Wilson 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 3/7/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASMINE LATRICE WILSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,1
Defendant.

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CIVIL ACTION 12-0488-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for 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).

Oral argument was waived in this action (Doc. 18).

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.

1Carolyn W. Colvin became the Commissioner of Social Security on

February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is
substituted for Michael J. Astrue as Defendant in this action. No
further action needs to be taken as a result of this substitution.
U.S.C. § 405(g).

1

42

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).

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
nineteen years old, had completed a ninth-grade education (Tr.
49), and had no previous work experience (Tr. 50).

In claiming

benefits, Plaintiff alleges disability due to obesity,
degenerative disc disease of the lumbar spine, sleep apnea, and
major depression (Doc. 13 Fact Sheet).
The Plaintiff filed an application for SSI on July 16, 2009
(Tr. 140-42; see also Tr. 22).

Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that
Wilson was capable of performing less than a full range of light
work, naming specific jobs which she could perform (Tr. 22-32).
Plaintiff requested review of the hearing decision (Tr. 14-15)
by the Appeals Council, but it was denied (Tr. 1-5).

2

Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Wilson alleges

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

conclusions of her treating physician; (2) the ALJ improperly
discounted her testimony regarding her impairments; and (3) she
is not capable of performing light work (Doc. 13).
has responded to—and denies—these claims (Doc. 14).

Defendant
A summary

of the relevant evidence of record follows.2
Records from the USA Department of Pediatrics, dating from
January 6 through July 22, 2009, show that Wilson was treated,
at various times, for heartburn, shortness of breath, a bladder
infection, and dysuria (Tr. 333-50).

The notes indicate a focus

on Plaintiff’s eating habits and exercise regimen.
On October 1, 2009, Joanna Koulianaos, Ph.D., completed a
Psychiatric Review Technique Form3 in which she indicated that
Plaintiff suffered from an adjustment disorder with mixed
disturbance of emotions (Tr. 351-64).

This disorder caused mild

limitations in Wilson’s activities of daily living and in
maintaining social functioning; she had moderate limitations in
maintaining concentration, persistence, and pace.

On the same

date, Koulianaos completed a Mental Residual Functional Capacity

2

Wilson alleges an onset date of June 1, 2009 (Tr. 140), so the
Court will not discuss the evidence that precedes that date by a good
margin.
3
The opinions in this form are based on the evidentiary record in
existence at the time of its completion as Koulianaos did not examine
Wilson.

3

Assessment indicating that Plaintiff was moderately limited in
her ability to do the following:

understand, remember, and

carry out detailed instructions; maintain attention and
concentration for extended periods; and respond appropriately to
changes in the work setting (Tr. 365-68).

Koulianaos expressed

the opinion that Wilson would be able to pay attention for twohour periods.
Records from AltaPointe Health Systems show that Plaintiff
began engaging in individual therapy sessions on October 6, 2009
wherein she discussed her depression and home situation (Tr.
369-89).

On January 25, 2010, Wilson was diagnosed to have

Depression NOS, rule out Anxiety Disorder; it was noted that she
took Zoloft4 (Tr. 382).

On March 16, Celexa5 was prescribed

instead of Zoloft (Tr. 378); Plaintiff admitted that she had put
off her goal to get her GED so that she could undergo gastric
bypass surgery (Tr. 377).

On July 29, Wilson reported continued

sleeplessness, depression, anxiety, and paranoia; Prozac6 was
prescribed (Tr. 373).

On August 31, Plaintiff reported that she

had stopped taking the Prozac because of her pregnancy; she was
encouraged to begin taking it again to alleviate her continued

4Error! Main Document Only.Zoloft is “indicated for the treatment

of depression.” Physician's Desk Reference 2229-34 (52nd ed. 1998).
5

Celexa is used in treating depression. Error! Main Document
Only.Physician's Desk Reference 1161-66 (62nd ed. 2008).
6Error!
 Main
 Document
 Only.Prozac is used for the treatment of

depression. Physician's Desk Reference 859-60 (52nd ed. 1998).

4

symptomology (Tr. 371).
Plaintiff was seen at Pulmonary Associates for a work-up
before—and follow-up after—her gastric bypass surgery (Tr. 52641).

In a letter dated February 9, 2010, Wilson was noted to

still have some sleep apnea symptoms, though it was unnecessary
for her to continue to use her CPAP; her EKG was normal and a
chest x-ray demonstrated no marked abnormalities (Tr. 531).
Plaintiff’s weight was listed as 363; though morbidly obese, she
was in no acute distress and her blood pressure was only
slightly elevated (Tr. 529).

On May 3, it was noted that Wilson

had successfully undergone the gastric bypass surgery, though it
was learned that she was one month pregnant at the time; her
weight was down to 326 (Tr. 528).

