Anderson 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, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 8/13/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES ANDERSON,

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

CIVIL ACTION 12-0024-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, 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. 17).
argument was waived in this action (Doc. 19).

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
1

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
sixty-one years old, had one year of college education (Tr. 35),
and had previous work experience as a telemarketer (Tr. 36).

In

claiming benefits, Plaintiff alleges disability due to cervical
and lumbar disc disease, arthritis of the knee, hypertension,
and Hepatitis C (Doc. 13 Fact Sheet).
The Plaintiff filed protective applications for disability
insurance and SSI on September 18, 2009 (Tr. 120-33; see also
Tr. 19).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that Anderson
could perform his past relevant work as a telephone solicitor
(Tr. 19-27).

Plaintiff requested review of the hearing decision

2

(Tr. 14) by the Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Anderson

(1) The ALJ did not properly consider all of the

evidence of record; and (2) the ALJ improperly rejected his
testimony concerning his limitations (Doc. 13).

Defendant has

responded to—and denies—these claims (Doc. 14).

The relevant

evidence of record follows.
Records from the Franklin Primary Health Center show that
on May 16, 2008, Anderson was seen for a routine checkup; his
blood pressure was 138/76 and he was experiencing no pain (Tr.
190-91; see generally, Tr. 185-249).

On August 8, Plaintiff was

seen for a sore right foot; blood pressure medication was represcribed (Tr. 188-89).

On November 11, Anderson stated that

he had no pain, but needed medication refills; he was noted to
have 5/5 strength bilaterally and no symptoms including
shortness of breath, dizziness, or weakness (Tr. 186-87).

On

April 9, 2009, Plaintiff was seen for a regular checkup;
prescriptions were filled (Tr. 247-48).

On July 28, Anderson

had a normal examination (Tr. 245-46).

On October 28, it was

noted that Plaintiff had a soft abdomen; prescriptions were
written (Tr. 243-44).

3

On November 21, 2009, Consultant Dr. Elmo Ozment, Jr.
examined Plaintiff who complained of left lower back pain,
Hepatitis C, high blood pressure, and chronic pain from an old
gunshot wound to his left knee (Tr. 251-55).

Anderson told the

doctor that he could sweep and vacuum but could not mow his
lawn; he could care for his personal needs.

Ozment noted that

Plaintiff sat ok and could take his shoes off and put them back
on; he could get on and off the examining table without
difficulty.

He did not use an assistive device; blood pressure

was elevated at 150/105.

Anderson had poor balance, but he

could bend over and almost touch the floor, though he did
complain that it hurt his back; he could not squat because of
back pain.

The doctor provided range of motion measurements for

Plaintiff’s spine and extremities; he noted negative straight
leg raising on the right though there was some non-severe pain
on the left.

Anderson had normal muscle bulk and tone and

strength was 5/5 in both the upper and lower extremities; he had
excellent bilateral grip strength.

Dr. Ozment noted that

Plaintiff “held his left heel off the floor when he would stand
up straight.

He said that if he put his heel down all the way,

it would hurt his back;” the doctor also noted some pain on
forward flexion of the back (Tr. 254).

4

Dr. Ozment’s diagnosis

was left lower back pain, hepatitis C, and history of high blood
pressure.
On January 12, 2010, records from the Franklin Primary
Health Center show that Anderson needed prescription refills
(Tr. 259).

On April 30, Plaintiff complained of left hip pain

at a level one on a ten-point scale; previous x-rays showed
acetabular spurs (Tr. 258).

The doctor noted decreased

extension of the left knee.

On July 23, Anderson again

complained of level one pain; left knee crepitus was noted (Tr.
257).
On March 15, 2011, Orthopedic Surgeon Dr. William A.
Crotwell, III examined Plaintiff and noted that Plaintiff said
that he cooks three times a week, cleans once a week, drives
without problems, and can walk up to two blocks (Tr. 262-68).
On exam, the doctor noted that Anderson could take off his shoes
without difficulty and could flex to 90 degrees.

Examining the

lower extremities, Anderson had a normal toe and heel walk,
forward flexion to 75 degrees and extension to 30 degrees with
only a poor attempt; motor was 5/5 and sensory was normal.
Straight leg raise while sitting was ninety degrees with no
radicular pain; while lying down, raising on the left was normal
while there was pain on the right.

