IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LILLIE D. SMITH, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 09-674-M 

: 

MICHAEL J. ASTRUE, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),

Plaintiff seeks judicial review of an adverse social security

ruling which denied claims for disability insurance benefits and

Supplemental Security Income (hereinafter SSI) (Docs. 1, 13). 

The parties filed written consent and this action has been

referred to the undersigned Magistrate Judge to conduct all

proceedings and order the entry of judgment in accordance with 28

U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 18). Oral argument

was waived in this action (Doc. 19). Upon consideration of the

administrative record and the memoranda of the parties, it is

ORDERED that the decision of the Commissioner be AFFIRMED and

that this action be DISMISSED. 

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human SerCase 1:09-cv-00674-M Document 20 Filed 04/21/10 Page 1 of 10
1Plaintiff testified that she had received a Graduate Equivalency

Degree (Tr. 27). 

2

vices, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

At the time of the administrative hearing, Plaintiff was

fifty years old, had completed a high school education1 and

graduated from cosmetology school (Tr. 27), and had previous work

experience as a sewing machine operator (Tr. 28). In claiming

benefits, Plaintiff alleges disability due to right shoulder

impingement, right wrist injury, and a severe neck and back

impairment (Doc. 13 Fact Sheet).

The Plaintiff filed applications for disability benefits and

SSI on August 7, 2006 (see Tr. 18). Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who

determined that Smith could perform her past relevant work as a

sewing machine operator (Tr. 15-23). Plaintiff requested review

of the hearing decision (Tr. 8-10) by the Appeals Council, but it

was denied (Tr. 1-5).

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Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Smith alleges

that: (1) The ALJ did not develop a full and fair record; (2)

the ALJ did not make a finding regarding the effects of

Plaintiff’s medications; and (3) the Appeals Council did not

properly consider the new evidence (Doc. 13). Defendant has

responded to—and denies—these claims (Doc. 14).

Smith first claims that the ALJ did not develop a full and

fair record. More specifically, she asserts that more evidence

should have been gathered regarding her back impairment (Doc. 13,

pp. 4-11). The Eleventh Circuit Court of Appeals has required

that "a full and fair record" be developed by the Administrative

Law Judge even if the claimant is represented by counsel. Cowart

v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). 

The evidence shows that, on August 24, 2006, Plaintiff was

involved in an accident in which her vehicle was hit from behind

by an eighteen-wheeler truck, totaling her car (Tr. 290). 

Treating physician Dr. Rosemarie Morwessel noted Smith’s

discomfort and found that she had “exquisite point tenderness

around L4-S1 but also mild tenderness along the whole lumbar

spine with pain on forward flexion and extension of her spine. 

She ha[d] a negative l leg stance. Negative straight leg raising

test” (Tr. 290). X-rays showed degenerative disc disease at L5-

S1 with osteopenia of the vertebral bodies, though there was no

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2Flexeril is used along with “rest and physical therapy for

relief of muscle spasm associated with acute, painful musculoskeletal

conditions.” Physician's Desk Reference 1455-57 (48th ed. 1994).

3Lortab is a semisynthetic narcotic analgesic used for “the

relief of moderate to moderately severe pain.” Physician's Desk

Reference 2926-27 (52nd ed. 1998).

4

obvious fracture; Dr. Morwessel recommended flexeril,2 lortab,3 a

back brace, and back exercises, with a follow-up examination in

two weeks if no improvement had been made (id.). The next

medical note from Dr. Morwessel is dated nearly a year later,

August 1, 2007, which is set out, in full, herein:

Determination of partial permanent impairment

rating for Lilly Smith

In regards to her Triangular

Fibrocartilage tear of her right wrist

associated with some articular cartilage

damage, I believe her permanent partial

impairment rating according to the AMA guide

fifth edition would be 10% of the upper

extremities for damage to the distal radial

ulnar joint and radial carpal joint. In

regards to her chronic right shoulder

impingement and loss of forward flexion and

abduction, I believe she has a 2% impairment

of the upper extremity. Therefore the total

disability for upper extremity would be 12%

equal to 7% of the whole person according to

Table 16/3 of the AMA guide fifth edition.

