IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ELIJAH HOUSER, JR., :

Plaintiff, :

vs. : CA 15-0074-C

CAROLYN W. COLVIN, :

Acting Commissioner of Social Security,

:

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review 

of a final decision of the Commissioner of Social Security denying his claim for 

disability insurance benefits. The parties have consented to the exercise of jurisdiction 

by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. 

(Docs. 17 & 19 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 

73, the parties in this case consent to have a United States Magistrate Judge conduct any 

and all proceedings in this case, . . . order the entry of a final judgment, and conduct all 

post-judgment proceedings.”).) Upon consideration of the administrative record, 

plaintiff’s brief, the Commissioner’s brief, and the arguments of the parties at the 

December 9, 2015 hearing before the Court, it is determined that the Commissioner’s 

decision denying benefits should be reversed and remanded for further proceedings not 

inconsistent with this decision.

1

 1 Any appeal taken from this memorandum opinion and order and judgment shall 

be made to the Eleventh Circuit Court of Appeals. (See Docs. 17 & 19 (“An appeal from a 

judgment entered by a Magistrate Judge shall be taken directly to the United States Court of 

(Continued)

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 1 of 15
2

Plaintiff alleges disability due to herniated nucleus pulposus with foraminal 

stenosis at L5-S1, status-post posterior lumbar inter-body and spinal fusion L4-5 with 

incidental dural tear (2007 and revision in 2011), status-post posterior lumbar interbody and spinal fusion at L5-S1, status-post spondylolisthesis, foraminal stenosis, facet 

arthosis, bilateral leg pain, and chronic back pain; uncontrolled diabetes; severe 

headaches; hypertension; obesity; depression; chronic liver disease; and fatigue. The 

Administrative Law Judge (ALJ) made the following relevant findings:

1. The claimant last met the insured status requirements of the 

Social Security Act on June 30, 2012.

2. The claimant did not engage in substantial gainful activity 

during the period from his alleged onset date of January 23, 2010 

through his date last insured of June 30, 2012 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following 

severe impairments: history of subarachnoid hemorrhage; obesity; 

degenerative disc disease of the lumbar spine; and depression (20 CFR 

404.1520(c)).

Claimant’s above stated impairments cause limitations that have more 

than a minimal effect on claimant’s capacity to perform basic work 

activities.

The claimant’s diabetes mellitus is a nonsevere impairment because it 

does not cause a limitation that has more than a minimal effect on 

claimant’s capacity to perform basic work activities. By way of history, the 

claimant presented to Julio C. Delgado, M.D., for diabetes mellitus care. 

On April 22, 2008, Dr. Delgado opined his blood sugars were out of 

control at level 167. During follow-up visits in May, the claimant’s blood 

sugar levels increased as high as 191. Dr. Delgado placed him on Symlin. 

In June of 2008, his glucose level was 167. On September 9, 2008, the 

claimant had severe fatty liver infiltration; and his pain had been 

depriving him of sleep. His glucose level was 225. His physical 

examination was generally unremarkable. Dr. Delgado diagnosed him 

with diabetic neuropathy, Type II, metabolism disorder, benign 

hypertension, stable, systolic heart failure, and stable chronic liver 

 

Appeals for this judicial circuit in the same manner as an appeal from any other judgment of 

this district court.”))

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 2 of 15
3

disorder. At follow-up on May 11, 2011, his glucose level was 246. He had 

not taken Symlin for the past three weeks. Dr. Delgado restarted his 

Symlin (Insulin used for treatment of diabetes mellitus); and he adjusted 

his Levemir (generic brand of Insulin used to treat diabetes mellitus). The 

claimant presented to Dr. Delgado for follow-up care for his diabetes 

mellitus in January of 2011. He had no insurance[,] so he was buying overthe-counter medications and he was checking his blood sugar level with 

someone else’s meter. On March 22, 2012, during another follow-up for 

his diabetes mellitus, his blood glucose was 256. Dr. Delgado refilled his 

medications. The aforementioned presents clear evidence of 

noncompliance. Moreover, the record indicates he has no vision difficulty; 

and he denied end organ damage during the consultative examination. 

