Angel McClain brings this action, pursuant to 42 U.S.C.
§§ 405(g), seeking judicial review of a final
decision of the Commissioner of Social Security (“the
Commissioner”) denying her claim for Disability
Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“the Act”). The parties have
consented to the exercise of jurisdiction by the Magistrate
Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Doc. 30 (“In accordance
with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73,
the parties in this case consent to have a United States
Magistrate Judge conduct any and all proceedings in this
case, ... order the entry of a final
judgment, and conduct all post-judgment
proceedings.”)). See also Doc. 32. Upon
consideration of the administrative record, McClain's
brief, the Commissioner's brief, and oral argument
presented at the August 15, 2017 hearing before the
undersigned Magistrate Judge, it is determined that the
Commissioner's decision denying benefits should be
applied for DIB, under Title II of the Act, 42 U.S.C.
§§ 423 - 425, on December 11, 2012, alleging
disability beginning on August 20, 2012. (Tr. 171-72). Her
application was denied at the initial level of administrative
review on February 7, 2013. (Tr. 115-17). On March 14, 2013,
McClain requested a hearing by an Administrative Law Judge
(ALJ). (Tr. 122-23). After a hearing was held on May 22,
2014, the ALJ issued an unfavorable decision finding that
McClain was not under a disability from the date the
application was filed through the date of the decision,
August 25, 2014. (Tr. 51-63). McClain appealed the ALJ's
decision to the Appeals Council, and, on March 28, 2016, the
Appeals Council denied her request for review of the
ALJ's decision, thereby making the ALJ's decision the
final decision of the Commissioner. (Tr. 1-4, 22).
exhausting her administrative remedies, Denton sought
judicial review in this Court, pursuant to 42 U.S.C.
§§ 405(g). (Doc. 1). The Commissioner filed an
answer and the social security transcript on November 29,
2016. (Docs. 12, 13). Both parties filed briefs setting forth
their respective positions. (Docs. 16, 24, 25). Oral argument
was held before the undersigned Magistrate Judge on August
15, 2017. (Doc. 31). The case is now ripe for decision.
alleges that the ALJ's decision to deny her benefits is
in error for the following reasons:
(Doc. 16 at p. 3).
was born on January 11, 1967, and was almost 46 years old at
the time she filed her claim for benefits. (Tr. 165). McLain
initially alleged disability due to right shoulder
tendonitis, iron deficiency, sciatica and lower back pain,
and anxiety. (Tr. 203). She graduated from high school in
regular classes in 1985 and has taken some college classes.
(Tr. 74, 204). She worked as a seamstress at a clothing
factory for over ten years and as a lunch room worker at a
school from 2001 until November 7, 2012. (Tr. 204, 219). In
her Function Report, McClain stated that her daily activities
consist of taking her medication, eating, watching
television, reading her Bible and praying. (Tr. 227). She
stated that her daughter cooks for her and her daughter and
son do household indoor and outdoor chores for her because it
hurts to do these things or she doesn't feel like doing
them. (Tr. 229-30). She stated that she is able to drive but
only goes out to doctor's appointments and to shop. (Tr.
88, 230). She stated that she goes to church when she can.
(Tr. 231). She is able to pay bills, count change and handle
a saving account. (Id.). After conducting a hearing,
the ALJ made a determination that McClain had not been under
a disability during the relevant time period, and thus, was
not entitled to benefits. (Tr. 51-63).
considering all of the evidence, the ALJ made the following
findings that are relevant to the issues presented in her
August 25, 2014 decision:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except she can never use her right hand for
pushing and/or pulling of hand controls. She can never
reach overhead with the right upper extremity. She can
frequently reach in other directions, handle and finger
with the right upper extremity. She can occasionally climb
ramps and stairs. She can never climb ladders and
scaffolds. She can frequently stoop, kneel, crouch, and
crawl. She can never work at activities involving
unprotected heights and hazardous moving mechanical parts.
