Fischer v. Astrue

Filing 19

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 10/1/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VICTOR J. FISCHER,

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

CIVIL ACTION 12-0215-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, 12).
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. 18).
argument was waived in this action (Doc. 17).

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
thirty-seven years old, had completed a high school education
(Tr. 40), and had previous work experience as a construction
worker and a car detailer (Tr. 42-43).

In claiming benefits,

Plaintiff alleges disability due to ankle fracture and fusion
and rotator cuff teninopathy (Doc. 12 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on January 19, 2010 (Tr. 144-54).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although he could not return to his past
relevant work, there were specific light work jobs which Fischer
could perform (Tr. 22-30).

Plaintiff requested review of the
2

hearing decision (Tr. 18) 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, Fischer

alleges the single claim that the ALJ did not properly consider
the opinions and diagnoses of his treating physician (Doc. 12).
Defendant has responded to—and denies—these claims (Doc. 13).
The relevant evidence of record follows.
On December 31, 2008, Fischer underwent arthroscopic
subacromial decompression and distal clavicle excision with
limited debridement of undersurface cuff tear by Dr. Clayton G.
Lane for a work accident sustained earlier in the year (Tr. 24950).

The diagnosis was left shoulder impingement,

acromioclavicular arthritis, and partial thickness cuff tear.
Two weeks later, Plaintiff complained of pain in—and tingling
down—his left arm; Dr. Lane noted mild tenderness over the AC
joint with a passive range of motion at 80-90º (Tr. 248).
Abduction and flexion were without pain; Fischer was
neurovascularly intact.

The doctor prescribed physical therapy

and cautioned that there should be no lifting of the left upper
extremity.

On February 13, 2009, Dr. Lane noted excellent

active range of motion, with minimal tenderness over the AC
3

joint, and 5/5 cuff strength; the doctor expressed the opinion
that he could find no reason for Fischer’s failure to progress
with physical therapy (Tr. 247).

On March 23, 2009, Plaintiff

reported pain at three-to-four on a scale of ten and pain at
night; Dr. Lane noted minimal tenderness over the AC joint and
moderate tenderness over Codman’s point (Tr. 246).

He further

noted that “[h]e has pain with supraspinatus testing but 4-5/5
strength and 5/5 infraspinatus and subscap.
tenderness over the biceps tendon” (Tr. 246).

He has no
The doctor

expressed the opinion that Plaintiff could perform light duty
for a forty-hour work week and noted that Fischer had complained
of knee and ankle pain more than shoulder pain.

On April 23,

Dr. Lane noted no pain with cross arm adduction; he had moderate
pain on supraspinatus testing, though there was no limitation of
motion (Tr. 245).

On June 3, Plaintiff underwent a physical

work performance evaluation (Tr. 234-44) from which Dr. Lane
concluded that he had reached maximum medical improvement with a
loss of strength with overhead activity within the 10-30% range;
this meant that he had a ten percent permanent partial
disability for the upper extremity, translating to a six percent
whole person impairment (Tr. 233).

Nevertheless, Dr. Lane

expressed the opinion that Fischer could perform medium level
4

work eight hours a day.
On July 2, 2009, Dr. Albert Pearsal, an Orthopaedic Surgeon
at the USA Department of Orthopaedic Surgery, examined Plaintiff
who was healthy and in no acute distress (Tr. 269-70,; see also
Tr. 347-51).

The doctor noted that Fischer had

excellent forward flexion and extension of
the neck with full rotation, left to right,
with no evidence of neurologic symptoms. He
has full, symmetric range of motion actively
with forward flexion of 180º bilaterally and
active internal rotation to L5 on the right
and T10 on the left. He has very minimal to
mild subacromial impingement signs. He has
a negative cross-arm test. He has no
evidence of atrophy, and the portals appear
to be well healed. He is intact to
trapezius, biceps, triceps, wrist
dorsiflexion and volar flexion. He has no
sensory deficits.
Passive range of motion is symmetric
bilaterally with IGHE of 90º, ER at 0º of
45º, and ER and IR both at 90º. He appears
to have diffuse deltoid tenderness when the
arm is actively internally rotated.
(Tr. 169).

