T. MICHAEL PUTNAM, Magistrate Judge.
The plaintiff, Linda Palmer, appeals from the decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for Title II disabled widow's benefits, and Title XVI supplemental security income, alleging a disability date beginning March 4, 2013. Ms. Palmer timely pursued and exhausted her administrative remedies, and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. `' 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. ` 626(c). Accordingly, the court enters this Memorandum Opinion.
Ms. Palmer was 54 years old at the time of the Administrative Law Judge's ("ALJ's") decision, and she has completed two years of college education. (Tr. at 237). Her only past work experience was as a maintenance worker. (Id.) She is the unmarried widow of an insured worker,
When evaluating the disability of individuals over the age of eighteen, the regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The first step requires a determination of whether the claimant is "doing substantial gainful activity." 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If she is, the claimant is not disabled and the evaluation stops. Id. If she is not, the Commissioner next considers the effect of all of the physical and mental impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must be severe and must meet the durational requirements before a claimant will be found to be disabled. Id. The decision depends upon the medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant's impairments are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step three, which is a determination of whether the claimant's impairments meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairments fall within this category, she will be found disabled without further consideration. Id. If she does not, a determination of the claimant's residual functional capacity ("RFC") will be made and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity is an assessment based on all relevant evidence of a claimant's remaining ability to do work despite her impairments. 20 C.F.R. § 404.1545(a).
The fourth step requires a determination of whether the claimant's impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do her past relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five requires the court to consider the claimant's RFC, as well as the claimant's age, education, and past work experience, in order to determine if she can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other work, the claimant is not disabled. Id. The burden of demonstrating that other jobs exist which the claimant can perform is on the Commissioner; and, once that burden is met, the claimant must prove her inability to perform those jobs in order to be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Palmer has not been under a disability within the meaning of the Social Security Act from the date of onset through the date of her decision on July 8, 2014. (Tr. at 66). She determined that Ms. Palmer has not engaged in substantial gainful activity since the alleged onset of her disability. (Tr. at 58). According to the ALJ, Ms. Palmer's early degenerative disc disease of the lumbar spine with mild relative asymmetric lateral recess stenosis at L4 left, early bilateral recess stenosis at L5, lumbago and sciatica are considered "severe" based on the requirements set forth in the regulations. (Tr. at 58-59). The ALJ further determined that these impairments neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 17). The ALJ found Ms. Palmer's credibility to be "very questionable." (Tr. at 63). She determined that the plaintiff has the residual functional capacity to perform light work with the following limitations: that she can lift/carry 20 pounds occasionally, 10 pounds frequently; that she is able to sit, stand and/or walk for six hours out of an eight-hour workday; and that she can push/pull as much as she can lift/carry. The ALJ further found that the claimant can occasionally climb ramps and stairs, but should avoid ladders, ropes, or scaffolds, and can occasionally balance. The ALJ determined that the claimant should avoid kneeling and crawling, should avoid work at unprotected heights or around hazardous, moving mechanical parts. She further limited the plaintiff's work to the performance of simple, routine, and repetitive tasks. (Tr. at 59-60).
According to the ALJ, Ms. Palmer is unable to perform any of her past relevant work, and she was an "individual closely approaching advanced age" at the date of alleged onset. (Tr. at 65). The ALJ further noted that Ms. Palmer has at least a high school education and is able to communicate in English. (Tr. at 65). She determined that "transferability of skills is not material to the determination of disability" in this case. (Tr. at 65). The ALJ found that Ms. Palmer has the residual functional capacity to perform a significant range of light work. (Tr. at 65). Even though Plaintiff cannot perform the full range of light work, the ALJ found that there are a significant number of jobs in the national economy that she is capable of performing, such as assembler, hand packer, and non-postal mail clerk. (Tr. at 66). The ALJ concluded her findings by stating that Plaintiff is "not disabled" under the Social Security Act. (Tr. at 66).
This court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of its review is limited to determining (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and (2) whether the correct legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the Commissioner with deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court may not decide facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id. "The substantial evidence standard permits administrative decision makers to act with considerable latitude, and "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'" Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the evidence preponderates against the Commissioner's decision, the Court must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for "despite this deferential standard [for review of claims] it is imperative that the Court scrutinize the record in its entirety to determine the reasonableness of the decision reached." Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Ms. Palmer alleges that the ALJ's decision should be reversed and remanded on any of four reasons. First, she asserts that the ALJ failed to give proper weight to the opinions of her treating physician, Dr. Tariq. (Doc. 11, p. 15). Next, she contends that the Appeals Council erred in refusing to consider the Independent Medical Evaluation ("IME") provided by Dr. Ripka, dated after the date of the ALJ's opinion, without considering whether it was "chronologically relevant." (Doc. 11, p. 20). Third, the plaintiff asserts that the ALJ's denial of benefits was not based on substantial evidence once the evidence submitted to the Appeals Council is considered. And, last, she argues that the ALJ improperly assessed the plaintiff's credibility by drawing an adverse inference from plaintiff's lack of certain medical treatment. (Doc. 11, p. 25). The court finds two of these arguments compelling, and sufficient to require remand.