Therefore, this condition has established only a slight abnormality or a 

combination of slight abnormalities that would have no more than a 

minimal effect on the claimant’s ability to work. Additionally, there has 

been no substantial evidence to contradict the effectiveness of medication 

and/or medical advice compliance; and the medical evidence fails to 

support a finding that the impairment is a severe impairment that 

considered singly and in combination caused more than a minimal 

limitation on the claimant’s ability to perform basic work activities and is 

therefore, nonsevere.

. . .

4. Through the date last insured, the claimant did not have an 

impairment or combination of impairments that met or medically 

equaled the severity of one of the listed impairments in 20 CFR Part 404, 

Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).

. . .

5. After careful consideration of the entire record, the undersigned 

finds that, through the date last insured, the claimant has the residual 

functional capacity to perform sedentary work as defined in 20 CFR 

404.1567(a) except the claimant can perform occasional pushing or 

pulling with the lower extremities. The claimant is precluded from 

climbing ladders, ropes, or scaffolds. The claimant can perform 

occasional climbing of ramps and stairs. The claimant can perform 

occasional balancing, kneeling, crouching, crawling, and stooping. He 

must avoid concentrated exposure to extreme heat, cold, and vibration.

He can have no exposure to dangerous machinery, unprotected 

heights[,] or work requiring walking on uneven terrain. During a 

regularly scheduled workday, or the equivalent thereof, the claimant 

can understand and remember short and simple instructions; but he is 

unable to do so with detailed or complex instructions. He can do simple, 

routine, and repetitive tasks; but he is unable to do so with detailed or 

complex tasks. The claimant can have no more than occasional, casual, 

non-transactional contact with the general public. His contact with the 

general public should not be his usual job duty. He can accept 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 3 of 15
4

constructive, non-confrontational supervisor criticism. Finally, the 

claimant can deal with changes in the workplace, if they are introduced 

occasionally and gradually. 

. . .

At the hearing, the claimant testified that he could not work because of 

pain, his diabetes mellitus, and trouble concentrating.

. . .

After careful consideration of the evidence, the undersigned finds that the 

claimant’s medically determinable impairments could reasonably be 

expected to cause the alleged symptoms; however, the claimant’s 

statements concerning the intensity, persistence and limiting effects of 

these symptoms are not entirely credible for the reasons explained in this 

decision.

. . .

As for his degenerative disc disease of the lumbar [spine], he has had 

surgical treatment of this condition and the evidence revealed that his 

lumbar spine MRI was normal except for some degeneration at L5-S[1]; 

and there was no significant right-sided nerve root impingement causing 

right leg pain. Additionally, his musculoskeletal examination revealed no 

peripheral synovitis or arthropathy; and he had a negative neurologic 

with no neurologic deficits. Likewise, he had normal grip strength and 

dexterity. His blood pressure was okay during the examination. 

Furthermore, the pain management notes indicated that his reduced pain 

allowed him to go to church: he reported pain as 5/10; and he reported 

30% pain level improvement with current treatment plan that allowed 

him to be independent with his activities of daily living, help with 

housekeeping, and attend church. Furthermore, upon examination, his 

treating physician found him stable on medications. Finally, the surgically 

treated condition was described as resolved except for his current 

condition—perhaps his subjective pain complaints.

. . .

His activities of daily living are not consistent with a disability. He can 

feed himself. He can toilet independently. He prepares his own meals 

such as sandwiches, fruits, cereal, and popcorn. He folds clothes and 

irons. He drives. He shops. He spends time with his family attending 

church. He goes to church and the grocery store on a regular basis: and he 

has never been fired because of problems getting along with others 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 4 of 15
5

(Exhibit B2E2). In conclusion, the undersigned finds the objective medical 

evidence and the activities of daily living indicative that the claimant’s 

impairments are not as disabling as alleged.

