Hasberry v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SHARON HASBERRY, }

}

Plaintiff, }

}

v. } Case No.: 2:18-cv-547-MHH

}

ANDREW SAUL, Commissioner of }

the Social Security Administration,1 }

}

Defendant. }

MEMORANDUM OPINION

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

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

Commissioner denied Ms. Hasberry’s claim for a 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. Hasberry applied for a period of disability and disability insurance

benefits. (Doc. 6-3, p. 11; Doc. 6-6, p. 2). Ms. Hasberry alleges her disability began

on June 4, 2014. (Doc. 6-3, p. 11; Doc. 6-6, p. 2). The Commissioner denied Ms.

Hasberry’s claim. (Doc. 6-4, pp. 8-11; Doc. 6-5, pp. 2-6).

Ms. Hasberry requested a hearing before an Administrative Law Judge (ALJ).

(Doc. 6-5, pp. 7-10). (Doc. 6-3, p. 33). After the hearing, the ALJ issued an

unfavorable decision. (Doc. 6-3, pp. 8-21). The Appeals Council declined Ms.

Hasberry’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 the evidence preponderates

against the Commissioner’s findings.” Costigan v. Comm’r, Soc. Sec. Admin., 603

Fed. Appx. 783, 786 (11th Cir. 2015) (citing Crawford, 363 F.3d at 1158).

With respect to the ALJ’s legal conclusions, the Court must determine

whether the ALJ applied the correct legal standards. If the Court finds an error in

the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide

sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,

then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d

1143, 1145-46 (11th Cir. 1991).

III. SUMMARY OF THE ALJ’S DECISION

To determine whether a claimant has proven 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. Hasberry has not engaged in substantial

gainful activity since June 4, 2014, the alleged onset date. (Doc. 6-3, p. 14). The

ALJ determined that Ms. Hasberry suffers from the following severe impairments:

degenerative disc disease with chronic cervical and lumbar pain, status post anterior

cervical discectomy and fusion; right foot pain; and status post hammertoe repair.

(Doc. 6-3, p. 14). The ALJ determined that Ms. Hasberry suffers from the following

non-severe impairments: depression and migraines. (Doc. 6-3, p. 15). In his

opinion, the ALJ did not address whether Ms. Hasberry has an impairment or a

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, but because the

ALJ continued the sequential analysis beyond step three, he impliedly determined

that Ms. Hasberry’s impairments do not meet or equal the severity of a listed

impairment. Prince v. Comm’r, Soc. Sec. Admin., 551 Fed. Appx. 967, 969 (11th

Cir. 2014) (citing Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986)).2

2 In Ms. Hasberry’s brief, she states: “At Step 3, the ALJ determined the Plaintiff did not have an

impairment or combination of impairments that met or medically equaled any listing. (R. 14).”

(Doc. 11, p. 4) (citing doc. 6-3, p. 15). The ALJ made no such finding on that page or anywhere

else in his opinion. Like the Court, Ms. Hasberry seems to infer the finding. In Hutchison, the

Eleventh Circuit wrote:

In light of Ms. Hasberry’s impairments, the ALJ evaluated her residual

functional capacity. The ALJ determined that through her date last insured, Ms.

Hasberry had the RFC to perform:

light work as defined in 20 CFR 404.1567(b) except she can stand for

no more than 30 minutes at a time, and occasionally stoop and crouch.

She should have no exposure to unprotected heights. She can handle

frequently, bilaterally; and should perform no activities involving

driving.

(Doc. 6-3, pp. 15-16) (footnote omitted).

Based on this RFC, the ALJ concluded that through the date last insured, Ms.

Hasberry could not perform her past relevant work as a security officer. (Doc. 6-3,

p. 18). The ALJ noted that Ms. Hasberry was 53 years old when she applied for

disability benefits. A person who is that age “is defined as an individual closely

approaching advanced age (20 CFR 404.1563).” (Doc. 6-3 p. 18). Relying on

testimony from a vocational expert, the ALJ found that other jobs existed in the

national economy that Ms. Hasberry could have performed, including hand

packager, cashier, and laundry folder. (Doc. 6-3, pp. 20). Accordingly, the ALJ

[T]he record indicates that the ALJ reached the final two steps of the analysis when

he determined that the appellant was unable to perform his past work and that he

did have the residual capacity for at least light work. While Appendix 1 must be

considered in making a disability determination, it is not required that the Secretary

mechanically recite the evidence leading to her determination. There may be an

implied finding that a claimant does not meet a listing. We thus consider it clear

that the ALJ, in reaching the fourth and fifth steps of the disability analysis,

implicitly found that appellant did not meet any of the Appendix 1 impairments.

