Moore v. Berryhill
Filing
18
ORDER Reversing and Remanding the decision of the Commissioner. Signed by Magistrate Judge Alan J. Baverman on 9/13/18. (hfm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SHARON M.,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER, SOCIAL
:
SECURITY ADMINISTRATION, :
:
Defendant.
:
CIVIL ACTION FILE NO.
1:17-cv-01847-AJB
O R D E R A N D O P I N I O N1
Plaintiff Sharon M. (“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
1
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. Entry dated June 21, 2017). Therefore, this Order constitutes a
final Order of the Court.
2
Title II of the Social Security Act provides for DIB. 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”). SSI claims are not
tied to the attainment of a particular period of insurance eligibility. Baxter v.
Schweiker, 538 F. Supp. 343, 350 (N.D. Ga. 1982). Otherwise, the relevant law and
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the final decision of the Commissioner AND REMANDS the case to the Commissioner
for further proceedings consistent with this opinion.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on May 22, 2013, alleging disability
commencing on February 21, 2012. [Record (hereinafter “R”) 158]. Plaintiff’s
application was denied initially and on reconsideration. [See R64-75, 83-86]. Plaintiff
then requested a hearing before an Administrative Law Judge (“ALJ”). [R87]. An
evidentiary hearing was held on March 17, 2016. [R35-54]. The ALJ issued a decision
on April 29, 2016, denying Plaintiff’s application on the ground that she had not been
under a “disability” at any time through the date of the decision. [R16-34]. Plaintiff
sought review by the Appeals Council, and the Appeals Council denied Plaintiff’s
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.
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request for review on March 31, 2017, making the ALJ’s decision the final decision of
the Commissioner. [R1-5].
Plaintiff then filed an action in this Court on May 22, 2017, seeking review of
the Commissioner’s decision. [Doc. 1]. The answer and transcript were filed on
September 8, 2017. [See Docs. 6, 7]. On October 17, 2017, Plaintiff filed a brief in
support of her petition for review of the Commissioner’s decision, [Doc. 10]; on
December 14, 2017, the Commissioner filed a response in support of the decision,
[Doc. 14]; and on December 26, 2017, Plaintiff filed a reply brief in support of her
petition for review, [Doc. 16].
The matter is now before the Court upon the
administrative record, the parties’ pleadings, and the parties’ briefs, and it is
accordingly ripe for review pursuant to 42 U.S.C. § 405(g).
II.
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
12 months.” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments must result
from anatomical, psychological, or physiological abnormalities which are demonstrable
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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).
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.
20 C.F.R. § 404.1512(a). The Commissioner uses a five-step sequential process to
determine whether the claimant has met the burden of proving disability.
20 C.F.R. § 404.1520(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. 20 C.F.R. § 404.1520(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. 20 C.F.R. § 404.1520(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. 20 C.F.R. § 404.1520(a)(4)(iii). At step four, if the
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claimant is unable to prove the existence of a listed impairment, he must prove that his
impairment
prevents
performance
of
past
relevant
work.
20 C.F.R. § 404.1520(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. 20 C.F.R. § 404.1520(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,
the
sequential
evaluation
ceases
and
further
inquiry
ends.
See 20 C.F.R. § 404.1520(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).
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III.
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
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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.
IV.
STATEMENT OF FACTS3
A.
Background
Plaintiff was forty-nine years old on the alleged onset date and fifty-three years
old on the date of the ALJ decision. [R30, 39, 158]. She has a tenth-grade education
3
In general, the records referenced in this section are limited to those
deemed by the parties to be relevant to this appeal. [See Docs. 10, 14, 16].
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and previously worked as a cashier, server, housekeeping cleaner, front-desk clerk, and
maintenance worker. [R48-49]. Plaintiff alleges that she is disabled due to a back
disorder; problems walking, standing, and sitting; a sleep disorder; and high blood
pressure. [R174].
B.
Lay Testimony
Plaintiff testified that she had been fired in February 2012 from the Housing
Authority because her back problems prevented her from doing the work they had hired
her to do. [R42]. She stated that she was medically able to drive, but she had not
driven in two years because she did not have a car, and she took MARTA to the
hearing. [R40-41].
Plaintiff used a walker at the hearing but testified that neither the walker nor a
cane she used had been prescribed by a doctor. [R44]. She stated that it had been
recommended that she have back surgery but she did go forward with the surgery
because she was afraid: “[T]hey said they would have to break my bone and put pins
and stuff in my back and I just wasn’t ready for it. Mentally, I wasn’t ready for it.”
[R45].
Plaintiff cooks, using a chair by the stove, and she shops for groceries using a
one of the motorized chairs provided by the store. [R49, 201]. She lives with a
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roommate in subsidized housing and lightly cleans her own room. [R49-50]. She
reported that it was difficult to keep the apartment clean: “[I]f I work or clean all day
I would have to rest for the next two days, so I clean a little at a time each day.”
[R201].
C.
