Buttram v. Astrue

Filing 29

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 7/18/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TROY EDWARD BUTTRAM,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 12-0560-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, 18).
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. 26).
argument was waived in this action (Doc. 27).

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
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 administrative hearing, Plaintiff was
forty-two years old, had completed a high school education (Tr.
37), and had previous work experience as a truck driver and
logger (Tr. 57).

In claiming benefits, Buttram alleges

disability due to congenital lumbar stenosis, herniated nucleus
pulposus with radiculopathy, spondylosis, peripheral neuropathy,
facet arthrosis, obesity, diabetes mellitus, and
gastroesophageal reflux disease (Doc. 18 Fact Sheet).
The Plaintiff filed protective applications for disability
insurance and SSI on September 29, 2009 (Tr. 164-71; see also
Tr. 16).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although
Buttram could not return to his past relevant work, there were
specific jobs that he could perform (Tr. 16-27).

Plaintiff

requested review of the hearing decision (Tr. 7-8) by the

2

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, Buttram

(1) The ALJ did not properly consider his

complaints of pain; (2) the ALJ improperly discounted his
testimony; and (3) the ALJ posed an incomplete hypothetical
question to the vocational expert (hereinafter VE)1 (Doc. 18).
Defendant has responded to—and denies—these claims (Doc. 22).
The relevant evidence of record is as follows.
On July 29, 2008, Plaintiff was seen by Dr. Bryan C.
Delaney, his primary care physician at Family Practice
Associates, for abdominal discomfort at night; the doctor noted
that Buttram was obese but in no distress (Tr. 230; see
generally Tr. 228-44).

Lab testing demonstrated probable

metabolic syndrome and possible early diabetes; Plaintiff was
encouraged to diet and lose weight.
On August 8, 2008, Dr. Russell A. Hudgens, at Alabama
Orthopaedic Clinics, examined Buttram for low back pain (Tr.
245; see generally Tr. 245-66).

Plaintiff had mild myofascial

tenderness in the lumbosacral junction and mild pain on straight
leg raise testing; x-rays of the lumbar spine showed minimal
degenerative changes.

The Doctor’s impression was lumbar pain,

1

Plaintiff has framed these three claims as four claims in his
brief (Doc. 18). The Court, however, has re-characterized the
substance of those claims as only three.

3

strain, and degenerative disk disease.

Buttram was given an

injection of Toradol2 with prescriptions for Flexeril3 and
Lortab.4

On August 29, 2008, Plaintiff reported a work accident

that had occurred three days earlier, causing upper back pain in
addition to that in his lower back (Tr. 247).

Orthopaedic

Hudgens noted mild tenderness throughout the upper thoracic area
as well as the lumbar area; there were no signs of neurological
deficits or weakness.

Buttram was given another Toradol

injection and his Lortab prescription amount was increased.

On

September 4, Plaintiff complained of continuing lower back pain,
radiating upward and into his right hip; the doctor noted
localized tenderness at the lumbar region with some pain on
palpation as well as percussion at the thoracolumbar junction
(Tr. 249).

Buttram was to remain off work for the time being.

An MRI of the lumbar spine was performed on September 15,
showing a mild annular bulge at L3-L4, a mild broad-based
annular bulge at L4-L5, and a mild annular bulge with a right
lateral protrusion at L5-S1, all creating mild central canal
narrowing and foraminal encroachment or stenosis; also, there

2

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).
3
Error! Main Document Only.Flexeril is used along with “rest and
physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).
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).

4

were degenerative changes of the thoracolumbar junction (Tr.
251).

At his next examination, on September 19, 2008, Dr.

Hudgens told Buttram to continue with Flexeril and Lortab; he
was to remain off work for another two-to-three weeks (Tr. 253).
On October 9, the Orthopaedic noted that Plaintiff was in
moderate discomfort on palpation of the lumbar area with mild
pain on straight leg raise testing; Buttram received an epidural
block, was to continue with his medication, and was not to
return to work (Tr. 254).

On November 4, Plaintiff complained

of moderate lumbar pain, seven on a ten-point scale; Hudgens
found tenderness and mild pain (Tr. 255).
second epidural block.

Plaintiff underwent a

Three weeks later, the doctor found

minimal pain on straight leg raise testing of only the left leg;
the doctor’s diagnosis was lumbar pain and stenosis and a
congenital lumbar disk bulge at L5-S1 (T. 256).

The December 16

examination revealed continued lumbosacral tenderness though
there were no focal motor or sensory deficits in the lower
extremities; Buttram was to continue medications and staying
away from work (Tr. 257).

On January 20, 2009, there was no

change, even after a third epidural (Tr. 258; see Tr. 265).

