MADELINE HUGHES HAIKALA, District Judge.
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Monica Delane Harris seeks judicial review of a final adverse decision of the Commissioner of Social Security. The Commissioner denied Ms. Harris's claims for a period of disability and disability insurance benefits. After careful review, the Court remands this matter for additional administrative proceedings.
In November of 2014, Ms. Harris applied for disability insurance benefits. (Doc. 7-3, p. 16); (see Doc. 7-4, p. 17 (Box 7 — indicating disability insurance benefits claim and Box 11 — indicating date of application); see also Doc. 7-6, p. 2 (Application Summary)). Ms. Harris alleges that her disability began on May 16, 2014. (Doc. 7-6, p. 2; Doc. 7-4, p. 17 (Box 11)). The Commissioner denied Ms. Harris's claim in March of 2015. (Doc. 7-3, p. 16; Doc. 7-5, p. 8).
Ms. Harris requested a hearing before an Administrative Law Judge (ALJ). (Doc. 7-3, p. 12). On July 18, 2016, the ALJ held a hearing in Birmingham, Alabama. (Doc. 7-3, p. 33). The ALJ issued an unfavorable decision on September 13, 2016. (Doc. 7-3, pp. 13-15, 28). On May 24, 2017, the Appeals Council declined Ms. Harris's request for review (Doc. 7-3, p. 2), making the Commissioner's decision final for this Court's judicial review. See 42 U.S.C. §§ 405(g) and 1383(c).
The scope of review in this matter is limited. "When, as in this case, the ALJ denies benefits and the Appeals Council denies review," the Court "review[s] the ALJ's `factual findings with deference' and [his] `legal conclusions with close scrutiny.'" Riggs v. Comm'r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir. 2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record to support the ALJ's factual findings. "Substantial evidence is more than a scintilla and 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 (11th Cir. 2004). In evaluating the administrative record, the Court may not "decide the facts anew, reweigh the evidence," or substitute its judgment for that of the ALJ. Winschel v. Comm'r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotation marks omitted). If substantial evidence supports the ALJ's factual findings, then the Court "must affirm even if the evidence preponderates against the Commissioner's findings." Costigan v. Comm'r, Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).
With respect to the ALJ's legal conclusions, the Court must determine whether the ALJ applied the correct legal standards. If the Court finds an error in the ALJ's application of the law, or if the Court finds that the ALJ failed to provide sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis, then the Court must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To determine whether a claimant has proven that she is disabled, an ALJ follows a five-step sequential evaluation process. The ALJ considers:
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that the Ms. Harris met the insured status requirements of the Social Security Act through December 31, 2018. (Doc. 7-3, p. 18). The ALJ determined that Ms. Harris had not engaged in substantial gainful activity since May 16, 2014, the alleged onset date. (Doc. 7-3, p. 18).
The ALJ concluded that Ms. Harris suffers from the severe impairment of degenerative disc disease of the lumbar spine status post diskectomy. (Doc. 7-3, p. 18). The ALJ determined Ms. Harris has the following non-severe impairments: complex regional pain syndrome, essential hypertension, vertigo, obesity, and anxiety. (Doc. 7-3, pp. 18-20). Based on a review of the medical evidence, the ALJ concluded that Ms. Harris does not have an impairment or a combination of impairments that meets or medically equals the severity of any listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 7-3, p. 21).
In light of Ms. Harris's impairments, the ALJ evaluated Ms. Harris's residual functional capacity. The ALJ determined that Ms. Harris has the RFC to perform:
(Doc. 7-3, p. 21)
Based on this RFC, the ALJ concluded that Ms. Harris cannot perform her past relevant job as a food service worker. (Doc. 7-3, p. 26). Relying upon testimony from a vocational expert, the ALJ found that other jobs existed in the national economy that Ms. Harris could do, including optical goods assembler, wire wrapper, and stuffer. (Doc. 7-3, pp. 27, 49). Accordingly, the ALJ determined that Ms. Harris was not under a disability within the meaning of the Social Security Act at any time from May 16, 2014, the alleged onset date, through November 18, 2014, the date of the decision. (Doc. 7-3, p. 28).
