Howard v. Astrue

Filing 23

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 6/24/2013. (clr)

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

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CIVIL ACTION 12-0672-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, 16).

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.
22).

Oral argument was waived in this action (Doc. 21).

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).

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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
forty-three years old, had completed a high school education
(Tr. 60), and had previous work experience as a cashier, sales
associate, housekeeper, and fast food worker (see Tr. 77-78).
In claiming benefits, Plaintiff alleges disability due to the
following:

“degenerative disease of the cervical spine s/p

anterior fusion and fixation with atlantis anterior cervical
plate; chronic pain syndrome; arthritis; and thyroid disease s/p
partial thyroidectomy; [and] malignant hypertension” (Doc. 16
Fact Sheet).
The Plaintiff filed an application for SSI on July 21, 2009
(Tr. 146-49; see also Tr. 19).

Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that

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although Howard could not return to her past relevant work,
there were specific light work jobs which she could perform (Tr.
19-30).

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.
that:

Specifically, Howard alleges

(1) The ALJ did not properly consider the conclusions of

her treating physician; (2) the ALJ’s finding regarding her
residual functional capacity (hereinafter RFC) is not supported
by the evidence of record; and (3) the Appeals Council did not
properly consider newly submitted evidence (Doc. 16).
has responded to—and denies—these claims (Doc. 17).

Defendant
The

relevant evidence of record follows.2
On May 14, 2009, Howard went to the University of South
Alabama Medical Center (hereinafter USAMC) with complaints of
lateral neck pain for one week following a work injury (Tr. 25962).

She was given Ultram3 and prescriptions for Flexeril4 and

Tylenol #3.5

2The Court will only review the evidence that is relevant to

the particular claims raised by Howard for the time period during
which she has asserted disability.
3
Ultram is an analgesic “indicated for the management of
moderate to moderately severe pain.” Physician's Desk Reference
2218 (54th ed. 2000).
4
Flexeril is used along with “rest and physical therapy for
relief of muscle spasm associated with acute, painful
musculoskeletal conditions.” Physician's Desk Reference 1455-57
(48th ed. 1994).
5Error! Main Document Only.Tylenol with codeine is used “for

3

On May 29, 2009, White was seen at the Franklin Primary
Health Center, Inc. for medication refills, complaining also
that her shoulder continues to bother her (Tr. 265-66).

She was

diagnosed to have myalgia in the neck and shoulder and told to
wear a soft cervical spine collar and return in three months.
On November 6, 2009, Plaintiff underwent a consultative
physical examination by Dr. Henrietta T. Kovacs (Tr. 281-88).
The doctor noted that White “was moaning continually during the
musculoskeletal exam [and] resisted [] the passive range of
motion of the [cervical] spine” (Tr. 284).

Kovacs further noted

minimal limitation of the dorsolumbar spine in flexion though
there was moderate limitation in the range of motion
(hereinafter ROM) of the left shoulder in every direction.

The

doctor noted that the motor system was normal and that White
could heel and toe walk; she could squat with minimal help.
Kovacs’ impression, in part, was as follows:

Dr.

(1) cervical pain

with questionable degree of limitation of the range of motion of
the C-spine; (2) chronic low back pain, mild degenerative
changes at L4-L5, and L5-S1 level; and (3) left shoulder pain
with limitation of the ROM of the left shoulder.

X-rays of the

lumbar spine were normal (Tr. 288).
Medical records from the Mobile County Health Department

the relief of mild to moderately severe pain.”
Reference 2061-62 (52nd ed. 1998).

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Physician's Desk

show that White was seen on September 22, 2010 with complaints
of high blood pressure and headaches; she denied back pain or
localized joint pain (Tr. 313-16; see generally Tr. 303-37).
The C.R.N.P. noted that Plaintiff was in no acute distress and
that there was no demonstrated decrease in suppleness in her
neck; the musculoskeletal system was normal and a motor exam
showed no dysfunction.

Six days later, White underwent a

gynecological exam; she had no complaints (Tr. 311-13).

On

October 28, Plaintiff complained of high blood pressure; she
said her pain was zero on a ten-point scale (Tr. 309-10).

On

December 15, White had a sinus infection that was diagnosed to
be an upper respiratory infection (Tr. 306-08).

Two days later,

Plaintiff went to get medication refills; she stated that she
was in no pain (Tr. 303-06).

Motor exam was normal and the

musculoskeletal system was found to be normal.

X-rays of the

cervical spine demonstrated an anterior discectomy and interbody
fusion at C5-6 with anterior metallic fixation hardware; it was
further noted that body height and alignment was normal with
disc spaces preserved (Tr. 335).

An x-ray of the left shoulder

showed possible mild developmental hypoplasia in the relatively
shallow glenoid fossa; x-rays of the lumbar spine, thoracic
spine, and right knee were normal (Tr. 336).
On February 1, 2011, Dr. Gregory Evans, with the Mobile
County Health Department, completed a physical capacities

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evaluation (hereinafter PCE) that stated his opinion that White
was capable of lifting and carrying ten pounds frequently and
twenty pounds occasionally; he further indicated that Plaintiff
could sit for six hours, and stand or walk for one hour, during
an eight-hour day (Tr. 338).

Evans stated that White required

an assistive device to walk.

The doctor found Plaintiff capable

of operating motor vehicles frequently; fine and gross
manipulation and reaching occasionally; and arms and leg
controls, climbing and balancing, bending and/or stooping, and
working with or around hazardous machinery rarely.

