Melissa Storey v. Nancy A. Berryhill ( 2019 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
______________________
No. 17-14138
______________________
D.C. Docket No. 5:16-cv-00328-LJA-CHW
MELISSA STOREY,
Plaintiff-Appellant,
versus
NANCY A. BERRYHILL,
Defendant-Appellee.
_______________________________
Appeal from the United States District Court
for the Middle District of Georgia
_______________________________
(June 13, 2019)
Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and CONWAY, ∗
District Judge.
∗
Honorable Anne C. Conway, United States District Judge for the Middle District of Florida,
sitting by designation.
PER CURIAM:
Melissa Storey appeals the district court’s order affirming the
Commissioner of the Social Security Administration’s (the “Commissioner”)
denial of a period of disability and disability-insurance benefits, pursuant to 42
U.S.C. § 405(g). On appeal, Storey asserts the Administrative Law Judge
(ALJ) erred by finding that she had the residual functional capacity (“RFC”) to
perform light work, including her past relevant work, and in discounting the
opinions of her treating physicians.
I. BACKGROUND
Storey alleges disability as of March 10, 2014, based on a combination
of physical impairments, including stage II endometrial cancer, arthritis in the
right hip, back pain, high blood pressure, and diabetes. 1 She was 53 years old
at the alleged onset date and had turned 55 years old by the time of the ALJ’s
hearing in November 2015. Storey is a high-school graduate and has past work
experience as a hotel manager, secretary, receptionist, office manager, and a
patient coordinator.
A. Medical Records and Opinion Evidence
Storey’s medical records reflect that she was diagnosed with stage II
endometrial cancer in March 2014. She had a hysterectomy and her lymph
1
Storey also alleged the mental impairments of depression and anxiety, but her physical
impairments are the sole focus of this appeal.
2
nodes removed, followed by radiation and chemotherapy through April 2014.
Towards the end of her cancer treatment, Storey complained to the oncologist
that she was having intense pain in her right hip and lower back. The
oncologist ordered a magnetic-resonance-imaging scan (“MRI”) of Storey’s
right hip to determine whether the cancer had spread to her pelvis or hip. While
the MRI did not show her cancer had spread, the MRI did show inflammation,
an exacerbation of chronic sciatica, bursitis, and “significant arthritic changes”
compatible with osteoarthritis in her right hip.
The oncologist referred Storey to an orthopedic surgeon, Dr. Reid, who
began treating her on May 7, 2014 for hip pain. According to Dr. Reid’s
diagnosis, the cause was bursitis in the right hip and localized primary
osteoarthritis of the pelvic region and thigh, with low-back pain. Dr. Reid
prescribed a cane for her at that time. On June 10, 2014, in response to Storey’s
continuing complaints of hip pain on the right side, Dr. Reid noted on
examination tenderness in the greater trochanter and hip flexor muscle,
reduced range of motion, and positive Ober’s test 2; he reiterated his diagnosis
of Storey’s hip pain. In his physical examination of Storey’s lower back, he
noted decreased lordosis, tenderness of the paraspinals on the right at L4, and
2
Ober’s Test is commonly used in orthopedic examinations of the hip to test for tightness in the
Tensor Fascia Lata or contractures in the iliotibial band that limit hip adduction.
https://physicaltherapyweb.com/obers-test-orthopedic-examination-of-the-hip/ (visited on May
22, 2019).
3
positive straight leg raising tests in supine and seated positions, with tenderness
of the iliolumbar region and reduced range of motion; Dr. Reid added the
diagnosis of acute sciatica and lumbago. He referred Storey for physical
therapy and prescribed lumbar stretching exercises, pain medications, and
supportive back brace. He also specifically advised Storey to avoid prolonged
sitting and elevate her foot if sitting in one position for a long time. And he
included generic instructions for “the patient” to follow a low glycemic diet so
“they” could reduce joint inflammation and lose weight; these general
instructions are included at the end of each set of treatment notes. Dr. Reid
determined that Storey displayed “no evidence of surgical indications with
respect to the presenting spinal pain” at that point, but he ordered an MRI of
her lumbar spine.
