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Kimbrough v. Berryhill

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

March 21, 2019

KITISHA KIMBROUGH, Claimant,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Respondent.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On May 7, 2014, the claimant, Kitisha Kimbrough, applied for disability insurance benefits under Title II of the Social Security Act. (R. 92). The claimant alleged disability beginning November 30, 2013, because of bipolar disorder, depression, obsessive compulsive disorder, asthma, COPD, low back pain, right knee pain, neck pain, and osteoarthritis. (R. 38). The Commissioner denied the claimant's application for disability insurance benefits on June 24, 2014. (R. 94-95). The claimant filed for a hearing before an Administrative Law Judge, and the ALJ held a hearing March 14, 2016. (R. 37).

         On June 2, 2016, the ALJ denied the claimant's application, finding that the claimant was not disabled at any time during the relevant period and was, therefore, ineligible for social security benefits. (R. 30). The Appeals Council denied the claimant's request for review on May 19, 2017. (R. 1-3). Accordingly, the ALJ's decision is the final decision of the Commissioner of the Social Security Administration. The claimant has exhausted her 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 REVERSES AND REMANDS the decision of the Commissioner.

         II. ISSUE PRESENTED

         Whether the ALJ properly considered the claimant's subjective testimony about the side effects of her medication?[1]

         III. STANDARD OF REVIEW

         The standard for reviewing the Commissioner's decision is limited. This court must affirm the Commissioner's decision if the Commissioner applied the correct legal standards and if his factual conclusions are supported by substantial evidence. 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).

         “No . . . 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).

         This 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.

         The 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. 1986).

         IV. LEGAL STANDARD

         An ALJ considering a claimant's subjective testimony must first determine whether the claimant has “evidence of an underlying medical condition.” Holt v. Sullivan, 921 F.2s 1221, 1223 (11th Cir. 1991); see also 20 C.F.R. § 404.1529. Once a claimant shows an underlying medical condition, she must show either: (1) “objective medical evidence that confirms the severity of the alleged pain arising from that condition, ” or (2) “that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.” Holt, 921 F.2d at 1223 (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)).

         But, the ALJ must also consider symptoms without objective medical support if the claimant alleges these symptoms during the proceedings. 20 C.F.R. § 404.1529(c)(3). Specifically, the ALJ must consider the claimant's subjective testimony regarding the “effectiveness and side effects of any medications.” Walker v. Comm'r of Soc. Sec., 404 Fed.Appx. 362, (11th Cir. 2010) (citing 20 C.F.R. §§ 404.1529(c)(3)(iv); 416.929(c)(3)(iv)). The ALJ fails to consider the side effects of medications when he does not (1) elicit testimony about the side effects and (2) make a finding about “the effect of…prescribed medications upon [the claimant's] ability to work.” Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981).

         If an ALJ discredits a claimant's subjective testimony, he must articulate his reasons and substantial evidence must support those reasons. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).

         V. FACTS

         The claimant was 39 years old at the time of the ALJ's final decision and a high school graduate. (R. 39-40). The claimant has past relevant work as a nurse assistant, housekeeper, cook, and phlebotomist, but has not engaged in substantial gainful activity since November of 2013. (R. 28). The claimant alleges disability beginning November 30, 2013, because of bipolar disorder, depression, obsessive compulsive disorder, asthma, COPD, low back pain, right knee pain, neck pain, and osteoarthritis

         Physical and Mental Impairments

         On April 12, 2011, an ambulance crew transported the claimant to Gadsden Regional Medical Center from the scene of a car accident. (R. 559-63). The claimant complained of left thumb pain, back pain, and knee pain. The emergency room physician, Dr. Stephen Jones, ordered X-rays of the claimant's hand, back, and knee that all showed “unremarkable” results. Dr. Jones prescribed Indocin and Robaxin for pain and discharged the claimant from the hospital. (R. 650-667).

         The next day, on April 13, 2011, the claimant visited Roberta O. Watts Medical Center complaining of migraines that cause her to have blurred vision, nausea, and photophobia. The record lacks clarity whether this appointment was related to the April 12 accident. Dr. Ochuko Odjegba noted that the claimant had recurring issues with depression and migraines, prescribed Wellbutrin for depression and migraines, and discharged her. (R. 397-400).

         Over the next five-months, the claimant visited Dr. Odjegba at Roberta O. Watts Medical Center seven times. At each visit, the claimant reported symptoms of lower back pain, left hand pain, or asthma. Dr. Odjegba ordered an X-ray of the claimant's back that showed only age related wear and tear. (R. 410). Dr. Odjegba diagnosed the claimant with Lumbago, scheduled an MRI, and prescribed the following medications: Medrol, Flexeril, Motrin, Tramadol, and Ibuprofen. (R. 405, 408, 415). To assist with the claimant's asthma, Dr. Odjegba prescribed Phenergan, Dulera, and Singulair. (R. 419, 423).

