Johnson v. Astrue
MEMORANDUM OF OPINION. Signed by Honorable Judge Susan Russ Walker on 9/15/2011. (jg, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SALLIE ANN JOHNSON,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
CIVIL ACTION NO. 3:10CV563-SRW
MEMORANDUM OF OPINION
Plaintiff Sallie Johnson brings this action pursuant to 42 U.S.C. § 405(g) and
§ 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security
(“Commissioner”) denying her application supplemental security income under the Social
Security Act. The parties have consented to entry of final judgment by the Magistrate Judge,
pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the
parties, the court concludes that the decision of the Commissioner is due to be affirmed.
Plaintiff was born on September 16, 1953, and completed high school in 1972. (R.
140, 142). She worked in the textile industry as a sewing machine operator, folder, packer,
and line balancer in 1973, 1976 and from 1978 through 1999. (R. 125, 135). In December
2001, plaintiff stopped working, due to her mother’s illness. (R. 134).1 Records from Vester
Plaintiff’s application does not indicate the nature of the work she performed between 1999 and
December 2001. While plaintiff states in her disability report that she stopped working in December 2001,
Health Clinic include treatment notes from four office visits in 1999 and two office visits
each year in 2001, 2002 and 2003, most often for follow-up of hypertension. (R. 178-83).2
In late 2002, plaintiff was diagnosed with Type II non-insulin-dependent diabetes mellitus.
(R. 179, 181). In her only visit to the clinic in 2004, plaintiff complained of hot flashes and
irregular menstruation. (R. 178). On April 22, 2005, over eight months later, plaintiff
returned for follow-up, complaining of swelling in her eyes. On evaluation, her eyes were
noted to be puffy but not tender to palpation. Plaintiff further complained that she could not
bend her left thumb; she said that she had been given a splint and medication at the EAMC
emergency room. (R. 177). Plaintiff returned to the office six weeks later, reporting that she
still could not bend her left thumb and that, “when she does bend it, can’t get it to extend
again unless she assists it.” Her physician scheduled her for an appointment with Dr. Scott,
an orthopedic physician in Opelika. (Id.).3
At her next office visit three months later, on August 29, 2005, plaintiff complained
of right leg pain, soreness in her left shoulder and arm, and that her left calf “will get painful
on walking, standing or sitting.” Examination of her upper extremities were normal with
normal range of motion. The only abnormality noted as to her legs was that she had pain in
her physician noted on January 5, 2001, that plaintiff “[t]akes care of her mother @ home, no longer working
at Russells.” (R. 180).
Plaintiff’s treatment record from Vester Health Clinic includes notes of telephone calls,
prescriptions call-ins and labs without examination by a physician; the court here summarizes only the office
visits with a physician. (See Exhibits 3F, 8F).
The record includes no treatment notes from Dr. Scott, and plaintiff did not identify him in her
disability reports as one of her physicians. (R. 136-39, 146-48).
her right knee on squatting. Her physician diagnosed “? neuropathic pain” as to plaintiff’s
right leg and “? arthritic pain” in her left shoulder. (R. 176). On October 31, 2005, plaintiff’s
previous application for disability insurance benefits was denied. (R. 116).
Plaintiff did not again seek treatment at the clinic until January 2006. On January 9,
2006, she reported a “knot” behind her right ear and burning pain in both lower legs. She
stated that she had no numbness in her legs but that, for the previous two to three weeks, her
“legs get hot/cold[.]” The doctor noted no abnormalities on examination of plaintiff’s legs;
diagnosed “? peripheral neuropathy [secondary to] DM,” a “benign appearing” earlobe
lesion, and Type II non-insulin-dependent diabetes mellitus; and prescribed Naprosyn and
Neosporin ointment. (R. 176).
The following month, on February 3, 2006, plaintiff sought treatment at the clinic for
chest discomfort. She reported shortness of breath with pain when walking, and said that her
left thumb “gets numb” every day since the previous Tuesday. Plaintiff’s physician
performed an EKG and referred plaintiff to Dr. Williams, a cardiologist, for further
evaluation. (R. 175). Dr. Robert Ingram, another cardiologist in Dr. Williams’ practice,
evaluated plaintiff that day. She reported dyspnea on exertion for the previous two weeks
and chest pain radiating down her left arm while at rest for the previous five days, of
increasing frequency and severity, with nausea and sweating but no loss of consciousness.
