Posey v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

DANIEL POSEY, }

}

Plaintiff, }

}

v. } Case No.: 7:21-cv-00028-MHH

}

KILOLO KIJAKAZI, }

Commissioner of the }

Social Security Administration, }

Defendant.

MEMORANDUM OPINION

Daniel Posey has asked the Court to review a final adverse decision of the

Commissioner of Social Security. The Commissioner denied Mr. Posey’s claim for

supplemental security income based on an Administrative Law Judge’s finding that

Mr. Posey was not disabled. (Doc. 10-3, pp. 16-26). Mr. Posey argues that the

Administrative Law Judge—the ALJ—improperly rejected his testimony

concerning his pain and other symptoms and improperly evaluated the opinion of

treating physician Dr. Graham. Mr. Posey also challenges the constitutional

appointment of the ALJ and her refusal to reopen a previous disability application.

After careful consideration of the administrative record, for the reasons discussed

below, the Court remands this matter to the Commissioner for further proceedings.

LEGAL STANDARD FOR SOCIAL SECURITY AMINISTRATION

PROCEEDINGS

To succeed in his administrative proceedings, Mr. Posey had to prove that he

was disabled. Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir.

2013). “A claimant is disabled if he is unable to engage in substantial gainful activity

by reason of a medically-determinable impairment that can be expected to result in

death or which has lasted or can be expected to last for a continuous period of at

least 12 months.” Gaskin, 533 Fed. Appx. at 930 (citing 42 U.S.C. § 423(d)(1)(A)).1

To determine whether a claimant has proven that he is disabled, 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.

1 Title II of the Social Security Act governs applications for benefits under the Social Security

Administration’s disability insurance program. Title XVI of the Act governs applications for

Supplemental Security Income or SSI. “For all individuals applying for disability benefits under

title II, and for adults applying under title XVI, the definition of disability is the same.”

https://www.ssa.gov/disability/professionals/bluebook/general-info.htm (lasted visited March 8,

2023).

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “The

claimant has the burden of proof with respect to the first four steps.” Wright v.

Comm’r of Soc. Sec., 327 Fed. Appx. 135, 136-37 (11th Cir. 2009). “Under the fifth

step, the burden shifts to the Commissioner to show that the claimant can perform

other jobs that exist in the national economy.” Wright, 327 Fed. Appx. at 137.

ADMINISTRATIVE PROCEEDINGS

Mr. Posey first applied for disability and supplemental security income

benefits on January 22, 2015. After ALJ Mary Helmer held a hearing on May 11,

2017, she issued an unfavorable decision on June 9, 2017, finding that Mr. Posey

was not disabled. (Doc. 10-4, pp. 19-28). The Appeals Council denied Mr. Posey’s

request for a review on April 26, 2018; Mr. Posey did not appeal that final decision

to a federal district court. (Doc. 10-4, pp. 33-38).

On May 22, 2018, Mr. Posey reapplied for a period of SSI benefits and alleged

that his disability began April 27, 2018. (Doc. 10-6, p. 2). The Commissioner

initially denied Mr. Posey’s claims, and Mr. Posey requested a hearing before an

ALJ. (Doc. 10-3, p. 16). Mr. Posey appeared at a hearing before ALJ Helmer on

February 27, 2020; his attorney attended the hearing too. (Doc. 10-3, p. 32). A

vocational expert testified at the hearing. (Doc. 10-3, p. 32).

ALJ Helmer issued an unfavorable decision on April 10, 2020. (Doc. 10-3,

p. 13). On November 4, 2020, the Appeals Council declined Mr. Posey’s request

for review, (Doc. 10-3, p. 2), making the Commissioner’s decision final and a proper

candidate for this Court’s judicial review. See 42 U.S.C. § 405(g).

EVIDENCE IN THE ADMINISTRATIVE RECORD

Mr. Posey’s Medical Records

To support his application, Mr. Posey submitted medical records relating to

the treatment and diagnosis of carpal tunnel syndrome, hypertension, depression,

obstructive sleep apnea, gastroesophageal reflux disease, status post

cholecystectomy, and asthma. Mr. Posey also submitted medical records dating to

2008 that relate to the treatment and diagnosis of low back pain, lumbar spondylosis,

disc disease, midthoracic pain, and thoracic spondylosis. The Court has reviewed

Mr. Posey’s complete medical history and summarizes the following medical

records because they are most relevant to Mr. Posey’s arguments in this appeal.

In 2008, Mr. Posey “fell flat on his back” off a stool while “welding at Ox

Bodies company.” (Doc. 10-8, p. 54, 150). In May 2010, Dr. Fred Graham, a pain

specialist with West Alabama Spine & Pain Specialists, diagnosed Mr. Posey with

lower back pain, lumbar spondylosis, disc disease, midthoracic pain, and thoracic

spondylosis. (Doc. 10-8, p. 62). Over the next three years, Dr. Graham and his nurse

practitioner, Jessica Hester, treated Mr. Posey for back pain with prescription pain

medications and epidural steroid injections in his spine. Despite the treatment, Mr.

Posey’s back pain became worse. (Doc. 10-8, pp. 62-77). In May 2012, Mr. Posey

reported that he was “holding out as long as he [could] before he [saw] a surgeon”

and that taking 350mg of Soma to treat his muscle pain together with 10 mg of

Lortab for pain made his back pain “tolerable.” (Doc. 10-8, p. 81). In 2012, Mr.

Posey received several epidural steroid injections for his back pain and complained

of numbness, tingling, and increased pain in his legs. (Doc. 10-8, pp. 82-86, 87).2

At his January 10, 2013 appointment with CRNP Hester, Mr. Posey reported

increased pain in his legs and lower back, “locking” in his lower back, tingling in

his legs, and a “[d]ecreasing response to [epidural] blocks.” (Doc. 10-8, p. 88).

CRPN Hester changed Mr. Posey’s pain medications from Lortab 10 mg to Norco

10 mg, referred him to spinal neurosurgeon Dr. Bryan Givhan, and scheduled Mr.

Posey for an MRI of his lumbar spine. (Doc. 10-8, pp. 90-91). The January 22, 2013

MRI of Mr. Posey’s lumbar spine showed a “small central disc bulge and annular

tear” at L4-L5 and “[b]ilateral pars defects” at L5-S1, both with no nerve

impingement. (Doc. 10-8, p. 92). 3

2 In the “Review of Systems” sections throughout Dr. Graham’s and CRNP Hester’s records from

September 2012 to March 2017, the notes say, “Patient doing well,” but in the “History of Present

Illness” section of each record for each visit, the note describes Mr. Posey’s specific complaints

on that day. The Court suspects that the “Review of Systems” sections were not changed for each

visit because sometimes Mr. Posey’s specific complaints for a visit indicated he was not doing

well. See (Doc. 10-8, pp. 84, 89, 94, 98, 102, 108, 112, 116, 120, 124, 129, 133, 137, 141, 145).

3 A pars defect is a “unilateral or bilateral fracture involving the pars interarticularis of the

posterior vertebral arch,” and occurs “most often at L5.” See

https://www.ncbi.nlm.nih.gov/books/NBK538292/.

Mr. Posey saw Dr. Givhan at West Alabama Neurosurgery & Spine on

February 12, 2013 for a surgical consultation. (Doc. 10-8, pp. 19-22). During that

consultation, Mr. Posey stated that “his back pain ha[d] become so intolerable that

he barely [could] ambulate through the day.” (Doc. 10-8, p. 19). Mr. Posey

indicated he had “severe back pain, which radiate[d] to his hips” but “[did] not

radiate down his legs.” (Doc. 10-8, p. 19). Dr. Givhan’s examination of Mr. Posey’s

back showed “mild pain to palpation and mild pain on both extension and flexion

maneuvers,” with “minimal paraspinous spasm.” (Doc. 10-8, p. 22). Dr. Givhan

noted that Mr. Posey had “long standing severe chronic low back pain.” (Doc. 10-

8, p. 22).

