Hollingsworth v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/1612. (CVA)
2012 Oct-16 PM 03:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Civil Action Number
Plaintiff Adam Hollingsworth (“Plaintiff”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence and, therefore, AFFIRMS the decision denying
I. Procedural History
Plaintiff filed his applications for Title II disability insurance benefits and
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Title XVI Supplemental Security Income on December 30, 2009, alleging a
disability onset date of April 5, 2009, due to “tear in right foot” and “pain in both
knees.” (R. 84, 109-117,131). After the SSA denied his applications on May 18,
2010, Plaintiff requested a hearing. (R. 86-90, 100-104). At the time of the
hearing on July 7, 2011, Plaintiff was 29 years old, had a GED, and past relevant
work that included semi-skilled work as a stocker and very heavy and skilled work
as a door builder. (R. 69, 80). Plaintiff has not engaged in substantial gainful
activity since April 5, 2009. (R. 13).
The ALJ denied Plaintiff’s claim on July 19, 2011, (R. 8), which became the
final decision of the Commissioner when the Appeals Council refused to grant
review on November 4, 2011, (R. 1-5). Plaintiff then filed this action pursuant to
section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
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supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments which can be expected to result in death or which
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has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis. 20
C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
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prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ determined
initially that Plaintiff had not engaged in substantial gainful activity since his
alleged onset date and therefore met Step One. (R. 13). Next, the ALJ
acknowledged that Plaintiff’s severe impairments of lumbago, chronic obstructive
pulmonary disease, facet arthropathy, obesity, and plantar fibromatosis met Step
Two. (R. 13). The ALJ then proceeded to Step Three where he found that
Plaintiff “does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments.” (R. 14). Although the ALJ
answered Step Three in the negative, consistent with the law, see McDaniel, 800
F.2d at 1030, the ALJ proceeded to Step Four where he determined that Plaintiff
“has the residual functional capacity to perform the full range of sedentary work.”
(R. 14). In light of Plaintiff’s RFC, the ALJ held that Plaintiff was “unable to
perform any past relevant work.” (R. 17). The ALJ then moved to Step Five
where he considered Plaintiff’s age, education, experience, and RFC, and
determined that “jobs . . . exist in significant numbers in the national economy that
the claimant can perform.” (R. 18). As a result, the ALJ answered Step Five in
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the negative and found that Plaintiff is not disabled. (R. 24-25); see also
McDaniel, 800 F.2d at 1030.
Plaintiff’s sole contention is that the ALJ committed reversible error by
assigning consulting examiner Dr. Henry Born’s opinion “substantial weight” and
“failing to provide good cause for the rejection of the opinion of the claimant’s
treating physician, Dr. Odjegba.”1 Doc. 8 at 5-12. Indeed, the ALJ found as
follows as to these two physicians:
[T]he findings of Dr. Born are given substantial weight. Dr. Born is
deemed by regulation to be a ‘highly qualified expert in Social
Security disability evaluation.’ As his findings are uncontradicted by
other objective medical evidence, they are entitled to substantial
However, the opinion of Dr. Odjegba is given little weight. This
opinion is unsupported by any available medical records, and the
assessment of debilitating pain is inconsistent with his own
objectively reported findings and with other treating source medical
evidence within the record. For these reasons, this opinion is given
(R. 17). Plaintiff disagrees with the ALJ’s assessment and contends that the ALJ
should have assigned substantial weight to Dr. Odjegba’s opinion. In light of
Plaintiff’s contention, the court will review first Dr. Odjegba’s treatment notes and
Dr. Odjegba’s first name is not listed in the record.
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then the remaining record evidence.
Dr. Odjegba’s treatment notes
On December 9, 2010, Dr. Odjegba evaluated Plaintiff at Quality of Life for
chest tightness and congestion and lower back pain that rates a 7 out of 10 after
“just mov[ing] [into his] house.” (R. 229). Dr. Odjegba reported that Plaintiff’s
respiratory tract had “very poor air movement” and that his back and spine were
“positive for posterior tenderness. Paravertebral muscle spasm. Bilateral
lumbosacral tenderness,” and “bilateral tenderness from L3 to L4.” (R. 230). Dr.
Odjegba diagnosed Plaintiff with chronic bronchitis and lumbago/acute muscle
strain and prescribed Albuterol, Flexeril, ibuprofen, Zithromax, and Trexbrom.
Dr. Odjegba also ordered a pulmonary functioning test that revealed that Plaintiff
has a “severe airway obstruction, with low vital capacity. Post bronchodilator test
not improved.” (R. 232, 235).
The next month, on January 7, 2011, Plaintiff presented to Dr. Odjegba
again with lower back pain that is “worse with sitting up” and “helped by Flexeril
and Motrin.” (R. 232). Dr. Odjegba noted also that Plaintiff’s “spine is positive
for posterior tenderness. Paravertebral muscle spasm. Bilateral lumbosacral
tenderness. Lumbar palpitation reveals bilateral tenderness,” and that Plaintiff had
poor air movement, for which Dr. Odjegba prescribed Spiriva and Advair. (R.
