Gray v. Colvin

Filing 20

Order re: 1 Complaint filed by Della L Gray stating it is hereby ORDERED that the decision of the Commissioner of Social Security denying Plaintiff's claim for disability and disability insurance benefits be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge Sonja F. Bivins on 3/31/2017. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DELLA L. GRAY,

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*
*
*
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*
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Plaintiff,
vs.
NANCY BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

CIVIL ACTION NO. 15-00522-B

ORDER
Plaintiff

Della

L.

Gray

(hereinafter

“Plaintiff”)

seeks

judicial review of a final decision of the Commissioner of Social
Security

denying

her

claim

for

disability

insurance

benefits

under Title II of the Social Security Act, 42 U.S.C. §§ 216(i)
and 223(d).

On October 28, 2016, the parties consented to have

the undersigned conduct any and all proceedings in this case.
(Doc. 17).
conduct

Thus, the action was referred to the undersigned to

all

proceedings

and

order

the

entry

of

judgment

in

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73.

Upon careful consideration of the administrative

record and the memoranda of the parties, it is hereby ORDERED
1

Nancy Berryhill became the Acting Commissioner of Social Security
on January 23, 2017.
Pursuant to Rule 25(d), Federal Rules of
Civil Procedure, Nancy Berryhill should be substituted for
Carolyn W. Colvin as the defendant in this suit.
No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).

that the decision of the Commissioner be REVERSED and REMANDED
for further proceedings not inconsistent with this decision.
I.

Procedural History2
Plaintiff filed her application for benefits on November 12,

2012,

alleging

disability

beginning

May

24,

2012,

based

on

fibromyalgia, anxiety, depression, obesity, back injuries, and
arthritis in the arms, upper and lower back, neck, hands and
fingers.

(Tr. 132, 166).

Plaintiff’s application was denied and

upon timely request, she was granted an administrative hearing
before

Administrative

Law

Judge

Renee

Blackmon

Hagler

(hereinafter “ALJ”) on February 3, 2014.

(Id. at 30).

Plaintiff

attended

and

testimony

related

the
to

hearing

her

with

claims.

her

(Id.

counsel

at

31-49).

provided
A

vocational

expert

(“VE”) also appeared at the hearing and provided testimony.
at 49-51).

On April 21, 2014, the ALJ issued an unfavorable

decision finding that Plaintiff is not disabled.
The

Appeals

Council

September 24, 2015.
dated

April

(Id.

21,

denied

Plaintiff’s

(Id. at 4-7).
2014,

became

request

(Id. at 12-24).
for

review

on

Therefore, the ALJ’s decision
the

final

decision

of

the

Commissioner.
Having

exhausted

her

administrative

timely filed the present civil action.
2

remedies,

(Doc. 1).

Plaintiff

The parties

The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF, not the page numbers assigned
by the Agency.

2

waived oral argument on October 28, 2016 (Doc. 16) and agree that
this case is now ripe for judicial review and is properly before
this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II.

Issues on Appeal
1.

Whether the ALJ erred in rendering a
physical
residual
functional
capacity
(“RFC”) assessment that is inconsistent
with the medical evidence of record, and
lacks an articulated linkage between it
and the evidentiary record?

2.

Whether the ALJ
properly
assess
Plaintiff?

erred in failing
the
credibility

to
of

3. Whether the ALJ erred in failing to order
a consultative orthopedic examination to
better
determine
Plaintiff’s
physical
capabilities?
III. Factual Background
Plaintiff was born on February 17, 1968, and was forty-five
years

of

age

at

the

February 3, 2014.
stands

5

‘5

and

time

of

her

(Tr. 33).
weighs

308

administrative

hearing

on

Plaintiff reported that she is
pounds.

(Id.

at

34).

