Battle v. Astrue

Filing 24

MEMORANDUM OPINION AND ORDER entered that that the decision of the Commissioner be REVERSED and that this action be REMANDED for further proceedings not inconsistent with the Orders of this Court. Signed by Magistrate Judge Bert W. Milling, Jr on 4/28/2011. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LEISA BATTLE,

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

CIVIL ACTION 10-0548-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13-14).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 22).
argument was waived in this action (Doc. 23).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
proceedings not inconsistent with the Orders of this Court.
1

This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

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

The

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

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

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty years old, had completed a high school education (Tr.
109), and had previous work experience as a cashier and
seamstress (Tr. 16).

In claiming benefits, Plaintiff alleges

disability due to migraine headaches, cervical degenerative disc
disease, hypertension, and depression (Doc. 14 Fact Sheet).
The Plaintiff filed applications for disability insurance
and SSI on December 5, 2007 (Tr. 90-95; see Tr. 39).

Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that Battle was capable of performing her
past relevant work as a cashier (Tr. 36-40).
2

Plaintiff

requested review of the hearing decision (Tr. 6-7) by the
Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Battle alleges

(1) The Appeals Council did not properly consider the

opinions and conclusions of the treating physician; (2) the ALJ
failed to properly evaluate her pain; (3) the ALJ’s residual
functional capacity (hereinafter RFC) is unsupported by the
evidence; and (4) the ALJ improperly rejected evidence of
depression (Doc. 13).

Defendant has responded to—and denies—

these claims (Doc. 18).

The relevant medical evidence of record

follows.
On January 21, 2000, an MRI of the cervical spine, without
contrast, demonstrated that Battle suffered moderate
degeneration in the C4-5 and C5-6 discs with posterior bulging
at both levels, but no definite neural impingement was seen (Tr.
160).

The findings were more asymmetric to the right; no neural

foraminal stenosis and significant facet arthritis was seen.
Records from the DCH Health System Emergency Room records
show an admission on July 10, 2005 following three days of
suffering from a migraine headache with symptoms of photophobia

3

and nausea; she was treated with a Demerol1 and Phenergan2 (Tr.
172-74).

On August 17, 2006, following two days of a migraine,

accompanied by vomiting, Plaintiff was treated with Fiorinol3
(Tr. 164-66).

On December 21, 2007, Battle went to DCH on the

fourth day of a migraine and was given Demerol and Phenergan
(Tr. 161-63).
Records from the Hale County Hospital Clinic show that
Battle was treated for a tension headache of several days’
duration on January 18, 2005 with Phenergan and Demerol; her
blood pressure was elevated (Tr. 221; see generally Tr. 203-32).
A headache and hypertension were noted on August 2, 2005 (Tr.
219).

In November, Battle complained of daily headaches (Tr.

217).

Plaintiff was seen in the Clinic on January 13, 2006,

following an ER visit for a migraine, when depression and
anxiety were noted; Battle was given prescriptions for Fioricet
and Elavil4 (Tr. 215). On March 2, Plaintiff complained of a twoday headache for which she was given a prescription for Fioricet

1

Error! Main Document Only.Demerol is a narcotic analgesic used
for the relief of moderate to severe pain. Physician's Desk Reference
2570-72 (52nd ed. 1998).
2
Error! Main Document Only.Phenergan is used as a light sedative.
Physician's Desk Reference 3100-01 (52nd ed. 1998).
3
Error! Main Document Only.Fiorinal is used for relieving tension
(or muscle contraction) headaches. Physician's Desk Reference 1855-57
(52nd ed. 1998).
4
Error! Main Document Only.Amitriptyline, marketed as Elavil, is
used to treat the symptoms of depression. Physician's Desk Reference

4

(Tr. 214).

X-rays of the cervical and thoracic spine on October

15, 2006 suggested minimal spurring on the anterior margin of
the C5-6, but no gross deformity; the thoracic spine was normal
(Tr. 226).

A migraine headache on October 25 resulted in

prescriptions for Fioricet with codeine and Toradol5 (Tr. 213).
On November 7, Plaintiff complained of headaches and depression
for which she was prescribed Fioricet with codeine and given
samples of Wellbutrin6 (Tr. 212); these two prescriptions were
given again on January 8, 2007 when Battle complained of
headaches (Tr. 211).

