United States District Court, N.D. Alabama, Northeastern Division
E. Ott, Chief United States Magistrate Judge
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). 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
had previously filed applications for a period of disability,
disability insurance benefits (“DIB”), and
supplemental security income (“SSI”) (R. 172-83),
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).
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.
STANDARD OF REVIEW
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.
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).
STATUTORY AND REGULATORY FRAMEWORK
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).
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) (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.
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
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
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).
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.
Failure to Stop Smoking and Recent Use of Oxygen
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).
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.
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
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,
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