Braxton v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered, Oral argument was waived in this action (Doc. 19). Upon consideration of the administrative record and the memoranda of the 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 5/1/2013. (clr)

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

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CIVIL ACTION 12-0618-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. 18).
argument was waived in this action (Doc. 19).

Oral

Upon

consideration of the administrative record and the memoranda of

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).

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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
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
fifty-two years old, had completed a two-year college education
(Tr. 85), and had previous work experience as a barber and
stylist (Tr. 85).

In claiming benefits, Plaintiff alleges

disability due to generalized arthralgia, obesity, legal
blindness without correction, adjustment disorder, anxiety, and
depression (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability insurance
and SSI on August 5, 2010 (Tr. 63-74).

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Benefits were denied by

an Administrative Law Judge (ALJ)2 who determined that Braxton
had no severe impairments and, therefore, no significant limits
in her ability to work (Tr. 19-27).

Plaintiff requested review

of the hearing decision (Tr. 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, Braxton

(1) The ALJ improperly found that she had no

severe impairments; (2) the ALJ did not properly consider her
statements regarding her pain and limitations; and (3) the ALJ
did not develop a full and fair record (Doc. 13).
responded to—and denies—these claims (Doc. 14).

Defendant has
The relevant

medical evidence of record is as follows.
Records from the Mobile County Health Department show that,
on August 6, 2010, Braxton was seen by a CRNP with complaints of
generalized pain, fatigue, and hair loss for one month;
Plaintiff said that her pain was at a level of three on a tenpoint scale (Tr. 137-39; see generally Tr. 135-80).

A motor

exam demonstrated no dysfunction; no sensory exam abnormalities
were noted.

The CRNP noted that Braxton was in no acute

distress and assessed her condition to be a rheumatologic
disorder.

Four days later, an LPN’s assessment was arthropathy

2On December 2, 2010, Plaintiff waived her right to personally

appear before the ALJ, stating that she was in constant pain and would
be unable to sit during the period of time required (Tr. 53).

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(Tr. 137).

On August 31, Plaintiff said her pain was at one;

the CRNP noted no dysfunction or abnormalities and, again,
assessed the problem to be rheumatoid arthritis (Tr. 135-37).
On September 2, Braxton received instructions for better
nutrition and exercise to help her lose weight from a registered
dietician (Tr. 135).
On October 21, 2010, Psychologist Jennifer L. Adams
examined Braxton and noted that she was alert and oriented in
all spheres; there were no loose associations, tangential or
circumstantial thinking, or confusion (Tr. 181-84).

Judgment

and insight were adequate; intelligence was thought to be
average.

The Psychologist’s assessment was adjustment disorder,

with anxiety and depressed mood along with rheumatoid arthritis.
Adams noted that Braxton’s anxiety and mood symptoms were not in
themselves disabling and that she was “able to understand and
carry out and remember instructions.

She [was] also able to

respond appropriately to supervision, co-workers, and handle job
stressors” (Tr. 183).
On November 4, 2011, Dr. Henrietta T. Kovacs examined
Plaintiff and noted that her corrected vision was 20/25 in both
eyes and 20/20 together (Tr. 185-90).

The doctor noted that

Braxton had no swelling, redness or tenderness in her upper
extremities; grip and biceps strength was 4/5 while deltoid
strength was 3/5.

There was no edema, varicosity, or ulcer in

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the lower extremities.

Gait was normal; straight leg raising

was negative at sixty-five degrees bilaterally.

Kovacs’s

impression was generalized arthralgia, but she noted that she
did not believe Plaintiff had rheumatoid arthritis; she further
noted hypertension, morbid obesity, and frequent nausea.

Dr.

Kovacs completed a range of motion chart, noting some minor
limitations in the cervical spine, but no limitations anywhere
else (Tr. 189-90).
On November 30, 2010, a non-examiner psychologist reviewing
the record evidence completed a Psychiatric Review Technique
form in which it was indicated that Braxton suffered from an
affective disorder (Tr. 192-205).

