Frazier v. Astrue

Filing 18

MEMORANDUM AND OPINION 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, as further set out. Judgment will be entered by separate Order. Signed by Magistrate Judge Bert W. Milling, Jr on 11/29/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANGELA C. FRAZIER,

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

CIVIL ACTION 11-0224-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 11).
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. 17).
argument was waived in this action (Doc. 16).

Oral

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
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substitute its judgment for that of the Secretary of Health and
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).
At the time of the most recent administrative hearing,
Plaintiff was forty-five years old, had completed one year of
trade school after high school (Tr. 96), and had previous work
experience as a cashier, door greeter, and stocker (Tr. 98).

In

claiming benefits, Plaintiff alleges disability due to
degenerative disc disease of the lumbar spine, asthma, and panic
disorder (Doc. 11 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on July 25, 2006 (see Tr. 14, 195).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that she was able to perform her past relevant
work as a cashier or greeter (Tr. 14-20).

Plaintiff requested

review of the hearing decision (Tr. 9-10) by the Appeals
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Council, but it was denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Frazier

(1) The ALJ improperly determined that she did

not have a severe mental impairment; (2) the ALJ improperly
determined that her asthma was not severe; (3) she is unable to
perform light work; and (4) the ALJ did not consider all of the
evidence of record (Doc. 11).

Defendant has responded to—and

denies—these claims (Doc. 12).
Plaintiff first claims that the ALJ improperly determined
that she did not have a severe mental impairment.

More

specifically, Frazier asserts that the error was in not finding
that she suffers from a panic disorder with agoraphobia1 and
depression (Doc. 11, pp. 4-6).
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

1

Agoraphobia means fear of open spaces such as the market, or
agora. This fear involves intense fear and avoidance of any place or
situation where escape might be difficult or help unavailable in the
event of developing sudden panic-like symptoms.
http://blogs.webmd.com/anxiety-and-stress-management/2007/09/fear-andphobias-2-agoraphobia.html

3

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
C.F.R. § 404.1521(a) (2011).2

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.”
On December 9, 2004, Psychologist Annie Formwalt examined
Frazier whose affect was normal and appropriate to content of
thought and conversation; she did not appear anxious, though her
mood was depressed (Tr. 263-65).

Plaintiff was oriented in four

spheres and her thought processes were grossly intact; she had
no loose associations or tangential or circumstantial thinking.
Frazier’s insight, understanding of herself, and judgment were

2

"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."

4

good; intelligence was considered average.

Formwalt’s

impression was panic disorder without agoraphobia; it was
thought that Plaintiff would respond well to six-to-twelve
months of treatment.
Evidence from the Mobile County Health Department shows
that Frazier was prescribed Zoloft3 on November 7, 2004 for
depression (Tr. 270; see generally Tr. 266-76).
Records from the Mostellar Medical Center note Plaintiff’s
prescription for Zoloft and Wellpax for depression on March 3,
(Tr. 369-70; see generally Tr. 354-418, 453-64).4

2008

Frazier

was advised to quit taking one of them because they both had
seratonin which was potentially life threatening (Tr. 369-70);
later records reveal she quit taking the Zoloft (Tr. 363).
Plaintiff’s doctor, on April 24, 2008, characterized her as “in
somewhat mild distress” (Tr. 364); on the next visit, Frazier
was said to be anxious and self-reporting increased anxiety
episodes (Tr. 361).

On July 11, 2008, Plaintiff was prescribed

BuSpar for increased anxiety (Tr. 357); she was noted to be in
no acute distress at her appointment two weeks later (Tr. 355).
On August 15, Frazier was noted to be in mild distress; she was

3

Error! Main Document Only.Zoloft is “indicated for the treatment
of depression.” Physician's Desk Reference 2229-34 (52nd ed. 1998).
4
The Court notes that this is the first mention of depression—or

5

prescribed Effexor5 and her Xanax6 prescription was continued
(Tr. 464).

Plaintiff was examined several times through March

16, 2009 and, although anxiety prescriptions were continued,
there is no other treatment mentioned and no indication that the
anxiety limited Frazier in any way (see Tr. 453-63, 476-88).
In his decision, the ALJ specifically found that Plaintiff
did not have a mental impairment (Tr. 18).

He discounted the

report of Psychologist Formwalt as “inconsistent with the
claimant’s own description of her social life, daily functioning
and concentration abilities” (Tr. 18).

The ALJ also noted that

although Frazier took an antidepressant, it was prescribed by
her treating physician and she received no psychotropic
medications (id.).

