Embry v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STACY EMBRY, )

)

Plaintiff, )

)

v. )

) Case No.: 2:18-cv-02116-SGC

SOCIAL SECURITY )

ADMINISTRATION, Commissioner, )

)

Defendant. )

MEMORANDUM OPINION1

The plaintiff, Stacy Embry, appeals from the decision of the Commissioner of

the Social Security Administration (the “Commissioner”) denying her applications

for Disability Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”). Embry timely pursued and exhausted her administrative remedies, and the

Commissioner’s decision is ripe for review pursuant to 42 U.S.C §§ 405(g) and

1383(c)(3). For the reasons discussed below, the Commissioner’s decision is due to

be reversed and remanded.

I. Procedural History

Embry completed the ninth grade and later obtained her GED. (Tr. at 391).

She has previously been employed as an office helper, a pizza delivery driver, a

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. 10).

telephone operator, and a waitress. (Id. at 25, 38-40, 189-90). In her applications

for DIB and SSI, Embry alleged she became disabled on January 1, 2014, due to

multiple strokes. (Id. at 78, 92). She later amended the alleged onset date of her

disability to June 28, 2015. (Id. at 18). After her claims were denied, Embry

requested a hearing before an administrative law judge (“ALJ”). (Id. at 124).

Following a hearing, the ALJ denied Embry’s claims. (Id. at 18-27). Embry was

forty-three years old when the ALJ issued his decision. (Id. at 26-27). After the

Appeals Council denied review of the ALJ’s decision (id. at 1-4), 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, Embry 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. §§ 416(i)(1)(A), 423(d)(1)(A), 1382c(a)(3)(A); 20

C.F.R. §§ 404.1505(a), 416.905(a). Furthermore, a claimant must show she was

disabled between her alleged initial onset date and her date last insured. Mason v.

Comm’r of Soc. Sec., 430 F. App’x 830, 831 (11th Cir. 2011) (citing Moore v.

Barnhart, 405 F.3d 1209, 1211 (11th Cir. 2005); Demandre v. Califano, 591 F.2d

1088, 1090 (5th Cir. 1979)). The Social Security Administration (“SSA”) employs

a five-step sequential analysis to determine an individual’s eligibility for disability

benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

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

“substantial gainful activity.” Id. at §§ 404.1520(a)(4)(i), 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 §§ 404.1520(a)(4)(i) and (b), 416.920(a)(4)(i) and

(b). At the first step, the ALJ determined Embry met the SSA’s insured status

requirements through September 30, 2016, and has not engaged in substantial

gainful activity since June 28, 2015. (Tr. at 20).

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. §§

404.1520(a)(4)(ii), 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 §§ 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and (c). At the

second step, the ALJ determined Embry has the following severe impairments: (1)

residual effects of multiple cerebral vascular accidents and (2) neurocognitive

disorder. (Id. at 20).

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

Commissioner must then determine whether the impairment or combination of

impairments meets or equals one of the “Listings” found in 20 C.F.R. Part 404,

Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the

claimant’s impairment or combination of impairments meets or equals one of the

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

404.1520(a)(4)(iii) and (d), 416.920(a)(4)(iii) and (d). At the third step, the ALJ

determined Embry does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the Listings. (Tr. at 21).

If the claimant’s impairment or combination of impairments 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. §§

404.1520(e), 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 §§ 404.1520(a)(4)(iv) and (e), 416.920(a)(4)(iv)

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

Commissioner will find the claimant is not disabled. Id. at §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv).

Before proceeding to the fourth step, the ALJ determined Embry has the RFC

to perform a limited range of light work. (Tr. at 22-23).2 At the fourth step, the ALJ

determined Embry is not able to perform her past relevant work. (Id. at 25).

If the claimant is unable to perform her past relevant work, the Commissioner

must finally determine whether the claimant is capable of performing other 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. §§ 404.1520(a)(4)(v) and

(g)(1), 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 §§

404.1520(a)(4)(v) and (g)(1), 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 §§ 404.1520(a)(4)(v) and (g)(1), 416.920(a)(4)(v) and (g)(1).

