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Pendley v. Colvin

United States District Court, N.D. Alabama, Northeastern Division

February 6, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          John E. Ott, Chief United States Magistrate Judge

         Plaintiff Lenora Heaton Pendley brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of the Acting Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance benefits and supplemental security income. (Doc. 1).[1] The case has been assigned to the undersigned United States Magistrate Judge pursuant to this court's general order of reference. The parties have consented to the jurisdiction of this court for disposition of the matter. (See Doc. 16). See 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(a). Upon review of the record and the relevant law, the undersigned finds that the Commissioner's decision is due to be reversed and remanded.


         Plaintiff had previously filed applications for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”) (R. 172-83), [2] which were denied at the initial decision level in August 2013, without any record of appeal (R. 59-80, 82, 93, 105-11). Plaintiff protectively filed her current DIB and SSI applications on January 16, 2014. (R. 103-04, 184-99). The were initially denied. (R. 81-102). An administrative law judge (“ALJ”) held a hearing on August 5, 2014 (R. 31-58) and issued an unfavorable decision on October 30, 2014 (R. 10-24). The Appeals Council denied Plaintiff's request for review on July 15, 2015. (R. 1-3).

         II. FACTS

         Plaintiff was 51 years old at the time of the ALJ's decision. (R. 24, 184). She had two years of college education and had worked in the past as a construction worker and a licensed practical nurse. (R. 49-50, 220). Plaintiff alleged onset of disability on August 8, 2011, due to spinal stenosis, fibromyalgia, spinal compression, possible hip fracture, severe nerve damage, and severe muscle spasms. (R. 184, 274). Following a hearing, the ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform a reduced range of light work with certain limitations. (R. 18-22). He further found that based on Plaintiff's age, education, work experience, and RFC and vocational expert testimony, she could perform work existing in significant numbers in the national economy. (R. 23-24). The ALJ further found Plaintiff was not disabled. (Id.)


         The court's review of the Commissioner's decision is narrowly circumscribed. The function of the court is to determine whether the Commissioner's decision is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court must “scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.

         The court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, it must reverse the ALJ's decision. See Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).


         To qualify for DIB and SSI under the Social Security Act, a claimant must show the inability to engage in “any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D).

         Determination of disability under the Social Security Act requires a five step analysis. 20 C.F.R. §§ 404.1520(a)(4). Specifically, the Commissioner must determine in sequence:

whether the claimant: (1) is unable to engage in substantial gainful activity; (2) has a severe medically determinable physical or mental impairment; (3) has such an impairment that meets or equals a Listing and meets the duration requirements; (4) can perform his past relevant work, in light of his residual functional capacity; and (5) can make an adjustment to other work, in light of his residual functional capacity, age, education, and work experience.

Evans v. Comm'r of Soc. Sec., 551 F. App'x 521, 524 (11th Cir. 2014)[3] (citing 20 C.F.R. § 404.1520(a)(4)). The plaintiff bears the burden of proving that she was disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The applicable “regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work.” Id.


         Plaintiff argues that the ALJ committed error in three ways: First, the ALJ improperly evaluated her credibility; Second, he erred in rejecting Dr. Beretta's opinion regarding the nature and severity of her impairment and symptoms; and Third, he failed to discuss her urinary incontinence in determining her credibility and RFC. (Doc. 12 at 1). Each argument will be addressed below.

         A. Plaintiff's Credibility

         1. Generally

         Plaintiff challenges the ALJ's decision concerning her credibility on four grounds: (1) he improperly evaluated her failure to stop smoking and her recent use of oxygen (Doc. 12 at 7-9); (2) he improperly evaluated her infrequent treatment (id. 9-12); (3) he failed to make necessary functional limitation findings (id. 12-13); and (4) he improperly evaluated her daily activities (id. 13-14). The Commissioner retorts that substantial evidence supports the decision to discount her credibility. (Doc. 13 at 3-12).

         As noted in the last section, Plaintiff bears the burden of proving that she is disabled within the meaning of the Social Security Act. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1512 (a) & (c), 416.912(a) & (c) (2015); Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). Specifically, Plaintiff has the burden to provide relevant medical and other evidence she believes will prove her alleged disability resulting from her physical or mental impairments. See 20 C.F.R. §§ 404.1512(a)-(b), 416.912(a)-(b). In analyzing the evidence, it is important to note that it is the functional limitations caused by the impairments and not the impairments themselves which affect a claimant's ability to work. See 20 C.F.R. §§ 404.1545(a), 416.945(a); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (severity of impairments must be measured in terms of their effect on the ability to work, not from purely medical standards of bodily perfection or normality).

         In addressing a claimant's subjective description of pain and symptoms, the law is clear:

In order to establish a disability based on testimony of pain and other symptoms, the claimant must satisfy two parts of a three-part test showing: (1) evidence of an underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed pain. See Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If the ALJ discredits subjective testimony, he must articulate explicit and adequate reasons for doing so. See Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). Failure to articulate the reasons for discrediting subjective testimony requires, as a matter of law, that the testimony be accepted as true. See Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988).

