Terry v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/8/2017. (JLC)
2017 Sep-08 PM 02:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DAPHNE DENIESE TERRY,
NANCY A. BERRYHILL,
Commissioner of the
Social Security Administration,
Case No.: 5:15-CV-01056-MHH
Pursuant to 42 U.S.C. § 405(g), plaintiff Daphne Deniese Terry seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied Ms. Terry’s claim for a period of disability and
disability insurance benefits. After careful review, the Court remands the
Commissioner’s decision. 1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
(See https://www.ssa.gov/agency/commissioner.html). Therefore, the Court asks the Clerk to
please substitute Ms. Berryhill for Carolyn W. Colvin as the defendant in this action. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. Later
opinions should be in the substituted party’s name, but any misnomer not affecting the parties’
substantial rights must be disregarded.”).
On June 26, 2012, Ms. Terry applied for a period of disability and disability
insurance benefits. (Doc. 7-6, p. 2). Ms. Terry alleges that her disability began
October 4, 2011. (Doc. 7-6, p. 2). The Commissioner initially denied Ms. Terry’s
claim on December 3, 2012. (Doc. 7-5, p. 3). Ms. Terry requested a hearing
before an Administrative Law Judge (ALJ). (Doc. 7-5, p. 10). The ALJ issued an
unfavorable decision on January 23, 2014. (Doc. 7-3, pp. 22-38). On April 27,
2015, the Appeals Council declined Ms. Terry’s request for review (Doc. 7-3, p.
6), making the Commissioner’s decision final and a proper candidate for this
Court’s judicial review. See 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).
The Court must determine whether there is substantial evidence in the record
to support the ALJ’s factual findings.
“Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004). In evaluating the administrative record, the Court
may not “decide the facts anew, reweigh the evidence,” or substitute its judgment
for that of the ALJ. Winschel v. Comm’r of Soc. Sec. Admin., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citation omitted). If substantial evidence
supports the ALJ’s factual findings, then the Court “must affirm even if the
evidence preponderates against the Commissioner’s findings.”
Comm’r, Soc. Sec. Admin., 603 Fed. Appx. 783, 786 (11th Cir. 2015) (citing
Crawford, 363 F.3d at 1158).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that she is disabled, an ALJ
follows a five-step sequential evaluation process. The ALJ considers:
(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 (“RFC”)
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
Winschel, 631 F.3d at 1178.
In this case, the ALJ found that Ms. Terry has not engaged in substantial
gainful activity since October 4, 2011, the alleged onset date. (Doc. 7-3, p. 27).
The ALJ determined that Ms. Terry suffers from the following severe impairments:
reconstructive surgery of a weight bearing joint; disorders of muscle, ligaments
and fascia; fibromyalgia; degenerative disc disease; carpal tunnel syndrome;
peripheral neuropathy; anxiety disorder; post-traumatic stress disorder; and
affective disorders. (Doc. 7-3, p. 27). Based on a review of the medical evidence,
the ALJ concluded that Ms. Terry does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 7-3, p. 27).
In light of Ms. Terry’s impairments, the ALJ evaluated Ms. Terry’s residual
functional capacity or RFC. The ALJ determined that Ms. Terry has the RFC to
sedentary work as defined in 20 CFR 404.1567(a) except she can
occasionally stoop, kneel, crouch, crawl, balance, and climb ramps
and stairs. [Ms. Terry] cannot climb ladders, ropes, or scaffolds. She
can frequently finger and handle with the bilateral upper extremities.
[Ms. Terry] can have no concentrated exposure to extreme cold,
dampness, and vibrations. She must avoid dangerous, moving,
unguarded machinery and unprotected heights. Further, [Ms. Terry]
can understand, remember, and carry out simple instructions. She is
limited to jobs involving infrequent and well-explained workplace
changes. She is limited to jobs involving casual interaction with the
general public. She can concentrate and remain on task for two hours
at a time sufficient to complete an 8-hour workday.
(Doc. 7-3, pp. 28-29).
Based on this RFC, the ALJ concluded that Ms. Terry is not able to perform
her past relevant work as a community health nurse, general duty nurse, and
licensed practical nurse.
(Doc. 7-3, p. 33).