The June 23, 2014 MRI of Storey’s spine showed mild multilevel
degenerative disc disease, 3 with the addition of a Grade 1 anterolisthesis of
about 3 mm and mild to moderate spinal canal narrowing causing impingement
of the right L4, left S1, and left L5 nerve roots. At Storey’s appointment on
June 30, 2014, Dr. Reid continued to note tenderness in her hip flexors, limited
range of motion, and positive results on Ober’s test and straight leg raising test.
Dr. Reid interpreted the spine MRI as showing L4-5 “hnp” or herniation of
3
At T12-L1, L2-L3 and L3-L4, the findings were “mild” and, at L1-L2, they were unremarkable.
4
the nucleus pulposus, 4 listhesis, 5 and foramen stenosis on the right. With the
benefit of the spine MRI, Dr. Reid changed Storey’s diagnosis to degeneration
of lumbar intervertebral disc, spinal stenosis of lumbar region, and low back
pain in addition to the acute sciatica and bursitis he had previously diagnosed.
He prescribed pain medications and an anti-inflammatory and gave Storey a
referral to pain-management specialists.
In December 2014, in her request for the state disability agency to
reconsider its initial administrative denial of her application for disability
benefits, Storey was asked to describe how her condition had changed since the
Social Security Administration’s (“SSA”) initial decision. Storey explained
that, beginning in Spring 2014, she had severe right hip pain which went into
her groin area and down the leg, and the doctors could not pin down the
problem even though she had undergone MRIs. She could not sit or stand for
long periods of time and she now had to use a cane and walked with a limp.
She described the MRIs as showing a bulging disk and severe inflammation in
her hip joint and down the sciatic nerve.
4
Herniated nucleus pulposus is a condition in which part or all of the soft, gelatinous central
portion of an intervertebral disk is forced through a weakened part of the disk, resulting in back
pain and nerve root irritation. https://medlineplus.gov/ency/imagepages/9700.htm (visited on
May 22, 2019).
5
Spondylolisthesis is a condition in which one of the bones of the spine (vertebrae) slips out of
place onto the vertebra below it. If it slips too much, the bone might press on a nerve, causing
pain. https://my.clevelandclinic.org/health/diseases/10302-spondylolisthesis (visited on May 22,
2019).
5
As part of the reconsideration process, the state agency medical
consultant, Dr. Cochran, reviewed Storey’s medical records on February 20,
2015 and opined, based on the medical records he reviewed from June and July
2014, that Storey could perform light work which required lifting 20 pounds
occasionally and 10 pounds frequently and could stand, walk, and sit for six
hours each in an eight-hour workday. 6 Dr. Cochran concluded that no
medically determinable impairment limited Storey to lifting no more than ten
pounds, limiting her time sitting to five minutes at a time and sit/stand/walk for
less than two hours total in the workday as Dr. Powell, her primary care
physician, had opined in his treating-source statement. In Dr. Cochran’s
opinion, Storey had not been prescribed the cane “longitudinally” and did not
need one to ambulate.
Dr. Reid referred Storey to another orthopedic surgeon—a “spine
surgeon,” named Dr. Kelley—to determine whether Storey should have
surgery on her lumbar spine for spinal stenosis. Dr. Kelley noted Storey’s hip
pain was her number-one complaint, along with buttock pain that radiated to
the groin accompanied by a burning sensation and pain in her calf which
radiated down her leg and led to numbness in her toes, but the MRIs also
6
Dr. Cochran also opined that Storey could frequently climb ramps and stairs, stoop, kneel,
crouch, and crawl, and she could occasionally climb ladders, ropes, and scaffolds.
6
showed right foraminal stenosis at L4-L5 and left frontal stenosis at L5-S1. 7
Dr. Kelley found on examination Storey had reduced motor strength in her
right hip and diminished ankle reflexes, and he diagnosed Storey with lumbar
stenosis, lumbosacral spondylosis with radiculopathy, and L4-L5
spondylolisthesis. Dr. Kelley recommended that Storey proceed with her hip
replacement first, and once she recovered from that surgery, follow up for
further treatment of the lumbar spine. In the meantime, he advised her to
continue using the back brace Dr. Reid had prescribed.
