ABDUL K. KALLON, District Judge.
Plaintiff Cody Fain brings this action pursuant to Section 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), seeking review of the adverse decision of the Administrative Law Judge ("ALJ"), which has become the final decision of the Commissioner of the Social Security Administration ("SSA"). For the reasons stated below, by failing to consider the opinion of Fain's treating physician, Dr. E. V. Colvin, the ALJ failed to apply proper legal standards when considering Fain's claim. Therefore, the Commissioner's decision is remanded for further proceedings consistent with this opinion.
Fain filed his application for Title XVI Supplemental Security Income,
The ALJ denied Fain's claim on November 19, 2012, (R. 15-29), which became the final decision of the Commissioner when the Appeals Council refused to grant review on March 11, 2014, (R. 1-6). Fain then filed this action pursuant to section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
The only issues before this court are whether the record contains substantial evidence to sustain the ALJ's decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g) and 1383(c) mandate that the Commissioner's "factual findings are conclusive if supported by `substantial evidence.'" Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the Commissioner; instead, it must review the final decision as a whole and determine if the decision is "reasonable and supported by substantial evidence." See id. (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence; "[i]t is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Martin, 849 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the court must affirm the Commissioner's factual findings even if the preponderance of the evidence is against the Commissioner's findings. See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ's findings is limited in scope, it notes that the review "does not yield automatic affirmance." Lamb, 847 F.2d at 701.
To qualify for disability benefits, a claimant must show "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)(I)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrated by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in sequence:
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). "An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of `not disabled.'" Id. at 1030 (citing 20 C.F.R. § 416.920(a)-(f)). "Once a finding is made that a claimant cannot return to prior work the burden shifts to the Secretary to show other work the claimant can do." Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must meet additional criteria. In this circuit, "a three part `pain standard' [is applied] when a claimant seeks to establish disability through his or her own testimony of pain or other subjective symptoms." Holt v. Barnhart, 921 F.2d 1221, 1223 (11th Cir. 1991). Specifically,
Id. However, medical evidence of pain itself, or of its intensity, is not required:
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical information omitted) (emphasis added). Moreover, "[a] claimant's subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability." Holt, 921 F.2d at 1223. Therefore, if a claimant testifies to disabling pain and satisfies the three part pain standard, the ALJ must find a disability unless the ALJ properly discredits the claimant's testimony.
Furthermore, when the ALJ fails to credit a claimant's pain testimony, the ALJ must articulate reasons for that decision:
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for refusing to credit the plaintiff's pain testimony, or if the ALJ's reasons are not supported by substantial evidence, the court must accept as true the pain testimony of the plaintiff and render a finding of disability. Id.
In performing the Five Step sequential analysis, the ALJ initially determined that Fain had not engaged in substantial gainful activity since the date of his application, and therefore met Step One. (R. 20). Next, the ALJ acknowledged that Fain's severe impairments of history of congital heart defect with moderate heart valve insufficiency, bilateral conductive hearing loss and history of right shoulder injury met Step Two. Id. The ALJ then proceeded to the next step and found that Fain did not satisfy Step Three since he "does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments." Id. Although the ALJ answered Step Three in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to Step Four, where he determined that Fain "has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except that [Fain] can perform sedentary unskilled work with no use of telephones or telephone like equipment." (R. 21). Lastly, in Step Five, the ALJ considered Fain's age, education, work experience, and RFC, and determined, based on the Medical Vocational Guidelines found in 20 C.F.R. Part 404, Subpart P, Appendix 2, section 201.24 and on the testimony of a vocational expert ("VE"), that "there are jobs that exist in significant numbers in the national economy that [Fain] can perform." (R. 24). Because the ALJ answered Step Five in the negative, he determined that Fain was not disabled. (R. 25).
Fain contends his claim is due to be remanded on seven different grounds. Six of these contentions lack merit, but the ALJ's failure to consider Dr. Colvin's opinion is a legal error that requires the court to remand this matter. The court will discuss this error before briefly explaining why Fain's other arguments fall short.
