Nix v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 10/30/13. (SAC )
2013 Oct-30 PM 04:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
STEPHEN RICHARD NIX,
MICHAEL J. ASTRUE,
Civil Action No.: 6:11-CV-04327-KOB
On April 9, 2009, the claimant, Stephen Richard Nix, applied for disability insurance
benefits under Title II of the Social Security Act. The claimant alleges disability commencing
on March 4, 2009 because of injuries from a scaffolding accident. The Commissioner denied the
claim both initially and on reconsideration. (R. 11, 14). The claimant filed a timely request for a
hearing before an Administrative Law Judge, and an ALJ, Jerome L. Munford, held a hearing on
February 16, 2011. (R. 37). In a decision dated June 20, 2011, the ALJ found that the claimant
was not disabled as defined by the Social Security Act and, thus, was ineligible for disability
insurance benefits. (R. 20). On October 21, 2011, the Appeals Council denied the claimant’s
request for review; consequently, the ALJ’s decision became the final decision of the
Commissioner of the Social Security Administration. (R. 1-3). The claimant has exhausted his
administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
For the reasons stated below, this court AFFIRMS the decision of the
II. ISSUE PRESENTED
The claimant presents the following issue for review: whether the ALJ properly weighed
the opinions of the claimant’s treating physicians.
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence.
See 42 U.S.C. § 405(g);
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
The court must “scrutinize the record in its entirety to determine the reasonableness of
the [Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court may not
look only to those parts of the record that support the decision of the ALJ, but instead must view
the record in its entirety and take account of evidence that detracts from the evidence relied on
by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person cannot “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.” 42
U.S.C. § 423(d)(1)(A). To make this determination, the Commissioner employs a five step,
sequential evaluation process:
(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."
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.
When evaluation different medical opinions, the ALJ should “state with particularity the
weight he gave the different medical opinions and the reasons therefor.” Sharfarz v. Bowen, 825
F.2d 278, 279 (11th Cir. 1987) (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986)). “In the absence of such a statement, it is impossible for a reviewing court to determine
whether the ultimate decision on the merits of the claim is rational and supported by substantial
evidence.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011) (quoting
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)).
The Commissioner normally must give substantial weight to the opinions of a treating
physician. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1998). To discount the opinion of a
treating physician, the Commissioner must provide good cause. Id. Good cause exists if the
physician's opinion is not supported by evidence; the evidence supports a contrary finding; the
physician's opinion is conclusory; or the physician's opinion is inconsistent with the doctor's own
medical records. Phillips v. Barnhart, 357 F.3d 1232, 1240–41 (11th Cir. 2004) (citing Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); 20 C.F.R. § 404.1527.
The claimant is a high school graduate and was forty-three years old at the time of the
administrative hearing. He has past work experience as a construction worker. (R. 44). The
claimant originally alleged disability from a broken right ankle. (R. 207). Later medical records
indicate the claimant also suffered from degenerative disc disease. (R. 14). These injuries stem
from an on-the-job construction accident. (R. 48).
On March 4, 2009, the claimant was injured when a scaffold turned over and fell on him.
Reports from the hospital indicated a distal tibia and fibula fracture. (R. 307-09). Dr. David B.
Griffin performed an open reduction internal fixation of the distal fibula with application of a
spanning external fixator to the right distal tibia. On March 23, 2009, Dr. Griffin removed the
external fixator from the right distal tibia and performed an open reduction internal fixation of
the distal tibia. (R. 316-19). In all, the claimant had about thirty screws and two plates put in his
ankle. (R. 50). On August 13, 2009, Dr. Griffin opined that the claimant could work at a
sedentary job level. He further stated that the claimant “hopefully may be able to return to his
prior work activities.” (R. 321).
On January 18, 2010 in a follow-up, Dr. Griffin reported that the claimant’s ankle
fracture was “apparently” healed; that the hardware remained functioning and intact; and that
there was no evidence of migration or loss of fixation. Overall, Dr. Griffin concluded that the
claimant’s condition was “congruent with very minimal residual posttraumatic degenerative
changes.” Dr. Griffin also stated that the claimant could continue working at a sedentary level.
On March 22, 2010, Dr. Griffin reported that the claimant had continued pain and he was unsure
about removing the ankle’s hardware.
Dr. Griffin stated that he still believed removal would
help with the claimant’s symptoms and decided that the claimant should proceed with a
functional exam. (R. 229-30).
