United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.
Carol West appeals from the decision of the Commissioner of
the Social Security Administration (the
“Commissioner”) denying her application for
disability insurance benefits (“DIB”) under Title
XVI of the Social Security Act. (“the Act”).
(Doc. 1). West timely pursued and exhausted her
administrative remedies, and the Commissioner's decision
is ripe for review pursuant to 42 U.S.C. § 405(g). West
has also filed a motion seeking an order of remand pursuant
to 42 U.S.C. § 405(g). (Doc. 18). For the reasons
discussed below, West's motion to remand is due to be
denied and the Commissioner's decision is due to be
was forty-four years old as of the date of her current
application for DIB. (R. 319). Her past work history includes
bookkeeping, as an administrative assistant, and as a foster
parent. (R. 38). She alleges she became disabled on November
1, 2013. (R. 319). She claims she could no longer work due to
a variety of issues, including fibromyalgia, irritable bowel
syndrome, arthritis, back pain, two bulging discs, and bone
spurs. (R. 341). After her claims were denied, she requested
a hearing before an ALJ. (R. 269). Following the hearing, the
ALJ denied her claim on October 26, 2016. (R. 18-40).
the ruling, she appealed the decision to the Appeals Council
(“AC”). As a part of the appeal, she submitted
additional medical records in support of her claim. (R. 2).
After reviewing the records, the AC declined to further
review the ALJ's decision. (R. 1-4). That decision became
the final decision of the Commissioner. See Frye v.
Massanari, 209 F.Supp.2d 1246, 1251 (N.D. Ala. 2001)
(citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th
initiated this action on December 13, 2017. (Doc. 1). Nine
months later, she filed her motion to remand. (Doc. 18).
Statutory and Regulatory Framework
establish her eligibility for disability benefits, a claimant
must show “the inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42
U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A); see
also 20 C.F.R. § 404.1505(a). The Social Security
Administration employs a five-step sequential analysis to
determine an individual's eligibility for disability
benefits. 20 C.F.R. § 404.1520(a).
the Commissioner must determine whether the claimant is
engaged in “substantial gainful activity.”
Id. at § 404.1520(a)(4)(i). “Under the
first step, the claimant has the burden to show that she is
not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Comm'r of Soc. Sec., 457
Fed.Appx. 862, 863 (11th Cir. 2012). If the claimant is engaged
in substantial gainful activity, the Commissioner will
determine the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(i) and (b). At the first step, the ALJ
determined West has not engaged in substantial gainful
activity since November 1, 2013. (R. 21).
claimant is not engaged in substantial gainful activity, the
Commissioner must next determine whether the claimant suffers
from a severe physical or mental impairment or combination of
impairments that has lasted or is expected to last for a
continuous period of at least twelve months. 20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(ii). An impairment
“results from anatomical, physiological, or
psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3). Furthermore,
it “must be established by medical evidence consisting
of signs, symptoms, and laboratory findings, not only by [the
claimant's] statement of symptoms.” Id. An
impairment is severe if it “significantly limits [the
claimant's] physical or mental ability to do basic work
activities . . . .” 20 C.F.R. §
404.1520(c). “[A]n impairment can be considered
as not severe only if it is a slight abnormality which has
such a minimal effect on the individual that it would not be
expected to interfere with the individual's ability to
work, irrespective of age, education, or work
experience.” Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984); see also 20 C.F.R. §
404.1521. A claimant may be found disabled based on a
combination of impairments, even though none of her
individual impairments alone is disabling. 20 C.F.R. §
404.1523. The claimant bears the burden of providing medical
evidence demonstrating an impairment and its severity.
Id. at § 404.1512(a). If the claimant does not
have a severe impairment or combination of impairments, the
Commissioner will determine the claimant is not disabled.
Id. at § 404.1520(a)(4)(ii) and (c).
second step, the ALJ determined West has the following severe
impairments: cervical disc disease; lumbosacral disc disease;
psoriatic arthritis/ rheumatoid arthritis; fibromyalgia,
migraine headaches; and irritable bowel syndrome. (R. 21).
