Wade v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ELIZABETH WADE, }

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Plaintiff, }

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v. } Case No.: 2:18-cv-00801-MHH

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ANDREW SAUL, Commissioner of }

the Social Security Administration,1 }

}

Defendant. }

MEMORANDUM OPINION

Pursuant to 42 U.S.C. § 405(g), Elizabeth Wade seeks judicial review of a

final adverse decision of the Commissioner of Social Security. The Commissioner

denied her claim for a period of disability and disability insurance benefits. After

careful review, the Court reverses the Commissioner’s decision.

I. PROCEDURAL HISTORY

Ms. Wade applied for a period of disability and disability insurance benefits

on March 27, 2015. (Doc. 6-3, p. 23; Doc. 6-6, p. 2). Ms. Wade alleges that her

1 The Court asks the Clerk to please substitute Andrew Saul for Nancy A. Berryhill as the proper

defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P.

25(d) (When a public officer ceases holding office that “officer’s successor is automatically

substituted as a party.”); see also 42 U.S.C. § 405(g) (“Any action instituted in accordance with

this subsection shall survive notwithstanding any change in the person occupying the office of

Commissioner of Social Security or any vacancy in such office.”).

disability began June 19, 2014. (Doc. 6-5, p. 74; Doc. 6-6, p. 2). The Commissioner

initially denied Ms. Wade’s claim. (Doc. 6-3, p. 23; Doc. 6-7, p. 2). Ms. Wade

requested a hearing before an Administrative Law Judge (ALJ). (Doc. 6-3, p. 23;

Doc. 6-7, p. 9). The ALJ issued an unfavorable decision. (Doc. 6-3, pp. 20, 38).

The Appeals Council declined Ms. Wade’s request for review (Doc. 6-3, p. 2),

making the Commissioner’s decision final for this Court’s judicial review. See 42

U.S.C. § 405(g).

II. STANDARD OF REVIEW

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 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 making this evaluation, 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 quotations and

citation omitted). If the ALJ’s decision is supported by substantial evidence, 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).

III. SUMMARY OF THE ALJ’S DECISION

To determine whether a claimant has proven that she is disabled, an ALJ

follows a five-step sequential evaluation process. The ALJ considers:

(1) whether the claimant is currently engaged in substantial gainful

activity; (2) whether the claimant has a severe impairment or

combination of impairments; (3) whether the impairment meets or

equals the severity of the specified impairments in the Listing of

Impairments; (4) based on a residual functional capacity (“RFC”)

assessment, whether the claimant can perform any of his or her past

relevant work despite the impairment; and (5) whether there are

significant numbers of jobs in the national economy that the claimant

can perform given the claimant’s RFC, age, education, and work

experience.

Winschel, 631 F.3d at 1178.

In this case, the ALJ found that Ms. Wade meets the insured status

requirements through December 31, 2019. (Doc. 6-3, p. 26). Ms. Wade has not

engaged in substantial gainful activity since June 19, 2014, the onset date. (Doc. 6-

3, p. 26). The ALJ determined that Ms. Wade suffers from the following severe

impairments: history of adhesions with pelvic/abdominal pain, history of lumbar

spondylosis with stenosis with L4 and L5 decompressive laminectomies and

foraminotomies with back pain and sciatica, degenerative joint disease of the knee,

and chronic lymphocytic leukemia in remission. (Doc. 6-3, p. 26).2 The ALJ found

that Ms. Wade suffers from the following non-severe physical impairments:

hyperlipidemia, vitamin D deficiency, tobacco use disorder, abscesses with

cellulitis, benign colon polyp, sigmoid diverticulosis, hemorrhoids, hiatal hernia

with mild erosive esophagitis, diffuse gastritis, history of MRSA infection, irritable

bowel syndrome, history of breast reduction surgery, history of bladder sling times

two, TMJ syndrome, and headaches. (Doc. 6-3, p. 30). The ALJ determined that

2 “[T]he phrase ‘spondylosis of the lumbar spine’ means degenerative changes such as

osteoarthritis of the vertebral joints and degenerating intervertebral discs (degenerative disc

disease) in the low back.” https://www.emedicinehealth.com/spondylosis/article_em.htm (last

visited July 3, 2019). Lowe back stenosis is “a narrowing of the spinal canal, compressing the

nerves traveling through the lower back into the legs.”

https://www.aans.org/en/Patients/Neurosurgical-Conditions-and-Treatments/Lumbar-Spinal-

Stenosis (last visited July 30, 2019). A decompressive laminectomy “is the most common type of

surgery done to treat lumbar (low back) spinal stenosis.”

https://www.uwhealth.org/health/topic/surgicaldetail/decompressive-laminectomy-for-lumbar-

spinal-stenosis/aa122359.html (last visited July 30, 2019). A foraminotomy is a surgery that

“enlarges the area around one of the bones in [a person’s] spinal column. The surgery relieves

pressure on compressed nerves.” https://www.hopkinsmedicine.org/health/treatment-tests-and-

therapies/foraminotomy (last visited July 30, 2019).

Ms. Wade’s anxiety, somatic symptom disorder, and depressive disorder with

dysthymic syndrome are non-severe mental impairments. (Doc. 6-3, pp. 31, 33).

Based on a review of the medical evidence, the ALJ found that Ms. Wade does not

have an impairment or combination of impairments that meets or medically equals

the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Doc. 6-3, p. 33).

The ALJ determined that Ms. Wade has the RFC to perform medium work as

defined in 20 C.F.R. § 404.1567(c) except with occasional stooping and crouching;

no right lower extremity pushing or pulling; and no climbing. (Doc. 6-3, p. 34).

“Medium work involves lifting no more than 50 pounds at a time with frequent

lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).

The ALJ concluded that Ms. Wade is able to perform her past relevant work as a

licensed practical nurse, work that Ms. Wade previously did in a nursing home,

because this position does not require work-related activities precluded by Ms.

Wade’s RFC. (Doc. 6-3, p. 38; Doc. 6-5, p. 80).3 Accordingly, the ALJ determined

3 At the administrative hearing, Ms. Wade explained that when she worked at the nursing home,

she specialized in completing and sending minimum data sets (MDSs) to Medicare and Medicaid

for payment. (Doc. 6-5, p. 80). “MDS is part of the federally mandated process for clinical

assessment of all residents in Medicare and Medicaid certified nursing homes. This process

provides a comprehensive assessment of each resident's functional capabilities and helps nursing

home staff identify health problems.” https://www.cms.gov/research-statistics-data-and-

systems/computer-data-and-systems/minimum-data-set-3-0-public-reports/index.html (last

visited July 30, 2019). The MDS position involved sitting for computer work and standing and

walking for assessing patients. (Doc. 6-5, pp. 80-81). Ms. Wade occasionally would fill in as a

that Ms. Wade has not been under a disability within the meaning of the Social

Security Act. (Doc. 6-3, p. 38).