She should avoid concentrated exposure to extreme cold. She
should avoid frequent exposure to dust, fumes, gases, and
other pulmonary irritants. I further find that the claimant
is limited to simple tasks. She can occasionally interact
with the public. Contact with supervisors and coworkers
should be brief and casual.
making this finding, the undersigned has considered all
symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p.
The undersigned has also considered opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p.
* * *
connection with her application for disability benefits,
the claimant provided responses to a Disability Report. She
reported that she was limited in her ability to work due to
severe tendonitis and muscle spasms of the right shoulder,
iron deficiency, sciatica and lower back pain, and anxiety.
She stated that she stopped working on November 7, 2012,
because of her condition (Exhibit 3E).
claimant completed a Function Report on December 14, 2012.
She reported that she lives in a house with family. From
the time she wakes up until going to bed, she takes her
medication, eats a little, sometimes watches television,
reads her Bible, and prays. She does not take care of
anyone else and she does not take care of pets. Her
condition affects her sleep because she hurts all night due
to lying on her back or shoulder. It hurts to move around
to dress. It hurts to move in the shower. It hurts to do
her hair, so her daughter does it. She has no problem with
shaving, feeding herself or using the toilet. She does not
need special reminders to take care of personal needs and
grooming. She does not need help or reminders taking
medicine. She does not prepare her own meals [sic] her
daughter prepares the meals. Her daughter and son do the
household work for her now. She does not do house or yard
work because it hurts for her to do them. She only goes
outside if she has a doctor's appointment. When going
out, she travels by riding in a car. She can go out alone
and she does drive. She shops by phone for kid's
clothes once every 4 to 5 months or as needed. She is able
to pay bills, count change, and use a checkbook or money
order. For hobbies and interests, she listed watching
television when she is not sleeping. Her medication puts
her to sleep. She does not spend time with others. She goes
to church when she can. Sometimes it makes her feel bad
being around family, friends, neighbors, or others and she
wants to stay to herself. She likes being by herself. Her
condition affects lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, stair climbing,
memory, completing tasks, concentration, following
instructions, using hands, and getting along with others.
She can walk for about 50 yards before needing to stop and
rest. She will need to rest for about an hour before she
can resume walking. She can pay attention for about one
hour. She cannot follow written or spoken instructions
"good." She is never around authority figures.
She does not handle stress or changes in a routine well.
She wears glasses (Exhibit 8E).
Estock, M.D., a State Agency psychiatrist, completed a
Psychiatric Review Technique form on February 6, 2013. He
opined that the claimant was mildly limited in restriction
of activities of daily living, maintaining social
functioning and maintaining concentration, persistence or
pace. He found no episodes of decompensation, each of
extended duration. Dr. Estock concluded that based on the
documented findings the claimant was not disabled (Exhibit
MRI of the lumbar spine taken at Open MRI of Auburn/Opelika
on January 12, 2011, was normal (Exhibit lF).
Melburn D. Holmes, M.D., saw the claimant on May 30, 2012.
The claimant reported having problems with her
partner's children and family. Her nerves were bad and
she had never taken any medication for nerves. Dr. Holmes
prescribed Klonopin (Exhibit 2F).
records from Therapy Resources of East Alabama dated August
9, 2012, to September 4, 2012, reveal that the claimant
underwent physical therapy two times a week for four weeks
for right upper trapezius pain and upper shoulder pain. She
was treated with manual therapy, therapeutic exercise,
massage, ultrasound, electrical stimulation, and heat
packs. On discharge, it was noted that therapy did not give
a lot of benefit. Her pain was recurrent (Exhibit 3F).
Victoria, M.D., with Quality of Life treated the claimant
from November 3, 2009, to April 2, 2013, for weight gain,
vaginitis, fatigue, anemia, nail fungus in the right big
toe, mixed hyperlipidemia, upper respiratory infection,
insomnia, benign hypertension, sinusitis, anxiety, right
shoulder pain, and pharyngitis. On September 26, 2012, a
MRI of the right shoulder revealed moderate tendonitis of
the infraspinatus without tear and mild edema of the distal
clavicle with slight hypertrophic change of the
acromioclavicular joint with a widely patent acromiohumeral
interval (Exhibits 4F, 5F, and 10F).