         On October 19, 2011, the claimant visited Dr. Frank Hood at the Rainbow Family Medical Clinic upon referral from the Gadsden Regional Medical Center. The claimant reported that her back pain was no longer constant but that it bothered her when standing or engaging in sexual intercourse. Dr. Hood diagnosed the claimant with sciatic and somatic dysfunction of the L5 disc. (R. 567-69). The next day, October 20, the claimant returned to Dr. Hood complaining that her back pain had worsened and had begun radiating down her legs. Dr. Hood prescribed the claimant Vicodin for her pain. (R. 568-69).

         On November 29, 2011, the claimant began visiting Dr. Royce Jones at the Jones Chiropractic Clinic. No. doctor referred the claimant to Dr. Jones. (R. 571). The claimant complained of headaches and back, neck, and leg pain originating from her April 12 car accident. Dr. Jones performed several neurological, orthopedic, clinical, and X-ray examinations of the claimant for each of her complained of symptoms. Dr. Jones diagnosed the claimant with degenerative osteoarthritis; disc narrowing; lumbar sprain; cervical sprain; disc displacement; thoracic sprain; and disc space narrowing in several cervical vertebrae. (R. 582-84). Dr. Jones recommended a 12-visit schedule of therapy for the claimant's back. (R. 583).

         The claimant returned to see Dr. Jones on January 12, 2012. At this visit, Dr. Jones noted that the claimant reported that 60% of her initial symptoms remained. Dr. Jones found no severe limitations from her back or neck pain and a 50% objective improvement. Dr. Jones recommended further appointments with a re-examination at the conclusion of the last appointment. (R. 587). On February 22, 2012, the claimant reported to Dr. Jones that 50% of her original symptoms remained. Dr. Jones found that the claimant had only mild restrictions from her pain and that most of her range-of-motion had returned with little to no pain. Dr. Jones recommended four more visits with a re-examination after the fourth visit. (R. 592-94).

         The claimant returned to Roberta O. Watts Medical Center on March 6, 2012. Dr. James McCain examined the claimant for a reported Bakers cyst on her knee. Dr. McCain diagnosed the claimant with Bakers cysts and with symptoms of asthma. Dr. McCain prescribed the claimant Advair and Medrol for her asthma and referred the claimant to an orthopedist for her Bakers cysts. (R. 439-43).

         The claimant returned to the Jones Chiropractic Clinic on April 2, 2012, for her re-examination. The claimant reported to Dr. Jones that 70% of her symptoms remained from her initial visit. Dr. Jones, however, stated that “[o]bjectively, there has been an 85% improvement compared to the initial exam on 11/29/2011. Kitisha is released today from acute active care and placed on maintenance care…I recommend that Kitisha receive at least one treatment [per] month to maintain her present level of maximum medical improvement.” (R. 597).

         On October 2, 2012, the claimant visited Dr. Odjegba at Roberta O. Watts with complaints of back pain reported as 10/10 on the pain scale and asthma. Dr. Odjegba diagnosed the claimant with asthma, depression, and lumbago. He prescribed the claimant Advair for her asthma and Cymbalta for her depression. (R. 452-56). At the March 11, 2013, visit the claimant reported to Dr. Odjegba that the Cymbalta was not working and that she was still feeling irritable, aggressive, and anxious. Additionally, the claimant reported back pain and asthma. She stated that she had not been taking her medication for her asthma. Dr. Odjegba diagnosed the claimant with bipolar disorder, asthma, and lumbago. Dr. Odjegba referred the claimant to CED Mental Health Center for further evaluation of her bipolar disorder; explained that she needed to properly take her medication to reduce the symptoms from asthma; scheduled an MRI for her back pain; and continued her current prescriptions for lumbago. (R. 463-67).

         On May 7, 2013, Dr. Ross Barnett performed an MRI on the plaintiff's lumbar spine. The MRI showed normal results for the majority of the claimant's lumbar discs. Dr. Barnett reported, however, that the claimant's L3-4 and L4-5 discs showed mild desiccation without a significant bulge, protrusion, or herniation. Dr. Barnett diagnosed the claimant with early desiccation, no significant disc bulge, and no other significant abnormality. (R. 688).

         The claimant returned to see Dr. Odjegba on June 10, 2013, complaining of back pain and depression. Dr. Odjegba diagnosed the claimant with Cervicalgia and Lumbago. He referred the claimant to a neurologist for ...


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