Mitchell v. Astrue

Filing 15

MEMORANDUM OF OPINION. Signed by Honorable Judge Susan Russ Walker on 9/22/2011. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BRENDA MITCHELL,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CIVIL ACTION NO. 2:10CV758-SRW
(WO)

MEMORANDUM OF OPINION
Plaintiff Brenda Mitchell brings this action pursuant to 42 U.S.C. § 405(g) and
§ 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security
(“Commissioner”) denying her application for a period of disability and disability insurance
benefits and her application for supplemental security income under the Social Security Act.
The parties have consented to entry of final judgment by the Magistrate Judge pursuant to
28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the parties, the court
concludes that the decision of the Commissioner is due to be affirmed.
BACKGROUND
Plaintiff completed twelfth grade in 1997. (R. 128, 152).1 From 1997 through 1999,
she worked at Bes Pak on an assembly line. In 2000 and 2001 she worked through some

1

Plaintiff testified that she did not graduate from high school, but completed “[her] equivalence in
the 12th” without receiving a GED when she received a certification in 2001 as a certified nursing assistant.
(R. 45).

temporary staffing agencies and, from 2001 to 2003, was employed as a certified nursing
assistant. Plaintiff was a self-employed hair stylist from 2004 to 2005. From June through
September 2005, she was an assembler for Glovis America, and she worked from May
through September 2006 as a packer for Russell Corporation. (R. 53-54, 140-42, 149, 15063, 198).2
When plaintiff was twenty-nine years old, she protectively filed the present
application for disability insurance benefits and supplemental security income, alleging
disability since September 1, 2006, due to “nerves,” severe back pain with headaches,
memory loss and sinus problems. (R. 70, 124-30, 144, 147-48). She reported, however, that
she was taking no medication for her “stress disorder” and that she took over-the-counter
medication for pain when she had bad headaches. (R. 178). On June 6, 2007, plaintiff told
a disability claims examiner that she took no medication and had received no treatment for
her nerves and memory loss and that these do not affect her ability to function on a day-today basis, that her medications control her sinus problems, and that – while she had no back
injury – her back pain was her major problem. (R. 179).
Disability Determination Service (“DDS”) requested treatment records from plaintiff’s
primary care provider, Montgomery Primary Health Care; the records provided by the clinic
included only two dates of service. Plaintiff was treated on August 7, 2006, for complaints
of sinus congestion and drainage; the physician, Dr. Folashade, diagnosed acute sinusitis and

2

Plaintiff testified at the hearing that she last worked on a full-time basis in 2001. (R. 33).

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upper respiratory infection. Plaintiff’s physical examination was noted to be normal, except
for her ENT symptoms. (See R. 150, 207-08). Plaintiff returned to the clinic on April 11,
2007, to have her blood pressure checked. (R. 206).3
DDS sent plaintiff to Dr. James Colley for a consultative physical examination.
During the July 6, 2007, examination, plaintiff told Dr. Colley that she had “chronic low back
pain for approximately a year, possibly secondary to a motor vehicle accident five and a half
years ago.” She stated that she had “no difficulty sitting,” but that her back pain radiated
down both legs to her feet, and she had paresthesias in her feet “when she stands for long
periods of time, after approximately six hours.” (R. 209). Plaintiff reported occasional left
shoulder pain. She also indicated that, since she lost her father two years previously, she has
had throbbing headaches about three times each month which last for two to three days, are
associated with nausea, photophobia, and phonophobia and are not relieved with over-thecounter medication. (R. 209-10). Plaintiff stated that she “can do yard work for about 4-5
hours before she takes a break” and that she “can do housework.” She told Dr. Colley, “I
hear voices.”
Dr. Colley observed that plaintiff had no problems getting on the examination table;
had normal gait, station and coordination; could squat 100% and get back up without
assistance and could tandem walk and walk on her heels and toes; and had a negative straight
leg raise. He found “no paravertebral muscle spasms, tenderness, crepitus, effusions,

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Records submitted by plaintiff’s counsel to the ALJ on August 18, 2009, after the administrative
hearing, included a treatment note showing that plaintiff sought treatment at the Jackson Hospital emergency
room on October 21, 2006 for a hemorrhoid. (Exhibit 8F, R. 250, 269-72).

