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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JERMESHIA M. DALE, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 14-0227-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

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, 12-13). 

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. 20). Oral 

argument was waived in this action (Doc. 19). After considering 

the administrative record and the memoranda of the parties, it 

is ORDERED that the decision of the Commissioner be REVERSED and 

that this action be REMANDED for further procedures not 

inconsistent with the Orders of the Court.

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This Court is not free to reweigh the evidence or 

substitute its judgment for that of the Secretary of Health and 

Human Services, 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, Dale was twentyeight years old, had completed two years of education (Tr. 43), 

and had previous work experience as a short order cook, steward, 

waitress, cashier and teacher’s aide (see Tr. 58). In claiming 

benefits, Plaintiff alleges disability due to degenerative disc 

disease of the lumbar spine, cervicalgia, asthma, hypertension, 

obesity, and headaches (Doc. 12 Fact Sheet).

The Plaintiff filed applications for disability benefits 

and SSI on March 14, 2011, alleging a disability onset date of 

December 27, 2010 (Tr. 132-45; see Tr. 19). Benefits were 

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

who determined that although Dale could not return to her past 

relevant work, there were specific light work jobs that she 

Case 1:14-cv-00227-M Document 21 Filed 01/06/15 Page 2 of 14
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could perform (Tr. 19-30). Plaintiff requested review of the 

hearing decision (Tr. 8) by the Appeals Council, but it was 

denied (Tr. 1-6).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Dale alleges 

the following: (1) The Appeals Council failed to properly 

consider newly-submitted evidence; Plaintiff further alleges 

that the ALJ did not properly consider (2) the conclusions of 

her treating physician; (3) her pain and the effects of her 

medications; and (4) her own testimony (Docs. 12, 13). 

Defendant has responded to—and denies—these claims (Doc. 15). 

The relevant1 evidence of record follows.

On October 26, 2010, Dale went to Tri-County Medical Center 

in Atmore for low back pain for more than two months that she 

rated as nine on a ten-point scale; she had also had headaches 

twice a week for several months (Tr. 236). The doctor noted no 

tenderness in the lumbosacral area; gait was normal and straight 

leg raising was normal. Amitriptyline,2 Mobic,3 and Lortab4 were 

																																																							 1Plaintiff’s alleged date of disability is December 27, 2010 (see

Tr. 19), so the Court will not review herein the evidence that predates that by more than several months. Likewise, the Court notes 

that Dale has not challenged the ALJ’s finding that she has no severe 

mental impairment, so the Court will not review that evidence. 

2Error!	Main	Document	Only.Amitriptyline, marketed as Elavil, is 

used to treat the symptoms of depression. Physician's Desk Reference

3163 (52nd ed. 1998). 

3Mobic is a nonsteroidal anti-inflammatory drug used for the 

relief of signs and symptoms of osteoarthritis and rheumatoid 

arthritis. Physician's Desk Reference 855-57 (62nd ed. 2008). 

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prescribed.

On December 15, 2010, a doctor with the Atmore Family 

Medicine determined that Dale had spinal stenosis of the lumbar 

region and prescribed ultram5 (Tr. 241). An MRI of the lumbar 

spine confirmed the diagnosis on March 22, 2011 (Tr. 245).

On March 15, 2011, (Tr. 252-55), Plaintiff went to North 

Baldwin Hospital complaining of chronic back pain that was worse 

with movement and relieved by nothing; decreased range of motion 

(hereinafter ROM) was noted although motor skills, sensation, 

and reflexes were normal. The assessment was chronic, 

lumbosacral strain.

On June 20, 2011, Dr. David Fairleigh examined Dale for 

lower extremity back pain that she rated as nine (Tr. 311-14). 

Fairleigh noted Plaintiff to be in no acute distress with very 

slow, guarded, gait, though it was non-antalgic; she was guarded 

when moving from a sitting to standing position. There was some 

limitation of movement “in all planes of flexion, extension, 

lateral bending and rotational movements to the low back area” 

(Tr. 313). Sensory was symmetrical and intact; motor strength 

was full in all muscle groups while motor strength reflexes were 

																																																																																																																																																																				 4Lortab is a semisynthetic narcotic analgesic used for “the 

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

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

5Ultram is an analgesic “indicated for the management of moderate 

to moderately severe pain.” Physician's Desk Reference 2218 (54th ed. 