Hutchison, 787 F.2d at 1463.

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

Social Security Act at any time from June 4, 2014, the alleged onset date, through

May 31, 2017, the date of the ALJ’s decision. (Doc. 6-3, p. 20).

IV. ANALYSIS

Ms. Hasberry appeals the ALJ’s decision and maintains that the ALJ

improperly evaluated her credibility under the Eleventh Circuit pain standard. (Doc.

11, p. 5). Ms. Hasberry contends that the objective medical evidence is consistent

with her subjective complaints of pain, the ALJ improperly considered her activities

of daily living without considering her limitations, and the ALJ improperly

discounted the opinion of Dr. Richard Harris. The Court agrees that the ALJ did not

base his negative credibility finding on substantial evidence. Consequently, the

Court will remand this case for further development.

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., 771 Fed. Appx. 913, 917 (11th Cir. 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., 764 Fed. Appx. 864, 868 (11th Cir. Apr. 18, 2019) (citing Wilson).

If the ALJ does not demonstrate “proper application of the three-part standard[,]”

reversal is appropriate. McLain v. Comm’r, Soc. Sec. Admin., 676 Fed. Appx. 935,

937 (11th Cir. 2017) (citing Holt).

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

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

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

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

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

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

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

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); Coley, 771 Fed. Appx. at

918. The district court must accept the claimant’s testimony, as a matter of law, if

the ALJ inadequately discredits it. 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).

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

3p apply. SSR 16-3p provides:

[W]e recognize that some individuals may experience symptoms

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

than other individuals with the same medical impairments, the same

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

considering the intensity, persistence, and limiting effects of an

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

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

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

other information provided by medical sources and other persons; and

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

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

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

[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).

At her administrative hearing, Ms. Hasberry testified that she left her previous

job in June of 2014 because she could not perform the standing and walking

requirements of the position. (Doc. 6-3, p. 46). She stated that her feet were “the

biggest thing that ke[pt her] from being able to work a full-time job.” (Doc. 6-3, p.

38). She testified that she had surgery on her right foot in the months prior to her

2017 hearing, that her foot was “still sore,” and that she was “still getting around

slowly.” (Doc. 6-3, p. 38). She stated that she had had “a lot of trouble with both

of [her] feet” and had had “multiple surgeries,” but still was “not quite right.” (Doc.

6-3, p. 38).

At the hearing, Ms. Hasberry stated that she had cervical neck surgery, but her

neck seemed worse than it was before the surgery because of the pain she was

experiencing in her neck and shoulders. (Doc. 6-3, pp. 38-39). She explained that

she could not hold her head down. (Doc. 6-3, pp. 38-39). Ms. Hasberry stated that

she has trouble gripping and holding things, and she probably cannot lift more than

ten pounds. (Doc. 6-3, p. 39). She described daily continuous pain and “pulsing” in

her hands that are like “pins moving . . . penetrating them inside my hands.” (Doc.

6-3, pp. 39-40). Ms. Hasberry reported daily shoulder “issues” as well, particularly

with her left shoulder, which make it difficult for her to raise her arm up and style

her hair. (Doc. 6-3, p. 40). Ms. Hasberry also described incision pain and swelling

secondary to surgery for breast cancer. (Doc. 6-3, pp. 40-41). She was taking

medication in connection with her breast cancer diagnosis. (Doc. 6-3, p. 41).

Ms. Hasberry testified that she suffers from depression, which made her “not

. . . able to get up and move.” (Doc. 6-3, p. 41). She stated that medication for her

depression “helps [her] to get by.” (Doc. 6-3, pp. 41-42). Ms. Hasberry also reported

that she experienced migraines “every couple months,” but medication “makes it

better.” (Doc. 6-3, p. 42).

