Everett v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record, the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 10/8/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HEATHER M. EVERETT,

:
:
:
:
:
:
:
:
:
:

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

CIVIL ACTION 14-0573-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 denying a
claim for disability insurance benefits (Docs. 1, 10).

The

parties filed written consent and this action was referred to
the undersigned Magistrate Judge to conduct all proceedings and
order judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73 (see Doc. 19).
action (Doc. 21).

Oral argument was waived in this

After considering the administrative record,

the memoranda of the parties, it is ORDERED that the decision of
the Commissioner be AFFIRMED and that this action be DISMISSED.
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.

1

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

Substantial

evidence 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, Plaintiff was
forty-four years old, had completed a high school education (Tr.
190), and had previous work experience as an administrative
assistant, an accounting manager, construction representative,
assistant to the resident engineer, senior inspector, and an
administrative assistant to an engineer (Tr. 194-96).

Plaintiff

alleges disability due to injuries from a motor vehicle accident
and degenerative disc disease (Doc. 10 Fact Sheet).
The Plaintiff applied for disability benefits on March 19,
2012, alleging a disability onset date of February 18, 2011 (Tr.
165, 265-66).

An Administrative Law Judge (hereinafter ALJ)

denied benefits, determining that Everett was capable of
performing her past relevant work as a construction
representative, assistant to the resident engineer, secretary,
account manager, and commercial developer coordinator (Tr. 16576).

Plaintiff requested review of the hearing decision (Tr.

159-61), but the Appeals Council denied it (Tr. 116-21).
Plaintiff claims that the opinion of the ALJ is not

2

supported by substantial evidence.
alleges that:

Specifically, Everett

(1) The ALJ improperly discredited her testimony;

(2) the ALJ failed to properly develop the record; and (3) the
Appeals Council did not properly consider newly-submitted
evidence (Doc. 10).
claims (Doc. 15).

Defendant has responded to—and denies—these
The relevant evidence of record follows.

On July 11, 2011, Covington Multicare Clinic records show
Plaintiff appeared to establish care for hypertension; she had
full range of motion (hereinafter ROM) in her back with no
tenderness (Tr. 354-58).

On July 22, Everett complained of back

pain for five months following a motor vehicle accident; the
pain had gotten worse after discontinuing Naproxen1 (Tr. 359-62).
X-rays revealed mild degenerative changes in the lower lumbar
spine with muscle spasms in the cervical spine, but nothing else
significant (Tr. 341-3; 363-65).

An exam showed full neck ROM

with some trapezius tenderness bilaterally; forward flexion was
slightly decreased in Everett’s back (Tr. 345).

On July 27, a

physical therapy (hereinafter PT) evaluation was completed (Tr.
367-70); PT treatments began two days later and Plaintiff had
nine sessions over a month’s time (Tr. 372-408).
On August 29, 2011, an MRI of the lumbar spine showed mild

1Error!
 Main
 Document
 Only.Naprosyn, or Naproxyn, “is a nonsteroidal

anti-inflammatory drug with analgesic and antipyretic properties”
used, inter alia, for the relief of mild to moderate pain.
Physician's Desk Reference 2458 (52nd ed. 1998).

3

disk bulge at L4-L5, severe thecal sac stenosis at L5-S1, and
severe left-sided and mild right-sided L5-S1 neural foraminal
narrowing (Tr. 340, 410).

On August 31, Everett told her doctor

that her neck pain had improved with PT, though she still had
low back pain radiating into the left leg with some numbness in
that foot at times (Tr. 409-13).
On September 26, records from the Virginia Mason Medical
Center reveal that Plaintiff was examined and found to have some
limited cervical spine ROM though lumbar spine ROM was normal
(Tr. 421-22, 430-32).

On October 4, she had an epidural steroid

injection for her back pain (Tr. 427-30).

On November 15,

Everett had another injection, following a misstep three weeks
earlier, causing her pain to return (Tr. 424-25).
On February 8, 2012, Plaintiff went to a Neurosurgery
Center, complaining of ongoing and continuing buttocks and lower
extremity pain; Dr. Juan F. Ronderos noted normal gait and that
muscle strength, tone, and size were intact and symmetrical in
all four extremities (Tr. 441-45).

Straight leg raising was

positive on the right, producing back and leg pain.

