Tucker v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER entered. Oral argument was waived in this action. Upon consideration of the administrative record and the memoranda ofthe parties, it is ORDERED that the decision of the Commissionerbe AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 12/18/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRANDI R. TUCKER,

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

CIVIL ACTION 12-0250-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. 19).
argument was waived in this action (Doc. 20).

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
twenty-three years old, had completed a high school education
(Tr. 149), and had previous work experience as a secretary and
waitress (Tr. 37).

In claiming benefits, Plaintiff alleges

disability due to status post gastric bypass, dysthymic
disorder, borderline personality disorder, herpes simplex virus,
substance abuse and dependence, and polycystic ovary syndrome
(Doc. 12 Fact Sheet).
The Plaintiff filed applications for disability insurance
and SSI on June 23, 2008 (Tr. 122-31; see also Tr. 13).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although she could not
2

return to her past relevant work, there were specific jobs that
Tucker could perform (Tr. 13-22).

Plaintiff requested review of

the hearing decision (Tr. 7-8) 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.
that:

Specifically, Tucker alleges

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

conclusions of his treating physician; and (2) the ALJ
improperly determined that a particular impairment was nonsevere (Doc. 12).

Defendant has responded to—and denies—these

claims (Doc. 15).
Before reviewing the evidence, the Court notes that the two
claims raised by Tucker rely on the same evidence for their
support.

As the transcript in this action exceeds twelve

hundred pages, the Court will only summarize that evidence which
directly pertains to the claims raised herein.
On March 17, 2008, Dr. Stephen Varner, with the University
of South Alabama Department of Obstetrics and Gynecology,
examined Plaintiff for chronic pelvic pain and abnormal uterine
bleeding with a past history of polycystic ovary syndrome; he
noted at that time that she was in no distress though her
abdomen was soft, and mildly tender bilaterally (Tr. 606-07).
3

The doctor noted no cervical lesions or motion tenderness on the
pelvic exam; though Plaintiff was mildly tender in the adnexa,
BUS was within normal limits.

Varner noted that a CT scan and

ultrasound did not show any pathology.

The doctor performed an

open diagnostic laparoscopy, a hysteroscopy with endometrial
biopsy, and a dilation and curettage; he noted pelvic
congestion, a normal uterine cavity, and removed a GI staple
with no complications (Tr. 604-05; see also Tr. 846-73).

Tucker

tolerated the procedure well.
On May 9, 2008, Plaintiff complained of pelvic pain and
continued bleeding for which she was told to take Motrin1 (Tr.
601).

In the notes from the June 30, 2008 examination, the

doctor noted complaints of bleeding and pain; Varner found
tenderness and prescribed Darvocet2 (Tr. 600).

Two weeks later,

Tucker complained of continued pain, worse after eating (Tr.
599); on July 30, the doctor prescribed Prilosec3 (Tr. 598).
On February 3, 2009, Plaintiff was seen at the Mobile
County Health Department as a follow-up visit for diarrhea; it

1

A prescription was written as well, but the Court cannot read
the doctor’s writing (Tr. 601).
2
Propoxyphene napsylate, more commonly known as Darvocet, is a
class four narcotic used “for the relief of mild to moderate pain” and
commonly causes dizziness and sedation. Physician's Desk Reference
1443-44 (52nd ed. 1998).
3
Prilosec is used in the short-term treatment of duodenal ulcers.

4

was noted that she was in no acute distress (Tr. 818-19).
Tucker stated that she did not have a headache, chest pain or
discomfort, abdominal pain, or localized joint pain; on
examination, her abdomen was normal.
On February 8, 2009, Dr. Varner saw Plaintiff for pelvic
pain for which he prescribed Elavil4 and Lortab5 (Tr. 1139).
On March 9, 2009, Dr. Varner completed a Clinical
Assessment of Pain in which he indicated that he had been
treating Plaintiff since May 20086 for pelvic congestive syndrome
and chronic pelvic pain (Tr. 835-36).

The doctor indicated that

Tucker’s pain would distract her from adequately performing
daily activities or work and that physical activity would
greatly increase her pain, causing her to be distracted from
what she was doing if not cause her to abandon the activity.

It

was Varner’s opinion that Plaintiff’s pain, or the side effects
from medications which he had prescribed, would be severe and
limit her effectiveness because of distraction, inattention, or
drowsiness.

The doctor further indicated that Tucker would

Physician's Desk Reference 1516-19 (48th ed. 1994).
4
Amitriptyline, marketed as Elavil, is used to treat the symptoms
of depression. Physician's Desk Reference 3163 (52nd ed. 1998).
5
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).
6
As noted earlier, records show that Varner actually first saw

5

likely have to undergo a hysterectomy with bilateral salpingooophorectomy within the following year.
On April 26, 2009, Plaintiff underwent an abdominal and
pelvic CT performed with IV contrast (Tr. 1143-45).

Though

there was evidence of prior gastric surgery, there was no
evidence of pancreatitis or focal pancreatic abnormality.

The

spleen, kidneys, and adrenal glands appeared to be normal; there
was no evidence for ureteral stone or obstruction.

There was no

evidence of bowel obstruction and no acute inflammatory process
identified.

The pelvis looked normal; there was no clear

abnormality of the bladder.
structures were normal.

The bladder was unremarkable; bony

There did appear to be some thickening

and, perhaps, some enhancing hyperemia or inflammation in the
labia of the external vagina in the lower pelvis.
On April 27, 2009, Plaintiff was admitted to USA Hospital
for an uncontrolled herpes simplex virus outbreak for which she
was given Valtrex, morphine for pain, and Zoloft7 for depression
(Tr. 874-901; see also Tr. 1142-43).