After reviewing radiographic studies, Pearsal’s

assessment was that Fischer had residual left subacromial
inflammation with possible rotator cuff tear pain (id.).
doctor prescribed Lyrica1 and Soma.2

1

The

An MRI performed on July 27

Lyrica is used for the management of neuropathic pain. Error!
Main Document Only.Physician's Desk Reference 2517 (62nd ed. 2008).
2
Error! Main Document Only.Soma is a muscle relaxer used “for the

5

showed subacromial effusion and some AC joint fluid; otherwise,
the rotator cuff appeared to be grossly intact (Tr. 266).
On January 8, 2010, Dr. Frank Dozier, a Family Practitioner
at the Family Medical Center, saw Plaintiff who was complaining
of pain in his right foot at a level of eight on a ten-point
scale; he also indicated that he experienced pain in his left
shoulder (Tr. 271-74; see also Tr. 343-346).

On examination,

Plaintiff had tenderness in the lateral left shoulder; range of
motion caused discomfort.

He had decreased muscle mass and

strength on the left in comparison with the right which was
unexpected as he was left hand dominant; strength on the left
was 30-40% less in the left arm compared to the right.

Fischer

also had flexion of his distal foot and toes with hammer toe
configuration of his toes with calluses of the ends of his toes
form walking on them.

Plaintiff also had decreased strength of

the leg with flexion changes of his right foot.

Dr. Dozier’s

plan was to have Fischer examined by an orthopedic surgeon and
possibly provide physical therapy; he also prescribed Naprosyn.3
Inpatient records from Washington County Hospital show that
relief of discomfort associated with acute, painful musculoskeletal
conditions,” the effects of which last four-to-six hours. Physician's
Desk Reference 2968 (52nd ed. 1998).
3
Error! Main Document Only.Naprosyn, or Naproxyn, “is a
nonsteroidal anti-inflammatory drug with analgesic and antipyretic
properties” used, inter alia, for the relief of mild to moderate pain.

6

Plaintiff was admitted, through the Emergency Room, on March 2,
2010 for twenty-three hours of observation for a complaint of
acute abdominal pain (Tr. 275-84).

The pain was determined to

be a kidney stone, so Fischer was discharged with a prescription
for Lortab.4
On March 5, 2010, Dr. Pearsal, at the USA Department of
Orthopaedics, noted that Plaintiff had “positive Neer and
Hawkings impingement sign.

Rotator cuff appears to be grossly

intact, but he has significant pain with overhead activities”
(Tr. 328; see generally, Tr. 319-29).

Surgery was recommended.

On April 12, six days after left shoulder arthroscopy, Fischer
rated his pain as six of ten, with a tingling sensation
radiating down his arm into his fingers; “[f]orward flexion
[was] 140º, abduction 130º, internal rotation to L5” (Tr. 326).
Plaintiff was prescribed Lortab and Soma and he was to continue
with physical therapy.

On May 17, 2010, Dr. Pearsal noted the

following:
He has forward flexion which is improving to
160, active abduction to nearly 160, active
internal rotation is to probably L3 or L4
compared to T12 on the right, passive range
Physician's Desk Reference 2458 (52nd ed. 1998).
4
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).

7

of motion is nearly normal with external
rotation 0 to 75 compared to 90 and ER at 90
and IR at 90 and 80 and 45 compared to 90
and 45 on the opposite side. Rotator cuff
appears to be grossly intact.
(Tr. 324).

Noting that Plaintiff was sleeping better, the

doctor re-prescribed medications and recommended further
physical therapy.

On June 24, Pearsal noted that Fischer was

doing well; he specifically noted that his “range of motion is
nearly symmetric with some mild pain.

With forward flexion and

active abduction he still has some mild discomfort and some
difficulty sleeping” (Tr. 322).