5

In the upper extremities,

motor was 5/5, sensory and grip strength were normal; flexion
and extension were eighty degrees while lateral was seventy
degrees.

The right knee was zero to 120 degrees; there were at

least ten-to-fifteen degrees of varus deformity in the left
knee, with fifteen-to-twenty degrees of extension and flexion to
110 degrees.

X-rays showed very minimal arthritis of the left

hip, arthritis of the left knee, some scoliosis and arthritis of
the lumbar spine, and mild arthritis of the cervical spine with
degenerative disk at C4-5.

Dr. Crotwell’s diagnostic impression

was mild cervical degenerative disk disease, moderate lumbar
degenerative disk disease, and left knee arthritis; it was his
opinion that Anderson could “carry out medium to light [work];
he could definitely carry out light and could definitely carry
out sedentary [and] could work an 8-hour work day without any
problem” (Tr. 264).

Dr. Crotwell also completed a physical

capacity evaluation form (hereinafter PCE) in which he indicated
that Plaintiff could sit, stand, and walk, each, for two hours
at a time and do each of those for eight hours during an eighthour day (Tr. 265).

It was the doctor’s opinion that Anderson

could lift up to twenty-five pounds occasionally, fifty pounds
frequently, and one hundred pounds occasionally and that he
could carry twenty pounds continuously, twenty-five pounds

6

frequently, and fifty pounds occasionally; Plaintiff was able to
use both arms and feet for repetitive movements and could bend,
squat, crawl, and climb frequently and reach continuously.
Crotwell indicated, however, that Anderson was mildly restricted
in being around moving machinery and driving automotive
equipment and moderately limited in being at unprotected
heights.
At the evidentiary hearing, Plaintiff testified that he had
worked as a telemarketer but that he lost his job because he was
unable to continuously sit without getting up and walking around
to relieve the pain in his leg (Tr. 36-37).

Anderson had

noticed, as he aged, that on some days he did not have any
problems while on others he could hardly move; the pain just
shut him down (Tr. 38).

For example, on some days, he could

rake the yard, clean the house, cook, and do volunteer work;
some days, he could not (Tr. 38-39).
least one day a week (Tr. 39).

He does volunteer work at

Anderson stated that he drives

every day; at times, he is able to go, every day, to visit with
other people his age to play checkers and visit (Tr. 39-41).

He

takes Flexeril1 for his left knee and hip pain; the pain causes
an inability to stand up straight with his left heel touching
1

Flexeril is used along with “rest and physical therapy for
relief of muscle spasm associated with acute, painful musculoskeletal

7

the floor (Tr. 41-42).

This causes balance problems (Tr. 42).

Plaintiff rated his pain at a six or seven on a scale of ten; it
is most comfortable for him to sit, but he needs the flexibility
to stand up and walk around (Tr. 44).

His condition is getting

worse, now causing Anderson to need to lie down, maybe twice a
week (Tr. 44-45).

He can stand for three hours at a time

sometimes, while sometimes he cannot last for an hour (Tr. 45).
His medications sometimes make him drowsy (Tr. 47).
In her administrative decision, the ALJ summarized the
evidence of record in determining that Plaintiff had the
residual functional capacity (hereinafter RFC) to perform less
than a full range of sedentary work, but that he was capable of
performing his past relevant work as a telemarketer (Tr. 19-27).
The ALJ found that Anderson’s testimony concerning his pain and
limitations was not entirely credible (Tr. 24, 26).
In bringing this action, Plaintiff first claims that the
ALJ did not properly consider all of the evidence of record.
Anderson more specifically asserts that the ALJ did not state
what weight was being given to the medical evidence, focusing
particularly on the report of Dr. Ozment (Doc. 13, pp. 6-11).
The Court notes that the ALJ is required to "state specifically

conditions.”

Physician's Desk Reference 1455-57 (48th ed. 1994).

8

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).
The Court acknowledges that Anderson is correct in claiming
that the ALJ “failed to state the particular weight given to any
doctor who treated or examined Mr. Anderson” (Doc. 13, p. 10)
(emphasis in original).

However, before determining how

egregious an error this is, the Court will review the evidence.
The Court notes that Dr. Ozment reported that Plaintiff
complained of some back pain and that he had some balance issues
(Tr. 251-55).

Plaintiff had full strength and muscle tone and

bulk in all extremities; the doctor specifically noted that
Plaintiff experienced pain in squatting and in his left heel
when he put pressure on it as well as in forward flexion of his
back.