IV. ANALYSIS

Ms. Wade argues that she is entitled to relief from the ALJ’s decision because

the ALJ did not properly evaluate her claim under the Eleventh Circuit pain standard.

(Doc. 11, p. 5). Based on its review, the Court finds that the record does not contain

substantial evidence to support the ALJ’s negative credibility determination as it

pertains to the ALJ’s conclusion that Ms. Wade can perform medium work.4

The Eleventh Circuit pain standard “applies when a disability claimant

attempts to establish disability through his own testimony of pain or other subjective

symptoms.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Coley v.

Comm’r of Soc. Sec., No. 18-11954, 2019 WL 1975989, at *3 (11th Cir. May 3,

2019). When relying upon subjective symptoms to establish disability, “the claimant

must satisfy two parts of a three-part test showing: (1) evidence of an underlying

medical condition; and (2) either (a) objective medical evidence confirming the

floor nurse. (Doc. 6-5, p. 81). The floor nurse position involved pushing a cart, giving out

medicine, and taking care of patients. (Doc. 6-5, p. 81).

4 The administrative record for Ms. Wade’s case is extensive. Large portions of the record do not

pertain to the relevant disability period (Doc. 6-11; Doc. 6-12; Doc. 6-13, p. 26-44, 75-83, 97-112;

Doc. 6-14, p. 12-13; Doc. 6-15, p. 2-16, 60-89; Doc. 6-19, p. 10-11, 29-39; Doc. 6-30, p. 4-45, 83)

or to Ms. Wade’s severe impairments (Doc. 6-13, p. 19-22, 50-62; Doc. 6-15, p. 10-16, 23-31, 36-

54, 64-81; Doc. 6-17, p. 44-48; Doc. 6-24, p. 28-73; Doc. 6-25, p. 12-20; Doc. 6-26, p. 8-14; Doc.

6-30, p. 4-45, 54-58, 63-65, 74-75).

severity of the alleged [symptoms]; or (b) that the objectively determined medical

condition can reasonably be expected to give rise to the claimed [symptoms].”

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt, 921 F.2d at

1223); Chatham v. Comm’r of Soc. Sec., No. 18-11708, 2019 WL 1758438, at *2

(11th Cir. Apr. 18, 2019) (citing Wilson). If the ALJ does not demonstrate “proper

application of the three-part standard[,]” reversal is appropriate. McLain v. Comm’r,

Soc. Sec. Admin., 676 Fed. Appx. 935, 937 (11th Cir. 2017) (citing Holt).

A claimant’s credible testimony coupled with medical evidence of an

impairing condition “is itself sufficient to support a finding of disability.” Holt, 921

F.2d at 1223; see Gombash v. Comm’r, Soc. Sec. Admin., 566 Fed. Appx. 857, 859

(11th Cir. 2014) (“A claimant may establish that he has a disability ‘through his own

testimony of pain or other subjective symptoms.’”) (quoting Dyer v. Barnhart, 395

F.3d 1206, 1210 (11th Cir. 2005)). If an ALJ rejects a claimant’s subjective

testimony, the ALJ “must articulate explicit and adequate reasons for doing so.”

Wilson, 284 F.3d at 1225; Coley, 2019 WL 1975989, at *3. As a matter of law, the

Secretary must accept the claimant’s testimony if the ALJ inadequately or

improperly discredits it. Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988);

Kalishek v.Comm'r of Soc. Sec., 470 Fed. Appx. 868, 871 (11th Cir. 2012) (citing

Cannon); see Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987) (“It is established

in this circuit if the Secretary fails to articulate reasons for refusing to credit a

claimant’s subjective pain testimony, then the Secretary, as a matter of law, has

accepted that testimony as true.”).

When credibility is at issue, the provisions of Social Security Regulation 16-

3p apply. SSR 16-3p provides:

[W]e recognize that some individuals may experience symptoms

differently and may be limited by symptoms to a greater or lesser extent

than other individuals with the same medical impairments, the same

objective medical evidence, and the same non-medical evidence. In

considering the intensity, persistence, and limiting effects of an

individual’s symptoms, we examine the entire case record, including

the objective medical evidence; an individual’s statements about the

intensity, persistence, and limiting effects of symptoms; statements and

other information provided by medical sources and other persons; and

any other relevant evidence in the individual’s case record.

SSR 16-3p, 2016 WL 1119029, at *4. Concerning the ALJ’s burden when

discrediting a claimant’s subjective symptoms, SSR 16-3p clarifies:

[I]t is not sufficient . . . to make a single, conclusory statement that “the

individual’s statements about his or her symptoms have been

considered” or that “the statements about the individual’s symptoms are

(or are not) supported or consistent.” It is also not enough . . . simply

to recite the factors described in the regulations for evaluating

symptoms. The determination or decision must contain specific reasons

for the weight given to the individual’s symptoms, be consistent with

and supported by the evidence, and be clearly articulated so the

individual and any subsequent reviewer can assess how the adjudicator

evaluated the individual’s symptoms.

SSR 16-3p, 2016 WL 1119029, at *10. Additionally, in evaluating a claimant’s

reported symptoms, an ALJ must consider the following factors:

(i) [the claimant’s] daily activities; (ii) [t]he location, duration,

frequency, and intensity of [the claimant’s] pain or other symptoms;

(iii) [p]recipitating and aggravating factors; (iv) [t]he type, dosage,

effectiveness, and side effects of any medication [the claimant] take[s]

or ha[s] taken to alleviate . . . pain or other symptoms; (v) [t]reatment,

other than medication, [the claimant] receive[s] or ha[s] received for

relief of . . . pain or other symptoms; (vi) [a]ny measures [the claimant]

use[s] or ha[s] used to relieve . . . pain or other symptoms (e.g., lying

flat on your back, standing for 15 to 20 minutes every hour, sleeping on

a board, etc.); and (vii) [o]ther factors concerning [the claimant’s]

functional limitations and restrictions due to pain or other symptoms.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Leiter v. Comm’r of Soc. Sec., 377 Fed.

Appx. 944, 947 (11th Cir. 2010).

The ALJ found that Ms. Wade’s medical records and daily activities do not

support her testimony regarding her subjective pain and limitations. (Doc. 6-3, pp.

35-37). An ALJ may discount a claimant’s pain based on conflicting evidence in

medical records and in reports of daily activities. See Crow, 571 Fed. Appx. at 808

(“Given Crow’s quick and sustained improvement using prednisone, and daily

activity that indicated a greater capacity for work than alleged, the ALJ made a

clearly articulated credibility finding that was supported by substantial evidence.”)

