Barbee v. Social Security Administration, Commissioner
Filing
19
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/24/2018. (KWC)
FILED
2018 Jul-24 PM 03:48
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ANGELA T. BARBEE,
)
)
Plaintiff,
)
)
v.
) Case No.: 5:15-CV-193-VEH
)
NANCY A. BERRYHILL, ACTING )
COMMISSIONER, SOCIAL
)
)
SECURITY ADMINISTRATION,
)
)
Defendant.
MEMORANDUM OPINION
I.
INTRODUCTION
This case is back before the Court following a remand. Plaintiff Angela T.
Barbee brings this action under 42 U.S.C. § 405(g). Ms. Barbee seeks a review of a
final adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied her application for disability insurance benefits
(“DIB”). Ms. Barbee exhausted the administrative remedies available before the
Commissioner. This case is now ripe for judicial review under section 205(g) of the
Social Security Act (the "Act"), 42 U.S.C. § 405(g).
The Court carefully reviewed the record in this case and AFFIRMS in part,
REVERSES in part, and REMANDS the ALJ’s decision.
II.
RELEVANT BACKGROUND
The alleged onset date is January 10, 2010. (Tr. 624). Ms. Barbee suffers from
numerous severe impairments, but the ALJ found that none rendered her disabled. (Id.
at 626, 639). Ms. Barbee filed an application for Social Security benefits on August
18, 2011. (Id. at 708). The Social Security Administration denied that application on
December 30, 2011. (Id.). Administrative Law Judge Cynthia G. Weaver held a
hearing on February 20, 2013. (Id.). The ALJ issued her first decision on May 17,
2013, which was unfavorable to Ms. Barbee. (Id. at 743). Ms. Barbee requested the
Appeals Council review the claim. (Id. at 750). They refused. (Id.).
Ms. Barbee then filed her complaint in the Northern District of Alabama on
January 30, 2015. (Doc. 1). Before the Commissioner filed an answer, she filed an
unopposed motion to remand the case based on Sentence 6. (Doc. 7). The reason for
the remand was that there was not a good recording of the hearing. (Id. at 2-3). The
case went back down, and the ALJ held a new hearing on September 21, 2016. (Tr.
624). The ALJ then issued another decision, which was still unfavorable to Ms.
Barbee. (Id. at 639). Ms. Barbee asked the Appeals Council to review her case. (See
id. at 615-16). The Appeals Council refused to “assume jurisdiction.” (Id.). Ms.
Barbee moved to reopen her case before the Court, and the Court granted the request.
(Docs. 9, 10). Briefing was completed on March 23, 2018. (Docs. 16, 17, 18). The
2
matter accordingly is ripe for determination.
III.
STANDARDS
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. 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 v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). 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
3
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
IV.
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a period
of disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.1 The Regulations define “disabled” as “the
inability to do any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve (12)
months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits,
a claimant must provide evidence about a “physical or mental impairment” that “must
result from anatomical, physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory diagnostic techniques.” 20
C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
1
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
4
(1)
whether the claimant is currently employed;
(2)
whether the claimant has a severe impairment;
(3)
whether the claimant’s impairment meets or equals an impairment
listed by the [Commissioner];
(4)
whether the claimant can perform his or her past work; and
(5)
whether the claimant is capable of performing any work in the
national economy.
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will
automatically be found disabled if she suffers from a listed impairment.
If the claimant does not have a listed impairment but cannot perform her
work, the burden shifts to the [Commissioner] to show that the claimant
can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
V.
FINDING OF THE ADMINISTRATIVE LAW JUDGE
After considering the record, the ALJ made the following findings:
1.
The claimant last met the insured status requirements of the Social
Security Act on December 31, 2012.
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2.
The claimant did not engage in substantial gainful activity during
the period from her alleged onset date of January 10, 2010[,]
through her date last insured of December 31, 2012 (20 CFR
404.1571 et seq.).
3.
Through the date last insured, the claimant had the following
severe impairments: degenerative disc disease, migraine
headaches, anxiety and depression (20 CFR 404.1520(c)).