The

Doctor’s assessment was lumbar intervertebral disc without
myelopathy and back pain; an MRI of the lumbar spine, when
compared to a previous study, showed that disc herniation at L5S1 had become significantly more centralized in character and
location.

4

On February 14, 2012, Charla Evans, D.O., saw Plaintiff for
sinus congestion, fever, and shortness of breath; pneumonia was
diagnosed (Tr. 491-92).

On February 27, a chest x-ray of the

heart, lungs, and mediastinum was normal (Tr. 495).
On February 22, Dr. Robert L. White, at Coastal
Neurological Institute, examined Everett for low back pain,
muscle cramps, joint pain, and headaches; it was the first of
three visits during the course of one month (Tr. 470-79).

The

Doctor prescribed Flexeril2 and added a lumbosacral brace on the
second visit (Tr. 473-75, 479).
On March 7, 2012, Everett underwent an interlaminar
epidural at Surgicare of Mobile (Tr. 450-65).
On March 6, 2012, Dr. Todd Engerson, with the Orthopaedic
Group, examined Plaintiff for severe tingling in both hands,
greater on the left; he noted that she was tender over the
extensor origin, but had no evidence of arthritis in any of her
joints (Tr. 466).

Dr. Engerson’s opinion was that Plaintiff had

either cervical radiculopathy or carpal tunnel syndrome.

Six

days later, Dr. Chris Nichols, also with the Orthopaedic Group,
noted that EMG nerve studies completed weeks earlier were
normal; neck ROM was full in all planes (Tr. 467-68).

Everett

2Error!
 Main
 Document
 Only.Flexeril is used along with “rest and

physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).

5

had some shoulder discomfort with abduction, external rotation
but no radicular symptoms in the left arm; she had tenderness in
the pulp of the left thumb.

Tinel’s was provocative in both

median nerves while Phalen’s was a problem bilaterally; Nichols
found evidence of mild bilateral carpal tunnel syndrome.
On May 17, 2012, Orthopedic Engerson noted that Everett’s
carpal tunnel symptoms were better, but she had pain in and
around her left hip; he noted excellent hip ROM with absolutely
no groin pain though she was real tender right on the tip of the
trochanter, gluteal tendon, and over the trochanteric prominence
(Tr. 499).

The Doctor’s impression was gluteal tendinitis and

trochanteric bursitis for which he gave her an injection.
On June 21, Leslie Rush, D.O., at Baldwin Bone & Joint,
examined Plaintiff for left lower extremity pain, radiating into
the buttocks as well as cervical spine and left shoulder pain;
Everett reported that the previous epidural had helped with the
radiating leg pain, but it was still substantial in her back
(Tr. 509-10).

Pain ran to six or seven on a ten-point scale,

though it was three on that day; straight leg raising was
positive on the left, but negative on the right.
strength was intact.

Muscle

Plaintiff had difficulty with extension,

with increased back pain, in standing position; left side
bending caused pain and with combined rotation, it was worse.
Review of the MRI showed significant degenerative disc disease

6

at the L5-S1 level with a large central disc protrusion; there
were early changes at the L4-5 level and also mild facet joint
arthritis.

Surgery versus conservative treatment was discussed;

she had an injection on July 11, 2012 (Tr. 511).

Two weeks

later, Everett returned with continued low back pain, through
the right buttock and into the left leg; she rated her pain as
four or five and said it was aggravated by sitting, standing,
walking, leaning back, and coughing (Tr. 512).

The Doctor again

recommended surgery.
On July 2, D.O. Evans diagnosed Plaintiff to have diabetes
mellitus II, hypertension, and obesity (Tr. 507).
On March 20, 2012, Dr. White treated Everett whose primary
complaint was neck pain, but she also referenced muscle cramps,
joint pain, back pain, stiffness, and muscle aches; the Doctor
noted restricted cervical motion with cervical muscle spasm for
which he recommended traction and a lumbar brace (Tr. 519-22).
On June 14, noting that Plaintiff’ lumbar ROM was eighty percent
of normal, White prescribed Flexeril and Mobic3 for pain (Tr.
523-26).

On July 30, Dr. Edward L. Flute examined Plaintiff for

continuing lumbar spine pain that she rated as severe (Tr. 51518).