On appeal, Ms. Harris maintains that the ALJ improperly evaluated her credibility under the Eleventh Circuit pain standard and disregarded the side effects of her pain medication. (Doc. 9, pp. 7-11). After considering the parties' arguments and examining the record, the Court finds that the record does not contain substantial evidence to support the ALJ's decision.
To establish disability based on testimony about subjective pain, a claimant must provide "(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
In determining the existence of a disability, "[a] claimant's subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability." Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995) (quoting Holt, 921 F.2d at 1223). If an ALJ finds that the claimant's testimony is not credible, then the ALJ must explain the reason for discrediting that testimony. Moore v. Barnhart, 405 F.3d 1208, 1212 n.4 (11th Cir. 2005) (requiring "explicit articulation of the reasons justifying a decision to discredit a claimant's subjective pain testimony") (internal citation omitted); Holt, 921 F.2d at 1223 ("Failure to articulate the reasons for discrediting subjective pain testimony requires, as a matter of law, that the testimony be accepted as true.").
Social Security Regulation 16-3p governs an ALJ's credibility determination. That regulation provides:
SSR 16-3p, 2016 WL 1119029, at *4. Additionally, "[w]hen evaluating a claimant's subjective symptoms," an ALJ must consider the following factors:
Leiter v. Comm'r of Soc. Sec., 377 Fed. Appx. 944, 947 (11th Cir. 2010) (quoting 20 C.F.R. § 404.1529(c)(3)).
Ms. Harris testified that she has experienced pain and other disabling symptoms before and after her back surgery in June 2014. (Doc. 7-3, p. 45). Ms. Harris stated that she experiences a 9 out of 10 pain level at least twice a week, but her pain is usually at a level of 6 or 7 when she uses pain medication. (Doc. 7-3, p. 45).
Ms. Harris testified that she was taking Nucynta, Lyrica, and Ultram to manage pain. (Doc. 7-3, p. 46). Ms. Harris testified that because Nucynta makes her drowsy, she usually lies down usually for 30 minutes after the medication takes effect. (Doc. 7-3, p. 46). Ms. Harris indicated that she takes Nucynta two to three times daily. (Doc. 7-3, p. 46).
The ALJ concluded that Ms. Harris's impairments meet the first part of the pain standard but not the second part. The ALJ found:
(Doc. 7-3, p. 22). The ALJ determined that Ms. Harris's subjective testimony was inconsistent with the objective medical evidence, and her daily activities diminished the credibility of her testimony concerning subjective pain. (Doc. 7-3, p. 25). The Court analyzes each category of evidence in turn.
The ALJ found that the objective medical evidence sometimes conflicted with Ms. Harris's description of her symptoms. (Doc. 7-3, p. 25). An ALJ may use objective medical evidence to discredit a claimant's pain testimony. 20 C.F.R. § 404.1529(c)(2) (objective medical evidence can be "a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of [the claimant's] symptoms and the effect those symptoms, such as pain, may have on [her] ability to work"). But an ALJ may not "reject [a claimant's] statements about the intensity and persistence of [] pain or other symptoms or about the effect [] symptoms have on [the claimant's] ability to work solely because the available objective medical evidence does not substantiate [the claimant's] statements." 20 C.F.R. § 404.1529(c)(2).
The ALJ explained why he found that the objective medical evidence conflicted with Ms. Harris's pain testimony:
(Doc. 7-3, p. 25). Based on this Court's review of the medical record, the ALJ has overlooked several records indicating that Ms. Harris's unresolved symptoms post-surgery may cause the pain that Ms. Harris reported.
On May 18, 2014, Ms. Harris visited DCH Regional Medical Center's Emergency Department in Tuscaloosa, Alabama and complained of back and left hip pain. (Doc. 7-8, p. 13). Ms. Harris indicated that her back pain had begun about one week earlier. (Doc. 7-8, p. 13). Ms. Harris did not know what caused this pain, but she recalled doing some heaving lifting which required her to twist her back. (Doc. 7-8, p. 13).
