Briggs II v. Colvin

Filing 16

ORDER directing the Clerk to submit the 15 REPORT AND RECOMMENDATIONS with any objections to the Honorable William T. Moore, Jr on 5/18/16. Signed by Magistrate Judge G. R. Smith on 5/3/16. (wwp) Modified on 5/9/2016 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LOUIS HINTZE BRIGGS II,
Plaintiff,
v.
Case No. CV415-062
CAROLYN COLVIN,
Acting Commissioner of
Social Security,
Defendant.

REPORT AND RECOMMENDATION
Alleging disability due to sleep apnea, gout, high blood pressure,
back, shoulder, ankle, and hip issues, as well as chronic pain from
generalized osteoarthritis, plaintiff Louis Briggs seeks judicial review of
the Social Security Commissioner’s denial of his application for a period of
disability and Disability Insurance benefits (DIB). Doc. 10 at 4. 1

I. GOVERNING STANDARDS
In social security cases, courts:

1

“Doc.” citations use the docket and page numbers imprinted by the Court’s
docketing software. Those do not always line up with each paper document’s printed
pagination. “Tr.” citations, on the other hand, use the page numbers in the bottom
right corner of the administrative record, which is located on the docket at Doc. 6.

review the Commissioner’s decision for substantial evidence.
Winschel v. Comm'r of Soc. Sec ., 631 F.3d 1176, 1178 (11th Cir.
2011). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. (quotation omitted). . . . “We may not
decide the facts anew, reweigh the evidence, or substitute our
judgment for that of the Commissioner.” Winschel , 631 F.3d at
1178 (quotation and brackets omitted). “If the Commissioner's
decision is supported by substantial evidence, this Court must
affirm, even if the proof preponderates against it.”
Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted).

Mitchell v. Comm’r, Soc. Sec. Admin . , 771 F.3d 780, 782 (11th Cir. 2014).
The burden of proving disability lies with the claimant.

Moore v.

Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). In response to the
showing the claimant makes, the Administrative Law Judge (ALJ) applies
a five-step, “sequential” process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(1). If an ALJ finds a claimant
disabled or not disabled at any given step, the ALJ does not go on to
the next step. Id . § 404.1520(a)(4). At the first step, the ALJ must
determine whether the claimant is currently engaged in substantial
gainful activity. Id . § 404.1520(a)(4)(i). At the second step, the ALJ
must determine whether the impairment or combination of
impairments for which the claimant allegedly suffers is “severe.” Id .
§ 404.1520(a)(4)(ii). At the third step, the ALJ must decide whether
the claimant’s severe impairments meet or medically equal a listed
impairment. Id . § 404.1520(a)(4)(iii). If not, the ALJ must then
determine at step four whether the claimant has the RFC to perform
her past relevant work. Id . § 404.1520(a)(4)(iv). If the claimant
cannot perform her past relevant work, the ALJ must determine at
step five whether the claimant can make an adjustment to other
work, considering the claimant's RFC, age, education, and work
2

experience. 1 An ALJ may make this determination either by
applying the Medical Vocational Guidelines or by obtaining the
testimony of a VE. Winschel v. Comm'r of Soc. Sec ., 631 F.3d 1176,
1180 (11th Cir. 2011).

Stone v. Comm’r. of Soc. Sec. Admin ., 596 F. App’x, 878, 879 (11th Cir.
2015) (footnotes added).
“For DIB claims, a claimant is eligible for benefits where []he
demonstrates disability on or before the last date for which []he w[as]
insured. 42 U.S.C. § 423(a)(1)(A) (2005). Because [Briggs’] last insured
date was December 31, [2015 (tr. 31)], h[is] DIB appeal requires a showing

Moore , 405 F.3d at 1211.

of disability on or before that date.”

