Kendall v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Judgment will be entered by separate order. Signed by Magistrate Judge Bert W. Milling, Jr on 6/15/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BETINA KENDALL,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 10-0701-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
18).

Oral argument was waived in this action (Doc. 19).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
1

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
thirty-six years old, had completed an eighth-grade education
(Tr. 34), and had previous work experience as a cleaner/
housekeeper and cashier/checker (Tr. 41).

In claiming benefits,

Plaintiff alleges disability due to degenerative disc disease
and major depressive disorder (Doc. 13 Fact Sheet).
The Plaintiff protectively filed an application for SSI on
August 20, 2008 (Tr. 100-06; see Tr. 15).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that Kendall was capable of returning to her past
relevant work as a cleaner/housekeeper (Tr. 15-23).

Plaintiff

requested review of the hearing decision (Tr. 10) by the Appeals
Council, but it was denied (Tr. 1-4).
2

Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Kendall

(1) The ALJ improperly determined that her mental

impairments were not severe; and (2) the ALJ’s determination of
her residual functional capacity (hereinafter RFC) is not
supported by the evidence (Doc. 13).

Defendant has responded

to—and denies—these claims (Doc. 14).

The medical evidence of

record follows.
Medical notes from Dr. Stanley Barnes, from July 2, 2002
through January 13, 2004, show that he treated her for various
routine medical ailments (Tr. 161-74).

Included among the

complaints were anxiety, low back pain, arthralgias and
myalgias, lumbosacral strain, osteoarthritis, and depression for
which he prescribed Lortab,1 Xanax,2 Valium,3 and Wellbutrin.4
Further records from the Barnes Family Medical Associates show
complaints of chronic pain syndrome and depression for which she

1

Lortab is a semisynthetic narcotic analgesic used for “the
relief of moderate to moderately severe pain.” Physician's Desk
Reference 2926-27 (52nd ed. 1998).
2
Xanax is a class four narcotic used for the management of
anxiety disorders. Physician's Desk Reference 2294 (52nd ed. 1998).
3
Diazepam, better known as Valium, is a class IV narcotic which
is used for treatment of anxiety. Physician's Desk Reference 2765-66
(62nd ed. 2008).
4
Wellbutrin is used for treatment of depression. Physician's
Desk Reference 1120-21 (52nd ed. 1998).

3

received a prescription for Paxil5 (Tr. 176-91).
On October 8, 2006, Plaintiff underwent radiographic
testing with the following results:

a normal CT of the brain,

normal chest x-ray, and negative results for the cervical spine
(Tr. 192-93).
Records show that Kendall first became a patient at
Southwest Alabama Mental Health on December 12, 2006 while going
through a divorce; Plaintiff voiced suicidal thoughts, but said
that she had not done anything because of her children (Tr. 206;
see generally Tr. 194-206).

Notes from the days that follow

reveal more suicidal ideation (Tr. 201-05).

On December 18,

Kendall was diagnosed to suffer from recurrent, severe major
depressive disorder; her Celexa6 prescription was increased (Tr.
199).

On January 16, 2007, Plaintiff reported that the

medications had helped her through the holidays, though she
still had episodes of wanting to scratch herself or pull her
hair; the Celexa was continued, but Zyprexa7 was also prescribed
(Tr. 198).

On February 5, Kendall reported that she was feeling

a lot better though she still had anxiety attacks and felt like

5

Paxil is used to treat depression. Physician's Desk Reference
2851-56 (52nd ed. 1998).
6
Celexa is used in treating depression. Physician's Desk
Reference 1161-66 (62nd ed. 2008).
7
Zyprexa is used for the “management of the manifestations of
psychotic disorders.” Physician's Desk Reference 1512 (52nd ed. 1998).

4

life has dealt her a bad hand; Klonopin was added to her medical
regimen8 (Tr. 196).
On February 16, 2007, an MRI, with and without contrast, of
Plaintiff’s brain was performed; results were negative other
than sinusitis (Tr. 208).

An MRI was also done of the lumbar

spine which revealed disc dehydration/degeneration at L1-2, with
mild degenerative bony spurring and mild disc bulging with mild
impingement on the anterior thecal sac (Tr. 209).

Another MRI

of the lumbar spine, performed a month later, revealed the same
findings though it referred to the disc degeneration at L1-2 as
severe and the impingement as mild-to-moderate; there was also
mention of Schmorl’s nodes at L1-2, which had not been
previously mentioned (Tr. 211).

