an orthopedic surgeon with an office in Crestview,
Florida (see tr. 304). Dr. Koulisis’ notes, however, do not reflect an opinion that Plaintiff needed—or did not
need—surgery (see tr. 304–06). He merely recommended that Plaintiff obtain a repeat lumber MRI and return to see
him once it was obtained (see tr. 306).
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In September 2007, Dr. Maddox completed a motor deficit questionnaire (tr. 404). Dr.
Maddox stated that Plaintiff had difficulty walking and difficulty with gross movement of her
bilateral lower extremities due to a “large herniated disc in the lower lumbar spine” (id.). She
opined that Plaintiff’s strength was decreased (at “3/5”), bilaterally, in the lower extremities and that
Plaintiff’s station was normal, but her gait was antalgic (id.). She further opined that Plaintiff could
not squat, walk on her toes, or walk on her heels, and that “at times” Plaintiff needed to use a cane
to keep from falling (id.).
On November 14, 2007, Plaintiff was examined by Michael W. Reed, M.D., an orthopedic
surgeon (tr. 473–76). He noted that since Plaintiff’s work-related injury she sought “medical
treatment consisting of physical therapy, chiropractic care, . . . medication[s], low back exercises,
being off work with rest at home, [and] restricted work status,” all of which “provided good
response” (tr. 473). Dr. Reed also noted initially that Plaintiff had “not” had surgery (tr. 473), but
he stated elsewhere she had surgery in 2006 (tr. 474). After examining Plaintiff and reviewing the
most recent lumbar MRI, Dr. Reed assessed degenerative disc disease at L4-5 and L5-S1, with
modic endplate changes at L4-5 (tr. 476). He stated Plaintiff “may be a candidate for interbody
fusion at L4-L5 and L5-S1,” but he strongly recommended that Plaintiff lose weight before
undergoing fusion surgery (id.). In the meantime, Dr. Reed opined, Plaintiff may be a candidate for
a discography (id.).
Plaintiff returned to Dr. Maddox in December 2007 and stated that Dr. Reed recommended
surgery, but he advised her she would have to lose weight before he would perform it (tr. 441). Dr.
Maddox advised Plaintiff to continue seeing Dr. Reed and to return to her on a two-month interval
(instead of a one-month interval, as done previously) (tr. 440). Dr. Maddox assessed lumbar
radiculopathy (but did not assess depression) (id.). Plaintiff returned in February 2008 as directed
(tr. 439). She stated she was attending a community college. She also reported severe and shooting
pain that could not be controlled with medication but denied bladder incontinence (id.). In March
2008, Plaintiff reported continued pain and—at times—worsened symptoms (see tr. 437). Dr.
Maddox administered a Toradol injection, assessed lumbar radiculopathy, prescribed Percocet, and
advised Plaintiff to return in one month (tr. 436). In April Plaintiff reported she would be flying to
Arizona to attend her son’s graduation (tr. 435). Treatment notes through the end of 2008 are not
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remarkably different. Plaintiff continued to report pain with radiation into her legs, as well as
numbness and tingling down the left lower extremity, and Dr. Maddox continued to assess lumbar
radiculopathy (see, e.g., tr. 431, 438).
A lumbar MRI from December 10, 2008, revealed facet arthropathy and disc herniation at
L4-5, although the herniation was less apparent on this MRI when compared with the 2007 MRI (tr.
429, 470). A reviewing radiologist also observed what appeared to be “a broad-base residual
annular disk bulge with bright signal in the annular fibers, consistent with an annular tear” at L4-5,
as well as “early bilateral foraminal encroachment with contributions from the broad-base residual
disk bulge” (tr. 470).
EMG studies obtained on April 3, 2009, were normal and revealed no evidence of
lumbosacral radiculopathy (tr. 457). In August 2009 Dr. Maddox recommended additional
diagnostic studies of the lumbar spine and advised Plaintiff to return after those had been obtained
(tr. 426).
On September 28, 2009, Plaintiff underwent a consultative examination by E. Jacob, M.D.,
a neurologist, at the Commissioner’s request (tr. 415–17). Dr. Jacob noted Plaintiff’s subjective
complaints of pain, which are similar to those she reported to Dr. Maddox (see tr. 415).