Relying on testimony from a
vocational expert, the ALJ found that jobs exist in the national economy that Ms.
Terry can perform, including document preparer, clerk, and table worker. (Doc. 73, p. 34). Accordingly, the ALJ determined that Ms. Terry has not been under a
disability within the meaning of the Social Security Act. (Doc. 7-3, pp. 33-34).
Ms. Terry argues that she is entitled to relief because the Appeals Council
failed to remand her case in light of new and material evidence. The Court agrees.2
After the ALJ issued a decision in this case in January of 2014, Ms. Terry
petitioned the Appeals Council for review and submitted additional evidence to
support her claim for benefits. The new evidence includes treatment records from
Dr. Warren Blackburn, Jr. dated September 24, 2008; August 3, 2010; August 17,
Ms. Terry also argues that the ALJ failed to properly evaluate the opinion of Dr. Angelia Elliott
and that the ALJ failed to acknowledge that Ms. Terry suffers from chronic fatigue syndrome.
Because the Court remands this case in light of the new evidence that Ms. Terry submitted to the
Appeals Council, the Court does not consider Ms. Terry’s alternative arguments. On remand, the
Commissioner may examine Ms. Terry’s other arguments in conjunction with an evaluation of
the evidence as a whole.
2010; and October 19, 2010. (Doc. 7-10, pp. 33-38; see also Doc. 7-3, pp. 6, 10).
The new evidence also includes a March 25, 2014 medical opinion from Ms.
Terry’s treating physician, Dr. Angelia Elliott. (Doc. 7-10, p. 39; see also Doc. 73, pp. 6, 10). The Appeals Council stated that it considered this evidence and that
the “information does not provide a basis for changing the Administrative Law
Judge’s decision.” (Doc. 7-3, pp. 6-7).
“With a few exceptions, the claimant is allowed to present new evidence at
each stage of this administrative process.” Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1261 (11th Cir. 2007) (citing 20 C.F.R. § 404.900(b)). “The
Appeals Council must consider new, material, and chronologically relevant
evidence and must review the case if ‘the administrative law judge’s action,
findings, or conclusion is contrary to the weight of the evidence currently of
record.’” Ingram, 496 F.3d at 1261 (quoting 20 C.F.R. § 404.970(b)). “When a
claimant properly presents new evidence to the Appeals Council, a reviewing court
must consider whether the new evidence renders the denial of benefits erroneous.”
Ingram, 496 F.3d at 1262.
Ms. Terry alleges disability in part because of her fibromyalgia. (Doc. 7-3,
pp. 45, 48; Doc. 7-7, p. 13). In her decision, the ALJ stated that she considered
Ms. Terry’s fibromyalgia under Social Security Ruling 12-02p “which provides
guidance on how to evaluate the condition” for purposes of social security
disability. (Doc. 7-3, p. 31). SSR 12-02p provides, in relevant part:
[W]e may find that a person has a [medically determinable
impairment] of [fibromyalgia] if he or she has all three of the
1. A history of widespread pain . . . that has persisted (or that
persisted) for at least three months. The pain may fluctuate in
intensity and may not always be present.
2. At least 11 positive tender points on physical examination. . . .
3. Evidence that other disorders that could cause the symptoms or
signs were excluded. . . .
SSR 12-02p, 2012 WL 3104869 at *2-3. With respect to the factors that SSR 122p identifies, the ALJ explained:
The record documents [indicate that Ms. Terry complained] of a
number of symptoms generally consistent with fibromyalgia including
various body aches and pains and fatigue. However, [Ms. Terry’s]
tender  points have not been documented within her treatment
record, and her physical examinations do not support such a diagnosis.
The record contains no evidence that [Ms. Terry] was thoroughly
examined by her treating sources before the diagnosis was offered or
that other disorders that could cause the symptoms or signs have been
(Doc. 7-3, p. 31). The new medical records from Dr. Blackburn document Ms.
Terry’s tender points, and they demonstrate that Dr. Blackburn diagnosed Ms.
Terry with fibromyalgia after physical examinations.
On September 24, 2008, Dr. Blackburn examined Ms. Terry for “diffuse
(Doc. 7-10, p. 37).