Ms. Palmer contends that the ALJ failed to properly weigh the opinion of Dr. Muhammad Tariq, the claimant's treating physician, as expressed in a Physical Capacities Form dated March 14, 2014 (Tr. at 367).
Under prevailing law, a treating physician's testimony is entitled to Asubstantial or considerable weight unless "good cause' is shown to the contrary." Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 1997)(internal quotations omitted). The weight to be afforded a medical opinion regarding the nature and severity of a claimant's impairments depends, among other things, upon the examining and treating relationship the medical source had with the claimant, the evidence the medical source presents to support the opinion, how consistent the opinion is with the record as a whole, and the specialty of the medical source. See 20 C.F.R. §§ 404.1527(d), 416.927(d). "Good cause" exists for an ALJ to not give a treating physician's opinion substantial weight when the "(1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) . . . was conclusory or inconsistent with the doctor's own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) citing Lewis, 125 F.3d at 1440; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)(holding that "good cause" exists where the opinion was contradicted by other notations in the physician's own record).
Opinions such as whether a claimant is disabled, the 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;" thus 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). The court instead looks to the doctors' evaluations of the claimant's condition and the medical consequences thereof, not their opinions of the legal consequences of his [or her] condition." Lewis, 125 F.3d at 1440. See also 20 C.F.R. §§404.1527(d)(1)("A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled."). Such statements by a physician are relevant to the ALJ's findings, but they are not determinative, because it is the ALJ who bears the responsibility of assessing a claimant's residual functional capacity. See, e.g., 20 C.F.R. ` 404.1546(c).
This is a case where the quantity of medical evidence is relatively low. There is only one report concerning an objective imaging test, and fewer than a dozen records of visits to a primary physician, along with some details of chiropractic care. However, the ALJ did not find that the objective medical records were insufficient to show a severe impairment, and did not deny benefits on that ground. The ALJ did conclude that the plaintiff had sought and received minimal conservative treatment. However, the plaintiff testified plainly that she did not seek treatment for her back pain when her husband was alive because she got relief from the pain by sitting in her hot tub, and that she did not have to work while her husband was alive because he earned a good living and took care of lawn care and other chores for her. After he died, she explained, she had no income, had to do more physical chores that hurt her, and could not afford to maintain the hot tub, so she got no relief from the pain. She did, however, begin to seek frequent treatment several months after her husband died.
Ms. Palmer was diagnosed with lower back pain in April of 2000. (Tr. at 310). She sought chiropractic care for back pain and leg pain in 2006 and 2007, where a diagnosis of sciatica was made. (Tr. at 313-320). She complained of severe pain in July of 2013, and visited the Quality of Life Clinic in Gadsden, Alabama, where she returned frequently over the next few months.
Dr. Tariq is the internist who treated Ms. Palmer at the Quality of Life Clinic, beginning in July of 2013.
The ALJ assigned "little weight" to Dr. Tariq's assessment of the plaintiff, explaining her reasoning this way:
(Tr. at 62). The ALJ went on to state that "the evidence of record nor his own treating records does [sic] not support" Dr. Tariq's opinions. (Tr. at 63). She also noted that his treatment had been "completely conservative" in that he had prescribed only medication and a TENS unit, but not physical therapy or epidurals. (Id.)
The plaintiff, however, has testified that she got some relief from the TENS unit, and used it regularly, and that she took the Ultram when she could afford it, and the muscle relaxers. She was, apparently, noncompliant with the Lortab, but she further testified that she was "afraid" of pain pills because when she had taken pain pills after a surgery in 1992, they it had caused her to pass out repeatedly. (Tr. at 79).
Dr. Tariq's treatment notes consistently report that the plaintiff was in pain and that the pain was worsening. His notes, and the records from her chiropractor, bolster the credibility of his opinion. While her treatment was limited and the quantity of medical evidence is relatively small for a case of this type, there is no evidence in the record that contradicts Dr. Tariq's opinions from the Physical Capacities Evaluation. Finally, the claimant's testimony about the reasons for the limited treatment must also be considered.
The ALJ's assignment of "little weight" to the treating physician's opinion cannot be upheld absent a showing of "good cause" to give a treating physician's opinion less than substantial weight. Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) citing Lewis, 125 F.3d at 1440. In this case, the treating physician's opinion is bolstered by the evidence. The MRI performed in August 2013, some seven months before Dr. Tariq completed the Physical Capacities Evaluation in March 2014, confirmed "obvious desiccation and degeneration of essentially all the lumbar intervertebral disks." There is no medical evidence or consultative evaluation that supports a contrary finding,
The ALJ also determined that Ms. Palmer's credibility was "very questionable." The plaintiff now asserts that the ALJ failed to properly assess her credibility by failing to consider her explanations for the lack of more extensive (or expensive) medical treatment. The Commissioner has argued that the ALJ properly reached her determination regarding the plaintiff's credibility.