Dr. Ingram reviewed the EKG sent by Dr. T. Vester and determined that it showed anterior
changes consistent with unstable angina. He discussed plaintiff’s case with Dr. Williams and
admitted plaintiff to the East Alabama Medical Center. (Exhibit 1F, R. 160-65). Plaintiff
remained at EAMC overnight. Dr. Williams performed a cardiac catheterization the
following morning, finding no significant coronary artery disease and “concentric left
ventricular hypertrophy in a setting of hypertension, consistent with hypertensive heart
disease with normal left ventricular systolic function.” (R. 173). Dr. Williams stated that he
“suspect[ed] her discomfort is not cardiac in nature.” He prescribed Protonix,4 and advised
plaintiff to “follow up with Dr. Terry Vester in one to two weeks.” (Id.). Plaintiff was
discharged from the hospital early that evening. (Exhibit 2F, R. 167-73).
On February 7, 2006, three days after her discharge from the hospital, plaintiff filed
the present application for supplemental security income. She alleged that she became
disabled on October 22, 2005, due to arthritis, diabetes, high blood pressure, acid reflux, and
carpal tunnel syndrome. She reported pain, stiffness and swelling in both legs due to arthritis,
dizziness and drowsiness due to diabetes, headaches due to hypertension, chest pain due to
acid reflux and pain and numbness due to carpal tunnel syndrome. Plaintiff indicated that
she is unable to use her left hand, to stand for very long, or to lift. (R. 104-07, 134).
Plaintiff returned to Vester Health Clinic for follow up of her chest pain on February
10, 2006. Her physician diagnosed “Type 2 NIDDM [with] peripheral neuropathy,” “GERD”
and “SOB [with] exertion.” (R. 175).5 Plaintiff was next evaluated on June 19, 2006, when
Protonix is used for treatment of esophagitis associated with gastroesophageal reflux disease
(“GERD”). Physician’s Desk Reference (64th ed. 2010) at pp. 3571-75.
There is a partial ER report included in Exhibit 7F showing that plaintiff sought treatment on
November 26, 2006, for “one week of right side pain” which increased with deep breathing and movement.
She told the ER doctor that “she was treated for muscle strain by her doctor and it has only helped
somewhat.” (R. 215). The Vester Health Center records include no indication of treatment in November
2006 (see R. 241), and plaintiff submitted no records of treatment for muscle strain other than the singlepage, partial ER report.
she reported paraspinal muscle pain and that her right eye was swollen and runny in the
morning. She further indicated that her left hand was numb with activity and that she had
seen an orthopedic doctor in the past and was given a wrist injection. On examination, her
left hand grip strength was 5/5 with normal range of motion and no pain on palpation.
Plaintiff’s doctor diagnosed diabetes and hypertension. (R. 241).
Late on the evening of March 3, 2007, plaintiff went to the emergency room at Lanier
hospital in Valley, complaining of chest pain which had lasted for thirty minutes, with left
leg pain. The ER physician diagnosed an acute myocardial infarction and admitted plaintiff
to the ICU, where she was treated with IV medications. Dr. Venkatapuham Reddy observed
that an echocardiogram performed during plaintiff’s admission revealed excellent left and
right ventricular function, mild concentric left ventricular hypertrophy, and no obvious
stenosis of the aortic valve. Dr. Reddy noted moderate tricuspid valve insufficiency and mild
mitral valve regurgitation and concluded, “Cannot exclude mitral valve prolapse but normal
ejection fraction at 70%.” Plaintiff was discharged on the morning of March 5, 2007, with
appointments to follow up with Dr. Vester in two weeks and with Dr. Reddy in one month.
At her two-week follow-up appointment on March 23, 2007, plaintiff told Dr. Vester
that she “[w]as having chest pain + passed out.”6 She reported that she was slightly dizzy
with watery eyes, but that she had experienced no further chest pain. Dr. Vester diagnosed
The notes of plaintiff’s report to the Lanier ER physician indicates no associated symptom of
syncope; the ER nursing record of plaintiff’s chief complaints likewise includes no reference to an episode
of passing out or syncope. (R. 224, 228).
hypertension and a “syncopal episode re. hosp[,]” continued plaintiff on her present
medications and added Nexium,, and indicated “Await GHLH - hosp. records.” A subsequent
note dated that same day states, “Reviewed GHLH - had low K + + Mg. May benefit from
ACE + D/C HCTZ.” (R. 240).