Dr. Blackburn reviewed Ms. Terry’s history of
abdominal pain, various surgeries, and broken bones. (Doc. 7-10, p. 37). Ms.
Terry complained that she had “pain everywhere,” and she “hurt to the touch.”
(Doc. 7-10, p. 37). Ms. Terry had “no energy” and she “sle[pt] poorly.” (Doc. 710, p. 37). An examination of Ms. Terry’s peripheral joints revealed that “she
ha[d] all 18 trigger points.” (Doc. 7-10, p. 38). Based on his examination, Dr.
Blackburn diagnosed fibromyalgia, stating that “[s]he clearly has fibromyalgia.”
(Doc. 7-10, pp. 37-38).
Dr. Blackburn did not see Ms. Terry again until August 3, 2010. (Doc. 7-10,
p. 35). Ms. Terry complained that she had had “episodes every six weeks where
she ha[d] diffuse discomfort.” (Doc. 7-10, p. 35). Ms. Terry reported that she had
no energy and slept poorly. (Doc. 7-10, p. 35). Dr. Blackburn examined Ms.
Terry’s peripheral joints and found that she had “all 18 trigger points.” (Doc. 7-10,
p. 36). Dr. Blackburn stated that there were “no hard findings other than the
diffuse trigger point tenderness.” (Doc. 7-10, p. 36). Dr. Blackburn diagnosed
fibromyalgia. (Doc. 7-10, pp. 35-36).
On August 17, 2010, Ms. Terry returned to Dr. Blackburn for a follow-up
examination. (Doc. 7-10, p. 34). Ms. Terry still was not sleeping through the
night, and her energy remained poor. (Doc. 7-10, p. 34). A peripheral joint
examination revealed that Ms. Terry had “all 18 trigger points.” (Doc. 7-10, p.
34). Dr. Blackburn stated that Ms. Terry “clearly has fibromyalgia.” (Doc. 7-10,
p. 34). Dr. Blackburn discussed the diagnosis “extensively” with Ms. Terry and
changed her medication regimen. (Doc. 7-10, p. 34).
During a follow up visit on October 19, 2010, Ms. Terry complained of right
hip pain that had been bothering her for six to eight weeks. (Doc. 7-10, p. 33).
Ms. Terry “also ha[d] some mild tenderness laterally as well as in the groin.”
(Doc. 7-10, p. 33). Dr. Blackburn again found that Ms. Terry had “all 18 trigger
points.” (Doc. 7-10, p. 33). In addition, external rotation of Ms. Terry’s hip was
“somewhat painful.” (Doc. 7-10, p. 33). Dr. Blackburn diagnosed fibromyalgia,
and he stated that Ms. Terry “may have some mild degenerative changes involving
the hips.” (Doc. 7-10, p. 33).
In addition to rebutting the ALJ’s statements that doctors had not
documented Ms. Terry’s tender points in her treatment record and that physical
examinations do not support a fibromyalgia diagnosis, Dr. Blackburn’s treatment
notes and other evidence in the record suggest that Ms. Terry’s physicians
excluded other disorders as part of their fibromyalgia diagnoses. Dr. Blackburn’s
August 17, 2010 treatment note states: “We did review [Ms. Terry’s] bloodwork
with her. Obviously if she does not have hemochromatosis[,] she has no end organ
disease and her liver tests and blood sugar were normal.” (Doc. 7-10, p. 33). The
record contains other evidence that Ms. Terry’s treating physicians performed
laboratory and diagnostic tests to exclude other disorders that could have been the
cause of the signs and symptoms of Ms. Terry’s fibromyalgia. (See e.g., Doc. 7-9,
pp. 74-88, 94-101, 104, 106, 114). Thus, the Court is not persuaded by the
Commissioner’s argument that Ms. Terry “has failed to show that other disorders
that could have shown the same symptoms or signs [as her fibromyalgia] were
excluded.” (Doc. 13, p. 16). Accordingly, the Court remands for the ALJ to have
an opportunity to consider Dr. Blackburn’s records.
The Court also remands with instructions for the ALJ to consider Dr.
