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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HEATHER M. EVERETT, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 14-0573-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405(g), Plaintiff seeks 

judicial review of an adverse social security ruling denying a 

claim for disability insurance benefits (Docs. 1, 10). The 

parties filed written consent and this action was referred to 

the undersigned Magistrate Judge to conduct all proceedings and 

order judgment in accordance with 28 U.S.C. § 636(c) and 

Fed.R.Civ.P. 73 (see Doc. 19). Oral argument was waived in this 

action (Doc. 21). After considering the administrative record, 

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

Cir. 1983), which must be supported by substantial evidence. 

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Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial 

evidence 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 

forty-four years old, had completed a high school education (Tr. 

190), and had previous work experience as an administrative 

assistant, an accounting manager, construction representative, 

assistant to the resident engineer, senior inspector, and an 

administrative assistant to an engineer (Tr. 194-96). Plaintiff 

alleges disability due to injuries from a motor vehicle accident 

and degenerative disc disease (Doc. 10 Fact Sheet).

The Plaintiff applied for disability benefits on March 19, 

2012, alleging a disability onset date of February 18, 2011 (Tr. 

165, 265-66). An Administrative Law Judge (hereinafter ALJ) 

denied benefits, determining that Everett was capable of 

performing her past relevant work as a construction 

representative, assistant to the resident engineer, secretary, 

account manager, and commercial developer coordinator (Tr. 165-

76). Plaintiff requested review of the hearing decision (Tr. 

159-61), but the Appeals Council denied it (Tr. 116-21).

Plaintiff claims that the opinion of the ALJ is not 

Case 1:14-cv-00573-M Document 22 Filed 10/08/15 Page 2 of 20
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supported by substantial evidence. Specifically, Everett

alleges that: (1) The ALJ improperly discredited her testimony; 

(2) the ALJ failed to properly develop the record; and (3) the 

Appeals Council did not properly consider newly-submitted 

evidence (Doc. 10). Defendant has responded to—and denies—these 

claims (Doc. 15). The relevant evidence of record follows.

On July 11, 2011, Covington Multicare Clinic records show 

Plaintiff appeared to establish care for hypertension; she had 

full range of motion (hereinafter ROM) in her back with no 

tenderness (Tr. 354-58). On July 22, Everett complained of back 

pain for five months following a motor vehicle accident; the 

pain had gotten worse after discontinuing Naproxen1 (Tr. 359-62). 

X-rays revealed mild degenerative changes in the lower lumbar 

spine with muscle spasms in the cervical spine, but nothing else 

significant (Tr. 341-3; 363-65). An exam showed full neck ROM 

with some trapezius tenderness bilaterally; forward flexion was 

slightly decreased in Everett’s back (Tr. 345). On July 27, a 

physical therapy (hereinafter PT) evaluation was completed (Tr. 

367-70); PT treatments began two days later and Plaintiff had 

nine sessions over a month’s time (Tr. 372-408). 

On August 29, 2011, an MRI of the lumbar spine showed mild

																																																							 1Error!	Main	Document	Only.Naprosyn, or Naproxyn, “is a nonsteroidal 

anti-inflammatory drug with analgesic and antipyretic properties” 

used, inter alia, for the relief of mild to moderate pain. 

Physician's Desk Reference 2458 (52nd ed. 1998).

Case 1:14-cv-00573-M Document 22 Filed 10/08/15 Page 3 of 20
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disk bulge at L4-L5, severe thecal sac stenosis at L5-S1, and 

severe left-sided and mild right-sided L5-S1 neural foraminal 

narrowing (Tr. 340, 410). On August 31, Everett told her doctor 

that her neck pain had improved with PT, though she still had 

low back pain radiating into the left leg with some numbness in 

that foot at times (Tr. 409-13).

On September 26, records from the Virginia Mason Medical 

Center reveal that Plaintiff was examined and found to have some 

limited cervical spine ROM though lumbar spine ROM was normal 

(Tr. 421-22, 430-32). On October 4, she had an epidural steroid 

injection for her back pain (Tr. 427-30). On November 15, 

Everett had another injection, following a misstep three weeks 

earlier, causing her pain to return (Tr. 424-25). 

On February 8, 2012, Plaintiff went to a Neurosurgery 

Center, complaining of ongoing and continuing buttocks and lower 

extremity pain; Dr. Juan F. Ronderos noted normal gait and that 

muscle strength, tone, and size were intact and symmetrical in 

all four extremities (Tr. 441-45). Straight leg raising was 

positive on the right, producing back and leg pain. The 

Doctor’s assessment was lumbar intervertebral disc without 

myelopathy and back pain; an MRI of the lumbar spine, when 

compared to a previous study, showed that disc herniation at L5-

S1 had become significantly more centralized in character and 

location.