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deformities or trigger points[,]” and “[n]o clubbing, cyanosis , or edema.” While plaintiff’s
left shoulder was tender during the physical examination, she had no pain on full active and
passive range of motion of that shoulder. Her grip strength, flexion and extension in her
upper extremities and lower extremity strength were 5+/5, and Dr. Colley observed normal
muscle bulk and tone and no atrophy. Dr. Colley diagnosed: (1) “Myofacial low back pain
versus mild degenerative disk disease[;]”4 “[p]ossible migraine headaches[;]” sinus
headaches; and mild posterior left shoulder strain. (R. 210-13).
Late that afternoon, plaintiff reported to the Jackson Hospital emergency room, stating
that she was there to have an “x-ray of back and CT of brain for disability.” She complained
to the triage nurse of “headaches and back problems – onset 9/06.” (R. 264).5 The CT scan
performed that day was abnormal, showing a “tiny focus of slightly increased density at the
gray white junction involving the left parietal lobe[.]” (R. 268). Plaintiff was sent home and
advised to see her doctor or to return to Jackson Hospital for a recheck on July 8th. (R. 265).
Plaintiff returned to Jackson Hospital on July 8, reporting that her headache had resolved.
The repeat CT scan was normal. (R. 260-61). The radiologist’s report states, “The brain
parenchyma is normal in density and structure. The ventricles are normal size and
configuration. The surrounding soft tissues and osseous structures are unremarkable. I see
no abnormality in the left parietal lobe in the area of a questionable abnormality described

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At the time of Dr. Colley’s examination, plaintiff was scheduled for lumbar x-rays. (R. 209). The
x-rays revealed a Staghorn calculus (stone) in plaintiff’s left kidney and a “normal lumbar spine.” (R. 209,
214, 216-17).
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In a separate record, an examining nurse circled the phrase, “States no problems” under the heading
“Musculoskeletal.” Under “Psychiatric,” the nurse wrote “Hear voices.” (R. 266).

on the previous exam.” (R. 262).
Plaintiff’s claims were denied initially on July 23, 2007. (R. 69-82). On August 30,
2007, plaintiff sought treatment at Montgomery Primary Health Care, complaining of pain
in her left side below her abdomen at a left of 9 on a scale of 10. (R. 227). She also
complained of frequent pains in her upper and lower back, excruciating headaches, and that
she was hearing voices. The nurse’s note reads, “Pt. state ‘I’m hearing voices, the voices are
telling me to do things to myself.[’]” The nurse sent plaintiff to the Baptist Medical Center
emergency room. (R. 225). Plaintiff was admitted to Baptist Medical Center that day. In
an examination the following day, plaintiff reported no previous mental health treatment.6
She stated that she had pain in her side and headaches that had increased recently. She
reported a “depressed mood with social withdrawal and loss of interest for a long time” and
that she had been “hearing voices since the death of her father in 2004.” She scored 30 of
30 on a mini-mental status examination. Under “Medical Problems,” the examining physician
wrote, “Medical problems include hypertension, headaches, bronchitis/allergies.” Plaintiff’s
admission diagnoses were “[m]ajor depression with psychotic features, rule out
schizophrenia,” and “[p]sychotic symptoms, depression.” (R. 243-45). Dr. David Harwood
discharged plaintiff from the hospital on September 4, 2007 “in improved condition,” with
a discharge diagnosis of major depression, medication prescriptions, and instructions to
follow up at Lowndes Mental Health. (R. 242). The following day, Montgomery Primary

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Plaintiff testified at the administrative hearing, also, that she had no mental health treatment before
her hospitalization. (R. 39).

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Care called in prescriptions to CVS pharmacy for Darvocet, Singulair, Seroquel, Bactrim and
Celexa, and scheduled plaintiff for a follow-up appointment with a nurse practitioner on
September 17th and an appointment with Dr. Mejer on October 18th for treatment of
plaintiff’s depression. (R. 225).7 At her follow-up appointment on September 17, 2007,
plaintiff reported a pain level of “0.” (R. 223). The nurse practitioner diagnosed migraine
headache and depression. (R. 222). Plaintiff did not appear for an appointment scheduled
for July 25, 2008, ten months later. (R. 222).
On August 27, 2008, plaintiff went to the Jackson Hospital emergency room,
complaining of a left-sided headache off and on since being involved in a motor vehicle
accident three weeks earlier, on August 7, 2008. She stated that she “was not seen after the
accident until today.” She also complained of sinus congestion, a sore throat, left ear pain,
and “mild bilateral shoulder pain.” (R. 253-54). She reported no nausea, vomiting,
photophobia, scotomata or flashing lights. Her headache had developed gradually over a
period of several hours and was “more nagging than serious.” On examination, the physician
noted that plaintiff “appear[ed] to be comfortable.” She had a “local spasm of cervical
muscles” and “an area of local muscle spasm/tenderness over the lower back.” The physician
diagnosed a tension headache and cervical strain and advised her to follow up with her
physician in three to five days. (R. 255-56).