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 had the
residual functional capacity to perform light work as defined in 20
CFR 404.1567(b). She can occassionally balance, stoop, kneel,
crouch and crawl. She can occasionally climb ramps and stairs,
but never ladders, ropes or scaffolds. She can occasionally push
and pull with the left lower extremity. She can frequently reach
overhead with the right upper extremity. She should avoid
concentrated hot and cold temperature extremes. She should avoid
dangerous, moving, unguarded machinery and unprotected
heights. She has the mental residual functional capacity to
understand, remember and carry out simple instructions and tasks.
She is limited to job[s] involving infrequent and well-explained
work place changes. She can concentrate and remain on task for
two hours at a time, sufficient to complete an eight-hour workday.
6.
Through the date last insured, the claimant was capable of
performing past relevant work as a convenience store manager
(DOT #211.462-010) and convenience store worker (DOT
#185.167-910). This work did not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).
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7.
The claimant was not under a disability, as defined in the Social
Security Act, at any time from January 10, 2010, the alleged onset
date, through December 31, 2012, the date last insured (20 CFR
404.1520(f)).
(Tr. 626-39) (emphasis omitted).
VI.
ANALYSIS
A.
The ALJ Did Not Err at Step Two
1.
No Doctor Diagnosed Ms. Barbee with Fibromyalgia Prior to her
Date Last Insured
Ms. Barbee first argues that the ALJ erred at Step Two by not finding her
fibromyalgia to be a severe medically determinable impairment. (See Doc. 33 at 2736). In response, the Commissioner points out that the ALJ properly determined that
Ms. Barbee was not diagnosed with fibromyalgia using SSR 12-2p. (See Doc. 17 at
7) (citing Tr. 628).
The first test for fibromyalgia the 1990 ACR Criteria for the Classification of
Fibromyalgia is:
[A] person has an MDI of FM if he or she has all three of the following:
1. A history of widespread pain—that is, pain in all quadrants of the
body (the right and left sides of the body, both above and below the
waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic
spine, or low back)—that has persisted (or that persisted) for at least 3
months. . . .
2. At least 11 positive tender points on physical examination. . . .
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3. Evidence that other disorders that could cause the symptoms or signs
were excluded.
SSR 12-2p. The second test for fibromyalgia under the 2010 Preliminary Diagnostic
Criteria is:
Based on these criteria, we may find that a person has an MDI of FM if
he or she has all three of the following criteria:
1. A history of widespread pain (see section II.A.1.);
2. Repeated manifestations of six or more FM symptoms, signs, or
co-occurring conditions, especially manifestations of fatigue, cognitive
or memory problems (“fibro fog”), waking unrefreshed, depression,
anxiety disorder, or irritable bowel syndrome; and
3. Evidence that other disorders that could cause these repeated
manifestations of symptoms, signs, or co-occurring conditions were
excluded (see section II.A.3.).
Id. (internal footnotes omitted). The ALJ evaluated Ms. Barbee under both tests. (Tr.
628). However, the ALJ determined that there was no tender-point test, nor “evidence
that other reasons for [the] symptoms or signs were excluded.” (See id.). Ms. Barbee
focuses her efforts on proving that she met the requirements under the 2010
Preliminary Diagnostic Criteria. (See Doc. 16 at 33).
Ms. Barbee primarily relies on rheumatologist Dr. Bell. (See Doc. 16 at 31-36).
She argues that “[her] treatment with Dr. Bell and diagnosis of fibromyalgia comply
with the 2010 ACR Preliminary Diagnostic Criteria.” (See id. at 33). The record
reflects that Dr. Bell, in a letter, diagnosed Ms. Barbee on July 16, 2013, with
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fibromyalgia. (Tr. 1370, 1459); (see Doc. 16 at 11). The relevant period in this case
is between January 10, 2010, and December 31, 2012. (See Tr. 626).2 Importantly, the
letter from Dr. Bell does not indicate that he believes Ms. Barbee had fibromyalgia
prior to December 31, 2012. (See id. at 1370). This is crucial. For the Court to say that
the ALJ erred in determining that Ms. Barbee did not have fibromyalgia prior to the
date last insured essentially puts the Court in the position of diagnosing this
impairment during the relevant time period. The Court is in no position to look at
medical records and diagnose impairments that a medical doctor had the chance to
(but did not) diagnose within the relevant time period (or at the very least indicate that
a diagnosis relates back to the relevant time period). This is so despite Ms. Barbee’s
attorney’s well constructed argument that her medical records support a fibromyalgia
diagnosis prior to the date last insured. (See Doc. 16 at 33).