Administrative Records
Plaintiff’s earnings record shows earnings of $9,404.05 in 2012 and $9,423.00
in 2013. [R169]. For 2012, $2,394.05 of the earnings were from her longtime
employer, Habitat Company, and were consistent with her report of having worked
through February 2012. [R167]. The additional $7,010.00 reported in 2012 and the
$9,423.00 reported in 2013 were posted as self-employment. [R167-68].
D.
Medical Records
Plaintiff presented to Joseph G. Saulsbury, M.D., at Concentra Medical Centers,
on October 12, 2011, for follow-up on a work injury. [R244]. Plaintiff described
stiffness and pain in her lower back that was mild and aching and did not radiate.
[R244]. On examination, it was noted that Plaintiff had full range of motion with pain
on flexion at ninety degrees and mild tenderness in the midline paraspinous muscles,
and results were otherwise normal. [R244]. She was directed to continue physical
therapy and a home exercise program and was restricted to no lifting, pushing, or
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pulling greater than twenty pounds, and no bending greater than five times per hour.
[R244].
Plaintiff saw physiatrist Matthew Richardson, M.D., of US MedGroup, on
January 26, 2012, and February 2, 2012, regarding pain in her back and abdomen.
[R224, 226]. Dr. Richardson noted that Plaintiff was using a single-point cane that she
had purchased herself. [R224, 226-27]. He referred her to a neurosurgeon and limited
her to no lifting, pushing, or pulling over five pounds of force; no prolonged standing
or walking; and sitting at least fifty percent of the time. [R224, 227].
Plaintiff saw orthopedist Dr. Plas T. James, M.D., at US MedGroup, on
February 21, 2012, with complaints of intractable low-back, left-buttock, and left-groin
pain. [R221]. Upon examination, Dr. James found that Plaintiff walked with a
crouched gait with her cane in her right hand; she had marked paraspinal spasms, right
greater than left; her range of motion was limited; a straight-leg-raise test was positive
on the left4; and Plaintiff’s hip and lower-extremity strength was 4/5. [R221]. An x-ray
and MRI of the lumbar spine revealed L4-5 and L5-S1 degenerative disc disease,
4
Straight-leg-raising tests are done to test nerves and muscle strength and
to assess the presence of tension on the sciatic nerve. WebMD, Back Pain Tests,
https://www.webmd.com/back-pain/back-pain-tests#1 (last visited 9/13/18).
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moderate-to-severe arthropathy5 at L4-5 and L5-S1, and left foraminal narrowing
encroaching on the L4 nerve root. [R221-22]. Dr. James recommended that Plaintiff
undergo L3-4, L4-5, and L5-S1 discography6 and a CAT scan to evaluate discogenic
pain and advised her to return to work but lift no more than five pounds, push or pull
no more than five pounds, and sit fifty percent of the time. [R222].
Plaintiff returned to see Dr. James on April 3, 2012, with complaints of
intractable low-back, left-buttock, and groin pain. [R218]. The physical-exam findings
were unchanged, and Plaintiff was continued on modified duty with no lifting greater
than five pounds, no bending, and no pushing or pulling greater than five pounds.
[R218]. Notes also indicate that lumbar fusion was recommended, pending workerscompensation approval. [R218].
Plaintiff saw Dr. James again on May 15, 2012, with complaints of intractable
low-back, left-buttock, and groin pain.
[R216].
Physical-exam findings were
5
“Arthropathy” is a disease of the joints. J.E. Schmidt, M.D., Attorneys’
Dictionary of Medicine, Illustrated A-542 (46th ed. 2012).
6
Discography uses imaging guidance to direct an injection of contrast
material into the center of one or more spinal discs to help identify the source of back
pain. It also is used to help guide the treatment of abnormal intervertebral discs.
RadiologyInfo.org,
Discography
(Discogram),
https://www.radiologyinfo.org/en/info.cfm?pg=discography (last visited 9/13/18).
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unchanged, and it was noted that Plaintiff was not working. [R216]. Dr. James
continued her on the same duty restrictions and continue to recommend lumbar fusion.
[R216].
On October 8, 2012, Plaintiff saw Ken Sanford, M.D., for a consultative
examination. [R254]. He observed that Plaintiff exhibited no muscle spasms,
tenderness, or swelling in her back but that she reported pain on flexion and
demonstrated tenderness in the left buttock. [R255]. He also noted that her gait was
abnormal, she used a crutch, and she walked slowly, with a limp favoring the left leg;
she was able to get on and off the exam table slowly and with difficulty; and she did not
require an assistive device to ambulate. [R255, 259]. Dr. Sanford further noted that
Plaintiff’s upper- and lower-extremity strength was 5/5; straight-leg-raise testing was
negative; she exhibited no sensory deficits; deep-tendon reflexes were 2+7; and the
ranges of motion in Plaintiff’s back and lower extremities were normal. [R256-58].