Case 1:14-cv-00573-M Document 22 Filed 10/08/15 Page 4 of 20
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On February 14, 2012, Charla Evans, D.O., saw Plaintiff for 

sinus congestion, fever, and shortness of breath; pneumonia was 

diagnosed (Tr. 491-92). On February 27, a chest x-ray of the 

heart, lungs, and mediastinum was normal (Tr. 495). 

On February 22, Dr. Robert L. White, at Coastal 

Neurological Institute, examined Everett for low back pain, 

muscle cramps, joint pain, and headaches; it was the first of 

three visits during the course of one month (Tr. 470-79). The 

Doctor prescribed Flexeril2 and added a lumbosacral brace on the 

second visit (Tr. 473-75, 479). 

On March 7, 2012, Everett underwent an interlaminar 

epidural at Surgicare of Mobile (Tr. 450-65).

On March 6, 2012, Dr. Todd Engerson, with the Orthopaedic 

Group, examined Plaintiff for severe tingling in both hands, 

greater on the left; he noted that she was tender over the 

extensor origin, but had no evidence of arthritis in any of her 

joints (Tr. 466). Dr. Engerson’s opinion was that Plaintiff had 

either cervical radiculopathy or carpal tunnel syndrome. Six 

days later, Dr. Chris Nichols, also with the Orthopaedic Group, 

noted that EMG nerve studies completed weeks earlier were 

normal; neck ROM was full in all planes (Tr. 467-68). Everett 

																																																							 2Error!	Main	Document	Only.Flexeril 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).

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had some shoulder discomfort with abduction, external rotation 

but no radicular symptoms in the left arm; she had tenderness in 

the pulp of the left thumb. Tinel’s was provocative in both 

median nerves while Phalen’s was a problem bilaterally; Nichols 

found evidence of mild bilateral carpal tunnel syndrome.

On May 17, 2012, Orthopedic Engerson noted that Everett’s 

carpal tunnel symptoms were better, but she had pain in and 

around her left hip; he noted excellent hip ROM with absolutely 

no groin pain though she was real tender right on the tip of the 

trochanter, gluteal tendon, and over the trochanteric prominence

(Tr. 499). The Doctor’s impression was gluteal tendinitis and 

trochanteric bursitis for which he gave her an injection.

On June 21, Leslie Rush, D.O., at Baldwin Bone & Joint, 

examined Plaintiff for left lower extremity pain, radiating into 

the buttocks as well as cervical spine and left shoulder pain; 

Everett reported that the previous epidural had helped with the 

radiating leg pain, but it was still substantial in her back

(Tr. 509-10). Pain ran to six or seven on a ten-point scale, 

though it was three on that day; straight leg raising was 

positive on the left, but negative on the right. Muscle 

strength was intact. Plaintiff had difficulty with extension, 

with increased back pain, in standing position; left side 

bending caused pain and with combined rotation, it was worse. 

Review of the MRI showed significant degenerative disc disease

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at the L5-S1 level with a large central disc protrusion; there 

were early changes at the L4-5 level and also mild facet joint 

arthritis. Surgery versus conservative treatment was discussed; 

she had an injection on July 11, 2012 (Tr. 511). Two weeks 

later, Everett returned with continued low back pain, through 

the right buttock and into the left leg; she rated her pain as 

four or five and said it was aggravated by sitting, standing, 

walking, leaning back, and coughing (Tr. 512). The Doctor again 

recommended surgery.

On July 2, D.O. Evans diagnosed Plaintiff to have diabetes 

mellitus II, hypertension, and obesity (Tr. 507).

On March 20, 2012, Dr. White treated Everett whose primary 

complaint was neck pain, but she also referenced muscle cramps, 

joint pain, back pain, stiffness, and muscle aches; the Doctor 

noted restricted cervical motion with cervical muscle spasm for 

which he recommended traction and a lumbar brace (Tr. 519-22). 

On June 14, noting that Plaintiff’ lumbar ROM was eighty percent 

of normal, White prescribed Flexeril and Mobic3 for pain (Tr. 

523-26). On July 30, Dr. Edward L. Flute examined Plaintiff for 

continuing lumbar spine pain that she rated as severe (Tr. 515-

18). On September 19, following bilateral L5-S1 micro lumbar 

																																																							 3Error!	Main	Document	Only.Mobic 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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discectomy two weeks earlier (Tr. 513-14), Everett’s incision 

was healing well; she was taking Lortab4 (Tr. 527-30).