When Mr. Posey returned to see Dr. Gihvan on February 28, 2013, Dr. Givhan

explained to Mr. Posey that “even with surgery . . . [Dr. Givhan did] not think [Mr.

Posey was] ever going to be completely pain-free.” (Doc. 10-8, p. 18). Mr. Posey

wanted to pursue surgery because he could “no longer tolerate his symptoms.” (Doc.

10-8, p. 18).

On April 22, 2013, Dr. Givhan performed a lumbar fusion on Mr. Posey.

(Doc. 10-8, pp. 34-36). Dr. Givhan’s surgical notes indicated that, before surgery,

Mr. Posey “had multiple conservative therapies including over 20 epidural steroid

injections, physical therapy and medical treatment, all of which ha[d] been

ineffective.” (Doc. 10-8, p. 35). Dr. Givhan placed “bilateral pedicle bone screws”

at L4, L5, and SI and placed 60 mm rods in the screw heads. (Doc. 10-8, p. 36).

Mr. Posey returned to CRNP Hester on May 20 and September 9, 2013 for

follow-up examinations. (Doc. 10-8, pp. 93-100). The notes from those visits

indicate that Mr. Posey was wearing a back brace, prescribed for 12 weeks, and

reported that his back was “not grinding back there anymore but it still hurt[] when

[he walked].”’ (Doc. 10-8, pp. 93, 97). Mr. Posey told CRNP Hester that he did

well for two months but his “pain ha[d] [] returned.” (Doc. 10-8, p. 97). He also

reported “tingling and numbness in his legs.” (Doc. 10-8, pp. 93, 97). At his

September 2013 follow up, Mr. Posey reported that he had seen Dr. Givhan twice

since his surgery, and “Dr. Givhan [t]old him that everything [was] fusing together

good.” (Doc. 10-8, p. 97). CRNP Hester continued Mr. Posey on Norco 10mg and

Soma 350mg for his pain. (Doc. 10-8, p. 100).

On February 24, 2014, Mr. Posey returned to CRNP Hester complaining of

numbness and tingling in his legs. (Doc. 10-8, p. 101).4 Mr. Posey rated the severity

of his pain as “7-8 on 0/10 scale.” (Doc. 10-8, p. 101). CRNP Hester ordered a CT

Myelogram of Mr. Posey’s lumbar spine. (Doc. 10-8, p. 104). The February 28,

2014 evaluation showed minimal annular bulging with no nerve root impingement

4 Nurse Hester noted that “[n]umbness in [Mr. Posey’s] legs is a new complaint,” despite Mr.

Posey’s complaints of numbness in his legs on his two previous visits. (Doc. 10-8, pp. 93, 97,

102).

and bilateral pars defect of L4-L5 “held in fixation by pedicle screws and interbody

fusion plug.” (Doc. 10-8, p. 105).

On July 7, 2014, Mr. Posey returned to CRNP Hester complaining that he was

“overall worse.” (Doc. 10-8, p. 107). He rated his pain as “7-8 on a 0/10 scale.”

(Doc. 10-8, p. 107). Mr. Posey reported “decreased sensation to both feet” and stated

that he had “fallen a couple of times due to weakness in his legs.” (Doc. 10-8, p.

107). CRNP Hester added Flexeril 10mg and Lyrica 75mg to Mr. Posey’s

prescriptions for Norco 10mg and Soma 350mg. (Doc. 10-8, p. 110).

Mr. Posey returned to Dr. Givhan on April 9, 2015 after a fall. Mr. Posey

reported “worsening pain in his low back.” (Doc. 10-8, p. 14). Dr. Givhan noted

that Mr. Posey “ha[d] mechanical back pain, which ha[d] been a longstanding

problem for him.” (Doc. 10-8, p. 15). A neurologic exam was largely normal, but

Mr. Posey had “some nondermatomal diminished pinprick in his feet bilaterally”

and “pain to palpation in the lumbosacral region and pain on both extension and

flexion maneuvers.” (Doc. 10-8, pp. 14-15). CT and x-rays later that month showed

that Mr. Posey had broken his pedicle screws at S1; there was “[m]inimal associated

spondylolisthesis at L5-S1 only, where there [were] associated broken pedicle

screws at S1.” (Doc. 10-8, p. 24).

Mr. Posey saw Dr. Givhan again on April 23, 2015 to discuss the results of

his imaging. Dr. Givhan acknowledged the fractured screws but stated that Mr.

Posey “appear[ed] to have spontaneously fused.” (Doc. 10-8, p. 13). Dr. Givhan

“strongly recommend[ed] against hardware removal or any other intervention in this

particular case” because of the spontaneous fusion. (Doc. 10-8, p. 13). Dr. Givhan

stated that Mr. Posey “ha[d] a long history of chronic back pain, and he [was] likely

going to have this for the rest of his life but, again from surgical standpoint, we do

not recommend further intervention in this nice gentleman’s case.” (Doc. 10-8, p.

13).

Mr. Posey saw CRNP Hester again on May 18, 2015, complaining of “mid

and low back pain that radiate[ed] down both legs” and numbness and tingling in his

legs. (Doc. 10-8, p. 119). Mr. Posey had normal range of motion in all joints and

was able to walk without assistance. (Doc. 10-8, p. 120). CRNP Hester increased

Mr. Posey’s Lyrica 75mg from twice to three times a day. (Doc. 10-8, p. 122).

By September 9, 2015, Mr. Posey reported to CRNP Hester that the “pain

medications [were] no longer holding,” he was in “constant severe pain and ha[d]

great difficulty getting into a comfortable position,” and he rated the severity of his

pain as “9/10.” (Doc. 10-8, pp. 123-24).5 CRNP Hester stated that “Dr. Givhan

confirmed via x[-] ray that [Mr. Posey’s] bottom two screws [were] broken.” (Doc.

10-8, p. 123). Mr. Posey reported bruising on his lower back at the site of the broken

5 Despite Mr. Posey’s report of a severe pain level of 9/10, the “Symptoms Related to Pain” section

indicates: “PAIN IS ALLEVIATED BY: medications, frequent change in positions.” (Doc. 10-

8, p. 123).

pedicle screws. (Doc. 10-8, p. 123). CRNP Hester’s notes indicate that she

“support[ed] patient filing for disability and [would give] him a recommendation

letter if needed.” (Doc. 10-8, p. 126). CRNP Hester discontinued the Norco

prescription and started Mr. Posey on “Percocet 10/325mg QID PRN” for his severe

pain. (Doc. 10-8, p. 126).

Mr. Posey saw CRNP Hester on December 30, 2015 and May 16, 2016, for

severe pain which he rated at a 9/10. (Doc. 10-8, pp. 128-135). Mr. Posey told

CRNP Hester that Dr. Givhan could not remove the two broken screws in his back.

(Doc. 10-8, p. 132). Mr. Posey stated he “would like a second opinion.” (Doc. 10-

8, p. 132). CRNP Hester noted that she believed that “if [Mr. Posey] could have

the[] broken screws removed[,] [] his pain would decrease tremendously,” and he

“could possibly come off of the pain medications.” (Doc. 10-8, p. 132). CRNP

Hester stated that she “believe[d] that the broken hardware [was] a significant cause

of his continuous pain” and concurred with Mr. Posey’s suggestion that a second

opinion about removal of the broken screws was advisable. (Doc. 10-8, pp. 132-33).

CRNP Hester increased Mr. Posey’s prescription of Lyrica from 75mg to 100mg

three times a day. (Doc. 10-8, p. 135).

At an August 8, 2016 visit, Mr. Posey reported numbness, tingling, and

weakness in both legs, which was aggravated by “[l]aying down caus[ing] [the] pain

to shoot down both legs.” (Doc. 10-8, p. 136). Mr. Posey rated the severity of pain

at the time of treatment a “7/10.” (Doc. 10-8, p. 136). CRNP Hester noted that Mr.

