United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
Bettie Epps (“Plaintiff” or “Epps”)
brings this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), seeking review of the
decision of the Commissioner of Social Security (the
“Commissioner”) denying her claims for Social
Security Disability Benefits (“SSDI”).
See 42 U.S.C. § 405(g). 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 affirmed.
April 24, 2014, Plaintiff filed an application for SSDI
benefits, alleging a disability onset date of October 22,
2013. (Tr. 22). Plaintiff's initial application was
denied by the Social Security Administration
(“SSA”) on August 5, 2014. (Tr. 98). After the
denial, Plaintiff requested a hearing before an
Administrative Law Judge (the “ALJ”). (Tr. 22).
That hearing was held before ALJ Bruce W. MacKenzie on August
15, 2016. (Tr. 38). In his decision dated September 27, 2016,
the ALJ concluded Plaintiff was not under a disability as
defined by the Act since October 22, 2013. (Tr. 22-31). The
appeals council denied Plaintiff's request for review on
June 20, 2017. (Tr. 1-6). That denial was the final decision
of the Commissioner, and is therefore a proper subject for
this court's appellate review under 42 U.S.C. §
was born on December 7, 1956 and was 56 years old on the date
of her alleged disability onset. (Tr. 196). Plaintiff is able
to communicate in English, and her educational background
includes a high school degree and one year of college. (Tr.
199, 201). In her application for disability benefits,
Plaintiff alleges that degenerative disc disease, spinal
arthritis, left hip problems, gastroesophageal reflux disease
(GERD), and anxiety limit her ability to work. (Tr. 180).
Before leaving the workforce, Plaintiff worked as an accounts
receivable clerk. (Tr. 195).
a checkup with her primary care physician, Dr. Ricky Fennell,
on January 14, 2013, Plaintiff complained about anxiety. (Tr.
265). She told Dr. Fennell that her symptoms began in
November 2012. (Id.). She reported feeling
“somewhat stressed, ” anxious, and irritable, but
denied depression (Id.). Even with these symptoms,
she slept “okay” at times. (Id.). She
was previously prescribed Trazadone for these
issues. (Id.). She noted her anxiety
comes at times when she does not feel she should not be
anxious, such as when she is at church. (Id.). Given
this information, Dr. Fennell diagnosed Plaintiff with
Anxiety disorder. (Tr. 267). He additionally diagnosed her
with fatigue and malaise, hyperlipidemia, Vitamin D
deficiency, and Hyperglycaemia. (Id.).
April 29, 2013, Plaintiff returned to Dr. Fennell's
office with complaints of lower back pain radiating down her
left leg. (Tr. 300). She reported that her pain was present
for two months before she came in for examination.
(Id.). She denied any trauma provoking the
discomfort, and added that over-the-counter remedies and
Lortab had not alleviated her discomfort. (Id.).
Upon examination, Dr. Fennell noted moderate pain and
tenderness in Plaintiff's lumbosacral area, particularly
on the left side. (Tr. 301, 302). He observed that Plaintiff
had normal strength and gait. (Tr. 302). In addition to her
previous conditions, Dr. Fennell diagnosed her with
accelerated hypertension and lower-back pain. (Id.).
He prescribed Vicoprofen and Soma for pain, spasms, and
inflammation, and he instructed Plaintiff to avoid lifting
and strenuous physical activity. (Tr. 303). At the end of the
visit, Dr. Fennell ordered an MRI for Plaintiff's lower
lumbar spine. (Tr. 289). The MRI was conducted on May 10,
2013 and revealed lower lumbar spondylosis at the L5-S1 level
with nerve root compression. (Tr. 289-90).
Fennell referred Plaintiff to Dr. Johnny Carter, who she
initially saw on June 25, 2013. (Tr. 326). Dr. Carter
examined Plaintiff's May 10, 2013 MRI and reviewed her
subjective history, including the report of the sensation of
“slipping or giving way” in her back.
