Brown v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/30/13. (SAC )

FILED
2013 Sep-30 PM 12:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

ERNST L. BROWN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

)
)
)
)
) CIVIL ACTION NO. 5:11-CV-3131-KOB
)
)
)
)
)

MEMORANDUM OPINION
The plaintiff, Ernst L. Brown, brings this action pursuant to the provisions
of section 205(g) of the Social Security Act 42 U.S.C. § 405(g), seeking judicial review
of a final adverse decision of the Commissioner of the Social Security Administration
denying his application for Social Security Benefits. Claimant timely pursued and
exhausted his administrative remedies available before the Commissioner. Accordingly,
this case is now ripe for judicial review under 205(g) of the Social Security Act, 42
U.S.C. § 405(g). For the reasons stated below, the Commissioner’s decision is due to be
affirmed.
STANDARD OF REVIEW
The sole function of this court is to determine whether substantial
evidence supports the decision of the Commissioner and whether she applied proper
legal standards. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To

that end, this court “must scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Bloodsworth, 730 F.2d at
1239 (citations omitted). Substantial evidence is “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Bloodsworth,
730 F.2d at 1239.
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and to establish his entitlement for a
period of disability, a claimant must be disabled. The Act defines disabled as the
“inability 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
twelve months . . . .” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). For the purposes of
establishing entitlement to disability benefits, “physical or mental impairment” is
defined as “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
To make this determination, the Commissioner employs a five-step,
sequential evaluation process:
(1) Is the person presently employed?
(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, supbt. P, app. I?
2

(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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520,
416.920.
In the instant case, the ALJ determined the claimant met the first two
tests, but concluded he did not suffer from a listed impairment. The ALJ found the
claimant unable to perform his past relevant work. Once the ALJ determines that the
claimant cannot return to his prior work, “the burden shifts to the [Commissioner] to
show other work the claimant can do.” Foote, 67 F.3d 1553, 1559 (11th Cir. 1995).
When a claimant is not able to perform the full range of work at a particular exertional
level, the Commissioner may not exclusively rely on the Medical-Vocational Guidelines
(the “grids”). Id., 1558-59. The presence of a non-exertional impairment, such as pain,
fatigue or mental illness, also prevents exclusive reliance on the grids. Id., 1559. In
such cases “the [Commissioner] must seek expert vocational testimony. Id., at 1559.
The ALJ found the claimant had the residual functional capacity (RFC) to
perform a reduced range of light work. R. 19. A vocational expert testified at the
claimant’s ALJ hearing that with that RFC the claimant would be able to perform

3

representative occupations, such as an assembler, a laundry sorter, and a packager. R.
70. Based upon that testimony, the ALJ found the claimant was not disabled at step five.
DISCUSSION
This appeal involves a claimant who alleges disability caused by back
pain beginning on January 6, 2009. R. 16. Few recent diagnostic imaging studies are in
the medical record. An MRI scan in 2001 showed mild degenerative disc disease at L45 with a broad based posterior disc protrusion, which minimally indented the ventral
thecal sac. The protrusion did not cause significant canal stenosis. R. 275. No other
MRI scans are in the record. An x-ray dated April 1, 2006, shows no significant
abnormality. R. 177. The report states that “[v]ertebral heights and disc spaces are
preserved.” The final diagnostic imaging in the record are x-rays done at the time of the
consultative physical examination by Dr. Reddy on April 9, 2009. These x-rays show
only moderate degenerative disc disease and early osteoarthritis at L5-S1. R. 200.
In spite of the lack of diagnostic confirmation of significant spinal cord
involvement, the claimant was prescribed narcotic pain medication over a long period of
time. The claimant was treated by Dr. Barnett prior to his alleged onset date of
disability. The office records of Dr. Barnett show he treated the claimant from May 2,
2006, through September 20, 2008, for low back pain. R. 184-191. Dr. Barnett’s
records indicate the claimant was seen every two-to-three months during that time. He
was also prescribed Lortab, Xanax, and Soma for low back pain. When he was seen on