On April 2, 2013, Dr. Victoria wrote the following:
This letter is in reference to Ms Angel McLain. She has
been a patient at this facility since November 2009. She is
healthy, consults and receive [sic] treatments for minor
medical condition. Her annual medical [sic] medical check up
[sic] including blood test were unremarkable. In July 2012
[sic] she had a severe injury to right shoulder that is
workrelated, [sic] working at the lunch room at the local
elementary school. She had several office visits and was
referred to an orthopedic specialist. She was diagnosed with
Chronic right shoulder rotator cuff tendinitis and hypertrop
of Acromio-Clavicular joint. No surgical procedure advised
and because of persistence of pain and inability to use her
right hand she will not be able to continue her job. Please
assist in obtaining approval for disability for social
security benefits (Exhibit 13F).
Robert J. McAlindon, M.D., with East Alabama Orthopaedics
and Sports Medicine, treated the claimant from July 26,
2012, to January 10, 2013, for right rotator cuff
tendonitis (Exhibits 6F and 8F).
claimant underwent physical therapy through Therapy
Resources of East Alabama from November 8, 2012, to
December 10, 2012. She was treated two times a week for
four weeks with heat packs, electrical stimulation,
ultrasound, and therapeutic exercise (Exhibit 7F).
claimant was treated at Cheaha Mental Health Center on two
occasions, January 10, 2013, and January 29, 2013.
Initially, she reported, "I want to be happy and put
past behind me. I want to see if medication will help me so
I can benefit from counseling." She stated that she
had been sexually, physically and emotionally abused by her
stepfather beginning at age 12. She was given diagnoses
including major depression, recurrent, moderate;
posttraumatic stress disorder; and given a global
assessment of functioning (GAF) score of 55. On the second
visit, focus was on the differences in personality styles
that the claimant and her husband had. On this visit, she
was given a GAF of 56 (Exhibit 11F).
February 13, 2013, the claimant underwent a Nuclear
Medicine Thyroid Uptake and Scan at East Alabama Medical
Center, which was normal. On May 29, 2013, Gwen Cooper,
M.D., performed attempted to place a NovaSure device, but
after two attempts with not getting adequate seal, the
procedure was abandoned and a dilatation and curettage was
done instead. On June 13, 2013, the claimant underwent a
transabdominal and transvaginal pelvic ultrasound, which
revealed fibroid uterus with fluid in the endometrial
cavity due to menorrhagia (Exhibits 12F, 14F, 15F, 16F,
17F, and 18F).
claimant was treated at Anniston Dermatology on three
occasions from December 2, 2013, to April 8, 2014, for
alopecia (Exhibit 19F).
the hearing, the claimant testified that she was born on
January 11, 1967, and she is 47-years old. She is
right-handed. She is married with three children ages 27,
24, and 19. She resides in a house with her spouse, 27-year
old daughter and 19-year old son. Her spouse does not work.
He is disabled. He has vertigo, migraines and back
problems. He was hurt at work and is now medically retired.
He was in the military and receives VA pay. They do not
receive food stamps. She has a driver's license and she
drives twice weekly to the store by her home. Her daughter
drove her to the hearing. She completed the 12th grade and
went to college in 2010 for a few classes, but she did not
obtain a degree. She was let go from her job in November
due to missing work. She worked in the lunchroom at school.
She served breakfast for 200 kids and lunch for 400 kids.
Her arm was paralyzed and she missed work. She was allowed
to work 2 days a week. Dr. Bob sent her for the MRI. The
rotator cuff was messed up. She lifted 10-20 pound cans and
carried them 8-10 feet. She has shoulder pain like a
toothache. Hydrocodone was prescribed and she also takes
Meloxicam for pain. Her medication causes side effects
making her sleepy and blurry eyed. The pain has existed for
at least two years. In an eight-hour day, she does get up
from her chair to the refrigerator. She drops off to sleep
due to the medication side effects. She stands to go to the
bathroom, go to the kitchen, and to get water. She is up
four times a day. She does not get up a lot due to the
medication making her woozy. Where she worked was hot in
the kitchen and it was cold in the winter in the cooking
area. There was no heat except in the dining area. She did
not supervise any staff. Her work was stressful. The kids
would be rowdy and she would get aggravated. She could not
deal with the noise and she was moved to another work area.
