JOHN H. ENGLAND, III, Magistrate Judge.
Plaintiff Tammie Sherell Ware ("Ware") seeks review, pursuant to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB"). (Doc. 1). Ware timely pursued and exhausted her administrative remedies. This case is therefore ripe for review under 42 U.S.C. § 405(g). The undersigned has carefully considered the record and, for the reasons stated below, the Commissioner's decision is
Ware protectively filed an application for a period of disability and DIB on August 14, 2012, alleging an onset date of March 10, 2008.
On remand, the ALJ held a new hearing on April 5, 2016. (Tr. 33-74). The ALJ denied Ware's claim again on July 6, 2016. (Tr. 10-32). Ware again sought review by the Appeals Council, but this time it denied her request. (Tr. 1-6). On July 11, 2017, the date on which the Appeals Council denied review, the ALJ's second decision became the final decision of the Commissioner. On September 8, 2017, Ware initiated this action. (Doc. 1).
On the date of the ALJ's second decision, Ware was forty-seven years old, with previous work as certified nurse's assistant and a cleaner/housekeeper. (Tr. 24).
The court's review of the Commissioner's decision is narrowly circumscribed. The 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. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must "scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. It is "more than a scintilla, but less than a preponderance." Id.
This Court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining the proper legal analysis has been conducted, it must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
To qualify for disability benefits and establish her entitlement for a period of disability, a claimant must be disabled as defined by the Social Security Act and the Regulations promulgated thereunder.
The Regulations provide a five-step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999); 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 work, the burden shifts to the [Commissioner] to show that the claimant can perform some other job." Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further show such work exists in the national economy in significant numbers. Id.
After consideration of the entire record and application of the sequential evaluation process, the ALJ made the following findings:
At Step One, the ALJ found Ware met the insured status requirements of the Social Security Act through December 31, 2012, and that Ware had not engaged in substantial gainful activity from her amended alleged onset date through her date last insured ("DLI"). (Tr. 15). At Step Two, the ALJ found Ware had the following severe impairments: obesity; depressive disorder, NOS; anxiety/panic disorder, with agoraphobia; history of multiple hernia repairs; history of spinatus tendinopathy/tendonitis with osteophytes, left shoulder; and possible mild degenerative disc disease. (Tr. 15). At Step Three, the ALJ found Ware does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16).
Before proceeding to Step Four, the ALJ determined Ware's RFC, which is the most a claimant can do despite her impairments. See 20 C.F.R. § 404.1545(a)(1). The ALJ determined through her DLI, Ware has the RFC
(Tr. 18).
At Step Four, the ALJ determined Ware has been unable to perform any past relevant work. (Tr. 24). At Step Five, the ALJ determined that, considering Ware's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Ware could perform. (Tr. 25). Therefore, the ALJ concluded Ware had not been under a disability through her DLI. (Tr. 26).
Although the court may only reverse a finding of the Commissioner if it is not supported by substantial evidence or because improper legal standards were applied, "[t]his does not relieve the court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial evidence supports each essential administrative finding." Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)). The court, however, "abstains from reweighing the evidence or substituting its own judgment for that of the [Commissioner]." Id. (citation omitted).
Ware argues the ALJ erred by failing to discuss the side effects she suffers from her medications. (Doc. 14 at 5). The Commissioner responds that the ALJ implicitly rejected Ware's allegations of side effects when he evaluated her subjective complaints and found them inconsistent with the medical evidence and other evidence of record. (Doc. 17 at 6-7).
As part of his duty to fully and fairly develop the record, an ALJ has a duty to investigate the possible side effects of medication taken by a claimant. See Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981). However, it is a claimant's obligation to "introduce evidence supporting her claim that her symptoms (including any medication side effects) make her unable to work." Walker v. Comm'r of Soc. Sec., 404 F. App'x 362, 366 (11th Cir. 2010) (citing Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)). "When there is no evidence that a claimant is taking medications that cause side-effects, the ALJ is not required to elicit testimony or make findings regarding the effect of medications on the claimant." Lipscomb v. Comm'r of Soc. Sec., 199 F. App'x 903, 906 (11th Cir. 2006) (citing Passopulos v. Sullivan, 976 F.2d 642, 648 (11th Cir.1992)).
The ALJ stated he had considered "the combination of the claimant's mental and physical impairments and symptoms, both severe and non-severe, including the reasonable side effects of her medication," (tr. 23), as he was required to do by the regulations, see 20 C.F.R. § 404.1529(c)(3)(iv). Apart from the passage quoted above, the only mention of side effects in the ALJ's decision was in his discussion of Ware's treatment at Oasis Women's Clinic. (Tr. 22-23). The ALJ stated on a September 24, 2012 visit to the clinic, Ware "described taking Prozac and Buspar without complaints of side effect." (Tr. 22). This misstates the medical record. While the clinic's intake notes indicate Ware reported taking the medications, they only state "Taking Buspar 15 mg, Prozac 60 mg" before immediately moving on to notes about Ware's suicidal ideation. (Tr. 615). In other words, the notes are silent as to side effects rather than containing Ware's affirmative denial of side effects.
