Simmons v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER entered. Upon consideration of theadministrative 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 6/27/2013. (clr)

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

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION 12-0700-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
denied a claim for disability insurance benefits (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).
argument was waived in this action.

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.

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
fifty-four years old, had completed a high school education2 (Tr.
41), and had previous work experience as a certified nursing
assistant and seafood packer (Tr. 41).

In claiming benefits,

Plaintiff alleges disability due to depression, mild
postoperative arthritis in the knees, mild chondromalacia of the
patella in the left knee with a possible torn medial meniscus,
status post left carpal tunnel syndrome, and right carpal tunnel
syndrome (Doc. 16 Fact Sheet).
The Plaintiff filed protective applications for disability
insurance benefits, Supplemental Security Income (hereinafter

2Error!
 Main
 Document
 Only.Plaintiff testified that she had received

a Graduate Equivalency Degree (Tr. 41).

2

SSI), and Widow’s disability benefits on June 5, 2009 (Tr. 13444; see also Tr. 20).

Benefits were denied following a hearing

by an Administrative Law Judge (ALJ) who determined, briefly,
that Simmons was not disabled prior to March 1, 2011 but became
disabled as of that date, her fifty-fifth birthday, and was
entitled to disabled widow’s benefits and SSI (Tr. 20-31).
Plaintiff requested review of the hearing decision (Tr. 5-14) by
the Appeals Council, but it was denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Simmons

alleges the single claim that the ALJ did not accord proper
consideration to the conclusions of her treating physician (Doc.
16).

Defendant has responded to—and denies—this claim (Doc.

17).

The relevant3 evidence of record, briefly, is as follows.
Records from the Internal Medicine Center from March 18,

2009 through December 30, 2009 show that Dr. Donald Sanders
treated Simmons for a variety of medical ills including leg
pain, burning feet, hypertension, headaches, allergies, and
congestion (Tr. 337-62).

On January 22, 2010, Plaintiff

underwent an NCV of the bilateral lower extremities that
identified no abnormalities (Tr. 358).
On July 14, 2009, Orthopaedic doctor, William A. Crotwell,

3The Court will only review the evidence that is relevant to the

particular claim raised by Simmons for the time period during which
she has asserted disability.

3

III, examined Simmons for complaints of increased pain in both
knees (Tr. 276; see generally Tr. 276-84, 304-36).

An x-ray

showed joint space narrowing medially with minimal arthritis in
the right knee; the left knee showed some joint space narrowing
medially with some mild patellofemoral arthritis.

The diagnosis

was mild chondromalacia of the patella, with probable torn
medial meniscus and a positive McMurray, of the left knee.
Crotwell prescribed Mobic4 and Lortab5.

Dr.

On August 3, 2009,

following an MRI, Dr. Crotwell noted that Simmons had an
inferior tear of the medial meniscus of the left knee; he
indicated that it was not severe and that conservative
treatment, including physical therapy, medication, and possible
injections, was the best way to proceed (Tr. 277).

On August

31, Plaintiff indicated that her pain was no better and that she
wished to proceed with the arthroscopy (Tr. 278).

On September

25, Dr. Crotwell performed the surgery and discharged Simmons
with exercises to do and prescriptions for Lortab, Tylox6, and
Keflex7 (Tr. 282).

On October 1, the doctor noted minimal

4Error!
 Main
 Document
 Only.Mobic is a nonsteroidal anti-inflammatory

drug used for the relief of signs and symptoms of osteoarthritis and
rheumatoid arthritis. Physician's Desk Reference 855-57 (62nd ed.
2008).
5Error! 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).
6Error! Main Document Only.Tylox, a class II narcotic, is used

“for the relief of moderate to moderately severe pain”. Physician's
Desk Reference 2217 (54th ed. 2000).
7Error!
 Main
 Document
 Only.Keflex is used for the treatment of various

4

swelling and that left knee movement was good; Relafen8 was
prescribed and Simmons was to begin physical therapy (Tr. 283).
A prescription for Darvocet9 was provided on October 14, 2009
(Tr. 307).

On October 29, Dr. Crotwell noted increased range of

movement (hereinafter ROM), from 0 to 110, in the left leg with
no swelling present; physical therapy reports indicated that
Simmons had some pain and weakness (Tr. 308).

Crotwell

prescribed Lodine10 and more physical therapy; he encouraged more
activity.

On December 17, an ultrasound of the lower left leg

revealed no evidence of deep vein thrombosis; on that same day,
Simmons complained of pain and tightness in the knee, so she was
given a cortisone shot (Tr. 315, 317).
On February 11, 2010, Dr. Crotwell examined Plaintiff for
complaints of pain in her left knee; the doctor found no major
swelling, no crepitance, and that the knee was nontender (Tr.
373).

An injection was given and Simmons was told to remain on

the Darvocet and Relafen.

On February 26, Plaintiff complained

of pain in her right thumb and wrist; Crotwell noted popping and

infections. Physician's Desk Reference 854-56 (52nd ed. 1998).

8Error!
 Main
 Document
 Only.Relafen “is indicated for acute and chronic

treatment of signs and symptoms of osteoarthritis and rheumatoid
arthritis.” Physician's Desk Reference 2859 (52nd ed. 1998).
9Error!
 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).
10Error!
 Main
 Document
 Only.Lodine is “indicated for acute and long

term use in the management of signs and symptoms of osteoarthritis and
rheumatoid arthritis. Lodine is also indicated for the management of
pain.” Physician's Desk Reference 3062-64 (52nd ed. 1998).

