IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CATHERINE HAMILTON, *

*

 Plaintiff, * CIVIL ACTION NO. 15-00122-B

 *

vs. *

*

CAROLYN W. COLVIN, *

Commissioner of Social *

Security, *

 *

Defendant. *

ORDER

Plaintiff Catherine Hamilton (hereinafter “Plaintiff”)

seeks judicial review of a final decision of the Commissioner of 

Social Security denying her claim for a period of disability, 

disability insurance benefits, and supplemental security income 

under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 

401, et seq., and 1381, et seq. On June 20, 2016, the parties 

waived oral argument and consented to have the undersigned 

conduct any and all proceedings in this case. (Docs. 25, 26). 

Thus, the action was referred to the undersigned to conduct all 

proceedings and order the entry of judgment in accordance with 

28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon 

careful consideration of the administrative record and the 

memoranda of the parties, it is hereby ORDERED that the decision 

of the Commissioner be AFFIRMED.

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I. Procedural History

Plaintiff filed her applications for benefits on August 24, 

2011. (Tr. 86-91) 1 . Plaintiff alleged that she has been 

disabled since April 1, 2011, due to pancreatitis, liver 

disease, migraines, depression, possible Lupus diagnosis, and 

possible rheumatoid arthritis. (Id. at 101, 105). Plaintiff’s 

applications were denied, and upon timely request, she was 

granted an administrative hearing before Administrative Law 

Judge Ben Sheely (hereinafter “ALJ”) on February 15, 2013. (Id.

at 46, 584). Plaintiff attended the hearing with her counsel 

and provided testimony related to her claims. (Id. at 584, 

585). A vocational expert (“VE”) also appeared at the hearing 

and provided testimony. (Id. at 602). On August 8, 2013, the 

ALJ issued an unfavorable decision finding that Plaintiff is not

disabled. (Id. at 14, 27). The Appeals Council denied 

Plaintiff’s request for review on January 27, 2015. (Id. at 6). 

Therefore, the ALJ’s decision dated August 8, 2013, became the 

final decision of the Commissioner. 

Having exhausted her administrative remedies, Plaintiff 

timely filed the present civil action. (Doc. 1). The parties 

agree that this case is now ripe for judicial review and is 

 1 When referencing the Social Security Transcript, the Court uses 

the page numbers found on the transcript, rather than the page 

numbers utilized by CM-ECF. 

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properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 

1383(c)(3).

II. Issue on Appeal

1. Whether the ALJ properly evaluated 

Plaintiff’s credibility?

III. Factual Background

Plaintiff was born on January 1, 1962, and was fifty-one 

years of age at the time of her administrative hearing on 

February 15, 2013. (Tr. 101, 579). Plaintiff testified that 

she quit school in the middle of the eighth grade but

subsequently obtained her GED. (Id. at 585). Plaintiff last 

worked in 2011 as a cafeteria worker, a job which she held for 

three years. (Id. at 107-08, 590). In 2007, Plaintiff worked 

as a cashier at Walmart for about a year and a half, and she 

left that position for a job as a bank teller. She held the bank 

teller job for about six months. (Id. at 107, 590).

According to Plaintiff, she quit her job in 2011 because 

she was no longer physically able to do it. (Id. at 588). She 

testified that she has problems with forgetfulness, her back 

freezing up on her, weakness, and fatigue. (Id. at 588-89).

In 2011, while living in Texas, Plaintiff was diagnosed 

with fibromyalgia by a neurologist, Dr. Anand Mehendale, M.D.. 

He prescribed Gabapentin and exercise. (Id. at 300-01, 589). 

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Plaintiff testified that when she moved to Alabama in 2011, she 

stopped taking a lot of her medications because she could not 

afford them. (Id. at 587, 589). However, Plaintiff 

subsequently resumed taking Gabapentin for fibromyalgia, and it 

is helping. (Id. at 589). 

Plaintiff testified that she also has a history of

pancreatitis (in 2007), which has been controlled with 

medication, as well as liver problems, migraines, arthritis, and 

back pain. (Id. at 590-91, 601). Plaintiff testified that when 

the migraines get bad, she goes to the emergency room. (Id. at 

591). She takes Relpax for her migraines, which sometimes 

helps. (Id.). Plaintiff also takes a non-narcotic medication

for her back pain. (Id. at 595). Plaintiff also testified that 

she has problems with depression and feelings of worthlessness. 

(Id. at 592). She saw a psychologist at Altapointe on two 

occasions (in June and July 2012) but did not return because she 

did not have the money to see the doctor (although it was free 

to see the therapist), and she did not want to bother her mother 

to take her back. (Id. at 592-93, 599). 

