Tabb v. Astrue
MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 1/24/2012. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ANGELA M. TABB,
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
CIVIL ACTION 11-0287-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (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. 19).
argument was waived in this action (Doc. 18).
consideration of the administrative record, the memoranda of the
parties, and oral argument, 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
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
Richardson v. Perales, 402 U.S. 389, 401 (1971).
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 administrative hearing, Plaintiff was
forty-one years old, had completed a high school education and
was certified as a nurse’s aide (Tr. 59), and had previous work
experience as a nurse’s aide (Tr. 70).
In claiming benefits,
Plaintiff alleges disability due to degenerative disc disease of
the lumbar spine, sarcoidosis, hypertension, obesity, and
osteoarthritis (Doc. 13 Fact Sheet).
The Plaintiff filed a protective application for disability
benefits on October 12, 2007 (see Tr. 18; Tr. 101-08).
were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that although she could not perform her
past relevant work, Tabb was able to perform specified sedentary
jobs (Tr. 18-29).
Plaintiff requested review of the hearing
decision (Tr. 11-13) by the Appeals Council, but it was denied
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Tabb alleges
(1) The ALJ did not properly consider the opinions of her
treating physicians while giving greater weight to a non-medical
source; and (2) the ALJ did not properly evaluate her obesity
Defendant has responded to—and denies—these claims
The relevant medical evidence of record follows.
Treatment notes from Tabb’s treating physician, Dr.
Jonathon E. Yoder, include an electrocardiogram from November
15, 2006 which revealed the following:
1. Normal left ventricular size and function
with a LVEF of 65% with preserved wall
2. Mild concentric left ventricular
3. Evidence for diastolic dysfunction and
left ventricular relaxation abnormality with
E/A ratio of 0.72 on mitral inflow profile.
4. Trivial mitral regurgitation.
5. Trace mild tricuspid regurgitation with
an estimated RV systolic pressure of 30 to
35 mm of mercury suggesting very mild
(Tr. 206; see generally Tr. 200-21).
A chest x-ray on December
11, 2006 demonstrated persistent nodular interstitial lung
disease consistent with sarcoidosis1 (Tr. 205).
“Sarcoidosis is a disorder resulting in noncaseating granulomas
A Dexa scan on June 19, 2007 demonstrated that, for her age
and sex, Tabb’s lumbar spine and hip showed significantly
decreased bone mineral density (Tr. 236).
An MRI from September
11, 2007 revealed degenerative disc disease with a small
extruded disc fragment at L5-S1 abutting and displacing the S1
nerve root as well as mild early changes of degenerative disc
disease at L4-5 (Tr. 235).
On October 2, Plaintiff underwent an
epidural steroid injection for low back pain with radicular pain
to the left foot (Tr. 251).
Records from Dr. James E. Fay, a Pulmonologist, show that
he treated her beginning in October 2001 (Tr. 252-310).
examination on December 11, 2006 reveals that Tabb’s sarcoidosis
is at Stage II (Tr. 257).
The doctor noted that “she continues
to have a chronic, bronchitic cough associated with a pack a day
smoking habit;” it was his opinion that “most of her respiratory
symptoms are due to her smoking and not her sarcoid” (Tr. 257).
Following a pulmonary function study, Fay noted that Plaintiff
had only 59 percent of total lung capacity, down from 63% a year
He noted no obstructive impairments though there were
some minor interstitial markings in the bases and somewhat
in one or more organs and tissues; etiology is unknown. The lungs and
lymphatic system are most often affected, but sarcoidosis may affect
any organ.” See http://www.merckmanuals.com/professional/pulmonary_
prominent hilar area.
Her oxygen rate was 98 percent.
Fay’s examination of June 18, 2007, he stated that Tabb was
about one hundred pounds overweight, and although she had had a
recent bout of coughing and hoarseness because of her COPD, she
was in no acute distress; her chest was clear, with normal
breath sounds, and without rales or rhonchi (Tr. 256).
doctor stressed that it was “absolutely vital that she quit
smoking as the sarcoid has caused significant damage to her
lungs” (Tr. 256).
On July 10, 2007, Fay noted that pulmonary
function studies and chest x-ray showed a significant increase
in her interstitial prominence in both lungs, consistent with
relapse and progression of her sarcoidosis (Tr. 254).
doctor noted that she was in no acute distress and that oxygen
intake was 97 percent; Plaintiff was to be treated with
On October 17, Fay noted that Tabb was still
smoking even though she had been given a prescription for
Chantix;2 she was currently experiencing shortness of breath and
a chronic, bronchitic cough (Tr. 253).
studies showed a forced vital capacity of 54 percent with a
total lung capacity of 58 percent and a DLCO of 51 percent which
was “consistent with a total and permanent disability from a
respiratory standpoint” (Tr. 253).