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

RFC, the ALJ determined there are jobs existing in significant numbers in the

national economy that Embry can perform, such as those of marker, cleaner, and

power screwdriver operator. (Tr. at 26). Therefore, the ALJ concluded Embry is

not disabled. (Id. at 27).

2 Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying

of objects weighing up to 10 pounds” and may require “a good deal of walking or standing . . . or

. . . involve[] sitting most of the time with some pushing and pulling of arm or leg controls.” 20

C.F.R. §§ 404.1567(b), 416.967(b).

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, Embry argues the ALJ (1) improperly discredited her testimony

regarding her subjective symptoms and (2) failed to account for the opinion of Dr.

Charlotte E. Menzel. (Doc. 13). The undersigned will consider the second alleged

error in conjunction with the first.

A. Evaluation of Subjective Symptoms Testimony

A claimant may establish disability through testimony of pain or other

subjective symptoms. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). To

do so, she must satisfy the three-part “pain standard,” by showing (1) evidence of an

underlying medical condition and either (2) objective medical evidence that

confirms the severity of the alleged pain or other subjective symptoms arising from

that condition or (3) that the objectively determined medical condition is of such a

severity that it can reasonably be expected to give rise to the alleged pain or other

subjective symptoms. Id.; see also Taylor v. Acting Comm’r of Soc. Sec. Admin.,

2019 WL 581548, at *2 (11th Cir. 2019) (citing Dyer, 395 F.3d at 1210); 20 C.F.R.

§ 404.1529, 416.929; SSR 16-3p. A claimant’s testimony of disabling subjective

symptoms supported by medical evidence that satisfies the pain standard is sufficient

to support a finding of disability. Brown, 921 F.2d at 1236 (citing Hale v. Bowen,

831 F.2d 1007, 1011 (11th Cir. 1987); MacGregor v. Bowen, 786 F.2d 1050, 1054

(11th Cir. 1986); Landry v. Heckler, 782 F.2d 1551, 1552 (11th Cir. 1986)).

An ALJ may discredit a claimant’s subjective symptoms testimony provided

he clearly articulates explicit and adequate reasons for doing so. Brown, 921 F.2d

at 1236; Taylor, 2019 WL 581548, at *2 (citing Dyer, 395 F.3d at 1210). In

evaluating a claimant’s testimony and other statements regarding the intensity,

persistence, and limiting effects of her symptoms, an ALJ considers all available

evidence. 20 C.F.R. § 404.1529(c), 416.929(c).

Several days after a motor vehicle accident in June 2015, Embry presented to

the emergency department at St. Vincent’s East in Birmingham, Alabama with

confusion and slurred speech. (Tr. at 322). Imaging confirmed Embry had

experienced a stroke and also showed evidence of past strokes. (Id.). In a function

report completed on behalf of Embry, Embry’s mother stated Embry spends the

entirety of her day watching television and sleeping. (Id. at 211). Similarly, during

the hearing before the ALJ, Embry testified she spends most of her day sitting at

home. (Id. at 42). Both in the function report and during a consultative physical

examination in October 2015, Embry’s mother reported Embry generally does not

help with any household chores. (Id. at 384). During the consultative physical

examination, Embry’s mother stated that while she believes Embry is physically

capable of performing light, simple chores, Embry cannot process a request to

perform a chore or instructions for performing a chore, nor can she comprehend or

plan a task. (Id.). She also stated the residual stroke symptoms most troublesome

to Embry are problems with memory and concentration. (Id. at 383). Similarly, in

the function report, Embry’s mother stated Embry does not follow written or spoken

instructions well. (Id. at 216). During the hearing, Embry testified she cannot

remember the circumstances surrounding her June 2015 stroke or what she watches

on television, and she could not describe other problems she experiences with

memory and concentration. (Id. at 40, 42).

The ALJ determined Embry’s medically determinable impairments could

reasonably be expected to cause some of her alleged symptoms but that Embry’s

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

symptoms are not entirely consistent with the medical and other evidence of record.

