1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRI K. HARE, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15-0045-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, 9). The 

parties filed written consent and this action has been 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. 15). Oral argument was waived in this 

action (Doc. 14). 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. 

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 1 of 13
2

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-eight years old, had completed some college education (Tr. 

46), and had previous work experience as an insurance agent and 

a technical support specialist (Tr. 57). Plaintiff alleges 

disability due to Alprazolam1 dependence, panic disorder, 

dysthymic disorder, lumbar degenerative disc disease, 

fibromyalgia, polyarthralgia, osteoarthritis, irritable bowel 

syndrome, temporomandibular joint disease, and bilateral carpal 

tunnel syndrome (Doc. 9 Fact Sheet).

Hare applied for disability benefits on September 16, 2011, 

asserting a disability onset of January 1, 2007 (Tr. 21; 119-

25). An Administrative Law Judge (ALJ) denied benefits, 

determining Plaintiff was capable of performing specified 

sedentary work (Tr. 21-34). Hare requested review of the 

hearing decision (Tr. 15-16), but the Appeals Council denied it 

(Tr. 1-6).

																																																							 1Alprazolam is the generic name for Xanax. See

http://www.drugs.com/alprazolam.html

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 2 of 13
3

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Hare alleges 

that: (1) The ALJ did not properly consider the conclusions of 

her treating physician; and (2) the Appeals council did not 

properly review newly-submitted evidence (Doc. 9). Defendant 

has responded to—and denies—these claims (Doc. 10). The 

relevant evidence of record follows.

On March 28, 2007, Dr. Robert McKnight, who had been 

treating Plaintiff since 2002, diagnosed Hare to have Irritable 

Bowel Syndrome and depression, prescribing Lexapro2 and Ultram3

(Tr. 219; see generally Tr. 195-253). Four months later, the 

Doctor substituted Cymbalta4 for the Lexapro (Tr. 218). On 

September 13, McKnight prescribed Xanax5 for panic attacks (Tr. 

217). On February 8, 2008, Plaintiff complained of panic 

attacks and insomnia and was prescribed Wellbutrin6 (Tr. 216). 

On August 8, Hare had recently fallen, injuring her left knee 

and causing left groin strain; Lortab7 and Flexeril8 were 

																																																							 2Lexapro is indicated for the treatment of major depressive 

disorder. Physician's Desk Reference 1175-76 (62nd ed. 2008). 3

Ultram is an analgesic “indicated for the management of moderate 

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

2000). 

4Cymbalta is used in the treatment of major depressive disorder. 

Physician's Desk Reference 1791-93 (62nd ed. 2008).

5Xanax is a class four narcotic used for the management of 

anxiety disorders. Physician's Desk Reference 2294 (52nd ed. 1998).

6Wellbutrin is used for treatment of depression. Physician's 

Desk Reference 1120-21 (52nd ed. 1998). 

7Lortab is a semisynthetic narcotic analgesic used for “the 

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 3 of 13
4

prescribed (Tr. 212). In October, the Doctor found Plaintiff to 

have arthritis all over, with both hips and elbows being worse; 

he diagnosed arthralgia (Tr. 211). On February 26, 2009, 

McKnight added fatigue to continuing prior diagnoses and 

continued medications (Tr. 210). On November 2, Hare had right 

hip pain for which Lortab was prescribed (Tr. 208). On January 

4, 2010, Plaintiff complained of joint pain in the right hip, 

feet, ankles, and shoulders in addition to finger pain; McKnight 

diagnosed polyarthralgia and prescribed Lortab (Tr. 207). Two 

days later, Plaintiff had a positive ANA screen (Tr. 246). On 

March 2, the Doctor indicated Hare may have fibromyalgia and 

prescribed Lortab; six weeks later, he re-prescribed the Lortab 

and Xanax (Tr. 205-06). On May 11, Savella9 was prescribed for 

stress (Tr. 204). On September 23, Hare complained of 

abdominal, shoulder, hip, and head pain as well as anxiety; 

Lortab was prescribed (Tr. 202). On November 30, she complained 

of weakness and pain in her hips (Tr. 201). On March 18, 2011, 

Plaintiff had hip pain and received prescriptions for Lortab and 

Xanax (Tr. 198). 

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

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

8Flexeril 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).

9Savella is a drug enhancing transmission in neurotransmitters to 

ease pain, reduce fatigue, and help memory. See http://www.webmd.com/

fibromyalgia/guide/savella-for-fibromyalgia-treatment

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 4 of 13
5

On March 24, 2011, Dr. E. Rhett Hubley with Baldwin Bone & 

Joint, P.C., examined Hare for intermittent right hip pain (Tr. 

193). The Doctor noted a little discomfort with straight leg 

raising and pain with internal rotation in both the flexed and 

extended position; she had full range of motion (hereinafter 

ROM). X-rays showed there was “perhaps some slight narrowing in 

her right hip joint” and “a very small osteophyte forming on the 

superior surface of the femoral neck . . . [with] disc narrowing 

at L5/S1 of probably 25%” (Tr. 193). Unable to specifically 

diagnose Plaintiff’s ailment, the Doctor put her on a Medrol 

Dosepak10 and said he would see her again in two weeks.