Plaintiff

graduated from Phoenix University with an Associate’s Degree in
Healthcare Administration.
Plaintiff
assistant. 3
housekeeper.

last

(Id.).

worked

(Id. at 182).

in

2012

as

a

certified

nursing

Her past work also includes being a

(Id. at 36). At the hearing, Plaintiff testified

3

Plaintiff’s last day of work was May 15, 2012, but she was paid
short-term disability until November. (Tr. 35).

3

that she has not worked since May 17, 2012 due to back problems
which makes it difficult for her to sit or stand for extended
periods of time. (Id. at 37). According to Plaintiff, she feels
best when she is lying down. (Id.) Plaintiff also testified that
although

she

had

two

back

surgeries

in

2012,

she

still

experiences back pain, and that while her pain medicine helps, it
has not eliminated her back pain. (Id. at 37-40). Plaintiff also
testified that she suffers from fibromyalgia, arthritis in her
shoulder and depression. (Id.)
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.
1)

whether

the

The Court’s review is limited to determining
decision

of

the

Secretary

is

supported

by

substantial evidence and 2) whether the correct legal standards
were applied.4
1990).

A

evidence,

court
or

Commissioner.
1986).

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
may

not

substitute

decide
its

the

facts

judgment

anew,

for

reweigh

that

of

the
the

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.

The Commissioner’s findings of fact must be affirmed if

they are based upon substantial evidence.

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
4

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).

4

defined as “more than a scintilla, but less than a preponderance”
and consists of “such relevant evidence as a reasonable person
would

accept

determining
view

the

as

whether
record

favorable,
decision.

adequate

as

to

support

substantial

as

a

well

evidence

whole,

as

a

taking

unfavorable,

conclusion.”).
exists,

into
to

a

court

account

the

In
must

evidence

Commissioner’s

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).
V.

Statutory And Regulatory Framework
An

individual

benefits

must

who

prove

404.1512, 416.912.
engage

in

any

applies

his

or

for

her

Social

Security

disability.

20

disability
C.F.R.

§§

Disability is defined as the “inability to

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).

423(d)(1)(A);

see

also

20

C.F.R.

§§

The Social Security regulations provide

a five-step sequential evaluation process for determining if a
claimant

has

proven

his

disability.

20

C.F.R.

§§

404.1520,

416.920.
The claimant must first prove that he or she has not engaged
in substantial gainful activity.

5

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

inability to perform their past relevant work.
810 F.2d 1001, 1005 (11th Cir. 1986).

must

prove

an

Jones v. Bowen,

At the fourth step, the

ALJ must make an assessment of the claimant’s RFC. See Phillips
v. Barnhart, 357 F. 3d 1232, 1238 (llth Cir. 2004).

The RFC is

an assessment, based on all relevant medical and other evidence,
of a claimant’s remaining ability to work despite her impairment.
See Lewis v. Callahan, 125 F. 3d 1436, 1440 (llth Cir. 1997).
If a claimant meets his or her burden at the fourth step, it
then becomes the Commissioner’s burden to prove at the fifth step
that

the

claimant

substantial

is

gainful

capable

of

employment

engaging
which

in

another

exists

in

kind

of

significant

numbers in the national economy, given the claimant’s residual
functional capacity, age, education, and work history.
Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
can

demonstrate

that

there

are

such

jobs

Sryock v.

If the Commissioner
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,

6

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)).
VI.

Discussion
In the case sub judice, the ALJ determined that Plaintiff

has not engaged in substantial gainful activity since May 24,
2012,

the

alleged

onset

date,

and

that

she

has

the

severe

impairments of laminectomy 5 with residual problems, depression,
obesity, and essential hypertension. 6 (Tr. 16). According to the
ALJ,

Plaintiff’s

laminectomy

with

residual

problems

is

not

characterized by nerve root compression, spinal arachnoiditis or
spinal stenosis. The ALJ next determined 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. (Id. at 17-18).
The

ALJ

further

concluded

that

Plaintiff

retains

the

residual functional capacity (hereinafter “RFC”) to perform less
than

the

full

range

of

light

work

as

defined

in

20

C.F.R.