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also 42 U.S.C. § 423(d)(5)(A), 20 C.F.R. §§ 404.1529, 416.929.

         2. Failure to Stop Smoking and Recent Use of Oxygen

         As to the first issue - Plaintiff's continued smoking and use of oxygen -Plaintiff initially argues that her failure to stop smoking does not support a finding that her testimony was not credible. (Doc. 12 at 8). In support of this argument, she cites Seals v. Barnhart, 308 F.Supp.2d 1241, 1250 (N.D. Ala. 2004) (J. Guin). The Commissioner argues Seals is inapposite because the ALJ in that case “relied on little other than the claimant's [failure to quit] smoking for his finding that the claimant was not disabled.” (Doc. 13 at 7-8).

         United States District Judge Virginia E. Hopkins provided a detailed analysis of Seals in Grier v. Colvin, 117 F.Supp.3d 1335 (N.D. Ala. 2015). She stated:

In Seals v. Barnhart, 308 F.Supp.2d 1241, 1247 (N.D. Ala. 2004), the ALJ refused to credit the claimant's subjective complaints because the claimant continued smoking despite numerous warnings from doctors to stop. Because the claimant had failed to follow prescribed treatment to quit smoking, the ALJ found that 20 C.F.R. § 404.1530[] precluded the claimant from being found disabled. Id.
In addressing the claimant's appeal in Seals, Judge Guin began his analysis by correcting one of his previous holdings, stating “[t]his court has previously held that ‘continuing to smoke despite a physician's warning as to consequences indicates that a claimant has made a conscious lifestyle choice which is inconsistent with a finding of disability.' ” Id. at 1248 (quoting Wilda Elliot v. Apfel, No. 5:98-CV-00820-JFG, (Doc. 8 at 2) (N.D. Ala. Nov. 18, 1998)). Judge Guin determined that his prior holding “is not correct as a general statement of the law.” Id. The court then discussed and adopted the approach utilized by the Seventh Circuit in Shramek v. Apfel, 226 F.3d 809 (7th Cir. 2000). See id.
In Shramek, the court found that “the ALJ erred in relying on [claimant's] inability to quit smoking as evidence of noncompliance and as a basis to find her incredible.” 226 F.3d at 813. The Seventh Circuit reached this decision after noting that “the ALJ here made no finding that the prescribed treatment would restore [claimant's] ability to work, and the record would not in fact support such a finding.” Id. Furthermore, no connection had been made between the claimant's symptoms and her smoking. Id.
Finally, the court commented that failure to quit smoking is not synonymous with treatment in the typical sense, stating:
[w]e note that even if medical evidence had established a link between smoking and her symptoms, it is extremely tenuous to infer from the failure to give up smoking that the claimant is incredible when she testifies that the condition is serious or painful. Given the addictive nature of smoking, the failure to quit is as likely attributable to factors unrelated to the effect of smoking on a person's health. One does not need to look far to see persons with emphysema or lung cancer-directly caused by smoking-who continue to smoke, not because they do not suffer gravely from the disease, but because other factors such as the addictive nature of the product impacts their ability to stop. This is an unreliable basis on which to rest a credibility determination.
Shramek, 226 F.3d at 813.
In applying these rules set forth in Shramek, the court in Seals stated that even assuming the doctor's statements did constitute a prescribed course of treatment, “the [claimant]'s failure to stop smoking does not necessarily constitute a refusal to follow that prescribed treatment. A willful refusal to follow treatment may not be assumed from a mere failure to accomplish the recommended change.” Seals, 308 F.Supp.2d at 1250 (citing McCall, 846 F.2d at 1319) (holding that a claimant's failure to lose weight does not constitute a refusal to follow the treatment). The court found evidence in the record that the claimant had been trying to quit, and determined that “the record does not contain substantial evidence to support a finding that the plaintiff did not try to stop smoking in the present case.” Id. at 1251.
Judge Guin also commented about how the claimant's addiction necessitates a slightly different analysis than the typical noncompliance situation, stating:
[b]reaking an addiction is not a simple matter of rationally deciding to cease the addictive behavior, whether it be smoking, drinking or drug abuse. The world would obviously be a better place if that were so. In the case of nicotine addiction, a mere failure to successfully stop smoking will not support a finding of willful refusal to try. If the plaintiff was unable to stop smoking because she was addicted to nicotine, her noncompliance would not be unjustified. The burden is on the Commissioner to produce evidence of unjustified noncompliance. Dawkins v. Bowen, 848 F.2d 1211, 1214, n. 8 (11th Cir. 1988). In the present case, the ALJ made no finding that the plaintiff was actually able, mentally and ...

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