2000).

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reduced to the lower extremities. The Doctor prescribed Talwin 

and Flexeril6. On July 1, 2011, Fairleigh found Dale in mild 

distress and discomfort, noting that palpation was tender in the 

facet joints, sacroiliac joints, and paraspinous muscles; he 

gave her an injection (Tr. 309-10). 

On July 12, Dr. Sid Crosby examined Dale for moderate 

ongoing low back pain; on examination, the Doctor noted that 

Plaintiff was obese and appeared to be uncomfortable and in pain 

(Tr. 322-24). Dale was re-prescribed Ultram, Flexeril, and 

Talwin and was referred to physical therapy. Three days later, 

Crosby saw Plaintiff for an ingrown, infected toenail for which 

he prescribed Keflex7; back pain was listed as a chronic disease 

but nothing more was stated about it (Tr. 319-21). On July 18, 

a Therapist indicated that Dale’s ability to stand, walk, and 

squat was 40% while bending was only 20%; the Therapist further 

indicated that Plaintiff’s ROM was 50% on flexion, extension, 

and right side bending while it was only 25% on left side 

bending (Tr. 325-26). Twelve physical therapy sessions were 

recommended. On July 27, Dr. Crosby noted Dale’s assertion that 

therapy had helped her pain; he noted that while she was in no 

acute distress, there was tenderness in the upper lumbar area 

																																																							 6Flexeril 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).

7Error!	Main	Document	Only.Keflex is used for the treatment of 

various infections. Physician's Desk Reference 854-56 (52nd ed. 1998). 

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and Plaintiff had decreased ROM (Tr. 315-18).

On August 25, 2011, Dr. Fairleigh noted that Plaintiff had 

difficulty arising from a sitting position; the diagnosis was 

lumbar spondylosis and back and lower extremity pain (Tr. 346). 

Dale denied seeing multiple physicians to obtain narcotics; a 

urine drug screen showed no inappropriate medication abuse.

Medical notes on September 23 from West Florida Orthopedics 

indicate that Dale had been referred by Dr. Fairleigh for back 

and bilateral leg pain (Tr. 327-32). Plaintiff was in no acute 

distress and had full strength in all lower extremity motor 

groups; she had “a global stocking-like decrease in fine touch 

on the right;” straight leg raise was positive on the right (Tr. 

329). Dale’s back anatomy was normal; ROM was not tested. 

Based on an MRI study, the Doctor diagnosed “right paracentral 

L4-L5 HNP with right greater than left lateral recess stenosis 

and foraminal stenosis on the right, back pain greater than leg 

pain;” he indicated that surgery might be indicated after 

further testing (Tr. 329).

Physical Therapy records from October 18 note Dale’s 

compliance with her exercise activities and an acknowledgment of 

fifty percent improvement; the Therapist noted Plaintiff’s 

improvement in walking, sitting, standing, squatting, and 

bending (Tr. 361). The Therapist noted a decrease in trunk 

flexion ROM, but progress overall.

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On October 24, Dr. Crosby noted tenderness in the midline 

lumbosacral region; straight leg raise was negative and ROM was 

normal (Tr. 355-357).

On November 17, 2011, Dr. Fairleigh noted that Dale arose 

from a seated position with difficulty; she had an antalgic gait 

(Tr. 344). ROM was limited and diffusely tender. The Doctor’s 

diagnosis was spondylosis for which he recommended lumbar 

discography; Dale was strongly urged to quit smoking (Tr. 345).

On January 29, 2012, Plaintiff went to the Jackson Medical 

Center Emergency Room in mild distress for left shoulder and 

neck pain; she had decreased ROM in the shoulder (Tr. 334-41). 

Reflexes and finger grip were equal bilaterally in the upper 

extremities; as she was pregnant, Dale was told to take Tylenol 

extra strength and was given a prescription for Flexeril. 

On March 5, Dr. Crosby’s lumbar examination of Plaintiff 

showed normal palpation, negative straight leg raise, and normal 

ROM (Tr. 352-54). 