Ms. Barbee cites to the medical records to argue that she did indeed have
fibromyalgia prior to December 31, 2012. (See Doc. 16 at 33-35). Additionally, she
claims that Dr. Bell could not have diagnosed her fibromyalgia on December 20,
2012, because of the requirement of three months of widespread pain. (See Doc. 18
at 6). Ms. Barbee strongly implies that the three month clock for pain started on the
2
"DIB appeal requires a showing of disability on or before [the date last insured]."
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
9
September 11, 2012, visit. (See Doc. 16 at 33) (noting the September 11, 2012, visit
as the first citation in favor of the three month requirement).3 Three months from
September 11, 2012, is before December 20, 2012. Accordingly, it is unclear why the
three month temporal requirement for fibromyalgia prevented Dr. Bell from
diagnosing Ms. Barbee before her date last insured, as Ms. Barbee’s attorney argues.
In short, the ALJ did not err in not finding fibromyalgia to be a severe
impairment during the relevant time period.
2.
SSR 83-20 Does Not Apply in These Circumstances
Ms. Barbee relies on SSR 83-20 to argue that “the ALJ should have considered
a medical advisor regarding the onset date of her fibromyalgia.” (See Doc. 16 at 3436). SSR 83-20 states, in part:
Precise Evidence Not Available--Need for Inferences
In some cases, it may be possible, based on the medical evidence to
reasonably infer that the onset of a disabling impairment(s) occurred
some time prior to the date of the first recorded medical examination,
e.g., the date the claimant stopped working. How long the disease may
be determined to have existed at a disabling level of severity depends on
an informed judgment of the facts in the particular case. This judgment,
however, must have a legitimate medical basis. At the hearing, the
administrative law judge (ALJ) should call on the services of a medical
3
Ms. Barbee began her treatment with Dr. Bell on August 16, 2012. (See Tr.
1139-1143). In her reply brief, Ms. Barbee also implies that August 16, 2012, is the first date for
the three month fibromyalgia requirement. (See Doc. 18 at 5). December 20, 2012, (the date
where Dr. Bell arguably could have diagnosed fibromyalgia but did not) is more than three
months later than August 16, 2012.
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advisor when onset must be inferred. If there is information in the file
indicating that additional medical evidence concerning onset is available,
such evidence should be secured before inferences are made.
SSR 83-20 (emphasis added).
Ms. Barbee relies on March v. Massanari to support her case. (See Doc. 16 at
35). However, the Eleventh Circuit further explained the March case in Caces:
The ALJ in March found that the claimant was not disabled before the
date last insured, based on the absence of sufficient medical evidence for
the period of insurance from which to ascertain the date of onset. All of
March's physicians who treated him several years after the date he was
last insured, however, determined that he evidenced signs of bipolar
disorder at least six years before his insured status ended. Thus, the
uncertain date of onset for March would need to be inferred, given the
sparse medical record predating the date last insured and the
overwhelming evidence that came to light after the date last insured from
his then treating physicians. The circumstances of March presented
precisely the situation under SSR 83–20 calling for a medical advisor to
assist in determining an inferred onset date.
See Caces v. Comm’r, Soc. Sec. Admin., 560 F. App’x 936, 939 (11th Cir. 2014). “The
plain language of SSR 83–20 indicates that it is applicable only after there has been
a finding of disability and it is then necessary to determine when the disability began.”
Id. (citing CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1224–25 (11th
Cir.2001)) (emphasis added).
Crucially, here there has not been any finding of disability. Additionally, the
medical record prior to the date last insured is not “sparse.” See id. at 938-39.
Accordingly, the ALJ was not required to use the services of a medical advisor
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pursuant to SSR 83-20.
B.
The ALJ Erred When She Failed To Address Treatment Records
That Spoke to the Impairment She Found Not To Be Disabling
Ms. Barbee’s argues that “the ALJ’s determination concerning [her] subjective
statements is not based on substantial evidence.” (See Doc. 16 at 45-55) (emphasis and
capitalization omitted). The Court agrees.
Here is the Eleventh Circuit pain standard:
This court has established a three part “pain standard” that applies
when a claimant attempts to establish disability through his or her own
testimony of pain or other subjective symptoms. 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. See Landry v. Heckler, 782 F.2d 1551, 1553
(11th Cir.1986). The standard also applies to complaints of subjective
conditions other than pain. Jackson v. Bowen, 873 F.2d 1111, 1114 (8th
Cir.1989).