Ms. Harris reported a pain level of 9 out of 10. (Doc. 7-8, p. 7). Ms. Harris described her pain as "shock" pain — an intensity different from what she had experienced with back strains. (Doc. 7-8, p. 13). Ms. Harris received several medications to treat her acute pain including orphenadrine, ketorolac, and morphine. (Doc. 7-8, p. 11). Ms. Harris received a prescription for 7.5mg Norco upon discharge. (Doc. 7-8, p. 12).
Ms. Harris continued to receive treatment for her back pain. On May 30, 2014, Dr. Spruill gave Ms. Harris an epidural steroid injection in the left L4-L5 back area. (Doc. 7-8, p. 24). On June 5, 2014, Ms. Harris went to Dr. Givhan for a surgical evaluation. (Doc. 7-8, p. 60). Dr. Givhan's assessment of Ms. Harris included these observations:
(Doc. 7-8, p. 60).
On June 13, 2014, Dr. Givhan performed a L4-L5 diskectomy on Ms. Harris's back. (Doc. 7-8, p. 48). Following that surgery, Dr. Givhan noted on July 8, 2014, that Ms. Harris "is improving with regard to her pain, but . . . had a large herniated disc to the left at L5-S1 with severe neural impingement and still has to have symptom resolution." (Doc. 7-8, p. 59). At Dr. Givhan's direction, Ms. Harris attended physical therapy on July 14, 2014, at the Tuscaloosa Rehabilitation and Hand Center. (Doc. 7-8, p. 65). At the appointment, Ms. Harris reported no leg pain, but Ms. Harris described other symptoms including "left lower leg and foot numbness and weakness as well as continued [lower back pain]. . . . left leg tingling and [lower back pain] increas[ing] with walking." (Doc. 7-8, p. 65). Ms. Harris attended at least three more physical therapy sessions in July of 2014. (Doc. 7-8, p. 85-90). Thus, Ms. Harris required additional treatment for pain after her surgery.
Ms. Harris returned to Dr. Givhan on July 29, 2014. (Doc. 7-8, p. 58). Ms. Harris reported "still having some significant radicular symptoms." (Doc. 7-8, p. 58). Dr. Givhan indicated that a "nerve injury related to her massive disc herniation" could cause some of Ms. Harris's symptoms. Dr. Givhan ordered an MRI to explore the source of Ms. Harris's continued pain and to rule out recurrent disc herniation. The ALJ did not address this visit in his analysis of the objective medical evidence.
Thus, the ALJ relied upon Dr. Givhan's July 8, 2014 note which reflected improvement in Ms. Harris's pain, but the ALJ did not mention a note later in the same month that supports Ms. Harris's pain testimony. See Iheanacho v. Berryhill, No. 6:17-CV-0910-MHH, 2018 WL 4680173, at *6 (N.D. Ala. Sept. 28, 2018) (ALJ may not take a "snapshot" of notes that show immediate improvement and then disregard notes that show the pain returning) (citing Robinson v. Colvin, No. 5:12-cv-1954-AKK, 2014 WL 2214294, at *5 (N.D. Ala. May 28, 2014)).
Dr. Bankston performed an MRI of Ms. Harris's spine on August 4, 2014. (Doc. 7-8, p. 62). Dr. Bankston reported a "mild to moderate diffuse disc bulge with mild facet degenerative change[,]" but he did not see evidence of a recurrent or residual disc herniation. (Doc. 7-8, pp. 62-63). On August 5, 2014, Ms. Harris returned to Dr. Givhan. (Doc. 7-8, p. 57). Dr. Givhan reported that the MRI scan did not "show any recurrent or residual disc herniation of the nerve root." (Doc. 7-8, p. 57). Dr. Givhan stated that "[t]here certainly is a chance that [Ms. Harris] has some long-standing nerve damage which . . . is playing a role in her symptoms at this point." (Doc. 7-8, p. 57). Dr. Givhan indicated that Ms. Harris should continue her therapy and "hope the nerve spontaneously heals itself." (Doc. 7-8, p. 57). Dr. Givhan explained to Ms. Harris that her partial foot drop and numbness might be permanent. (Doc. 7-8, p. 57). Although the ALJ reported that the MRI did not show recurrent disc herniation, the ALJ did not discuss Dr. Givhan's concerns about potential nerve damage.
