Dale v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further procedures not inconsistent with the Orders of the Court, as further set in order. Signed by Magistrate Judge Bert W. Milling, Jr on 1/6/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JERMESHIA M. DALE,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 14-0227-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 12-13).
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. 20).
argument was waived in this action (Doc. 19).

Oral

After considering

the administrative record and the memoranda of the parties, it
is ORDERED that the decision of the Commissioner be REVERSED and
that this action be REMANDED for further procedures not
inconsistent with the Orders of the Court.

1

This Court is not free to reweigh the evidence or
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 hearing, Dale was twentyeight years old, had completed two years of education (Tr. 43),
and had previous work experience as a short order cook, steward,
waitress, cashier and teacher’s aide (see Tr. 58).

In claiming

benefits, Plaintiff alleges disability due to degenerative disc
disease of the lumbar spine, cervicalgia, asthma, hypertension,
obesity, and headaches (Doc. 12 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on March 14, 2011, alleging a disability onset date of
December 27, 2010 (Tr. 132-45; see Tr. 19).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that although Dale could not return to her past
relevant work, there were specific light work jobs that she

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could perform (Tr. 19-30).

Plaintiff requested review of the

hearing decision (Tr. 8) by the Appeals Council, but it was
denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
the following:

Specifically, Dale alleges

(1) The Appeals Council failed to properly

consider newly-submitted evidence; Plaintiff further alleges
that the ALJ did not properly consider (2) the conclusions of
her treating physician; (3) her pain and the effects of her
medications; and (4) her own testimony (Docs. 12, 13).
Defendant has responded to—and denies—these claims (Doc. 15).
The relevant1 evidence of record follows.
On October 26, 2010, Dale went to Tri-County Medical Center
in Atmore for low back pain for more than two months that she
rated as nine on a ten-point scale; she had also had headaches
twice a week for several months (Tr. 236).

The doctor noted no

tenderness in the lumbosacral area; gait was normal and straight
leg raising was normal.

Amitriptyline,2 Mobic,3 and Lortab4 were

1Plaintiff’s alleged date of disability is December 27, 2010 (see

Tr. 19), so the Court will not review herein the evidence that predates that by more than several months. Likewise, the Court notes
that Dale has not challenged the ALJ’s finding that she has no severe
mental impairment, so the Court will not review that evidence.
2Error!
 Main
 Document
 Only.Amitriptyline, marketed as Elavil, is

used to treat the symptoms of depression. Physician's Desk Reference
3163 (52nd ed. 1998).
3Mobic is a nonsteroidal anti-inflammatory drug used for the

relief of signs and symptoms of osteoarthritis and rheumatoid
arthritis. Physician's Desk Reference 855-57 (62nd ed. 2008).

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prescribed.
On December 15, 2010, a doctor with the Atmore Family
Medicine determined that Dale had spinal stenosis of the lumbar
region and prescribed ultram5 (Tr. 241).

An MRI of the lumbar

spine confirmed the diagnosis on March 22, 2011 (Tr. 245).
On March 15, 2011, (Tr. 252-55), Plaintiff went to North
Baldwin Hospital complaining of chronic back pain that was worse
with movement and relieved by nothing; decreased range of motion
(hereinafter ROM) was noted although motor skills, sensation,
and reflexes were normal.

The assessment was chronic,

lumbosacral strain.
On June 20, 2011, Dr. David Fairleigh examined Dale for
lower extremity back pain that she rated as nine (Tr. 311-14).
Fairleigh noted Plaintiff to be in no acute distress with very
slow, guarded, gait, though it was non-antalgic; she was guarded
when moving from a sitting to standing position.

There was some

limitation of movement “in all planes of flexion, extension,
lateral bending and rotational movements to the low back area”
(Tr. 313).

Sensory was symmetrical and intact; motor strength

was full in all muscle groups while motor strength reflexes were

4Lortab is a semisynthetic narcotic analgesic used for “the

relief of moderate to moderately severe pain.” Physician's Desk
Reference 2926-27 (52nd ed. 1998).
5Ultram is an analgesic “indicated for the management of moderate

to moderately severe pain.” Physician's Desk Reference 2218 (54th ed.
2000).