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233). That same month, Plaintiff received x-rays of his lumbar spine that revealed
“facet arthropathy L3-L4.”2 (R. 238).
On May 27, 2011, Dr. Odjegba completed a clinical assessment of pain and
opined that Plaintiff’s “pain is present, irretractable, and incapacitating,” that
activity “increased [his] pain to such a degree as to preclude basic work activities
on a sustained basis,” and that Plaintiff “can be expected to miss 25-30 days per
year from work” due to his “severe lower back pain and spasms (etiology
uncertain - cannot afford MRI).” (R. 241-42). Dr. Odjegba also completed a
disability questionnaire in which he opined that Plaintiff was disabled pursuant to
the regulations and that the disability was expected to last for “years” due to his
“severe lumbago with muscle spasm” and “chronic bronchitis.”3 (R. 243).
Generally, because a treating physician provides a “longitudinal picture” of
the claimant’s impairments, his assessment is entitled to more weight when it is
“well-supported by medically acceptable clinical and laboratory diagnostic
A facet is a small plane surface on a bone and arthropathy is any joint disease. Sanders
Elsvier, Dorland’s Illustrated Medical Dictionary 160, 676 (31st ed. 2007).
Dr. Odjegba stated in his disability evaluation that he treated Plaintiff four times. (R.
243). However, the treatment notes reflect that Dr. Odjegba evaluated Plaintiff twice at Quality
of Life and a Nurse West evaluated Plaintiff twice at Canterberry on August 11 and 25, 2009.
(R. 187, 190). Because the format of the treatment notes appear identical to each other and
because Nurse West evaluated Plaintiff also at Quality of Life in July 2010, doc. 226, perhaps
these two clinics are jointly owned. Therefore, to the extent that Dr. Odjegba and Nurse West
evaluated Plaintiff together, that is not reflected by the record.
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techniques and is not inconsistent with the other substantial evidence in [the]
record” and the ALJ must provide sound reasons for rejecting it. See 20 C.F.R. §
404.1527(c)(2). Further, “the longer a treating source has treated” a claimant, “the
more weight we will give to that source’s medical opinion.” Id. at (c)(2)(I).
However, an ALJ can reject a treating physician’s assessment when the physician
failed to present “relevant evidence to support an opinion.” See id. at (c)(3). This
is precisely the case here and why the ALJ’s decision to reject Dr. Odjegba’s May
27, 2011 report is supported by substantial evidence.
Specifically, Dr. Odjegba’s treatment notes fail to establish a “longitudinal
picture” of Plaintiff’s impairment because Dr. Odjegba evaluated Plaintiff only
twice over a two month period of time in December 2010 and January 2011, and
perhaps, assuming QOL and Canterberry are the same, two other times with Nurse
West in August 2009 for ankle and heel pain. (R. 187, 190); see 20 C.F.R. §
404.1527(c)(2). Moreover, regarding Plaintiff’s back pain, Dr. Odjegba’s
examinations consisted solely of palpating Plaintiff’s back because Dr. Odjegba
only reported tenderness in Plaintiff’s lumbosacral region of his back. Dr.
Odjegba failed to perform straight leg raises, range of motion tests, or other
objective tests to determine the severity of Plaintiff’s pain and his ability to sustain
activity. Lastly, although Plaintiff’s January 2011 x-ray revealed facet arthropathy
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at L3-L4, without more, that diagnosis is not determinative of a disabling
impairment, especially in light of the fact that Plaintiff stated that his pain was
“helped by Flexeril and Motrin.” (R. 232).
As related to Plaintiff’s respiratory impairment, even though Plaintiff’s
chronic bronchitis is a severe condition, the record does not support a finding that
it has “lasted or can be expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). Indeed, the only
evidence of Plaintiff’s respiratory impairment is Dr. Odjegba’s December 2010
and January 2011 treatment notes and, in fact, as discussed below, Plaintiff’s other
respiratory examinations were negative. Therefore, the ALJ’s decision to assign
Dr. Odjegba’s opinion “little weight” is supported by substantial evidence.
The record as a whole fails to support Plaintiff’s disability claim
A review of the record as a whole supports the ALJ’s findings. In that
regard, the record reflects that on February 11, 2009, Plaintiff visited Gadsden
Regional Medical Center because he felt like his throat was closing. (R. 248).
The treating physician reported no “sensation of airway closure,” “no evidence of
airway compromise,” and “no respiratory distress. Lungs clear with equal breath
sounds bilaterally.” (R. 249). Plaintiff was diagnosed with an “acute allergic
reaction,” prescribed Benadryl, and discharged in stable condition. (R. 249-250).