. . .

6. Through the date last insured, the claimant was unable to 

perform any past relevant work (20 CFR 404.1565).

. . .

 2 The undersigned cites this Exhibit number—while excluding all other citations—

because the ALJ made reference to this exhibit earlier in his opinion, as follows:

The claimant[,] along with his wife[,] completed a function report dated[] 

February 16, 2011[] that indicated the following: He lives in a house with his new 

wife. They were married December 31, 2010. During the day, he gets up and 

takes his medicine and moves around as much as possible. He is limited [i]n his 

activities dependent upon the amount of pain he is experiencing. He tries to do 

things before taking his medication because it makes him “high”. Some days are 

better than others. He has problems putting on his socks and shoes, bathing 

lower extremities such as ankle[s] and feet; and he never takes baths because it is 

hard to get out of the tub. His wife or barber takes care of his hair. He can feed 

himself. He can toilet independently. He needs reminders to care for personal 

grooming; and he needs someone to accompany him to appointments because he 

forgets. He prepares his own meals such as sandwiches, fruits, cereal, and 

popcorn. He folds clothes and irons. He does not repair anything or do any 

mowing. His father and nephew take care of the outside and his wife takes care 

of the housework. He goes outside as often as he can, except in extreme cold or 

rainy weather because of pain. He drives when he is not heavily medicated or in 

a lot of pain. His wife or family goes with him shopping. He is not able to pay 

bills, count change, handle a savings account, or use a checkbook because he gets 

confused and angry. He spends time with his family attending church. He goes 

to church and the grocery store on a regular basis. He has problems getting along 

with family, friends, neighbors, or others because he does not have a normal life. 

He has problems lifting, squatting, bending, standing, reaching, walking, sitting, 

kneeling, stair climbing, completing tasks, concentrating, understanding, 

following instructions, using his hands; and he has problems with his memory. 

He has a problem paying attention, following written and spoken instructions 

because of forgetfulness or falling asleep. He has never been fired because of

problems getting along with others. He does not handle stress because he has to 

take medicine for it. He does not handle changes in routine because he hates his 

current life (Exhibit B2E). The undersigned has considered the part of this opinion 

as that of the claimant’s wife as a non-medical, third-party opinion in 

accordance with 20 CFR 416.913(d) and SSR 06-03p. In doing so, the undersigned 

gives no weight to that portion of this opinion.

(Tr. 284-285 (emphasis supplied).)

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 5 of 15
6

7. The claimant was born on September 30, 1971 and was 40 years 

old, which is defined as a younger individual age 18-44, on the date last 

insured (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to 

communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination 

of disability because using the Medical-Vocational Rules as a 

framework supports a finding that the claimant is “not disabled,” 

whether or not the claimant has transferable job skills (See SSR 82-41 

and 20 CFR Part 404, Subpart P, Appendix 2).

10. Through the date last insured, considering the claimant’s age, 

education, work experience, and residual functional capacity, there were

jobs that existed in significant numbers in the national economy that 

the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

. . .

Through the date last insured, if the claimant had the residual functional 

capacity to perform the full range of sedentary work, a finding of “not 

disabled” would be directed by Medical-Vocational Rule 201.28. However, 

the claimant’s ability to perform all or substantially all of the requirements 

of this level of work was impeded by additional limitations. To determine 

the extent to which these limitations erode the unskilled sedentary

occupational base, through the date last insured, the Administrative Law 

Judge asked the vocational expert whether jobs existed in the national 

economy for an individual with the claimant’s age, education, work 

experience, and residual functional capacity. The vocational expert

testified that given all of these factors the individual would have been able 

to perform the requirements of representative occupations such as

inspector (sedentary and unskilled), DOT# 739.687-182, 3,000 local jobs 

available and 100,000 national jobs available; sorter (sedentary and 

unskilled), DOT# 521.687-086, 6,000 local jobs available and 400,000 

national jobs available; and machine tender (sedentary and unskilled), 

DOT# 690.685-258, 2,000 local jobs available and 100,000 national jobs 

available. 