On May 26, 2011, Dr. McKnight prescribed Lortab for right 

hip arthritis (Tr. 197). On July 18, the Doctor re-represcribed 

Xanax and Lortab as well as Pristiq11 for depression (Tr. 196). 

On July 21, McKnight wrote the following “To Whom It May 

Concern” letter:

Ms. Hare began complaining of a 

multiple joint pain and low grade fever in 

January 2010. At that time, she had 

laboratory workup which revealed a positive 

antinuclear antibody consistent with connect 

tissue disease. Since that time, she has 

been dependent upon pain medication to 

function; however, she finds it difficult to 

																																																							 10A Medrol Dosepak (methylprednisolone) is a steroid that prevents 

the release of substances in the body that cause inflammation. See

http://www.drugs.com/mtm/medrol-dosepak.html

11Pristiq is used in treating depression and anxiety. 

http://www.webmd.com/drugs/2/drug-150251/pristiq-oral/details

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 5 of 13
6

get out of bed secondary to pain and is 

unable to get out of her house most days 

and, when she is able to get out, she cannot 

tolerate it more than a couple of hours with 

activity.

In short, Ms. Hare is unable to move 

about and function without her pain 

medications due to her multiple joint pains 

and muscle pain secondary to her disease.

(Tr. 254). On August 3, 2011, Dr. McKnight wrote the same 

letter again but added the following sentence at the end: 

“Because of these restrictions, she is unable to work for one 

year” (Tr. 255).

On January 9, 2012, Lucille Williams, Psy.D., examined Hare 

who complained of physical problems as well as panic attacks; 

she stated, though, that she had not had an attack since taking 

Xanax (Tr. 257-58). Plaintiff did not appear anxious, seemed 

euthymic, and was oriented in four spheres; recent and remote 

memory were good. Thought processes were grossly intact with no 

loose associations, tangential, or circumstantial thinking; 

insight, understanding, and judgment were good. Hare’s 

intelligence was estimated to be average. The Psychologist’s 

impression was Alprazolam Dependence, Panic Disorder without 

Agoraphobia Controlled by Medication, and Dysthymic Disorder.

On February 1, 2012, Dr. Kevin Varden, an Internist, noted 

good ROM in Hare’s neck; she had some right foot discomfort and 

slight decreased sensation of the toes distally (Tr. 260-63, 

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 6 of 13
7

278). However, she had normal flexion, extension, and 

dorsiflexion, and motor and sensory were intact. Plaintiff had 

mild tenderness in the right hip bursa to palpation. Gait was 

normal. Hare had decreased extension with pain in her back, but 

good ROM throughout all planes, limited to about fifteen 

degrees; there was slight tenderness to palpation in the lower 

back paravertebral area. Dr. Varden’s impression was pain 

syndrome, back pain syndrome, and probable fibromyalgia with 

osteoarthritis by history. The Doctor found no neurogenic or 

major neurological-type complications and indicated that she 

could perform “normal work-related activities, sitting some, 

standing and walking okay, carrying light objects, etc.” (Tr. 

261). A right hip x-ray was normal.

On December 5, 2011, Dr. McKnight prescribed Xanax for 

anxiety (Tr. 271). On February 17, 2012, in a pre-op visit, 

Hare was noted to be fatigued (Tr. 270). On March 20, Ultram 

and Lortab were prescribed for arthralgia (Tr. 269). 

On July 16, 2012, Dr. Daniel Stubler examined Hare for 

complaints of left arm tingling for two month; muscle spasms in 

her calves, abdomen, and neck; hand tremors; and hip weakness

(Tr. 284-86). Plaintiff was oriented in three spheres with 

recent and remote memory, attention span, concentration, 

language, and fund of knowledge grossly intact. Cranial nerve 

examination was normal. Strength testing was 5/5 throughout; 

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 7 of 13
8

Stubler did not detect any fatiguing in the proximal muscles; 

there was normal bulk and tone of muscles throughout. Deep 

tendon reflexes were 2/4 throughout. Plantar response was 

downgoing and there was about a three beat of clonus on the 

left. Gait was normal. Dr. Stubler’s impression was to rule 

out cervical myopathy and neuromuscular disorder but he could 

not entirely exclude a demyelinating disease; Hare had 

connective tissue disease. The Doctor prescribed Wellbutrin and 

ordered more tests. On August 6, Stubler tested Plaintiff for 

motor nerve conduction; finding the results abnormal, he 

concluded that Hare had mild bilateral Carpal Tunnel Syndrome 

but no evidence for a left upper extremity plexopathy, myopathy, 

C3-C8 radiculopathy or disorder of the neuromuscular junction 

(Tr. 287-91).

On June 25, 2012, fourteen months since her previous exam

with him, Hare was seen by Dr. Hubley who noted that the 

steroids had not been helpful; Plaintiff complained of left 

shoulder pain and left arm numbness (Tr. 292). The Doctor noted 

full ROM in the neck, but there was impingement pain with 

abduction and rotation in her shoulder; she had a tremor while 

trying to pick something up. Hubley prescribed Lortab and 

recommended examination by a neurologist and rheumatologist. 