7
Deep-tendon reflexes are graded as follows: 0 = a tap elicits no response,
which is always abnormal; 1+ = a tap elicits a slight but definitely present response,
which may or may not be normal; 2+ = a tap elicits a brisk response, which is normal;
3+ = a tap elicits a very brisk response, which may or may not be normal; and 4+ = a
tap elicits a repeating reflex, which is always abnormal. H. Kenneth Walker, Deep
Tendon Reflexes Clinical Methods: The History, Physical, & Laboratory Examinations
(3d ed. 1990), available at http://www.ncbi.nlm.nih.gov/books/NBK396 (last visited
9/13/18).
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Dr. Sanford diagnosed back pain with degenerative disc disease at L4-5 and L5-S1, left
foraminal narrowing at the L4 nerve root, L4-5 and L5-S1 facet arthropathy, and
obesity, and he opined that Plaintiff would be limited in standing, walking, sitting,
pushing, and pulling. [R256].
On November 29, 2012, Thomas German, M.D., a state-agency medical
consultant, reviewed the record evidence and opined that Plaintiff could occasionally
lift and/or carry twenty pounds and frequently lift and/or carry ten pounds. [R59-61].
He further opined that she could stand and/or walk six hours per day, sit six hours per
day, and push/pull twenty pounds occasionally and ten pounds frequently; could
frequently climb ramps and stairs; must never climb ladders, ropes, or scaffolds; could
occasionally stoop, kneel, crouch, or crawl; could balance without limitation; and
needed to avoid concentrated exposure to wetness and hazards. [R59-60].
On March 25, 2013, Plaintiff went to Grady Hospital for a primary care visit.
[R267]. She reported that she was exercising by riding her bike but would stop when
her back bothered her. [R268]. She also stated that she was taking ibuprofen and
tramadol8 for her back pain and had never been on any neuropathic medications.
8
Tramadol is in a class of medications called opiate (narcotic) analgesics
and is used to relieve moderate to moderately severe pain. MedlinePlus, Tramadol,
http://medlineplus.gov/druginfo/meds/a695011.html (last visited 9/13/18).
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[R268]. On examination, she exhibited no spinal tenderness, but a straight-leg-raise
test was positive on the left. [R269]. She was advised to lose weight and walk three
times per week. [R270].
On May 5, 2013, Plaintiff returned to Grady for evaluation of shortness of breath.
[R289]. Her musculoskeletal range of motion was normal, and she exhibited no edema
or tenderness. [R290].
On May 13, 2013, Plaintiff began physical therapy at Grady for back pain and
neuropathic leg pain. [R317]. She reported pain in her central lumbar region that she
rated at ten on a ten-point scale and that she indicated was aggravated by prolonged
walking and sitting. [R317]. Her gait was independent with a cane, and it was noted
that she was functional in her activities of daily living. [R318].
On June 24, 2013, Plaintiff followed up with Grady. [R324]. She reported that
she had started exercising and had lost some weight but stopped when she developed
a cold. [R325]. She requested a handicapped parking pass, but the physician said,
“I do not see a need for this, in fact pt needs to be more active,” and he discussed the
need for weight loss. [R327].
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Plaintiff followed up with Grady primary care on January 24, 2014, with
complaints of a cough. [R332-33]. Her musculoskeletal and extremity exams were
noted to be normal. [R333].
On March 27, 2014, Ramana Reddy, M.D., a state-agency medical consultant,
reviewed the record and opined that Plaintiff could occasionally lift and/or carry twenty
pounds and frequently lift and/or carry ten pounds; could stand and/or walk six hours
per day, sit six hours per day, and push/pull twenty pounds occasionally and ten pounds
frequently; could frequently climb ramps and stairs; could never climb ladders, ropes,
or scaffolds; could occasionally stoop, kneel, crouch, or crawl; could balance without
limitation; and needed to avoid concentrated exposure to hazards. [R70-73].
In a letter dated October 13, 2014, Barra Neary, M.D., an internal-medicine
resident at Grady, wrote a letter to the Social Security Administration indicating that
Plaintiff had a stooped posture when erect, with reduced spinal extension; had no
vertebral tenderness to palpation; had difficulty mobilizing due to pain; exhibited
reduced flexion, severely reduced lateral rotation, and lower-limb strength of 5/5 with
no reduced sensation; and was using Motrin for pain relief. [R337]. Dr. Neary also
completed a Disability Verification Form for HUD indicating that Plaintiff had a
physical impairment that was expected to be of long-continued and indefinite duration,
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substantially impeded her ability to live independently, and was of such a nature that
the ability to live independently could be improved by more suitable housing; that the
cause of Plaintiff’s disability was “chronic back pain due to degenerative
osteoarthritis”; that she had been diagnosed with axial low-back pain likely due to facet
arthropathy; and that she was unable to work in any capacity. [R353].
On August 17, 2015, Plaintiff went to Mercy Care North Primary Care for
evaluation of her asthma. [R369]. Notes indicate that she exhibited a normal
musculoskeletal range of motion and had no edema. [R369].
On September 16, 2015, Plaintiff followed up with Mercy Care North Primary
Care regarding diabetes, hypertension, and hyperlipidemia. [R372]. She denied any
new concerns. [R372]. She exhibited normal musculoskeletal range of motion and no
edema. [R373].
