Hamilton v. Colvin

Filing 29

Order re: 1 Complaint filed by Catherine Hamilton stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for aperiod of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CATHERINE HAMILTON,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 15-00122-B

ORDER
Plaintiff

Catherine

Hamilton

(hereinafter

“Plaintiff”)

seeks judicial review of a final decision of the Commissioner of
Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.
waived

oral

argument

and

On June 20, 2016, the parties

consented

to

have

conduct any and all proceedings in this case.

the

undersigned

(Docs. 25, 26).

Thus, the action was referred to the undersigned to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
careful

consideration

of

the

administrative

record

and

Upon
the

memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.

I.

Procedural History

Plaintiff filed her applications for benefits on August 24,
2011.

(Tr.

disabled

86-91)

since

1

.

April

Plaintiff
1,

2011,

alleged
due

to

that

she

has

pancreatitis,

been
liver

disease, migraines, depression, possible Lupus diagnosis, and
possible rheumatoid arthritis.
applications
granted

an

were

denied,

administrative

(Id. at 101, 105).

and

upon

hearing

timely
before

Plaintiff’s

request,

she

was

Administrative

Law

Judge Ben Sheely (hereinafter “ALJ”) on February 15, 2013.
at 46, 584).

Plaintiff attended the hearing with her counsel

and provided testimony related to her claims.
585).

(Id.

(Id. at 584,

A vocational expert (“VE”) also appeared at the hearing

and provided testimony.

(Id. at 602).

On August 8, 2013, the

ALJ issued an unfavorable decision finding that Plaintiff is not
disabled.

(Id.

at

14,

27).

The

Appeals

Council

Plaintiff’s request for review on January 27, 2015.

denied

(Id. at 6).

Therefore, the ALJ’s decision dated August 8, 2013, became the
final decision of the Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

agree that this case is now ripe for judicial review and is

1

When referencing the Social Security Transcript, the Court uses
the page numbers found on the transcript, rather than the page
numbers utilized by CM-ECF.

2

properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).

II.

Issue on Appeal
1.

Whether
the
ALJ
properly
Plaintiff’s credibility?

evaluated

III. Factual Background
Plaintiff was born on January 1, 1962, and was fifty-one
years

of

age

at

February 15, 2013.
she

quit

school

the

time

of

her

administrative

(Tr. 101, 579).
in

the

middle

subsequently obtained her GED.

hearing

on

Plaintiff testified that

of

the

eighth

(Id. at 585).

grade

but

Plaintiff last

worked in 2011 as a cafeteria worker, a job which she held for
three years.

(Id. at 107-08, 590).

In 2007, Plaintiff worked

as a cashier at Walmart for about a year and a half, and she
left that position for a job as a bank teller. She held the bank
teller job for about six months.

(Id. at 107, 590).

According to Plaintiff, she quit her job in 2011 because
she was no longer physically able to do it.

(Id. at 588).

She

testified that she has problems with forgetfulness, her back
freezing up on her, weakness, and fatigue.

(Id. at 588-89).

In 2011, while living in Texas, Plaintiff was diagnosed
with fibromyalgia by a neurologist, Dr. Anand Mehendale, M.D..
He prescribed Gabapentin and exercise.

3

(Id. at 300-01, 589).

Plaintiff testified that when she moved to Alabama in 2011, she
stopped taking a lot of her medications because she could not
afford

them.

(Id.

at

587,

589).

However,

Plaintiff

subsequently resumed taking Gabapentin for fibromyalgia, and it
is helping.

(Id. at 589).

Plaintiff
pancreatitis

testified
(in

2007),

that

she

which

also

has

has

been

a

history

controlled

of
with

medication, as well as liver problems, migraines, arthritis, and
back pain.

(Id. at 590-91, 601).

Plaintiff testified that when

the migraines get bad, she goes to the emergency room.
591).

She

takes

helps.

(Id.).

Relpax

for

her

migraines,

which

(Id. at
sometimes

Plaintiff also takes a non-narcotic medication

for her back pain.

(Id. at 595).

Plaintiff also testified that

she has problems with depression and feelings of worthlessness.
(Id. at 592).

She saw a psychologist at Altapointe on two

occasions (in June and July 2012) but did not return because she
did not have the money to see the doctor (although it was free
to see the therapist), and she did not want to bother her mother
to take her back.