4

November 13, 2007, the record notes that claimant reported feeling good. R. 186. On
February 20, 2008, Dr. Barnett noted the claimant reported that his back was “doing
well with exercises and medications.” R. 185. In September 2008, Dr. Barnett’s
records indicate a urine drug screen was positive only for benzodiazepines (Xanax),
indicating the claimant was not taking his Lortab as prescribed. Dr. Barnett dismissed
the claimant from treatment. R. 184.
The claimant was also seen for pain management by Dr. Pouparinas.
Although Dr. Pouparinas saw the claimant as early as 1997, large gaps exist in
treatment. After August 9, 2002, the claimant was not seen again by Dr. Pouparinas
until February 2008. Dr. Pouparinas’s records show that after February 2008 the
claimant was prescribed Lortab, Xanax, and Mobic for low back pain. These
prescriptions were refilled monthly. However, Dr. Pouparinas dismissed the claimant
from treatment on September 19, 2008, after drug screen testing indicated the claimant
was not taking his medications as prescribed. R. 262. An August 21, 2008, drug screen
was negative for both Xanax and Lortab. It was also positive for oxycodone, which had
not been prescribed by Dr. Pouparinas. R. 264.
The claimant was not treated again by Dr. Pouparinas until January 28,
2009. At that time Dr. Pouparinas again prescribed Lortab, Xanax, and Mobic. R. 261.
The claimant was seen by Dr. Pouparinas on February 24, 2009, and his medications
were refilled. R. 258. A urine drug screen taken that date showed the claimant was in

5

the appropriate range for opiates. However, his drug screen was negative for Xanax. R.
259. On March 25, 2009, Dr. Pouparinas refilled the claimant’s medications. R. 257.
A consultative physical examination was conducted at the request of the
Social Security Administration by Dr. Reddy on April 9, 2009. At that time the
claimant reported his medications included Lortab 10 mg, three times a day, Soma 350
mg, two times a day, and Xanax 2 mg, two times a day. R. 196. Dr. Reddy noted
straight leg raising test was positive bilaterally.1 R. 197. The claimant presented for the
exam using a cane, which he indicated he had gotten on his own. R. 196. However,
during the examination Dr. Reddy noted the claimant’s gait without a cane was without
a limp. The claimant stated that he was unable to walk on his toes and heels because it
put too much pressure on his back. He stated that he was unable to squat for similar
reasons. Dr. Reddy was unable to do range of motion testing of the hips or knees
because the claimant was unable to lie down on the examining table. R. 197. Dr.
Reddy found no localized muscle atrophy or deformities of the joints. The claimant’s
range of motion in the cervical spine was normal. R. 198. In the dorsolumbar spine,
range of motion was reduced. R. 198. X-rays of the lumbar spine were interpreted to
show moderate degenerative disc disease and early osteoarthritis at L5-S1. R. 200.
1

The straight leg raise test is also known as Lasègue’s sign: “In sciatica, flexion
of the hip is painful when the knee is extended, but painless when the knee is flexed.
This distinguishes the disorder from disease of the hip joint.” Dorland’s Illustrated
Medical Dictionary 1525 (28th Edition).

6

The record contains a physical capacity evaluation and clinical assessment
completed by Dr. Pouparinas dated April 17, 2009. R. 251-255. On that form Dr.
Pouparinas limited the claimant to a total of two hours sitting and one hour
standing/walking in an eight-hour workday. He was limited to lifting 10 pounds
occasionally. R. 251. On the clinical assessment of pain form, Dr. Pouparinas indicated
the claimant had pain to such an extent as to be distracting to adequate performance of
daily activities. R. 252. He also indicated that medication side effects would be
expected to be severe and to limit the claimant’s effectiveness due to distraction,
inattention and drowsiness. R. 253.
On April 23, 2009, the claimant saw Dr. Pouparinas. The treatment note
states the claimant had a history of narcotic contract violations and mentioned his failed
August 2008 drug screen. R. 256. The treatment note contains the following:
“Circumstances discussed fully with patient. Understands that I enforce terms of the
drug contract without compromise.” R. 256. The claimant’s prescriptions were refilled
and he was given a urine drug screen test. The test showed the claimant’s levels of
opiates was less than the expected value and was negative for Xanax. R. 246.
On May 22, 2009, the claimant saw Dr. Pouparinas and his medications
were refilled. He was also given a drug screen test, which was negative for both Lortab
and Xanax. R. 244. On June 17, 2009, Dr. Pouparinas saw the claimant and discussed
the repeated irregularities in his drug screens. The note states the discussion “[t]ouched