Posey “continue[d] to be in constant severe pain in his low[er] back and ha[d] great

difficulty getting in a comfortable position when standing or sitting.” (Doc. 10-8, p.

136).

During an office visit with Dr. Graham on December 12, 2016, Mr. Posey

stated that he “continue[d] to be in constant severe pain in his low back” and rated

his pain as a 7/10 while taking Percocet, Flexeril, and Lyrica. (Doc. 10-8, p. 140).

Mr. Posey reported that he had “great difficulty getting in a comfortable position

when standing or sitting,” and that “[h]e [was] unable to stand up for a long period

of time.” (Doc. 10-8, p. 140). Mr. Posey stated that he could only “sit around the

house doing nothing,” had “gained weight due to inactivity,” and had to “go up a

pants size.” (Doc. 10-8, p. 140). Dr. Graham noted that he “highly recommend[ed]

Mr. Posey get a second opinion” regarding the removal of the broken screws in his

back. (Doc. 10-8, p. 142).

Mr. Posey returned to Dr. Graham on March 20, 2017, complaining of

“increased numbness and tingling all the way down into his feet,” which was “worse

at night.” (Doc. 10-8, p. 144). Mr. Posey reported that his left leg had “begun to

give away on him if [] standing up for prolonged periods.” (Doc. 10-8, p. 144). Mr.

Posey reported that he “continue[d] to be in constant severe pain to his low back and

his pain medication [did] help most days to keep it manageable.” (Doc. 10-8, p.

144). Mr. Posey rated his pain at this visit as a 7/10. (Doc. 10-8, p. 144). Dr.

Graham’s physical examination showed muscle strength of “greater than 4/5

throughout all extremities in major muscle groups; equal and symmetric deep tendon

reflexes; and normal sensation in all extremities. (Doc. 10-8, p. 146). Dr. Graham

referred Mr. Posey for an updated MRI. (Doc. 10-8, p. 144). The MRI showed no

“definite new abnormality” and no “neural impingement.” (Doc. 10-8, p. 148). The

MRI showed that the “hardware appear[ed] intact” but details of the hardware could

not be seen on the MRI. (Doc. 10-8, p. 148).

During a visit with Dr. Graham was on June 12, 2017, Mr. Posey complained

of “constant” “[l]ow back pain radiating into both lower extremities,” and he rated

his pain at a 6/10. (Doc. 10-8, p. 149). Mr. Posey stated that “[s]itting too long or

twisting cause[d] numbness and tingling to [sic] flair.” (Doc. 10-8, p. 149). Dr.

Graham’s physical examination of Mr. Posey revealed lower back pain in both legs;

no muscle atrophy; 5/5 muscle strength in Mr. Posey’s hips, knees, ankles, feet,

arms, and wrists; and grade 3/4 reflexes in his legs, feet, arms, and wrists. (Doc. 10-

8, pp. 150-51). Dr. Graham performed a “[t]heraputic left L5-S1 transforaminal

epidural” on Mr. Posey on June 20, 2017. (Doc. 10-8, p. 153).

On September 6, 2017 and January 15, 2018, Mr. Posey returned to Dr.

Graham and reported that his pain was a 6/10 at both visits. (Doc. 10-8, pp. 154-

61). Dr. Graham’s physical examination of Mr. Posey again revealed lower back

pain and pain in both legs. (Doc. 10-8, pp. 155, 159). At the January 15 visit, Mr.

Posey indicated that he had taken “extra [Percocet] some days due to the severity of

his pain level” and requested “something to take in between the Percocet for his

pain.” (Doc. 10-8, p. 158). Dr. Graham’s notes indicated that he instructed Mr.

Posey to take his pain medications only as prescribed. Dr. Graham declined to “add

or increase patient’s pain medications at all.” (Doc. 10-8, p. 160). Dr. Graham

ordered an “LSO back brace” for Mr. Posey. (Doc. 10-8, p. 160).

During his April 11, 2018 visit with Dr. Graham, Mr. Posey reported constant

low back pain at an 8/10 on the pain scale, and Dr. Graham’s physical examination

of Mr. Posey was positive for lower back and leg pain. (Doc. 10-8, pp. 163, 165).

When Mr. Posey returned to Dr. Graham on August 1, 2018, Mr. Posey stated that

“his low back pain [was] constant and sharp to dull with radiation down [both legs]

down to his feet.” (Doc. 10-10, p. 70). Mr. Posey rated the severity of his pain as

an 8/10 while taking Percocet, Flexeril, and Lyrica for his pain. (Doc. 10-10, p. 70).

Dr. Graham noted that Mr. Posey’s pain was “alleviated by: rest, medication, getting

up, [and] moving around from sitting too long.” (Doc. 10-10, p. 70). Dr. Graham’s

physical examination revealed the same results as the previous examinations; Mr.

Posey was positive for both lower back and leg pain. (Doc. 10-10, p. 72). Mr. Posey

stated that his “LSO PRN” brace “help[ed] to an extent.” (Doc. 10-10, p. 70). Dr.

Graham changed Mr. Posey’s pain medication from Percocet 10mg to Oxycodone

10mg. (Doc. 10-10, p. 72).

On October 24, 2018, Mr. Posey saw CRNP Hester and reported that “his pain

[was] worse in his legs, mainly on the left.” (Doc. 10-10, p. 74). He rated the

severity of his pain as an 8/10. (Doc. 10-10, p. 74). CRNP Hester changed Mr.

Posey’s Oxycodone 10mg back to Percocet 10mg because Mr. Posey reported that

Oxycodone was not as helpful as Percocet. (Doc. 10-10, pp. 74, 76).

Mr. Posey returned to Dr. Graham on February 13, 2019, and May 8, 2019,

complaining of severe back pain at a 7/10 on the pain scale. (Doc. 10-10, pp. 78-81,

82-85). During the May 2019 visit, Mr. Posey stated that he was “doing well” on

his medications and reported that his LSO brace “help[ed] to an extent.” (Doc. 10-

10, p. 82).6 On July 31, 2019, Mr. Posey reported that his lower back pain

“remain[ed] constant and sharp” and that “depending on positioning and activity his

LBP radiates to BIL LE down to his feet.” (Doc. 10-10, p. 86). Mr. Posey reported

the severity of his pain at a “7-8/10” but did not complain of tingling or weakness.

(Doc. 10-10, p. 86). Dr. Graham’s physical examinations of Mr. Posey during these

6 Dr. Graham’s note under “History of Present Illness” for this visit indicates that Mr. Posey was

taking Oxycodone, Flexeril, and Lyrica, (Doc. 10-10, p. 82), but CRNP Hester had previously

changed his Oxycodone prescription to Percocet, and the “Assessment/Plan” section for this visit

indicates that Mr. Posey should “continue current medications: Percocet 10mg TID PRN[,]

Flexeril 10 mg TID PRN[, and] Lyrica 150 mg PO TID.” (Doc. 10-10, p. 84).

2019 visits showed no muscle atrophy, normal muscle strength, and normal deep

tendon reflexes. (Doc. 10-10, pp. 80, 83-84, 88).

At a September 25, 2019 follow-up, Dr. Graham noted that Mr. Posey’s “LBP

(controlled) [was] constant,” that the “severity varie[d] with activity,” and that it

“ache[d], throb[bed], [was] occasionally sharp, and radiated to [both legs].” (Doc.

10-10, p. 90). Mr. Posey rated the severity of his pain at this visit as a 7/10. (Doc.

10-10, p. 90). Dr. Graham ordered Mr. Posey a “Orthocor PEMF device for

management of pain, inflammation, and swelling” and noted that Mr. Posey had

“tried with minimal relief other conservative measures including OTC and Rx

medication, physical therapy and TENS unit.” (Doc. 10-10, p. 92).

