[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 09, 2008
No. 07-11648 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00295-CV-W-S
WENDY A. DAVIS,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE, Commissioner of Social
Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 9, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Wendy Davis appeals the district court’s order affirming the Social Security
Administration’s denial of her application for disability insurance benefits,
pursuant to 42 U.S.C. § 405(g). Davis raises two issues on appeal. First, whether
the Administrative Law Judge (“ALJ”), erred in giving "no weight" to Davis's
treating physicians' opinions. Second, whether the ALJ erred by failing to properly
consider Davis’s subjective complaints and non-exertional impairments. After a
careful review of the record, we conclude that the ALJ’s reasons for discrediting
both the opinions of the treating physicians and Davis’s testimony as to her pain,
are not supported by substantial evidence. Accordingly, we VACATE and
REMAND.
I. BACKGROUND
Davis filed an application for disability insurance benefits alleging that she
had been unable to work since June 2003. The Commissioner denied Davis’s
application initially and upon reconsideration. Davis filed a request for a hearing
before an ALJ. At the hearing, Davis testified and presented documentary
evidence, the bulk of which was already in the administrative record. The
vocational expert (“VE”) also testified at the hearing. R.Exhs. at 330. To the
ALJ’s hypothetical question regarding a “younger individual” with Davis’s
education, work history, and similar physical restrictions, the VE testified that
such a hypothetical person would not be able to do any of the past work performed
2
by Davis. Id. at 332. To the ALJ’s inquiry into whether such a hypothetical
person could perform occupations that exist in the national economy, the VE
testified that he would advance the position of marker or pricer. Id. at 332-33. He
stated that this job had a “light exertional level, SVP of two, which is simple,
routine, non interfering, three step work activity.” Id. at 333. He testified that the
second position he would advance was that of garment sorter, which was also at
the light exertional level, SVP of two, and which was unskilled, entry-level work.
Id. The ALJ then asked the VE whether he had heard Davis’s testimony; the VE
responded that he had. Id. The ALJ asked whether those same two positions
would be available to Davis if the ALJ found credible her testimony that she had
severe problems with concentration, severe pain on a regular basis, required much
time lying down, and suffered depression and anxiety. Id. at 333-34. The VE
responded that if that were the case, Davis would not be able to function in either
of the two named jobs. Id. at 334. He stated that in his opinion, Davis “wouldn’t
be able to function on any job on a sustained basis in the competitive labor
market.” Id. The ALJ then inquired whether a restriction on walking more than 10
minutes at a time, plus the initially-named restrictions, would impact one’s ability
to perform those same two jobs, and the VE responded yes. Id.
The ALJ denied Davis benefits. Id. at 12-24. The ALJ first found that
3
Davis’s earnings after the onset of her medical conditions did not constitute
substantial gainful activity. Id. at 16. Next, the ALJ examined the severity of
Davis’s combination of impairments, finding that her asthma was “under good
control with medication and not a severe impairment.” Id. at 17. He found that the
medical evidence indicated that Davis had fibromyalgia, major depressive disorder,
personality disorder, generalized anxiety disorder, and degenerative disc disease,
“impairments that are severe within the meaning of the Regulations but not severe
enough to meet or medically equal, either singly or in combination to one of the
impairments listed in Appendix 1, Subpart P, Regulations No. 4.” Id. at 17
(internal quotations omitted).
The ALJ stated that the evidence showed that Davis had only mild
restrictions in activities of daily living, citing the questionnaire she filled out in
which she indicated that she had no problems caring for her personal needs, that
she was able to cook and clean, and that she could pick her daughter up from
school. Id. at 18. He stated that Davis had moderate difficulty in social
functioning, as she reported that she does not want to go anywhere, but that she
generally gets along well with people. Id. He stated that Davis had moderate
difficulties in maintaining concentration, persistence, or pace, as she reported
having problems concentrating and remembering, though David Ghostley, a
4
clinical psychologist, had noted that her concentration was unimpaired. Id.
Finally, the ALJ stated that there was no evidence that Davis had experienced an
episode of decompensation since her alleged onset date. Id.
The ALJ found that, “[b]ased on the objective findings and inconsistencies,”
Davis’s testimony of experiencing extreme pain which kept her from being able to
sit, stand, or walk for prolonged periods, or care for her personal hygiene needs,
was not credible. Id. at 18-19. Specifically, the ALJ pointed to the inconsistency
of Davis’s statement in the questionnaire, that she was able to care for her personal
needs, and her statement at the hearing that she sometimes had to have her husband
wash her hair and that she goes days without taking a bath. Id. at 19.
In considering the medical opinions of Davis’s treating physicians, the ALJ
stated that he gave no weight to Dr. Edmund LaCour’s 10 March 2004 physical
assessment of Davis, in which Dr. LaCour found severe restrictions on Davis’s
ability to sit, stand, or walk for long periods of time, as well as restrictions on her
ability to do such things as push, pull, bend, and crawl. Id. The ALJ found that
Dr. LaCour’s assessment was “too extreme and not supported by the objective
findings of record.” Id. at 19. The ALJ then considered Dr. LaCour’s 7 October
2004, assessment, in which Dr. LaCour stated that Davis might be able to work on
a part-time basis, if the job was not physically demanding or particularly stressful.
5
Id. The ALJ rejected Dr. LaCour’s opinion, stating that the evidence supported the
conclusion that she had a greater residual functional capacity (“RFC”) than Dr.
LaCour indicated. Id.
The ALJ then considered Davis’s psychological complaints, stating that the
evidence revealed that Davis was not credible. Id. He stated that Davis’s daily
living activities and history of conservative treatment did not support her extreme
allegations, citing Davis’s statements that she picks her daughter up from school,
cooks, and performs light cleaning. Id. He noted that the record showed that
Davis denied experiencing any side-effects from her medications. Id.