(Id. at 592-93, 599).

According to Plaintiff, her “main” problems are migraines,
depression,

and

fibromyalgia.

(Id.

at

591).

She

receives

treatment at the Franklin Clinic about once every three months
for these conditions.

(Id. at 587-88).

Plaintiff testified that she was in the middle of a divorce

4

when she left Texas in 2011 and that she lives with her mom in
Alabama and has no children living with her.
01).

(Id. at 586, 600-

She tries to do housework and yard work, but she cannot

because

her

back

freezes

up.

(Id.

at

594-595).

Plaintiff

testified that she has no social activities. (Id. at 596). She
has a valid drivers license but does not have a vehicle.
at 593).

(Id.

Her daily routine consists of having coffee, laying

around, and gaining weight.

(Id.).

Plaintiff reported to the Agency in a Function Report dated
September 9, 2011, that she has no problems with personal care,
although

she

gets

tired

(id.

at

114);

she

does

not

need

reminders for personal care, and she has a pill box to remind
her to take her medications (id. at 115); she can prepare simple
meals (id.); she does the dishes and laundry but needs help
vacuuming and sweeping (id.); she does not do yard work (id. at
116); she goes out alone and drives (id.); she shops and handles
all of her own finances (id.); her hobbies are computer and
Facebook (id. at 117); she has no problems getting along with
family,

friends,

or

others

(id.

at

118);

she

can

walk

approximately fifty feet and then has to rest for one to two
minutes (id.); she is easily distracted (id.); she can follow
written instructions “good,” and spoken instructions “good if
they are not long” (id.); she gets along with authority figures
“great” (id. at 119); and she does not handle stress well but

5

handles changes in routine “ok” (id. at 119).
she has no side effects from her medications.

IV.

She reported that
(Id. at 120).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

limited

determining

1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

2

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

2

whether

substantial

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).

6

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of

any

medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

§§

regulations
process

determining if a claimant has proven his disability. 3

3

C.F.R.

for

20 C.F.R.

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
7

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since April 1,
2011,

the

alleged

onset

date,

and

that

she

has

the

severe

impairments of fibromyalgia, history of pancreatitis, migraine
headaches, depression, and personality disorder.4

(Tr. 16).

The

ALJ further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The

ALJ

(Id. at 18).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform a range of
light work, except that Plaintiff “can lift and carry 20 pounds
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
4

The ALJ found Plaintiff’s arthritis and back pain to be nonsevere, noting that results of diagnostic testing revealed
largely normal or minimal objective findings. (Tr. 17-19).

8

occasionally, 10 pounds frequently.

[She] can stand and walk

for 6 hours in an 8-hour workday and sit for 6 hours in an 8hour workday with normal breaks.
ramps

and

stairs.

scaffolds.

[She]

crouch, and crawl.

[She]
can

[She] can occasionally climb

cannot

climb

occasionally

ladders,

balance,

ropes,

stoop,

or

kneel,

[She] cannot tolerate concentrated exposure

to workplace hazards such as unprotected heights or unprotected
machinery.

[She] can perform simple, routine, repetitive tasks

involving only simple work related decisions with few work place
changes.

[She] can tolerate occasional interaction with the

public and coworkers.”

(Id. at 19-20).

The ALJ also determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms, her statements concerning the intensity,
persistence and limiting effects of the alleged symptoms were
not entirely credible for the reasons explained in the decision.
(Id. at 20).
The ALJ found that Plaintiff is unable to perform any past
relevant work.

(Id. at 25).

However, utilizing the testimony

of a VE, the ALJ concluded that considering Plaintiff’s residual
functional capacity for a range of light work, as well as her
age, education and work experience, there are jobs existing in
the national economy that Plaintiff is able to perform, such as
“router,” “assembler,” and “silver wrapper,” all of which are

9

classified as light and unskilled.

(Id. at 26).

concluded that Plaintiff is not disabled.
The

Court

now

considers

the

Thus, the ALJ

(Id.).

foregoing

in

light

of

the

record in this case and the issues on appeal.
1.

Issue

A.
In
finding

Whether
the
ALJ
properly
Plaintiff’s credibility?

this
her

case,

Plaintiff

statements

about

argues
the

that

evaluated
the

intensity,

ALJ

erred

persistence,

limiting effects of her symptoms not entirely credible.
18 at 2).

in
and

(Doc.