The Eleventh Circuit Court of Appeals has held that an ALJ must "clearly `articulate explicit and adequate reasons' for discrediting the claimant's allegations of completely disabling symptoms." Dyer v. Barnhart, 395 F.3d 1206 (2005), quoting Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995). A credibility determination is not permitted to be a "broad rejection" that would demonstrate to the court that the ALJ did not consider the claimant's medical condition as a whole. Dyer, 395 F.3d at 1211, quoting Foote, 67 F.3d at 1561. An ALJ has "wide latitude as a finder of fact" to evaluate credibility, but that evaluation must rest on a "clear articulation" of the relevant facts and the governing law. See Owens v. Heckler, 748 F.2d 1511, 1514 (11th Cir. 1984).
In this case, the ALJ cited facts purportedly weighing on the claimant's credibility, but they clearly were not relevant. She wrote:
(Tr. at 63)(emphasis in original). Earlier in the opinion, the ALJ made the same observations about the plaintiff's hot tub, pool, suntan, hair, and nails in her discussion of the plaintiff's RFC:
(Tr. at 60). At the hearing, the ALJ did not ask the plaintiff who paid or what was paid for hairstyling, or manicures, or obtaining a suntan. Without evidence that she was able to afford expensive salons, but unable to afford medical treatment, this fact has no bearing on her credibility. Without seeking an explanation about the plaintiff's spending, the ALJ has no more reason to believe that the plaintiff was untruthful about her ability to pay for medical treatment than to believe that she spends her time sitting in the sun, painting her own nails, and highlighting her hair with peroxide B, or that a friend treated her to a spa day in anticipation of her hearing date. The ALJ merely speculated, without bothering to inquire, that the plaintiff spent large amounts of money on spa or salon treatments.
The ALJ also connected Ms. Palmer's very limited experience in the paid workforce to her credibility. The fact that Ms. Palmer relied upon her husband's income instead of being employed, however, is not relevant to her entitlement to benefits. Widow's benefits provided by the SSA are not contingent on the plaintiff's status as a wage-earner—quite the opposite. There is no apparent correlation between choosing the role of a traditional housewife or paid work outside of the home, and being able to testify truthfully. The ALJ's reference, twice, to Ms. Palmer's appearance and lifestyle choice suggests to the undersigned that the credibility determination was based on some prejudice or prejudgment rather than on "relevant facts" and "applicable law."
The ALJ further discredited the plaintiff's testimony because she said she was unable to afford the Ultram, while admitting that she continued to smoke cigarettes. However, the plaintiff stated, and the ALJ adopted in her findings, that the plaintiff had a non-severe "nicotine dependence," and that "the claimant[`s] smoking decreased from one pack a day to a half of pack [sic] of cigarettes daily." (Tr. at 59). The fact that she had a nicotine addiction but still decreased her smoking because of the expense of cigarettes supports her testimony that she testified truthfully about her ability to afford medical treatment.
The case cited by the Commissioner, East v. Barnhart, 197 Fed. App'x 899, 905 (11th Cir. 2006), is easily distinguished. East involved a plaintiff who "used her children's child support to buy up to 45 packs of cigarettes per month," which the appellate court found provided a "reason for discrediting" the plaintiff.
The ALJ also questions Ms. Palmer's credibility based upon her lack of treatment before 2013, her daily activities, and her noncompliance with medical advice. While the plaintiff has received very little medical treatment, the ALJ noted that the plaintiff had explained that "her husband was alive then and she did not have to do things for herself; also, her hot tub was working," but that "since she has had to do things for herself, she stated her back has started hurting." (Tr. at 61). As for daily activities, the ALJ reported that Ms. Palmer "lives alone, she is able to wash dishes, do her own laundry, prepare simple meals, drive and grocery shop." This assessment of her activities, however, fails to take into account the plaintiff's testimony that she has been "having to ask other people to try to help me," and that she does "minimum housework," cannot vacuum because of her pain, and usually fixes "a quick sandwich" instead of cooking. (Tr. at 82). Finally, the ALJ's insistence that Ms. Palmer was noncompliant with medical advice fails to give any recognition to the fact that she testified, and medical records showed, that she had suffered a very bad reaction to narcotic pain medication in 1992 causing her to black out, and that she had been very "afraid" of pain pills since. The ALJ also points out that the plaintiff did not perform back exercises she was instructed to do by Dr. Tariq. She explained, however, that he never shown her what kind of exercises to do, and his records do not contradict this statement. (Tr. at 83). Furthermore, the ALJ makes much of the fact that the plaintiff testified that Dr. Tariq recommended she get a "dye" test, which she did not have performed. But the ALJ does not mention that Ms. Palmer clearly stated that she did not get the test because she had not been able to pay the bills for the MRI, and that the bill had been sent to a collection agency. Claimant stated, "[s]o I can't even pay that one and I don't know how I would get the other one." (Tr. at 88-89).
The court recognizes that a lack of treatment and noncompliance can support conclusions that a plaintiff is not credible. However, pursuant to Social Security Ruling 96-7p,
Upon review of the administrative record, and considering all of Ms. Palmer's arguments, the undersigned Magistrate Judge finds the Commissioner's decision is not supported by substantial evidence and is not in accord with the applicable law; therefore, the matter is REVERSED and REMANDED.
