Durand v. Social Security Administration, Commissioner
MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/17/2013. (AHI )
2013 Dec-17 PM 01:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MICHELLE YVETTE DURAND,
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Case No. CV-12-S-4181-NE
MEMORANDUM OPINION AND ORDER
Claimant, Michelle Yvette Durand, commenced this action on December 26,
2012, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse
decision of the Commissioner, affirming the decision of the Administrative Law Judge
(“ALJ”), and thereby denying her claim for a period of disability, disability insurance,
and supplemental security income benefits.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v. Bowen,
847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ improperly evaluated the medical opinions in the record,
and that he improperly applied the Medical-Vocational Guidelines (“grids”) to
Upon review of the record, the court concludes that these
contentions lack merit, and that the Commissioner’s ruling is due to be affirmed.
Social Security regulations provide that, in considering what weight to give any
medical opinion, the Commissioner should evaluate: the extent of the examining or
treating relationship between the doctor and patient; whether the doctor’s opinion can
be supported by medical signs and laboratory findings; whether the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors.
See 20 C.F.R. § 404.1527(c). See also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th
Cir. 1986) (“The weight afforded 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 as to claimant’s impairments.”). Generally, the opinion
of an examining source is entitled to more weight than the opinion of a non-examining
source. 20 C.F.R. § 404.1527(c)(1). Additionally, the opinion of a specialist
generally is entitled to more weight than the opinion of a non-specialist. 20 C.F.R. §
404.1527(c)(5). Finally, the ALJ is not required to accept a conclusory statement
from a medical source, even a treating source, that a claimant is unable to work,
because the decision whether a claimant is disabled is not a medical opinion, but is a
decision “reserved to the Commissioner.” 20 C.F.R. § 416.927(e).
Claimant asserts that the ALJ should have given more weight to the opinion of
Dr. Keith Anderson, a Doctor of Osteopathic Medicine specializing in physical
medicine and rehabilitation who examined claimant on August 20, 2012, and less
weight to the opinion of Dr. Burgin Dossett, an internal medicine doctor who never
examined claimant but who testified as a medical expert during the September 6, 2012
Dr. Anderson conducted a single clinical examination of clamant on August 20,
2012. Claimant complained of neck pain, cramping sensations and numbness in her
arms and hands, low back pain radiating into the hips and legs, and thoracic pain. She
had surgery for a herniated disc in her neck in 2007, which improved her pain, but at
the time of the examination, she had a new herniated disc at C5-C6 and could not
afford additional surgery.
Dr. Anderson’s neurological examination revealed
symmetrical muscle stretch reflexes, full strength, intact sensation, and positive
Tinel’s signs over both carpal and cubital tunnels. The evaluation of claimant’s spine
revealed a decreased range of motion in the cervical region, multiple tender points in
the upper thoracic region, level pelvic height, decreased range of motion in the lumbar
region with increased pain upon movement, unremarkable gait pattern, and no
spasms.1 Dr. Anderson stated the following in summary of plaintiff’s condition:
We have a 46-year-old white female who has herniated disc at C5C6 with previous surgery at C6-C7 and chronic neck pain as well as
degenerative joint disease of the lumbar spine with chronic back pain.
We will try some different medications to see if we can help decrease
Dr. Anderson also stated, “At this point in time I do not feel this patient can hold out
productive employment because of her chronic pain syndrome. Hopefully we can get
it under better control.”3
The ALJ afforded Dr. Anderson’s assessment only little weight, because
the statement proffers an opinion on disability that is properly reserved
for the Commissioner as it does not offer any functional assessment of
the claimant’s ability to perform any number of work-related activities.
Additionally, the undersigned notes that Dr. Anderson did not review the
claimant’s previous medical records prior to offering his conclusionary
opinion after only a single office visit. Further records from that office
visit document only physical examination findings of tenderness in the
paraspinal muscles and some decreased range of motion in the lumbar
and cervical spine. The undersigned notes that these findings are not
consistent with previous normal examination findings throughout the
record and do not support the doctor’s opinion.4
On the other hand, the ALJ gave great weight to the opinion of Dr. Dossett, the
Tr. 746 (alteration supplied).
independent medical examiner. Dr. Dossett responded to medical interrogatories
submitted by the Social Security Administration on May 18, 2012. Dr. Dossett did
not personally examine claimant, but instead reviewed the records submitted to him
by the Commissioner.5 He indicated that there was objective medical evidence to
allow him to form opinions about the nature and severity of claimant’s impairments,
but such evidence was sparse.6 When asked to describe claimant’s impairments, Dr.
