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Dees v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

February 13, 2018

THERESA NAOMI DEES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         Theresa Dees (the “Claimant”) appeals to the District Court a final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for Supplemental Security Income (“SSI”). Doc. No. 1. Claimant argues that the Administrative Law Judge (the “ALJ”) committed reversible error by: 1) making findings regarding Claimant's credibility that were not supported by substantial evidence; and 2) applying improper legal standards to a Residual Functional Capacity Questionnaire (the “RFC Questionnaire”) from Dr. James Byrne, Claimant's treating physician. Doc. No. 15 at 13-17, 24-26. Claimant requests that the Court reverse the Commissioner's final decision and remand the case for further proceedings. Id. at 29. For the reasons set forth below, it is RECOMMENDED that the Court REVERSE the Commissioner's final decision and REMAND the case for further proceedings.

         I. PROCEDURAL BACKGROUND

         On May 28, 2013, Claimant filed her SSI application alleging a disability onset date of January 30, 2009. R. 223. Claimant later amended her disability onset date to August 14, 2013. R. 384. On August 21, 2013, Claimant's application was denied initially. R. 141-43. On November 13, 2013, Claimant's application was denied upon reconsideration. R. 148-152. On December 6, 2013, Claimant requested a hearing before the ALJ. R. 154. On March 7, 2016, Claimant attended a hearing before the ALJ. R. 62-113. On April 15, 2016, the ALJ issued an unfavorable decision finding Claimant not disabled. R. 34-49. On June 15, 2016, Claimant requested review of the ALJ's decision. R. 8. On April 11, 2017, the Appeals Council denied Claimant's request. R. 1-6. On June 9, 2017, Claimant filed this appeal. Doc. No. 1.

         II. STANDARD OF REVIEW

         The Social Security regulations delineate a five-step sequential evaluation process for determining whether a claimant is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner's decision is supported by substantial evidence, the District Court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must take into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560. The District Court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations and quotations omitted).

         III. ANALYSIS

         A. Claimant's Credibility

         At step two, the ALJ found that Claimant had severe impairments of: degenerative disc disease of the cervical and lumbar spine; generalized arthritis; fibromyalgia; myasthenia gravis; and a history of migraine headaches. R. 36. At step four, the ALJ found Claimant's statements concerning the intensity, persistence, and limiting effects of her symptoms not credible.[1] R. 40. The ALJ made three separate credibility findings. First, the ALJ found that Claimant “has described daily activities, which are not entirely limited.” R. 46. Specifically, the ALJ stated:

At one point or another in the record, [Claimant] has reported the following activities: occasionally taking/picking her daughter up from school and/or functions, cooking simple meals, taking care of personal needs, doing laundry and light household chores when her pain allowed, driving [one to two] times a week, using a computer/phone, being able to manage finances, and shopping while leaning onto a cart.

Id. (citing R. 234-38, 257-261, 450). Second, the ALJ found that Claimant's “treatment has been essentially conservative in nature and somewhat effective in controlling her pain.” Id. Finally, the ALJ found that “physical examinations do not document any objective findings that would prevent [Claimant] from performing work activity within the established residual functional capacity (“RFC”).” Id. The ALJ then cites evidence in support of this credibility finding, noting: 1) an August 2013 examination revealing normal gait without an assistive device, no sensory loss, normal muscle strength, and full range of motion; 2) a September 2013 examination revealing no tenderness or swelling and full range of motion; 3) two examinations from July 2015 showing normal motor strength in the upper extremities and normal gait; and 4) examinations from February 2015 and October 2015 noting 5/5 bilateral motor strength in the upper and lower extremities and normal gait. Id. (citing R. 446, 484-495, 725, 839, 850).

         Claimant argues that the ALJ erred in making the above-referenced credibility findings. First, Claimant argues that none of her activities of daily living conflict with her testimony regarding her limitations. Doc. No. 15 at 25. Second, Claimant argues that the ALJ's second credibility finding overlooks records from the Laser Spine Institute noting that Claimant “had attempted numerous forms of conservative care for her neck and low back pain with no persisting relief.” Id. at 25-26. Claimant also notes that she was scheduled to have multiple surgeries with the Laser Spine Institute which were later cancelled through no fault of her own.[2] Id. Third, Claimant argues that the ALJ's third credibility finding failed to provide specific or adequate reasons for finding her statements not credible. Id. at 26. Finally, Claimant argues that the ALJ's third credibility finding “overlooked all of the evidence that supported [her] testimony.” Id.

         1) Activities of Daily Living

         When making his first finding regarding Claimant's credibility, the ALJ found that Claimant's reported daily activities were not limited. R. 46. Specifically, the ALJ noted that Claimant occasionally picks her daughter up from school and other functions, cooks simple meals, takes care of her personal needs, does laundry and light household chores when her pain allows, drives once or twice per week, uses a computer and phone, manages her finances, and shops while leaning onto a cart. Id.

         This Court has found reversible error when an ALJ detracts from a Claimant's credibility based on daily living activities that have no relationship with a claimant's alleged impairments, especially if such activities are of a short duration, limited, and not vigorous. See Lafond v. Comm'r of Soc. Sec., No. 6:14-cv-1001-Orl-DAB, 2015 WL 4076943, at *10 (M.D. Fla. July 2, 2015) (finding that the ALJ erred by considering evidence that the claimant drove short distances, washed dishes, prepared meals, shopped for groceries, and did her own laundry in assessing credibility); Wolfe v. Comm'r of Soc. Sec., No. 6:11-cv-1316-ORL-DAB, 2012 WL 3264916, at *6 (M.D. Fla. Aug. 10, 2012) (finding that the ALJ erred by considering evidence that the claimant went grocery shopping, prepared meals, and performed household chores in assessing credibility). See also Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. ...


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