According to Plaintiff, her “main” problems are migraines, 

depression, and fibromyalgia. (Id. at 591). She receives 

treatment at the Franklin Clinic about once every three months 

for these conditions. (Id. at 587-88). 

Plaintiff testified that she was in the middle of a divorce 

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when she left Texas in 2011 and that she lives with her mom in 

Alabama and has no children living with her. (Id. at 586, 600-

01). She tries to do housework and yard work, but she cannot

because her back freezes up. (Id. at 594-595). Plaintiff 

testified that she has no social activities. (Id. at 596). She 

has a valid drivers license but does not have a vehicle. (Id.

at 593). Her daily routine consists of having coffee, laying 

around, and gaining weight. (Id.).

Plaintiff reported to the Agency in a Function Report dated 

September 9, 2011, that she has no problems with personal care, 

although she gets tired (id. at 114); she does not need 

reminders for personal care, and she has a pill box to remind 

her to take her medications (id. at 115); she can prepare simple 

meals (id.); she does the dishes and laundry but needs help 

vacuuming and sweeping (id.); she does not do yard work (id. at 

116); she goes out alone and drives (id.); she shops and handles 

all of her own finances (id.); her hobbies are computer and 

Facebook (id. at 117); she has no problems getting along with 

family, friends, or others (id. at 118); she can walk 

approximately fifty feet and then has to rest for one to two 

minutes (id.); she is easily distracted (id.); she can follow 

written instructions “good,” and spoken instructions “good if

they are not long” (id.); she gets along with authority figures 

“great” (id. at 119); and she does not handle stress well but 

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handles changes in routine “ok” (id. at 119). She reported that 

she has no side effects from her medications. (Id. at 120).

IV. Analysis

A. Standard of Review 

In reviewing claims brought under the Act, this Court’s 

role is a limited one. The Court’s review is limited to 

determining 1) whether the decision of the Secretary is 

supported by substantial evidence and 2) whether the correct 

legal standards were applied. 2 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). A court may not decide the facts 

anew, reweigh the evidence, or substitute its judgment for that 

of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th 

Cir. 1986). The Commissioner’s findings of fact must be 

affirmed if they are based upon substantial evidence. Brown v. 

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. 

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding 

substantial evidence is defined as “more than a scintilla, but 

less than a preponderance” and consists of “such relevant 

evidence as a reasonable person would accept as adequate to 

support a conclusion.”). In determining whether substantial 

 2 This Court’s review of the Commissioner’s application of legal 

principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th 

Cir. 1987).

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evidence exists, a court must view the record as a whole, taking 

into account evidence favorable, as well as unfavorable, to the 

Commissioner’s decision. Chester v. Bowen, 792 F. 2d 129, 131 

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4

(S.D. Ala. June 14, 1999).

B. Discussion

An individual who applies for Social Security disability 

benefits must prove his or her disability. 20 C.F.R. §§ 

404.1512, 416.912. Disability is defined as 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 12

months.” 42 U.S.C. §§ 423(d)(1)(A); see also 20 C.F.R. §§ 

404.1505(a), 416.905(a). The Social Security regulations 

provide a five-step sequential evaluation process for 

determining if a claimant has proven his disability.3 20 C.F.R. 

 3 The claimant must first prove that he or she has not engaged in 

substantial gainful activity. The second step requires the 

claimant to prove that he or she has a severe impairment or 

combination of impairments. If, at the third step, the claimant 

proves that the impairment or combination of impairments meets 

or equals a listed impairment, then the claimant is 

automatically found disabled regardless of age, education, or 

work experience. If the claimant cannot prevail at the third 

step, he or she must proceed to the fourth step where the 

claimant must prove an inability to perform their past relevant 

work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In 

evaluating whether the claimant has met this burden, the 

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§§ 404.1520, 416.920. 

In the case sub judice, the ALJ determined that Plaintiff 

has not engaged in substantial gainful activity since April 1, 

2011, the alleged onset date, and that she has the severe 

impairments of fibromyalgia, history of pancreatitis, migraine 

headaches, depression, and personality disorder.4 (Tr. 16). The 

ALJ further found that Plaintiff does not have an impairment or 

combination of impairments that meets or medically equals any of 

the listed impairments contained in 20 C.F.R. Part 404, Subpart 

P, Appendix 1. (Id. at 18).

The ALJ concluded that Plaintiff retains the residual 

functional capacity (hereinafter “RFC”) to perform a range of 

light work, except that Plaintiff “can lift and carry 20 pounds 

 

examiner must consider the following four factors: (1) objective 

medical facts and clinical findings; (2) diagnoses of examining 

physicians; (3) evidence of pain; and (4) the claimant’s age, 

education and work history. Id. Once a claimant meets this 

burden, it becomes the Commissioner’s burden to prove at the 

fifth step that the claimant is capable of engaging in another 

kind of substantial gainful employment which exists in 

significant numbers in the national economy, given the 

claimant’s residual functional capacity, age, education, and 

work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 

1985). If the Commissioner can demonstrate that there are such 

jobs the claimant can perform, the claimant must prove inability 

to perform those jobs in order to be found disabled. Jones v. 