On October 22, 2012, Everett reported that her leg pain had 

improved but she was still having significant axial back pain 

that she rated at six (Tr. 548-51). Dr. Flotte noted no spinal 

deformity or scoliosis with normal posture and gait; she had 

normal, full ROM in all extremities. An MRI showed that the 

bilateral laminectomy and partial discectomy at L5-S1 had shown 

improvement in Plaintiff’s back though there was scar formation 

and mild right and moderate left foraminal encroachment; also, 

there was mild central canal narrowing at the L4-5 level (Tr. 

536). On November 1, Plaintiff saw Dr. William B. Faircloth to 

get a second surgical opinion; she reported still having 

significant left leg, back, and buttock pain (Tr. 543-47). The 

Doctor noted that Everett was wearing a back brace and had pain 

over the left sacroiliac joint; sitting straight leg raise was 

negative bilaterally. Toe and heel walking, as well as gait,

were normal; strength in all extremities was normal with no 

paraspinal muscle spasm. Faircloth’s assessment was left 

sacroiliitis and thoracic/lumbosacral neuritis/radiculitis for 

which he prescribed Lyrica.5 Six days later, Plaintiff had an 

																																																							 4Error! Main Document Only.Lortab is a semisynthetic narcotic

analgesic used for “the relief of moderate to moderately severe pain.” 

Physician's Desk Reference 2926-27 (52nd ed. 1998).

5Lyrica is used for the management of neuropathic pain. Error!	

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injection in the sacroiliac joint (Tr. 542); having had good 

results, another injection was given three weeks later (Tr. 

541). On December 13, 2012, D.O. Rush examined Everett for her 

low back pain, radiating into the left foot, that she rated at 

two; the Doctor diagnosed hip pain and post-laminectomy syndrome 

in the lumbar region for which he prescribed Vicodin6 and 

Flexeril (Tr. 537-40). Rush recommended that Everett increase 

her activity as tolerated but avoid aggravating activities. PT 

was ordered, consisting of nine sessions over a month’s time, 

during which Plaintiff showed improvement with overall lower 

extremity strength and her Trendelenburg gait; she still had 

weak hip extensors and her symptoms had not improved with stair 

climbing and certain transitional activities (Tr. 572-73; see 

generally Tr. 571-601).

On January 24, 2013, Osteopath Rush noted that Everett was 

“doing much better following her surgery as well as physical 

therapy. Leg pain and radiating symptoms have resolved” (Tr. 

610). She reported that she was still experiencing discomfort 

in her left hip and low back with increased activities, 

including standing or walking up steps; Rush noted Plaintiff 

ambulated very well without any significant antalgic pattern 

																																																																																																																																																																				

Main	Document	Only.Physician's Desk Reference 2517 (62nd ed. 2008).

6Error!	Main	Document	Only.Vicodin is a class three narcotic used “for 

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

Reference 1366-67 (52nd ed. 1998). 

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(Tr. 610-13). She had full internal and external rotation of 

the left hip; straight leg raising was unremarkable; the Fabere 

maneuver continued to cause discomfort in the anterior hip 

joint. Rush thought Everett was doing “quite well,” 

recommending she continue with—and add to—her home exercises and 

begin to wean herself off of Lyrica (Tr. 612). On March 20, 

2013, an MRI of the left hip showed that Everett was at risk for 

acetabular impingement syndrome though there was no evidence of 

advanced degenerative change, avascular necrosis, or acute 

traumatic injury (Tr. 609). Five days later, Rush noted the MRI 

and deferred to Everett’s Gynecologist before proceeding with 

further treatment (Tr. 606-08).

At the evidentiary hearing, Plaintiff testified that she 

stood five foot, six inches and weighed 182 pounds (Tr. 193; see 

generally Tr. 191-202). Everett took medications regularly that 

helped some, but not completely; she had talked to her doctors 

about the inadequacy of her drugs, but they did not know what to 

do about it (Tr. 194). Plaintiff described her duties in the 

work she had performed (Tr. 195-96). She left her last job 

because her husband took a job promotion in another city and, on 

the day they were moving, they were involved in a motor vehicle 

accident; Everett has not worked since then because she could 

not sit or stand for very long (Tr. 197-98). Plaintiff stated 

she could walk for forty-five minutes and could drive but did 

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not out of fear (Tr. 198). Everett can bathe, dress, and groom 

herself; her daughter does most of the housework because 

Plaintiff would be in bed for two days if she did it herself 

(Tr. 199). Everett did the grocery shopping, but her husband 

pushed the cart and loaded and unloaded them; she could fold 

clothes, but did not put them in the washer or dryer (Tr. 199-

200). Plaintiff has pain in her back, hip, and into the front 

of her thigh and back of her calf; she takes medications, but 

they cause drowsiness and sleepiness, so she has to take naps 

daily (Tr. 200-01). Everett would like to work, but it caused

her too much pain (Tr. 202). 