II. ANALYSIS
Briggs, 46 when the ALJ denied his DIB application (Tr. 43, 152)
and 43 on his alleged onset date (Tr. 35), has four years of college
education (Tr. 193) and past work experience as a logistics technician in

1

At steps four and five, the ALJ assesses the claimant’s residual functional capacity
(RFC) and ability to return to her past relevant work. Phillips v. Barnhart, 357 F.3d
1232, 1238 (11th Cir. 2004). RFC is what “an individual is still able to do despite the
limitations caused by his or her impairments.” Id. (citing 20 C.F.R. § 404.1545(a);
Moore v. Comm’r of Soc. Sec. , 478 F. App’x 623, 624 (11th Cir. 2012). “The ALJ
makes the RFC determination based on all relevant medical and other evidence
presented. In relevant part, the RFC determination is used to decide whether the
claimant can adjust to other work under the fifth step.” Jones v. Comm’r of Soc. Sec .,
603 F. App’x 813, 818 (11th Cir. 2015) (quotes and cite omitted).
3

the U.S. Army and as an ROTC instructor at Georgia Southern
University. Tr. 60. Now 49, he suffers from degenerative joints that
cause severe chronic pain, gout, high blood pressure, and sleep apnea.
Tr. 192.

Briggs protectively filed for DIB on August 12, 2011 (Tr. 152),
alleging a disability onset of June 16, 2010. Tr. 181.

Following

administrative denial, he attended and testified at a hearing on July 16,
2013 before the ALJ, who later denied his application. Tr. 43. Although
the ALJ found that Briggs’ “degenerative disc disease of the lumbar and
cervical spine, and left hip arthroplasty” constituted severe impairments
(Tr. 33), he concluded, after consulting a vocational expert, that Briggs
retained the RFC for sedentary work, including his past work as an
instructor. Tr. 41. The ALJ thus found him “not disabled” because (1)
he could return to his past work, and (2) other jobs that he could perform
exist in significant numbers in the national economy. Tr. 42.
To Briggs, that’s error. He argues that the ALJ failed to properly
weigh medical evidence when he discounted the opinion of Dr. Amy
Pearson, Briggs’ treating pain management physician, and fully credited

4

the opinion of Dr. William McRae, a consultative examiner for the Social
Security Administration.

See doc. 11 at 12. Compounding that error,

says Briggs, the ALJ “failed to properly evaluate [his] credibility” by
measuring his subjective pain reports against “sporadic activities of daily
living” and objective medical evidence the ALJ read to “not substantiate
[his] statements.”

Id. at 18.

A. Weighing Medical Evidence

1. Dr. Pearson
In affording Pearson’s opinion “only partial weight,” the ALJ
found that it rested “primarily upon [Briggs’] subjective allegations of
pain . . . notwithstanding [Pearson’s] notes . . . and examination
findings that [he] had only mild limitations in his range of motion of the
cervical and lumbar spine, crepitus,” and MRI results, “which indicated
no rotator cuff tear.” Tr. 40. The ALJ also noted that Pearson’s
observation that Briggs’ constant pain “would be severe enough to
interfere with attention and concentration” conflicted with his
“description of his own activities[,] including using a computer
frequently, and caring for his young son, as well as doing household
5

chores.” Id. What’s more, opined the ALJ, “Pearson’s opinion . . .
[was] likely motivated by the possibility that [she was] expressing [her]
opinion in an effort to assist [Briggs] with whom . . . she sympathizes,”
or was a response to satisfy an “insistent and demanding” patient.

Id.

Briggs complains that the ALJ “grossly mischaracterized the
record” by concluding that Pearson “based her opinions primarily on
. . . subjective statements,” not clinical evidence. Doc. 11 at 12. He
also, according to Briggs, failed “to identify substantial evidence” that
contradicted Pearson’s opinions or supported his conclusion that
Briggs’ daily activities conflicted with her opinion.

Id. at 13-15.

Finally, Briggs contends that the ALJ “inappropriately speculated that
Dr. Pearson ‘likely’ rendered h[er] opinion because [s]he ‘sympathizes’
with” Briggs. Doc. 11 at 12-15. Absent the ALJ’s errors, “Pearson’s
assessment of [his] physical impairments should have been afforded
controlling weight.” Id. at 16.
“The opinion of a treating physician, such as Dr. [Pearson], ‘must
be given substantial or considerable weight unless ‘good cause’ is
shown to the contrary.’” Phillips, 357 F.3d at 1240 (quoting Lewis v.
6

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Good cause “exists
when the: (1) treating physician's opinion was not bolstered by the
evidence; (2) evidence supported a contrary finding; or (3) treating
physician's opinion was conclusory or inconsistent with the doctor’s
own medical records. When electing to disregard the opinion of a
treating physician, the ALJ must clearly articulate its reasons.”