The ALJ also considered the medical opinion of Dr. Ghostley, which was
given after a consultative psychological evaluation on 17 May 2004. Id. He gave
“significant weight” to Dr. Ghostley’s opinion that Davis’s “ability to understand
and remember instructions, as well as to respond appropriately to supervisors, co-
workers, and work pressures in a work setting”, was impaired. Id. However, the
ALJ found that, although Davis did have some limitations, she was “not as limited
as alleged.” Id.
The ALJ next considered the 20 May 2004 assessment by Nelson Handal,
M.D., and stated that he rejected Dr. Handal’s opinion that Davis had a global
assessment functioning level (“GAF”) level of 50. Id. at 19-20. The ALJ found
6
that this assessment was not supported by Dr. Handal’s subsequent treatment
records, and that the evidence revealed that Dr. Handal had noted on 10 September
2004 that Davis was “functioning ‘fair.’” Id. at 20. The ALJ found that the
evidence showed that Dr. LaCour had noted on 6 December 2004 that Davis had
not seen Dr. Handal in several months, and that Dr. Handal’s 17 January 2005
assessment was inconsistent, as Dr. Handal reported that Davis was functioning
“fair,” and yet found her condition to be “worse.” Id. The ALJ also stated that a
treatment note by Dr. Handal, dated 30 June 2005, revealed that Davis was found
to be functioning fair, that Dr. Handal had assessed her condition as “overall
improved,” though Dr. Handal continued to find her GAF level was 50. Id. The
ALJ stated, he gave “no weight to Dr. Handal’s opinion that [Davis]’s global
assessment level was 50 as it is totally inconsistent with his treatment records.” Id.
Further, the ALJ found that Davis’s treatment by Dr. Handal was sporadic, and that
Dr. Handal continued to assess Davis a GAF of 50, though his treatment records
revealed that she was denying feelings of depression and anxiety. Id.
The ALJ then turned to the state agency physical residual functional capacity
assessment form, to which he stated he gave no weight, since it was not signed or
dated. Id. He noted, however, that he found the opinions in the assessment to be
consistent with the record evidence. Id.; see also, id. at 142-49. The ALJ also
7
considered the state agency psychiatric review technique form, which was
completed by a state medical consultant. Id. at 20. The medical consultant found
that Davis had mild restrictions on activities of daily living, mild difficulties in
maintaining social functioning, moderate difficulties in maintaining concentration,
persistence or pace, and no episodes of decompensation. See id. at 218-31. The
ALJ found that Davis had moderate limitations in social functioning, though he
stated that the evidence supported the conclusion that Davis was not as limited as
alleged. Id. at 20.
The ALJ found that Davis had the RFC to lift or carry 20 pounds
occasionally and 10 pounds frequently, that she could occasionally push or pull
with her lower extremities, that she could never climb ladders, ropes, or scaffolds,
and that she could never kneel or crawl. Id. Further, Davis could occasionally
climb ramps and stairs, balance, stoop and crouch, as well as occasionally reach
overhead with her arms. Id. He found that she must avoid concentrated exposure
to extreme cold and heat, and avoid all exposure to heights and dangerous
machinery. Id. at 20-21. Finally, the ALJ stated, that due to Davis’s pain and
emotional problems, she could only concentrate on simple, routine, unskilled work,
that she could not perform quota or piece rate work, that she must avoid large
crowds in the workplace, and that she could not wait on public customers, either
8
face-to-face or over the telephone. Id. at 21.
Next, the ALJ found that Davis could not perform any of her past relevant
work, but that she was capable of performing a significant range of light work as
defined in 20 CFR § 404.1567. Id. Based on the VE’s testimony, Davis could
perform marker/pricer and garment sorter jobs. Id. at 22. The Appeals Council
denied review. Id. at 4, 1D. The district court affirmed. R1-20.
II. DISCUSSION
We review a Social Security determination to ascertain whether the
Commissioner’s decision is supported by substantial evidence and whether the
correct legal standards were applied. Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005) (per curiam). Substantial evidence is “such relevant evidence as a
reasonable person might accept as adequate to support a conclusion.” Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). Under this limited standard of
review, we will not decide the facts anew, make credibility determinations, or re-
weigh the evidence. Moore, 405 F.3d at 1211. Further, on review, there is no
presumption “that the Commissioner followed the appropriate legal standards in
deciding a claim for benefits or that legal conclusions reached were valid. Instead,
we conduct an exacting examination of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (internal quotation and citation omitted).
9
In evaluating a claim for disability benefits, an ALJ must evaluate the
claimant’s case with respect to the following five criteria, as set forth in 20 C.F.R.
§ 404.1520: “1. [i]s the individual performing substantial gainful activity; 2 [d]oes
she have a severe impairment; 3 [d]oes she have a severe impairment that meets or
equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1; 4 [c]an she perform her past relevant work; and 5 [b]ased on her age,
education, and work experience, can she perform other work of the sort found in
the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).
At the fourth and fifth steps, a determination of the claimant’s residual functional
capacity (“RFC”), is made by the ALJ by considering the claimant’s ability to sit,
stand, walk, lift, carry, push, pull, reach, handle, stoop, crouch, and other work-
related physical demands. See 20 C.F.R. §§ 404.1520(e), (f), 404.1545(b).
A. Whether the ALJ erred in giving “no weight” to Davis’s treating physicians’
opinions
Davis argues that the ALJ erred in giving “no weight” to the opinions of two
treating physicians without showing “good cause.” Davis asserts that the record of
her treatment by her rheumatologist, Dr. LaCour, demonstrates that (1) her
condition was worsening; (2) her medications were routinely increased; (3) she had
lengthy and repeated absences from work; and (4) Dr. LaCour’s treatment notes
were entirely consistent with both his treatment plan and Davis’s restrictions.