On October 21, 2015, Plaintiff went to Grady with complaints of right-knee pain
and a request for refills of metformin,9 amlodipine,10 and hydrochlorothiazide.11
9
Metformin increases the body’s response to insulin. Metformin is often
used alone or with other medications, including insulin, to treat type 2 diabetes.
MedlinePlus, Metformin, https://medlineplus.gov/druginfo/meds/a696005.html (last
visited 9/13/18).
10
Amlodipine is a calcium channel blocker that is used alone or in
combination with other medications to treat high blood pressure and chest pain.
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[R405]. She reported that the knee pain was worse going down stairs and when lying
in bed and that ibuprofen helped. [R405]. She had no other complaints or problems;
denied back pain; and exhibited normal range of motion in the right knee, with no
swelling, effusion, tenderness, or erythema; but was positive for arthralgias and a gait
problem. [R405-06]. She was given refills for the requested medications; prescribed
naproxen12; and referred for an x-ray of the right knee. [R407].
Plaintiff returned to Grady for medication refills on January 7, 2016. [R380].
She reported that she was feeling well and her only problem was back pain. [R380].
Her musculoskeletal range of motion was normal, and she exhibited no edema. [R381].
MedlinePlus, Amlodipine, https://medlineplus.gov/druginfo/meds/a692044.html (last
visited 9/13/18).
11
Hydrochlorothiazide is a “water pill” and is used to treat high blood
pressure and fluid retention caused by various conditions, including heart disease. It
causes the kidneys to get rid of unneeded water and salt from the body into the urine.
M e d l i n e P l u s ,
H y d r o c h l o r o t h i a z i d e ,
https://medlineplus.gov/druginfo/meds/a682571.html (last visited 9/13/18).
12
Naproxen is a nonsteroidal anti-inflammatory drug used to relieve pain,
tenderness, swelling, and stiffness.
MedlinePlus, Naproxen,
https://medlineplus.gov/druginfo/meds/a681029.html (last visited 9/13/18).
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E.
Vocational-Expert Testimony
When asked about the working ability of a person of Plaintiff’s age, education,
and work experience, who could perform work at the light exertional level; would need
to avoid climbing ropes, ladders, and scaffolds and to avoid unprotected heights; could
occasionally climb ramps and stairs; must avoid crawling; could occasionally stoop;
could frequently kneel, balance, or crouch; would be restricted to simple tasks; should
avoid work environments with extreme temperatures; could perform occasional
repetitive overhead reaching and pulling; and must avoid jobs that require extreme or
fast-paced work environments or job pressures, such as job-production quotas, the
vocational expert (“VE”) testified that the person could work in the occupations of table
worker, office helper, or assembler, and that the jobs exist in significant numbers in the
national economy. [R50-51].
IV.
ALJ’S FINDINGS
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.
2.
The claimant has not engaged in substantial gainful activity since
February 21, 2012, the alleged onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).
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...
3.
The claimant has the following severe impairments: low back pain;
degenerative disc disease; stenosis; and obesity
(20 CFR 404.1520(c) and 416.920(c)).
...
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
...
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than the full range of light work as defined in
20 CFR 404.1567(b) and 416.967(b) except she should avoid
climbing ropes, ladders, scaffolds, and unprotected heights. The
claimant should avoid crawling. The claimant can occasionally
climb ramps and stairs, stoop, and [perform] repetitive overhead
reaching and pulling. The claimant can frequently kneel, balance,
and crouch. Because of occasional pain, the clamant is restricted
to simple tasks. The claimant should avoid work environments
temperature extremes, to include extreme heat and cold
temperatures [sic]. The claimant should avoid jobs that require
extreme or fast pace work environments, or job pressures, including
job production quotas. With these restrictions, the claimant then
will be able to focus and concentrate, maintain attention and
concentration throughout the workday, and to complete a normal
workday at a pace that would be considered adequate.
...
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6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
...
7.
The claimant was born on February 4, 1963 and was 49 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date. The claimant subsequently changed age
category to closely approaching advanced age (20 CFR 404.1563
and 416.963).
8.
The claimant has a limited education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9.
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).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
...
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from February 21, 2012, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).
[R21-30].
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The ALJ explained that he assigned “significant weight” to the opinion of
Dr. Sanford, as Dr. Sanford had performed a complete physical examination, and that
he assigned “some weight” to the opinion of Dr. Neary. [R28]. The ALJ also stated
that he assigned “significant weight” to the opinions of the state-agency consultants,
“as their opinions are consistent with the medical evidence of record that shows that the
claimant is capable of light work.” [R28]. The ALJ further explained that he found
Plaintiff’s allegations of limitations less than fully credible because Plaintiff “ha[d] not
generally received the type of medical treatment one would expect for a totally disabled
individual,” such as “absolute rest in bed, back strapping, leg traction, or acupuncture”;
she had not followed up on further aggressive treatment such as surgery; Plaintiff
testified to cooking, grocery shopping, and cleaning, which “support[ed] the fact that
she is able to do activities of daily living at a normal pace”; and her work activity
postdating the alleged onset date indicated that Plaintiff’s daily activities had, at least
at times, been somewhat greater than Plaintiff reported. [R27].