Ms. Hasberry stated that “just standing up will get [her] feet starting hurting,”

but she estimated that she could walk up to 15 minutes at a time and stand up to 30

minutes at a time. (Doc. 6-3 p. 43). She indicated that she can sit up to 30 minutes

at a time before “it starts to radiate in the back.” (Doc. 6-3 p. 43). Ms. Hasberry

explained that she managed her pain by taking medication and lying down. (Doc.

6-3, p. 43). She testified that medication “help[ed] the neck,” but it caused

drowsiness, which caused her to have to lie down and take a nap. (Doc. 6-3, p. 44).

Ms. Hasberry testified that in an eight-hour workday she would lie down four to five

hours, mostly due to the medication she takes, but the pain also contributes. (Doc.

6-3, p. 44). Ms. Hasberry explained that she drives twice weekly from her home in

Fairfield, Alabama, either to her doctor in Montgomery or to the grocery store. (Doc.

6-3, p. 47). Like the ALJ, this Court takes judicial notice that it is about 100 miles

from Fairfield, Alabama to Montgomery, Alabama. (Doc. 6-3, p. 17, n. 2). Ms.

Hasberry reported that she could bathe, dress herself, and prepare her own food.

(Doc. 6-3, pp. 51-52). No physician has placed lifting limitations on Ms. Hasberry.

(Doc. 6-3, p. 49).

The ALJ concluded that Ms. Hasberry’s impairments meet the first part of the

pain standard, but the ALJ found that Ms. Hasberry’s subjective complaints

“concerning the intensity, persistence[,] and limiting effects of these symptoms are

not entirely consistent with the medical evidence and other evidence in the record

Y” (Doc. 6-3, p. 17). The ALJ found that the medical evidence was inconsistent

with disability and that Ms. Hasberry’s description of her symptoms was inconsistent

with her daily activities. (Doc. 6-3, p. 17). The ALJ gave “little weight” to the

opinion of Dr. Richard Harris, a non-treating physician. (Doc. 6-3, pp. 17-18). The

ALJ noted that none of Ms. Hasberry’s treating physicians had imposed restrictions

on her. (Doc. 6-3, p. 17). The Court examines each finding in turn.

A. Objective Medical Evidence

The ALJ found that, “in July 2015, the claimant underwent [an] anterior

cervical discectomy and fusion. Follow up records indicate progress and

improvement in symptoms (i.e., spine pain). X-ray results confirmed continuing

progress.” (Doc. 6-3, p. 14) (citation omitted).

Ms. Hasberry’s medical records support the ALJ’s finding that Ms. Hasberry

healed well after her surgery in 2015, but the ALJ omitted from his opinion

significant medical evidence relating to the pain that Ms. Hasberry experienced in

the months and years following the surgery. Ms. Hasberry’s “longitudinal record of

[] treatment” for neck and back pain support her pain allegations. See SSR 16-3p,

2017 WL 5180304, at *7 (“Important information about symptoms recorded by

medical sources and reported in the medical evidence may include . . . [a]

longitudinal record of any treatment and its success or failure.”); Frizzell v. Astrue,

487 F. Supp. 2d 1301, 1306 (N.D. Ala. 2007).

Dr. Jefferson Underwood was Ms. Hasberry’s primary care physician. On

June 5, 2015, Ms. Hasberry complained to Dr. Underwood of continuous neck and

hand pain which started “a couple of months ago” and “appear[ed] to be worsening.”

(Doc. 6-11, pp. 9, 15). Ms. Hasberry complained that the pain was “moderate” in

intensity but worsened with ambulation. (Doc. 6-11, p. 15). On examination, Dr.

Underwood noted that Ms. Hasberry had limited range of motion in her cervical

spine and pain with both movement and palpation. (Doc. 6-11, p. 16). Ms. Hasberry

reported that because of her neck pain, she experienced depression, arm numbness,

radiating pain, and weakness in her arm. (Doc. 6-11, p. 15). She described her hand

pain as a “moderate aching,” but she said it seemed to be getting worse. (Doc. 6-11,

p. 15). Dr. Underwood prescribed the nonsteroidal anti-inflammatory drug (NSAID)

Zipsor. A June 10, 2015 MRI of Ms. Hasberry’s cervical spine showed “C6-7

midline disc protrusion with moderate focal cord compression [and] [s]mall C3-4

and C4-5 disc protrusions with mild focal cord compression.” (Doc. 6-11, p. 31).