An April 9, 2010 Functional Capacity Evaluation of the claimant indicated he was
capable of medium level work.
It further estimated that, using the AMA Guides to the
Evaluation of Permanent Impairment, the claimant had only a seven percent whole-person
impairment. (R. 453-54). On May 3, 2010, Dr. Griffin agreed with this assessment and stated
he would release him to full activity as outlined by the functional capacity exam. (R. 345).
However, on November 4, 2010 in a sworn statement, Dr. Griffin stated this rating did not
include the claimant’s back condition. (R. 339). He also stated that the claimant’s limp may
exasperate his back condition but he would defer to Dr. Prevost’s opinion as to the back
condition’s effect on the claimant. (R. 340-41).
On September 4, 2009, Dr. Mark A. Prevost began treating the claimant for his back
pain. Dr. Prevost stated that the claimant had been complaining about his back pain since his
accident. Dr. Prevost noted mild degenerative changes and some loss of disc space height from
the claimant’s lumbar spine x-rays. He also reported that the claimant rated his back pain
anywhere from a three to a nine on a one-to-ten scale. (R 235).
On September 21, 2009, the claimant returned to Dr. Prevost after an MRI of the lumbar
spine. Dr. Prevost noted that the MRI indicated a central disc herniation, disc protrusion on the
left side, and an extended fragment on the right side that could possibly give the claimant
radicular symptoms. Because the claimant reported significant improvement, Dr. Prevost only
discussed the possibility of epidural steroid injections, returned the claimant to “full duty” and
recommended no additional treatment. However, on September 29, 2009, the claimant called to
report pain on his left side and to request the injections. (R. 234, 244). On October 8, 2009, Dr.
Prevost referred the claimant to Dr. Kevin Greene for the lumbar epidural steroid injections. (R.
294). On November 6, 2009, Dr. Prevost noted that the injections did not “really help much” but
still continued the claimant on “full duty.” (R. 387).
On November 17, 2010, Dr. Prevost scheduled another MRI scan of the lumbar spine
because of “worsening radicular symptoms.” On November 24, 2010, Dr. Prevost compared the
second MRI scan to the previous, September 2009 scan. He reported “significant worsening
lumbar spondylosis” and minimal changes in the level of stenosis. He opined that the claimant’s
worsening condition would make him a candidate for disability. (R. 390-91). Dr. Mark Roberts,
a radiologist, also compared the claimant’s September 2009 exam with the November 2010
exam. Dr. Roberts, however, reported “no change” between the two MRI scans. (R. 447-48).
On January 28, 2011, Dr. Prevost was deposed in connection with the claimant’s
worker’s compensation claim. Dr. Prevost testified that he believed the claimant experienced
chronic pain. (R. 369). He testified that the pain in his back and ankle would likely prevent him
from “find[ing] any kind of gainful employment.” (R. 374). However, he stated that the
claimant might be able to perform a “desk job.” (R. 376). He also reiterated his opinion that the
November 2010 MRI appeared significantly worse than the September 2009 MRI. (R. 372).
On September 3, 2009, Dr. Anthony C. Pitts conducted a Physical Residual Functional
Capacity Assessment and determined that the claimant could occasionally lift fifty pounds;
frequently lift twenty-five pounds; stand and/or walk for six hours in an eight hour work day;
and sit for six hours in an eight hour work day. (R. 322-23).
The ALJ Hearing
After the Commissioner denied the claimant’s request for disability insurance benefits,
the claimant requested and received a hearing before an ALJ. (R. 7, 39). At the hearing, the
claimant testified that pain in his lower back and right leg was a seven out of ten. He stated this
was the average level of pain but that sometimes his back became so painful he could not even
stand up. He further testified that the pain prevented him from sitting or standing for long
periods of time; made it difficult to walk for any significant distance; and caused him to walk
with a limp. (R. 53-55).
The claimant testified that on a typical morning it would take about two hours to work
the stiffness out of his ankle. He also stated that because of the pain he would lie down for a total
of three hours on an average day. (R. 57-58). He testified that on a typical day he would play
the guitar for three hours after the kids went to school. Sometimes, he stated, he would go to the
store for refreshments. (R. 70).