Id.

(cites omitted). “As a general rule, ‘the opinions of examining
physicians are given more weight than those of non-examining
physicians, treating physicians are given more weight than those of
physicians who examine but do not treat, and the opinions of specialists
are given more weight on issues within the area of expertise than those
of non-specialists.’ McNamee v. Soc. Sec. Admin. , 164 F. App’x 919,
923 (11th Cir. 2006).”

Black v. Colvin , 2015 WL 7185506 at * 3 (S.D.

Ga. Nov. 13, 2015), adopted , 2016 WL 296260 (S.D. Ga. Jan. 12, 2016).
No substantial evidence demonstrates good cause to afford
Pearson’s opinion only “partial weight.” Although she certainly relied
in part on Briggs’ subjective statements of pain (as a pain management

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specialist, how could she not?), 2 her opinion ultimately rested on a
bedrock of clinical data and objective observations. For example, when
Briggs “first presented to [her] pain clinic on May 21, 2010,” she
confirmed a diagnosis of “generalized osteoarthritis with severe chronic
joint pain” based on (1) his medical history (which included a total left
hip replacement at a very young age), (2) a physical exam (which
revealed tenderness and mild swelling in multiple joints), and (3) an
MRI, “which showed advanced osteoarthritis” in his right shoulder.
Tr. 372. Two and three months thereafter, her notes again indicate
that objective examination revealed severe shoulder inflammation.
Tr. 402, 404. None of those data points qualifies as subjective pain
reporting. 3

2

As federal regulations and precedent recognize, disability stemming from severe
pain oftentimes is evidenced by subjective statements of pain. See 20 C.F.R. §
404.1529; Holt v. Sullivan , 921 F.2d 1221, 1223 (11th Cir. 1991). Such statements
carry more weight when buttressed by objective data, see Wilson v. Barnhart , 284 F.3d
1219, 1225-26 (11th Cir. 2005), but to discount Pearson’s opinion because it relied in
part on Briggs’ pain reporting would ignore the common sense reality that pain is an
inherently subjective symptom that cannot be captured by, for example, a blood test.
3

A plethora of clinical evidence supports Pearson’s opinion beyond just the limited
examples given above. See, e.g. , Tr. 478 (right shoulder MRI results showing a
variety of abnormalities); 402, 404, 408 (various joints “tender to [Pearson’s]
palpation”); 411 (spinal impairment questionnaire noting “marked” limitation in
8

To conclude that Pearson’s opinion relied “primarily upon
[Briggs’] subjective allegations of pain,” the ALJ contrasted it with “her
notes in her statement and examination findings that [Briggs] had only
mild limitations in his range of motion of the cervical and lumbar spine,
crepitus, and the MRI results which indicated no rotator cuff tear.”
Tr. 40. That’s an inaccurate and incomplete picture of Pearson’s
notes. At no point did she state that Briggs suffered only “mild”
lumbar range of motion limitations. Instead, she observed “ marked
limitations all planes” for the lumbar range. Tr. 411 (emphasis
added). And the MRI, despite showing no rotator cuff tear, did reveal
“glenohumeral 4 osteoarthritis with labral deformity and deformity of
the glenoid and the humeral head,” not to mention supraspinatus
tendonosis. 5 Tr. 395 (footnote added). That was enough for Pearson
to recommend that Briggs consider a complete shoulder replacement.
Tr. 396.
Briggs’ lumbar range of motion).
4

“Glenohumeral,” in layman’s terms, essentially means shoulder.