Pursuant to SSR 00-4p, the undersigned has determined that the 

vocational expert’s testimony is consistent with the information contained 

in the Dictionary of Occupational Titles.

Based on the testimony of the vocational expert, the undersigned 

concludes that, through the date last insured, considering the claimant’s 

age, education, work experience, and residual functional capacity, the 

claimant was capable of making a successful adjustment to other work 

that existed in significant numbers in the national economy. A finding of 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 6 of 15
7

“not disabled” is therefore appropriate under the framework of the abovecited rule.

11. The claimant was not under a disability, as defined in the Social 

Security Act, at any time from January 23, 2010, the alleged onset date, 

through June 30, 2012, the date last insured (20 CFR 404.1520(g)). 

 

(Tr. 280-281, 281, 283, 285, 288-289, 289, 290 & 291 (most internal citations omitted;

footnotes omitted; emphasis in original).) The Appeals Council affirmed the ALJ’s 

decision (Tr. 1-4) and thus, the hearing decision became the final decision of the 

Commissioner of Social Security.

DISCUSSION

In all Social Security cases, an ALJ utilizes a five-step sequential evaluation 

to determine whether the claimant is disabled, which considers: (1) 

whether the claimant is engaged in substantial gainful activity; (2) if not, 

whether the claimant has a severe impairment; (3) if so, whether the 

severe impairment meets or equals an impairment in the Listing of 

Impairments in the regulations; (4) if not, whether the claimant has the 

RFC to perform h[is] past relevant work; and (5) if not, whether, in light of 

the claimant’s RFC, age, education and work experience, there are other 

jobs the claimant can perform.

Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)3 (per 

curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v. 

Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the 

burden, at the fourth step, of proving that he is unable to perform his previous work. 

Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has 

met this burden, the examiner must consider the following four factors: (1) objective 

medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence 

of pain; and (4) the claimant’s age, education and work history. Id. at 1005. Once the 

 3 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir.R. 36-2.

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 7 of 15
8

claimant establishes that he cannot perform his past relevant work, as here, it becomes 

the Commissioner’s burden to prove that the claimant is capable, given his age, 

education and work history, of engaging in another kind of substantial gainful 

employment, which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 

(11th Cir. 1985).

The task for the Magistrate Judge is to determine whether the Commissioner’s 

decision to deny claimant benefits, on the basis that he can perform those sedentary jobs 

identified by the vocational expert, is supported by substantial evidence. Substantial 

evidence is defined as more than a scintilla and means such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion. Richardson v. 

Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether 

substantial evidence exists, we must view the record as a whole, taking into account 

evidence favorable as well as unfavorable to the Commissioner’s] decision.” Chester v. 

Bowen, 792 F.2d 129, 131 (11th Cir. 1986).4 Courts are precluded, however, from 

“deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed. 

Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d 

1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence preponderates against the 

Commissioner’s findings, [a court] must affirm if the decision reached is supported by 

substantial evidence.’” Id. (quoting Crawford v. Commissioner of Social Security, 363 F.3d 

1155, 1158-1159 (11th Cir. 2004)).

In this case, the plaintiff contends that the following errors were committed in 

this case: (1) the ALJ erred in finding that his diabetes is a non-severe impairment; (2) 

 4 This Court’s review of the Commissioner’s application of legal principles, 

however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 8 of 15
9

the ALJ failed to follow the Eleventh Circuit’s pain standard; and (3) the Appeals 

Council failed to adequately examine the additional evidence submitted to it. Because 

the undersigned finds, in this decidedly “pain” case, the ALJ’s analysis of plaintiff’s 

credibility particularly lacking, the undersigned only parenthetically considers 

plaintiff’s other issues.

The Eleventh Circuit has consistently and often set forth the criteria for 

establishing disability based on testimony about pain and other symptoms. See, e.g., 

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citations omitted); Holt v. 

Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).