Dr. Fay strongly counseled
Tabb to quit smoking.
Treatment notes from Orthopedic Surgeon James L. West, III
show that he has seen Plaintiff intermittently for over ten
years (Tr. 311-23).
On September 24, 2007, Tabb was seen for
complaints of pain in the lower back, left buttock, and leg as
well as some left scapular symptoms; the doctor noted lumbar
spasm and tenderness with pain on forward flexion.
And MRI and
x-rays showed degenerative changes with moderate herniation at
L5-S1 (Tr. 313).
On February 12, 2008, a physical residual functional
capacity (hereinafter RFC) assessment was completed by Sheila
Brody with the Social Security Administration indicating that
Tabb was able to lift and or carry ten pounds occasionally and
less then ten pounds frequently; she would be able to stand or
walk for two hours and sit about six hours during an eight-hour
workday (Tr. 344-51).
an unlimited basis.
She could use hand and foot controls on
It was her opinion that Plaintiff would be
able to balance frequently, climb stairs, stoop, kneel, crouch,
Chantix is used as an aid to smoking cessation treatment.
Error! Main Document Only.Physician's Desk Reference 2494-95 (62nd ed.
and crawl occasionally, but could never climb a ladder.
On March 12 and April 21, 2008, Dr. Yoder prescribed
inhalers and gave Tabb medication samples (Tr. 252).
On April 28, Dr. West noted that Plaintiff was still having
back symptoms; he prescribed Mobic,3 Tylenol #3,4 and Soma5 (Tr.
Dr. Fay examined Tabb on May 14, 2008 and noted that her
respiratory symptoms were generally well controlled with
prednisone; the Pulmonologist noted that because of the steroids
she had gained an enormous amount of weight, saying that she was
“essentially totally and permanently disabled” (Tr. 354).
doctor noted airways reactivity associated with her sarcoid.
The doctor again counseled Plaintiff to quit smoking.
In records from November 4, 2008, Dr. Yoder noted that Tabb
had quit smoking (Tr. 357-58).
She was diagnosed with acute
On November 26, 2008, Dr. Jack H. Obeid, a partner with Dr.
Error! Main Document Only.Mobic is a nonsteroidal antiinflammatory drug used for the relief of signs and symptoms of
osteoarthritis and rheumatoid arthritis. Physician's Desk Reference
855-57 (62nd ed. 2008).
Error! Main Document Only.Tylenol with codeine is used “for the
relief of mild to moderately severe pain.” Physician's Desk Reference
2061-62 (52nd ed. 1998).
Error! Main Document Only.Soma is a muscle relaxer used “for the
relief of discomfort associated with acute, painful musculoskeletal
conditions,” the effects of which last four-to-six hours. Physician's
Fay at Pensacola Pulmonary Associates, noted that Tabb was still
smoking about a pack a day and that she had recently undergone a
bout with pneumonia; he noted congestion and coughing with
minimal wheezing (Tr. 365).
Obeid also noted infiltrates in her
lungs and an element of bronchitis.
The doctor ordered
Plaintiff to quit smoking immediately.
He also wrote on a
prescription form that “Mrs. Tabb has stage II sarcoidosis and
is disabled” (Tr. 360).
The Pulmonologist saw Tabb again on
March 6, 2009 and noted that her vital signs were stable and she
was afebrile; there was no wheezing or rhonchi (Tr. 364).
Plaintiff was seen by Dr. Yoder for various ailments,
including boils and pneumonia, between December 2008 and March
2009 (Tr. 366-77).
On December 19, the doctor noted that
Plaintiff had quit smoking (Tr. 377).
An echocardiogram on
March 13, 2009 demonstrated significant ventricular hypertrophy
with no aortic insufficiency (Tr. 366).
In an undated clinical
assessment of pain form, Dr. Yoder indicated that Tabb’s pain
would distract her from adequately performing daily activities
or work and that physical activity would greatly increase her
pain, causing her to be distracted from whatever she was doing;
he further indicated that her pain was severe and would limit
Desk Reference 2968 (52nd ed. 1998).
her effectiveness (Tr. 379-80).
The doctor further indicated
that Plaintiff could not engage in gainful employment on a
repetitive, competitive, and productive manner.
that he had not prescribed any narcotic medications for Tabb.
