Sanders v. Colvin
ORDER and OPINION REVERSING the final decision of the Commissioner and REMANDS the case for further proceedings consistent with this opinion. The Clerk is DIRECTED to enter final judgment in Plaintiff's favor. Signed by Magistrate Judge Alan J. Baverman on 3/7/2018. (btql)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NANCY A. BERRYHILL,
Acting Commissioner, Social
CIVIL ACTION FILE NO.
O R D E R A N D O P I N I O N1
Plaintiff Melissa Sanders (“Plaintiff”) brought this action pursuant to
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review
of the final decision of the Commissioner of the Social Security Administration (“the
Commissioner”) denying her application for Disability Insurance Benefits (“DIB”)
under the Social Security Act.2 For the reasons below, the undersigned REVERSES
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. (See Dkt. Entries dated 11/16/16). Therefore, this Order constitutes a final
Order of the Court.
Title II of the Social Security Act provides for federal Disability Insurance
Benefits. 42 U.S.C. § 401 et seq. Title XVI of the Social Security Act,
42 U.S.C. § 1381, et seq., provides for Supplemental Security Income Benefits for the
disabled (“SSI”). Title XVI claims are not tied to the attainment of a particular period
the final decision of the Commissioner AND REMANDS the case to the Commissioner
for further proceedings consistent with this opinion.
Plaintiff filed an application for DIB on February 28, 2011, alleging disability
commencing on September 16, 2010. [Record (hereinafter “R”) 391]. Plaintiff’s
applications were denied initially and on reconsideration. [See R177-79]. Plaintiff then
requested a hearing before an Administrative Law Judge (“ALJ”). [R213-14]. An
evidentiary hearing was held on January 10, 2013. [R53-109]. The ALJ issued a
decision on March 12, 2013, denying Plaintiff’s application on the ground that she had
not been under a “disability” from the alleged onset date through the date of the
decision. [R180-96]. Plaintiff sought review by the Appeals Council, and on
May 29, 2014, the Appeals Council remanded for further consideration. [R197-99].
of insurance eligibility. Baxter v. Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982).
Otherwise, the relevant law and regulations governing the determination of disability
under a claim for DIB are nearly identical to those governing the determination under
a claim for SSI. Wind v. Barnhart, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). In general, the
legal standards to be applied are the same regardless of whether a claimant seeks DIB,
to establish a “period of disability,” or to recover SSI, although different statutes and
regulations apply to each type of claim. See 42 U.S.C. § 1383(c)(3) (establishing that
the judicial provisions of 42 U.S.C. § 405(g) are fully applicable to claims for SSI).
Therefore, to the extent that the Court cites to SSI cases, statutes, or regulations, they
are equally applicable to Plaintiff’s DIB claims.
The ALJ started a second hearing on November 4, 2014, but rescheduled the matter in
order to receive all of the medical evidence. [R110-20]. A third evidentiary hearing
was held on March 17, 2015. [R121-76]. On June 9, 2015, the ALJ issued a decision
denying Plaintiff’s application on the ground that she had not been under a “disability”
from the alleged onset date through the date of the decision. [R25-52]. Plaintiff again
sought review by the Appeals Council, and the Appeals Council denied Plaintiff’s
request for review on October 27, 2016, making the ALJ’s decision the final decision of
the Commissioner. [R1-8].
Plaintiff then filed her action in this Court on November 14, 2016, seeking
review of the Commissioner’s decision. [Doc. 1]. The answer and transcript were filed
on March 15, 2017. [See Docs. 5, 6]. On April 20, 2017, Plaintiff filed a brief in
support of her petition for review of the Commissioner’s decision, [Doc. 11]; on
May 22, 2017, the Commissioner filed a response in support of the decision, [Doc. 12];
and on June 2, 2017, Plaintiff filed a reply brief in support of her petition for review,
[Doc. 13]. The matter is now before the Court upon the administrative record, the
parties’ pleadings, and the parties’ briefs,3 and it is accordingly ripe for review pursuant
to 42 U.S.C. § 405(g).
Neither party requested oral argument. (See Dkt.).
As set forth in Plaintiff’s brief, the issues to be decided are:
Whether the ALJ reversibly erred by failing to properly explain
why he did not fully credit the opinion of Keith Osborn, M.D.,
Plaintiff’s treating orthopedic surgeon, as to her physical
Whether the ALJ reversibly erred by failing to consider all of the
relevant evidence of record in discounting the credibility of
Plaintiff’s allegations of pain and limitation.
[Doc. 11 at 10-28].4
Where the page numbers in Plaintiff’s brief conflict with the numbers
assigned by the Court’s CM/ECF system, the Court will utilize the page numbers
assigned by the CM/ECF system.
STATEMENT OF FACTS5
Plaintiff can read and write in English, has a twelfth-grade education, and has
worked as a process server. [R461-63]. Born on April 13, 1972, she was thirty-eight
years old on the alleged onset date and application date and was forty-one years old on
December 31, 2013, the date she was last insured. [R178, 391]. Plaintiff alleges
disability due to back pain, neck problems, nerve damage in the neck and shoulders,
depression, radiculopathy,6 panic attacks, and headaches. [R61, 126, 462].
In general, the records referenced in this section are limited to those
deemed by the parties to be relevant to this appeal. [See Docs. 11-13]. As the Court’s
scheduling order warned the parties that each statement of fact must be supported by
reference to the page in the record where the evidence may be found, that “record
citations should immediately follow each allegation of fact,” and that “[t]he issues
before the Court are limited to the issues properly raised in the briefs,” [Doc. 8 at 2-3],
broad statements of fact followed by generalized citations to a range of pages have been
disregarded, [see, e.g., Doc. 11 at 6-7].
Radiculopathy is an alternate name for a herniated (slipped) disk, which
occurs when all or part of the softer center of a spinal disk is forced through a
weakened part of the exterior of the disk, forming a protruding mass and placing
pressure on nearby nerves.
Mayo Clinic, Herniated Disk,
(last visited 3/7/18); MedlinePlus, Herniated Disk,
http://www.nlm.nih.gov/medlineplus/ency/article/000442.htm (last visited 3/7/18).
Plaintiff stated that she spent her days at the house, getting “up and down” to
change ice packs and to alleviate pain in her neck, back, and hips. [R139-40]. She
stated that she was only able to sleep two or three hours per night. [R139]. She
testified that her neck, back, and hip pain made it difficult to sit or stand for any period
of time or to lift any weight. [R139-40, 144, 147-48]. She also reported tingling in her
left arm that had begun when she had a spinal surgery in 2007 and had become worse
since she had a second spinal surgery in 2012. [R151-52]. She stated that she
experiences four headaches per week, each of them lasting two to six hours. [R153-54].
In terms of treatment, Plaintiff reported that she only attended a few physical
therapy treatments, explaining that they caused her to be in more pain. [R144-45]. She
had slowed the rate of receiving trigger-point shots from her pain specialist. [R145-46].
At the time, her medications included hydrocodone7 for pain and Ambien8 for sleep.
[R149-50]. She reported that the intensity of her neck pain was usually around nine or
Hydrocodone is a narcotic analgesic medication used to relieve severe
p a i n .
M e d l i n e P l u s ,
H y d r o c o d o n e ,
https://medlineplus.gov/druginfo/meds/a614045.html (last visited 3/7/18).
Ambien (zolpidem) is a sedative-hypnotic medication that is used to treat
i n s o m n i a .
M e d l i n e P l u s ,
Z o l p i d e m ,
https://medlineplus.gov/druginfo/meds/a693025.html (last visited 3/7/18).
ten on a ten-point scale but that using ice packs reduced her pain to five or four.
[R157]. Plaintiff also stated that she had a TENS9 unit but only sometimes used it
because it would increase her pain. [R161].
As to daily activities, Plaintiff stated that she liked to watch CSI on television
and to watch crime movies. [R155]. Plaintiff testified that she was able to drive her
H2 Hummer four times per month, up to forty-five minutes at a time. [R128, 137, 174].
She had no problems with self-care except washing her hair. [R133-34]. Around the
house, she could clean the floors with a light-weight dust mop and light-weight
vacuum, load the dishwasher, wash laundry, and walk to the mailbox. [R134-35].
Plaintiff’s sister helps her with the cleaning and dries the laundry, and Plaintiff’s
daughter does almost all of the grocery shopping. [R78-79, 134-35].
Plaintiff stated in a function report that she lived in a house with her daughter and
spent her days keeping ice on her neck and rotating from sitting, to lying down, to
walking in order to avoid pain. [R477]. She reported that she was no longer able to
“TENS” is an acronym for transcutaneous electric nerve stimulation,
which is a method to reduce pain with electrical impulses. Nat’l Osteoporosis Found.,
Protecting Your Fragile Spine 11, available at
jog, work out, or work because of her pain, that it hurt to wear a bra, and that she no
longer styled her hair because she could not hold her arms up. [R478]. She stated that
she was only able to use the microwave oven and that her daughter does the cooking
and helps with the laundry and housework. [R478-79]. She reported that she could pay
bills, count change, and handle a savings account. [R480].
Plaintiff fell and injured her neck while she was working as a policewoman.
[R613]. After conservative measures failed, on September 18, 2007, Dr. Osborn
performed a partial vertebrectomy, C5-6 with spinal cord and foraminal decompression,
and an anterior cervical discectomy at C6-7, with removal of large free fragments from
the canal and foramen. [R613-14].