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In “recent medical treatment” forms completed before her administrative hearing, plaintiff lists Dr.
Mejer as a medical provider who had treated or examined her, with treatment dates of February 27, 2009 and
April 24, 2009. (R. 193, 195). At the administrative hearing, she testified that he is her psychologist and
she had seen him every three months for the previous two and a half years. (R. 40). However, plaintiff did
not provide any treatment notes from Dr. Mejer.

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Plaintiff returned to Montgomery Primary Care for follow up on September 3, 2008.
She reported that x-rays taken at Jackson Hospital were negative. Plaintiff was diagnosed
with muscle spasm, headache, and sinusitis. (R. 221). Plaintiff returned for follow up on
October 15, 2008, complaining of a “leak” in her left ear and that she still had pain in her
neck, shoulder and back. She was diagnosed with left otitis media, shoulder and neck pain,
and was scheduled to see Dr. Kenneth Taylor, and orthopedic physician, on October 23,
2008. (R. 220). Plaintiff next returned to the clinic four months later, on February 16, 2009.
She reported that she went to see the orthopedic doctor but he refused to see her anymore
because she “missed so many appt.” She was diagnosed with shoulder and neck pain.
(R. 219).8
On January 12, 2009, plaintiff sought treatment from a chiropractor, Dr. J. Robert
Hollis, Jr., complaining of pain in her neck, upper back, lower back and both legs. She stated
that her condition had existed since her August 2008 automobile accident and that she had
similar conditions in the past due to another motor vehicle accident on April 7, 2007. On
physical examination, plaintiff had “no antalgic posture,” and her cervical and lumbar range
of motion were within normal limits. She had “mild to moderate spasm in the cervical,
thoracic, and lumbar paraspinal muscles,” and Dr. Hollis concluded that “[j]oint dysfunction
[was] present at C5, C6, C7, T4, T5, T6, L4, L5 and both SI joints.” (R. 288). Plaintiff’s
sensation and tandem walking were intact, she was able to stand on her heels and toes, and
her deep tendon reflexes were 2+ bilaterally. She had no atrophy in her upper or lower
8

Plaintiff did not provide records of her treatment by an orthopedic doctor.

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extremities, and muscle strength was 5/5 in all tested muscle groups. Cervical x-rays revealed
“some straightening of the normal cervical lordosis,” but disc spaces were well-maintained.
Dr. Hollis concluded, “I believe this patient has sustained a sprain and strain type injury to
both her cervical and lumbar spine[,]” and he planned to treat her “using physical therapy
modalities such as ultrasound and interferential along with chiropractic manipulation.” (R.
289).
Plaintiff saw Dr. Hollis three times a week for the next six weeks. Her treatment visits
then decreased to twice weekly four weeks thereafter, once a week for four weeks, once after
a period of two weeks, then monthly for a couple of months thereafter. Her final visit of
record was on August 13, 2009, seven weeks after her most recent previous visit and a month
after the administrative hearing. (Exhibit 9F). The progress notes for each visit after the
initial visit were substantially the same throughout plaintiff’s course of treatment, with the
only differences being plaintiff’s reported pain and the interval at which the next visit was
to be scheduled. Dr. Hollis noted “mild muscle spasm in both cervical and lumbar paraspinal
muscles” and “[j]oint dysfunction ... at C5, C6, C7, T4, T5, T6, L5, and both SI joints” in
every visit except the first,9 that his diagnosis “is unchanged from the last documented

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In the first visit, he had also noted joint dysfunction at L4 and mild to moderate muscle spasms.
(R. 288)(emphasis added). In plaintiff’s brief, plaintiff’s counsel has misquoted the record, arguing that on
August 13, 2009 – after eight months of chiropractic treatment – plaintiff continued to have “‘mild to
moderate spasm, in the cervical, thoracic, and lumbar paraspinal muscles[.]’” (Plaintiff’s brief, p. 11)(citing
Tr. 318). Plaintiff argues that “[t]his evidence is clearly indicative of Ms. Mitchell continuing to seek
treatment and relief for her back and neck pain to no avail.” (Id.). After the first visit, Dr. Hollis noted only
mild spasms, and only in the cervical and lumbar – but not the thoracic – paraspinal muscles. Plaintiff
testified at the administrative hearing that she was going to the chiropractor for therapy “where they
moderating my pain.” (R. 42).

