Anderson v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered 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 2/29/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FELICIA M. ANDERSON,

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

CIVIL ACTION 11-0370-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 (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. 20).
waived in this action (Doc. 21).

Oral argument was

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.
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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
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
forty-three years old, had completed a high school special
education (Tr. 35), and had previous work experience as a
grocery stocker and construction laborer (Tr. 36).

In claiming

benefits, Plaintiff alleges disability due to arthritis of the
knees, obesity, and depression (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability and SSI on
April 17, 2007 (Tr. 117-24).

Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that
Anderson could not return to her past relevant work, but that
there were specified jobs which she could perform (Tr. 12-21).
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Plaintiff requested review of the hearing decision (Tr. 8) by
the Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Anderson

alleges the single claim that the ALJ erred in his finding of
Plaintiff’s residual functional capacity (hereinafter RFC) (Doc.
13).

Defendant has responded to—and denies—these claims (Doc.

16).

The relevant medical evidence of record follows.
On October 30, 2007, Dr. Todd Engerson, Plaintiff’s

treating physician, performed arthroscopic surgery on both of
Anderson’s knees; in a note a week later, he indicated that both
the knees and legs looked good, with little edema and the
typical amount of swelling in the joint (Tr. 262).

Plaintiff

complained of anterior knee pain for which he prescribed Lortab1
and encouraged physical therapy (id.).

On November 27, the

doctor indicated that it would take Anderson a while to get back
to full normal; because “light duty is not an option at work,”
she needed to not work and focus on her physical therapy (Tr.
313).

On December 18, Engerson noted that the knees looked good

and that they had full range of motion (hereinafter ROM); he

1

Error! Main Document Only.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).

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indicated that she could do as she wished though she should be
careful with squats and stairs and further indicated that she
was not quite 100% (Tr. 312).

On January 15, 2008, it was noted

that the only thing Anderson could not do was “get down on her
knees and the get back up off the floor [without] a tremendous
amount of difficulty;” she received cortisone shots in each knee
(Tr. 311).
On February 19, 2008, Dr. Todd Engerson, Plaintiff’s
treating physician, completed a Request for Leave of Absence on
her behalf which indicated that he was treating her for
cartilage tears and arthritic knees (Tr. 304).

The request was

that she be excused from work from February 13, 2008 through
March 17, 2008 as “light duty [was] not available” (Tr. 304).
In a letter dated February 19, 2008, Plaintiff’s attorney
requested Dr. Engerson to “provide a narrative letter that
contains the patient’s medical history, response to treatment,
diagnosis, and prognosis for the conditions” he treats and to
complete the enclosed physical capacities evaluation
(hereinafter PCE) and pain questionnaire, so that they could all
be submitted to the Social Security Administration in order to
help her get social security benefits (Tr. 400).

The doctor

wrote, on the letter addressed to him, the following:
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“Has knee

arthritis with typical activity related pain.
physical work” (id.).

Can easily do non

Dr. Engerson declined to complete the PCE

(Tr. 401); he also, essentially, declined to complete the pain
questionnaire, though he indicated that he had treated Plaintiff
since November 22, 2005 for arthritis in both knees which caused
her pain for which he prescribed Lortab and which would require
injections in the future (Tr. 403).
On April 15, Engerson noted that Anderson had a little bit
of effusion and some tenderness on the lateral joint, but he was
going to give her a cortisone shot and let her return to work
the next day (Tr. 422).

On May 6, the doctor reported that

Plaintiff had attempted to return to work, but that her knees
kept her from it; x-rays of the left knee showed significant
medial compartment narrowing and that the patella femoral region
appeared to look like it had before (Tr. 421).

He indicated

that her symptoms were convincing and that arthroscopic
debridement would be a reasonable thing to consider.

On May 27,

Engerson noted that the left knee looked a lot better, following
surgery on the fifteenth, and that Anderson would do physical
therapy at home (Tr. 420).
In a statement of disability, dated June 11, 2008, Dr.
Engerson declined to state a specific opinion about her
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abilities, noting that Anderson’s impairment was improving and
that “she is out of work because light duty is not available—out
to rehab after knee surgery” (Tr. 419).

On July 8, the doctor

noted good left knee ROM though she was still struggling with
it; he indicated that she was not 100% able to return to her
work because of the crawling and squatting (Tr. 491).

On August

19, new left knee x-rays showed “almost complete deterioration
of her medial joint space.

