Dearmond v. Astrue

Filing 25

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be REVERSED and that this action be REMANDED for further action not inconsistent with the Orders of this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 2/29/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KAREN S. DEARMOND,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0244-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (Docs. 1, 16).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 22).
argument was heard on February 27, 2012.

Oral

Upon consideration of

the administrative record, the memoranda of the parties, and
oral argument, it is ORDERED that the decision of the
Commissioner be REVERSED and that this action be REMANDED for
further action not inconsistent with the Orders of this Court.
This Court is not free to reweigh the evidence or
1

substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative decision, Plaintiff was
fifty years old, had completed high school as well as a business
college educational course for legal secretaries (Tr. 36), and
had previous work experience as an office assistant to a
property tax collector (Doc. 24, Fact Sheet).

In claiming

benefits, Dearmond alleges disability due to injuries suffered
in a motor vehicle accident (Doc. 24, Fact Sheet).
The Plaintiff filed an application for disability insurance
benefits on October 11, 2006 (Tr. 92-96; see also Tr. 16).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although she could not
perform her past relevant work, Dearmond was physically capable
2

of performing specified jobs in the light and sedentary ranges
of work (Tr. 16-29).

Plaintiff requested review of the hearing

decision (Tr. 9-12) by the Appeals Council, but it was denied
(Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Dearmond

(1) The ALJ did not properly consider the

opinions of her treating physician; (2) the ALJ did not properly
consider her nonexertional impairments of pain and fatigue; and
(3) she does not have the ability to perform the jobs which the
ALJ found she could do (Doc. 16).
and denies—these claims (Doc. 19).

Defendant has responded to—
The relevant medical

evidence of record follows.
Plaintiff was admitted to Thomas Hospital on February 2-5,
2006 for an anterior cervical decompression and fusion of the C3
through C7 to aid in the relief of persistent neck, right
shoulder, and arm symptoms (Tr. 181-87).

It was noted that she

had degenerative disk disease of the cervical spine with
corresponding nerve root impingement and a radiculopathic
component.
medication.

Dearmond was stable on discharge with pain
Over the next several months, outpatient records

from the hospital revealed a normal brainstem auditory-evoked
3

response, a normal EEG, and a negative MR of the brain; an MRI
of the lumbar spine showed central disc protrusions at L4-5 and
L5-S1, with bilateral foraminal narrowing at L5-S1 (Tr. 188-91).
Dr. Paul Canale, of Baldwin Bone & Joint saw Dearmond on
June 13, 2006 and noted that although she still had some neck
pain, it was vastly improving following surgery (Tr. 231; see
generally Tr. 226-31).

He further noted that her neurovascular

status was intact distally in both upper extremities; a c-spine
series showed anterior cervical plates in good alignment from C3
through C7 with evidence of bone graft and bony growth within
the vertebral disc spaces.

On August 8, Canale noted that

Dearmond could quit wearing her Miami J-style collar but could
continue wearing the bone growth stimulator; she was to resume
physical therapy and could return to driving and other
activities as tolerated (Tr. 230).

On August 30, the doctor

noted that Plaintiff had suffered a recent fall and had bruising
on the arms, shoulders, and back; nevertheless, she had 5/5
strength in her extremities and that sensation was intact (Tr.
227).

Radiographs revealed that there had been no damage to the

fusion.

On October 4, Canale noted that the fusion site was

essentially healed and that Dearmond could return to her usual
activities; he further noted that she was still having carpal
4

tunnel symptoms on the right and that he would replace the
splint that she had lost (Tr. 226).
On September 26, 2006, Dr. Daniel K. Stubler, a
Neurologist, examined Plaintiff whose blood pressure was 98/70;
motor strength was 5/5 (Tr. 223-24, 287).

Deep tendon reflexes

were 2/4 throughout; sensory examination revealed some positive
Tinel’s sign of the right carpal tunnel and cubital tunnel on
the right and negative on the left.
impression was:

Gait was normal.