The ALJ specifically excluded the following medically
determinable impairments because he found none of them causes
more than minimal functional limitations or lasted for more
than 12 continuous months: pneumonia, sepsis, acute
respiratory failure, adult respiratory distress syndrome,
hypoxia, dyspnea, leukocytosis, dyshidrotic eczema, hand
dermatitis, sinusitis, influenza B, chest pain, an ingrown
nail, restless leg syndrome, carpal tunnel syndrome,
menorrhagia, right hand trigger ring finger, and being
overweight. (R. 26-28).
claimant has a severe impairment or combination of
impairments, the Commissioner must then determine whether the
impairment meets or equals one of the “Listings”
found in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§ 404.1520(a)(4)(iii); see also Id. at §
404.1525-26. The claimant bears the burden of proving her
impairment meets or equals one of the Listings.
Reynolds-Buckley, 457 Fed.Appx. at 863. If the
claimant's impairment meets or equals one of the
Listings, the Commissioner will determine the claimant is
disabled. 20 C.F.R § 404.1520(a)(4)(iii) and (d). At the
third step, the ALJ determined Ms. West did not have an
impairment or combination of impairments that meet or
medically equal the severity of one of the Listings. (R.
claimant's impairment does not meet or equal one of the
Listings, the Commissioner must determine the claimant's
residual functional capacity (“RFC”) before
proceeding to the fourth step. 20 C.F.R. § 404.1520(e);
see also Id. at § 404.1545. A claimant's
RFC is the most she can do despite his impairment. See
Id. at § 404.1545(a)(1). At the fourth step, the
Commissioner will compare the assessment of the
claimant's RFC with the physical and mental demands of
the claimant's past relevant work. Id. at
§§ 404.1520(a)(4)(iv) and (e), 404.1560(b).
“Past relevant work is work that [the claimant] [has]
done within the past 15 years, that was substantial gainful
activity, and that lasted long enough for [the claimant] to
learn to do it.” Id. § 404.1560(b)(1).
The claimant bears the burden of proving that her impairment
prevents her from performing her past relevant work.
Reynolds-Buckley, 457 Fed.Appx. at 863. If the
claimant is capable of performing her past relevant work, the
Commissioner will determine the claimant is not disabled. 20
C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b)(3).
proceeding to the fourth step, the ALJ determined West has
the RFC to perform a limited range of light work. (R. at
31-38). More specifically, the ALJ found West had the
following limitations to light work, as defined in 20 C.F.R.
no driving, no climbing, and no work at unprotected heights
or operation of hazardous machinery. She can do no more than
occasional stooping and crouching. She can do no upper
extremity pushing and/or pulling or overhead reaching. She is
limited to simple, repetitive, noncomplex tasks.
(Id. at 31). At the fourth step, the ALJ determined
West would not be able to perform her past relevant work as a
foster parent, bookkeeper, administrative assistant, or
account specialist. (Id. at 38).
claimant is unable to perform her past relevant work, the
Commissioner must finally determine whether the claimant is
capable of performing other work that exists in substantial
numbers in the national economy in light of the
claimant's RFC, age, education, and work experience. 20
C.F.R. §§ 404.1520(a)(4)(v) and (g)(1),
404.1560(c)(1). If the claimant is capable of performing
other work, the Commissioner will determine the claimant is
not disabled. Id.at § 404.1520(a)(4)(v) and
(g)(1). If the claimant is not capable of performing other
work, the Commissioner will determine the claimant is
fifth step, considering West's age, education, work
experience, and RFC, the ALJ determined she can perform jobs
that exist in significant numbers in the national economy,
such as those of cleaner, labeler, and packager or hand
packer. (R. 39). Therefore, the ALJ concluded West has not
been under a disability as defined by the Act since November
1, 2013, through the date of the decision. (R. 40).
Standard of Review
of the Commissioner's decision is limited to a
determination whether that decision is supported by
substantial evidence and whether the Commissioner applied
correct legal standards. Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158 (11th Cir. 2004). A district
court must review the Commissioner's findings of fact
with deference and may not reconsider the facts, reevaluate
the evidence, or substitute its judgment for that of the
Commissioner. Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1260 (11th Cir. 2007); Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Rather, a district court must “scrutinize the record as
a whole to determine whether the decision reached is
reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983) (internal citations omitted). Substantial evidence
is “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.”