According to Plaintiff, she is disabled because of

migraines, fibromyalgia, depression, personality disorder, and
ankylosing spondylitis 5 (spinal arthritis).

5

(Id. at 4).

The

Plaintiff alleges disability from ankylosing spondylitis for the
first time in her brief on appeal. She has attached four pages
of medical records from Franklin Primary Health Center, one of
which references ankylosing spondylitis, for consideration on
appeal.
(Doc. 18 at 6-9).
The Court notes that the sixth
sentence of 42 U.S.C. § 405(g) permits a district court to
remand an application for benefits to the Commissioner for
consideration of new evidence that previously was unavailable.
Enix v. Commissioner of Soc. Sec., 461 Fed. Appx. 861, 863 (11th
Cir. 2012) (citing 42 U.S.C. § 405(g)).
“‘[A] sentence six
remand is available when evidence not presented to the
Commissioner at any stage of the administrative process requires
further review.’”
Id. (quoting Ingram v. Commissioner of Soc.
Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007)).
“To show
that a sentence six remand is needed, the claimant must
establish 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 the evidence at the administrative level.”
Id. (quoting Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.1986)
10

(internal quotation marks omitted)).
“The new evidence must
relate to the period on or before the date of the administrative
law judge’s (“ALJ”) decision.” Id. (citing Wilson v. Apfel, 179
F.3d 1276, 1279 (11th Cir. 1999) and 20 C.F.R. §§ 404.970(b),
416.1470(b), requiring Appeals Council to consider new evidence
“only where it relates to the period on or before the date of
the administrative law judge hearing decision”).
“Evidence of
deterioration
of
a
previously-considered
condition
may
subsequently entitle a claimant to benefit from a new
application, but it is not probative of whether a person is
disabled during the specific period under review.” Id. (citing
Wilson, 179 F.3d at 1279).
“In contrast, evidence of a
condition that existed prior to the ALJ’s hearing, but was not
discovered until afterward, is new and non-cumulative.”
Id.
(citing Vega v. Commissioner of Soc. Sec., 265 F.3d 1214, 1218–
19 (11th Cir. 2001) (concluding that remand was warranted based
on evidence that after the ALJ hearing, a doctor discovered and
surgically corrected a herniated disk, which was material to the
issue of the severity of claimant’s spinal problems during the
relevant time period); Hyde v. Bowen, 823 F.2d 456, 459 & n.4
(11th Cir. 1987) (concluding that remand was warranted based on
new evidence that claimant’s prosthetic device was loose, which,
“if accepted” provides “an objective medical explanation” for
claimant’s previously unexplained complaints of pain in his hip
and leg).
In the present case, some of the additional evidence
proffered by Plaintiff relates to her treatment for cervical and
lumbar pain at Franklin Primary Health Center on November 12,
2014, after the ALJ issued his decision on August 8, 2013; thus,
it is new evidence that was not previously presented to the ALJ.
However, the treatment notes dated November 12, 2014, reflect
only a suggestion by her physician that she “may” have
ankylosing spondylitis, which could explain the severe pain that
she is experiencing in her neck. In her proceedings before the
ALJ, Plaintiff complained of back pain, which the ALJ found to
be non-severe, but she did not allege problems with her neck.
Therefore, this new evidence represents a different, additional
claim and does not provide insight into whether Plaintiff was
disabled from a medical condition at issue during the specific
period under review.
Moreover, because of the speculative
nature of the evidence, even if the Court were to assume that it
related to a medical condition raised during the period under
review, such as Plaintiff’s complaints of low back pain,
Plaintiff has not established a reasonable possibility that
consideration
of
the
new
evidence
would
change
the
11

Commissioner

counters

that

the

ALJ

properly

evaluated

Plaintiff’s credibility and that Plaintiff’s claims about the
disabling

effects

of

her

physical

and

mental

conditions

are

inconsistent with the medical evidence in the case, including
the conservative nature of her medical treatment, the findings
and

opinions

of

her

treating

and

examining

physicians,

the

results of her diagnostic tests, and her activities of daily
living.

(Doc. 23 at 1, 5).

