Yarbrough v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/20/18. (SAC )

FILED
2018 Mar-20 PM 12:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
STEPHANIE MCKOY YARBROUGH,
CLAIMANT,
v.

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
RESPONDENT.

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CIVIL ACTION NO. 5:16-CV-1471-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On August 19, 2014, the claimant, Stepahnie McKoy Yarbrough, protectively applied for
disability and disability insurance benefits under Title II of the Social Security Act because of
back pain, hypertension, obesity, depression, and anxiety. 1 The Commissioner denied the claims
on December 12, 2014 because of lack of evidence. The claimant timely requested a hearing
before an Administrative Law Judge, who held a hearing on December 15, 2015. (R. 100-06,
191-95, 260-68).
In a decision dated February 10, 2016, the ALJ found the claimant not disabled under
Title II. The claimant filed a timely request for a hearing before the Appeals Council on April 8,
2016 and submitted new evidence to it. The Appeals Council considered the new evidence but
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The claimant also initially applied for supplemental security income under Title XVI but
withdrew that application at the ALJ hearing on December 15, 2015. (R. 25).
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denied the claimant’s appeal because that evidence did not provide a basis for changing the
ALJ’s decision. Thus, the ALJ’s decision became the final decision of the Commissioner on
August 1, 2016. (R. 1-6, 25-38).
The claimant has exhausted her administrative remedies, and this court has jurisdiction
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court
REVERSES AND REMANDS the decision of the Commissioner because the Appeals Council
failed to adequately evaluate the claimant’s new evidence.
II. ISSUE PRESENTED 2
The issue before the court is whether the Appeals Council erred by failing to adequately
evaluate the claimant’s new, chronologically relevant, and material evidence.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the ALJ applied the correct legal standards and if
substantial evidence supports her factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel,
129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal claims.” Walker,
826 F.2d at 999. This court does not review the ALJ’s factual determinations de novo. The court
will affirm those factual determinations that are supported by substantial evidence. “Substantial
evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971).
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The claimant presented other issues for review, but the court will not address those issues in
full because it will reverse on the issue in this section. However, the court will express its
concern regarding those issues at the end of its discussion section.
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The court must keep in mind that opinions such as whether a claimant is disabled, the
nature and extent of a claimant’s residual functional capacity (RFC), and the application of
vocational factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to
the Commissioner because they are administrative findings that are dispositive of a case; i.e., that
would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d).
Whether the claimant meets a Listing and is entitled to Social Security disability benefits is a
question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence,
or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the
significance of certain facts, the court has no power to reverse that finding as long as substantial
evidence in the record supports it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but also must view the
record in its entirety and take account of evidence that detracts from the evidence relied on by
the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
The issue upon which the court will reverse the Commissioner’s decision in this case
involves evidence submitted by the claimant to the Appeals Council after the ALJ’s decision.
Generally, a claimant may present new evidence at each stage of the administrative process.
Washington v. Comm’r of Soc. Sec. Admin., 806 F.3d 1317, 1320 (11th Cir. 2015). The Appeals
Council has the discretion to not review the ALJ’s denial of benefits. See 20 C.F.R. §

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416.1470(b). But, in making its decision whether to review the ALJ’s decision, the Appeals
Council “must consider new, material, and chronologically relevant evidence” that the claimant
submits. Hargress v. Soc. Sec. Admin., 874 F.3d 1284, 1290-91 (11th Cir. 2017); Washington,
806 F.3d at 1320.
Evidence is material if a reasonable possibility exists that it would change the
administrative result. Washington, 806 F.3d at 1321. Evidence is chronologically relevant if “it
relates to the period on or before the date of the [ALJ] hearing decision.” Hargress, 874 F.3d at
1291. Medical opinions based on treatment occurring after the date of the ALJ’s decision may
still be chronologically relevant if the records upon which the doctor bases his opinion relate to
the period on or before the date of the ALJ’s decision. See Washington, 806 F.3d at 1323. The
claimant can show that a medical opinion dated after the ALJ’s decision is chronologically
relevant if it is based on a “review of the claimant’s medical history and [her] report of
symptoms during the relevant time period and there was no evidence of a decline in [her]
condition since the ALJ’s decision.” Ashley v. Comm’r of Soc. Sec. Admin., 707 F. App’x 939,
944 (11th Cir. 2017) (citing Washington, 806 F.3d at 1322-23); see also Hargress, 874 F.3d at
1291 (discussing Washington, 806 F.3d at 1319, 1322-23).
This court has the authority to remand a case based on such new, material, and
chronologically relevant evidence pursuant to 42 U.S.C. §405(g) under a sentence four remand
or reversal. See 20 C.F.R. §§ 404.940, 404.946. “To obtain a sentence four remand, the claimant
must show that, in light of the new evidence submitted to the Appeals Council, the ALJ’s
decision to deny benefits is not supported by substantial evidence in the record as a whole.”
Hearn v. Soc. Sec. Admin., 619 F. App’x 892, 894 (11th Cir. 2015) (citing Ingram v. Comm’r

