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Perigo v. Berryhill

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

September 19, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Respondent.




         On June 6, 2013, the claimant, Cynthia Robinson Perigo, applied for disability insurance benefits under Title II of the Social Security Act. The claimant alleged her disability began on June 6, 2012, because of her rheumatoid arthritis, fibromyalgia, left knee surgery, need of right knee surgery, back problems, depression, anxiety, and swelling in the wrists. The Social Security Agency denied the claim on September 19, 2013. The claimant filed a request for a hearing before an Administrative Law Judge, and the ALJ held a hearing on April 15, 2015. (R. 21, 88, 104, 112).

         In a decision dated August 21, 2015, the ALJ found that the claimant was not disabled as defined by the Social Security Act and was ineligible to receive Social Security benefits. The Appeals Council denied the claimant's request to review the ALJ's decision on December 27, 2016. Consequently, the ALJ's decision became the final decision of the Commissioner of Social Security. (R. 1-3, 43). The claimant has exhausted all of her administrative remedies, and this court has jurisdiction pursuant to U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court REVERSES AND REMANDS the decision of the Commissioner to the ALJ for reconsideration.


         Whether the ALJ's reasons for discrediting the claimant's subjective complaints about the limiting effects of her pain and mental impairments lack substantial evidence.[1]


         The standard for reviewing the Commissioner's decision is limited. This court must affirm the ALJ's decision if he applied the correct legal standards and if substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         “No . . . presumption of validity attaches to the [Commissioner's] legal conclusions, including determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. This court does not review the Commissioner's factual determinations de novo. The court will affirm those factual determinations supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

         The court must keep in mind that opinions such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity, and the application of vocational factors “are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide 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). Thus, even if the court disagrees with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only look to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).


         The claimant's attempt to establish disability through testimony about her pain and limiting effects of her impairments must satisfy the Eleventh Circuit's pain standard. The pain standard requires that the claimant have an underlying medical condition that either (1) has objective medical evidence supporting the severity of the pain the condition causes or (2) the medical condition is of such severity that it could reasonably be expected to cause the claimant's pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).

         The claimant may use subjective testimony to support her claim of disability under the pain standard if substantial evidence supports that testimony. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). In addition to the claimant's testimony, the ALJ may also consider the claimant's daily activities, treatment history, and other relevant factors. Harwell v. Heckler, 735 F.2d 1292, 1293 (11th Cir. 1984); 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The ALJ may consider the claimant's ability to perform certain activities of daily living (ADLs), as well as the impact of such activities on the claimant's credibility. 20 C.F.R. §§ 404.1529 (c)(3)(i), 416.929(c)(3)(i); see also Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (finding that ADLs may be relevant to the fourth step of the sequential process).

         The ALJ will also consider any inconsistencies between the claimant's testimony and other evidence in the record to determine if the claimant is disabled or not. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). If the ALJ discredits the claimant's subjective testimony, such discrediting must be obvious to a reviewing court and adequately reasoned. Dyer, 395 F.3d at 1210. The ALJ must articulate reasons for discrediting the claimant's subjective testimony and substantial evidence must support those reasons. See Brown v. Sullivan, 921 F.2d.1233, 1236 (11th Cir. 1991).

         V. FACTS

         The claimant was forty-three years old at the time of the ALJ's final decision. The claimant has the equivalent of a high school education and past relevant work as a certified nursing assistant, cleaner/housekeeper, production line worker, and cashier. The claimant alleges disability based on her rheumatoid arthritis, fibromyalgia, left knee surgery, need of right knee surgery, back problems, depression, anxiety, and swelling in the wrists. (R. 41-43, 88).

         Physical Impairments

         From 2009 to 2015, Dr. Rommel Go at Med-Assist treated the claimant for multiple physical ailments and problems starting with arthritis on February 23, 2009. He prescribed Mobic for her pain. The claimant returned to Dr. Go on April 23, 2009, complaining of pain, and he prescribed her Lortab. In her visit with Dr. Go on August 24, 2009 the claimant said she heard a popping sound in her right knee when she walked and it hurt; Dr. Go continued her on Lortab. On October 6, 2009, Dr. Go diagnosed the claimant with a ligament tear in her left knee and referred her toorthopedic surgeon Dr. Joseph Kendra. (R. 355-360).

         Dr. Kendra saw the claimant on October 16, 2009, diagnosing her with a possible meniscal tear and posterior lateral complex injury in her left knee. Dr. Kendra performed an arthroscopy on the claimant's left knee on October 26, 2009; he reported no complications and said she was doing well. During her follow-ups with Dr. Kendra, the claimant revealed that she still felt some discomfort in her knee at night but requested that she be allowed to return to work. Dr. Kendra prescribed her Lortab and encouraged her to do knee strengthening exercises. (R. 273-75, 309- 10).

         Between December 21, 2009, and May 3, 2011, the claimant returned to Dr. Go seven times for chronic lower back pain, pain in both of her knees, painful movements, tingling and numbness in her hands, and hand pain. Dr. Go prescribed her Lortab and Mobic to treat the pain. On December 10, 2010, Dr. Go reported noted the claimant's weak hand grip. (R. 346-54).