A vocational expert, Mr. Dan Kinard, then testified as to the type and availability of jobs
that the claimant could perform. The ALJ asked Mr. Kinard about a hypothetical individual who
was restricted to occasional bending and stooping; no right lower extremity pushing or pulling;
even surfaces and terrains; and a temperature controlled environment. He further stated that this
individual should be permitted to sit and/or stand. (R. 76). Mr. Kinard stated that such an
individual would not be able to work as a construction worker, the claimant’s past relevant work
experience. (R. 79). But Mr. Kinard testified that such an individual could perform sedentary
work. He cited small parts inspector, semi-conductor bonder, and optical goods polisher as jobs
that the claimant could perform and that exist in significant number in the national economy. (R.
The ALJ next asked Mr. Kinard about the limitations pain would impose on such an
individual. Mr. Kinard first described his “pain scale” as one to three indicating mild pain, four
to six indicating moderate pain, seven to nine indicating moderately severe pain, and ten
indicating severe pain.
Mr. Kinard then opined that if the ALJ determined the claimant
experienced moderately severe pain he would be incapable of working.
however, “would not preclude employment necessarily.” (R. 79).
The ALJ’s Decision
On June 20, 2011, the ALJ issued a decision finding the claimant was not disabled under
the Social Security Act. (R. 20). First, the ALJ found that the claimant met the insured status
requirements of the Act. Next, he found that the claimant had not engaged in gainful activity
since the alleged onset of his disability. The ALJ determined that the claimant’s degenerative
disc disease and right distal tibia fracture qualified as severe impairments; however, he
concluded that these impairments did not singly or in combination manifest the specific signs
and diagnostic findings required by the Listing of Impairments. (R. 14).
The ALJ then determined that the claimant had the residual functional capacity (“RFC”)
to perform sedentary work with some extra restrictions. He stated that the claimant would need
a temperature controlled environment with even surfaces and a sit or stand option. (R. 14). In
making this RFC finding, the ALJ considered the claimant’s alleged symptoms but determined
that his objectively determinable medical condition could not reasonably be expected to produce
such symptoms. (R. 17).
The ALJ noted that he afforded significant weight to the opinion of Dr. Griffin as “his
opinion offer[ed] a complete longitudinal view of the claimant’s condition and abilities.” He
attributed minimal weight to the opinion of Dr. Pitts. The ALJ reasoned that Dr. Pitts was a nonexamining physician and based his opinion on an incomplete medical record. The ALJ also
afforded minimal weight to the opinion of treating physician Dr. Prevost. He determined that
Dr. Prevost’s opinion was internally inconsistent and inconsistent with the objective medical
record. (R. 18).
Based on these findings and the testimony of vocational expert Mr. Kinard, the ALJ
determined that the claimant could not perform any of his past relevant work.
considered the claimant’s age, education, work experience, and RFC and determined that the
claimant could perform sedentary level jobs that exist in significant numbers in the national
economy. The ALJ relied on Mr. Kinard’s testimony that the claimant could work as a small
parts inspector, semi-conductor bonder, or optical polisher. Thus, the ALJ concluded that the
claimant retained the capacity for work and is not disabled under the Social Security Act. (R.
The claimant argues that the ALJ did not properly weigh the opinions of Drs. Griffin and
Prevost. To the contrary, this court finds that the ALJ properly weighed those opinions and
substantial evidence supports his decision.
The ALJ must specifically state the weight given to different medical opinions. Sharfarz
v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (citing MacGregor v. Bowen, 786 F.2d 1050, 1053
(11th Cir. 1986)). In assigning weight, “the testimony of a treating physician must be given
substantial or considerable weight unless good cause is shown to the contrary.” Crawford v.
Comm'r Of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004) (quoting Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997)).
The claimant argues that the ALJ implicitly and improperly rejected portions of Dr.
Specifically, the claimant contends that the ALJ never addressed Dr.
Griffin’s sworn statement “categoriz[ing] the [claimant’s] pain as moderate to severe and
chronic in nature” and, thus, rejected it. (Pl.’s Mem. 13). This argument lacks merit.
In Winschel, the Eleventh Circuit stated:
[T]he ALJ did not discuss pertinent elements of the examining physician's
medical opinion, and the ALJ's conclusions suggest that those elements were not
considered. It is possible that the ALJ considered and rejected [the] medical
opinion, but without clearly articulated grounds for such a rejection, we cannot
determine whether the ALJ's conclusions were rational and supported by
substantial evidence. Accordingly, we reverse.
631 F.3d at 1179 (emphasis added). However, the Eleventh Circuit has also found that harmless
errors regarding the consideration given to a physician’s opinion do not mandate a reversal. See
Shaw v. Astrue, 392 Fed. App'x 684, 687 (11th Cir. 2010) (citing Diorio v. Heckler, 721 F.2d
726, 728 (11th Cir. 1983)). The court stated that “even if the ALJ erred in failing to mention
every finding made by Dr. Muller, any such error was harmless.” Id.