The doctor re-prescribed

medications and recommended continued exercise.
On May 3, 2010, Dr. Frank Dozier prescribed Plaintiff a
walking cane for “instability of gait” (Tr. 285).

On May 10,

2010, Dr. Frank L. Dozier saw Plaintiff for complaints of pain
in his right foot and ankle; imaging showed no fracture
dislocation, or appreciative degenerative changes in the foot
(Tr. 339-41).

The ankle, however, exhibited moderate

degenerative changes of the intertarsal articulations with some
spurring.
Records from Washington County Hospital show that Fischer
returned to the Emergency Room on June 15 complaining of kidney
stone pain and pain on urination (Tr. 286-98; see also Tr. 3528

He was treated with Toradol,5 morphine, and Phenergan6

66).

during which time his pain decreased from ten to five on a tenpoint scale.
On August 26, 2010, Dr. Albert Pearsal wrote a “To Whom it
May Concern” letter that summarized his treatment of Frazier and
stating that he had reached maximum medical improvement (Tr.
330-31).

The doctor noted that, on examination, Plaintiff had

“forward flexion and active abduction [to] 180 degrees.

His

external rotation at 0 and 90 degrees is at approximately 90
degrees, although he has limitation of internal rotation at 90
degrees and 45 degrees” (Tr. 330).

Pearsal noted mild atrophy

of his supraspinatus area, but that rotator cuff strength was
intact.

The doctor gave Plaintiff “a 2% upper extremity

impairment rating for lack of internal rotation and a 6% upper
extremity impairment rating for atrophy.

This totals to an 8%

upper extremity impairment rating on the left side and a 5%
total body impairment rating” (Tr. 330).

Pearsal went on to say

that Fischer had permanent “restrictions regarding minimal
overhead activities, no lifting repetitively over 10 pounds, no
maximum lift over 20 pounds with predominantly [sic] activities

5

Toradol is prescribed for short term (five days or less)
management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).

9

below shoulder level” (Tr. 330).
On October 19, 2010, Dr. Frank L. Dozier noted that
Plaintiff had to walk with a cane because of chronic pain in his
right foot (Tr. 338).

On that same day, the doctor completed a

pain form in which he indicated that Plaintiff has chronic right
foot pain because of degenerative changes of the intertarsal
articulations with some spurring (Tr. 335-36).

Dozier said that

Fischer’s pain would distract him from adequately performing
daily activities or work and that physical activity would
greatly increase his pain and cause him to be distracted from
his task, possibly even causing abandonment of the task.
Plaintiff’s pain, or the side effects from medications, were
expected to be severe and limit his effectiveness due to
distraction, inattention, and drowsiness.

The doctor said that

Frazier had been walking with a cane since May 3, 2010 and that
this might restrict his work abilities; he also anticipated that
surgery might be required to correct Plaintiff’s hammer toes.
On February 4, 2011, Fischer was admitted to USA Medical
Center for five nights after experiencing an acute ischemic
stroke as evidenced by left-sided weakness, right facial droop,

6

Error! Main Document Only.Phenergan is used as a light sedative.
Physician's Desk Reference 3100-01 (52nd ed. 1998).

10

and dysarthria7 (Tr. 367-425).

He was discharged in stable

condition with instructions for speech therapy and a good
prognosis.
On June 3, 2011, Dr. John G. Yager, Neurologist, examined
Plaintiff who had regular heart rate and rhythm with no murmurs
or gallops (Tr. 426-33).

The doctor noted very limited range of

motion of the right ankle; when walking, Fischer favored his
right leg, using a cane to take some of the weight off of that
leg.

Dr. Yager expressed the opinion that Plaintiff was capable

of performing sedentary work, though he completed a physical
capacities evaluation in which he indicated that Fischer could
lift twenty pounds continuously, fifty pounds frequently, and
one hundred pounds occasionally; he thought he was capable of
carrying twenty pounds frequently, fifty pounds occasionally,
but never more than fifty pounds.