Having carefully reviewed the

record in this case, the Court finds that Plaintiff’s claim is
without merit.
When
symptoms,

evaluating
the

statements,
persons,

and

ALJ

a

claim

considers

statements
evidence

by
of

based
medical

the
how

on

findings,

treating
the

disabling

pain

a

physician
(or

other

subjective
claimant’s
or

other

subjective

symptoms) affects the claimant’s daily activities and ability to
work.
attempts

20 C.F.R. § 416.929(a).
to

establish

disability

In a case where a claimant
through

his

or

her

own

testimony concerning pain or other subjective symptoms, a threepart standard applies.

That standard requires: “(1) evidence of

an underlying medical condition and either (2) objective medical
administrative outcome.
Also, Plaintiff has attached a
treatment note from Franklin Primary Health Center dated March
7, 2013, related to treatment for fibromyalgia and rheumatoid
arthritis. (Doc. 18 at 9). This document is in the record and
is not new evidence.
(Tr. 574).
For each of these reasons,
Plaintiff’s argument regarding new evidence is unavailing.

12

evidence that confirms the severity of the alleged pain

[or

other subjective symptoms] 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

[or

other

subjective

symptoms].”

Hubbard

v.

Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir.
2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221,
1223 (11th Cir. 1991)).

The Social Security regulations further

provide:
[S]tatements
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) (2013).
“A

claimant’s

subjective

testimony

supported

by

medical

evidence that satisfies the pain standard is itself sufficient
to support a finding of disability.”
1553, 1561 (11th Cir. 1995).

Foote v. Chater, 67 F.3d

Stated differently, “if a claimant

testifies to disabling pain [or other subjective symptoms] and
satisfies

the

three

part

pain

13

standard,

he

must

be

found

disabled

unless

that

testimony

is

properly

discredited.”

Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1186 (N.D. Ala.
2006).

Therefore, once the determination has been made that a

claimant has satisfied the three-part standard, the ALJ must
then turn to the question of the credibility of the claimant’s
subjective complaints.
(the

three-part

determination

standard

made

credibility.”).

See id., 444 F. Supp. 2d at 1189 n.1
“is

prior

designed

to

considering

be

a

the

threshold
plaintiff’s

If a claimant does not meet the standard, no

credibility determination is required.
In

to

assessing

a

claimant’s

Id.

credibility,

the

ALJ

must

consider all of the claimant’s statements about his symptoms and
determine the extent to which the symptoms can reasonably be
accepted as consistent with the objective medical evidence.

See

20

are

C.F.R.

§

404.1528.

Such

credibility

within the province of the ALJ.
1208, 1212 (11th Cir. 2005).
credit

a

claimant’s

determinations

Moore v. Barnhart, 405 F.3d

However, if an ALJ decides not to

testimony

about

his

or

her

subjective

symptoms, “the ALJ must articulate explicit and adequate reasons
for doing so or the record must be obvious as to the credibility
finding.”

Strickland v. Commissioner of Soc. Sec., 516 Fed.

Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing Foote, 67
F.3d at 1562); see also Tieniber v. Heckler, 720 F.2d 1251, 1255
(11th Cir. 1983) (although no explicit finding as to credibility

14

is required, the implication must be obvious to the reviewing
court).

Failure

to

articulate

the

reasons

for

discrediting

testimony related to pain or other subjective symptoms requires,
as a matter of law, that the testimony be accepted as true.
Holt, 921 F.2d at 1223.
The Eleventh Circuit has held that the determination of
whether

objective

medical

impairments

could

reasonably

be

expected to produce the pain or other subjective symptoms is 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. 1985), vacated on other grounds
and reinstated sub nom., Hand v. Bowen, 793 F.2d 275 (11th Cir.
1986).

A reviewing court will not disturb a clearly articulated

credibility finding with substantial supporting evidence in the
record.

See Nye v. Commissioner of Social Sec., 524 Fed. Appx.

538, 543 (11th Cir. 2013) (unpublished).
In

this

case,

the

ALJ

found

that

Plaintiff’s

testimony

regarding the intensity, persistence, and limiting effects of
her

symptoms

inconsistency
evidence.