10
Further, Davis contends that the ALJ misread the record of her treatment by her
psychiatrist, Dr. Handal, when he found that Dr. Handal had found Davis to be
doing “fair” at several of her visits. Davis submits that the assessment of “fair,”
relied on by the ALJ, was Davis’s own assessment of her health, not Dr. Handal’s,
as his medical notes began, “Patient is reportedly. . . ,” rather than stating Dr.
Handal’s own assessment. Davis asserts that Dr. Handal’s treatment demonstrates
that he clearly did not agree with her own assessment that she was doing fair, as he
repeatedly changed her medications and increased her dosages. Finally, Davis
argues that in order for the ALJ to give a treating physician’s opinion no weight,
the ALJ had to consider the factors laid out in Phillips, 357 F.3d at 1240-41. She
contends that it was an error of law for the ALJ to give the only medical opinions
in the case “no weight,” because each physician is board certified in their
respective specialties, Davis had been treated by Dr. LaCour for over two years and
by Dr. Handal for 15 months at the time of the hearing, as she had numerous visits
with each doctor, and as each doctor had substantially the same opinion regarding
Davis’s ability to perform in a work environment. Since the only medical evidence
contradicting her physicians’ opinions is an unsigned and undated opinion of an
agency employee, Davis contends that the ALJ had no medical evidence to support
the RFC he used for her, and that the unsigned opinion cannot be viewed as
11
substantial evidence that can overcome the opinions and medical evidence of her
two treating physicians.
Social Security regulations provide guidelines for the ALJ to use when
evaluating medical opinion evidence. See 20 C.F.R. § 404.1527. The ALJ
considers many factors when weighing medical opinions, including the examining
relationship, the treatment relationship, how supported an opinion is, whether an
opinion is consistent with the record, and a doctor’s specialization. 20 C.F.R.
§ 404.1527(d)(1)-(6). In Social Security disability benefits cases, generally, the
opinions of examining physicians are given more weight than non-examining
physicians, treating physicians are given more weight than non-treating physicians,
and specialists are given more weight on issues within their areas of expertise than
non-specialists. See 20 C.F.R. § 404.1527(d)(1), (2), (5). When the ALJ does not
give the treating source’s opinion controlling weight, the ALJ applies other factors
such as the length of treatment, the frequency of examination, the nature and extent
of the relationship, as well as the supportability of the opinion, its consistency with
other evidence, and the specialization of the physician. See 20 C.F.R.
§ 404.1527(d)(2)-(6).
The opinion of a treating physician “must be given substantial or
considerable weight unless ‘good cause’ is shown to the contrary.” Phillips, 357
12
F.3d at 1240 (quoting Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997))
(internal quotations omitted). Good cause is shown when the: “(1) treating
physician’s opinion was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was conclusory or inconsistent
with the doctor’s own medical records.” Phillips, 357 F.3d at 1241. Where the
ALJ articulated specific reasons for failing to give the opinion of a treating
physician controlling weight, and those reasons are supported by substantial
evidence, there is no reversible error. Moore, 405 F.3d at 1212.
Here, the ALJ improperly gave “no weight” to the medical opinion of Dr.
LaCour. First, Dr. LaCour and Davis had a longstanding relationship in which Dr.
LaCour was her treating physician for nearly two years. See R.Exhs. at 212, 298-
99. Moreover, Dr. LaCour saw Davis on a fairly frequent basis, having seen her at
least 15 times between her onset date of 1 June 2003, and April 2005, and
communicating with her regularly. See id. at 212-299.
In examining Dr. LaCour’s medical opinion, the ALJ first discredited
Davis’s testimony regarding her extreme limitations based on the objective
findings and the inconsistency between her testimony and her response to a
question on the daily activities questionnaire. Id. at 19. He found that the progress
notes from Dr. LaCour indicated that Davis had reported feeling better, that she
13
refused trigger injections, and that by April 2005, she was “overall improved.” Id..
In light of these findings, the ALJ stated that the 10 March 2004, assessment by Dr.
LaCour was “too extreme and not supported by the objective findings of record.”
Id. However, an examination of the specific inconsistencies cited by the ALJ, as
well as the objective findings of record, demonstrates that the substantial record
evidence does not support his conclusion to give Dr. LaCour’s medical opinion “no
weight.”
In the daily activities questionnaire, Davis stated, in part, that she was able
to care for her personal needs on a regular basis without assistance, that her family
helped to take care of her, that she “sometimes” cooked, and that her daughter and
husband did the shopping for her. Id. at 117-18. She also stated that she had
“good days” and “bad days,” noting that on a good day, she was capable of
performing light dusting and cleaning in the kitchen, and on a bad day, she would
lay in bed. Id. at 118. While the ALJ found these statements inconsistent with
Davis’s testimony that her husband sometimes had to wash her hair and that she
would go days without taking a bath, it should be noted that Davis filled out the
questionnaire over a year prior to giving testimony at the hearing. See id. at 324-
25. Within a period of many months following 6 April 2004, the day on which
Davis completed the questionnaire, Davis was again given a work excuse by Dr.
14
LaCour, she reported that she was not functioning well at home, Dr. LaCour
increased her medication due to the pain she was experiencing, and he found that
her fibromyalgia pain had increased “all over.” Id. at 273, 291, 294, 301. Davis’s
testimony that her husband sometimes had to wash her hair, and her response to the
questionnaire, that she was capable of caring for her own personal needs, do appear
to contradict each other when viewed in isolation. Id. at 117, 324-25. However,
when that testimony is viewed in light of the questionnaire as a whole, where
Davis stated that her family helped to care for her, and that she had good days and
bad days, her statement that her husband “sometimes” had to wash her hair,
appears entirely consistent. Id. These statements alone do not provide the
substantial evidence required to support the ALJ’s reasons for giving Dr. LaCour’s
opinion “no weight.”