(citing Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995)); Loveless v. Massanari,

136 F. Supp. 2d 1245, 1249-1250 (N.D. Ala. 2001) (affirming the ALJ’s decision to

discredit the claimant’s subjective pain testimony because it did not align with the

claimant’s objective medical evidence and reported daily activities). Accordingly,

the Court first examines Ms. Wade’s testimony and then compares her testimony to

the medical evidence in the record and to the evidence relating to her daily activities.

A. Ms. Wade’s Testimony

At the administrative hearing on August 2, 2017, Ms. Wade testified that she

was 58 years old. (Doc. 6-5, pp. 69, 78, 79). Ms. Wade stopped working in 2014

because she did not recover well from a surgical procedure (pelvic), and she began

experiencing back problems which required additional surgery. (Doc. 6-5, pp. 74-

75). Ms. Wade stated that she suffered from back, abdominal, and knee pain, and

she lacked energy. (Doc. 6-5, pp. 75, 78).5 Ms. Wade stated that her pain and fatigue

prevented her from working. (Doc. 6-5, pp. 75, 78). Ms. Wade was using a pain

management plan to treat her pain, taking oxycodone (20 mg) four times daily. (Doc.

6-5, p. 76).6 Medication helped Ms. Wade manage her pain, but she reported that

medication did not eliminate her pain. (Doc. 6-5, p. 76).

On a scale of one to ten – with ten being pain so severe a person would need

to go to the emergency room – at the administrative hearing, Ms. Wade rated her

pain as a six with rest and medication. (Doc. 6-5, p. 76). Ms. Wade stated that her

pain increased to eight with activity. (Doc. 6-5, p. 76). Ms. Wade stated that she

was most comfortable in a recliner and reclined “four and a half to five hours” daily

to manager her pain. (Doc. 6-5, p. 77). Ms. Wade has received pain injections for

5 Ms. Wade’s leukemia is currently in remission. (Doc. 6-5, p. 78). Still, she has to be careful

about sores and infection. (Doc. 6-5, p. 78).

6 Doctors prescribe oxycodone “to treat moderate to severe pain.”

https://www.goodrx.com/oxycodone-acetaminophen/images (last visited June 28, 2019).

her back and knees. (Doc. 6-5, p. 78). Ms. Wade stated that the last knee injections

before the administrative hearing helped a little bit, but other pain procedures did

not. (Doc. 6-5, p. 78).

Ms. Wade and her husband have three children ages ten, six, and five. (Doc.

6-5, p. 76). Ms. Wade does household chores with a lot of help from her husband.

(Doc. 6-5, p. 76). Her oldest child helps too. (Doc. 6-5, p. 77).

Ms. Wade breaks up chores because of her pain: “Yeah, it takes a little bit,

you know. I’ll go and I’ll sweep … then I go and I rest because it’ll stir my back

up.” (Doc. 6-5, p. 76). Ms. Wade drives her children to and from school, which is

a quarter mile from home. (Doc. 6-5, p. 76). She drives herself and her children to

doctor’s appointments. (Doc. 6-5, pp. 76-77). Ms. Wade testified that she

occasionally shops for groceries, but her “husband does the most part.” (Doc. 6-5,

p. 77).

B. Medical Records

Ms. Wade maintains that the ALJ did not consider the totality of her medical

records when making his determination about her credibility, and she argues that the

medical records that the ALJ overlooked are consistent with her pain testimony.

(Doc. 11, p. 7); see Chambers v. Astrue 671 F. Supp. 2d 1253, 1258 (N.D. Ala. 2009)

(An ALJ “cannot pick and choose among a doctor’s records to support his own

conclusion.”). The record supports Ms. Wade’s argument. The ALJ identified

pieces of objective evidence which, in isolation, call into question Ms. Wade’s

testimony about the intensity of her pain. But the ALJ ignored evidence that

undermines his conclusion that Ms. Wade can perform medium work.

The ALJ discussed Ms. Wade’s medical records from the Alabama Pain

Physicians, The Birmingham Pain Center (BPC), Dr. Jack Denver, Dr. Joanne

Rossman of Alabama Oncology, and Dr. Dallas Russell covering the disability

period from June 2014 to May 2017. (Doc. 6-3, p. 27-29). The ALJ determined that

medical records support Ms. Wade’s reported impairments, but the records do not

indicate a disabling degree of pain or limitations. (Doc. 6-3, p. 34-35).7 The ALJ

stated that the records show that Ms. Wade’s “pain has improved with treatment[.]”

(Doc. 6-3, p. 35). That is true. The ALJ also relied on Ms. Wade’s testimony that

medication has helped with pain. (Doc. 6-3, p. 35). That is true too, but that does

not mean that substantial evidence supports the ALJ’s finding that Ms. Wade can

perform medium work.

Ms. Wade’s medical records indicate that she had pelvic surgery in 2012 to

remove a mass. (Doc. 6-12, p. 84). In August of 2013, Ms. Wade’s primary care

physician, Dr. Livingston, referred her to the Alabama Pain Physicians for pelvic

7 In Early v. Astrue, 481 F. Supp. 2d 1233 (N.D. Ala. 2007), a district court determined that an

ALJ’s similarly worded interpretation of the pain standard’s third prong was improper. See Early,

481 F. Supp. 2d at 1238. The third prong requires the ALJ to evaluate whether “‘the objectively

determined medical condition is of such severity that it can be reasonably expected to give rise to

the alleged pain.’” Early, 841 F. Supp. 2d at 1238 (quoting Foote, 67 F.3d at 1560).

pain. (Doc. 6-12, pp. 83, 84). Post-surgery scar tissue was causing Ms. Wade

“aching, stabbing, sharp, shooting, [and] throbbing” pain primarily in her left pelvic

region. (Doc. 6-12, p. 84). Ms. Wade described her pain as seven generally and

nine at worst. (Doc. 6-12, p. 84). “[S]itting, standing, physical activity,

coughing/sneezing . . . . [and] [s]tretching” worsened Ms. Wade’s pain. (Doc. 6-12,

p. 84). Medication and lying down in a fetal position helped Ms. Wade’s pain. (Doc.

6-12, p. 84). The Alabama Pain Physicians also treated Ms. Wade for knee pain in

2013. (See Doc. 6-12, pp. 93, 94) (October 3, 2013 treatment record referencing

pelvic and knee pain); (Doc. 6-12, pp. 99, 100) (October 25, 2013 treatment record

referencing pelvic and knee pain).

The Alabama Pain Physicians continued to treat Ms. Wade for pelvic pain in

2014. In January 2014, medication had improved Ms. Wade’s pelvic pain by 65%.

(Doc. 6-12, pp. 31, 32). Ms. Wade’s ability to perform daily activities had increased.

(Doc. 6-12, p. 32). Ms. Wade reported no severe side effects from her medication.

(Doc. 6-12, p. 39).

