Hendrix v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JESSICA COREN HENDRIX, )

)

Plaintiff, )

)

v. )

) Case No.: 5:18-cv-00646-SGC

SOCIAL SECURITY )

ADMINISTRATION, Commissioner, )

)

Defendant. )

MEMORANDUM OPINION1

The plaintiff, Jessica Coren Hendrix, appeals from the decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying

her application for Supplemental Security Income (“SSI”). Hendrix timely pursued

and exhausted her administrative remedies, and the Commissioner’s decision is ripe

for review pursuant to 42 U.S.C § 1383(c)(3). For the reasons discussed below, the

Commissioner’s decision is due to be reversed and remanded.

I. Procedural History

Hendrix has a high school education and no past relevant work. (Tr. at 26,

154). In her application for SSI, Hendrix alleged she became disabled on September

1, 2012, due to high blood pressure, depression, seizures, a neurological disorder,

1 The parties have consented to the exercise of full dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Doc. 11).

and swollen and enlarged blood vessels fused together on the right side of her brain.

(Id. at 51). Hendrix later amended the onset date of her disability to March 16, 2015.

(Id. at 139). After her claim was denied, Hendrix requested a hearing before an

administrative law judge (“ALJ”). (Id. at 69). Following a hearing, the ALJ denied

Hendrix’s claim. (Id. at 22-27). Hendrix was twenty-one years old when the ALJ

issued her decision. (Id. at 27, 51). After the Appeals Council denied review of the

ALJ’s decision (id. at 1-3), that decision became the final decision of the

Commissioner, see Frye v. Massanari, 209 F. Supp. 2d 1246, 1251 (N.D. Ala. 2001)

(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). Thereafter, Hendrix

commenced this action. (Doc. 1).

II. Statutory and Regulatory Framework

To establish eligibility for disability benefits, a claimant must show “the

inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than

twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). The Social

Security Administration (“SSA”) employs a five-step sequential analysis to

determine an individual’s eligibility for disability benefits. 20 C.F.R. §

416.920(a)(4).

First, the Commissioner must determine whether the claimant is engaged in

“substantial gainful activity.” Id. at § 416.920(a)(4)(i). If the claimant is engaged

in substantial gainful activity, the Commissioner will find the claimant is not

disabled. Id. at § 416.920(a)(4)(i) and (b). At the first step, the ALJ determined

Hendrix has not engaged in substantial gainful activity since March 16, 2015, the

date corresponding to the alleged onset of her disability and the submission of her

application for SSI. (Tr. at 24).

If the claimant is not engaged in substantial gainful activity, the

Commissioner must next determine whether the claimant suffers from a severe

physical or mental impairment or combination of impairments that has lasted or is

expected to last for a continuous period of at least twelve months. 20 C.F.R. §

416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination

of impairments, the Commissioner will find the claimant is not disabled. Id. at §

416.920(a)(4)(ii) and (c). At the second step, the ALJ determined Hendrix has the

following severe impairments: hypertension, seizure disorder and migraines without

aura due to a subdural hematoma, and drug-induced rebound headaches. (Tr. at 24).2

If the claimant has a severe impairment or combination of impairments, the

Commissioner must then determine whether the impairment meets or equals one of

the “Listings” found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §

2 The ALJ determined Hendrix’s nevus of the face and nicotine dependence are non-severe

impairments, and that her alleged depression is a non-medically determinable impairment. (Tr. at

24).

416.920(a)(4)(iii). If the claimant’s impairment meets or equals one of the Listings,

the Commissioner will find the claimant is disabled. Id. at § 416.920(a)(4)(iii) and

(d). At the third step, the ALJ determined Hendrix does not have an impairment or

combination of impairments that meets or medically equals the severity of one of

the Listings. (Tr. at 24).

If the claimant’s impairment does not meet or equal one of the Listings, the

Commissioner must determine the claimant’s residual functional capacity (“RFC”)

before proceeding to the fourth step. 20 C.F.R § 416.920(e). At the fourth step, the

Commissioner will compare an assessment of the claimant’s RFC with the physical

and mental demands of the claimant’s past relevant work. Id. at § 416.920(a)(4)(iv)

and (e). If the claimant is capable of performing his or her past relevant work, the

Commissioner will find the claimant is not disabled. Id. at § 416.920(a)(4)(iv).

Before proceeding to the fourth step, the ALJ determined Hendrix has the

RFC to perform light work with the following limitations: she can only occasionally

climb ramps and stairs, bend, stoop, kneel, crouch, balance, and crawl; she can never

climb ladders, ropes, or scaffolds; she can have only occasional exposure to fumes,

odors, dust, poor ventilation, extreme heat, extreme cold, and vibrations; and she can

have no exposure to hazardous machinery or unprotected heights. (Tr. at 25). At

the fourth step, the ALJ determined Hendrix has no past relevant work. (Id. at 26).

