CHARLES S. COODY, Magistrate Judge.
The plaintiff, Derek M. Castleberry ("Castleberry"), applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he was unable to work because of a disability. His application was denied at the initial administrative level. The plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner).
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable to
To make this determination,
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The standard of review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Substantial evidence is "more than a scintilla," but less than a preponderance: it "is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (quotation marks omitted). The court "may not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the [Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
(Doc. # 12, Pl's Br. at 5).
The plaintiff raises several issues and arguments related to this court's ultimate inquiry of whether the Commissioner's disability decision is supported by the proper legal standards and substantial evidence.
While a claimant has the burden of proving that he is disabled, an ALJ has a basic duty to develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Kelley v. Heckler, 761 F.2d 1538 (11th Cir. 1985). "Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
An ALJ is not free to simply ignore medical evidence, nor may he pick and choose between the records selecting those portions which support his ultimate conclusion without articulating specific, well supported reasons for crediting some evidence while discrediting other evidence. Marbury v. Sullivan, 957 F.2d 837, 839-41 (11th Cir. 1992). When there is a conflict, inconsistency or ambiguity in the record, the ALJ has an obligation to resolve the conflict, giving specific reasons supported by the evidence as to why he accepted or rejected one opinion or record over another. "In the absence of such a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the merits is rational and supported by substantial evidence." Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
The medical evidence demonstrates that Castleberry fell from a scaffolding truck, and suffered traumatic injuries to his head, neck and spine. (R. 239). He was discharged from Louisiana State University Health Sciences Center on January 29, 2010 after being diagnosed with
(Id.).
He was also referred to an orthopaedic clinic, a trauma clinic, an ENT specialist and a neurologist for follow-up appointments. (R. 240).
On February 1, 2010, Castleberry presented to the emergency room of the Shelby Baptist Medical Center in Alabaster, Alabama complaining of headaches, dizziness, weakness, and neck and back pain. (R. 259, 325). A CT scan of his brain revealed a hematoma and multiple fractures. (R. 288, 292). Castleberry was seen on February 9, 2010 at Orthopaedic Specialists of Alabama, PC.
(R. 302, 312). Castleberry reported at that time that while his headaches were gone, "he gets a little bit of dizziness if he looks up quickly." (Id.) Castleberry was released to return to work "from ortho standpoint" on March 3, 2010. (R. 309).
Castleberry first presented to Dr. Marc Routman, an ENT specialist, on February 10, 2010. (R. 328). At that time, Castleberry reported dizziness when his head was back and he was looking up. (Id.) On February 15, 2010, Dr. Routman documented his examination of Castleberry for worker's compensation. (R. 332-33). Dr. Routman noted that Castleberry had suffered a conjunctival hemorrhage and multiple fractures. (Id.) Dr. Routman noted that Castleberry suffers from dizziness when turning his head to look up. (Id.) Dr. Routman diagnosed Castleberry with "traumatic vertigo with up gaze." (R. 333).
In March 2010, Castleberry attempted to return to work but he was unable to sustain employment due to headaches and dizziness. (R. 59, 335, 359).
Castleberry returned to Dr. Routman on March 10, 2010 and reported continued dizziness when he "moves too fast, bends over, [or] looks up." (R. 334). Dr. Routman diagnosed Castleberry with post-concussive dizziness and did not release him for work until "cleared by neurology." (Id.) On April 1, 2010, Castleberry presented to Dr. Routman complaining of dizziness and loss of balance whenever he looked up. (R. 335). Dr. Routman again diagnosed vertigo. (Id.) He also declined to release Castleberry for any work "until further notice." (R. 336).
On April 5, 2010, a VNG
Castleberry was referred to Dr. Gordon Kirschberg, a neurologist, for further testing, evaluation and treatment. (R. 359-61). On April 27, 2010, Castleberry reported to Dr. Kirschberg that he was suffering from severe headaches "and more worrisome than the headache was a feeling that when he moved his neck up or down to try and look at something he would get extremely lightheaded but not vertiginous and he would also feel severe pressure in the right posterior aspect of the head." (R. 359). A CT scan indicated "resolution of the hematoma but he continues to have chronic daily headaches, . . . the dizziness and increased headache on looking up or down and worse in bright lights, . . ." (Id.) Dr. Kirschberg's evaluation demonstrated "a little left lateral nystagmus, worse with looking up but the patient does not experience vertigo. There is perhaps minor right lateral nystagmus." (R. 360). Dr. Kirschberg concluded that Castleberry was suffering from more than post concussive syndrome.
(Id.). Dr. Kirschberg recommended a complete neurological work up, (id.), and he prescribed Anaprox. (R. 361).
Castleberry presented to Dr. Kirschberg on June 2, 2010, indicating that he was feeling "30% better after only a couple of weeks of physical therapy." (R. 353). However, he continued to experience dizziness. (Id.)
On June 29, 2010, Dr. Kirschberg indicated that none of the treatments including reconditioning therapy, aspirin, Ketoprofen or Antivert had helped Castleberry. (R. 351). Dr. Kirschberg prescribed Klonopin for dizziness as well as an epidural block. (Id).
On July 19, 2010, Castleberry complained to Dr. Kirschberg that "every time he looks up he gets dizzy." (R. 350). Dr. Kirschberg noted that Castleberry was "no better. Nothing has worked." (R. 350). Dr. Kirschberg released him to work with "avoidance of neck extension and looking up and avoidance of being off the ground." (Id.)