Ms. Wade also reported back pain in 2014. (See Doc. 6-12, pp. 46, 47)

(February 11, 2014 treatment record referencing abdominal and back pain); (Doc. 6-

12, pp. 52, 53) (March 5, 2014 treatment record referencing abdominal and back

pain); (Doc. 6-12, pp. 58, 59) (April 1, 2014 treatment record referencing abdominal

and back pain). In March of 2014, Dr. Martin, a pain doctor, gave Ms. Wade a

lumbar transforaminal epidural steroid injection. (Doc. 6-12, pp. 89, 92).8 Ms.

Wade’s back pain score did not change after the procedure. (Doc. 6-12, p. 91). Dr.

Martin scheduled Ms. Wade for a pudendal nerve block. (Doc. 6-12, p. 92).9 Dr.

Martin gave Ms. Wade another ESI in April 2014. (Doc. 6-12, p. 75). Ms. Wade

reported a pain score of seven and a half before the injection and a four afterwards.

(Doc. 6-12, p. 76).

In June of 2014, Ms. Wade’s condition deteriorated. She was experiencing

constant pelvic pain. (Doc. 6-12, pp. 77, 78). Medication reduced Ms. Wade’s pain

by 40%. (Doc. 6-12, p. 78). Ms. Wade described her pain as “aching, sharp, burning,

throbbing and deep.” (Doc. 6-12, p. 78). “[A]ctivity, inactivity, sitting, standing,

walking, twisting, [and] bending” aggravated Ms. Wade’s pain. (Doc. 6-12, p. 78).

Ms. Wade reported no symptoms associated with her pain. (Doc. 6-12, p. 78).

Despite the pain, Ms. Wade’s ability to work and perform daily activities had

improved. (Doc. 6-12, p. 78).

8 “Epidural Steroid Injections (ESIs) are a common method of treating inflammation associated

with low back related leg pain, or neck related arm pain. In both of these conditions, the spinal

nerves become inflamed due to narrowing of the passages where the nerves travel as they pass

down or out of the spine.” https://www.spine.org/KnowYourBack/Treatments/Injection-

Treatments-for-Spinal-Pain/Epidural-Steroid-Injections (last visited July 2, 2019).

9 “The pudendal nerve is found in the pelvis.” https://www.healthline.com/human-body-

maps/pudendal-nerve#1 (last visited July 2, 2019).

In October 2014, Ms. Wade had back surgery to address her degenerative disc

disease and spinal canal narrowing. (Doc. 6-13, p. 6). During a November 2014

visit with Dr. Chambers, a physician with UAB’s Neurosurgery Clinic, Ms. Wade

reported that she was doing well after her back surgery and that her “preoperative

leg pain [had] resolved.” (Doc. 6-13, p. 7). But Ms. Wade was experiencing

“intermittent, moderately severe (7/10) left low back pain with occasional

‘heaviness’ in her lower extremities.” (Doc. 6-13, p. 7).

Ms. Wade’s primary care physician, Dr. Livingston, referred Ms. Wade to Dr.

Chang with the BPC for an evaluation. (Doc. 6-17, pp. 14, 19). During her new

patient visit with Dr. Chang in January 2015, Ms. Wade reported that her back and

leg pain were worse than her pelvic and right knee pain. (Doc. 6-17, p. 14).

Although surgery had improved her back pain, Ms. Wade had fallen and reinjured

her back in November 2014. (Doc. 6-17, p. 14). Afterwards, Ms. Wade’s back pain

was “constant” and “stabbing, shooting, dull[ing], aching, pressure [causing],

burning and tingling in quality.” (Doc. 6-17, p. 14). Ms. Wade rated her pain “as 8

out [of] 10 currently” and “rang[ing] from a best of 5 out of 10 to a worst of 10 out

of 10 in intensity[.]” (Doc. 6-17, p. 14).

Ms. Wade described having “persistent deep pelvic pain over time” after

multiple abdominal procedures and knee pain for several years after tearing a

ligament. (Doc. 6-17, p. 14). Ms. Wade stated that she had experienced weakness

and occasional buckling in her right knee. (Doc. 6-17, p. 14). Ms. Wade did not

recall receiving knee imaging or injections for pain. (Doc. 6-17, p. 14).

Based on her medical history and clinical evaluation, Dr. Chang found that

Ms. Wade “suffers from chronic pain from multiple locations.” (Doc. 6-17, p. 18).

Dr. Chang identified post-laminectomy syndrome, lumbar spondylosis, lumbar disc

degeneration, thoracic neuritis, right knee joint pain, and chronic pain syndrome as

sources of Ms. Wade’s pain. (Doc. 6-17, p. 6).10

Dr. Chang developed a plan to address Ms. Wade’s back and leg pain. (Doc.

6-17, p. 18). Dr. Chang started Ms. Wade on several medications including Amrix

(a muscle relaxant), Cymbalta (a pain reliever and anti-depressant), “Oxycontin

15mg BID [twice daily,] and Percocet 10mg 325mg BID [twice daily] for

breakthrough [pain].” (Doc. 6-17, p. 18).11

Dr. Chang and other BPC personnel treated Ms. Wade throughout 2015 and

part of 2016. (See Doc. 6-16, p. 2) (listing 2015 BPC dates); (Doc. 6-22, p. 2)

10 Neuritis is “an inflammatory or degenerative lesion of a nerve marked especially by pain[.]”

https://www.merriam-webster.com/dictionary/neuritis (last visited July 30, 2019). Thoracic refers

to the spinal nerves within the thoracic region—the “cavity in which the heart and lungs lie[.]”

https://www.merriam-webster.com/medical/thoracic%20nerve (last visited July 30, 2019);

https://www.merriam-webster.com/dictionary/thorax (last visited July 30, 2019).

11 “Amrix (cyclobenzaprine hcl) is a muscle relaxant used together with rest and physical therapy

to treat skeletal muscle conditions such as pain or injury.” https://www.rxlist.com/amrix-side-

effects-drug-center.htm (last visited June 20, 2019). Cymbalta or duloxetine treats chronic back

pain, depression, and anxiety. https://www.webmd.com/drugs/2/drug-91491/cymbalta-

oral/details (last visited June 20, 2019).

(submitting BPC records from 2015 through 2016). Ms. Wade underwent an

epidural steroid injection for back pain in February 2015. (See Doc. 6-16, pp. 39-

45, 47-48, 50) (documents related to February 4, 2015 pain procedure).

In March 2015, Ms. Wade reported to Dr. Chang that “Cymbalta was not

relieving any of her pain.” (Doc. 6-16, p. 19). Dr. Chang adjusted Ms. Wade’s

medications by substituting Topamax for Cymbalta and returning her to Celexa.

(Doc. 6-16, p. 19). Ms. Wade underwent a nerve block procedure. (See Doc. 6-16,

pp. 15, 21, 24-25) (documents related to March 25, 2015 pain procedure).