At a follow-up visit with Dr. Osborn taking place on October 17, 2007, Plaintiff
reported that she was off narcotic pain medications and “doing a lot better.” [R674].
Her x-rays showed good position of her hardware and bone grafts at C5-6 and C6-7.
[R674]. Dr. Osborn noted that Plaintiff still had a “burning dysesthestic pain”10 in her
left arm that appeared to relate to chronic compression of her left C7 root, fairly dense
Dysesthesia can refer to impairment of sensitivity to touch, to disagreeable
sensation produced by ordinary stimuli, or to abnormal sensation experienced in the
absence of stimulation. PDR Med. Dictionary 531 (1st ed. 1995).
numbness in the left index finger, and less dense numbness in the middle and ring
fingers of the left hand. [R674]. He also observed that Plaintiff’s strength had
improved but was not back to normal. [R674]. Dr. Osborn started Plaintiff on Lyrica,11
Celebrex,12 and trazodone13 for sleep difficulty and left-arm pain; started her on
tizanidine14 for muscle spasm in her left trapezius15; and stated that she would “remain
out of work for now.” [R674].
Lyrica (pregabalin) is used to relieve pain from damaged nerves. It works
by decreasing the number of pain signals that are sent out by damaged nerves in the
body. MedlinePlus, Pregabalin, https://medlineplus.gov/druginfo/meds/a605045.html
(last visited 3/7/18).
Celebrex (celecoxib) is a nonsteroidal anti-inflammatory drug (“NSAID”)
that is commonly used to relieve pain, tenderness, swelling, and stiffness caused by
o s t e o a r t h r i t i s a n d s p i n a l a r t h ritis.
https://medlineplus.gov/druginfo/meds/a699022.html (last visited 3/7/18).
Trazodone is a serotonin modulator typically used to treat depression.
MedlinePlus, Trazodone, https://medlineplus.gov/druginfo/meds/a681038.html (last
Tizanidine is a skeletal muscle relaxant that is used to relieve the spasms
and increased muscle tone caused by spinal injury. It works by slowing action in the
brain and nervous system to allow the muscles to relax. MedlinePlus, Tizanidine,
https://medlineplus.gov/druginfo/meds/a601121.html (last visited 3/7/18).
The trapezius is a large muscle located in the upper part of the back.
Contraction of the muscle moves the shoulder blade in several different directions;
when the trapezius muscle is engaged, the collarbone is generally raised. J.E. Schmidt,
M.D., Attorneys’ Dictionary of Medicine, Illustrated T-217 (46th ed. 2012).
At another follow-up visit taking place on November 15, 2007, Plaintiff reported
that she had to stop taking her medications because of swelling and that she was unable
to sleep at night. [R675]. Her main complaint was pain in the left scapular and
trapezius region and still fairly dense numbness in the left index finger and to lesser
degree in the middle and ring fingers. [R675]. Dr. Osborn noted that Plaintiff was
improving slowly, recommended that Plaintiff use the Lyrica and Celebrex,
recommended that she continue rehabilitation services, and opined that Plaintiff was
capable of part-time sedentary work. [R675]. He also noted that Plaintiff had
contacted her chief and that he did not want her to return to work until she was released
to full duty. [R675].
On January 16, 2008, Plaintiff returned to Dr. Osborn. [R520-21]. She had been
fired from her job. [R520]. She complained of pain in her neck, left shoulder, and arm,
and dysesthestic pains in the left arm and hand. [R520]. She reported that sitting for
long periods caused her numbness and tingling to get worse, that she felt some burning
in her left thumb and index finger, that her arms felt like they had no circulation, and
that wearing a bra seemed to significantly worsen her symptoms. [R520]. Upon
examination, Dr. Osborn observed that Plaintiff had pain at the extremes of range of
motion of her neck, there was still subluxation16 and muscle spasm in the trapezius area,
Plaintiff still had diminished coordination of the left arm, reflexes were diminished in
the left biceps and triceps, there was decreased sensation in the left hand, and motor
strength was still mildly diminished in the left arm compared to the right. [R520].
Dr. Osborn opined that Plaintiff appeared to be healed from an orthopaedic standpoint
but that she “clearly ha[d] sustained some nerve injury from the pressure of the disk
herniation against her spinal cord and exiting nerve roots” and it could “take some
months or years to reach a point of maximum improvement and may or may not result
in full recovery.” [R520]. Dr. Osborn further opined, “I think she has significant
impairment in her ability to work at this point, and this could be permanent. It is
unfortunate that she has been fired from her job. She remains capable of only
sedentary work and will benefit from pain management possibly with an epidural
steroid injection.” [R521].
On August 18, 2008, Plaintiff visited Anthony C. Carantzas, M.D., at
Douglasville Resurgens Orthopaedics for follow-up of shoulder impingement on the
right. [R777]. It was noted that she had an injection a couple of weeks earlier and that
“Subluxation” refers to an incomplete dislocation, such as when one or
more of the bones of the spine moves out of position. PDR Med. Dictionary 1693
(1st ed. 1995).
she had noticed significant improvement. [R777]. Dr. Carantzas stated that Plaintiff
could work with limited use of the right arm, limited overhead work, and no heavy
Plaintiff visited psychologist David B. Adams, Ph.D., on June 3, 2009. [R690].
Dr. Adams noted that Plaintiff arrived in considerable bilateral neck and shoulder pain,
with numbness of the first two fingers of her left hand, and was irritable and
periodically tearful. [R690]. It was also noted that Plaintiff spent a lot of time with her
daughter in a piece of rental property because she was too irritable to interact with her
husband and that Plaintiff’s family expressed frustration that she was sullen and
withdrawn. [R690]. Plaintiff had symptoms of depression, anxiety, sleep disorder,
irritability/impatience, and obsessive thoughts. [R690]. Dr. Adams diagnosed pain
disorder associated with both psychological factors and Plaintiff’s general medical
condition and also diagnosed major depressive disorder with mild symptoms. [R690].
Physical therapist Alex Ghaffari completed an assessment of Plaintiff on
December 14, 2009. [R882-86]. Mr. Ghaffari observed that Plaintiff demonstrated
significantly decreased left-upper-extremity strength, decreased cervical-spine
flexibility, forward head posture, and increased cervico-thoracic para-spinal muscle
tightness. [R882]. She had partial functional range of motion in the left shoulder and
was unable to perform fine and gross grasping tasks, both at the table level and the
shoulder level, utilizing the left arm. [R882]. Mr. Ghaffari concluded that Plaintiff
(1) could perform fine and gross motor skills with her left arm only occasionally;
(2) had difficulty sitting for about thirty to forty-five minutes but tolerated the pain;
(3) had reduced range of motion in the left shoulder; (4) had limited active range of
motion and joint mobility in the neck and upper thoracic area; (5) had to move
constantly with her head in slight extension with decreased cervical lordosis17 and
rounded shoulders; (6) had decreased coordination, endurance, and strength in the left
shoulder, neck, and thoracic spine; and (7) had high intensity pain in the neck and upper
back with flexion/extension, and rotation. [R884-86]. Mr. Ghaffari opined that
Plaintiff could do sedentary to light work but that she “would not be able to perform her
job duty on a full time or sustained basis at . . . present.” [R882]. The stated plan was
physical therapy twice weekly for twelve weeks, a TENS unit for pain management at
home, joint mobilization and manual therapy, cervical traction, acupuncture and dry
Cervical lordosis refers to the natural inward curve of the spine at the neck.
Loss of the natural curve can cause neck pain, reduced range of motion in the neck, and
problems with the nerve roots or spinal cord, which may lead to weakness in the arms
or legs, loss of grip strength, or difficulty walking. Univ. of Maryland Med. Ctr.,
http://www.umm.edu/programs/spine/health/guides/cervical-kyphosis (last visited
needling for pain and muscle guarding, strength- and re-conditioning, and a home
exercise program. [R886].
At a visit with Dr. Osborn taking place on December 16, 2009, Plaintiff
continued to complain of neck and left-arm pain with weakness and atrophy in the left
arm. [R1384]. An examination showed tenderness in the neck, reduced neck motion,
exquisite tenderness to the left of the midline, diminished reflexes in the left biceps and
triceps, some atrophy in her arm, and decreased sensation in the C6-7 distribution, but
also a normal gait and station and no neck subluxations. [R1384]. X-rays of the
cervical spine showed solid fusion at C5-6 and C6-7 with degenerative changes
developing at C4-5 with anterior osteophytes18 and uncovertebral joint hypertrophy.19
[R1384]. Dr. Osborn noted that the results represented junctional deterioration but
found that there were no symptoms to suggest that it was the primary source of
Plaintiff’s pain and instead diagnosed cervical radiculopathy and recommended a trial
of acupuncture. [R713, 1384-85]. He also noted that Plaintiff was capable of sedentary
work, defined as lifting a maximum of ten pounds, occasionally lifting and/or carrying
An osteophyte is a bony outgrowth or protuberance. PDR Med. Dictionary
1270 (1 ed. 1995).
“Hypertrophy” refers to abnormal enlargement. J.E. Schmidt, M.D.,
Attorneys’ Dictionary of Medicine, Illustrated H-258, J-19-20 (46th ed. 2012).
articles such as dockets, ledgers, and small tools, and doing a “certain amount” of
walking and standing. [R713].