(Id. at 23). The undersigned discerns the following as the ALJ’s reasons for

discrediting testimony and statements made by Embry and her mother regarding

Embry’s subjective symptoms:

First, the ALJ noted records from Embry’s hospitalization between June 28,

2015, and July 2, 2015, following a stroke, document Embry was experiencing

“some” difficulty with speech and “some” left extremity weakness. (Id. at 23). The

undersigned infers from the use of the word “some” that the ALJ viewed this medical

evidence as supporting functional limitations short of disability. This determination

is in error to the extent it omits any mention or discussion of a statement made by

Dr. Charlotte E. Menzel upon discharging Embry from the hospital. In her discharge

summary, Dr. Menzel stated as follows:

[Embry] should be considered for disability. She is unable to perform

a job due to cognitive difficulties. She lacks insight and judgment, and

has apraxia3 which would prevent her from working. This deficit is

expected to last greater than one year, as it is due to permanent damage

from strokes.

(Id. at 323). While Dr. Menzel’s belief Embry is unable to work and should be

considered for disability are issues reserved to the Commissioner, see 20 C.F.R. §§

404.1527(d) (identifying opinions on issues reserved to Commissioner), 416.927(d)

(same), her statements regarding Embry’s apraxia and lack of insight and judgment,

including her prognosis regarding these deficits, reflect a judgment about the nature

and severity of Embry’s impairment and, as such, constitute a medical opinion, see

20 C.F.R. §§ 404.1527(a)(1) (defining “medical opinion”), 416.927(a)(1) (same).

An ALJ is required to state with particularity the weight given a medical opinion and

the reasons for doing so. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179

(11th Cir. 2011) (holding physician’s treatment notes, which included description of

3 “Apraxia is the inability to execute purposeful, previously learned motor tasks, despite physical

ability and willingness, as a result of brain damage.” See

https://www.merckmanuals.com/professional/neurologic-disorders/function-and-dysfunction-of-

the-cerebral-lobes/apraxia (last visited October 23, 2019).

claimant’s symptoms, a diagnosis, and a judgment about the severity of claimant’s

impairments, were medical opinions to which the ALJ was required to assign a

particular weight and explain reasons for doing so). An ALJ’s failure to clearly

articulate the weight assigned to a medical opinion is an error that requires reversal

and remand. See McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 962 (11th Cir.

2015) (“In the absence of [a clear articulation of the weight given different medical

opinions], it is impossible for a reviewing court to determine whether the ultimate

decision on the merits of the claim is rational and supported by substantial

evidence[,]” and “ ‘we will decline to affirm simply because some rationale might

have supported the ALJ’s conclusion.’” (quoting Winschel, 631 F.3d at 1179)).

Absent the clear articulation of a legally sufficient basis for discrediting Dr.

Menzel’s medical opinion, the record of Embry’s hospitalization in the summer of

2015 is not an adequate reason for discrediting her subjective symptoms testimony.

Second, the ALJ noted that after discharge from the hospital on July 2, 2015,

Embry did not follow up with any physician until April 2016. (Id. at 23).4 While

failure to seek or comply with treatment is an appropriate consideration in evaluating

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

4 While the Commissioner claims Embry denied the option of inpatient rehabilitation following

her discharge from the hospital (Doc. 14 at 8), the medical records indicate the inpatient

rehabilitation facility contacted by the hospital denied to make a “charity bed” available to Embry

(Tr. at 323, 329, 353). Therefore, the Commissioner’s reliance on Embry’s discharge home, rather

than to an inpatient rehabilitation facility, to support the ALJ’s determination Embry’s alleged

subjective symptoms are not as severe as alleged is based on a misreading of the record.

inference from a claimant’s failure to seek or comply with 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.

