Gilford et al vs. Colvin
MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further action not inconsistent with the Orders of this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 12/21/2016. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Social Security Commissioner,
CIVIL ACTION 16-290-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 denying claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13).
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),
Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 18).
Oral argument was waived in this action (Doc. 19).
considering the administrative record and the memoranda of the
parties, it is ORDERED that the decision of the Commissioner be
REVERSED and that this action be REMANDED for further action not
inconsistent with the Orders of this Court.
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).
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
thirty-three years old, had completed some college education
(Tr. 61), and had previous work experience as a companion,
nurse’s aide, and a waitress (Tr. 70).
disability due to Erb’s palsy and resulting loss of the use of
her right arm, asthma, obesity, and arm and hand pain (Doc. 12).
Plaintiff applied for disability benefits and SSI on May
22, 2013, asserting an onset date of December 11, 2012 (Tr. 41,
An Administrative Law Judge (ALJ) denied benefits,
determining that Gilford was capable of performing her past work
as a companion (Tr. 41-50).
Plaintiff requested review of the
hearing decision (Tr. 34-37), but the Appeals Council denied it
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
(1) The ALJ did not properly consider the
opinions of the doctors; (2) the ALJ did not weigh all of the
evidence; and (3) the ALJ improperly discredited her pain
testimony (Doc. 13).
Defendant has responded to—and denies—
these claims (Doc. 14).
The Court’s summary of the relevant
record evidence follows.1
On May 16, 2013, Dr. Roseanne Cook examined Gilford for
cold symptoms, anxiety, and obesity (Tr. 345-49, 355).
Doctor noted that Plaintiff’s Body Mass Index was 48.91,
characterized as extremely obese.2
On June 20, Gilford
complained of right shoulder pain, radiating to the hand, with a
severity level of ten, occurring intermittently and getting
worse; the pain was sharp and throbbing and aggravated by
lifting (Tr. 341-44).
Tenderness and moderate pain with motion
were noted; Gilford was encouraged to start exercise therapy and
to limit her fat when eating.
On June 21, Gilford went to the J. Paul Jones Hospital
Emergency Room for worsening pain in her right arm, radiating
into her hand, with numbness; she had decreased motor strength,
though sensation was grossly intact (Tr. 327-31).
1The Court will not review evidence that pre-dates Plaintiff’s
asserted date of disability by more than a year or that is not
relevant to the claims herein.
treated with Toradol3 and given prescriptions for Mobic4 and
Lortab5 and discharged in good condition.
On July 25, 2013, Dr. Celtin Robertson, Internist, examined
Gilford for right arm paralysis from birth and pain rated as ten
on a ten-point scale; Plaintiff reported needing help dressing
herself (Tr. 304-08).
Gilford could walk without assistance,
get on and off the exam table, and squat and rise.
performed range of motion (hereinafter ROM) tests and recorded
no movement in the right shoulder joint, elbow, forearm, wrist,
and fingers; he noted tenderness to palpation over the right
upper extremity, triggering a 10/10 sharp sensation.
arm was seventy percent as large as the left arm because of
atrophy; spasticity, hypertonia, and contracture were also
Motor strength was 1/5 in the right arm, though full
in the other extremities. Gilford could grip, hold, grasp, and
manipulate objects on the left, her dominant hand, but not on
the right; there was tenderness and spasticity, but no
sensation, in the right hand.
Robertson diagnosed Plaintiff to
have injury to the brachial plexus, but found that Gilford could
3Toradol is prescribed for short term (five days or less)
management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).
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).
5Lortab is a semisynthetic narcotic analgesic used for “the
relief of moderate to moderately severe pain.” Physician's Desk
Reference 2926-27 (52nd ed. 1998).
engage in maximum standing, walking, and sitting; at most, she
could lift ten pounds occasionally.
Plaintiff could never
reach, handle objects, finger objects, or feel objects with the
right arm and hand.
On October 14, 2013, Dr. Willie E. White examined Gilford
for pain and numbness in her right arm; the right arm and hand
were in a splint (Tr. 311).
Plaintiff was prescribed Flexeril6
and referred to another doctor.
On November 3, Dr. Cook saw Plaintiff for a rash and
constant, moderately severe, right shoulder pain, radiating into
her hand; the pain, rated as six at that time, was aggravated by
lifting and pushing, but relieved by medications (Tr. 338-40).
Diet and exercise were encouraged.
On November 14, Neurologist Dr. Walid W. Freij examined
Plaintiff, finding her alert and oriented in four spheres; he
noted weakness in the right upper extremity with no movement in
the fingers (Tr. 365-66).