The claimant's subjective testimony supported by medical
evidence that satisfies the standard is itself sufficient to support a finding
of disability. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987);
MacGregor v. Bowen, 786 F.2d 1050 (11th Cir.1986); Landry, 782 F.2d
at 1152. If the ALJ decides not to credit such testimony, he must
articulate explicit and adequate reasons for doing so. Hale, 831 F.2d at
1011. Failure to articulate the reasons for discrediting subjective pain
testimony requires, as a matter of law, that the testimony be accepted as
true. Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988); Hale, at
1054; MacGregor, 786 F.2d at 1054.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).
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Ms. Barbee argues that “[t]he ALJ incorrectly rejected [her] testimony
concerning migraine headaches.” (See Doc. 16 at 48-51) (emphasis omitted). In
support, Ms. Barbee points to her migraine medication and treatment. (See id. at 4950). She concedes that her migraines were “controlled” but “never fully.” (See id. at
50-51). She cites three cases and one SSR in support. (See id. at 51) (citing Strickland
v. Astrue, 493 F. Supp. 2d 1191, 1198 (N.D. Ala. 2017); Davis v. Astrue, 487 F. Supp.
2d 1342, 1349-50 (N.D. Ala. 2007); Thompson v. Barnhart, 493 F. Supp. 2d 1206,
1215 (S.D. Ala. 2007); SSR 16-3p). The Commissioner responds by arguing that the
migraine treatment was “conservative” and effective. (See Doc. 17 at 19-20). The
Commissioner argues that the ALJ fully considered Ms. Barbee’s migraines. (See id.
at 20). The ALJ briefly discussed migraines in her opinion. (See Tr. 634-35).
The Court notes that the relevant time period in this case is between January 10,
2010, and December 31, 2012. (See Tr. 626). Accordingly the records cited by both
parties outside that time period are of limited utility unless they speak to Ms. Barbee’s
condition during that time period. See Hughes v. Comm’r of the SSA, 486 F. App’x 11,
13 (11th Cir. 2012) (“An individual claiming Social Security disability benefits must
prove that she is disabled, see Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999),
and for DIB, must demonstrate she was disabled on or before her date last insured, see
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).”) (emphasis added); id.
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(citing sources) (“In order to qualify for DIB, an individual must prove that her
disability existed prior to the end of her insured status period, and, after insured status
is lost, a claim will be denied despite her disability.”).
On balance, the Ms. Barbee has the better of the arguments. In particular, the
Court notes that the ALJ appeared to completely ignore several probative exhibits
regarding Ms. Barbee’s headaches. The ALJ discussed why she did not find the
migraines “disabling.” (See Tr. 634-35). However, the ALJ’s analysis was
underdeveloped and insufficient. Specifically, in the course of that discussion, she
only references exhibit B30F. (See id. at 635). In defending the ALJ’s opinion on
migraines, the Commissioner also cites primarily to Exhibit B30F. (See Doc. 17 at 1820). However, Ms. Barbee points the Court to other records regarding her migraines.
(See Doc. 16 at 49-50). In particular, the ALJ did not refer to the records from Dr.
Hill. (See Tr. 634-35).4
“An ALJ is required to consider all of the evidence in the claimant's record
when making a disability determination.” King v. Astrue, 2010 WL 1038476, *6
(M.D. Fla. Mar. 19, 2010) (citing 20 C.F.R. §404.1520(a)). However, it is also true
that “[t]he ALJ is not required to explicitly mention every piece of evidence so long
4
These are contained in Exhibits B10F, B21F, and B25F. Not all of these records are
chronologically relevant, but some of them are.
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as the decision considers the claimant's medical condition as a whole.” Law v. Colvin,
681 F. App’x 828, 833 (11th Cir. 2017) (citing Mitchell v. Comm'r Soc. Sec. Admin.,
771 F.3d 780, 782 (11th Cir. 2014)).
In this case, the records show Ms. Barbee’s struggle with migraines. (See Tr.
532-38). Ms. Barbee brought SSR 16-3p to the Court’s attention. (See Doc. 16 at 51).
In relevant part, that rule states:
Persistent attempts to obtain relief of symptoms, such as increasing
dosages and changing medications, trying a variety of treatments,
referrals to specialists, or changing treatment sources may be an
indication that an individual's symptoms are a source of distress and may
show that they are intense and persistent.