If the claimant is unable to perform his or her past relevant work – or, as in

this case, has no past relevant work – the Commissioner must finally determine

whether the claimant is capable of performing work that exists in substantial

numbers in the national economy in light of the claimant’s RFC, age, education, and

work experience. 20 C.F.R. § 416.920(a)(4)(v) and (g)(1). If the claimant is capable

of performing other work, the Commissioner will find the claimant is not disabled.

Id. at § 416.920(a)(4)(v) and (g)(1). If the claimant is not capable of performing

other work, the Commissioner will find the claimant is disabled. Id. at §

416.920(a)(4)(v) and (g)(1).

At the fifth step, considering Hendrix’s age, education, work experience, and

RFC, the ALJ determined there are jobs that exist in significant numbers in the

national economy that Hendrix can perform, such as those of counter attendant,

concession attendant, and information clerk. (Tr. at 26-27). Therefore, the ALJ

concluded Hendrix is not disabled. (Id. at 27).

III. Standard of Review

Review of the Commissioner’s decision is limited to a determination of

whether that decision is supported by substantial evidence and whether the

Commissioner applied correct legal standards. Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1158 (11th Cir. 2004). A district court must review the

Commissioner’s findings of fact with deference and may not reconsider the facts,

reevaluate the evidence, or substitute its judgment for that of the Commissioner.

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007); Dyer

v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Rather, a district court must

“scrutinize the record as a whole to determine if the decision reached is reasonable

and supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233,

1239 (11th Cir. 1983) (internal citations omitted). Substantial evidence is “such

relevant evidence as a reasonable person would accept as adequate to support a

conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id. A

district court must uphold factual findings supported by substantial evidence, even

if the preponderance of the evidence is against those findings. Miles v. Chater, 84

F.3d 1397, 1400 (11th Cir. 1996) (citing Martin v. Sullivan, 894 F.2d 1520, 1529

(11th Cir. 1990)).

A district court reviews the Commissioner’s legal conclusions de novo. Davis

v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). “The [Commissioner’s] failure to

apply the correct law or to provide the reviewing court with sufficient reasoning for

determining that the proper legal analysis has been conducted mandates reversal.”

Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

IV. Discussion

On appeal, Hendrix argues the ALJ (1) failed to fully and fairly develop the

record, which did not include a medical opinion regarding Hendrix’s functional

abilities, and (2) impermissibly “played doctor” in interpreting the evidence. (Doc.

13). In the context of the second argument, Hendrix claims the ALJ improperly

discredited her testimony regarding her pain and other subjective symptoms by

determining decreased doctors’ visits indicated improvement in her condition

without considering her testimony regarding her inability to afford medical

treatment. (Id. at 13-14).

A. RFC Determination

An ALJ cannot usurp the role of a physician by making medical findings.

Ybarra v. Comm’r of Soc. Sec., 658 F. App’x 538, 543 (11th Cir. 2016) (citing

Marbury v. Sullivan, 957 F.2d 837, 840 (11th Cir. 1992)). However, determination

of a claimant’s RFC is not a medical determination; it is a determination for an ALJ,

not a doctor. 20 C.F.R. § 416.946(c); Moore v. Soc. Sec. Admin., Com’r, 649 F.

App’x 941, 945 (11th Cir. 2016); Robinson v. Astrue, 365 F. App’x 993, 999 (11th

Cir. 2010). Therefore, an ALJ is not required to obtain a medical opinion regarding

a claimant’s functional abilities. Dodson v. Colvin, 2014 WL 2465304, at *5 (N.D.

Ala. June 2, 2014) (citing Langley v. Astrue, 777 F. Supp. 2d 1250, 1261 (N.D. Ala.

2011); Green v. Soc. Sec. Admin., 223 F. App’x 915, 923-24 (11th Cir. 2007)). What

is required is that the ALJ fully and fairly develop the record, such that substantial

evidence supports his or her determination of a claimant’s RFC. See Castle v.

Colvin, 557 F. App’x 849, 853-54 (11th Cir. 2014) (holding district court erred by

ordering ALJ to obtain consultative examination, where record was fully and fairly

developed and substantial evidence supported determination of claimant’s RFC);

Ingram, 496 F.3d at 1269 (“The [ALJ] has a duty to develop the record where

appropriate but is not required to order a consultative examination as long as the

record contains sufficient evidence for the [ALJ] to make an informed decision.”);

Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (noting ALJ’s duty to fully

and fairly develop record).