The ALJ also examined Davis’s testimony in light of her medical history
and Dr. LaCour’s progress notes in deciding to give Dr. LaCour’s opinion “no
weight.” Id. at 19. The ALJ found that Davis’s testimony of experiencing extreme
pain was inconsistent with several progress notes completed by Dr. LaCour
between 2003 and 2005. Id. Specifically, the ALJ looked at the 19 June 2003 and
1 December 2003 progress notes, where Davis had reported overall improvement
and decreased pain. Id. He also noted that on 6 December 2004, Davis refused
15
trigger injections, opting instead to use Lidoderm patches. Id. Finally, the ALJ
noted that on 7 April 2005, Dr. LaCour indicated that Davis’s fibromyalgia was
improved since starting Cymbalta. Id. The ALJ found that this evidence was
inconsistent with both Davis’s testimony and Dr. LaCour’s 10 March 2004,
physical assessment of Davis, where he stated that she could not sit for six to eight
hours in an eight-hour workday, that she could not stand or walk for six hours in an
eight-hour workday, that she could lift 10-20 pounds, but only 10 pounds
repetitively, and that she could not push or pull with arm or foot controls, bend,
squat, crawl and climb. Id. The ALJ stated that Dr. LaCour’s assessment was “too
extreme and not supported by the objective findings of record.” Id.
However, while the objective findings of record demonstrate that Davis did
have periods of overall improvement between 2003 and 2005, she also had many
more periods where her condition remained stable or became worse. On 19 June
2003, the date cited by the ALJ for Davis’s improvement, Davis complained to
Kenneth Roberts, M.D., the company doctor, that her knees were aching and her
feet were swelling. Id. at 181. On 24 June 2003, Davis was excused from work
until 10 July 2003 by Dr. Roberts, M.D., who also referred her to a rheumatologist,
Dr. LaCour. Id. at 180, 212. On 9 July 2003, Dr. LaCour’s objective findings
showed that Davis’s soft tissue was notable for “1+ tenderness in all 18
16
fibromyalgia tender points,” and on 23 July 2003, Davis received a work excuse
through September 9, 2003. Id. at 213. On 9 September 2003, Davis was found to
have 1-2+ tenderness, and on 12 September 2003, she described her pain as a ten
on a scale of one to ten. Id. at 254. Further, on 16 September 2003, Davis had
increased pain in her neck and shoulders, and Dr. LaCour’s objective findings
showed “[s]ignificant tenderness 2-3+ in the paracervical, paralumbar area.” Id. at
210. The record has many more such examples where Davis’s condition worsened
or simply failed to improve. See id. at 245, 175, 209, 197, 239, 208, 207, 205, 238.
Specifically, within the weeks before Dr. LaCour completed the 10 March 2004,
physical assessment rejected by the ALJ as too extreme, Dr. LaCour’s objective
findings show that Davis’s fibromyalgia was “very symptomatic, quite a bit of
tenderness,” and that she had “at least 1-2+ tenderness on soft tissue palpitation.”
Id. at 205, 208. Further, Dr. LaCour’s assessment shows that Davis was
experiencing debilitating symptoms and missing much work because of it. Id. at
205. In fact, on 10 March 2004, the day on which Dr. LaCour completed the
physical assessment of Davis, Davis was out of work with a work excuse until 2
April 2004. Id. Moreover, while the ALJ cited Davis’s refusal of trigger injections
on 6 December 2004 as evidence that her treatment was conservative, the record
shows that Davis did in fact opt for the injections at other points in time, as Dr.
17
LaCour noted on 13 August 2004 that the injections were helping with Davis’s
pain. Id. at 291. The periods of improvement cited by the ALJ, taken in
conjunction with the periods of increased pain and debilitation, are consistent with
Davis’s statements that she experienced good days and bad days, both within the
questionnaire and in her testimony. Id. at 118, 328. They are also consistent with
Dr. LaCour’s 10 March 2004 physical assessment. Again, substantial evidence
does not support the ALJ’s conclusion that the objective findings of record did not
support Dr. LaCour’s medical opinion.
The ALJ also rejected Dr. LaCour’s 7 October 2004 medical opinion that
Davis might be able to work part-time, assuming the job was not physically
demanding and not particularly stressful. Id. at 289. The ALJ found that this
opinion was not supported by the record, stating that the evidence supported the
conclusion that Davis’s RFC allowed her to perform at the level of light exertion.
Id. at 19. However, the record evidence shows that Davis was on leave from work
from 23 June 2004 through 9 August 2004. Id. at 294. It also shows that two
months prior to Dr. LaCour’s October assessment, on 13 August 2004, Dr. LaCour
noted that he had increased Davis’s medications because of the pain she was
experiencing. Id. at 291. The record also reflects that at various points throughout
2004, both Dr. LaCour and Davis’s physical therapist remarked that Davis’s
18
muscle pain was aggravated by increased work, and that her pain decreased when
she was on medical leave. Id. at 239, 294. Further, following the medical opinion
given in October, Davis continued to experience increased pain from her
fibromyalgia upon her return to part-time work. Id. at 301. Dr. LaCour’s 6
December 2004 physical examination of Davis showed that she had tenderness in
14 of the 18 fibromyalgia tender points, and that her knees were especially tender.
Id. at 302. Again, the substantial record evidence does not support the ALJ’s
conclusion that Dr. LaCour’s medical opinion should be given “no weight,” as the
evidence demonstrates that Dr. LaCour’s objective findings are consistent with his
October 2004 opinion.
