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Kimbrell v. Berryhill

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

August 23, 2017

JEREMEY S. KIMBRELL, CLAIMANT,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, RESPONDENT.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On October 8, 2012, the claimant, Jeremey S. Kimbrell, protectively applied for a period of disability and disability insurance benefits, and for supplemental security income, under Titles II and XVI of the Social Security Act. He alleged disability beginning August 15, 2008, for back injury, scoliosis, degenerative disc disease, depression, and PTSD. Later, he amended his complaint to allege disability beginning November 1, 2011. The Commissioner denied the claims on December 12, 2012. The claimant filed a timely request for a hearing before an Administrative Law Judge. The ALJ held an initial hearing on April 4, 2014. After the record developed more fully, ALJ held a subsequent hearing on October 1, 2014. (R. 227-29, 232-40, 258, 41, 263, 140-50, 93-124, 63-92).

         In a decision dated December 16, 2014, the ALJ found that the claimant was not disabled as defined by the Social Security Act, and was therefore ineligible for social security benefits. The claimant submitted new medical records to the Appeals Council dated from February 13, 2015 to May 1, 2015. On May 20, 2016, 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. The claimant has exhausted his administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court affirms the decision of the Commissioner. (R. 41-51, 1-4).

         II. ISSUE PRESENTED

         Whether substantial evidence supports the ALJ in his finding that the claimant's statements about his symptoms were not entirely credible, and whether the ALJ erred regarding Social Security Ruling 06-09p in failing to explicitly address the testimony of the claimant's wife and mother.

         III. STANDARD OF REVIEW

         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).

         IV. LEGAL STANDARD

         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)1; 20 C.F.R. §§ 404.1520, 416.920.

         V. FACTS

         The claimant was 34 years old at the time of the ALJ's final decision. He has a ninth-grade education and some vocational training in communications and electronic certifications, with past relevant work as an electrician, a carpenter, station installer and repairman, and supervisor of cable installation. He alleges disability based on degenerative disc disease, scoliosis, depression, post-traumatic stress disorder, and back injury. (R. 51, 227, 100-105, 120, 263).

         Medical Records Regarding Physical and Mental Impairments Prior to the ALJ's Decision

         On March 26, 2002, Dr. R. Andrew Vanbergen, a radiologist, obtained an MRI of the claimant, which revealed evidence of early disc degeneration at the L5-S1 of the claimant's spine, contacting the left S1 to the nerve root. (R. 429).

         The claimant alleges that sometime in 2005, he fell 15-20 feet from a telephone pole and landed on a fence. The claimant states that he went to the emergency room, that the emergency room doctor at the time reportedly recommended lower back surgery, but that the claimant decided on the more conservative treatment of physical therapy. The record contains no notes of these visits. The claimant stated that he continued working. (R. 469-72).

         On March 28, 2005, because of lower back pain that he had been experiencing for a few weeks up to that point, the claimant sought treatment with Dr. Jeffrey M. Saylor, a family practitioner. Dr. Saylor prescribed Mobic for the pain and recommended the claimant follow up with Dr. Franklin Calame Sammons, an orthopedic surgeon. (R. 328).

         On April 4, 2005, Dr. Sammons evaluated the claimant. Dr. Sammons found that the claimant could stand erect and had no evidence of scoliosis or muscle spasms. The claimant complained of some discomfort in the lumbosacral regions with more pain associated with extension than flexion. The claimant showed normal rotary motions. He could walk in a normal heel to toe gait. His repetitive tiptoe raises were normal. Passive straight leg raises were negative at 90 degrees and caused some pain. Indirect straight leg raises were negative. Bilateral active straight leg raises caused some pain, and lying in a prone position was mildly painful. The claimant's sensory exam was normal, as were his pulses and knee and ankle reflexes. His motor exam showed full 5/5 strength for his quadriceps, anterior tibialis, extensor halluces longus, and the long flexors. Dr. Sammons also obtained x-rays, which revealed minor narrowing at L 5-S1 level of the claimant's lumbar spine. Dr. Sammons diagnosed the claimant with chronic discogenic back pain secondary to central paracentral herniated nucleus pulposus (HNP) without neurologic deficits. At the time, Dr. Sammons indicated that the claimant “is not ready to consider surgical intervention.” Dr. Sammons recommended exercises and gave the claimant a prescription for an anti-inflammatory. The claimant made no follow-up appointment, but the doctor told the claimant to return if his symptoms changed or worsened. (R. 431-32).

         The next relevant medical record occurred almost six years later, on March 23, 2011, when the claimant went to the emergency room with mental health issues. Specifically, the ER doctor treated the claimant for depression, narcotics use, anxiety, panic attacks, and a suicide attempt. The record assessed the claimant's pain at level 0. Although the record noted chronic pain, no physician wrote a prescription for pain medication. The ER assessed the claimant's condition as stable. He had a positive drug screen. His suicidal ideation was at level 1 lethality (no predictable risk of immediate suicide) as his suicidal ideation had no specific plan of fulfillment. The ER told the claimant to follow-up with his primary care physician, but the record does not indicate that he did so. (R. 310-23).

         On December 12, 2011, the claimant went to the ER for acute lower back pain in the lumbar region. The claimant stated that the pain had started one day prior to the ER visit when he bent over to tie his shoes. The claimant exhibited pain with normal range of motion. He was prescribed pain medication. (R. 304-09).

         On April 12, 2012, Dr. Saylor examined the claimant again for back pain issues. Dr. Saylor diagnosed inflammation of the left leg and hip and noted the claimant's history of a herniated disc. Dr. Saylor gave the claimant two steroid injections for pain and a prescription for Medrol Dosepak (a steroid), Flexeril (a muscle relaxant) and Norco (an opioid pain reliever). (R. 327-36).

         On July 7, 2012, the claimant returned to see Dr. Saylor for “past 8 days of severe back pain radiating down to the leg.” Dr. Saylor refilled the claimant prescriptions and wrote prescriptions for Lortab (for pain) and Neurontin (for neuropathic pain). Dr. Saylor told the claimant to follow-up with a surgeon “when possible, ” but the record does not indicate whether the claimant did so. (R. 326-35).

         On February 8, 2013, Dr. Saylor found that the claimant had normal range of motion in his spine, normal gait and that he could stand without difficulty. (R. 350-53).

         On May 17, 2013, the claimant visited Dr. Saylor because his “pain developed gradually several months ago.” Dr. Saylor found that the claimant had normal range of motion in his spine, normal gait and could stand without difficulty. Dr. Saylor told the claimant to “call or return if symptoms worsen or persist.” (R. 354-57).

         On August 4, 2013, Edmond Safarian, M.D. examined the claimant in the emergency room. The claimant complained of back pain of four days duration. The claimant showed normal range of motion, except that he had a mildly limited range of motion in his back. By the time of his check-out that same day, the claimant said his symptoms had improved. The doctor gave the claimant a prescription for pain medication. (R. 383-95).

         On September 10, 2013, the claimant visited Dr. Saylor because his “pain developed gradually several months ago.” Dr. Saylor found that the claimant had normal range of motion in his spine, normal gait and could stand without difficulty. Dr. Saylor advised the claimant ...


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