During a November 20, 2019 appointment with Dr. Graham, Mr. Posey rated

his pain as “moderate 5-7 on 1/10 scale” and complained of numbness and tingling

in his legs and feet. (Doc. 10-10, p. 94). Mr. Posey stated that “walking[sic] [and]

sitting too long” aggravated his pain, but “rest, medication, getting up, [and] moving

around from sitting too long” helped his pain. (Doc. 10-10, p. 94). Dr. Graham,

after recommending that “Mr. Posey have a second opinion” about the removal of

the broken hardware in his back, stated that Mr. Posey should “[c]onsider SCS trial

if no surgery is possible.” (Doc. 10-10, p. 96).7

On January 13, 2020, Mr. Posey returned to Dr. Graham, complaining of

lower back pain radiating into his lower extremities. (Doc. 10-10, p. 98). Mr. Posey

ranked the severity of his pain at an “8/10” and stated that the pain was “worsening

with, ‘real sharp pain when I turn a certain way’ with radiation down [both legs] to

his toes.” (Doc. 10-10, p. 98). Mr. Posey “state[d] the brace [did] not help him.”

(Doc. 10-10, p. 98). Dr. Graham’s notes indicated that a “[s]econd opinion for

lumbar surgery ha[d] been requested from worker’s comp at his last OV on 11/20/19.

He ha[d] not heard anything” as of the January 2020 appointment. (Doc. 10-10, p.

100). Dr. Graham stated that he “would like [Mr. Posey] to see Dr. Theiss if

possible,” regarding the removal of his hardware. (Doc. 10-10, p. 100).

Dr. Graham’s First Clinical Assessment of Pain

For Mr. Posey’s 2015 disability application, Dr. Graham completed a

“Clinical Assessment of Pain” on July 29, 2015 at the request of Mr. Posey’s

attorney. (Doc. 10-8, p. 167). Dr. Graham opined that Mr. Posey’s “[p]ain [was]

present but [did] not prevent functioning in everyday activities or work.” (Doc. 10-

7 A “SCS trial” is a temporary medical device implanted under the skin “that sends low levels of

electricity directly into the spinal cord to relieve pain.” “Spinal cord simulation is used most often

after nonsurgical pain treatment options have failed to provide sufficient relief.” See

https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/treating-pain-with-spinal-

cord-stimulators (last visited July 21, 2023).

8, p. 167). Dr. Graham noted that “on occasion” pain “may be” “present to such an

extent as to be distracting to adequate performance of daily activities and/or work.”

(Doc. 10-8, p. 167). Dr. Graham also opined that “physical activity such as walking,

standing, bending, stooping, [and] moving of extremities” would cause “some

increase [in Mr. Posey’s pain] but not to such an extent as to prevent adequate

functioning in such task.” (Doc. 10-8, p. 167). Dr. Graham stated that Mr. Posey’s

“pain and/or prescribed medication” would cause “[s]ome limitations” in Mr.

Posey’s ability to work but “not to such a degree as to create serious problems in

most instances.” (Doc. 10-8, p. 168). Regarding Mr. Posey’s “long-term prospects

for recovery” from the pain, Dr. Graham stated that “[a]lthough pain may be less

intense or less frequent in the future, it will still remain a significant element in this

person’s life.” (Doc. 10-8, p. 168). Additionally, Dr. Graham noted that Mr. Posey

had stated “he has 2 screws ‘broken’ from prior lumbar surgery. CT from 2/28/14

doesn’t show this. Dr. Givhan may have more recent imaging.” (Doc. 10-8, p. 169).

Administrative Assessment by Dr. Sellman

After Mr. Posey re-applied for disability benefits, Dr. Gloria Sellman

conducted a disability determination assessment of Mr. Posey on July 16, 2018 at

the request of the Social Security Administration. (Doc. 10-4, pp. 9-13). Dr.

Sellman reviewed Mr. Posey’s records and summarized Dr. Graham’s and Dr.

Givhan’s treatment notes that included Mr. Posey’s prior lumbar surgery and broken

pedicle screws. (Doc. 10-4, p. 11). Dr. Sellman found that Mr. Posey’s impairments

“could reasonably be expected to produce some of the stated [symptoms] and

functional limitations, but not the degree alleged.” (Doc. 10-4, p. 9). Dr. Sellman

pointed to the facts that the 2017 MRI showed no new definite abnormalities, Mr.

Posey’s “post op changes appear[ed] unremarkable”; he had spontaneous fusion at

L5-S1 despite the broken pedicle screws; the surgeon recommended against

hardware removal; and the CTs showed no “lateralizing disc herniation.” (Doc. 10-

4, p. 9). Dr. Sellman also noted that Mr. Posey “reported no change[] in his condition

since [the] AC denial [on] 4/26/2018.” (Doc. 10-4, p. 9). Consequently, Dr. Sellman

found that Mr. Posey’s “statements regarding [his] functional limitations [were]

considered only partially consistent with objective evidence in [the] file.” (Doc. 10-

4, p. 9).

Dr. Sellman assessed Mr. Posey’s residual functional capacity and opined that

Mr. Posey could occasionally lift 20 pounds; frequently lift 10 pounds; and stand,

walk, and sit with normal breaks for “6 hours in an 8-hour workday.” (Doc. 10-4,

p. 10). Dr. Sellman also found that Mr. Posey had no limitations in pushing and

pulling; occasionally could climb ramps and stairs, but never climb ladders, ropes,

or scaffolds; occasionally could stoop, kneel, crouch, and crawl; and frequently

balance; and should avoid “dangerous machinery and unprotected heights.” (Doc.

10-4, pp. 10-11). Based on these findings, Dr. Sellman concluded that Mr. Posey

could perform light work as a bender, booker, or garment steamer, all of which

existed at significant numbers in the national economy. (Doc. 10-5, p. 13).

Dr. Graham’s Second Clinical Assessment of Pain

On February 24, 2020, Dr. Graham responded to three written questions that

Mr. Posey’s attorney submitted to him to clarify his (Dr. Graham’s) 2015 pain

assessment. (Doc. 10-18, p. 96). The first question asked whether Dr. Graham would

expect Mr. Posey “[g]iven the nature and severity of his medical condition, . . . to

have at least 2 or more days per month in which he would have the level of pain that

would be distracting to adequate performance of daily activities and/or work.” (Doc.

10-18, p. 96). Dr. Graham responded in writing: “Yes, I would expect his pain would

prevent him from adequately performing daily activities and/or work more than two

days per month.” (Doc. 10-18, p. 96).

The second written question regarded the note that Dr. Graham made on the

July 29, 2015 “Clinical Assessment of Pain”: “pt. states he has 2 screws ‘broken’

from prior lumbar surgery. CT from 2/28/2014 doesn’t show this. Dr. Givhan may

have more recent imagery.” (Doc. 10-18, p. 96). Mr. Posey’s attorney provided to

Dr. Graham a copy of the April 21, 2015 lumbar myelogram and Dr. Givhan’s office

notes, confirming the two broken pedicle screws. Mr. Posey’s attorney’s asked: “If

you would have had those findings available to you at the time you completed the

‘Clinical Assessment of Pain’ questionnaire, would those findings have resulted in

a different assessment of Mr. Posey’s pain at the time?” (Doc. 10-18, p. 96). Dr.

Graham responded in writing: “Yes, broken pedicle screws at the S1 level [would]

likely be painful and can result in failure of the fusion with resultant, continued

pain.” (Doc. 10-8, p. 96).

The third question asked Dr. Graham whether his assessment of Mr. Posey’s

pain had changed since his 2015 assessment. (Doc. 10-8, p. 97). Dr. Graham

responded: “Yes, I think Mr. Posey’s pain routinely affects him with activities of

daily living and/or work. I think pain will continue to be a significant element in

this person's life.” (Doc. 10-8, p. 97).

