Bowden v. Colvin

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 2/29/2016. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
RODNEY WAYNE BOWDEN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:15cv118-TFM
(WO)

MEMORANDUM OPINION
I. Introduction
Plaintiff Rodney Wayne Bowden (“Bowden”) applied for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he is
unable to work because of a disability.

His application was denied at the initial

administrative level. The plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ concluded that the
plaintiff was not under a “disability” as defined in the Social Security Act. The ALJ,
therefore, denied the plaintiff’s claim for benefits. The Appeals Council rejected a
subsequent request for review. Consequently, the ALJ’s decision became the final decision
of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). Pursuant to 28 U.S.C. § 636(c), the parties have consented to

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.

entry of final judgment by the United States Magistrate Judge. The case is now before the
court for review pursuant to 42 U.S.C. §§ 405 (g) and 1631(c)(3). Based on the court's
review of the record in this case and the parties’ briefs, the court concludes that the
Commissioner’s decision should be affirmed.

II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable 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 . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person's impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.

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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of
the record which supports the decision of the ALJ but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied in
evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

III. The Issues
A. Introduction. Bowden was 58 years old at the time of the hearing. R. 37. He
has prior work experience as a dispatcher for a trucking company and a window installer.
R. 39, 49. Bowden alleges that he became disabled on September 6, 2011. R. 35. After the

3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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hearing, the ALJ found that Bowden suffers from severe impairments of cerebrovascular
accident with right sided weakness, hypertension, and history of Bell’s palsy. R. 21. The
ALJ found that Bowden has the residual functional capacity to perform light work with
limitations. Specifically, the ALJ found:
The claimant can lift/carry 20 pounds occasionally and 10 pounds
frequently. The claimant can stand/walk for 30 minutes at a time on even
terrain for up to 6 hours a day, with unrestricted sitting. The claimant can [do]
no more than occasionally operate foot controls with the right leg, and no
climbing ladders, scaffolds, or ropes, or work around unprotected heights or
dangerous equipment. The claimant cannot work in direct sun or temperature
extremes. The claimant must avoid work requiring near acuity more than
frequently.
R. 23. Relying in part on testimony from a vocational expert, the ALJ concluded that
Bowden is capable of performing his past relevant work as a dispatcher.

R. 28.

Accordingly, the ALJ concluded that Bowden is not disabled. Id.

B. The Plaintiff’s Claims. Bowden presents the following issues for review:

(1)

The Commissioner’s decision should be reversed because the
ALJ erred as a matter of law in failing to properly evaluate and
consider the medical opinion evidence in this case.

(2)

The Commissioner’s decision should be reversed because the
ALJ failed to properly evaluate and analyze all of the nonexertional limitations supported by the medical record before
formulating her RFC assessment.
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Doc. No. 12, p. 7.

IV. Discussion
A. Rejection of Treating Physician’s Opinion. Bowden argues that the ALJ
improperly discounted her treating physician’s opinion about the severity of his limitations.
In essence, the plaintiff argues that if the ALJ accepted Dr. Jonathan Stanfield’s assessment
about the severe extent of his limitations, he would be disabled.
In June 2012, the family practitioner completed a Physical Capacities Evaluation and
a Clinical Assessment of Pain form. R. 217-218. According to Dr. Stanfield, Bowden can
never lift more than 20 pounds occasionally to 10 pounds frequently and can rarely lift 10
pounds occasionally to 5 pounds frequently. He also found Bowden requires the use of an
assistive device to ambulate, is able to sit no more than three hours during an eight-hour
work day and stand or walk no more than one hour in an eight-hour work day. In addition,
Dr. Stanfield found that Bowden can never push or pull arm and/or leg controls, climb and
balance, bend and/or stoop, or work around hazardous machinery and that he can rarely
engage in gross or fine manipulation, reach overhead, or operate a motor vehicle. Dr.
Stanfield concluded that Bowden would miss more than four days per month of work as the
result of his impairments due to “right sided and right arm, hand [and] leg numb[ness] [and]
weak[ness].” R. 217. He also found that Bowden’s pain “is present to such an extent as to
be distracting to adequate performance of daily activities of work,” that physical activity
“increase[s] . . . pain to such an extent that bed rest and/or medication is necessary,” and that
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“drug side effects can be expected to be severe and to limit effectiveness due to distraction,
inattention, drowsiness, etc.” R. 218.
The law is well-settled; the opinion of a claimant’s treating physician must be
accorded substantial weight unless good cause exists for not doing so. Jones v. Bowen, 810
F.2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985).
The Commissioner, as reflected in his regulations, also demonstrates a similar preference for
the opinion of treating physicians.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations,
such as consultive examinations or brief hospitalizations.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)).
The ALJ’s failure to give considerable weight to the treating physician’s opinion is reversible
error. Broughton, 776 F.2d at 961-2; Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
However, there are limited circumstances when the ALJ can disregard the treating
physician’s opinion. The requisite “good cause” for discounting a treating physician’s
opinion may exist where the opinion is not supported by the evidence, or where the evidence
supports a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987).
Good cause may also exist where a doctor’s opinions are merely conclusory; inconsistent
with the doctor’s medical records; or unsupported by objective medical evidence. See Jones
v. Dep’t. of Health & Human Servs., 941 F.2d 1529, 1532-33 (11th Cir. 1991); Edwards v.