[T]he 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 pain; or (b) that 

the objectively determined medical condition can reasonably be expected 

to give rise to the claimed pain. If the ALJ discredits subjective testimony, 

he must articulate explicit and adequate reasons for doing so. Failure to 

articulate reasons for discrediting subjective testimony requires, as a 

matter of law, that the testimony be accepted as true.

Wilson, supra, 284 F.3d at 1225 (internal citations omitted; footnote added). 

“20 C.F.R. § 404.1529 provides that once such an impairment is established, all 

evidence about the intensity, persistence, and functionally limiting effects of pain or 

other symptoms must be considered in addition to the medical signs and laboratory 

findings in deciding the issue of disability.” Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 

1995) (emphasis supplied). In other words, once the issue becomes one of credibility 

and, as set forth in SSR 96-7p, in recognition of the fact that a claimant’s symptoms can 

sometimes suggest a greater level of severity of impairment than can be shown by 

objective medical evidence alone, the adjudicator (ALJ) in assessing credibility must 

consider in addition to the objective medical evidence the other factors/evidence set 

forth in 20 C.F.R. § 404.1529(c). More specifically, “[w]hen evaluating a claimant’s 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 9 of 15
10

subjective symptoms, the ALJ must consider the following factors: (i) the claimant’s 

‘daily activities; (ii) the location, duration, frequency, and intensity of the [claimant’s] 

pain or other symptoms; (iii) [p]recipitating and aggravating factors; (iv) the type, 

dosage, effectiveness, and side effects of any medication the [claimant took] to alleviate 

pain or other symptoms; (v) treatment, other than medication, [the claimant] received 

for relief . . . of pain or other symptoms; and (vi) any measures the claimant personally 

used to relieve pain or other symptoms.’” Leiter v. Commissioner of Social Security 

Administration, 377 Fed.Appx. 944, 947 (11th Cir. May 6, 2010) (emphasis supplied), 

quoting 20 C.F.R. §§ 404.1529(c)(3); see also SSR 96-7p (“In recognition of the fact that an 

individual’s symptoms can sometimes suggest a greater level of severity of impairment 

than can be shown by the objective medical evidence alone, 20 CFR 404.1529(c) and 

416.929(c) describe the kinds of evidence . . . that the adjudicator must consider in 

addition to the objective medical evidence when assessing the credibility of an 

individual’s statements[.]” (emphasis supplied)).

“Subjective pain testimony that is supported by objective medical 

evidence of a condition that can reasonably be expected to produce the 

symptoms of which the claimant complains is itself sufficient to sustain a 

finding of disability.” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)

(citations omitted). However, if the ALJ decides not to credit a claimant’s 

subjective complaints as to her pain, “he must articulate specific and 

adequate reasons for doing so.” Holt, 921 F.2d at 1223. “Failure to 

articulate the reasons for discrediting subjective pain testimony requires, 

as a matter of law, that the testimony be accepted as true.” Id. (citation 

omitted).5 “A clearly articulated credibility finding with substantial 

supporting evidence in the record will not be disturbed by a reviewing 

court.” Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (per curiam) 

(citation omitted). 

 5 “[I]f the ALJ either fails to articulate reasons for refusing to credit the plaintiff’s 

pain testimony, or if his reasons are not supported by substantial evidence, the pain testimony 

of the plaintiff must be accepted as true.” Frizzell v. Astrue, 487 F.Supp.2d 1301, 1305 (N.D. Ala. 

2007).

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 10 of 15
11

Leiter, supra, 377 Fed.Appx. at 947 (footnote added).

In this case, the ALJ clearly recognized that plaintiff’s underlying medically 

determinable impairments “could reasonably be expected to cause the alleged 

symptoms[,]” (Tr. 288); however, his additional finding that “the claimant’s statements 

concerning the intensity, persistence and limiting effects of these symptoms are not 

entirely credible[,]” (Tr. 289), is not supported by substantial evidence.

