The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIMBERLEY RICH JOINER, )
)
Plaintiff, )
)
v. ) Case Number: 2:19-cv-00298-JHE
)
COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION, )
)
Defendant. )
MEMORANDUM OPINION
Plaintiff Kimberly Rich Joiner (“Joiner”) seeks review, pursuant to 42 U.S.C. § 405(g), §
205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her application for a period of disability, disability
insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). (Doc. 1). Joiner timely
pursued and exhausted her administrative remedies. This case is therefore ripe for review under
42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully considered the record and, for the
reasons stated below, the Commissioner’s decision is REVERSED AND REMANDED.
I. Factual and Procedural History
Joiner filed her applications for a period of disability, DIB, and SSI on August 17, 2015,
alleging she became unable to work beginning July 1, 2007. (Tr. 197-210). The Agency initially
denied these claims on October 23, 2015. (Tr. 89-98). Thereafter, Joiner filed a written request
for a hearing (tr. 101-04), and on August 16, 2017, Joiner appeared and testified at a hearing (tr.
26-40). After the hearing, the Administrative Law Judge (“ALJ”) ordered a consultative
examination. (Tr. 39). Joiner appeared at a second, supplemental hearing on February 22, 2018.
(Tr. 41-68). On April 27, 2018, the ALJ issued an unfavorable decision and denied Joiner’s
claims. (Tr. 19). Joiner sought review by the Appeals Council, but it declined her request on
December 21, 2018. (Tr. 1-6). On that date, the ALJ’s decision became the final decision of the
Commissioner. On February 19, 2019, Joiner initiated this action. (See doc. 1).
Joiner was twenty-nine years old on July 1, 2007, her alleged onset date, and thirty-eight
years old on August 17, 2015, her application date. (Tr. 262). Joiner has a high school education.
(Tr. 254).
II. Standard of Review1
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402
U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This 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).
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.
This Court must uphold factual findings supported by substantial evidence. “Substantial
evidence may even exist contrary to the findings of the ALJ, and [the reviewing court] may have
taken a different view of it as a factfinder. Yet, if there is substantially supportive evidence, the
findings cannot be overturned.” Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). However,
1In general, the legal standards applied are the same whether a claimant seeks DIB or SSI.
However, separate, parallel statutes and regulations exist for DIB and SSI claims. Therefore,
citations in this opinion should be considered to refer to the appropriate parallel provision as
context dictates. The same applies to citations for statutes or regulations found in quoted court
decisions.
the Court reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches
to the ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d
528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the law, or if the
ALJ fails to provide the court with sufficient reasoning for determining the proper legal analysis
has been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143,
1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder.2 The Regulations define “disabled” as “the inability to do 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 (12) months.” 20 C.F.R. § 404.1505(a). To establish entitlement to disability
benefits, a claimant must provide evidence of a “physical or mental impairment” which “must
result from anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(1) whether the claimant is currently employed;
(2) whether the claimant has a severe impairment;
(3) whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
(4) whether the claimant can perform his or her past work; and
(5) whether the claimant is capable of performing any work in the national
2The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499.
economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied
steps One and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.” Pope,
998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner
must further show such work exists in the national economy in significant numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found Joiner meets the insured status requirements of the Social
Security Act through December 31, 2009, and that Joiner had not engaged in substantial gainful
activity since July 1, 2007, the alleged onset date. (Tr. 12). At Step Two, the ALJ found Joiner
has the following severe impairments: depression and anxiety. (Tr. 13). At Step Three, the ALJ
found Joiner did not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13).
Before proceeding to Step Four, the ALJ determined Joiner’s residual functioning capacity
(“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined that Joiner had the RFC to perform a full range of work at
all exertional levels but with the following non-exertional limitations: Joiner is limited to simple,
routine job tasks which do not require her to have contact with the general public and no more than
occasional contact with coworkers. Joiner is precluded from jobs requiring her to be responsible
for the safety and welfare of others, and is limited to jobs which deal primarily with objects and
no people. She is precluded from work around unprotected heights and should avoid dangerous
machinery. (Tr. 15-17).
At Step Four, the ALJ determined Joiner is unable to perform any past relevant work. (Tr.
17). At Step Five, the ALJ determined, based on Joiner’s age, education, work experience, and
RFC, jobs exist in significant numbers in the national economy Joiner could perform. (Tr. 18-19).
Therefore, the ALJ determined Joiner has not been under a disability and denied her claim. (Tr.
19).
V. Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his does not relieve
the court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)). The court,
however, “abstains from reweighing the evidence or substituting its own judgment for that of the
[Commissioner].” Id. (citation omitted).
Joiner challenges the Commissioner’s decision on two broad grounds, contending: (1) the
ALJ improperly discredited Joiner’s subjective testimony with respect to her exertional and non-
exertional limitations, and (2) the ALJ failed to pose a hypothetical question to the vocational
expert that comprised all of Joiner’s limitations, thereby misstating her RFC. (Doc. 10 at 17-26).
While the undersigned finds there is substantial evidence to support many of the ALJ’s findings,
there is one glaring error that requires remand: the ALJ erred when he failed to consider Joiner’s
physical limitations and complaints of physical pain and treatment notes/opinion evidence from
Dr. David Gordon.
