United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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).
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.
the ALJ properly considered the claimant's subjective
testimony about the side effects of her
STANDARD OF REVIEW
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.
. . . 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).
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.
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.
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.
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).
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).
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
and Mental Impairments
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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 ...