Ms. Wade left a message in May 2015 that “her pain medication was not

working” and requested an appointment. (Doc. 6-16, p. 3). The medical record does

not indicate whether Dr. Chang saw Ms. Wade or adjusted her pain medication after

this call.

During a visit in August 2015, Ms. Wade rated her pain as a seven out of ten.

(Doc. 6-23, p. 45). Ms. Wade reported no problems with the effectiveness of her

pain medications. (See Doc. 6-23, p. 45) (circling “Excellent” and indicating that

“meds [and] rest” make pain better on August 11, 2015 intake form). In the

beginning of September 2015, Ms. Wade’s pain level had increased to nine. (Doc.

6-23, p. 35). Ms. Wade was experiencing a good degree of effectiveness with her

medications. (Doc. 6-23, p. 35) (circling “Good” and indicating that “med[s] [and]

rest” make pain better on September 10, 2015 intake form). Later in September, Ms.

Wade’s pain level remained a nine. (Doc. 6-23, p. 20). Still, Ms. Wade had no

concerns about her medications. (See Doc. 6-23, p. 20) (circling “Excellent” and

indicating that “meds” make pain better on September 28, 2015 intake form).

During an October 2015 visit, Ms. Wade again reported her pain level as a

nine. (Doc. 6-23, p. 10). Ms. Wade rated the effectiveness of her medications as

good. (See Doc. 6-23, p. 10) (circling “Good” and indicating that “meds” make pain

better on October 19, 2015 intake form). Ms. Wade described her pain as eight and

a half in November 2015. (Doc. 6-22, p. 96). Ms. Wade’s medications were above

good in terms of effectiveness. (See Doc. 6-22, p. 96) (circling area in between

“Good” and “Excellent” and indicating that “meds [and] rest” make pain better on

November 16, 2015 intake form).

In December 2015, Ms. Wade’s pain had decreased to an eight. (Doc. 6-22,

p. 86). Ms. Wade reported that her medications were good at relieving pain. (See

Doc. 6-22, p. 86) (circling “Good” and indicating that “meds [and] rest” make pain

better on December 15, 2015 intake form).

Ms. Wade’s BPC intake records from 2016 contain similar descriptions of her

pain. (See Doc. 6-22, p. 74) (reporting eight and a half as current level, five as best,

and nine as worst; circling “Good” and indicating that “meds [and] rest” make pain

better on January 13, 2016 intake form); (Doc. 6-22, p. 63) (reporting eight as current

level, six as best, and nine as worst; circling “Good” and indicating that “meds, rest[,

and] heat” make pain better on February 11, 2016 intake form); (Doc. 6-22, p. 52)

(reporting seven as current level, five as best, and nine as worst; circling “Good” and

indicating that “meds [and] rest” make pain better on March 10, 2016 intake form).

Dr. Chang noted during the March 2016 visit that Ms. Wade’s “pain [is] stable on

current treatment regime.” (Doc. 6-22, pp. 54, 57).

Ms. Wade rarely reported side effects from her medications. (See Doc. 6-23,

p. 45) (circling “Sleepiness” and listing “edema” and “cough” as side effects); (Doc.

6-23, p. 35) (checking “NONE”); (Doc. 6-23, p. 20) (circling “NONE”); (Doc. 6-23,

p. 10) (circling “NONE”); (Doc. 6-22, p. 96) (checking “NONE” but also noting

“RT OTHER” urination issue); (Doc. 6-22, p. 86) (checking “NONE”); (Doc. 6-

22, p. 74) (checking “NONE”); (Doc. 6-22, p. 63) (checking “NONE”); (Doc. 6-22,

p. 52) (checking “NONE”).

In May 2016, Mallory Booth, a BPM certified physician assistant, saw Ms.

Wade. (Doc. 6-22, p. 6). Ms. Booth noted that Ms. Wade had an antalgic gait. (Doc.

6-22, p. 9).12 Still, Ms. Wade walked without a limp or an assistive device. (Doc.

6-22, p. 9). Ms. Booth provided the following assessment:

Patient has consistently had compliance issues, and was told at the last

visit that we will be holding a “zero tolerance” policy with her. We

were unable to count all her medication since some of her pills were

crushed. In just the past few visits, she has been overtaking her meds

12 Antalgic means “marked by or being an unnatural position or movement assumed by someone

to minimize or alleviate pain or discomfort (as in the leg or back)[.]” https://www.merriam-

webster.com/medical/antalgic (last visited June 28, 2019).

or have had them stolen by friends/family. The controlled substance

agreement that she (and all patients) signed at her new patient [visit]

explains that she is responsible for all lost, stolen, or damaged

medication. Since her medication today was partly damaged, and we

cannot adequately determine compliance, we have no choice but to

discontinue opioids. She was given a list of other pain management

providers around, and instructed how to titrate off the medication she

has now. Clonidine rx’d for withdrawal side effects if she suffers from

any. She asked to try Lyrica. She had issues with edema in the past

with Lyrica, so we will start her out on 50mg 1qd [once daily] for a

week (and titrate down off [T]opamax by 50mg 1qd for 7 days). She

will then increase the Lyrica by 1 pill qd for a week until she can

tolerate Lyrica 50mg QID [four times daily]. If she has issues with

edema, we can go back to the [T]opamax.

(Doc. 6-22, p. 9).

Dr. Chang expressed similar concerns about Ms. Wade’s non-compliance

with opiate treatment:

Ms. Wade has demonstrated compliance issues as detailed above on

multiple occasions. We have till [sic] this point tried to establish

parameters under which she may have been successful, if she were only

able to comply with . . . those boundaries, but she has not been able to

do so. Today, we have no choice but to discontinue the controlled

medications. We can continue to prescribe her non-opiate pain

medications and employ interventional procedures. However, at this

point, there really is no recourse in terms of restarting her opiates in the

future.

(Doc. 6-22, p. 9).

Ms. Wade stopped treatment with the BPC and began seeing Dr. Denver for

pain management in October 2016. (Doc. 6-20, p. 26; Doc. 6-21, pp. 2-6). Ms.

Wade continued to report pelvic, back, and knee pain. (Doc. 6-21, p. 2). Ms. Wade

rated her pelvic pain as a seven to eight and her back pain as a seven. (Doc. 6-21, p.

2). Ms. Wade reported that her back surgery did not provide much help. (Doc. 6-

21, p. 2). She described her knee pain as “aching, grinding, and tight.” (Doc. 6-21,

p. 2).

