Tisdale v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 6/24/2016. (KEK)

FILED
2016 Jun-24 AM 11:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

TYRONE TISDALE,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the
Social Security Administration,
Defendant.

Case No.: 5:15-cv-01334-MHH

MEMORANDUM OPINION
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), plaintiff Tyrone Tisdale seeks
judicial review of a final adverse decision of the Commissioner of Social Security.
The Commissioner denied his claims for a period of disability, disability insurance
benefits, and supplemental security income.

After careful review, the Court

remands the Commissioner’s decision.
I.

PROCEDURAL HISTORY
Mr. Tisdale applied for a period of disability and disability insurance

benefits on December 13, 2012.

(Doc. 4-7, p. 2).

Mr. Tisdale applied for

supplemental security income on January 10, 2013. (Doc. 4-7, p. 4). Mr. Tisdale

alleges that his disability began on April 30, 2012. (Doc. 4-8, pp. 2-3).1 The
Commissioner initially denied Mr. Tisdale’s claims on April 4, 2013. (Doc. 4-4, p.
46). Mr. Tisdale requested a hearing before an Administrative Law Judge (ALJ).
(Docs 4-4, pp. 45-85; 4-6, pp. 9-10). The ALJ issued an unfavorable decision on
April 7, 2014. (Doc. 4-4, pp. 39-40). On July 24, 2015, the Appeals Council
declined Mr. Tisdale’s request for review (Doc. 4-3, pp. 2-7), making the
Commissioner’s decision final and a proper candidate for this Court’s judicial
review. See 42 U.S.C. §§ 405(g), 1383(c).
II.

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 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.

1

At the administrative hearing, Mr. Tisdale revised his alleged disability date to April 30, 2012.
(Doc. 4-4, pp. 32-33). He initially alleged that his disability began on April 15, 2010. (Doc. 4-8,
pp. 2-3).
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2004). In evaluating the evidence in 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 the ALJ’s decision is

supported by substantial evidence, the Court “must affirm even if the evidence
preponderates against the Commissioner’s findings.” Costigan v. 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).
III.

SUMMARY OF THE ALJ’S DECISION
To determine whether a claimant has proven that he 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
3

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.
In this case, the ALJ found that Mr. Tisdale has not engaged in substantial
gainful activity since April 30, 2012, the alleged onset date. (Doc. 4-4, p. 34). The
ALJ determined that Mr. Tisdale suffers from the following severe impairments:
recurrent renal stones, status-post left ureteroscopy with laser lithotripsy and
stenting, obesity, small hiatal hernia, and sinusitis/allergic rhinitis and/or asthma.
(Doc. 4-4, pp. 34-35). The ALJ concluded that Mr. Tisdale has the following nonsevere impairments: back and neck pain, GERD, sleep apnea, and intermittent
insomnia. (Doc. 4-4, p. 35). Based on a review of the medical evidence, the ALJ
concluded that Mr. Tisdale does not have an impairment or combination of
impairments that meets or medically equals the severity of any of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 4-4, p. 36).
In light of Mr. Tisdale’s impairments, the ALJ evaluated Mr. Tisdale’s RFC.
The ALJ determined that Mr. Tisdale has the RFC to perform:
light work, as defined in 20 CFR 404.1567(b) and 416.967(b), with
occasional lifting and carrying up to 20 pounds and frequently lifting
and carrying up to 10 pounds. The claimant is able to sit up to eight
hours, and stand/walk up to six hours, in combination with normal
breaks, during and eight hour workday. The claimant is further limited
to no more than frequent balancing, occasional stooping, kneeling,
crouching, crawling, and climbing of ramps and stairs, and must never
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climbing [sic] ladders, ropes, or scaffolds. The claimant must avoid
concentrated exposure to pulmonary irritants (e.g., fumes, dust, gases,
odors, and areas of poor ventilation), extreme heat and cold, and work
areas with vibration. The claimant must avoid industrial hazards
including unprotected heights and working in close proximity to
moving dangerous machinery.
(Doc. 4-4, pp. 36-37). Based on this RFC, the ALJ concluded that Mr. Tisdale is
able to perform his past relevant work as a mechanical drafter, assistant manager
retail, customer service representative clerk, and customer representative-cable.
(Doc. 4-4, p. 39). Accordingly, the ALJ determined that Mr. Tisdale has not been
under a disability within the meaning of the Social Security Act. (Doc. 4-4, p. 39).
IV.

