Thompson v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

MARJORIE THOMPSON, }

}

Plaintiff, }

}

v. } Case No.: 4:17-cv-01932-MHH

}

ANDREW SAUL, Commissioner of }

the Social Security Administration,1 }

}

Defendant. }

MEMORANDUM OPINION

Pursuant to 42 U.S.C. § 405(g), plaintiff Marjorie Thompson seeks judicial

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

Commissioner denied Ms. Thompson’s claims for period of disability and disability

insurance benefits. After careful review, the Court remands the Commissioner’s

decision.

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.”).

I. PROCEDURAL HISTORY

Ms. Thompson applied for disability insurance benefits. (Doc. 6-3, p. 12;

Doc. 6-4, p. 19). She alleges her disability began on March 4, 2014. (Doc. 6-3, p.

12; Doc. 6-4, p. 19). The Commissioner initially denied Ms. Thompson’s claim.

(Doc. 6-3, p. 12; Doc. 6-4, p. 19). Ms. Thompson requested a hearing before an

Administrative Law Judge (ALJ). (Doc. 6-3, p. 19; Doc. 6-5, p. 8). The ALJ issued

an unfavorable decision. (Doc. 6-3, pp. 12-33). On October 2, 2017, the Appeals

Council declined Ms. Thompson’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, Soc. Sec. Admin., 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, Soc. Sec. Admin., 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, Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011)

(internal quotations and citation omitted). If substantial evidence supports the ALJ’s

factual findings, then the Court “must affirm even if 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 disability, 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. Thompson meets the insured status

requirements through December 31, 2018. (Doc. 6-3, p. 15). Ms. Thompson has

not engaged in substantial gainful activity since March 4, 2014, the alleged onset

date. (Doc. 6-3, p. 15). The ALJ determined that Ms. Thompson suffers from the

following severe impairments: chronic lower back pain, meningitis, left shoulder

pain, loss of visual acuity, and lower extremity neuropathy. (Doc. 6-3, p. 15).2

Based on review of the medical evidence, the ALJ found that Ms. Thompson 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. 24).

The ALJ determined that Ms. Thompson has the RFC to perform light work

as defined in 20 C.F.R. § 404.1567(b):

except for no more than occasional stooping or crouching; no climbing;

no lower extremity pushing or pulling; no work at unprotected heights;

and no driving. She is limited to simple, repetitive, non-complex tasks;

work in temperature controlled environment; no reading of fine print or

materials; and no left upper extremity overhead reaching, pushing, or

pulling.

2 “Meningitis affects the meninges, the membranes that surround the brain and spinal cord and

protect the central nervous system (CNS), together with the cerebrospinal fluid.”

https://www.medicalnewstoday.com/articles/9276.php (last visited Aug. 7, 2019). Neuropathy is

“damage, disease, or dysfunction of one or more nerves especially of the peripheral nervous system

that is typically marked by burning or shooting pain, numbness, tingling, or muscle weakness or

atrophy, [and] is often degenerative[.]” https://www.merriam-webster.com/dictionary/neuropathy

(last visited Aug. 7, 2019).

(Doc. 6-3, p. 26). “Light work involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §

404.1567(b). The ALJ concluded that Ms. Thompson is unable to perform her past

relevant work as a registered nurse or paramedic. (Doc. 6-3, pp. 30-31).

Relying on testimony from a vocational expert, the ALJ found that other jobs

existed in the national economy that Ms. Thompson could perform, including

cleaner, ticket taker, and cashier. (Doc. 6-3, p. 32). Accordingly, the ALJ

determined that Ms. Thompson was not under a disability within the meaning of the

Social Security Act. (Doc. 6-3, p. 32).

IV. ANALYSIS

Ms. Thompson argues that the ALJ erred in denying her application for

benefits because the ALJ failed to consider the opinion of Ms. Thompson’s treating

neurosurgeon, Dr. Pickett; the ALJ misapplied the Eleventh Circuit pain standard;

and the ALJ did not base his RFC determination on substantial evidence. (Doc. 9,

p. 1). Because the ALJ failed to explain the weight he gave to Dr. Pickett’s opinion

and because substantial evidence does not support the ALJ’s analysis of Ms.

Thompson’s testimony concerning her pain, the Court remands this matter for

additional proceedings.

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, Soc. Sec. Admin., 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 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, Soc. Sec. Admin., No. 18-11708, 2019

WL 1758438, at *2 (11th Cir. Apr. 18, 2019) (citing Wilson). If the ALJ does not

properly apply 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 the testimony. Cannon v. Bowen, 858 F.2d 1541, 1545 (11th

Cir. 1988); Kalishek v. Comm’r, Soc. Sec. Admin., 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. An ALJ must explain the basis for findings

relating to a claimant’s description of symptoms:

[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. In evaluating a claimant’s reported

symptoms, an ALJ must consider:

(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, Soc. Sec. Admin.,

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

Here, the ALJ found that Ms. Thompson’s medical records and daily activities

do not support her testimony regarding her pain and limitations. (Doc. 6-3, pp. 28-

30). Accordingly, the Court first examines Ms. Thompson’s testimony and then

compares her testimony to the medical evidence in the record and to the evidence

relating to her daily activities. In evaluating the medical evidence, the Court

addresses the ALJ’s treatment of Dr. Pickett’s opinion.

A. Ms. Thompson’s Testimony

Ms. Thompson was 49 years old when the ALJ rendered his opinion. Ms.

Thompson had worked as a paramedic, a registered nurse in a neuro-intensive care

unit, and an organ procurement coordinator. (Doc. 6-3, pp. 64-65). Ms. Thompson

testified that after working a night shift at the hospital in March 2014, she fell asleep

while driving, went down an embankment, and rolled her car three or four times.

(Doc. 6-3, p. 66). Ms. Thompson suffered a burst fracture of her L1 vertebrae. (Doc.

6-3, p. 66). To repair the fracture, a surgeon inserted rods and screws into Ms.

Thompson’s spine. (Doc. 6-3, p. 66). Ms. Thompson reported that the surgeon

removed muscle tissue from her lower thoracic and lumbar spine during her surgery.

(Doc. 6-3, p. 74).

Ms. Thompson stated that she “still ha[s] all of [her] hardware” from the

surgery. (Doc. 6-3, p. 78). She has “one set from T11 to L3 that’s rods and screws

and then . . . another one that’s L5 to S1.” (Doc. 6-3, p. 78). Ms. Thompson testified

that the surgery has limited her ability to bend and lift. (Doc. 6-3, p. 74). Ms.

Thompson indicated that she cannot lift a gallon of milk and cannot pick things up

from the floor. (Doc. 6-3, p. 74).