Mr. Posey’s Administrative Hearing

The ALJ held Mr. Posey’s administrative hearing on February 27, 2020.

(Doc. 10-3, pp. 32-55). At the beginning of the hearing, Mr. Posey’s attorney asked

the ALJ to reopen Mr. Posey’s 2015 disability case based on “new and material

evidence that directly contradicts the finding that [the ALJ] made in [her] previous

decision” denying disability benefits. (Doc. 10-3, p. 35). The ALJ denied that

motion because she did not “find the evidence new and material that would justify

reopening the prior decision.” (Doc. 10-3, p. 35).

Mr. Posey testified that he had not worked since the date of filing for SSI on

May 22, 2018. (Doc. 10-3, p. 36). His last job was as a welder at Ox Bodies. (Doc.

10-3, p. 37). Mr. Posey testified that he lived with his wife and three daughters in a

tiny house attached to his mother and father’s house. (Doc. 10-3, pp. 36-38). Mr.

Posey stated that because of his pain, he could not pick up his daughter who weighed

fifteen pounds, and that he could hold her only when seated. (Doc. 10-3, p. 46). Mr.

Posey testified that he had a driver’s license and drove when he could. (Doc. 10-3,

p. 37). Mr. Posey testified that he smoked about a “pack and a half” of cigarettes a

day that his parents bought for him and that he had gained about 60 to 70 pounds

since applying for SSI. (Doc. 10-3, p. 38).

Mr. Posey stated that his back pain was his most severe physical issue. (Doc.

10-3, pp. 38-39). He testified that he had severe, constant back pain that he rated as

a “seven on good days, eight on bad days.” (Doc. 10-3, p. 39). Mr. Posey testified

that he had “more than two” bad days a month where his pain was an eight out of

ten, and that it had “gotten to where it [was] almost every day.” (Doc. 10-3, p. 48).

He testified that he took Percocet typically in the morning to get out of bed and

“every day for three times a day” to cope with pain. (Doc. 10-3, pp. 39-40). Mr.

Posey testified that his pain affected his ability to concentrate, and he could watch

television only for about fifteen minutes. (Doc. 10-3, p. 43).

Mr. Posey testified that his legs would “go numb” when he walked a couple

of feet and that the numbness occurred mainly in his left leg but sometimes in his

right leg. (Doc. 10-3, p. 40). Mr. Posey also testified that he could stand for only

five to ten minutes and sit for about the same amount of time. (Doc. 10-3, p. 43).

Mr. Posey testified that he could lift only about eight to ten pounds and that he could

pick up a gallon of milk but could not carry it very far. (Doc. 10-3, pp. 44, 47).

Regarding his daily activities, Mr. Posey testified that he needed help

showering and putting on his shoes. He stated that he tried to do chores like cooking

and cleaning but could cook only quick things and do a small amount of cleaning

before he had to sit down. (Doc. 10-3, pp. 44-45). Mr. Posey testified that he could

not bend over and pick things up from the floor because of his pain, and he used a

hand grabber to lift things. (Doc. 10-3, p. 47).

Mr. Posey testified that, in a typical week, he had to lie down six days a week,

three to four times a day for ten to thirty minutes because of his pain. (Doc. 10-3, p.

48). Mr. Posey testified that he could walk only a few feet, and he had to stop

multiple times on his way from his car to the hearing. (Doc. 10-3, p. 49).

Ms. Froneberger testified as the vocational expert at Mr. Posey’s

administrative hearing. (Doc. 10-3, p. 49). She classified Mr. Posey’s past work as

a welder/fitter as medium work with an SVP of seven. (Doc. 10-3, p. 49).

The ALJ’s first hypothetical to the Ms. Froneberger assumed a claimant of the

“same vocational background as [Mr. Posey]”, except that he could not operate foot

controls; could not “climb[] stairs, ladders, ropes, or scaffolds”; could not kneel,

crouch, or crawl; and could not be exposed to “excessive vibrations, unprotected

heights, or hazardous machinery.” (Doc. 10-3, p. 49). Ms. Froneberger testified that

this individual could perform light exertion SVP 2 jobs as a marker, with 300,000

available jobs nationally; a router, with 50,000 available jobs nationally; and a

photocopying machine operator, with 15,000 available jobs nationally. (Doc. 10-3,

pp. 49-50).

The second hypothetical that the ALJ posed consisted of an individual with

the same vocational background and limitations as those posed in the first

hypothetical, with the additional limitations of “no exposure to extreme cold,

extreme heat, or extreme humidity”; avoid concentrated exposure to pulmonary

irritants like “fumes, odors, dust, gases, poorly ventilated areas, and [] chemicals”;

and must have a sit/stand option for up to one hour. (Doc. 10-3, p. 50). Ms.

Froneberger testified that the previous jobs of photocopying machine operator,

marker, and router would be available, but with a fifty-percent reduction in the

available numbers of marker and router jobs. (Doc. 10-3, p. 50).

The final hypothetical the ALJ posed to Ms. Froneberger contained the same

vocational background and limitations as the second hypothetical with the additional

limitations of “frequent but not constant fine and gross manipulation.” (Doc. 10-3,

p. 50). Ms. Froneberger testified that the same jobs and approximate numbers of

jobs would be available to this hypothetical individual as in the second hypothetical.

(Doc. 10-3, p. 50).

Ms. Froneberger testified that for issues not specifically covered by the DOT,

such as the sit/stand option and climbing ladders, stairs, ropes, and scaffolds, she

based her findings on her professional experience, education, and training. (Doc. 10-

3, p. 51). Ms. Froneberger clarified that the individual in the hypothetical could

alternate between sitting, standing, and walking in intervals for up to an hour unless

he was walking away from his workstation and abandoning his work tasks. (Doc.

10-3, p. 52). Ms. Froneberger also testified that a person who could sit for only

thirty minutes, walk for ten minutes, and stand for ten minutes could not perform

these jobs. (Doc. 10-3, p. 53). Ms. Froneberger testified that a person that would be

off task or lying down fifteen percent or more of the workday or that would be absent

more than one day a month would be precluded from any work. (Doc. 10-3, p. 54).

THE ALJ’S DECISION

The ALJ found that Mr. Posey had not engaged in substantial gainful activity

since the application date of May 11, 2018. (Doc. 10-3, p. 19). The ALJ determined

that Mr. Posey suffered from the severe impairments of lumbar fusion L4-L5-S1

with broken screw at L1 and obesity. (Doc. 10-3, p. 19).8 The ALJ also determined

that Mr. Posey had the non-severe impairments of carpal tunnel syndrome,

hypertension, obstructive sleep apnea, gastroesophageal reflux disease, status post

8 The broken screws are at S1, not L1. (Doc. 10-8, p. 24). The L1 finding may be a typographical

error.

cholecystectomy, and asthma. (Doc. 10-3, p. 19). Based on a review of the medical

evidence, the ALJ concluded that Mr. Posey did not have an impairment or a

combination of impairments that met or medically equaled the severity of any of the

listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 10-3, p. 20).

Considering Mr. Posey’s impairments, the ALJ evaluated Mr. Posey’s

residual functional capacity or RFC. (Doc. 10-3, p. 21). The ALJ determined that

Mr. Posey had the RFC to:

perform light work . . . except: the claimant is unable to climb stairs,

ladders, ropes or scaffolds; the claimant cannot kneel, crouch, or crawl;

[Mr. Posey] should have no exposure to excessive vibration,

unprotected heights, or hazardous machinery; [Mr. Posey] should have

no exposure to extreme cold, extreme heat, or extreme humidity; [Mr.

Posey] should avoid concentrated exposure to pulmonary irritants, such

as fumes, odors, dusts, gases, poorly ventilated areas, and chemicals.

(Doc. 10-3, p. 21).