404.1567(b), with the following limitations: Plaintiff can sit
5

A laminectomy is a surgical procedure in which the posterior
arch of a vertebra is removed. Laminectomy is done to relieve
pressure on the spinal cord or on the nerve roots that emerge
from the spinal canal. The procedure may be used to treat a
slipped or herniated disc
or to treat spinal stenosis.
www.medicinenet.com.
6

The ALJ found that Plaintiff’s claim of fibromyalgia does not
represent a medically determinable impairment. (Tr. 17-18).

7

for at least six hours in an eight-hour workday. She can stand
and walk, in combination, at least six hours in an eight-hour
workday. She can occasionally climb stairs and ramps, balance,
stoop, kneel, crouch, and crawl. She cannot claim ladders, ropes,
and scaffolds. She must avoid work at unprotected heights. She
can perform simple tasks with short, simple instructions. She is
limited to occasional contact with the public. (Id. at 18). 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 19)
The ALJ found that based upon these restrictions, Plaintiff
is unable to do her past relevant work as a certified nursing
assistant and a housekeeper. (Id. at 22). However, utilizing the
testimony of a VE, the ALJ concluded that considering Plaintiff’s
RFC for less than a full range of light work, as well as her age,
education, and work experience, there are still jobs existing in
the national economy that Plaintiff is able to perform, such as
“odd piece checker”, “car checker”, and “garment sorter.” (Id. at
23). Thus, the ALJ concluded that Plaintiff is not disabled.
As
Court’s

noted

supra,

review.

Plaintiff

Having

presents

found

herein

8

three
that

issues

for

Plaintiff’s

the

first

asserted error requires remand to the Commissioner, the Court
pretermits its discussion of the remaining claims.
In

her

brief,

Plaintiff

argues

that

the

ALJ’s

RFC

determination is not supported by substantial evidence due to the
absence of a medical source statement or a functional assessment
capacity. (Doc. 13). The Commissioner counters that the ALJ’s
decision, and RFC finding, is supported by substantial record
evidence. (Doc. 14). Upon a review of the ALJ’s decision, and the
record

evidence,

Plaintiff’s
surgeries,

the

history
post

undersigned
of

surgery

back

finds

problems,

epidural,

pain

that

in

light

of

including

two

back

medication

including

Lortab and Flexeril, ongoing complaints of pain, coupled with her
obesity,

the

substantial

ALJ’s

RFC

evidence

determination

because

the

record

is

not

does

supported
not

include

by
a

functional capacities evaluation completed by a physician.
The RFC is the most that a claimant can do despite his
limitations. See 20 C.F.R. § 404.1545(a)(1). The ALJ is required
to assess a claimant’s RFC based on all of the relevant evidence
in the record, including any medical history, medical signs and
laboratory findings, the effects of treatment, daily activities,
lay evidence and medical source statements. Id. The determination
of the RFC is within the authority of the ALJ. Lewis v. Callahan,
125

F.3d

1436,

assessment,

an

1440
ALJ

(llth

“‘has

a

Cir.
duty

9

1997).
to

develop

In

making

the

an

record

RFC

where

appropriate

but

is

not

required

to

order

a

consultative

examination as long as the record contains sufficient evidence
for the [ALJ] to make an informed decision.’” Castle v. Colvin,
557 Fed. Appx. 849, 853 (llth Cir. 2014)(quoting Ingram v. Comm’r
of Soc. Sec. Admin., 496 F.3d 1253, 1269 (llth Cir. 2007)); Green
v.

SSA,

223

Fed.

2007)(unpublished)(the

Appx.