Lastly, the ALJ noted that Plaintiff

presented no allegations of a mental impairment at the hearing
(id.).
The Court finds substantial support for the ALJ’s
conclusion that her mental impairment is not severe.

Frazier

has failed to point to anything in the record indicating that
her anxiety would impair her ability to work, as required in

any sort of mental impairment—in these records, though they date from
June 27, 2006).
5
Error! Main Document Only.Effexor is used “for the treatment of
depression. Physician's Desk Reference 3037 (52nd ed. 1998).
6
Error! Main Document Only.Xanax is a class four narcotic used
for the management of anxiety disorders. Physician's Desk Reference

6

Brady, McCruter, and SSR 96-3p.

Plaintiff’s claim is without

merit.
Plaintiff next claims that the ALJ improperly determined
that her asthma was not severe (Doc. 11, pp. 6-8).

As it has

already set out the law regarding the examination of a severe
impairment, the Court will proceed directly to the evidence.
Records from the Mobile County Health Department
demonstrate that Plaintiff was prescribed medications for her
asthma as early as 2004, though on December 20, 2004, it was
characterized as stable (Tr. 268; see generally Tr. 266-76).
Records from the Bayou La Batre Area Health Clinic show
that, when examined on November 1, 2004, Frazier had no wheezes,
crackles, or rhonchi and her lungs were clear to auscultation
bilaterally (Tr. 307).

Plaintiff reported that her asthma had

been worse recently and that she had not been on an inhaled
steroid; she was given some medication and told to use her
Albuterol7 as needed (id.).

On April 15, 2005, examination

results were the same as the November 2004 examination; asthma
samples were given to Frazier (Tr. 305).

The doctor, on June

2294 (52nd ed. 1998).
7
Error! Main Document Only.Albuterol is the generic name for an
inhalation aerosol use to prevent and relieve “bronchospasm in
patients with reversible obstructive airway disease, and for the
prevention of exercise-induced bronchospasm.” Physician's Desk
Reference 2656 (52nd ed. 1998).

7

21, 2005, noted that there was “no evidence of exacerbation of
her asthma” (Tr. 300); likewise, the medical records indicate no
asthmatic problems on August 11, 2005, March 8, 2006, or June
22, 2006 (Tr. 292-294, 299).
Infirmary West Hospital records show that Plaintiff was
admitted for an overnight stay on December 16, 2006 because of
increased shortness of breath and wheezing (Tr. 339-52).

She

was placed on steroids and bronchodilator medication and given
oxygen; she was discharged in stable condition.
Records from Mobile Infirmary show that Frazier received
breathing treatments on January 18 and April 13, 2008 (Tr. 41936).

On both occasions, breathing improved.
On September 10, 2008, Dr. Michelle S. Jackson examined

Plaintiff and specifically noted that her lungs were clear and
there was no wheezing (Tr. 437-51).

The lungs were clear to

auscultation bilaterally; Frazier was having no difficulty
breathing at that time.

Though Dr. Jackson listed asthma as the

first of her six ailments, the doctor specifically stated the
following:

There is no evidence to support that
[Frazier] has severe asthma. She has not
had multiple ER visits. Last time she
states she was in the hospital was last year
for asthma. She was not wheezing on exam
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today, and her PFT’s were completely normal.
. . . She states that people wearing perfume
cause her to have violent asthma attacks,
but I was wearing perfume today and she did
not wheeze, sneeze, or have any kind of
reaction to that whatsoever. In conclusion,
based on her exam today, her scanty medical
records, and history, I do not see any
reason patient should be granted disability.
Of course her job should have some
restrictions, no fumes or allergen exposure,
etc., or they should be kept at a minimum
due to patient’s asthma history.

(Tr. 439).
Plaintiff was seen at the Mostellar Medical Center on
October 13, 2008 for acute bronchitis; she was noted to have
mild rhonchi at the posterior base of her lung fields, though
there was no appreciative wheezing (Tr. 461-63).

Two weeks

later, Frazier was wheezing and diagnosed to have acute asthma
exacerbation (Tr. 459-60).

Plaintiff was examined on December

18, 2008 for neck pain and cellulitis; there was no mention of
asthma-related symptoms (Tr. 456).
On December 10, 2008, Frazier was seen at Infirmary West
following a motor vehicle accident (Tr. 472-75).

Wheezing was

noted, although a chest x-ray showed the lungs to be clear and
well-expanded; there was no acute pulmonary or pleural disease.
In his decision, the ALJ found that Plaintiff’s asthma was
not severe (Tr. 17).