Based on this RFC, the ALJ concluded that Mr. Posey was unable to perform

his past relevant work as a welder/fitter, which is skilled work at a medium level of

exertion. (Doc. 10-3, p. 24). Relying on testimony from the vocational expert, the

ALJ found that jobs existed in significant numbers in the national economy that Mr.

Posey could perform, including marker, router, and photocopying machine operator.

(Doc. 10-3, p. 25). Accordingly, the ALJ determined that Mr. Posey had not been

under a disability as defined by the Social Security Act since he filed his May 11,

2018 application. (Doc. 10-3, p. 25).

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,” a district court “review[s]

the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close

scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.

2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).

A district court must determine whether substantial evidence in the record

supports the ALJ’s 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 of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.

2004). In making this evaluation, a district court may not “decide the facts anew,

reweigh the evidence,” or substitute its judgment for that of the ALJ. Winschel v.

Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal

quotations and citation omitted). If the ALJ’s decision is supported by substantial

evidence, then the district court “must affirm even if the evidence preponderates

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

Fed. Appx. —, 2015 WL 795089, at *2 (11th Cir. Feb. 26, 2015) (citing Crawford,

363 F.3d at 1158).

With respect to the ALJ’s legal conclusions, a district court must determine

whether the ALJ applied the correct legal standards. If the district 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).

DISCUSSION

Application of the Eleventh Circuit’s Pain Standard

Mr. Posey contends that the ALJ did not properly apply the Eleventh Circuit

pain standard, and he argues that substantial evidence does not support the ALJ’s

decision to discredit his subjective complaints of the limitations caused by his pain.

The Court agrees.

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. 2019) (citing Wilson). If the

ALJ does not properly apply the three-part standard, reversal is appropriate. McLain

v. Comm’r, Soc. Sec. Admin., 676 Fed. Appx. 935, 937 (11th Cir. 2017) (citing Holt).

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

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

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

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

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

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

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

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The Commissioner must

accept the claimant’s testimony, as a matter of law, if the ALJ inadequately discredits

the testimony. Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988); Kalishek v.

Comm'r, Soc. Sec. Admin., 470 Fed. Appx. 868, 871 (11th Cir. 2012) (citing

Cannon).

In evaluating a claimant’s symptoms, 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, 2017 WL 5180304, at *4. Concerning the ALJ's burden when evaluating

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

[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, 2017 WL 5180304, 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 of SSA, 377 Fed.

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

The ALJ found that Mr. Posey’s severe impairments of lumbar fusion at L4-

L5-S1 with broken pedicle screws and obesity “could reasonably be expected to

cause [Mr. Posey’s] alleged symptoms” but concluded that the “intensity,

persistence and limiting effects of [Mr. Posey’s] symptoms [were] not entirely

consistent with the medical evidence and other evidence in the record.” (Doc. 10-3,

p. 22). The ALJ discounted Mr. Posey’s description of his pain and physical

limitations based on an incomplete reading of Mr. Posey’s medical records.

The ALJ stated that treatment records from Dr. Graham showed that Mr.

Posey was “doing well on (his) medications, which include [O]xycodone, Flexeril,

and Lyrica,” citing Mr. Posey’s May 8, 2019 medical record. (Doc. 10-3, p. 22).

True, Mr. Posey reported that information during that May 2019 appointment, but

Mr. Posey also reported during that appointment that while taking all those

medications, he had a pain level of 7/10. (Doc. 10-10, pp. 82-85). Mr. Posey

testified at the hearing that a pain level of 7/10 constituted a “good” day controlling

his pain, (Doc. 10-3, p. 39), which could explain Mr. Posey’s comment that he was

doing well on his medication that day. The ALJ omitted from her analysis Mr.

Posey’s testimony from the hearing about his good and bad days.

The ALJ stated that records from Dr. Graham indicated that Mr. Posey’s pain

was “generally well-controlled with medication,” broadly citing Mr. Posey’s

medical records. (Doc. 10-3, p. 23). The ALJ did not explain how she reached this

conclusion, and the medical records do not suggest that Mr. Posey’s pain was well-

controlled with medication. Instead, the medical records show that despite

consistently taking either Oxycodone or Percocet, Flexeril, and Lyrica, after Mr.

Posey fell and broke two pedicle screws in 2015, the severity of his pain fluctuated

from a 6/10 to a 9/10 on the pain scale from 2015 through 2020. (See Docs. 10-8,

10-9, 10-10). Mr. Posey testified at the February 2020 administrative hearing that

he had more than two days each month where the severity of his pain was an 8/10,

which he described as a bad day. (Doc. 10-3, p. 48). Mr. Posey often reported back

pain and tingling, numbness, and weakness in his legs.

The ALJ overlooked the September 2019 treatment record which reflects that

Dr. Graham ordered an Orthocor PEMF device for Mr. Posey’s pain because the

prescription pain medications provided Mr. Posey “minimal relief.” (Doc. 10-10, p.

92). The ALJ also omitted from her discussion Dr. Graham’s November 2019

recommendation of a SCS trial for Mr. Posey if surgery to remove the broken pedicle

screws was not an option because even with prescription medication, Mr. Posey

suffered “constantly” from low back pain that varied “from sharp to dull” and

radiated into his legs. (Doc. 10-10, pp. 94, 96). Mr. Posey’s consistent reports of

severe pain while complying with prescription medications and Dr. Graham’s

treatment records do not support the ALJ’s conclusion that Mr. Posey’s medications

controlled his pain well.

The ALJ discounted Mr. Posey’s subjective statements because the “record

suggests that [Mr. Posey] received relief form a lumbar back brace prescribed by Dr.

Graham, as he reported that it ‘help[ed] to an extent,’” citing Dr. Graham’s treatment

note from the May 2019 appointment. (Doc. 10-3, p. 22). The ALJ highlighted the

fact that during this appointment, Mr. Posey stated the brace helped his pain “to an

extent.” The ALJ overlooked Mr. Posey’s statement to Dr. Graham during the

January 2020 appointment that his lower back pain was worse, and “the brace [did]

not help him.” (Doc. 10-10, p. 98).

The ALJ noted that Dr. Graham’s physical examinations showed that Mr.

Posey had normal muscle strength and reflexes and no muscle atrophy. (Doc. 10-3,

p. 22). But those findings do not negate Mr. Posey’s reports of severe lower back

pain which Dr. Graham and Dr. Givhan attributed to broken pedicle screws in Mr.

Posey’s lower back. The ALJ did not mention Dr. Graham’s opinion and CRNP

Hester’s statements in Mr. Posey’s records that the broken pedicle screws were a

significant cause of Mr. Posey’s constant low back and leg pain. (Doc. 10-8, pp.

132, 140).

The ALJ pointed out that Mr. Posey’s 2015 MRI showed “no acute

abnormality with stable fusion changes with chronically fractured L5 pedicle

screws.” (Doc. 10-3, p. 23). Regarding the fractured pedicle screws, the ALJ noted

that the “CT myelogram did not show any lateralizing disc herniation and the

fractured screws at L5-S1 appeared to have spontaneously fused.” (Doc. 10-3, p.

23). The ALJ noted that Dr. Givhan “recommended no further surgical

intervention.” (Doc. 10-3, p. 23). Missing from this analysis is Dr. Givhan’s

assessment of Mr. Posey’s pain. Dr. Givhan “strongly recommend[ed] against

hardware removal or any other intervention in this particular case” because of the

spontaneous fusion and stated that Mr. Posey “ha[d] a long history of chronic back

pain, and he [was] likely going to have this for the rest of his life . . . .” (Doc. 10-8,

p. 13). Dr. Graham repeatedly recommended that Mr. Posey seek a second opinion

regarding surgical removal of the broken pedicle screws to reduce the severity of

Mr. Posey’s pain.