Regarding the ALJ’s decision that “no weight” be given to Dr. Handal’s
medical opinion, the ALJ first concluded that Davis was not credible as to her
psychological complaints. Id. at 19. The ALJ explained his conclusion by citing
the “Daily Activities Questionnaire” completed by Davis, stating, that she reported
that she picks her daughter up from school every day, cooks, and performs light
cleaning, as well as noting that she generally gets along with most people. Id. at
19, 118-19. The ALJ also noted Davis’s history of conservative treatment and her
denial of experiencing side-effects from her medications. Id. at 119.
While we will not make credibility determinations or re-weigh the evidence,
19
it is useful to examine statements made by Davis, because the ALJ relied in part on
Davis’s own assertions in determining that Dr. Handal’s medical opinion should be
given “no weight.” See Moore, 405 F.3d at 1211. While the ALJ cited Davis’s
responses to the “Daily Activities Questionnaire,” completed in April 2004, in
finding her “extreme allegations” not credible, the record evidence demonstrates
that Davis’s responses to the questionnaire did not contradict her later statements.
Id. at 19. Specifically, when Davis was asked in the questionnaire how often she
left her house, she responded, “I pick up my daughter from school and go to the
doctor.” Id. at 118. Regarding Davis’s ability to perform household chores, Davis
stated in the questionnaire, “sometimes, I cook[,] if not[,] my husband brings home
food or we just eat sandwiches.” Id. She also stated, “If I am having a good day I
can do light dusting and clean the kitchen.” Id. Davis noted, “[everything] that [I
do] just depends on if I am having a good day,” and “I lay in bed if I am having a
bad day. If [I’m having a] good day I try to work around the house,” and “I have
to take several breaks in order for me to complete tasks on a good day.” Id. at 119-
20. Davis further stated that her daughter and husband did the shopping for her,
and that while she used to balance the checkbook, she no longer did because she
could not handle the anxiety and details of the task. Id. at 118, 120. While Davis
stated, and the ALJ cited, that she gets along well with most people, when asked
20
about her social activity, Davis stated that a friend came to see her several times a
week, but that she did not participate in social activities due to the pain she
experienced, and that she did not want to go anywhere and simply stayed home
because of the pain. Id. at 119.
While the ALJ cited several of these statements to show that Davis was more
capable than she later testified, these statements do not directly contradict her later
statements. Id. at 19. First, Davis did not state on the questionnaire that she picked
her daughter up “everyday,” as the ALJ stated. Id. at 119, 19. When asked how
often she left the house, she replied that she did so to go to the doctor and to pick
her daughter up. Id. at 19. At the hearing, Davis asserted that she slept a lot
because of feelings of sadness, that she had stopped cooking, though she might do
so on a good day, and that she stopped going to the grocery store. Id. at 323-24,
328. While these statements may expand on some of her earlier statements, none
of them works to contradict them. Moreover, it should be noted that the
questionnaire was completed by Davis prior to her first session with Dr. Handal,
and nearly a year and a half prior to the hearing. See id. at 284; 309.
Further, Davis’s responses to the questionnaire are not inconsistent with the
objective findings of Dr. Handal. Specifically, Dr. Handal diagnosed Davis as
having major depressive disorder, generalized anxiety disorder, panic disorder with
21
agoraphobia, and restless leg syndrome. Id. at 286. Davis’s statements on the
questionnaire, that she did not like to leave her house, and that she no longer
balanced the checkbook because of the anxiety it caused her, are consistent with
Dr. Handal’s diagnosis. Id. at 120.
Moreover, while the ALJ stated that Davis’s history of conservative
treatment failed to support her psychological complaints, the record evidence
shows that Davis was on several medications for depression, anxiety, and mood
stability, that she switched medications to better address her problems, and that she
had her dosages increased on several occasions. See id. at 274, 276, 278, 279, 282,
287. With regard to the ALJ’s statement that Davis did not complain about side-
effects from her medications to Dr. Handal, it is true that Davis repeatedly “denied
adverse events or serious side[-]effects.” See id. at 279, 281. However, Davis did
report to Dr. Handal that she was experiencing “poor concentration, difficulty
following directions, jumps tasks and does not complete assignments.” Id. at 281.
She further reported that she was experiencing a lack of motivation, stating she had
only cooked two meals since her last visit with Dr. Handal, and that she was very
forgetful and had difficulty focusing even when attempting to carry on a
conversation, stating, “I get lost and I feel so dumb.” Id. After hearing her
complaints, Dr. Handal noted his recommendation that Davis hold off on taking
22
one of her medications for two days, to see if her memory would improve. Id. at
282. Furthermore, when asked at the hearing whether she experienced side-effects
from her medications, Davis stated, “I have severe memory problems. I can’t
concentrate, I’m afraid to drive anymore.” Id. at 319.
Following his finding that Davis was not credible, the ALJ rejected Dr.
Handal’s 20 May 2004 assessment that found Davis to have a GAF of 50. Id. at
19. The ALJ stated that he rejected this opinion because is was not supported by
Dr. Handal’s subsequent treatment records. Id. at 20. Specifically, the ALJ
pointed to Dr. Handal’s 10 September 2004 progress note stating that Dr. Handal
found that Davis was functioning “fair.” Id.; see id. at 271. He also pointed to Dr.
Handal’s 17 January 2005 progress note, stating that Dr. Handal had opined that
Davis’s functioning was fair, but assessed that her condition was worse, while also
noting that Davis was “cooperative, alert and in no acute distress.” Id. at 20; see
id. at 296. The ALJ also pointed to Dr. Handal’s 22 February 2005 progress note,
stating that Dr. Handal again noted that Davis was functioning fair, that Davis
reported eating good and sleeping fair, but that Davis’s condition was worse. Id. at
20; see id. at 307. The ALJ then addressed the 30 June 2005 progress note, stating
that the note revealed that Dr. Handal found Davis to be functioning fair, that he
indicated that her condition was overall improved, but that he again gave Davis a
23
GAF level of 50. Id. at 20; see id. at 305. The ALJ gave “no weight” to Dr.