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Soc. Sec. Admin., 496 F.3d 1253, 1266-67 (11th Cir. 2007)). When the evidence submitted to the
Appeals Council “undermine[s] the substantial evidence supporting the ALJ’s decision,” the
Appeals Council errs in failing to review the ALJ’s decision. Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 785 (11th Cir. 2014). “The Appeals Council must grant the petition for
review if the ALJ’s ‘action, findings, or conclusion is contrary to the weight of the evidence,’
including the new evidence.” Hargress, 874 F.3d at 1291 (citing Ingram, 496 F.3d at 1261.
V. FACTS
The claimant was fifty-one years of age at the time of the ALJ’s final decision; had
completed high school and two years of college; has past relevant work as a health care
administrator and officer manager; and alleges disability based on back pain, hypertension,
obesity, depression, and anxiety. (R. 192, 262).
Evidence of Physical and Mental Impairments in the Record Before the ALJ
The claimant sought treatment on February 18, 2014 at Cullman Heart & Urgent Care for
increased back pain that radiated to her leg for the past two days. She reported that sitting
increased her pain. The claimant could walk heel to toe; had no balance issues; and reported no
numbness. The nurse practitioner diagnosed sciatica and lumber radiculopathy and gave the
claimant an injection of Toradol/Decadron for pain. The claimant returned for a follow-up on
July 2, 2014 again complaining of increased low back pain for five days; the nurse practitioner
gave the claimant another Toradol/Decadron injection for pain. (R. 393, 397).
On July 12, 2014, the claimant presented to American Family Care after hurting her back
in a car accident the day before. The claimant complained of increased back pain as a result of
the accident. Dr. Eileen Gallagher noted the claimant’s prior prescriptions for Metformin,

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Micardis, Nexium, and Prozac. Her blood pressure was 132/82, and she weighed 206.4 pounds.
Dr. Gallagher assessed a back strain and back pain with sciatica; gave the claimant an injection
of pain medications; and prescribed Percocet for five days after confirming “with the ADPHPDH [that the claimant] had not receive[d] any pain medication in last 6 months—only listing is
Alpraxolam fro[m] Dr. Corliss on 2/19/14.” (R. 301-02).
The claimant returned to Cullman Heart & Urgent Care on August 6, 2014, complaining
of continued lower back pain radiating to her right leg that worsened since her July accident.
The claimant’s physical examination revealed tenderness to palpation in the lower lumbar area,
and the doctor prescribed Narco and Ultram for pain. (R. 391-92).
At the request of the Disability Determination Service, the claimant completed a
“Function Report-Adult” on September 9, 2014. In that report, the claimant noted that she had a
laminectomy at L-5 and S-1 years ago that caused her inability to lift, and that her back pain has
worsened since her car accident in July. She stated that she was placed on medical leave in April
2012, and she resigned in May 2012 because she “wasn’t healthy.”
The claimant stated she lives with her husband and elderly mother, who she helps
sometimes by bringing her water and calling for help when she falls. The claimant’s husband
feeds the pets; helps her mother get up when she falls; and helps the claimant fill her “pill box.”
The claimant’s typical day involves lying on a heating pad; doing back exercises and stretches;
brushing teeth; taking a shower, but never a bath because sitting in the tub hurts her back; and
reading and finding coupons in the paper.
She cannot sit for long durations because of her back pain and can walk about a half mile
before she has to rest. The claimant can dress herself except she needs help with her socks;

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cannot shave her legs; and needs assistance using the toilet if her back pain is “irritated or
strained.” She can prepare simple meals like cheese toast, sandwiches, and frozen dinners, but
can no longer cook like she used to because she cannot stand for long durations. She can sweep
a “short time”; only does laundry “by piece at a time” because the clothes are too heavy to lift;
does not go outside often; can drive only a short duration because of her back pain and sciatica;
and shops in small stores for necessities.
The claimant stated she had a hysterectomy but could not take hormone replacements
because of her rare blood disorder Factor Five Leiden. She became depressed in 2012 and had
her Xanax increased three times because her depression worsened. She has no hobbies; has no
church or social club affiliations; and no longer cares about how she looks. She has severe
anxiety and wakes up sweating with a rapid heart rate; has severe focus and clarity issue; is
unable to concentrate; never finishes anything at one time; and procrastinates. (R. 291-298).
The claimant’s mother completed a “Function Report-Adult-Third Party, which was
undated, that mirrored the limitations explained in the claimant’s “Function Report.” (R. 28390).
After suffering increased back pain for four days, the claimant returned to Cullman Heart
& Urgent Care on November 3, 2014. She described her back pain as constant that radiates to
her right leg and said lying down helps decrease the pain. The doctor gave her another
Toradol/Decadron injection for the pain. (R. 504-05).
On November 25, 2014, at the request of the Disability Determination Service, Dr. Jack
L. Bentley, Jr. reviewed the claimant’s medical records and conducted a consultative psychiatric
examination of the claimant. The claimant told Dr. Bentley that she began experiencing

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psychiatric issues in 2011 after a tornado nearly destroyed her home. She reported that she has
“felt on the verge of a ’nervous breakdown’ for the past three years”; has never had formal
psychiatric treatment but has taken “multiple SSRIs [prescribed] by her PMD”; takes Prozac and
Xanax that have done “little to alleviate the severity of her psychiatric difficulties”; and suffers
from crying spells, severe depression, panic attacks, obsessive thinking, pacing, restlessness, and
occasional periods of rage. Her teenage son also suffers from anxiety, and she worries about
him. She told Dr. Bentley that she functioned for 27 years as an administrator for 15 different
doctor groups, but could not handle the stress anymore and went on medical leave and then
resigned in May 2014.
The claimant reported “moderate to severe sleep disturbance” because of her racing
thoughts, obsessive thinking, and severe back pain. She can do “a variety of household chores,”
but has to rest frequently; rarely leaves home because she has to take care of her mother; has no
hobbies; and does not socialize except with close family.
Dr. Bentley’s physical examination of the claimant showed she weighed 204 pounds,
which the claimant said was a gain of 40 pounds since May 2014. She was “severely depressed
and cried profusely throughout the evaluation.” Dr. Bentley noted evidence of the claimant’s
anxiety, restlessness, agitation and obsessional thinking during the interview. “She appeared on
the verge of a panic attack” during the examination. She was alert and oriented; had normal attire
and grooming; had normal psychomotor skills; could recall one of three objects after five
minutes; could recite six digits forward and four backwards; spelled the word “world”
backwards; could perform serial 7’s and 3’s from 100; correctly identified state and national