On September 19, following bilateral L5-S1 micro lumbar

3Error!
 Main
 Document
 Only.Mobic 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).

7

discectomy two weeks earlier (Tr. 513-14), Everett’s incision
was healing well; she was taking Lortab4 (Tr. 527-30).
On October 22, 2012, Everett reported that her leg pain had
improved but she was still having significant axial back pain
that she rated at six (Tr. 548-51).

Dr. Flotte noted no spinal

deformity or scoliosis with normal posture and gait; she had
normal, full ROM in all extremities.

An MRI showed that the

bilateral laminectomy and partial discectomy at L5-S1 had shown
improvement in Plaintiff’s back though there was scar formation
and mild right and moderate left foraminal encroachment; also,
there was mild central canal narrowing at the L4-5 level (Tr.
536).

On November 1, Plaintiff saw Dr. William B. Faircloth to

get a second surgical opinion; she reported still having
significant left leg, back, and buttock pain (Tr. 543-47).

The

Doctor noted that Everett was wearing a back brace and had pain
over the left sacroiliac joint; sitting straight leg raise was
negative bilaterally.

Toe and heel walking, as well as gait,

were normal; strength in all extremities was normal with no
paraspinal muscle spasm.

Faircloth’s assessment was left

sacroiliitis and thoracic/lumbosacral neuritis/radiculitis for
which he prescribed Lyrica.5

Six days later, Plaintiff had an

4Error! Main Document Only.Lortab is a semisynthetic narcotic

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

Error!

8

injection in the sacroiliac joint (Tr. 542); having had good
results, another injection was given three weeks later (Tr.
541).

On December 13, 2012, D.O. Rush examined Everett for her

low back pain, radiating into the left foot, that she rated at
two; the Doctor diagnosed hip pain and post-laminectomy syndrome
in the lumbar region for which he prescribed Vicodin6 and
Flexeril (Tr. 537-40).

Rush recommended that Everett increase

her activity as tolerated but avoid aggravating activities.

PT

was ordered, consisting of nine sessions over a month’s time,
during which Plaintiff showed improvement with overall lower
extremity strength and her Trendelenburg gait; she still had
weak hip extensors and her symptoms had not improved with stair
climbing and certain transitional activities (Tr. 572-73; see
generally Tr. 571-601).
On January 24, 2013, Osteopath Rush noted that Everett was
“doing much better following her surgery as well as physical
therapy.
610).

Leg pain and radiating symptoms have resolved” (Tr.

She reported that she was still experiencing discomfort

in her left hip and low back with increased activities,
including standing or walking up steps; Rush noted Plaintiff
ambulated very well without any significant antalgic pattern

Main
 Document
 Only.Physician's Desk Reference 2517 (62nd ed. 2008).
6Error!
 Main
 Document
 Only.Vicodin is a class three narcotic used “for

the relief of moderate to moderately severe pain.” Physician's Desk
Reference 1366-67 (52nd ed. 1998).

9

(Tr. 610-13).

She had full internal and external rotation of

the left hip; straight leg raising was unremarkable; the Fabere
maneuver continued to cause discomfort in the anterior hip
joint.

Rush thought Everett was doing “quite well,”

recommending she continue with—and add to—her home exercises and
begin to wean herself off of Lyrica (Tr. 612).

On March 20,

2013, an MRI of the left hip showed that Everett was at risk for
acetabular impingement syndrome though there was no evidence of
advanced degenerative change, avascular necrosis, or acute
traumatic injury (Tr. 609).

Five days later, Rush noted the MRI

and deferred to Everett’s Gynecologist before proceeding with
further treatment (Tr. 606-08).
At the evidentiary hearing, Plaintiff testified that she
stood five foot, six inches and weighed 182 pounds (Tr. 193; see
generally Tr. 191-202).

Everett took medications regularly that

helped some, but not completely; she had talked to her doctors
about the inadequacy of her drugs, but they did not know what to
do about it (Tr. 194).

Plaintiff described her duties in the

work she had performed (Tr. 195-96).

She left her last job

because her husband took a job promotion in another city and, on
the day they were moving, they were involved in a motor vehicle
accident; Everett has not worked since then because she could
not sit or stand for very long (Tr. 197-98).

Plaintiff stated

she could walk for forty-five minutes and could drive but did

10

not out of fear (Tr. 198).