On August 2, Plaintiff

reported shortness of breath on exertion, worsening sleep apnea,
and weight loss in spite of her pregnancy; she was thought to be
stable from a pulmonary standpoint (Tr. 527).
Records from University of South Alabama Health Services
reveal that Wilson underwent a gastric bypass, performed by Dr.
William Richards, because of her morbid obesity in March 2010
(see generally Tr. 394-423).

On April 6, she was seen in the ER

for nausea and vomiting; Wilson was admitted to the hospital and
discharged two days later (Tr. 422).

During that admission, as

well as on another earlier occasion following her surgery,
Plaintiff underwent an Esophagogastrojejunoscopy with endoscopic

5

dilation of the gastrojejunostomy (Tr. 420, 422).
On April 20, 2010, Plaintiff was seen at the Center for
Women’s Health High Risk OB for asthma, sleep apnea, acid
reflux, and morbid obesity (Tr. 582; see generally Tr. 542-82).
On June 24, Wilson complained of a one-sided headache, sinus
congestion, and ear pain; Claritin was prescribed (Tr. 579).
Vaginal bleeding was reported on July 21; there was some concern
that Plaintiff was losing weight in spite of being pregnant (Tr.
577-78).

On August 18, Wilson was noted to have gained some

weight which was up to 318 pounds (Tr. 574-75).

The Court notes

that much of these records report the development of the baby;
those records will not be summarized herein.
Records from Dr. Jean A. Sansaricq, dating from April 27
through November 2, 2010, disclose medical information relating
to Wilson’s treatment over the course of her pregnancy during
which she suffered from asthma, sleep apnea, morbid obesity,
acid reflux, acute nausea and vomiting, and weight loss (Tr.
492; see generally 414-515).

A note on September 12 indicated

that Plaintiff’s morbid obesity, asthma, and depression were all
relatively stable (Tr. 458).
Records from AltaPointe Health Systems show that Wilson, on
September 28, 2010, reported taking only half of her prescribed
medication (Tr. 522; see generally Tr. 519-25).

Plaintiff

further reported depression and anxiety at times along with some

6

paranoia; medication dosage was increased and Risperdal7 was
added to the regimen.

On October 26, Wilson reported good

energy and concentration though she was tired due to her
pregnancy (Tr. 520-21).

Plaintiff further reported being in

compliance with the Risperdal prescription, but only taking the
Prozac sometimes; she denied any medication side effects.
Insight and judgment were thought to be poor, though anxiety was
only mild.
On November 3, 2010, Dr. William Richards completed a
Physical Capacities Evaluation (hereinafter PCE) in which he
indicated that Plaintiff was capable of sitting for three hours
and standing or walking for one hour during an eight-hour
workday (Tr. 517).

Richards also indicated that Wilson would

never be able to bend, stoop, or work around hazardous
machinery, rarely use arm or leg controls, climb, reach, or
operate motor vehicles, and could only occasionally perform
gross and fine manipulation.

On that same date, Richards

completed a pain form stating that Wilson’s pain would distract
her from adequately performing daily activities and work and
that physical activity would greatly increase her pain so as to
distract her from what she was doing and might even cause
abandonment of the task (Tr. 518).

The doctor further indicated

7Error!
 Main
 Document
 Only.Risperdal is used “for the management of

the manifestations of psychotic disorders.”
Reference 1310-13 (52nd ed. 1998).

7

Physician's Desk

that prescribed medication would cause some limitations but not
to such a degree as to create serious problems.
On January 13, 2011, Plaintiff underwent a consultative
evaluation by Psychologist Lucile T. Williams who noted that
Wilson’s grooming and personal hygiene were fair and her mood
was oppositional and mildly depressed (Tr. 587-89).

Thought

processes were grossly intact; there were no loose associations,
tangential, or circumstantial thinking.

Insight, understanding,

and judgment were poor; intelligence was estimated to be
borderline to low average.

Williams’s impression was Nocturnal

Enuresis, Dysthymic Disorder, Oppositional Defiant Disorder, and
Panic Disorder without Agoraphobia; she thought that Wilson
would have a favorable response to treatment, including
psychotherapy, within six-to-twelve months.

The Psychologist

expressed the opinion that Plaintiff was not motivated to do her
best during the interview as many of her statements appeared
unreliable.

Williams also completed a Mental Medical Source

Statement in which she indicated that Wilson was moderately
limited in the following:

her ability to understand, remember,

and carry out complex instructions; make judgments on complex
work-related decisions; interact appropriately with the public,
supervisors, and co-workers; and respond appropriately to usual
work situations and to changes in a routine work setting (Tr.
583-84).

The Psychologist added the notation that “Ms. Wilson’s

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ability to interact with others is not based solely on her
impairments.