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leaders; had little difficultly counting backwards from 20 to 1; and did not know the direction in
which the sun rises.
Dr. Bentley’s diagnostic impression was “MDD; GAD with a Panic Disorder; ADHD, by
history; S&P Laminectomy; Obesity; Bilaterial Sciatica; Factor 5 with Hypertension.” After
finding “no evidence of symptom exaggeration,” Dr. Bentley found that, based on his personal
examination of the claimant and a review of her medical records, the claimant would have
marked to severe limitations in her ability to sustain complex or
repetitive work related activities. The severity of her psychiatric
symptoms, chronic pain and inability to focus her attention span
would disrupt her ability to perform these tasks in a timely manner.
She could be expected to perform these tasks at a diminished pace.
The [claimant] would have a moderate to marked limitation in her
ability to even sustain simple work-related activities. Her lack of
coping skills and previously described psychiatric difficulties would
significantly limit her ability to perform these tasks in a timely
manner. She is capable of communicating effectively with
coworkers and supervisors.
(R. 412-15).
Dr. Justin Ross Hutto reviewed the claimant’s medical records and conducted a
consultative medical examination on November 29, 2014 at the request of the Disability
Determination Service. The claimant explained to Dr. Hutto that her back pain began in 1995
when she sat in a “weird position” and “felt a pop in her lower back.” She suffered severe back
pain that radiated into her right hip and leg that resulted in a L4-5 laminectomy that same year.
She indicated that her back pain has progressively worsened over the past years and has caused
limitations in her ability to sit, stand, walk, and lift for any significant period of time. She also
told Dr. Hutto about her anxiety, depression, and memory issues that have caused her to develop
GI symptoms and incontinence.

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Dr. Hutto noted that the claimant indicated she was laid off from her last job and is
unemployed; she does not use an ambulatory device; has no trouble standing; cannot lift
anything more than 5-10 pounds; can do simple household chores no more than 5 minutes; can
climb stairs without difficulty; cannot take care of the yard or mow grass; and can balance a
checkbook. He listed the claimant’s current medications as Prozac, Maxalt as needed, Micardis
HCTZ, Xanax, Lomotil as needed, Metformin as needed, Nexium, Robaxin as needed, and Advil
as needed. He noted the claimant’s blood pressure was 160/98 and her weight was 208 pounds.
Dr. Hutto’s physical examination of the claimant showed she has a normal gait; no
muscle spasms; ability to walk on heels and toes; ability to bend over and touch her toes; normal
grip strength on both sides; normal motor strength in all extremities; intact sensation in upper
and lower extremities; and normal reflexes. She had an abnormal straight leg test in the supine
position on the right side; difficultly squatting; and decreased range of motion in her lumbar area.
Dr. Hutto’s impressions were that the claimant had moderate limitations in her lumbar range of
motion and significant anxiety and depression symptoms that have “become severe enough to
give her somatic symptom of bowel incontinence.” Based on his physical examination and
review of records, he assessed that the claimant can only lift and carry 5-10 pounds on a
frequently basis on both sides. (R. 417-22).
The claimant returned to Cullman Heart & Urgent Care on December 2, 2014,
complaining of right-sided back pain that had persisted for three days. The doctor prescribed
Norco and Phenergan for pain. (R. 501-02).
On December 8, 2014, at the request of the Social Security Administration, Dr. Samuel
Williams reviewed the claimant’s records without physically examining her and completed a

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“Mental Functional Capacity Assessment.” Dr. Williams assessed that the claimant is
moderately limited in her ability to understand and remember detailed instructions; to maintain
concentration and attention for extended periods; to perform activities within a schedule,
maintaining regular attendance, and be punctual; to work with others without distraction; to
interact appropriately with the public; to accept instructions and constructive criticism from
supervisors; and to respond to changes in the work setting. Dr. Williams specifically noted that
the claimant “would likely miss 1-2 days [per] month due to psych symptoms.” In all other areas
of mental functioning, Dr. Williams found she was “not significantly limited.” (R. 77-79).
The claimant began treatment with Dr. Henry S. Beeler on February 24, 2015. On that
date, she complained of continued back pain, occasional migraines, anxiety, irritable bowel
syndrome, and urinary incontinence. Dr. Beeler re-filled her Oxycodone, Micardis, and Limotil
prescriptions. She returned to Dr. Beeler on March 25, 2015 for a follow-up and reported that
her depression medications were working well, but she was having increased ADD symptoms
and chronic back pain and fatigue. Dr. Beeler prescribed Adderall for the claimant’s ADD and
instructed her to increase the Adderall dosage from one to two pills daily if she felt no
improvement in two weeks. He re-filled her prescription for Percocet. (R. 428).
She returned to the Cullman Heart & Urgent Care on April 10 and November 25, 2015,
complaining of low back pain radiating down her leg after doing some lifting. Her blood
pressure was 139/100 in April and 128/83 in December. The doctor gave her a
Toradol/Decadron injection for the pain on both occasions. (R. 435, 499-500).
From June 11 to December 29, 2015, the claimant saw Dr. Beeler on approximately eight
occasions: June 11; July 13; August 12: September 8; October 5; November 4; December 11;