In regards to her permanent work

restrictions I believe that she can only do

repetitive pushing, pulling and twisting with

her right arm when using a wrist splint. I

believe she can only carry 5 pounds

frequently with her right arm and

occasionally 20 pounds with both arms.

(Tr. 333). Plaintiff noted that the ALJ gave great weight to

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this statement, but argued that the doctor was not assessing the

totality of her impairments (Doc. 13, pp. 5-6; cf. Tr. 22-23). 

Smith argues that Morwessel did not include, in this evaluation,

any consideration of her back impairment.

The Court finds Plaintiff’s argument unconvincing for

several reasons. First of all, Smith did not see Dr. Morwessel

again for back problems after the initial evaluation; the

evidence seems to indicate that the August 24, 2006 examination

was the last contact at all between the doctor and Plaintiff

which occurred before the ALJ rendered his decision. Second,

Morwessel’s “determination of impairment rating” would certainly

have included an assessment of Smith’s back pain if it merited

consideration as that would have been the time to do it. 

Additionally, the Court notes that Plaintiff has pointed out that

she was seen by Dr. Hussain on November 28, 2007 for back pain

(Doc. 13, p. 5; Tr. 335); the Court also notes, though, that this

represents a fifteen-month gap between the accident and this

“follow-up” examination.

Smith has also argued, in connection with this claim, that

the ALJ improperly determined that her back impairment was not a

severe impairment (Doc. 13, p. 6). In Brady v. Heckler, 724 F.2d

914, 920 (11th Cir. 1984), the Eleventh Circuit Court of Appeals

held that "[a]n impairment can be considered as not severe only

if it is a slight abnormality which has such a minimal effect on

Case 1:09-cv-00674-M Document 20 Filed 04/21/10 Page 5 of 10
4"An impairment or combination of impairments is not severe if it

does not significantly limit your physical or mental ability to do

basic work activities."

6

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); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf.

20 C.F.R. § 404.1521(a) (2009).4 The Court of Appeals has gone

on to say that "[t]he 'severity' of a medically ascertained

disability must be measured in terms of its effect upon ability

to work, and not simply in terms of deviation from purely medical

standards of bodily perfection or normality." McCruter v. Bowen,

791 F.2d 1544, 1547 (11th Cir. 1986). It is also noted that,

under SSR 96-3p, “evidence about the functionally limiting

effects of an individual’s impairment(s) must be evaluated in

order to assess the effect of the impairment(s) on the

individual’s ability to do basic work activities.” 

The Court finds no support for Plaintiff’s argument. For

the three reasons just enumerated, the Court finds that Smith has

not demonstrated that the ALJ committed reversible error in not

finding that her back impairment was severe.

Plaintiff’s next claim is that the ALJ did not make a

finding regarding the effects of Plaintiff’s medications (Doc.

13, pp. 16-20). Smith referred to her testimony to the ALJ that

her pain medication only provided slight relief while causing

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nausea, dizziness, and diarrhea (Tr. 32-33). 

The Court’s review of the record demonstrates that Dr.

Morwessel prescribed flexeril and lortab on the day she examined

Smith from her motor vehicle accident, August 24, 2006 (Tr. 290). 

The Court also notes that while Plaintiff has referenced a Social

Security form listing these drugs (Tr. 146), there is no

indication that Dr. Morwessel prescribed them more than once or

that any other doctor prescribed them either; in any event, Smith

has not directed this Court’s attention to any other such

prescriptions. As such, the side effects would of been of short

duration as Plaintiff was taking them for such a limited period.