The Court will now take up Plaintiff’s claims, the first of 

which is that the ALJ improperly discredited her testimony. 

More specifically, Everett asserts that the ALJ did not properly 

consider her complaints of pain (Doc. 10, pp. 13-18). 

The standard by which the Plaintiff's complaints of pain 

are to be evaluated requires "(1) evidence of an underlying 

medical condition and either (2) objective medical evidence that 

confirms the severity of the alleged pain arising from that 

condition or (3) 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 v. Sullivan, 

921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 

782 F.2d 1551, 1553 (11th Cir. 1986)). The Eleventh Circuit 

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Court of Appeals has also held that the determination of whether 

objective medical impairments could reasonably be expected to 

produce the pain was a factual question to be made by the 

Secretary and, therefore, "subject only to limited review in the 

courts to ensure that the finding is supported by substantial 

evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.), 

vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated 

sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986). 

Furthermore, the Social Security regulations specifically state 

the following:

statements about your pain or other symptoms 

will not alone establish that you are 

disabled; there must be medical signs and 

laboratory findings which show that you have 

a medical impairment(s) which could 

reasonably be expected to produce the pain 

or other symptoms alleged and which, when 

considered with all of the other evidence 

(including statements about the intensity 

and persistence of your pain or other 

symptoms which may reasonably be accepted as 

consistent with the medical signs and 

laboratory findings), would lead to a 

conclusion that you are disabled.

20 C.F.R. § 404.1529(a) (2015).

Following his summary of the medical evidence, the ALJ made 

the following determination:

After careful consideration of the 

evidence, the undersigned finds that the 

claimant’s medically determinable 

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impairments could reasonable be expected to 

cause the alleged symptoms; however, the 

claimant’s statements concerning the 

intensity, persistence and limiting effects 

of these symptoms are not entirely credible 

for the reasons explained in this decision.

While the medical evidence of record 

reveals that the claimant has DDD of the 

lumbar spine, the claimant’s alleged 

severity of pain is not supported by 

diagnostic tests or objective examinations.7 

On October 22, 2012, a MRI of the claimant’s 

lumbar spine revealed post-op changes with 

improved central canal diameter, mild right 

and moderate left foraminal encroachment and 

possible scar formation at L5-S1 and mild 

central canal narrowing at L4-5 (Exhibit 

18F, p. 2). The claimant’s conditions 

improved with surgery and the diagnostic 

tests post-surgery do not suggest that the 

claimant’s DDD is anything greater than 

moderate. Moreover, objective examinations, 

as fully discussed above, revealed the 

claimant had a normal gait, she was negative 

for straight leg raising, but she had full 

strength in her upper and lower extremities, 

her deep tendon reflexes were present and 

normal, she had full internal and external 

rotation of the hip, manual muscle testing 

was normal, fabere maneuver caused some 

discomfort, but muscle testing for abduction 

and adduction was normal and she had no 

neurological deficits (Exhibit 17F, p. 3; 

Exhibit 22F, p. 7). These objective and 

diagnostic test findings are not consistent 

with the alleged incapacitating impairments 

and indicate the claimant’s impairments may 

not be as severe or debilitating as alleged.

The medical evidence of record revealed 

																																																							 7The Court notes that this paragraph actually begins with the 

following language: “In terms of the claimant’s alleged impairments, 

he appears to be able to do a range of medium work, as set forth by 

the claimant’s residual functional capacity (RFC). This is consistent 

with the limitations indicated by the other evidence in this case.” 

This language, obviously, was incorrectly inserted into the ALJ’s 

determination as it is inconsistent with the balance of his opinion. 

Therefore, the Court will disregard it.

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that the claimant’s DDD was primarily 

located in L5-S1 and her symptoms improved 

after surgery. Moreover, her hip pain 

improved with physical therapy. On January 

24, 2013, the claimant was noted as doing 

quite well following surgery and physical 

therapy and she was advised to wear a back 

brace for any heavy activities (Exhibit 22F, 

p. 3). The medical evidence suggests 

improvement with treatment and there is 

insufficient medical evidence of record that 

would support the claimant could not do 

sedentary work.