Elliott’s March 25, 2014 letter. In the letter, Dr. Elliott stated:
Ms. Terry has been a patient here at Cullman Family Practice for
many years. I have followed Ms. Terry throughout the last ten years
and have watched her decline over the past four years. Ms. Terry at
this time is not able to perform work for eight consecutive hours a
day[,] and she is unable to perform work for forty hours a week. Her
combination of chronic conditions includes fibromyalgia which was
diagnosed by Dr. Warren Blackburn, a rheumatologist, in August
2010. She also suffers from osteoarthritis in multiple sites, chronic
back pain, peripheral neuropathy, hemochromatosis, chronic fatigue
syndrome, anxiety, depression, and post[-]traumatic stress disorder.
Ms. Terry also has problems with concentration due to her multiple
health problems and her medications that she is required to take. It is
my medical opinion that Ms. Terry is totally and permanently
(Doc. 7-10, p. 39). The Commissioner argues that Dr. Elliott’s March 25, 2014
letter is not chronologically relevant and does not disturb the ALJ’s findings
because “[o]pinions on some issues, such as whether the claimant is disabled or
unable to work and the claimant’s RFC, ‘are not medical opinions, . . . but are,
instead, opinions on issues reserved to the Commissioner.’” (Doc. 13, p. 14)
(quoting 20 C.F.R. § 404.1527(d)). The Court is not persuaded.
Dr. Elliott’s opinion is chronologically relevant. Dr. Elliott’s statement that
“Ms. Terry at this time is not able to perform work for eight consecutive hours a
day[,] and she is unable to perform work for forty hours a week” is dated 61 days
after the ALJ’s decision. (Doc. 7-10, p. 39; see also Doc. 7-3, p. 22). Dr. Elliott
based her opinion on her observation of Ms. Terry over the course of a decade of
treatment, and she explained that Ms. Terry’s condition had declined between 2010
and 2014. (Doc. 7-10, p. 39). The record contains at least 24 treatment notes from
Ms. Terry’s visits with Dr. Elliott between April 8, 2010 and May 6, 2013. During
these visits, Ms. Terry complained of a variety of symptoms, including nausea,
dizziness, abdominal pain, hip pain, wrist pain, breathing problems, back pain, lack
of energy, aching bones, spine discomfort, trouble sleeping, night sweats, loss of
appetite, blisters on her face, exhaustion, and fatigue. During these visits, Dr.
Elliott consistently diagnosed fibromyalgia. (Doc. 7-9, pp. 4-11, 16-20, 23-43, 4873, 128-130; Doc. 7-10, pp. 20-28). Therefore, Dr. Elliott’s opinion “relate[s] back
to the period before the ALJ’s decision.” See Washington v. Soc. Sec. Admin.,
Comm’r., 806 F.3d 1317, 1322 (11th Cir. 2015); Wilson v. Colvin, 2016 WL
4447442, *7 (N.D. Ala. Aug. 24, 2016) (“It is too simplistic to say that [a
physician’s] evaluation related to a later time just because it occurred four months
after the ALJ’s decision, where it plainly illuminates a condition that long predated that determination.”).
In addition to being chronologically relevant, Dr. Elliott’s March 25, 2014
opinion contains specific, substantive statements about Ms. Terry’s limitations,
statements that are consistent with Dr. Elliott’s May 21, 2013 medical source
opinion. In her March 2014 letter, Dr. Elliott listed Ms. Terry’s physiological and
psychological diagnoses and opined that Ms. Terry can neither work for 8
consecutive hours nor work for 40 hours in a week. In the May 21, 2013 medical
source statement, Dr. Elliott opined that Ms. Terry can stand and walk for 10-15
minutes for a total of one hour in an eight-hour day and that Ms. Terry can sit for
20-30 minutes for two to three hours in an eight-hour day. (Doc. 7-10, p. 17). Dr.