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and December 29. During these visits, the claimant complained of increased anxiety because of
the possible foreclosure of her home and her teenage son’s anxiety; difficulty sleeping; increased
difficulty focusing; and increased back pain. On June 11, Dr. Beeler wrote a letter “To Whom It
May Concern” stating, in his medical opinion, the claimant was “not physically or emotionally
able to hold gainful employment.” At the June visit, Dr. Beeler increased her Zoloft dosage and
prescribed Trazadone to help her sleep. By July, Dr. Beeler changed the Trazadone prescription
to Lunesta because the claimant continued to have difficulty sleeping; he increased the Lunesta
and Adderall prescriptions in August because her symptoms were not improving. By the October
5 and November 4 appointments, Dr. Beeler increased her Lunesta and Adderall dosages again.
Dr. Beeler’s notes indicate that the claimant was taking Klonipin in November 2015 for her
anxiety, but Dr. Beeler changed her prescription to Xanax in December because the Klonipin
was not effective. (R. 424, 429, 685)
On November 20, 2015, Nurse Practitioner Charlotte Michelle Cost wrote a letter “To
whom it may concern,” indicating that she treated the claimant for 9 ½ years and that she worked
in the same office as the claimant during that time. NP Cost noted that the claimant has chronic
back pain that is “disabling” at times; had multiple epidural injections, steroid injections, and
courses of pain medication management over the last fifteen years; and had physical therapy for
her back pain as well. NP Cost stated that the claimant’s first back surgery resulted in a “large
amount of scar tissue” that complicates her diagnosis and “creates the likelihood for an
additional surgery.” She indicated that another surgery is not “an easy viable option” for the
claimant because she has “Factor V Leiden clotting disorder” that increases the risks of surgery.

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NP Cost also discussed in the letter the claimant’s labile hypertension that increases with
stress, anxiety, physical activity, and fatigue. She also noted that the claimant takes Metformin
for a metabolic disorder; has a history of irritable bowel syndrome that causes severe diarrhea;
suffers from ADD; has a history of migraines; and has bouts of depression.
In the letter, NP Cost assessed that the claimant could not lift more than 3 pounds without
triggering muscle spasm and increased back pain and cannot sit for extended durations of more
than 30 minutes. (R. 433-34).
At her December 29 appointment with Dr. Beeler, the claimant’s blood pressure was high
at 173/115; she weighed 210 pounds; and she was crying because of the denial of her social
security application. (R. 686).
ALJ Hearing
At the ALJ hearing on December 15, 2015, the claimant testified that Dr. Brian Corliss
placed her on medical leave from her last job on April 17, 2014, because of her “excruciating
back pain [and] inability to focus.” The ALJ asked the claimant about the lack of evidence in the
record about Dr. Corliss placing her on medical leave, and the claimant stated “texts” from Dr.
Corliss should be in medical file. The ALJ indicated that those texts without verification do not
show a medical visit to Dr. Corliss. The claimant also stated that her employer called her in on
May 9 and told her she “could either resign or be let go because [she] could no longer do her
job.” (R. 50-52).
The claimant testified that she was a health care administrator for 27 years and her
medical treatment was “mainly informal” with the doctors with whom she worked. She would
tell those doctors her symptoms and they called in medications for her but “they did not

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document.” She said the records her attorney submitted from the pharmacy would support this
practice. The claimant pointed to a letter from NP Cost in the record that “summarizes her
overall extensive medical history” and states that most of her medical treatment was
“undocumented.” The ALJ told the claimant that “it’s still not documentation, but I’ll put it in
the file and I’ll certainly give it the weight it’s entitled to.” (R. 55-58).
The claimant lives with her husband and her mother. The claimant’s mother has cancer;
home health care nurses help take care of her mother; and the claimant’s sister-in-law takes her
mother to the doctor. Her mom can prepare her own food and clean her own room. (R. 49-50).
Regarding her back pain, the claimant stated that she has seen Dr. Beeler and Dr.
Coleman at Urgent Care for relief. Neither doctor has performed any current MRIs or x-rays of
her back because “surgery is not an option for me at this time.” Her car accident in July 2014
“worsened” her back. On a typical day, the claimant wakes up and does her back exercises,
stretches, and takes a hot shower, but cannot take baths anymore because sitting hurts her back.
(R. 50-52).
She has not been to vocational rehabilitation to find a job because she is “struggling
significantly mentally.” She has sought mental health treatment only with the physicians she
works with and Dr. Beeler. She stated that she has not been to Mental Health of Cullman
because Cullman is small town and she “would prefer to go out of town,” but has not done so
because of “financial reasons.” Her insurance does not pay for mental health treatment because
it is considered “non-allowable.” She chooses to take her minor son who has mental health
issues to mental health treatment and pays for his care; so she has no money left for herself. (R.
53-54).

