United States District Court, N.D. Georgia, Atlanta Division
ORDER AND OPINION 
J. BAVEKMAN UNTIED STATES MAGISTRATE JUDGE.
Melissa Sanders (“Plaintiff”) brought this action
pursuant to section 205(g) of the Social Security Act, 42
U.S.C. § 405(g), to obtain judicial review of the final
decision of the Commissioner of the Social Security
Administration (“the Commissioner”) denying her
application for Disability Insurance Benefits
(“DIB”) under the Social Security
For the reasons below, the undersigned
REVERSES the final decision of the
Commissioner AND REMANDS the case to the
Commissioner for further proceedings consistent with this
filed an application for DIB on February 28, 2011, alleging
disability commencing on September 16, 2010. [Record
(hereinafter “R”) 391]. Plaintiff's
applications were denied initially and on reconsideration.
[See R177-79]. Plaintiff then requested a hearing
before an Administrative Law Judge (“ALJ”).
[R213-14]. An evidentiary hearing was held on January 10,
2013. [R53-109]. The ALJ issued a decision on March 12, 2013,
denying Plaintiff's application on the ground that she
had not been under a “disability” from the
alleged onset date through the date of the decision.
[R180-96]. Plaintiff sought review by the Appeals Council,
and on May 29, 2014, the Appeals Council remanded for further
consideration. [R197-99]. The ALJ started a second hearing on
November 4, 2014, but rescheduled the matter in order to
receive all of the medical evidence. [R110-20]. A third
evidentiary hearing was held on March 17, 2015. [R121-76]. On
June 9, 2015, the ALJ issued a decision denying
Plaintiff's application on the ground that she had not
been under a “disability” from the alleged onset
date through the date of the decision. [R25-52]. Plaintiff
again sought review by the Appeals Council, and the Appeals
Council denied Plaintiff's request for review on October
27, 2016, making the ALJ's decision the final decision of
the Commissioner. [R1-8].
then filed her action in this Court on November 14, 2016,
seeking review of the Commissioner's decision. [Doc. 1].
The answer and transcript were filed on March 15, 2017.
[See Docs. 5, 6]. On April 20, 2017, Plaintiff filed
a brief in support of her petition for review of the
Commissioner's decision, [Doc. 11]; on May 22, 2017, the
Commissioner filed a response in support of the decision,
[Doc. 12]; and on June 2, 2017, Plaintiff filed a reply brief
in support of her petition for review, [Doc. 13]. The matter
is now before the Court upon the administrative record, the
parties' pleadings, and the parties' briefs,
it is accordingly ripe for review pursuant to 42 U.S.C.
forth in Plaintiff's brief, the issues to be decided are:
1. Whether the ALJ reversibly erred by failing to properly
explain why he did not fully credit the opinion of Keith
Osborn, M.D., Plaintiff's treating orthopedic surgeon, as
to her physical limitations.
2. Whether the ALJ reversibly erred by failing to consider
all of the relevant evidence of record in discounting the
credibility of Plaintiff's allegations of pain and
[Doc. 11 at 10-28].
STATEMENT OF FACTS
can read and write in English, has a twelfth-grade education,
and has worked as a process server. [R461-63]. Born on April
13, 1972, she was thirty-eight years old on the alleged onset
date and application date and was forty-one years old on
December 31, 2013, the date she was last insured. [R178,
391]. Plaintiff alleges disability due to back pain, neck
problems, nerve damage in the neck and shoulders, depression,
radiculopathy,  panic attacks, and headaches. [R61, 126,
stated that she spent her days at the house, getting
“up and down” to change ice packs and to
alleviate pain in her neck, back, and hips. [R139-40]. She
stated that she was only able to sleep two or three hours per
night. [R139]. She testified that her neck, back, and hip
pain made it difficult to sit or stand for any period of time
or to lift any weight. [R139-40, 144, 147-48]. She also
reported tingling in her left arm that had begun when she had
a spinal surgery in 2007 and had become worse since she had a
second spinal surgery in 2012. [R151-52]. She stated that she
experiences four headaches per week, each of them lasting two
to six hours. [R153-54].
terms of treatment, Plaintiff reported that she only attended
a few physical therapy treatments, explaining that they
caused her to be in more pain. [R144-45]. She had slowed the
rate of receiving trigger-point shots from her pain
specialist. [R145-46]. At the time, her medications included
hydrocodone for pain and Ambien for sleep.