An MRI of the cervical spine,

performed on June 4 revealed a congenital defect which was not
thought to be significantly degenerative (Tr. 212).
Dr. Vijay C. Vyas first saw Kendall on March 2, 2006 for
complaints of lumbar spasm for which he prescribed Naprosyn9 and
Lortab; Vyas continued treating her through November 9, 2009
(Tr. 226-27; see generally Tr. 213-40, 274-89, 293-97).

8

Klonopin is a class four narcotic used for the treatment of
panic disorder. Physician's Desk Reference 2732-33 (62nd ed. 2008).
9
Naprosyn, or Naproxyn, “is a nonsteroidal anti-inflammatory drug
with analgesic and antipyretic properties” used, inter alia, for the
relief of mild to moderate pain. Physician's Desk Reference 2458 (52nd
ed. 1998).

5

Radiographic examination on March 13, 2006 revealed slight
scoliosis and mild osteoarthritic changes in the lumbar spine
with mild changes in the sacroiliac joints as well as a finding
of degenerative disc disease at L1-2; there was also the
possibility of osteopenia or osteoporosis in all examined bones
(Tr. 231).

Medical notes during Vyas’s treatment show that

Plaintiff received treatment for backaches, colds, fever,
migraines, sinusitis, nausea, and several falls for which Vyas
prescribed Lortab, Paxil, Zoloft,10 Ativan,11 Inderal,12 Xanax,
Phenergan,13 Toradol,14 and Robaxin.15
26, 2008 was negative (Tr. 237).

A brain CT scan on June

A note from January 28, 2009

stated that the disability office called and said that Kendall
had told them that she was considering suicide; Plaintiff was
encouraged to go to the emergency room to seek treatment, but
10

Zoloft is “indicated for the treatment of depression.”
Physician's Desk Reference 2229-34 (52nd ed. 1998).
11
“Ativan (lorazepam) is indicated for the management of anxiety
disorders or for the short-term relief of the symptoms of anxiety or
anxiety associated with depressive symptoms.” Its use is not
recommended “in patients with a primary depressive disorder or
psychosis.” Physician's Desk Reference 2516-17 (48th ed. 1994).
12
Inderal “is indicated for the prophylaxis of common migraine
headache.” Physician's Desk Reference 3046-47 (52nd ed. 1998).
13
Phenergan is used as a light sedative. Physician's Desk
Reference 3100-01 (52nd ed. 1998).
14
Toradol is prescribed for short term (five days or less)
Amanagement of moderately severe acute pain that requires analgesia at
the opioid level.@ Physician's Desk Reference 2507-10 (52nd ed. 1998).
15
Robaxin “is indicated as an adjunct to rest, physical therapy,
and other measures for the relief of discomforts associated with
acute, painful musculoskeletal conditions.” Physician's Desk

6

follow-up phone calls revealed that she did not go (Tr. 278).
On her next visit, three weeks later, Vyas encouraged Plaintiff
to seek out mental health treatment (Tr. 278).
On November 4, 2008, Kendall was examined by Psychologist
Robert A. DeFrancisco who found her dysphoric, oriented in five
spheres with intact immediate, recent, and remote memory (Tr.
241-44).

There was no confusion, loose association, tangential,

or circumstantial thinking; insight was fair while general
judgment skills were normal.

The Psychologist’s impression was

that Plaintiff suffered from Major Depressive Disorder and Pain
Disorder.

DeFrancisco noted that Kendall had no motivation, but

did not appear to be malingering; he suggested extensive
psychotherapy and pharmacotherapy and expressed the opinion
that, with appropriate intervention, her prognosis was good.
On January 28, 2009, Plaintiff was seen by Dr. Stephen M.
West who performed a physical examination (Tr. 263-65).

Kendall

had full grip strength bilaterally; full flexion and extension
of both wrists and elbows; full flexion, extension, abduction,
and adduction of both shoulders; full plantar flexion and
dorsiflexion bilaterally; full flexion and adduction of both
knees; and full flexion, extension, abduction, and adduction of

Reference 2428 (52nd ed. 1998).

7

hips bilaterally.

Plaintiff could bend over to ankle level, do

a full squat, and walk with a normal gait; she had full range of
motion in all joints with no contractures or abnormalities.

The

doctor’s assessment was chronic neck and back pain with no
deformities or deficit; hypertension; chronic pain syndrome with
narcotic use; GERD; and major depression; he found no major
abnormalities.

This concludes the medical evidence.

Kendall first claims that the ALJ improperly determined
that her mental impairments were not severe.

Plaintiff

testified that she suffers depression, that she does not like to
be around people, and that she spends a majority of her time in
the bedroom (Tr. (Tr. 39).

