MOSHER v. BERRYHILL
Filing
24
MEMORANDUM DECISION AND ORDER. That the clerk of court is directed to substitute Andrew Saul for Nancy A. Berryhill as Defendant. That the Commissioner is directed to remand this case to an Administrative Law Judge for further pr oceedings consistent with this Order. That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C. § 405(g), REVERSING the Commissioner's decision and REMANDING this case for further administrative proceedings. That the Clerk is directed to close the file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 8/12/2019. (sdw)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
HEATHER M. MOSHER,
Plaintiff,
vs.
Case No.: 5:18cv109/EMT
ANDREW SAUL,
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 ECF Nos. 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 supplemental security income
(“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.
Andrew Saul became the Commissioner of Social Security on June 17, 2019. Pursuant to
Fed. R. Civ. P. 25(d), he is therefore automatically substituted for Nancy A. Berryhill as the
Defendant in this case.
1
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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 for additional administrative proceedings.
I.
PROCEDURAL HISTORY
On February 24, 2015, Plaintiff filed an application for SSI, and in the
application she alleged disability beginning January 1, 2007 (tr. 11).2 She later
amended the onset date to April 30, 2015 (tr. 11, 29). Her application was denied
initially and on reconsideration, and thereafter she requested a hearing before an
administrative law judge (“ALJ”). A hearing was held on February 27, 2017, and on
June 14, 2017, the ALJ issued a decision in which she found Plaintiff “not disabled,”
as defined under the Act, at any time from February 24, 2015, through the date of her
decision (tr. 11–20).3 The Appeals Council subsequently denied Plaintiff’s request
All references to “tr.” refer to the transcript of Social Security Administration record filed
on August 6, 2018 (ECF No. 12). 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.
2
As noted, Plaintiff amended her onset date to April 30, 2015, but the ALJ considered her
claim as though the relevant period commenced two months earlier, on February 24, 2015, the date
Plaintiff filed her application for SSI. The undersigned will do the same, 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), but notes that the
minor discrepancy has no bearing on the court’s analysis or conclusions.
3
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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. 11–20):
(1) Plaintiff has not engaged in substantial gainful activity since February 24,
2015, the application date;
(2) Plaintiff has the following severe impairments: fibromyalgia, L4-5 disc
herniation with foraminal encroachment, lumbosacral radiculitis, lumbar disc
degeneration, cervicalgia, plantar fasciitis (left foot), and obesity;
(3) Plaintiff has no 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;
(4) Plaintiff has the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. § 416.967(b) except Plaintiff must be able to alternate
between sitting and standing at thirty-minute intervals as needed; she can never climb
ladders, ropes, or scaffolds; she can occasionally climb ramps and stairs, balance,
stoop, and crouch but never kneel or crawl; she can occasionally be exposed to heat,
wetness, and humidity but should avoid all exposure to excessive vibration and
workplace hazards such as unprotected heights and moving machinery; and she would
be absent from work one day monthly due to her impairments;
(5)
Plaintiff is unable to perform any past work;
(6) Plaintiff was born on October 11, 1975, and was 39 years of age, which
is defined as a younger individual aged 18–49, on the date the application was filed;
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(7) Plaintiff has at least a high school education and is able to communicate
in English;
(8) Transferability of job skills is not an issue because Plaintiff has no past
relevant work;
(9) Considering Plaintiff’s age, education, work experience, and RFC, there
are light jobs that exist in significant numbers in the national economy that Plaintiff
can perform, including office clerk assistant, ticket taker, and mail sorter;
(10) Plaintiff has not been under a disability, as defined in the Act, since
February 24, 2015, the date the application was filed.
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 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,
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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 v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); 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,
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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:
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.
In general, the legal standards applied are the same regardless of whether a claimant seeks
disability insurance benefits (“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.
4
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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 she 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 HISTORY
A.
Personal and Employment History
When Plaintiff applied for SSI in 2015, she was thirty-nine years of age, stood
at five feet and two inches, and weighed two-hundred pounds (tr. 49). She testified
at her hearing in February of 2017 that she last worked in 2007 as a cashier and quit
because the job caused her “stress” and because its physical requirements, namely,
lifting pallets, caused pain (tr. 32; see also tr. 160). She also previously worked as a
cook and a housekeeper (tr. 160).