On the same

date, Dr. Evans completed a pain questionnaire indicating that
White’s pain would distract her from daily activities or work
and that physical exercise would increase her pain to such a
degree that it would distract her from tasks and possibly cause
abandonment of the tasks (Tr. 339).

The doctor further

indicated that medication side effects should not decrease her
job effectiveness.
At the evidentiary hearing, a Vocational Expert
(hereinafter VE) testified, first, about Howard’s previous
relevant work (Tr. 76-82).

The ALJ then posed a hypothetical

question to the VE about an individual with Plaintiff’s RFC (Tr.
78; cf. Tr. 22) and asked if there was work available for this
individual.

The Expert stated that although Howard would not be

able to perform any of her past relevant work, he listed the

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specific jobs of ticket taker, self-storage rental clerk, and
office helper as available work that she could do (Tr. 79).
In her decision, the ALJ determined that Howard had
the [RFC] to perform less than the full
range of light work as defined in 20 C.F.R.
416.967(b).6 Specifically, she can stand and
walk no more than thirty minutes at one time
and no more than two hours total in an 8hour day. She can no more than occasionally
reach overhead, operate foot controls, climb
stairs or ramps, bend, stoop, kneel, or
crouch. She can no more than frequently
perform handling or reaching, other than
overhead. She cannot crawl or climb
ladders, scaffolds, or ropes. She cannot
work around unprotected heights or dangerous
equipment.
(Tr. 22).

In reaching this determination, the ALJ found that

Howard’s testimony regarding her pain and limitations was not
credible to the extent alleged (Tr. 24-25).7

The ALJ adopted the

conclusions of the VE as his own (Tr. 29).
In bringing this action, Plaintiff’s first claim is that
the ALJ did not properly consider the conclusions of her

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“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.”
7
Plaintiff has not challenged this finding in this action.

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treating physician.

Howard specifically references the

conclusions of Dr. Gregory Evans (Doc. 16, pp. 6-10).

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
also 20 C.F.R. § 404.1527 (2013).
The medical record seems to illustrate that Dr. Evans
examined Howard only once; that was on December 17, 2010 (Tr.
303-05).

On that day, Plaintiff was rated as having zero pain

on a ten-point scale, was in no distress, and was following up
on refill medications and lab results.

More than two months

later, without further examination, Evans completed a PCE
indicated that she was incapable of any work because she could
not sit, stand, or walk for a combined total of eight hours
during a workday (Tr. 338).

The ALJ discredited Dr. Evans’

findings of disability on the grounds that he had provided no
clinical or objective findings to support his opinions; the ALJ
pointed out that his notes from the single examination he had
conducted did not support his conclusions (Tr. 27).

The ALJ

8The 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.

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also pointed out that Howard’s own testimony about her abilities
was not as limiting as that of Dr. Evans.

Finally, the ALJ

noted that none of the other medical evidence of record
supported his conclusions.

The Court finds substantial evidence

to support the ALJ’s conclusions regarding Dr. Evan’s findings.
Plaintiff’s claim otherwise is without merit.
Howard next claims that the ALJ’s finding regarding her RFC
is not supported by the evidence of record.

The main thrust of

this claim is that there is no medical evidence from any doctor
that supports the variance in her abilities that the ALJ found
as compared to the findings of her own treating physician (Doc.
16, pp. 4-6).

Plaintiff also asserts that no doctor other than

Dr. Evans completed a PCE.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

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).

The Court found that Dr. Evans’ medical conclusions are not
supported by the evidence.

Howard’s testimony was found not

credible, a finding not challenged herein.

Though consultative

examiner Kovacs did not complete a PCE, she did perform a full
body examination of Plaintiff’s ROM, finding almost no
limitations except in the cervical spine and right shoulder (TR.

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286-87).

With the scant medical evidence available in this

record, the Court cannot find that the ALJ was incorrect in
finding that Howard’s RFC provided her the opportunity to work.
Plaintiff’s claim otherwise is without merit.
Finally, Howard asserts that the Appeals Council did not
properly consider newly submitted evidence (Doc. 16, pp. 10-13).
It should be noted that "[a] reviewing court is limited to [the
certified] record [of all of the evidence formally considered by
the Secretary] in examining the evidence."
760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry v. Heckler,

However, “new evidence

first submitted to the Appeals Council is part of the
administrative record that goes to the district court for review
when the Appeals Council accepts the case for review as well as
when the Council denies review.”

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).

Under

Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed
to consider, if such a claim is made, whether the Appeals
Council properly considered the newly-submitted evidence in
light of the ALJ’s decision.

To make that determination, the

Court considers whether the claimant “establish[ed] that:

(1)

there is new, noncumulative evidence; (2) the evidence is
'material,' that is, relevant and probative so that there is a
reasonable possibility that it would change the administrative

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result, and (3) there is good cause for the failure to submit
the evidence at the administrative level."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
The evidence being considered concerns an injury related to
her cervical spine impairment (Tr. 36-52).

The records date

from June 16, 2000 through July 13, 2000, predating her asserted
disability date of June 20, 2009 by nearly nine years.

The

Court finds that these records are neither new nor material;
furthermore, Howard has not demonstrated good cause for failing
to present them previously.

The Court finds Plaintiff’s

assertion otherwise preposterous.
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 24th day of June, 2013.

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

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