A

month later, Plaintiff was experiencing moderate tenderness at
the right sacroiliac area with mild pain on straight leg raise
testing; he received a trigger point injection (Tr. 259).

Dr.

Hudgens noted that Buttram could not afford physical therapy.

5

On March 17, Plaintiff complained that the lower back pain was
radiating into his right hip and leg; the doctor noted mild
discomfort and sent him for a consultation (Tr. 260).

On March

25, 2009, Dr. Tim Revels examined Buttram, finding him in no
acute distress though he did have limited lumbar range of motion
(hereinafter ROM); the doctor discussed various treatment
options, including surgery while cautioning that he thought
there was only a fifty percent chance at success, before giving
him a prescription for Lyrica.5

On May 7, Dr. Hudgens stated

that he had no recommendations other than to continue
conservative treatment; Plaintiff was to continue not working
and taking his medications (Tr. 262).
From May 19 through August 19, 2009, Plaintiff was seen by
Dr. Robert E. McAlister, Jr. for pain management (Tr. 267-83).
Buttram was treated on six occasions, primarily at three-week
intervals, during which he reported that his pain improved, if
only minimally; Plaintiff received three lumbar-sacral facet
blocks during this period as well.
On August 21, 2009, Buttram was seen by Dr. Delaney for a
general checkup; Plaintiff complained of epigastric discomfort
and burning paresthesias on the bottom of his feet (Tr. 230).
Plaintiff stated that he was walking and swimming 1-2 times a

5Lyrica is used for the management of neuropathic pain.

Error!
Main Document Only.Physician's Desk Reference 2517 (62nd ed. 2008).

6

day.

Delaney noted that Plaintiff had gained five pounds over

the past thirteen months, was still obese, but in no distress;
Buttram was encouraged to work on his diet (Tr. 231).
On August 25, 2009, Plaintiff said there were no changes in
his back pain; Dr. Hudgens noted minimal tenderness across the
lumbosacral area (Tr. 263).

No prescriptions were given until

he could see the report from Dr. Robert McAllister.

On

September 14, 2009, Dr. Charles E. Hall noted that he was
examining Buttram for pain management at Dr. Hudgens’s request;
the doctor noted that Plaintiff was in no distress (Tr. 266).
Cervical ROM was normal and sensation was intact; upper
extremities revealed no motor deficits.

Lumbar ROM was limited

with extension and flexion; straight leg raise was equivocal on
the right.

There was tenderness in the paraspinal muscles in

the lumbar; decreased motion was noted.

Lortab and Lyrica

prescriptions were continued.
On October 12, 2009, Orthopedist Hall conducted a follow-up
examination of Buttram who was in no distress; the doctor
continued prescriptions for Lortab and Lyrica (Tr. 301; see
generally Tr. 289-309).

On November 18, Plaintiff complained of

continued pain in his back and right lower extremity, though he
indicated that the Lortab helped; the doctor noted that Buttram
appeared to be in no distress, that there were no definite motor
deficits in the lower extremities, and that lumbar spine ROM

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demonstrated decreased segmental motion (Tr. 298).
On December 1, 2009, Dr. Delaney noted that Plaintiff
complained of stomach pain for four days for which he prescribed
Darvocet6 and Phenergan7 (Tr. 285).

A hepatobiliary scan

revealed biliary dyskinesia with abnormally low gallbladder
ejection fraction, suggesting chronic cholecystitis (Tr. 286).
On January 11, 2010, Dr. Hall continued the Lortab and
Lyrica prescriptions (Tr. 297).

On February 8, Buttram reported

that he was doing well; the Orthopaedic noted no distress, no
gross motor deficits in the lower extremities, intact sensation
in L3 to S1, and that straight leg raise was mildly positive
bilaterally (Tr. 295).

The doctor recommended an epidural.

On

May 6, Plaintiff reported doing well; Hall noted lumbar spine
ROM was limited with extension and continued the prescriptions
(Tr. 293).

On August 4, Buttram reported doing ok and that the

medications helped; the Orthopaedic noted continuing pain in the
right upper extremity (Tr. 290).

On November 1, Plaintiff was

still having back and right lower extremity pain, going into his
foot, which limited his function; the doctor found no motor
weakness in the lower extremities, but noted a positive straight

6Error! Main Document Only.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).
7
Error! Main Document Only.Phenergan is used as a light sedative.
Physician's Desk Reference 3100-01 (52nd ed. 1998).

8

leg raise in the sitting position on the right (Tr. 316-19).
Hall recommended an epidural and continued prescriptions for
Lortab and Lyrica.
On December 1, 2010, Dr. Hall completed a functional
capacity evaluation in which he indicated that Buttram was
capable of sitting for two hours and standing and/or walking for
two hours at a time while being able to sit for four hours and
standing and/or walking for two hours during the course of an
eight-hour day (Tr. 311-12).