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Plaintiff testified that she “feel[s]” she cannot work because her pain would
cause her to miss too many work days (tr. 32). She claimed that on “bad days” she
has to force herself to get out of bed, is unable to leave the house, and cannot trust
herself to drive or do anything properly (tr. 33). Plaintiff rated her pain at an eight or
a nine on a ten-point scale (hereinafter “[reported pain level]/10”) and noted it makes
her “nauseated” (tr. 35). Plaintiff stated that she has “about two” bad days per week
and that when her fibromyalgia “flares-up” the symptoms last a few hours to a few
days (tr. 36). Plaintiff reported “shooting pain” in her back, upper leg, and upper arm
that occurs “for no reason” (tr. 40). She also reported having “severe” headaches two
or three times per month that last a few hours to most of the day, and she noted that
medication does not help “very much” (tr. 40–41). Plaintiff stated she needs a cane
for assistance five to six times per month due to pain and numbness (tr. 39). Plaintiff
also has problems sleeping “most nights” and wakes up tired and fatigued (tr. 40).
She has three to four “good days” per week, during which her worst pain is at a 4/10;
however, she is able to “ignore [the pain] and work a little bit through it” (tr. 35–36).
On good days Plaintiff is able to do smaller loads of laundry, cook “a little,” do some
dishes, and perform other small chores (tr. 34).
B.
Relevant Medical History
Evidence that Predates the Relevant Period
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Plaintiff first complained of back and neck pain during a visit with treating
physician John A. Spence, M.D., on August 25, 2011 (tr. 230). Thereafter, she was
seen periodically over the next several years by various providers, but despite her
regular complaints of pain in her neck and back and numbness in her extremities, her
examinations were largely unremarkable (see, e.g., tr. 231–32 (normal cervical and
musculoskeletal range of motion (“ROM”), to include in the right upper extremity),
tr. 256 (normal cervical ROM), tr. 259 (normal cervical ROM, mildly reduced lumbar
ROM, no instability), tr. 286 (normal ROM, negative straight leg test), tr. 305–06
(some pain and tenderness but normal ROM), tr. 316–17 (no abnormalities noted), tr.
319 (normal ROM and strength, negative straight leg test), tr. 218–219 (steady gait,
no abnormalities), tr. 216–17 (full motor strength in three extremities, normal ROM,
no instability), tr. 214–215 (normal gait, negative straight leg test, motor and sensory
examination normal/intact)).
Plaintiff was first assessed with fibromyalgia on December 13, 2012, at which
time Dr. Spence reported “11/18” tender points (tr. 286). On May 2, 2013, Dr. Spence
reported “16/18” tender points (tr. 295).
An MRI of the cervical spine from May 15, 2013, was largely normal and
revealed only minimal disc degeneration at C5-6, and an MRI of the lumbar spine
from March 17, 2014, revealed “minimal” and “slight” findings, including right near
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lateral disc herniation at L4-5 associated with foraminal encroachment (tr. 300, 211).
Plaintiff was diagnosed with lumbosacral radiculitis and cervicalgia (tr. 213, 260).
Overall, Plaintiff’s treatment was conservative, consisting of physical therapy
(tr. 236), injections (tr. 220), water therapy, and recommendations for lifestyle
changes (e.g., good nutrition, exercise program) (tr. 342).
Evidence from the Relevant Period (February 24, 2015–June 14, 2017)
At a visit with Dr. Spence on April 30, 2015, Plaintiff reported worsening back
and neck pain which caused problems with walking and sleeping, and she claimed to
be “miserable” (tr. 349). Dr. Spence again assessed fibromyalgia and reported
“15/18” tender points which were painful to light touch (tr. 350). In June of 2015,
Plaintiff reported trouble walking occasionally and felt she needed a cane at those
times (tr. 370). Despite Plaintiff’s complaints, Dr. Spence continued to document
normal ROM, normal strength in her back and extremities, and negative straight leg
tests (tr. 371, 374).
On January 19, 2016, Plaintiff reported that her pain had progressed to her heels
(left worse than right), but Dr. Spence found no decreased ROM, joint crepitations,
or pain on motion in the lower left extremity (tr. 379–80). Plaintiff was assessed with
lumbago, lumbar degenerative disc disease, fibromyalgia, and plantar fasciitis of the
left foot (tr. 380). Dr. Spence continued to treat Plaintiff conservatively, including by
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administering injections in June of 2015 and suggesting a Butrans patch in September
of 2015 (tr. 371, 375).
C.
Other Information Within Plaintiff’s Claim File
A treating source orthopedic questionnaire addressed to Panhandle Family Care
Associates (“PFCA”) was completed on September 14, 2014 (tr. 209–10). The
provider’s signature is not legible, but the questionnaire indicates that Plaintiff had
last been examined on July 23, 2014 (id.).5 The provider assessed lumbago and
lumbar disc disease without myelopathy and reported that Plaintiff had limited ROM
only with forward flexion of the spine, as well as chronic pain (id.). Plaintiff was
noted to have full “5/5” strength in her grip and lower extremities (tr. 210).