The fingers were in flexion; she
could not flex at the biceps or extend at the triceps.
decreased, and reflexes were markedly decreased, in that
extremity; there was no pinprick or light touch sensation in the
arm all the way up to the shoulder.
Freij’s assessment was that
her pain was caused because her arm hung by her side, without
6Error! 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).
movement; he gave her a sling and prescribed Neurontin.7
On November 20, 2013, Gilford returned to the Emergency
Room for right arm pain and numbness in the fingers on that
hand; she had not taken her Neurontin in several days (Tr. 32125).
Plaintiff was unable to extend her fingers either actively
or passively in her right hand.
She was treated with Toradol,
Valium,8 and Percocet9 while Lortab was prescribed; Gilford was
instructed to take her medications as prescribed.
On November 26, Neurologist Freij administered nerve
conduction studies and an EMG that confirmed that Plaintiff had
Erb’s palsy and produced evidence of mild right carpal tunnel
syndrome and mild right sensory ulnar neuropathy (Tr. 367-70).
On December 5, Plaintiff returned to the ER for right
extremity pain; muscle spasm, neuropathy, and pain were noted
She was treated with Morphine, Valium, Toradol
and given prescriptions for OxyContin10 and Soma.11
7 Neurontin is used in the treatment of partial seizures and
nerve pain. Physician's Desk Reference 2110-13 (52nd ed. 1998).
8Error! Main Document Only.Diazepam, better known as Valium, is a
class IV narcotic is used for treatment of anxiety. Physician's Desk
Reference 2765-66 (62nd ed. 2008).
Percocet is used for the relief of moderate to moderately
severe pain. Error! Main Document Only.Physician's Desk Reference
1125-28 (62nd ed. 2008).
Error! Main Document Only.“OxyContin tablets are a controlledrelease oral formulation of oxycodone hydrochloride indicated for the
management of moderate to severe pain where use of an opioid analgesic
is appropriate for more than a few days.” Physician's Desk Reference
2344-46 (52nd ed. 1998).
Error! Main Document Only.Soma is a muscle relaxer used “for the
relief of discomfort associated with acute, painful musculoskeletal
conditions,” the effects of which last four-to-six hours. Physician's
On December 6, 2013, Dr. Cook noted that Gilford complained
of sharp, severe right shoulder pain, radiating into her
fingers, aggravated by bending, lifting, and movement (Tr. 33537).
ROM was noted to be severely reduced in the shoulder;
Ultram12 was added to the medication regimen.
On February 13, 2014, Dr. Freij noted that Gilford was
unable to lift things with her right arm; he increased her
Neurontin and added Baclofen13 to her prescriptions (Tr. 364).
On April 16, 2014, Plaintiff said that her arm still hurt; Dr.
Freij noted that she was able to move the arm, but the fingers
were weak (Tr. 363).
On August 15, 2014, Dr. Freij examined
Gilford for complaints that she was beginning to experience
numbness, tingling, and pain on her left side, though not in
those extremities; medications were helping her pain with the
level rated as six-to-seven (Tr. 379-80).
The Neurologist noted
right upper extremity weakness and that her hand was fisted; he
told Plaintiff to avoid repetitive wrist motions and to wear
On August 29, Freij conducted nerve conduction
studies and an EMG and found evidence of mild right carpal
tunnel syndrome affecting sensory components, mild left carpal
tunnel syndrome affecting sensory and motor components without
Desk Reference 2968 (52nd ed. 1998).
12Error! Main Document Only.Ultram is an analgesic “indicated for
the management of moderate to moderately severe pain.” Physician's
Desk Reference 2218 (54th ed. 2000).
13Baclofen is a muscle relaxer used in treating muscle symptoms
caused by multiple sclerosis, including spasm, pain, and stiffness.
evidence of denervation, and evidence of right Erb’s palsy (Tr.
On September 10, 2014, Dr. Cook noted that Gilford’s
cervical spine was tender and that there was mild pain with
motion; the right shoulder was paralyzed with severely
restricted ROM (Tr. 383-87).
The right elbow had severely
reduced ROM while the hand exhibited moderate pain with motion.
The balance of the exam was normal.
to diet and nutrition.
Plaintiff was counseled as
On that same date, Dr. Cook completed a
physical medical source statement indicating that Gilford was
capable of sitting five-to-six hours and standing or walking
four-to-five hours during an eight hour day; she could lift
and/or carry five pounds occasionally and one pound frequently
The Doctor indicated that Plaintiff should avoid
dust, fumes, gasses, and extreme temperature, humidity, and
other environmental pollutants.
Gilford was capable of gross
manipulation, fine manipulation, and bending and/or stooping
occasionally, climbing, balancing, reaching, operating motor
vehicles, and working around hazardous machinery rarely, but
could never use arm controls.