The doctor further found Plaintiff

capable of lifting up to five pounds continuously, ten pounds
frequently, and twenty-five pounds occasionally while able to
carry up to five pounds continuously, ten pounds frequently, and
twenty pounds occasionally.
could do the following:

Dr. Hall indicated that Plaintiff

reach overhead, handle and finger (with

either hand), and push and pull with either legs or arms
continuously; climb, balance, stoop, crouch, and crawl
occasionally; and kneel on a negligible basis.

The doctor

stated that Buttram could perform work activity full-time.

Dr.

Hall also completed a pain form indicating that Plaintiff had
pain but that it would not prevent functioning in everyday or
work activities, that physical activity would increase his pain
without preventing adequate functioning of his tasks, and that
his pain medications would cause some limitations but would not
create serious problems (Tr. 314).

9

On December 27, 2010, Dr. Hudgens examined Buttram and
noted that he agreed with Dr. Hall’s functional capacity exam;
he noted minimal tenderness across the lower lumbar area and
mild pain on straight leg raise testing (Tr. 321-23).

He

recommended no changes to Plaintiff’s conservative treatment or
medications.
At the evidentiary hearing, Buttram testified that sitting
for long periods (thirty-to-forty minutes) irritated his back
(Tr. 39, 53; see generally Tr. 36-53).

He stated that he took

and picked up his granddaughter from daycare and gave her
snacks.

He visited with friends at their places of business.

Buttram stated that he did not have the money to cover the copays for physical therapy since he was not working so he did not
undergo that process.

He does some housework, including washing

dishes, vacuuming, washing clothes, and grocery shopping; he
goes to church regularly on Sundays and Wednesdays.

Plaintiff

used to hunt and play ball, but he has had to give them up since
the injury; he watches a lot of television.

Buttram’s pain is

in his back, but it radiates into his right leg; numbness
accompanies the pain into the foot.

Pain keeps him from

sleeping more than two or three hours at a time each night.
A VE testified at the hearing that she was familiar with
the evidence of record as well as jobs existing in the nation
and region (Tr. 53-61).

She testified about the nature and

10

classifications of Buttram’s past work.

In answering specific

questions by the ALJ, the VE testified that Plaintiff could not
return to his past work, but that there were specific jobs that
he could perform.
In her determination, the ALJ found that Plaintiff was not
capable of performing his past relevant work, but that he could
perform less than a full range of light work (Tr. 16-27).

In

reaching this conclusion, she gave controlling weight to the
opinions of Dr. Hall, noting that they were consistent with the
conclusions of Dr. Hudgens (Tr. 23).

The ALJ found that

Plaintiff’s testimony was not fully credible (Tr. 24).

The ALJ

found the VE’s testimony consistent with the Dictionary of
Occupational Titles and adopted her conclusions as her own (Tr.
26).

This concludes the relevant evidence of record.
In his first claim, Buttram asserts that the ALJ did not

properly consider his pain.

Plaintiff has specifically asserted

that the ALJ did not properly apply Social Security Ruling 96-7p
to the evidence of record (Doc. 18, pp. 5-7).
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

11

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
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) (2013).
In her determination, the ALJ faithfully set out all of the

12

medical evidence of record.

Though Buttram asserts that the ALJ

“cherry-picked” the evidence (Doc. 18, p. 7), he has not
demonstrated to this Court any evidence that the ALJ neglected
to consider.

The Court further notes that the ALJ did not

discount any medical opinion of record.

In finding that

Buttram’s pain was not disabling, the ALJ specifically relied on
the opinion of treating physician, Dr. Hall (Tr. 23).

The Court

notes that Dr. Hudgens agreed with Hall’s assessment of
Plaintiff’s abilities (see Tr. 321), a fact acknowledged by the
ALJ (Tr. 23).

These two Orthopedics provided most all of

Buttram’s treatment during the course of the period under
consideration.

They are also specialists.

While Plaintiff may

disagree with their ultimate conclusions about his pain and his
ability to work, the ALJ gave them controlling weight.
In arguing his claims, Plaintiff has directed the Court’s
attention to the extensive medications that have been prescribed
as well as the different medical regimens undergone to alleviate
his pain (Doc. 18, pp. 9-10).

He has also pointed to his own

subjective complaints (Doc. 18, pp. 7-8).8
The ALJ found that Buttram’s claims regarding his pain and
limitations were not credible to the extent alleged (Tr. 24).
In doing so, the ALJ pointed out the inconsistencies in his own

8The Court will discuss Plaintiff’s first and second claims

together as they are so closely linked.