She also testified that she takes

anti-depressive medication, but that she could not say that it
helps (Tr. 40).
In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984),
the Eleventh Circuit Court of Appeals held that "[a]n impairment
can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual
that it would not be expected to interfere with the individual's
ability to work, irrespective of age, education, or work
experience."

Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf. 20
8

C.F.R. § 404.1521(a) (2010).16

The Court of Appeals has gone on

to say that "[t]he 'severity' of a medically ascertained
disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality."
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

McCruter

It is also

noted that, under SSR 96-3p, “evidence about the functionally
limiting effects of an individual’s impairment(s) must be
evaluated in order to assess the effect of the impairment(s) on
the individual’s ability to do basic work activities.”
In her decision of April 13, 2010, the ALJ determined that
Kendall’s depression was not a severe impairment as she had not
seen a therapist since February 2007 and was only getting
medications from her treating physician (Tr. 17).

The ALJ

further noted that although Plaintiff had threatened suicide,
she had not gone to the emergency room though encouraged to do
so and admitting that she had transportation to get there (id.).
The ALJ further based her decision on Psychologist DeFrancisco’s
noting that Kendall lacked motivation and finding that she could
improve her situation, but that she would have to make the

16

"An impairment or combination of impairments is not severe if
it does not significantly limit your physical or mental ability to do
basic work activities."

9

effort (id.).

The ALJ specifically found that Kendall’s

testimony was not credible (Tr. 19), a finding not challenged by
Plaintiff in this action.
The Court notes that the Social Security regulations state
that “[i]n order to get benefits, you must follow treatment
prescribed by your physician if this treatment can restore your
ability to work.”

20 C.F.R. 404.1530(a) (2010).

The regulation

goes on to state that “[i]f you do not follow the prescribed
treatment without a good reason, we will not find you disabled
or, if you are already receiving benefits, we will stop paying
you benefits.”

20 C.F.R. § 404.1530(b) (2010); see also Dawkins

v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
Though Kendall is correct in arguing that physicians have
repeatedly noted that she suffered from depression, the record
is devoid of Plaintiff’s attempt to seek help.

Even though

Psychologist DeFrancisco suggested that she needed
psychotherapy, in addition to medication, Kendall has failed to
show that she has sought help.

Her own treating physician, Dr.

Vyas, encouraged Plaintiff to get mental health treatment, but
she did not follow that advice (see Tr. 278).

The Court further

notes that when Plaintiff did seek mental health treatment, for
the short period of time, she reported feeling better.
10

The

Court finds substantial support for the ALJ’s conclusion that
Kendall’s depression is not a severe impairment.
Plaintiff also claims that the ALJ’s determination of her
RFC is not supported by the evidence.

Kendall has argued that

the decision cannot stand because no examining physician
completed a physical capacities evaluation.

Plaintiff

references Coleman v. Barnhart, 264 F.Supp.2d 1007, 1010 (S.D.
Ala. 2003).
The Court notes at the outset that the ALJ is responsible
for determining a claimant=s RFC.

20 C.F.R. ' 404.1546 (2010).

In this action, the ALJ determined that Kendall was capable of
returning to her past relevant work as a cleaner/housekeeper
(Tr. 15-23).

The Court notes that this determination was a

fourth-step determination, unlike the fifth-step determination
of Coleman.

264 F.Supp.2d at 1010 (“This Court has held on a

number of occasions that the Commissioner's fifth-step burden
cannot be met by a lack of evidence, or by the residual
functional capacity assessment of a non-examining, reviewing
physician, but instead must be supported by the residual
functional capacity assessment of a treating or examining
physician”).

Therefore, Coleman is inapplicable here.

Furthermore, the Court notes that although Dr. West did not
11

complete a physical capacities evaluation, he found no physical
reason that Plaintiff could not work (see Tr. 263-65).

Kendall

has failed to point to any medical evidence of record which
demonstrates that she cannot do her past work, much less any
work at all.

The Court notes that it is Plaintiff’s burden to

prove that she cannot perform her past relevant work.

Macia v.

Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (citing Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985)).

Kendall’s claim

that the ALJ did not properly determine her RFC lacks merit.
Plaintiff has raised two claims in this action.
without merit.

Both are

Upon consideration of the entire record, the

Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
at 401.

Perales, 402 U.S.

Therefore, it is ORDERED that the Secretary's decision

be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th
Cir. 1980), and that this action be DISMISSED.

Judgment will be

entered by separate order.
DONE this 15th day of June, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

12