915,

Eleventh

Circuit

923-24
affirmed

(llth
the

Cir.

district

court’s finding that the ALJ’s RFC assessment was supported by
substantial evidence, even in the absence of an RFC assessment by
a treating or examining medical source, where the ALJ had good
cause

to

discredit

the

treating

physician’s

opinion

and

had

formulated the plaintiff’s RFC based on the treatment records and
the plaintiff’s testimony); see also Packer v. Astrue, 2013 U.S.
Dist. LEXIS 20580, *7, 2013 WL 593497, *2 (S.D. Ala. February 14,
2013) (the fact that no treating or examining medical source
submitted a physical capacities evaluation “does not, in and of
itself, mean that there is no medical evidence, much less no
‘substantial evidence,’ to support the ALJ’s decision.”).
In Castle, the plaintiff alleged that a problem with his
knee kept him from working, and upon review, the district court
held that while the ALJ had good cause for rejecting the treating
physician’s

RFC

assessment,

he

erred

in

not

ordering

a

consultative examination because the record contained no medical
opinion

regarding

the

RFC

after

10

the

rejection

of

the

RFC

assessment completed by the treating physician.
Eleventh

Circuit

held

that

the

ALJ’s

RFC

On appeal, the

determination

was

supported by substantial evidence and pointed to the following:
1) the claimant’s lack of treatment for his knee problems; 2) the
claimant’s denial of musculoskeletal issues; 3) the claimant’s
weekly regiment which sometimes included mowing the yard for four
hours;

and

4)

the

fact

that

the

claimant’s

physicians

had

released him without work restrictions. Castle, 557 Fed. Appx. at
853. Castle, like Packer and Green, illustrates the type of case
in which no physician’s physical capacities evaluation was needed
because
effect

so
would

little
have

physical
been

impairment

apparent

to

a

was
lay

involved
person.

that
See

the

Manso-

Pizarro v. Secretary of Health & Human Servs., 76 F. 3d 15, 19
(lst

Cir.

impairments

1996).
are

broad,

Where

however,

complex

and/or

“the

alleged

ongoing”,

a

physical

physicians’

evaluation is required. Rogers v. Barnhart, 2006 U.S. Dist. LEXIS
101120, *6 (N.D. Ala. Oct. 16, 2006).
As noted, the records in this case reflect that Plaintiff
underwent two back surgeries in 2012. (Id. at 302, 312).

The ALJ

reviewed the treatment records and concluded that the records are
not “indicative of ongoing, disabling symptoms, since following a
second surgery [plaintiff] has received medication management”
and that her “decreasing complaints after she underwent a second
surgical intervention for her back pain indicate her condition

11

improved.” (Id. at 20-21).

According to the ALJ, on October 3,

2012, two months post-surgery, Plaintiff had a positive straight
raise

leg

test

on

the

left,

5/5

strength

in

her

lower

extremities, and an antalgic gait on the left side. (Id. at 20,
351). The ALJ noted that after this date, there is no notation of
an ambulatory aid or antalgic gait. (Id. at 21). The ALJ further
noted that on October 11, 2012, a nerve study showed no clear
active

evidence

medications

of

included

lumbar

radiculopathy,

Lortab

5,

fish

that

oil,

Plaintiff’s

Dulera,

Cipro,

Levothyroxine, Lortab 7.5, and Medrol. (Id. at 20, 21, 341), and
that Plaintiff received a lumbar epidural October 17, 2012.

(Id.

at 21, 390, 398).
Additionally, the ALJ noted that in 2013, Plaintiff had five
visits to the Franklin Health Clinic (“Franklin”). (Id. at 21,
390,

398,

421-422,

424-425,

427-429,

437).

While

the

ALJ

correctly notes that back pain was not listed in the history of
present

illnesses

in

the

Franklin

treatment

records

dated

September 23 and November 14, the Franklin records do reflect that
Plaintiff continued to complain about back pain in 2013 and she
was prescribed pain medication. (Id. at 421-439).
For example, the Franklin notes dated June 11, 2013 reflect
that Plaintiff complained of hypertension and acute joint pain,
which was said to be 8/10 on a numeric pain scale. (Id. at 427).
A review of her musculoskeletal system was positive for back and

12

joint

pain

weakness,

on

that

muscle

date,

though

weakness,

and

it

neck

was

negative

for

(Id.