After her spinal surgery, Ms. Thompson was diagnosed with meningitis.

(Doc. 6-3, p. 66). Ms. Thompson underwent surgery to remove tissue damaged by

the infection. (Doc. 6-3, p. 66). Ms. Thompson testified that she was put on an IV

antibiotic pump for 12 weeks and completed physical therapy at home. (Doc. 6-3,

p. 67). Ms. Thompson stated that as a result of the antibiotic treatment, her immune

system is weakened, and she has difficulty “get[ting] over stuff” and healing. (Doc.

6-3, pp. 67-68). Ms. Thompson testified that the meningitis has affected her

handwriting, sight and peripheral vision, speech, and cognitive abilities. (Doc. 6-3,

p. 68). She is unable to read fine print. (Doc. 6-3, p. 80).

Ms. Thompson stated that she has severe pain in her left leg and hip, and she

has numbness in both of her legs and feet. (Doc. 6-3, p. 79). Ms. Thompson testified

that she will be on oral pain medication for the rest of her life. (Doc. 6-3, p. 69).

Ms. Thompson suffers from headaches two to three times weekly. (Doc. 6-

3, pp. 71-72). Ms. Thompson takes pain medication and lies down in a dark, quiet

room to alleviate her symptoms. (Doc. 6-3, pp. 71-72). Ms. Thompson stated that

the only side effect of her medication is constipation. (Doc. 6-3, p. 72).

Ms. Thompson has radicular neuropathy of her L5 vertebrae which radiates

down the backside of her legs and into her feet. (Doc. 6-3, p. 69). Ms. Thompson

stated that she avoids standing for three to four hours uninterrupted because her legs

swell. (Doc. 6-3, p. 69). Ms. Thompson reported that she suffers from severe muscle

spasms, especially in her left calf and foot. (Doc. 6-3, p. 72). She takes three

different muscle relaxers. (Doc. 6-3, p. 72).

Ms. Thompson uses a cane because her left side is weak and “it feels like it’s

going to give out at any time.” (Doc. 6-3, p. 70). Ms. Thompson stated that she has

been diagnosed with arthritis, tendonitis, and inflammation of her shoulder. (Doc.

6-3, p. 70). Ms. Thompson reported that because of her mitral valve prolapse, as her

pain level increases, she has chest pain and shortness of breath. (Doc. 6-3, pp. 70-

71).

Ms. Thompson’s ex-husband has moved back into her house to take care of

her and her daughter because she is unable to do housework or drive. (Doc. 6-3, pp.

72, 76). Ms. Thompson cannot drive because she takes morphine and Percocet.

(Doc. 6-3, p. 72). Ms. Thompson homeschools her daughter because they live

outside the bus jurisdiction, and Ms. Thompson cannot drive. (Doc. 6-3, p. 73). Ms.

Thompson stated that her ex-husband helps her shower and dress and does all of the

housework. (Doc. 6-3, p. 73).

Ms. Thompson attempted to return to work in July 2014. (Doc. 6-3, p. 75).

Despite accommodations and limited hours, Ms. Thompson could not perform her

job and would “cry[ ] all the way home with severe pain” after a twelve-hour shift.

(Doc. 6-3, p. 75). The hospital fired Ms. Thompson in August of 2014. (Doc. 6-3,

p. 75).

Ms. Thompson testified that she has two to three good days a week depending

on the weather; cold temperatures aggravate her symptoms. (Doc. 6-3, p. 82). On

good days, she can sit for forty-five minutes and stand for a maximum of one hour

without aggravating her symptoms. (Doc. 6-3, p. 77). Ms. Thompson stated that

she can walk half a block before she needs to sit down, and on good days she can lift

a gallon and a half with her right arm. (Doc. 6-3, pp. 77-78). Ms. Thompson testified

that on a typical day, she gets up between 10:00 and 11:00 in the morning. (Doc. 6-

3, p. 81). After she makes sure her daughter is doing her schoolwork and sees if her

daughter needs help, she returns to bed. (Doc. 6-3, p. 81). Ms. Thompson stated

that she takes her medication around 1:00 p.m. and gets back up around 6:00 p.m. to

eat dinner before returning to bed. (Doc. 6-3, p. 81). Ms. Thompson added that she

usually cannot fall asleep until 3:00 a.m. because she “can’t get comfortable,” and

she wakes up around 5:00 a.m. to take her morning medicine. (Doc. 6-3, p. 81).

After that, Ms. Thompson goes back to sleep. (Doc. 6-3, pp. 81-82).

B. Medical Records

1. Ms. Thompson’s Medical History

In April 2008, Dr. Banks, a neurosurgeon at the Spine & Neuro Center,

performed a right-sided hemilaminotomy, foraminotomy, and discectomy on Ms.

Thompson’s L5-S1 region after Ms. Thompson complained of severe right lower

extremity pain. (Doc. 6-16, p. 50).3 Following her surgery, Dr. Banks wrote, “she

3 A hemilaminotomy is a spine decompression operation in which “the surgeon only removes part

of the lamina on the side that needs to be decompressed, preserving its basic structure. A

foraminotomy is another procedure that takes pressure off the spinal nerves. In a formaninotomy,

complains of continued right lower extremity pain, actually worse than it was before,

and has even missed a day of work, which is not her usual.” (Doc. 6-16, p. 49).

Over the next several years, Ms. Thompson saw Dr. Banks at the Spine & Neuro

Center for treatment of numbness and tingling in her legs and pain in her lower back,

left hip, and left and right leg. (Doc. 6-16, pp. 33-53). In August of 2010, Dr. Banks

performed a lumbar laminectomy on Ms. Thompson. (Doc. 6-16, p. 59).4

Six years later, in March 2014, Ms. Thompson had a car accident. (Doc. 6-

13, p. 24). Ms. Thompson suffered from a lumber spine L1 vertebrae burst fracture.

(Doc. 6-13, p. 24).5 Dr. Pickett performed a “decompressive laminectomy at T12

the surgeon removes material that is blocking the passageway where the spinal nerves go through

the spinal canal. This widens the area and decompresses the spinal nerves, alleviating pain. Both

of these procedures can help patients who suffer from spinal nerve compression which can cause

pain, weakness and numbness.” https://www.triangleortho.com/lumbar-hemilaminotomy-north-

carolina.asp (last visited Aug. 16, 2019). A discectomy “is a surgery to remove a herniated or

degenerative disc in the lower spine. . . . The surgeon accesses the disc by removing a portion of

the lamina. The lamina is the bone that forms the backside of the spinal canal and makes a roof

over the spinal cord.” https://mayfieldclinic.com/pe-lumdiscectomy.htm (last accessed Aug. 16,

2019).