5

triggering of the thumb (Tr. 372).

X-rays were normal; the

thumb was injected and splinted.
On February 18, 2010, Dr. Sanders completed a form in which
he stated that Simmons had pain from arthritis that would keep
her from adequately performing daily activities or work (Tr.
385-86).

He further indicated that physical activity would

cause an increase in pain but would not prevent adequate
functioning of whatever task she was performing; Sanders further
found that her pain, or the side effects from her medications,
would limit her effectiveness at work.

The doctor found,

however, that there were no restrictions in her daily
activities.

Finally, Sanders stated that Simmons was unable to

work “based on the persistence of [her] complaints” (Tr. 386).
On February 24, 2010, Dr. Crotwell completed a pain form in
which he indicated that Simmons had mild post-operative
arthritis that caused pain, but that it did not prevent every
day functioning (Tr. 370-71).

The Orthopaedic further stated

that physical activity would increase Plaintiff’s pain but not
to the extent that it would prevent adequate functioning of
those activities; Crotwell also indicated that Simmons’s pain
would not keep her from working an eight-hour workday, five days
a week.
On January 11, 2010, Dr. Sanders examined Plaintiff who was
complaining of neuropathy, pain, headaches, and confusion (Tr.

6

402; see generally Tr. 387-407).

Two weeks later, there were

complaints of burning in her feet and headaches; blood pressure
was noted to be elevated (Tr. 400-01).

On February 18, Simmons

was light-headed and had been having headaches; she also
complained of a back problem and a problem with her toes for
which she was given Neurontin11 (Tr. 399).

On May 20, 2010,

Simmons complained of foot and back pain (Tr. 396); an x-ray of
the left foot was normal (Tr. 407).

On September 1, Plaintiff

stated that she had been experiencing numbness, off and on, in
her left arm and hand (Tr. 393).

On November 3, Simmons

complained of pain and swelling in her hands; Dr. Sanders noted
that they looked arthritic, consistent with osteoarthritis (Tr.
387-88).

The Lortab prescription was re-written.

X-rays of

both hands were normal (Tr. 406).
On January 3, 2011, Plaintiff was seen by Dr. Ben Freeman,
of The Orthopaedic Group, for pain and swelling of the right
hand; Simmons demonstrated triggering of the left thumb and ring
finger (Tr. 408; see generally Tr. 408-13).

X-rays showed mild

degenerative changes; the doctor put her on a Medrol Dosepak.
On January 25, nerve conduction studies were performed, showing
left median neuropathy at the wrist, consistent with carpal
tunnel syndrome; the right wrist was essentially normal (Tr.

11Error!
 Main
 Document
 Only.Neurontin is used in the treatment of

partial seizures.

Physician's Desk Reference 2110-13 (52nd ed. 1998).

7

413).

On February 18, 2011, Simmons had carpal tunnel release

surgery on her left hand (Tr. 410, 414-15).

On March 15,

Plaintiff began three weeks of occupational therapy to treat
carpal tunnel release and trigger finger release (Tr. 416).
In her determination, the ALJ found that Plaintiff was
unable to perform any of her past relevant work, but that there
were specific light work jobs that she could perform (Tr. 2031).

In reaching this decision, the ALJ found that Simmons’s

statements concerning her pain and limitations were not credible
in that they were not as severe as alleged (Tr. 27, 28-29);
Plaintiff has not challenged that finding in this action.

The

ALJ gave significant weight to the conclusions of Dr. Crotwell
while giving little weight to those of Dr. Sanders (Tr. 26-27).
The ALJ also adopted the conclusions of the Vocational Expert
who testified at the evidentiary hearing of specific jobs that a
hypothetical individual with Simmons’s residual functional
capacity and vocational characteristics could perform (Tr. 30);
Plaintiff has not challenged this finding either.
This concludes the summary of the medical evidence.
Plaintiff's only claim is that the ALJ did not accord
proper legal weight to the opinions, diagnoses and medical
evidence of Plaintiff's treating physician, Dr. Sanders (Doc.
16).

It should be noted that "although the opinion of an

examining physician is generally entitled to more weight than

8

the opinion of a non-examining 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);12 see also 20 C.F.R. § 404.1527 (2013).

In rejecting Dr. Sanders’s conclusion that Simmons was
unable to work, the ALJ noted that the doctor had cited as his
reason for reaching that decision the persistence of Plaintiff’s
complaints; the ALJ noted that this was evidence of Sanders’s
reliance on her statements rather than the objective medical
evidence (Tr. 27; cf. Tr. 386).

The ALJ also noted the

inconsistency of Sanders’s conclusions on the pain form in that
he found that Simmons had no restrictions of daily activities
but could not work (id.).

The ALJ also stated that he gave

weight to Crotwell’s conclusions over those of Sanders because
Crotwell was a specialist (Tr. 27).

The Court would also note

that Dr. Sanders’s treatment notes do not support a conclusion
that Plaintiff was unable to work.

The Court finds substantial

evidence to support the ALJ’s determination that Dr. Sanders’s
conclusions were not to be given much weight.
Simmons has raised a single claim in bringing this action.
That claim is without merit.

Upon consideration of the entire

12The 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.

9

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 27th day of June, 2013.

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

10