The plaintiff testified that he has pain in his back, legs, and hips; that he 

constantly changes positions to relieve his pain; that he takes strong painkilling 

medications (at the time of the hearing, he was taking Oxycodone and Lyrica); that a 

stimulator was surgically implanted in his back to help relieve his chronic pain; and 

that while he does go to church twice a month, shops with his wife, reads, watches TV, 

and walks for short periods of time, he has difficulty putting on his shoes and cannot 

pick up his five-month old son and walk around with him. (See Tr. 305-306 & 308-309.) 

Interestingly, although the ALJ did not set forth the specifics of plaintiff’s hearing 

testimony (see Tr. 285 (“At the hearing, the claimant testified that he could not work 

because of pain, his diabetes mellitus, and trouble concentrating.”)), it is apparent that 

he found plaintiff’s pain allegations inconsistent with his daily activities (see Tr. 289 

(“His activities of daily living are not consistent with a disability.”)). The ALJ relies on 

Exhibit B2E (Tr. 427-434) to support his contention in this regard (Tr. 289). However, the 

undersigned is unable to find that this Function Report (Tr. 427-434) supplies 

substantial evidence to support the ALJ’s credibility determination because, earlier in 

his opinion, the ALJ rejected at least a portion of the report on the basis that it 

constituted the opinion of plaintiff’s wife (see Tr. 284-285 (“The undersigned has 

considered the part of this opinion as that of the claimant’s wife as a non-medical, thirdparty opinion in accordance with 20 CFR 416.913(d) and SSR 06-03p. In doing so, the 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 11 of 15
12

undersigned gives no weight to that portion of this opinion.”)), without specifically 

identifying what portion of the report (which was indisputably completed by both 

plaintiff and his wife—Tr. 434) he was rejecting (see id. at 284 & 285). Moreover, in 

recounting the daily activities plaintiff and his wife set forth in the report, the ALJ 

ignored the full scope of the information supplied in the report. (Compare Tr. 289 with 

Tr. 284 & 427-434.) For instance, the ALJ emphasized that plaintiff reported he can drive 

(Tr. 284) but ignored that plaintiff only drives if he is not heavily medicated or in a lot of 

pain (Tr. 430). In addition, the ALJ noted plaintiff can feed himself and toilet 

independently (Tr. 284) but ignored that plaintiff and his wife reported that he has 

numerous problems with personal care, including that at times he has a hard time 

putting on socks and shoes (if he can put them on at all), if is hard for him to bathe his 

lower extremities, he needs help with his hair and shaving, and even though he can 

toilet independently, using the restroom “take[s] a lot out of [him][.]” (Tr. 428.) These 

are but a few examples of the ALJ’s wholesale “cherry-picking” in this regard. 

It is recognized in the Eleventh Circuit that “participation in everyday activities 

of short duration, such as housework or fishing,” does not disqualify a claimant for 

disability. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997); see also Frizzell, supra, 

487 F.Supp.2d at 1306 (“The ability to watch television, do occasional shopping, or 

perform other sporadic activities does not mean the plaintiff is not disabled.”). This is 

particularly true where, as here, the ALJ selectively describes the plaintiff’s activities by 

simply listing them without concomitantly setting forth the plaintiff’s limiting 

description of those activities. See Horton v. Barnhart, 469 F.Supp.2d 1041, 1047 (N.D. 

Ala. 2006) (“The ALJ’s selective description of the plaintiff’s activities is disingenuous, 

as he accepts her listing of her activities, but not her limiting description of them.”). 

Because the ALJ’s rejection of plaintiff’s back, leg and hip pain complaints is founded 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 12 of 15
13

solely on a description of plaintiff’s daily activities, a description replete with 

inaccuracies or only partial “truths,” the ALJ’s sole articulated reason for rejecting 

plaintiff’s back and leg pain testimony6 is not supported by substantial evidence. Cf.

Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“Failure to articulate the reasons for 

discrediting subjective pain testimony requires, as a matter of law, that the testimony be 

accepted as true.”). Therefore, this error requires remand of this action to the 

Commissioner of Social Security.