4 “Laminectomy is surgery that creates space by removing the lamina — the back part of a vertebra

that covers [a person’s] spinal canal. . . . Laminectomy enlarges [a person’s] spinal canal to relieve

pressure on the spinal cord or nerves. . . . Laminectomy is generally used only when more-

conservative treatments — such as medication, physical therapy or injections — have failed to

relieve symptoms. Laminectomy may also be recommended if symptoms are severe or worsening

dramatically.” https://www.mayoclinic.org/tests-procedures/laminectomy/about/pac-20394533

(last visited Aug. 16, 2019).

5 “A burst fracture is a descriptive term for an injury to the spine in which the vertebral body is

severely compressed. They typically occur from severe trauma, such as a motor vehicle accident

or a fall from a height.” https://www.spineuniverse.com/conditions/spinal-fractures/burst-

fractures-defined-diagnosed (last accessed Aug. 23, 2019).

through L1 with transpedicular decompression of L1 burst fracture,” a

“posterclateral fusion of T12 through L3 with in situ autograft, allograft, ISTO

granules, and DBM,” an “internal fixation and reduction of fracture using Spinal

Elements pedicle screws and rods at T11 through L3,” and a “transpedicular

aspiration of bone marrow blood to facilitate fusion.” (Doc. 6-13, p. 24).6 Ms.

Thompson tolerated the surgery well and experienced no difficulties. (Doc. 6-13, p.

24).

Ms. Thompson had a post-surgery visit with Dr. Pickett at the Spine & Neuro

Center later in March 2014. (Doc. 6-16, p. 29). Dr. Pickett noted that Ms. Thompson

was “doing well.” (Doc. 6-16, p. 29). Dr. Pickett removed staples from Ms.

Thompson’s incision and noted that her incision was healing normally. (Doc. 6-16,

p. 29). Ms. Thompson reported to Dr. Pickett that she was experiencing numbness

and tingling sensations. (Doc. 6-16, p. 30). Dr. Pickett prescribed Percocet (one to

two 10 mg-325 mg tablet every four to six hours) for pain and indicated that Ms.

Thompson was “not ready to return to work as yet.” (Doc. 6-16, p. 31).

6 A surgeon performs a pedicle screw fixation “in conjunction with spinal fusion surgery to secure

the vertebrae of the treated area in a fixed position. These devices provide stability and support to

the spine after surgery and keep bone grafts in position while the spine heals. While pedicle screws

provide anchor points on the spinal segment, metal rods are used to connect them together.”

https://www.princetonorthopaedic.com/procedures/spine/pedicle-screw-fixation/ (last accessed

Aug. 23, 2019).

In April 2014, the Marshall Medical Center admitted Ms. Thompson into the

intensive care unit based on her complaints of pain, decreased appetite, and

confusion. (Doc. 6-9, p. 6). The Marshall Medical Center determined that Ms.

Thompson had cellulitis at the site of her back incision with a large amount of

drainage from the area, possible osteomyelitis, possible meningitis, altered mental

status, sepsis, and possible lower lobe pneumonia. (Doc. 6-9, p. 6).7 Ms. Thompson

transferred from the Marshall Medical Center to Huntsville Hospital. (Doc. 6-9, p.

7; Doc. 6-12, p. 15).

Huntsville Hospital diagnosed Ms. Thompson with systemic inflammatory

response syndrome picture, diabetes mellitus type II uncontrolled, recent back

surgery for L1 compression fracture with probable hardware infection, anxiety,

depression, and dehydration. (Doc. 6-12, p. 17). The notes from the first day of Ms.

Thompson’s admission state that as a result of her back surgery, she had low back

and leg pain with “significant debility,” i.e. physical weakness. (Doc. 6-12, p. 18).

Dr. Pickett performed an incision and draining procedure on Ms. Thompson’s back

wound. (Doc. 6-12, p. 19). The procedure relieved some of Ms. Thompson’s pain.

(Doc. 6-12, p. 22).

7 Cellulitis “is a common, potentially serious bacterial skin infection.”

https://www.mayoclinic.org/diseases-conditions/cellulitis/symptoms-causes/syc-20370762 (last

visited Aug. 23, 2019).

Ms. Thompson developed a Staphylococcus infection and meningitis. (Doc.

6-12, p. 19). While still hospitalized, Ms. Thompson underwent two more

procedures to help with wound drainage. (Doc. 6-12, pp. 26, 28). After a three-

week stay, Huntsville Hospital discharged Ms. Thompson at the end of April 2014

with a peripherally inserted central catheter (PICC) line so that she could receive IV

antibiotics for six weeks at home. (Doc. 6-9, p. 36; Doc. 6-12, p. 20).8

Ms. Thompson saw Dr. Pickett in early May 2014 and reported “feeling much

better.” (Doc. 6-16, p. 26). Ms. Thompson complained of numbness and tingling.

(Doc. 6-16, p. 27). Dr. Pickett noted that she was neurologically intact. (Doc. 6-16,

p. 28). Ms. Thompson’s films “reveal[ed] good alignment and construct position.”

(Doc. 6-16, p. 28). Ms. Thompson followed up with Dr. Pickett later in May and

reported that she was “feeling much better and having a good deal less pain.” (Doc.

6-16, p. 25). Dr. Pickett performed a secondary closure of Ms. Thompson’s back

wound near the end of May. (Doc. 6-10, p. 29; Doc. 6-16, p. 20).

Ms. Thompson saw Dr. Pickett twice in June 2014 and reported numbness and

tingling sensations. (Doc. 6-16, pp. 16, 20). Dr. Pickett noted during the earlier

June visit that Ms. Thompson’s wound was healing nicely without a “sign of

8 A PICC “is a long, thin tube that goes into [a person’s] body through a vein in [the] upper arm.

The end of this catheter goes into a large vein near the heart.”

https://medlineplus.gov/ency/patientinstructions/000461.htm (last visited Aug. 8, 2019).

drainage or infection.” (Doc. 6-16, p. 22). Ms. Thompson reported feeling very

well. (Doc. 6-16, p. 22).

During the later June visit, Ms. Thompson indicated that she was “doing well”

and walking daily. (Doc. 6-16, p. 16). Dr. Pickett prescribed Celebrex to address

“aches and pains … from a musculoskeletal source.” (Doc. 6-16, p. 18). Dr. Pickett

reported that Ms. Thompson could return to work as a nurse. (Doc. 6-16, p. 18).

Ms. Thompson saw Dr. Johnson, a general physician, at the Lakeside Clinic

in early June 2014. (Doc. 6-15, p. 26). Dr. Johnson reported that Ms. Thompson

would be on the antibiotic Keflex permanently.9 (Doc. 6-15, p. 26). Ms. Thompson

had “no current complaints” and “hop[ed] to return to work in [the] next few weeks.”