Dr. Underwood referred Ms. Hasberry to Neurosurgery & Spine Associates

of Central Alabama. During a visit on July 13, 2015, Ms. Hasberry described neck,

hand, and finger pain and weakness over the previous 18 months. (Doc. 6-12, p.

13). In a patient history form, Ms. Hasberry reported pain in her neck, hands, and

fingers which she rated a ten on the pain scale (“as bad as it could be”). (Doc. 6-12,

pp. 29, 32). Dr. Robert Bradley examined her, reviewed the June 10, 2015 MRI, and

diagnosed Ms. Hasberry with cervical stenosis with myelopathy. (Doc. 6-12, pp. 14,

16). Dr. Bradley scheduled Ms. Hasberry for an anterior cervical discectomy and

fusion (ACDF) at C3-4, C3-5, C5-6, C6-7. (Doc. 6-12, p. 14). Dr. Bradley saw Ms.

Hasberry again on July 27, 2015, and noted that she was about the same, with no

new symptoms. (Doc. 6-12, p. 11). Ms. Hasberry completed a “Follow-up Patient

History Sheet” on that date. In it, she reported continued pain in her neck which she

rated a ten on the pain scale. (Doc. 6-12, pp. 27-28). Dr. Bradley scheduled Ms.

Hasberry for surgery the next day. (Doc. 6-12, p. 12).

Ms. Hasberry’s medical records indicate that the surgery healed well, but the

surgery did not relieve her pain. On August 24, 2015, Dr. Bradley noted that Ms.

Hasberry’s condition had deteriorated since her previous visit. (Doc. 6-12, p. 9).

Ms. Hasberry completed a “Follow-up Patient History Sheet” in which she rated her

pain a five to six on the pain scale. (Doc. 6-12, pp. 25-26). She noted that her pre-

op neck pain had improved since surgery, but she complained of back soreness with

spasms and right arm tightness. (Doc. 6-12, p. 9). Dr. Bradley noted parascapular

tenderness on palpation and described Ms. Hasberry’s cervical range of motion as

“guarded.” (Doc. 6-12, p. 9). X-rays showed satisfactory alignment and position of

the bone plugs and instrumentation. (Doc. 6-12, p. 9). Dr. Bradley told Ms.

Hasberry to increase her activity “as tolerated” and to increase her walking and neck

movement. (Doc. 6-12, p. 10). Ms. Hasberry was to follow up with Dr. Bradley in

three months. (Doc. 6-12, p. 10).

Two months later, on October 26, 2015, Ms. Hasberry complained to Dr.

Bradley of “increased pain to her neck with associated frontal headaches” over the

weeks preceding the October 2015 appointment. (Doc. 6-12, p. 7). Ms. Hasberry

stated that her pain was “intermittent,” occurring three or more times each week.

(Doc. 6-12, p. 7). Dr. Bradley noted that Ms. Hasberry continued to have “limited”

cervical range of motion and significant left trapezius spasm with a couple of trigger

points. (Doc. 6-12, p. 7). A cervical x-ray revealed “proper positioning and

alignment of instrumentation and bone plugs at C3-4, 4-5, 5-6, 6-7.” (Doc. 6-12, p.

8). Dr. Bradley prescribed neck exercises and increased activity as tolerated, and he

directed Ms. Hasberry to report to the Center for Pain for a left cervical trigger point

injection. (Doc. 6-12, p. 8).

On December 21, 2015, Ms. Hasberry completed a “Follow-up Patient

History Sheet” and reported continued pain in her neck and back that she rated as

six out of ten on the pain scale (moderate to severe). (Doc. 6-12, pp. 21-22). Dr.

Bradley noted that Ms. Hasberry’s “pain to her lower neck and between her shoulder

blades has not improved.” (Doc. 6-12, p. 5). Dr. Bradley also noted that previous

treatments included trigger point injections which Ms. Hasberry reported “did not

relieve the pain at all.” (Doc. 6-12, p. 5). On examination, Ms. Hasberry had

decreased range of motion in her neck and significant tenderness from C6-T7. (Doc.