Stubler’s

(1) most likely encephalopathy related to

depression and stress; (2) post-concussive headache syndrome,
history of fibromyalgia and vertigo; (3) left lumbar radiculitis
as well as cervical radiculitis status post cervical surgery;
and (4) probable right carpal tunnel syndrome as well as right
cubital tunnel syndrome.

The doctor prescribed a low fat and

low cholesterol diet.
Notes from Dr. Daren A. Scroggie, a Rheumatologist, on
January 13, 2006 show that Plaintiff was about to undergo
surgical back fusion to relieve muscle spasm and pain; he talked
with her extensively about fibromyalgia and its chronic nature,
managed with medication and exercise (Tr. 248; see generally Tr.
237-51, 292).

He prescribed sleep medication.

On the next

visit, on March 20, Scroggie noted that she was in no acute
5

distress but that there was limited lateral flexion and rotation
in her neck and that extreme range of motion (hereinafter ROM)
produced pain; he also noted tender paracervical musculature
with spasm (Tr. 245).

Scroggie noted that Dearmond was

recovering well from her fusion surgery and needed less pain
medicine; he talked with her again about fibromyalgia.

On

August 3, the doctor stated that although Plaintiff was in no
acute distress, she had pain on palpation at multiple
tenderpoints; he further noted that her pain had not responded
to conservative measures and that he would try some compounded
cream (Tr. 242).

Scroggie prescribed Ambien1 for sleep and

Klonipin2 for anxiety (Tr. 243).

On October 25, the doctor noted

limited abduction and positive impingement signs in the left
shoulder, resulting from a recent fall; he also noted positive
Phalen’s and Tinel’s signs in her wrists (Tr. 239).

Dearmond

was encouraged to wear wrist braces at night and to avoid
precipitating activity; he discontinued her Percocet3

1

AmbienError! Main Document Only. is a class four narcotic used
for the short-term treatment of insomnia. Physician's Desk Reference
2799 (62nd ed. 2008).
2
Klonopin is a class four narcotic used for the treatment of
panic disorder. Error! Main Document Only.Physician's Desk Reference
2732-33 (62nd ed. 2008).
3
Percocet is used for the relief of moderate to moderately
severe pain. Error! Main Document Only.Physician's Desk Reference
1125-28 (62nd ed. 2008).

6

prescription and prescribed Oxycodone4 (Tr. 240).
On November 6, 2006, Orthopedist Canale noted that
Plaintiff had recently fallen, injuring her neck and shoulder;
he noted improvement and that x-rays showed that her fusion had
not been damaged in the fall (Tr. 295).

A month later, Canale

noted that Dearmond had limited ROM throughout all planes as
well as a positive Hawkins’s sign; Plaintiff was very tender to
palpation over the AC joint and had a positive empty can sign
(Tr. 294).

X-rays showed her left shoulder was within normal

limits; he gave her an injection, in the left shoulder, of
Celestone and Marcaine.
On December 5, 2006, Neurologist Stubler reported that
Dearmond was walking on her own and that her motor strength was
5/5; sensory examination was intact (Tr. 302-03; see generally
Tr. 297-303).

He noted some positive Tinel’s sign of the right

carpal tunnel and cubital tunnel on the right and negative on
the left.

Stubler’s impression was 1) most likely

encephalopathy; (2) post-concussive headache syndrome; (3) left
lumbar radiculitis as well as cervical radiculitis; and (4)
probable right carpal tunnel syndrome as well as right cubital

4

Error! Main Document Only.Oxycodone is a pure agonist opioid
whose principal therapeutic action is analgesia. Physician's Desk
Reference 2680-81 (62nd ed. 2008).

7

tunnel syndrome; he prescribed Gabitril5 and Wellbutrin.6
Plaintiff saw the doctor again on April 27, 2007 with complaints
of dizziness and depression for which he discontinued the
Wellbutrin and prescribed Antivert (Tr. 300-01).