6

was

“not

between
(Id. at

her

entirely

credible”

testimony

20-25).

and

the

based

on

other

The record confirms the

6

the

record
ALJ’s

As the ALJ noted, Plaintiff claims that she is disabled due to
pancreatitis, liver disease, migraines, depression, personality
15

findings that Plaintiff has had only sporadic medical treatment
in the past few years and that all of her symptoms (including
pain)

have

diagnostic

been
work

treated

ups

have

with
not

medication

shown

any

only;

that

significant

her

physical

problems; that there has been no evidence that she has ever been
referred

to

or

sought

treatment

from

a

specialist

for

her

physical impairments since moving to Alabama in October 2011,
such as a gastroenterologist, neurologist, or rheumatologist;
and that none of her treating physicians has opined that she is
unable

to

work

or

disabled

due

to

a

physical

or

mental

condition.
Specifically, the record shows that Plaintiff was diagnosed
with pancreatitis in 2007 after complaining of abdominal pain
and that her gall bladder was successfully removed, resulting in
a resolution of symptoms.

(Id. at 321-22).

in May 2011 showed a “normal” pancreas.

A CT scan conducted
(Id. at 194).

Since

2007, Plaintiff’s gastrointestinal workups have been essentially
normal, with the exception of moderate steatosis of the liver

disorder, possible lupus, possible rheumatoid arthritis, and
fibromyalgia, and, because of these impairments, she is always
in pain in her stomach, legs, hands, back, and feet, and is
tired all the time.
(Tr. 20, 105, 584, 588).
In addition,
Plaintiff claims to have fallen multiple times and that her
memory has gotten worse, that she cannot concentrate or focus on
anything, that she is in pain every day, that her depression has
deepened, and that she has migraines at least fourteen days a
month but often times more. (Id. at 20, 141; Doc. 18).

16

(the infiltration of fat into the liver)

and elevated liver

function tests.

A CT scan conducted

(Id. at 175, 194, 292-93).

in May 2011 showed that the enlargement of Plaintiff’s liver was
“stable.”

(Id. at 194).

Likewise, an echogram conducted in

March 2011 showed that her liver was “echogenic consistent with
fatty infiltration” but that there was “no acute abnormality.”
(Id.

at

230).

In

April

2011,

an

EGD

revealed

only

“mild”

chronic, nonerosive gastritis and otherwise normal esophagus,
stomach, and small intestine.

(Id. at 223, 225).

In January

2012, Plaintiff’s treatment provider at Franklin Primary Health
Center diagnosed her with GERD and prescribed Nexium.
467).

(Id. at

Plaintiff’s gastrointestinal symptoms appear to have been

successfully managed with medication, and she has not sought
treatment from nor been referred to a gastroenterologist since
moving to Alabama in 2011.
With

respect

to

Plaintiff’s

migraines,

her

treatment

records show that she has had two MRIs of her brain (one in 2009
and a second in 2011), neither of which showed any significant
abnormalities.

(Id. at 153, 289).

in August 2010 was also normal.

A CT scan of her brain taken

(Id. at 275).

Prior to moving

to Alabama in 2011, Plaintiff was treated by a neurologist in
Texas, Dr. Anand Mehendale, M.D., for “headache,” for which he
prescribed Propranolol.
in

October

2011,

(Id. at 457).

Plaintiff

has

17

Since moving to Alabama

received

treatment

for

her

migraines at Franklin Primary Health Center, where she has been
prescribed Propranolol and Relpax.

(Id. at 483, 506, 508).

Plaintiff reported that both medications have helped.

(Id. at

508,

to

591).

emergency

On
room

July
at

2,

South

2012,

Plaintiff

Baldwin

presented

Regional

Medical

the

Center

complaining of a headache and was treated with Toradol and sent
home.

(Id. at 469-70).

This is the only record evidence of

Plaintiff seeking emergency room treatment for any ailment since
moving to Alabama in October 2011.

(Id. at 469).

Other than

treatment by a primary care physician with medication, there is
no evidence that Plaintiff has received any other treatment or
been referred to a neurologist or any other specialist for her
migraines since moving to Alabama.
With respect to Plaintiff’s complaints of low back pain,
which the ALJ found to be non-severe (id. at 17-19), the record
shows that Plaintiff presented to the emergency room at Peterson
Regional Medical Center in Texas in April 2011, complaining of
hip

and

lower

back

pain,

and

her

examining

physician

found

nothing to explain her complaints of pain and noted that he
“observed [her] walking with minimal difficulty.”
14).

(Id. at 213-

X-rays of Plaintiff’s hip and pelvis at that time were

normal.

(Id. at 220).