A three-day migraine on February 2

prompted renewal of the medications (Tr. 210).

On March 2,

Plaintiff complained of a headache lasting for two days with
vomiting; she had no medications and was prescribed Toradol (Tr.
208).

On August 3, 2007, Battle was diagnosed with a migraine

headache and hypertension and was prescribed Toradol, Fioricet
with codeine, and Verapamil7 (Tr. 207).

On October 18, it was

noted that Plaintiff complained of a headache and had a history
of migraines, but that she did not refill her prescription for

3163 (52nd ed. 1998).
5
Toradol is prescribed for short term (five days or less)
Amanagement of moderately severe acute pain that requires analgesia at
the opioid level.@ Physician's Desk Reference 2507-10 (52nd ed. 1998).
6
Error! Main Document Only.Wellbutrin is used for treatment of
depression. Physician's Desk Reference 1120-21 (52nd ed. 1998).
7
Verapamil is used for the treatment of hypertension. Error!
Main Document Only.Physician's Desk Reference 3070-71 (62nd ed. 2008).

5

the Fioricet (Tr. 206).

On March 11, 2008, Battle complained of

middle and left shoulder pain for which she was given
prescriptions for Mobic8 and Flexeril9 (Tr. 205).

A three-day

headache sent Plaintiff to the Clinic on April 22 for which she
received a prescription of Fioricet (Tr. 204).

On June 6,

Battle complained of a headache and said that she had run out of
her medications; she was prescribed Fioricet with codeine and
Toradol (Tr. 203).
Emergency Room records from the Hale County Hospital show
that Plaintiff presented to the Hospital and was treated for
migraine headaches on January 11, 2006 (Tr. 287-88 see generally
Tr. 233-88), October 31, 2006 (Tr. 264-65), September 9, 2007
(Tr. 248-51), June 13, 2008 (Tr. 237-41); she was treated for
tension headaches on the following dates:

March 29, 2006 (Tr.

281-83), July 15, 2006 (Tr. 271-72), September 25, 2006 (Tr.
268-29), October 21, 2006 (Tr. 266-67), January 1, 2007 (Tr.
260-63).
On February 22, 2008, Dr. James R. Saxon performed a

8

Error! Main Document Only.Mobic is a nonsteroidal antiinflammatory drug used for the relief of signs and symptoms of
osteoarthritis and rheumatoid arthritis. Physician's Desk Reference
855-57 (62nd ed. 2008).
9
Error! 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).

6

consultative examination of Battle who told him that she had not
been able to afford her prescriptions and was having to take
over the counter medications to alleviate her pain (Tr. 176-79).
The doctor noted blood pressure of 120/88 and a pulse of 88;
Plaintiff had mild pain on range of motion (hereinafter ROM)
testing of her cervical spine.

Pinprick sensation was less in

the left arm and leg compared to the right; gait was normal.
Saxon’s assessment was cervical degenerative disc disease and
arterial hypertension; in performing ROM testing, Saxon noted
some limitations, not specified herein.
Hale County Hospital ER records show that Plaintiff was
treated on September 11, 2008 for a migraine hospital with
Toradol and Phenergan (Tr. 362-69).

On September 20, Battle was

given Lortab10 to treat her hypertension headache and prescribed
Darvocet11 (Tr. 354-61).

Five days later, Plaintiff was treated

for malignant hypertension and headaches (Tr. 348-53).

On

October 9, 2008, Battle underwent a bilateral carotid doppler
ultrasound that showed that she had up to fifty percent stenosis
involving the internal carotid artery on each side, but no

10

Error! 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).
11
Error! Main Document Only.Propoxyphene napsylate, more commonly
known as Darvocet, is a class four narcotic used “for the relief of
mild to moderate pain” and commonly causes dizziness and sedation.

7

evidence of hemodynamically significant stenosis (Tr. 345-47).
On November 23, Battle was given Toradol and Phenergan for a
migraine (Tr. 337-44).
Records from the Hale County Hospital reveal that Battle
was treated for migraine headaches on June 25, 2009 (Tr. 316-23;
see generally Tr. 299-325) and August 29-30, 2009 (Tr. 299-315).
On September 2, 2009, Psychologist John R. Goff examined
Plaintiff and found her oriented in all spheres; logical memory
for verbal material was poor (Tr. 326-33).