In February 2015, Dr. Reid also recommended a total hip replacement
because he estimated that Storey had a permanent partial impairment 8 due to
the arthritis and bursitis in her hip, but she could reduce the permanent
impairment “if she proceeded with total hip replacement.” However, as the
ALJ noted, Storey testified at the hearing that she had been told “because of
her age, the hip replacement would not work.”
In July 2014, Storey also received treatment from physicians at Pain
Management Specialists, on referral from Dr. Reid, for treatment of the pain in
her lower back. Storey subsequently told Dr. Reid that the steroid injection to
7
Dr. Kelley specifically assessed Storey with spinal stenosis of lumbar region, spondylolisthesis,
degenerative spondylolisthesis, and spondylolisthesis, grade 1 based on his review of the MRI.
8
When an injured employee has reached maximum medical improvement, a physician will often
provide a rating of permanent partial impairment (“PPI”), a medically based determination of
physical functioning. See, e.g., https://www.dol.gov/owcp/dlhwc/contacts/jac/6lsrb.htm (visited
May 13, 2019).
7
her lower back made her back pain worse. In January 2015, Dr. Leggett from
the pain management practice also diagnosed Storey with arthritis in her hip
joint and lumbar spondylosis based on a November 2014 MRI which showed
moderate narrowing of the joint space with irregularity of contour of the
femoral head with marginal osteophytes, compatible with degenerative
changes in the right hip. His practice group continued to provide pain
management through May 2015, and although the physicians—or at one
appointment, the physician’s assistant 9—examined Storey, their exams were
not as thorough as those of the two orthopedic surgeons. At the May 2015
appointment, there was no physical examination of Storey’s lumbar spine
conducted by the physician’s assistant, even though Storey continued to be
treated for the pain in her lower back and hip.
Dr. Reid completed a medical-source statement of ability to do work-
related activities on February 11, 2015. He determined that Storey had
limitations that would essentially preclude her from full-time work: 10 she had
to avoid prolonged sitting of more than one hour at a time, could stand no more
9
Physician’s Assistant Ogletree performed the examination on May 22, 2015; the record was not
signed until five days later by the supervising physician. The ALJ repeatedly relied on the
treatment notes which opined Storey’s gait was normal”; however, the same notes reflect that the
range of motion in her hips was “restricted with abduction, internal rotation, and external
rotation,” and she received an intra-articular hip injection and an increase in the prescription for
pain medications at that visit.
10
The opinion of Dr. Powell was based on Dr. Reid’s diagnosis of Storey as having severe
arthritis, trouble with weight-bearing activity, and requiring a cane for walking.
8
than 15 minutes at one time, elevate her foot, and rest laying down twice per
workday, and take four breaks per day. Dr. Reid’s Medical Source Statement
was not submitted until March 23, 2015 and thus was not in Storey’s file when
Dr. Cochran reviewed the medical records on February 20, 2015.
Records dated June 30, 2014 to February 26, 2015 from Dr. Reid’s
office—which contained Dr. Kelley’s February 26, 2015 notes diagnosing
spine impairments but recommending Storey have hip surgery before treatment
of her lumbar problems—were sent to SSA on November 2, 2015. These
records were timely sent prior to the ALJ’s November 20, 2015 hearing and
two months before the ALJ issued his unfavorable decision on January 12,
2016. However, Dr. Kelley’s records were not discussed in the ALJ’s decision.
B. The Unfavorable Decision of the ALJ
In January 2016, the ALJ issued an unfavorable decision finding Storey
not disabled. The ALJ determined that Storey was able to perform work at the
light exertional level except insofar as she was limited to occasional stooping,
kneeling, crouching, crawling, and climbing stairs, and she could never climb
ladders, ropes or scaffolds, or work near vibrations and hazards. The ALJ
opined that Storey would have to be permitted to use a cane to ambulate to and
from her workstation. Relying on the testimony of a vocational expert, the ALJ
determined that Storey was able to perform her past relevant work as a hotel
9
clerk, hospital admitting clerk, insurance clerk, and receptionist, all of which
are at the light or sedentary exertional level.