(Doc. 6-15, p. 26). Dr. Johnson diagnosed Ms. Thompson with hyperlipidemia,

abnormal LFTs, degenerative disc disease, glucose intolerance, tachycardia,

staphylococcal meningitis, and bacterial infection. (Doc. 6-15, p. 29). Dr. Johnson

recommended that Ms. Thompson exercise regularly. (Doc. 6-15, p. 29).

Ms. Thompson returned to Dr. Pickett in September 2014 with complaints of

right leg and back pain after returning to work. (Doc. 6-16, p. 11). Dr. Picket

described Ms. Thompson’s pain this way:

It has intensified and seems to be most severe over the left buttock. She

has exquisite tenderness over the SI joint and that seems to be where

the pain arises, but she also has pain over both greater trochanters,

9 Keflex is an antibiotic “used to treat a wide variety of bacterial infections.”

https://www.webmd.com/drugs/2/drug-6859/keflex-oral/details (last visited Aug. 23, 2019).

probably has an element of trochanteric bursitis. The pain courses

down the posterior thigh, particularly on the left as well. She has some

subjective numbness that waxes and wanes in the legs as well. Her

strength appears to be good throughout, although she is antalgic, but

she can walk on her toes and heels.

(Doc. 6-16, p. 13).10 Dr. Pickett opined that Ms. Thompson was suffering from

musculoskeletal pain and stated that Ms. Thompson “should probably take off work

and start a progressive exercise program.” (Doc. 6-16, p. 14). Dr. Pickett indicated

that he would “recommend SI joint injections if [Ms. Thompson’s] MRI does not

reveal any striking pathology.” (Doc. 6-16, p. 14). 11 A September MRI revealed

that Ms. Thompson had “persistent and basically unchanged anterolisthesis of L5

upon S1 with a central disc protrusion present.” (Doc. 6-11, p. 17).

Dr. Campbell examined Ms. Thompson at the Spine & Neuro Center in

October 2014. (Doc. 6-16, p. 87). Ms. Thompson complained of “low back pain

going into [her] hips[.]” (Doc. 6-16, p. 87). Ms. Thompson rated her pain as three

to four out of ten. (Doc. 6-16, p. 87).

Dr. Campbell reported that Ms. Thompson “returned to work in June 2014

and her pain increased in the left > right low back. This is constant and has improved

10 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 Aug. 7, 2019).

11 “The SI [or sacroiliac] joint injection enables physicians to confirm that irritation or damage to

the SI joint is the source of [a person’s] symptoms. This precise diagnostic tool is also a therapeutic

procedure, offering significant pain relief.” https://treatingpain.com/treatment/si-joint-injection

(last visited Aug. 16, 2019).

a little with being out of work for the last month. . . . The pain is worse with driving

and better with rest.” (Doc. 6-16, p. 87). Dr. Campbell noted that Ms. Thompson

had an antalgic gait without an assistive device, decreased and painful range of

motion of her lumbar spine, tender bilateral sacroiliac joint and bilateral greater

trochanteric bursa, and decreased sensation in her left lateral leg below her knee.

(Doc. 6-16, p. 89). Dr. Campbell scheduled Ms. Thompson for diagnostic and

therapeutic bilateral SI joint injections, which Ms. Thompson received in November

2014. (Doc. 6-16, p. 89; Doc. 6-10, p. 27).

Ms. Thompson returned to Dr. Pickett in March 2015. (Doc. 6-16, p. 5). Ms.

Thompson reported a “severe pop in her back that resulted in [an] inability to walk.”

(Doc. 6-16, p. 5). Ms. Thompson stated that her condition had improved over the

past two weeks. (Doc. 6-16, p. 5). Ms. Thompson reported being “overall better

since taking off work the last six months on long-term disability.” (Doc. 6-16, p. 5).

Dr. Pickett stated that Ms. Thompson “is now one year out from her injury and is

doing relatively well.” (Doc. 6-16, p. 7). Dr. Pickett noted that Ms. Thompson has

“chronic back pain and probably always will to some degree.” (Doc. 6-16, p. 7).

Dr. Pickett recommended that Ms. Thompson begin to exercise to help with

discomfort. (Doc. 6-16, p. 7).

In March 2015, Ms. Thompson began treatment at Tennessee Valley Pain

Consultants and saw Ms. Durham, a licensed practical nurse. (Doc. 6-17, pp. 14,

17). Ms. Durham collaborated with Dr. Collins, a pain doctor at Tennessee Valley

Pain Consultants, regarding Ms. Thompson’s case. (Doc. 6-17, p. 22). Dr. Collins

reviewed and signed the treatment record. (Doc. 6-17, pp. 22-23).12

Ms. Durham reported that Ms. Thompson had an ataxic gait, moderately

decreased range of motion of her trunk, mild generalized weakness of her lower left

and right extremities, bilateral lumbosacral paraspinal tenderness, and increased pain

with hyperextension, lateral rotation and side bending. (Doc. 6-17, p. 20).13 Ms.

Thompson’s straight leg test was positive. (Doc. 6-17, p. 20). 14 Ms. Thompson’s

diagnoses included: chronic pain due to trauma; degenerative disc disease; chronic

low back pain; and lumbar spondylosis. (Doc. 6-17, p. 22).15

12 Because Ms. Thompson filed her claim before March 27, 2017, the regulations provide that Ms.

Durham is not an acceptable medical source. 20 C.F.R. § 404.1502(a)(7). Dr. Collins is an

acceptable medical source.

13 “Ataxia is typically defined as the presence of abnormal, uncoordinated movements. . . . An

unsteady, staggering gait is described as an ataxic gait because walking is uncoordinated[.]”

https://www.hopkinsmedicine.org/neurology_neurosurgery/centers_clinics/ataxia/conditions/ind

ex.html (last visited Aug. 7, 2019). “The paraspinal muscles are the ‘action’ muscles of the back.”

https://www.verywellhealth.com/paraspinal-muscles-297191 (last visited Aug. 28, 2019).

14 Examiners use the straight leg raise test to evaluate patients “with low back pain and nerve pain

that radiates down the leg.” https://www.ebmconsult.com/articles/straight-leg-raising-test (last

visited Aug. 9, 2019).

15 “[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 Sept. 20, 2019).

Ms. Thompson reported a pain score of six out of ten during the March 2015

visit. (Doc. 6-17, p. 14). Ms. Thompson described her pain as “burning, stabbing

in low back and down [bilaterally] into [the lower parts of her leg and] feet.” (Doc.