13

testimony and with the medical records of his doctors.

However,

it is apparent that the ALJ relied primarily on the conclusions
of Plaintiff’s treating physician who determined that, in spite
of the pain that he suffered and the medical regimen he was
undergoing to relieve that pain, Buttram was able to work.
The Court finds substantial support for the ALJ’s decision.
In reaching this conclusion, the Court finds that the ALJ
properly considered case law, regulatory law, and rulings
entered by the Social Security Administration.9

Plaintiff’s

assertion that the ALJ did not properly consider his pain, and
in the process improperly discounted his testimony of pain and
limitations, is without merit.
Buttram has also claimed that the ALJ posed an incomplete
hypothetical question to the VE (Doc. 18, p. 10).

The Eleventh

Circuit Court of Appeals has held that an ALJ's failure to
include severe impairments suffered by a claimant in a
hypothetical question to a vocational expert to be reversible
error where the ALJ relied on that expert's testimony in
reaching a disability decision.
1561 (11th Cir. 1985).

Pendley v. Heckler, 767 F.2d

More recently, in Winschel v.

Commissioner of Social Security, 631 F.3d 1176, 1181 (11th cir.

9The Court has re-familiarized itself with Social Security Ruling

96-7p, but finds nothing there that suggests that the ALJ has not
properly considered everything that should be evaluated in this
record. Buttram has not demonstrated any such failing.

14

2011), the Eleventh Circuit Court of Appeals held that, after
determining that a claimant had a moderate limitation in
maintaining concentration, persistence, or pace, an ALJ had to
either determine that the limitation would not affect the
claimant’s ability to work or include that limitation as part of
the hypothetical question to the VE.
At the evidentiary hearing in this action, the ALJ asked
the VE about Buttram’s previous work.

The ALJ then posed a

hypothetical question to the VE, stating as follows:
I would like for you to assume an individual
of the same age, education, work background
as the claimant, and further assume that the
individual could sit for up to four hours
per eight-hour workday, could stand for two
hours per eight hour workday, and walk for
two hours per eight-hour workday. But the
individual should not sit, stand, or walk
for more than two hours at any one time.
The individual could continuously lift and
carry up to five pounds, frequently lift and
carry up to ten pounds, and occasionally
life [sic] and carry up to 20 pounds. The
individual could climb, balance, stoop,
crouch, and crawl, but should not kneel at
all. The individual could continuously
reach, handle, finger, and push and pull
with the bilateral upper and lower
extremities. Individual could only
occasionally perform activities involving
marked changes in temperature and humidity,
exposure to dust, fumes, and gases, noise,
work in proximity to moving mechanical
parts, or in high exposed places. He could
only occasionally drive automotive
equipment. Would you think that that
individual would be capable of performing
any of the claimant’s past work?

15

(Tr. 57-58).10

The VE testified that Plaintiff could not do any

of his past work, but could perform the jobs of security guard,
dispatcher, and general office clerk (Tr. 58-59).

The VE

further stated that the individual would be able to sit and
stand periodically during the day with these jobs (Tr. 59-60).
In the second hypothetical, the VE was to assume the same
restrictions as in the first hypothetical, but further “assume
that this individual due to pain, potential medicinal side
effects and other factors would have mild to moderate impairment
in terms of concentration, persistence or pace, which [was
described] as being off-task or a non-productive pace for
approximately up to five percent of the workday” (Tr. 60).

The

VE stated that the individual would still be able to perform
those same jobs (Tr. 60).
Buttram’s objection to this second hypothetical is that the
“ALJ arbitrarily determined that claimant’s [sic] would be offtask or non-productive for up to five percent of the workday
notwithstanding the claimant’s testimony and the medical
evidence indicating that claimant’s pain and side effects from
his medication would significantly interfere with his ability to
work” (Doc. 18, p. 10) (emphasis in original).

10The Court notes that this hypothetical tracks the limitations

found in the physical capacities evaluation completed by Dr. Hall (see
Tr. 311).

16

The Court finds no error in the ALJ’s hypothetical question
or in her reliance on the VE’s answer.

The ALJ, in this

hypothetical, has acknowledged that Plaintiff may have minor
concentration, persistence, and pace issues and tried to
determine whether Buttram can work through them, determining
that he can.

Plaintiff again ignores the fact that her two

Orthopaedic physicians have indicated that she can work in spite
of her pain and limitations.

The doctors’ conclusions have been

disputed by no medical source in this record.

Plaintiff’s

statements of inability to work are insufficient to rebut the
doctors’ conclusions.
Buttram 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 18th day of July, 2013.

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

17