5

Supraspinatus tendonosis is inflammation of the tendon connected to a small
muscle on the upper back (the supraspinatus).
9

The ALJ’s recitation of Briggs’ daily activities -- that Briggs used
a computer frequently, cared for his young son, and did household
chores -- suffers the same misrepresentative flaw. Tr. 40. Briggs
testified that he could feed his son “because he can sit on me . . . but as
far as like picking him up, putting him down, I can’t do that,” not that
he cared for him, much less regularly. Tr. 67. When asked if he did
“any stuff to help out around the house,” Briggs responded that “I
don’t do anything. I, I do -- I will put the dishes in the dishwasher and
I will hose off the, the back patio sometimes.” Tr. 67. That’s not
precisely “doing household chores,” as the ALJ characterized it. Tr.
40. Briggs rarely if ever fixes his own meals (Tr. 66), never leaves the
house to shop (at least in part because he cannot safely drive because of
pain medications, tr. 65), and makes it to church about “two Sundays
within a month.” Tr. 69. He does spend time on a computer, but he
never said how often. Instead, he stated that he pays bills and shops
online, but that the majority of his day is spent “sitting in a chair,
watching TV.” 6 Tr. 67.
6

Even if the ALJ accurately reported Briggs’ daily activities (he did not), the Court
10

The ALJ’s final reason for only partially crediting Pearson’s
opinion -- that it “is likely motivated” by sympathy for Briggs and thus
given “in an effort to assist her patient” (Tr. 40) -- is, unlike his two
other reasons, not a misrepresentation. It’s rank speculation that
merits no deference and renders his disability determination reversible.

See Gallegos v. Colvin , 2016 WL 705227 at * 5 (W.D. Tex. Feb. 18, 2016)
(“[T]he ALJ's statement that it was possible that Dr. Zayas had
doubts whether substantial evidence supports his conclusion that they are
inconsistent with Pearson’s opinion that his pain “constantly” interferes with his
attention and concentration. Feeding a child at times, putting dishes in a
dishwasher, and using a computer are not activities broadly inconsistent with
attention and concentration deficits. See Lewis, 125 F.3d at 1441 (“[W]e are unsure
that Lewis's successful completion of a six minute treadmill exercise is necessarily
indicative of his ability to work. Nor do we believe that participation in everyday
activities of short duration, such as housework or fishing, disqualifies a claimant from
disability. . . .”). Regardless, those activities are only part of the picture the record
paints and the Court cannot look at them in isolation in considering whether the ALJ’s
decision is supported by substantial evidence. See Parker v. Bowen , 793 F.2d 1177,
1180 (11th Cir. 1986) (“We have consistently held that in ascertaining whether the
Secretary's findings are supported by substantial evidence, we do not consider only
those parts of the record that support those findings, but rather must ‘view the entire
record and take account of evidence in the record which detracts from the evidence
relied on by the [Secretary].’”); cf. Smith v. Califano , 637 F.2d 968, 971072 (3d Cir.
1981) (“The ALJ seems to have relied heavily on the fact that claimant had testified
that he had full use of his hands, arms and legs, does shopping and last fall went
hunting twice. Yet, statutory disability does not mean that a claimant must be a
quadriplegic or an amputee. Similarly, shopping for the necessities of life is not a
negation of disability and even two sporadic occurrences such as hunting might
indicate merely that the claimant was partially functional on two days. Disability does
not mean that a claimant must vegetate in a dark room excluded from all forms of
human and social activity.”).
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sympathy for Plaintiff or wanted to avoid tension in his relationship
with Plaintiff is entirely speculative and constitutes error.”); Trujillo v.

Astrue , 2013 WL 706270 at * 5 (D. Utah Feb. 26, 2013) (“[T]he ALJ's
boilerplate statements that Dr. Gardner may have sympathized with
the Plaintiff and satisfied her requests for an opinion regarding her
disability in order to avoid unnecessary doctor-patient tension
constitutes improper speculation and inadequate lay opinion judgment
by the ALJ.”). 7 Nothing in the record remotely suggests that Pearson
lied to support her patient or to prevent doctor-patient tension. In
fact, the clinical data supporting Pearson suggests that she drew her
conclusions from entirely appropriate sources.
Most importantly, by misrepresenting the MRI results,
7