Yoder also completed a clinical assessment of fatigue form, on
July 29, 2009, in which he indicated that fatigue incapacitated
Plaintiff and that physical activity would cause her to have to
get bed rest (Tr. 383).
He again indicated that she would be
unable to work.
The ALJ summarized the medical evidence and determined that
Tabb could perform less than a full range of sedentary work (Tr.
In reaching this decision, she rejected Dr. Fay’s
opinion that Tabb was totally and permanently disabled because
“there is no evidence that Dr. Fay knows the measure of
disability from the stand point of the Commissioner” (Tr. 24).
Dr. Obeid’s opinion of disability was rejected for the same
reason (Tr. 24).
Dr. Yoder’s opinion of disability was rejected
as being inconsistent with his own treatment records (Tr. 25).
Plaintiff’s own testimony of limitation was rejected as
inconsistent with the medical evidence (Tr. 26).6
The ALJ gave
great weight to the RFC assessment completed by Sheila Brody as
The Court notes that Tabb has not challenged this finding.
“consistent with the longitudinal medical evidence” (Tr. 26).
This concludes the Court’s summary of the evidence.
Plaintiff claims that the ALJ did not properly consider the
opinions of her treating physicians while giving great weight to
a non-medical source.
It should be noted that "although the
opinion of an examining physician is generally entitled to more
weight than the opinion of a non-examining physician, the ALJ is
free to reject the opinion of any physician when the evidence
supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d
1078, 1084 (5th Cir. 1981);7 see also 20 C.F.R. § 404.1527
The Court also notes that the opinion of a nonexamining
physician Ais entitled to little weight and taken alone does not
constitute substantial evidence to support an administrative
Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir.
1990) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir.
The Court notes at the outset that Defendant admits that
the ALJ erred in giving great weight to Brody as a single
decision maker (Doc. 14, p. 8 n.13) (“Ms. Brody is a single
decision maker (SDM).
An SDM is not a medical source.
The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions
of the former Fifth Circuit rendered prior to October 1, 1981.
C.F.R. § 404.906 (2011).
An SDM’s assessment is not opinion
evidence that an ALJ may rely upon in reaching a disability
See Program Operations Manual System DI
24510.050C, 2001 WL 1933365 (forms completed by an SDM are not
opinion evidence at the appeal level)”).
Government argues that the error is not per se reversible and
that it was not harmful to Tabb (Doc. 14, pp. 8-9).
While the Court is concerned that the ALJ has rejected the
opinions of Plaintiff’s three treating physicians, two of which
are specialists, and given great weight to a person who is not a
doctor and has never laid eyes on Tabb, the Court, in this
circumstance, cannot say that the ALJ’s opinion is not supported
by substantial evidence.
Dr. Yoder’s opinions of disability on
the pain and fatigue forms are inconsistent with his medical
records in that he has never prescribed pain medication and
there is no record of Plaintiff’s complaints of fatigue.
Drs. Fay and Obeid offer objective medical evidence of pulmonary
insufficiency, their conclusions of disability are diminished by
their reports that Plaintiff was in no apparent distress and
that her condition was controlled by medication.
conclusions may well be right, the evidence does not show it.
Furthermore, 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. 1530(a) (2011).
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) (2011); see also
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
failure to quit smoking after being repeatedly told to do so by
her Pulmonologists does not aid her quest for benefits.
claim that the ALJ did not properly consider the opinions of her
treating doctors is without merit.
Plaintiff also claims that the ALJ did not properly
evaluate her obesity.
In SSR 02-1p, the Social Security
Administration issued a ruling entitled Evaluation of Obesity
which examines the analysis for determining the following:
whether a person is obese (based on a formula known as the Body
Mass Index); whether the obesity is a medically determinable
impairment; and whether the obesity is severe.
determination is made by determining whether “it significantly
limits an individual’s physical or mental ability to do basic
The Court notes that the ALJ specifically found that Tabb’s
obesity was a severe impairment (Tr. 20).
The ALJ made no other
findings, however, specific to her obesity.
Nevertheless, the Court notes that, in discussing
Plaintiff’s other impairments, the ALJ found that she did not
have difficulty walking and there was no evidence of end organ
damage (Tr. 22).
Furthermore, there was no evidence of
limitation of motion or motor or sensory loss (id.).
medical evidence does demonstrate Tabb’s extreme weight gain
because of steroid treatment of her sarcoidosis, it does not
suggest that she cannot work because of it; it has certainly not
shown that she is disabled.
Plaintiff has raised two claims in bringing this action.
Both are without merit.
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
Judgment will be entered by separate Order.
DONE this 24th day of January, 2012.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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