The impairments that this patient has that are established by
evidence include: cervical disc protrusion treated in 2007 with
discectomy and fusion of the cervical spine at that level (C6/7). She now
has evidence of disc protrusion at C5/6 but this does not appear to be
particularly severe or severe enough to be causing much in the way of
symptoms. . . . She has apparently had continued symptoms involving
the left arm and hand since the cervical surgery in 2007, but was able to
work and at one point said she felt great after the surgery. She
subsequently did complain of some symptoms with the left upper
extremity. She also has lesions in other areas of the back including the
thoracic spine and lumbar spine that do not appear to be terribly severe,
although may well be producing some symptoms, but no evidence of
impairment of function or limitation of motion of these areas of the
spine, and no evidence of neurological sequelae from these
abnormalities. . . . The evidence for all of these are contained in multiple
x-rays and MRIs in the record and various clinical examinations
including the exam done by Dr. John Howard Lowry on May the 20th
2011. Except for specific exams by her neurosurgeon and by her
obstetricians, there is not much clinical record here.7
Tr. 726. The court omitted Dr. Dossett’s discussion of claimant’s other surgeries and
treatment for anxiety, as those impairments are not at issue with regard to this claim.
Dr. Dossett also opined that claimant did not meet any of the Listings, reasoning:
[W]hile there are definite disease states in the spine at several areas,
there is not sufficient clinical information to establish that these lesions
have caused or are causing significant disorders. There is a rather
marked lack of clinical examination, which may be as noted by the
claimant due to the fact that she has had no money to be seen by doctors,
but I have to feel that if her impairments were as severe as she indicates
that she would have been in emergency rooms or found some way to be
treated. In any case, there is a marked lack of clinical information.8
When asked to identify the functional limitations resulting from claimant’s
impairments, Dr. Dossett stated:
Again, there is a lack of information on which to base the answer
to this question; however, Dr. Lowry stated “her ability to sit, stand,
walk, lift, carry, bend, squat and kneel may be somewhat impaired by
spine pain complaint. Her ability to reach, see, hear, speak, understand,
and manipulate small objects is unimpaired.” This would appear to be
correct from the record available. In my opinion, she probably would
have difficulty walking as much as four hours or standing as much as
four hours in a work day, but sitting should not be severely or
significantly limited. Reaching and handling should not be significantly
impaired, except possibly to a slight degree with the left upper extremity.
Stooping, climbing, crawling, or crouching might well be significantly
limited. There really is a lack of clinical findings to justify a conclusion
of severe limitation.9
Dr. Dossett also testified during the second administrative hearing, which was
conducted on September 6, 2012.10 He acknowledged that plaintiff suffered from
medical conditions that were capable of causing pain, but he nonetheless concluded
Tr. 727 (alteration supplied).
See Tr. 32.
that the objective medical records that he reviewed did not indicate a disabling level
of symptoms as alleged by claimant.11 However, Dr. Dossett had not reviewed Dr.
Anderson’s report, because it was not included in the records that had been provided
to him.12 Dr. Dossett acknowledged, upon questioning by claimant’s attorney, that a
physician who has examined a patient normally is in a better position to give an
opinion about that patient’s medical condition than a physician who had not examined
the patient, and that, due to Dr. Anderson’s field of specialty, his findings would have
been “very pertinent.”13
The ALJ recognized that Dr. Dossett had not reviewed Dr. Anderson’s records
or opinion. Even so, the ALJ assigned great weight to Dr. Dossett’s opinion,
reasoning that it was
consistent with the ability to perform at least sedentary work. For
example, Dr. Dossett found that the claimant would be capable of sitting
without limitation throughout the day and would be able to stand and
walk for up to four hours each in an eight hour day. He further
concluded that there was a lack of clinical findings to justify a
conclusion of severe limitation. Dr. Dossett’s opinions are clearly
consistent with the records as a whole and specifically the consistently
normal physical examination findings during visits to her doctors.14
Claimant asserts that the ALJ erred by affording more weight to Dr. Dossett’s
opinion than to Dr. Anderson’s, because Dr. Dossett, unlike Dr. Anderson, never
examined claimant. Claimant makes much of Dr. Dossett’s acknowledgment during
the administrative hearing that an examining physician generally is in a better position
to offer an opinion about a patient’s condition than a non-examining physician. But
that acknowledgment does nothing but echo the general rule set forth in the
regulations cited above. Despite that general rule, an ALJ can assign more weight to
a non-examining physician’s assessment if that assessment is more consistent with the
record as a whole. That is what the ALJ did here, and his conclusion was supported
by substantial evidence.
It is true that MRI results indicated that claimant suffered from various
abnormalities of the spine. A February 28, 2011 MRI revealed disc space narrowing
at C5-C6 with disc extrusion, slight posterior central protrusion and annular tear at T7T8, very small far right paracentral protruded disc at L2-L3, mild disc bulging with
no protruded disc at L4-L5, and mild to moderate broad-based disc bulging at L5-S1.15
An August 22, 2011 MRI revealed a disc protrusion at T7-T8, a disc herniation at C5C6, broad-based disc protrusion at L5-S1, and small disc herniation at L2-L3.16 Dr.