Two months later, on May 22, 2007, Dr. Vester diagnosed bronchits, hypertension and
Type 2 diabetes mellitus, when plaintiff appeared complaining that her chest hurt and she had
a bad, productive cough. In mid-September 2007, plaintiff was evaluated for her complaint
of pain and swelling of her right eyelid. She also reported pain in her right hand and thumb.
Dr. Al Vester diagnosed right wrist and hand pain and conjunctivitis, and referred plaintiff
for evaluation by an orthopedic surgeon. (R. 239).7 The following month, plaintiff was
diagnosed with facial dermatitis and conjunctivitis when she sought treatment for a facial
rash since the previous week and a watery right eye. (R. 238).8
On October 10, 2007, Disability Determination Services sent plaintiff to a neurologist
for electrophysiological evaluation. The neurologist conducted a nerve conduction study and
electromyogram and concluded that it was “indicative of bilateral, mild to moderate distal
medial neuropathy, namely carpal tunnel syndrome.” (R. 190-91). On October 18, 2007,
plaintiff appeared for a consultative physical examination by Dr. Robert Walkup of Internal
The record includes no treatment notes from an orthopedic surgeon.
Plaintiff telephoned the office on September 26, 2007, complaining of “giving out of breath”
when walking and sweating a lot more than normal. She was advised to rest and told that she could see “Dr.
Terry” on September 28th or that “we can make her an appt. to see cardiologist.” There is no record of a visit
to a cardiologist at that time, and no indication that plaintiff saw “Dr. Terry” on the 28th of September.
Medicine Associates, P.C. in Opelika. After examining the plaintiff, Dr. Walkup completed
a medical source opinion indicating that plaintiff can perform the exertional requirements of
light work, with some additional limitations. (Exhibit 6F, R. 192-200).
On December 31, 2007, plaintiff was admitted to EAMC after she appeared at the ER
complaining of chest pain lasting for three days. She was admitted for observation and
treatment by Dr. Williams. After she had chest pain during a stress test, which was positive
for anterior ischemia, plaintiff had another heart catheterization. The cardiac catheterization,
which was conducted on January 3, 2008, according to Dr. Williams, “revealed minor
coronary artery disease and no renal artery stenosis. She had normal left ventricular ejection
fraction. She also notably had no aortic stenosis.” (R. 205). Plaintiff was discharged home
in stable condition. (Id.). In a follow-up visit with Dr. Williams on February 1, 2008, plaintiff
told the intake nurse that her left hand and legs had hurt occasionally since discharge from
the hospital. Dr. Williams noted that plaintiff reported “some numbness to her left hand and
foot.” He stated that “[h]er exam is negative.” Dr. Williams “encouraged [plaintiff] to be
active” and asked her to return in a year for follow up. (R. 248-49).
Plaintiff next sought treatment from Dr. Vester on May 5, 2008, her first visit to the
clinic since the previous October. She reported lesions in her scalp for the previous two
weeks. Dr. Vester diagnosed a scalp infection. The treatment note concludes, “On the way
out handed forms[.] [Right] hand numb.” (R. 237). That day, Dr. Terry Vester completed
a medical source statement indicating that plaintiff can lift 5 pounds occasionally and one
pound frequently; that she can sit for a total of four hours and stand or walk for a total of one
hour in an eight-hour work day; and that she can rarely push and pull arm or leg controls,
bend, stoop, or reach, and never climb, balance, operate a motor vehicle, work with or around
hazardous machinery, or perform gross or fine manipulation. Dr. Vester indicated that
plaintiff would be absent from work more than four days each month as a result of her
impairments or treatment. In response to the prompt, “State the medical basis and the
diagnosis for these restrictions[,]” Dr. Vester wrote, “Chronic complain ® hand discomfort
+ ® LE discomfort.” Dr. Vester indicated that she believed plaintiff’s complaints of pain but
responded “No” to the question, “Is there objective evidence which could reasonably be
expected to cause this degree of pain?” Dr. Vester wrote, “Possible CTS, requires further
evaluation – proved by NCS/EMG report 10/10/07. Dr. Vester rated plaintiff’s pain as
“Severe.” In response to the question, “Is the patient taking any medication that would
adversely affect the ability to work[,]” Dr. Vester responded affirmatively and wrote
“Robaxin – possible drowsiness.” (R. 245-47).9
On June 16, 2008, an ALJ conducted an administrative hearing, during which he heard
testimony from the plaintiff and from a vocational expert. (R. 28-68). The ALJ rendered a
decision on August 28, 2008. He determined that plaintiff has “severe” impairments of “noncardiac chest pain; gastroesophageal reflux disease; type II non-insulin dependent diabetes
mellitus; carpal tunnel syndrome; peripheral neuropathy; and hypertension.” (R. 25). He
found that plaintiff does not have an impairment or combination of impairments that meets
Dr. Vester had prescribed Robaxin for plaintiff for the first time that same day. (R. 237; see
Exhibits 3F, 8F). Plaintiff testified at the hearing that she experienced no side effects from the medication
she was then taking. (R. 42, 153).