Dr. Griffin’s statement regarding the claimant’s pain does not contradict the ALJ’s
findings. In Dr. Griffin’s sworn statement, Dr. Griffin was asked whether the claimant’s pain
was “at a moderately severe to severe level.” Dr. Griffin responded, “I would say it’s moderate
to severe.” (R. 340). At the hearing, Mr. Kinard testified that “moderately severe pain … would
preclude gainful activity.” (R. 79). While this evidence could rationally be construed to be
favorable to the claimant, it does not directly contradict the ALJ’s assessment. Dr. Griffin
specifically rephrased the question to make it apparent that he believed the claimant suffered
“moderate to severe pain” not “moderately severe to severe pain.” He took special care not to
opine that the claimant suffered moderately severe pain. This statement then does not contradict
the finding that the claimant, in fact, does not suffer moderately severe pain.
Furthermore, the whole of Dr. Griffin’s opinion supports the ALJ’s decision.
example, Dr. Griffin stated that the claimant could work at the sedentary level while he was
“unable to tolerate standing or walking for any prolonged period of time.” (R. 229). This
statement indicates that, at a minimum, he believed the patient could perform at the sedentary
level with his ankle pain. Dr. Griffin also released the claimant to perform medium work only
six months before he gave the sworn statement.
The ALJ specifically referenced these
statements in his decision. (R. 16-17). The ALJ’s discussion of Dr. Griffin’s opinion and
specific statement according it significant weight were sufficient for the court to determine that
substantial evidence supports the Commissioner’s decision.
The ALJ provided an adequate discussion of Dr. Griffin’s opinion, and the omitted
statements do not contradict his conclusion.
Because of this finding, substantial evidence
supports the Commissioner’s decision, and any error in the consideration of Dr. Griffin’s
statements was harmless. See Shaw, 392 Fed. App'x at 687.
The claimant argues that the ALJ improperly rejected Dr. Prevost’s opinion that the
claimant was in chronic pain and could not find gainful employment.1 The court finds that
substantial evidence supports the ALJ’s decision to discredit Dr. Prevost’s opinion.
The court notes that Dr. Prevost’s assertions that the claimant is disabled and unable to find work would not be
binding on the ALJ, even if he had not discredited the testimony. See Wilcox v. Comm'r, Soc. Sec. Admin., 442 Fed.
App'x 438, 440 (11th Cir. 2011) (“[T]he ultimate issue of disability is left to the determination of the Commissioner,
and, thus, a statement by a medical source that a claimant is ‘disabled’ or ‘unable to work’ is not binding on the
ALJ.”); see also 20 C.F.R. § 404.1527 (d)(1) (“A statement by a medical source that you are ‘disabled’ or ‘unable to
work’ does not mean that we will determine that you are disabled.”).
The ALJ has good cause for rejecting a treating physician’s opinion when “the: (1)
treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own
medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (citing Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
In affording Dr. Prevost’s opinion minimal weight, the ALJ stated that his opinion
conflicted with the overall medical record and his own treatment records. The ALJ cited Dr.
Prevost’s conflicting reports as to what activities the claimant could perform and Dr. Roberts’
interpretation of the claimant’s November 2010 MRI. The ALJ noted that Dr. Prevost opined
that the claimant was permanently and totally disabled but, in the same deposition, also stated he
could work a desk job. (R. 18). Other internal inconsistencies in Dr. Prevost’s records could be
explained by his opinion that the November 2010 MRI demonstrated the claimant’s condition
had significantly worsened. (R. 390-91). However, Dr. Roberts reported that the November
2010 MRI revealed “no change” in the claimant’s condition. (R. 448). The ALJ found that this
discrepancy between Dr. Prevost’s and Dr. Roberts’ interpretations of the MRI discredited Dr.
Prevost’s opinion based on it. (R. 18). The internal inconsistencies and contrary evidence in the
record provided good cause for the ALJ to discredit Dr. Prevost’s opinion. Thus, the court finds
substantial evidence supports the ALJ’s credibility determination.
For the reasons stated above, this court concludes that the decision of the Commissioner
is supported by substantial evidence and is to AFFIRMED. The court will enter a separate order
to that effect simultaneously.
DONE and ORDERED this 30th day of October, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?