The results of the

WAIS-R were a full scale IQ score of 70, the lower end of the
borderline range of psychometric intelligence; other testing
showed that Battle was functionally literate.

Goff thought that

Plaintiff was more intelligent than the testing showed; the
suggested diagnosis was paranoid personality disorder and
depression.

The Psychologist completed a medical source opinion

form in which he indicated that Battle was extremely limited in
her ability to respond appropriately to supervision, co-workers,
and customary work pressures; he also indicated that she was
markedly limited in her ability to do the following:

deal with

changes in a routine work setting, respond appropriately to
customers or other members of the general public, use judgment

Physician's Desk Reference 1443-44 (52nd ed. 1998).

8

in simple one- or two-step, detailed, or complex work-related
decisions, and maintain attention, concentration or pace for
periods of at least two hours.
On January 21, 2000, Plaintiff underwent an MRI of the
cervical spine, without contrast, which showed moderate
degeneration of the C4-5 and C5-6 with posterior bulging at both
levels; there was no definite neural impingement (Tr. 335).

The

findings were more asymmetric to the right compared to the left
which is opposite of what was expected based on Battle’s
complaints.
Following the ALJ’s determination, Plaintiff’s attorney
submitted more medical information for the Appeals Council to
consider (Tr. 377-78; see also Tr. 379-463).

That evidence will

not be summarized herein.
Records from Hale County Hospital show that Battle was seen
on September 12, 2009 for a headache and hypertension for which
she was given Phenergan and Celebrex12 (Tr. 456-63).

On October

11, Plaintiff was given Phenergan and Toradol for a headache
(Tr. 448-55).

On April 3, Plaintiff was given Demerol and

Phenergan for a migraine headache (Tr. 418-23).

12

Error! Main Document Only.Celebrex is used to relieve the signs
and symptoms of osteoarthritis, rheumatoid arthritis in adults, and
for the management of acute pain in adults. Physician's Desk

9

On March 13, 2010, Plaintiff went to Hale County Hospital
but was transferred (Tr. 437-47) to DCH Regional Medical
Hospital where it was determined that she had an aneurismal
subarachnoid hemorrhage (Tr. 400-16).

She was then transferred

to the University of Alabama in Birmingham Hospital on March 1430, 2010 for neurological surgery; Battle made an excellent
recovery and was found to be neurologically intact on discharge
(Tr. 387-400).
Records from the Hale County Hospital Clinic on October 30,
2009 show that Plaintiff came in with a headache and no
medications; she was prescribed Fioricet with codeine, blood
pressure medication, and Elavil (Tr. 386).

Battle was seen

again on January 5, 2010, saying that her headaches were much
better; she was treated for hypertension (Tr. 384).

Plaintiff

was seen on April 5 as a follow-up to the aneurysm that she had
suffered two weeks before (Tr. 383).
On April 26, 2010, Dr. Perry Timberlake, one of Battle’s
treating doctors at the clinic, completed a medical source
statement in which he indicated that Battle was capable of
sitting and standing or walking for two hours during an eighthour day; she was also capable of lifting five pounds

Reference 2585-89 (58th ed. 2004).

10

occasionally and one pound frequently (Tr. 380).

Timberlake

further indicated his belief that Plaintiff, only on rare
occasions, should use arm and/or leg controls, climb, engage in
gross or fine manipulation, bend and/or stoop, reach, and
operate motor vehicles but should never work with or around
hazardous machinery.

The doctor thought that Battle would

likely be absent from work more than three times a month due to
impairments or treatment; it was his opinion that these
limitations were confirmed by objective evidence and normally
expected from the type and severity of her impairments.

Dr.

Timberlake also completed a pain assessment in which he
indicated the following:

Plaintiff’s pain would distract her

from adequately performing her daily activities; physical
activity would increase her pain to an extent that she would
require bed rest or medication; and that medication would place
severe limitations on the most simple tasks for her (Tr. 381).
Timberlake thought that Battle’s medical condition would be
expected to produce the pain which she claimed to experience and
that the pain would prevent her from maintaining attention,
concentration or pace for periods of two hours or more.
This concludes the medical evidence of record.
Plaintiff’s first claim is that the Appeals Council did not
11

properly consider the opinions and conclusions of the treating
physician.

