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Humphrey v. Berryhill

United States District Court, N.D. Alabama, Middle Division

March 23, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.




         On April 18, 2012, the claimant, Sandra Humphrey, applied for a period of disability and disability insurance benefits under Title XVI of the Social Security Act.[1] (R. 116, 192-98). The claimant alleges disability commencing on January 25, 2012 because of depression, fibromyalgia, back problems, and being a slow learner. (R. 192, 246). The Commissioner denied the claim both initially and on reconsideration. (R. 136-41). The claimant filed a timely request for a hearing before an Administrative Law Judge, and the ALJ held a video hearing on January 17, 2014. (R. 79-98, 146-47).

         In a decision dated March 26, 2014, the ALJ found that the claimant was not disabled as defined by the Social Security Act. (R. 57-74). On November 9, 2015, the Appeals Council denied the claimant's request for review; consequently, the ALJ's decision became the final decision of the Commissioner of the Social Security Administration. (R. 1-3). The claimant has exhausted her administrative remedies, and appeals from the final decision denying her claims. This court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3).

         After the filing of this appeal, the claimant filed a motion to remand pursuant to Social Security Ruling 16-3P. (Doc. 14).

         For the reasons stated below, this court WILL DENY the motion to remand based on Social Security Ruling 16-3p; however, it WILL REVERSE and REMAND the decision of the Commissioner for consideration of the additional evidence presented to the Appeals Council.


         1. Whether this court should remand this matter to the ALJ for further proceedings consistent with Social Security Ruling 16-3p.

         2. Whether the Appeals Council erred in refusing to review certain medical records submitted subsequent to the ALJ's opinion, and in failing to remand the matter to the ALJ.


         The standard for reviewing the Commissioner's decision is limited. This court must affirm the ALJ's decision if he applied the correct legal standards and if substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         “No…presumption of validity attaches to the [Commissioner's] legal conclusions, including determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. This court does not review the Commissioner's factual determinations de novo. The court will affirm those factual determinations that are supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971).

         The court must keep in mind that opinions, such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity, and the application of vocational factors, “are not medical opinions, …but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only look to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).


         Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable 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. § 423(d) (1) (A). To make this determination the Commissioner employs a five-step, sequential evaluation process:

(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).[3]

         V. FACTS

         A. Background

         The claimant was forty-one years old at the time of the ALJ's decision. (R. 74). She had completed the seventh grade, and attended special education classes from 1982 to 1987. (R. 246-47). When she received an evaluation from Psychologist Dr. Kline, she denied being in special education classes at school (R. 480); however, when Psychologist Dr. Wilson examined her, she claimed that she was in special education. (R. 597). Records that appear to be for 7th grade at St. Clair County High School for two consecutive years, 86-87 and 87-88, show the letters “L.D.” next to her English and math classes, which suggests that she was considered learning disabled. (R. 595). She never received a GED. (R. 597).

         Her past relevant work positions were cashier and fry cook. She advised Dr. Kline that the latter job ended in January 2012 when the business closed (R. 95, 480); however, she told Dr. Wilson that she had to stop her last job at a convenience store/restaurant “because she could not unload the trucks.” (R. 597).

         B. Medical History - ALJ's Record

         1. Physical a. Bronchitis

         Although the claimant has a history of bronchitis, the record reflected no hospitalization treatment for that condition since August 31, 2008, and a chest x-ray on that date was negative. (R. 328). In February of 2010, before back surgery, the chest x-ray showed that the lungs were clear with no pleural effusion. (R. 346).

         Subsequent records from INRI Medical Associates of Pell City, Alabama reflected some complaints of cough, faint wheezes, and chest congestion, but no subsequent diagnoses of bronchitis. (R. 368-408).

         On December 15, 2012, February 23, 2013 and August 29, 2013, records from Northside Medical Associates in Pell City, Alabama and the claimant's family practice doctor, Michael Dupre, indicate that the claimant was treated for cough, chest congestion and sinus pressure and received a diagnosis of acute bronchitis, but that the symptoms apparently resolved with injections and medications, because the follow up treatment did not show further problems. (R. 511, 519, 521).

         b. Orthopedic Matters: Low Back Pain and Foot Problems

         The record reflected that the claimant has received years of treatment for low back pain. Before July of 2009, she had a fusion of her lumbar spine on the left at the L5-SI level. On July 13, 2009, after looking at x-rays and a lumbar CT of the area, Dr. Jeffrey Todd Smith, a treating orthopedic surgeon, recommended removal of the fusion screws and a revision decompression on the right of the lumbar area. On February 18, 2010, the claimant returned with low back and right lower extremity pain, and Dr. Smith performed the recommended back surgery. By April of 2010, she reported pain in the neck and bilateral hips and received a diagnosis of bursitis. Over the next few months through October of 2010, she returned with low back and right pain and hip pain and received several pain injections for the diagnosis of chronic right hip trochanteric bursitis (inflammation of the bursa at the outside point of the hip) with right posterior trigger point over the PSIS (the posterior superior iliac spine, part of the hip bone). (R. 329-356; 357-367).

         Records from the family practitioner Michael Dupre reflected that he treated her from July 2012 through December of 2013 for a variety of problems, and, although he is not an orthopedist, his records included references to her history of back surgery and her back pain. (R. 507-531).

         From January to May of 2012, pain specialist Dr. Michael Scott Kendrick treated her for post laminectomy syndrome, a condition characterized by persistent pain following back surgeries. He treated her with medication, epidural steroid injections and a TENS unit, and the examination on May 31, 2012 reflected that she walked with an antalgic gait that characterizes those in pain with the bearing of weight, and that she complained of pain with motion in extension, flexion and static tests. (R. 419-473).

         Records from a second pain center, Greystone Neurology and Pain Center, showed that the center treated Ms. Humphrey from July of 2012 through January of 2014. The first notes from Dr. Dayna London, a physical medicine and rehabilitation specialist at the center, indicated that the claimant had a mild antalgic gate and that she was unable to heel and toe walk without difficulty. The doctor noted tenderness around the L4-5 area with muscle tenderness in the area as well as tenderness in the right sacral sulcus, right gluteal muscle and right greater trochanter. She also noted that the lumbar extension was severely reduced with pain and mild reduction in the lumbar extension with right and left rotations. The claimant received various pain medications, including Lortab. (R. 475-77).

         Dr. London ordered a nerve conduction study and an electromyogram that occurred on August 1, 2012; this testing was to evaluate lumbar radiculopathy (a condition in which a compressed nerve in the spine can cause pain, numbness, tingling or weakness along the course of the nerve) vs mononeuropathy (a condition in which only a single nerve or nerve group is damaged) ...

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