Cook thought that Plaintiff would
miss work, because of her impairments, three days a month.
Cook also completed a pain questionnaire indicating that
Gilford’s pain distracted her from adequately performing her
daily activities, that physical activity would increase her
pain, but would not prevent adequate functioning of those tasks,
and that her medications would cause some side effects, but that
they would be only mildly troublesome (Tr. 373).
indicated that Gilford’s medical condition could be expected to
cause her pain and that the pain would prevent her from
maintaining attention, concentration, or pace for periods of at
least two hours.
This concludes the Court’s summary of the evidence.
Gilford brings this action, first claiming that the ALJ did
not properly consider the opinions of the doctors (Doc. 13, pp.
Specifically, Plaintiff questions the ALJ’s weighing the
evidence provided by Drs. Cook and Robertson.
The Court notes that the ALJ is required to "state
specifically the weight accorded to each item of evidence and
why he reached that decision."
731, 735 (11th Cir. 1981).
Cowart v. Schweiker, 662 F.2d
Furthermore, social security
regulations provide the following instruction:
It is not sufficient for the
adjudicator to make a single, conclusory
statement that “the individual's allegations
have been considered” or that “the
allegations are (or are not) credible.” It
is also not enough for the adjudicator
simply to recite the factors that are
described in the regulations for evaluating
symptoms. The determination or decision
must contain specific reasons for the
finding on credibility, supported by the
evidence in the case record, and must be
sufficiently specific to make clear to the
individual and to any subsequent reviewers
the weight the adjudicator gave to the
individual's statements and the reasons for
SSR 96-7p (Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims:
Credibility of an Individual’s Statements).
treating physician’s opinion “must be given substantial or
considerable weight unless ‘good cause’ is shown to the
contrary,” existing when the:
(1) treating physician’s opinion
was not bolstered by the evidence; (2) evidence supported a
contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical
Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir.
2004)(quoting Lewis v. Callahan, 125 F.2d 1436, 1440 (11th Cir.
In determining that Robertson’s conclusions were entitled
to only “some weight,” the ALJ noted that although his opinions
were consistent with his findings, they were inconsistent with
the objective medical evidence that showed “only intermittent
complaints of pain, the claimant’s own report of her daily
activities, or with her work history” (Tr. 46).
The ALJ found
her physical capabilities were greater than the limitations
suggested by Robertson.
Likewise, the ALJ gave Dr. Cook’s opinions only “some
weight” (Tr. 48).
His first reason was that there was no
evidence that Gilford had any difficulties with her lower
extremities, rejecting Cook’s assessment that limited Gilford’s
sitting, standing, and walking abilities.
The ALJ went on to
find that the Doctor’s pain evaluation was inconsistent with
Plaintiff’s own report of her daily activities and work history.
In his determination, the ALJ pointed to work Plaintiff had
performed at Waffle House in 2008 as indicating that she could
still work (Tr. 48; cf. Tr. 204); that job pre-dated Gilford’s
onset date by four years.
The ALJ also cited Gilford’s ability
to make sandwiches at McDonald’s; again, that job pre-dated her
onset date (Tr. 48; cf. Tr. 63).
The Court finds that the ALJ’s
work history discussion indicates a failure to consider
medical condition during the time period she alleges
The Court further finds that this error carried over into
the ALJ’s evaluation of the medical evidence.
The ALJ minimized
the value of Dr. Cook’s opinions because of Gilford’s “own
report of her daily activities and  her work history” (Tr.
The ALJ rejected Robertson’s opinion, though “somewhat
consistent with his findings,” because of “the claimant’s own
report of her daily activities [and] her work history” (Tr. 46).
Doctor Robertson’s report of Gilford’s daily activities noted
her need for assistance in dressing herself and watching
television (Tr. 304-05).
By concluding that Plaintiff could
perform light14 work, the ALJ rejected, without explanation,
Robertson’s finding that she could only occasionally lift up to
ten pounds and Cook’s finding that she could lift only five
pounds (Tr. 44-45; cf. 308, 372).
The Court finds that the ALJ’s reasons for rejecting
the opinions of Drs. Cook and Robertson are not supported by
Furthermore, the Court notes that
although the ALJ reported Dr. Freij’s findings (Tr. 46-47), he
gave no indication of the weight he gave those reports.
significant in light of the Neurologist’s last examination in
which he found Gilmore’s right hand “fisted” and he ordered her
to wear braces on both wrists for her carpal tunnel syndrome
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.
Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
15Because of the Court’s ruling on the first claim, it is
unnecessary to reach the merits of the second and third claims.
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding Plaintiff’s work history and her ability
Judgment will be entered by separate Order.
DONE this 21st day of December, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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