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The ALJ asked her if she has “tried to sell [her] house and move into a smaller house.”
The claimant stated that her house is still in foreclosure but Wells Fargo did a “loan
modification” and her monthly payment actually increased because of home insurance and
property taxes. (R. 54-55).
The vocational expert, Patsy Bramlett, listed the claimant’s past relevant work as a health
care administrator and an office manager, with both jobs classified as sedentary and unskilled.
(R. 58). In his first hypothetical, the ALJ asked Ms. Bramlett to assume an individual of the
claimant’s age, education and past work experience who could perform work at the light
exertional level with the following additional limitations: can perform occasional postural
maneuvers; can never climb ropes, ladders, or scaffolds; must avoid hot or cold temperature
extremes and unprotected heights; can understand, remember, and carry out simple instructions
and tasks; has infrequent and well-explained workplace changes; needs non-intensive and
infrequent interaction with the general public; and can concentrate and remain on task for two
hours at a time sufficient to complete an eight-hour workday. Ms. Howell responded that the
individual could work as an inspector, with 54,000 jobs available nationally; a packer or
packager, with 62,000 jobs available nationally; and a hand bonder, with 104,000 jobs available
nationally. 3 (R. 59-60).
In his second hypothetical, the ALJ asked Ms. Bramlett to assume all of the prior
limitations and added that the hypothetical person needed the option to sit or stand during the
workday one or two minutes every hour or so just to change position. Ms. Bramlett indicated that
individual could perform the same jobs listed about and the number of jobs available would not
change. (R. 60).
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Ms. Bramlett did not testify to the number of jobs available regionally or in Alabama.
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The ALJ then asked Ms. Bramlett to assume all of the prior limitations and added that
the individual would be limited to simple, routine, repetitive tasks not performed in a fast
production environment. Ms. Bramlett responded that the three prior jobs that she listed for the
first and second hypotheticals would be available in the same numbers. (R. 61).
In her last hypothetical, the ALJ asked Ms. Bramlett to assume all of the prior limitations
but added that the individual would be expected to miss work two or more days per month on a
consistent basis. Ms. Bramlett testified that no jobs would be available for that individual
because employers for unskilled workers would not allow an employee to miss two or more days
of work a month. Ms. Bramlett stated that missing one day a month is the maximum “you could
miss and still retain the job.” (R. 61-61).
ALJ Decision
The ALJ rendered an unfavorable decision to the claimant on February 10, 2016. The
ALJ found that the claimant met the insured status requirements of the Social Security Act
through December 31, 2018 and had not engaged in substantial gainful activity since April 17,
2014, the alleged onset date. (R.25-27).
The ALJ found that the claimant has the severe impairments of degenerative disc disease
of the lumbar spine, obesity, anxiety, and depressive disorder. The ALJ found the claimant’s
hypertension and attention deficit disorder non-severe because no doctor has indicated that her
hypertension causes any standing, walking, sitting, bending, or stooping limitations. She also
noted that the recent records from Cullman Urgent Care showed that the claimant’s blood
pressure was normal at 128/83. Regarding her attention deficit disorder, the ALJ noted Dr.
Bentley’s examination that showed no significant deficits in attention or concentration. She

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found that both impairments showed no more than a minimal limitation on the claimant’s ability
to perform basic work activities. (R. 27-28).
Next, the ALJ found that the claimant did not have an impairment or combination of
impairments that met or medically equaled a Listing. In making this determination, the ALJ took
into account the claimant’s obesity and found that it did not, in combination with her other
impairments, cause a disability. She assessed the claimant’s degenerative disc disease under
Listing 1.04 for spinal disorders and found that the claimant failed to demonstrate any of the
abnormalities required for that Listing. The ALJ also considered the Listings related to mental
disorders and found that the claimant did not meet Listing 12.04 or 12.06 because she only had
moderate restrictions in her activities of daily living, social functioning, and concentration,
persistence, or pace. She noted that the claimant’s problems with personal care are caused from
her back pain, not anxiety or depression. The claimant can cook for herself daily; can do chores
such as sweeping and laundry; can drive a car; can shop for her personal needs and food in small
stores; has no problems getting along with family or friends; can count change; and takes care of
her mother and son. Because the ALJ found that the claimant has no marked difficulties in any
of these areas, the claimant did not meet any of the mental impairment Listings. (R. 28-30, 32).
The ALJ found that after considering all the evidence, the claimant’s medically
determinable impairments could reasonably be expected to cause her alleged symptoms;
however, the ALJ stated that the claimant’s statements concerning the intensity, persistence, and
limiting effects of these symptoms were not entirely credible. After recounting the claimant’s
testimony and the medical evidence in the record, the ALJ acknowledged that the claimant “may
have some functional limitations as a result of her back impairment. However, the alleged

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severity is not supported by any objective medical evidence. There are no recent x-rays or MRIs
of the claimant’s back.” The ALJ also noted the claimant’s normal gait; normal motor strength
in her extremities; normal sensation in her upper and lower extremities; conservative treatment
for back pain; ability to take care of her son and terminally ill mother; and failure to seek
treatment from a specialist for her back pain. The ALJ found “no evidence that additional
surgery was every recommended” and no objective evidence in the record to show her
limitations are as severe as she claimed.
Regarding the claimant’s mental impairments, the ALJ noted that she never received any
formal psychiatric treatment; never had hallucinations, suicide ideations, or paranoia; and had
normal attire, psychomotor skills, communication and memory skills, and no significant deficits
in memory during Dr. Bentley’s assessment. The ALJ pointed to the claimant’s reports of
depression and anxiety in 2016, but noted that her treatment “consisted of nothing more than
medication prescribed by her primary care physician” and she never “sought treatment [with] a
psychologist, psychiatrist, or any other licensed mental health professional.” She also
acknowledged that the claimant may have “some functional limitations secondary to depression
and anxiety,” but found no objective medical evidence to show those impairments were severe
enough to be disabling; the claimant’s mental impairment symptoms never “warranted ER
treatment or psychiatric hospitalization.” (R. 32-33).
The ALJ agreed with the opinion of non-examining consultant Dr. Williams that the
claimant had moderate limitations in activities of daily living, social functioning, and
concentration, persistence, and pace. However, the ALJ gave no weight to Dr. Williams’
opinion that the claimant would miss one to two days of work because of her mental