SSR 16-3p (footnote omitted). Several treatment notes in Exhibit B21F show the
various medications that Ms. Barbee was taken on and off of. (See Tr. 538, 535, 534,
532). These treatment notes also discuss Ms. Barbee’s reported pain levels. (See id.
at 530, 532, 534, 535, 538). They discuss the other specialists that were brought in to
help treat Ms. Barbee. (See id. at 530) (noting Dr. Ciafrini); (id. at 532) (noting Dr.
Russell the neurologist); (id. at 532) (noting Dr. Pegram the sleep doctor). These
records discuss what Ms. Barbee could and could not do. (See id. at 532) (“She has
not been able to do her normal activities that she was doing before.”); (id. at 530)
(“Her pain management allows her to do light housework and occasionally get out to
go to church.”). The records also seem to opine on the cause of the headaches. (See
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id. at 534) (“Her pain has been generating more migraine headaches.”).
In this case, “the ALJ neglected to discuss [Dr. Hill’s medical records] . . . much
less assign it a particular weight.” Baez v. Comm’r of Soc. Sec., 657 F. App’x 864, 871
(11th Cir. 2016). This is important because, unless the ALJ considered this evidence
and stated why it deserves little weight, the Court “‘cannot determine whether the
ALJ's conclusions were rational and supported by substantial evidence.’” See id.
(quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)). For
this reason, the Court determines that a remand is the appropriate course of action.
Additionally, on remand, the ALJ should more fully consider the medical
records from Dr. Russell regarding Ms. Barbee’s migraines. The ALJ cited Dr. Russell
for the proposition that “[t]reatment was conservative and routine.” (See Tr. 635)
(citing Tr. 1250). However, that same medical record also stated that “[Ms. Barbee]
is having fairly frequent headaches. They can occur several times per week.” (See Tr.
1250). He noted that Ms. Barbee suffers from two different types of headaches. (See
id.) (discussing her migraine headaches and neck headaches). Dr. Russell also stated
that “[i]n general it is difficult to treat headaches in the setting of someone with
chronic pain and someone being on chronic pain medications.” (Id.). “It is not enough
to discover a piece of evidence which supports that decision, but to disregard other
contrary evidence.” McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986). The
16
ALJ needs to provide a more thorough discussion of the relevant evidence here.
At her hearing, Ms. Barbee spoke to her migraines. (See Tr. 661) (describing
the severity of her migraines); (id. at 665) (“They put me down. It’s hours. I mean the
[migraine headaches] put you down for the whole day, and then I’m sick the whole
next day.”); (id. at 667-668) (discussing the length of her migraines). Because the ALJ
failed to consider the treatment records and notes from Dr. Hill, while at the same time
declining to find Ms. Barbee’s migraines disabling, the Court is unable to affirm. The
case will be remanded for the ALJ to at least consider, and write to, these medical
records.
C.
The Court Declines To Reach Ms. Barbee’s Other Arguments
Having found that the ALJ needs to address relevant evidence in the record that
speaks to an impairment she did not find disabling, the Court declines to reach Ms.
Barbee’s additional arguments.
D.
The Court Declines To Reassign the Case to a New ALJ
Ms. Barbee asks the Court to “assign the claim to an alternate ALJ” on remand.
(See Doc. 16 at 56); (see also id. at 36) (“Because her claim has previously been
remanded twice by the Court and the ALJ has issued two unfavorable decisions, Ms.
Barbee requests her claim be assigned to a different ALJ.”). On review, the Court
declines to reassign the claim. Ms. Barbee has not given the Court a compelling reason
17
to do so. See Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir. 1996) (instructing the
district court “to order a new hearing before another ALJ” when the ALJ made
“objectionable comments”).
VII. CONCLUSION
The Court declines to say that Ms. Barbee is disabled. That is a question the
Commissioner will determine on remand. However, before that determination can be
made, the Commissioner must consider the entire record, especially exhibits that
speak to an impairment the ALJ finds not to be disabling. For these reasons, the
decision of the Commissioner is due to be, and hereby is, AFFIRMED in part,
REVERSED in part, and REMANDED for the Commissioner to consider the impact
of the medical records mentioned in this opinion.
DONE and ORDERED this the 24th day of July, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
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