An MRI of Plaintiff’s cervical spine taken on December 4, 2010, revealed
(1) interspace narrowing with spondylotic ridging20 and a broad-based disc bulge at
C4-5 causing moderate central canal and moderate bilateral foraminal stenosis21; and
(2) interspace narrowing with spondylotic ridging and a broad based disc bulge together
causing mild central canal stenosis and mild-to-moderate bilateral foraminal stenosis
at C3-4. [R1347-48].
John G. Porter, M.D., a pain specialist, examined Plaintiff on February 22, 2011.
[R1341]. Upon examination, Dr. Porter observed that Plaintiff’s affect was depressed;
upper-extremity reflexes could not be obtained at the triceps, biceps, or brachioradialis
points bilaterally; strength was diminished on the left in grip strength, biceps, triceps,
“Spondylosis” refers to stiffening vertebra and is “often applied
nonspecifically to any lesion of the spine of a degenerative nature.” PDR Med.
Dictionary 1656 (1st ed. 1995).
“Foraminal stenosis” is a narrowing of a nerve opening where a nerve root
leaves the spinal canal.
https://medlineplus.gov/ency/article/007390.htm (last visited 2/23/18). “Spinal
stenosis” causes narrowing in the spinal canal, which in turn puts pressure on the nerves
and spinal cord and can cause pain.
MedlinePlus, Spinal Stenosis,
https://medlineplus.gov/spinalstenosis.html (last visited 3/7/18).
and deltoid testing; there was mild atrophy of the left forearm and upper arm; sensation
was diminished in the index finger and third finger and to some degree in the thumb;
there were trigger points in the trapezius on the left; range of motion was normal in
flexion and in right turn; left turn was limited to forty-five degrees; and hyperextension
caused Plaintiff to have numbness across her neck and upper back. [R1341]. Dr. Porter
noted that he was concerned about a structural abnormality that might require surgical
repair, opined that Plaintiff’s pain was primarily neuropathic, and noted that ibuprofen
had been ineffective and caused stomach upset. [R1341].
On August 23, 2011, Carl Sherrer, M.D., reviewed the record and opined that
Plaintiff had the ability to lift and/or carry twenty pounds occasionally and ten pounds
frequently; could stand and/or walk for about six hours in an eight-hour workday; could
sit for about six hours in an eight-hour workday; could occasionally climb or crawl;
could frequently balance, stoop, kneel, or crouch; could reach in all directions
occasionally with both arms; and had a limited ability to feel, due to numbness in the
index and third fingers of her left hand. [R1233-40].
Plaintiff returned to Dr. Porter on September 2, 2011. [R1246-48]. She reported
that she was taking medications as prescribed and that Xanax22 and hydrocodone were
helping, but that she still had neck pain, tingling all the way to the fingers of her left
hand, intermittent numbness and left-arm weakness, and now had pain in her right arm
as well as her left. [R1246]. Dr. Porter noted that Dr. Osborn was considering a second
fusion surgery above Plaintiff’s prior fusion. [R1246]. He prescribed ibuprofen,
topiramate,23 nortriptyline,24 fluoxetine,25 and meloxicam.26 [R1246]. He stated that
Xanax (alprazolam) is a benzodiazepine typically used to treat anxiety
disorders and panic disorder.
Medline Plus, Alprazolam,
https://medlineplus.gov/druginfo/meds/a684001.html (last visited 3/7/18).
Topiramate, commonly prescribed under the brand name Topamax, is an
anticonvulsant medication that is used to prevent migraine headaches but not to relieve
the pain of migraine headaches when they occur. MedlinePlus, Topiramate,
https://medlineplus.gov/druginfo/meds/a697012.html (last visited 3/7/18).
Nortriptyline is a tricyclic antidepressant medication. MedlinePlus,
Nortriptyline, https://medlineplus.gov/druginfo/meds/a682620.html (last visited
Fluoxetine, commonly prescribed under the brand name Prozac, is a
selective serotonin reuptake inhibitor (“SSRI”) used to treat depression,
obsessive-compulsive disorder, some eating disorders, and panic attacks. MedlinePlus,
Fluoxetine, https://medlineplus.gov/druginfo/meds/a689006.html (last visited 3/7/18).
Meloxicam, commonly prescribed under the brand name Mobic, is an
NSAID medication often used to relieve pain, tenderness, swelling, and stiffness caused
by osteoarthritis and rheumatoid arthritis.
https://medlineplus.gov/druginfo/meds/a601242.html (last visited 3/7/18).
he doubted that repeated injection therapy or physical therapy would make a
substantive difference in Plaintiff’s condition and stated that he would refill Plaintiff’s
medication as he “really ha[d] nothing else to offer her beyond this.” [R1247].
Plaintiff reported to Dr. Osborn on September 12, 2011, for follow up. [R1289].
She complained of continued pain in her neck that went into both arms, more on the left
than the right, and of numbness in her left arm. [R1289]. It was noted that Plaintiff
was prescribed Ambien, Lortab,27 and Xanax through Dr. Porter and that she had
received “a lot of relief” from massage therapy, more than from rehabilitation, and had
received some relief from acupuncture. [R1289]. It was noted that a review of systems
was negative for neurological or musculoskeletal complaints. [R1289]. She had some
tenderness and reduced motion in the neck, but she had normal gait, no clear motor or
reflex deficits, no overt myelopathy, and normal lower extremities. [R1289]. The
impression given was known C4-5 spondylosis with neural compression. [R1289].
Dr. Osborn stated that although he believed Plaintiff would need additional surgery, he
would for now continue with conservative measures of massage therapy, a trial of
Lortab is an opioid pain medication that contains a combination of
acetaminophen and hydrocodone and is used to relieve moderate to severe pain.
Drugs.com, Lortab, http://www.drugs.com/lortab.html (last visited 3/7/18).
acupuncture, supportive counseling through Dr. Adams, and medication management
through Dr. Porter. [R1289].
On December 7, 2011, Plaintiff sought help on an emergency basis from
Dr. Porter for severe right-neck pain that had persisted for three days and was radiating
to her upper back, shoulder blade, and left arm, with a burning, numbing sensation in
her left biceps, index, and third fingers on the left. [R1432]. Her strength was
decreased on the left as was her sensation in a C6 distribution, and her cervical range
of motion was diminished in turning, flexion, and extension. [R1433]. Dr. Porter
instituted muscle relaxant therapy with tizanidine, refilled alprazolam, and continued
meloxicam and zolpidem. [R1433]. Dr. Porter also wrote that the best he could do was
provide palliative management with trigger-point injections and muscle-relaxant
therapy and hope that Dr. Osborn had a surgical remedy. [R1432-33].
Plaintiff returned to Dr. Osborn for follow up on December 12, 2011.
[R1497-98]. She complained of increasing pain in her neck that radiated into her right
arm and would go into the shoulder and down into her hand sometimes. [R1498].
Dr. Osborn noted that Plaintiff would like to continue to try to avoid surgery and would
work with Dr. Porter but that if her symptoms worsened, surgery would be indicated.
[R1498]. Plaintiff was also prescribed a soft cervical collar to help control her pain.
[R1498]. Dr. Osborn noted that Plaintiff was only capable of part-time sedentary work.
On December 22, 2011, Plaintiff returned to Dr. Adams for the first time in two
and one-half years. [R1445]. It was noted that Plaintiff was divorced; was angry,
sullen, and frustrated; was in a contentious and ongoing battle with her ex-husband; had
financial limitations; and was fearful of an additional surgery, which she had been
postponing. [R1445]. She was observed to exhibit symptoms of depression, anxiety,
sleep disorder, problems with concentration, irritability and/or impatience, intrusive
thoughts, and obsessive thoughts. [R1445]. It was noted that Plaintiff recurrently
discontinued needed psychological care each time her depression abated due to the care
and that she shunned dependency. [R1445]. Dr. Adams again diagnosed pain disorder
associated with both psychological factors and general medical condition and also
diagnosed major depressive disorder (single episode, moderate). [R1445].
Plaintiff again returned to Dr. Adams on January 11, 2012. [R1446]. She
reported that her neck pain had worsened and that she had researched the recommended
surgical procedure and did not wish to pursue it. [R1446]. She was observed to exhibit
symptoms of depression, anxiety, sleep disorder, irritability and/or impatience,
obsessive thoughts, compulsive behaviors, and problems with concentration and recent
memory. [R1446]. Dr. Adams again diagnosed pain disorder associated with both
psychological factors and general medical condition and major depressive disorder
(single episode, moderate). [R1446].
Plaintiff returned to Dr. Porter on February 7, 2012, with complaints of left-back
and neck pain with radiating left-arm pain. [R1441]. Plaintiff reported that physical
therapy was not really helping her, that massage therapy was helpful for a day or so,
and that a TENS unit seemed to help with her pain. [R1441]. On examination, reflexes
could not be obtained on the left at the triceps, biceps, or crachioradialis points; strength
was slightly diminished on the left in biceps and grip testing; sensation was slightly
decreased in the left C6 distribution; range of motion was decreased in turning and
extension; and examination of the back revealed left trapezius and rhomboid trigger
points. [R1442]. Dr. Porter noted Plaintiff was stable and compliant with medication
usage; refilled her medications; discontinued physical therapy because it was not
helping; injected trigger points in the left trapezius and rhomboid muscle; and
suggested that a facet rhizotomy28 might be indicated, pending results of diagnostic
Rhizotomy is a procedure where a surgeon cuts spinal nerve roots for relief
of pain or spastic paralysis. PDR Med. Dictionary 1546 (1st ed. 1995).
facet joint injections,29 and could help her move forward without requiring additional
surgical intervention. [R1442-43].