As the ALJ indicated, the next record of treatment is dated nearly six months after Ms. Harris's August 2014 visit with Dr. Givhan.
On January 31, 2015, Dr. Summerlin, a consultative radiologist, examined Ms. Harris. (Doc. 7-9, pp. 3, 8). Dr. Summerlin noted that Ms. Harris's walking was moderately antalgic. (Doc. 7-9, p. 5).
Dr. Summerlin diagnosed Ms. Harris with "possible peripheral nerve injury with weakness in the left lower extremity." (Doc. 7-9, p. 7). This record undermines the ALJ's finding that Ms. Harris does not have peripheral neuropathy because "there is no such diagnosis within the evidentiary record from an acceptable medical source." (Doc. 7-3, p. 19). The ALJ discounted Dr. Summerlin's pain-related diagnosis and focused instead on Dr. Summerlin's functional assessment of Ms. Harris's ability to stand, walk, sit, and lift. (Doc. 7-3, p. 23).
Dr. Summerlin observed that Ms. Harris showed "consistent pain behavior" by "shift[ing] positions several times during the course of the 15 minute interview and subsequent 10 minute examination." (Doc. 7-9, p. 4). The ALJ did not acknowledge this evidence. (Doc. 7-3, p. 23).
In February and March of 2015, Ms. Harris sought treatment from Dr. Barr, a neurologist. (Doc. 7-9, pp. 30-31, 393). On February 25, 2015, Dr. Barr noted that Ms. Harris's EMG showed an "irritated nerve in her back [that] could be left over from last year." (Doc. 7-9, p. 31). Dr. Barr indicated that Ms. Harris showed "questionable effort" when he tested her left foot motor strength on March 30, 2015. (Doc. 7-9, p. 36). The ALJ relied on Dr. Barr's observation about Ms. Harris's strength testing effort in his decision, but did not discuss Dr. Barr's opinion about nerve irritation in Ms. Harris's back. (Doc. 7-3, p. 25).
Dr. Barr diagnosed Ms. Harris with "a complex regional pain syndrome in the left leg secondary to her lumbar radiculopathy syndrome." (Doc. 7-9, p. 36). The ALJ classified Ms. Harris's complex regional pain syndrome as a non-severe impairment. (Doc. 7-3, pp. 18, 19).
Ms. Harris returned to Dr. Barr on March 30, 2015. (Doc. 7-9, pp. 35, 38). Dr. Barr indicated that Ms. Harris's nerve "[was] not healing well," and her pain was not improving; epidural blocks did not help. (Doc. 7-9, p. 35). Dr. Barr noted that Duloxetine was not easing Ms. Harris's pain, and Gabapentin "makes her sleepy if she takes higher than the dose she is on now." (Doc. 7-9, p. 35). Dr. Barr recommended that Ms. Harris switch from Gabapentin to Lyrica because Lyrica "sometimes has fewer sedating side effects." (Doc. 7-9, p. 36). The ALJ did not address Dr. Barr's March 30, 2015 notes in his decision.
In 2015, Ms. Harris continued to see Dr. Laubenthal and Dr. Graham, a spine and pain specialist. (Doc. 7-9, pp. 67-72; Doc. 7-9, pp. 99-105). Dr. Barr referred Ms. Harris to Dr. Graham. (Doc. 7-9, 95). In July of 2015, Ms. Hester, a certified registered nurse practitioner who works with Dr. Graham, described Ms. Harris's pain level as 7 out of 10 with medications. (Doc. 7-9, p. 102, 105). Ms. Harris indicated that prolonged standing, sitting, walking, and bending aggravated her back pain and that medications and rest alleviated it. (Doc. 7-9, p. 102).
In November of 2015, Ms. Harris visited Ms. Hester and reported a pain level of 6 out of 10 with medications. (Doc. 7-9, p. 99). Ms. Hester noted that Ms. Harris "continues to describe her [lower back pain] as a constant ache that radiates to bilateral hips and into [her left] leg." (Doc. 7-9, p. 99). Ms. Harris indicated that prolonged standing, sitting, walking, and bending aggravated her back pain and that medications and rest alleviated it. (Doc. 7-9, p. 99).