Likewise, an MRI of Plaintiff’s lumbar

spine taken in April 2011 showed no significant disc disease or
central canal or foraminal encroachment at any level, and an MRI

18

of Plaintiff’s thoracic spine showed “very minimal” small disc
bulges

with

no

significant

central

canal

or

foraminal

encroachment at any level, with normal cord signal throughout.
(Id. at 201-02).

Since that time, Plaintiff’s medical records

show intermittent complaints of back pain for which she has been
treated conservatively with pain medication.
With
that

respect

Plaintiff

to

was

Plaintiff’s
treated

in

(Id. at 205, 214).

fibromyalgia,
Texas

by

a

the

ALJ

noted

neurologist,

Mehendale, from August 2011 to October 2011.

Dr.

Dr. Mehendale

found that Plaintiff met the criteria for fibromyalgia based on
her

complaints,

and

he

prescribed

Cymbalta,

Ultram and instructed her to exercise. 7

Gabapentin,

and

(Id. at 300-01, 457).

There is no evidence that Plaintiff sought follow up treatment
with Dr. Mehendale or with another neurologist after moving to
Alabama

in

Plaintiff
Primary

October
received

Health

2011.

From

treatment

Center,

(Id. at 464-65, 483-510).

where

January

for
she

2012

to

fibromyalgia
was

prescribed

March
at

2013,

Franklin

medication.

At no time since moving to Alabama in

October 2011 have Plaintiff’s treatment providers referred her

7

Dr. Mehendale ruled out lumbar and cervical radiculopathy,
polyneuropathy, and lupus.
(Tr. 457).
Also, on September 28,
2011, Dr. Mehendale completed a “Treating Physical Mental
Function Assessment
Questionnaire” stating that he was not
treating Plaintiff for a mental condition and that he had not
recommended treatment for a mental condition. (Id. at 306).

19

to a neurologist or any other specialist for treatment of her
fibromyalgia.8

(Id.).

With respect to Plaintiff’s depression, the record shows
that she has received treatment from her primary care physicians
with psychotropic medications, primarily Cymbalta, and that the
treatment has been largely effective and well tolerated.
at 120, 382, 390, 392, 400, 483, 500, 506, 508, 599).

(Id.

With the

exception of two visits to Altapointe in June and July of 2012,
when

Plaintiff

presented

for

an

intake

assessment

and

never

returned, she has not sought treatment for her depression from a
mental health specialist.

(Id. at 471-77).

During her brief

assessment at Altapointe, Plaintiff reported that she and her
husband had separated and that she was depressed.
477).

(Id. at 472,

Her assessment notes reflect that she was experiencing

episodes

of

crying,

that

her

memory

and

concentration

were

impaired, that her insight and judgment were fair, and that her
ability to care for herself was “good.”
8

(Id. at 472, 474).

She

State Agency neurologist, Dr. Elizabeth Minto, M.D., reviewed
Plaintiff’s records on November 22, 2011, and completed a
Physical RFC assessment, finding that Plaintiff can occasionally
lift or carry 20 pounds, can frequently lift or carry 10 pounds,
can stand and/or walk for a total of 6 hours in an 8-hour
workday, can sit for a total of 6 hours in an 8-hour workday,
and is unlimited in her ability to push or pull. (Tr. 36). In
addition, Dr. Minto found that Plaintiff can frequently climb
(ramps, stairs, ladders, ropes, scaffolds), balance, stoop,
kneel, crouch, and crawl, and she is unlimited in her ability to
reach, finger, and feel but can only “handle” with her right
hand frequently and left hand only occasionally. (Id. at 36).

20

was diagnosed with depressive disorder, adjustment disorder with
anxiety and depressed mood, and personality disorder.
471).

(Id. at

She was not prescribed any medication, and she never

returned.9
On December 12, 2011, Plaintiff was examined at the request
of the Agency by consultative psychologist Dr. Jennifer Jackson,
Psy. D.

(Id. at 309).

“dysthymia”

(persistent

Dr. Jackson diagnosed Plaintiff with
mild

depression)

and

opined

that

a

favorable response to treatment could be expected within six to
twelve months.

(Id. at 311).

Dr. Jackson did not identify any

functional limitations and found no evidence of a personality
disorder.10

(Id.).

