JAMES R. KLINDT, Magistrate Judge.
Erin Rae Beighley ("Plaintiff") is appealing the Commissioner of the Social Security Administration's final decision denying her claim for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Plaintiff's alleged inability to work is the result of psoriatic arthritis, scoliosis, fibromyalgia, spondylitis, degenerative disc disease, bipolar disorder, and "severe back pain." Transcript of Administrative Proceedings (Doc. No. 12; "Tr." or "administrative transcript"), filed October 4, 2016, at 49, 60, 73, 84, 229 (emphasis omitted). On November 2, 2011, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of June 10, 2010. Tr. at 49 (DIB), 60 (SSI). Plaintiff's applications were denied initially, Tr. at 49-59, 72, 97-102 (DIB); Tr. at 60-70, 71, 103-09 (SSI), and on reconsideration, Tr. at 73-83, 95, 113-18 (DIB); Tr. at 84-94, 96, 119-24 (SSI).
On October 10, 2013, an Administrative Law Judge ("ALJ") held a hearing at which the ALJ heard testimony from Plaintiff, who was represented by counsel, and a vocational expert ("VE"). Tr. at 24-48. On October 24, 2013, the ALJ issued a decision finding Plaintiff disabled through the date of the decision. Tr. at 16-22. On December 16, 2013, the Appeals Council ("AC") sent Plaintiff a letter notifying Plaintiff that the AC was reviewing the ALJ's decision because "[it] found that the [D]ecision is not supported by substantial evidence." Tr. at 172;
On April 22, 2014, the AC reversed the ALJ's finding that the Plaintiff was disabled and issued a decision that became the final decision of the Commissioner.
Plaintiff raises two issues on appeal: (1) "[w]hether the Commissioner erred in determining that [Plaintiff] has the residual functional capacity [("RFC")] to perform light work after providing more weight to the opinions of non-examining state agency physicians than any examining or treating physician, and failing to adequately consider all of the pertinent ev idence in the record"; and (2) "[w]hether the Commissioner erred in determining that [Plaintiff] has the [RFC] to perform light work after failing to adequately assess [Plaintiff's] credibility when she suffered from pain caused from psoriatic arthritis and a back condition." Plaintiff's Brief Addressing the Merits of Appeal (Doc. No. 17; "Pl.'s Brief"), filed December 5, 2016, at 2-3, 11-21 (argument as to first issue), 22-25 (argument as to second issue). On January 31, 2017, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 19; "Def.'s Mem.") addressing the issues raised by Plaintiff. After a thorough review of the entire record and consideration of the parties' respective filings, the undersigned finds the Commissioner's final decision is due to be reversed and remanded for further administrative proceedings.
When determining whether an individual is disabled,
Here, on remand, the AC followed the five-step sequential inquiry in the Decision. See Tr. at 526-28. At step one, the AC determined that "[Plaintiff] has not engaged in substantial gainful activity since June 10, 2010 [(the alleged onset date)]." Tr. at 527 (citations omitted). At step two, the AC found that "[Plaintif f] has the following severe impairments: psoriatic arthritis, tuberculosis, disorders of the spine, fibromyalgia, and obesity." Tr. at 527 (citations omitted). At step three, the AC ascertained that "[Plaintiff] does not have an impairment or combination of impairments which is listed in, or which is medically equal to an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1." Tr. at 527 (citation omitted).
The AC determined that Plaintiff has the following RFC: "[Plaintiff can] perform the full range of the work at the light exertional level." Tr. at 527 (citation omitted). At step four, the AC found "[Plaintiff] is unable to perform any past relevant work because the physical demands of those jobs exceeded [Plaintiff's RFC] for a full range of light work." Tr. at 527 (citations omitted).
At step five, after considering Plaintiff's age ("32 years old, which is defined as a younger individual"), education ("a high school education"), work experience, and RFC, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] could perform during the period at issue." Tr. at 527-28 (citations omitted). The AC concluded that "[Plaintiff was] not disabled . . . at any time from her alleged onset date, June 10, 2010, through the date of the [ALJ's] decision. . . ." Tr. at 528.
This Court reviews the Commissioner's final decision as to disability pursuant to 42 U.S.C. § 405(g). Although no deference is given to the ALJ's conclusions of law, findings of fact "are conclusive if . . . supported by `substantial evidence.'"
As indicated above, Plaintiff raises two issues before this Court. The first concerns the AC's assessment of the medical opinions, and the second concerns the AC's basis for the credibility finding.