(Id.). After conducting his own examination, he
discovered musculoskeletal issues in Plaintiff's lumbar
spine and pelvis, but reported no gait or motor
abnormalities. (Tr. 331). He diagnosed Plaintiff with low
back pain, lumbar spondylolysis, degeneration of the
intervertebral disc, lumbar facet syndrome, lumbar spinal
stenosis, sciatica, and left-sided L5-S1 disc protrusion.
(Tr. 332). He prescribed Plaintiff Acetaminophen Oxycodone,
Gabapentin, and a Medrol Dosepak. (Tr. 333). He also referred
her to physical therapy for stretches, and
“conservative pain modalities.” (Id.).
Dr. Fennell noted that Plaintiff was to follow-up in the next
30 days and “if no better, schedule lumbar-caudal
epidural injection with Dr. Carter in the UAB pain
clinic.” (Tr. 334).
began physical therapy with Joseph S. Schock in June 2013.
(Tr. 335). During her initial evaluation on June 28, 2013,
Schock noted that Plaintiff had pain while walking and
lifting. (Tr. 335). Plaintiff told Schock that her ability to
do housework was moderately limited secondary to her pain.
(Tr. 335). On July 25, 2013, Plaintiff reported lumbar pain
ranging from a four out of ten to seven out of ten. (Tr.
338). She also exhibited 75 percent range of motion, albeit
with pain. (Id.). Dr. Schock noted “the
patient tolerated today's treatment well after adjustment
to the left side. Pain relief with traction.”
September 2013, Plaintiff returned to Dr. Carter for lumbar,
pelvis, and left hip pain treatment. (Tr. 339). She again
reported a sensation that felt like her back was
“slipping” or “giving way.” (Tr. 339,
348). Dr. Carter observed lumbar spine and pelvis issues,
including: “mildly tender” bilateral L5-S1
semispinalis muscle, “mildly positive” left SLR,
and “mildly diminished” left ankle reflexes. (Tr.
345). Plaintiff's gait and coordination appeared normal.
(Id.). Dr. Carter diagnosed her with lumbar
radiculopathy, lumbar spondylolysis, lumbar facet syndrome,
low back pain, lumbar spinal stenosis, sciatica, and lumbar
disc herniation and recommended a lumbar-caudle epidural.
(Tr. 346). On September 12, Dr. Carter administered a
fluoroscopic guided lumbar epidural steroid injection with
contrast enhancement and limited IV sedation. (Tr. 358).
However, Plaintiff said that this injection only provided
relief for about eight hours before her pain returned. (Tr.
368). Dr. Carter thought that Plaintiff's report of
morning relief followed by a return of pain later that night
with no inciting event was unusual. (Id.). In light
of “her unusual sudden increase in pain, we 
check[ed] new lumbar spine MRI scan to compare with the
previous to rule out new extension of the disc.”
Plaintiff returned on March 31, 2014, she told Dr. Fennell
that her low back pain made her unable to fulfill her duties
at home and at work and unable to sit for an extended period
of time. (Tr. 316). Dr. Fennell notes that Plaintiff had an
epidural block, but that she reported it made her pain worse.
(Id.). Dr. Fennell recommended that Plaintiff return
to Dr. Carter for a second epidural block. (Tr. 317).
5, 2014, Dr. Fennell filled out a depressive disorder sheet
for Plaintiff, indicating that “she certainly has a lot
of depression symptoms.” (Tr. 322-325, 451). During a
visit on the same day, Plaintiff reported “bad nerves,
” decreased appetite, poor sleep, and thoughts of
suicide two-to-three times per day. (Tr. 451). In addition to
diagnosing her with lumbar spondylosis, lumbar spinal
stenosis, left hip pain, left leg sciatica, Dr. Fennell
diagnosed Plaintiff with mental depression. (Id.).
He prescribed her Cymbalta and increased her dosage of Xanax.
(Id.). Dr. Carter noted “a lot of her issues
are mainly depression-related and not anxiety. It appears
that her chronic pain is what is driving a lot of her
Plaintiff returned to Dr. Carter on May 9, 2014, she told him
that she was having difficulty sleeping because of pain. (Tr.