Examination of the lumbar spine revealed no tenderness over the spinous process and no
paravertebral muscle spasms (tr. 416). Plaintiff could not bend, and straight leg raising tests were
positive bilaterally10 (id.). Plaintiff could, however, toe walk, heel walk, and tandem walk, and her
sensory examination was normal (tr. 417). Dr. Jacob assessed history of back injury; history of low
back surgery; “overweight, over 300 pounds”; and elevated blood pressure (id.). Dr. Jacob
completed a RFC assessment form, on which he opined in pertinent part that Plaintiff could not work
a full, eight-hour workday. More specifically, he opined she could sit four hours, in one-hour
intervals; stand one hour, in twenty to thirty-minute intervals; and walk one hour, in ten-minute
intervals due to lower back pain and obesity11 (tr. 419). Dr. Jacob noted that Plaintiff used a cane,
10
Dr. Jacob noted that the “restrictions may be due to the protruding abdomen” (tr. 416).
11
Dr. Jacob inserted a question mark (“?”) next to his opinion that Plaintiff could walk a total of one hour in
a workday; he did the same next to his opinions as to the amount of weight Plaintiff could lift or carry (see tr. 417–19).
Even if no question marks had been placed by Dr. Jacob’s opinions, and his opinions are construed as being definitive,
the opinions reflect that Plaintiff can work no more than six hours, total, in an eight-hour workday.
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but he stated he did not “think she needs one” (id.). He also noted that she drove a “fairly large
SUV/truck” and could “get in and out of [it]” (tr. 419–20). Dr. Jacob opined that Plaintiff could
perform all activities of daily living, and occasionally climb stairs and ramps, and balance, but she
could never climb ladders or scaffolds, stoop, kneel, crouch, or crawl due to obesity (tr. 421). He
stated Plaintiff had gained over 100 pounds since her back injury and that her obesity and back pain
are “responsible for [the] limitations” he assessed (tr. 422).
C.
Other Information Within Plaintiff’s Claim File
At Plaintiff’s hearing, held May 17, 2010, she testified she had gained weight in the last two
years due to inactivity (tr. 35–36). She noted she is able to drive but does not drive often (tr. 36).
She stated she lives with her mother and on a average day does not “do too much” and stays at home
(tr. 44). She can shop, but only if she can park close to the store and “get a shopping cart to hold
on to”; she can walk to the mailbox; and she can take a shower, but only by sitting on the side of the
tub or in a shower chair (tr. 47, 49, 196, 207). She reported she is unable to work due to back pain,
which prevents her from lifting, standing long periods, or walking long distances (tr. 39, 47). She
stated she gets muscle spasms in her legs, and her legs are painful and tingly, which occasionally
causes her to fall when she is walking or attempting to walk (see tr. 48, 46). She described her back
pain as “constant” and rated its intensity at an eight on a ten-point scale (“8/10”) (tr. 47). Plaintiff
testified that the June 2005 diskectomy did not “help,” and she noted that in or about April 2010 she
underwent radiofrequency treatment (tr. 40). She also stated she received injections, which did not
help and made her sleepy (tr. 41). She reported previously being prescribed and taking a host of
medications, but she “got tired” of taking them and noted “they had me on so much” (id.). At the
time of her hearing she was using only over-the-counter pain medications, including Goody powders
and Tylenol, and she was seeing Dr. Maddox approximately once every six months (tr. 41–42).
According to Plaintiff, Dr. Maddox told her she had the “wrong” kind of back surgery in 2005 and
recommended that she undergo the “right” type of surgery, but Plaintiff stated she did not want to
undergo another surgery (tr. 42). She reported she had simply learned to “deal with the pain” (id.).
She reiterated that she cannot walk long distances, and even when she walks short distances she
feels “knots in [her] back” (id.). She stated she cannot stand or sit for long periods, although she
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could not estimate how long she can stand or sit, and she cannot bend or (generally) lift without
causing debilitating pain (see tr. 46–50). She apparently can, however, lift a gallon of milk on
occasion (tr. 46). When pressed to estimate how long she can walk, Plaintiff responded by stating
it would be less than the length of “a football field” (id.).
Plaintiff noted she “was supposed to” be taking anti-depressant medications but was not
doing so because she “couldn’t function with them,” and they were “weighing her down” (tr.
43–44). When the ALJ asked Plaintiff whether she had received treatment for depression, she stated
she “went through counseling . . . maybe a year or two -- a year ago maybe” (tr. 43).