Plaintiff presented to a physician’s assistant at Dr. Osborn’s practice on
February 9, 2012, complaining of headaches; persistent neck and upper-back pain;
left-arm pain, numbness, and weakness; and some mid-back pain. [R1493-95]. She
reported that despite taking Ambien, Mobic, Lortab, Xanax, and Topamax, the pain was
nine on a ten-point scale. [R1493]. On examination, Plaintiff had tenderness to
palpation in the neck and shoulders and restricted flexion, extension, rotation, and
lateral bending with pain, but she also had normal gait and alignment, full strength,
normal coordination and balance, intact reflexes, normal sensation, and full bilateral
shoulder motion without pain. [R1493-94]. It was noted that Dr. Porter was scheduled
Facet joints are situated between the stacked vertebrae and typically lie
behind the spinal nerves as the emerge from the central spinal canal. The two facet
joints and intervertebral disc at each level of the spine allow for motion between the
KnowYourBack.org., Anatomy of the Spine (Bones),
https://www.spine.org/KnowYourBack/Resources/AnatomySpine (last visited 3/7/18).
Facet joint pain can be diagnosed with local anesthetic blocks of the medial branches
or of the facet joints themselves. David S. Binder & Devi E. Nampiaprarmpil, The
Provocative Lumbar Facet Joint, Curr. Rev. Musculoskeletal Med., Abstract, available
at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2684949 (last visited 3/7/18).
to perform facet injections30 with a possible ablation procedure31; Dr. Osborn
recommended additional fusion surgery of the cervical spine; Plaintiff wanted to wait
on the surgery until the summer when her daughter was out of school; and Plaintiff
would continue with her medicines per Dr. Porter. [R1494]. Plaintiff’s work status
was “unchanged.” [R1494].
An MRI taken on September 24, 2012, revealed multilevel degenerative disc
disease most pronounced at C4-5, with right greater than left neural foraminal
narrowing at C3-4 and left-sided neural foraminal narrowing at C4-5. [R1573-74].
At an appointment taking place on October 10, 2012, Dr. Osborn noted that
Plaintiff’s progressive arm numbness and weakness and her neck pain related to cord
compression with herniated disks at C3-4 and C4-5 and opined that Plaintiff should
have another cervical fusion. [R1572]. Plaintiff agreed. [R1572]. The same day,
Facet injections involve injection of steroids and local anesthetic into the
facet joints to determine if it is a source of pain or to reduce pain and inflammation.
KnowYourBack.org, Spine Definitions A-Z, Facet Injection,
https://www.spine.org/KnowYourBack/Resources/Definitions (last visited 3/7/18).
In this context, ablation is a procedure used to destroy the function of
nerve tissue, thereby decreasing pain signals from that specific area. WebMD,
https://www.webmd.com/pain-management/radiofrequency-ablation#1-2 (last visited
3/7/18); PDR Med. Dictionary 3 (1st ed. 1995).
Dr. Osborn also opined Plaintiff could do sedentary work with restrictions, pending
approval for surgery. [R1663].
Plaintiff complained to Dr. Porter on November 13, 2012, of increased neck and
back pain. [R1592]. She described a deep and aching pain in her neck, upper back, and
left arm, which was worsened with coughing, activity, and bowel movements. [R1592].
She also reported that her arm felt weak and tingly. [R1592]. It was noted that Plaintiff
was only using medication “on occasion” because she did not like medication in
general, that she was using her TENS unit occasionally, and that she was using cold
packs. [R1592]. Dr. Porter stated that he had “nothing to offer the patient today except
reassurance” and that he did not think additional trigger-point injections were warranted
or would help her. [R1593]. He recommended that Plaintiff continue her TENS unit
therapy and cold packs until she could have her surgery. [R1593].
On November 30, 2012, Dr. Osborn performed a C3-4, C4-5 discectomy, spinal
cord decompression, and fusion. [R1699, 1725].
Plaintiff returned for a follow-up visit to Dr. Osborn on February 6, 2013, with
complaints of persistent neck and upper-back pain and some left-upper-arm pain.
[R1698]. She noted hypersensitivity, burning pain in the neck and upper-back area,
continued headaches, recurrent numbness and weakness in both arms, and pain
averaging eight on a ten-point scale. [R1698]. Upon examination, it was noted that
Plaintiff’s range of motion of the cervical spine was restricted with pain; sensation and
reflexes of upper extremities were unchanged from pre-op; and Plaintiff had diffuse
tenderness and sensitivity over the neck and upper back. [R1698]. She was also
observed to have full strength in her upper extremities, and her surgical hardware was
intact. [R1698]. She was started on gabapentin,32 her Ambien prescription was
renewed, and it was noted that she would continue to receive her pain medication from
Dr. Porter. [R1698]. It was also noted that Plaintiff remained unable to work.
Plaintiff returned to Dr. Porter on April 23, 2013. [R1827]. Dr. Porter observed
that Plaintiff’s affect was depressed and that upon examination, her range of motion
was reduced in turning; she had pronounced tightness of the trapezius muscles
bilaterally and diffuse pain and tenderness; upper extremity reflexes of 0-1 + at triceps,
biceps, and brachioradialis points bilaterally; diminished strength on the left; and
normal sensation in the arm with the exception of the index and third finger. [R1827].
Dr. Porter gave Plaintiff trigger-point injections and began weaning her medication
Gabapentin, also known by the brand name Neurontin, is often used to
https://medlineplus.gov/druginfo/meds/a694007.html (last visited 3/7/18).
other than her sleep medication because it was not helping. [R1828]. He also opined
that Plaintiff was at maximal medical improvement with no other treatment options and
that she was capable of working in a sedentary capacity “but will not do well at present
with any significant lifting or arm movements especially over her head.” [R1828].
A neurological examination conducted by Dr. Osborn on June 12, 2013,
indicated decreased sensation in both hands. [R1710]. Dr. Osborn also noted some
discomfort and pain with range of motion of Plaintiff’s neck and mild aggravation with
a Phalen test.33 [R1710]. It was noted that she was capable of sedentary work.
At a visit taking place on July 17, 2013, Plaintiff complained to Dr. Osborn of
persistent neck and upper-back pain, bilateral arm pain, and weakness and numbness
in both arms. [R1707]. It was noted that she had been involved in a motor-vehicle
accident on June 20, 2013, and that she had been struck on the passenger side, which
totaled her car and caused a soft-tissue injury. [R1707]. Plaintiff reported that her pain
had worsened in the arms with increased burning in both arms down to the hands and
The Phalen test (bending the wrist all the way forward for sixty seconds
to see if numbness, tingling or weakness results) is commonly used to determine
whether a patient has carpal tunnel syndrome. MedlinePlus, Carpal Tunnel Syndrome,
http://www.nlm.nih.gov/medlineplus/ency/article/000433.htm (last visited 3/7/18).
diminished range of motion in her cervical spine and upper back. [R1707]. She
described the pain as a constant, throbbing ache that varied in intensity and was
presently at eight on a ten-point scale. [R1707]. An examination by Dr. Osborn
showed that Plaintiff had tenderness over the right and left trapezius and paracervical
and parathoracic musculature; restricted flexion, extension, rotation, and lateral bending
with pain; normal gait; full strength; and intact coordination, sensation, and reflexes.
[R1707-08]. She was restarted on gabapentin, and a nerve-conduction study was
recommended. [R1708]. Dr. Osborn opined that Plaintiff’s work status “remain[ed]
unchanged with sedentary work.” [R1709].
Plaintiff returned to Dr. Porter on July 25, 2013, with complaints of increasing
right-neck pain, upper-back pain, and bilateral arm pain. [R1844]. She also reported
a sense of tingling in her thumbs and index fingers and a decreased ability to turn her
head and neck. [R1844]. She rated her pain at ten on a ten-point scale. [R1845]. On
examination, Dr. Porter noted that Plaintiff’s affect was depressed; strength appeared
diminished in biceps and grip testing on the left; sensation was intact; and right
trapezius trigger points were present. [R1845]. Dr. Porter proceeded with trigger-point
injections at three points in the right trapezius muscle. [R1845].
An EMG/nerve conduction study34 conducted on October 30, 2013, confirmed
left-sided cervical radiculopathy but no evidence of carpal tunnel or other peripheral
nerve entrapment. [R1705, 1729]. On examination, Dr. Osborn found that Plaintiff had
diminished right-side range of motion compared to the left, some decreased sensation
in the left index and little finger but no clear weakness, and mild reflex changes.
[R1705]. He recommended trying physical therapy again with a new physical therapist.
Plaintiff returned to Dr. Porter on January 14, 2014, with complaints of neck pain
and upper-back pain, with the pain worse on the left than the right. [R1840]. She
requested trigger-point injections.
Dr. Porter noted that Plaintiff’s
medications included diclofenac35 once per day, tizanidine at night, alprazolam at night,
“EMG” is an abbreviation for electromyogram. PDR Med. Dictionary 569
(1 ed. 1995). Electromyography measures the response of muscles and nerves to
electrical activity. It is used to help determine conditions that might be causing muscle
weakness, such as nerve disorders.
http://kidshealth.org/parent/general/sick/emg.html (last visited 3/7/18).