Additionally, the claimant has 

significant activities of daily living that 

are inconsistent with a debilitating 

impairment. She has no problems with 

personal care, she drives, she does some 

light housework, she cooks, she goes grocery 

shopping, folds clothes and does laundry. 

The claimant helps to care for her husband, 

who was also injured in the car accident, 

she cares for her dog, plays with her 

granddaughter, reads, plays cards, watches 

television and movies and visits with her 

family. She goes out to eat on a regular 

basis and attends doctor’s appointments 

(Exhibits 4E, 5E; Testimony). Moreover, the 

claimant previously reported that she was 

not working because she was caring for her 

husband, her pain interfered without [sic] 

only some activities of daily living and her 

pain did not prevent her from working 

(Exhibit 2F, pp. 22-23; Exhibit 3F, p. 5; 

Exhibit 4F, p. 1). Without significant 

limitations on her activities of daily 

living, the undersigned believes the 

claimant overstated the impact of her 

medically determinable impairments. 

Essentially, the claimant possesses the 

ability to perform the physical and mental 

activities necessary to perform the above 

residual functional capacity.

Although the claimant does appear to 

have some limitations, her assertions are 

not consistent with the medical evidence of 

record. The claimant is clearly able to do 

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a range of sedentary work, as noted in the 

residual functional capacity. Thus, the 

claimant’s allegations of limitations are 

not credible to the extent they conflict 

with the residual functional capacity.

(Tr. 173-74). 

In bringing this claim, Everett challenges the ALJ’s 

characterization of the evidence, particularly that presented in 

statements by Plaintiff and her husband (Doc. 10, pp. 14-15; see

Tr. 295-311). The Court will now summarize those statements. 

In a statement completed on April 2, 2012, Everett’s 

husband stated that he and his wife are together all of the time 

at home; she can prepare simple meals (making sandwiches or a 

bowl of cereal) once or twice a week (Tr. 295-97). She can do 

laundry and light house cleaning, though it takes all day 

because she has to take breaks every ten-to-fifteen minutes 

because of her back pain (Tr. 297). She drives and goes grocery 

shopping every two-to-three weeks for an hour or two (Tr. 298). 

Everett can play cards and board games for an hour at a time; 

she regularly goes to appointments, the grocery store, and her 

granddaughter’s school (Tr. 299). She wears a back brace (Tr. 

301).

In her own statement of the same date, Everett listed, 

among her daily chores, washing and drying a load of clothes and 

straightening the house, taking a break every ten minutes (Tr. 

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303). Plaintiff can prepare meals including sandwiches, cereal, 

meatloaf, soup, and eggs (Tr. 306). Everett drives to the 

grocery store and shops for about an hour every two weeks; she 

regularly goes to doctor appointments, her mother’s house, and 

restaurants (Tr. 307-08). Plaintiff has a back brace that she 

wears when she is having pain from too much standing or sitting 

(Tr. 310). 

The Court also notes, that, on July 27, 2011, Everett told 

her Physical Therapist that she was “not working due to her 

husband’s pain and injuries. . . . She enjoys working, golfing, 

and bowling for fun and spending time with family” (Tr. 368). 

The ALJ cited this information in addition to the husband’s and 

wife’s statements in finding Plaintiff’s testimony non-credible 

(Tr. 174).

The Court finds that these statements provide substantial 

support for the ALJ’s conclusions and do not support Everett’s 

assertions of disability. More importantly, though, the medical 

evidence does not support her assertions. There is no medical 

opinion in this record that Plaintiff’s pain in incapacitating 

as alleged. Curiously, although Everett asserts a disability 

onset date of February 18, 2011, the first medical note of 

record comes nearly five months later; the evidence from that 

point onward demonstrates that although Plaintiff has endured

pain during the period under consideration, the evidence shows 

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improvement in her impairments. By her own statements to her 

treating sources, the medical treatment provided relieved her 

asserted pain and inability. Everett’s claim that the ALJ 

failed to properly consider her pain is without merit.

Plaintiff next claims that the ALJ failed to properly 

develop the record. More specifically, she argues that the ALJ 

should have ordered orthopaedic and mental consultations to 

determine her capabilities (Doc. 10, pp. 8-13). The Eleventh 

Circuit Court of Appeals has required that "a full and fair 

record" be developed by the ALJ even if the claimant is 

represented by counsel. Cowart v. Schweiker, 662 F.2d 731, 735 

(11th Cir. 1981). However, the ALJ “is not required to order a 

consultative examination as long as the record contains 

sufficient evidence for the [ALJ] to make an informed decision.” 