Handal’s opinion that Davis had a GAF of 50, finding that “it is totally inconsistent
with the treatment records.” Id. at 20. He further stated that the 30 June 2005
progress note indicated that Davis denied feelings of depression and was content
with her treatment, yet Dr. Handal continued to find her GAF to be 50. Id.; see id.
at 305. The ALJ also stated that Davis’s treatment by Dr. Handal was sporadic,
citing a statement made by Dr. LaCour that Davis had not seen Dr. Handal in
months. Id. at 20; see id. at 301.
First, as to Dr. Handal’s progress note dated 10 September 2004, Dr. Handal
noted, “Reportedly, patient is functioning fair. The patient is reportedly eating fair
and sleeping fair.” Id. at 271. These statements were not Dr. Handal’s assessment
of how Davis was functioning, as asserted by the ALJ, but rather were Davis’s own
assessment of how she was functioning. Dr. Handal wrote under the section of the
note titled “Assessment,” that Davis was “mildly improved.” Id. Second, on the
progress note dated 17 January 2005, Dr. Handal again noted, “Reportedly, patient
is functioning fair. The patient is reportedly eating ‘back and forth’ and sleeping
fair.” Id. at 296. He further quoted Davis’s own statement that she was really
unhappy and isolating herself from her family. Id. Again, while the ALJ stated
that these statements reflected the findings of Dr. Handal, which contradicted his
24
assessment that Davis’s condition was worse, they were actually statements of
Davis’s own self-assessment. Dr. Handal noted that Davis reported to him that she
had been crying a lot and was depressed, and that she had tried to go back to work
but had quit. Id. Dr. Handal then noted his own assessment, which was that Davis
was doing worse at the present time. Id. Third, Dr. Handal’s progress note, dated
22 February 2005, states, “Reportedly, patient is functioning fair. The patient is
reportedly eating good and sleeping fair.” Id. at 307. Again, this assessment was
Davis’s, not Dr. Handal’s. Dr. Handal then noted that Davis reported that she had
done well on Cymbalta, but that since the medication ran out, she had been crying
and had not wanted to leave her house. Further, she reported that she had started a
part-time job and that she was “absolutely miserable,” “tired of all this crap and
doing this to my family.” Id. Dr. Handal then noted his assessment that Davis was
doing worse. Id. Fourth, the progress note dated 30 June 2005, stated,
“Reportedly, patient is functioning fair. The patient is reportedly eating good and
sleeping fair with the Trazodone.” Id. at 305. These statements were Davis’s own
assessment of her condition. Davis then reported that her mood was improved and
that she had not suffered any panic attacks. She also reported that she had quit her
part-time job because it was stressful, but that she felt trapped because she could
not work. Id. Davis also denied feeling depressed or anxious. Id. Dr. Handal then
25
gave his own assessment, which was that Davis was overall improved. Id.
The ALJ misread the record evidence in finding that Dr. Handal repeatedly
assessed Davis’s ability to function as “fair.” Therefore, as far as the ALJ relied on
this stated inconsistency in finding that Dr. Handal’s opinion was not supported by
the record, the ALJ’s decision to give Dr. Handal’s opinion “no weight” is not
supported by substantial record evidence. The ALJ further found that Dr. Handal
continued to give Davis a GAF of 50 even when his treatment notes revealed that
he found she had improved, concluding that Dr. Handal’s diagnosis was therefore
unsupported by the record. However, as stated above, a GAF of 50 indicates either
serious symptoms or serious impairments in social, occupational, or school
functioning. Even when Dr. Handal assessed that Davis had shown improvement,
his progress notes still contained evidence of Davis’s serious impairments, and his
diagnoses as to each of her impairments remained the same. See id. at 271-72.
Moreover, just as Dr. Handal did not adjust Davis’s diagnosis when she showed
improvement, he did not adjust it when Davis’s condition worsened, and Davis’s
condition routinely improved and worsened throughout the time she was seen by
Dr. Handal. See id. at 271, 275, 277, 279, 281, 286, 296-97. Because Dr.
Handal’s diagnosis must be given considerable weight unless good cause is shown
to the contrary, and since his diagnosis is not contradicted by contrary findings and
26
is consistent with his own assessments and progress notes, the substantial record
evidence does not support the ALJ’s decision to give Dr. Handal’s medical opinion
“no weight.” See Phillips, 357 F.3d at 1240-41.
As to the ALJ’s finding that Davis’s treatment by Dr. Handal was sporadic,
citing Dr. LaCour’s statement on 6 December 2004 that Davis had not seen Dr.
Handal in several months, the record evidence shows that Davis did not see Dr.
Handal between 10 September 2004 and the 6 December 2004 statement by Dr.
LaCour. However, the record also shows that in the three and one-half months
between 20 May 2004 and 10 September 2004, Davis saw Dr. Handal on seven
occasions. See id. at 271, 275, 277, 279, 281, 284. After 6 December 2004, Davis
saw Dr. Handal on several more occasions. See id. at 296, 305, 307. The record
therefore demonstrates that Davis underwent frequent treatment with Dr. Handal.