In reaching the conclusion that Storey was capable of performing light
work, the ALJ reviewed the medical evidence and found that, although the
evidence was consistent with Storey’s diagnosed orthopedic conditions—
multilevel degenerative disc disease of the lumbar spine with associated disc
bulging, spondylosis of the thoracic spine, sciatica, osteoarthritis and bursitis in
the right hip—the objective findings were “mild” or “normal,” and the
prescribed treatment was “routine and conservative.”
The ALJ rejected Storey’s testimony that her hip and lumbar problems
progressively worsened, and, as a result, she required a cane for walking, with
limitations in sitting, standing, walking and lifting. The ALJ found that the
MRI of Storey’s right hip, which revealed degenerative changes, showed “a
small joint effusion, but there was no focal suspicious mass lesion, fracture, or
osteonecrosis.” Storey’s MRI of the lumbar spine, the ALJ found, showed
“only mild” multilevel degenerative disc disease, her straight leg raising tests
were negative, and there was no clonus of the ankle or knee. The ALJ further
found that the diagnosed arthritis in her right hip did not confirm that a cane
was medically necessary, but “even if it is,” he opined, “the medical evidence
of record [did] not show that she has a case of hip arthritis or bursitis that
10
requires surgical intervention.” The ALJ believed that Storey’s hip bursitis was
“the main issue” but the medical records “suggested” Storey’s hip impairments
“would improve with weight loss.”
The ALJ gave “little weight” to the opinions of Dr. Powell and Dr. Reid
because he found both of their opinions were conclusory, provided “very little
explanation of the evidence relied on,” and failed to “reveal the type of
significant clinical and laboratory abnormalities one would expect if [Storey]
were in fact disabled.” The ALJ also found that Dr. Reid’s opinion of Storey’s
limitations from her hip and lower back impairments was “vague” and “lacking
the specificity which might otherwise make it more convincing.” The ALJ
listed multiple “normal” or negative findings from Dr. Reid’s physical
examination notes, such as axial alignment pelvis level, heel-to-shin
coordination, normal ankle and knee reflexes, sensation on both sides, and the
absence of a leg-length discrepancy, as well as findings showing a lack of
tenderness in the specific muscle areas in the mid and lower back. The ALJ
also cited Dr. Powell’s reports of normal reflexes and “some tenderness,” but
no edema in the musculoskeletal area. And the ALJ cited other treatment notes
for all of the symptoms Storey did not have, such as the absence of tingling,
swelling, redness, warmth, ecchymosis, catching/locking, popping/clicking,
buckling, grinding, instability, weight loss, or a change in bowel/bladder
11
habits.
The ALJ gave “significant weight” to the opinion of the state agency
medical consultant, Dr. Cochran, and determined that his opinion that Storey
was capable of light work “was reasonably supported.” The ALJ did, however,
make a point of adding “limitations to accommodate hip issues.” Dr. Cochran
discounted the medical-source statement from Storey’s treating primary care
physician, Dr. Powell, that she was limited in sitting, standing, and walking to
less than two hours per workday, had to keep her leg elevated 90% of the time
in a sedentary job, and would miss more than 4 days per month because of her
impairments as “preposterous [o]n its face with claimant clearly not bed-bound
for 22/24 hours” and “inconsistent with activities of daily living.” In addition,
Dr. Cochran found Storey’s statements on her application were only “partially
credible” because, although her symptoms and limitations were “consistent
with a medically determinable impairment,” the severity she alleged was
inconsistent with objective findings, including her activities of daily living. Dr.
Cochran opined that Storey’s lumbar spine pain, right-hip pain, and bursitis
could be managed with physical therapy, pain medications, exercises, a weight
loss diet, and that her lumbar spine MRI results were “mild.” He concluded
that Storey was able to perform light work on a “sustained basis,” based on his
review of the available medical records in the file at the time of his review.
12
But Dr. Cochran did not review any of the later records from Dr. Reid or
the other specialists to whom Dr. Reid referred Storey for consultation
regarding surgery on her lumbar-spine impairment and pain management. Dr.
Cochran did not have the benefit of the medical-source statements from Dr.
Reid or the records of Dr. Kelley, who recommended that Storey undergo hip-
replacement surgery before receiving surgery for her lumbar radiculopathy. Dr.