An ALJ may not cherry-pick evidence in an applicant’ s medical records to

support a conclusion. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986)

(“It is not enough to discover a piece of evidence which supports [a] decision, but to

disregard other contrary evidence[,]” and a decision is not supported where it was

reached “by focusing upon one aspect of the evidence and ignoring other parts of the

record.”); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the

obligation to consider all relevant medical evidence and cannot simply cherry-pick

facts that support a finding of non-disability while ignoring evidence that points to

a disability finding.”). Here, the ALJ focused on isolated aspects of the medical

record and ignored the parts that support Mr. Posey’s subjective complaints of pain.

In evaluating a claimant’s reported symptoms, the ALJ had to consider Mr.

Posey’s daily activities. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). In his July

2018 “Function Report-Adult,” Mr. Posey indicated that, because of his physical

impairments and pain, he needed help bathing and putting on his shoes. (Doc. 10-7,

p. 17). He reported that he could make a “simple sandwich or a frozen meal or hot

pocket snack, but someone else ha[d] to clean up because [he] [could not] stand long

enough.” (Doc. 10-7, p. 18). Mr. Posey indicated that he could not help his wife

with simple chores; could not do yardwork; and could shop in stores only if he used

a mobile cart. (Doc. 10-7, pp. 18-19). Mr. Posey’s testimony at the hearing was

consistent with his statements in his function report. (Doc. 10-3, pp. 44-45). Mr.

Posey testified at the hearing that his back pain prevented him from lifting his

daughter who weighed 15 pounds. (Doc. 10-3, p. 46). The ALJ did not discuss Mr.

Posey’s description of the way in which his pain affected his activities of daily living.

The Court cannot ascertain from the ALJ’s opinion whether she considered Mr.

Posey’s reported limitations in his daily activities.

The ALJ had to consider measures that Mr. Posey used to try to reduce his

pain. See 20 C.F.R. §§ 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The ALJ did

not mention Mr. Posey’s testimony regarding his need to lay down several times

each day to help alleviate his pain. (Doc. 10-3, pp. 47-48).

The ALJ relied on Dr. Sellman’s opinion that Mr. Posey could perform work

at the light exertional level because the ALJ found that opinion consistent with the

treatment notes and medical evidence in the record. (Doc. 10-3, p. 23). Dr. Sellman

conducted her one-time administrative assessment and review of the Mr. Posey’s

medical records in July 2018; there are several relevant records that post-date Dr.

Sellman’s assessment. The ALJ found persuasive Dr. Sellman’s opinion that Mr.

Posey could occasionally lift 20 pounds, but the ALJ did not acknowledge Mr.

Posey’s testimony at the hearing in 2020 that he could not lift his 15-pound daughter

because of his pain.

For all these reasons, the Court concludes that the ALJ did not properly apply

the Eleventh Circuit pain standard, and substantial evidence does not support her

conclusions on this issue. On remand, the ALJ must consider the entire case record

and give “specific reasons for the weight given” to Mr. Posey’s symptoms and those

reasons must be “consistent with and supported by the evidence.” See SSR 16-3,

2017 WL 5180304, at *10.

Assessment of Dr. Graham’s Medical Opinion

Although the Court will remand this case on the pain standard issue, the Court

has concerns about the ALJ’s assessment of Dr. Graham’s 2020 medical opinion that

Mr. Posey’s severe pain “would prevent him from adequately performing daily

activities and/or work more than two days a month.” (Doc. 10-18, p. 96). In

considering a medical opinion, the ALJ will consider five factors when evaluating

the persuasiveness of a medical opinion: supportability, consistency, relationship

with the claimant, specialization, and “other factors.” 20 C.F.R. § 416.920c(1)-(5).9

The most important factors are supportability and consistency, and an ALJ must

“explain how [she] considered the supportability and consistency factors for a

medical source's medical opinions . . . in [her] determination or decision.” 20 C.F.R.

§ 416.920c(b)(2).10

9 Mr. Posey contends that the ALJ improperly evaluated the opinion of Dr. Graham under the

treating-physician rule, which required ALJs to give a treating physician’s opinion great weight

unless good cause existed to give it less weight. (Doc. 15, p. 3-4; Doc. 19, p. 2) (citing Winschel

v. Commissioner of Social Sec., 631 F.3d 1176 (11th Cir. 2011), and Wiggins v. Schweiker, 679

F.2d 1387, 1389 (11th Cir. 1982)). Mr. Posey’s reliance on the treating physician rule is misplaced.

Because Mr. Posey filed his disability application after March 27, 2017, the Court must apply the

new regulation found in 20 C.F.R. § 416.920c, which abrogated the treating-physician rule. See

Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892, 894 (11th Cir. 2022).

10 An ALJ does not have to articulate how she considered the other three factors. 20 C.F.R. §

416.920c(b)(2) (“We may, but are not required to, explain how we considered the factors in

paragraphs (c)(3) through (c)(5) of this section . . . when we articulate how we consider medical

opinions . . . in your case record.”).

The ALJ did not provide adequate reasoning as to the supportability or

consistency of Dr. Graham’s 2020 medical opinion regarding the limiting effects of

Mr. Posey’s back pain. Regarding Dr. Graham’s 2020 “amendments to his ‘Clinical

Assessment of Pain,” the ALJ stated:

Dr. Graham’s amendments to his “Clinical Assessment of Pain” are

inconsistent with his treatment records and are therefore not persuasive

(Exhibit C21F). Dr. Graham[] speculated that the claimant’s “pain

would prevent him from adequately performing daily activities and/or

work more than 2 days per month” (Exhibit C21F). Social Security

regulations require that the Administrative Law Judge determine a

function-by-function residual functional capacity based on the evidence

and on actual impairment caused functional limitations. Frequent

absenteeism from work does not constitute a functional limitation.

Moreover, there is no evidence that the claimant has any disabling

impairment that would significantly affect his ability to perform all

work, or cause him to regularly be absent from work. Indeed, the

evidence from Dr. Graham indicates that the claimant’s pain is

generally well-controlled with medication (Exhibit C17F).

(Doc. 10-3, p. 24). The ALJ’s conclusory statements that Dr. Graham’s opinions are

speculative and not supported by the record do not satisfy the ALJ’s obligation under

the new regulations. Other than a conclusory statement, the ALJ did not explain

why Dr. Graham’s updated opinion was speculative.

The ALJ also did not explain how she assessed either the consistency or

supportability of Dr. Graham’s opinions regarding the limitations caused by Mr.

Posey’s back pain. The ALJ relied on language in Dr. Graham’s treatment notes

that indicates that Mr. Posey’s pain was controlled by medication. As discussed

above, Mr. Posey’s consistent reports of severe pain at levels of 7-9/10 and Dr.

Graham’s treatment records provide context for notes that refer to controlled pain.

The ALJ’s conclusion that “frequent absenteeism from work does not constitute a

functional limitation” does not demonstrate the supportability or consistency of Dr.

Graham’s opinion.

The ALJ provided “broad conclusions without explaining h[er] analysis

regarding consistency and supportability.” See Works v. Saul, No. 4:19-cv-01515-

MHH, 2021 WL 690126, at *15 (N.D. Ala. Feb. 23, 2021). An ALJ does not satisfy

her obligation to “explain how [she] considered the supportability and consistency

factors for a medical source’s medical opinions”, 20 C.F.R. § 416.920c(b)(2), by

stating only that a medical opinion is speculative or generally inconsistent with the

medical record. Though 20 C.F.R. § 416.920c(b) provides that as a practical matter,

an ALJ cannot articulate for each medical source how the ALJ considered all of the

§ 416.920c(c) factors, § 416.920c(b) requires more than a conclusory statement, at

least with respect to the supportability and consistency factors so that a reviewing

court may make a meaningful assessment of a challenge to an ALJ’s evaluation of

the persuasiveness of various medical opinions. On remand, the ALJ should explain

the supportability and consistency factors as required by the regulation.