VII. CLAIMS OF ERROR
Plaintiff raises multiple allegations of error. First, she contends that the ALJ
erred in his consideration of Dr. Sanford’s opinion, as the ALJ never resolved what
Plaintiff deems an “obvious contradiction” regarding Plaintiff’s need for an assistive
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device.13 [Doc. 10 at 9]. Second, she argues that Dr. Sanford’s and Dr. Neary’s
opinions included greater limitations than the RFC and thus that the assignment of
weight to those opinions should have resulted in a more restrictive RFC. [Id. at 9-10].
Third, Plaintiff contends that the ALJ erred by assigning significant weight to the
opinions of the state-agency reviewing physicians because they did not have the benefit
of reviewing records post-dating their opinions and they failed to reconcile the more
restrictive medical-source opinions they did review. [Id. at 10-11]. Fourth, Plaintiff
faults the ALJ for failing to state the weight he assigned to the opinions of the treating
physicians at US MedGroup. [Id. at 11-13]. Plaintiff argues that these errors are not
harmless because the treating and examining physicians were all of the opinion that
Plaintiff had significantly greater limitations than those incorporated into the RFC.
[Id. at 14-15].
Additionally, Plaintiff argues that the ALJ held her to an improper standard when
he discounted her credibility on the grounds that she “ha[d] not generally received the
type of medical treatment one would expect for a totally disabled individual.”
[Id. at 13-14]. She also contends that the ALJ’s credibility determination relies on
13
Plaintiff had argued as an initial matter that the ALJ erred by accepting VE
testimony that was contrary to the Dictionary of Occupational Titles, [Doc. 10 at 6-9],
but she withdrew the argument in her reply brief, [Doc. 16 at 1].
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misstatements of Plaintiff’s testimony regarding her activities of daily living and on
unwarranted assumptions about Plaintiff’s post-onset earnings and her reasons for
foregoing back surgery. [Id. at 15-18].
A.
Medical-Opinion Evidence
The Commissioner evaluates every medical opinion the agency receives,
regardless of the source. 20 C.F.R. § 404.1527(c); cf. 20 C.F.R. § 404.1527(b) (“In
determining whether you are disabled, we will always consider the medical opinions
in your case record together with the rest of the relevant evidence we receive.”); Social
Security Ruling (“SSR”) 06-03p, 2006 WL 2329939 at *4 (“[T]he [Social Security] Act
requires us to consider all of the available evidence in the individual’s case record in
every case.”).14 Thus, both examining and non-examining sources provide opinion
evidence for the ALJ to consider in rendering a decision. 20 C.F.R. § 404.1527(c), (e).
In determining the weight of medical opinions, the ALJ must consider: (1) the
examining relationship; (2) the treatment relationship; (3) evidence supporting the
14
Although 20 C.F.R. § 404.1527 has been superceded and SSR 06-03p—as
well as SSR 96-2p and SSR 96-5p—have been rescinded, they remain applicable to
cases filed prior to March 27, 2017. 20 C.F.R. § 404.1527 (2017); Corr. Not. of
Rescission of Soc. Sec. Rulings, 96-2p, 96-5p, & 06-3p, 2017 WL 3928297
(Apr. 6, 2017); Not. of Rescission of Soc. Sec. Rulings, 96-2p, 96-5p, & 06-3p,
2017 WL 3928298 (Mar. 27, 2017).
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conclusions; (4) the consistency of the opinion with the record as a whole; (5) the
medical expert’s area of specialty; and (6) other factors, including the amount of
understanding of disability programs and the familiarity of the medical source with
information in the claimant’s case record. 20 C.F.R. § 404.1527(c)(1)-(6).
“[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); 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 674188 at *5. Good cause exists when:
(1) the treating physician’s opinion was not bolstered by the evidence; (2) the evidence
supported a contrary finding; or (3) the treating physician’s opinion was conclusory or
inconsistent with the doctor’s own 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.
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Lewis,
125 F.3d at 1440. A treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion,
Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984), and, in fact, the opinion of a consultative examiner is not entitled to
any special weight, McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); Burroughs
v. Massanari, 156 F. Supp. 2d 1350, 1365 (N.D. Ga. 2001).
The opinions of
nonexamining, reviewing physicians, “when contrary to those of the examining
physicians, are entitled to little weight, and standing alone do not constitute substantial
evidence.” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987); accord Putman v.
Soc. Sec. Admin., Comm’r, 705 Fed. Appx. 929, 932 (11th Cir. Sept. 18, 2017) (quoting
Sharfarz). Nevertheless, an ALJ may reject any medical opinion if the evidence
supports a contrary finding. Sharfarz, id.; Putman, id.
Plaintiff’s arguments are well taken.
As noted above, the ALJ gave
Dr. Sanford’s consulting opinion “significant weight,” stating that Dr. Sanford found
that “the claimant did not use any assistive device to ambulate.” [R28]. Dr. Sanford’s
opinion actually stated, however, “Gait abnormal with use of crutch slow with limp
favoring the left leg. She stands with weight bearing on her right leg. Patient is able
to get on and off the examination table with difficulty and slow. Patient did not require
an assistive device to ambulate.” [R255 (emphasis added)]. Thus, while Dr. Sanford
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found that Plaintiff did not require an assistive device to ambulate, he did observe that
Plaintiff used one, [R255], consistent with Plaintiff’s own report to Dr. Sanford that she
uses a crutch to decrease the pressure on her legs and with Dr. Sanford’s opinion that
Plaintiff “would be limited in standing, walking, sitting, pushing or pulling,” [R256].
The ALJ’s statement that Dr. Sanford found that “the claimant did not use any assistive
device to ambulate” is therefore a misstatement of the record and one that tends to
overstate the ease with which Plaintiff was observed to ambulate. [Compare R28 with
R255]. A decision cannot be said to be supported by substantial evidence when it relies
on statements that are 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).
As to the opinion of Grady physician Dr. Neary, Plaintiff avers that the only
opinion Dr. Neary expressed was in the medical statement completed for HUD in which
he diagnosed axial low-back pain likely due to facet arthropathy and opined that
Plaintiff was unable to work in any capacity. [Doc. 10 at 10 (citing [R353])]. Plaintiff
contends that “[i]t does not follow that if the ALJ gave this opinion some weight, that
she could perform various light jobs on a full-time basis.” [Doc. 10 at 10]. In response,
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the Commissioner argues that Dr. Neary was a one-time examining physician and his
opinion therefore was not entitled to great weight, [Doc. 14 at 17 (citing McSwain,
814 F.2d at 619)]; that a statement of disability is a decision reserved to the
Commissioner and thus is not entitled to any significant weight, [Doc. 14 at 17-18
(citing 20 C.F.R. § 404.1527(d); SSR 96-5p, 1996 WL 374183 at *2; Denomme v.
Comm’r, Soc. Sec. Admin., 518 Fed. Appx. 875, 878 (11th Cir. May 16, 2013);
Hutchinson v. Astrue, 408 Fed. Appx. 324, 327 (11th Cir. Jan. 18, 2011); Bell v. Bowen,
796 F.2d 1350, 1353-54 (11th Cir. 1986))]; and that because the ALJ considered
Dr. Neary’s observations and the other evidence of record, the ALJ’s failure to weigh
Dr. Neary’s opinion of disability was harmless, [Doc. 14 at 18 (citing Chapman v.
Comm’r of Soc. Sec., 709 Fed. Appx. 992, 995 (11th Cir. Sept. 26, 2017))].
It first bears remark that the ALJ did not state any reason at all for assigning
“some weight” to the opinion of Dr. Neary. [R28]. A court cannot draw post hoc
conclusions from the evidence but instead must determine whether the ALJ properly
applied the law and supported the decision with substantial evidence. Baker v. Comm’r
of Soc. Sec., 384 Fed. Appx. 893, 896 (11th Cir. June 23, 2010) (“If an action is to be
upheld it must be upheld on the . . . bases articulated in the agency’s order.”) (citing
FPC v. Texaco, Inc., 417 U.S. 380, 397 (1974)); Patterson v. Chater,
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983 F. Supp. 1410, 1413 (M.D. Fla. 1997) (holding that it is the duty of the ALJ—and
not the court—to draw inferences from the evidence and resolve conflicts in the
evidence). It is also notable that the Commissioner’s assertion that Dr. Neary was a
one-time examining physician contradicts the ALJ’s express finding that Dr. Neary was
a treating physician, [R28], a finding that is entirely in line with authority holding that
a doctor who is a member of a medical-treatment team may be considered a “treating
physician” within the context of the Social Security regulations when he transmits his
own knowledge and opinions and those of the medical-treatment team. See, e.g.,
Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1039 (9th Cir. 2003) (finding that
psychiatrist fell into “the treating physician category” where he examined the claimant
about a year before his report and was still employed to cure her); Kittleson v. Astrue,
533 F. Supp. 2d 1100, 1116-17 (D. Or. 2007) (finding doctor was treating doctor where
he treated claimant briefly, was responsible for plaintiff’s continuing care, and had
direct contact with members of plaintiff’s treatment team); cf. Moser v. Barnhart,
No. Civ. 01-279(JRT/AJB), 2002 WL 459052, at *3 (D. Minn. Mar. 18, 2002) (finding
no treating relationship because, although plaintiff went to doctor’s clinic for
twenty-five years, there was no evidence that the doctor reviewed plaintiff’s record or
was involved in claimant’s treatment). Here, as Dr. Neary stated that Plaintiff was in
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regular treatment at Grady and referred to records indicating that she had been treated
at Grady on numerous previous occasions, [R337, 353], it appears that Dr. Neary’s
opinion should have been considered a treating opinion.
The ALJ also was not entitled simply to disregard Dr. Neary’s opinion of
disability. While it is true that the ultimate disability determination is reserved to the
Commissioner, and even a treating physician’s opinion that a claimant is completely
disabled is not entitled to controlling weight, an ALJ may not wholly disregard a
treating physician’s opinion of disability on the mere ground that the opinion infringes
on the ALJ’s role in making the disability determination. 20 C.F.R. § 404.1527(d)(1)
(“[W]e review all of the medical findings and other evidence that support a medical
source’s statement that you are disabled.”); Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984) (explaining that a treating physician’s opinion of disability should be
considered in conjunction with treatment notes and reports); Williams v. Astrue,
No. CV406-19, 2008 WL 591288, at *3 (S.D. Ga. Mar. 3, 2008) (“[O]pinions from any
medical source about issues reserved to the Commissioner must never be ignored, and
[the] notice of the determination or decision must explain the consideration given to the
treating source’s opinion.”) (quoting SSR 96-5p, 1996 WL 374183 at *1) (alterations
and italics in Williams).
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The Court also is not persuaded by the Commissioner’s argument that pursuant
to Chapman, the ALJ’s error here was harmless. In Chapman, the court held that
ignoring the treating physician’s letter stating that the claimant was “permanently
disabled” and therefore unable to serve on a jury was harmless because the opinion was
conclusory and the medical notes did not support the opinion.
Chapman,
709 Fed. Appx. at 995 (observing that the doctor listed some of the claimant’s
impairments and stated that she complained of pain but that the ALJ had also noted that
the claimant had refused treatment options). Here, in contrast, in addition to stating that
Plaintiff suffered from axial low-back pain likely due to facet arthropathy and that she
rated her pain at eight on a ten-point scale, Dr. Neary also made objective findings that
Plaintiff had a stooped posture when erect, had reduced spinal extension, had difficulty
mobilizing due to pain, had reduced flexion, and had severely reduced lateral rotation,
and he specified that Plaintiff’s treatment plan included physical therapy and antiinflammatory medication with facet injections. [R337, 353]. Grady treatment notes
also reflect that in March 2013, Plaintiff was taking opiate analgesics for her pain, and
a straight-leg-raise test was positive on the left, [R269]; in May 2013, she began
physical therapy for back pain and neuropathic leg pain, her gait was independent with
a cane, she rated her central-lumbar pain at ten on a ten-point scale, and she reported
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that her pain was aggravated by prolonged walking and sitting, [R318]; and well after
Dr. Neary issued his opinion, Plaintiff was observed to still have a gait problem,
[R405], and back pain, [R381]. These are all findings that support Dr. Neary’s
opinion—or at least a greater level of limitation than that appearing in the RFC.
Notably, Dr. Sanford’s observations regarding Plaintiff’s use of a crutch to reduce
pressure on her legs also tend to lend support to Dr. Neary’s opinion. [See R254-55].
The Court is also persuaded that the opinions of the state-agency reviewing
physicians could not serve as substantial evidence to support the ALJ’s decision
because the reviewing physicians did not have the benefit of reviewing records
post-dating their opinions and they failed to reconcile their opinions with the more
restrictive medical-source opinions they did review. [See Doc. at 10-11]. Dr. Reddy,
who issued the later of the two reviewing opinions, issued her opinion on
March 27, 2014. [R70-73]. She therefore rendered her opinion without the benefit of
reviewing Dr. Neary’s notes indicating that Plaintiff had a stooped posture when erect,
had reduced spinal extension, had difficulty mobilizing due to pain, exhibited reduced
flexion and severely reduced lateral rotation, and had been diagnosed with chronic back
pain due to degenerative osteoarthritis and axial low-back pain likely due to facet
arthropathy, [R337, 353]; Dr. Neary’s opinion that Plaintiff was unable to work,
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[R353]; and Grady treatment notes indicating that Plaintiff still had arthralgias and a
gait problem in October 2015, [R405, 407], and back pain in January 2016, [R381].
Additionally, it does not appear that Dr. Reddy reviewed Grady Hospital treatment
notes showing that in March 2013, Plaintiff was taking opiate analgesics for her back
pain and had a positive straight-leg-raise test on the left, [compare R72 with R269], and
that in May 2013, Plaintiff began physical therapy for back pain and neuropathic leg
pain, her gait was independent with a cane, she reported pain in the central lumbar
region that she rated at ten on a ten-point scale, and she indicated that her pain was
aggravated by prolonged walking and sitting, [compare R72 with R317-18], even
though the treatment notes pre-dated Dr. Reddy’s opinion. Likewise, Dr. Reddy’s
opinion includes no reference to Dr. Sanford’s finding that Plaintiff would be limited
in standing, walking, pushing, and pulling, [R256]; Dr. Salisbury’s opinion that
Plaintiff was limited to no lifting, pushing, or pulling greater than twenty pounds and
no bending greater than five times per hour, [R244]; Dr. James’s observations that
Plaintiff walked with a crouched gait with a cane in her right hand, she had marked
paraspinal spasms, right greater than left, she had an extension jerk, her range of motion
was limited, and she had moderate-to-severe arthropathy and left foraminal narrowing,
[R221-21]; or Dr. James’s opinion that Plaintiff needed a lumbar fusion and should lift
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no greater than five pounds, should push or pull no more than five pounds, and should
sit fifty percent of the time at work, [R218, 222]—nor did Dr. Reddy make any attempt
to reconcile her opinion with the opinions of any of the treating physicians. [Compare
R70-73]. Accordingly, Dr. Reddy’s opinion supplies scant basis for a determination
that it was supported by substantial evidence.