Voltaren (diclofenac) is an NSAID medication used to relieve mild to
https://medlineplus.gov/druginfo/meds/a689002.html (last visited 3/7/18).
and rarely hydrocodone. [R1838]. He assessed myofascial pain syndrome36 and
cervical postlaminectomy syndrome.37 [R1840]. He opined that Plaintiff was not
cognitively impaired and could “work with her brain” but would have difficulty using
her arms in police work. [R1840].
On May 20, 2014, Plaintiff returned to Dr. Porter with complaints of left-neck
pain, intrascapular pain, upper-back pain, and arm pain. [R1841]. Dr. Porter noted that
she had persistent neck and radiating left-arm pain with numbness into the index finger
and thumb of the left hand; that she described the pain as burning, tingling, electric, and
throbbing; and that she reported increasing symptoms of depression. [R1841]. He
diagnosed cervical radicular pattern pain, left-C6 distribution, with EMG-documented
Mysofacial pain syndrome is a chronic pain disorder. In myofascial pain
syndrome, pressure on sensitive points in the muscles (trigger points) causes pain in
seemingly unrelated parts of the body. This is called referred pain. Myofascial pain
syndrome typically occurs after a muscle has been contracted repetitively. This can be
caused by stress-related muscle tension.
ms-causes/syc-20375444 (last visited 3/7/18).
Post-laminectomy syndrome (also called “failed back syndrome”) refers
to the persistence of pain and disability following spinal surgery. Frequent causes
include returning disc herniation, nerve-root compression, scar-tissue build-up
(fibrosis), joint hypermobility, spinal instability, and facet joint problems. Wake Spine
P a i n ,
P o s t - l a m i n e c t o m y
S y n d r o m e ,
https://wakespine.com/knowledge-center/conditions-treated/post-laminectomysyndrome (last visited 3/7/18).
neuropathy; started topirimate and bupropion38 with the goal of controlling Plaintiff’s
neuropathic pain; refilled zolpidem for occasional help with sleep; and opined that
Plaintiff could do sedentary work “and probably light duty work.” [R1843].
Dr. Osborn completed a medical-source statement on October 1, 2014.
[R1682-87]. He noted that Plaintiff had a significant limitation in her cervical range
of motion and approximately four times per month had associated severe headache
pain, which would last about two hours and cause exhaustion and an inability to
concentrate. [R1682-83]. He opined that Plaintiff could only walk two to three blocks,
sit for one hour at a time, and stand thirty minutes at a time; needed to shift positions
at will; could sit for six hours of an eight-hour workday; could stand or walk for two
hours of an eight-hour workday; could occasionally lift less than ten pounds; could
rarely twist, stoop/bend, crouch/squat, or climb stairs; would require unscheduled
breaks every couple of hours during the workday to lie down for about ten minutes;
could rarely look up; could occasionally look down, turn her head in either direction,
or hold it in a static position; could use her hands to grasp objects thirty percent of the
time; could finely manipulate and reach in front of her body fifty percent of the time;
Bupropion, also known by the brand name Wellbutrin, is an antidepressant
that works by increasing certain types of activity in the brain. MedlinePlus, Bupropion,
https://medlineplus.gov/druginfo/meds/a695033.html (last visited 3/7/18).
could reach overhead less than five percent of the time; would be off task ten percent
of the workday; would miss approximately four days of work per month; and was
capable of only low-stress work. [R1684-86]. Dr. Osborn also opined that Plaintiff’s
depression and anxiety affected her physical condition. [R1684, 1686].
Dr. Porter completed a medical-source statement on October 9, 2014.
[R1689-94]. He stated that Plaintiff had chronic pain and paresthesia39; that she had
constant tingling, throbbing, burning pain in her upper back and arm; that her
impairments were characterized by muscle spasm, muscle weakness, sensory changes,
and motor loss; that she had significant cervical range of motion limitations as well as
significant limitations with reaching, handling, or fingering; that she had decreased leftarm and left-upper-back strength and other numbness in the C5-6 distribution; that
depression and anxiety contributed to Plaintiff’s limitations; and that she was likely to
continue to have persistent pain and dysfunction. [R1689-94]. He also opined that
Paresthesia refers to a burning or prickling sensation that is usually felt in
the hands, arms, legs, or feet, but can also occur in other parts of the body. It is usually
painless and described as tingling or numbness, skin crawling, or itching. Nat’l Instit.
of Neurological Disorders & Stroke, Paresthesia Information Page,
Plaintiff was capable of tolerating moderate stress and the stress of normal work.
On January 14, 2015, Plaintiff returned to Dr. Osborn with complaints of
worsening neck pain and swelling. [R1876]. She reported that she had started
neuromuscular therapy, which she had to pay for herself but which resulted in less pain
and swelling. [R1876]. Authorization for physical therapy had not yet been obtained.
[R1876]. It was noted that Plaintiff had to discontinue Topamax after developing
kidney stones. [R1876]. On examination, Dr. Osborn noted that there was some
tenderness in the neck; range of motion in the neck was restricted; upper and lower
extremity reflex, sensory, and motor exams showed mild sensory changes in the arms
but otherwise no deficits; and Plaintiff had normal gait and station. [R1876].
Dr. Osborn stated that he did not have a good explanation for Plaintiff’s increased
symptoms and opined that Plaintiff was capable of returning to sedentary work.
Dr. Osborn examined Plaintiff again on February 9, 2015. [R1884-85]. She had
tenderness in the neck and shoulders; restricted flexion, extension, rotation, and lateral
bending with pain; decreased sensation in the left hand; but she also had full strength,
except for mildly reduced left-hand grip and finger strength; normal coordination,
balance, and right-hand sensation; and intact reflexes with full shoulder range of
motion. [R1885]. It was noted that Plaintiff could perform sedentary work with
Dr. Porter’s restrictions. [R1878, 1885].
On February 2, 2015, Plaintiff underwent another MRI of the cervical spine.
[R1880-81]. The impression given was mild-to-moderate right paramedian disc
protrusion causing ventral cord indentation and edema at C4-5 and C5-6. [R1880-81].
A vocational expert (“VE”) also testified at the hearing before the ALJ. The VE
characterized Plaintiff’s past work as that of a process server (light, semi-skilled work,
as it is typically performed, and medium work, as Plaintiff performed it) and testified
that a person limited to sedentary work could not perform it. [R163-64, 168]. When
asked about the working capabilities of a younger individual with a high-school
education, who was limited to work at a sedentary level; lifting or carrying ten pounds
occasionally and less than ten pounds frequently; standing or walking two hours and
sitting six hours; occasionally pushing and pulling with the arms; occasionally climbing
ramps and stairs; never climbing ladders, ropes, or scaffolds; frequently balancing,
stooping, kneeling, or crouching; occasionally crawling; occasionally overhead
reaching with both arms; and frequently fingering with the left hand; and would need
to avoid hazards, moving mechanical parts, and high, exposed places, the person would
be capable of working as a clerk in the food-and-beverage industry, a cashier, or a cuff
folder. [R168-70]. The VE further testified that if the person would miss one or more
days of work per month, all work would be precluded. [R171]. Additionally when
asked about the working capabilities of a person forty-two years of age who could, in
an eight-hour day, sit for one hour, stand for thirty minutes at a time, stand for about
two hours, and sit for at least six hours, but has problems sitting for more than one hour
at a time; would need to shift positions at will from sitting to standing or walking;
would need to walk for a ten-minute period each hour; would need to take unscheduled
breaks every couple of hours, lasting at least ten minutes; and occasionally would need
to lie down, the VE testified that no jobs would be available in the national economy.
In the decision presently on appeal, the ALJ made the following findings of fact
and conclusions of law:
The claimant last met the insured status requirements of the Social
Security Act on December 31, 2013.
The claimant did not engage in substantial gainful activity during
the period from her alleged onset date of September 16, 2010
through her date last insured of December 31, 2013
(20 CFR 404.1571 et seq.).
Through the date last insured, the claimant had the following severe
impairments: degenerative disc disease cervical spine, cervical
radiculitis, and mild left carpal tunnel syndrome
(20 CFR 404.1520(c)).
Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the
residual functional capacity to perform a reduced range of
sedentary work 20 CFR 404.1567(a). The claimant can lift and/or
carry 10 pounds occasionally, and can lift and/or carry less than 10
pounds frequently; can stand and/or walk 2 hours total in an 8-hour
workday; can sit 6 hours total in an 8-hour workday; occasional
pushing and pulling of both arms; occasional climbing ramps/stairs,
but must avoid climbing ladders, ropes, scaffolds; frequent
balancing, stooping, kneeling, crouching, occasional crawling;
occasional reaching with both arms overhead; frequent fingering
with the left hand; and must avoid hazards, moving, mechanical
parts, and high, exposed places.
Through the date last insured, the claimant was unable to perform
any past relevant work (20 CFR 404.1565).
The claimant was born on April 13, 1972 and was 41 years old,
which is defined as a younger individual age 18-49, on the date last
insured (20 CFR 404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills
(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national
economy that the claimant could have performed
(20 CFR 404.1569 and 404.1569(a)).
The claimant was not under a disability, as defined in the Social
Security Act, at any time from September 16, 2010, the alleged
onset date, through December 31, 2013, the date last insured
(20 CFR 404.1520(g)).