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. 

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. 

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

4 The ALJ found Plaintiff’s arthritis and back pain to be nonsevere, noting that results of diagnostic testing revealed 

largely normal or minimal objective findings. (Tr. 17-19). 

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occasionally, 10 pounds frequently. [She] can stand and walk 

for 6 hours in an 8-hour workday and sit for 6 hours in an 8-

hour workday with normal breaks. [She] can occasionally climb 

ramps and stairs. [She] cannot climb ladders, ropes, or 

scaffolds. [She] can occasionally balance, stoop, kneel, 

crouch, and crawl. [She] cannot tolerate concentrated exposure 

to workplace hazards such as unprotected heights or unprotected 

machinery. [She] can perform simple, routine, repetitive tasks 

involving only simple work related decisions with few work place 

changes. [She] can tolerate occasional interaction with the 

public and coworkers.” (Id. at 19-20).

The ALJ also determined that while Plaintiff’s medically 

determinable impairments could reasonably be expected to produce 

the alleged symptoms, her statements concerning the intensity, 

persistence and limiting effects of the alleged symptoms were

not entirely credible for the reasons explained in the decision. 

(Id. at 20). 

The ALJ found that Plaintiff is unable to perform any past 

relevant work. (Id. at 25). However, utilizing the testimony 

of a VE, the ALJ concluded that considering Plaintiff’s residual 

functional capacity for a range of light work, as well as her

age, education and work experience, there are jobs existing in 

the national economy that Plaintiff is able to perform, such as 

“router,” “assembler,” and “silver wrapper,” all of which are 

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classified as light and unskilled. (Id. at 26). Thus, the ALJ 

concluded that Plaintiff is not disabled. (Id.).

The Court now considers the foregoing in light of the 

record in this case and the issues on appeal. 

1. Issue

A. Whether the ALJ properly evaluated 

Plaintiff’s credibility?

In this case, Plaintiff argues that the ALJ erred in 

finding her statements about the intensity, persistence, and 

limiting effects of her symptoms not entirely credible. (Doc. 

18 at 2). According to Plaintiff, she is disabled because of 

migraines, fibromyalgia, depression, personality disorder, and 

ankylosing spondylitis 5 (spinal arthritis). (Id. at 4). The 

 5

Plaintiff alleges disability from ankylosing spondylitis for the 

first time in her brief on appeal. She has attached four pages 

of medical records from Franklin Primary Health Center, one of 

which references ankylosing spondylitis, for consideration on 

appeal. (Doc. 18 at 6-9). The Court notes that the sixth 

sentence of 42 U.S.C. § 405(g) permits a district court to 

remand an application for benefits to the Commissioner for 

consideration of new evidence that previously was unavailable. 

Enix v. Commissioner of Soc. Sec., 461 Fed. Appx. 861, 863 (11th 

Cir. 2012) (citing 42 U.S.C. § 405(g)). “‘[A] sentence six 

remand is available when evidence not presented to the 

Commissioner at any stage of the administrative process requires 

further review.’” Id. (quoting Ingram v. Commissioner of Soc. 

Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007)). “To show 

that a sentence six remand is needed, 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.” 

Id. (quoting Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.1986) 

Case 1:15-cv-00122-B Document 29 Filed 09/28/16 Page 10 of 27
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(internal quotation marks omitted)). “The new evidence must 

relate to the period on or before the date of the administrative 

law judge’s (“ALJ”) decision.” Id. (citing Wilson v. Apfel, 179 

F.3d 1276, 1279 (11th Cir. 1999) and 20 C.F.R. §§ 404.970(b), 

416.1470(b), requiring Appeals Council to consider new evidence 

“only where it relates to the period on or before the date of 

the administrative law judge hearing decision”). “Evidence of 

deterioration of a previously-considered condition may 

subsequently entitle a claimant to benefit from a new 

application, but it is not probative of whether a person is 

disabled during the specific period under review.” Id. (citing 

Wilson, 179 F.3d at 1279). “In contrast, evidence of a 

condition that existed prior to the ALJ’s hearing, but was not 

discovered until afterward, is new and non-cumulative.” Id.

(citing Vega v. Commissioner of Soc. Sec., 265 F.3d 1214, 1218–

19 (11th Cir. 2001) (concluding that remand was warranted based 

on evidence that after the ALJ hearing, a doctor discovered and 

surgically corrected a herniated disk, which was material to the 

issue of the severity of claimant’s spinal problems during the 

relevant time period); Hyde v. Bowen, 823 F.2d 456, 459 & n.4 

(11th Cir. 1987) (concluding that remand was warranted based on 

new evidence that claimant’s prosthetic device was loose, which, 

“if accepted” provides “an objective medical explanation” for 

claimant’s previously unexplained complaints of pain in his hip 

and leg). 