Finally, a vocational expert (“VE”) testified at Plaintiff’s hearing. In summary, the VE
testified that a hypothetical person with Plaintiff’s RFC could not perform her past relevant work
(tr. 51). The person could, however, perform other available work such as paramutual ticket
checker,
surveillance system monitor, and hand sander, all of which are performed at the sedentary level of
exertion and otherwise accommodate Plaintiff’s RFC (tr. 52).
V.
DISCUSSION
Plaintiff contends the ALJ erred at step two of the sequential evaluation in failing to find
her lumbar radiculopathy, obesity, and depression severe (doc. 13 at 11–12). She also alleges the
ALJ erred in discounting her subjective complaints of pain (id. at 11).
A.
Step Two Findings
As previously noted, the ALJ determined that Plaintiff has one severe impairment, namely,
degenerative disc disease of the lumbar spine, status post lumbar diskectomy in June 2005. Plaintiff
contends the ALJ erred in failing to find any other impairment severe, including her lumbar
radiculopathy. The Commissioner contends “there is no merit to Plaintiff’s contention that her
depression and obesity are [] severe impairments” (doc. 16 at 5). The Commissioner also, while
not directly addressing Plaintiff’s argument, appears to contend that any error in failing to find
Plaintiff’s lumbar radiculopathy severe is harmless, because the ALJ found her degenerative disc
disease severe and accounted for any related limitations at subsequent levels of the sequential
evaluation (see id. at 1–2, 14).
Case No.: 5:12cv124/EMT
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Any error in failing to find Plaintiff’s lumbar radiculopathy severe is harmless because the
ALJ found her degenerative disc disease severe. See, e.g., Heatly v. Comm’r of Soc. Sec., 382 F.
App’x 823, 824 (11th Cir. 2010) (unpublished) (“Even if the ALJ erred in not indicating whether
chronic pain syndrome was a severe impairment, the error was harmless because the ALJ concluded
that Heatly had a severe impairment: and that finding is all that step two requires.”). The same
cannot be said, however, with regard to the ALJ’s finding at step three.12 At step three, in
concluding that Plaintiff’s degenerative disc disease does not meet or equal a listed impairment, the
ALJ stated as follows (and only as follows):
[Plaintiff] does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments . . . . Despite [Plaintiff’s] combined
impairments, the medical evidence does not document listing level severity, and no
acceptable medical source has mentioned findings equivalent in severity to the
criteria of any listing, individually or in combination.
(tr. 15) (emphasis omitted).
The ALJ did not indicate which musculoskeletal listing or listings he considered in making
this step three determination (as he did in with regard to Plaintiff’s depression (see tr. 14, referencing
the paragraph A and B criteria of the Mental Disorder Listings (§ 12.00)). Similarly, the ALJ failed
to discuss the particular evidence on which he relied at step three or explain why he reached his
conclusion at step three. Instead, as can be seen supra, he summarily concluded that Plaintiff’s
degenerative disc disease does not meet or equal a listed impairment.
The ALJ’s conclusory statement is similar to the “bare conclusion” the Tenth Circuit Court
of Appeals found problematic in Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1996). There, the court
reversed a decision denying disability benefits because the ALJ “did not discuss the evidence or his
reasons for determining that [the claimant] was not disabled at step three,” but instead “merely stated
a summary conclusion that [the claimant’s] impairments did not meet or equal any Listed
Impairment.” Clifton, 79 F.3d at 1009 (also noting that the ALJ’s “bare conclusion” was “beyond
meaningful review”); see also Taylor v. Barnhart, 189 F. App’x 557, 561–62 (7th Cir. 2006)
(unpublished) (reversing denial of benefits where ALJ “failed to conduct the proper analysis or
12
In her memorandum before this court, Plaintiff does not assert any error with regard to the ALJ’s finding at
step three. The court nevertheless addresses this finding because it affects the remaining findings of the ALJ.
Case No.: 5:12cv124/EMT
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provide sufficient justification for his findings after step 2 regarding Ms. Taylor’s joint and spine
problems,” failed to identify “Listing 1.02A (joints) or 1.04A (spine) by name,” and failed to
“identify by name any other listing under which he considered whether Ms. Taylor’s knee and spinal
disorders constituted a disability”) (citing Rice v. Barnhart, 384 F.3d 363, 368 (7th Cir. 2004) (in
considering whether a claimant’s condition meets a listed impairment, an ALJ must discuss the
listing by name and offer “more than a perfunctory analysis” of the listing)); see also Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (“[W]hen the ALJ fails to ‘state with
at least some measure of clarity the grounds for his decision,’ we will decline to affirm ‘simply
because some rationale might have supported the ALJ’s conclusion.’”) (quoting Owens v. Heckler,