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impairments. The ALJ said that opinion was “not consistent with the record and objective
findings.” The ALJ did not articulate the inconsistency. (R. 33).
The ALJ assigned “no weight” to the opinion of consulting, examining physician Dr.
Bentley because “the opinion is not consistent with his own examination findings, nor is it
consistent with the overall objective findings by any other medical provider located in the file.”
The ALJ also gave consulting, examining physician Dr. Hutto “little weight” because “his
assessment was also not consistent with his own examination findings or any other objective
evidence or record.” The ALJ did not specifically explain the inconsistencies for either Dr.
Bentley or Dr. Hutto. (R. 33).
The ALJ gave “no weight” to Dr. Beeler’s opinion that the claimant was not physically or
emotionally able to hold gainful employment because it was a conclusion reserved for the ALJ,
and because Dr. Beeler’s statement “was not accompanied by any objective findings or facts.”
She also noted that Dr. Beeler submitted that statement at the claimant’s insistence. The ALJ
found that Dr. Beeler’s opinions “were more subjective” and not based on treatment records.
The ALJ assessed “no weight” to NP Cost’s December 2015 opinion letter about the claimant’s
medical history and limitations because she is a “nurse” and is not an acceptable medical source.
The ALJ also considered NP Cost’s opinion not impartial because she was claimant’s co-worker
and did not base her opinion on “objective medical evidence.” (R. 34).
The ALJ considered the claimant’s mother’s “Function Report,” but gave it “little
weight” because the claimant’s mother is “not a medical expert” and her opinion “cannot be
viewed as entirely impartial.” (R. 34).

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After considering the entire record, the ALJ determined that the claimant has the residual
functional capacity to perform light work, except that she can occasionally balance, stoop, kneel,
crouch, and crawl; can occasionally climb ramps and stairs; can never climb ropes, ladders, or
scaffolds; must have a sit and stand option during the workday for one to two minutes every
hour; should avoid temperature extremes and unprotected heights; can understand, remember,
and carry out simple instructions and tasks; is limited to simple routine, repetitive tasks not
performed in a fast paced production environment; must have infrequent and well-explained
work place changes; needs infrequent, non-intensive interaction with the general public; and can
concentrate and remain on task for two hours at a time sufficient to complete an eight-hour
workday. (R. 30). Based on the claimant’s age, education, work experience, residual functional
capacity, and the vocational expert’s testimony, the ALJ determined that the claimant could not
perform her past relevant work. However, she found that other work exists in significant
numbers in the national economy that the claimant could perform, including light work as an
inspector, a packager, and a hand bonder. Therefore, the ALJ determined that the claimant was
not disabled under the Social Security Act. (R. 37-38).
Additional Evidence Submitted to Appeals Council
After the ALJ rendered her decision on February 10, 2016, the claimant submitted
additional evidence to the Appeals Council to support her claim for disability. 4 Some of the
evidence was dated before the ALJ decision and other evidence was dated after.
4

The claimant concedes that the following records are not new because exact copies of those
records were in the record before the ALJ: August 6, 2014 and November 23, 2015 records from
Cullman Heart & Urgent Care; February 24 through March 25, 2015 records from Dr. Beeler;
November 20, 2015 letter from NP Cost; and April 10, 2007 records from Cullman Regional
Medical Center. (Doc. 13 at 4). Therefore, the court will not discuss these records in the context
of new evidence submitted to the Appeals Council.
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The claimant submitted records from cardiologist Dr. Silvio Papapietro dated July 18-25,
2012, regarding surgical clearance for the claimant’s hysterectomy. Because the claimant has a
positive diagnosis for Factor V Leiden and Metabolic Syndrome, Dr. Papapietro ordered an
echocardiogram, EKG, and blood tests to determine if he could clear the claimant for the
surgery. Dr. Papapietro found a small risk of complication but cleared the claimant for the
hysterectomy surgery. (R. 464-71).
The claimant also submitted records from Dr. Brian Corliss dating from May 21, 2012
through February 9, 2015. The claimant complained of back pain on May 21, 2012. On
February 7, 2013, she complained of menopausal symptoms, and Dr. Corliss documented that
the claimant was unable to take hormone replacement therapy because of her high risk for blood
clots. At this visit, her blood pressure was 142/92, and she had normal range of motion; normal
strength; and a normal gait. On April 24, May 29, November 7, 2013 and April 1, 2014, the
claimant received either a Tordadol or Rocephin injection for pain. Her blood pressure was
128/80 on November 7, 2013. (R. 474-93).
Dr. Corliss’s records for the claimant and records from Borden Family Pharmacy from
January 2012 through December 2015 show that Dr. Corliss prescribed the claimant Percocet in
2012; Robaxin as a muscle relaxant and Lomotil for her IBS diarrhea in 2013; and Zoloft,
Wellbutrin, Prozac, and Xanax for her anxiety and depression in 2014. (R. 475-85, 506-19).
The claimant sought to establish treatment with psychiatrist Farah Khan on February 9,
2016, the day before the ALJ rendered her decision. The claimant complained of depression,
anhedonia or the inability to feel pleasure, insomnia, and forgetfulness. She reported that