The record contains the following statement from Dr. Colvin, Fain's treating physician: "I strongly support [Fain's] application for disability since he has very significant heart disease that has gone through palliation but will require careful long term follow up and further surgical procedures." (R. 338). The ALJ's opinion contains no mention of this statement, which, viewed in a light most favorable to Fain, is an opinion that Fain is disabled. The Commissioner more or less concedes that the ALJ erred by failing to consider this statement. See doc. 12 at 11 (citing SSR 96-5p) ("Even though it is not a medical opinion, the ALJ was required to consider Dr. Colvin's statement."). The Commissioner seems to contend that this error was harmless, however, because "[a]lthough the ALJ did not explicitly discuss Dr. Colvin's statement in his decision, he was definitely aware of the statement because [Fain's] attorney directed his attention to it at the administrative hearing," id. (citing (R. 33-34), and "the ALJ cited evidence in his decision, including the substantial evidence discussed above, that was inconsistent with a finding that [Fain] was disabled, and therefore the ALJ adequately addressed Dr. Colvin's naked assertion that [Fain] was disabled," id. (internal citations omitted). The Commissioner's first argument is pure speculation. Her second argument relies on an overly narrow reading of the regulations. In support of her argument, the Commissioner cites to SSR 96-5p as standing for the premise that "when a statement from a medical source asserting the claimant is disabled is in the record, the ALJ `must evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record.'" Id. (quoting SSR 96-5p). However, in its entirety, the relevant portion of SSR 96-5p reads as follows:
SSR 96-5p (emphasis added). Moreover, as to opinions from medical sources stating that an applicant for benefits is disabled, SSR 96-5p states that:
Id. In sum, the regulations are clear that while the ALJ was free to discredit Dr. Colvin's opinion, he was not free to ignore Dr. Colvin outright, and his determination that Fain is not disabled does not excuse this error. Moreover, the court cannot say the ALJ's failure to consider Dr. Colvin's opinion was harmless. See Mills v. Astrue, 226 F. App'x 926, 931 (11th Cir. 2007) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)) ("[W]hen an incorrect application of the regulations results in harmless error because the correct application would not contradict the ALJ's ultimate findings, the ALJ's decision will stand."). While the ALJ was free to afford no weight to Dr. Colvin's opinion, he also could have found the opinion of Fain's long-time treating physician persuasive. Consequently, the court "cannot say the error was harmless without re-weighing the evidence. To do so would call for conjecture that invades the province of the ALJ." Id. (citing Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005).
Fain contends that because the ALJ failed to consider Dr. Colvin's opinion, the court must accept it as true. Doc. 10 at 28 (citing MacGregor v. Bowen, 786 F.2d 1050 (11th Cir. 1986)). In MacGregor, the Eleventh Circuit held that when the Commissioner fails to explicitly discredit the opinion testimony of a treating physician and give reasons for that decision, the Commissioner has accepted the treating physician's testimony as true. Id. at 1054. However, the court declines to enter an order remanding this case with instructions to enter a finding of disability based on Dr. Colvin's opinion because, as the Commissioner notes, two Eleventh Circuit panels have rejected the accepted-as-true doctrine as a violation of the prior precedent rule, albeit in unpublished opinions. See Davis v. Comm'r of Soc. Sec., 449 F. App'x 828, 833 n. 1 (11th Cir. 2011);
The court acknowledges that it is essentially remanding this case on a technicality, because, as it will explain further below, substantial evidence supports the ALJ's conclusion that Fain is not disabled. However, this court is tasked with determining whether substantial evidence supports the ALJ's decision and whether ALJ applied proper legal standards in reaching that conclusion. Lamb, 847 F.2d at 701. Because the ALJ's failure to consider Dr. Colvin's opinion clearly violated legal standards, the court has no choice but to remand this matter.
The court will now briefly discuss why Fain's other arguments for remand or reversal lack merit. Initially, however, the court notes that Fain contends the ALJ improperly drew adverse inferences from his lack of medical treatment. Doc. 23-25. Nothing in the ALJ's opinion supports this contention, and consequently, it lacks merit.