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Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991); Johns v. Bowen, 821 F.2d 551, 555 (11th
Cir. 1987). The weight afforded to a physician’s conclusory statements depends upon the
extent to which they are supported by clinical or laboratory findings and are consistent with
other evidence of the claimant’s impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th
Cir. 1986). The ALJ “may reject the opinion of any physician when the evidence supports
a contrary conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). The
ALJ must articulate the weight given to a treating physician’s opinion and must articulate any
reasons for discounting the opinion. Schnorr, 816 F.2d at 581.
After reviewing all the medical records, the ALJ rejected the opinion of Dr. Stanfield
because his treatment records do not support his assessment that Bowden’s functional
restrictions are as limited to the extent alleged.
The severity of restrictions assessed remains inconsistent with the
infrequent and limited nature of clinical findings and the course of treatment
reflected in Dr. Stanfield’s corresponding treatment notes. The frequency of
treatment visits documented of record is inconsistent with the frequency of
absences assessed as required of the claimant’s treatment. Furthermore, the
severity of postural, manipulative, and exertional limitations remains
inconsistent with Dr. Stanfield’s own findings. Treatment records reveal some
weakness and residual pain. However, the extent of functional issues
supported by the clinical findings has been accommodated by the restrictions
reflected in the residual functional capacity assessment. Dr. Stanfield’s
clinical findings and treatment notes are afforded significant weight, but the
assessment performed in June 2012 remains inconsistent with Dr. Stanfield’s
own office notes as well as other records of treatment, and afforded little
weight as inconsistent with the full record.
R. 26.

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The ALJ’s determination is supported by substantial evidence. On October 10, 2011,
Bowden went to Bay Medical Center Emergency Department complaining of “difficulty with
gait partial paralysis and diff[iculty] with speech and swallowing.” R. 165. Bowden
complained that he was unable to keep his balance, that he “tends to tip over to the left,” and
that he had fallen several times. R. 167. Dr. Zatchel Soto, the emergency room physician,
noted Bowden had a “clumsy hand,” numbness running along the left side of face and the left
upper and lower extremities, and extremity weakness. Id. Dr. Soto calculated a National
Institute of Health Stroke Score of 0, specifically finding that Bowden’s answers were
responsive and that he was able to perform certain tasks correctly. R. 168. A CT scan
indicated mild generalized atrophy. R. 179. Dr. Soto diagnosed Bowden with cerebral
atrophy and benign essential hypertension. R. 174.
On October 18, 2011, Bowden went to Dr. Stanfield for a follow-up visit after the
cerebrovascular accident, complaining of left leg weakness, vision problems, and speech “a
little bad but much improved” since the previous week. R. 185. Dr. Stanfield’s diagnostic
assessment was cerebrovascular accident and uncontrolled hypertension. R. 186. He
prescribed Zestril. Id.
On October 19, 2011, Dr. Kenny R. Blackston, an optometrist, conducted an
examination and assessed mild hypertensive retinopathy and mild keratoconjunctivitis
secondary to trigeminal paralysis from cerebrovascular accident. R. 181, 207. Dr. Blackston
prescribed glasses, artificial tears, and recommended vascular treatment. Id.
On October 24, 2011, a carotid sonogram indicated approximately 50% stenosis on

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the right and less than 50% stenosis on the left. R. 189. An echocardiogram report also
indicated: (1) a technically reasonable echocardiogram with good acoustic windows; (2)
overall well-preserved left ventricular contractility with estimated ejection fraction greater
than 55%; (3) moderate to severe left ventricular hypertrophy; (4) diastolic dysfunction; (5)
hypertensive heart disease appearing heart; and (6) minimal mitral regurgitation. R. 190.
On November 1, 2011, Bowden returned to Dr. Stanfield for a follow-up appointment.
Dr. Bowden found Bowden’s “left leg and grip weak [and] voice a little weak but
intelligible.” R. 187, 215. Dr. Bowden’s diagnostic assessment was “cerebrovascular
accident - improving.” Id.
On April 2, 2012, Bowden underwent a noninvasive vascular lab test.