         On August 30, 2011, a doctor at Med Assist diagnosed the claimant with a ganglion cyst on her right hand and the claimant requested a referral for her hand pain; the doctor's report also indicated the claimant had paraspinal tenderness in her lower spine. The claimant reported that her current medications worked to control her symptoms. During her November 11, 2011 appointment with Dr. Go, the claimant complained of migraines and requested a referral to Dr. Kendra for her knee pain; Dr. Go prescribed her Imitrex for her migraines referred her back to Dr. Kendra. (R.345 -46).

         On February 9, 2012, after physically examining the claimant and ordering an MRI, Dr. Kendra determined that the claimant might have an internal derangement in her right knee and advised her about an arthroscopy. Dr. Kendra also indicated that a doctor diagnosed the claimant with rheumatoid arthritis in 2008 and treated it with Mobic. Dr. Kendra scheduled the claimant for right knee surgery, but the claimant testified at the ALJ hearing that she cancelled the surgery when she lost her job and insurance. (R. 271-72).

         On March 2, 2012, Dr. Go advised the claimant to have the arthroscopy on her right knee to alleviate her pain. The claimant saw Dr. Go for her chronic lower back and knee pain and migraines on June 8, 2012; she reported that she was “doing well, ” but Dr. Go reported that she had paraspinal tenderness around her L5 vertebra. On September 5, 2012, the claimant returned to Dr. Go for back and knee pain and swelling and pain in her hand; he indicated on her chart that a Dr. Phillips had diagnosed her with rheumatoid arthritis in 2007. Dr. Go prescribed further treatments of Lortab and Mobic for the claimant's arthritis and pain. (R. 342-344).

         During her follow-up appointment with Dr. Go on December 3, 2012, the claimant indicated that she felt no drowsy side effects of her medication and was able to do activities of daily living with her pain medication. However, the claimant still reported experiencing chronic lower back and joint pain. Dr. Go continued her on Lortab, Imitrex, and Mobic, but also started the claimant on Neurontin. On March 4, 2013, the claimant again reported to Dr. Go that she had no side effects from her medication and that it allowed her to do daily living activities. But she complained about not losing weight with diet and exercise alone and wanted to try a new diet medication. Dr. Go added obesity and dyslipidemia diagnoses to the claimant's conditions; assessed her other conditions as unchanged; continued the claimant on her previous medications; and added a Drisdol cap to treat her Vitamin D deficiency. (R. 336-41).

         On June 4, 2013, the claimant reported to Dr. Go that she experienced burning sensations in her left arm and asked for a referral to a rheumatologist for her knee pain; she also reported no change in her chronic lower back and joint pain. She also reported that her pain medication allowed her to do activities of daily living; reduced her pain 30%; and caused no negative side effects. She asked that her medication dosages not be reduced. (R. 332-35).

         On June 27, 2013, the claimant completed a pain questionnaire for the Disability Determination Service. She reported experiencing pain since 2006 and that it primarily affected her back, both knees and wrists, ankles, and upper left arm. She said her pain is constant; occurs when she sits, walks, or stands for too long; and uses her hands to drive or lift items. She reported taking one 100mg dosage of Neurontin and four 7.5mg dosage of Hydrocodone a day; this medicine relieved her pain for about two hours at a time. She also reported that pain affected her ability to work, sit, stand, walk, write, and drive. (R. 197-98).

         The claimant returned to Med Assist on July 2, 2013 for back pain; reported no new problems; and stated that her medication adequately controlled her pain. The nurse practitioner who saw the claimant noted that the claimant needed close monitoring because of inconsistencies in her urinalysis results.[2] (R. 331).

         On July 1, 2013, the claimant's mother filled out a function report about the claimant's disability. She wrote that the claimant did laundry and cleaned the home a couple of times a week, prepared small meals with the help of her daughters, and attended church. She also wrote that the claimant rarely left the house besides attending church, going to doctor appointments, or grocery shopping. She reported that she drove the claimant most places and that the claimant “can't walk good.” She said the claimant had trouble squatting, walking, bending, and standing because of her knee pain; she estimated that the claimant could walk “maybe one hundred yards” and must rest for twenty minutes afterwards. She said the claimant could follow instructions, had no problems concentrating, and gets along well with authority figures; however, she also stated that the claimant does not handle changes in routine well and gets mad about her inability to work and care for herself. (R. 211-16).

         On July 14, 2013, the claimant completed a self-function report for the disability services office. In her self-function report, the claimant stated that she watched television and was able to engage in self-care behaviors and activities like bathing, dressing, and cooking small meals in a microwave, but experienced pain while doing those activities. Specifically, she experiences pain while squatting, standing, raising her arms, and lifting things. She said her pain keeps her awake at night. The claimant corroborated her mother's report about the cleaning and leaving the house. She said she follows direction fine and has no problems with concentration, but does not handle stress or changes in routine well; she also reported that she sometimes cried without reason and had panic attacks. (R. 218-24).

         On July 31, 2013, nurse practitioner Tonya Moses at Med Assist noted in her records that the claimant was taking Mobic for her arthritis, Imitrex to control migraine headaches, Lortab for her lower back and knee pain, and Neurontin for nerve pain. The claimant again reported that her medication caused no negative side effects; adequately controlled her pain; and allowed her to do activities of daily living. Nurse practitioner Tonya Moses warned the claimant about abruptly stopping medications and reminded her that the goal of ...

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