In the present case, some of the additional evidence 

proffered by Plaintiff relates to her treatment for cervical and 

lumbar pain at Franklin Primary Health Center on November 12, 

2014, after the ALJ issued his decision on August 8, 2013; thus, 

it is new evidence that was not previously presented to the ALJ. 

However, the treatment notes dated November 12, 2014, reflect 

only a suggestion by her physician that she “may” have 

ankylosing spondylitis, which could explain the severe pain that 

she is experiencing in her neck. In her proceedings before the 

ALJ, Plaintiff complained of back pain, which the ALJ found to 

be non-severe, but she did not allege problems with her neck. 

Therefore, this new evidence represents a different, additional 

claim and does not provide insight into whether Plaintiff was 

disabled from a medical condition at issue during the specific 

period under review. Moreover, because of the speculative 

nature of the evidence, even if the Court were to assume that it 

related to a medical condition raised during the period under 

review, such as Plaintiff’s complaints of low back pain, 

Plaintiff has not established a reasonable possibility that 

consideration of the new evidence would change the 

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Commissioner counters that the ALJ properly evaluated 

Plaintiff’s credibility and that Plaintiff’s claims about the 

disabling effects of her physical and mental conditions are 

inconsistent with the medical evidence in the case, including 

the conservative nature of her medical treatment, the findings 

and opinions of her treating and examining physicians, the 

results of her diagnostic tests, and her activities of daily 

living. (Doc. 23 at 1, 5). Having carefully reviewed the 

record in this case, the Court finds that Plaintiff’s claim is 

without merit.

When evaluating a claim based on disabling subjective 

symptoms, the ALJ considers medical findings, a claimant’s 

statements, statements by the treating physician or other 

persons, and evidence of how the pain (or other subjective 

symptoms) affects the claimant’s daily activities and ability to 

work. 20 C.F.R. § 416.929(a). In a case where a claimant 

attempts to establish disability through his or her own 

testimony concerning pain or other subjective symptoms, a threepart standard applies. That standard requires: “(1) evidence of 

an underlying medical condition and either (2) objective medical 

 

administrative outcome. Also, Plaintiff has attached a 

treatment note from Franklin Primary Health Center dated March 

7, 2013, related to treatment for fibromyalgia and rheumatoid 

arthritis. (Doc. 18 at 9). This document is in the record and 

is not new evidence. (Tr. 574). For each of these reasons, 

Plaintiff’s argument regarding new evidence is unavailing. 

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evidence that confirms the severity of the alleged pain [or 

other subjective symptoms] 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 [or other subjective symptoms].” Hubbard v. 

Commissioner of Soc. Sec., 348 Fed. Appx. 551, 554 (11th Cir. 

2009) (unpublished) (quoting Holt v. Sullivan, 921 F.2d 1221, 

1223 (11th Cir. 1991)). The Social Security regulations further 

provide:

[S]tatements 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) (2013). 

“A claimant’s subjective testimony supported by medical 

evidence that satisfies the pain standard is itself sufficient 

to support a finding of disability.” Foote v. Chater, 67 F.3d 

1553, 1561 (11th Cir. 1995). Stated differently, “if a claimant 

testifies to disabling pain [or other subjective symptoms] and 

satisfies the three part pain standard, he must be found 

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disabled unless that testimony is properly discredited.” 

Reliford v. Barnhart, 444 F. Supp. 2d 1182, 1186 (N.D. Ala. 

2006). Therefore, once the determination has been made that a 

claimant has satisfied the three-part standard, the ALJ must 

then turn to the question of the credibility of the claimant’s 

subjective complaints. See id., 444 F. Supp. 2d at 1189 n.1 

(the three-part standard “is designed to be a threshold 

determination made prior to considering the plaintiff’s 

credibility.”). If a claimant does not meet the standard, no 

credibility determination is required. Id. 

In assessing a claimant’s credibility, the ALJ must 

consider all of the claimant’s statements about his symptoms and 

determine the extent to which the symptoms can reasonably be 

accepted as consistent with the objective medical evidence. See

20 C.F.R. § 404.1528. Such credibility determinations are 

within the province of the ALJ. Moore v. Barnhart, 405 F.3d 

1208, 1212 (11th Cir. 2005). However, if an ALJ decides not to 

credit a claimant’s testimony about his or her subjective 

symptoms, “the ALJ must articulate explicit and adequate reasons 

for doing so or the record must be obvious as to the credibility 

finding.” Strickland v. Commissioner of Soc. Sec., 516 Fed. 