[R149-50]. She reported that the intensity of her neck pain
was usually around nine or ten on a ten-point scale but that
using ice packs reduced her pain to five or four. [R157].
Plaintiff also stated that she had a TENS unit but only
sometimes used it because it would increase her pain. [R161].
daily activities, Plaintiff stated that she liked to watch
CSI on television and to watch crime movies. [R155].
Plaintiff testified that she was able to drive her H2 Hummer
four times per month, up to forty-five minutes at a time.
[R128, 137, 174]. She had no problems with self-care except
washing her hair. [R133-34]. Around the house, she could
clean the floors with a light-weight dust mop and
light-weight vacuum, load the dishwasher, wash laundry, and
walk to the mailbox. [R134-35]. Plaintiff's sister helps
her with the cleaning and dries the laundry, and
Plaintiff's daughter does almost all of the grocery
shopping. [R78-79, 134-35].
stated in a function report that she lived in a house with
her daughter and spent her days keeping ice on her neck and
rotating from sitting, to lying down, to walking in order to
avoid pain. [R477]. She reported that she was no longer able
to jog, work out, or work because of her pain, that it hurt
to wear a bra, and that she no longer styled her hair because
she could not hold her arms up. [R478]. She stated that she
was only able to use the microwave oven and that her daughter
does the cooking and helps with the laundry and housework.
[R478-79]. She reported that she could pay bills, count
change, and handle a savings account. [R480].
fell and injured her neck while she was working as a
policewoman. [R613]. After conservative measures failed, on
September 18, 2007, Dr. Osborn performed a partial
vertebrectomy, C5-6 with spinal cord and foraminal
decompression, and an anterior cervical discectomy at ¶
6-7, with removal of large free fragments from the canal and
follow-up visit with Dr. Osborn taking place on October 17,
2007, Plaintiff reported that she was off narcotic pain
medications and “doing a lot better.” [R674]. Her
x-rays showed good position of her hardware and bone grafts
at ¶ 5-6 and C6-7. [R674]. Dr. Osborn noted that
Plaintiff still had a “burning dysesthestic
pain” in her left arm that appeared to relate
to chronic compression of her left C7 root, fairly dense
numbness in the left index finger, and less dense numbness in
the middle and ring fingers of the left hand. [R674]. He also
observed that Plaintiff's strength had improved but was
not back to normal. [R674]. Dr. Osborn started Plaintiff on
Lyrica, Celebrex,  and trazodone for sleep
difficulty and left-arm pain; started her on
tizanidine for muscle spasm in her left
trapezius; and stated that she would “remain
out of work for now.” [R674].
another follow-up visit taking place on November 15, 2007,
Plaintiff reported that she had to stop taking her
medications because of swelling and that she was unable to
sleep at night. [R675]. Her main complaint was pain in the
left scapular and trapezius region and still fairly dense
numbness in the left index finger and to lesser degree in the
middle and ring fingers. [R675]. Dr. Osborn noted that
Plaintiff was improving slowly, recommended that Plaintiff
use the Lyrica and Celebrex, recommended that she continue
rehabilitation services, and opined that Plaintiff was
capable of part-time sedentary work. [R675]. He also noted
that Plaintiff had contacted her chief and that he did not
want her to return to work until she was released to full
January 16, 2008, Plaintiff returned to Dr. Osborn.