The Commissioner contends that the error is harmless because the ALJ
considered the evidence that Dr. Reddy did not. [Doc. 14 at 18-19 (citing Cooper v.
Comm’r of Soc. Sec., 521 Fed. Appx. 803, 807 (11th Cir. June 6, 2013))]. The Court
finds this argument unavailing, however, as Cooper does not appear to involve any
misstatements of medical findings, nor does it appear that the ALJ in Cooper heavily
relied on the opinion of a reviewing physician who ignored or otherwise failed to
reconcile medical-source opinions that were clearly more restrictive than the reviewer’s
opinion. See Cooper, id. Moreover, even if the ALJ considered the evidence that
Dr. Reddy apparently did not, an ALJ “cannot act as both judge and physician.” Rease
v. Barnhart, 422 F. Supp. 2d 1334, 1374 (N.D. Ga. 2006) (citing Marbury v. Sullivan,
957 F.2d 837, 840-41 (11th Cir. 1992)).
For these reasons, the undersigned concludes that the ALJ reversibly erred in his
consideration of the medical opinions.
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B.
Credibility
Because the medical record was not properly considered, it necessarily follows
that the credibility analysis also could not have been supported by substantial evidence.
See Foote, 67 F.3d at 1560 (explaining that when a claimant attempts to establish
disability through her own testimony of subjective symptoms, the ALJ must consider
the claimant’s testimony regarding the symptoms once she finds evidence of an
underlying medical condition and either objective medical evidence that confirms the
severity of the alleged symptom arising from that condition or that the objectively
determined medical condition is of such a severity that it can be reasonably expected
to give rise to the alleged symptom). The Court also finds problematic the ALJ’s
reliance on Plaintiff’s refusal to undergo surgery or receive certain types of
conservative treatment, [R27 (discounting Plaintiff’s credibility based on the fact that
she did not follow up on the surgery recommendation and “[o]ther treatments such as
absolute rest in bed, back strapping, leg traction, or acupuncture were not sought or
received”)], as there is no evidence that any conservative treatment other than the
physical therapy, drug therapy, and injections Plaintiff tried were indicated for her
condition, [R229, 268, 317], and it is not the “claimant’s burden to undergo any and all
surgical procedures suggested by her physician lest she be barred from disability
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benefits,” McCarty v. Richardson, 459 F.2d 3, 4 (5th Cir. 1972).15 For this reason, it is
also unclear whether the ALJ held Plaintiff to an improper standard when he discounted
her credibility on the grounds that she “ha[d] not generally received the type of medical
treatment one would expect for a totally disabled individual.” [R27]. Additionally,
there does not appear to be any support in the record for the ALJ’s finding that
Plaintiff’s testimony shows that she is able to do activities of daily living “at a normal
pace,” [R27]; rather, the testimony indicates that Plaintiff greatly modifies her activities
to account for her claimed limitations, such as using a wheelchair to shop for groceries,
using a chair by the stove in order to be able to cook, and limiting herself to short bursts
of light cleaning. [R49-50, 201]. See Henry v. Comm’r of Soc. Sec., 802 F.3d 1264,
1267 (11th Cir. 2015) (“The ALJ has a basic duty to develop a full and fair record.”);
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
15
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of business on September 30, 1981.
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evidence). Thus, the Commissioner must also reconsider Plaintiff’s credibility upon
remand.16
VIII. CONCLUSION
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 13th day of September, 2018.
16
Because Plaintiff did not proffer any evidence indicating that the
assumptions that the ALJ made about her post-onset earnings were in fact incorrect and
therefore prejudicial to her, [Doc. 10 at 16-18], the Court does not find additional
grounds for reversal in the ALJ’s alleged error in citing her post-onset earnings as
evidence that Plaintiff was not as disabled as she claimed. See McCloud v. Barnhart,
166 Fed. Appx. 410, 417 (11th Cir. Jan. 25, 2006) (“[E]ven when the hearing was ‘less
than totally satisfactory,’ remand is unwarranted unless the claimant can show
prejudice.”) (quoting Kelley v. Heckler, 761 F.2d 1538, 1540-41 (11th Cir. 1985));
McCloud, id., (“[T]he claimant has the burden of producing evidence to support her
disability claim.”) (citing Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003));
see also Townsend v. Comm’r of Soc. Sec., 555 Fed. Appx. 888, 891-92 (11th Cir.
Feb. 7, 2014) (finding no basis for reversal where “even now, [the plaintiff] has not
suggested what more the ALJ might have learned from further questioning”); Kelley,
761 F.2d at 1540-41 (holding that where a party fails to indicate what facts could have
been submitted that would have changed the outcome, the party fails to show he was
prejudiced).
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