United States District Court, N.D. Alabama, Middle Division
JEREMEY S. KIMBRELL, CLAIMANT,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, RESPONDENT.
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
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,
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,
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.
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).
... 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).
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
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,
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).
Records Regarding Physical and Mental Impairments Prior to
the ALJ's Decision
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).
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).
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).
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).
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).
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).
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).
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.
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).
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).
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).
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 ...