[R520-21]. She had been fired from her job. [R520]. She
complained of pain in her neck, left shoulder, and arm, and
dysesthestic pains in the left arm and hand. [R520]. She
reported that sitting for long periods caused her numbness
and tingling to get worse, that she felt some burning in her
left thumb and index finger, that her arms felt like they had
no circulation, and that wearing a bra seemed to
significantly worsen her symptoms. [R520]. Upon examination,
Dr. Osborn observed that Plaintiff had pain at the extremes
of range of motion of her neck, there was still
subluxation and muscle spasm in the trapezius area,
Plaintiff still had diminished coordination of the left arm,
reflexes were diminished in the left biceps and triceps,
there was decreased sensation in the left hand, and motor
strength was still mildly diminished in the left arm compared
to the right. [R520]. Dr. Osborn opined that Plaintiff
appeared to be healed from an orthopaedic standpoint but that
she “clearly ha[d] sustained some nerve injury from the
pressure of the disk herniation against her spinal cord and
exiting nerve roots” and it could “take some
months or years to reach a point of maximum improvement and
may or may not result in full recovery.” [R520]. Dr.
Osborn further opined, “I think she has significant
impairment in her ability to work at this point, and this
could be permanent. It is unfortunate that she has been
fired from her job. She remains capable of only sedentary
work and will benefit from pain management possibly with an
epidural steroid injection.” [R521].
August 18, 2008, Plaintiff visited Anthony C. Carantzas,
M.D., at Douglasville Resurgens Orthopaedics for follow-up of
shoulder impingement on the right. [R777]. It was noted that
she had an injection a couple of weeks earlier and that she
had noticed significant improvement. [R777]. Dr. Carantzas
stated that Plaintiff could work with limited use of the
right arm, limited overhead work, and no heavy lifting.
visited psychologist David B. Adams, Ph.D., on June 3, 2009.
[R690]. Dr. Adams noted that Plaintiff arrived in
considerable bilateral neck and shoulder pain, with numbness
of the first two fingers of her left hand, and was irritable
and periodically tearful. [R690]. It was also noted that
Plaintiff spent a lot of time with her daughter in a piece of
rental property because she was too irritable to interact
with her husband and that Plaintiff's family expressed
frustration that she was sullen and withdrawn. [R690].
Plaintiff had symptoms of depression, anxiety, sleep
disorder, irritability/impatience, and obsessive thoughts.
[R690]. Dr. Adams diagnosed pain disorder associated with
both psychological factors and Plaintiff's general
medical condition and also diagnosed major depressive
disorder with mild symptoms. [R690].
therapist Alex Ghaffari completed an assessment of Plaintiff
on December 14, 2009. [R882-86]. Mr. Ghaffari observed that
Plaintiff demonstrated significantly decreased
left-upper-extremity strength, decreased cervical-spine
flexibility, forward head posture, and increased
cervico-thoracic para-spinal muscle tightness. [R882]. She
had partial functional range of motion in the left shoulder
and was unable to perform fine and gross grasping tasks, both
at the table level and the shoulder level, utilizing the left
arm. [R882]. Mr. Ghaffari concluded that Plaintiff (1) could
perform fine and gross motor skills with her left arm only
occasionally; (2) had difficulty sitting for about thirty to
forty-five minutes but tolerated the pain; (3) had reduced
range of motion in the left shoulder; (4) had limited active
range of motion and joint mobility in the neck and upper
thoracic area; (5) had to move constantly with her head in
slight extension with decreased cervical
lordosis and rounded shoulders; (6) had decreased
coordination, endurance, and strength in the left shoulder,
neck, and thoracic spine; and (7) had high intensity pain in
the neck and upper back with flexion/extension, and rotation.
