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McClain v. Berryhill

United States District Court, S.D. Alabama, Southern Division

October 1, 2017

ANGEL McCLAIN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         Plaintiff 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 affirmed.[2]


         McClain 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).

         After 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.


         McClain alleges that the ALJ's decision to deny her benefits is in error for the following reasons:

1. The ALJ erred in failing to give proper weight to her treating physician's opinion;
2. The ALJ failed to assess the intensity and persistence of her symptoms pursuant to SSR 16-3p;
3. The ALJ failed to state adequate reasons for her credibility finding;
4. The ALJ's finding in her residual functional capacity (RFC) evaluation that McClain can perform light work is not supported by substantial evidence; and
5. The Appeals Council erroneously failed to review new medical evidence that was submitted by McClain after the date of the ALJ's Decision.

(Doc. 16 at p. 3).


         McClain 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).


         After considering all of the evidence, the ALJ made the following findings that are relevant to the issues presented in her August 25, 2014 decision:

         5. 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.

         In 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.

         * * *

         In 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).

         The 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).

         Robert 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 l A).

         An MRI of the lumbar spine taken at Open MRI of Auburn/Opelika on January 12, 2011, was normal (Exhibit lF).

         J. 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).

         Treatment 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).

         Dolores 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).

         The 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).

         The 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).

         On 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).

         The claimant was treated at Anniston Dermatology on three occasions from December 2, 2013, to April 8, 2014, for alopecia (Exhibit 19F).

         At 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.

         After 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.

         The 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 past year.

         On 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).

         Treatment 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 ...

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