G. R. SMITH, Magistrate Judge.
Alleging disability due to sleep apnea, gout, high blood pressure, back, shoulder, ankle, and hip issues, as well as chronic pain from generalized osteoarthritis, plaintiff Louis Briggs seeks judicial review of the Social Security Commissioner's denial of his application for a period of disability and Disability Insurance benefits (DIB). Doc. 10 at 4.
In social security cases, courts:
Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).
The burden of proving disability lies with the claimant. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). In response to the showing the claimant makes, the Administrative Law Judge (ALJ) applies
Stone v. Comm'r. of Soc. Sec. Admin., 596 F. App'x, 878, 879 (11th Cir. 2015) (footnotes added).
"For DIB claims, a claimant is eligible for benefits where []he demonstrates disability on or before the last date for which []he w[as] insured. 42 U.S.C. § 423(a)(1)(A) (2005). Because [Briggs'] last insured date was December 31, [2015 (tr. 31)], h[is] DIB appeal requires a showing of disability on or before that date." Moore, 405 F.3d at 1211.
Briggs, 46 when the ALJ denied his DIB application (Tr. 43, 152) and 43 on his alleged onset date (Tr. 35), has four years of college education (Tr. 193) and past work experience as a logistics technician in the U.S. Army and as an ROTC instructor at Georgia Southern University. Tr. 60. Now 49, he suffers from degenerative joints that cause severe chronic pain, gout, high blood pressure, and sleep apnea. Tr. 192.
Briggs protectively filed for DIB on August 12, 2011 (Tr. 152), alleging a disability onset of June 16, 2010. Tr. 181. Following administrative denial, he attended and testified at a hearing on July 16, 2013 before the ALJ, who later denied his application. Tr. 43. Although the ALJ found that Briggs' "degenerative disc disease of the lumbar and cervical spine, and left hip arthroplasty" constituted severe impairments (Tr. 33), he concluded, after consulting a vocational expert, that Briggs retained the RFC for sedentary work, including his past work as an instructor. Tr. 41. The ALJ thus found him "not disabled" because (1) he could return to his past work, and (2) other jobs that he could perform exist in significant numbers in the national economy. Tr. 42.
To Briggs, that's error. He argues that the ALJ failed to properly weigh medical evidence when he discounted the opinion of Dr. Amy Pearson, Briggs' treating pain management physician, and fully credited the opinion of Dr. William McRae, a consultative examiner for the Social Security Administration. See doc. 11 at 12. Compounding that error, says Briggs, the ALJ "failed to properly evaluate [his] credibility" by measuring his subjective pain reports against "sporadic activities of daily living" and objective medical evidence the ALJ read to "not substantiate [his] statements." Id. at 18.
In affording Pearson's opinion "only partial weight," the ALJ found that it rested "primarily upon [Briggs'] subjective allegations of pain . . . notwithstanding [Pearson's] notes . . . and examination findings that [he] had only mild limitations in his range of motion of the cervical and lumbar spine, crepitus," and MRI results, "which indicated no rotator cuff tear." Tr. 40. The ALJ also noted that Pearson's observation that Briggs' constant pain "would be severe enough to interfere with attention and concentration" conflicted with his "description of his own activities[,] including using a computer frequently, and caring for his young son, as well as doing household chores." Id. What's more, opined the ALJ, "Pearson's opinion . . . [was] likely motivated by the possibility that [she was] expressing [her] opinion in an effort to assist [Briggs] with whom . . . she sympathizes," or was a response to satisfy an "insistent and demanding" patient. Id.
Briggs complains that the ALJ "grossly mischaracterized the record" by concluding that Pearson "based her opinions primarily on. . . subjective statements," not clinical evidence. Doc. 11 at 12. He also, according to Briggs, failed "to identify substantial evidence" that contradicted Pearson's opinions or supported his conclusion that Briggs' daily activities conflicted with her opinion. Id. at 13-15. Finally, Briggs contends that the ALJ "inappropriately speculated that Dr. Pearson `likely' rendered h[er] opinion because [s]he `sympathizes' with" Briggs. Doc. 11 at 12-15. Absent the ALJ's errors, "Pearson's assessment of [his] physical impairments should have been afforded controlling weight." Id. at 16.
"The opinion of a treating physician, such as Dr. [Pearson], `must be given substantial or considerable weight unless `good cause' is shown to the contrary.'" Phillips, 357 F.3d at 1240 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). Good cause "exists when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records. When electing to disregard the opinion of a treating physician, the ALJ must clearly articulate its reasons." Id. (cites omitted). "As a general rule, `the opinions of examining physicians are given more weight than those of non-examining physicians, treating physicians are given more weight than those of physicians who examine but do not treat, and the opinions of specialists are given more weight on issues within the area of expertise than those of non-specialists.' McNamee v. Soc. Sec. Admin., 164 F. App'x 919, 923 (11th Cir. 2006)." Black v. Colvin, 2015 WL 7185506 at *3 (S.D. Ga. Nov. 13, 2015), adopted, 2016 WL 296260 (S.D. Ga. Jan. 12, 2016).