748 F.2d 1511, 1516 (11th Cir. 1984)).
Additionally, the ALJ’s discussion of the medical evidence pertaining to Plaintiff’s back
impairment is at best equivocal in terms of showing whether she meets or equals any of the
subsections of Listing 1.04.13 Further, the ALJ’s findings at steps four and five do not conclusively
negate a claim that Plaintiff meets Listing 1.04, such that any error at step three may be deemed
harmless. Cf. Fischer-Ross v. Barnhart, 431 F.3d 729, 730 (10th Cir. 2005) (distinguishing Clifton,
79 F.3d at 1007, declining to reverse denial of benefits, and noting that the ALJ’s error—that is, his
failure to discuss the particular evidence on which he relied to reach his step three conclusions—was
harmless because “confirmed or unchallenged findings made elsewhere in the ALJ’s decision
confirm the step three determination under review”). In short, the ALJ’s failure here to even
mention the musculoskeltal listings or otherwise explain why Plaintiff’s impairment does not satisfy
the listing(s) precludes meaningful review of his decision.
In Social Security cases, the role of this court is to determine whether the law has been
properly applied and whether substantial evidence supports the Commissioner’s findings, not to find
13
In pertinent part, the musculoskeletal listings provide that certain conditions, which may “cause weakness
of the lower extremities . . . and [] should be evaluated under [Listing] 1.04 include . . . degenerative disc disease . . .
.” 20 C.F.R. Part 404, Subpart P, Appendix 1 (§ 1.00). They further provide that, to meet the criteria of Listing 1.04,
a claimant must have a disorder of the spine, such as degenerative disc disease, which results in the compromise of a
nerve root (or the spinal cord) and “[e]vidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test
(sitting and supine).” 20 C.F.R. Part 404, Subpart P, Appendix 1 (§ 1.04A).
Case No.: 5:12cv124/EMT
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facts. Because of this limited role, the general rule is to reverse and remand for additional
proceedings when errors occur. See, e.g., Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993)
(referring to general practice). A case may be remanded for an award of disability benefits,
however, where the Commissioner has already considered the essential evidence and it is clear that
the cumulative effect of the evidence establishes disability without any doubt. Davis, 985 F.2d at
534; see also Bowen v. Heckler, 748 F.2d 629, 636 (11th Cir. 1984) (if the Commissioner’s decision
is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the
courts to modify or reverse the decision with or without remanding the case for a rehearing); Carnes,
936 F.2d at1219 (“The record . . . is fully developed and there is no need to remand for additional
evidence.”). Here, it is not for this court to decide whether Plaintiff’s back impairment meets the
criteria of the appropriate musculoskeletal listing. Therefore, the case must be remanded for the ALJ
to reevaluate Plaintiff’s impairments at step three.14 In doing so, the ALJ must identify the listing
or listings considered at step three and set out his specific findings with regard to the criteria of the
listing(s). Additionally, upon remand, the Commissioner may—with one exception—exercise her
discretion to decide whether additional medical evidence or opinions should be obtained from either
Plaintiff’s treating physicians or consultative physicians in order to make the step three findings and
other required disability determinations. The one exception to the Commissioner’s discretion is this:
if the Commissioner again decides to reject the opinions contained in Dr. Maddox’s records, she
may not do so—as the ALJ did here—based on a finding that the opinions were rendered by ARNP
Breland unless the Commissioner has contacted Dr. Maddox for clarification regarding who actually
made the opinions. While the undersigned acknowledges that ARNPs are not “acceptable medical
source[s],” as the ALJ found (see tr. 18; 20 C.F.R. § 404.1513), Dr. Maddox’s records are largely
unclear as to who actually rendered the opinions. Thus, the ALJ’s finding—that the opinions are
those of ARNP Breland, and thus they are entitled to lesser weight—is not substantially supported
by the record.
14
The case must also be remanded because the evidence does not establish disability without a doubt or
disability for the entire time frames relevant to this appeal (even if Plaintiff was disabled earlier on, the evidence suggests
that her condition improved over time; however, whether (or when) it improved to the extent Plaintiff was no longer
disabled is not clear and certainly not for this court to decide).
Case No.: 5:12cv124/EMT
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Because a reversal and remand for additional proceedings at step three is required, it is
unnecessary to discuss Plaintiff’s other contentions of error. The undersigned notes without
deciding, though, that no other errors are apparent at step two or three of the sequential evaluation.