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The next medical entry occurred on August 11, 2009, when Plaintiff visited
Canterberry Family Practice and was evaluated by nurse practitioner Richard West
for “mild” pain in his right foot that intensifies when standing and “pain at [the]
posterior ankle.” (R. 187-88). Plaintiff’s x-rays revealed “no sig[nificant]
abnormality” and he was prescribed Medrol and Naprosyn. (R. 189, 192). Later
that month, Plaintiff again visited Canterberry for right foot pain “mostly in the
heel now.” (R. 190). Nurse West evaluated Plaintiff and diagnosed him with
plantar fibromatosis and prescribed stretching exercises and a spenco orthotic for
hard shoes. (R. 191).
The next year, on March 15, 2010, Dr. Henry Born completed a consultative
examination regarding Plaintiff’s “pain in his right heel” and reported that Plaintiff
had (1) clear lungs, (2) an “impaired” gait using a cane, (3) right heel pain and
tenderness, (4) normal range of motion in the cervical spine, shoulders, elbows,
wrists, hands, fingers, hips, knees, ankles, and feet, (5) intact strength in his lower
extremities, (6) no atrophy or fasciculation in his extremities and no swelling,
erythema, or tenderness in his joints, (7) symmetrical reflexes, (8) normal
dorsolumbar flexion, extension, and rotation, and (9) negative right and left
straight leg raises 60 degrees. (R. 194-95). Dr. Born reported that Plaintiff could
squat and rise with most of the weight on his left foot, that his right foot x-rays
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revealed no degenerative or sclerotic changes or bone spurs and had well
maintained joint spaces, and diagnosed Plaintiff with “probably bursitis, right
heel.” Id. Significantly, Dr. Born reported that Plaintiff “has had no medical
attention,” “has not seemed to make that much of an effort to have any real
treatment here,” and that “[p]erhaps a cortisone shot would help this situation
considerably.” (R. 195-96).4
Regarding Dr. Born’s opinion, initially, the court notes that Plaintiff
presented to Dr. Born only with heel pain and, therefore, Dr. Born did not
specifically address Plaintiff’s back pain except to note a full range of motion in
Plaintiff’s cervical spine. Nonetheless, Dr. Born’s opinion is substantiated by his
treatment notes because, although Dr. Born examined Plaintiff only once, unlike
Dr. Odjegba, he undertook a thorough examination and provided clinical data to
support his opinion, i.e., range of motion, straight leg raise, and squat/stand tests,
and an examination of the extremities. Further, as related to Plaintiff’s heel pain,
On July 6, 2010, Plaintiff again visited Gadsden Regional for lower left quadrant
abdominal pain due to a kidney stone. (R. 207, 213). Importantly, the treating physician
observed that Plaintiff’s lungs were “clear with equal breath sounds bilaterally” and his spine was
“non-tender,” prescribed Plaintiff hydrocordone for pain, discharged Plaintiff in stable condition,
and instructed him “to obtain follow up care in two days.” (R. 214). Later that month, Nurse
West evaluated Plaintiff again, this time at QOL instead of Canterberry, for diarrhea and
vomiting after passing a kidney stone and noted that Plaintiff was “negative for cough, dyspnea,
and wheezing,” that his lungs were “clear to percussion and auscultation,” and prescribed
Plaintiff Loperamide for diarrhea, Dicyclomine for irritable bowel syndrome, and Promethazine
for allergic rhinitis. (R. 226-28).
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Dr. Born’s bursitis diagnosis is supported by Plaintiff’s x-rays that revealed no
abnormalities. Moreover, Dr. Born’s opinion is consistent with Nurse West’s
evaluations of Plaintiff’s foot and heel pain. See 20 C.F.R. § 404.1527(6) (“When
we consider how much weight to give to a medical opinion, we will also consider
any factors you or others bring to our attention, [ ], which tend to support or
contradict the opinion.”). Therefore, the ALJ’s decision to assign Dr. Born’s
opinion “substantial weight” is supported by substantial evidence.
Ultimately, Plaintiff has the burden of proving that he is disabled. See 20
C.F.R. § 416.912(c). Unfortunately for Plaintiff, the record as a whole is sparse
and does little to support Plaintiff’s disability claim. Regarding Plaintiff’s foot,
ankle, and heel pain, although Plaintiff’s gait was impaired, the x-rays were
negative, he had normal range of motion in his extremities, and there is no
evidence in the record suggesting that the prescribed treatment proved ineffective.
In fact, presumably, Plaintiff’s treatment resolved his foot, ankle, and heel pain
because Plaintiff never raised these issues to Dr. Odjegba. Further, Plaintiff’s
examinations failed to reveal any signs of respiratory distress or back pain prior to
his first visit with Dr. Odjegba in December 2010. In fact, Dr. Born noted in
March 2010 that Plaintiff had a non-tender spine and clear lungs. In the final
analysis, the record evidence simply does not support Plaintiff’s disability claim.
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Based on the foregoing, the court concludes that the ALJ’s determination
that Hollingsworth is not disabled is supported by substantial evidence, and that
the ALJ applied proper legal standards in reaching this determination. Therefore,
the Commissioner’s final decision is AFFIRMED. A separate order in
accordance with the memorandum of decision will be entered.
Done the 16th day of October, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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