Stubler

examined Dearmond on August 23 and noted no real changes.

The

next day, the doctor completed a physical capacities evaluation
in which he indicated that Plaintiff was capable of sitting for
one hour at a time and two hours during an eight-hour day; she
could stand and walk for one hour, each, during an eight-hour
day (Tr. 284).

It was Stubler’s opinion that Plaintiff could

lift up to ten pounds occasionally and carry up to five pounds
on an occasional basis; she was not capable of using either hand
or leg controls.

Dearmond would never be able to bend, squat,

crawl, or climb, but could reach occasionally.

The doctor

indicated that she was moderately limited in her ability to work
at unprotected heights and driving automobile equipment and
mildly limited in being around moving machinery.

Stubler also

completed a pain questionnaire in which he found her to suffer
pain to such an extent as to be distracting from performing her
daily activities; he thought that physical activity would

5

Gabitril is an anti-epilepsy drug. Error! Main Document
Only.Physician's Desk Reference 2352-53 (62nd ed. 2008).
6
Error! Main Document Only.Wellbutrin is used for treatment of

8

greatly increase her pain (Tr. 285-86).

The doctor thought that

medication would cause to her to suffer some side effects but
that they would not be serious.

On November 21, 2007, the

doctor noted that Dearmond said she was exercising more and was
undergoing hormonal changes; his examination and diagnostic
impression was, essentially, the same as previous visits (Tr.
298).

On February 20, 2008, Dr. Stubler’s examination and

impression showed no real changes (Tr. 297).
On December 28, 2006, Rheumatologist Scroggie noted that
Plaintiff was in no acute distress, but that she had limited
lateral flexion and rotation in her neck and that extreme ROM
produced neck pain; she also had tender paracervical musculature
with spasm (Tr. 320-22; see generally Tr. 310-22).

The doctor

noted normal ROM in all shoulder planes with multidirectional
instability though there was no tenderness to palpation of the
subacromial bursa; he diagnosed fibromyalgia and depression
which had improved.

Scroggie further noted degenerative changes

in Plaintiff’s neck as well as pain and muscle spasm for which
he continued physical therapy stretching exercises and
relaxation techniques; he continued her prescription for
oxycodone.

On April 13, 2007, the doctor did not note the neck

depression.

Physician's Desk Reference 1120-21 (52nd ed. 1998).

9

limitations of the prior visit; otherwise, the examination and
his diagnostic impression were the same (Tr. 317-19).

On June

18, Dr. Scroggie reported pain on palpation of multiple
tenderpoints; he otherwise, noted that she was not completely
responding to opioid analgesia, so he added Namenda7 (Tr. 31416).

On October 30, the doctor found that Dearmond’s neck had

limited lateral flexion and rotation with extreme ROM producing
neck pain; he further noted tender paracervical musculature with
spasm and pain on palpation at multiple tenderpoints (Tr. 31113).

The Rheumatologist’s impression was the same as previously

noted.
On July 17, 2008, Orthopedic Surgeon Dr. William A.
Crotwell, III examined Plaintiff who could flex her knees Indian
style:

“She brings her knees up to her chest, flexing them 130

to 140 degrees at the knees and bringing the knees up to her
chest with no problems, rocking back and forth, moving without
any problems” (Tr. 332; see generally Tr. 331-34).

Toe and heel

walk was fairly normal; forward flexion only 30 to 40 with poor
attempt.

“Extension only 10 percent and after just seeing her

flex more than 150 degrees, she could only flex 10 percent this

7

Namenda is used for the treatment of moderate to severe dementia
of the Alzheimer’s type. Error! Main Document Only.Physician's Desk
Reference 1181-85 (62nd ed. 2008).

10

time, so this is definitely inconsistent” (id.).

Crotwell noted

no tenderness over the paraspinous areas and the L5-S1
generally, but none over the lumbar spine; sensory exam was
spotty over the lower extremities.