Other portions of the medical record also contain Ware's complaints of drowsiness and dizziness from her medications.
Apart from the medical record, Ware points to a September 7, 2012 function report in which she stated her medication makes her sleep. (Tr. 370). Ware also highlights a disability report dated November 21, 2012, in which she indicated she experienced drowsiness as a side effect of Buspar, lisinopril, Neurontin, promethazine, Prozac, Robaxin, and Sulindac. (Tr. 385). Ware also notes she reported drowsiness as a side effect of her medications to Dr. Sharon D. Waltz, a psychological consultative examiner, (tr. 606), and that a medical source statement completed five months after Ware's DLI in which Dr. Nassif Cannon, one of Ware's treating physicians, indicated side effects could "limit [Ware's] effectiveness due to distraction, inattention, drowsiness, etc," (tr. 666). Finally, Ware mentioned drowsiness as a side effect at both the December 6, 2013 hearing and the April 5, 2016 hearing. At the 2013 hearing, asked about side effects from her medication, Ware stated: "I be drowsy. I be dizzy." (Tr. 91). And at the 2016 hearing, Ware indicated tiredness was a side effect of her medications, (tr. 49-50), and that her pain medications cause dizziness and drowsiness, (tr. 59).
The undersigned notes some of this evidence postdates Ware's DLI and that the ALJ specifically rejected evidence after that date because it did "not relate back to the claimant's mental and physical health status as of December 31, 2012." (Tr. 23). However, Ware's complaints of drowsiness as a medication side effect clearly predate Ware's DLI — at a minimum, in her September 7, 2012 and November 21, 2012 function reports, (tr. 370 & 385), and her report to Dr. Waltz, (tr. 606). And notwithstanding the ALJ afforded Dr. Cannon's opinion little weight, (tr. 24), his decision to do so was based on the fact that the opinion was "rendered long after the claimant's date last insured and . . . do[es] not specifically relate back to her condition at that time."
On this record, the ALJ's brief, formulaic recitation that he considered side effects cannot excuse his failure to address the specific side effects Ware alleged. The Commissioner relies on Lipscomb v. Comm'r of Soc. Sec., 199 F. App'x 903 (11th Cir. 2006), for the proposition that this was sufficient, but in that case the ALJ specifically addressed the symptoms (dizziness and lightheadedness) before concluding the claimant's testimony did not support limitations flowing from them; the court found "it was unnecessary for the ALJ to discuss specifically each potential cause of [the claimant's] dizziness when determining the scope of [her] limitations. Id. at 906. Here, by contrast, the ALJ did not mention drowsiness at all, and the only discussion of side effects within the ALJ's consideration of the evidence misreads the record. Nor can the Commissioner reasonably claim, as she does, that Ware has failed "to provide evidence to support her allegations of side effects from her medications," insulating the ALJ from the need to specifically address those side effects, (doc. 17 at 9); as discussed above, the record contains evidence demonstrating Ware's complaints of drowsiness and dizziness. Further, this evidence undermines the Commissioner's argument the ALJ implicitly found Ware's allegations of side effects not credible. (Doc. 17 at 9). The ALJ's rationale for rejecting Ware's subjective statements was that they were "not entirely consistent with the medical evidence and other evidence in the record," (tr. 19), but the ALJ's only finding inconsistent with Ware's claims of side effects was, as stated above, his erroneous implication Ware had reported none. This does not provide substantial evidence to support the ALJ's implicit rejection of Ware's claims of drowsiness. See McDevitt v. Comm'r of Soc. Sec., 241 F. App'x 615, 619 (11th Cir. 2007) (remanding where ALJ mistakenly indicated the claimant had not claimed concentration problems as a medication side effect and had "made no finding, as to credibility or otherwise," regarding this claim).
An ALJ must provide something for the court to conclude he considered a claimant's side effects. See McDaniel v. Bowen, 800 F.2d 1026, 1032 (11th Cir. 1986). Here, the ALJ did not. Accordingly, remand is necessary. On remand, the ALJ should specifically consider Ware's claims of drowsiness and dizziness as a side effect of her medications, including whether her allegations of side effects postdating her DLI relate back to the period on or prior to that date.
For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the parties, the decision of the Commissioner of Social Security denying Ware's claim for a period of disability and DIB is