or medically equals the severity of any of the impairments in the “listings.” (R. 25). He
further concluded that plaintiff retained the residual functional capacity to perform light work
with the following limitations:
The claimant requires work which allows for a sit/stand option. The claimant
She can frequently use [her] right leg for repetitive movement such as in the pushing and
pulling of leg controls and occasionaly use her left leg for repetitive movement such as in the
pushing and pulling of leg controls. She can occasionally climb, balance, stoop, or kneel;
never crouch or crawl; and frequently reach overhead. She can occasionally work around
unprotected heights, moving machinery, and exposure to marked changes in temperature and
humidity. She can frequently drive automotive equipment. In addition, the claimant
experiences a moderate degree of pain.
(R. 25). He determined that she is unable to perform her past relevant work, but that there are
a significant number of jobs in the national economy which the plaintiff can perform,
including assembler, inspector/checker, and machine packer. (R. 25-26). The ALJ concluded
that plaintiff has not been under a disability as defined in the Social Security Act at any time
through the date of his decision. (R. 26). On May 11, 2010, the Appeals Council denied
plaintiff’s request for review (R. 1-5) and, accordingly, the decision of the ALJ stands as the
final decision of the Commissioner.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
Treating Physician’s Opinion
Plaintiff argues that the ALJ committed “clear error” when he concluded that Dr. Terry
Vester was not plaintiff’s treating physician, and that he compounded that error by
formulating an RFC assessment “allowing greater exertional capacity than what Dr. Terry
Vester believed his [sic] patient could sustain.” Plaintiff contends that the ALJ’s RFC
assessment is not supported by substantial evidence because the ALJ failed to give good
reasons for rejecting Dr. Terry Vester’s opinion. (Plaintiff’s brief, pp. 1-2).
The records from Vester Health Clinic are handwritten. The treatment notes for
plaintiff’s office visits during the relevant period do not include a legible signature by Dr.
Terry Vester, nor do they include a stamp bearing Dr. Vester’s name. Many of the notes
conclude with an illegible mark which may be an initial or initials, but which do not appear
to include either a “T” or a “V.” (Exhibits 3F, 8F). Plaintiff’s office identified Exhibit 8F,
medical records covering the period from May 2006 through May 2008, as those of Dr. Al
Vester. (R. 236). However, there are also notes written by staff members in Exhibit 8F
referring to “Dr. Terry” and, once each, to “Dr. Terry Vester” and “Dr. T Vester.” (R. 23841). Additionally, the cover sheet transmitting the medical records in Exhibit 3F, for the
period from January 1999 through February 2006 is signed by Terry Vester. (R. 174). Exhibit
3F includes legible references by staff members to “Dr. Terry” and “Dr. T Vester” in 2001
and 2002 (R. 180, 181) and a few legible signatures reading, “T Vester MD” in 1999 (R. 182,
In her disability report, plaintiff identified Dr. Terry Yvonne Vester as a physician she
had seen for several years (R. 137) and, during the consultative examination, she identified
Dr. Terry Vester as her primary care physician (R. 192). Records and notes from other
physicians identify “T Vester” or “Dr. Terry Vester” as plaintiff’s primary or referring
physician, or copy “Terry Vester” on reports (see e.g., R. 165, 172,173, 208, 213, 217, 249).
Dr. Williams addressed the report of his February 2008 follow-up to “Dr. Terry Vester.” (R.