427).

pain.

at

joint
The

recommended plan on that date was a procedure at L4-L5, and to
continue

to

Plaintiff’s

control
next

the

visit

pain

was

with

on

Lyrica.

September

at

2013.

12,

(Id.

429).

Plaintiff

complained of aching, radiating back pain, 9/10 on a numeric pain
intensity scale, and on that date Plaintiff was told to continue
on

her

pain

medication.

(Id.

at

424-425).

A

review

of

her

musculoskeletal system on that date was positive for back and
joint pain. (Id. at 425). Plaintiff returned to Franklin 11 days
later for hypertension, an abnormal lab, and hypothyroidism. A
physical exam of her musculoskeletal system was noted as normal,
although she reported pain of 8/10 on a numeric pain intensity
scale. (Id. at 421-422). The treatment notes from November 14,
2013 indicate that Plaintiff was treated for hypertension, and
that a review of the musculoskeletal system was negative. (Id. at
437). The notes further reflect that in addition to hypertension,
Plaintiff was diagnosed with displacement of her intervertebral
disc and obesity, and was prescribed pain medication.7
While this medical evidence suggests that Plaintiff may have
experienced some degree of improvement in her back pain following
7

The notes also reflect that Plaintiff was receiving conventional
pain treatment (“CPT”) because she was not able to follow up with
neurology or neurosurgery due to the lack of insurance. (Id. at
437).

13

her second surgery and the epidural, the evidence also reflects
that Plaintiff was continuing to experience issues with the pain
in

her

back,

result.

and

continued

on

pain

medication

regiment

as

a

In light of Plaintiff’s history of two back surgeries

and ongoing treatment for back pain, along with her obesity and
testimony regarding her limited activities, the undersigned finds
that under the facts of this case, the ALJ was required to obtain
a functional physical assessment as the medical evidence does not
suggest a relatively little physical impairment.

See McCright v.

Colvin, 2014 U.S. Dist. LEXIS 50305, *15 (N.D. Ala. April 11,
2014)(“when an ALJ makes an RFC determination about a claimant
who…

has

severe

a

complex

medical

impairments,

supporting

medical

[the

history

ALJ]

source

and

should

statement

suffers

have

or

a

evaluation from an examining physician.
ALJ]

risks

substituting

physician.”);

Palmore

his

v.

own

[]

Colvin,

the

several

benefit

physical

of

a

capacities

Without [such], [the

judgment

2014

from

U.S.

for

Dist.

that
LEXIS

of

a

95912

(N.D. Ala. July 15, 2014)(Although the ALJ found and the record
demonstrated that the claimant’s impairments were controlled with
medication,

without

medical

source,

whether

the

a

the

claimant

physical

ALJ

was

could

capacities

not
work

in

a

assessment

position

despite

his

regardless of whether or not the were controlled.)

to

from

a

determine

impairments

—

Accordingly,

this matter is due to be reversed and remanded so that a physical

14

capacities evaluation can be completed prior to conducting an RFC
analysis.
VII.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

Commissioner
disability

is
of

and

hereby
Social

ORDERED
Security

disability

that
denying

insurance

the

decision

Plaintiff’s

benefits

be

of

the

claim

for

REVERSED

and

REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
further proceedings not inconsistent with this decision. 8

See

Melkonyan v. Sullivan, 501 U.S. 89 (1991).

DONE this 31st day of March, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

8

The remand pursuant to sentence four of § 405(g) makes the
plaintiff a prevailing party for purposes of the Equal Access to
Justice Act, 28 U.S.C. § 2412, and terminates this Court’s
jurisdiction over this matter. See Shalala v. Schaefer, 509 U.S.
292 (1993).
15