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physicians have treated her anxiety and depression with Focalin, Vyvanse, Prozac, Ritalin,
Effexor, Cymbalta, and Zoloft. (R. 525).
She told Dr. Kahn that when she was working and made a lot of money she would spend
extravagantly. When her son was struggling with his anxiety and “was on the floor rocking back
and forth asking for things to get better, I did go out and buy a $65,000 car.” Dr. Kahn’s found
that the claimant was dressed appropriately, calm, and euthymic. She had good insight and
judgment. In his “Review of Systems,” he noted the claimant’s blood pressure was “erratic”; she
had headaches; and she suffered from chronic pain. (R. 525-27).
Dr. Khan assessed the claimant as “suffering from a depressive episode and also what
might be an underlying personality disorder.” Dr. Kahn believed that the claimant’s impulse
control was because of a possible personality disorder and not attention deficit disorder. He
“educated” the claimant about “maladaptive personality” that would cause her to use
maladaptive behaviors to try to reduce her anxiety. He prescribed Geodon, which is an
antipsychotic medication used to treat schizophrenia and bipolar disorder, and set a follow-up
visit in one month. (R. 526).
The claimant sought treatment at the Urgent Care Center in Cullman on February 15,
2016, complaining of worsening back pain. The claimant denied the use of narcotics for her
pain, but the medical notes indicate that the prescription data base revealed a prescription for
Percocet. The doctor wrote “will not RX narcotics now or in the future,” and told her to follow
up with Dr. Beeler. (R. 523-24).
The claimant returned to Dr. Beeler on February 18, 2016 complaining of worsening
back pain. Dr. Beeler noted that palpation over her upper lumbar spine was “uncomfortable” for

22

the claimant; she wanted to stand because sitting hurt; and she was crying during most of the
visit. Her blood pressure was 174/110. Dr. Beeler gave her a Demerol and Phenergan injection
in the office and re-filled her Percocet prescription for three months. He ordered an MRI of her
back, that showed degenerative endplate changes; high signal tool in the L3 and L4 vertebral
bodies consistent with hemangiomas; mild right-sided disc bulge at L1-2 with mild facet and
ligament hypertrophy; mild to moderate diffuse disc bulge at L2-3 and L3-4 with mild to
moderate facet and ligament hypertrophy; moderate right foraminal narrowing at L3-4; mild to
moderate diffuse disc bulge that mildly flattens the ventral aspect of the thecal sac; moderate
facet and ligament hypertrophy and moderate bilateral foraminal narrowing at L4-5; and minimal
disc degeneration at L5-S1 with minimal peripheral enhancement in the spinal canal consistent
with scarring from the previous surgery. Dr. Demetrius Morros, who read the MRI, opined that
the claimant had degenerative disc disease with disc bulges with no herniation or central
stenosis. (R. 683-84).
Dr. Beeler’s CRNP Ashley Taylor called the claimant on February 23, 2016 with the
MRI results. Dr. Beeler wanted to refer her to a spine specialist for surgery. However, because
of her Factor V and family history of deep vein thrombosis, the claimant denied the specialist
referral for surgery. (R. 684).
The claimant presented to Cullman Regional Medical Center on March 6, 2016, with
severe abdominal pain, and Dr. Deborah Campbell admitted her into the hospital. Her blood
pressure registered at 171/111, 168/100, and 134/87 while in the hospital. The medical notes
indicate the claimant was “extremely anxious and depressed,” and had just started taking the
Geodon. A CT of her abdomen and pelvis without contrast showed constipation but no acute

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findings. Dr. Campbell’s diagnoses included abdominal pain, constipation, depression, and
anxiety. Upon discharge on March 7, Dr. Campbell advised the claimant to follow up with Dr.
Kahn regarding the claimant’s anxiety and her primary care physician as needed. (R. 540-54).
On March 14, 2016, Dr. Corliss wrote a letter “To Whom It May Concern” indicating
that the claimant was his patient from May 2011 through February 2015. Her verified that,
during that time period, he treated the claimant for hypertension that was “difficult to control”;
anxiety and depression that were “difficult to control”; recurring heart palpitations and chest
pains; migraine headaches; lower back pain; and “impaired fasting glucose.” He indicated that
the claimant was a carrier of Factor V Leiden Mutation, and that she had a “complex medical and
psychological history.” (R. 680).
NP Cost wrote a letter on April 24, 2016 addressed “To Whom It May Concern.” In that
letter, NP Cost indicated she knew and “cared for” the claimant for the past sixteen years. Her
letter espoused the same information contained in NP Cost’s December 20, 2015 letter. (R. 689).
On August 1, 2016, the Appeals Council stated that it considered the new evidence
presented to it, but found that “this information does not provide a basis for changing the [ALJ]’s
decision.” (R. 2).
VI. DISCUSSION
The claimant argues that the Appeals Council committed reversible error by not properly
evaluating the claimant’s additional medical evidence submitted after the ALJ’s decision. The
court agrees and finds that the Appeals Council committed reversible error in failing to review
the ALJ’s decision in light of the claimant’s new, chronologically relevant, and material
evidence.