7

on drug diversion– warning issued.” R. 236. On July 15, 2009, Dr. Pouparinas noted
that the claimant was “doing fine” and that his “pain is pretty well-managed on this
current regimen.” R. 235. The claimant’s prescriptions were refilled. A drug screen
was taken, which was negative for both Lortab and Xanax. R. 242.
The claimant saw Dr. Pouparinas on August 12, 2009. He noted the
claimant “professes and appears to be compliant” with medications. R. 235. However,
the note states the claimant’s multiple failed drug tests were discussed. It also reflects
the claimant reported his medications enabled “him to do more with a minimum of pain
and suffering.” Dr. Pouparinas stated the claimant “[r]emains able to enjoy daily
activities and chores alike.” R. 235. Although the August 12 treatment note indicates
the claimant’s medications were refilled, it also contains the following notation:
“Dismiss from opioid [treatment].” R. 235. This treatment note is the final one from
Dr. Pouparinas in the record.
The record contains no treatment notes from August 12, 2009, until March
12, 2010, when the claimant saw Dr. Harris, a neurologist. The treatment note states
that the claimant reported he had experienced “burning pain” and “pins and needles like
sensation in his lower back radiating into his right leg” since he injured his back in the
mid 1990's. R. 249. The note states the claimant’s medication regimen included

8

Lortab, Xanax, and Soma2. On physical examination Dr. Harris found the claimant’s
coordination and gait exams were within normal limits. However Dr. Harris noted “the
patient does have a positive straight leg raise bilaterally.” R. 249. Dr. Harris’s
diagnostic impression was that the “patient appears to have a lumbar radiculopathy by
exam.” R. 250. Dr. Harris agreed to prescribe Lortab and Soma and had the claimant
complete a narcotic contract. Dr. Harris added Lyrica for prophylactic control of the
claimant’s pain.
The final treatment note in the record from Dr. Harris is from an April 23,
2010, visit. That note states the claimant reported no change in his pain levels. R. 248.
It also indicates the claimant requested a prescription for Xanax for anxiety. R. 248.
Instead, Dr. Harris added Cymbalta “to treat the anxiety and back pain.” R. 248. This
note is the final treatment note in the record.
Dr. Harris also completed a physical capacity evaluation on June 20,
2010. Dr. Harris indicated the claimant would be able to lift 20 pounds occasionally.
As Dr. Pouparinas had done, Dr. Harris indicated the claimant did not need a cane for
ambulation. He indicated the claimant would be able to sit four hours in an eight-hour
day and could walk/stand for a total of one hour. R. 276. Dr. Harris indicated that the
claimant’s pain would be virtually incapacitating and side effects to medications would
be expected to be severe. R. 277-76.
2

No treatment notes show a current prescription for the medications.
9

On appeal, the claimant argues the ALJ improperly refused to credit the
physical capacity evaluations and clinical assessment of pain forms submitted by Dr.
Pouparinas and Dr. Harris. “The testimony of a treating physician must ordinarily be
given substantial or considerable weight unless good cause is shown to the contrary.”
McGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); accord Elam v. Railroad
Retirement Bd., 921 F.2d 1210, 1216 (11th Cir. 1991). The ALJ “must specify what
weight is given to a treating physician’s opinion and any reason for giving it no
weight . . . .” McGregor, 786 F.2d at 1053. Good cause exists to reject a treating
physician’s opinion if it is not bolstered by the evidence or is inconsistent with the
doctor’s own treatment records. Lewis v. Callahan,125 F.3d 1436, 1440 (11th Cir.
1997).
The ALJ discussed the opinions of Dr. Pouparinas and Dr. Harris
extensively in his decision and articulated a number of reason why he found them not
credible. The ALJ found the doctors’ own treatment records did not support the forms
they submitted, and discussed several areas in which the treatment notes conflicted with
the forms. For example, the ALJ observed that Dr. Pouparinas’s treatment notes
showed the claimant reported his pain was well managed and that he had no side effects
from his medications:
As noted above, on April 23, 2009, the claimant denied having any side
effects from his medications, and he also stated that he was not having
any dizziness, grogginess, or unsteadiness. It was noted by Dr.
Pouparinas on June 17, 2009 that the claimant was “doing fine”; that “his
10