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reduced to the lower extremities.
and Flexeril6.

The Doctor prescribed Talwin

On July 1, 2011, Fairleigh found Dale in mild

distress and discomfort, noting that palpation was tender in the
facet joints, sacroiliac joints, and paraspinous muscles; he
gave her an injection (Tr. 309-10).
On July 12, Dr. Sid Crosby examined Dale for moderate
ongoing low back pain; on examination, the Doctor noted that
Plaintiff was obese and appeared to be uncomfortable and in pain
(Tr. 322-24).

Dale was re-prescribed Ultram, Flexeril, and

Talwin and was referred to physical therapy.

Three days later,

Crosby saw Plaintiff for an ingrown, infected toenail for which
he prescribed Keflex7; back pain was listed as a chronic disease
but nothing more was stated about it (Tr. 319-21).

On July 18,

a Therapist indicated that Dale’s ability to stand, walk, and
squat was 40% while bending was only 20%; the Therapist further
indicated that Plaintiff’s ROM was 50% on flexion, extension,
and right side bending while it was only 25% on left side
bending (Tr. 325-26).
recommended.

Twelve physical therapy sessions were

On July 27, Dr. Crosby noted Dale’s assertion that

therapy had helped her pain; he noted that while she was in no
acute distress, there was tenderness in the upper lumbar area

6Flexeril is used along with “rest and physical therapy for

relief of muscle spasm associated with acute, painful musculoskeletal
conditions.” Physician's Desk Reference 1455-57 (48th ed. 1994).
7Error!
 Main
 Document
 Only.Keflex is used for the treatment of

various infections. Physician's Desk Reference 854-56 (52nd ed. 1998).

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and Plaintiff had decreased ROM (Tr. 315-18).
On August 25, 2011, Dr. Fairleigh noted that Plaintiff had
difficulty arising from a sitting position; the diagnosis was
lumbar spondylosis and back and lower extremity pain (Tr. 346).
Dale denied seeing multiple physicians to obtain narcotics; a
urine drug screen showed no inappropriate medication abuse.
Medical notes on September 23 from West Florida Orthopedics
indicate that Dale had been referred by Dr. Fairleigh for back
and bilateral leg pain (Tr. 327-32).

Plaintiff was in no acute

distress and had full strength in all lower extremity motor
groups; she had “a global stocking-like decrease in fine touch
on the right;” straight leg raise was positive on the right (Tr.
329).

Dale’s back anatomy was normal; ROM was not tested.

Based on an MRI study, the Doctor diagnosed “right paracentral
L4-L5 HNP with right greater than left lateral recess stenosis
and foraminal stenosis on the right, back pain greater than leg
pain;” he indicated that surgery might be indicated after
further testing (Tr. 329).
Physical Therapy records from October 18 note Dale’s
compliance with her exercise activities and an acknowledgment of
fifty percent improvement; the Therapist noted Plaintiff’s
improvement in walking, sitting, standing, squatting, and
bending (Tr. 361).

The Therapist noted a decrease in trunk

flexion ROM, but progress overall.

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On October 24, Dr. Crosby noted tenderness in the midline
lumbosacral region; straight leg raise was negative and ROM was
normal (Tr. 355-357).
On November 17, 2011, Dr. Fairleigh noted that Dale arose
from a seated position with difficulty; she had an antalgic gait
(Tr. 344).

ROM was limited and diffusely tender.

The Doctor’s

diagnosis was spondylosis for which he recommended lumbar
discography; Dale was strongly urged to quit smoking (Tr. 345).
On January 29, 2012, Plaintiff went to the Jackson Medical
Center Emergency Room in mild distress for left shoulder and
neck pain; she had decreased ROM in the shoulder (Tr. 334-41).
Reflexes and finger grip were equal bilaterally in the upper
extremities; as she was pregnant, Dale was told to take Tylenol
extra strength and was given a prescription for Flexeril.
On March 5, Dr. Crosby’s lumbar examination of Plaintiff
showed normal palpation, negative straight leg raise, and normal
ROM (Tr. 352-54).
On March 12, Dr. Fairleigh noted that Dale had difficulty
arising from a seated position and had an antalgic gait; ROM was
limited and there was increased tone and trigger points over the
splenius cervicis, upper trapezius, and levator scapulae muscle
groups (Tr. 343).
upper extremities.