Everett can bathe, dress, and groom

herself; her daughter does most of the housework because
Plaintiff would be in bed for two days if she did it herself
(Tr. 199).

Everett did the grocery shopping, but her husband

pushed the cart and loaded and unloaded them; she could fold
clothes, but did not put them in the washer or dryer (Tr. 199200).

Plaintiff has pain in her back, hip, and into the front

of her thigh and back of her calf; she takes medications, but
they cause drowsiness and sleepiness, so she has to take naps
daily (Tr. 200-01).

Everett would like to work, but it caused

her too much pain (Tr. 202).
The Court will now take up Plaintiff’s claims, the first of
which is that the ALJ improperly discredited her testimony.
More specifically, Everett asserts that the ALJ did not properly
consider her complaints of pain (Doc. 10, pp. 13-18).
The standard by which the Plaintiff's complaints of pain
are to be evaluated requires "(1) evidence of an underlying
medical condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that
condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain."

Holt v. Sullivan,

921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler,
782 F.2d 1551, 1553 (11th Cir. 1986)).

11

The Eleventh Circuit

Court of Appeals has also held that the determination of whether
objective medical impairments could reasonably be expected to
produce the pain was a factual question to be made by the
Secretary and, therefore, "subject only to limited review in the
courts to ensure that the finding is supported by substantial
evidence."

Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.),

vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated
sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986).
Furthermore, the Social Security regulations specifically state
the following:
statements about your pain or other symptoms
will not alone establish that you are
disabled; there must be medical signs and
laboratory findings which show that you have
a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent with the medical signs and
laboratory findings), would lead to a
conclusion that you are disabled.
20 C.F.R. § 404.1529(a) (2015).
Following his summary of the medical evidence, the ALJ made
the following determination:
After careful consideration of the
evidence, the undersigned finds that the
claimant’s medically determinable

12

impairments could reasonable be expected to
cause the alleged symptoms; however, the
claimant’s statements concerning the
intensity, persistence and limiting effects
of these symptoms are not entirely credible
for the reasons explained in this decision.
While the medical evidence of record
reveals that the claimant has DDD of the
lumbar spine, the claimant’s alleged
severity of pain is not supported by
diagnostic tests or objective examinations.7
On October 22, 2012, a MRI of the claimant’s
lumbar spine revealed post-op changes with
improved central canal diameter, mild right
and moderate left foraminal encroachment and
possible scar formation at L5-S1 and mild
central canal narrowing at L4-5 (Exhibit
18F, p. 2). The claimant’s conditions
improved with surgery and the diagnostic
tests post-surgery do not suggest that the
claimant’s DDD is anything greater than
moderate. Moreover, objective examinations,
as fully discussed above, revealed the
claimant had a normal gait, she was negative
for straight leg raising, but she had full
strength in her upper and lower extremities,
her deep tendon reflexes were present and
normal, she had full internal and external
rotation of the hip, manual muscle testing
was normal, fabere maneuver caused some
discomfort, but muscle testing for abduction
and adduction was normal and she had no
neurological deficits (Exhibit 17F, p. 3;
Exhibit 22F, p. 7). These objective and
diagnostic test findings are not consistent
with the alleged incapacitating impairments
and indicate the claimant’s impairments may
not be as severe or debilitating as alleged.
The medical evidence of record revealed

7The Court notes that this paragraph actually begins with the

following language: “In terms of the claimant’s alleged impairments,
he appears to be able to do a range of medium work, as set forth by
the claimant’s residual functional capacity (RFC). This is consistent
with the limitations indicated by the other evidence in this case.”
This language, obviously, was incorrectly inserted into the ALJ’s
determination as it is inconsistent with the balance of his opinion.
Therefore, the Court will disregard it.