9

As the ALJ found (id. at 24), Plaintiff has not participated in
mental health counseling; she has not required emergency room
treatment for her mental impairments; she has not required
inpatient psychiatric treatment; and none of her treating
providers has ever identified any functional limitations related
to her mental impairments.

10

Dr. Jackson’s mental status exam revealed that Plaintiff was
appropriately dressed and groomed, that she displayed no obvious
difficulties with fine or gross motor skills, that her speech
was easily understood, that she was generally pleasant and
cooperative, that no unusual behaviors were observed, that she
appeared “very depressed,” that her affect was tearful, but that
she was not anxious.
(Tr. 310).
Plaintiff was oriented to
time, place, and person; her concentration and attention were
normal; her memory (immediate, recent, and remote) was normal;
her fund of information was normal; her abstract thinking,
thought process, and thought content were normal (except that
she reported having thought about suicide without imminent plans
to harm herself); and her judgment and insight were limited.
(Id. at 311).
Plaintiff reported that she was capable of
completing
all
personal
activities
of
daily
living
21

In

addition,

the

evidence

of

Plaintiff’s

activities

of

daily living shows that she has no problems with personal care
(id. at 114); she cooks, washes dishes, does laundry, makes
beds, cleans bathrooms (id. at 115-16, 312); drives and goes out
alone (id. at 116, 312); handles all of her own finances (id. at
116, 312); spends time on the computer (id. at 117); gets along
well with family, friends, and others and “love[s] being around
people” (id. at 118, 312); has no problems interacting with or
getting along with others (id. at 312); follows instructions
well (id. at 118); gets along “great” with authority figures
(id. at 119); and handles changes in routine “ok.”

(Id. at

119).
“When evaluating a claimant’s credibility, an ALJ . . . may
consider

any

inconsistencies

limitations and his

between

a

claimant’s

[or her] daily activities.”

alleged

Lambeth v.

Astrue, 2011 U.S. Dist. LEXIS 75150, *27, 2011 WL 2784560, *9
(S.D. Ala. July 12, 2011) (citing Macia v. Bowen, 829 F.2d 1009,
1012 (11th Cir. 1987)).

As in Lambeth, Plaintiff’s varied daily

independently, that she could wash dishes, sweep, mop, vacuum,
make a bed, clean a bathroom, cook, do laundry, and drive, and
that she could handle money, shop independently, and stay at
home unsupervised.
(Id. at 312).
Plaintiff reported having
trouble concentrating, being slow when doing things, and not
finishing what she starts.
(Id. at 312).
Plaintiff also
reported that she is not afraid of people, that she “love[s]
being around people,” and that she has no problems interacting
with or getting along with others. (Id. at 312).

22

activities in this case are inconsistent with her claim that her
medical

impairments

pancreatitis,
personality
Thus,

the

(in

arthritis,

disorder),
ALJ’s

this

case

migraine

render

reasons

for

her

fibromyalgia,

history

headaches,

depression,

completely

unable

finding

Plaintiff’s

to

of
and

work.

allegations

regarding the severity of her symptoms to be less than fully
credible are supported by the record.11
The ALJ specifically addressed Plaintiff’s allegations of
pain

and

other

subjective

symptoms

in

his

decision,

and

he

provided explicit and reasonable reasons for partially rejecting
her testimony.

See 20 C.F.R. § 404.1529(c)(2)-(4); (Tr. 20-25).

As the foregoing demonstrates, the substantial evidence in this
case

supports

complaints

of

the

ALJ’s

pain

and

decision
other

to

discount

subjective

Plaintiff’s

symptoms,

and

it

supports the ALJ’s finding that Plaintiff can perform a range of
light work with the stated restrictions.

Therefore, Plaintiff’s

claim is without merit.
11

The Court rejects Plaintiff’s argument that the ALJ was biased
against her because she is a smoker.
While the ALJ referenced
Plaintiff’s smoking habit (id. at 23), he did so in the context
of her claim that she could not afford medications or medical
treatment, finding that claim less than credible given the fact
that she chose instead to fund a smoking habit.
See Smith v.
Colvin, 2016 U.S. Dist. LEXIS 29991, *16-17, 2016 WL 892776, *6
(N.D. Ala. Mar. 9, 2016) (“The ALJ did consider [plaintiff’s]
claim that she could no longer afford treatment because she had
no health insurance in 2011, but the ALJ also considered that
she was able to finance her smoking habit of half a pack a day,”
which “undermined her credibility.”).