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he is
unable 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
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The impairment or
impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
education, and work experience.
See 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a
listed impairment, he must prove that his impairment prevents performance of past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five,
the regulations direct the Commissioner to consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the claimant
can perform other work besides past relevant work.
See 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that
there is other work available in the national economy that the claimant has the capacity
to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant
must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy. Doughty, 245 F.3d at
1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983), superseded by statute
on other grounds by 42 U.S.C. § 423(d)(5), as recognized in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991).
SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). Even where there is substantial evidence to the contrary
of the ALJ’s findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ’s decision.
Barron v. Sullivan,
924 F.2d 227, 230 (11th Cir. 1991). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
VII. CLAIMS OF ERROR
As noted above, Plaintiff raises two allegations of error: (1) the ALJ reversibly
erred by failing to properly explain why he did not fully credit the opinion of
Dr. Osborn, and (2) the ALJ reversibly erred by failing to properly consider all of the
relevant evidence of record in discounting the credibility of Plaintiff’s allegations of
limitation. [Doc. 11 at 10-28]. The Court first considers the arguments regarding the
ALJ’s consideration of Dr. Osborn’s opinion and then turns to the credibility
Opinion of Dr. Osborn
In evaluating the opinion evidence, the ALJ stated that he gave substantial weight
to Dr. Osborn’s opinions that Plaintiff could return to sedentary work because they
were consistent with the record. [R40, 43, 1878, 1828]. He also acknowledged the
medical-source statement Dr. Osborn completed on October 1, 2014, but stated that he
did not credit the portion of it in which Dr. Osborn opined that Plaintiff would miss
four days of work per month, [R1686], because the ALJ found that the absence opinion
was not consistent with Dr. Osborn’s other notes in which he opined that Plaintiff could
return to sedentary work or with records showing that Plaintiff’s condition had not
resulted in loss of strength or atrophy of muscles, [R40, 1698, 1494, 1885]. The ALJ
also acknowledged that Dr. Osborn had opined in November 2007 that Plaintiff was
unable to work, [R684, 686], and explained that he accorded little weight to the opinion
because working capability is an issue reserved for the Commissioner and the opinion
was inconsistent with Dr. Osborn’s own notes and the medical record as a whole,
Plaintiff takes issue with several of the ALJ’s explanations for his treatment of
Dr. Osborn’s opinions.
First, Plaintiff argues that the ALJ made unwarranted
assumptions when he presumed (1) that Dr. Osborn’s statements that Plaintiff was
capable of performing sedentary work did not merely mean that Plaintiff was capable
only of the exertional requirements of sedentary work but instead that Dr. Osborn
adopted the Agency’s definition of capability of performing sedentary work, which
implies that Dr. Osborn believed not only that Plaintiff could perform the exertional
requirements of sedentary work but that she could perform them on a regular and
continuous basis, [Doc. 11 at 11], and (2) that there were not also significant
non-exertional limitations as well, [id. at 12]. Second, Plaintiff contends that the ALJ’s
explanation that missing four days of work is not consistent with the absence of loss of
strength or atrophy of muscles is not a valid reason to discount the opinion, as the
record contains multiple findings and opinions of diminished strength and sensory
changes, a diagnosis of pain disorder, and Plaintiff’s consistent complaints to her
medical providers of intense pain, and the ALJ does not explain why a loss of strength
or atrophy of muscles is necessary to justify four absences. [Id. at 12-13]. Third,
Plaintiff argues that because Dr. Osborn was a treating physician; Dr. Osborn’s opinion
was well-supported and not inconsistent with the other evidence of record, including
the opinions of Dr. Porter, record-reviewer Dr. Sherrer, and therapist Mr. Ghaffari; and
the ALJ did not set forth reasons for rejecting any portion of it other than the opinion
that Plaintiff would miss work approximately four days per month, the ALJ erred by
failing to include in the RFC all of the non-exertional limitations stated in Dr. Osborn’s
opinion. [Id. at 13-21 (comparing [R33] (RFC) with [R1682-87])]. Fourth, Plaintiff
argues that the omissions are harmful because the omitted limitations preclude the
ability to work as a cashier, order clerk, or cuff folder, “or any work at all.”40, 41
[Doc. 11 at 21-24].
The Commissioner, in response, contends that substantial evidence supports the
weight the ALJ gave to the record medical opinions. [Doc. 12 at 9-18]. She concedes
that the ALJ did not use the word “weight” to discount Dr. Osborn’s medical-source
statement but avers that the ALJ nevertheless properly discounted the medical-source
statement by articulating reasons for not accepting it. [Id. at 9-13 & n.2]. She further
contends that the only opinions of Dr. Osborn to which the ALJ assigned substantial
weight were Dr. Osborn’s opinions that Plaintiff could do sedentary work, [R40, 43],
Plaintiff also mentions her inability to perform her past work.
[Doc. 11 at 19]. It is unclear why, given that the ALJ agreed that she was not capable
of performing her past work. [R43]. Thus, the Court finds the issue moot and gives it
no further consideration.
Plaintiff further argues in this section that the ALJ erred when, after
remand from the Appeals Council, he added Plaintiff’s mild left carpal tunnel syndrome
to Plaintiff’s severe impairments to his most recent decision but left the manipulative
limitations unchanged. [Doc. 11 at 23 (comparing [R33] with [R187])]. It is unclear
how this argument relates to Plaintiff’s allegation that the ALJ erred in his
consideration of Dr. Osborn’s medical-source statement. More to the point, Plaintiff
has not raised any argument or cited any evidence indicating that the carpal-tunnel
diagnosis was connected with limitations that were not included in the RFC. The mere
existence of an impairment does not reveal the extent to which it limits the claimant’s
ability to work. Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005). The
Court therefore finds no basis for reversal in the argument.
and that the ALJ was correct in doing so, as substantial evidence supports that decision.
[Doc. 12 at 13]. Next, the Commissioner argues that Plaintiff’s contention that the ALJ
made “unwarranted assumptions” based on Dr. Osborn’s opinions that Plaintiff could
do sedentary work is without merit because Plaintiff carries the burden of producing
evidence showing that Dr. Osborn believed she could not work full time, and she
cannot make such a showing. [Id. at 13-14]. The Commissioner also argues that
Plaintiff cannot leverage her own complaints of pain to support Dr. Osborn’s opinion
regarding her expected absences because the ALJ properly found that her complaints
of pain were not entirely credible. [Id. at 14]. The Commissioner additionally contends
that Plaintiff’s reliance on Dr. Porter’s findings is unavailing because Dr. Porter opined
that Plaintiff could do sedentary or light work, Dr. Porter’s findings otherwise
contradict Dr. Osborn’s medical source statement, and Plaintiff’s argument is, in
essence, an improper request to reweigh the evidence. [Id.]. The Commissioner then
argues that the ALJ considered the evidence Plaintiff cites regarding her neck, shoulder,
and arm pain and included appropriate limitations in the RFC and that citations to
various diagnoses, without more, do not show that greater limitations were warranted.
[Id. at 15]. Additionally, the Commissioner argues that although the ALJ gave “great
weight” to Mr. Ghaffari’s opinion that Plaintiff could do sedentary work, the ALJ was
not required to consider any additional limitations in Mr. Ghaffari’s opinion because
the opinion was stale and because Mr. Ghaffari was not an acceptable medical source
and his other findings therefore were not “medical opinions” the ALJ was required to
weigh. [Id. at 15-16].
After careful consideration of the ALJ’s decision, the parties’ arguments, and the
evidence of record, the Court concludes that the ALJ did err in his consideration of the
medical-source statement supplied by Dr. Osborn. “[T]he ALJ must state with
particularity the weight given to different medical opinions and the reasons therefor,”
such that the reviewing court may determine “whether the ultimate decision on the
merits is rational and supported by substantial evidence.” Winschel v. Comm’r of Soc.
Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (punctuation omitted). Moreover, where an
ALJ gives the opinion of a treating physician less than substantial or controlling weight,
he must clearly articulate reasons establishing good cause for doing so.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Somogy v. Comm’r of Soc. Sec.,
366 Fed. Appx. 56, 63 (11th Cir. Feb. 16, 2010) (citing Lewis, 125 F.3d at 1440));
SSR 96-2p, 1996 WL 374188.42 Good cause exists when: (1) the treating physician’s
Although 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2) have been
superceded and SSR 96-2p has been rescinded, they remain applicable to cases filed
prior to March 27, 2017. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (2017); Corrected
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 medical records.
Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Failure to articulate the reasons for giving less weight to the opinion
of a treating physician is reversible error. Lewis, 125 F.3d at 1440.
The ALJ explained that he did not assign weight to Dr. Osborn’s opinion that
Plaintiff would miss about four days of work per month because of her
impairment/treatment because he found the opinion to be inconsistent with treatment
records showing that Plaintiff’s condition had not resulted in atrophy or loss of strength
and that Plaintiff was capable of returning to sedentary work. [R40, 1494, 1698, 1828,
1878]. Setting aside whether it would be necessary for the record to show weakness
or atrophy in order to bolster Dr. Osborn’s opinion regarding Plaintiff’s likely absences,
a presumption the Court finds questionable at best, the Court notes that the ALJ reached
his conclusion only by mischaracterizing or outright ignoring medical evidence: as
Plaintiff points out, the record is replete with examination notes of weakness and
diminished strength, [R745, 754, 762, 823, 827, 1279 (2008); R743, 746 (2009); R900,
1247, 1358, 1365, 1393, 1396, 1401 (2010); R1288, 1291, 1298, 1301, 1305, 1309,
Not. of Rescission, SSR 96-2p, 2017 WL 3928297 (Apr. 6, 2017).