370). Issues with Plaintiff's lumbar spine and pelvic
region were again noted, yet she still continued to ambulate
normally. (Tr. 376). He diagnosed her with thoracic or
lumbosacral neuritis or radiculitis, displacement of lumbar
intervertebral disc without myelopathy, sciatica, and lumbar
degeneration. (Tr. 378). He also recommended that Plaintiff
consult with a pain management specialist for conservative
pain treatment options. (Tr. 379).
her next visit with Dr. Fennell on June 2, 2014, Plaintiff
reported that she could not tolerate the Cymbalta due to the
side effects of itchiness and swelling. (Tr. 453). However,
Xanax helped her anxiety and Percocet dulled the discomfort
of her back pain. (Id.). Dr. Fennell noted that
“she is scheduled for chronic pain management
evaluation soon.” (Id.).
began seeing pain specialist Dr. Peter Nagi on June 10, 2014.
(Tr. 427). Plaintiff told Dr. Nagi that her back pain stemmed
from a fall in a parking lot nine years prior.
(Id.). She reported a constant sharp burning pain
rated as a seven out of ten at its best and a ten out of ten
at its worst. (Tr. 428). Dr. Nagi noted Plaintiff's
“painful episode” after her epidural injection,
“but she does not completely recall this issue.”
(Tr. 427). Plaintiff reported that she can sit for about an
hour and a half, stand for 45 minutes, and walk for about an
hour. (Tr. 428). Emotionally, she said she experienced anger,
depression, suicidal thoughts, disinterest, frustration,
hopelessness, and panic. (Tr. 429). However, he noted in his
psychiatric evaluation that Plaintiff was cooperative with
appropriate mood, and lacked suicidal ideation or plan. (Tr.
432, 433). After completing his examination, Dr. Nagi
diagnosed Plaintiff with lumbago, lumbosacral spondylosis
without myelopathy, lumbar spinal stenosis, lumbar
intervertebral disc displacement without myelopathy, and
myofascial pain. (Tr. 433). He wrote a prescription for
Gabapentin and Zanaflex, and he scheduled her for pain
injections and more physical therapy. (Id.). He
noted that “she has failed PT at this time and it made
her pain worse. We will try once she has had her injection
and pain is better controlled.” (Id.). He
opined she could benefit from a prescription for TENS
September 15 and October 7, 2014, Plaintiff followed-up with
Dr. Fennell for reevaluation visits. (Tr. 454-457). She
indicated her back pain and depression still caused issues.
(Tr. 454, 456). Dr. Fennell elected to add Viibryd to her
regimen to help combat her depression. (Tr. 454). Between
these appointments with Dr. Fennell, Plaintiff returned to
Dr. Nagi on September 26 and reported mild relief for two to
three weeks after an epidural injection, but also reported
the new symptom of “feel[ing] like tailbone is being
scraped.” (Tr. 439). By the time Plaintiff returned to
Dr. Fennell on December 22, 2014, she had returned to work
and was wearing a back brace. (Tr. 458). She still
experienced lower lumbar pain at that time and was told that
further epidural blocks would not benefit her and she may
require surgery. (Id.). After this visit, Plaintiff
did not return to another physician for her back issues until
September 2015. (Tr. 460).
was first diagnosed with COPD during a visit with Dr. Fennell
on June 11, 2015. (Tr. 460). Before this visit, the only
issues she had expressed with cough and congestion were tied
to some acute illness. (Tr. 269, 459). On this day, she was
originally scheduled for a follow-up appointment to check on
her back and mental health issues. (Tr. 460). Dr. Fennell
noted, “She says the Viibryd has worked very well for
her depression symptoms. She seems to be getting along very
well now, using a combination of Viibryd and
Benzodiazepine/Xanax.” (Id.). No. mention was
made during this visit about Plaintiff's back issues.
(Id.). Upon returning for another reevaluation on
September 29, she continued to complain about her ongoing
back and depressive issues. (Tr. 461). Dr. Fennell referred
Plaintiff to another pain specialist because he does
“not participate in chronic pain.” (Tr. 462).
Nevertheless, Dr. Fennell wrote “I have encouraged her
to become more ...