In determining a claimant’s RFC, an ALJ must consider the claimant’s

testimony of pain or other subjective symptoms. 20 C.F.R. § 416.945(a)(3); SSR

96-8p. An ALJ may discredit a claimant’s testimony regarding pain or other

subjective symptoms provided he or she clearly articulates explicit and adequate

reasons for doing so. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991);

Taylor v. Acting Comm’r of Soc. Sec. Admin., 2019 WL 581548, at *2 (11th Cir.

2019) (citing Dyer, 395 F.3d at 1210)). In evaluating a claimant’s testimony

regarding the intensity, persistence, and limiting effects of his symptoms, an ALJ

considers all available evidence, including objective medical evidence; the type,

dosage, and effectiveness of medication taken to alleviate symptoms; and treatment

other than medication received to relieve symptoms. 20 C.F.R. § 416.929(c).

Moreover, while failure to seek treatment is an appropriate consideration in

evaluating a claimant’s subjective testimony, an ALJ cannot draw an adverse

inference from a claimant’s failure to seek treatment without considering

explanations. See Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (citing

Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)); Henry v. Comm’r of Soc.

Sec., 802 F.3d 1264, 1267-68 (11th Cir. 2015); SSR 16-3p. For example, poverty

excuses a claimant’s failure to comply with recommended treatment. See Ellison,

355 F.3d at 1275 (citing Dawkins, 848 F.2d at 1213); Henry, 802 F.3d at 1268; SSR-

16-3p.

Throughout her first pregnancy, Hendrix experienced headaches with nausea

and vomiting. (Tr. at 267-70, 272-76, 298-302). In February 2013, at twenty-one

weeks gestation, she was admitted to the hospital after presenting with an intense

right-sided headache and the inability to open her right eye. (Id. at 269-70). She

was diagnosed with a right intracranial hypervascularity (i.e., a congested right

cavernous sinus), believed to be related to a congenital facial nevus (i.e., birth mark)

and to physiologic increase in blood volume during pregnancy. It was further

believed the hypervascularity caused right third cranial nerve palsy. (Id. at 328, 349-

52). She had an emergency Caesarean section on May 31, 2013, after developing

eclampsia and experiencing a seizure. (Id. at 285, 473).

Hendrix was readmitted to Athens-Limestone Hospital on or about June 5,

2013, with fever, malaise, and high blood pressure. After developing a headache

with left-sided numbness and experiencing two seizures, a brain MRI revealed a

right temporal intracerebral hemorrhage. At that point, Hendrix was transferred to

the University of Alabama at Birmingham Hospital, where she remained

hospitalized for approximately one week until her pain and blood pressure were

under control. (Id. at 285, 291, 307, 324, 473, 485).

A brain MRI performed on July 30, 2013, showed Hendrix’s hemorrhage had

resolved. (Id. at 329). However, Hendrix reported ongoing headaches and double

vision at that time. (Id. at 328). Hendrix was treated for headaches at the Athens-

Limestone Hospital Emergency Department approximately twenty-two times

between July 2013 and September 2016. (Id. at 412-21, 429-71, 570-73, 583-92,

597-99, 604-15).

Hendrix presented to a neurologist at the Kirklin Clinic at the University of

Alabama at Birmingham in April 2016, complaining of frequent headaches. (Id. at

642). The neurologist noted Hendrix’s pain was “generally more constant,” with

waxing and waning nausea, as well as light and noise sensitivity at times. (Id.). He

documented that he thought a good number of Hendrix’s headaches were “rebound”

headaches attributable to over-the-counter medication and instructed her to reduce

those medications. (Id. at 644). When Hendrix returned for a follow-up appointment

in May 2016, she told the neurologist she was “about the same.” (Id. at 645). The

neurologist changed Hendrix’s prescription medication and discussed the possibility

of pain management in the future pending a clinical course of treatment. (Id. at 645,

647). Although the neurologist instructed Hendrix to return in one month (id. at

647), there is no record of a follow-up visit.

During the hearing before the ALJ in January 2017, Hendrix testified she

continues to experience daily, constant migraines of varying intensity, with such

associated symptoms as dizziness. (Id. at 42-43). She further testified over-the-

counter pain medication does not help and that lying down in a dark room and using

an ice pack provides limited relief. (Id. at 42-43).

Hendrix also testified she worked at Custom Polymers for one month in April

2016, but that she was sent home after she had a nose bleed at work caused by high

blood pressure. (Id. at 40). Her employer would not allow her to return until her

doctor released her to work with no restrictions, and her doctor would only send

work excuses. (Id.). Moreover, when she applied for other jobs, she was told she

was not hirable because employers were worried about complications of her medical

conditions occurring at work. (Id. at 40-41).