6-12, p. 5). A lateral cervical spine x-ray done that day “continue[d] to show

satisfactory alignment and position of the instrumentation and bone plugs. The

fusions appear to be progressing well.” (Doc. 6-12, p. 6). Dr. Bradley prescribed

Zanaflex and physical therapy. (Doc. 6-12, p. 6).

On May 9, 2016, Ms. Hasberry reported to nurse practitioner Heather Wilson

at Neurosurgery & Spine Associates of Central Alabama, complaining of “severe”

pain in her neck, spine, arms, hands, and shoulders “for the last few months.” (Doc.

6-12, pp. 3, 19-20). By this point, Ms. Hasberry was experiencing stiffness and

bilateral shoulder pain daily, which worsened with increased activity. (Doc. 6-12,

p. 3). A cervical spine x-ray showed satisfactory alignment and position of the

instrumentation and bone plug, and Ms. Wilson noted that the fusion appeared solid

at C6-7. (Doc. 6-12, p. 4). On examination, Ms. Hasberry had adequate range of

motion in her neck, with bilateral trapezius tenderness. (Doc. 6-12, p. 3). Her

thoracic spine exam revealed mild T1-3 tenderness with no palpable deformity.

(Doc. 6-12, p. 4). Ms. Hasberry’s lumbar spine-range of motion was normal for her

age, and there was no significant tenderness to palpation. (Doc. 6-12, p. 4). Ms.

Hasberry’s straight leg raise was negative bilaterally, and her extremities revealed

no atrophy or obvious deformity with good range of motion. (Doc. 6-12, p. 4). Ms.

Wilson recommended physical therapy and a follow up with Dr. Pirofsky. (Doc. 6-

12, p. 4).

Dr. Pirofsky referred Ms. Hasberry to the Center for Pain Prattville. (Doc. 6-

12, p. 56). Dr. Aaron Shinkle and nurse practitioner Jennifer Summersill of the

Center for Pain treated Ms. Hasberry from December 21, 2016, through March 28,

2017. (Doc. 6-12, pp. 56-76). The ALJ alludes to these records in his opinion,

noting only that they “document little more than routine follow up, symptomatic

treatment, and medication management as needed.” (Doc. 6-3, p. 15). In fact, these

records document Ms. Hasberry’s severe and increasing pain.

On December 21, 2016, Ms. Hasberry went to the Center for Pain,

complaining of pain in her back, neck, shoulder, and hand, and reporting that trigger

point injections had given her “0% relief.” (Doc. 6-12, p. 56). Ms. Summersill noted

that “[t]he patient rates her pain as 10/10,” and “[t]he pain is made worse with sitting,

standing, walking, driving, exercise, sexual intercourse, and physical activity.”

(Doc. 6-12, p. 56). The December 2016 medical record states that Ms. Hasberry was

“able to perform [activities of daily living] with the current treatment.” (Doc. 6-12,

p. 56). Ms. Summersill noted that trigger point injections were ineffective in

relieving pain. (Doc. 6-12, p. 56). Ms. Hasberry had a reduced range of motion in

her cervical spine and a positive Spurling test bilaterally. (Doc. 6-12, p. 58).3 Ms.

Hasberry was diagnosed with “Chronic pain syndrome” for which she would need

“long term (current) use of opiate analgesic.” (Doc. 6-12, p. 58). Ms. Hasberry was

3 Physicians use the Spurling test to diagnose cervical radiculopathy, otherwise known as a pinched

nerve in the cervical spine. See healthline.com/health/spurling-test and

healthline.com/health/radiculopathy (last visited Aug. 12, 2019).

The ALJ reported that Ms. Hasberry “had ‘very good range of motion of every small, medium,

and large sized joint of the upper and lower extremities on both sides of the body’” (Doc. 6-3, p.

15), but omitted reference to the cervical spine evidence. (See also Doc. 6-3, p. 17).

obese. (Doc. 6-12, pp. 58-59). Ms. Hasberry was prescribed the narcotic Norco.

(Doc. 6-12, pp. 56, 59).

On January 18, 2017, Ms. Hasberry returned to the Center for Pain

complaining of back and neck pain which she described as “sharp, aching, and

stinging,” and “radiating to the upper back and bilateral knees and bilateral hands.”