248). Accordingly, plaintiff is correct that the ALJ’s conclusion that Dr. Terry Vester is not
plaintiff’s treating physician is not supported by substantial evidence.10
However, the ALJ’s error in concluding that Dr. Terry Vester is not plaintiff’s treating
See 20 C.F.R. § 416.902 (“Treating source means your own physician, psychologist, or other
acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and
who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have
an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes
that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type
of treatment and/or evaluation required for your medical condition(s).”)(italics in original).
physician is harmless. It is apparent from the ALJ’s RFC assessment, as plaintiff argues, that
the ALJ rejected Dr. Vester’s medical source opinion as expressed in Exhibit 9F. An ALJ
may reject the opinion of a treating physician if he articulates good cause for doing so. The
Eleventh Circuit has found good cause for discounting a treating physician’s report when the
report “‘is not accompanied by objective medical evidence or is wholly conclusory.’”
Crawford v. Commissioner, 363 F.3d 1155, 1159 (11th Cir. 2004)(quoting Edwards v.
Sullivan, 937 F.2d 580, 583-84 (11th Cir.1991)). Additionally, there is good cause to reject
the opinion where the treating physicians’ opinions are “inconsistent with their own medical
records,” Roth v. Astrue, 249 Fed. Appx 167, 168 (11th Cir. 2007)(citing Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir.1997)) or “when the opinion appears to be based primarily on
the claimant’s subjective complaints of pain.” Freeman v. Barnhart, 220 Fed. Appx. 957, 960
(11th Cir. 2007)(citing Crawford, supra). “The ALJ may reject the opinion of any physician
when the evidence supports a contrary conclusion. Carson v. Commissioner of Social Sec.,
373 Fed. Appx. 986, 988 (11th Cir. Apr. 20, 2010)(citing Sryock v. Heckler, 764 F.2d 834,
835 (11th Cir. 1985)).
The ALJ noted that Dr. Vester’s opinion regarding plaintiff’s restrictions is
“inconsistent with the medical evidence when considered in its entirety.” (R. 22). In the
paragraph immediately preceding the one containing this conclusion, the ALJ stated that the
record demonstrates that plaintiff’s diabetes is under fair control with medication, that she
receives treatment for her hypertension, that her heart catheterization showed only minor
coronary artery disease with a normal left ventricular ejection fraction of 70%,11 and that “Dr.
Al Vester’s (her treating physician) medical records do not indicate the claimant’s medically
determinable impairments prevent her from performing work activities at the light level of
exertion.” (R. 22). It is true that the ALJ erred in concluding that the treatment records at
Exhibits 3F and 8F were those of Dr. Al Vester; these medical records reflected treatment
both by Dr. Terry Vester and Dr. Al Vester. However, as the ALJ found, the restrictions
identified in Dr. Terry Vester’s medical source opinion are not supported by the treatment
notes from Vester Health Clinic, summarized above, nor are they supported by the other
evidence of record.12 While the ALJ erred in finding that Dr. Terry Vester was not plaintiff’s
treating physician, he nevertheless stated good cause, supported by substantial evidence, for
rejecting Dr. Vester’s opinion – all that he is required to do to reject a treating physician’s
Upon review of the record as a whole, the court concludes that the decision of the
As plaintiff argues, the ALJ mistakenly attributed the report of the heart catheterization to Dr. Al
Vester. (Plaintiff’s brief, pp. 10-11). The ALJ’s statement regarding the underlying heart catheterization is
substantially accurate, but the report was from Dr. Williams, the cardiologist. (R. 172-73, 213-14).
By way of example, Exhibit 9F includes Dr. Vester’s medical source opinion that plaintiff suffers
from debilitating pain and “discomfort” and also includes a notation of plaintiff’s report to Dr. Williams
three months earlier of occasional hand and leg pain. (Exhibit 9F). Dr. Vester states that her conclusions
are based on plaintiff’s chronic complaints of discomfort in her right hand and right lower extremity;
plaintiff testified that she has problems “only in [her] left wrist and hand” and only in her left leg. (R. 5051).
The ALJ gave substantial weight to the opinion of the physician who performed the consultative
examination. While Dr. Walkup did not have the NCS/EMG report before him when he rendered his opinion,
he nevertheless credited plaintiff’s complaint of left wrist pain in determining her restrictions. (R. 198).
Commissioner is supported by substantial evidence and proper application of the law.
Accordingly, the decision is due to be AFFIRMED. A separate judgment will be entered.
DONE, this 15th day of September, 2011.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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