The ALJ did err, however, in evaluating Plaintiff’s subjective complaints of pain and other
symptoms, which error the undersigned briefly addresses here in order to prevent a repeat of the
same error upon remand.
B.
Evaluation of Plaintiff’s Subjective Complaints
In Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991), the court articulated the “pain
standard,” which applies when a disability claimant attempts to establish a disability through his
own testimony of pain or other subjective symptoms. The pain standard requires: (1) evidence of
an underlying medical condition and either (a) objective medical evidence that confirms the severity
of the alleged pain arising from that condition, or (b) that the objectively determined medical
condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.
Holt, 921 F.2d at 1223 (internal citation omitted). If a claimant testifies as to her subjective
complaints of disabling pain and other symptoms, as Plaintiff did here, the ALJ must clearly
“articulate explicit and adequate reasons” for discrediting the claimant’s allegations of completely
disabling symptoms. Foote, 67 F.3d at 1561–62. Additionally, “‘[a]lthough this circuit does not
require an explicit finding as to credibility, . . . the implication must be obvious to the reviewing
court.’” Id. at 1562 (quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)). The
credibility determination does not need to cite “‘particular phrases or formulations’” but it cannot
merely be a broad rejection which is “‘not enough to enable [the district court or this Court] to
conclude that [the ALJ] considered her medical condition as a whole.’” Id. (quoting Jamison v.
Bowen, 814 F.2d 585, 588–90 (11th Cir. 1987)).
Here, the ALJ articulated the correct pain standard (tr. 15). He then offered the following
reasons for discounting Plaintiff’s allegations of disabling limitations: (1) Plaintiff’s “daily
activities”—traveling to Arizona in 2009 to attend her son’s graduation and attending community
college classes in 2009—are inconsistent with Plaintiff’s allegations and consistent with the RFC;
(2) Plaintiff’s care has been “essentially routine and/or conservative in nature”; (3) “[t]here is [some]
evidence that [Plaintiff] needs to have additional surgery, [but she] doesn’t want to have it done”;
Case No.: 5:12cv124/EMT
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(4) “she has been prescribed and has taken appropriate medications . . . in the past, which weighs
in [her] favor, but the medical records reveal that the medications were relatively effective in
controlling [her] symptoms”; (5) Plaintiff weaned herself off of her medications and was using only
over-the-counter medications at the time of her hearing; and (6) her appearance and demeanor at her
hearing were “generally unpersuasive” (tr. 18).
The ALJ’s reasons and, correspondingly, his credibility findings, are not supported by
substantial evidence. With regard to the first reason, Plaintiff’s activities in 2009 are not reflective
of her abilities during a substantial portion of the relevant period. As previously noted, the time
frame relevant to her claim for DIB is November 2004 through September 2009, and for her claim
for SSI is late February 2007 through May 2010. What is more, Plaintiff’s one-time trip to Arizona
to attend her son’s graduation does not necessarily undermine her complaints of disabling
limitations, especially considering that she flew to Arizona, and it is well known that airlines
accommodate travelers with disabilities and handicaps. Additionally, although Plaintiff reported
she was attending college classes, there is no information in the record to demonstrate what this
entailed. For example, the record—including the transcript of Plaintiff’s administrative hearing,
which is silent on the subject—does not reflect whether Plaintiff was a full-time student or a parttime student, how many classes she took, how long the classes were, or whether any
accommodations were made for her. What is more, in June 2009 Plaintiff told Dr. Maddox she was
“trying to go to school” but was having a “very difficult time in being able to maintain her
academics” (tr. 428). Further, the record reflects consistent and repeated reports by Plaintiff that she
could perform only minimal daily activities due to pain (see, e.g., 196, 198, 207, 239). And, her
dramatic weight gain during the relevant period is consistent with her reports of limited activity,
even if she was able to attend college classes at some point during the relevant period.
The ALJ’s second reason has some support in the record, but it does not have substantial
support. A diskectomy can hardly be considered “routine” or “conservative” treatment. And, while
it is fair to say that Plaintiff received treatment that was “essentially routine and/or conservative in
nature” after the diskectomy, the record suggests that this treatment was palliative only. As the ALJ
noted, the evidence indicates that Plaintiff needed an additional surgery, but there is no evidence
establishing that the surgery would have restored Plaintiff’s ability to work. More important, there
is no evidence establishing that surgery was actually prescribed. To be sure, one of the last
Case No.: 5:12cv124/EMT
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physicians to speak on the subject, Dr. Reed, stated that Plaintiff “may” be a candidate for fusion
surgery. See 20 C.F.R. § 404.1530 (Commissioner may consider failure to “follow treatment
prescribed by [a claimant’s] physician” unless good cause exists for failing to do so) (emphasis
added).