In addressing the issues in detail, the undersigned first sets out the applicable law. Then, the undersigned discusses the AC's credibility determination, followed by the AC's assessment of the medical opinions.
To establish a disability based on testimony of pain or other subjective symptoms, a claimant must satisfy two parts of a three-part test showing: (1) evidence of any underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged subjective symptoms; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed subjective symptoms.
"[C]redibility determinations are the province of the [administrative judge]."
In discussing the AC's power to review an ALJ's credibility determination, the Eleventh Circuit has held:
The Regulations establish a "hierarchy" among medical opinions
With regard to a treating physician or psychiatrist,
If an administrative judge concludes the medical opinion of a treating physician or psychiatrist should be given less than substantial or considerable weight, he or she must clearly articulate reasons showing "good cause" for discounting it.
An administrative judge is required to consider every medical opinion. See 20 C.F.R. §§ 404.1527(d), 416.927(d) (stating that "[r]egardless of its source, we will evaluate every medical opinion we receive"). While "the [administrative judge] is free to reject the opinion of any physician when the evidence supports a contrary conclusion,"
Plaintiff argues that "the Commissioner did not adequately assess [Plaintiff's] credibility, which was particularly important in this case since [Plaintiff's] main issue is that [sic] pain caused from her psoriatic arthritis and back condition." Pl.'s Brief at 24. According to Plaintiff, "[the AC's] credibility determination is . . . nothing more than boiler plate type language, and does not offer enough reasoning to support the Commissioner's determination that [Plaintiff] is not credible."
As noted above, the starting point for this Court's review is the ALJ's credibility determination.
Tr. at 20 (citation omitted). The ALJ then found that "[Plaintiff's] statements concerning the intensity, persistence and limiting effects of [her] symptoms are generally credible." Tr. at 20. The ALJ recognized that Plaintiff was not then able to take Enbrel (the arthritis medication) because it was incompatible with her then-current tuberculosis medication. The ALJ noted, however, that "due to the efficacy of Enbrel in managing [Plaintiff's] symptoms [when she is able to take it], a continuing disability review [was] recommended in [twenty four] months." Tr. at 20.
The AC reversed the ALJ's credibility finding and found that "[Plaintiff's] statements regarding the intensity, persistence, and limiting effects of her impairments during the period at issue are only partially supported by the evidence in the record, as there is contradictory clinical evidence, opinion evidence, self-reported levels of activity, and response to treatment." Tr. at 524. In support of this finding, the AC relied partly on Plaintiff's activities of daily living:
Tr. at 524 (citations omitted). The AC also noted that "treatment notes consistently indicated that [Plaintiff] was doing better on E[n]brel and/or had pain once off E[n]brel." Tr. at 524 (citations omitted).
The Eleventh Circuit has indicated: "[W]e [do not] believe that participation in everyday activities of short duration, such as housework or fishing, disqualifies a claimant from disability. . . ."
The AC ignored several aspects of Plaintiff's testimony about daily activities. At the hearing, when the ALJ asked Plaintiff whether she could do housework, she answered: "Not as often as I should," and she testified she did not do laundry. Tr. at 32. She testified she cooked, but that she did not do the dishes nor make the bed. Tr. at 32. She testified she vacuumed, but that she "[v]ery rarely" took out the trash. Tr. at 32-33. When asked how often she went to the grocery store, she answered: "At least once a week for milk or bread, but the long hauls, you know, where you really load the house up, maybe once every other month and someone always goes with me, my mom or my husband." Tr. at 34-35. When testifying about taking care of her thirteen-month-old child, she indicated that "[s]ome days [her] mother has to come help . . . or . . . come take him over to her house for a little bit so [Plaintiff] can just rest." Tr. at 39. According to Plaintiff, "[Plaintiff's] husband has actually had to call in to work to stay home . . . on several occasions." Tr. at 39. Plaintiff testified she has a "very difficult time" buttoning buttons and fastening zippers, and that "[her children] have to help each other," or, if her husband is home, she asks him for help. Tr. at 41. When asked whether she is able to open a jar, she testified that "mostly [she has] to get help to open anything." Tr. at 42.
