Roberts v. Astrue

Filing 19

MEMORANDUM OPINION AND ORDER entered. Oral argument was heard on November 26, 2012. Upon consideration of the administrative record, the memorandaof the parties, and oral argument, it is ORDERED that thedecision of the Commissioner be AFFIRMED and that this action beDISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 11/28/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LINDA G. ROBERTS,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commission of Social Security,
Defendant.

CIVIL ACTION 12-0247-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).

The action was

referred for report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B).

Oral argument was heard on November 26, 2012.

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.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
1

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 fifty-four years old, had completed a tenth-grade
education (Tr. 39), and had previous work experience as a cook,
cashier, and maintenance worker (Tr. 40-41).

In claiming

benefits, Plaintiff alleges disability due to generalized
osteoarthritis; bilateral knee degenerative joint disease with
chronic bilateral knee pain; cervical degenerative disc disease
with chronic neck pain; probable lumbar degenerative disc
disease with chronic back pain; degenerative joint disease of
both thumbs with bilateral hand pain; carpal tunnel syndrome;
and obesity (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on May 20, 2009 (Tr. 172-177; see Tr. 21).
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Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that Roberts was capable of performing her
past relevant work as a cashier (Tr. 21-31).

Plaintiff

requested review of the hearing decision (Tr. 14-15) 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.
alleges that:

Specifically, Roberts

(1) The ALJ did not properly consider the

opinions and conclusions of her treating physician; and (2) the
ALJ made an unsupported residual functional capacity
(hereinafter RFC) finding (Doc. 13).
to—and denies—these claims (Doc. 16).

Defendant has responded
The relevant evidence of

record follows.
On July 24, 2006, Roberts had x-rays made of her right
elbow that identified no fracture (Tr. 268).

On September 19,

she underwent an enhanced CT of the chest which revealed no
evidence of a mediastinal mass and no acute pulmonary or pleural
disease (Tr. 269).

Eight days later, Plaintiff had a right

upper quadrant ultrasound performed that demonstrated a solid
mass in the left lobe of the liver (Tr. 270).

On October 5, she

had an MRI of the abdomen, with and without IV contrast, which
revealed a benign lesion in the liver (Tr. 271).
3

On February

21, 2007, Roberts underwent an MRI of the left knee which showed
degenerative osteoarthritic changes involving the medial tibila
plateau and patellofemoral compartment as well as advanced
changes of chondromalacia in the patella; ligaments and tendons
were intact and there was no tear of either the medial or
lateral meniscus (Tr. 266).
On September 12, 2009, Dr. Elmo Ozment, Jr., a general
surgeon, saw Roberts who had complaints of bursitis and
arthritis in her knees; she claimed that had a dull, aching pain
that measured 8-10 on a ten-point scale (Tr. 306-09, 335).

She

also complained of bilateral wrist pain and back pain that was
constantly at a ten.

On examination, Plaintiff’s coordination,

station, and gait were normal.

Tandem walking hurt her knees

and back; she could not squat because of back pain.

Dr. Ozment

provided range of motion (hereinafter ROM) measurements for
Roberts’s spine, hips, knees, ankles, shoulders, elbows, wrists,
and fingers/thumbs; no ROM was provided for the lumbar spine as
Plaintiff said her back hurt too much to bend forward.

Straight

leg raising was negative while seated; she would not lie down on
the table, though, for that measurement to be determined.

The

doctor’s general findings were that Roberts had decreased
sensation over the radial side of the wrist and around the base
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of both thumbs; there were no paravertebral spasms.

Grip was

excellent bilaterally although Plaintiff would not use her
thumbs, complaining of the pain.

She had normal muscle bulk and

tone in the upper and lower extremities.

There was some

numbness to light touch and decreased sensation of the radial
aspect of both wrists.
limits.

