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Means v. Berryhill

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

January 31, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Kadesha Means (“Plaintiff” or “Means”) brings this action pursuant to Section 405(g) of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security (the “Commissioner”) determining that, as of June 1, 2014, she no longer qualifies for disability benefits under the Act. See 42 U.S.C. §§405(g) and 1383(c). Based on the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be reversed and remanded.

         I. Proceedings Below

         In October 2000, the Social Security Administration (“SSA”) issued a fully favorable decision finding Plaintiff disabled. (Tr. 27). The disability was the result of a gunshot wound to the pelvis and back[1] which rendered Plaintiff unable to sustain work-related activities. (Tr. 29, 94, 285, 349). The gunshot wound caused injury to the bowels and bladder requiring use of a colostomy bag and diapers as well as fracture of the lower lumbar vertebrae and sacrum where the bullet exited requiring open reduction and internal fixation. (Tr. 349).

         Plaintiff's disability was subsequently determined to have continued in a decision dated September 13, 2004. (Tr. 27). This is the comparison point decision (“CPD”)[2] for the 2014 claim before this court.

         A second continuing disability review on June 27, 2014 found Plaintiff was no longer disabled and benefits were discontinued effective August 2014. (Tr. 90). Plaintiff requested reconsideration of that decision. (Tr. 99). After an in-person disability hearing, the SSA concluded Plaintiff was able to work and no longer eligible for SSI or DIB payments. (Tr. 99, 106, 118). Plaintiff requested a hearing before an ALJ. (Tr. 134, 149).

         At the ALJ hearing on July 29, 2015, Plaintiff did not have representation, (Tr. 82-83), although the ALJ informed Plaintiff of her right to it. (Tr. 83). The hearing was postponed and rescheduled, yet at the rescheduled hearing Plaintiff remained unrepresented. (Tr. 59, 84, 182). The ALJ then rendered a decision that Plaintiff was no longer disabled. (Tr. 24).

         On October 21, 2015 Plaintiff requested review of the cessation of benefits decision, and on November 25, 2015, Plaintiff's counsel requested review of the decision. (Tr. 16, 22, 275). On January 31, 2017, the Appeals Council denied Plaintiff's request for review. (Tr. 1). Following that denial, the final decision of the Commissioner became a proper subject for this court's appellate review. See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (finding the ALJ decision final for purposes of judicial review when the Appeals Council denied review).

         II. Relevant Facts

         In 2004 the SSA completed a review of Plaintiff's condition for continuation of disability benefits.[3] (Tr. 30, 285). Dr. Naveed Vehra examined Plaintiff with chief complaints of right low back pain with right leg spasms. (Tr. 285). At that time, Plaintiff reported that she experienced severe pain in the low back radiating to the right foot and toe (lasting 2-3 hours); she was weak in the right leg as compared to the left side; she was incontinent of her bowels and wore a colostomy bag; pain increased when walking long distances or standing for long periods of time; she was able to do some mild housework, including some dishes and cooking but could not do any mopping, vacuuming, or yard work; and she took over the counter pain medications. (Tr. 286). Dr. Vehra noted that Plaintiff had “difficulty in getting off and on the examination table and taking [her] shoes off, ” “she walked down the hall with a slight limp on the right side, ” and had “marked difficulty in tandem, heel, and toe walking.” (Tr. 287). Dr. Vehra concluded that “the number of hours that the claimant could be expected to stand and walk based on the history and physical findings, is less than 1-2 hours because of severe limitations and pain in the lower back and right leg.” (Tr. 289).

         For purposes of the current decision under review, medical records date back to 2012. In February of that year, Plaintiff was seen at the Urology Clinic for follow up of a kidney stone and diagnosed with spinal cord injury and neurogenic bladder. (Tr. 369). Notes from the visit indicate that she “was initially a paraplegic but regained ambulatory function in 2001. She wear[s] adult briefs and will get an urge to void but has almost [no] time until she will empty into her diaper. She goes thru [sic] 4-5 of these a day.” (Tr. 369). Plaintiff was directed to follow up with Urology in one year. (Tr. 371).

         On February 13, 2013 Plaintiff was again seen at the Urology Clinic for a follow up visit and again she was diagnosed with spinal cord injury and neurogenic bladder. (Tr. 373). Notes from the visit indicate that Plaintiff “manages her bladder with strain assisted voiding and spontaneous emptying. She goes through about 6 adult briefs per day. She is interested in colostomy reversal which was done at the time of her injury.” (Tr. 373). Plaintiff was noted to take over the counter medications for pain relief and Lyrica at bedtime. (Tr. 374).

         On April 30, 2013, Plaintiff followed-up with Dr. Keith Lloyd at UAB Health System. (Tr. 291). Notes indicate that “she initially did CIC [clean intermittent catherization] for bladder management but has since gone back to strain assisted voiding. Her upper tracts have remained stable and she empties well but has significant leakage going through 6 adult diapers per day. She is interested in bladder management that will keep her more dry.” (Tr. 291). A micturition study revealed some leakage with spontaneous contractions. (Tr. 292). Plaintiff was prescribed Ditropan and was referred to colorectal surgery for discussion of colostomy takedown. (Tr. 292). Plaintiff was directed to return to the clinic in one year. (Tr. 292).

         In October 2013, Plaintiff presented to the Emergency Department at Baptist Medical Center Princeton with a sharp pain in the lower abdomen and could barely walk. (Tr. 304, 309). Dr. Jarvis Patton, Jr. admitted Plaintiff for a urinary tract infection. (Tr. 309). She was treated and given a morphine injection for abdominal pain. (Tr. 313).

         For the second continuing disability review, Plaintiff was examined by Dr. Celtin Robertson in May 2014. (Tr. ...

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