Cochran also did not have access to the records from Storey’s treating pain
management physicians, which were submitted on November 2, 2015.
Although dysfunction of major joints was listed in the SSA’s
reconsideration report from Dr. Cochran, he did not conclude that Storey’s
hip/joint “dysfunction” was a “primary” or “secondary” impairment; instead,
he determined that Storey’s hip dysfunction was “non-severe.”
The ALJ concluded that “the evidence as a whole does not confirm
disabling limitations arising from the claimant’s underlying medical
conditions, nor . . . are [they] of such severity that they could reasonably be
expected to give rise to disabling limitations” and would not prevent Storey
from performing light work with some non-exertional limitations.
In June 2016, the Appeals Council denied review of the ALJ’s decision.
The district court affirmed the ALJ’s decision. On appeal, Storey argues that
the ALJ’s finding that she was capable of performing her past relevant work at
13
the light exertional level was not supported by substantial evidence and that the
ALJ erred in discounting the opinions of her treating physicians. After careful
review, we conclude that the ALJ’s decision to deny benefits was not based on
substantial evidence. We vacate and remand.
II. DISCUSSION
In social security appeals, we review the decision of an ALJ to deny
benefits as a final decision of the Commissioner of the Social Security
Administration when the Appeals Council denies review. Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). We review the Commissioner’s decision
to determine if it is “supported by substantial evidence and based on proper
legal standards.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th
Cir. 2011) (citation and internal quotation marks omitted). We must affirm a
decision that is supported by substantial evidence even if the evidence
preponderates against the Commissioner’s factual findings. Ingram v. Comm’r
of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). “Substantial evidence is
more than a scintilla and is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997).
We may not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the Commissioner. Winschel, 631 F.3d at 1178. But
14
we review de novo whether the Administration applied the correct legal
standards. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
Although our review is deferential, “[w]e must scrutinize the record as a
whole to determine if the decision reached is reasonable and supported by
substantial evidence.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986). A decision is not supported by substantial evidence if the ALJ “reached
the result that [he] did by focusing upon one aspect of the evidence and
ignoring other parts of the record.” McCruter v. Bowen, 791 F.2d 1544, 1548
(11th Cir. 1986). The ALJ must state with at least some measure of clarity the
grounds for the decision, and we will not affirm “simply because some
rationale might have supported the ALJ’s conclusions.” Winschel, 631 F.3d at
1179 (citation and internal quotation marks omitted).
A claimant must have a disability to be eligible for disability insurance
benefits. See 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if she is unable
to engage in substantial gainful activity by reason of a medically determinable
impairment that can be expected to result in death or which has lasted or can be
expected to last for a continuous period of at least 12 months. Id. §
423(d)(1)(A). The claimant bears the burden of proving his disability and “is
responsible for producing evidence in support of his claim.” Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
15
The Social Security Regulations outline a five-step, sequential evaluation
process to decide whether a claimant is disabled which requires the ALJ to
determine (1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a residual
functional capacity assessment, whether the claimant can perform any of his or her
past relevant work despite the impairment; and (5) whether there are significant
numbers of jobs in the national economy that the claimant can perform given the
claimant’s RFC, age, education, and work experience.” Winschel, 631 F.3d at
1178; see 20 C.F.R. § 404.1520(a)(4). A claimant who can perform her past
relevant work is not disabled. See id. §§ 404.1560(a)(iv), (f) & 404.1560(b)(3).
At step four of the sequential analysis, the ALJ must determine a
claimant’s RFC by considering “all relevant medical and other evidence in
the case.” Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004). The
RFC is an assessment of a claimant’s ability to do work despite her
impairments. Lewis, 125 F.3d at 1440. Relevant evidence includes a
claimant’s medical history, medical signs, laboratory findings, and
statements about how the symptoms affect the claimant. 20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3).
16
An ALJ must consider all medical opinions in a claimant’s case record,
together with other relevant evidence. 20 C.F.R. § 404.1527(b). “Medical
opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including the claimant’s symptoms, diagnosis, and
prognosis.” Winschel, 631 F.3d at 1178-79 (20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2)). Absent “good cause,” an ALJ must give the medical opinions of
treating physicians “substantial or considerable weight.” Lewis, 125 F.3d at 1440;
see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause exists
“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. If good cause exists, an ALJ “may disregard a treating physician’s
opinion, but he ‘must clearly articulate [the] reasons’ for doing so.” Id. at 1240–41.