Ingram v. Commissioner of Social Security Administration, 496 

F.3d 1253, 1269 (11th Cir. 2007) (citing Doughty v. Apfel, 245 

F.3d 1274, 1281 (11th Cir. 2001)). 

The Court first notes that Everett asserts no mental 

impairments in her application for benefits (Tr. 265-66), in any 

of the reports completed in the processing of her application 

(Tr. 278-94, 303-19, 331-32), or even in the Fact Sheet 

presented to this Court (Doc. 10). In that light, asserting 

that a mental evaluation should have been ordered by the ALJ is 

counterintuitive.

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Everett also asserts that a physical consultation should

have been ordered because of all of her orthopaedic issues. The 

Court rejects this assertion as the record is abundant with the 

treatment record of Plaintiff’s physical problems. A failure of 

those records to support Everett’s assertion of disability is an 

insufficient reason to order further evaluation. This claim is 

of no merit.8

Plaintiff’s final claim is that the Appeals Council did not 

properly consider newly-submitted evidence. Everett references 

one hundred fifty-three pages of evidence (Doc. 10, pp. 18-20; 

see Tr. 1-115, 123-57, 627-29).

The Court notes that a disability claimant can present new 

evidence at any stage of the administrative proceedings. 20 

C.F.R. ¶¶ 404.900(b) and 416.1400(b) (2015); Ingram v. 

Commissioner of Social Security, 496 F.3d 1253, 1261 (11th Cir. 

2007). If the evidence is first presented to the Appeals 

Council, the Council considers it only if it relates “to the 

period on or before the date of the [ALJ’s] hearing decision.” 

20 C.F.R. §§ 404.970(b) and 416.1470(b). The Court will now 

review the submitted evidence and the Appeals Council’s 

																																																							 8To the extent that Plaintiff attempts to assert a claim that the 

ALJ should have called a Vocational Expert to testify as to Everett’s 

ability to work (see Doc. 10, p. 9), the Court rejects it. First, it 

appears as a bare assertion with no supporting argument. Second, as 

the ALJ found that Plaintiff could return to her past previous work, 

there was no need to call on the services of a Vocational Expert.

Case 1:14-cv-00573-M Document 22 Filed 10/08/15 Page 18 of 20
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consideration of it.

On June 11, 2013, Orthopaedist Robert C. Baird, III noted

Everett’s complaints of pain, at a level two of ten; his exam 

revealed that she was in no acute distress, with mild pain, but 

full range of motion (Tr. 629). Nevertheless, he ordered an MRI 

that demonstrated that the superior aspect of the left hip was 

torn (Tr. 627-28). 

The Appeals Council found that this evidence, predating the 

ALJ’s determination by six days, provided no basis for changing 

the ALJ’s decision (Tr. 117).

The Appeals Council also reviewed evidence that post-dated 

the ALJ’s decision and found that it concerned medical events 

unrelated to the period under consideration as it came at a 

later time (Tr. 117). The Court will now review that evidence.

On July 26, 2013, Dr. Jeffrey Conrad, with the Orthopaedic 

Group, noted Everett’s complaint of sudden left shoulder pain, 

as of December 10, 2011, that she rated as two of ten; in spite 

of full ROM and strength, as well as stable ligaments, in the 

shoulder, he ordered an x-ray that demonstrated bursitis (Tr. 

147). Following left hip arthroscopy on August 23, Plaintiff 

reported much improvement, with little pain, as of September 3, 

2013 (Tr. 134-44, 148-57). 

The Court finds that the Appeals Council properly 

considered the newly-submitted evidence and determined that it 

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would not change the ALJ’s decision. The left hip tear was a 

new diagnosis, as shown by an MRI of March 20, 2013, less than 

three months earlier, that had failed to disclose it (Tr. 609). 

Though that evidence pre-dates the ALJ’s decision, it is a 

diagnosis of a new problem; the Court finds that even the 

subsequent treatment records, exceeding the ALJ’s consideration 

period, provides no basis for remand in that it fails to 

identify new functional limitations or functional limitations of 

disabling degree. Everett’s claim otherwise is without merit.

Everett has brought three 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 8th day of October, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cv-00573-M Document 22 Filed 10/08/15 Page 20 of 20