ANALYSIS
Mr. Tisdale contends that the ALJ failed to consider the majority of the

medical evidence regarding Mr. Tisdale’s renal stones, and therefore the ALJ’s
RFC determination is not supported by substantial evidence.2 The Court agrees.3
“An RFC determination is an assessment, based on all relevant evidence, of
a claimant’s remaining ability to do work despite [his] impairments.” Packer v.
Commissioner, Social Sec. Admin., 542 Fed. Appx. 890, 891 (11th Cir. 2013)

2

Mr. Tisdale does not challenge the ALJ’s assessment of his (Mr. Tisdale’s) other severe
impairments. (Doc. 11, p. 3).
3

Mr. Tisdale also argues that he is entitled to relief from the ALJ’s decision because (1)
substantial evidence does not support the ALJ’s finding that Mr. Tisdale’s subjective complaints
were not fully credible; and (2) the ALJ’s decision is inconsistent with the testimony of the
vocational expert. Because the Court finds the first issue meritorious, the Court does not address
Mr. Tisdale’s other arguments.
5

(citing Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)). “There is no
rigid requirement that the ALJ specifically refer to every piece of evidence, so long
as the ALJ’s decision is not a broad rejection, i.e., where the ALJ does not provide
enough reasoning for a reviewing court to conclude that the ALJ considered the
claimant’s medical condition as a whole.” Packer, 542 Fed. Appx. at 891-92
(citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).
In reaching her RFC determination, the ALJ stated that “hospital records and
treatment notes document the claimant ‘has had some flare up of his renal problem
off and on.’” (Doc. 4-4, p. 38; see also Doc. 4-14, p. 22).4 She also referenced
abdominal CT scans in January and February of 2013 that revealed small nonobstructing renal stones, which attending physicians treated with “narcotic
analgesics intravenously and discharged him on oral analgesics and muscle
relaxers with no restrictions.” (Doc. 4-4, p. 38; see also Docs. 4-14, p. 27, 38, 41;
4-15, p. 61). The ALJ considered treatment notes from Dr. Joseph Pettus. (Doc. 44, p. 38). On April 25, 2013, Dr. Pettus performed a left retrograde pyelogram and
laser lithotripsy without complications. (Doc. 4-4, p. 38; see also Doc. 4-14, pp.
34-36).

Finally, the ALJ noted that CT scans conducted in May, June, and

November of 2013 showed “bilateral non-obstructing renal calculi with no action

4

The hospital record to which the ALJ referred explained as part of Mr. Tisdale’s social history
that he “has had some flare up of his renal problem off and on.” (Doc. 4-14, p. 22). This
statement is not a diagnosis or a conclusion based on a medical examination.
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required.” (Doc. 4-4, p. 38; see also Docs. 4-14, pp.78-80; 4-15, pp. 5-8; 4-16, p.
101).
The ALJ’s summary of the portion of Mr. Tisdale’s medical records related
to his renal stones is not representative of the severity of Mr. Tisdale’s condition.
For example, although the ALJ acknowledged “CT scans in January and February
of 2013,” she failed to mention that these scans were conducted during a period of
ten days during which Mr. Tisdale was hospitalized for kidney stones. (Docs. 4-4,
p. 38; 4-13 pp. 38-97). Her reference to other CT scans where “no action [was]
required” does not account for the pain and time that Mr. Tisdale testified he needs
to pass a kidney stone. (Doc. 4-14, pp. 79-80).
Furthermore, the ALJ’s decision does not suggest that she considered the
majority of the evidence documenting Mr. Tisdale’s hospitalizations for his renal
stones. The ALJ failed to consider records documenting a hospitalization from
January 18-20, 2010 at Huntsville Hospital where Mr. Tisdale presented with
“multiple kidney stones in either kidney,” a radiology consultation at Huntsville
Hospital on October 10, 2010 were Mr. Tisdale presented with a “small shadowing
stone in left kidney” and “mild dilation of the proximal right ureter,” a
hospitalization of nine days from October 14-22, 2010 at Huntsville Hospital
where Mr. Tisdale passed a 3mm-renal stone and presented with severe right
ureteral colic and right ureteral calculus, and a hospitalization from September 257