 6 It is relatively clear to the undersigned that the ALJ focused on plaintiff’s daily 

activities because it did not behoove him to focus on any other factor in § 404.1529(c)(3), 

particularly since the record is replete with evidence of surgeries plaintiff received to relieve his 

pain (compare Tr. 590 (on July 18, 2011, plaintiff had the following surgical procedure: “Revision 

posterior spinal fusion, L4-5, with titanium Biomet Polaris instrumentation, platform DBM 

insertion of EBI electrical bone stimulator, repair of dural tear, re-exploration microscopic 

partial hemilaminectory, foraminotomy L4-5, discectomy L4-5 on the right, with PLIF, posterior 

lumbar interbody fusion, with OsteoStim implant, and aspiration of right posterior iliac crest 

bone marrow.”) with Tr. 633 (“This patient is seen for back and bilateral leg pain, status post 

lumbar surgery times 4[,] including multilevel fusion[.]”)), the need for him to constantly

change positions to relieve pain (Tr. 305), and his dependence on strong painkilling medication, 

even after surgical insertion of the stimulator (see, e.g., Tr. 633 (on September 14, 2011, plaintiff 

was prescribed Oxycodone, Lyrica, and Cymbalta); 639 (on November 3, 2011, plaintiff was 

prescribed Roxicodone, Lyrica, and Cymbalta); 643 (on January 15, 2012, plaintiff was continued 

on Roxicodone, Lyrica, and Cymbalta); Tr. 706 (on April 18, 2012, plaintiff was continued on 

Roxicodone, Lyrica, and Cymbalta); Tr. 722 (on July 11, 2012, plaintiff was continued on 

Roxicodone, Lyrica, and Cymbalta); Tr. 738 (on October 1, 2012, plaintiff was continued on 

Roxicodone, Lyrica, and Cymbalta) & 772 (on December 20, 2012, plaintiff was continued on 

Roxicodone, Lyrica, and Cymbalta)). The record in this case is notable for the fact that no 

medical provider has ever suggested that plaintiff does not have chronic low back pain (or 

associated bilateral leg pain) or questioned plaintiff’s description of the severity of that pain. 

(See, e.g., Tr. 497-509, 588-590, 594-597, 599-602, 633-639, 643, 653-661, 665-669, 675-676, 706-707, 

722-727, 737-752 & 771-774.)

The undersigned simply notes that Roxicodone tablets are “an immediate-release oral 

formulation of oxycodone hydrochloride indicated for the management of moderate to severe 

pain where the use of an opioid analgesic is appropriate.” 

http://www,drugs.com/roxicodone.html (last visited, December 15, 2015, at 10:47 a.m.). In 

addition, Lyrica is indicated for the management of neuropathic pain associated with spinal 

cord injury, http://www.druglib.com/druginfo/lyrica/indications_dosage (last visited, 

December 15, 20125, at 10:51 a.m.), and Cymbalta is indicated for the management of chronic 

musculoskeletal pain, http://www.druglib.com/druginfo/cymbalta/indications_usage (last 

visited, December 15, 2015, at 10:53 a.m.); see also id. (“This has been established in studies in 

patients with chronic low back pain (CLBP) and chronic pain due to osteoarthritis.”). 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 13 of 15
14

In addition, because the ALJ’s credibility determination is flawed, this Court is 

unable to find that the ALJ provided the linkage necessary to substantiate his RFC 

determination.7 Accordingly, this cause is due to be remanded to the Commissioner of 

Social Security for further proceedings not inconsistent with this decision.