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The Appeals council did not dispute that the new evidence discussed above was new or
chronologically relevant. The court finds that all of those records show that the claimant
continued to suffer from the same medical impairments and chronic pain she had complained of
for many years and relate back to her condition prior to the ALJ’s decision. Those records do
not indicate that her condition worsened but reveal that her symptoms continued after the ALJ’s
decision.
The only reason the Appeals Council gave for its failure to review the ALJ’s decision
was that the information in those records “does not provide a basis for changing the
Administrative Law Judge’s decision.” The court finds that the medical records regarding the
claimant’s February 2016 MRI results and Dr. Beeler’s referral to a specialist for surgery were
material because those records create a reasonable possibility that the ALJ may have changed his
decision if he had those records before him at the time of his decision. The ALJ specifically
discredited the claimant’s subjective allegations regarding the severity and limiting effects of her
back pain because the record contained no recent MRI of her lumbar spine and no objective
evidence supported the claimant’s allegations of the severity of her back pain. The February
2016 MRI provides that missing objective evidence link and supports the claimant’s allegations
regarding the severity of her back pain.
The February 2016 MRI with contrast of her lumbar spine showed mild to moderate disc
bulges L2-3 and L3-4; moderate facet and ligament hypertrophy; moderate bilateral foraminal
narrowing at L4-5, and moderate right foraminal narrowing at L3-4. Those findings indicate
objective medical evidence that could support the severity of the claimant’s back pain. The ALJ
also discredited the severity of the claimant’s back pain because no doctor had referred her to a

25

specialist or suggested surgery. The ALJ may have decided differently had he had Dr. Beeler’s
February 2016 records. A reasonable possibility exists that those 2016 MRI records and Beeler’s
surgical referral may have altered the ALJ’s findings regarding the severity of the claimant’s
back pain, or at least, altered the hypothetical he posed to the vocational expert.
The court also finds that the psychiatric records from Dr. Kahn and hospital records from
Cullman Regional Medical Center are material. The ALJ partly based his findings regarding the
severity of the claimant’s mental impairments on the fact that the claimant had never sought
mental health treatment from a psychiatrist and her symptoms never warranted hospitalization.
Dr. Kahn’s records give insight into the claimant’s depressive disorder and claims of attention
deficit disorder and show that the claimant established treatment with a mental health specialist.
The records shows that the claimant suffered for years from anxiety and depression and took
several medications for those mental impairments. Dr. Kahn’s insight and opinion about her
diagnosis and prescription of an antipsychotic medication for her symptoms may have changed
the ALJ’s findings regarding the severity of her mental impairments. Moreover, although her
hospitalization in March 2016 stemmed from initial abdominal pain, Dr. Campbell indicated that
the claimant’s anxiety and depression were primary diagnoses for her hospitalization. Those
records create a reasonable possibility that the ALJ may have changed his decision about the
severity of the claimant’s mental impairments.
The court finds that the Appeals Council failed to adequately consider this new, material,
and chronologically relevant medical evidence submitted to it after the ALJ’s decision. The
court finds that these records undermine the substantial evidence supporting the ALJ’s decision
and warrant a reversal and remand under sentence four.

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Other Concerns
The court is concerned about the ALJ’s failure to articulate specific reasons for rejecting
and giving no weight to the opinions of consultative examiners Dr. Hutto and Dr. Bentley. The
ALJ said their opinions were inconsistent with their own findings, but failed to give any
explanation as to the inconsistencies to which the ALJ referred. The court questions whether any
inconsistencies exist that would warrant outright rejection of their opinions. Likewise, the ALJ
failed to articulate specific reasons why he found Dr. Williams’ opinion that the claimant would
miss one to two days of work per month because of her mental impairments inconsistent.
Ignoring a doctor’s opinion as inconsistent with no explanation is insufficient. On remand, the
ALJ should articulate specific reasons for rejecting those opinions as inconsistent.
The court is also concerned about the ALJ’s disregard of NP Cost’s opinions regarding
her treatment of the claimant for many years and knowledge of the extent of her physical and
mental impairments. The ALJ simply disregarded NP Cost’s opinion because she is a “nurse”
and not an acceptable medical source and because she previously worked with the claimant. The
ALJ incorrectly referred to NP Cost as a “nurse”—she is actually a nurse practitioner who can
prescribe medication. 5 Moreover, neither of those reasons gives the ALJ the freedom to simply
disregard everything NP Cross said about the claimant’s medical history and limitations. The
ALJ failed to consider NP Cost’s opinion as evidence of “other sources” that can give insight
into the severity of the claimant’s impairments and how they affect her ability to work. See 20

5

The court notes that for claims filed after March 27, 2017, a nurse practitioner is an
“acceptable medical source.” See 20 C.F.R. § 416.902(a)(7) (listing as an “Acceptable medical
source” a “Licensed Advanced Practice Registered Nurse, or other licensed advanced practice
nurse with other title, for impairments within his or her licensed scope of practice”).
27

C.F.R. § 404.1513(d). On remand, the ALJ should carefully evaluate NP Cross’s statements and
their consistency with the other evidence of record from acceptable medical sources.
VII. CONCLUSION
For the reasons stated above, this court concludes that the decision of the Commissioner
is due to be REVERSED and REMANDED.
The court will enter a separate Order in accordance with the Memorandum Opinion.
DONE and ORDERED this 20th day of March, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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