No substantial evidence demonstrates good cause to afford Pearson's opinion only "partial weight." Although she certainly relied in part on Briggs' subjective statements of pain (as a pain management specialist, how could she not?),
To conclude that Pearson's opinion relied "primarily upon [Briggs'] subjective allegations of pain," the ALJ contrasted it with "her notes in her statement and examination findings that [Briggs] had only mild limitations in his range of motion of the cervical and lumbar spine, crepitus, and the MRI results which indicated no rotator cuff tear." Tr. 40. That's an inaccurate and incomplete picture of Pearson's notes. At no point did she state that Briggs suffered only "mild" lumbar range of motion limitations. Instead, she observed "marked limitations all planes" for the lumbar range. Tr. 411 (emphasis added). And the MRI, despite showing no rotator cuff tear, did reveal "glenohumeral
The ALJ's recitation of Briggs' daily activities — that Briggs used a computer frequently, cared for his young son, and did household chores — suffers the same misrepresentative flaw. Tr. 40. Briggs testified that he could feed his son "because he can sit on me . . . but as far as like picking him up, putting him down, I can't do that," not that he cared for him, much less regularly. Tr. 67. When asked if he did "any stuff to help out around the house," Briggs responded that "I don't do anything. I, I do — I will put the dishes in the dishwasher and I will hose off the, the back patio sometimes." Tr. 67. That's not precisely "doing household chores," as the ALJ characterized it. Tr. 40. Briggs rarely if ever fixes his own meals (Tr. 66), never leaves the house to shop (at least in part because he cannot safely drive because of pain medications, tr. 65), and makes it to church about "two Sundays within a month." Tr. 69. He does spend time on a computer, but he never said how often. Instead, he stated that he pays bills and shops online, but that the majority of his day is spent "sitting in a chair, watching TV."
The ALJ's final reason for only partially crediting Pearson's opinion — that it "is likely motivated" by sympathy for Briggs and thus given "in an effort to assist her patient" (Tr. 40) — is, unlike his two other reasons, not a misrepresentation. It's rank speculation that merits no deference and renders his disability determination reversible. See Gallegos v. Colvin, 2016 WL 705227 at *5 (W.D. Tex. Feb. 18, 2016) ("[T]he ALJ's statement that it was possible that Dr. Zayas had sympathy for Plaintiff or wanted to avoid tension in his relationship with Plaintiff is entirely speculative and constitutes error."); Trujillo v. Astrue, 2013 WL 706270 at *5 (D. Utah Feb. 26, 2013) ("[T]he ALJ's boilerplate statements that Dr. Gardner may have sympathized with the Plaintiff and satisfied her requests for an opinion regarding her disability in order to avoid unnecessary doctor-patient tension constitutes improper speculation and inadequate lay opinion judgment by the ALJ.").
Most importantly, by misrepresenting the MRI results, incorrectly noting Briggs' lumbar range of motion limitation, misrepresenting Briggs' daily activities, and using unsupported speculation as a reason to discredit a treating physician, the ALJ boldly highlighted the lack of substantial evidentiary support for rejecting Pearson's opinion. Because that opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record,"
In addition to contesting the partial weight afforded Pearson, Briggs argues that the ALJ's skepticism of his subjective limitation allegations lacks substantial evidentiary support. Doc. 11 at 17. Where, as here, a claimant attempts to establish disability through his own testimony of subjective limitations, the "pain standard" applies. Dyer, 395 F.3d at 1210. That demands:
Watson v. Colvin, 2015 WL 8467014 at *6 (S.D. Ga. Nov. 18, 2015) (quoting Holt, 921 F.2d at 1223).
As the Eleventh Circuit explained:
Holt, 921 F.2d at 1223.
The ALJ found that Briggs had a qualifying medical condition whose severity could reasonably be expected to give rise to the reported pain, but also found Briggs "not entirely credible." Tr. 40. Although he then articulated reasons, they fall well short of adequate. See Holt, 921 F.2d at 1223.
The ALJ first reiterated that Briggs' daily activities were "not consistent with total disability." Tr. 40. But as discussed above, he grossly misrepresented those activities and in doing so failed to consider the entire record, including the parts that "detract[] from the evidence [he] relied on." Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). What's more, he provided no reasons why Briggs' activities are inconsistent with a disability finding — he simply concluded they were. Tr. 40. That amounts to an inadequate "broad rejection" of a claimant's pain report that is unable to withstand judicial scrutiny. See id.; Buchanan v. Astrue, 2012 WL 6085155 at *7 (S.D. Ga. Oct. 26, 2012), adopted, 2012 WL 6085151 (S.D. Ga. Dec. 6, 2012) (ALJ's "simpl[e] conclu[sion] that Plaintiff's activities of daily living [were] well beyond those of an individual who is completely disabled" qualifies as "an additional basis for remanding th[e] case").
The ALJ also cited "EKG, blood chemistry, and imaging studies" as supporting "a finding that [Briggs'] impairments were only mildly limiting." Tr. 40. EKG and blood chemistry studies, however, are irrelevant to a disability determination when the claimant suffers from the severe pain caused by a panoply of musculoskeletal problems. And the imaging study cited is yet another case of the ALJ cherry picking medical records for only those tidbits that can be crafted to justify denying benefits. The October 29, 2011 MRI showed, as the ALJ correctly noted, "no evidence of rotator cuff tear, "mild" tendinosis, and an intact teres minor.
Properly considering that record — the whole record, without omission or misrepresentation — reveals no inconsistencies between objectively determinable conditions and Briggs' subjective pain reports. His testimony therefore deserved credit.
Because the ALJ erred by affording Pearson's opinion only partial weight and by discrediting Briggs' own pain report, the Commissioner's final decision should, pursuant to sentence four of 42 U.S.C. § 405(g) be
