White v. Astrue
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 6/21/2013. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FRANKIE D. WHITE,
CAROLYN W. COLVIN,
Commission of Social Security,1
CIVIL ACTION 12-0626-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which found
that White was disabled and entitled to disability insurance
benefits but only for a limited period of time (Docs. 1, 15).
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. 25).
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).
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).
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 most recent administrative hearing,
Plaintiff was forty years old, had completed a high school
education (Tr. 75), and had previous work experience as a steel
mill fabricator (Tr. 75).
In claiming benefits, White alleges
disability due to hypertension, rotator cuff repair with
restricted range of motion, and dystonia (Doc. 15 Fact Sheet).
The Plaintiff filed an application for disability benefits
on November 10, 2008 (Tr. 183-86, see also Tr. 25).
were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that White was disabled and entitled to
disability benefits between April 26, 2006 and August 20, 2007;
however, beginning August 21, 2007, Plaintiff’s impairments had
improved to the extent that he was capable of performing
specific sedentary jobs existing in the national economy (Tr.
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.
Specifically, White alleges
the single claim that the ALJ did not properly consider the
conclusions of his treating physician (Doc. 15).
responded to—and denies—this claim (Doc. 21).
Plaintiff's only claim is that the ALJ did not accord
proper legal weight to the opinions, diagnoses and medical
evidence of his treating physician.
More specifically, White
references the conclusions of Dr. Albert W. Pearsall (Doc. 15).
The Court notes 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
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.
1981);2 see also 20 C.F.R. § 404.1527 (2013).
The Court notes that it will be unnecessary to summarize
2The 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,
the entire medical record to address this claim.
There is a
single item of evidence in controversy in this matter, a letter
written by Orthopaedic surgeon, Dr. Albert W. Pearsall, on
August 22, 2007.
Though lengthy, the Court will set out herein
the entire contents of that letter:
To Whom It May Concern:
Mr. White is a 37-year-old male who was
initially referred to me as a 36-year-old
male who was involved in an accident, which
was work related on April 26, 2006. At that
time he was trying to hold some fabrication
material and the machine jackhammer was
dropped and he felt pain in his right
shoulder. He attempted to go back to work
that day, but had significant pain and
discomfort. He denies any problems prior to
the injury and he states the shoulder was
doing fine until that day. Initially was
noted to be a nondiabetic, nonsmoker, and
stated upon his initial visit the symptoms
have been going on for one month. He was
seen by an initial doctor and sent for
physical therapy for three weeks for which
he had minimal relief and he presented on
initial May 22nd for evaluation. At that
time he had significant motion loss and we
felt that he possibly had acromioclavicular
joint inflammation versus subacromial
impingement and rotator cuff tear. We
recommended physical therapy and a
subacromial injection, which he had. He
subsequently had MRI, which was consistent
with a rotator cuff tear.
On October 10, 2006, Mr. White was
taken to the operating room after failing
conservative treatment. At that time he was
noted to have a rotator cuff tear, underwent
arthroscopic rotator cuff repair. He
initially had difficulty with pain and
continued range of motion loss, but we
continued with aggressive physical therapy.
He was maintained off work during that
initial postoperative period. Nearly five
months after that surgery Mr. White
continued to have pain and discomfort and a
subsequent MRI showed evidence of a re-tear
of the rotator cuff. He was taken back
March 21, 2007 for mini-open repair, which
was done. Since that time, he has continued
extensive rehabilitation and continued to
have some pain and discomfort, but appears
to have reached maximum medical improvement.
As a result of his plateauing with his
treatment options, he was sent for a
functional capacity evaluation at Industrial
On August 7, 2007, Mr. White underwent
a functional capacity evaluation. The
result of that test indicated that his
primary complaints were of the right
shoulder and there were no noted
inconsistencies during the evaluation.
Evaluation at that time was an occasional
lift bilaterally 25 pounds floor to knee, 25
pounds knee to waist, 20 pounds waist to
shoulder, 15 pounds shoulder to overhead.
Frequent lift bilaterally was 10 pounds
floor to knee, 10 pounds knee to waist, 10
pounds waist to shoulder, and 5 pounds
shoulder to overhead.