According to the provider, she did not require an assistive device to ambulate and was
able to perform fine and gross manipulation on a sustained basis (id.).
On March 30, 2015, a physician at PFCA completed a treating source
fibromyalgia questionnaire (tr. 347–48). Again, the signature is illegible, but it
appears to have been completed by Dr. Spence. He reported that Plaintiff had a
history of chronic pain, malaise, and eleven positive tender points (tr. 347). Despite
It appears that Dr. Spence completed the questionnaire, as he is the primary provider
affiliated with PFCA, and he treated Plaintiff on July 23, 2014 (see tr. 333).
5
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this, she had 5/5 grip strength, 5/5 lower extremity strength, and did not require an
assistive device or frequent periods of rest (tr. 348).
On July 13, 2015, a non-examining agency physician, Efren Baltazar, M.D.,
assessed Plaintiff’s physical limitations (tr. 68–70). Dr. Baltazar’s opinions generally
correlate with a finding that Plaintiff could perform light work but with environmental
restrictions, to include no concentrated exposure to extreme heat, humidity, fumes,
odors, dusts, gases, poor ventilation, or hazards (see tr. 69–70).
A Vocational Expert (“VE”), Ron Mayne, testified at Plaintiff’s hearing (tr. 42–
46). He classified Plaintiff’s past work as a convenience store clerk, prep cook, and
housekeeper as either “medium” or “medium as performed” (tr. 43–44). Thus, he
found that a hypothetical person with Plaintiff’s RFC (i.e., light work but with
postural and environmental conditions) could not perform Plaintiff’s past work;
however, the person could perform other light jobs in the national economy such as
office work assistant, ticket taker, and mail sorter (tr. 44–45). With respect to “entrylevel positions,” the VE stated that an employee is “usually not allowed to miss any”
days during a “probationary period,” which is the first thirty to ninety days on the job
(tr. 45) (emphasis added). The VE also testified that if the person would be absent
“more than two days per month,” she could not maintain employment (tr. 45). Lastly,
the VE testified that a person who, on half of the days during the month, would be off
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task fifteen to twenty percent on unscheduled breaks, would not be employable in a
full-time position (tr. 46).
V.
DISCUSSION
Plaintiff raises two grounds for relief: (1) the ALJ erred in relying upon the
VE’s testimony to find Plaintiff “not disabled” at step five, and (2) the ALJ erred in
evaluating Plaintiff’s subjective complaints of pain and other symptoms.
A.
Vocational Expert Testimony
Plaintiff contends the ALJ erred by overlooking the VE’s testimony that an
individual who would be expected to be absent from work during a probationary
period would be unemployable (ECF No. 18 at 18).
In performing the five-step, sequential evaluation process, an examiner who
concludes that a claimant is unable to do her past relevant work must then proceed to
the “final step of the evaluation process to determine whether in light of ‘[RFC],’ age,
education, and work experience the claimant can perform other work.” Brown v.
Commissioner of Social Security, 680 F. App’x 822, 827 (11th Cir. 2017) (citing
Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)). At this step, the ALJ is
responsible for providing evidence that demonstrates that other work exists in
significant numbers in the national economy that the claimant can do, given the
claimant’s RFC, age, education, and work experience. See 20 C.F.R. § 416.912(f); 20
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C.F.R. § 416.960(c). “There are two avenues by which the ALJ may determine
whether the claimant has the ability to adjust to other work in the national economy.”
Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). The ALJ may either apply
the Grids or she may consult a VE and pose hypothetical questions to establish
whether an individual with the claimant’s impairments would be able to find
employment. Id. at 1239–40.
Here, in determining Plaintiff’s RFC, the ALJ found that she was capable of
light work with added environmental and postural limitations, and the ALJ further
qualified that Plaintiff would be absent from work one day per month (tr. 15). Given
these limitations, the ALJ concluded that Plaintiff could not perform her past work.
Thus, the burden of showing the existence of other jobs in the national economy that
Plaintiff could perform shifted to the ALJ. MacGregor v. Bowen, 786 F.2d 1050,
1052 (11th Cir. 1986) (citing Gibson v. Heckler, 762 F.2d 1516, 1518 (11th Cir.
1985)).
To meet this burden, the ALJ first received testimony from the VE that a
hypothetical person with Plaintiff’s RFC could perform the three light jobs of office
work assistant, ticket taker, and mail sorter. The ALJ then elicited the following
testimony from the VE:
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ALJ: Now, if an individual had to miss work from time to time, what
—how many days could they miss work and still maintain their
job?