On September 22, 2010, Castleberry returned to Dr. Routman complaining of dizziness and loss of balance. (R. 390). During therapy, he fell to the side if he looked away from the table. (Id.)
(Id.)
On October 11, 2010, Dr. Routman reviewed Castleberry's VNG test noting that he "[b]asically gets dizzy/nystagmus with every head movement, not just with head right or left." (R. 395). Dr. Routman diagnosed Castleberry with central vertigo, post-concussion. (Id.) Dr. Routman also wrote to Dr. Kirschberg to describe his findings.
(R. 396).
(R. 402) (emphasis added).
Despite Lynch's observation that Castleberry lost his balance several times during the evaluation, Lynch opined that Castleberry "demonstrates the ability to perform work consistently in the HEAVY classification. The following tasks were demonstrated at a frequent basis: sitting, standing, walking, kneeling, sustained kneeling, squatting and stair climbing." (Id.)
During the administrative hearing, Castleberry testified that his headaches and dizziness were "real bad when [he] looked straight up in the air." (R. 61). He also testified that he gets dizzy when he looks up, but he loses his balance when he looks down. (R. 66). Castleberry testified that although he baths his children, they get in and out of the tub by themselves. (R. 64). He further testified that he has difficulty walking.
(R. 64-66) (footnote added).
After giving great weight to the physical capacity evaluation by Lynch, and discounting the plaintiff's testimony, the ALJ concluded that Castleberry had "the residual functional capacity to perform less than the full range of light work" with the following limitations.
(R. 39).
The ALJ declined to credit Lynch's assessment that Castleberry could perform heavy work because the ALJ had a "concern that the Claimant could injure himself if he lost his balance while lifting a heavy object." (R. 41). In discounting the severity of the plaintiff's dizziness, this is what the ALJ said:
(R. at 41).
The problem with the ALJ's determination is that his findings regarding Castleberry's ability to perform work are ambiguous, particularly in light of Dr. Routman's medical records coupled with Castleberry's testimony regarding his dizziness and headaches. It is apparent that the ALJ discounted Castleberry's testimony based on comments he allegedly made to Lynch regarding driving and hunting. (R. 41). However, the ALJ failed to make any inquiry at all to Castleberry about how his dizziness or loss of balance affects his ability to drive and/or hunt. But more to the point, the medical evidence shows without contradiction that Castleberry has dizziness when his head changes position. The fact that he will undertake activities does not mean he does not get dizzy and what is not clear from the record before the court is the extent to which that condition will impact him in a work setting. In other words, what is not clear is whether Castleberry's choice to drive and hunt is the result of his physical ability or the result of him disregarding his own safety and the safety of others. Consequently, the court concludes that there exists a conflict or ambiguity in the evidence regarding the effects of Castleberry's dizziness on his ability to perform work activities. See Barrio v. Comm'r of Soc. Sec. Admin., 394 Fed. Appx. 635, 637 (11th Cir. 2010) (remand is warranted when ALJ's RFC determination is ambiguous). When there is a conflict, inconsistency or ambiguity in the record, the ALJ has an obligation to resolve the conflict, giving specific reasons supported by the evidence as to why he accepted or rejected one opinion regarding the plaintiff's capacity for work over another. This he failed to do.
After setting forth his residual functional capacity conclusion, the ALJ launches into a description of the medical evidence of record. (R. at 39-42). During his recitation of the medical evidence, the ALJ acknowledged that Castleberry suffers from dizziness, headaches and nystagmus.
(R. 40).
However, this is the extent of the ALJ's discussion of Castleberry's medical records detailing his dizziness, loss of balance and headaches. He does not discuss the implications of Castleberry's continued dizziness. "[T]he severity of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality." McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986); Gray v. Comm'r of Soc. Sec., 426 Fed. Appx. 751, 753 (11th Cir. 2011); Manzo v. Comm'r of Soc. Sec., 408 Fed. Appx. 265, 269 (11th Cir. 2011).
In this case, the ALJ's failed to "discuss meaningfully how [Castleberry's dizziness, loss of balance and headaches] might affect [his] ability to perform" work. See Barrio, 394 Fed. Appx. at 638. While it is undisputed that Castleberry suffers from dizziness, loss of balance and headaches, what is not clear is how these conditions affect Castleberry's ability to work. "[W]hen the ALJ fails to `state with at least some measure of clarity the grounds for his decision,' we will decline to affirm `simply because some rationale might have supported the ALJ's conclusion.'" Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.1984) (per curiam)). Given that the ALJ failed to clarify these ambiguities and address with particularity the effect of Castleberry's dizziness, loss of balance and headaches on his ability to work, it is impossible for the court to determine whether the ALJ's ultimate conclusion that Castleberry is not disabled
Accordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. It is further
ORDERED that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b). See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11th Cir. 2008). A separate final judgment will be entered.
42 U.S.C. § 405(b)(1) (emphasis added).
(R. 73-75).
The vocational expert then testified that Castleberry could perform work including products assembler, electronics worker and mail clerk. (R. 76). Castleberry's attorney then asked the vocational expert some follow-up questions.
(R. 78-79).
It is unclear from the colloquy whether Castleberry would be precluded from all work or just from work as a mail clerk.