Elliott stated that Ms. Terry must lie down two or three times a day for 30-60
minutes at a time. (Doc. 7-10, p. 17).3 Dr. Elliott cited clinical findings of
Dr. Elliott also opined that Ms. Terry can never lift over 10 pounds; occasionally lift between
five and 10 pounds; and frequently lift less than five pounds. (Doc. 7-10, p. 17). According to
Dr. Elliott, Ms. Terry should never climb, balance, stoop, kneel, crouch, crawl, or push and pull
with her legs, but Ms. Terry occasionally can reach, handle, finger, feel, and push and pull with
her arms. (Doc. 7-10, p. 17). Dr. Elliott concluded that Ms. Terry should never work around
extreme cold, heat, wetness/humidity, vibration, moving mechanical parts, and high exposed
places. (Doc. 7-10, p. 18). Dr. Elliott opined that Ms. Terry occasionally can work around
fumes, noxious odors, dusts, mists, gases, or poor ventilation, but she cannot drive automotive
equipment. (Doc. 7-10, p. 18).
increased pain, fibromyalgia, osteoarthritis, and back pain as the basis for the
identified limitations. (Doc. 7-10, pp. 17-18).
The ALJ discounted Dr. Elliott’s May 21, 2013 medical source statement in
part because the ALJ found that “while Dr. Elliott repeatedly noted [Ms. Terry’s]
report of an inability to work, she did not explicitly concur with the statement or
assess [Ms. Terry] with functional limitations during the course of [ ] treatment.”
(Doc. 7-3, p. 30). The ALJ also found that no credible source advised Ms. Terry
“to refrain from performing all gainful work activity.” (Doc. 7-3, p. 32). Dr.
Elliott’s March 2014 letter addresses these asserted deficiencies. With regard to
Dr. Elliot’s final statement in the March 2014 letter that she holds the “medical
opinion that Ms. Terry is totally and permanently disabled,” the Commissioner
need not give “controlling weight or special significance” to that opinion, but the
Commissioner may not completely disregard the opinion or any of the specific
medical opinions that Dr. Elliott provided. SSR 96-5p, 1996 WL 374183, at *5.
Dr. Elliott’s March 25, 2014 letter also is consistent with other evidence in
the record, including the findings of consultative examiner Dr. Victor DeLoach.
Dr. DeLoach examined Ms. Terry on September 8, 2012. (Doc. 7-9, p. 139). Dr.
DeLoach diagnosed chronic fatigue, fibromyalgia, and chronic pain. (Doc. 7-9, p.
142). Dr. DeLoach found “14 trigger points necessary for fibromyalgia.” (Doc. 79, p. 142). He also noted that Ms. Terry has “a decreased range of motion in the
extension of her lumbar spine[,] and she has some decreased range or motion in her
left knee as far as flexion.” (Doc. 7-9, p. 142). The ALJ gave significant weight to
Dr. DeLoach’s diagnostic findings, but she gave less weight to Dr. DeLoach’s
opinion regarding Ms. Terry’s fibromyalgia because the ALJ found that the
opinion was “inconsistent with the remainder of the record.” (Doc. 7-3, p. 32). Dr.
DeLoach’s findings regarding Ms. Terry’s fibromyalgia are consistent not only
with Dr. Blackburn’s findings and diagnoses but also with Dr. Elliott’s March 25,
2014 opinion that Ms. Terry suffers from chronic fibromyalgia.
In an unpublished opinion, the Eleventh Circuit has observed that:
“[Fibromyalgia’s] cause or causes are unknown, there is no cure, and
of greatest importance to disability law, its symptoms are entirely
subjective. There are no laboratory tests for the presence or severity of
fibromyalgia.” Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996).
Thus, a treating physician’s determination that a patient is disabled
due to fibromyalgia is even more valuable because there are no
objective signs of severity and the physician must interpret the data
for the reader.
Stewart v. Apfel, 245 F.3d 793 (Table), 2000 App. Lexis 33214, at *8-9, 2000 WL
33125958 (11th Cir. Dec. 20, 2000). Here, there is no medical evidence that
contradicts Mr. Terry’s fibromyalgia diagnoses from Dr. Blackburn and Dr. Elliott,
and there is no medical opinion in the record that contradicts these treating
physicians’ opinions regarding Ms. Terry’s physical limitations. Accordingly, the
Appeals Council erred when it failed to remand Ms. Terry’s case to the ALJ to
consider new and material evidence.
For the reasons discussed above, the Court remands the decision of the
Commissioner for further administrative proceedings.
DONE and ORDERED this September 8, 2017.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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