Battle refers to the medical source statement and

pain questionnaire completed on April 26, 2010 by Dr. Perry
Timberlake (Doc. 13, pp. 9-11; Tr. 380-81).

This was part of

the medical evidence submitted to the Appeals Council after the
ALJ’s decision had been rendered.
It should be noted that "[a] reviewing court is limited to
[the certified] record [of all of the evidence formally
considered by the Secretary] in examining the evidence."
v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry

However, “new

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

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).

Under

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

To make that determination, the

Court considers whether the claimant “establish[ed] that:
there is new, noncumulative evidence; (2) the evidence is
12

(1)

'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."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
In examining the action at hand, the Court notes that
Plaintiff is claiming that the ALJ’s decision is not supported
by substantial evidence and also challenges the Appeals
Council’s decision in finding no basis to change the ALJ’s
decision (Doc. 13, pp. 9-10).

The Court further notes that the

Appeals Council denied any basis for changing the ALJ’s opinion;
it stated, however, that it had considered the newly-submitted
evidence (Tr. 1-5).

The Court has already summarized the new

evidence above and will now examine it under Caulder.
The Court finds that Dr. Timberlake’s medical source
opinion would render Plaintiff incapable of performing any work
whatsoever as she is capable of sitting and standing or walking
for only two hours during an eight-hour day (Tr. 380).
less than a full day’s work.

This is

Furthermore, the doctor found her

capable of lifting only five pounds occasionally and one pound
frequently (Tr. 380).

This does not satisfy the lifting

13

requirements for sedentary work.13

Dr. Timberlake’s pain

assessment renders Battle’s ability to work seem even more
unlikely.

The Court finds that this satisfies the first prong

of Caulder as the medical evidence from Dr. Timberlake is noncumulative to the other evidence of record.
The second Caulder prong is a query as to whether the
evidence is “material,” that is, relevant and probative so that
there is a reasonable possibility that it would change the
administrative result.

In his less than five-page decision, the

ALJ discounted Plaintiff’s testimony as contradicted by the
evidence (Tr. 38).

In weighing the medical evidence, he gave

significant weight to a non-examining State physician with
regard to Battle’s mental abilities, great weight to a State
agency non-medical source’s opinions regarding Plaintiff’s
physical abilities, and “significant weight to Dr. Saxon’s
opinion that there was no identifiable evidence for a
determination of disability” (Tr. 39).
The Court notes that although Dr. Saxon did perform Range

13

Error! Main Document Only.“Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.” 20 C.F.R. §
404.1567(a) (2010).

14

of Motion testing, he expressed no opinion as to Battle’s
ability to perform any of the activities associated with
performing a day’s work (Tr. 176-79).

The only examining

physician who provided any such evidence was Dr. Timberlake; a
physical RFC assessment was completed by a non-examining nonmedical person which the ALJ assigned great weight (Tr. 181-88).
As Dr. Timberlake’s report directly contradicts that of the nonexamining non-medical person, the Court finds that there is a
reasonable probability that the administrative result would be
different if the ALJ had had an opportunity to view it.
The third prong of Caulder is a query as to whether there
is good cause for the failure to submit the evidence at the
administrative level.

The Court finds that this requirement is

satisfied because the evidence did not exist at the time the ALJ
rendered his decision; he did not have the opportunity to
consider it.

Though the Appeals Council says that it

considered14 the evidence, the Court finds that its decision not
to review the ALJ’s decision is not supported by substantial

14

Plaintiff has questioned whether the Appeals Council even really
considered the evidence in light of its “Exhibits List” which lists
the new evidence as coming only from the University of Alabama (Doc.
13, p. 10; cf. Tr. 5; see also Tr. 378). The Court accepts the
Council’s affirmation, but notes that it is less than convincing that
the evidence was actually considered in light of its failure to
properly acknowledge all of the evidence submitted.

15

evidence.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is recommended that the action be reversed

and remanded to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding Plaintiff’s ability to work.

For further

procedures not inconsistent with this recommendation, see
Shalala v. Schaefer, 509 U.S. 292 (1993).

Judgment will be

entered by separate Order.
DONE this 28th day of April, 2011.

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

16