(Doc. 6-12, p. 60). Ms. Summersill noted that “[t]he patient rates her pain as 10/10,”

and that the pain had not improved since Ms. Hasberry’s last visit. (Doc. 6-12, p.

60). Ms. Hasberry again had reduced range of motion and a positive Spurling test,

but she was able to perform activities of daily living with medication. (Doc. 6-12,

pp. 60, 62). Ms. Hasberry was prescribed ten milligrams of the narcotic Percocet,

dosed at one-half of a tablet three times daily as needed, and Norco was eliminated

from her medications. (Doc. 6-12, pp. 60, 63).

Ms. Hasberry saw Ms. Summersill again on February 13, 2017, March 15,

2017, and March 28, 2017. (Doc. 6-12, pp. 64, 68, 73). At each visit, Ms. Hasberry

complained of lower back and neck pain, which she rated eight out of ten. (Doc. 6-

12, pp. 64, 68). On February 13, 2017, Ms. Summersill increased the frequency of

Ms. Hasberry’s dose of Percocet from three times daily to four. (Doc. 6-12, p. 67).

At her March 15, 2017 appointment, Ms. Summersill reported that “[t]he current

medication is increasing function” and that Ms. Hasberry was able to perform

activities of daily living with medication. (Doc. 6-12, p. 68). Ms. Summersill

increased Ms. Hasberry’s Percocet to one whole tablet two or three times daily as

needed. (Doc. 6-12, p. 71). An MRI dated March 17, 2017, revealed “[t]ransitional-

type L5 vertebra with left-sided hemisacralization” and “[d]egenerative disc and

facet changes throughout the lower lumbar spine . . . most pronounced at L3-L4.”

(Doc. 6-12, p. 72). At her last recorded visit on March 28, 2017, Ms. Hasberry

reported that the plate in her neck caused swelling and difficulty breathing and

swallowing. (Doc. 6-12, p. 73). Ms. Hasberry “complain[ed] mostly of pain in her

tailbone and it makes it hard to sit down for long periods of time.” (Doc. 6-12, p.

73). Ms. Summersill scheduled Ms. Hasberry for a steroid injection and continued

her on Percocet at the same levels and frequency as her previous visit. (Doc. 6-12,

p. 75).

The ALJ’s opinion that Ms. Hasberry’s cervical surgery caused her back pain

to improve is undercut by the fact that for nearly two years after her surgery, Ms.

Hasberry’s physicians increasingly prescribed narcotics to treat pain. (Doc. 6-3, p.

14); see Frizzell, 487 F. Supp. 2d at 1307 (Commissioner erred in refusing to credit

the plaintiff’s pain evidence in part due to evidence of prescriptions for narcotic and

anti-inflammatory pain medications with multiple refills). Because these records

corroborate Ms. Hasberry’s reports of pain, the ALJ should have addressed them.

See Robinson v. Colvin, No. 5:12-CV-1954-AKK, 2014 WL 2214294, at *5 (N.D.

Ala. May 28, 2014) (finding that it was unreasonable for the ALJ to rely on a

“snapshot” of treatment notes that showed improvement and ignore later notes

outlining the reoccurrence of pain); see also SSR 16-3p, 2016 WL 1119029, at *6.

(“Important information about symptoms recorded by medical sources and reported

in the medical evidence may include, but is not limited to . . . change over a period

of time (e.g., whether worsening, improving, or static)[.]”).

Ms. Hasberry’s records indicate not only a history of back pain but also a

history of fibromyalgia. On August 1, 2016, Ms. Hasberry saw Dr. Sohrab Fallahi

who diagnosed Ms. Hasberry with fibromyalgia. (Doc. 6-12, pp. 53-54). The ALJ

noted that on October 3, 2016, Dr. Fallahi documented that Ms. Hasberry “‘has [a]

very good range of motion of every small, medium, and large sized joint of the upper

and lower extremities on both sides of the body.’” (Doc. 6-3, p. 15) (quoting Doc.