13

that the claimant’s DDD was primarily
located in L5-S1 and her symptoms improved
after surgery. Moreover, her hip pain
improved with physical therapy. On January
24, 2013, the claimant was noted as doing
quite well following surgery and physical
therapy and she was advised to wear a back
brace for any heavy activities (Exhibit 22F,
p. 3). The medical evidence suggests
improvement with treatment and there is
insufficient medical evidence of record that
would support the claimant could not do
sedentary work.
Additionally, the claimant has
significant activities of daily living that
are inconsistent with a debilitating
impairment. She has no problems with
personal care, she drives, she does some
light housework, she cooks, she goes grocery
shopping, folds clothes and does laundry.
The claimant helps to care for her husband,
who was also injured in the car accident,
she cares for her dog, plays with her
granddaughter, reads, plays cards, watches
television and movies and visits with her
family. She goes out to eat on a regular
basis and attends doctor’s appointments
(Exhibits 4E, 5E; Testimony). Moreover, the
claimant previously reported that she was
not working because she was caring for her
husband, her pain interfered without [sic]
only some activities of daily living and her
pain did not prevent her from working
(Exhibit 2F, pp. 22-23; Exhibit 3F, p. 5;
Exhibit 4F, p. 1). Without significant
limitations on her activities of daily
living, the undersigned believes the
claimant overstated the impact of her
medically determinable impairments.
Essentially, the claimant possesses the
ability to perform the physical and mental
activities necessary to perform the above
residual functional capacity.
Although the claimant does appear to
have some limitations, her assertions are
not consistent with the medical evidence of
record. The claimant is clearly able to do

14

a range of sedentary work, as noted in the
residual functional capacity. Thus, the
claimant’s allegations of limitations are
not credible to the extent they conflict
with the residual functional capacity.
(Tr. 173-74).
In bringing this claim, Everett challenges the ALJ’s
characterization of the evidence, particularly that presented in
statements by Plaintiff and her husband (Doc. 10, pp. 14-15; see
Tr. 295-311).

The Court will now summarize those statements.

In a statement completed on April 2, 2012, Everett’s
husband stated that he and his wife are together all of the time
at home; she can prepare simple meals (making sandwiches or a
bowl of cereal) once or twice a week (Tr. 295-97).

She can do

laundry and light house cleaning, though it takes all day
because she has to take breaks every ten-to-fifteen minutes
because of her back pain (Tr. 297).

She drives and goes grocery

shopping every two-to-three weeks for an hour or two (Tr. 298).
Everett can play cards and board games for an hour at a time;
she regularly goes to appointments, the grocery store, and her
granddaughter’s school (Tr. 299).

She wears a back brace (Tr.

301).
In her own statement of the same date, Everett listed,
among her daily chores, washing and drying a load of clothes and
straightening the house, taking a break every ten minutes (Tr.

15

303).

Plaintiff can prepare meals including sandwiches, cereal,

meatloaf, soup, and eggs (Tr. 306).

Everett drives to the

grocery store and shops for about an hour every two weeks; she
regularly goes to doctor appointments, her mother’s house, and
restaurants (Tr. 307-08).

Plaintiff has a back brace that she

wears when she is having pain from too much standing or sitting
(Tr. 310).
The Court also notes, that, on July 27, 2011, Everett told
her Physical Therapist that she was “not working due to her
husband’s pain and injuries. . . . She enjoys working, golfing,
and bowling for fun and spending time with family” (Tr. 368).
The ALJ cited this information in addition to the husband’s and
wife’s statements in finding Plaintiff’s testimony non-credible
(Tr. 174).

The Court finds that these statements provide substantial
support for the ALJ’s conclusions and do not support Everett’s
assertions of disability.

More importantly, though, the medical

evidence does not support her assertions.

There is no medical

opinion in this record that Plaintiff’s pain in incapacitating
as alleged.

Curiously, although Everett asserts a disability

onset date of February 18, 2011, the first medical note of
record comes nearly five months later; the evidence from that
point onward demonstrates that although Plaintiff has endured
pain during the period under consideration, the evidence shows

16

improvement in her impairments.

By her own statements to her

treating sources, the medical treatment provided relieved her
asserted pain and inability.

Everett’s claim that the ALJ

failed to properly consider her pain is without merit.
Plaintiff next claims that the ALJ failed to properly
develop the record.

More specifically, she argues that the ALJ

should have ordered orthopaedic and mental consultations to
determine her capabilities (Doc. 10, pp. 8-13).

The Eleventh

Circuit Court of Appeals has required that "a full and fair
record" be developed by the ALJ even if the claimant is
represented by counsel.
(11th Cir. 1981).