As to the ALJ’s fourth reason, the record does not clearly support a finding that Plaintiff’s
pain was managed with medications. Dr. Maddox prescribed pain medications for years, and at
every visit Plaintiff reported continued, severe pain. Although the medications helped to a limited
extent, the record simply does not support a finding that “the medications were relatively effective
in controlling [her] symptoms” during the entire time frame relevant to this appeal. While it is true
that Plaintiff ultimately weaned herself off of her medications and was using only over-the-counter
medications at the time of her hearing (the ALJ’s fifth reason), an objective reading of the record
reflects that she did so because the medications were not providing significant relief, and she could
not function while taking them due to their side effects. Even so, she did not discontinue the Lortab
until mid-2007, nearly three years after her alleged onset date and the beginning of the time frame
relevant to her claim for DIB. Also, Plaintiff had been repeatedly warned by Dr. Maddox that
“narcotic medication is potentially addicting and [Plaintiff was] to take as little of this . . . as
possible to control the pain” (see, e.g., tr. 277, 430, 432, 434, 436, 440), which may have contributed
to Plaintiff’s decision to wean herself off the Lortab. But even after Plaintiff stated she had done
so (see, e.g., tr. 443), Dr. Maddox administered Toradol injections for pain when she saw Plaintiff
in the office and prescribed Percocet and other medications (see, e.g., tr. 434, 436, 438, 440), thus
indicating that Plaintiff’s pain continued and continued to the extent it required narcotic pain
medications.
Finally, the ALJ’s sixth reason—that Plaintiff’s appearance and demeanor at her hearing
were “generally unpersuasive”—is a reason the ALJ properly considered, assuming it is an accurate
observation, but it cannot be the only reason to discount a claimant’s subjective complaints. See
Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987) (“The Secretary relied on substantial
evidence, including demeanor evidence, to conclude that [the claimant’s] complaints were not
credible.”); Macia v. Bowen, 829 F.2d 1009, 1011 (11th Cir. 1987) (citing Norris v. Heckler, 760
F.2d 1154, 1158 (11th Cir. 1985)); see also Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir.1990)
(exclusive reliance on demeanor in credibility determinations is inappropriate, but it is not reversible
Case No.: 5:12cv124/EMT
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error to consider demeanor as one of several factors in evaluating credibility). Here, because the
ALJ’s other reasons for discounting Plaintiff’s complaints lack substantial support in the record, the
“demeanor” factor is insufficient to support the ALJ’s ultimate credibility finding (that is, that
Plaintiff is credible only to the extent her complaints are consistent with the RFC). Accordingly,
the ALJ erred in making his credibility findings, and remand is thus appropriate due to this error as
well. See Foote, 67 F.3d at 1562 (stating that an insufficient credibility finding is “a ground for
remand when credibility is critical to the outcome of the case”).
Therefore, upon remand the ALJ shall consider anew Plaintiff’s subjective complaints of
pain and other symptoms. Should the ALJ again find Plaintiff less than fully credible, he must
specify his reasons for doing so, and the reasons must be supported by substantial evidence on the
record as a whole.
VI.
CONCLUSION
The ALJ erred at step three in failing to explain his findings or identify the listing(s) he
considered and in discounting Plaintiff’s subjective complaints of pain and other symptoms. He also
appears to have erred in considering the opinions of Dr. Maddox/ARNP Breland. As such, the
Commissioner’s final decision is not supported by substantial evidence on the record as whole, and
this case must be remanded for further administrative proceedings. See 42 U.S.C. § 405(g); Foote,
67 F.3d at1556 (remanding for additional administrative proceedings).
Accordingly, it is ORDERED that:
1.
Carolyn W. Colvin is substituted for Michael J. Astrue as Defendant in this action.
2.
Pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner
be REVERSED, the Commissioner is ordered to remand this case to the Administrative Law Judge
for further proceedings consistent with this order, and the Clerk directed to close the file.
At Pensacola, Florida this 8th day of August 2013.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
UNITED STATES MAGISTRATE JUDGE
Case No.: 5:12cv124/EMT
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