She has hormone issues and uncontrolled hypertension. She
takes steroid medication for her head. She takes muscle
relaxers because her muscles tighten up. This medication
makes her drowsy. She sits on a couch most of the time. She
cannot sit on a bench, because it hurts her back. Her pain
level is a “9-10.” At times, she aches all the
time. She takes her medication to help ease the pain. She
does not use a cane. She has foot swelling and she was
placed on diuretics. She has to elevate her legs. She
cannot watch an entire movie because she falls asleep. She
does not do any crafts. She had to give it up. She attends
Mental Health and is prescribed Lorazepam. This mellows her
out. She has problems getting along with other people. She
stays in her room a lot. She can understand and carry out
instructions, but sometimes she forgets. Her concentration
is not good. Her daughter does the housework, but she can
dry a few dishes. She can walk in the house and in the
store. Dust, fumes and gases bother her. She has allergies.
She has no problems with her breathing. She feels sleepy
with no energy. She takes medication for her thyroid. She
is tired a lot. Taking pain medication makes her tired. She
takes naps during the day. She takes sleep aids at night.
She has to take her medication that calms her. She cannot
be out in public a lot. Bending at the waist is a problem
due to her sciatic nerve problems. She can stoop and kneel.
She does not have stairs to climb and she cannot climb
ladders. She does not crawl. The hand on her right side is
weak due to her shoulder issues. She does not push. She can
twist her wrist and she can open a jar if it is not too
tight. She can open a door and button her clothes. She can
bathe and dress herself. She does not go out alone, going
out causes her emotional problems. She drives twice weekly
to the grocery store. Probably ten minutes is the longest
she has driven in the past year. She does not take trips.
She has not gotten lost when driving. It bothers her to be
a passenger in a car. She does not cook. She will go with
her daughter to help with the grocery shopping. She can
make her bed. She does not do laundry or vacuuming. She can
use a telephone. She does not visit family often. She sees
her mom maybe once a month and she attends church once a
month. She went to two football games for her son's
senior year for a short time, but she was too tired and had
to leave. She does not like to read. She watches HGTV all
the time. She does not keep up with current events. Her
hair fell out a year ago and the dermatologist started
giving her shots. This was due to her nerves and hormones.
The symptoms kept her from working. She had a hysterectomy
in October 2013. She had two surgeries. The thyroid
medication and hormones have helped her hair to grow back
some. When she is on the medication, she is not alert.
careful consideration of the evidence, the undersigned
finds that the claimant's medically determinable
impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant's statements
concerning the intensity, persistence and limiting effects
of these symptoms are not entirely credible for the reasons
explained in this decision.
claimant's attorney asserted that the claimant was
disabled due to a combination of impairments, pain from
shoulders and a mental problem. The claimant testified that
her arm was paralyzed and she missed work; however, there
is not any objective evidence showing that her arm was
paralyzed. She also testified that she attends Mental
Health, yet the last time she had only been to Mental
Health on two occasions and the last time she was seen
there was on January 29, 2013. She testified that she
drives twice weekly to the grocery store, but then she said
probably ten minutes is the longest she has driven in the
January 22, 2013, the claimant was seen at Quality of Life
for cold symptoms and left shoulder pain. Reportedly, the
pain in her left shoulder was relieved with prescription
pain medication and over-the-counter medication. On
examination, she had normal range of motion, muscle
strength and stability in all extremities with no pain on
inspection (Exhibit 10F).
notes from Dr. McAlindon dated November 8, 2012, shows that
a MRI of the right shoulder rotator cuff tendonitis was
negative. Thought not yet at ¶ 100%, records of
November 29, 2012, show that the claimant had right rotator
cuff tendonitis and she had gone through a range of motion
rehab program and was feeling better. On examination, she
had full range of motion about the shoulder ...