Dr. Ozment did not, however, express any opinion as to

whether or not Anderson could work.

On the other hand, Dr.

Crotwell, without equivocation, stated that Plaintiff was able
to “carry out medium to light [work]; he could definitely carry
out light and could definitely carry out sedentary [and] could
work an 8-hour workday without any problem” (Tr. 264).

The

Court notes that Anderson has, in his brief, referenced some
pain prescriptions being written by Franklin Primary Health

9

Center (Doc. 13, p. 7; cf. Tr. 197-201); the Court notes,
however, that those medical records pre-date Anderson’s asserted
disability date of August 15, 2008 (see Tr. 122).
The ALJ found that Plaintiff had the RFC to perform less
than a full range of sedentary work.2

She went on to

specifically find the following:
The claimant can lift and carry ten pounds
occasionally. The claimant can stand/walk
for approximately two hours and sit for
approximately six hours in an eight-hour
workday with normal breaks. The claimant is
unable to climb ladders, ropes, or
scaffolds. The claimant can only
occasionally climb ramps or stairs. The
claimant should not work at unprotected
heights and should not push or pull with the
lower extremities. Due to pain and other
factors, the claimant would have mild to
moderate impairment in terms of
concentration, persistence, or pace,
resulting in being off task or nonproductive pace for one to five percent of
the workday.
(Tr. 22-23).

At the evidentiary hearing, the ALJ posed a

hypothetical question to the vocational expert (hereinafter VE)
that included the restrictions found in the RFC and the VE

2

“Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary

10

testified that Anderson would be capable of performing his past
work as a telemarketer (Tr. 47, 49).
The Court finds that the RFC and the hypothetical question
to the VE were proper based on the evidence of record; the Court
also notes that Plaintiff has posed no claim concerning the
faultiness of either.

As such, although Anderson correctly

notes that the ALJ failed to explain what weight she placed on
the evidence of record, the Court finds that it was, at most,
only harmless error.
inappropriate.

As such, remand of this action would be

See Reeves v. Heckler, 734 F.2d 519, 526 n.3

(11th Cir. 1984).
Plaintiff has also claimed that the ALJ improperly rejected
his testimony concerning his pain and limitations (Doc. 13, pp.
11-13).

The Court notes that the standard by which the

Plaintiff's complaints of pain are to be evaluated requires "(1)
evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the
alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain."

Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)

criteria are met.”

20 C.F.R. § 404.1567(a) (2012).

11

(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986)).

The Eleventh Circuit Court of Appeals has also held

that the determination of whether objective medical impairments
could reasonably be expected to produce the pain was a factual
question to be made by the Secretary and, therefore, "subject
only to limited review in the courts to ensure that the finding
is supported by substantial evidence."

Hand v. Heckler, 761

F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774
F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275
(11th Cir. 1986).

Furthermore, the Social Security regulations

specifically state the following:
statements about your pain or other symptoms
will not alone establish that you are
disabled; there must be medical signs and
laboratory findings which show that you have
a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent with the medical signs and
laboratory findings), would lead to a
conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2012).
In her decision, the ALJ found that the evidence “fails to
support the claimant’s functional limitations are of the
12

severity or nature alleged” (Tr. 24).

In explaining this

conclusion, the ALJ noted the following:
Treatment notes are inconsistent with the
degree of functional limitations alleged by
the claimant. Physical examination showed
no extremity weakness, and showed his back
shows strength bilaterally. These progress
notes also show the claimant voiced no
complaints and was found without distress in
the months following his alleged onset of
disability. The claimant was instructed to
continue the treatment regimen. His
condition remains stable and shows no
significant changes according to medical
progress notes.
(Tr. 24).

The Court notes that none of the medical evidence

supports Plaintiff’s testimony of pain and limitation at the
evidentiary hearing.

In fact, as noted by the ALJ, Anderson

consistently reported to the Franklin Primary Health Center that
his pain was only one on a ten-point scale (257-58); the records
from Drs. Ozment and Crotwell report pain, but not disabling
pain.

The Court finds that the ALJ’s conclusion, that

Plaintiff’s reporting of his pain and limitation was less than
credible, is supported by substantial evidence.
Anderson has raised two different claims in bringing this
action.

Both are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a
13

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 13th day of August, 2012.

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

14