Furthermore, it should be noted that the ALJ gave “significant weight” to the
opinion of the consulting psychologist, Ghostley. Id. at 19. That opinion stated, in
part, “[m]emory for recent events was impaired . . . [j]udgment with regard to
social functioning, family relationships, finances, employment, and future plans
was poor.” Id. at 217. He further found that “her ability to understand and
remember instructions, as well as to respond appropriately to supervisors, co-
workers, and work pressures in a work setting is impaired.” Id. Dr. Ghostley also
27
found that a “favorable response to treatment is not expected within the next 6 to
12 months. As such, her prognosis is considered poor.” Id. These findings, to
which the ALJ gave significant weight, appear consistent with Dr. Handal’s
finding that Davis continued to have a GAF of 50, due to either serious symptoms
or serious impairments in social, occupational, or school functioning.
Considering the longstanding relationship Davis had with Dr. LaCour, and
the frequent treatment she underwent with Dr. Handal, as well as the facts that both
Dr. LaCour’s and Dr. Handal’s medical opinions were bolstered by the evidence
and that their medical records were overall consistent with their medical opinions,
the ALJ’s reasons for giving “no weight” to their opinions was not supported by
substantial record evidence.
B. Whether the ALJ erred by failing to properly consider Davis’s subjective
complaints and non-exertional impairments
On appeal, Davis argues that the ALJ failed to evaluate her pain under the
three-part “pain standard.” She asserts that the ALJ improperly discredited her
subjective complaints of pain and did not consider whether her complaints
stemmed from an underlying impairment that could reasonably be expected to
produce such pain. Davis maintains that the ALJ’s failure to properly evaluate her
subjective complaints of pain led to his failure to give adequate consideration of
the effect the exertional and non-exertional impairments had on her ability to work.
28
Further, Davis contends that the ALJ failed to adequately articulate his reasons for
finding her testimony not credible, because he relied solely on her response to one
question in the questionnaire to make that finding. Finally, Davis argues that,
since the ALJ failed to properly consider her subjective pain and its underlying
source, the first hypothetical question he posed to the VE severely minimized the
effects of her depression, memory loss, and pain. She asserts that because of this
minimization, the VE found that she could perform some light work. Under the
second hypothetical posed to the VE, in which the ALJ described severe problems
with concentration, pain, and the need for much rest, as Davis testified she
experienced, the VE stated that a person experiencing such problems would not be
able to function at any job on a sustained basis. Davis contends that had the ALJ
properly considered her physicians’ opinions and her own testimony regarding
pain and memory problems, Davis would have established her disability under the
second hypothetical posed to the VE.
A three-part “pain standard” applies when a claimant attempts to establish
disability through his or her own testimony of pain or other subjective symptoms.
The pain standard requires “(1) evidence of an underlying medical condition; and
(2) either (a) objective medical evidence confirming the severity of the alleged
pain; or, (b) that the objectively determined medical condition can reasonably be
29
expected to give rise to the claimed pain. Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002) (per curiam). A reversal is warranted if the ALJ’s decision
contains no evidence of the proper application of the three-part standard. See Holt
v. Sullivan, 921 F.2d 1221, 1223-24 (11th Cir. 1991) (per curiam). “If the ALJ
decides not to credit a claimant's testimony as to her pain, he must articulate
explicit and adequate reasons for doing so. Failure to articulate the reasons for
discrediting subjective pain testimony requires, as a matter of law, that the
testimony be accepted as true.” Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir.
1995) (per curiam).
Where the ALJ improperly discredited claimant’s subjective complaints, and
thus failed to give adequate consideration to the effect the combination of
claimant’s exertional and non-exertional impairments had on her ability to work,
the regulations require remand to the ALJ for reconsideration of claimant’s
residual functional capacity. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.
1990) (per curiam). When evaluating a claimant’s subjective symptoms, the ALJ
must consider such things as: (1) the claimant’s daily activities; (2) the nature,
location, onset, duration, frequency, radiation, and intensity of pain and other
symptoms; (3) precipitating and aggravating factors; (4) adverse side-effects of
medications, and (5) treatment or measures taken by the claimant for relief of
30
symptoms. See 20 C.F.R. § 404.1529(c)(3)(i)-(iv).
In this case, the ALJ made specific reference to the pain standard, stating
that he must consider all symptoms, including pain, and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence based on the requirements of 20 C.F.R. § 404.1529,
and Social Security Ruling 96-7p. R.Exhs. at 18. Further, the ALJ offered his
reasoning as to why he found Davis not credible. Id. at 19. However, the reasons
offered are not supported by substantial evidence in the record.
Here, the ALJ first determined that Davis’s testimony of experiencing “such
extreme limitations” was not credible because he found her statement in the daily
activities questionnaire, that she could care for her personal needs, was inconsistent
with her testimony given one year later, that her husband or child sometimes had to
wash her hair. Id. at 19. The ALJ also found Davis’s testimony inconsistent and
not credible because of several progress notes completed after her onset date which
demonstrated improvement in her condition. Id.
However, as noted above, the inconsistencies as reported by the ALJ are not
supported by the record, and the ALJ must consider several factors when
evaluating a claimant’s subjective symptoms. See 20 C.F.R. § 404.1529(c)(3)(i)-
(iv). Regarding Davis’s daily activities, Davis testified that the main cause of her
31
inability to work is the pain she experiences. R.Exhs. at 321. She testified that her
husband sometimes had to wash her hair because of the pain she experienced when
she tried to do it herself. Id. at 324-25. She stated that she no longer cooks, unless
she’s having a particularly good day, that she sleeps often, and that her bad days
outweighed her good. Id. at 323-28. She testified that the pain in her back, which
travels down her legs, keeps her from sitting, crossing her legs, or standing for long
periods of time. Id. at 322. On the questionnaire she completed on 6 April 2004,
Davis stated that she had good days and bad days, and that the bad days prevented
her from doing much more than lying in bed. Id. at 118. She stated that she
sometimes cooks, and on a good day, she can perform light cleaning. Id. She
stated that she no longer shops, pays the bills or balances the checkbook. She
leaves the house only to go to the doctor, or to pick her daughter up from school.
