United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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. (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).
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).
the filing of this appeal, the claimant filed a motion to
remand pursuant to Social Security Ruling 16-3P. (Doc. 14).
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
Whether this court should remand this matter to the ALJ for
further proceedings consistent with Social Security Ruling
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.
STANDARD OF REVIEW
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).
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).
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.
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.
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
(5) Is the person unable to perform any other work within the
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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.
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).
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).
Medical History - ALJ's Record
Physical a. Bronchitis
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).
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.
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).
Orthopedic Matters: Low Back Pain and Foot Problems
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).
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).
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).
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.
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) ...