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Whisby v. Colvin

United States District Court, M.D. Georgia, Macon Division

December 3, 2014

EMMA J. WHISBY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant



Social Security Appeal


Charles H. Weigle, United States Magistrate Judge.

This is a review of a final decision of the Commissioner of Social Security denying Plaintiff Emma J. Whisby's application for benefits. Because the ALJ made an impermissible medical determination, it is RECOMMENDED that Plaintiff's case be REMANDED to the Commissioner pursuant to " sentence four" of 42 U.S.C. § 405(g).


The sole issue presented in this social security appeal is whether the administrative law judge (" ALJ") had sufficient evidence before him to make an informed decision without ordering a consultative examination. See Ingram v. Comm'r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (" The [ALJ] has a duty to develop the record where appropriate but is not required to order a consultative examination as long as the record contains sufficient evidence for the [ALJ] to make an informed decision"). Plaintiff, who is indigent, and whose medical records consist largely of emergency-room visitation notes, argues that the ALJ should have ordered a consultative examination. (Doc. 13, pp. 9-11). The Commissioner, by contrast, argues that a consultative examination was not necessary.

Before addressing issue of whether the ALJ should have ordered a consultative examination--an issue that, as discussed below, should be resolved, narrowly, in Plaintiff's favor--this Recommendation will first summarize some of the relevant medical and administrative evidence in this case. In brief, the record shows that Plaintiff has a troubled history of substance abuse that, on several occasions, has caused or contributed to a number of physical accidents.

First, on May 23, 2003, Plaintiff claims that a male paramour " pushed [her] out of [a] car and then ran over both of [her] knees." (R. 77, 89). Plaintiff also claims that the same paramour " stabbed [her] 22 times." (R. 74, 89). Medical records dated March 18, 2007, somewhat corroborate Plaintiff's account of events: they reveal evidence of a " [g]unshot wound to the left knee approximately 15 years ago, stab wound[s] to [the] neck, back and arms [in] 2003, [and also that Plaintiff was] hit by a motor vehicle approximately 15 years ago with bilateral knee injury." (R. 295).

Second, in early September 2007, Plaintiff was hit by a car while walking down Sycamore Street in Macon, Georgia. An " Emergency Center Dictation" from the Medical Central of Central Georgia describes the event as follows:

The patient was on Sycamore [S]treet. She was walking in the street. She states she ha[d] been consuming significant amounts of alcohol and cocaine. She was with a friend and she said the next thing she knew a car came. She was hit by a car. The patient flipped up into the air. She hit the windshield of the car, broke the windshield of the car with a hole in there with some of her hair in the windshield. She ha[d] a brief loss of consciousness as witnessed by police and bystanders. Police happened to be on the scene at the time. They stated that she was pulled off the car by the bystanders and EMS were immediately called. [There] was [a] brief loss of consciousness. The patient [] regained consciousness and started refusing C spine immobilization . . . . When she arrived in the emergency department, a collar was immediately placed. The patient was examined . . . and laboratory and x-ray studies were immediately ordered along with starting 2 large IVs. There was [a] brief loss of consciousness. She states that she had a headache and some neck pain, but she denies any chest pain or abdominal pain. She does state that her shoulders are hurting especially on the right. The patient also is complaining of leg pain, femur pain and hip pain.

Finally, in August 2010, Plaintiff was involved in a multiple vehicle accident while riding in a funeral home limousine. (R. 91, 411). There is no indication that drugs or alcohol played a role in this incident.

With regard to Plaintiff's administrative history, Plaintiff filed applications for Title II and Title XVI benefits in March 2010, but those applications were denied initially in May 2010, (R. 108-09), and on reconsideration in November 2010, (R. 110-11), and Plaintiff subsequently requested a review before an ALJ. A hearing was held on February 23, 2012, at which Plaintiff's attorney argued that " the evidence [was] insufficient to properly assess [Plaintiff's] orthopedic problems, " and that a consultative examination should, therefore, have been ordered. (R. 71). Plaintiff's attorney specifically highlighted x-ray results from August 2011 that showed " advanced degenerative changes" in Plaintiff's left hip. (R. 70, 394) (Ex. 6F, p. 1). In her unfavorable opinion, though, the ALJ rejected Plaintiff's request for a consultative examination, noting that: " [Plaintiff] argued that the Consultative Report at Exhibit 4F consisted of a series of x-rays; however, I denied his request for an additional consultative examination[] because I find there was no conflict or ...

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