However, it is my belief she has the ability to

interact appropriately but chooses not to due to her
oppositional attitude and secondary gain” (Tr. 584).
On February 28, 2011, Orthopedic Surgeon Andre J. Fontana
examined Plaintiff who weighed 384 pounds (Tr. 592-93).

Range

of motion (hereinafter ROM) in the cervical spine was as
follows:

flexion 40º, extension 10º, rotation 35º left and

right, lateral flexion 15º left and right; sensory was good and
motor was 5/5.

Toe-heel gait was fair; motor was 5/5 in the

lower extremities.

Lumbar spine ROM was as follows:

flexion

30º, extension 10º, and lateral flexion 15º left and right;
straight-leg raise was 90º in the sitting position and 70º in
the supine.

ROM in the hips was good.

Fontana’s impression was

degenerative disk disease of the lumbar spine.

His conclusions

were that Wilson “should not do any lifting over 25 pounds with
infrequent bending.

Because of her weight, [he did] not feel

that she [was] capable of doing any stooping, kneeling, or
crawling and should not be doing any climbing” (Tr. 593).
Fontana also completed a PCE in which he indicated that Wilson
was capable of standing one hour, walking one hour, and sitting
eight hours at a time and standing four hours, walking four
hours, and sitting eight hours during an eight-hour day (Tr.
591).

Plaintiff would be able to lift and carry twenty pounds

9

on an occasional basis, but never more than that; she would be
able to use her hands and feet in repetitive actions.

Wilson

would be able to frequently reach, but could never bend, squat,
crawl, or climb; she was totally restricted from working at
unprotected heights and being around moving machinery.
At the evidentiary hearing, Wilson testified that she was
nineteen years old, weighed 330 pounds, and only finished the
ninth grade (Tr. 48-49).

Plaintiff stated that she was unable

to work because she had low self esteem about her size and she
did not feel like she could do anything; she stated that she was
not working because of her size, weight, and depression, and
because she did not get along with people and had no people
skills (Tr. 51).

Wilson stated that she could walk for thirty

minutes and stand for twenty minutes, but could sit for long
periods as long as she could change to different positions;
Plaintiff could not bend over and could only lift a gallon of
milk (Tr. 53-54).

She cannot climb stairs, stoop, squat, or

perform housework, but can take care of her personal needs (Tr.
55-56).

She takes care of her baby, though her mother does most

of it; she does nothing but sit and watch television all day
(Tr. 56).

Plaintiff testified that she needed gastric bypass

surgery because of the strain her weight put on her heart; after
the surgery, she has not been able to keep her food down (Tr.
57).

Her energy level has not improved, either; she feels weak

10

and tired and has stated taking B-12 shots (Tr. 57).

Wilson has

chest pains everyday that get worse when she does anything; her
heart will flutter as well (Tr. 58-59).

Plaintiff has back pain

all the time that gets worse after sitting a while or walking
(Tr. 59).

Wilson also has depression, anxiety, and visual

hallucinations (Tr. 59-60).

She does not get along with people

and does not like to be around them; she cannot remember things
(Tr. 60).

Plaintiff takes medication because she does not sleep

well, but it does not really help (Tr. 61).
A Vocational Expert (hereinafter VE) testified that a
hypothetical individual of Plaintiff’s age and education that
could lift twenty pounds occasionally and ten pounds frequently
with no limits on standing, walking, or sitting, so long as she
had the ability to shift positions while sitting at two-hour
intervals, who was restricted to simple, routine, repetitive
tasks and only occasional contact with the general public, could
perform the following jobs:

sewing machine operator,

housekeeper/cleaner, and production assembler (Tr. 63-65).
In the ALJ’s determination, she summarized the medical
evidence and determined that Plaintiff had the following
residual functional capacity (hereinafter RFC):
The claimant can lift 20 pounds occasionally
and 10 pounds frequently. She can sit for a
total of 8-hours and stand/walk for a total
of 6-hours during an 8-hour workday, and

11

would need the ability to alter body
position at 2-hour intervals for relief of
pain. She would also be limited to simple,
routine, repetitive tasks to accommodate any
residual psychiatric symptoms; and only
[sic] occasional contact with the general
public.
(Tr. 26).

The ALJ went on to find that Plaintiff’s testimony

about her impairments and limitations was not credible to the
extent that she alleged (Tr. 28, 30).

The ALJ gave little

weight to the conclusions of Drs. Fontana and Richards (Tr. 2829); the ALJ gave significant weight to the conclusions of
Psychologist Williams (Tr. 30).

This concludes the Court’s

summary of the medical evidence.
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.

More specifically, Wilson

asserts that the ALJ did not properly consider the conclusions
of Dr. William Richards (Doc. 13, pp. 6-9).

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);8 see

8The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions
of the former Fifth Circuit rendered prior to October 1, 1981.

