Cox v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered, 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 3/22/2012. (clr)

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

MARIA I. COX,

:

Plaintiff,

:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of
Social Security,

:

CIVIL ACTION 11-0483-M

:

Defendant.

:

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.

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. *).
waived in this action (Doc. 18).

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.
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), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the most recent administrative hearing,
Plaintiff was forty-two years old, had completed a high school
education1 (Tr. 54), and had previous work experience as a nurse
assistant (Doc. 13 Fact Sheet).

In claiming benefits, Cox

alleges disability due to degenerative joint disease of the
knee, obesity, hypertension, anxiety disorder, and depression
(id.).
Plaintiff filed a protective application for disability on
January 15, 2009 (Tr. 148-51; see Tr. 16).

Benefits were denied

following a hearing by an Administrative Law Judge (hereinafter

1

Error! Main Document Only.Plaintiff testified that she had
received a Graduate Equivalency Degree (Tr. 54).

2

ALJ) who determined that although she could not perform her past
relevant work, there were specific light work jobs which Cox
could perform (Tr. 16-28).

Plaintiff requested review of the

hearing decision (Tr. 11-12) 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.
that:

Specifically, Cox alleges

(1) The ALJ did not properly consider the opinions and

diagnoses of her treating physician; and (2) the ALJ did not
adequately explain why he rejected her testimony (Doc. 13).
Defendant has responded to—and denies—these claims (Doc. 14).
The relevant medical evidence of record follows.
On August 28, 2006, Dr. Mohammed Nayeem, a family
practitioner, examined Plaintiff and noted that she was an obese
woman in no acute distress with no pain or discomfort; he
further noted that she did not have edema, cyanosis, anemia,
jaundice, pigmentation, or skin eruptions (Tr. 242-45).

The

doctor noted normal range of motion (hereinafter ROM) in Cox’s
neck, upper and lower extremities, and back; though there was
some crepitus palpable in the left knee, movement of both knee
joints was full, unrestricted, and free of pain (Tr. 244).
Nayeem noted normal gait and that Plaintiff could perform
3

heel/toe walking and squatting; he specifically noted that there
were no signs of any joint disease or swelling.

The physician’s

diagnoses were exogenous obesity and chronic degenerative joint
disease of the left knee and also some of the right knee; his
conclusion was as follows:

This lady can perform mild to moderate
activity. As per her own statement, she can
walk for an hour and can sit without any
problem. She may not be able to perform
strenuous physical activity like jogging,
jumping, sprinting, etc., or going up and
down the steps quickly. She can use her
arms and legs. No problem in using the
lower back.

(Tr. 245).
On March 15, 2007, Cox was examined by Dr. Huey Kidd, D.O.,
who noted that Plaintiff was obese with full ROM and strength in
both upper and lower extremities; she could heel and toe walk,
bend and touch her toes, and squat and stand without difficulty
(Tr. 249-50).

He did note that she walked with a limp.

The

doctor’s impression was knee pain and probable arthritis.
Records from the Jackson Medical Center Urgent Care
demonstrate that Dr. Ikram Hussain first saw Plaintiff on
February 21, 2006 for hyperlipidemia and panic attacks (Tr. 263;
see generally Tr. 252-75).

On July 13, Cox complained of being
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stressed; the doctor’s impression was anxiety and depression for
which he prescribed Lexapro2 (Tr. 262).
a month later (Tr. 261).

Hussain noted no changes

On April 11, 2007, Plaintiff stated

that she had fallen, resulting in left ankle pain; noting that
an x-ray revealed no fracture, dislocation, or acute trauma, the
doctor determined it was a sprain and prescribed Lortab3 (Tr.
260, 273).

A week later, Cox was admitted to the hospital to

treat cellulitis in the lower extremity with neurovascular
compromise secondary to swelling; at discharge, two days later,
Hussain noted that she was walking without difficulty and that
thee had been a significant reduction of swelling in the
extremity (Tr. 274-75).

A week after the hospitalization, Cox

indicated that she was “doing pretty good” (Tr. 258).