Motor and sensory exam were normal in the
An injection was given; it was noted that

the discography would have to wait as she was pregnant.

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Radiological exams demonstrated mild cervical kyphosis from C2
through C4 though the cervical vertebral body and intervertebral
disc heights were well-maintained (Tr. 347).
On April 4, 2012, Physical Therapy records note Dale’s
claim of increased pain—rated as six—in her back and shoulder
because of her pregnancy; however, right leg pain had decreased
and movement was better (Tr. 358-59).
aggravated the pain.

Bending and reaching

The Therapist noted that Plaintiff’s ROM

was improved in her trunk and left shoulder; she also had
increased movement in her shoulder and hips.

Nevertheless, the

Therapist thought that another month of therapy was required.
On July 20, Dr. Priscilla Durand-Mitchelle noted
Plaintiff’s complaints of blurred vision, an inability to hold
things, and muscle spasms, especially when driving; her back
pain registered at eight on good days and ten on bad days and
the pain medications provided no relief (Tr. 348-50).

The

Doctor noted that Dale was positive for paresthesias in her
hands and feet; she had full ROM with pain on forward flexion of
her neck.

Durand-Mitchelle further noted no clubbing, cyanosis,

or edema of the lower extremities with full ROM and normal gait.
On August 20, Dr. Durand-Mitchelle examined Dale, finding
her in no acute distress; she noted that her neck was nontender
to palpation (Tr. 363-64).

The Doctor’s musculoskeletal

evaluation demonstrated no clubbing, cyanosis, or edema of the

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lower extremities; her diagnosis was hypertension, muscle spasm,
tobacco use disorder, and cervicalgia.

On that same date,

Durand-Mitchelle completed a pain questionnaire in which she
indicated that Dale’s pain would frequently distract her from
adequately performing work activities (Tr. 362).

The Doctor

further indicated that medication side effects could be expected
to be severe and limit Plaintiff’s effectiveness in performing
work-related activities.

The Doctor also completed a physical

capacities evaluation indicating that Plaintiff was capable of
sitting for one hour and standing/walking for one hour at a time
and could sit for four hours and stand/walk for two hours during
an eight-hour workday (Tr. 368).

Dale could lift and carry ten

pounds frequently and twenty pounds occasionally, but never more
than that.

She was capable of using her hands for simple

grasping, fine manipulation, and the pushing and pulling of arm
controls; likewise, she could use both feet in repetitive
movements in pushing and pulling leg controls.

On occasion,

Plaintiff could bend, squat, and reach, but she could never
crawl or climb.
At the evidentiary hearing, Dale testified that she was the
mother of three children, ranging from two months old to eight
years old, and that she lived with her parents (Tr. 41-42; see
generally Tr. 41-56, 62-64).

Plaintiff’s parents or aunt cared

for her baby and got the other two children ready for school

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most of the time because she was unable to do so (Tr. 62-64).
At the hearing, Dale was wearing an air cast on her right ankle
for a sprain (Tr. 43).

Plaintiff last worked for a month,

twenty months earlier, as a cook but had to quit because she
could not get out of bed or stand up without assistance (Tr.
45).

Dale stated that she could not work because of bad

headaches with blurry vision; painful muscle spasms in her back,
radiating into her arms and legs, caused her to drop things (Tr.
42, 48).

She said that her pain was constant but was really

sharp half of the time (Tr. 49).

Plaintiff testified that her

medications—Flexeril, Lyrica, Zoloft, Tramadol, and Talwin—
caused her to sleep several hours after taking them; her
medicines were mostly ineffective except when she slept (Tr. 4850, 56).

Dale would resort to lying down, propping her upper

body up, and using a heating pad to alleviate the pain; she had
to lie down about five hours every day (Tr. 50, 56).

Plaintiff

testified that she could walk for ten minutes, stand for ten
minutes, and sit for thirty minutes (Tr. 50).

Dale has no

problems getting along with people, though she tended to stay to
herself (Tr. 51).