More specifically, he stated that her
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“asthma is very intermittent and sporadic, and exacerbated by
extreme fumes, and gases, but controlled with medication” (Tr.
19).

The ALJ noted that this conclusion was verified by Dr.

Jackson’s pulmonary function study.
The Court finds the ALJ’s conclusion to be supported by
substantial evidence.

Frazier has failed to direct this Court’s

attention to evidence which would show that her asthma would
impair her ability to work, other than on an occasional basis,
as required in Brady, McCruter, and SSR 96-3p.

Plaintiff’s

claim otherwise is without merit.
Frazier next claims that she is unable to perform light
work (Doc. 11, pp. 8-10).

The ALJ found that Plaintiff could

perform a full range of light work except for frequent exposure
to dust, fumes or gases because of her asthma (Tr. 17).
Light work has been defined as follows:

Light work involves lifting no more than 20
pounds at a time with frequent lifting or
carrying of objects weighing up to 10
pounds. Even though the weight lifted may
be very little, a job is in this category
when it requires a good deal of walking or
standing, or when it involves sitting most
of the time with some pushing and pulling of
arm or leg controls. To be considered
capable of performing a full or wide range
of light work, you must have the ability to
do substantially all of these activities.
If someone can do light work, we determine
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that he or she can also do sedentary work,
unless there are additional limiting factors
such as loss of fine dexterity or inability
to sit for long periods of time.

20 C.F.R. § 404.1567(b) (2011).
As support for her argument, Frazier points to a medical
source opinion form completed by Dr. Jackson in which she
indicated that Plaintiff should never lift more than ten pounds
(Tr. 441).

In the narrative concluding remarks, though, Dr.

Jackson stated that Frazier “stated during the exam she cannot
lift more than 10 lbs, and I do not know who put that
restriction on her but she appears to go about her daily
activities, laundry, cooking, driving, without any problems”
(Tr. 439).

The ALJ noted this statement and found that

Plaintiff was not restricted to ten pounds (Tr. 19).

He also

based this opinion on the narrative statement by Dr. Andre
Fontana that Plaintiff “could do no lifting over 10-20 pounds”
(Tr. 466).8
Frazier has also pointed at Dr. Fontana’s PCE in which he
indicated that Plaintiff could sit, stand, and walk for only one
hour, each, at a time; he further indicated that she could walk

8

The Court notes, however, Fontana’s physical capacities
evaluation (hereinafter PCE) in which he indicated that Frazier should
never lift or carry more than ten pounds (Tr. 467). The Court, like

11

four, stand six, and sit for eight hours during an eight-hour
day (Tr. 467).

Frazier has argued that this goes against Social

Security Ruling 83-10, but the Ruling specifically states that
“the full range of light work requires standing or walking, off
and on, for a total of approximately 6 hours of an 8-hour
workday.
time.”

Sitting may occur intermittently during the remaining

SSR 83-10.

Dr. Fontana’s report supports this ability.

The Court notes that the Vocational Expert testified that
Plaintiff was capable of performing her past work as a cashier
and greeter with the limitations found by Drs. Fontana and
Jackson (Tr. 118-21).

The ALJ reached his decision based on

this testimony (Tr. 19).

The Court finds substantial support

for the ALJ’s conclusion that she can return to these past jobs.
Finally, Plaintiff argues that the ALJ did not consider all
of the evidence of record.

More specifically, Frazier claims

that the ALJ failed to properly consider a prior administrative
decision, by a different ALJ, in which different decisions were
reached (Doc. 11).

As support for this claim, Plaintiff has

directed the Court to social security regulations which state
that the ALJ “must base the decision on the preponderance of the
evidence offered at the hearing or otherwise included in the

the ALJ, though, chooses to find that the narrative statement is more

12

record.”

20 C.F.R. § 404.953(a) (2011).

The Court has reviewed the prior administrative decision,
entered on June 30, 2006 (Tr. 142-57), and compared it to the
present decision and notes the conflicts pointed to by Frazier.
While it cannot say why the former ALJ reached the particular
decisions made at that time, the Court, nevertheless, finds
substantial support for the conclusions reached in the current
decision.

Plaintiff has not convinced this Court that she has a

severe mental impairment, that her asthma is a severe
impairment, or that she is unable to perform light work or her
past previous work as a greeter or cashier.
Upon consideration of the entire record, the Court finds
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."

Perales, 402 U.S. at 401.

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 29th day of November, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
likely the doctor’s opinion as opposed to the fill-in-the-box answers.

13