IVEY v. COLVIN
5:12-cv-00243
N.D. Fla.Aug 28, 2013Background
- Plaintiff Kelly S. Ivey filed Title II and XVI claims alleging disability from June 13, 2008; ALJ denied benefits after hearing and Appeals Council denied review; magistrate judge recommends remand.
- Primary impairments: cervical and lumbar degenerative disc disease with herniation and intractable migraine headaches documented by MRIs and long-term neurology/pain treatment.
- Treating pain specialist Dr. Mustafa Hammad provided repeated clinical notes, procedures (nerve blocks, facet injections, epidurals), prescriptions, an FMLA form (April 25, 2008) indicating intermittent/unreliable work capacity, and a September 12, 2008 check-box form implying sedentary limits.
- At hearing Ivey testified she had daily headaches, severe episodic migraines, marked neck/arm pain and limitations (e.g., sitting ~30 minutes, frequent absences); vocational expert said typical employers tolerate only 1–2 absences/month.
- ALJ gave "some weight" to the September 2008 treating-physician form, "little weight" to the April 2008 FMLA opinion, found Ivey only capable of sedentary work, could perform past work, and deemed her subjective complaints not fully credible.
- Magistrate judge found the ALJ erred in discounting the treating physician’s opinion about intermittent/unreliable work attendance and in the credibility assessment; recommended reversal and remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Weight given to treating physician opinions | ALJ improperly favored a check-box sedentary-work form and disparaged the April 25 FMLA opinion that Ivey would be intermittently unable to work | ALJ relied on the September form as representing current status and downplayed the April note for lack of frequency detail | Magistrate: ALJ erred — substantial evidence supports treating records and April opinion; ALJ lacked good cause to discount it |
| Credibility of subjective pain/migraine testimony | Ivey’s testimony and treating records show frequent, severe, and unpredictable migraines and cervical pain causing unreliability/absences | ALJ found inconsistencies: attribution to prior job stress, a report of "fair relief," refusal of surgical consult, normal gait, and some household/driver activities | Magistrate: ALJ’s credibility rejection was not supported — selective reasoning and failure to reconcile long treatment history and objective findings; credibility ruling reversible |
| Reliance on vocational expert / RFC to find past work available | Ivey argued inability to maintain regular attendance (per treating doc and VE testimony) makes past work unemployable | Commissioner relied on VE answers that with sedentary RFC (as ALJ framed it) Ivey could do past work | Magistrate: VE testimony supports that frequent absences would preclude employment; because ALJ improperly discounted treating opinion and credibility, the step-four finding is unsupported and remand is required |
| Remedy | Ivey seeks reversal/remand for benefits or further proceedings | Commissioner defends ALJ’s decision as supported by some medical evidence and VE testimony | Magistrate: Reverse and remand for further proceedings consistent with findings; reserve EAJA fee jurisdiction |
Key Cases Cited
- Lewis v. Callahan, 125 F.3d 1436 (11th Cir.) (standard for review of ALJ decision)
- Phillips v. Barnhart, 357 F.3d 1232 (11th Cir.) (treating physician rule and good-cause exceptions)
- Wilson v. Barnhart, 284 F.3d 1219 (11th Cir.) (pain credibility standard and regulation alignment)
- Hand v. Bowen, 793 F.2d 275 (11th Cir.) (three-part pain test)
- Foote v. Chater, 67 F.3d 1553 (11th Cir.) (pain can be disabling even without objective proof)
- Richardson v. Perales, 402 U.S. 389 (U.S.) (definition of substantial evidence)