The ALJ did not consider possible explanations for the period that elapsed

between Embry’s release from the hospital in July 2015 and her next contact with a

medical provider in April 2016, notwithstanding the existence of evidence in the

record that would support a determination Embry’s financial circumstances

accounted for any delay. For example, during a consultative psychological

examination performed by Dr. William B. Beidleman in November 2015, Embry’s

mother reported she gave her prescription medication to Embry because Embry did

not have insurance. (Tr. at 390). Moreover, when Embry established care with a

primary care physician in April 2016, she reported she ceased taking cholesterol

medication because she could not afford it. (Id. at 409). Finally, during an

occupational therapy evaluation later that month, Embry’s mother reported Embry

had never received speech therapy in the past due to financial burdens. (Id. at 405).

Absent consideration of the foregoing, the period that elapsed between Embry’s

release from the hospital in July 2015 and her next contact with a medical provider

in April 2016 is not an adequate reason for discrediting Embry’s subjective

symptoms testimony.

Third, the ALJ discussed medical evidence post-dating Embry’s June 2015

stroke that he determined demonstrates Embry’s physical ability to perform a limited

range of light work. (Id. at 24). For example, during the October 2015 consultative

physical examination, Dr. Nathaniel Hernandez found Embry had a minimal left-

sided limp with no evidence of instability and had full range of motion in her upper

and lower extremities, with the exception of only slightly impaired strength (4+/5)

in her left elbow flexors, left wrist extensors, left wrist flexors, and left grip. (Id. at

385-86). Based on these and other findings, Dr. Hernandez opined Embry had the

physical ability to carry ten pounds occasionally and five pounds frequently, stand

six hours during a day, walk six hours during a day, and frequently perform postural

activities and manipulative activities with her left upper extremity. (Id. at 387-88).5

Additionally, records document that a course of occupational therapy in which

Embry participated between April 2016 and June 2016 resulted in some

improvement in her physical condition. (Id. at 402-03, 396). Regardless of her

physical abilities, it is her impaired cognitive functioning on which Embry primarily

5 The ALJ determined Dr. Hernandez’s opinion regarding the amount of weight Embry is

physically capable of lifting is not supported by other evidence. (Tr. at 25).

relies to establish disability.

To that end, as a fourth reason for discrediting Embry’s subjective symptoms

testimony, the ALJ discussed medical evidence post-dating Embry’s June 2015

stroke that he determined demonstrates Embry’s cognitive ability to perform a

limited range of light work. (Id. at 24). With respect to the consultative

psychological examination performed by Dr. Beidleman in November 2015, the ALJ

found that Embry “reportedly had poor recent and remote memory and a poor fund

of general information.” (Id.). To the extent the ALJ’s use of the word “reportedly”

implies Embry or her mother alleged these deficiencies to Dr. Beidleman, it is

misleading. Based on his examination of Embry’s mental status, Dr. Beidleman

made findings that while Embry was able to accurately perform some tests of

cognition (e.g., she was able to count backwards from 20 to 1 correctly and quickly;

she was able to correctly repeat three words immediately and after five minutes; and

she knew the president, governor, and situation in Afghanistan), on the whole her

concentration and attention “appeared to be poor,” her recent and remote memory

were “not very good,” her general fund of information was “quite poor,” her thought

process and content were “only fair,” and her judgment and insight “appeared to be

poor.” (Id. at 391-92). Dr. Beidleman diagnosed Embry with a mild neurocognitive

disorder of multiple etiologies, with probable behavioral disturbance, and opined

that while Embry should be able to respond appropriately to fellow employees and

supervisors, she would have difficulty coping with ordinary work pressures. (Id. at

24).

Dr. Beidleman’s findings Embry was, or appeared to be, lacking in multiple

components of mental functioning and his opinion Embry would have difficulty

coping with ordinary work pressures are not inconsistent with Embry’s subjective

symptoms testimony. Moreover, Dr. Beidleman’s opinion Embry should be able to

respond appropriately to fellow employees and supervisors speaks to Embry’s

interpersonal capabilities and does not undermine her allegations of disabling

limitations related to memory and concentration.