Id. It is “more than a scintilla, but less
than a preponderance.” Id. A district court
must uphold factual findings supported by substantial
evidence, even if the preponderance of the evidence is
against those findings. Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (citing Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
district court reviews the Commissioner's legal
conclusions de novo. Davis v. Shalala, 985
F.2d 528, 531 (11th Cir. 1993). “The
[Commissioner's] failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted
mandates reversal.” Cornelius v. Sullivan, 936
F.2d 1143, 1145-46 (11th Cir. 1991).
are two matters before the court: (1) West's motion
seeking a remand order pursuant to sentence six of 42 U.S.C.
§ 405(g) and (2) her appeal of the administrative
determination. In her brief on the merits of her claims, she
asserts the following issues: (1) substantial evidence does
not support the ALJ's decision to reject the medical
opinions regarding what she could do despite her psoriatic
arthritis and the nature and severity of the same; (2) the AC
erred in failing to remand this matter to the ALJ to consider
her newly submitted evidence; and (3) the ALJ's
determination concerning her subjective symptoms is not based
on substantial evidence. (Doc. 12 at 1).
Medical History and Evidence
relevant medical history is substantial. It is also necessary
to repeat much of it to adequately address the issues raised
by her. The court will begin with the oldest relevant matter
Drs. William Craig, Charlie Talbert, and Mark Downey
initially sought treatment for neck, low back, and pelvic
pain from Dr. William Craig on March 29, 2013. (R. 649). She
complained that her pain restricted her physical activity and
disrupted her sleep. (Id.). She reported a
subjective pain score (“SPS”) of 5 out of 10.
(Id.). Dr. Craig's physical examination found
antalgic gait and tenderness in her greater trochanter and
buttock. (R. 651). Dr. Craig administered a guided
trochanteral bursal injection.(R. 652).
had another pain block on May 2, 2013, due to low back pain.
(R. 641). She returned to Dr. Craig on May 21, 2013,
complaining of severe, sharp, aching pain in her low back
after she bent over to pick up her grandson when she felt a
pop in her back. (R. 645). Dr. Craig's physical
examination found a positive left straight leg raising test
and hip tenderness. (R. 647). He administered a trigger point
injection, adjusted her medications, and prescribed a back
brace. (R. 648).
returned to see Dr. Craig on July 25, 2013, with a SPS of 5
out of 10. (R. 641). She reported that her pain after the May
2, 2013 pain block was about the same after the block as it
was before the block. (Id.). Dr. Craig administered
a venipuncture injection and prescribed a Medrol dose pack,
Flexeril, and Norco. (R. 643).
West returned to Dr. Craig on August 9, 2013, with a SPS of 5
out of 10. (R. 637). Dr. Craig administered a medial branch
block injection and prescribed a short term dosage of
Dilaudid. (R. 640).
February 26, 2014, Ms. West's low back pain was treated
by Dr. Craig with a L5-S1 facet injection. (R. 600). Her SPS
score was 5/10. She stated her pain worsened after her
hospitalization for Acute Respiratory Distress Syndrome in
November 2013. (R. 459-573, 600).
14, 2014 lumbar MRI scan found a disc protrusion on L5-S1
which extended more to the left side. (R. 657). The report
indicates that the disc height had not changed during the
last two years. (Id.). Dr. Craig increased her
Lyrica dosage on March 21, 2014. (R. 583). On March 31, 2014,
Dr. Craig treated her lumbar radiculopathy and lumbar facet
arthropathy with a left L5-S1 lumbar inter laminar epidural
steroid injection. (R. 595). She reported her SPS was 7 out
of 10 on April 21, 2014. Dr. Craig noted her radicular back
and leg pain were responding to therapies, medication and
steroid injections. (R. 636). Dr. Craig opined that 60% of
her symptoms were from her back and 40% were from her legs.
He referred her to Dr. Charlie Talbert for a surgical
Talbert evaluated West on April 24, 2014. His review of her
lumbar MRI found disc degeneration at ¶ 5-S1, bulging at
¶ 4-5 and L3-4, and a left sided foraminal bulge. The
bulge did not appear to put pressure on the number five root.