[R884-86]. Mr. Ghaffari opined that Plaintiff could do
sedentary to light work but that she “would not be able
to perform her job duty on a full time or sustained basis at
. . . present.” [R882]. The stated plan was physical
therapy twice weekly for twelve weeks, a TENS unit for pain
management at home, joint mobilization and manual therapy,
cervical traction, acupuncture and dry needling for pain and
muscle guarding, strength- and re-conditioning, and a home
exercise program. [R886].
visit with Dr. Osborn taking place on December 16, 2009,
Plaintiff continued to complain of neck and left-arm pain
with weakness and atrophy in the left arm. [R1384]. An
examination showed tenderness in the neck, reduced neck
motion, exquisite tenderness to the left of the midline,
diminished reflexes in the left biceps and triceps, some
atrophy in her arm, and decreased sensation in the C6-7
distribution, but also a normal gait and station and no neck
subluxations. [R1384]. X-rays of the cervical spine showed
solid fusion at ¶ 5-6 and C6-7 with degenerative changes
developing at ¶ 4-5 with anterior
osteophytes and uncovertebral joint
hypertrophy. [R1384]. Dr. Osborn noted that the
results represented junctional deterioration but found that
there were no symptoms to suggest that it was the primary
source of Plaintiff's pain and instead diagnosed cervical
radiculopathy and recommended a trial of acupuncture. [R713,
1384-85]. He also noted that Plaintiff was capable of
sedentary work, defined as lifting a maximum of ten pounds,
occasionally lifting and/or carrying articles such as
dockets, ledgers, and small tools, and doing a “certain
amount” of walking and standing. [R713].
of Plaintiff's cervical spine taken on December 4, 2010,
revealed (1) interspace narrowing with spondylotic
ridging and a broad-based disc bulge at ¶
4-5 causing moderate central canal and moderate bilateral
foraminal stenosis; and (2) interspace narrowing with
spondylotic ridging and a broad based disc bulge together
causing mild central canal stenosis and mild-to-moderate
bilateral foraminal stenosis at ¶ 3-4. [R1347-48].
Porter, M.D., a pain specialist, examined Plaintiff on
February 22, 2011. [R1341]. Upon examination, Dr. Porter
observed that Plaintiff's affect was depressed;
upper-extremity reflexes could not be obtained at the
triceps, biceps, or brachioradialis points bilaterally;
strength was diminished on the left in grip strength, biceps,
triceps, and deltoid testing; there was mild atrophy of the
left forearm and upper arm; sensation was diminished in the
index finger and third finger and to some degree in the
thumb; there were trigger points in the trapezius on the
left; range of motion was normal in flexion and in right
turn; left turn was limited to forty-five degrees; and
hyperextension caused Plaintiff to have numbness across her
neck and upper back. [R1341]. Dr. Porter noted that he was
concerned about a structural abnormality that might require
surgical repair, opined that Plaintiff's pain was
primarily neuropathic, and noted that ibuprofen had been
ineffective and caused stomach upset. [R1341].
August 23, 2011, Carl Sherrer, M.D., reviewed the record and
opined that Plaintiff had the ability to lift and/or carry
twenty pounds occasionally and ten pounds frequently; could
stand and/or walk for about six hours in an eight-hour
workday; could sit for about six hours in an eight-hour
workday; could occasionally climb or crawl; could frequently
balance, stoop, kneel, or crouch; could reach in all
directions occasionally with both arms; and had a limited
ability to feel, due to numbness in the index and third
fingers of her left hand. [R1233-40].
returned to Dr. Porter on September 2, 2011. [R1246-48]. She
reported that she was taking medications as prescribed and
that Xanax and hydrocodone were helping, but that
she still had neck pain, tingling all the way to the fingers
of her left hand, intermittent numbness and left-arm
weakness, and now had pain in her right arm as well as her
left. [R1246]. Dr. Porter noted that Dr. Osborn was
considering a second fusion surgery above Plaintiff's
prior fusion. [R1246]. He prescribed ibuprofen, topiramate,
nortriptyline,  fluoxetine,  and
meloxicam. [R1246]. He stated that he doubted that
repeated injection therapy or physical therapy would make a
substantive difference in Plaintiff's condition and
stated that he would refill Plaintiff's medication as he
“really ha[d] nothing else to offer her beyond
reported to Dr. Osborn on September 12, 2011, for follow up.