In November 2016, Dr. Denver prescribed Ms. Wade oxycodone (15 mg) for

pain management. (Doc. 6-20, pp. 21, 23). Ms. Wade reported in December 2016

that the oxycodone gave her two and a half hours of relief “with 50% pain

reduction.” (Doc. 6-20, p. 16). She noted that the oxycodone “is not more effective

than Percocet 10 mg.” (Doc. 6-20, p. 16). Neither medication provided Ms. Wade

“enough relief.” (Doc. 6-20, p. 16). Ms. Wade rated her pain as a seven with six the

best, seven the average, and eight the worst. (Doc. 6-20, p. 16). Despite her pain,

Ms. Wade reported “caring for 3 children” and “constantly cleaning the house and

cooking.” (Doc. 6-20, pp. 16-17).

During a visit in early January 2017, Ms. Wade’s pain level was eight. (Doc.

6-20, p. 11). Ms. Wade reported fluctuating pain over the 30 preceding days with

six as the best, seven as the average, and eight as the worst. (Doc. 6-20, p. 11). Dr.

Denver’s assessments included chronic intractable pain, pelvic and perineal pain,

back pain, and degenerative disc disease. (Doc. 6-20, p. 12). Dr. Denver increased

Ms. Wade’s oxycodone strength from 15 to 20 mg to better manage Ms. Wade’s

pain. (Doc. 6-20, pp. 11, 12).

Ms. Wade described her sleep as “not restful.” (Doc. 6-20, p. 11). Ms.

Wade’s pain “mildly limited sexual activity and hobbies[;] moderately limit[ed]

walking[,] bending[,] lifting[,] and sitting[;] and severely limit[ed] running[,] stair

climbing[,]and working.” (Doc. 6-20, p. 11).

At the end of January 2017, Ms. Wade reported that three was her “[c]urrent

pain score” and that she had “much better control now with her current medications.”

(Doc. 6-20, p. 3). During the month of January 2017, three was Ms. Wade’s best

pain level, four was the average, and eight was the worst. (Doc. 6-20, p. 3). Ms.

Wade expressed being “definitely better” on oxycodone (20 mg) four times daily

with the exception of some pain waking her up at night. (Doc. 6-20, p. 3); (see also

Doc. 6-20, p. 5) (noting that “[d]osing to 20 mg of oxycodone has definitely

improved [back] pain control . . . . [except for] some breakthrough pain in the middle

of the night”).

Ms. Wade’s pain continued to “mildly limit[]walking, sitting, sexual activity,

and hobbies; moderately limit[] bending[,] lifting, and stair climbing; and severely

limit[] running and working.” (Doc. 6-20, p. 3). “Activity and stress increased

pain.” (Doc. 6-20, p. 3). “Medications and rest decreased pain.” (Doc. 6-20, p. 3).

Dr. Denver recommended physical therapy and believed “a therapeutic

exercise program could provide the difference to improve pain control.” (Doc. 6-

20, p. 5). Ms. Wade responded that she lacked “time or money to pursue this.” (Doc.

6-20, p. 5).

In March 2017, Dr. Denver continued to treat Ms. Wade for chronic pain.

(Doc. 6-21, p. 22). Ms. Wade reported six as her pain level with a best of four, an

average of six, and a worst of eight and a half. (Doc. 6-21, p. 22). Ms. Wade’s pain

increased with activity and decreased with rest and medications. (Doc. 6-21, p. 22).

Ms. Wade described “aching and burning” pain “with some stabbing in both knees

as well as in the lower abdominal region.” (Doc. 6-21, p. 22). Ms. Wade felt

“aching[,] stabbing and burning in [her] lower back with radiation into the lower left

extremity.” (Doc. 6-21, p. 22).

Ms. Wade returned to Dr. Denver in May 2017 for chronic lower back pain

and degenerative joint disease. (Doc. 6-30, p. 58). Dr. Denver reported that

oxycodone relieved Ms. Wade’s pain by 60% for hours without side effects. (Doc.

6-30, p. 58). Ms. Wade continued to take tizanidine (4 mg) for lower back pain

without side effects. (Doc. 6-30, pp. 58, 60).13

Dr. Rossman is an oncologist who treated Ms. Wade’s chronic lymphocytic

leukemia (CLL) of B-cell type. (Doc. 6-18, pp. 16, 18). In March 2015, Dr.

Rossman reported that Ms. Wade has “had CLL for probably 10 years and will likely

13 “Tizanidine is a short-acting muscle relaxer. It works by blocking nerve impulses (pain

sensations) that are sent to [a person’s] brain.” https://www.drugs.com/tizanidine.html (last visited

July 3, 2019).

never need therapy for it.” (Doc. 6-18, p. 33). Dr. Rossman noted during a follow-

up visit in March 2016 that Ms. Wade’s CLL had been in remission since October

2015. (Doc. 6-18, p. 16).

In August 2016, Ms. Wade contacted Dr. Rossman’s office and explained she

was having trouble affording visits to the pain clinic. (Doc. 6-21, p. 53). Dr.

Rossman’s office contacted the pain clinic, obtained more information, and left a

voicemail message for Ms. Wade. (Doc. 6-21, p. 53). Ms. Wade called Dr.

Rossman’s office back and indicated that she would “call the pain clinic [to] see if

[it] will work with her on payments so she can go.” (Doc. 6-21, p. 53). As of March

2017, Dr. Rossman found no evidence that Ms. Wade’s chronic CLL had progressed.

(Doc. 6-30, pp. 51, 52).

Ms. Wade saw Dr. Russell in February 2017 for a consultative examination at

the Commissioner’s request. (Doc. 6-21, p. 8). Dr. Russell diagnosed Ms. Wade

with chronic back pain, left leg sciatica, chronic abdominal pain, dysesthesias,

chronic pelvic and perineal pain, multiple abdominal procedures with scar tissue,

chronic lymphocytic leukemia, MRSA infection in the past, gastritis, irritable bowel

syndrome, right knee injury with PCL injury, breast reduction surgery, bladder sling

(two times); abscesses (three times); tobacco use, TMJ syndrome, immunoglobulin

deficiency, depression, and headaches. (Doc. 6-21, p. 11).14

Dr. Russell identified back and pelvic pain as two of Ms. Wade’s chief

complaints. (Doc. 6-21, p. 8). Ms. Wade reported that her back pain “is pretty much

constant” and “can be sharp and aching in nature.” (Doc. 6-21, p. 8). Ms. Wade

indicated that back surgery had not been helpful. (Doc. 6-21, p. 8). When Ms. Wade

turned her back, she had “a crunching-like sensation.” (Doc. 6-21, p. 8). “[F]airly

frequently[,]” Ms. Wade’s back pain would “radiate[] down the left leg all the way

to the foot that is sharp in nature.” (Doc. 6-21, p. 8). Dr. Russell found that this back

pain limited Ms. Wade’s ability to carry, lift, walk, and stand. (Doc. 6-21, p. 8). Ms.

Wade rated her back pain with medications as six out of ten; without medication as

about an eight. (Doc. 6-21, p. 8).