VE: No more than two days per month, your Honor.
ALJ: And then what if someone was consistently absent two days a
month?
VE: Well, actually, if you’re in a probationary period, in entry-level
positions, which is a 30 to 90 day period, the employee is usually
not allowed to miss any. After they have accrued some time,
following the probationary period, if it’s consistent, unscheduled
two days off each month, that would preclude full-time
employment.
(tr. 45).
Thus, in effect, the VE testified that a person with Plaintiff’s RFC—particularly
the requirement that she miss one day of work per month—would not be able to
sustain employment in entry-level positions that have probationary periods, because
no absences are permitted during the probationary periods of such jobs. Relying on
the VE’s testimony, the ALJ found Plaintiff not disabled at step five because she could
perform the “representative jobs” of office work assistant, ticket taker, and mail sorter
(tr. 19).
The ALJ’s finding at step five cannot be upheld. Although the VE did not
definitively state that the three jobs at issue are in fact “entry-level positions,” or that
each entails a probationary period, such is the implication when the exchange between
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the ALJ and VE is placed in context and considered as a whole.6 It thus appears that
Plaintiff cannot perform the “representative occupations” identified by the VE because
she would not be able to maintain employment during the probationary period(s) for
these occupations, due to the requirement in her RFC that she miss one day of work
per month.
The ALJ did not recognize, consider, or resolve this issue during the VE’s
testimony or later in her written opinion—and by failing to do so, the ALJ erred. See,
e.g., Social Security Ruling “SSR” 96-8p, 1996 WL 374184 (July 2, 1996) (in
determining a claimant’s RFC, the ALJ “must also explain how any material
inconsistencies or ambiguities in the evidence in the case record were considered and
resolved”); SSR 82-62, 1982 WL 31386 (Jan. 1, 1982) (“The rationale for a disability
decision must be written so that a clear picture of the case can be obtained. The
rationale must follow an orderly pattern and show clearly how specific evidence leads
to a conclusion.”); Allen v. Barnhart, 357 F.3d 1140, 1145–45 (10th Cir. 2004)
The VE did note that each of the three jobs has a Specific Vocational Preparation, or
“SVP,” of two, but SVP levels do not categorize jobs as to whether they are entry-level or whether
they have probationary periods. “[SVP] is the amount of lapsed time required by a typical worker
to learn the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.” See Dictionary of Occupational Titles (online, at
https://occupationalinfo.org/appendxc_1.html) (last visited Aug. 5, 2019). There are nine SVP
levels, with level-one jobs requiring the least amount of time to learn job skills (i.e., a “[s]hort
demonstration only”) and level-ten jobs requiring the most time (“[o]ver 10 years”). Id. Level-two
jobs require “[a]nything beyond short demonstration up to and including 1 month” to learn job skills.
Id.
6
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(district courts should not draw factual conclusions on behalf of an ALJ or create
post-hoc rationalizations to explain the Commissioner’s treatment of evidence when
that treatment is not apparent from the Commissioner’s decision itself) (citing SEC
v. Chenery Corp., 318 U.S. 80 (1943)); Green v. Shalala, 51 F.3d 96, 101 (7th Cir.
1995) (to permit an informed review, ALJ must articulate her analysis of the evidence;
“[o]nly then may a reviewing court track the ALJ’s reasoning and be assured that the
ALJ considered the important evidence”).
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 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 v.
Shalala, 985 F.2d 528, 534 (11th Cir. 1993); 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 v.
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Sullivan, 936 F.2d at1219 (“The record . . . is fully developed and there is no need to
remand for additional evidence.”). In the instant case it is not clear that the
cumulative effect of the evidence establishes disability without a doubt, and thus the
ALJ’s error requires a remand for additional administrative proceedings.
B.
Subjective Complaints of Pain and Other Symptoms
Although the undersigned has already determined that this case must be
remanded, the court will briefly discuss Plaintiff’s contention regarding the ALJ’s
alleged error in rejecting her subjective complaints of disabling pain and limitations.
When a claimant attempts to establish disability through her own testimony
about her pain or other subjective symptoms, a two-part “pain standard” applies.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard requires
the claimant to show “(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 symptoms.
Wilson, 284 F.3d at 1225; see also 20 C.F.R.
§ 404.1529(a)–(b).
If the ALJ determines that the claimant has a medically determinable
impairment that could reasonably produce the claimant’s pain or other symptoms, then
the ALJ evaluates the extent to which the intensity and persistence of those symptoms
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limit the claimant’s ability to work. 20 C.F.R. § 404.1529(b)–(c). See also SSR
16-3p, 2016 WL 1237954 (Mar. 28, 2016). An ALJ must “articulate explicit and
adequate reasons” for discrediting a claimant’s allegations of disabling symptoms.