A. Joiner’s History of Right Leg Problems and Dr. Gordon’s Medical Records
Before proceeding to Step Four, the ALJ determined Joiner’s residual functioning capacity
(“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined that Joiner had the RFC to perform a full range of work at
all exertional levels but with certain non-exertional limitations. (Tr. 16-17). When making this
RFC determination, the ALJ failed to properly consider both (1) Joiner’s subjective complaints of
pain/difficulty standing and lifting; and (2) Dr. Gordon’s treatment notes and opinions therein. On
remand, the ALJ should reevaluate Joiner’s exertional limitations.
When a claimant seeks to establish disability through his or her own testimony of pain or
other subjective symptoms, courts within the Eleventh Circuit apply a three-part pain standard.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). The pain standard requires (1) evidence of
an underlying medical condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the objectively determined
medical condition is of such severity that it could reasonably be expected to give rise to the alleged
pain. Hand v. Heckler, 761 F.2d 1545, 1548 (11th Cir. 1985).
The ALJ must express a reasonable basis for the rejection of the claimant’s testimony with
regard to her allegations of pain (or other subjective complaints). Sewell v. Bowen, 792 F.2d 1067,
1068 (11th Cir. 1986). The consideration of the claimant’s subjective complaints of pain only to
the extent that there is objective clinical or laboratory evidence supporting such claims is reversible
error. Wiggins v. Schwiecher, 679 F.2d 1387 (1982). The ALJ must articulate explicit and adequate
reasons for discrediting testimony regarding subjective complaints. Hale v. Brown, 831 F.2d 1007,
1011 (11th Cir. 1987).
Here, the ALJ found Joiner’s medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms, but that her statements concerning the intensity,
persistence, and limiting effects of these symptoms were not entirely consistent with the medical
evidence and other evidence in the record. (Tr. 16-17). Joiner testified that she can only stand
for 10 to 15 minutes and that she has trouble lifting laundry. (Tr. 16). The ALJ clearly discredited
this testimony when he found she could perform a full range of work at all exertion levels, with a
few non-exertional limitations.
Notably, the ALJ does not directly address Joiner’s testimony regarding her prior leg
fracture and surgeries. (Tr. 16-17). Joiner testified that she was in an automobile accident in 1998,
and medical records indicate she has had multiple surgeries on the same leg, including the insertion
of an intramedullary nail. (Tr. 51, 802-05). At the hearing, Joiner testified she takes Norco for
pain related to this issue and that it affects her mobility to the extent her body overcompensates
with her left knee and it makes standing difficult. (Tr. 51-52). The record also includes treatment
notes from Dr. David Gordon, who has treated Joiner for several years following the surgeries.
(Tr. 788-975). Although some of Dr. Gordon’s handwritten notes are difficult to read, the
undersigned can tell that the notes repeatedly cite that Joiner experiences pain and he continues to
prescribe Norco. (See id.). As counsel for Joiner points out (doc. 10 at 20 & doc. 14 at 3-4), Dr.
Gordon’s notes also prescribe functional limitations including decreased strength and a reduced
range of motion. (See e.g., tr. 811, 814, 825, 831 836, 842, 847, 851, 855, 860, 864). It appears
many of the handwritten notes have a downward pointing arrow next to the word “strength” and
“ROM” for range of motion. (Tr. 826-929). There are several other instances in the record that
show Joiner suffers from chronic pain. For example, it is noted in her hospital discharge papers
(tr. 422), and also noted by Dr. David R. Faber (Tr. 451-52).
The ALJ erred when he discredited Joiner’s complaints of pain and physical limitations
without taking into account Dr. Gordon’s records. Although Joiner may have not emphasized her
physical limitations as much as her mental limitations, she nevertheless alleged physical
limitations. (Tr. 51, 256). Likewise, the record contains almost 200 pages of records from Dr.
Gordon, which the ALJ appears to have ignored. This error is magnified by the fact that the ALJ
notes “there is little evidence between the alleged onset date and the date last insured.” (Tr. 17).
In its brief, the Commissioner asserts that “[t]he only medical records relating to her physical
condition that [Joiner’s] brief discusses were from a period that was not relevant to the ALJ’s
decision because they were from multiple years after her date last insured and multiple years prior
to her application date.” (Doc. 13 at 19). This is not true. Dr. Gordon’s treatment notes begin in
2009, which is within the relevant period. (Tr. 788).
Additionally, an ALJ must give a treating physician’s medical opinion substantial or
considerable weight, unless the ALJ clearly articulates good cause for discrediting that opinion.
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2001). Here, the ALJ failed to
address any of Dr. Gordon’s opinions or records. Despite the Commissioner’s arguments to the
contrary (doc. 13 at 19), the record contains treatment notes from Dr. Gordon during the relevant
time period in 2007 through 2009. (Tr. 788-831). On remand, the ALJ should reevaluate Joiner’s
RFC based on her allegations of physical limitations and Dr. Gordon’s records.
VI. Conclusion
Based on the foregoing, and upon careful consideration of the administrative record and
memoranda of the parties, the decision of the Commissioner of Social Security denying Joiner’s
claims for a period of disability, disability insurance benefits, and supplemental security income
is REVERSED AND REMANDED for reevaluation for Joiner’s RFC with consideration of Dr.
Gordon’s medical records and opinion.
DONE this 16th day of March, 2020.
vo
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE