J. FOY GUIN, JR., District Judge.
The plaintiff, Nichole Collette Pollard, brings this action pursuant to the provisions of section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the Commissioner of the Social Security Administration (the Commissioner) denying her application for Social Security Disability benefits. Plaintiff timely pursued and exhausted her administrative remedies available before the Commissioner. Accordingly, this case is now ripe for judicial review under 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g).
The sole function of this court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). To that end this court "must scrutinize the record as a whole to determine if the decision reached is reasonable and supported
In order to qualify for disability benefits and to establish his entitlement for a period of disability, a claimant must be disabled. The Act defines disabled as 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 twelve months...." 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). For the purposes of establishing entitlement to disability benefits, physical or mental impairment is defined as "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).
In determining whether a claimant is disabled, Social Security regulations outline a five-step sequential process. 20 C.F.R. § 404.1520(a)-(f). The Commissioner must determine in sequence:
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.1986). "Once the claimant has satisfied Steps One and Two, she will automatically be found disabled if she suffers from a listed impairment. If the claimant does not have a listed impairment but cannot perform her past work, the burden shifts to the Secretary to show that the claimant can perform some other job." Pope at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). The Commissioner further bears the burden of showing that such work exists in the national economy in significant numbers. Id.
In the instant case, ALJ Ann G. Paschall determined the plaintiff met the first two tests, but concluded that while she has an impairment or impairments considered "severe," her impairments do not meet or equal in severity any impairment set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 12, 14]. The ALJ found the plaintiff unable to perform her past relevant work. Once it is determined that the plaintiff cannot return to her prior work, "the burden shifts to the [Commissioner] to show other work the claimant can do." Foote, at 1559. Furthermore, when, as is the case here, a claimant is not able to perform the full range of work at a particular exertional level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines (the grids). Foote, at 1558-59. The presence of a non-exertional impairment, pain, also prevents exclusive reliance on the grids. Foote, at 1559. In such cases "the [Commissioner] must seek expert vocational testimony." Foote, at 1559.
In this circuit, "a three part `pain standard' [is applied] when a claimant seeks to establish disability through his or
Foote, at 1560 (quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991)). In this circuit medical evidence of pain itself, or of its intensity, is not required.
Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir.1991) (parenthetical information omitted) (emphasis added). Furthermore, it must be kept in mind that "[a] claimant's subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability." Foote at 1561. Therefore, if a claimant testifies to disabling pain and satisfies the three part pain standard, she must be found disabled unless that testimony is properly discredited.
When the Commissioner fails to credit a claimant's pain testimony, he must articulate reasons for that decision.
Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.1987). Therefore, if the ALJ either fails to articulate reasons for refusing to credit the plaintiff's pain testimony, or if his reasons are not supported by substantial evidence, the pain testimony of the plaintiff must be accepted as true.
It is common for a vocational expert ("VE") to testify at a claimant's hearing before an ALJ, and in many cases such testimony is required. The VE is typically asked whether the claimant can perform his past relevant work or other jobs that exist in significant numbers within the national economy based upon hypothetical questions about the claimant's abilities in spite of his impairments. "In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments." Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.1999).
If the claimant is unable to perform his prior relevant work the burden shifts to the Commissioner to establish that he can perform other work. In such cases, if the vocational expert testimony upon which the ALJ relies is based upon a hypothetical question that does not take into account all of the claimant's impairments, the Commissioner has not met that
In Varney v. Secretary of Health and Human Services, 859 F.2d 1396 (9th Cir. 1988), the Ninth Circuit adopted the Eleventh Circuit rule which holds that if the articulated reasons for rejecting the plaintiff's pain testimony are not supported by substantial evidence, that testimony is accepted as true as a matter of law. Id. at 1401. The court noted that "[a]mong the most persuasive arguments supporting the rule is the need to expedite disability claims." Id. If the VE is asked whether the claimant could perform other jobs if his testimony of pain or other subjective symptoms is accepted as true, the case might be in a posture that would avoid the necessity of a remand. As Varney recognized, if the VE testifies the claimant can perform no jobs if his pain testimony is accepted as true, the only relevant issue would be whether that testimony was properly discredited. Id. This also holds true for the opinions of treating physicians.
The plaintiff originally claimed disability beginning January 15, 2008, but on August 24, 2010, she amended her alleged onset date to December 1, 2008, "to conform to the evidence of record and the medical opinions of record...." [R.181]. ALJ Paschall found that the plaintiff has the following severe impairments: "Scheuermann's kyphosis; degenerative disc disease, thoracic and lumbar; depression; anxiety; and personality disorder...." [R. 12]. Scheuermann's kyphosis is named after Danish surgeon Holger Werfel Scheuermann (1877-1960), and is "a disease of the growth or ossification centers in children which begins as a degeneration or necrosis followed by regeneration or recalcification." Dorland's Illustrated Medical Dictionary 1200 (28th Ed.1994). Kyphosis is an "abnormally increased convexity in the curvature of the thoracic spine as viewed from the side; hunchback." Id. at 890.
The medical evidence of record reveals that the plaintiff was treated at Huntsville Hospital on September 14, 2006, for lower back pain she described as "like something cracking" and rated at a 10 out of 10 in intensity. [R. 307]. The clinical impression was acute myofascial lumbar strain. [R. 306]. On May 19, 2008, the plaintiff was examined by Prem K. Gulati, M.D., at the behest of the Commissioner. Dr. Gulati noted the plaintiff's history:
On December 10, 2008, the plaintiff underwent a consultative psychological evaluation by Jon G. Rogers, Ph.D. After a mental status examination, Dr. Rogers diagnosed:
[R. 490]. He assessed her ability to perform daily activities:
[R. 489]. (emphasis added)
Two days later, the Commissioner sent her to another consultative physical examination by John H. Lary, Jr., M.D. On examination, Dr. Lary reported:
[R. 495]. His diagnoses included chronic back pain complaint, chronic knee pain complaint, with normal physical findings, migraine, by medical history, and psychiatric complaints. [R. 496]. In Dr. Lary's opinion, the plaintiff's ability to sit, stand, walk, lift, carry, bend, squat, reach, see with corrected lenses, hear, speak, understand, and manipulate small objects is unimpaired. [R. 497].
The ALJ found that:
[R. 17]. In making this finding, the ALJ gave great weight to the opinion of Dr. Lary:
Id.
Despite the ALJ giving Drs. Lary and Gulati great weight, neither examiner had the benefit of MRI testing. On May 6, 2009, the plaintiff underwent an MRI of her thoracic spine, which showed irregularities of the vertebral end plates at T7-8, T10-11, and T11-12 levels, suggestive os Scheuermann's kyphosis. [R. 533]. The MRI also revealed Schmorl's nodes
[R. 532].
The plaintiff introduced pages 2413 to 2415 of The Merck Manual, 17th Ed., into the record for further information regarding Scheuermann's Disease:
[R. 623].
Drs. Lary and Gulati did not have the benefit of these MRIs during their examinations. To assign their opinions controlling weight while at the same time rejecting the credibility of the plaintiff's pain testimony was error. At the hearing, the plaintiff testified that her back pain makes it impossible to get comfortable. [R. 64]. She described the pain as a 10 out of 10 when not taking pain medications; with the medications the pain will decrease to a seven out of 10. Id. The plaintiff testified that she does not have health insurance,
In her decision, the ALJ found:
[R. 14-15].
The activities of daily living recited by the ALJ do not support a finding that the plaintiff's pain testimony is not true. The ability to perform the limited activities noted by the ALJ does not rule out the presence of disabling pain. The ability to watch television, do occasional shopping, or perform other sporadic activities does not mean the plaintiff is not disabled. In this circuit it has been recognized that "participation in everyday activities of short duration, such as housework or fishing" does not disqualify a claimant from disability. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir.1997). As has been noted:
Smith v. Califano, 637 F.2d 968, 971-72 (3rd Cir.1981) (emphasis added). It is the ability to engage in gainful employment that is the key, not whether a plaintiff can perform minor household chores or drive short distances. In Easter v. Bowen, the court observed as follows:
867 F.2d 1128, 1130 (8th Cir.1989). The Easter court further noted that "[e]mployers are concerned with substantial capacity, psychological stability, and steady attendance...." 867 F.2d at 1130 (quoting Rhines v. Harris, 634 F.2d 1076, 1079 (8th Cir.1980)).
With this standard in mind, it is clear that the ALJ's articulated reasons for rejecting the plaintiff's pain testimony are not supported by substantial evidence. Therefore, the ALJ failed to satisfy the requirements of Hale. The conclusion of that court is equally appropriate in the instant case. "[T]he Secretary has articulated reasons for refusing to credit the claimant's pain testimony, but none of these reasons is supported by substantial evidence. It follows, therefore, that claimant's pain testimony has been accepted as true." Hale, at 1012.
At the hearing, the vocational expert, after identifying several jobs that a hypothetical individual could perform with a residual functional capacity as determined by the ALJ, was asked:
[R. 82]. Then, the plaintiff's attorney questioned the VE:
Id. Taking the plaintiff's testimony as true, the VE's testimony establishes disability without a doubt.
Therefore, the Commissioner failed to carry his burden at step five of showing the plaintiff could perform other work. Accordingly, the plaintiff is disabled within the meaning of the Social Security Act. An appropriate order remanding the action with instructions that the plaintiff be awarded the benefits claimed will be entered contemporaneously herewith.
In conformity with and pursuant to the memorandum opinion entered contemporaneously herewith, it is
The court expects that in the usual case a timely request for authorization to charge a fee will be made to the Commissioner prior to the filing of a motion for attorney's fees under section 406(b) in this court. If plaintiff's attorney is not entitled to recover a fee for work done at the administrative level, any motion filed with the court should so state.