The

doctor saw Plaintiff on September 21 for something in her eye
(Tr. 257).
On October 2, 2008, Dr Hussain completed a physical
capacities evaluation (hereinafter PCE) which indicated that Cox
was capable of sitting for three hours and standing/walking for
two hours at a time and that she could sit for five hours and

2

Lexapro is indicated for the treatment of major depressive
disorder. Error! Main Document Only.Physician's Desk Reference 117576 (62nd ed. 2008).
3
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).

5

stand/walk for four hours in an eight-hour day (Tr. 251).

He

further indicated that Plaintiff could lift up to five pounds
for four hours, ten pounds for three hours, and twenty pounds
for two hours a day; she could carry up to ten pounds for three
hours and twenty-five pounds for three hours a day.

Although

Cox could not perform fine manipulation, she would have no
difficulty with simple grasping or using arm controls; she could
not, however, use her right leg for foot controls though she
could use her left leg for that purpose.

Hussain also indicated

that Plaintiff could bend and squat for three hours, crawl and
climb for two hours, and reach for one hour during an eight-hour
workday.

The doctor further indicated that she would not be

able to work at this pace without missing more than two days of
work a month.
On October 4, 2008, Cox complained of right knee pain after
having fallen a month earlier; Hussain determined it was a
ligament injury/knee sprain for which he prescribed Mobic4 (Tr.
256).

Six days later, following an ER visit, Plaintiff was seen

for a fracture of the fifth metatarsal of the right foot (Tr.

4

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).

6

On November 2, the doctor added Ultram5 and Elavil6 to the

255).

Lexapro prescription she was already taking (Tr. 254).

On

January 21, 2009, Cox complained of pain in her neck, radiating
down into her back, hurting between the shoulder blades; Dr.
Hussain’s impression was hypertension, depression, and lower
back pain (Tr. 253).

On April 7, Plaintiff complained of right

knee pain and swelling along with back pain; the doctor’s notes
indicate no particular treatment (Tr. 308).

Cox was seen on

June 1 for an abscess under the left arm; he prescribed lortab
for her back pain (Tr. 307).
flu shot (Tr. 305).

On October 1, Plaintiff received a

On December 19, Hussain noted swelling of

Cox’s face and neck and indicated that she suffered from chronic
pain (Tr. 304).

On April 21, 2010, Plaintiff complained of left

elbow pain (Tr. 303).
On June 22, 2010, Dr. Hussain completed an assessment of
pain form in which he indicated that Cox suffered from pain but
that it did not prevent functioning in everyday activities or
work although physical activity would greatly increase her pain,
distracting her from whatever she was doing (Tr. 310).

5

He

Error! Main Document Only.Ultram is an analgesic “indicated for
the management of moderate to moderately severe pain.” Physician's
Desk Reference 2218 (54th ed. 2000).
6
Error! Main Document Only.Amitriptyline, marketed as Elavil, is
used to treat the symptoms of depression. Physician's Desk Reference

7

further indicated that her pain—or the side effects of Lortab—
could be expected to be severe and limit her effectiveness due
to distraction, inattention, and drowsiness; Hussain said that
she was restricted from lifting heavy objects (Tr. 311).

The

doctor did not answer a query as to whether Cox could engage in
any form of gainful employment on a repetitive, competitive, and
productive basis (Tr. 311).
At the first evidentiary hearing,7 Plaintiff testified that
her main problem was her right knee which gives out on her if
she stands for too long (Tr. 54); she also stated that if she
sits for too long, her knee begins to hurt, radiating into the
hip (Tr. 58).
(Tr. 59).

Cox could drive, but only for short distances

She testified that she takes pain medication which

controls her pain and causes no side effects (Tr. 61).

Cox

experiences arthritis in her hands, shoulder, left knee, and
lower back (Tr. 62).
This concludes the evidence of record.
Plaintiff's first claim is that the ALJ did not accord
proper legal weight to the opinions, diagnoses and medical
evidence of Plaintiff's physicians.