6-12, p. 51). The ALJ overlooked Ms. Hasberry’s complaints to Dr. Fallahi that she

was “hurting all over her body, especially the shins” and that she had “soreness in

the flesh around the joints and in the upper and lower parts of the back.” (Doc. 6-

12, pp. 51, 52). The Eleventh Circuit Court of Appeals has noted that “there is no

rigid requirement that the ALJ specifically refer to every piece of evidence in his

decision, so long as the ALJ’s decision ... is not a broad rejection which is not enough

to enable [a reviewing court] to conclude that the ALJ considered [the claimant’s]

medical condition as a whole.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780,

782 (11th Cir. 2014) (internal quotations and citations omitted). Still, an ALJ

“cannot pick and choose among a doctor’s records to support his own conclusion.”

Chambers v. Astrue, 671 F. Supp. 2d 1253, 1258 (N.D. Ala. 2009). It was error for

the ALJ to refer to one part of Dr. Fallahi’s records without considering the records

in their entirety.

Finally, in reviewing the treatment records, the ALJ noted, “no treating doctor

has indicated that the claimant was disabled or otherwise unable to perform any work

related activities.” (Doc. 6-3, p. 17). The point is irrelevant because the issue of

disability is reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1). Substantial

evidence does not support the ALJ’s finding that objective medical evidence

demonstrated that Ms. Hasberry’s back pain improved following her surgery in July

2015. Though images indicate healing in the cervical spine following the July 2015

surgery, Ms. Hasberry’s 2017 MRI revealed degenerative changes in her lower back.

B. Activities of Daily Living

In evaluating Ms. Hasberry’s credibility, the ALJ also considered her daily

activities, stating that:

[s]he manages her personal care unassisted. She prepares meals,

performs housework (laundry, dusting, dishes), is a licensed driver and

drives up to 100 miles at a time, shops, handles finances, enjoys reading

and watching television. She socializes with others on a daily basis, and

has no difficulty following written or spoken instructions. In addition,

the claimant reported that she could lift up to twenty pounds, which is

consistent with more than sedentary abilities.

(Doc. 6-3, p. 17).

The ALJ may consider a claimant’s daily activities when making a credibility

finding. See 20 C.F.R. § 404.1529(c)(3) (listing “daily activities” as a relevant factor

to consider in evaluating a claimant’s subjective pain testimony). When examining

daily activities, an ALJ must consider the record as a whole. See Parker v. Bowen,

793 F.2d 1177, 1180 (11th Cir. 1986) (faulting the Appeals Council’s finding that

claimant’s “daily activities . . . have not been significantly affected” when the

Appeals Council “ignored other evidence that her daily activities have been

significant affected”). The Eleventh Circuit has recognized that “participation in

everyday activities of short duration” will not prevent a claimant from proving

disability. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997). Instead, “[i]t

is the ability to engage in gainful employment that is the key, not whether a Plaintiff

can perform chores or drive short distances.” Early v. Astrue, 481 F. Supp. 2d 1233,

1239 (N.D. Ala. 2007); see Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985)

(claimant who “read[s], watch[es] television, embroider[s], attend[s] church, and

drive[s] an automobile short distances . . . . performs housework for herself and her

husband, and accomplishes other light duties in the home” still may suffer from a

severe impairment).

Ms. Hasberry stated that she was able to bathe, dress herself, and prepare her

own food. (Doc. 6-3, pp. 51-52). In a function report completed on April 4, 2015,

she noted that she was doing laundry, dusting, and washing dishes. (Doc. 6-7, p.

24). Ms. Hasberry explained that she was driving twice per week, either to her

doctor in Montgomery or to the grocery store. (Doc. 6-3, pp. 16-17; Doc. 6-3, p.

47). She was shopping, was able to handle her finances, and enjoyed reading and

watching TV. (Doc. 6-7, pp. 25-26). She spent time with others daily, and she could

follow written and spoken instructions “very well.” (Doc. 6-7, pp. 26-27).

The ALJ overlooked evidence of the ways in which pain limited Ms.

Hasberry’s daily activities. Ms. Hasberry stated that it was taking her longer to do

her hair because she had trouble raising her arms. (Doc. 6-3, pp. 23, 40). The meals

she prepared consisted of only “toast, [a] sandwich, [and] chips.” (Doc. 6-7, p. 24).

She stated that if she fried chicken, she had to sit down. (Doc. 6-7, p. 24). She stated

that she cooked only “two or three days [per week]” and did not cook anything that

required her to stand for long periods. (Doc. 6-7, p. 24). As far as doing laundry,

dusting, and doing dishes, Ms. Hasberry explained that she did only “one thing every

couple of days or once a week.” (Doc. 6-7, p. 24). She shopped for food and clothing

“two or three times a month [and] no more than 30 min[utes] to [an] hour.” (Doc.

