Foster v. Astrue
MEMORANDUM AND OPINION entered.. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further administrative action not inconsistent with the Courts Orders, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 2/20/2013. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
INGRID ARNITA FOSTER,
MICHAEL J. ASTRUE,
Commission of Social Security,
CIVIL ACTION 12-0470-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. 19).
argument was waived in this action (Doc. 18).
consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
administrative action not inconsistent with the Court’s Orders.
This Court is not free to reweigh the evidence or
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).
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.
At the time of the administrative hearing, Plaintiff was
forty-eight years old, had completed an associate’s degree in
nursing (Tr. 64), and had previous work experience as a
phlebotomist lab assistant (Tr. 64, 67).
In claiming benefits,
Foster alleges disability due to a left calcaneus fracture and
right distal radius fracture (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability insurance
and SSI on August 25, 2009 (Tr. 139-46; see Tr. 17).
were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that Foster was disabled between May 18,
2009 through November 29, 2010, but that she showed medical
improvement as of November 29, 2010 and was able to perform
specific sedentary jobs beyond that date (Tr. 17-28).
requested review of the hearing decision (Tr. 11) by the Appeals
Council, but it was denied (Tr. 1-5).
In this action, Plaintiff claims that the opinion of the
ALJ is not supported by substantial evidence.
Foster alleges that:
(1) The ALJ did not properly consider the
opinions of her treating physicians; and (2) the ALJ did not
properly consider the side effects of her medications (Doc. 13).
Defendant has responded to—and denies—these claims (Doc. 14).
Plaintiff has claimed that the ALJ did not accord proper
legal weight to the opinions, diagnoses and medical evidence of
Foster specifically directs this Court’s
attention to the records of Drs. Frederick Meyer and Mark Perry
(Doc. 13, pp. 5-13).
It is 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
Oldham v. Schweiker, 660 F.2d 1078, 1084
(5th Cir. 1981);1 see also 20 C.F.R. § 404.1527 (2012).
As noted earlier, the ALJ found that Plaintiff had shown
medical improvement as of November 29, 2010 and was able to
perform specific sedentary jobs beyond that date (Tr. 17-28).
The ALJ reached that conclusion based on evidence provided by
Dr. Perry (Tr. 25).
The Court will review that evidence.
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.
On November 30, 2010, Dr. Perry, an orthopedic surgeon,
noted that Foster had
periods when she is not having any symptoms.
However, on busy days she does have
discomfort on the lateral border of her left
foot. She describes the pain as being
somewhat superficial and also that her left
foot swells which is worse with activity.
Most of her issues, however, are in the
anterolateral aspect of her joint. She
notes that when she turns a certain way
sometimes she will have rather significant
On examination, the doctor noted that her incisions
were well healed.
“Her peroneal tendons are somewhat tender to
Resisted eversion is also uncomfortable for her.
She has notable tenderness in the anterolateral corner of her
joint line and much less so anteromedially” (id.).
studies showed that Foster had “an estimated 10º of Bohler’s
angle on the right” (id.).
On that same date, Dr. Perry wrote a
prescription for Lortab2 7.5 to be taken as needed every four to
six hours (Tr. 393).
On January 14, 2011, Perry completed a
physical capacities evaluation (hereinafter PCE) in which he
indicated that Plaintiff was capable of lifting or carrying five
pounds frequently and ten pounds occasionally and that she could
sit for six hours and stand or walk for two hours during an
2Error! 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).
eight-hour workday (Tr. 401).
Perry further indicated that
Foster could engage in gross manipulation, fine manipulation,
bending, and stooping frequently, reaching occasionally, but
climbing and working around hazardous machinery only rarely.
The doctor indicated that Plaintiff would miss three days of
work per month because of her impairments, noting that she had
continued foot pain with irritation from hardware in foot.
othopod also completed a pain form in which he indicated that
Foster had pain but that it would not prevent functioning in
everyday activities or work and that physical activity would
greatly increase her pain, causing distraction from her tasks;
Perry also indicated that her prescribed medications would cause
side effects which could be expected to be severe and limit her
effectiveness (Tr. 402).