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radiologist’s impression was “abnormal ankle brachial indices seen bilaterally suggesting
moderately severe peripheral vascular disease” and “probably a component of inflow disease
as well as outflow disease below the knees.” R. 200.
On June 25, 2012, Bowden returned to Dr. Stanfield complaining of severe left facial
pain which “burns from time to time.” R. 213. Dr. Stanfield noted that the “context of injury
was he may have had Bell’s palsy in the past.” Id. Dr. Stanfield’s diagnostic assessment was
“late effects of cerebrovascular disease” and “hypertension-benign essential - uncontrolled.”
R. 214. He prescribed Lisinopropil and Ultram. Id.
On August 23, 2012, Bowden went to Dr. Stanfield for a follow-up appointment. Dr.
Stanfield found that both the right leg and arm were numb. R. 211. His diagnostic
assessment was “hypertension-benign essential - stable” and “cerebrovascular accident -

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stable.” R. 211.
On October 17, 2012, Bowden returned to the optometrist complaining of a “scratchy,
irritated eye.” R. 206. Dr. Blackston diagnosed Bowden with mild hypertensive retinopathy,
keratoconjunctivitis, and dermatochalasis. R. 206.
During a follow-up appointment on December 12, 2012, Bowden reported to Dr.
Stanfield that he “still need[s] a cane but resolved everything else.” R. 209. Dr. Stanfield
found that both the right leg and arm were numb” and assessed “hypertension-benign uncontrolled” and “cerebrovascular accident - improving.” R. 210. On the same day, Dr.
Stanfield completed a Medical Examination Report for the Alabama Department of Public
Safety, in which he noted that Bowden does not “experience side effects of medication which
are likely to impair driving ability,” that there is “a complete recovery from stroke,” and that
it is his “opinion that [Bowden] is able to drive safely.” R. 220-222.
The medical records indicate that the effects of Bowden’s cerebrovascular accident
were treated conservatively and that his condition gradually improved over the relevant time
period. In addition, there are no medical records indicating that Bowden reported suffering
any side effects of medication. Dr. Stanfield’s opinion regarding Bowden’s physical capacity
to perform work and the severity of restrictions is inconsistent with his own medical records.
This court therefore concludes that the ALJ’s discounting of Dr. Stanfield’s opinion about
the severity of his limitations is supported by substantial evidence.
Bowden, however, argues that a consultative physician’s findings that the use of a
cane is warranted bolsters Dr. Stanfield’s opinion regarding his functional restrictions. On

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December 21, 2011, Dr. Sam Banner, a consultative physician, noted that Bowden walks
with a cane and complains of weakness on the left side and tingling on the right side of the
body. R. 192. Dr. Banner’s examination indicated “left eye sensation change” and that the
“right pupil does not contract as much as the left.” Id. Dr. Banner also found that Bowden
had “no pain or difficulty getting on and off table,” that “all muscle groups in the upper and
lower extremities were 5/5,” but that his “sensation to pinprick was diminished to right upper
and lower extremities and to left side of face and head.” R. 194. He noted that he “cannot
explain sensation changes that were described on exam, however, one of his physicians stated
his stroke hit midline brain and might explain the sensation changes.” R. 195. In addition,
he found that Bowden has a “very broad stance” and is able to take “2-3 short steps without
a cane.” R. 194. Dr. Banner “agree[d] he needs cane for safety.” Id. The consultative
physician diagnosed Bowden with “CVA post 4 months” and recommended “long-term
medical care.” R. 195.
The ALJ considered the medical findings and testimony concerning Bowden’s
balancing and walking problems when determining Bowden has the residual functional
capacity to perform light work with limitations. During the hearing, Bowden testified that
he does not use a cane every day, but that he uses it when he needs to climb stairs or cross
different grades. R. 37-38. In addition, there are no medical records indicating that Dr.
Stanfield or any other physician prescribed a cane. Nonetheless, the ALJ considered
Bowden’s difficulties with balancing on uneven terrain and climbing when determining
Bowden has the residual functional capacity to perform light work with limitations.

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Specifically, the ALJ limited Bowden to walking “on even terrain” with “no climbing
ladders, scaffolds, or ropes.” R. 23. Thus, it is clear that the ALJ considered Bowden’s
walking and climbing limitations when determining Bowden has the residual functional
capacity to return to his past work as a dispatcher. The court also notes that the ALJ’s
decision to discount Dr. Stanfield’s opinion about the severity of his limitations findings is
supported by Dr. Banner’s opinion regarding muscle strength, as well as the other medical
records demonstrating conservative treatment and that Bowden’s condition steadily
improved. Based on the foregoing, the court concludes that the ALJ’s decision to discount
Dr. Stanfield’s opinion is supported by substantial evidence.