23

Finally,

the

undersigned

notes

that

Plaintiff

alleges

disability from ankylosing spondylitis for the first time in her
brief on appeal.

She has attached four pages of medical records

from Franklin Primary Health Center, one of which references
ankylosing spondylitis, for consideration on appeal.

(Doc. 18

at 6-9).
The Court notes that the sixth sentence of 42 U.S.C. §
405(g) permits a district court to remand an application for
benefits to the Commissioner for consideration of new evidence
that previously was unavailable.

Enix v. Commissioner of Soc.

Sec., 461 Fed. Appx. 861, 863 (11th Cir. 2012) (citing 42 U.S.C.
§ 405(g)).
not

“‘[A] sentence six remand is available when evidence

presented

to

the

Commissioner

at

any

stage

administrative process requires further review.’”

of

the

Id. (quoting

Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1267
(11th Cir. 2007)).

“To show that a sentence six remand is

needed, the claimant must establish 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

administrative level.”

failure

to

submit

the

evidence

at

the

Id. (quoting Caulder v. Bowen, 791 F.2d

872, 877 (11th Cir.1986) (internal quotation marks omitted)).

24

“The new evidence must relate to the period on or before
the date of the administrative law judge’s (“ALJ”) decision.”
Id. (citing Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir.
1999)

and

20

C.F.R.

§§

404.970(b),

416.1470(b),

requiring

Appeals Council to consider new evidence “only where it relates
to the period on or before the date of the administrative law
judge

hearing

decision”).

previously-considered
claimant

to

benefit

“Evidence

condition
from

a

new

may

of

deterioration

subsequently

application,

of

entitle

but

it

is

a
a

not

probative of whether a person is disabled during the specific
period under review.”

Id. (citing Wilson, 179 F.3d at 1279).

“In contrast, evidence of a condition that existed prior to the
ALJ’s hearing, but was not discovered until afterward, is new
and non-cumulative.”

Id. (citing Vega v. Commissioner of Soc.

Sec., 265 F.3d 1214, 1218–19 (11th Cir. 2001) (concluding that
remand

was

hearing,

warranted

a

doctor

based

on

discovered

evidence
and

that

after

surgically

the

ALJ

corrected

a

herniated disk, which was material to the issue of the severity
of claimant’s spinal problems during the relevant time period);
Hyde

v.

Bowen,

823

F.2d

456,

459

&

n.4

(11th

Cir.

1987)

(concluding that remand was warranted based on new evidence that
claimant’s
provides

prosthetic
“an

device

objective

was

medical

loose,

which,

explanation”

“if
for

accepted”
claimant’s

previously unexplained complaints of pain in his hip and leg)).

25

In

the

present

case,

some

of

the

additional

evidence

proffered by Plaintiff relates to her treatment for cervical and
lumbar pain at Franklin Primary Health Center on November 12,
2014, which is after the ALJ issued his decision on August 8,
2013. Thus, it is new evidence that did not exist and was not
previously presented to the ALJ.
dated

November

physician

that

However, the treatment notes

12,

2014

reflect

she

“may”

have

only

a

ankylosing

suggestion

by

spondylitis,

her

which

could explain the severe pain that she is experiencing in her
neck.

In her proceedings before the ALJ, Plaintiff complained

of back pain, which the ALJ found to be non-severe, but she did
not allege problems with her neck.

Therefore, this new evidence

represents a different, additional claim and does not provide
insight

into

condition

at

whether
issue

Plaintiff

during

the

was

disabled

specific

from

period

a

medical

under

review.

Moreover, because of the speculative nature of the evidence,
even if the Court were to assume that it related to a medical
condition
Plaintiff’s

raised

during

complaints

of

the

period

low

back

under
pain,

review,

such

as

Plaintiff

has

not

established a reasonable possibility that consideration of the
new evidence would change the administrative outcome.
Also, Plaintiff has attached a treatment note from Franklin
Primary Health Center dated March 7, 2013, related to treatment
for fibromyalgia and rheumatoid arthritis.

26

(Doc. 18 at 9).

This document is in the record and is not new evidence.
574).

(Tr.

For each of these reasons, Plaintiff’s argument regarding

new evidence is unavailing.
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 28th day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

27