In March of 2016, Ms. Harris visited Dr. Graham and described her pain level as 7 out of 10 with medications. (Doc. 7-9, p. 95). Ms. Harris reported that prolonged standing, sitting, walking, bending aggravated her pain and that medications and rest alleviated it. (Doc. 7-9, p. 95). Ms. Harris also indicated to Dr. Graham that she would become sleepy after taking Nucynta. (Doc. 7-9, p. 95). Dr. Graham decreased Ms. Harris's dosage from 75 mg to 50 mg. (Doc. 7-9, p. 98). Ms. Harris's report about the negative side effects she experiences from taking Nucynta is consistent with her hearing testimony.
As detailed above, the ALJ did not discuss or credit the many treatment records that corroborate Ms. Harris's subjective reports of pain. See Swindle v. Sullivan, 914 F.2d 222, 225 (11th Cir. 1990) ("In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the Secretary's decision.") (quoting Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986)). Therefore, the ALJ's reliance upon the absence of objective evidence does not support his credibility determination.
In discrediting Ms. Harris's subjective pain testimony, the ALJ also relied upon Ms. Harris's report of her daily activities. (Doc. 7-3, p. 25). "An ALJ may not rely on a claimant's daily activities alone in making a disability determination." Hill v. Comm'r of SSA, No. 2:14-cv-01322-SGC, 2015 WL 5559758, at *5 (N.D. Ala. Sept. 18, 2015) (citing Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997)); see also Sparks v. Colvin, No. 2:12-cv-02092-LSC, 2013 WL 2635263, at *5 (N.D. Ala. June 10, 2013) ("The ALJ cannot use daily activities alone to determine whether a claimant is disabled."). Procedurally then, this Court may not affirm the ALJ's decision solely on the basis of his evaluation of Ms. Harris's daily activities. Moreover, substantial evidence does not support the ALJ's finding that Ms. Harris's daily activities diminish her credibility.
An ALJ may consider a claimant's daily activities when reaching a conclusion regarding credibility. See 20 C.F.R. §§ 404.1529(c)(3) (listing "daily activities" as a relevant factor to consider in evaluating a claimant's subjective pain testimony). The ALJ described Ms. Harris's daily activities as follows:
(Doc. 7-3, p. 25). The ALJ characterized these daily activities as "essentially normal" and consistent with his RFC finding of non-skilled sedentary work. (Doc. 7-3, p. 25).
When examining daily activities, an ALJ must consider the record as a whole. See Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (Appeals Council erred in finding that claimant's "daily activities . . . have not been significantly affected" when the Appeals Council "ignored other evidence that her daily activities have been significantly affected."). "[P]articipation in everyday activities of short duration, such as housework or fishing" will not preclude a claimant from proving disability. Lewis, 125 F.3d at 1441. Instead, "[i]t is the ability to engage in gainful employment that is the key, not whether a Plaintiff can perform chores or drive short distances." Early v. Astrue, 481 F.Supp.2d 1233, 1239 (N.D. Ala. 2007); see Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985) (claimant who "read[s], watch[es] television, embroider[s], attend[s] church, and drive[s] an automobile short distances. . . . performs housework for herself and her husband, and accomplishes other light duties in the home" still can suffer from a severe impairment).
The ALJ's description of Ms. Harris's daily activities is incomplete. For example, in January of 2015, Dr. Summerlin reported that Ms. Harris could:
(Doc. 7-9, p. 4). During the administrative hearing, Ms. Harris testified that she can drive for 20 minutes, but then must get out of the vehicle. (Doc. 7-3, p. 42). Ms. Harris explained that pain prevents her from doing much at home. (Doc. 7-3, p. 42). Ms. Harris stated that when she can manage to do a single load of laundry, she has to lie down to avoid leg pain. (Doc. 7-3, p. 42). Ms. Harris indicated she is able to cook in an oven, but not on the stove because standing hurts her back. (Doc. 7-3, p. 43).
The ALJ's discussion of Ms. Harris's daily activities does not include these limitations. Consequently, on remand, the ALJ must consider all of the evidence concerning Ms. Harris's daily activities.
The Court remands the Commissioner's decision for further administrative proceedings consistent with this memorandum opinion.