1316, 1341, 1404, 1418, 1433 (2011); R1559, 1564, 1593 (2012); R1827, 1833, 1845
(2013); R1717-20 (2014); R1872 (2015); R1689-90 (Dr. Porter’s opinion); R1374
(Mr. Ghaffari’s opinion)43], and sensory changes, [R745, 754, 762, 823, 827, 1279
(2008); R743, 746, 1055, 1390 (2009); R900, 1183, 1247, 1358, 1365, 1393, 1401
(2010); R1291, 1298, 1301, 1305, 1309, 1316, 1341, 1404, 1418, 1433 (2011); R1559,
1564, 1570, 1593, 1607 (2012); R1827, 1830, 1836 (2013); R1704, 1842 (2014);
R1689-90 (Dr. Porter’s opinion)], as well as findings of atrophy, [R1055, 1384 (2009),
1341, 1842 (2011)], and diagnoses of pain disorders, [R690, 1247, 1298, 1301, 1305,
1309, 1358, 1365, 1418, 1445, 1446, 1833, 1845]. And while the record does contain
notes indicating that Dr. Osborn, Dr. Porter, and Mr. Ghaffari opined on a number of
occasions that Plaintiff was capable of performing some range of sedentary or light
work, it also contains evidence that Dr. Osborn’s, Dr. Porter’s, Mr. Ghaffari’s, and
other medical providers’ notes were not intended to imply that Plaintiff was capable of
performing the range of sedentary work set forth in the RFC on a sustained basis: on
March 11, 2008, Dr. Porter opined that Plaintiff would be capable of performing
It is true that Mr. Ghaffari’s opinion is not an opinion of an “acceptable
medical source” and that the ALJ was not required to weigh Mr. Ghaffari’s opinions
as “medical opinions.” See 20 C.F.R. § 404.1527(f)(1). Nevertheless, it was necessary
for the ALJ to consider the opinion, see id., and in doing so, the ALJ assigned the
opinion “substantial weight,” without caveat. [R37].
light-duty work for a full eight-hour day but should not be required to lift more than ten
pounds occasionally and must be able to sit or stand at will, [R823]; on April 15, 2008,
Dr. Osborn seconded the opinion, [R823]; on April 28, 2008, Dr. Carantzas restricted
Plaintiff to limited use of her arms, no overhead work, and no work at or above
shoulder height, [R846]; on August 18, 2008, Dr. Carantzas opined that Plaintiff could
work but with limited used of the right arm, limited overhead work, and no heavy
lifting, [R777]; on December 14, 2009, Mr. Ghaffari opined that Plaintiff could do
sedentary to light work but would not, at the time, be able to perform her job duty on
a full-time or sustained basis, [R882]; on December 16, 2009, Dr. Osborn opined that
Plaintiff was capable of sedentary work, defined as lifting a maximum of ten pounds,
occasionally lifting and/or carrying articles such as dockets, ledgers, and small tools,
and doing a “certain amount” of walking and standing, [R713]; on December 12, 2011,
Dr. Osborn opined that Plaintiff was capable of only part-time sedentary work,
[R1497]; on October 12, 2012, Dr. Osborn opined that Plaintiff could do sedentary
work with restrictions, pending surgery, [R1663]; following surgery on November 30,
2012, [R1699, 1725], Dr. Osborn opined on February 6, 2013, that Plaintiff remained
unable to work, [R1698]; on April 23, 2013, Dr. Porter opined that Plaintiff could
perform sedentary work but would not do well with any significant lifting or arm
movements, especially over her head, [R1828]; and on January 14, 2014, Dr. Porter
opined that Plaintiff would have difficulty using her arms, [R1840]. In order to
determine that the ALJ’s decision was supported by substantial evidence, it must be
clear the that ALJ took into account evidence both favorable and unfavorable to his
opinion. See McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986) (holding that
an administrative decision is not supported by “substantial evidence” where the ALJ
acknowledges only the evidence favorable to the decision and disregards contrary
evidence). Obviously, the Court can reach no such conclusion here.
Moreover, as Plaintiff points out, an ALJ may not simply presume that a
physician’s opinion adopts the Commissioner’s exertional definitions, see Social
Security Ruling (“SSR”) 96-5p, 1996 WL 374183 at *5 (“Adjudicators must not
assume that a medical source using terms such as ‘sedentary’ and ‘light’ is aware of our
definitions of these terms.”), and there does not appear to be any support in the record
for the ALJ’s presumption that Dr. Osborn, Dr. Porter, and Mr. Ghaffari adopted the
Commissioner’s definition of “sedentary work” or “light work” when rendering the
opinions at issue here, [see, e.g., R713, 736, 751, 752, 844, 1353, 1878 (form defining
sedentary work as lifting a maximum of ten pounds, occasionally lifting and/or carrying
articles such as dockets, ledgers, and small tools, and doing a “certain amount” of
walking and standing and containing no option for “light work”)].44
Additionally, as the Commissioner concedes, Plaintiff correctly points out that
the ALJ did not state the weight he assigned any portion of Dr. Osborn’s medical
source statement other than the opinion regarding Plaintiff’s expected absences, yet did
not include in the RFC Dr. Osborn’s opinions that Plaintiff would be off-task ten
percent of the time; would need to be able to shift positions at will; would need to take
unscheduled breaks and lie down every couple of hours; could only frequently reach
in front of her body; could only occasionally grasp, turn, or twist objects, look down,
turn her head right or left, or hold her head in a static position; and could only rarely
[R40; Doc. 12 at 10 n.2].
In certain cases, it is possible, as the
It also bears remark that when rejecting evidence favorable to
Plaintiff—Dr. Osborn’s November 2007 opinion that Plaintiff was not capable of
working—the ALJ appeared well aware that working capability is an issue reserved for
the Commissioner. [Compare R40 with R43 (citing SSR 96-5p)].
Plaintiff concedes that the ALJ accommodated the limitations to frequent
fingering and occasional overhead reaching and does not appear to challenge the ALJ’s
decision to omit the “low-stress” limitation from RFC. [Doc. 11 at 13-15]. The ALJ
also explained that he accorded “great weight” to the opinion of treating physician
Dr. Porter that Plaintiff was capable of performing moderate-stress or “normal” work,
[R31], thus supplying substantial evidence to support the decision to omit Dr. Osborn’s
“low-stress” restriction from the RFC.
Commissioner urges, to discern the reason an ALJ has discounted an opinion, even
when the explanation is of less than ideal clarity. Here, however, the ALJ has ignored
and mischaracterized evidence relevant to the rejected opinion: the objective medical
findings of weakness, loss of sensation, and diagnoses of pain syndrome that the ALJ
failed to consider certainly could support the uncredited non-exertional limitations
appearing in Dr. Osborn’s opinion. Moreover, records indicating limitation in the range
of motion in Plaintiff’s neck, [R1398 (11/9/08); R1374 (1/20/2010); R900, 1365, 1393
(4/5/2010); R1291, 1298, 1301 (9/2/11); R1433 (12/7/2011); R1830 (5/20/13); R171819 (1/25/2014); R1872 (1/7/2015)], and abnormal imaging, [R1347-48 (December 2010
MRI showing moderate cervical stenosis); R1876-88 (2015 MRI revealing a mild-tomoderate disk protrusion that was putting pressure on spinal nerves)], also appear to
support Dr. Osborn’s disregarded opinions of limitation, [R1682-87]. Thus, the Court
is without a basis for finding that the ALJ’s reasoning is based on substantial evidence.
See Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (“We decline . . . to affirm
simply because some rationale might have supported the ALJ’s conclusion. Such an
approach would not advance the ends of reasoned decision making.”).
Common sense dictates that a person with restrictions on the ability to look up
or down, turn her head left to right, or hold her head in a static position is likely to be
prevented from working on a sustained basis as a cashier, order clerk, or cuff folder.
See also Jones v. Comm’r of Soc. Sec., Civil No. 11-748 (FLW),
2012 U.S. Dist. LEXIS 24506, at *12 (D.N.J. Feb. 27, 2012) (quoting the testimony of
a VE, who stated that “when you’re doing unskilled type of work at the light or
sedentary level, you do have to move your head from side to side or up and down more
than occasionally to get the job done”). Additionally, the Dictionary of Occupational
Titles indicates that the positions of cashier, order clerk, and cuff folder each require
“frequent” reaching, defined as an activity taking place from one-third to two-thirds of
the time, [Doc. 11-3 at 3; Doc. 11-4 at 3; Doc. 11-5 at 3], which would exceed
Dr. Osborn’s limitation to bilateral grasping thirty percent of the time, [R1686].
Accordingly, the undersigned cannot conclude that the ALJ’s failure to properly
consider Dr. Osborn’s medical-source statement was not harmless, and the decision of
the Commissioner is therefore due to be reversed and remanded for further
consideration at the administrative level.