Improper Appointment of ALJ and Failure of ALJ to Reopen Mr. Posey’s

2015 Disability Application

Citing Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018) and Carr v. Saul, 141 S.

Ct. 1352, 1357 (2021), Mr. Posey contends that the Commissioner erred by assigning

his 2018 disability application to ALJ Helmer after she decided his 2015 application

without proper constitutional authority. (Doc. 15, p. 13; Doc. 19, p. 10). Mr. Posey

also argues that the ALJ erred in failing to reopen his 2015 disability application,

given that ALJ Helmer lacked authority to render a decision in that case.

The Supreme Court in Lucia held that the Security and Exchange

Commissioner’s ALJs were inferior officers who had not been properly

constitutionally appointed at the time of Mr. Lucia’s administrative proceeding.11

Because Mr. Lucia timely challenged the constitutionality of the appointment during

his appeal to the SEC, the Supreme Court held that the remedy for the constitutional

violation was remand to the agency for a new hearing before a properly appointed

officer, and the properly appointed officer could not be the officer who previously

heard the case. Lucia, 138 S. Ct. at 2055; see Gibson v. Sec. & Exch. Comm'n, 795

Fed. Appx. 753, 754 (11th Cir. 2019).

Like the SEC ALJs at issue in Lucia, “SSA ALJs had been selected by lower

level staff rather than appointed by the head of the agency,” in violation of the

Appointments Clause. Carr v. Saul, 141 S. Ct. 1352, 1357 (2021). On July 16,

2018, a few weeks after the Court decided Lucia, the SSA Acting Commissioner

11 The Appointments Clause of the United States Constitution provides the exclusive methods to

appoint “Officers of the United States, a class of government officials distinct from mere

employees.” Lucia, 138 S. Ct. at 2049. “Only the President, a court of law, or a head of a

department” can appoint officers. Lucia, 138 S. Ct. at 2051.

“pre-emptively ‘address[ed] any Appointments Clause questions involving Social

Security claims’ by ‘ratif[ying] the appointments’ of all SSA ALJs and ‘approv[ing]

those appointments as her own.’” Carr, 141 S. Ct. at 1357 (citing 84 Fed. Reg. 9583

(2019)). As a result, in 2019, “the SSA issued a ruling stating that the Appeals

Council should, in response to timely requests for Appeals Council review, vacate

preratification ALJ decisions and provide fresh review by a properly appointed

adjudicator.” Carr, 141 S. Ct. at 1357 (citing 84 Fed. Reg. 9583 (2019)). Claimants

who did not raise their Appointments Clause challenge in their proceedings before

the ALJ or Appeals Council received no remedy. Carr, 141 S. Ct. at 1357.

On April 22, 2021, in Carr, the Supreme Court held that a claimant’s failure

to raise an Appointments Clause challenge during administrative proceedings would

not a forfeit the challenge. Carr, 141 S. Ct. at 1361-62. The Supreme Court decided

that “claimants who raise [an Appointment Clause] issue for the first time in federal

court are not untimely in doing so,” Carr, 141 S. Ct. at 1362, but the claimants in

Carr raised their Appointments Clause challenges in timely-filed district court

appeals of decisions by the ALJs who were not constitutionally appointed at the time

of those decisions. Carr, 141 S. Ct. at 1358 n.2 (quoting 42 U.S.C. § 405(g)).

In both Lucia and Carr, the ALJs were improperly appointed when they

rendered the decision under review in federal court. Here, Mr. Posey did not appeal

ALJ Helmer’s denial of his 2015 application after the Appeals Council denied

review. Instead, he filed a new application in 2018. The final decision under review

in this appeal is ALJ Helmer’s 2020 decision, which she rendered after the Acting

Commissioner ratified ALJ Helmer’s appointment in 2018. An Appointment Clause

challenge in this appeal is unavailing because ALJ Helmer was constitutionally

appointed during all aspects of the 2020 decision under review in this case. See

Raper v. Comm’r of Soc. Sec., No. 5:20-cv-597-PRL, 2022 WL 1078128, at *6

(M.D. Fla. Mar. 25, 2022) (rejecting a similar argument, even where the same ALJ

issued an earlier decision in the same case prior to the ratification by the Acting

Commissioner).

Nevertheless, because the Court is remanding this case on the pain standard

issue, ALJ Helmer could decide Mr. Posey’s disability application a third time. As

the Supreme Court indicated in Lucia, an ALJ who issued a decision on the merits

while lacking the proper constitutional authority but later received a constitutional

appointment “cannot be expected to consider the matter as though [she] had not

adjudicated it before.” Lucia, 138 S. Ct. at 2055. Although Mr. Posey did not appeal

the denial of his 2015 application to the federal district court and timely raise the

appointment issue in that case, on remand in this case, the Commissioner should

consider assigning Mr. Posey’s case to a different ALJ.

Regarding ALJ Helmer’s refusal to re-open Mr. Posey’s 2015 disability

application, the Court does not have jurisdiction to decide that issue. A district

court’s “jurisdiction to review claims arising under the Social Security Act is limited

by 42 U.S.C. § 405(g).” Kimbril v. Soc. Sec. Admin. Comm’r, —Fed. Appx.—, 2023

WL 3487764, at * 1 (11th Cir. May 17, 2023) (citing Cash v. Barnhart, 327 F.3d

1252, 1255 (11th Cir. 2003)). Section 405(g) permits review in federal district court

“only after final decision of the Commissioner of Social Security made after a

hearing.” 42 U.S.C. § 405(g).

An ALJ’s “denial of a request to re-open a final and binding determination,

however, is not subject to the administrative review process [in federal district court]

because such a request is not a ‘final decision . . . made after a hearing’ under §

405(g).” Kimbrel, 2023 WL 3487764, at *1 (citing 20 C.F.R. § 404.903(1)).

Consequently, “federal courts generally lack subject matter jurisdiction to review a

denial of a request to reopen.” Kimbrel, 2023 WL 3487764, at *1 (citing Califano

v. Sanders, 430 U.S. 99 (1977)). An exception exists where the claimant “raises a

colorable constitutional claim.” Kimbrel, 2023 WL 3487764, at *1 (citing Califano,

430 U.S. at 108-09). A “constitutional claim relating to the first application is

insufficient to confer subject matter jurisdiction over [an] appeal of the reopening

decision. The constitutional issue must concern the proceeding at which the decision

not to reopen was made.” Kimbrel, 2023 WL 3487764, at *1 (quoting Cherry v.

Heckler, 760 F.2d 1186, 1190 n.4 (11th Cir. 1985), superseded on other grounds by

20 C.F.R. § 404.1520(a)(1992) (internal quotations omitted)).

Here, Mr. Posey’s request to re-open his 2015 application was not based on

an Appointments Clause claim. Instead, Mr. Posey’s request to re-open his 2015

application involved new medical evidence that he claimed supported his carpel

tunnel diagnosis. (Doc. 10-3, p. 35). Mr. Posey did not raise the Appointments

Clause constitutional issue until he filed his brief in this appeal on September 27,

2021. Even so, his Appointments Clause constitutional claim relates to the denial of

his prior 2015 application by an ALJ who was not constitutionally appointed when

she rendered her decision. Mr. Posey does not identify a constitutional issue

involving the administrative proceedings for the 2018 application during which ALJ

Helmer’s denied his request to re-open based on alleged new medical evidence.

Therefore, the Court lacks subject matter jurisdiction to decide this issue.

CONCLUSION

For the reasons discussed above, the Court finds that the ALJ did not properly

apply the pain standard, and substantial evidence does not support her findings.

Accordingly, the Court reverses the decision of the Commissioner and remands this

case for further proceedings consistent with this opinion.

DONE and ORDERED this July 26, 2023.

adits Sl

Madlist. FOI

UNITED STATES DISTRICT JUDGE

43