Motor was 5/5; straight leg

raise was ninety degrees with no pain sitting while straight leg
raise, while lying down, was ninety degrees with increased pain
on the right and left with plantar flexion.

There was “[n]o

change with dorsiflexion on the right and slightly increased
with dorsiflexion on the left, which is again inconsistent”
(id.).

Plaintiff had hyperextension of both elbows about ten

degrees, full flexes, supination, and pronation; Dearmond
complained of tenderness in general over both the medial and
lateral epicondyles.

In the cervical spine, she had forward

flexion of fifty percent, extension of forty percent, and
lateral motion of fifty percent; “[s]ensory was totally
decreased in the right arm over no dermatome with some very
strange, spotty changes” (id.).

Grip strength was normal.

Crotwell’s impression was that she had post-operative cervical
fusion C3 through C7 with no radiculopathy at the present time;
he further noted a history of elbow pain, a history of carpal
tunnel syndrome, a history of lumbar pain, and a history of knee
pain, though he found no objective evidence of any of these.
11

This is the conclusion of the evidence reviewed by the ALJ.
It should be noted that "[a] reviewing court is limited to [the
certified] record [of all of the evidence formally considered by
the Secretary] in examining the evidence."
760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry v. Heckler,

However, “new evidence

first submitted to the Appeals Council is part of the
administrative record that goes to the district court for review
when the Appeals Council accepts the case for review as well as
when the Council denies review.”

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).
However, “when the [Appeals Council] has denied review, we will
look only to the evidence actually presented to the ALJ in
determining whether the ALJ’s decision is supported by
substantial evidence.”

Falge v. Apfel, 150 F.3d 1320, 1323 (11th

Cir. 1998), cert. denied, 525 U.S. 1124 (1999).
In examining the action at hand, the Court notes that the
Appeals Council denied review of the additional evidence (Tr. 14).

The Court further notes that Plaintiff is claiming that the

ALJ’s decision is not supported by substantial evidence and is
not challenging the Appeals Council’s decision to deny review of
the new evidence (Docs. 1, 16).
review the new evidence.

Therefore, this Court need not

Falge, 150 F.3d at 1324.
12

The Court

will limit its review of the evidence to the same evidence that
the ALJ considered.
Dearmond claims that she does not have the ability to
perform the jobs which the ALJ found she could do (Doc. 16, pp.
18-20).

The Court notes that, based on questions asked of the

vocational expert (hereinafter VE), the ALJ determined that
Dearmond had the ability to perform the jobs of surveillance,
system monitor, parking lot attendant, and gate guard (Tr. 2829).
The ALJ’s specific questions to the VE were as follows:

Q If I were to assume a hypothetical
individual who has similar age, education
and past work history as Ms. Dearmond and
we’re to assume that this individual retains
the residual functional capacity to perform
light work, they could return to both of
those positions?
A

Yes, ma’am.

Q And if I were to find sedentary work
that she could – they could not return to
those positions?
A

Yes, ma’am, that’s correct.

Q And if I were to also assume that
they could – further assume that they – that
such a person could perform light work
activity as that’s defined in the Dictionary
of Occupational Titles, but they would need
an option to sit or stand to relieve pain,
would there be positions that the person
13

could perform? And that they would also
need simple, one to two-step tasks.
A There would be some positions that
would be available that would be sit/stand
option type jobs that would be in the light
category. Some examples of those would be
parking lot attendant, which would be DOT
code 915.473-010. And –
Q

Numbers?

A There’s 48,000 in the nation and
about 850 in the state.
Q There would be a surveillance system
monitor, which is DOT code 379.367-010.
There’s about 50,000 in the nation, 1,000 in
the state of Alabama.
Q

Okay.

A There would be gate guard, which is
DOT code – 372.667-030. And there’s 100,000
in the nation, 2,000 in the state.

(Tr. 52-53).

The Court notes that, according to the DOT, the

surveillance system monitor is a sedentary position while
parking lot attendant and gate guard are both light jobs.