6-17, p. 14). Ms. Thompson indicated that sitting, bending, standing, and walking

aggravated her pain; lying down and medication alleviated it. (Doc. 6-17, p. 15).

Ms. Thompson reported that her pain level is three on a good day; ten on a bad day.

(Doc. 6-17, pp. 14-15).

Ms. Durham noted that Ms. Thompson was walking daily for exercise and

taking Percocet (10-325 mg tablet twice daily), diazepam (5 mg tablet once daily),

and Ultram (50 mg tablet every six hours) for pain. (Doc. 6-17, p. 17). Ms. Durham

indicated that Ms. Thompson was taking methocarbamol (750 mg tablet three times

daily) and Zanaflex (4 mg tablet once nightly) for muscle spasms. (Doc. 6-17, p.

17).16 Ms. Durham instructed Ms. Thompson to “[c]ontinue medications as

prescribed” and “[l]imit activity to comfort and avoid activities that increase

discomfort.” (Doc. 6-17, p. 22).

Dr. Arnold performed a consultative psychiatric evaluation of Ms. Thompson

in early April 2015. (Doc. 6-16, p. 93). Dr. Arnold found Ms. Thompson’s

16 Methocarbomal “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/robaxin-side-effects-

drug-center.htm (last visited Aug. 23, 2019). Baclofen “is used to treat muscle spasms caused by

certain conditions (such as multiple sclerosis, spinal cord injury/disease).”

https://www.webmd.com/drugs/2/drug-8615/baclofen-oral/details (last visited Aug. 23, 2019).

demeanor to be “composed and competent” and her behavior appropriate. (Doc. 6-

16, p. 94). Dr. Arnold noted that Ms. Thompson was alert and oriented and had a

stable mood. (Doc. 6-16, p. 94). Dr. Arnold reported that “Ms. Thompson’s FSIQ

is estimated low average/average range.” (Doc. 6-16, p. 96).17 Dr. Arnold recorded

54 as Ms. Thompson’s global assessment of functioning score. (Doc. 6-16, p. 97).

Dr. Arnold’s notes reflect that Ms. Thompson reported that her ex-husband and her

daughter handled everything around the house, but Ms. Thompson handled self-care

and managed her long-term disability payments. (Doc. 6-16, p. 96). Dr. Arnold

believed that the information that Ms. Thompson provided was reliable. (Doc. 6-16,

p. 96).

Dr. Arnold diagnosed Ms. Thompson with opioid dependency and an

adjustment disorder, not otherwise specified. (Doc. 6-16, p. 96). Dr. Arnold

recorded “Opioid RX dependent ‘10 to 3’” as Ms. Thompson’s pain level. (Doc. 6-

16, p. 96).

Ms. Thompson returned to Tennessee Valley Pain Consultants later in April

2015 with a five as her pain level. (Doc. 6-17, p. 4). Ms. Thompson saw Ms.

Durham during this visit; Dr. Collins signed the treatment notes later that afternoon.

17 FSIQ stands for full scale intelligent quotient and measures a person’s “complete cognitive

capacity.” https://www.special-learning.com/article/full_scale_intelligence_quotient_fsiq (last

visited Aug. 23, 2019).

(Doc. 6-17, pp. 9, 13). Ms. Thompson chiefly complained of “‘sharp, burning’” low

back and posterior pain. (Doc. 6-17, p. 5). Ms. Thompson indicated that sitting,

bending, standing, and walking aggravated her pain; lying down and medication

alleviated it. (Doc. 6-17, p. 6). Ms. Thompson’s musculoskeletal system limitations

were unchanged from her visit in March 2015. (Doc. 6-17, p. 11).

During this visit, Ms. Thompson reported that Percocet was “helpful” for pain

and received approval to take an additional tablet daily. (Doc. 6-17, p. 9). Ms.

Thompson discussed having muscle spasms, and Ms. Durham recommended trying

baclofen. (Doc. 6-17, p. 9). Dr. Collins authorized prescriptions for Percocet and

baclofen. (Doc. 6-17, p. 9). Ms. Thompson’s medications included: Percocet (10-

325 mg tablet with acetaminophen three times daily) for pain, methocarbamol (750

mg tablet three times daily) for muscle spasms associated with pain or injury,

Diazepam (5 mg tablet twice daily) for pain, and baclofen (10 mg tablet nightly) for

muscle spasms. (Doc. 6-17, pp. 8-9).

In May 2015, Dr. Estock reviewed Ms. Thompson’s work history, functional

report, and medical records at the request of the Social Security Administration.

(Doc. 6-4, p. 10). Dr. Estock determined that Ms. Thompson suffers from the severe

impairments of other fracture of bones, spine disorders, osteomyelitis, periostisis and

other infections involving bone, diabetes mellitus, affective disorders and a non-

severe anxiety disorder. (Doc. 6-4, p. 9). Dr. Estock reported that Ms. Thompson

is moderately restricted in daily activities, social functioning, and maintaining

concentration, persistence, and pace. (Doc. 6-4, p. 9; see also Doc. 6-4, pp. 13-15).

Ms. Hope, an agency single decisionmaker, reviewed Ms. Thompson’s

records and provided a physical capacities assessment in May 2015. (Doc. 6-4, pp.

13, 11).18 Ms. Hope found that one or more of Ms. Thompson’s medically

determinable impairments could reasonably be expected to produce pain or other

symptoms. (Doc. 6-4, p. 11). Still, Ms. Hope determined that Ms. Thompson’s

statements about her (Ms. Thompson’s) pain were “only partially credible as the

severity alleged is not consistent with the evidence in [the] file.” (Doc. 6-4, p. 11).

Ms. Hope reported that Ms. Thompson could occasionally lift or carry 20 pounds;

frequently lift or carry 10 pounds; stand or walk about six hours in an eight-hour

workday; sit about six hours in an eight-hour workday; push or pull unlimitedly;

occasionally stoop, kneel, crouch, and crawl; climb stairs and balance unlimitedly;

and never climb ladders, ropes, or scaffolds. (Doc. 6-4, pp. 11-12). Ms. Hope noted

that Ms. Thompson should avoid exposure to extreme cold and hazards, such as

machinery, heights, and open bodies of water. (Doc. 6-4, p. 12).

18 “In 1999, SSA launched the Single Decision Maker (SDM) program—authorizing disability

examiners to process some cases without a medical consultant’s sign off. The objective was to

shorten the determination process, without degrading accuracy. . . . As part of the Bipartisan

Budget Act of 2015, the Congress directed SSA to end Single Decision-Maker authority.”

https://www.ssab.gov/Details-Page/ArticleID/845/The-Single-Decision-Maker-Pilot-A-16-Year-

Flight-and-Still-No-Clear-Landing (last visited Aug. 28, 2019).