Apparently, those “boilerplate statements” have infected disability appeals around
the country. See, e.g. , Tully v. Colvin , 943 F. Supp. 2d 1157, 1168 (E.D. Wash. 2013)
(repeating the same sympathy and tension language as the ALJ used here); Gallegos ,
2016 WL 705227 at * 5 (same); Sullivan v. Colvin , 2013 WL 2155115 at * 5 (W.D. Ark.
May 17, 2013) (same). See also Lester v. Chater , 81 F.3d 821, 832 (9th Cir. 1995), as
amended (Apr. 9, 1996) (“The Secretary may not assume that doctors routinely lie in
order to help their patients collect disability benefits. While the Secretary may
introduce evidence of actual improprieties, no such evidence exists here.”) (quotes and
cites omitted). Unless supported by substantial evidence “which insinuates that [a
treating physician] leaned over backwards to support [a p]laintiff’s application for
disability,” such statements have no place in an ALJ’s opinion. Gallegos , 2016 WL
705227 at * 5. Using them to undergird benefits denials, as the ALJ did in this case,
constitutes error and will not be tolerated.
12

incorrectly noting Briggs’ lumbar range
misrepresenting Briggs’ daily activities,

of motion limitation,
and using unsupported

speculation as a reason to discredit a treating physician, the ALJ boldly
highlighted the lack of substantial evidentiary support for rejecting
Pearson’s opinion. Because that opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in [the] case
record,” 8 the ALJ should have afforded it “controlling weight.” 20
C.F.R. § 404.1527(c)(2). That’s not to say that Pearson’s opinion that
Briggs is “100%, permanently disabled” (Tr. 372) is itself controlling.
It’s not. See Denomme v. Commissioner, Social Security Admin. , 518

8

The ALJ gave great weight to McRae, a one-time consultative examiner, who,
without ever reviewing Briggs’ medical records, concluded that he suffered “[m]ild
functional limitations . . . due to his left hip and bilateral shoulder pain.” Tr. 41. In
doing so, the ALJ summarized McRae’s findings in great detail, but for a weighting
rationale stated only that his opinion “addresses [Briggs’] functional limitations after
an examination of the claimant which indicated that the claimant has no evidence of
cyanosis, clubbing or edema, [and] a blood pressure of 148/94.” Id. Such a vague,
lightly supported, opinion is not substantial evidence and thus not entitled to great
weight. See Collas v. Colvin , 2015 WL 668734 at * 5 (M.D. Fla. Feb. 17, 2015)
( treating physician’s “vague observations of pain” not material); see also Selian v.
Astrue , 708 F.3d 409, 421 (2d Cir. 2013) (expert opinion can be deemed insubstantial
when it describes a claimant’s impairments in terms so vague as to render it useless in
evaluating RFC).
13

F. App’x 875, 877-78 (11th Cir. 2013) (“[T]he Commissioner, not a
claimant’s physician, is responsible for determining whether a claimant
is statutorily disabled.”) (citing 20 C.F.R. § 404.1527(d)(1)). But it
does mean that Pearson’s opinion about Briggs’ functional limitations
was entitled to deference and controlling weight.
B. Briggs’ Credibility
In addition to contesting the partial weight afforded Pearson,
Briggs argues that the ALJ’s skepticism of his subjective limitation
allegations lacks substantial evidentiary support. Doc. 11 at 17.
Where, as here, a claimant attempts to establish disability through his
own testimony of subjective limitations, the “pain standard” applies.

Dyer , 395 F.3d at 1210. That demands:
(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the objectively
determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.

Watson v. Colvin , 2015 WL 8467014 at * 6 (S.D. Ga. Nov. 18, 2015)
(quoting Holt , 921 F.2d at 1223).
As the Eleventh Circuit explained:
14

The claimant's subjective testimony supported by medical
evidence that satisfies the standard is itself sufficient to support a
finding of disability. Hale v. Bowen , 831 F.2d 1007, 1011 (11th Cir.
1987); MacGregor v. Bowen , 786 F.2d 1050 (11th Cir. 1986);
Landry , 782 F.2d at 1152. If the ALJ decides not to credit such
testimony, he must articulate explicit and adequate reasons for
doing so. Hale , 831 F.2d at 1011. Failure to articulate the reasons
for discrediting subjective pain testimony requires, as a matter of
law, that the testimony be accepted as true. Cannon v. Bowen , 858
F.2d 1541, 1545 (11th Cir. 1988); Hale , at 1054; MacGregor, 786
F.2d at 1054.