The ALJ determined Hendrix’s medically determinable impairments could

reasonably be expected to produce her alleged symptoms but that Hendrix’s

statements regarding the intensity, persistence, and limiting effects of those

symptoms are not entirely consistent with the medical and other evidence. (Id. at

25). In discrediting Hendrix’s testimony she is dizzy most of the time due to

migraines, the ALJ noted Hendrix generally did not report this symptom to her

treating physicians. (Id. at 26). That is not an unfair characterization of the evidence.

In discrediting Hendrix’s allegation of disability due to seizures, the ALJ

characterized the evidence as showing a relatively limited number of seizures that

have declined in frequency over time. (Id.). This is not an unfair characterization,

either. The medical evidence indicates Hendrix’s first seizure in May 2013 was

related to complications experienced during her first pregnancy and the records

document only three additional seizures between that time and December 2014, the

last of which Hendrix reported was related to her consumption of diet pills. (Id. at

26, 491). While Hendrix testified during the hearing before the ALJ that she had an

additional seizure in or around December 2016, she described that episode as only a

partial seizure. (Id. at 41).

In discrediting Hendrix’s allegations regarding her headaches, the ALJ relied

on an inference Hendrix’s headaches had improved over time. (Id. at 25-26). This

inference was drawn from the observation Hendrix’s visits to medical providers and

emergency departments decreased during the relevant period. (Id. at 25-26).

However, the ALJ did not address possible explanations for Hendrix’s failure to seek

treatment with the same rate of frequency, including the possibility Hendrix stopped

seeking treatment as often as she had in the past because she could not afford to do

so. The undersigned notes Hendrix testified during the hearing that she stopped

treating with a neurologist after she lost her Medicaid coverage. (Id. at 42).

Additionally, in a letter submitted after the ALJ entered her decision, Hendrix stated

her visits to medical providers and emergency departments decreased not because

her pain has improved but, rather, because she cannot afford these visits. (Id. at 16-

17). Absent consideration of this possible explanation, the ALJ erred in relying on

Hendrix’s decreased visits to medical providers and emergency departments for the

purpose of discrediting her testimony regarding pain and other subjective symptoms

associated with her headaches. See Ellison, 355 F.3d at 1275 (citing Dawkins, 848

F.2d at 1213); SSR-16-3p. The error was not harmless because the ALJ did not

articulate independently adequate reasons for discrediting the testimony. See

Ellison, 355 F.3d at 1275 (holding ALJ’s failure to consider claimant’s ability to

afford recommended medical treatment did not constitute reversible error where ALJ

discredited claimant’s allegations of disability based primarily on factors other than

noncompliance with that treatment); Beegle v. Soc. Sec. Admin, Comm’r, 483 F.

App’x 483, 487 (11th Cir. 2012) (citing Ellison for the general proposition).

B. Appropriate Remedy

In MacGregor, the Eleventh Circuit held that where an ALJ fails to articulate

reasons for discrediting a claimant’s testimony regarding his or her subjective

symptoms, that testimony must be accepted as true. 786 F.2d at 1054. In Hale, the

court noted that implicit in MacGregor’s holding is the requirement that articulated

reasons for discrediting a claimant’s testimony be supported by substantial evidence.

831 F.2d at 1012. Accordingly, the court held that where an ALJ’s reasons for

discrediting a claimant’s testimony are not supported by substantial evidence, that

testimony must be accepted as true. Id. The Eleventh Circuit has subsequently

declined to apply the holding of MacGregor on the ground its decisions preceding

MacGregor remanded cases upon finding an inadequate credibility determination.

Lawton v. Comm’r of Soc. Sec., 431 F. App’x 830, 835 (11th Cir. 2011) (citing

Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984); Wiggins v. Schweiker, 679

F.2d 1387, 1390 (11th Cir. 1982)); Davis v. Comm’r of Soc. Sec., 449 F. App’x 828,

833 n.1 (11th Cir. 2011) (citing Wiggins); see also Cohen v. Office Depot, Inc., 204

F.3d 1069, 1072 (11th Cir. 2000) (explaining that where two Eleventh Circuit panel

decisions are in conflict, the earliest in time controls). On the persuasive authority

of Lawton and Davis, remand is the appropriate remedy for the ALJ’s error in

evaluating Hendrix’s testimony regarding her pain. See also Iheanacho v. Berryhill,

2018 WL 4680173, at *2 (N.D. Ala. Sept. 28, 2018) (remanding case after

concluding ALJ’s negative credibility finding was not supported by substantial

evidence).

V. Conclusion

Having reviewed the administrative record and considered all the arguments

presented by the parties, the undersigned find the Commissioner’s decision is not in

accordance with applicable law or supported by substantial evidence. Therefore, the

decision is due to be reversed and remanded for further consideration. A separate

order will be entered.

DONE this 30th day of September, 2019.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

15