Appx. 829, 832 (11th Cir. 2013) (unpublished) (citing Foote, 67 

F.3d at 1562); see also Tieniber v. Heckler, 720 F.2d 1251, 1255 

(11th Cir. 1983) (although no explicit finding as to credibility 

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is required, the implication must be obvious to the reviewing 

court). Failure to articulate the reasons for discrediting 

testimony related to pain or other subjective symptoms requires, 

as a matter of law, that the testimony be accepted as true. 

Holt, 921 F.2d at 1223. 

The Eleventh Circuit has held that the determination of 

whether objective medical impairments could reasonably be 

expected to produce the pain or other subjective symptoms is 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. 1985), vacated on other grounds 

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

1986). A reviewing court will not disturb a clearly articulated 

credibility finding with substantial supporting evidence in the 

record. See Nye v. Commissioner of Social Sec., 524 Fed. Appx.

538, 543 (11th Cir. 2013) (unpublished). 

In this case, the ALJ found that Plaintiff’s testimony 

regarding the intensity, persistence, and limiting effects of 

her symptoms was “not entirely credible” based on the 

inconsistency between her testimony and the other record 

evidence. 6 (Id. at 20-25). The record confirms the ALJ’s 

 6 As the ALJ noted, Plaintiff claims that she is disabled due to 

pancreatitis, liver disease, migraines, depression, personality 

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findings that Plaintiff has had only sporadic medical treatment 

in the past few years and that all of her symptoms (including

pain) have been treated with medication only; that her 

diagnostic work ups have not shown any significant physical 

problems; that there has been no evidence that she has ever been 

referred to or sought treatment from a specialist for her 

physical impairments since moving to Alabama in October 2011, 

such as a gastroenterologist, neurologist, or rheumatologist; 

and that none of her treating physicians has opined that she is 

unable to work or disabled due to a physical or mental 

condition. 

Specifically, the record shows that Plaintiff was diagnosed 

with pancreatitis in 2007 after complaining of abdominal pain 

and that her gall bladder was successfully removed, resulting in 

a resolution of symptoms. (Id. at 321-22). A CT scan conducted 

in May 2011 showed a “normal” pancreas. (Id. at 194). Since 

2007, Plaintiff’s gastrointestinal workups have been essentially 

normal, with the exception of moderate steatosis of the liver 

 

disorder, possible lupus, possible rheumatoid arthritis, and 

fibromyalgia, and, because of these impairments, she is always 

in pain in her stomach, legs, hands, back, and feet, and is 

tired all the time. (Tr. 20, 105, 584, 588). In addition, 

Plaintiff claims to have fallen multiple times and that her 

memory has gotten worse, that she cannot concentrate or focus on 

anything, that she is in pain every day, that her depression has 

deepened, and that she has migraines at least fourteen days a 

month but often times more. (Id. at 20, 141; Doc. 18).

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(the infiltration of fat into the liver) and elevated liver 

function tests. (Id. at 175, 194, 292-93). A CT scan conducted 

in May 2011 showed that the enlargement of Plaintiff’s liver was

“stable.” (Id. at 194). Likewise, an echogram conducted in

March 2011 showed that her liver was “echogenic consistent with 

fatty infiltration” but that there was “no acute abnormality.” 

(Id. at 230). In April 2011, an EGD revealed only “mild” 

chronic, nonerosive gastritis and otherwise normal esophagus, 

stomach, and small intestine. (Id. at 223, 225). In January 

2012, Plaintiff’s treatment provider at Franklin Primary Health 

Center diagnosed her with GERD and prescribed Nexium. (Id. at 

467). Plaintiff’s gastrointestinal symptoms appear to have been 

successfully managed with medication, and she has not sought 

treatment from nor been referred to a gastroenterologist since 

moving to Alabama in 2011. 

With respect to Plaintiff’s migraines, her treatment 

records show that she has had two MRIs of her brain (one in 2009 

and a second in 2011), neither of which showed any significant 

abnormalities. (Id. at 153, 289). A CT scan of her brain taken 

in August 2010 was also normal. (Id. at 275). Prior to moving 

to Alabama in 2011, Plaintiff was treated by a neurologist in 

Texas, Dr. Anand Mehendale, M.D., for “headache,” for which he 

prescribed Propranolol. (Id. at 457). Since moving to Alabama 

in October 2011, Plaintiff has received treatment for her 

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migraines at Franklin Primary Health Center, where she has been

prescribed Propranolol and Relpax. (Id. at 483, 506, 508). 