Dr. Beidleman concluded his report by noting Embry’s motivation and

cooperation during the examination were “uneven and barely adequate for valid

results” and that it would be important to obtain a neurological evaluation to confirm

Embry’s functional neurological difficulties. (Id. at 392). Given this equivocation,

even if Dr. Beidleman had made findings and expressed opinions inconsistent with

Embry’s subjective symptoms testimony, whether these findings and opinions

constituted substantial evidence supporting the ALJ’s credibility determination

would be called into serious question.

The ALJ also found that records of speech therapy in which Embry

participated between June 2016 and August 2016 show “good results” – namely, that

by mid-August 2016, Embry could perform orientation tasks with 100% accuracy

and process increasingly complex units of information with 90% accuracy. (Id. at

24, 416). Even so, when Embry returned to her primary care physician in January

2017, she reported that while her left-sided numbness had improved, other

symptoms had worsened. (Id. at 425). More specifically, she reported her

expressive aphasia6 was worse, which was frustrating her and her family members

to the extent her physician discussed creating a communication board; she was

experiencing uncontrolled anger outbursts for regular things; and she was wandering

through the house at night. (Id.). In June 2017, Embry did report to her primary

care physician that she was no longer experiencing uncontrolled anger outbursts or

wandering through the house at night. (Id. at 421). While she also reported her

family was no longer feeling frustrated with her expressive aphasia, a notation she

was staying with her boyfriend calls into questions whether her expressive aphasia

had improved or, rather, her family simply had less exposure to it. (Id.). To the

extent the ALJ cited the speech therapy records in support of his negative credibility

determination without discussing subsequent medical records documenting Embry’s

worsening symptoms, that determination was in error. See Chambers v. Astrue, 671

F. Supp. 2d 1253, 1258 (N.D. Ala. 2009) (“The ALJ cannot pick and choose among

6 “Aphasia is a language dysfunction that may involve impaired comprehension or expression of

words or nonverbal equivalents of words.” See

https://www.merckmanuals.com/professional/neurologic-disorders/function-and-dysfunction-of-

the-cerebral-lobes/aphasia (last visited October 23, 2019).

a doctor’s records to support his own conclusion.”)

Fifth, the ALJ determined Embry’s alleged very limited daily activities

“cannot be objectively verified with any reasonable degree of certainty,” and that

even if as limited as alleged, “it is difficult to attribute that degree of limitation to

[Embry’s] medical condition, as opposed to other reasons, in view of the relatively

weak medical evidence and other factors discussed in this decision.” (Tr. at 24-25).

Whatever the ALJ considers to be objective evidence verifying a claimant’s reported

daily activities, courts sitting in this judicial district have noted lack of objective

verification is not an adequate reason for discrediting a plaintiff’s description of

limited daily activities. See Grier v. Colvin, 117 F. Supp. 3d 1335, 1353 (N.D. Ala.

2015); Iheanacho v. Berryhill, 2018 WL 4680173, at *8 (N.D. Ala. Sept. 28, 2018).

Moreover, whatever the “other reasons” to which the ALJ believes Embry’s

limitations are attributable, he has failed to explain the attribution. Although he cites

“the relatively weak medical evidence and other factors discussed in [his] decision”

as underlying the attribution, the undersigned has explained in the discussion above

why the reasons to which the ALJ alludes for discrediting Embry’s subject

symptoms testimony are insufficient.

Finally, the Commissioner argues the opinion of the state agency medical

consultant supports the ALJ’s negative credibility determination. (Doc. 14 at 13).

Although the state agency medical consultant did opine Embry’s alleged subjective

symptoms are only partially credible (Tr. at 84, 98), that opinion is not sufficient

evidence on which to rest a negative credibility determination. See Lamb v. Bowen,

847 F.2d 698, 703 (11th Cir. 1988) (“The reports of reviewing nonexamining

physicians do not constitute substantial evidence on which to base an administrative

decision.”).

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 Embry’s testimony regarding her subjective symptoms. See also

Theanacho, 2018 WL 4680173, at *2 (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 lst day of November, 2019.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

19