The ALJ stated that he did not find Plaintiff’s contentions concerning her pain
and associated limitations entirely credible because Plaintiff’s treatment had been
“essentially routine and/or conservative in nature,” [R35, 38-39, 40]; she “ha[d] not
generally received the type of medical treatment one would expect for a totally disabled
individual,” [R40]; and her daily activities—brushing her teeth, bathing, putting on
clothes, using a lightweight dust mop, loading the dishwasher, walking to the mailbox,
visiting her mother with her sister, driving to doctor visits for forty-five minutes at a
time, shopping, paying bills, handling a bank account, and counting change—were “not
limited to the extent one would expect, given the complaints of disabling symptoms and
limitations,” [R32, 34, 42].
Plaintiff argues that the ALJ also erred in his consideration of her credibility.
[Doc. 11 at 24-29]. First, she takes issue with the ALJ’s statements that her care was
routine and conservative and that she had not generally received the type of medical
treatment one would expect for a totally disabled person, as the record shows that she
had years of treatment by specialists, two back surgeries, multiple medications and
treatments, and abnormal clinical findings. [Doc. 11 at 24-26]. Second, she questions
how her daily activities exceed those that would be expected of a “totally disabled”
person and argues that her limited activities are not inconsistent with the uncredited
non-exertional limitations contained in Dr. Osborn’s opinion and are paltry evidence
of non-disability. [Doc. 11 at 26-27]. She also argues that the ALJ’s credibility
analysis erroneously disregarded Dr. Adams’s diagnosis of a pain disorder, [R1445-46],
and its exacerbating effects on Plaintiff’s perception of pain. [Doc. 11 at 27-28].
In response, the Commissioner contends that substantial evidence supports the
ALJ’s finding that Plaintiff’s statements were not entirely credible. [Doc. 12 at 18-24].
She contends that the ALJ’s finding that Plaintiff’s statements were disproportionate
to the objective evidence, [R40], is supported by evidence that x-rays showed Plaintiff
was well healed after a 2007 surgery, [R520]; examinations showed no subluxations,
[R1384], no clear motor or reflex deficits, and no overt myelopathy, [R1289], and full
strength, normal coordination and balance, intact reflexes, and full bilateral shoulder
motion without pain, [R1494, 1885]; an EMG confirmed only mild left-sided
radiculopathy, [R1705]; Dr. Osborn repeatedly found Plaintiff had normal gait and
normal lower extremities, [R1289, 1384, 1493, 1707]; Dr. Osborn opined on multiple
occasions that Plaintiff could return to sedentary work, [R713, 1663, 1709, 1878,
1885]; and Dr. Porter opined that Plaintiff could do sedentary work “and probably light
duty work,” [R1828, 1843]. [Doc. 12 at 19-20]. She also argues that the ALJ’s finding
that Plaintiff’s treatments were generally conservative, [R40], despite the fact that
Plaintiff had a spinal-fusion surgery during the period she alleges that she became
disabled, [R1725], is supported by Dr. Osborn’s opinion that Plaintiff’s cervical
degenerative changes were not the cause of her pain, his recommendation of a trial of
acupuncture, [R1384], and Plaintiff’s failure to seek more aggressive treatment: her use
of medication and her TENS unit only “on occasion,” [R161, 1592]; Plaintiff’s
testimony that she only attended a few physical therapy treatments, [R144]; and her
testimony that she had slowed the rate of trigger-point shots from Dr. Porter,
[R145-46]. [Doc. 12 at 20]. The Commissioner also points out that the ALJ considered
that Plaintiff’s symptoms improved with treatment and medication, when used, [R41],
as evidenced by her reports of improvement from trigger-point injections, [R777], pain
medication, [R1246], massage therapy, a TENS unit, [R1441], and ice packs, [R157],
and she contends that the activities of daily living the ALJ relied upon were
concentration tasks that were inconsistent with Plaintiff’s testimony about attention
deficits due to pain and trouble sleeping, [R128, 133-35, 137, 155, 174, 480]. [Doc. 12
at 20-22]. The Commissioner further argues that the surgery taking place in 2007
undercuts Plaintiff’s claim of disability because it occurred “many years before Plaintiff
allegedly becoming disabled,” [R391], “and even before she stopped working,” [R462],
thus establishing that Plaintiff was capable of working despite the condition.
[Doc. 12 at 22]. The Commissioner also points out that the ALJ evaluated Plaintiff’s
pain condition and found that there were no limitations related to her mental conditions,
[R31], and Plaintiff has not pointed to evidence that the impairment caused functional
limitations. [Doc. 12 at 23-24].
The Court does not reach the question of whether the credibility analysis supplies
additional independent grounds for reversal, as it will be necessary, of course, to
reevaluate the credibility of Plaintiff’s allegations of pain and other limitations in light
of a full and fair consideration of the medical record. See 20 C.F.R. § 404.1529(c)
(providing that when evaluating the intensity and persistence of a claimant’s symptoms,
the Commissioner must consider the medical opinions and objective medical evidence,
as well as the lay evidence; the claimant’s daily activities; the location, duration,
frequency, and intensity of the pain or other symptoms; precipitating and aggravating
factors; the type, dosage, effectiveness, and side effects of any medication taken to
alleviate the pain or other symptoms; other treatment received for the pain or other
symptoms; any measures used to relieve the pain or other symptoms; and other factors
concerning the claimant’s functional limitations and restrictions due to pain or other
symptoms); Foote, 67 F.3d at 1561-62 (providing that the credibility determination
must be made in light of plenary review of a full, fairly developed record, and that
where an ALJ does not credit a claimant’s testimony as to her pain, he “must articulate
explicit and adequate reasons for doing so”).
It nevertheless bears noting here that the ALJ’s credibility decision—and the
Commissioner’s defense of the ALJ’s credibility decision—rely heavily on blatant
mischaracterizations of the record: the ALJ’s explanation that Plaintiff’s “treatment has
been essentially routine and/or conservative in nature,” [R40], necessarily disregards
that Plaintiff had back surgery in September 2007, [R613-14], and again on
November 30, 2012, prior to her date last insured, [R1699, 1725]; likewise, the
Commissioner’s argument that Plaintiff worked after her first back surgery,
[Doc. 12 at 22], is directly contradicted by the medical records showing that her on-thejob back injury kept her out of work from at least September 2007 until her
employment was terminated in January 2008 when she remained unable to return to
full-time work, [compare R462 with R520-21, 613-14, 674, 675]; and the
Commissioner’s suggestion that Plaintiff was “well-healed” two months after her first
surgery, [Doc. 12 at 19; R41], is contradicted by unacknowledged treatment notes from
the same visit, where Dr. Osborn observed that Plaintiff had pain at the extremes of
range of motion of her neck, there was still subluxation and muscle spasm in the
trapezius area, Plaintiff had diminished coordination of the left arm, reflexes were
diminished in the left biceps and triceps, there was decreased sensation in the left hand,
and motor strength was mildly diminished in the left arm, and Dr. Osborn opined that
Plaintiff “clearly” had sustained some nerve injury from the pressure of disk herniation
against her spinal cord and exiting nerve roots and that it could “take some months or
years to reach a point of maximum improvement and may or may not result in full
The ALJ also dramatically overstates Plaintiff’s testimony
regarding how often she drives: while Plaintiff testified that she drives “maybe” four
times per month, [R137], the ALJ states that she testified that she drives four times per
week, [R34].46 A decision cannot be said to be supported by substantial evidence when
it relies on statements that are patently untrue.
Flentroy-Tennant v. Astrue,
No. 3:07-cv-101-J-TEM, 2008 WL 876961, at *6, 8 (M.D. Fla. Mar. 27, 2008) (An
“ALJ is required to build an accurate and logical bridge from the evidence to his or her
conclusion.”); Baker v. Barnhart, No. 03 C 2291, 2004 WL 2032316, at *8
(N.D. Ill. Sept. 9, 2004) (same).
The Court also finds it troubling that while the ALJ acknowledged Dr. Adams’s
diagnoses of pain syndrome, [R31; see also R690, 1445-46], and Dr. Porter’s diagnoses
of postlaminectomy pain syndrome and myofascial pain syndrome, [R37, 40; see also
The evaluation of Plaintiff’s activities of daily living is also far from clear,
both because the activities are so limited as to be incapable of undermining much of
Plaintiff’s testimony and because the ALJ fails to explain how any particular activity
undermines any particular claim of limitation. [R42].
R20, 897, 1205, 1361-62, 1390-91, 1418, 1421, 1436, 1439, 1546, 1549, 1596, 1599,
1607, 1618, 1636, 1652-53, 1671, 1792, 1809, 1815, 1827, 1833, 1837, 1840, 1845,
1848, 1851, 1854, 1856, 1862, 1934, 1952, 1958], he does not appear to have
considered the consistency of the opinions or to have considered the effect of the
syndromes in combination with Plaintiff’s physical impairments, which may
explain—contrary to the ALJ’s apparent perception—how Plaintiff could remain in
such pain post-surgery, despite somewhat normal imaging. See Jamison v. Bowen,
814 F.2d 585, 589-90 (11th Cir. 1987) (explaining that the ALJ is required to
demonstrate that he has considered all of the claimant’s impairments, whether severe
or not, in combination).
For the reasons above, the Court REVERSES the final decision of the
Commissioner and REMANDS the case for further proceedings consistent with this
opinion. The Clerk is DIRECTED to enter final judgment in Plaintiff’s favor.
IT IS SO ORDERED and DIRECTED, this the 7th day of March, 2018.
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