Deep tendon reflexes were within normal

Ozment’s diagnosis was bursitis/arthritis of her knees,

by history; chondromalacia of the left patella; bilateral carpal
tunnel syndrome, by history; and back pain, by history.
Treatment notes from Dr. Terry Kurtts, a family medicine
doctor, show that on September 21, 2009, Plaintiff complained of
lower back pain, worse on the left side, for two weeks (Tr. 311,
334).

On December 17, Plaintiff complained of arthritic pain in

her thumbs, noting that rain made the pain worse (Tr. 310).

Two

weeks later, Kurtts completed a form for Roberts to receive
disability access parking privileges, noting that she could not
walk two hundred feet without stopping to rest (Tr. 312).

On

March 22, 2010, Plaintiff had complaints of pain in her knees,
ankle, and neck; she also said that she was not resting (Tr.
313).
On May 17, 2010, Roberts went to the Mobile County Health
Department with complaints of low back pain, bilateral knee
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pain, and bilateral thumb pain (Tr. 314-27).

A notation was

made that Plaintiff was taking more than three hundred Lortab1 10
per month (Tr. 314).

The assessment was arthropathy, backache,

and continuous opioid abuse (Tr. 315).
On June 28, 2010, Dr. Kurtts saw Roberts with complaints of
pain in her knees and back, swelling in her knees, and numbness
in her left leg (Tr. 332).

On the same day, he completed a

clinical assessment of symptoms form in which he indicated that
Roberts suffered from arthritis of the knees, cervical
degenerative disc disease, and low back pain; her prognosis was
only fair (Tr. 328-331).

The doctor noted significantly reduced

ROM in both hips, decreased forward bending at the lumbo-sacral
area, abnormal gait, muscle spasm, and tenderness.

Kurtts

indicated that her symptoms would distract her from adequately
performing her daily activities or work and that physical
activity would increase the severity of her symptoms to the
point that she could not work; he thought that medications would
cause some side effects but that they would not be serious.

It

was Dr. Kurtts’ opinion that Plaintiff could use her hands for
simple grasping, fine manipulation, and for pushing/pulling of

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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arm controls but that she could not use her feet for leg
controls.

Dr. Kurtts indicated that Roberts needed a job that

would allow her to shift positions from sitting, standing, and
walking and would need to take a break every two hours for
thirty minutes; he stated that Plaintiff did not need a cane or
other assistive device.

The doctor thought that Roberts’s

impairments would cause her to miss three workdays a month.

It

was Dr. Kurtts’ opinion that Plaintiff had suffered these
symptoms since November 2004.
On September 27, 2010, Dr. Kurtts saw Roberts for knee
pain, among other things (Tr. 333).
On December 14, Plaintiff was seen by Dr. Todd D. Elmore, a
Neurologist, who noted that although her complaints were mostly
arthritic in nature, she was in no acute distress (Tr. 338-45).
The doctor noted that Plaintiff was alert, oriented, and that
her memory was intact; she had a normal attention span and
concentration.

Motor strength was full and equal bilaterally in

upper and lower extremities; there were no sensory deficits to
light touch or vibration.

Reflexes were diminished distally;

Roberts was unsteady on her feet.

An NCV study of the four

extremities was fairly unremarkable, except for some mild rightsided carpal tunnel syndrome; an EMG of the extremities revealed
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no evidence of significant acute or chronic denervation.
Elmore’s impression was:

Dr.

right carpal tunnel syndrome; chronic

low back pain; chronic bilateral knee pain with an abnormal MRI
in 2007 confirming some degenerative change in her left knee;
obesity; and chronic pain syndrome with some medication overuse.
It was the doctor’s opinion that Roberts could probably perform
sedentary work.

The doctor completed a physical capacities

evaluation in which he indicated that Plaintiff was capable of
sitting for four hours, standing for two hours, and walking for
one hour at a time while having the ability to sit for eight
hours, stand for four hours, and walk for three hours during an
eight-hour day (Tr. 345).