On March 12, Dr. Fairleigh noted that Dale had difficulty 

arising from a seated position and had an antalgic gait; ROM was 

limited and there was increased tone and trigger points over the 

splenius cervicis, upper trapezius, and levator scapulae muscle 

groups (Tr. 343). Motor and sensory exam were normal in the 

upper extremities. An injection was given; it was noted that 

the discography would have to wait as she was pregnant. 

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Radiological exams demonstrated mild cervical kyphosis from C2 

through C4 though the cervical vertebral body and intervertebral 

disc heights were well-maintained (Tr. 347). 

On April 4, 2012, Physical Therapy records note Dale’s 

claim of increased pain—rated as six—in her back and shoulder 

because of her pregnancy; however, right leg pain had decreased 

and movement was better (Tr. 358-59). Bending and reaching 

aggravated the pain. The Therapist noted that Plaintiff’s ROM 

was improved in her trunk and left shoulder; she also had 

increased movement in her shoulder and hips. Nevertheless, the 

Therapist thought that another month of therapy was required.

On July 20, Dr. Priscilla Durand-Mitchelle noted 

Plaintiff’s complaints of blurred vision, an inability to hold 

things, and muscle spasms, especially when driving; her back 

pain registered at eight on good days and ten on bad days and 

the pain medications provided no relief (Tr. 348-50). The 

Doctor noted that Dale was positive for paresthesias in her 

hands and feet; she had full ROM with pain on forward flexion of 

her neck. Durand-Mitchelle further noted no clubbing, cyanosis, 

or edema of the lower extremities with full ROM and normal gait.

On August 20, Dr. Durand-Mitchelle examined Dale, finding 

her in no acute distress; she noted that her neck was nontender 

to palpation (Tr. 363-64). The Doctor’s musculoskeletal 

evaluation demonstrated no clubbing, cyanosis, or edema of the 

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lower extremities; her diagnosis was hypertension, muscle spasm, 

tobacco use disorder, and cervicalgia. On that same date, 

Durand-Mitchelle completed a pain questionnaire in which she 

indicated that Dale’s pain would frequently distract her from 

adequately performing work activities (Tr. 362). The Doctor 

further indicated that medication side effects could be expected 

to be severe and limit Plaintiff’s effectiveness in performing 

work-related activities. The Doctor also completed a physical 

capacities evaluation indicating that Plaintiff was capable of 

sitting for one hour and standing/walking for one hour at a time 

and could sit for four hours and stand/walk for two hours during 

an eight-hour workday (Tr. 368). Dale could lift and carry ten 

pounds frequently and twenty pounds occasionally, but never more 

than that. She was capable of using her hands for simple 

grasping, fine manipulation, and the pushing and pulling of arm 

controls; likewise, she could use both feet in repetitive 

movements in pushing and pulling leg controls. On occasion, 

Plaintiff could bend, squat, and reach, but she could never 

crawl or climb.

At the evidentiary hearing, Dale testified that she was the 

mother of three children, ranging from two months old to eight 

years old, and that she lived with her parents (Tr. 41-42; see 

generally Tr. 41-56, 62-64). Plaintiff’s parents or aunt cared 

for her baby and got the other two children ready for school 

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most of the time because she was unable to do so (Tr. 62-64). 

At the hearing, Dale was wearing an air cast on her right ankle 

for a sprain (Tr. 43). Plaintiff last worked for a month, 

twenty months earlier, as a cook but had to quit because she 

could not get out of bed or stand up without assistance (Tr. 

45). Dale stated that she could not work because of bad 

headaches with blurry vision; painful muscle spasms in her back, 

radiating into her arms and legs, caused her to drop things (Tr. 

42, 48). She said that her pain was constant but was really 

sharp half of the time (Tr. 49). Plaintiff testified that her 

medications—Flexeril, Lyrica, Zoloft, Tramadol, and Talwin—

caused her to sleep several hours after taking them; her 

medicines were mostly ineffective except when she slept (Tr. 48-

50, 56). Dale would resort to lying down, propping her upper 

body up, and using a heating pad to alleviate the pain; she had

to lie down about five hours every day (Tr. 50, 56). Plaintiff 

testified that she could walk for ten minutes, stand for ten 

minutes, and sit for thirty minutes (Tr. 50). Dale has no 

problems getting along with people, though she tended to stay to 

herself (Tr. 51). Plaintiff was unable to perform household 

chores and relied on her mother to do them (Tr. 52). Dale

occupied her time with reading and watching tv; she had isolated 

herself because of her pain (Tr. 53-55). 