Id. at 118-20. Further, on a good day, she requires a break from any task after
approximately a half-hour. Id. at 120. Accordingly, Davis’s statements at the
hearing were substantially the same as the answers she gave a year prior on the
questionnaire, and the medical evidence supports those statements. Specifically,
the medical evidence demonstrates that beginning in June 2003, Davis reported
difficulty getting up from a seated position, because her hands, feet, and legs were
aching. Id. at 176. By August 2003, Davis was only able to walk short distances.
32
Id. at 258. In September 2003, Davis had increased pain in her neck and shoulders,
and, in December 2003, Davis was experiencing a tingling pain down the back of
her right leg and was given a handicap tag. Id. at 209-10. In February 2004, Dr.
LaCour found that Davis’s fibromyalgia continued to have debilitating symptoms,
and that if her symptoms did not improve, he would approve her disability. Id. at
205. Finally, that same month, and again in March, Davis’s physical therapist
noted that Davis was experiencing much pain in her neck and shoulders, and that
the pain was increasing. Id. at 237-38. This medical evidence supports Davis’s
statements, both within the questionnaire and at the hearing, that she was
experiencing great pain that kept her from being able to work.
As to the nature, location, onset, duration, frequency, radiation, and intensity
of pain and other symptoms, Davis testified that she was diagnosed with
fibromyalgia in June 2003. Id. at 315. She stated that she is unable to work
because of the pain she suffers in her arms and legs, and the pain from her back
that goes into her legs. Id. at 321-22. She stated that the pain in her legs is so
sensitive that her physical therapist cannot touch it. Id. at 322. She stated that the
pain keeps her from being able to sit for even an hour at a time. Id. at 323.
Davis’s medical records show that as to intensity, Davis frequently rated her pain
between a six and a ten on a scale of one to ten. See id. at 236-37, 241, 244, 254-
33
55, 257, 259-60. Dr. LaCour’s records show that over the nearly two years that he
saw Davis, Davis repeatedly reported experiencing pain. On 14 different
occasions, Dr. LaCour’s progress notes mentioned Davis’s pain, as well as his
objective findings, noting, in part, “tenderness,” “significant tenderness,” “very
symptomatic,” “debilitating” and “pain all over.” Id. at 213, 209, 208, 205, 301.
As to aggravating factors, Davis’s physical therapist assessed that her myofascial
pain (painful musculoskeletal condition) was aggravated by her increased work.
Id. at 239. Dr. LaCour assessed that Davis’s fibromyalgia continued to “have
significant tenderness since starting back to work.” Id. at 210. His plan to address
her pain was to release her from work for four weeks. Id. Regarding adverse side-
effects from medications, Davis testified at her hearing that her medications caused
severe memory problems and difficulty concentrating. Id. at 319. She stated in the
questionnaire that she no longer performed certain household chores due to her
inability to concentrate, and Davis’s medical records show that she complained of
memory and concentration problems to both Dr. Handal and Dr. LaCour. Id. at
211, 281, 291, 294. Dr. Handal recommended suspending her use of one
medication in order to determine whether it was the cause of her memory
problems. Id. at 282 Dr. Ghostley also noted Davis’s memory problems. Id. at
217. Finally, regarding the measures taken by Davis to mitigate her symptoms,
34
Davis testified that she took medications, attended physical therapy, took baths,
and had her husband stretch her. Id. at 319. The record evidence shows that Davis
consistently visited Dr. LaCour and Dr. Handal, that she took the medications
prescribed her and adjusted them as recommended by her doctors, and that she
attended physical therapy sessions. Again, the record evidence supports the
statements made by Davis both at her hearing and within the questionnaire she
completed.
With this information as background, the ALJ had to consider the three-part
“pain standard.” Wilson, 284 F.3d 1225. As to the first prong, it is clear from the
record, as the ALJ found, that Davis had underlying medical conditions. R.Exhs.
at 17. The second prong requires either objective medical evidence that confirms
the severity of the alleged pain arising from that condition, or that the objectively
determined medical condition is of such severity that it can be reasonably expected
to give rise to the alleged pain. Wilson, 284 F.3d 1225. We have recognized that
fibromyalgia can be disabling. See Phillips, 357 F.3d at 1243 (stating that
fibromyalgia was a severe impairment that could limit a claimant’s ability to
perform unlimited types of work at the sedentary level). The Ninth Circuit has
described fibromyalgia as a “rheumatic disease that causes inflammation of the
fibrous connective tissue components of muscles, tendons, ligaments, and other
35
tissue. Common symptoms . . . include chronic pain throughout the body, multiple
tender points, fatigue, stiffness, and a pattern of sleep disturbance that can
exacerbate the cycle of pain and fatigue associated with this disease.” Benecke v.
Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004).
Here, the record evidence, which consists of medical progress reports and
physical therapist reports, Davis’s subjective statements, and the assessments,
objective findings, and recommendations of Davis’s doctors, supports Davis’s
testimony as to her pain. The ALJ’s reasons for discrediting Davis’s testimony,
that she was inconsistent and that progress notes demonstrated improvement in her
conditions, are not supported by substantial evidence.
III. CONCLUSION
We conclude that the ALJ’s reasons for discrediting the opinions of Davis’s
treating physicians as well as Davis’s testimony as to her pain are not supported by
substantial evidence. Accordingly, we VACATE and REMAND for further
considerations in accordance with our opinion.
VACATED AND REMANDED.
36
Wendy A. Davis v. Michael J. Astrue
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2008-07-09
Citations: 287 F. App'x 748
Copy CitationsCombined Opinion