Foote, 67 F.3d at 1561–62. “Although this circuit does not require an explicit finding
as to credibility, . . . the implication must be obvious to the reviewing court.” Id., 67
F.3d at 1562 (quoting Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983)).
Here, the ALJ generally concluded that while Plaintiff’s impairments would
reasonably be expected to cause the alleged symptoms, her allegations regarding the
intensity, persistence, and limiting effects of these symptoms were not entirely
consistent with the evidence of record (tr. 16). In pertinent part, the ALJ considered:
(1) that Plaintiff’s treatment was conservative throughout the period of review,
consisting of pain management and recommended lifestyle modifications (tr. 213); (2)
that she had no joint crepitations, and while she reported using a cane at times, the
overall medical evidence revealed no walking limitations (tr. 380); (3) that various
examinations revealed steady gait, negative straight leg tests, and ROMs that were
largely within normal limits despite her persistent claims of moderate to severe pain
(tr. 213, 215, 217, 219, 371, 374); and (4) that the opinions of Dr. Baltazar and/or
those in the PFCA questionnaires noted full strength in Plaintiff’s grip and
extremities, an ability to perform fine and gross manipulative maneuvers on a
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sustained basis, and no need for an assistive device or frequent rest periods (tr. 68–70,
209–10, 347–48).
The foregoing shows that the ALJ evaluated Plaintiff’s subjective complaints
according to the appropriate pain standard. Nevertheless, Plaintiff contends the ALJ
erred in evaluating her fibromyalgia symptoms (ECF No. 18 at 18–26, citing SSR 122p). Pared to its essence, Plaintiff’s argument is that fibromyalgia symptoms “wax
and wane” over time, so a normal physical examination and lack of disabling
symptoms on one day does not mean that she would have normal examinations and
no symptoms on other days (id.). But the regulation cited by Plaintiff addresses this
very point. See SSR 12-2P, 2012 WL 3104869, at *4–5 (July 25, 2012) (“Because the
symptoms and signs of [fibromyalgia] may vary in severity over time and may even
be absent on some days, it is important that the medical source who conducts the CE
[consultative evaluation] has access to longitudinal information about the person.”).
Here the ALJ considered the opinions of Dr. Spence, who, as Plaintiff’s treating
physician, had access to his own treatment records which cover an extended period
of time. Likewise, Dr. Baltazer reviewed multiple records before forming his opinions
in July of 2015, to include records from the PFCA, Tallahassee Orthopedic Clinic, and
Plaintiff’s primary care physician (tr. 63–67), as well as the results of physical
examinations and MRIs obtained in 2011, 2013, and/or 2014 (tr. 66). Thus, both
Case No.: 5:18cv109/EMT
Page 21 of 22
physicians offered opinions regarding Plaintiff’s overall functional limitations after
considering the progression of Plaintiff’s condition and symptoms over time. As such,
the court finds no apparent error with regard to the ALJ’s consideration of Plaintiff’s
fibromyalgia-related complaints.
However, because the case is being remanded on other grounds, the
undersigned will direct the ALJ to reconsider Plaintiff’s fibromyalgia in determining
her RFC and in deciding whether the intensity and persistence of any fibromyalgiarelated symptoms limit her ability to perform work-related activities—in light of the
claim of error raised herein by Plaintiff.
VI.
CONCLUSION
As explained above, the Commissioner’s final decision is not supported by
substantial evidence and cannot be affirmed. 42 U.S.C. § 405(g); Lewis, 125 F. 3d
at 1439; Foote, 67 F.3d at 1560. This action will therefore be remanded for additional
administrative proceedings. In particular, the ALJ should determine Plaintiff’s RFC
anew, including the effect of any fibromyalgia-related symptoms on the RFC, and
ensure that any findings at step five (or elsewhere) are consistent with the RFC.
Accordingly, it is hereby ORDERED:
1.
That the clerk of court is directed to substitute Andrew Saul for Nancy
A. Berryhill as Defendant.
Case No.: 5:18cv109/EMT
Page 22 of 22
2.
That the Commissioner is directed to remand this case to an
Administrative Law Judge for further proceedings consistent with this Order.
3.
That JUDGMENT is entered, pursuant to sentence four of 42 U.S.C.
§ 405(g), REVERSING the Commissioner’s decision and REMANDING this case
for further administrative proceedings.
4.
That the Clerk is directed to close the file.
At Pensacola, Florida this 12th day of August 2019.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case No.: 5:18cv109/EMT
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