B. The Pain Analysis. Bowden asserts that the ALJ failed to consider the effects of
his pain and fatigue on his ability to perform work. During the hearing, Bowden testified
that his face hurts all the time. R. 40. He stated that the pain around his cheekbone and eye
occurs two to three times a day and lasts from 45 minutes to two hours in duration and that
pain medication does not alleviate his symptoms. R. 41. In addition, he testified that he
suffers from knee pain when he kneels and shoulder pain when he puts too much weight on
his cane. R. 43. Bowden also stated that he is tired all the time, that he takes a two hour nap
in the middle of the day, and that he will nap, close his eyes, or lie in bed when his face hurts.
R. 47.
“Subjective pain testimony supported by objective medical evidence of a condition
that can reasonably be expected to produce the symptoms of which the plaintiff complains

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is itself sufficient to sustain a finding of disability.” Hale v. Bowen, 831 F.2d 1007 (11th Cir.
1987). The Eleventh Circuit has established a three-part test that applies when a claimant
attempts to establish disability through his own testimony of pain or other subjective
symptoms. Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986); see also Holt v.
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). This standard requires evidence of an
underlying medical condition and either (1) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (2) an objectively determined
medical condition of such severity that it can reasonably be expected to give rise to the
alleged pain. Landry, 782 F. 2d at 1553. In this circuit, the law is clear. The Commissioner
must consider a claimant’s subjective testimony of pain if he finds evidence of an underlying
medical condition and the objectively determined medical condition is of a severity that can
reasonably be expected to give rise to the alleged pain. Mason v. Bowen, 791 F.2d 1460,
1462 (11th Cir. 1986); Landry, 782 F.2d at 1553. Thus, if the Commissioner fails to
articulate reasons for refusing to credit a claimant's subjective pain testimony, the
Commissioner has accepted the testimony as true as a matter of law. This standard requires
that the articulated reasons must be supported by substantial reasons. If there is no such
support then the testimony must be accepted as true. Hale, 831 F.2d at 1012.
The ALJ acknowledged that Bowden suffers from “persistent medical issues, but [his
symptoms] do not establish the debilitating degree of dysfunction alleged by the claimant.”
R. 25. Where an ALJ decides not to credit a claimant’s testimony, the ALJ must articulate
specific and adequate reasons for doing so, or the record must be obvious as to the credibility

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finding. Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995); Jones v. Dept. of Health
& Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons must be based
on substantial evidence). If proof of disability is based on subjective evidence and a
credibility determination is, therefore, critical to the decision, “‘the ALJ must either explicitly
discredit such testimony or the implication must be so clear as to amount to a specific
credibility finding.’” Foote, 67 F.3d at 1562, quoting Tieniber, 720 F.2d at 1255 (although
no explicit finding as to credibility is required, the implication must be obvious to the
reviewing court). The ALJ has discretion to discredit a plaintiff’s subjective complaints as
long as he provides “explicit and adequate reasons for his decision.” Holt, 921 F.2d at 1223.
Relying on the treatment records, objective evidence, and Bowden’s own testimony, the ALJ
concluded that his allegations regarding his pain was not credible to the extent alleged and
discounted that testimony. After a careful review of the ALJ’s analysis, the court concludes
that the ALJ properly discounted the plaintiff’s testimony and substantial evidence supports
the ALJ’s credibility determination.
The medical records support the ALJ’s conclusion that Bowden’s condition is not so
severe as to give rise to disabling pain. For example, the medical records demonstrate that
the only treatment Bowden sought for his facial pain during the relevant time period was
during one follow-up appointment in June 2012, wherein Dr. Stanfield found that Bowden’s
pain was due to “late effects of cerebrovascular disease.” R. 213. In addition, the evidence

demonstrates that his condition steadily improved. As previously discussed, the ALJ’s
determination that Bowden infrequently sought treatment and that his condition was treated
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conservatively is supported by substantial evidence. The court therefore concludes that
substantial evidence supports the ALJ’s conclusion that Bowden’s impairments are not so
severe as to give rise to disabling pain.
After a careful review of the record, the court concludes that the ALJ’s reasons for
discrediting Bowden’s testimony regarding pain and fatigue were both clearly articulated and
supported by substantial evidence. To the extent that Bowden is arguing that the ALJ should
have accepted his testimony regarding his pain, as the court explained, the ALJ had good
cause to discount his testimony. This court must accept the factual findings of the
Commissioner if they are supported by substantial evidence and based upon the proper legal
standards. Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).

V. Conclusion
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that plaintiff is not disabled. Thus, the
court concludes that the decision of the Commissioner is supported by substantial evidence
and is due to be affirmed.
A separate order will be entered.
DONE this 29th day of February, 2016.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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