In May 2015, Ms. Thompson returned to Tennessee Valley Pain Consultants

and saw Ms. Durham. (Doc. 6-18, p. 69). Dr. Gantt, a pain doctor, signed the

treatment record. (Doc. 6-18, p. 76). Ms. Thompson reported a pain score of five

and described it as “‘burning, throbbing, [and] pulsating’” in her “low back into

bil[ateral] hips and down posterior legs to the ankles.” (Doc. 6-18, p. 69).

Ms. Durham noted no changes in Ms. Thompson’s degenerative disc disease

and chronic lower back pain conditions. (Doc. 6-18, p. 75). Ms. Durham noted that

“Dr. Pickett [did] not recommend steroid injections due to severity of infection.”

(Doc. 6-18, p. 73). Ms. Thompson was “doing well on current medications” and

able to perform daily activities “with less difficulty.” (Doc. 6-18, p. 73). Dr. Gantt

authorized a refill of baclofen for Ms. Thompson’s muscle spasms. (Doc. 6-18, p.

73).

In early July 2015, Ms. Thompson saw Dr. Johnson at the Lakeside Clinic

complaining of moderate depression. (Doc. 6-17, p. 47). Ms. Thompson reported

experiencing fatigue, feelings of isolation, insomnia, and increased pain. (Doc. 6-

17, p. 47). Dr. Johnson assessed Ms. Thompson with fatigue, depression, abnormal

LFTs, glucose intolerance, hyperlipidemia, folic acid deficiency, and vitamin B12

and D deficiencies. (Doc. 6-17, p. 49). Dr. Johnson prescribed Cymbalta for

depression. (Doc. 6-17, p. 50).

Ms. Thompson saw Ms. Durham in mid-July 2015 and reported “burning,

pulsating” pain in the middle of her lower back and down her posterior left lower

extremity, including her foot. (Doc. 6-18, p. 60). Her pain level was a three out of

ten. (Doc. 6-18, p. 60). Ms. Durham assessment of Ms. Thompson’s problems did

not change. (Doc. 6-18, pp. 66-67). Dr. Collins signed the treatment record. (Doc.

6-18, p. 68).

Ms. Thompson returned to Dr. Pickett in late July 2015 complaining of back

and bilateral leg pain with more intensity on the left. (Doc. 6-17, p. 28). Dr. Pickett

noted that Ms. Thompson’s pain “came on two to three weeks ago without any

antecedent injury.” (Doc. 6-17, p. 30). Ms. Thompson’s physical examination was

normal. (Doc. 6-17, pp. 29-30, 31). Dr. Pickett initially detected some left leg

weakness and difficulty walking on her toes and heals, but Ms. Thompson overcame

those issues after encouragement. (Doc. 6-17, p. 31).

Dr. Pickett ordered a follow up MRI. (Doc. 6-17, pp. 31, 33). Dr. Armstrong,

the radiologist, noted that Ms. Thompson had had eight spine surgeries through

2014. (Doc. 6-17, p. 33). Ms. Thompson had “[e]xtensive postsurgical fusion

changes extending from the T11 to L3 as well as L5-S1[,]” “a broad-based disc

herniation at L5-S1[,]” but “[n]o detrimental change from previous study”

completed in September 2014. (Doc. 6-17, p. 33). Dr. Pickett found no “acute disc

herniation or other areas of acute nerve root compression.” (Doc. 6-17, p. 31). Dr.

Pickett referred Ms. Thompson to Dr. Anderson for an EMG of her lower

extremities. (Doc. 6-17, p. 31).19

Dr. Anderson completed the EMG and nerve conduction study in August

2015. (Doc. 6-17, p. 24). Dr. Anderson found that Ms. Thompson had chronic left

L5 radiculopathy and potentially a mild traumatic brain injury. (Doc. 6-17, p. 24).20

Dr. Anderson indicated that Ms. Thompson had “fairly significant keloid formation”

in the thoracic and lumbar spine. (Doc. 6-17, p. 26). Dr. Anderson noted that Ms.

Thompson had decreased sensation in her left leg and significant decreased range of

motion. (Doc. 6-17, p. 26). Dr. Anderson reported that Ms. Thompson was on

medication that could impair her memory and problem solving ability. (Doc. 6-17,

p. 26). Dr. Anderson noted, “I feel this patient is 100% medically disabled and

cannot go back to productive employment.” (Doc. 6-17, p. 26). Dr. Pickett

concurred with Dr. Anderson’s assessment that Ms. Thompson was “unable to return

to productive employment.” (See Doc. 6-17, p. 27).

Ms. Thompson visited Ms. Durham in September 2015 and reported a pain

score of three. (Doc. 6-18, p. 50). Ms. Durham included the radiculopathy diagnosis

19 An EMG or electromyography “measures muscle response or electrical activity in response to a

nerve’s stimulation of the muscle. The test is used to help detect neuromuscular abnormalities.”

https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/electromyography-emg

(last visited Aug. 23, 2019).

20 Radiculopathy is “a pinched nerve in the spine, [which] can lead to a variety of uncomfortable

symptoms, including pain, weakness, and numbness.”

https://www.medicalnewstoday.com/articles/318465.php (last visited Aug. 23, 2019).

when describing Ms. Thompson’s problems. (Doc. 6-18, p. 57). Ms. Dahlberg, a

certified registered nurse practitioner, noted that Ms. Thompson was “doing well on

current medication[,]” “function[ing] without side effects[,]” and “perform[ing]

[daily activities] with less difficulty.” (Doc. 6-18, p. 55). Dr. Collins signed the

treatment record. (Doc. 6-18, p. 58).

Ms. Thompson saw Dr. McCurdy at the Clinic for Vision in September 2015.

(Doc. 6-18, p. 77). Ms. Thompson had a decrease in distance and near vision. (Doc.

6-18, p. 77). Dr. McCurdy found a refractive error and diagnosed Ms. Thompson

with optic nerve disorders and presbyopia (or farsightedness) in both of her eyes.

(Doc. 6-18, p. 80).

Ms. Thompson returned to Ms. Durham in November 2015. (Doc. 6-18, p.

41). Ms. Thompson complained of low back, leg, and foot pain. (Doc. 6-18, p. 41).

Ms. Thompson reported a pain score of five. (Doc. 6-18, p. 41). Ms. Durham did

not modify her assessments from Ms. Thompson’s previous visit. (Doc. 6-18, p.

48). Ms. Thompson received instructions to “continue her medications as

prescribed” and “limit activity to comfort and avoid activities that increase

discomfort.” (Doc. 6-18, p. 48). Dr. Collins signed the treatment record. (Doc. 6-

18, p. 49).