 7 The ALJ’s decision is troublesome because he goes to much greater lengths than 

this Court has ever seen to reach the determination that plaintiff’s insulin-dependent diabetes 

mellitus is a non-severe impairment (Tr. 280-281), when the evidence of record (see, e,g, Tr. 514, 

588, 599-600, 606, 612, 615, 617, 622-623, 626-627, 712-716 & 757-758), and case law, compare 

McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) (“Step two is a threshold inquiry. It 

allows only claims based on the most trivial impairments to be rejected.”) with Arnold v. Colvin, 

2015 WL 1458149, *1 (N.D. Fla. Mar. 30, 2015) (“The claimant has the following severe 

impairments: diabetes mellitus, insulin dependent, . . . .”); Davis v. Colvin, 2014 WL 793589, *1 

(N.D. Ga. Feb. 26, 2014) (severe impairments found by ALJ included insulin-dependent diabetes 

mellitus) and Byrd v. Astrue, 2010 WL 3749083, *1 (S.D.Ala. Sept. 21, 2010) (noting the ALJ’s 

finding that the claimant’s severe impairments included “a history of insulin[-]dependent 

diabetes mellitus with secondary mild diabetic peripheral neuropathy in lower extremities . . 

. .” (emphasis in original)); cf. Brown v. Astrue, 280 Fed.Appx. 872, 875 (11th Cir. Jun. 3, 2008) 

(“The ALJ determined that Brown had the following [severe] impairments: non-insulin 

dependent diabetes mellitus.” (emphasis supplied)), cert. denied, 555 U.S. 1115, 129 S.Ct. 936, 173 

L.Ed.2d 137 (2009), support a contrary conclusion, and the ALJ failed to determine whether 

plaintiff’s documented noncompliance was excusable because he lacked insurance, compare 

Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“[P]overty excuses noncompliance.”) with 

Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (finding an ALJ must determine whether 

the claimant could afford the prescribed treatment) and Moffatt v. Commissioner of Social Security, 

2015 WL 1038014, *3 (M.D. Fla. Mar. 10, 2015) (“The language in Dawkins suggests that less than 

exclusive reliance on noncompliance does not excuse the failure to consider the poverty issue.”). 

This Court has a hard time wrapping its head around why the ALJ did not simply find 

plaintiff’s insulin-dependent diabetes mellitus to be a severe impairment before addressing the 

remaining steps in the sequential evaluation process. 

Finally, on remand the ALJ can certainly consider the relevance, if any, of the Medical 

Source Statement and Clinical Assessment of Pain completed by plaintiff’s treating surgeon, Dr. 

Scott Faulkner, on December 27, 2013 (Tr. 248-252), particularly in light of Dr. Faulkner’s 

statement that the limitations reflected on the medical source statement existed during the 

relevant time period (compare Tr. 252 (noted limitations in effect since 2008) with Tr. 280 

(claimant’s insured status expired on June 30, 2012)) and the fact that the one item lacking 

before the ALJ at the time of the administrative decision on June 20, 2013 (see Tr. 291) was a 

competent statement regarding plaintiff’s physical ability to sit, stand, walk, lift and carry 

weight, etc., in light of his undeniable back pain and numerous surgeries. The ALJ’s apparent 

determination that plaintiff is capable of performing the substantial sitting required of 

sedentary work, compare Tr. 283 (“[T]he claimant had the residual functional capacity to 

perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can perform 

occasional pushing or pulling with the lower extremities.”) with 20 C.F.R. § 404.1567(a) 

(“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or 

carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined 

(Continued)

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 14 of 15
15

CONCLUSION

In light of the foregoing, it is ORDERED that the decision of the Commissioner 

of Social Security denying plaintiff benefits be reversed and remanded pursuant to 

sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 

115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The 

remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for 

purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 

292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over 

this matter.

DONE and ORDERED this the 21st day of December, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

 

as one which involves sitting, a certain amount of walking and standing is often necessary in 

carrying out job duties. Jobs are sedentary if walking and standing are required occasionally 

and other sedentary criteria are met.”), is curious in light of all the hardware in Houser’s low 

back (see Tr. 683-684) and plaintiff’s testimony that he constantly has to change positions to 

relieve his back and leg pain (see Tr. 305). 

Case 2:15-cv-00074-C Document 20 Filed 12/21/15 Page 15 of 15