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diagnosis,” and – after describing the same treatment on each visit10 – that plaintiff “tolerated
the procedure well and felt better following it.” (Exhibit 9F).
On July 14, 2009, an ALJ conducted an administrative hearing, during which he heard
testimony from the plaintiff and from a vocational expert. (R. 29-68). At the hearing, plaintiff
testified that she has back, neck and shoulder pains, and throbbing in her legs, and that her
pain level on average is a level 10 of 10. She also had been experiencing depression and
suicidal thoughts and migraine headaches, and hears voices. (R. 33-36). She testified that
she can sit for four hours and stand for about four hours before she needs to sit down. (R.
43). She testified that it is hard for her to stand “most of the time” due to “sprains” in her
leg. (R. 43). She also has “like a throbbing kind of feeling” in her arm; she stated that her
doctor told her it is “sprains like a muscle spasm thing.” (R. 44). On a typical day, she
cleans house, does laundry, cooks, and helps her son with homework. She has friends she
sees on a regular basis, either at their home or hers. She goes grocery shopping once a
month, and is able to walk through the store pushing a grocery cart for two to three hours.
She attends church three times each month and is able to sit through the three-hour service
“most of the time.” Her medications make her feel drowsy and dizzy. She testified, “I have
sometime fainted in front of my yard while I had taken my medication during the morning
time.” (R. 45-51).

10

On each occasion, Dr. Hollis treated plaintiff with “[p]remodulated ultrasound” for “8 minutes per
area at 1 W/cm2[,]” “interferrential electrotherapy ... applied to the patient’s cervical, upper thoracic and
lumbar paraspinal muscles ... for 10 minutes to patient tolerance[,]” and “chiropractic manual therapy.” (R.
289, 292-318).

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The ALJ rendered a decision on January 20, 2010. He found that plaintiff has “severe”
impairments of “myofacial back pain, headache, and depression.” (R. 16). He found that
plaintiff does not have an impairment or combination of impairments that meets or medically
equals the severity of any of the impairments in the “listings” and, further, that plaintiff
retained the residual functional capacity to perform “sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except the claimant can lift or carry occasionally less than 10
pounds, frequently lift or carry less than 10 pounds, frequently balance, stoop, kneel, crouch,
crawl, climb ramps and stairs, precluded from climbing ladders, ropes, or scaffolds,
precluded from any exposure to hazardous conditions, unprotected heights, dangerous
machinery, or uneven surfaces, must work at simple routine task[s] involving no more than
simple, short instructions and simple work-related decisions with few workplace changes at
unskilled work, frequent interaction with the general public, frequent interaction with
coworkers, and frequent interaction with supervisors (R. 17, 20), with restrictions to “very
short instructions, and infrequent contact with the public.” (R. 17). He concluded that she
is unable to perform her past relevant work, but that there are a significant number of jobs
in the national economy which the plaintiff can perform. (R. 22-23). The ALJ concluded that
plaintiff has not been under a disability as defined in the Social Security Act since the alleged
onset date. (R. 23). On July 22, 2010, the Appeals Council denied plaintiff’s request for
review (R. 1-4) and, accordingly, the decision of the ALJ stands as the final decision of the
Commissioner.
STANDARD OF REVIEW
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The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
DISCUSSION
Plaintiff contends that the ALJ’s decision should be reversed because the ALJ failed
to apply the Eleventh Circuit pain standard properly and to take into account plaintiff’s
“longitudinal history of complaints and attempts at relief before issuing a negative credibility
finding.”11 Further, she maintains that he erred in rejecting her testimony that her medications
cause her to suffer side effects of drowsiness and feeling faint, that she had fainted in her

11

This argument is premised in part, on counsel’s erroneous statement of Dr. Hollis’ treatment notes
in support of his contention that those notes do not show any improvement in plaintiff’s condition.
(Plaintiff’s brief, p. 11). See n. 9, supra.