In December 2015, Ms. Thompson went to Tennessee Valley Pain

Consultants with a pain score of seven. (Doc. 6-18, p. 31). Ms. Thompson reported

that “Percocet is not as effective or lasting as long.” (Doc. 6-18, p. 35). In January

2016, Ms. Thompson saw Ms. Durham and complained of “burning, pulsating” pain

in her lower back and down her legs. (Doc. 6-18, p. 22). Her pain was a level six.

(Doc. 6-18, p. 22). A month later, Ms. Thompson reported a pain score of five and

described it as “aching” in low back and “sharp” in her lower extremities (Doc. 6-

18, p. 12). Ms. Thompson noted that her pain increased with changes in the weather.

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

Ms. Thompson returned to Dr. McCurdy in March 2016. (Doc. 6-18, p. 82).

Dr. McCurdy diagnosed Ms. Thompson with visual abnormalities and optic nerve

disorders. (Doc. 6-18, p. 83).

In March 2016, Ms. Thompson reported a pain score of seven at Tennessee

Valley Pain Consultants. (Doc. 6-18, p. 2). The pain began in her lower back,

traveled down her leg, and ended with burning and throbbing in her foot. (Doc. 6-

18, p. 2). She reported a pain level of three on her good days and ten on her bad

days. (Doc. 6-18, p. 3). Ms. Thompson reported increased pain and stated that she

stayed in bed most days. (Doc. 6-18, p. 6).

Ms. Thompson had a follow-up appointment with Dr. McCurdy in April 2016.

(Doc. 6-18, p. 85). Dr. McCurdy diagnosed Ms. Thompson with “abnormal visually

evoked potential [VEP].” (Doc. 6-18, p. 88).

Ms. Thompson returned to Tennessee Valley Pain Consultants in April, May,

June, and August 2016. Ms. Thompson reported a pain score of seven and muscle

spasms in April. (Doc. 6-19, pp. 97, 105). In May and June, her pain score was six.

(Doc. 6-19, p. 107; Doc. 6-20, p. 4). Ms. Thompson was unsteady and reported

walking for exercise. (Doc. 6-19, pp. 108, 110; Doc. 6-20, pp. 6, 8). During her

June visit, Ms. Thompson’s medications included a prescription for morphine sulfate

(15 mg tablet; not to exceed three daily). (Doc. 6-20, p. 9). In August 2016, Ms.

Thompson reported a pain score of four and had “burning” pain in her hips, which

radiated down her legs. (Doc. 6-20, p. 15)

Ms. Thompson continued to visit Tennessee Valley Pain Consultants monthly

from October 2016 to March of 2017. (Doc. 6-22, pp. 31-88). Ms. Thompson’s

pain level ranged from five to eight during these visits. (See Doc. 6-22, p. 80) (five

in October 2016); (Doc. 6-22, p. 70) (six in November 2016); (Doc. 6-22, p. 60)

(seven in December 2016); (Doc. 6-22, p. 50) (seven in January 2017); (Doc. 6-22,

p. 41) (eight in February 2017); (Doc. 6-22, p. 31) (six in March 2017).

Ms. Thompson described her pain as “burning and pins and needles”

“stabbing” and “all over aching.” (Doc. 6-22, pp. 50, 60, 31). Ms. Thompson

indicated that medication “takes the edge off.” (Doc. 6-22, p. 64). Ms. Thompson’s

medications, physical examination, conditions, and patient instructions remained

virtually unchanged throughout this period. (Doc. 6-22, pp. 31-88).

Dr. Collins referred Ms. Thompson to Dr. Janssen with SportsMed

Orthapaedic Surgery & Spine Center in April 2017 because of left shoulder pain.

(Doc. 6-22, pp. 102, 104). Dr. Janssen ordered an MRI to determine whether Ms.

Thompson had torn her rotator cuff. (Doc. 6-22, p. 104). Dr. Armstrong, the

radiologist, reported that Ms. Thompson had “mild hypertrophy with edema of the

left AC joint,” “partial-thickness tear at the superior surface of the supraspinatus

tendon but no full-thickness rotator cuff tear,” and “attenuation of the long head of

the biceps tendon with poor visualization of its intra-articular portions.” (Doc. 6-22,

p. 101).

2. The ALJ’s Assessment of Ms. Thompson’s Records

In assessing Ms. Thompson’s subjective symptoms, the ALJ indicated that he

considered whether they “can reasonably be accepted as consistent with the

objective medical evidence and other evidence.” (Doc. 6-3, p. 27). After

summarizing Ms. Thompson’s medical records, the ALJ found that the “clinical

findings do not support the level of limitation alleged by the claimant and indicate

that her treatment has been effective at controlling her symptoms.” (Doc. 6-3, p.

29). The record does not contain substantial evidence to support this conclusion.

Ms. Thompson’s consistent, long-term treatment with Dr. Pickett and medical

providers at Tennessee Valley Pain Consultants objectively support her pain

testimony. Ms. Thompson cannot receive steroid injections to manage her pain

because of the risk of infection. (Doc. 6-18, p. 73). Consequently, Ms. Thompson

takes several prescribed medications to treat her pain, including Percocet (a

narcotic), diazepam (the generic for Valium), morphine, and various muscle

relaxers. (Doc. 6-18, p. 54). Even with treatment, Ms. Thompson routinely reported

constant pain. Somogy v. Comm’r, Soc. Sec. Admin., 366 Fed. Appx. 56 (11th Cir.

2010) (finding claimant’s credibility bolstered by evidence showing she made

numerous visits to her doctors, endured numerous diagnostic tests, and was

prescribed numerous medications); Lamb v. Bowen, 847 F.2d 698, 702 (11th Cir.

1988) (“[T]he record is replete with evidence of a medical condition that could

reasonably be expected to produce the alleged pain. No examining physician ever

questioned the existence of appellant’s pain. They simply found themselves unable

to cure the pain.”).

After her pinched spinal nerve diagnosis, Drs. Anderson and Pickett

concluded that Ms. Thompson was unable to work. The ALJ discounted Dr.

Anderson’s statement as a conclusory, non-medical opinion and did not address Dr.