Ms. Wade reported having constant abdominal and pelvic pain. (Doc. 6-21,

p. 9). Ms. Wade rated this pain as a seven with medication and a nine without

medication. (Doc. 6-21, p. 9). Sometimes that pain was “a deep, aching sensation

particularly in the left lower quadrant”; other times it was “sharp and stabbing[.]”

(Doc. 6-21, p. 9).

14 Ms. Wade’s chronic lymphocytic leukemia is the likely source of her recurrent MRSA infection

(Methicillin-Resistant Staphylococcus Aureus). (Doc. 6-18, p. 33). Temporomandibular Joint

Syndrome, or TMJ, causes pain in the jaw joint and pain in the muscles that control the jaw. See

https://www.mayoclinic.org/diseases-conditions/tmj/symptoms-causes/syc-20350941 (last visited

May 28, 2019).

Dr. Russell reported that Ms. Wade had no trouble getting on and off the

examination table and had normal strength. (Doc. 6-21, pp. 10, 11). Dr. Russell

found that Ms. Wade’s range of motion in her back and her gait were abnormal.

(Doc. 6-21, p. 10). Dr. Russell observed tenderness in Ms. Wade’s right knee and

back. (Doc. 6-21, p. 10).

Dr. Russell concluded that Ms. Wade’s fine motor skills, handling, fingering,

gripping, feeling, and reaching were normal. (Doc. 6-21, p. 11). Dr. Russell

determined that Ms. Wade “would be sensitive to environmental exposures” and

would have difficulty or trouble with carrying, lifting, pushing, pulling, sitting,

standing, walking, climbing, stooping, bending, crawling, kneeling, and crouching.

(Doc. 6-21, p. 11). In a “Medical Source Statement of Ability To Do Work-Related

Activities (Physical)” form, Dr. Russell reported that Ms. Wade could occasionally

lift and carry up to ten pounds, but never lift or carry more than ten pounds. (Doc.

6-21, p. 15). Dr. Russell restricted the hours that Ms. Wade could sit without

interruption to two; stand and walk without interruption to one. (Doc. 6-21, p. 16).

During a full work day, Ms. Wade could sit for four hours, stand for three, and walk

for two. (Doc. 6-21, p. 16). Dr. Russell limited to occasionally Ms. Wade’s ability

to use her hands to push or pull. (Doc. 6-21, p. 17).

Though Dr. Russell found that Ms. Wade was unable to perform more than a

range of sedentary work, the ALJ rejected Dr. Russell’s opinion as inconsistent with

other medical records and reported daily activities. (Doc. 6-3, p. 37).15 But there

are no other medical records that describe the amount of weight that Ms. Wade can

carry or the number of hours she can stand. The ALJ reasoned that because the

Alabama Pain Physicians, the BPC, and Dr. Denver did not restrict Ms. Wade’s

physical functioning, Dr. Russell’s findings were inconsistent with “the claimant’s

longitudinal treating medical records[.]” (Doc. 6-3, p. 37).

Eleventh Circuit precedent does not permit an ALJ to discredit an

uncontradicted finding based only on silence in medical records. As the Eleventh

Circuit has instructed “[s]uch silence is equally susceptible to either [disability]

inference, therefore, no inference should be taken.” Lamb v. Bowen, 847 F.2d 698,

703 (11th Cir. 1988); see also Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir.

1982) (“An administrative law judge may not arbitrarily reject uncontroverted

medical testimony.”) (citing Goodley v. Harris, 608 F.2d 234 (5th Cir. 1979)).16

The ALJ relied on no medical opinion in concluding that Ms. Wade could

physically handle medium work. See Graham v. Bowen, 786 F.2d 1113, 1115 (11th

15 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or

carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as

one which involves sitting, a certain amount of walking and standing is often necessary in carrying

out job duties. Jobs are sedentary if walking and standing are required occasionally and other

sedentary criteria are met.” 20 C.F.R. § 404.1567(a).

16 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh

Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to October 1, 1981.

Cir. 1986) (reversing because the ALJ substituted his lay opinion about the

claimant’s gait for the medical evidence showing more than a moderate limitation);

Storey v. Berryhill, ___ Fed. Appx. ___, No. 17-14138, 2019 WL 2480135, at *8

(11th Cir. June 13, 2019) (citing Graham and observing that “it is generally improper

for an ALJ to substitute his own judgment for that of a medical expert because ALJs

are not medical experts”). The vocational expert testified that medium work would

require two hours of uninterrupted standing and/or walking and usually eight hours

for an entire shift. (Doc. 6-5, p. 87). Dr. Russell’s opinion indicates that Ms. Wade

cannot fulfill the physical demands of medium work, and there are no medical

records that suggest that she can perform medium work. Consequently, the ALJ’s

decision to give Dr. Russell’s opinion “little weight” finds little support in the record.

(Doc. 6-3, p. 37).

Here, the Court finds that the totality of the objective medical evidence

substantiates Ms. Wade’s credibility. Ms. Wade’s medical records demonstrate that

she had pelvic surgery to remove a mass which caused scaring, she underwent

surgery and other procedures to address her back pain, and she suffers from

degenerative back and knee conditions. See Kent v. Sullivan, 788 F. Supp. 541, 544

(N.D. Ala. 1992) (“When all the evidence is considered Mr. Kent was clearly

suffering from several medically determined impairments that could reasonably be

expected to produce the pain he described.”). For years, Ms. Wade sought treatment

to relieve her pelvic, back, and knee pain. See Collins v. Astrue, No. 2:06-CV-365-

FTM-DNF, 2008 WL 477802, at *6 (M.D. Fla. Feb. 19, 2008) (“The Plaintiff’s back

problems have been documented throughout the record and by accepted diagnostic

tests.”); see also Moody v. Barnhart, 295 F. Supp. 2d 1278, 1284 (N.D. Ala. 2003)

(“Without question severe degenerative disc disease can cause disabling pain.”)

(citing Jenkins v. Sullivan, 906 F.2d 107, 109 (4th Cir. 1990) (noting that

degenerative disc disease is a condition that could reasonably be expected to produce

disabling pain)); Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (“cervical

nerve root compression syndrome . . . scoliosis and degenerative disc disease” are

impairments that could reasonably be expected to cause . . . pain”)).

The objective evidence shows that Ms. Wade has experienced some relief with

medication. (See Doc. 6-9, pp. 69-79) (pharmacy records from 2015 to 2017

documenting regular oxycodone refills). But the improvement in Ms. Wade’s

chronic pain has not been linear—Ms. Wade’s pain has fluctuated. For example,

Ms. Wade experienced some pain relief after Dr. Denver increased her oxycodone

to 20 mg in January 2017. Ms. Wade reported a pain score of three. By March 2017,

Ms. Wade’s pain level had returned to a six. Ms. Wade’s records contain evidence

that Ms. Wade may have addiction issues relating to her opioid pain medication, but

no physician has suggested that Ms. Wade does not need significant pain treatment.