The Neurologist expressed the

opinion that Plaintiff could sit for eight hours at a time and
could stand and walk, each, for an hour at a time; he thought he
could stand for four hours, and walk for two hours, during an
eight-hour day.

Yager stated that Plaintiff needed a cane to

walk and could only walk up to twenty feet without it; he found
that Fischer could use either hand to continuously reach,

7

The left-sided weakness and right facial droop resolved while

11

overhead and otherwise, handle, finger, feel, and push/pull.
Though he could use his left foot continuously, he could only
use his right foot to operate foot controls occasionally.

The

doctor thought that Fischer could balance, kneel, and crawl
frequently, climb stairs and ramps, stoop, and crouch
occasionally, but could never climb ladders or scaffolds.

Dr.

Yager also expressed the opinion that Plaintiff could work at
unprotected heights and around moving mechanical parts on only
an occasional basis.
At the hearing before the ALJ, Fischer testified that he
could not work after injuring his foot, even after seven
surgeries to correct it (Tr. 44-45).

He said that since his

stroke, he could stand or walk for about thirty minutes before
he must sit down (Tr. 47-48).

Plaintiff testified that he could

not lift anything but small things with his left hand because of
his shoulder (Tr. 48, 50).

He testified that he could not climb

a set of stairs, stoop, or squat; he could grip with his right
hand, but not his left (Tr. 49).

Fischer could not bathe or

dress himself or comb his hair by himself since the stroke (Tr.
50).

Medication (Tylenol 3) helped with ankle pain a little; he

suffered pain at seven or eight on a ten-point scale (Tr. 52-

Fischer was being transported to the hospital (Tr. 368).

12

53).

He walked with a cane to help him balance (Tr. 54).
The ALJ summarized the medical evidence of record before

concluding that Fischer was capable of performing light work as
defined in the regulations (Tr. 24).8

She also found, following

the testimony of a vocational expert, that there were specific
jobs that Plaintiff could perform.

The ALJ found that Fischer’s

testimony regarding his pain and limitations was not entirely
credible, a finding not challenged in this action (Tr. 25).
Plaintiff's only claim in this action is that the ALJ did
not accord proper legal weight to the opinions, diagnoses and
medical evidence of Plaintiff's physicians.

Frazier

specifically references the conclusions of Dr. Dozier (Doc. 12,
pp. 2-3).

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

8

“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 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)
(2012).

13

reject the opinion of any physician when the evidence supports a
contrary conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084

(5th Cir. 1981);9 see also 20 C.F.R. § 404.1527 (2012).
In her decision, the ALJ found that Dr. Dozier’s
conclusions regarding Plaintiff’s abilities were too restrictive
as they were inconsistent with his own treatment records and
those of Drs. Lane, Pearsal and Yager.

More specifically, the

ALJ noted the following:
Dr. Lane stated that the functional
evaluation revealed a medium level of work
was appropriate for 8 hours a day. Dr.
Lane’s assessment was consistent with that
of Dr. Yager who also placed the claimant at
medium work activity. However, Dr. Pearsal
placed him at light lifting. Although Dr.
Yager related that the claimant would be
capable of sedentary work related
activities, his residual functional capacity
is more indicative of medium work activity.
The medical evidence as a whole clearly does
not indicate disabled functioning.
(Tr. 28).
The Court finds substantial support for the ALJ’s
conclusions.

Dr. Dozier’s conclusions of severe limitation are

not supported by his records or those of Drs. Lane, Yager, or

9

The Eleventh Circuit, in the en banc decision Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent
decisions of the former Fifth Circuit rendered prior to October 1,

14

Pearsal.

The Court also notes that Dr. Dozier is a family

practitioner while the evidence relied on by the ALJ came from
specialists.

The Court finds that Fischer’s claim that the ALJ

did not properly consider his treating doctor’s opinions and
conclusions is not supported by substantial evidence.
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 in a separate Order.
DONE this 1st day of October, 2012.

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

1981.

15