pain was pretty well managed on this current regimen”; and that he was
not having any adverse drug side effects. On August 12, 2009, he
reported that his medications enabled him to do more with a minimum of
pain, and he remained able to enjoy his daily living activities and chores.
He again denied having any side effects from medication.
R. 22.
The ALJ also noted inconsistencies between Dr. Harris’s treatment
records, and the restrictions placed on the claimant by the forms submitted:
Dr. Harris noted that the claimant walked with a normal gait when he saw
him in March 2010, and no mention of a cane was made. Dr. Harris also
noted that strength was 5/5 in both legs; sensation was normal; and
reflexes were 2+ and equal. These findings are inconsistent with the
disabling pain and limitations opined by Drs. Harris and Pouparinas, as
are the notations that pain is well managed.
R. 23.
The ALJ considered other evidence that failed to bolster the doctors’
opinions, such as the diagnostic imaging, conservative treatment, and lack of referral to
an orthopedic specialist:
Objective and clinical findings are also inconsistent with the assessments
completed by Dr. Pouparinas and Dr. Harris. The MRI, in 2002, was
noted to show only mild disc protrusion. Lumbar spine x-rays, taken by
Dr. Reddy, were interpreted as showing only moderate degenerative disc
disease and early osteoarthritis at L5-S1. The record does not indicate
that surgery has ever been recommended. The evidence contained in the
record, which dates back to 1997, does not show that the claimant has
ever been referred to an orthopedic surgeon or neurosurgeon, despite his
long-standing allegations of chronic back pain.
R. 22-23.

11

The ALJ noted in his opinion that during 2008 both Dr. Barnett and Dr.
Pouparinas saw the claimant. Both prescribed narcotic pain medications, and both
doctors dismissed the claimant as a patient in September 2008 because of drug screens
inconsistent with proper compliance with prescribed medication therapy. R. 21. The
ALJ found this behavior called into question the claimant’s trustworthiness about the
symptoms he reported to his treating physicians:
Dr. Pouparinas’ records also reflect that the claimant failed multiple drug
screen tests and that he was dismissed from treatment for a period of time,
indicative that the claimant has been less than fully forthcoming with Dr.
Pouparinas regarding his symptoms and compliance with treatment. It is
also noted that Dr. Pouparinas’ records do not indicate that the claimant
had run out of his medications prior to drug screen testing, which is
inconsistent with [claimant’s] testimony in that regard. Dr. Barnett’s
records also indicate that the claimant was dismissed from treatment.
R. 23. Doctors rely upon the honesty of their patients regarding their symptoms.
Therefore, the claimant’s lack of honesty with his doctors is additional evidence
supporting the ALJ’s refusal to credit the physical capacity evaluations and clinical
assessment of pain forms completed by his doctors.
The reasons articulated by the ALJ constitute good cause for his refusal to
credit the physical capacity evaluations and clinical assessment of pain forms submitted
by Dr. Pouparinas and Dr. Harris. The forms were not bolstered by the evidence and
were inconsistent with the physicians’ own treatment notes. Therefore, the ALJ applied
the proper legal standards in considering the opinions of the claimant’s treating

12

physicians. His refusal to credit those opinions was reasonable and supported by
substantial evidence.
CONCLUSION
Having carefully reviewed the entire record in this case, the court
concludes that substantial evidence supports the Commissioner's decision and that the
ALJ applied the proper legal standards in reaching that decision. Accordingly, the court
must affirm the decision of the Commissioner.
The court will enter an appropriate order contemporaneously with this
opinion.
DONE and ORDERED this 30th day of September, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

13