The ALJ did not identify objective medical evidence that indicates that Ms.

Wade is exaggerating her subjective symptoms to the extent that she is able—

despite her severe pelvic, back, and knee impairments—to perform medium work,

lifting up to 50 pounds and regularly lifting up to 25 pounds. See Stricklin v. Astrue,

493 F. Supp. 2d 1191, 1197 (N.D. Ala. 2007) (“That the plaintiff’s medications were

helping relieve his symptoms does not follow to the ALJ’s conclusion that the

plaintiff’s symptoms were reduced to the point w[h]ere he could maintain full-time

employment.”) (alternation added); see also SSR 96-8p, 1996 WL 374184, at *1

(“Ordinarily, RFC is an assessment of an individual’s ability to do sustained work-

related physical and mental activities in a work setting on a regular and continuing

basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or

an equivalent work schedule.”). Thus, the objective evidence does not support the

ALJ’s determination that Ms. Wade’s pain does not preclude medium work. Cf.

Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981) (“An ALJ may not make purely

speculative inferences from medical reports.”).

C. Daily Activities

When examining daily activities, an ALJ must consider the record as a whole.

See, e.g., Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (faulting the

Appeals Council’s 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”); Martz v. Comm’r of Soc. Sec., 649

Fed. Appx. 948, 957 (11th Cir. 2016). The Eleventh Circuit has recognized that

“participation in everyday activities of short duration” will not prevent a claimant

from proving disability. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997).

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, e.g., 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 may suffer from a severe impairment); Smith, 637 F.2d at 971-72

(“[S]poradic or transitory activity does not disprove disability.”).

Ms. Wade argues that the ALJ improperly evaluated her daily activities

because he did not discuss “her limiting description of them.” Horton v. Barnhart,

469 F. Supp. 2d 1041, 1047 (N.D. Ala. 2006). The ALJ summarized the daily

activity evidence this way:

The claimant reported in her function report that she cared for children,

prepared meals, did housework, drove daily, shopped in stores, and

watched television. In addition, the claimant reported no problems with

her memory, completion of tasks, concentration, understanding,

following instructions, or getting along with others. She reported that

she could pay attention as long as needed (no problems), could finish

what she started, and could follow instructions very well. The claimant

reported to Dr. Neville [a consultative psychologist] that she cared for

children, cooked, did laundry, drove, and shopped for groceries.

Although the claimant testified that she spent up to five hours each day

in a recliner, and had a significant[] limitation of ability to lift, carry,

sit, stand, and walk, these allegations are not consistent with her treating

medical records or with the activities she has previously reported. In

addition, her treating medical records do not indicate that she had had

significant medication side effects. The claimant’s reported daily

activities are not consistent with disabling pain or limitations.

(Doc. 6-3, pp. 36-37; Doc. 6-17, p. 48).

The ALJ’s discussion of the daily activity evidence omits several limitations

which Ms. Wade described in her testimony at the administrative hearing. For

example, Ms. Wade indicated that on a normal morning, she “sit[s] down until [she]

ha[s] energy to do anything” and that during the day she is “usually sitting.” (Doc.

6-9, p. 30). Ms. Wade’s husband regularly brings something home for dinner or

cooks. (Doc. 6-9, pp. 30, 32). Ms. Wade provides simple breakfast and lunch items

for her children and no longer prepares complete meals. (Doc. 6-9, pp. 32, 31).

Ms. Wade watches her children when they are home and her husband is at

work. (Doc. 6-9, p. 31). Ms. Wade dresses her children during the week and her

husband does that on the weekends. (Doc. 6-9, p. 31). Ms. Wade takes her children

to doctor appointments. (Doc. 6-9, p. 31). At night, Ms. Wade bathes her children.

(Doc. 6-9, pp. 30, 31). Her husband dries them off, helps them with their pajamas,

and tucks them into bed. (Doc. 6-9, pp. 30, 31). Ms. Wade’s husband takes care of

their animals. (Doc. 6-9, p. 31).

Ms. Wade cannot do yard work because it aggravates her back, knee, and

abdominal pain. (Doc. 6-9, pp. 32, 33). Ms. Wade also lacks energy for outside

work. (Doc. 6-9, p. 33). Ms. Wade cleans for up to two hours daily for one room.

(Doc. 6-9, p. 32). Ms. Wade washes one to two loads of laundry two to three days

weekly. (Doc. 6-9, p. 32). Ms. Wade washes dishes twice weekly. (Doc. 6-9, p.

32).

Ms. Wade buys groceries and items for her children. (Doc. 6-9, p. 33). She

shops biweekly, and the process takes her two hours. (Doc. 6-9, pp. 33, 34). Ms.

Wade visits her mother weekly. (Doc. 6-9, p. 34). Ms. Wade’s hobbies and interests

include reading, watching television, and playing computer games. (Doc. 6-9, p.

34).

Having considered the full scope of Ms. Wade’s daily activities, the Court

finds that caring for her herself and her children with her husband’s help, driving,

shopping biweekly, making simple meals, performing household chores with

limitations, visiting her mother weekly, reading, watching television, and playing

games “do not rule out the presence of disabling pain” that would preclude her from

performing medium work.” Horton, 469 F. Supp. 2d at 1046. “The ability to watch

television, do occasional shopping, or perform other sporadic activities does not

mean” Ms. Wade can do medium work. Horton, 469 F. Supp. 2d at 1046; see also

Lewis, 125 F.3d at 1441 (The claimant’s “participation in everyday activities of short

duration, such as housework or fishing, [did not] disqualify[y] [him] from disability

or [was] inconsistent with the limitations recommended by [his] treating

physicians.”). Consequently, substantial evidence does not support the ALJ’s

negative credibility determination.

CONCLUSION

The Court remands the Commissioner’s decision for further administrative

proceedings consistent with this memorandum opinion finding that the medium

work RFC is not supported by substantial evidence. The conclusion that Ms. Wade

can lift up to 50 pounds and frequently lift or carry 25 pounds is not supported by

substantial evidence.

The Court does not find that Ms. Wade is disabled within the meaning of the

Social Security regulations. The Court expresses no opinion in that regard. The ALJ

must determine whether Ms. Wade may be capable of light or sedentary work. The

record contains testimony from the vocational expert regarding Ms. Wade’s ability

to perform sedentary work and the transferability of her nursing skills. (Doc. 6-5,

pp. 82-89). The ALJ must examine the evidence and determine whether there are

jobs in the economy that Ms. Wade can perform.

DONE this 6th day of August, 2019.

adits Si avila _

Malini □□□

UNITED STATES DISTRICT JUDGE

34