Cowart v. Schweiker, 662 F.2d 731, 735

However, the

ALJ “is not required to order a

consultative examination as long as the record contains
sufficient evidence for the [ALJ] to make an informed decision.”
Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1269 (11th Cir. 2007) (citing Doughty v. Apfel, 245
F.3d 1274, 1281 (11th Cir. 2001)).

The Court first notes that Everett asserts no mental
impairments in her application for benefits (Tr. 265-66), in any
of the reports completed in the processing of her application
(Tr. 278-94, 303-19, 331-32), or even in the Fact Sheet
presented to this Court (Doc. 10).

In that light, asserting

that a mental evaluation should have been ordered by the ALJ is
counterintuitive.

17

Everett also asserts that a physical consultation should
have been ordered because of all of her orthopaedic issues.

The

Court rejects this assertion as the record is abundant with the
treatment record of Plaintiff’s physical problems.

A failure of

those records to support Everett’s assertion of disability is an
insufficient reason to order further evaluation.

This claim is

of no merit.8
Plaintiff’s final claim is that the Appeals Council did not
properly consider newly-submitted evidence.

Everett references

one hundred fifty-three pages of evidence (Doc. 10, pp. 18-20;
see Tr. 1-115, 123-57, 627-29).
The Court notes that a disability claimant can present new
evidence at any stage of the administrative proceedings.

20

C.F.R. ¶¶ 404.900(b) and 416.1400(b) (2015); Ingram v.
Commissioner of Social Security, 496 F.3d 1253, 1261 (11th Cir.
2007).

If the evidence is first presented to the Appeals

Council, the Council considers it only if it relates “to the
period on or before the date of the [ALJ’s] hearing decision.”
20 C.F.R. §§ 404.970(b) and 416.1470(b).

The Court will now

review the submitted evidence and the Appeals Council’s

8To the extent that Plaintiff attempts to assert a claim that the

ALJ should have called a Vocational Expert to testify as to Everett’s
ability to work (see Doc. 10, p. 9), the Court rejects it. First, it
appears as a bare assertion with no supporting argument. Second, as
the ALJ found that Plaintiff could return to her past previous work,
there was no need to call on the services of a Vocational Expert.

18

consideration of it.
On June 11, 2013, Orthopaedist Robert C. Baird, III noted
Everett’s complaints of pain, at a level two of ten; his exam
revealed that she was in no acute distress, with mild pain, but
full range of motion (Tr. 629).

Nevertheless, he ordered an MRI

that demonstrated that the superior aspect of the left hip was
torn (Tr. 627-28).
The Appeals Council found that this evidence, predating the
ALJ’s determination by six days, provided no basis for changing
the ALJ’s decision (Tr. 117).
The Appeals Council also reviewed evidence that post-dated
the ALJ’s decision and found that it concerned medical events
unrelated to the period under consideration as it came at a
later time (Tr. 117).

The Court will now review that evidence.

On July 26, 2013, Dr. Jeffrey Conrad, with the Orthopaedic
Group, noted Everett’s complaint of sudden left shoulder pain,
as of December 10, 2011, that she rated as two of ten; in spite
of full ROM and strength, as well as stable ligaments, in the
shoulder, he ordered an x-ray that demonstrated bursitis (Tr.
147).

Following left hip arthroscopy on August 23, Plaintiff

reported much improvement, with little pain, as of September 3,
2013 (Tr. 134-44, 148-57).
The Court finds that the Appeals Council properly
considered the newly-submitted evidence and determined that it

19

would not change the ALJ’s decision.

The left hip tear was a

new diagnosis, as shown by an MRI of March 20, 2013, less than
three months earlier, that had failed to disclose it (Tr. 609).
Though that evidence pre-dates the ALJ’s decision, it is a
diagnosis of a new problem; the Court finds that even the
subsequent treatment records, exceeding the ALJ’s consideration
period, provides no basis for remand in that it fails to
identify new functional limitations or functional limitations of
disabling degree.

Everett’s claim otherwise is without merit.

Everett has brought three claims in bringing this action.
All are without merit.

Upon consideration of the entire record,

the Court finds "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
U.S. at 401.

Perales, 402

Therefore, it is ORDERED that the Secretary's

decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947,
950 (5th Cir. 1980), and that this action be DISMISSED.
Judgment will be entered by separate Order.
DONE this 8th day of October, 2015.

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

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