Pickett’s opinion. A doctor’s statement that a claimant is “disabled” or “unable to

work” is not a medical opinion under 20 C.F.R. § 404.1527(a)(1). See 20 C.F.R. §

404.1527(d). Consequently, neither Dr. Anderson’s nor Dr. Pickett’s statement

concerning Ms. Thompson’s ability to work is due controlling weight under 20

C.F.R. § 404.1527(c)(2). But Dr. Pickett’s and Dr. Anderson’s impressions about

Ms. Thompson’s inability to work objectively support her pain testimony. There are

no medical opinions that support the ALJ’s finding that Ms. Thompson can perform

light work. See Graham v. Bowen, 786 F.2d 1113, 1115 (11th 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 ALJ erred in failing to indicate the weight that he gave to Dr. Pickett’s

opinion. See Kemp v. Astrue, 308 Fed. Appx. 423, 426 (11th Cir. 2009) (“The ALJ

must ‘state specifically the weight accorded to each item of evidence and why he

reached that decision.’”) (quoting Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.

1981)). Contrary to the Commissioner’s argument, the Court cannot assume that the

ALJ would give Dr. Pickett’s opinion the same weight assigned to Dr. Anderson’s

opinion, (Doc. 10, pp. 7-8), because Ms. Thompson saw Dr. Pickett over an extended

period of time, and Dr. Pickett was familiar with her long-term treatment for pain.

Dr. Anderson saw Ms. Thompson only once.

The ALJ focused on positive clinical notes for Ms. Thompson and did not

discuss notes consistent with her pain testimony. See McCruter v. Bowen, 791 F.2d

1544, 1548 (11th Cir. 1986) (ALJ erred in “focusing upon one aspect of the evidence

and ignoring other parts of the record. . . . It is not enough to discover a piece of

evidence which supports that decision, but to disregard other contrary evidence.”).

For instance, the ALJ observed Ms. Thompson’s “normal range of motion in her

upper extremities[,]” normal reflexes and sensation, “only mild generalized

weakness in the right and left lower extremities.” (Doc. 6-3, p. 29). The ALJ did

not address Ms. Thompson’s decreased range of motion of her trunk, positive left

straight leg test, increased pain with hyperextension, lateral rotation and side

bending, ataxic gait, and bilateral lumbosacral paraspinal tenderness. (Doc. 6-17,

pp. 20-21); cf. 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 ALJ reasoned that in May 2016, medication allowed Ms. Thompson to

function without side effects and that “she was able to perform activities of daily

living with less difficulty.” (Doc. 6-3, pp. 21-22; Doc. 6-19, p. 112). But the ALJ’s

reliance upon this objective medical evidence to discredit Ms. Thompson’s

testimony omits key information which corroborates her pain testimony. During her

May 2016 visit to Tennessee Valley Pain Associates, Ms. Thompson reported a level

six “tight,” “throbbing,” and “burning” pain in her lower back and down into her

foot. (Doc. 6-19, p. 107). Ms. Thompson had reported a level seven “tight,” “sharp,”

and “burning” pain in the same areas during her previous visit. (Doc. 6-19, p. 107).

Ms. Thompson reported fatigue and depression. (Doc. 6-19, p. 108). Sitting,

bending, standing, and walking aggravated Ms. Thompson’s pain; lying down and

taking medication alleviated it. (Doc. 6-19, p. 108). Ms. Thompson reported

irregular pain ranging from a level three on good days and ten on bad ones. (Doc.

6-19, p. 108). Ms. Thompson reported walking for exercise and doing minimal

housework. (Doc. 6-19, pp. 110, 112). Just two months earlier in March 2016, Ms.

Thompson reported increased pain and stated that she stayed in bed most days. (Doc.

6-18, p. 6). The record from that March 2016 visit also states that medication kept

Ms. Thompson functional without side effects and indicated that she was able to

perform activities of daily living with less difficulty, though Ms. Thompson reported

doing little housework. (Doc. 6-18, p. 7). The standard language in the TVPC

records does not always align with Ms. Thompson’s monthly reports regarding her

pain and daily activities.

The fact that medication helps Ms. Thompson manage her pain does not mean

that she can maintain work in a light job. 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). Thus, substantial evidence does not support the ALJ’s finding

that Ms. Thompson’s medical records undermine the credibility of her pain

testimony.

C. Daily Activities

The ALJ indicated that Ms. Thompson’s pain testimony was inconsistent with

her daily activities. (Doc. 6-3, p. 30); (see also Doc. 6-8, pp. 35-40). The ALJ did

not identify which activities he determined were inconsistent. While an ALJ need

not discuss “all portions of the function report,” the ALJ must make it clear that he

considered the claimant’s condition “on the whole.” Miles v. Comm’r, Soc. Sec.

Admin., 652 Fed. Appx. 923, 927 (11th Cir. 2016); see also Foote, 67 F.3d at 1562

(If an ALJ rejects a claimant’s subjective complaints, “the reasons should be

expressed.”). Because the ALJ did not describe the basis for his opinion concerning

Ms. Thompson’s daily activities, the Court cannot verify whether he considered Ms.

Thompson’s activities completely. Cf. Miles, 652 Fed. Appx. at 927 (“The ALJ

relied on portions of a function report Miles completed showing that he could

prepare simple meals, do laundry, drive, shop in stores, pay bills, use a checkbook,

and handle a savings account.”) (citing Mitchell v. Comm’r, Soc. Sec. Admin., 771

F.3d 780, 782 (11th Cir. 2014) (“The ALJ’s decision in this case was not a broad

rejection and was sufficient to enable the district court and this Court to conclude

the ALJ considered Mitchell’s medical condition as a whole.”)).

The vocational expert testified that employers would not tolerate Ms.

Thompson’s being off task more than 12 to 15 percent of the work day (including

scheduled breaks) in the light and sedentary jobs identified. (Doc. 6-3, pp. 88-89).

Additionally, Ms. Thompson would be unable to lie down outside of scheduled

breaks. (Doc. 6-3, p. 89). Ms. Thompson’s limited activities do not undermine her

testimony that resting and lying down are part of her daily pain management

schedule. And when crediting that evidence, Ms. Thompson’s pain prevents her

from complying with the break requirements described by the vocational expert. See

Foote, 67 F.3d at 1562 (finding lifting and carrying objects up to ten pounds,

performing light household chores, cooking, driving, shopping, and limited walking

for exercise, bathing, dressing, and feeding are insufficient to show an ability to

perform sedentary work in light of other daily activities significantly impacted by

pain, including difficulty putting on a bra); see also Holman v. Barnhart, 313 F.

Supp. 2d 1265, 1270 (N.D. Ala. 2004) (noting that the “ability to watch television

for two hours in no way indicates an ability to work”). Consequently, substantial

evidence does not support the ALJ’s negative credibility finding.

V. CONCLUSION

The Court remands the Commissioner’s decision for further administrative

proceedings consistent with this memorandum opinion.

DONE this 24th day of September, 2019.

oy DELINE HUGHES HAIKALA

UNITED STATES DISTRICT JUDGE

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