See

http://www.occupationalinfo.org/.
The Court notes that the ALJ determined that Dearmond had
the ability to perform a limited range of light work.
specifically, the ALJ found that

the claimant’s capacity for a “full range”
of light work in inhibited by the need to
14

Even more

avoid lifting and carrying of greater than
15 pounds, sit and stand at her option every
1 to 2 hours to help alleviate some credible
mild symptoms, and remember, understand, and
carry out more than simple work one and two
step work tasks.

(Tr. 26-27).
The Court finds that the ALJ’s finding of Plaintiff’s
residual functional capacity (hereinafter RFC) is inconsistent
with the hypothetical questions posed of the VE.

Specifically,

although the ALJ’s hypothetical included the option to stand or
sit and the need for one-to-two step instructions, the ALJ
specified light work as it’s defined in the DOT (Tr. 53).

Light

work, under the social security regulations, specifically allows
for lifting up to twenty pounds.

20 C.F.R. § 404.1567(b)

(2011).
The ALJ’s RFC is inconsistent with the questions posed to
the VE.

The Eleventh Circuit Court of Appeals has held that an

ALJ's failure to include severe impairments suffered by a
claimant in a hypothetical question to a VE to be reversible
error where the ALJ relied on that expert's testimony in
reaching a disability decision.
1561 (11th Cir. 1985).

Pendley v. Heckler, 767 F.2d

Although the ALJ’s error in this action

was not the failure to include severe impairments, the failure
15

to properly present Dearmond’s RFC to the VE is no less serious.
With this finding, the Court cannot say that the VE’s—and,
therefore, the ALJ’s—conclusion that Plaintiff is capable of
performing the jobs of parking lot attendant and gate guard is
supported by substantial evidence as they are both light work
jobs.

As far as the other job, the Court notes that the DOT

sets out the requirements for surveillance system monitor as
follows:

Monitors premises of public transportation
terminals to detect crimes or disturbances,
using closed circuit television monitors,
and notifies authorities by telephone of
need for corrective action: Observes
television screens that transmit in sequence
views of transportation facility sites.
Pushes hold button to maintain surveillance
of location where incident is developing,
and telephones police or other designated
agency to notify authorities of location of
disruptive activity. Adjusts monitor
controls when required to improve reception,
and notifies repair service of equipment
malfunctions.
GOE: 04.02.03 STRENGTH: S GED: R3 M1 L3 SVP:
2 DLU: 86

see http://www.occupationalinfo.org/37/379367010.html.

This is

relevant because Plaintiff has directed the Court’s attention to
another inconsistency in the ALJ’s opinion.

Specifically, in

reporting the findings by Dr. Crotwell, the ALJ stated as
16

follows:

“[t]he claimant was considered able to only

occasionally (not frequently or repetitively) utilize her hands
to grasp or push and pull, i.e. with excessive twisting and
turning or repetitive overhead activities ruled out completely”
(Tr. 26).

Dr. Crotwell actually found that Dearmond could never

use her hands for pushing and pulling of arm controls or simple
grasping (Tr. 334).

This casts doubt on her ability to perform

the job of surveillance systems monitor as the DOT states that
it requires the ability to “[p]ush[] hold button to maintain
surveillance of location where incident is developing.”

While

this is a small thing—and might actually be an insignificant
difference—the Court is not in a position to make that finding.8
It does find, however, that the ALJ’s conclusions cannot be
found to be supported by substantial evidence.
Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding what work Plaintiff can perform.
will be entered by separate Order.

8

Judgment

For further procedures not

The Court notes that Plaintiff has also asserted that as she was
fifty years old at the time of the ALJ’s decision, a finding that she
was capable of performing only unskilled sedentary work would mean

17

inconsistent with this recommendation, see Shalala v. Schaefer,
509 U.S. 292 (1993).
DONE this 29th day of February, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

that she was disabled under the GRID (see Doc. 16, p. 20).
will not, however, reach that question in this decision.

18

The Court