During the course of her

hospitalization, Tucker was treated with Dilaudid,8 OxyContin,9

Plaintiff on March 17, 2008 (Tr. 604-07).
7
Zoloft is “indicated for the treatment of depression.”
Physician's Desk Reference 2229-34 (52nd ed. 1998).
8
Dilaudid is used for the management of pain. Physician's Desk
Reference 419-22 (62nd ed. 2008).

6

and Tylox.10

Tucker was discharged five days later in stable

condition with her pain well controlled.
On April 29, 2009, Dr. Varner examined Plaintiff and noted
that her abdomen was mildly tender (Tr. 1137-38).

On May 8,

Tucker was complaining of vaginal pain; the doctor noted,
however, that she was much improved11 (Tr. 1133-34).

On March

19, 2010, Plaintiff complained of pelvic pain (Tr. 1179).
In his decision, the ALJ reviewed the medical evidence and
determined that Plaintiff had the residual functional capacity
to perform less than a full range of light work (Tr. 13-22).
The ALJ also determined that although Tucker could not return to
her past relevant work, there were specific jobs which,
according to the testimony of the vocational expert, she could
perform.

In reaching these decisions, the ALJ held that

Plaintiff’s testimony regarding her limitations and impairments
was not credible to the extent alleged.12

The ALJ further

discredited the pain assessment form completed by Dr. Varner.

9

“OxyContin tablets are a controlled-release oral formulation of
oxycodone hydrochloride indicated for the management of moderate to
severe pain where use of an opioid analgesic is appropriate for more
than a few days.” Physician's Desk Reference 2344-46 (52nd ed. 1998).
10
Tylox, a class II narcotic, is used “for the relief of moderate
to moderately severe pain”. Physician's Desk Reference 2217 (54th ed.
2000).
11
A prescription was written as well, but the Court cannot read
the doctor’s writing (Tr. 1133).

7

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.

Tucker specifically takes

issue with the ALJ’s discrediting of Dr. Varner’s pain
assessment form (Doc. 12, pp. 3-8).

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 reject the opinion of any
physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);13 see
also 20 C.F.R. § 404.1527 (2012).
In the administrative decision, the ALJ made the following
specific findings:
In terms of the claimant’s alleged
disabling abdominal pain, the record clearly
shows that her complaints are sporadic in
nature and related to various underlying
reasons, none of which existed for 12
consecutive months. . . .
As for the opinion evidence, no
treating or examining source specifically
described the claimant as disabled. In
March, 2009, Stephen Varner, M.D., completed
12

The Court notes that Plaintiff has not challenged this finding
(see Doc. 12).
13
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,
1981.

8

a form on which he described the claimant as
having significant levels of pain secondary
to pelvic problems. That opinion, however,
was rendered one month after the Mobile
County Health Department noted that the
claimant reported zero pain. Although the
degrees of pain Dr. Varner indicated is
somewhat consistent with the various
episodes of treatment of the claimant for
abdominal pain, the totality of the record
shows that such degrees of pain have not
persisted over any significant periods of
time such that any 12-month period of
disability is established in this case.
(Tr. 20).
The Court finds substantial support for the ALJ’s
determination that Dr. Varner’s pain assessment form was not
supported by the record evidence.

The transcript indicates that

the doctor examined Plaintiff only once during the seven-month
period preceding the date he completed the form; that exam was
one month before the assessment.

The Court also notes that the

ALJ correctly noted that Plaintiff was examined one month before
the assessment by the Mobile County Health Department during
which she indicated that she had no complaints of pain.
Additionally, the Court agrees with the ALJ’s conclusion that
although Tucker suffered various impairments which caused
extreme pain, those ailments were not of one year’s duration as
required for a finding of disability.
9

Finally, the Court finds

no support for the Plaintiff’s assertion of disability in any of
the other medical evidence of record; Tucker’s failure to direct
this Court’s attention to any evidence other than that of Dr.
Varner confirms this finding.
Plaintiff has also claimed that the ALJ improperly
determined that a particular impairment of hers was non-severe.
More specifically, Tucker asserts that her polycystic ovary
syndrome with chronic pelvic pain is a severe impairment (Doc.
12, pp. 8-10).

In Brady v. Heckler, 724 F.2d 914, 920 (11th

Cir. 1984), the Eleventh Circuit Court of Appeals held that
"[a]n impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the
individual's ability to work, irrespective of age, education, or
work experience."

Brady v. Heckler, 724 F.2d 914, 920 (11th

Cir. 1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985);
cf. 20 C.F.R. § 404.1521(a) (2004).14

The Court of Appeals has

gone on to say that "[t]he 'severity' of a medically ascertained
disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely

14

"An impairment or combination of impairments is not severe if it
does not significantly limit your physical or mental ability to do
basic work activities."

10

medical standards of bodily perfection or normality."
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

McCruter

It is also

noted that, under SSR 96-3p, “evidence about the functionally
limiting effects of an individual’s impairment(s) must be
evaluated in order to assess the effect of the impairment(s) on
the individual’s ability to do basic work activities.”
The Court has already found substantial support for the
ALJ’s discrediting of Dr. Varner’s pain assessment.

Tucker has

directed this Court to no other evidence to support this claim
(see Doc. 12, pp. 8-10).

The medical evidence, however, fails

to demonstrate that this impairment has interfered with
Plaintiff’s ability to work.

Only Dr. Varner’s assessment,

unsupported by any other evidence of record, suggests that
Tucker’s polycystic ovary syndrome would keep her from working.
The Court finds substantial support for the ALJ’s conclusion
that this impairment was not severe.
Plaintiff has raised two 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 conclusion."
Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the

Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
11

F.2d 947, 950 (5th Cir. 1980), and that this action be
DISMISSED.

Judgment will be entered by separate Order.

DONE this 18th day of December, 2012.

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

12