[R1289]. She complained of continued pain in her neck that
went into both arms, more on the left than the right, and of
numbness in her left arm. [R1289]. It was noted that
Plaintiff was prescribed Ambien, Lortab,  and Xanax
through Dr. Porter and that she had received “a lot of
relief” from massage therapy, more than from
rehabilitation, and had received some relief from
acupuncture. [R1289]. It was noted that a review of systems
was negative for neurological or musculoskeletal complaints.
[R1289]. She had some tenderness and reduced motion in the
neck, but she had normal gait, no clear motor or reflex
deficits, no overt myelopathy, and normal lower extremities.
[R1289]. The impression given was known C4-5 spondylosis with
neural compression. [R1289]. Dr. Osborn stated that although
he believed Plaintiff would need additional surgery, he would
for now continue with conservative measures of massage
therapy, a trial of acupuncture, supportive counseling
through Dr. Adams, and medication management through Dr.
December 7, 2011, Plaintiff sought help on an emergency basis
from Dr. Porter for severe right-neck pain that had persisted
for three days and was radiating to her upper back, shoulder
blade, and left arm, with a burning, numbing sensation in her
left biceps, index, and third fingers on the left. [R1432].
Her strength was decreased on the left as was her sensation
in a C6 distribution, and her cervical range of motion was
diminished in turning, flexion, and extension. [R1433]. Dr.
Porter instituted muscle relaxant therapy with tizanidine,
refilled alprazolam, and continued meloxicam and zolpidem.
[R1433]. Dr. Porter also wrote that the best he could do was
provide palliative management with trigger-point injections
and muscle-relaxant therapy and hope that Dr. Osborn had a
surgical remedy. [R1432-33].
returned to Dr. Osborn for follow up on December 12, 2011.
[R1497-98]. She complained of increasing pain in her neck
that radiated into her right arm and would go into the
shoulder and down into her hand sometimes. [R1498]. Dr.
Osborn noted that Plaintiff would like to continue to try to
avoid surgery and would work with Dr. Porter but that if her
symptoms worsened, surgery would be indicated. [R1498].
Plaintiff was also prescribed a soft cervical collar to help
control her pain. [R1498]. Dr. Osborn noted that Plaintiff
was only capable of part-time sedentary work. [R1497].
December 22, 2011, Plaintiff returned to Dr. Adams for the
first time in two and one-half years. [R1445]. It was noted
that Plaintiff was divorced; was angry, sullen, and
frustrated; was in a contentious and ongoing battle with her
ex-husband; had financial limitations; and was fearful of an
additional surgery, which she had been postponing. [R1445].
She was observed to exhibit symptoms of depression, anxiety,
sleep disorder, problems with concentration, irritability
and/or impatience, intrusive thoughts, and obsessive
thoughts. [R1445]. It was noted that Plaintiff recurrently
discontinued needed psychological care each time her
depression abated due to the care and that she shunned
dependency. [R1445]. Dr. Adams again diagnosed pain disorder
associated with both psychological factors and general
medical condition and also diagnosed major depressive
disorder (single episode, moderate). [R1445].
again returned to Dr. Adams on January 11, 2012. [R1446]. She
reported that her neck pain had worsened and that she had
researched the recommended surgical procedure and did not
wish to pursue it. [R1446]. She was observed to exhibit
symptoms of depression, anxiety, sleep disorder, irritability
and/or impatience, obsessive thoughts, compulsive behaviors,
and problems with concentration and recent memory. [R1446].
Dr. Adams again diagnosed pain disorder associated with both
psychological factors and general medical condition and major
depressive disorder (single episode, moderate). [R1446].
returned to Dr. Porter on February 7, 2012, with complaints
of left-back and neck pain with radiating left-arm pain.
[R1441]. Plaintiff reported that physical therapy was not
really helping her, that massage therapy was helpful for a
day or so, and that a TENS unit seemed to help with her pain.