Plaintiff reported that both medications have helped. (Id. at 

508, 591). On July 2, 2012, Plaintiff presented to the 

emergency room at South Baldwin Regional Medical Center 

complaining of a headache and was treated with Toradol and sent 

home. (Id. at 469-70). This is the only record evidence of

Plaintiff seeking emergency room treatment for any ailment since

moving to Alabama in October 2011. (Id. at 469). Other than 

treatment by a primary care physician with medication, there is 

no evidence that Plaintiff has received any other treatment or 

been referred to a neurologist or any other specialist for her 

migraines since moving to Alabama. 

With respect to Plaintiff’s complaints of low back pain, 

which the ALJ found to be non-severe (id. at 17-19), the record 

shows that Plaintiff presented to the emergency room at Peterson 

Regional Medical Center in Texas in April 2011, complaining of 

hip and lower back pain, and her examining physician found 

nothing to explain her complaints of pain and noted that he 

“observed [her] walking with minimal difficulty.” (Id. at 213-

14). X-rays of Plaintiff’s hip and pelvis at that time were 

normal. (Id. at 220). Likewise, an MRI of Plaintiff’s lumbar 

spine taken in April 2011 showed no significant disc disease or 

central canal or foraminal encroachment at any level, and an MRI 

Case 1:15-cv-00122-B Document 29 Filed 09/28/16 Page 18 of 27
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of Plaintiff’s thoracic spine showed “very minimal” small disc 

bulges with no significant central canal or foraminal 

encroachment at any level, with normal cord signal throughout. 

(Id. at 201-02). Since that time, Plaintiff’s medical records 

show intermittent complaints of back pain for which she has been 

treated conservatively with pain medication. (Id. at 205, 214).

With respect to Plaintiff’s fibromyalgia, the ALJ noted 

that Plaintiff was treated in Texas by a neurologist, Dr. 

Mehendale, from August 2011 to October 2011. Dr. Mehendale 

found that Plaintiff met the criteria for fibromyalgia based on 

her complaints, and he prescribed Cymbalta, Gabapentin, and 

Ultram and instructed her to exercise. 7 (Id. at 300-01, 457). 

There is no evidence that Plaintiff sought follow up treatment 

with Dr. Mehendale or with another neurologist after moving to 

Alabama in October 2011. From January 2012 to March 2013, 

Plaintiff received treatment for fibromyalgia at Franklin 

Primary Health Center, where she was prescribed medication. 

(Id. at 464-65, 483-510). At no time since moving to Alabama in 

October 2011 have Plaintiff’s treatment providers referred her 

 7 Dr. Mehendale ruled out lumbar and cervical radiculopathy, 

polyneuropathy, and lupus. (Tr. 457). Also, on September 28, 

2011, Dr. Mehendale completed a “Treating Physical Mental 

Function Assessment Questionnaire” stating that he was not 

treating Plaintiff for a mental condition and that he had not 

recommended treatment for a mental condition. (Id. at 306). 

Case 1:15-cv-00122-B Document 29 Filed 09/28/16 Page 19 of 27
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to a neurologist or any other specialist for treatment of her 

fibromyalgia.8 (Id.). 

With respect to Plaintiff’s depression, the record shows 

that she has received treatment from her primary care physicians 

with psychotropic medications, primarily Cymbalta, and that the 

treatment has been largely effective and well tolerated. (Id.

at 120, 382, 390, 392, 400, 483, 500, 506, 508, 599). With the 

exception of two visits to Altapointe in June and July of 2012, 

when Plaintiff presented for an intake assessment and never 

returned, she has not sought treatment for her depression from a 

mental health specialist. (Id. at 471-77). During her brief 

assessment at Altapointe, Plaintiff reported that she and her 

husband had separated and that she was depressed. (Id. at 472, 

477). Her assessment notes reflect that she was experiencing

episodes of crying, that her memory and concentration were 

impaired, that her insight and judgment were fair, and that her 

ability to care for herself was “good.” (Id. at 472, 474). She 

 8 State Agency neurologist, Dr. Elizabeth Minto, M.D., reviewed 

Plaintiff’s records on November 22, 2011, and completed a 

Physical RFC assessment, finding that Plaintiff can occasionally 

lift or carry 20 pounds, can frequently lift or carry 10 pounds, 

can stand and/or walk for a total of 6 hours in an 8-hour 

workday, can sit for a total of 6 hours in an 8-hour workday, 

and is unlimited in her ability to push or pull. (Tr. 36). In 

addition, Dr. Minto found that Plaintiff can frequently climb 

(ramps, stairs, ladders, ropes, scaffolds), balance, stoop, 

kneel, crouch, and crawl, and she is unlimited in her ability to 

reach, finger, and feel but can only “handle” with her right 

hand frequently and left hand only occasionally. (Id. at 36).