This concludes the Court’s summary of the relevant evidence 

of record.

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 8 of 13
9

Hare's first claim is that the ALJ did not accord proper 

legal weight to the opinions, diagnoses and medical evidence of 

her physician, Dr. McKnight (Doc. 9, pp. 8-10). It should be 

noted that "although the opinion of an examining physician is 

generally entitled to more weight than the opinion of a nonexamining physician, the ALJ is free to reject the opinion of 

any physician when the evidence supports a contrary conclusion." 

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);12 see 

also 20 C.F.R. § 404.1527 (2014).

The ALJ summarized the medical history provided by Hare’s 

treating physician, including his letter stating that she was 

unable to work for a year, before making the following findings:

The undersigned finds that Dr. 

McKnight’s statements are inconsistent with 

the record as a whole, including physical 

and neurological examinations as set forth 

above and EMG/NCV that showed only mild 

bilateral carpal tunnel syndrome and no 

evidence for a left upper extremity 

plexopathy, myopathy, C3-C8 radiculopathy or 

disorder of the neuromuscular junction 

(Exhibits 6F, 12F and 13F). The undersigned 

further finds it significant that there is 

no evidence that the claimant has seen a 

rheumatologist for a diagnosis or treatment 

since a positive ANA test alone does not 

definitively indicate a diagnosis of 

connective tissue disease or autoimmune 

disorder. Further, Dr. McKnight’s 

statements regarding the claimant‘s 

																																																							

					 12The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 9 of 13
10

disabling pain appear to be overstated when 

compared to physical examination findings 

and her described activities of daily 

living. For these reasons, the undersigned 

finds Dr. McKnight’s opinions to be less 

than fully credible, assigns little weight 

and otherwise finds them not to be 

persuasive. Furthermore, the undersigned 

notes that whether an individual is disabled 

is an administrative finding reserved to the 

Commissioner, and thus, such opinions are 

not binding or necessarily dispositive.

(Tr. 30). 

The Court finds substantial evidence to support the ALJ’s 

conclusion. Hare points to her long-standing relationship with 

McKnight (since 2003), but the Court notes his medical records 

reveal nothing more than a series of check-off examination notes 

with prescriptions for whatever Plaintiff requested. McKnight 

never provides any ROM measurements nor makes any attempt to

describe what Plaintiff can do. The Doctor never notes any of 

Hare’s daily activities while the ALJ pointed to many activities 

in which Plaintiff testified that she engages (Tr. 24-25). The 

ALJ points to the evidence provided by Drs. Varden, Stubler, and 

Hubley as support for his conclusions. The Court concurs in his 

assessment, finding this claim meritless.13

Plaintiff has also claimed that the ALJ did not properly 

review evidence submitted to it following the ALJ’s decision 

																																																							 13The Court notes Plaintiff does not challenge the ALJ’s finding 

that her own testimony of limitation and pain was not credible (Tr. 

30, 31, 32).

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 10 of 13
11

(Doc. 9, pp. 10-11). That evidence can be found at pages 293-

309 in the transcript.

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 

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

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

The evidence from Diagnostic and Medical Clinic shows that 

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 11 of 13
12

Dr. Daren A. Scroggie examined Plaintiff on February 8, 2010 and 

March 23, 2010 after having been referred by Dr. McKnight; he 

diagnosed fibromyalgia, lumbago, and insomnia and prescribed 

Lyrica14 and Ambien15 (Tr. 293-305). 

On August 21, 2013, Dr. McKnight provided a treatment note 

as well as a physical capacities evaluation (hereinafter PCE) 

(Tr. 306-07). On that same date, Drs. Stubler (Tr. 308) and 

Hubley (Tr. 309) also provided PCE’s.

The Court finds that Dr. Scroggie’s medical notes are 

cumulative to the other evidence of record. Though Hare points 

to the fibromyalgia diagnosis (Doc. 9, p. 11), the ALJ listed it 

as one of Plaintiff’s severe impairments (Tr. 23). The Court 

further notes that Hare has provided no good reason for the 

failure of this evidence to have been submitted earlier as it 

easily pre-dates the ALJ’s decision of May 29, 2013.

The Court finds the three PCE’s submitted by McKnight, 

Stubler, and Hubler lacking in relevance as they all post-date 

the ALJ’s decision and give no indication that the projected 

abilities/inabilities of Plaintiff relate back to the relevant 

time period. The Court finds no error in the Appeals Council’s 

decision not to remand the evidence for consideration before the 

																																																							 14Lyrica is used for the management of neuropathic pain. Error!	

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

15AmbienError! Main Document Only. is a class four narcotic used 

for the short-term treatment of insomnia. Physician's Desk Reference

2799 (62nd ed. 2008).

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 12 of 13
13

ALJ.

Plaintiff has raised two claims in bringing this action. 

Both 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 25th day of August, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:15-cv-00045-M Document 16 Filed 08/27/15 Page 13 of 13