The lateral side has some sclerosis

and osteophytes but the medial side looks like it is pretty well
gone” (Tr. 490).

The doctor noted that she could not yet return

to her job as a stocker (id.).

On September 30, Engerson noted

that because of continuing left knee problems, “she is not able
to do her job which involves heavy physical activity” (Tr. 489).
On that same date, the doctor stated that she was not able to
return to work for three weeks (Tr. 473).
On November 10, 2008, Dr. Engerson performed a total left
knee replacement (Tr. 484-85).

On December 2, the doctor noted

that Anderson complained of generalized pain near the medial
side of her knee; her ROM was ten to ninety degrees but the quad
was very weak (Tr. 520).

The doctor expressed concern that she

did not have full extension as she had had it in the operating
room.

On December 22, Engerson noted that the x-rays of the
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left knee were perfect and that her flexion was about one
hundred degrees, though she was lacking some extension (Tr.
518).

On February 2, 2009, the doctor noted that Plaintiff

still lacked some extension but that she needed no more physical
therapy; he indicated doubt that she would never be able to
return to her past job but that she could do some sedentary type
occupation (Tr. 517).

On March 31, Engerson noted that left

knee flexion was up to one hundred ten degrees though extension
was seven-to-ten degrees short of full ROM; he noted that she
was doing alright (Tr. 516).

On June 9, the doctor completed an

application so that Anderson could have a disability access
placard because of her long-term orthopedic condition (Tr. 524).
On June 6, 2009, the doctor noted less than full extension and
flexion in the left knee; he recommended continued stretching
and strengthening, but indicated that he could really do nothing
else for her (Tr. 531).
In her decision, the ALJ determined that Plaintiff had the
ability to

perform light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b) except her
standing and walking are limited to no more
than 15 to 30 minutes at one time and to no
more than two hours in a work day; she can
only rarely operate foot controls; she
cannot climb ladders, scaffolds or ropes;
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she cannot kneel, crawl, work at unprotected
heights, or work around dangerous equipment;
she can stoop and crouch on occasion; she
cannot perform complex or detailed job
instructions but is limited to doing tasks
involving simple one and two step
instructions; and she cannot work in crowds
or have more than occasional contact with
the public.

(Tr. 16).

In reaching this decision, the ALJ faithfully

summarized Dr. Engerson’s medical records and noted that he
based his RFC conclusions on the doctor’s opinions (Tr. 17, 19).
Plaintiff has raised the claim that the ALJ erred in his
finding of her RFC.

More specifically, Anderson asserts that

the ALJ improperly relied on notes by the treating physician,
misconstruing their meaning (Doc. 13).

Even more to the point,

Plaintiff has referred this Court to the following specific
language coming out of SSR 96-5p, entitled “Medical Source
Opinions on Issues:”

From time-to-time, medical sources may
provide opinions that an individual is
limited to “sedentary work,” “sedentary
activity,” “light work,” or similar
statements that appear to use the terms set
out in our regulations and Rulings to
describe exertional levels of maximum
sustained work capability. Adjudicators
must not assume that a medical source using
terms such as “sedentary” and “light” is
aware of our definitions of these terms.
The judgment regarding the extent to which
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an individual is able to perform exertional
ranges of work goes beyond medical judgment
regarding what an individual can still do
and is a finding that may be dispositive of
the issue of disability.

SSR 96-5p.

The Court notes that the ALJ is responsible for

determining a claimant=s RFC.

20 C.F.R. ' 404.1546 (2011).

The Court finds no merit in Plaintiff’s claim.

A careful

reading of all of Engerson’s medical records indicate that
although the doctor may not have known the requirements and
responsibilities specific to sedentary, light, or heavy work, he
knew that Plaintiff’s knees did not afford her the ability to
work at her past job as a stocker which required crawling and
squatting.

The Court further notes that the treating doctor

was, on several occasions, given the opportunity to relate his
specific opinion as to Anderson’s ability to sit, stand, walk,
lift, carry, and do other things required in various work
settings, but he declined.

The Court cannot say that the ALJ’s

conclusion regarding Plaintiff’s RFC is not supported by
substantial evidence.

The Court also notes that Plaintiff has

pointed to no other medical evidence demonstrating that she
cannot do the work found by the ALJ.
Upon consideration of the entire record, the Court finds
"such relevant evidence as a reasonable mind might accept as
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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 February, 2012.

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

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