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was diagnosed with depressive disorder, adjustment disorder with 

anxiety and depressed mood, and personality disorder. (Id. at 

471). She was not prescribed any medication, and she never 

returned.9

On December 12, 2011, Plaintiff was examined at the request 

of the Agency by consultative psychologist Dr. Jennifer Jackson, 

Psy. D. (Id. at 309). Dr. Jackson diagnosed Plaintiff with 

“dysthymia” (persistent mild depression) and opined that a 

favorable response to treatment could be expected within six to 

twelve months. (Id. at 311). Dr. Jackson did not identify any 

functional limitations and found no evidence of a personality 

disorder.10 (Id.). 

 9 As the ALJ found (id. at 24), Plaintiff has not participated in 

mental health counseling; she has not required emergency room 

treatment for her mental impairments; she has not required 

inpatient psychiatric treatment; and none of her treating 

providers has ever identified any functional limitations related 

to her mental impairments. 

10 Dr. Jackson’s mental status exam revealed that Plaintiff was 

appropriately dressed and groomed, that she displayed no obvious 

difficulties with fine or gross motor skills, that her speech 

was easily understood, that she was generally pleasant and 

cooperative, that no unusual behaviors were observed, that she 

appeared “very depressed,” that her affect was tearful, but that 

she was not anxious. (Tr. 310). Plaintiff was oriented to 

time, place, and person; her concentration and attention were 

normal; her memory (immediate, recent, and remote) was normal; 

her fund of information was normal; her abstract thinking, 

thought process, and thought content were normal (except that 

she reported having thought about suicide without imminent plans 

to harm herself); and her judgment and insight were limited. 

(Id. at 311). Plaintiff reported that she was capable of 

completing all personal activities of daily living

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In addition, the evidence of Plaintiff’s activities of 

daily living shows that she has no problems with personal care 

(id. at 114); she cooks, washes dishes, does laundry, makes

beds, cleans bathrooms (id. at 115-16, 312); drives and goes out 

alone (id. at 116, 312); handles all of her own finances (id. at 

116, 312); spends time on the computer (id. at 117); gets along 

well with family, friends, and others and “love[s] being around 

people” (id. at 118, 312); has no problems interacting with or 

getting along with others (id. at 312); follows instructions 

well (id. at 118); gets along “great” with authority figures 

(id. at 119); and handles changes in routine “ok.” (Id. at 

119). 

“When evaluating a claimant’s credibility, an ALJ . . . may 

consider any inconsistencies between a claimant’s alleged 

limitations and his [or her] daily activities.” Lambeth v. 

Astrue, 2011 U.S. Dist. LEXIS 75150, *27, 2011 WL 2784560, *9 

(S.D. Ala. July 12, 2011) (citing Macia v. Bowen, 829 F.2d 1009, 

1012 (11th Cir. 1987)). As in Lambeth, Plaintiff’s varied daily 

 

independently, that she could wash dishes, sweep, mop, vacuum, 

make a bed, clean a bathroom, cook, do laundry, and drive, and 

that she could handle money, shop independently, and stay at 

home unsupervised. (Id. at 312). Plaintiff reported having 

trouble concentrating, being slow when doing things, and not 

finishing what she starts. (Id. at 312). Plaintiff also 

reported that she is not afraid of people, that she “love[s] 

being around people,” and that she has no problems interacting 

with or getting along with others. (Id. at 312). 

Case 1:15-cv-00122-B Document 29 Filed 09/28/16 Page 22 of 27
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activities in this case are inconsistent with her claim that her 

medical impairments (in this case fibromyalgia, history of 

pancreatitis, arthritis, migraine headaches, depression, and 

personality disorder), render her completely unable to work. 

Thus, the ALJ’s reasons for finding Plaintiff’s allegations 

regarding the severity of her symptoms to be less than fully 

credible are supported by the record.11

The ALJ specifically addressed Plaintiff’s allegations of 

pain and other subjective symptoms in his decision, and he 

provided explicit and reasonable reasons for partially rejecting 

her testimony. See 20 C.F.R. § 404.1529(c)(2)-(4); (Tr. 20-25). 

As the foregoing demonstrates, the substantial evidence in this 

case supports the ALJ’s decision to discount Plaintiff’s 

complaints of pain and other subjective symptoms, and it 

supports the ALJ’s finding that Plaintiff can perform a range of 

light work with the stated restrictions. Therefore, Plaintiff’s 

claim is without merit. 

 11 The Court rejects Plaintiff’s argument that the ALJ was biased 

against her because she is a smoker. While the ALJ referenced 

Plaintiff’s smoking habit (id. at 23), he did so in the context 

of her claim that she could not afford medications or medical 

treatment, finding that claim less than credible given the fact 

that she chose instead to fund a smoking habit. See Smith v. 