The AC also did not mention Plaintiff's testimony about her ability to stand, walk, and sit. Plaintiff testified she can "walk slowly at [her] own pace, if there's a wall or a countertop or something . . . [she] can probably get a quarter of a mile before [she has] to stop." Tr. at 40. She also stated that "[s]tanding tends to be more difficult for [her] than walking," and that she can stand "probably ten minutes before [she] need[s] to sit down." Tr. at 41. With regard to sitting, she testified that "[she] can sit for a couple of hours, but mostly [she] lay[s], because even . . . sitting hurts [her] back and [her] hips and her feet swell. . . ." Tr. at 41. She also testified she was prescribed a cane, Tr. at 40, which was ignored by the AC.
As noted, the AC also relied on certain statements Plaintiff made to Dr. Humphreys and Dr. Etienne in discrediting Plaintiff. While the AC indicated Plaintiff told Dr. Humphreys she "could care for her own needs," Tr. at 524, the AC failed to recognize that on the same day, she also told Dr. Humphreys that "[s]he is able to shop with her mother's assistance[; s]he can cook, but tends to neglect the housekeeping[; and s]he typically spends her days in bed, sleeping, watching television, and reading." Tr. at 346-47. The AC noted that Plaintiff told Dr. Etienne she was "independent with her activities of daily living," Tr. at 524, but the AC did not mention that she also told the doctor that she "[t]ried obtaining a nursing degree but health limited completion of [the] degree." Tr. at 340. Further, while the AC noted Plaintiff told Dr. Humphreys she had a psoriaric arthritis flare in 2009 and worked as a corrections officer until June 2010 "despite this flare-up," Tr. at 524, Plaintiff also told Dr. Humphreys that "[s]he left her last job of nine years as a corrections officer in June 2010 due to her pain," and that "[s]he went back to college for two semesters, but dropped due to her pain in June 2011." Tr. at 346.
Importantly, the AC's error in not considering the entire record regarding daily activities includes its failure to address the effects of Plaintiff's medication regimen on her ability to perform daily activities. The administrative transcript reflects that as of June 13, 2013, Plaintiff stopped taking Enbrel because she started treatment for tuberculosis.
In making its credibility finding, the AC erred in failing to consider all of Plaintiff's testimony regarding daily activities. This error is compounded by the AC's failure to address the effects of Plaintiff's then-current medication regimen on her daily activities. Thus, remand is required for reconsideration of Plaintiff's credibility, including her reports on daily activities, the effects of not taking Enbrel, and the side effects of the tuberculosis medication.
Plaintiff argues that "[t]he Commissioner erred in determining that [Plaintiff] has the [RFC] to perform light work after providing more weight to the opinions of non-examining state agency physicians than any examining or treating physician, and failing to adequately consider all of the pertinent evidence in the record." Pl.'s Brief at 11-12. Responding, Defendant contends that "the [AC] properly explained the weight it gave to the various medical opinions, clearly articulated its reasons, and did not err by giving the greater weight to the opinion of a non-treating source over a treating and examining one." Def.'s Mem. at 16.
Dr. David Fanney treated Plaintiff primarily for psoriatic arthritis, fibromyalgia, "[g]eneralized osteoarthritis of multiple sites," and "intervertebral disc degeneration."
On January 21, 2012, Dr. Etienne conducted a consultative examination of Plaintiff and diagnosed her with psoriatic arthritis and thoracic spondylosis. Tr. at 340-44. Dr. Etienne opined that "[t]he combination of these . . . disease processes will limit [Plaintiff] from prolonged standing for more than [thirty] minutes without rest, or heavy lifting greater than [twenty pounds]." Tr. at 342. The AC gave Dr. Etienne's opinion "some weight" because "there is no evidence of poor stamina, weakness, joint dysfunction in the lower extremities or other similar impairment or symptom that would warrant limiting standing and walking to no more than [thirty] minutes on a continuous basis." Tr. at 525. According to the AC, "such a recommendation is inconsistent with [Plaintiff's] own reported activities of daily living as discussed [in the AC's Decision]." Tr. at 525.
In assessing the opinions of Dr. Fanney and Dr. Etienne, the AC relied on Plaintiff's activities of daily living. As explained in detail above, it is not clear that the AC adequately considered Plaintiff's testimony and reports regarding her activities of daily living. Reconsideration of Plaintiff's credibility and activities of daily living will likely impact the AC's assessment of the medical opinions. Thus, on remand, the AC shall reconsider the medical opinions as well.
For the foregoing reasons, it is
1. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g), and pursuant to § 1383(c)(3),
2. The Clerk be further directed to close the file.
3. Plaintiff's counsel be advised that, in the event benefits are awarded on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the parameters set forth by the Order entered in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures for Applying for Attorney's Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)).