Storey argues that the ALJ lacked good cause to reject the opinions of her
treating physicians, but we need not resolve this question because we conclude that
the ALJ’s determination that Storey has the residual functional capacity to perform
her past relevant work was not supported by substantial evidence. After rejecting
the opinions of Storey’s treating physicians as conclusory and inconsistent with the
evidence in the record, the ALJ found that Storey was not disabled by relying
17
principally on the RFC determination of the state-agency medical
consultant that Storey could perform light work. But Dr. Cochran did not
examine Storey, and as we have explained, “reports of physicians who do not
examine the claimant, taken alone, do not constitute substantial evidence on which
to base an administrative decision.” Spencer on Behalf of Spencer v. Heckler, 765
F.2d 1090, 1094 (11th Cir. 1985); see also Sharfarz v. Bowen, 825 F.2d 278, 280
(11th Cir. 1987) (“The opinions of nonexamining, reviewing physicians . . .
standing alone do not constitute substantial evidence.”).
Dr. Cochran’s RFC assessment was also based on only a limited
portion of the medical records submitted at the time of his assessment,
when there was no opinion or functional assessment by Dr. Reid in the file
he reviewed; the only materials from Dr. Reid in the file were his treatment
notes from June-July 2014 timeframe and the lumbar spine MRI. As a
result, the set of records Dr. Cochran reviewed did not contain Dr. Reid’s
subsequent finding that Storey required hip replacement surgery and had
lumbar spine radiculopathy, or the treatment notes from the second
orthopedic surgeon, Dr. Kelley, who concurred in that opinion. Dr.
Cochran also did not have Dr. Reid’s June 30, 2014 treatment notes with
findings of degeneration of lumbar intervertebral disc and spinal stenosis of
lumbar region or Dr. Kelley’s subsequent diagnosis of lumbar stenosis and
18
lumbosacral spondylosis with radiculopathy because these records were
submitted three weeks before the ALJ’s hearing in November 2015.
True, the ALJ also had access to Storey’s medical records, which
included all of Dr. Reid’s, Dr. Kelley’s, and the Pain Management
Specialists records. But we cannot say that the ALJ properly “[took] into
account and evaluate[d] the record as a whole.” McCruter v. Bowen, 791
F.2d 1544, 1548 (11th Cir. 1986); see Schnorr v. Bowen, 816 F.2d 578, 581 (11th
Cir. 1987) (holding ALJ erred in not properly considering treating physicians’
opinions that claimant with arthritis in knees was limited in ability of standing,
walking, climbing, and alternate sitting and standing in whether he could perform
“light work”).
Despite having all of Storey’s medical records, the ALJ
mischaracterized the records as showing a history of “routine and
conservative” treatment. The ALJ relied on portions of the physical
examination notes and diagnostic testing that were not relevant to Storey’s
orthopedic impairments—such as the oncologist’s statements 11 that Storey
was “otherwise doing well” or her pain medications were helping
11
The ALJ noted Storey’s treatment records from the oncologist’s office showed that she had
“returned to work 3 weeks ago doing much more lifting and moving than previously” in “August
2014.” However, this same “history of present illness” was listed as “per Dr. Wahab,” a previous
treating radiology oncologist with Dr. Medberry, who had treated Storey’s cancer in April 2014
and there were none of those previous notes in the record.
19
“significantly” with her hip pain. The ALJ also relied on records that did
not accurately reflect the more significant results found on Storey’s hip and
lumbar MRIs, and which failed to recognize Storey’s combination of
orthopedic impairments that the orthopedic specialists had some difficulty
diagnosing and treating due to symptomatic pain interactions in the areas of
the hip and the lower back.