His maximum carry bilaterally was 25
pounds for 50 feet, left hand lift/carry was
50 pounds and right hand lift/carry was 10
pounds. Maximum push/pull on the surface
was 70 pounds, maximum push/pull with wheels
was 670 pounds, and maximum push/pull on the
sled was 60 pounds. Also noted during FCE
was that they would recommend limiting him
to protected heights and avoid vertical
ladder climbing. The summation of that
functional capacity evaluation was that the
patient demonstrated the ability to lift in
the medium physical demand level of 25
pounds floor to waist level. They
recommended that he can return to light duty
with a demonstrated performance if available
and approved by his attending physician.
Mr. White returned for my final
evaluation on August 20, 2007. At that time
he underwent physical examination by me.
His active motion was noted to be a forward
flexion of 180 on the left, 120 on the
right, active abduction was 180 on the left,
110 on the right, active internal rotation
was T12 on the left and L1 on the right.
His IGHE was 90 on the right and left. His
ER at 0 was 65 on the left and 45 on the
right. His ER at 90 was 90 on the left and
45 on the right and his IR at 90 was 90 on
the left and 45 on the right. He had intact
infrascinatus subscapularis testing as well
as teres minor. He did have some weakness
with suprascinatur testing, but was grossly
intact. He has some minimal amount of
atrophy over the supraspinatur, but he has
well-healed portals. There is some palpable
crepitus on evaluation. Previous
radiographs did show well maintained
acromiohumeral interval of greater than 7 mm
and no evidence of significant glenohumeral
Based upon Mr. White’s plateauing of
his therapy after his last surgical
procedure, I have placed him at on [sic]
maximum medical improvement on August 20,
2007. In addition, based upon the American
Medical Association guide to evaluation of
Permanent Impairment Fifth Edition for his
forward flexion limitation I have given a 4%
upper extremity impairment rating, for his
abduction limitation I have given him a 3%
upper extremity impairment rating, for his
external rotation at 90 degrees motion loss
I have given him a 1% upper extremity
impairment rating, for his internal rotation
at 90 degrees motion loss I have given him a
3% upper extremity impairment rating, for
his muscle strength loss for supraspinatus
testing I have given him a 4% upper
extremity impairment rating, and for atrophy
I have given him a 1% upper extremity
impairment rating. This sums to a 16% upper
extremity impairment rating, which
translated to a 10% whole body impairment
rating. In addition, based upon the
functional capacity evaluation I have
determined that Mr. White should work in a
predominantly medium physical demand level
of 25 pounds floor to waist and should do
minimal to no shoulder to overhead
activities. He could begin at four hours
per day three days a week and if tolerating
this activity could progress to full duty
assuming that he has no symptoms. His
restrictions should also include no
unprotected heights, no repetitive overhead
activity, and no using ladders. Any
activity that requires squatting or bending
that necessitated the extensive use of his
right shoulder will also need to be
In conclusion, I believe Mr. White has
reached maximum medical improvement on
August 20, 2007. Based upon his functional
capacity evaluation I have recommended he
return to work with restrictions as listed
or be advised a possible cross training or
re-education. In addition, based upon his
work-related injury I have given him a 16%
right upper extremity impairment rating
which translates to a 10% whole body
White’s claim arises from this letter wherein Dr. Pearsall
indicated that Plaintiff could return to medium work, but only
for four hours a day and three days a week to start (Doc. 15, p.
The ALJ found, after reviewing all of the medical evidence
and posing questions to a Vocational Expert, that Plaintiff
could return to specified sedentary jobs on a full-time basis
The Court finds no merit in White’s claim.
Though the ALJ
found Plaintiff capable of working full-time, it was for
sedentary work—and not even a full range of that—as opposed to
medium level work as Pearsall had indicated.
Yes, the ALJ would
have White work longer hours and more days a week, but at a
greatly reduced range of exertion.
Plaintiff has pointed to no
other deficiency in the ALJ’s determination.
As such, the Court
finds substantial evidence to support the ALJ’s conclusions.
White has raised a single claim in bringing this action.
It is 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."
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 21st day of June, 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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