Scholl, claimant’s treating orthopedic physician, stated on September 19, 2011, that
one of her disc protrusions caused cord compression.17 A February 9, 2012 MRI
Tr. 515. Dr. Scholl stated that the cord compression was caused by “sizable central disc
protrusion noted at 4-5.” Id. It is unclear whether that was a reference to claimant’s lumbar,
thoracic, or cervical spine.
At L5-S1 there is broad-based disc bulge. There is no disc
herniation or spinal stenosis. The neural foramen are narrowed
bilaterally. There is bilateral facet hypertrophy and degenerative change.
There is disc desiccation. There [are] endplate degenerative changes.
At L4-L5 there is broad-based disc bulge. There is disc
dessication. There is bilateral facet hypertrophy. The neural foramen are
slightly narrowed bilaterally.18
It is apparent from these objective findings that claimant suffers from
impairments of her spine. Even so, the mere existence of those impairments does not
necessarily mean that claimant is disabled. Instead, the relevant consideration is the
effect of claimant’s impairment, or combination of impairments, on her ability to
perform substantial gainful work activities. See 20 C.F.R. § 404.1505 (defining a
disability as “the inability to do 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”). See also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (“The
[Social Security] Act ‘defines “disability” in terms of the effect a physical or mental
impairment has on a person’s ability to function in the workplace.’”) (quoting Heckler
v. Campbell, 461 U.S. 458, 459-60 (1983)).
There is little evidence of significant functional limitations caused by claimant’s
Tr. 705 (alteration supplied).
spinal problems. The most significant clinical findings were from Dr. Scholl’s July
23, 2012 examination, when he noted limited cervical range of motion, limited lumbar
flexion and extension, and a positive straight leg raise test on the left with
reproduction of pain down that leg.19 Dr. Dossett addressed the positive straight leg
raise test, but he did not find it to be particularly significant because it was the only
serious neurological finding in the record. Indeed, he stated that, even considering the
straight leg raise test, claimant’s allegations of severe, disabling pain were more
severe than should be expected from a review of the medical evidence.20 The
remainder of the clinical findings are relatively unremarkable, reflecting normal gait,
good muscle strength, intact sensation, and good, if not full, range of motion.21
In summary, the ALJ was entitled by law to credit Dr. Dossett’s opinion over
Dr. Anderson’s, and his decision to do so was supported by substantial evidence.
The ALJ found that claimant had the residual functional capacity to perform a
full range of work at the sedentary exertional level.22 Because claimant did not have
any additional, non-exertional impairments, the ALJ found claimant to be not disabled
See Tr. 460-62, 464, 468-69, 514, 517, 712, 735, 738, 746.
under Medical-Vocational Rule 201.21,23 which mandates such a finding for a
younger individual age 45-49, who has a high school education or more, who has no
transferrable skills from her skilled or semi-skilled background, and who is limited to
sedentary work as a result of severe medically determinable impairments. See 20
C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.21.
Claimant argues that the ALJ should have considered her pain and hand
numbness to be additional, non-exertional impairments that render her unable to
perform a full range of sedentary work, and that the ALJ consequently was obligated
to present a hypothetical question to the vocational expert to determine whether there
were jobs available in significant numbers in the national economy that claimant could
perform. Contrary to claimant’s suggestion, just because the ALJ found that claimant
was able to perform a full range of sedentary work does not mean that he did not
consider claimant’s non-exertional impairments. To the contrary, the administrative
opinion reflects that the ALJ did thoroughly consider claimant’s complaints of pain
and other subjective symptoms, and he accommodated claimant’s symptoms by
limiting her to only sedentary work.
The ALJ acknowledged that claimant’s
medically determinable impairments could reasonably be expected to cause the
symptoms she alleged, but he nonetheless found that claimant’s statements concerning
Tr. 22 (“Because the claimant has the residual functional capacity to perform the full range
of sedentary work, considering the claimant’s age, education, and work experience, a finding of ‘not
disabled’ is directed by Medical-Vocational Rule 201.21.”).
the intensity, persistence and limiting effects of her symptoms were not credible to the
extent they were inconsistent with a residual functional capacity to perform a full
range of sedentary work.24 That decision was supported by substantial evidence.
Conclusion and Order
Consistent with the foregoing, the court concludes the ALJ’s decision was
based upon substantial evidence and in accordance with applicable legal standards.
Accordingly, the decision of the Commissioner is AFFIRMED. Costs are taxed
against claimant. The Clerk is directed to close this file.
DONE this 17th day of December, 2013.
United States District Judge
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