Cox specifically refers to

the conclusions of Dr. Hussain (Doc. 13, pp. 3-5).

3163 (52nd ed. 1998).

8

It should be

noted that "although the opinion of an examining physician is
generally entitled to more weight than the opinion of a nonexamining 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);8 see
also 20 C.F.R. § 404.1527 (2011).
In his determination, the ALJ summarized the medical
evidence, but afforded little weight to Dr. Hussain’s opinions
(Tr. 24-25).

In reaching this decision, the ALJ noted that the

PCE which he had completed was internally inconsistent and
inconsistent with his own office notes; he went on to note that
the examinations of Drs. Nayeem and Kidd “revealed objective
support of a capacity to function starkly inconsistent with the
degree of limitations in the physical capacities evaluation [of
Dr. Hussain] including the demonstrated exertional and postural
capacity” (Tr. 24).

The ALJ also found that Hussain’s pain

assessment was inconsistent with his own office notes and the
other evidence of record (Tr. 24).
The Court finds substantial support for the ALJ’s rejection
of the limitations found by Dr. Hussain.

7

The ALJ correctly

Cox did not testify at the second hearing (see Tr. 32-49).
The Eleventh Circuit, in the en banc decision Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent
8

9

noted that Drs. Kidd and Nayeem did not find Cox to be as
impaired as Dr. Hussain had indicated.

Furthermore, the

treating doctor’s own office notes do not support the
limitations suggested.

Plaintiff’s claim otherwise is without

merit.
Cox next claims that the ALJ did not adequately explain why
he rejected her testimony.

Plaintiff asserts that the ALJ was

not specific enough in his rejection of her limitations (Doc.
13, pp. 4-5).

The Court notes that the ALJ is required to

"state specifically the weight accorded to each item of evidence
and why he reached that decision."

Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir. 1981).
In his decision, the ALJ, pointing to Dr. Nayeem’s
examination notes, stated the following:

Objective evidence during the relevant
period do [sic] not support the claimant’s
allegations regarding the nature of the
exertional and postural restrictions caused
by these symptoms of back pain as alleged.
Physical examination of the back revealed no
tenderness or swelling. Musculature and
range of motion was normal, with diagnostic
testing negative. Locomotor function was
normal and did not provide evidence that the
claimant was substantially limited.

decisions of the former Fifth Circuit rendered prior to October 1,

10

(Tr. 20).

At another point in the determination, the ALJ stated

that “[t]he objective medical evidence supports the claimant
suffers from a number of physical impairments, but the evidence
continues to support a significantly higher level of functioning
than alleged by the claimant” (Tr. 24).

The ALJ also made the

more specific findings that follow:

The claimant alleged that she was
unable to lift more than 5 pounds, unable to
squat, bend, stand, reach, or walk, and that
physical activity exacerbated the pain
(Exhibit 5E). However, the claimant was
found to have a normal gait, was able to
walk on her own, and showed no signs of any
joint disease or swelling. She was able to
climb on and off the examination table and
dress without difficulty. Subsequent
examination again found the claimant’s range
of motion was normal, and the claimant was
able to ambulate normally. The claimant
indicates that she used an assistive device
in the form of a cane as well as a brace,
but consultative examination during the
relevant period provided the claimant was
able to walk on her own without the use of a
cane three months prior to the claimant’s
date last insured (Exhibits 2F, 4F, and 6F).
The objective medical evidence fails to
support the claimant’s allegations regarding
the symptoms and limitations caused by her
impairments.

(Tr. 24).

The ALJ also specifically noted that although Cox

indicated that she received assistance in daily chores, the

1981.

11

evidence did not demonstrate that she was as limited as she
claimed (Tr. 26).
The Court finds substantial support for these conclusions
and further notes that they are very specific.

Plaintiff has

failed to direct this Court’s attention to evidence which
contradicts these findings.
In summary, Cox has raised two different claims in bringing
this action.

Both have been found to be 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 DISMISSED.

Judgment will be

entered by separate Order.
DONE this 22nd day of March, 2012.

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

12