The ALJ also mischaracterized Storey’s 2014 MRI of her hip as
showing “only mild” degenerative changes with a “small joint effusion”
without “lesion, fracture, or osteonecrosis,” omitting the other hip MRI
findings of “significant” arthritic changes. The MRI showed “a small bone
island” in the femoral head, a “moderate decrease in the joint space with
marginal osteophytes, compatible with osteoarthrosis” and a “small amount
of pelvic free fluid.” Dr. Reid diagnosed the right hip pain in May-June
2014 as bursitis with localized primary osteoarthritis of the pelvic region
and thigh, with low back pain, and he prescribed a cane for her at that point
in time. 12 Dr. Reid’s examinations of Storey in June 2014 noted tenderness
in the greater trochanter and hip flexor muscle, reduced range of motion
limited to 30% internally and externally, and positive Ober’s test consistent
12
The ALJ found that Storey was using a cane but the “medical evidence of record do not
necessarily confirm that a cane is medically ‘necessary.’” However, the medical records from Dr.
Reid note that he prescribed a cane for Storey in May and June 2014.
20
with a hip impairment, even though the ALJ cited only categories from
these same treatment notes as showing “no muscle aches” and “no
arthralgias/joint pain” 13 and categories with “normal” or negative results.
Additionally, because Storey reported “still having right hip pain,
[medications] not helping, [injection] last month did not help,” Dr. Reid
examined her lumbar spine and noted decreased lordosis, tenderness of the
paraspinals on the right at L4, and positive straight leg raising tests in
supine and seated positions, with tenderness of the iliolumbar region and
reduced range of active and passive motion. The ALJ’s selective inclusion
of only “normal” or negative examination results to support the ALJ’s
“mild” characterization of her condition was not based on substantial
evidence.
The ALJ found Storey had “only mild” degenerative disc disease in
her spine and she received “routine, conservative” treatment. But in
describing Storey’s spine MRI, the ALJ cited only the first line as if it were
the summary of the radiologist’s much lengthier report. The ALJ did not
include the other conclusions—that Storey had a Grade 1 anterolisthesis
and mild to moderate spinal canal narrowing which caused impingement of
13
To the extent the ALJ implied Storey did not require an “assistive device” or cane and had no
limp, he misunderstood Dr. Reid’s notes which said: Storey “ambulated with no assistive devices
and limp.”
21
three nerve roots—the right L4, and the left S1 and L5. With the benefit of
the spine MRI, showing L4-5 herniation of the nucleus pulposus, listhesis,
and foramen stenosis on the right, Dr. Reid diagnosed degeneration of
lumbar intervertebral disc, spinal stenosis of lumbar region, and low back
pain in addition to the acute sciatica and bursitis he had previously
diagnosed. He prescribed the spinal brace, pain medications and an anti-
inflammatory, and gave Storey a referral to pain-management specialists.
Because Dr. Reid also found spinal stenosis of the lumbar region with
neurogenic claudication, he referred Storey to Dr. Kelley, who diagnosed
Storey with lumbar radiculopathy, but the ALJ omitted any mention of Dr.
Kelley’s diagnosis of radiculopathy from his decision.
The ALJ stated that, in his opinion, Storey’s hip bursitis was the
“main issue,” and he found the medical records did not show her right hip
impairment “required surgical intervention.” But it is generally improper
for an ALJ to substitute his own judgment for that of a medical expert
because ALJs are not medical experts. Graham v. Bowen, 786 F.2d 1113,
1115 (11th Cir. 1986); Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.
1982). Moreover, the ALJ’s non-medical opinion of Storey’s hip
impairment was contradicted by the records from Dr. Reid, who
recommended to Storey a total hip replacement. Dr. Reid opined Storey’s
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permanent partial impairment in her hip would be reduced “if she
proceeded with total hip replacement.” 14 As a result, we conclude that in
this circumstance, remand is necessary to permit consideration of the
evidence ignored by the ALJ. See Henry v. Comm’r of Soc. Sec., 802 F.3d
1264, 1267 (11th Cir. 2015) (“Remand for further factual development of
the record before the ALJ is appropriate where the record reveals
evidentiary gaps which result in unfairness or clear prejudice.” (citation and
internal quotation marks omitted)).
III. CONCLUSION
We VACATE the ruling of the district court and REMAND for further
proceedings consistent with this opinion.
14
Storey testified at the ALJ hearing that she could not afford medical treatment and her
healthcare deductible was $6,000.
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