[R1441]. On examination, reflexes could not be obtained on
the left at the triceps, biceps, or crachioradialis points;
strength was slightly diminished on the left in biceps and
grip testing; sensation was slightly decreased in the left C6
distribution; range of motion was decreased in turning and
extension; and examination of the back revealed left
trapezius and rhomboid trigger points. [R1442]. Dr. Porter
noted Plaintiff was stable and compliant with medication
usage; refilled her medications; discontinued physical
therapy because it was not helping; injected trigger points
in the left trapezius and rhomboid muscle; and suggested that
a facet rhizotomy might be indicated, pending results of
diagnostic facet joint injections,  and could help her move
forward without requiring additional surgical intervention.
presented to a physician's assistant at Dr. Osborn's
practice on February 9, 2012, complaining of headaches;
persistent neck and upper-back pain; left-arm pain, numbness,
and weakness; and some mid-back pain. [R1493-95]. She
reported that despite taking Ambien, Mobic, Lortab, Xanax,
and Topamax, the pain was nine on a ten-point scale. [R1493].
On examination, Plaintiff had tenderness to palpation in the
neck and shoulders and restricted flexion, extension,
rotation, and lateral bending with pain, but she also had
normal gait and alignment, full strength, normal coordination
and balance, intact reflexes, normal sensation, and full
bilateral shoulder motion without pain. [R1493-94]. It was
noted that Dr. Porter was scheduled to perform facet
injections with a possible ablation
procedure; Dr. Osborn recommended additional
fusion surgery of the cervical spine; Plaintiff wanted to
wait on the surgery until the summer when her daughter was
out of school; and Plaintiff would continue with her
medicines per Dr. Porter. [R1494]. Plaintiff's work
status was “unchanged.” [R1494].
taken on September 24, 2012, revealed multilevel degenerative
disc disease most pronounced at ¶ 4-5, with right
greater than left neural foraminal narrowing at ¶ 3-4
and left-sided neural foraminal narrowing at ¶ 4-5.
appointment taking place on October 10, 2012, Dr. Osborn
noted that Plaintiff's progressive arm numbness and
weakness and her neck pain related to cord compression with
herniated disks at ¶ 3-4 and C4-5 and opined that
Plaintiff should have another cervical fusion. [R1572].
Plaintiff agreed. [R1572]. The same day, Dr. Osborn also
opined Plaintiff could do sedentary work with restrictions,
pending approval for surgery. [R1663].
complained to Dr. Porter on November 13, 2012, of increased
neck and back pain. [R1592]. She described a deep and aching
pain in her neck, upper back, and left arm, which was
worsened with coughing, activity, and bowel movements.
[R1592]. She also reported that her arm felt weak and tingly.
[R1592]. It was noted that Plaintiff was only using
medication “on occasion” because she did not like
medication in general, that she was using her TENS unit
occasionally, and that she was using cold packs. [R1592]. Dr.
Porter stated that he had “nothing to offer the patient
today except reassurance” and that he did not think
additional trigger-point injections were warranted or would
help her. [R1593]. He recommended that Plaintiff continue her
TENS unit therapy and cold packs until she could have her
November 30, 2012, Dr. Osborn performed a C3-4, C4-5
discectomy, spinal cord decompression, and fusion. [R1699,
returned for a follow-up visit to Dr. Osborn on February 6,
2013, with complaints of persistent neck and upper-back pain
and some left-upper-arm pain. [R1698]. She noted
hypersensitivity, burning pain in the neck and upper-back
area, continued headaches, recurrent numbness and weakness in
both arms, and pain averaging eight on a ten-point scale.
[R1698]. Upon examination, it was noted that Plaintiff's
range of motion of the cervical spine was restricted with
pain; sensation and reflexes of upper extremities were
unchanged from pre-op; and Plaintiff had diffuse tenderness
and sensitivity over the neck and upper back. [R1698]. She
was also observed to have full strength in her upper
extremities, and her surgical hardware was intact. [R1698].
She was started on ...