On December 2, 2010, Dr. Frederick N. Meyer, an orthopedic
surgeon, stated that he had been seeing Plaintiff for a fracture
of her right distal radius and bilateral carpal tunnel syndrome,
noting that she had continued numbness in both hands (Tr. 391).
On examination, he found a positive Tinel’s on the right and
negative on the left; she also had a positive Phalen’s
bilaterally and positive median nerve compression test.
further noted varying sensation in the different fingers of the
An EMG report demonstrated severe left-sided carpal
tunnel syndrome and moderately-severe right carpal tunnel
Dr. Meyer gave Foster steroid injections in both
On December 20, 2010, the orthopod completed a PCE in
which he indicated that Plaintiff was capable of lifting and
carrying ten pounds frequently and twenty pounds occasionally
and sitting for eight and standing or walking for three hours
during an eight-hour day (Tr. 389).
Meyer also indicated that
Plaintiff could engage in gross manipulation, bending, stooping,
reaching, and operating motor vehicles occasionally, but could
use arm and leg controls, climb, engage in fine manipulation,
and work around hazardous machinery only rarely.
indicated that Foster would miss three days of work a month
because of her impairments.
Dr. Meyer also completed a pain
questionnaire in which he indicated that Plaintiff had pain, but
that it would not prevent her from functioning in everyday
activities or work and that physical activity would increase her
pain but not to such an extent as to prevent functioning; the
doctor also noted that her medications would cause side effects
which would be expected to be severe and limit her effectiveness
In her decision, the ALJ found that Dr. Perry’s notes
indicated medical improvement as of November 30, 2010 (Tr. 25).
She went on to accord significant weight to Perry’s conclusions
except that she gave no weight to his opinion that Foster would
“miss more than three workdays [a month] as a result of the
claimant’s impairments and/or treatments” (Tr. 26).
this decision, the ALJ found that Perry’s medical notes did not
support that conclusion.
The ALJ went on to give significant
weight to the opinions of Dr. Meyer (Tr. 26).
The Court first notes that the ALJ mischaracterized Dr.
Perry’s conclusion that Foster would “miss more than three
workdays” a month because of her impairments (Tr. 26).
doctor said that she would miss three days a month—not more than
three days a month (Tr. 401).
The Court also notes that the ALJ
did not acknowledge that Dr. Meyer indicated that Plaintiff
would miss three days a month because of her impairments; she
also gave significant weight to Dr. Meyer’s opinions (Tr. 26;
cf. Tr. 389).
While this might seem to be a minor detail, the
Court notes that the Vocational Expert testified that if
Plaintiff had to miss three days of work a month, she would not
be able to perform any work (Tr. 91).
The Court finds that the
ALJ’s conclusions are internally inconsistent and further finds
that the ALJ’s decision is not supported by substantial
The Court further notes that Dr. Perry, in an examination
note from March 1, 2011, wrote the following:
At this point [Foster] does not desire
surgical intervention for her symptoms. She
is aware that this office will always be
happy to see her but I will not schedule a
followup appointment at this time. When she
reaches the level that her symptoms no
longer are tolerable she will recontact the
office. I do not wish my choice of words in
describing her symptoms to be interpreted as
though she does not have significant pain
and discomfort at this time. Apparently my
previous notes were interpreted by the
administrative judge as though she is not
having pain as of my last visit. This is
not the interpretation that I would give my
office notes. She was also given a
prescription for Lortab 7.5 today.
(Tr. 404) (emphasis added).3
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.
Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental evidentiary hearing for
the gathering of evidence as to Plaintiff’s ability to work.
Judgment will be entered by separate Order.
DONE this 20th day of February, 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
Though the Government seems unsure whether the Court can
consider this evidence or not (see Doc. 14, pp. 9-10), a decision
on that point is unnecessary as the Court has already determined
that the ALJ’s decision is not supported by substantial evidence
on other grounds. Nevertheless, the Court notes that this
evidence, initially submitted to the Appeals Council, should be
considered by the ALJ on remand.
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