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front yard, and that she must go to her room and lie down after taking her medication.
(Plaintiff’s brief, pp. 6-12). All of the arguments advanced by plaintiff go to the ALJ’s
assessment of her credibility.
In the Eleventh Circuit, a claimant’s assertion of disability through testimony of pain
or other subjective symptoms is evaluated pursuant to a three-part standard. “The pain
standard requires ‘(1) evidence of an underlying medical condition and either (2) objective
medical evidence that confirms the severity of the alleged pain arising from that condition or
(3) that the objectively determined medical condition is of such a severity that it can be
reasonably expected to give rise to the alleged pain.’” Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005)(quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)). If this
standard is met, the ALJ must consider the testimony regarding the claimant’s subjective
symptoms. Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). Although the ALJ is
required to consider the testimony, the ALJ is not required to accept the testimony as true; the
ALJ may reject the claimant’s subjective complaints. However, if the testimony is critical,
the ALJ must articulate specific reasons for rejecting the testimony. Id.12

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See also Social Security Ruling 96-7p, 61 Fed. Reg. 34483-01 (July 2, 1996):

When evaluating the credibility of an individual’s statements, the adjudicator must consider
the entire case record and give specific reasons for the weight given to the individual’s
statements. The finding on the credibility of the individual’s statements cannot be based on
an intangible or intuitive notion about an individual’s credibility. The reasons for the
credibility finding must be grounded in the evidence and articulated in the determination or
decision. It is not sufficient to make a conclusory statement that “the individual’s allegations
have been considered” or that “the allegations are (or are not) credible.” It is also not enough
for the adjudicator simply to recite the factors that are described in the regulations for
evaluating symptoms. The determination or decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case record, and must be sufficiently

12

Plaintiff contends that the ALJ “failed to provide an adequate basis to reject her
testimony[.]” (Plaintiff’s brief, p. 9). However, the ALJ stated a number of reasons for
rejecting plaintiff’s testimony of disabling symptoms, including: (1) the fact that the objective
evidence of record does not support her allegations; (2) plaintiff’s own testimony that she can
sit and stand for four hours each; (3) plaintiff’s testimony regarding her daily activities, which
included performing chores, caring for her child and helping him with his homework
attending church three times per month and working part-time; and (4) the evidence that her
“mental issues have resolved to some extent” after her past admission for psychological
issues. (R. 22). Additionally, while the ALJ did not discuss the fact that plaintiff continued
to seek treatment from her chiropractor over a period of eight months, he discussed the results
of Dr. Hollis’ initial examination in detail (R. 21)(citing Exhibit 9F) and appended to his
decision an exhibit list indicating that Exhibit 9F included fifty-one pages of treatment notes
from Dr. Hollis, concluding on August 24, 2009 (R. 28). Thus, it is apparent that the ALJ was
aware of plaintiff’s continued treatment by Dr. Hollis. “If the ALJ decides to discredit the
claimant’s testimony, he must clearly articulate explicit and adequate reasons for his decision.
... In articulating its reasons, the ALJ need not specifically refer to every piece of evidence ‘so
long as [his] decision .... is not a broad rejection which is not enough to enable the [court] .
. . to conclude that the ALJ considered her medical condition as a whole.’ ... Also, the ALJ
may cite the claimant’s daily activities.” Pritchett v. Commissioner, Social Sec.

specific to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.

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Administration, 315 Fed. Appx. 806, 812 (11th Cir. 2009)(citing Dyer v. Barnhart, 395 F.3d
1206, 1210-11 (11th Cir.2005) and Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir.1996)).
Finally, it is apparent from the ALJ’s decision that he considered – and partially
rejected – plaintiff’s testimony of disabling side effects from medication. The ALJ questioned
plaintiff at the administrative hearing about side effects of medication and, as plaintiff notes,
framed a hypothetical question to the VE incorporating plaintiff’s testimony regarding her
side effects. (R. 51, 66). The ALJ found plaintiff’s testimony regarding side effects of
medication to be partially credible, to the extent that it limited her to unskilled work and to
an environment with no exposure to hazardous conditions, including unprotected heights,
dangerous machinery and uneven surfaces. (See R. 20, 22, 62, 65). The court concludes that
the reasons articulated by the ALJ for finding plaintiff’s pain testimony to be less than fully
credible are both adequate to support his credibility determination and supported by
substantial evidence of record and, further, that he did not fail to consider the evidence of
plaintiff’s chiropractic treatment or her testimony regarding side effects of medication in
assessing her credibility and formulating her residual functional capacity. Accordingly, the
court rejects plaintiff’s contention that the ALJ committed reversible error.
CONCLUSION
Upon review of the record as a whole and the arguments of the parties, the court
concludes that the decision of the Commissioner is due to be AFFIRMED. A separate
judgment will be entered.
DONE, this 22nd day of September, 2011.
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/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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