The non-examiner gave the

opinion that Plaintiff had mild restriction of activities of
daily living, mild difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, persistence, or pace (Tr. 202).

The non-examiner

also completed a Mental Residual Functional Capacity Assessment
which indicated that Braxton had no marked limitations but had
the following limited moderations:

the ability to understand

and remember detailed instructions; the ability to carry out
detailed instructions; the ability to maintain attention and
concentration for extended periods; the ability to complete a
normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent

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pace without an unreasonable number and length of rest periods;
the ability to accept instructions and respond appropriately to
criticism from supervisors; and the ability to respond
appropriately to changes in the work setting (Tr. 206-09).
In his decision, the ALJ summarized the medical evidence,
finding that although Braxton had impairments, none of them were
severe (Tr. 19-27).

In reaching this decision, the ALJ

discounted some of Dr. Kovacs’s conclusions as unsupported by
the objective evidence or inconsistent with other record
evidence, while assigning substantial weight to other of her
conclusions (Tr. 23-24).

Substantial weight was assigned to the

opinion of Psychologist Adams (Tr. 24).
Braxton first claims that the ALJ improperly found that she
had no severe impairments.

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);

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cf. 20 C.F.R. § 404.1521(a) (2012).3

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
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 ALJ specifically found that Braxton “does not have an
impairment or combination of impairments that has significantly
limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months”
(Tr. 25).

The medical evidence supports this conclusion.

There

is nothing in the records from the Mobile County Health
Department during the relevant period that support Plaintiff’s
assertion that she has severe impairments; the ALJ correctly
noted that none of her medical complaints on the days of her
visits, following her asserted day of disability, required a
doctor’s attention (see Tr. 23).

Furthermore, the range of

motions form completed by Dr. Kovacs demonstrate that Braxton

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"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."

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had full use of all extremities and her back with some minimal
limitations in the cervical spine and some minor strength
limitations in her arms (see Tr. 189-90).

The Court finds that

Plaintiff has not pointed to medical evidence in this record
that demonstrates that her impairments are severe.

Her claim

otherwise is without merit.
The Plaintiff next claims that the ALJ did not properly
consider her statements regarding her pain and limitations.

The

standard by which the Braxton'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
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

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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).
The Court notes again that Braxton waived her right to
appear at the evidentiary hearing to testify of her impairments
(Tr. 53).

Nevertheless, the ALJ went through the record and

summarized the evidence Plaintiff had provided concerning her
abilities and limitations (Tr. 21, 25-26).

The ALJ went on to

note that Braxton had “not generally received the type of
medical treatment one would expect for a totally disabled
individual as the record reveals relatively infrequent trips to
the doctor and no hospitalizations for the allegedly disabling
symptoms” (Tr. 26).

The ALJ went on to note that there was no

evidence to show that Plaintiff had been denied treatment

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because of her poverty.

The Court would further note that, in

the Mobile County Health Department records, Braxton had
indicated that her pain was only a one and three on a ten-point
pain scale on two separate visits.

The Court finds no support

for Plaintiff’s claim that the ALJ did not properly consider her
testimony of pain and limitation.
Finally, Braxton has asserted that the ALJ did not develop
a full and fair record.

The Eleventh Circuit Court of Appeals

has required that "a full and fair record" be developed by the
Administrative Law Judge even if the claimant is represented by
counsel.

Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.

1981).
Braxton’s only assertion of error with regard to this claim
is that the ALJ’s duty “includes ordering a consultative
examination if one is needed to make an informed decision’ (Doc.
13, p. 4).

The Court notes that the conclusions by Dr. Kovacs

and Psychologist Adams were both the result of consultative
examinations purchased by the Social Security Administration
(see Tr. 184, 191).

The Court finds nothing in the record to

indicate that the ALJ has not given the proper attention to
Braxton’s disability claim.

This claim is without merit.

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

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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.
DONE this 1st day of May, 2013.

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

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