It was Dr. Elmore’s opinion that

Roberts could lift up to fifty pounds occasionally, twenty-five
pounds frequently, and ten pounds continuously; she could carry
up to twenty-five pounds occasionally, twenty pounds frequently,
and ten pounds continuously.

The doctor indicated that she

could use her feet and hands to operate controls; she could
bend, squat, crawl, and climb occasionally, but could reach
frequently.

Elmore indicated that all restrictions were due to

subjective complaints.
Roberts was seen on January 3, 2011 by Dr. William A.
Crotwell, III, an orthopedic surgeon, who noted multiple
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complaints of pain; he noted that she walked with a walker (Tr.
347-50).

The doctor indicated that Plaintiff could bend and get

up from a chair without difficulty; toe and heel walking were
good.

She was tender over the SI joints and had generalized

tenderness across the back.

Sensory was normal and motor was

5/5 in the lower extremities.

Straight leg raise while sitting

was 90 degrees with no pain; hip rotation was negative.
Straight leg raise while lying down was 90 degrees bilaterally.
X-rays revealed mild arthritis of the thoracic and lumbar spine;
Plaintiff had arthritis in both knees and both hands.
Crotwell’s impression was bilateral CMC arthritis; bilateral
arthritis of the knees, mild to moderate; and history of back
pain and thoracic pain.

The Orthopedic Surgeon completed a

physical capacities evaluation in which he indicated that
Roberts could sit one, stand one, and walk one hour at a time,
but could sit eight, stand six, and walk four hours during an
eight-hour day.

It was Crotwell’s opinion that Plaintiff could

lift up to fifty pounds occasionally, twenty-five pounds
frequently, and ten pounds continuously and could carry up to
twenty-five pounds occasionally, twenty pounds frequently, and
five pounds continuously.

It was the doctor’s opinion that

Roberts would have no trouble using leg or hand controls; she
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could bend, squat, crawl, and climb occasionally, but could
reach frequently.

He further indicated that Plaintiff was

totally restricted from working at unprotected heights,
moderately limited in being around moving machinery, and mildly
limited in driving automotive equipment.

The doctor noted that

Plaintiff could definitely work eight-hour days, performing
sedentary and light work.
On January 27, 2011, Dr. Kurtts noted that Plaintiff had
complaints of back and knee pain for which he prescribed Lortab
(Tr. 351).
In his determination, the ALJ reviewed the medical evidence
and found that Roberts was capable of returning to her past
relevant work as a cashier (Tr. 21-31).

In reaching that

decision, the ALJ determined that Plaintiff’s statements
concerning her limitations and impairments were not credible, a
finding not challenged in this action (see Doc. 13).

The ALJ

went on to give significant weight to the assessment of Drs.
Crotwell and Elmore while rejecting the opinion of Dr. Kurtts
(Tr. 29-30).
Roberts first claims that the ALJ did not accord proper
legal weight to the opinions, diagnoses and medical evidence of
her physician.

Plaintiff specifically references the opinions
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and conclusions of Dr. Kurtts (Doc. 13, pp. 2-10).

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);2 see
also 20 C.F.R. § 404.1527 (2012).
In rejecting the conclusions of Dr. Kurtts, the ALJ stated
the following:
No weight can be given to the
conclusory opinion of Dr. Kurtts. The
opinion is inconsistent with both his own
treatment notes and the other medical
evidence. Greater weight is given to the
opinion of both the examining sources as
specialists (Exhibit 11F). Dr. Kurtts’s
opinion is inconsistent with the assessment
of the specialists, [his] own function
report, the conservative treatment both
sought by the claimant and advised by Dr.
Kurtts himself, and with the findings of Dr.
Ozment which are dramatically inconsistent
with a finding that the claimant is
disabled.
(Tr. 29-30).
The Court finds that the ALJ’s opinion is supported by

2

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

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substantial evidence.