12

also 20 C.F.R. § 404.1527 (2012).
The ALJ gave Dr. Richards’ conclusion of debilitating pain
and limitations of abilities “little weight,” stating the
following:
[I]t is inconsistent with his own treatment
of the claimant and the objective findings
of record. From December 2009 to July 2010,
Dr. Richards treated the claimant for
complaints of vomiting/nausea, morbid
obesity, and status post gastric bypass
surgery. Besides a general complaint of
hernias in May 2010, there is no other
indication of pain reported (including
severe back) or treatment for the same. On
physical examination in July 2010, no
abnormal musculoskeletal systems were noted,
and Dr. Richards observed the claimant had
“normal” gait & station. The claimant’s
other physical examinations of record also
indicate pain of 0 out of 10, and normal
extremity and musculoskeletal/back
examinations. There is simply no objective
medical evidence of record to support Dr.
Richards’ opinions.
(Tr. 29) (citations omitted).
The Court initially notes that Dr. Richards was the surgeon
who performed the gastric bypass surgery on Wilson in March 2010
(see generally Tr. 394-423).

The Court further notes that the

only medical evidence supplied by Richards that Plaintiff
specifically references in her argument is the PCE and pain form
completed on November 3, 2010 (Tr. 517-18).

This evidence was

generated approximately eight months after her surgery though

13

there is very little evidence that Richards saw her again before
generating these reports.

In any event, the evidence provided

by Richards fails to support the extreme limitations found in
his PCE and pain form.
Plaintiff has also challenged the ALJ’s rejection of Dr.
Fontana’s conclusions regarding her ability to perform certain
activities (Doc. 13, pp. 9, 12-13).

The ALJ’s findings with

regard to this issue are as follows:
The undersigned has given Dr. Fontana’s
opinion some weight as he is a specialist in
the field of orthopedics, and to the extent
it is consistent with the above residual
functional capacity. His opinion suggests
that the claimant is able to perform some
work despite her impairments; however,
little weight is given to his opinion that
the claimant is incapable of all stooping,
kneeling, crawling or climbing, because it
is not consistent with his own examination
findings and the objective findings of
record. On examination, the claimant
demonstrated good sensory, motor strength,
and range of motion of the hips.
Additionally, the claimant’s physical
examination findings, throughout the record
are mostly normal and do not suggest that
the claimant is incapable of all stooping,
kneeling, crawling or climbing.
(Tr. 28).

The Court finds support for the ALJ’s conclusions,

noting that Dr. Fontana is apparently the first doctor of record
to diagnose degenerative disk disease, which he did without the
benefit of x-rays or other objective measure.

14

The medical

evidence does not support the limitations suggested by Dr.
Fontana.
In finding support for the ALJ’s rejection of Dr.
Richards’s and Dr. Fontana’s conclusions, the Court is not
unmindful of Wilson’s string citation from the “medical record
as a whole [that] supports the opinions of Dr. Richards” (Doc.
13, p. 9).

The Court has reviewed that evidence and fails to

find objective evidence to support the conclusions asserted by
Drs. Richards and Fontana.

This claim is without merit.

Wilson next claims that the ALJ improperly discounted her
testimony regarding her impairments.

More specifically,

Plaintiff states that the ALJ did not properly consider her
daily activities and improperly found that she had not sought
out treatment for her impairments (Doc. 13, pp. 16-20).
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) (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

15

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 discussing Wilson’s first claim, the Court specifically
found that there was no objective medical evidence in the record
to support the limitations found by Drs. Richards or Fontana.
Likewise, there is no objective evidence to support the extreme
limitations Plaintiff states that she endures.

16

As noted above,

the regulations state that subjective testimony alone will not
support a claim for disability.
Finally, Wilson asserts that she is not capable of
performing light work.

She goes on to argue that the ALJ’s RFC

is not supported by any treating or examining physician (Doc.
13, pp. 9-16).
The Court first notes that the ALJ is responsible for
determining a claimant’s RFC.

20 C.F.R. § 404.1546 (2012).

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).

Light work has been defined as follows:
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.

17

20 C.F.R. § 404.1567(b) (2012).

The Court notes that the ALJ

determined that Plaintiff’s RFC was for less than a full range
of light work (Tr. 26).
As found earlier, Dr. Richards’ conclusions regarding
Plaintiff’s physical impairments were not supported by the
objective medical evidence of record.

Wilson has also

questioned the ALJ’s discounting of Dr. Fontana’s conclusions
regarding her abilities, but the Court found that they, too,
were properly discredited as unsupported by objective evidence.
As Plaintiff has failed to demonstrate objective evidence that
she is unable to work, the Court cannot find that the ALJ’s
conclusion is without substantial support.
Plaintiff has raised three different claims in bringing
this action.

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

Judgment will be entered by

separate Order.
DONE this 7th day of March, 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

18