Colvin, 2016 U.S. Dist. LEXIS 29991, *16-17, 2016 WL 892776, *6 

(N.D. Ala. Mar. 9, 2016) (“The ALJ did consider [plaintiff’s] 

claim that she could no longer afford treatment because she had 

no health insurance in 2011, but the ALJ also considered that 

she was able to finance her smoking habit of half a pack a day,” 

which “undermined her credibility.”). 

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Finally, the undersigned notes that Plaintiff alleges 

disability from ankylosing spondylitis for the first time in her 

brief on appeal. She has attached four pages of medical records 

from Franklin Primary Health Center, one of which references 

ankylosing spondylitis, for consideration on appeal. (Doc. 18 

at 6-9). 

The Court notes that the sixth sentence of 42 U.S.C. § 

405(g) permits a district court to remand an application for 

benefits to the Commissioner for consideration of new evidence 

that previously was unavailable. Enix v. Commissioner of Soc. 

Sec., 461 Fed. Appx. 861, 863 (11th Cir. 2012) (citing 42 U.S.C. 

§ 405(g)). “‘[A] sentence six remand is available when evidence 

not presented to the Commissioner at any stage of the 

administrative process requires further review.’” Id. (quoting 

Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1267 

(11th Cir. 2007)). “To show that a sentence six remand is 

needed, 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.” Id. (quoting Caulder v. Bowen, 791 F.2d 

872, 877 (11th Cir.1986) (internal quotation marks omitted)). 

Case 1:15-cv-00122-B Document 29 Filed 09/28/16 Page 24 of 27
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“The new evidence must relate to the period on or before 

the date of the administrative law judge’s (“ALJ”) decision.” 

Id. (citing Wilson v. Apfel, 179 F.3d 1276, 1279 (11th Cir. 

1999) and 20 C.F.R. §§ 404.970(b), 416.1470(b), requiring 

Appeals Council to consider new evidence “only where it relates 

to the period on or before the date of the administrative law 

judge hearing decision”). “Evidence of deterioration of a 

previously-considered condition may subsequently entitle a 

claimant to benefit from a new application, but it is not 

probative of whether a person is disabled during the specific 

period under review.” Id. (citing Wilson, 179 F.3d at 1279). 

“In contrast, evidence of a condition that existed prior to the 

ALJ’s hearing, but was not discovered until afterward, is new 

and non-cumulative.” Id. (citing Vega v. Commissioner of Soc. 

Sec., 265 F.3d 1214, 1218–19 (11th Cir. 2001) (concluding that 

remand was warranted based on evidence that after the ALJ 

hearing, a doctor discovered and surgically corrected a 

herniated disk, which was material to the issue of the severity 

of claimant’s spinal problems during the relevant time period); 

Hyde v. Bowen, 823 F.2d 456, 459 & n.4 (11th Cir. 1987) 

(concluding that remand was warranted based on new evidence that 

claimant’s prosthetic device was loose, which, “if accepted” 

provides “an objective medical explanation” for claimant’s 

previously unexplained complaints of pain in his hip and leg)). 

Case 1:15-cv-00122-B Document 29 Filed 09/28/16 Page 25 of 27
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In the present case, some of the additional evidence 

proffered by Plaintiff relates to her treatment for cervical and 

lumbar pain at Franklin Primary Health Center on November 12, 

2014, which is after the ALJ issued his decision on August 8, 

2013. Thus, it is new evidence that did not exist and was not 

previously presented to the ALJ. However, the treatment notes 

dated November 12, 2014 reflect only a suggestion by her 

physician that she “may” have ankylosing spondylitis, which 

could explain the severe pain that she is experiencing in her 

neck. In her proceedings before the ALJ, Plaintiff complained 

of back pain, which the ALJ found to be non-severe, but she did 

not allege problems with her neck. Therefore, this new evidence 

represents a different, additional claim and does not provide 

insight into whether Plaintiff was disabled from a medical 

condition at issue during the specific period under review. 

Moreover, because of the speculative nature of the evidence, 

even if the Court were to assume that it related to a medical 

condition raised during the period under review, such as 

Plaintiff’s complaints of low back pain, Plaintiff has not 

established a reasonable possibility that consideration of the 

new evidence would change the administrative outcome. 

Also, Plaintiff has attached a treatment note from Franklin 

Primary Health Center dated March 7, 2013, related to treatment 

for fibromyalgia and rheumatoid arthritis. (Doc. 18 at 9). 

Case 1:15-cv-00122-B Document 29 Filed 09/28/16 Page 26 of 27
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This document is in the record and is not new evidence. (Tr. 

574). For each of these reasons, Plaintiff’s argument regarding 

new evidence is unavailing.

V. Conclusion 

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby ORDERED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for a 

period of disability, disability insurance benefits, and 

supplemental security income be AFFIRMED.

DONE this 28th day of September, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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