Holt , 921 F.2d at 1223.
The ALJ found that Briggs had a qualifying medical condition
whose severity could reasonably be expected to give rise to the reported
pain, but also found Briggs “not entirely credible.” Tr. 40. Although
he then articulated reasons, they fall well short of adequate.

See Holt ,

921 F.2d at 1223.
The ALJ first reiterated that Briggs’ daily activities were “not
consistent with total disability.” Tr. 40. But as discussed above, he
grossly misrepresented those activities and in doing so failed to
consider the entire record, including the parts that “detract[] from the
evidence [he] relied on.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.
1995). What’s more, he provided no reasons why Briggs’ activities are
15

inconsistent with a disability finding -- he simply concluded they were.
Tr. 40. That amounts to an inadequate “broad rejection” of a
claimant’s pain report that is unable to withstand judicial scrutiny.

See id. ; Buchanan v. Astrue , 2012 WL 6085155 at * 7 (S.D. Ga. Oct. 26,
2012), adopted, 2012 WL 6085151 (S.D. Ga. Dec. 6, 2012) (ALJ’s
“simpl[e] conclu[sion] that Plaintiff’s activities of daily living [were]
well beyond those of an individual who is completely disabled” qualifies
as “an additional basis for remanding th[e] case”).
The ALJ also cited “EKG, blood chemistry, and imaging studies”
as supporting “a finding that [Briggs’] impairments were only mildly
limiting.” Tr. 40. EKG and blood chemistry studies, however, are
irrelevant to a disability determination when the claimant suffers from
the severe pain caused by a panoply of musculoskeletal problems. And
the imaging study cited is yet another case of the ALJ cherry picking
medical records for only those tidbits that can be crafted to justify
denying benefits. The October 29, 2011 MRI showed, as the ALJ
correctly noted, “no evidence of rotator cuff tear, “mild” tendinosis, and

16

an intact teres minor. 9 But those findings related only to Briggs’
acromioclavicular joint. 10 Tr. 479. The scan also revealed
“questionable thickening of the inferior glenohumeral ligament,
suggestive of adhesive capsulitis;” “[a]dvanced degenerative changes
[to] the glenohumeral joint with joint space narrowing, spurring and
subchondral cystic/sclerotic changes;” and “fluid surrounding the . . .
biceps tendon,” which contained “internal adhesions compatible with
stenosing tenosynovitis.” 11 Id. Ignoring that objective clinical data in
favor of, yet again, cherry picking supportive phrases cements a pattern
of failing to consider the entire record and cannot be countenanced.

See Foote , 67 F.3d at 1561.
Properly considering that record -- the whole record, without
omission or misrepresentation -- reveals no inconsistencies between
9

The teres minor is a narrow, elongated muscle that runs from the shoulder
diagonally down towards the scapula. As part of the rotator cuff, it helps hold the
humerus in the shoulder socket.
10

The acromioclavicular (AC) joint is the junction between the highest point on the
scapula and the clavicle (collarbone).
Stenosing tenosynovitis, commonly known as “trigger finger,” is an inflammation
of tendons in the hand that can lead to thickening and nodule formation on those
tendons.
11

17

objectively determinable conditions and Briggs’ subjective pain reports.
His testimony therefore deserved credit.

IV. CONCLUSION
Because the ALJ erred by affording Pearson’s opinion only partial
weight and by discrediting Briggs’ own pain report, the Commissioner’s
final decision should, pursuant to sentence four of 42 U.S.C. § 405(g) be

REVERSED and this case REMANDED for further consideration in
accordance with this opinion.

SO REPORTED AND RECOMMENDED , this 3rd day of
May, 2016.

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

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