6-7, p. 25). She stated that she could not read or watch TV for long because her neck

would start to hurt. (Doc. 6-7, p. 26). The failure of the ALJ to consider these

limitations was error. See Bosarge v. Berryhill, No. CA 16-0382-C, 2017 WL

1011671, at *7 (S.D. Ala. Mar. 15, 2017) (ALJ erred in “describ[ing] plaintiff’s daily

activities in a manner which would lead the reader to believe that she performed

them without any limitation.”).

C. The Report of Dr. Richard Harris

On February 23, 2017, Dr. Richard Harris completed a “Medical Source

Statement of Ability To Do Work-Related Activities.” (Doc. 6-11, pp. 43-48). He

noted that, due to her hand pain, Ms. Hasberry “occasionally” could lift and carry up

to ten pounds, but never anything heavier than that. (Doc. 6-11, p. 43). He opined

that Ms. Hasberry could sit or stand for only 30-45 minutes at a time, and walk for

no more than 30 minutes at a time. (Doc. 6-11, p. 44). Dr. Harris stated that in an

eight-hour day, Ms. Hasberry could sit for no more than two hours, stand for no more

than one hour, and walk for no more than one hour. (Doc. 6-11, p. 44). Due to

weakness in both hands, Dr. Harris wrote that Ms. Hasberry occasionally could

reach, handle, finger, feel, and push/pull. (Doc. 6-11, p. 45). He stated that, because

of back pain, she occasionally could use foot controls. (Doc. 6-11, p. 45). According

to Dr. Harris, Ms. Hasberry’s back pain prevented her from climbing ladders or

scaffolds, and she could climb stairs, balance, stoop, kneel, crouch, and crawl only

occasionally. (Doc. 6-11, p. 46). Dr. Harris wrote that due to the combination of

Ms. Hasberry’s knee, back, and arm pain, she could operate a motor vehicle or be

exposed only occasionally to humidity or wetness; dust, odors, fumes and

pulmonary irritants; extreme cold; extreme heat; and vibrations. (Doc. 6-11, p. 47).

In Dr. Harris’s opinion, Ms. Hasberry should never be around unprotected heights

or moving mechanical parts. (Doc. 6-11, p. 47). Dr. Harris felt that Ms. Hasberry’s

back, arm, and knee pain prevented her from walking a block at a reasonable pace

on rough or uneven surfaces, and that she could not use standard public

transportation. (Doc. 6-11, p. 48).

Dr. Harris stated that the limitations he found have lasted, or would last, for

12 consecutive months. (Doc. 6-11, p. 48). He opined that Ms. Hasberry “could

perform no more than sedentary work activities, and for no more than four hours

daily.” (Doc. 6-3, p. 15).

The ALJ gave “little weight” to this opinion and found that Ms. Hasberry

could perform light work with restrictions. (Doc. 6-3, p. 17; Doc. 6-3, pp. 15-16).

“The ALJ does not have to defer to the opinion of a physician [like Dr. Harris] who

conducted a single examination, and who was not a treating physician.” Beegle v.

Comm’r, Soc. Sec. Admin., 482 Fed. Appx. 483, 486 (11th Cir. 2012). Still, the

ALJ’s reason for rejecting Dr. Harris’s opinion was that the opinion “was not

consistent with [Ms. Hasberry’s] treatment records and reports that confirm no

medical restrictions and no significant limits secondary to pain.” (Doc. 6-3, p. 17).

As noted, substantial evidence does not support the ALJ’s decision to discredit Ms.

Hasberry’s pain testimony, and the lack of restrictions in the record cannot be the

sole basis for discounting Ms. Hasberry’s complaints of pain. Accordingly, on

remand, after considering Ms. Hasberry’s medical records in their entirety, the ALJ

should reconsider the appropriate weight to give Dr. Harris’s opinion.

CONCLUSION

The Court remands this matter for further administrative proceedings

consistent with this memorandum opinion.

DONE this 8th day of January, 2020.

MADELINE HUGHES HAIKALA

UNITED STATES DISTRICT JUDGE

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