Fain contends that the ALJ erred by failing to consider Fain's fatigue and low back pain as severe impairments. Doc. 10 at 14. This contention fails because "the finding of any severe impairment . . . is enough to satisfy the requirement of step two." Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (emphasis added). In other words, "[n]othing requires that the ALJ must identify, at step two, all of the impairments that should be considered severe." Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823, 825 (11th Cir. 2010) (citing Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984)). Consequently, the ALJ did not err by failing to consider Fain's fatigue and low back pain as severe impairments because he found Fain's history of heart defect with moderate heart valve insufficiency, bilateral conductive hearing loss, and history of right shoulder injury were severe impairments. (R. 20). To extent that Fain contends that the ALJ erred by failing to consider his fatigue and low back pain at all, this contention lacks merit because the ALJ specifically discussed both conditions. (R. 22, 23).
Fain contends the ALJ erred by failing to consider the combined effect of all of Fain's impairments. Doc. 10 at 17. "It is established that the ALJ must consider the combined effects of a claimant's impairments in determining whether she is disabled." Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1006 (11th Cir. 1986)). It is unclear whether Fain is contending that the ALJ erred by failing to consider the combined effect of all of Fain's impairments when determining whether Fain has an impairment or combination of impairments that meets a listed impairment (i.e. at Step Three) or when determining Fain's RFC (i.e. at Step Four). In any event, at Step Three, the ALJ stated that he "considered all of the claimant's impairments individually and in combination," (R. 20), and at Step Four, that he had made a "careful consideration of the entire record" and had "considered all [Fain's] symptoms," (R. 21). These statements are sufficient evidence that the ALJ considered the combined effects of Fain's impairments. See Jones v. Dep't of Health and Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991) (stating that an ALJ can satisfy his duty to consider a claimant's impairments in combination by stating that he considered whether the claimant suffered from any impairment or combination of impairments).
Fain contends that the ALJ failed to state adequate reasons for discrediting Fain's account of his subjective symptoms. An ALJ must "explicit[ly] articulat[e] ... the reasons justifying a decision to discredit a claimant's subjective pain testimony," Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (citing Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988)), and those reasons must be based on substantial evidence, Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Here, the ALJ discredited Fain's testimony about his subjective symptoms because it was inconsistent with the medical record and Fain's own account of his daily activities. (R. 23). These findings are supported by substantial evidence, namely the medical findings of consulting physician Dr. Henry Born, (R. 305-10), and Fain's testimony at the hearing before the ALJ, (R. 30-50), and self-prepared functional report, (R. 161-66). In sum, the ALJ explicitly articulated reasons for discrediting the full extent of Fain's testimony regarding his subjective symptoms, and substantial evidence supports those reasons.
The court also disagrees with Fain's contention that his account of his daily activities in his self-prepared functional report should not be grounds for discrediting his testimony regarding his subjective symptoms because the Eleventh Circuit has held that "participation in everyday activities of short duration, such as housework or fishing, [does not] disqualif[y] a claimant from disability." Doc. 10 at 20 (citing Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997)). Fain overlooks that the activities he described, such as weight-lifting, (R.161), mowing grass, (R. 163), assisting in his family's logging business,
Fain contends that the AC erred by failing to articulate its evaluation of a new evidentiary submission from Dr. Colvin. Doc. 10 at 28. However, when, as here, the AC denies a request for review, it is not required "to provide a detailed discussion of a claimant's new evidence." Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 783 (11th Cir. 2014). Fain attempts to distinguish Mitchell by contending it is inapplicable to the present matter because not only did the AC fail to evaluate the new submission from Dr. Colvin, it failed to acknowledge it at all. Doc. 15 at 3 ("Fain prevails because there was no mention of the new evidence . . . in the Appeals Council denial of review."). Contrary to Fain's contention, however, the AC did mention the new submission from Dr. Colvin. See (R. 2) (emphasis added) ("In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council."); (R. 5) (Order of Appeals Council listing February 6, 2013 letter from Dr. Colvin). Consequently, the AC did not err by either failing to articulate an evaluation of the new submission from Dr. Colvin or by ignoring it outright.
Based on the foregoing, the court concludes that in determining that Fain is not disabled, the ALJ applied incorrect legal standards. Therefore, the Commissioner's final decision is remanded for further proceedings consistent with this opinion. A separate order in accordance with the memorandum of decision will be entered.
Davis, 449 F. App'x at 833 n. 1.
Lawton, 431 F. App'x at 834.