30, 2010 at Huntsville Hospital where Mr. Tisdale presented with acute kidney
injury and recurrent nephrolithiasis. (Docs. 4-13, pp. 3-10; 4-10, p. 19; 4-12, pp.
90-92; 4-13, pp. 12-21).
The ALJ’s analysis also fails to mention a hospitalization from January 1213, 2013 at Huntsville Hospital where Mr. Tisdale was treated for renal stones
(Doc. 4-13, 47-60); a February 1, 2013 consultation at Huntsville Hospital where
doctors diagnosed him with a 3-mm renal stone (Doc. 4-13, p. 34); a
hospitalization from March 13-15, 2013 at Huntsville Hospital where Mr. Tisdale
was treated for his nephrolithiasis and was found to have kidney stones (Doc. 4-16,
pp. 12-15); a visit to Huntsville Hospital Imaging Center on April 11, 2013 where
scans revealed a small right renal angiomyolipoma (Doc. 4-16, pp. 90); a visit to
North Alabama Urology on April 30, 2013 where physicians diagnosed another
kidney stone and removed a stent used to help Mr. Tisdale pass kidney stones
(Docs 4-15, pp. 63-65; 4-16, pp. 4-6); a visit to Huntsville Hospital where doctors
found bilateral nonobstructing renal calculi (Doc. 4-16, pp. 46-47); a visit to
Huntsville Hospital where physicians found multiple echogenic, nonobstructing
renal calculi (Doc. 4-16, p. 48); a UAB clinic visit on June 13, 2013 where doctors
found renal calculi (Doc. 4-14, pp. 76-84); a visit to Crestwood Medical Center on
November 23, 2013 where physicians found bilateral nonbstructing internal calculi
(Doc. 4-16, 101-102); a visit to Huntsville Hospital on December 12, 2013 where
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doctors noted that Mr. Tisdale was in the process of passing renal stones (Doc. 417, pp. 4-9); a visit to Huntsville Hospital on February 10, 2014 where doctors
founds that Mr. Tisdale has recurrent renal calculi, bloody urine, and vomiting
(Doc. 4-3, pp. 22-24); a hospitalization at Huntsville Hospital from February 2728, 2014 noting Mr. Tisdale’s kidney pain (Doc. 4-9, 2-28); a visit to the
Huntsville Hospital Emergency room where doctors prescribed acetaminophen and
hydrocodone for the intensity of Mr. Tisdale’s kidney pain (Doc. 4-18, 46, 8-11);
or a hospitalization at Huntsville Hospital from March 12-13, 2014 where doctors
treated Mr. Tisdale for recurrent kidney stones. (Doc. 4-18, 16-45).
The ALJ erred by not considering most of the medical evidence concerning
Mr. Tisdale’s kidney stones. This error is not harmless. The regulations provide
that an ALJ must evaluate allegations of pain with respect to the “duration,
frequency, and intensity of [the] pain.” 20 C.F.R. § 404.1529(c)(3)(ii). Moreover,
when making an RFC determination, an ALJ must assess a claimant’s ability to
work “on a regular and continuing basis.” 20 C.F.R. § 1545(b); see also see Rizzo
v. Astrue, 2010 WL 137805, at *2 (M.D. Fla. Jan. 12, 2010) (“[W]hen a claimant
has an impairment that causes periods of exacerbations, findings regarding their

9

duration, frequency, and intensity are necessary in order to determine whether
these periods would preclude work on a regular basis.”).5
Because the ALJ did not adequately consider multiple hospitalizations for
kidney stone treatment, the ALJ did not properly evaluate whether the frequency
and duration of Mr. Tisdale’s kidney stone flare-ups preclude substantial gainful
activity.

Therefore, the Court cannot determine whether substantial evidence

supports the ALJ’s decision. See McCruter v. Bowen, 791 F.2d 1544, 1548 (11th
Cir. 1986) (If the record viewed in its entirety indicates that the ALJ “focus[ed]
upon one aspect of the evidence and ignor[ed] other parts of the record,” then the
reviewing court “cannot properly find that the administrative decision is supported
by substantial evidence. It is not enough to discover a piece of evidence which
supports that decision, but to disregard other contrary evidence. The review must
take into account and evaluate the record as a whole.”). On remand, the ALJ
5

Between the dates of April 23, 2014 and February 9, 2015, Mr. Tisdale submitted additional
medical records to the Appeals Council. Those records indicate that Mr. Tisdale was
hospitalized an additional 23 days after the administrative hearing. (Docs 4-4, pp. 13-14; 4-3, pp.
41-45, 27-28, 19-20). The Eleventh Circuit has held that “when a claimant properly presents
new evidence to the Appeals Council, a reviewing court must consider whether that new
evidence renders the denial of benefits erroneous.” Ingram v. Comm’r of Soc. Sec. Admin., 496
F.3d 1253, 1262 (11th Cir. 2007). The additional records that Mr. Tisdale submitted to the
Appeals Council show a consistent pattern of hospitalization that speaks to Mr. Tisdale’s
inability to work consistently. When considered with the hospitalizations that were documented
in the record before the ALJ, the record reflects that Mr. Tisdale was hospitalized for more than
50 days between January of 2013 and early February of 2015. The Court notes that at the
administrative hearing, the VE testified that were an individual with Mr. Tisdale’s impairments
“expected to be absent from the workplace an average of two or more days of work per month,”
the individual’s absenteeism would “preclude all work activity, both past and those identified,”
and the VE “would not be able to identify any positions in the DOT or the SCO that the
individual could perform.” (Doc 4-4, p. 82).
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should reevaluate her RFC determination for Mr. Tisdale and Mr. Tisdale’s
credibility in light of the multiple hospitalizations that the objective medical
evidence reflects, including the additional medical records that Mr. Tisdale
submitted to the Appeals Council.

See Lewen v. Comm’r of Soc. Sec., 605 Fed.

Appx. 967, 968 (11th Cir. 2015) (the ALJ’s decision should enable “the reviewing
court to conclude that the ALJ considered the claimant’s medical condition as a
whole”).
V.

CONCLUSION
For the reasons discussed above, the Court remands the decision of the

Commissioner for further administrative proceedings consistent with the Court’s
memorandum opinion.
DONE and ORDERED this June 24, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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