(R. 632). His physical examination revealed West had good
strength and a negative straight leg raise. (R. 633). Dr.
Talbert sent her for a nerve test and suggested that she not
have surgery. (R. 632). He stated in his notes, “She
has a problem but we do not have a good fix.”
August 27, 2014, Dr. Mark Downey administered a right L5-S1
transforaminal epidural steroid injection under fluoroscopy.
(R. 825). West returned to Dr. Downey on October 29, 2014,
with SPS pain score of 8/10. (R. 930). She described having
severe and functionally limiting pain. Dr. Downey
administered a second right L5-S1 transforaminal epidural
steroid injection under fluoroscopy. (Id.). She
returned to see Dr. Downey on January 21, 2015. (R. 935). She
described having 100% pain relief for two months.
(Id.). Dr. Downey administered a third right L5-S1
transforaminal epidural steroid injection that day.
Dr. Jeffrey D. Wade
also was evaluated by Dr. Jeffrey D. Wade, an orthopedic
surgeon, on May 13, 2014. (R. 669). His physical examination
of West found a positive left straight leg raising test with
numbness and tingling in her left foot and weakness in her L5
nerve root. (Id.). He determined that her March 2014
MRI scan showed a degenerative disc at ¶ 5-S1 with a
broad based disc bulge into left foramen, causing foraminal
stenosis. (Id.). Dr. Wade told her that he could
perform a laminectomy discectomy at ¶ 5-S1 with
foraminotomy. (Id.). He did not recommend a fusion.
(Id.). West decided to have the operation. Dr. Wade
performed bilateral L5 laminectomies, medial facetectomies
removing the central paracentral disk herniation, and a
partial S1 laminectomy with the removal of a inferiorly
migrated free fragment on May 16, 2014. (R. 683). Shortly
after the surgery, West developed a subcutaneous infection
that required irrigation and debridement on May 25, 2014. (R.
saw Dr. Wade on December 2, 2014, complaining of lower back
pain and bilateral leg numbness. (R. 931). Dr. Wade sent her
for a lumbar MRI with contrast of her lower back.
(Id.). Dr. Wade determined that her MRI showed mild
to moderate left neural foraminal stenosis at ¶ 4-5 due
to a bulging disc, posterior lateral spurring, and mild facet
DJD. Additionally, a 7mm cyst was found at the far lateral
aspect of the neural foraminal, which permiter contained the
L5 nerve root. (R. 933).
received an injection on January 12, 2015, to alleviate
irritation of her facet joint. (R. 932). An April 27, 2015
MRI showed stable findings compared with her December 2014
MRI and that she likely had a synovid or perineurial cyst.
Dr. Sean O'Malley
began seeking Dr. Sean O'Malley in June 2015. (R. 941).
West complained of stabbing right shoulder pain and low back
pain in her hips and legs with numbness and weakness. She had
right carpal tunnel release surgery in October 2015 and L5-S1
disc fusion surgery in December 2015. (R. 944, 950). Dr.
O'Malley reported on January 8, 2016 that her back pain
had improved substantially. By February 2016, her back pain
resolved and she was walking regularly. (R. 952, 1036). Later
that month, she did have to cut back on her walking due to
pain. (R. 1036). Specifically, she reported some pain in her
hip at night, and some pain in her left leg and feet.
(Id.). Dr. O'Malley noted that her gait and
strength were good. (Id.).
Dr. Vicki L. Moore
was seen by Dr. Vicki L. Moore for Fibromyalgia, headaches,
low back pain, migraines, and rheumatoid arthritis. (R. 990).
On July 1, 2013, she was seen by Dr. Moore with complaints of
pain in her lower left back and left forearm. X-rays
disclosed narrowing of the C5-C6 disc space. (R. 713). She
was prescribed rest, ice, and a Medrol dose pack
(Id.). In December 2013, West returned to Dr. Moore
after she fell. She complained of right hip
pain. (R. 706). She also told Dr. Moore that she
could not return to work. (Id.). In February 2014,