This concludes the Court’s review of the evidence.

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In bringing this action, Dale first claims that the Appeals 

Council failed to properly consider newly-submitted evidence 

(Doc. 13); Defendant has argued that the evidence should not be 

considered (Doc. 15, pp. 2-5). The evidence appears in the 

record at Doc. 13, pp. 4-8.

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). Under 

Ingram v. Commissioner of Social Security Administration, 496 

F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed 

to consider, if such a claim is made, whether the Appeals 

Council properly considered the newly-submitted evidence in 

light of the ALJ’s decision. To make that determination, the 

Court considers whether the claimant “establish[ed] 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 

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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, 

returned it to Dale, and indicated that the evidence could be 

used in filing a new claim (Tr. 2). The Appeals Council 

determined that the medical information submitted was generated 

following the ALJ’s decision of September 14, 2012 and did not 

related to the period preceding that date (Tr. 2).

The Court notes that an MRI of the cervical spine performed 

on October 22, 2012 at Atmore Community Hospital revealed the 

following medical evidence and impression:

There is mild desiccation of the C3 to C7 

discs with some mild disc protrusion at C3-4 

and C4-5 displacing the CSF anterior to the 

cord. The spinal canal is relatively

narrowed from C3 to C6 and this is most 

likely congenital. There is protrusion 

right posterolateral [sic] into the right 

neural foramen of C3-4 causing moderate 

right neural foraminal stenosis and 

bilaterally posterolaterally at C4-5 with 

there being mild to moderate neural 

foraminal stenosis. The other disc spaces 

shows [sic] no abnormality. The spinal cord 

is normal in size and intensity pattern.

IMPRESSION: Mildly narrowed spinal canal 

from C3 to C6 with mildly protruding discs 

at C3 to C5 with both areas displacing the 

CSF anterior to the cord and there is right 

neural foraminal stenosis of moderate degree 

of C3-4 and bilaterally of mild to moderate 

degree at C4-5.

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(Doc. 13, p. 8).

The Court notes that this is the first MRI of the cervical 

spine completed in this medical record. However, Dale first 

complained of neck pain and decreased ROM in her left shoulder 

in January 2012 at the Emergency Room for which she received 

Flexeril (Tr. 334-41). In March, Dr. Fairleigh noted limited 

ROM and increased tone and trigger points over the splenius 

cervicus, upper trapezius, and levator scapulae muscle groups 

for which she was given an injection (Tr. 343); x-rays 

demonstrated mild cervical kyphosis from C2 through C4 (Tr. 

347). In April, a Physical Therapist noted that Dale did not 

have full ROM in her shoulder and recommended further therapy 

(Tr. 358-59). In July, Dr. Durand-Mitchelle found paresthesias 

in Dale’s hands and feet; she had full ROM with pain on forward 

flexion of her neck (Tr. 348-50). The next month, DurandMitchelle diagnosed Plaintiff to have cervicalgia (Tr. 363-64). 

The Court finds that the three-prong standard has been met. 

The first prong is satisfied because the evidence is new and 

provides evidence of an impairment already asserted. The second 

prong is met because there is a reasonable possibility the ALJ 

would change her opinion of Dale’s impairment and her complaints 

of pain and limitation; the Court cannot—and will not—find that 

this new evidence mandates a disability finding, but it does 

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warrant additional consideration. The third prong is satisfied 

because the evidence did not exist at the time the ALJ rendered 

her decision. Though the Appeals Council considered the 

evidence, it determined that it was not new evidence that should 

be considered by the ALJ; that decision was wrong. 

Based on review of the entire record, the Court finds that 

the Commissioner's decision is not supported by substantial evidence. Therefore, it is ORDERED that the action be REVERSED and 

REMANDED to the Social Security Administration for further 

administrative proceedings consistent with this opinion, to 

include, at a minimum, a supplemental hearing for the gathering 

of additional evidence. For further procedures not inconsistent 

with this recommendation, see Shalala v. Schaefer, 509 U.S. 292 

(1993). Judgment will be entered by separate Order.

DONE this 6th day of January, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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