Plaintiff was unable to perform household

chores and relied on her mother to do them (Tr. 52).

Dale

occupied her time with reading and watching tv; she had isolated
herself because of her pain (Tr. 53-55).
This concludes the Court’s review of the evidence.

10

In bringing this action, Dale first claims that the Appeals
Council failed to properly consider newly-submitted evidence
(Doc. 13); Defendant has argued that the evidence should not be
considered (Doc. 15, pp. 2-5).

The evidence appears in the

record at Doc. 13, pp. 4-8.
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."
v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry

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).

Under

Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed
to consider, if such a claim is made, whether the Appeals
Council properly considered the newly-submitted evidence in
light of the ALJ’s decision.

To make that determination, the

Court considers whether the claimant “establish[ed] that:

(1)

there is new, noncumulative evidence; (2) the evidence is
'material,' that is, relevant and probative so that there is a
reasonable possibility that it would change the administrative
result, and (3) there is good cause for the failure to submit

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the evidence at the administrative level."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
In examining the action at hand, the Court notes that the
Appeals Council denied review of the additional evidence,
returned it to Dale, and indicated that the evidence could be
used in filing a new claim (Tr. 2).

The Appeals Council

determined that the medical information submitted was generated
following the ALJ’s decision of September 14, 2012 and did not
related to the period preceding that date (Tr. 2).
The Court notes that an MRI of the cervical spine performed
on October 22, 2012 at Atmore Community Hospital revealed the
following medical evidence and impression:
There is mild desiccation of the C3 to C7
discs with some mild disc protrusion at C3-4
and C4-5 displacing the CSF anterior to the
cord. The spinal canal is relatively
narrowed from C3 to C6 and this is most
likely congenital. There is protrusion
right posterolateral [sic] into the right
neural foramen of C3-4 causing moderate
right neural foraminal stenosis and
bilaterally posterolaterally at C4-5 with
there being mild to moderate neural
foraminal stenosis. The other disc spaces
shows [sic] no abnormality. The spinal cord
is normal in size and intensity pattern.
IMPRESSION: Mildly narrowed spinal canal
from C3 to C6 with mildly protruding discs
at C3 to C5 with both areas displacing the
CSF anterior to the cord and there is right
neural foraminal stenosis of moderate degree
of C3-4 and bilaterally of mild to moderate
degree at C4-5.

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(Doc. 13, p. 8).
The Court notes that this is the first MRI of the cervical
spine completed in this medical record.

However, Dale first

complained of neck pain and decreased ROM in her left shoulder
in January 2012 at the Emergency Room for which she received
Flexeril (Tr. 334-41).

In March, Dr. Fairleigh noted limited

ROM and increased tone and trigger points over the splenius
cervicus, upper trapezius, and levator scapulae muscle groups
for which she was given an injection (Tr. 343); x-rays
demonstrated mild cervical kyphosis from C2 through C4 (Tr.
347).

In April, a Physical Therapist noted that Dale did not

have full ROM in her shoulder and recommended further therapy
(Tr. 358-59).

In July, Dr. Durand-Mitchelle found paresthesias

in Dale’s hands and feet; she had full ROM with pain on forward
flexion of her neck (Tr. 348-50).

The next month, Durand-

Mitchelle diagnosed Plaintiff to have cervicalgia (Tr. 363-64).
The Court finds that the three-prong standard has been met.
The first prong is satisfied because the evidence is new and
provides evidence of an impairment already asserted.

The second

prong is met because there is a reasonable possibility the ALJ
would change her opinion of Dale’s impairment and her complaints
of pain and limitation; the Court cannot—and will not—find that
this new evidence mandates a disability finding, but it does

13

warrant additional consideration.

The third prong is satisfied

because the evidence did not exist at the time the ALJ rendered
her decision.

Though the Appeals Council considered the

evidence, it determined that it was not new evidence that should
be considered by the ALJ; that decision was wrong.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not 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 additional evidence.

For further procedures not inconsistent

with this recommendation, see Shalala v. Schaefer, 509 U.S. 292
(1993).

Judgment will be entered by separate Order.

DONE this 6th day of January, 2015.

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

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