The Court also notes that it does not appear that Plaintiff

indicated to any of her doctors that the medications she had been

prescribed were causing negative side effects and that the types

of drugs or dosage levels needed to be adjusted. As Smith

apparently raised concerns regarding the side effects of her

medications to the ALJ first and her own doctors have not

indicated any concerns about those effects, the Court finds that

the ALJ’s failure to credit her claim to be supported by

substantial evidence. See Swindle v. Sullivan, 914 F.2d 222, 226

(11th Cir. 1990). Smith’s claim that the ALJ did not properly

consider the side effect of her medications is without merit.

Plaintiff final claim is that the Appeals Council did not

properly consider the new evidence (Doc. 13, pp. 11-16). 

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Plaintiff references medical evidence relating to back, shoulder,

and neck pain, which radiates into her arms, found in the record

at Tr. 343-409.

 It should be noted that "[a] reviewing court is limited to

[the certified] record [of all of the evidence formally

considered by the Secretary] in examining the evidence." Cherry

v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985). However, “new

evidence first submitted to the Appeals Council is part of the

administrative record that goes to the district court for review

when the Appeals Council accepts the case for review as well as

when the Council denies review.” Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994). 

However, “when the [Appeals Council] has denied review, we will

look only to the evidence actually presented to the ALJ in

determining whether the ALJ’s decision is supported by

substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th

Cir. 1998), cert. denied, 525 U.S. 1124 (1999). The Court notes

that the Eleventh Circuit Court of Appeals has further stated the

following with regard to this issue: 

Sentence six allows the district court to

remand to the Commissioner to consider

previously unavailable evidence; it does not

grant a district court the power to remand

for reconsideration of evidence previously

considered by the Appeals Council. Because

evidence properly presented to the Appeals

Council has been considered by the

Commissioner and is part of the

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administrative record, that evidence can be

the basis for only a sentence four remand,

not a sentence six remand.

Ingram v. Commissioner of Social Security Administration, 496

F.3d 1253 (11th Cir. 2007).

If, however, the Appeals Council accepts the case for

review, we consider that new evidence as well, though it is to be

examined differently from the balance of the evidence. See

Falge, 150 F.3d at 1323. Keeton directs this Court to look at

the new evidence and determine whether it meets the three-prong

standard for remanding this action. Keeton, 21 F.3d at 1068. To

make a determination of remand, "the claimant must establish

that: (1) there is new, noncumulative evidence; (2) the evidence

is 'material,' that is, relevant and probative so that there is a

reasonable possibility that it would change the administrative

result, and (3) there is good cause for the failure to submit the

evidence at the administrative level." Caulder v. Bowen, 791

F.2d 872, 877 (11th Cir. 1986).

In examining the action at hand, the Court notes that the

Appeals Council denied review of the additional evidence (Tr. 1). 

In reaching this decision, the Appeals Council considered the

newly-submitted evidence but found that it did not provide a

basis for changing the ALJ’s decision (Tr. 1-2).

Under Falge, it is unnecessary for the Court to consider the

newly-submitted evidence as the Appeals Council denied review. 

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Nevertheless, the Court finds that Caulder’s three-prong standard

has not been met because there is not a reasonable probability

that the new evidence would change the administrative result. 

While the new evidence might now provide evidence of

disability—and the Court is not finding that it does—it comes too

late. The Court has already noted that fifteen months passed

between the date of Smith’s accident and the follow-up

examination. The new evidence begins to accumulate three months

after that—a full eighteen months after the accident. If

Plaintiff believes that this new evidence demonstrates

disability, she should file a new claim. The Court finds that

the Appeals Council did not commit error in finding that the new

evidence would not have changed the ALJ’s decision.

Smith has raised three different claims in bringing this

action. All are without merit. Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Perales,

402 U.S. at 401. Therefore, it is ORDERED that the Secretary's

decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947,

950 (5th Cir. 1980), and that this action be DISMISSED. Judgment

will be entered by separate order.

DONE this 21st day of April, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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