The treatment notes reveal that although

Dr. Kurtts saw Plaintiff on a regular basis, i.e., roughly every
three months, and reported her complaints of pain, he did
nothing more for her than prescribe medication.

There is no

record that he ever took ROM measurements3 to gain an
understanding of what she could—and could not—physically do.
The Court found the doctor’s records to contain nothing more
than Roberts’s complaints of pain and the doctor’s diagnoses and
prescriptions.

Plaintiff’s recitation of the medical evidence

in the brief before the Court confirms this finding (Doc. 13,
pp. 2-10).
Furthermore, Drs. Crotwell and Elmore are both specialists
who were privy to the same information to which Dr. Kurtts had
access;4 furthermore, as their examinations came after that of
Dr. Kurtts, they, most likely, had access to the Clinical
Assessment of Symptoms form he had completed.

They performed

their own examinations, including ROM measurements and

October 1, 1981.
3
The only ROM measurement appearing in Dr. Kurtts’s records is
straight leg raising listed in the Clinical Assessment of Symptoms
Form (Tr. 328). The Court notes that that measure differs
significantly from the measurements taken by Drs. Ozment and Crotwell
(cf. Tr. 309, 348).
4
Though Plaintiff argues that Dr. Crotwell did not have certain
information before him at the time of his evaluation (Doc. 13, p. 6),
the medical record suggests otherwise (see Tr. 350) (“The medical
evidence of record provided by DDS was reviewed and those findings

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observations of Plaintiff’s abilities to function, and reached
their own determinations.

The conclusions of the three

consultative physicians were more in agreement with each other
than with the conclusions of Dr. Kurtts.

The Court finds no

merit in Plaintiff’s argument otherwise.
Roberts next claims that the ALJ made an unsupported RFC
finding (Doc. 13, pp. 10-12).

The Court notes that the ALJ is

responsible for determining a claimant’s RFC.
404.1546 (2012).

20 C.F.R. §

The Court also notes that the social security

regulations state that Plaintiff is responsible for providing
evidence from which the ALJ can make an RFC determination.

20

C.F.R. § 416.945(a)(3).
In his determination, the ALJ made the following finding:
The claimant has the residual
functional capacity to perform a range of
light work. The claimant can lift and carry
twenty pounds occasionally, ten pounds
frequently, and five pounds continuously.
She can stand and walk for six hours in an
eight-hour day. She can sit for eight hours
in an eight-hour day. The claimant can
occasionally stoop, crawl, climb, and
crouch. She can continuously grasp and
engage in fine manipulation.
(Tr. 24).

were considered in the overall assessment of the patient”).

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The Court notes that the ALJ’s RFC finding is very similar
to the one suggested by Dr. Crotwell (Tr. 349) and not much
different from the physical capacities evaluation completed by
Dr. Elmore.

Both doctors were of the opinion that Plaintiff was

capable of lifting and carrying more weight than the ALJ found,
but that is no reason to find that the ALJ’s conclusion is
without substantial support of the evidence.5

The ALJ’s opinion

regarding Plaintiff’s RFC certainly tracks the opinions of Drs.
Crotwell and Elmore more closely than that of Dr. Kurtts which
states no opinion regarding Plaintiff’s ability to lift and
carry any given amount of weight (Tr. 328-30).

Dr. Kurtts’s

form also suggested that Roberts would have to rest for thirty
minutes every two hours during an eight-hour workday; there is
absolutely no support in the record for such a limitation.
Plaintiff’s claim that the ALJ did not properly consider the
evidence in reaching an RFC determination is without merit.
Roberts 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
reasonable mind might accept as adequate to support a

5

The Court finds curious Plaintiff’s argument that because the
ALJ gave her the “benefit of the doubt” in finding an RFC that was
lower than what had been suggested by the two doctors, the ALJ’s

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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 28th day of November, 2012.

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

conclusions should be rejected (Doc. 13, p. 11).

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