Finley v. Colvin

Filing 28

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 in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 12/12/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERICKA K. FINLEY,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 13-0151-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, 12).
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. 27).
argument was waived in this action (Doc. 26).

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

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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
thirty-one years old, had completed a high school education (Tr.
40), and had previous work experience as a cashier-checker,
office clerk, a customer service clerk, and a fast food cahier
(Tr. 50-51).

In claiming benefits, Plaintiff alleges disability

due to a stroke (Doc. 12 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on May 11, 2010 (Tr. 122-29; see also Tr. 21).

Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that Finley was capable of performing her
past relevant work (Tr. 21-31).

Plaintiff requested review of

the hearing decision (Tr. 14) 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.

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Specifically, Finley alleges

that:

(1) The ALJ improperly determined that some of her

impairments were not severe; and (2) the ALJ did not properly
consider the opinions and conclusions of one of her treating
sources (Doc. 12).
claims (Doc. 18).

Defendant has responded to—and denies—these
The relevant medical evidence follows.

On January 12, 2010, Dr. Anthony N. Martino examined Finley
for complaints of occasional headaches and some mild weakness of
her right lower extremity; it was noted that she had recently
suffered a mild stroke involving her left hemisphere (Tr. 23637).

In reviewing her various medical systems, Plaintiff denied

that she had the following:

“severe headaches, dizzy spells,

fatigue, weakness” (constitutional system); “muscle cramps,
muscle weakness, generalized aches, ankle pain, arthritis, back
pain, cervical disc disease, elbow pain, lumbar disc disease,
joint stiffness, joint swelling, knee pain, neck pain, shoulder
pain, wrist pain, leg cramps, leg pains, migratory arthritis,
muscular weakness and restless leg syndrome” (musculoskeletal
system); and migraines, depression, and anxiety (neurologic
system) (Tr. 236).

Martino did note that Finley had poor

balance; the doctor indicated that she suffered mild right
hemiparesis in conjunction with his assessment of intracerebral
hemorrhage (Tr. 237).

A week later, a CT brain scan, with and

without contrast, was administered that showed that the area
where she had suffered the hemorrhage was replaced with

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encephalomalacia in the left frontoparietal lobe (Tr. 239).

On

February 2, 2010, Martino examined Finley and noted improved
right leg function and noted that her hematoma was resolving; he
prescribed physical therapy twice a week for six weeks of gait
and balance training (Tr. 235).

On May 6, Plaintiff complained

of ten-to-twelve migraines weekly, left-sided tingling in her
fingers and hand, and right-sided weakness with an inability to
sleep on that side; Martino continued with his assessment and
prescribed six more weeks of physical therapy (Tr. 234).
Martino last saw Plaintiff on July 13 and noted that she had
shown slow improvement with the physical therapy (Tr. 326).
On April 15, 2010, Andrea S. Pitts, CRNP, examined
Plaintiff for complaints of numbness and right lower leg pain;
she had a headache but was not feeling tired or poorly (Tr. 22131).

Pitts noted that Finley was in no acute distress; the

musculoskeletal system was normal.

Plaintiff noted numbness in

her right arm and leg and that the bottom of her feet felt like
pins and needles; reflexes and cranial nerves were normal.

A

motor exam demonstrated no dysfunction; no coordination or
cerebellum abnormalities were noted.

The Nurse’s assessment was

migraine headache, stroke syndrome, and echo virus neurologic.
On June 18, Plaintiff complained of a vaginal discharge for
which she received prescriptions and instructions (Tr. 292-93).
On July 1, Finley was seen for a headache; she noted that

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medication was “helping with nerve pain to [her] right leg and
side” and that her stiffness and right-sided weakness was
improving with physical therapy (Tr. 289).

In reviewing her

systems, the CRNP noted that Finley reported no back pain, no
localized joint pain, or depression; on her neurological exam,
Pitts noted cogwheel rigidity on the right, abnormal reflexes,
and that the motor exam demonstrated dysfunction (Tr. 290).

The

assessment was headache and stroke syndrome; Elavil1 and
Flexeril2 were prescribed (Tr. 291).

On July 29, 2010, Finley

reported that her headaches had decreased from two a day to
twice weekly; she did not have a headache at that time (Tr. 28789).

Plaintiff had no back pain, localized joint pain, or

depression; her neurological exam was normal.
was recent weight gain.

Pitts’ assessment

On October 28, Finley complained that

her Elavil was making her depressed and tearful; the CRNP
indicated, however, that everything in the examination was
normal (Tr. 284-86).

Nevertheless, her assessment was headache,

obesity, migraine headache, and peripheral neuropathy; Topomax3
was added to her medication regimen.

1Error!
 Main
 Document
 Only.Amitriptyline, marketed as Elavil, is used

to treat the symptoms of depression. Physician's Desk Reference 3163
(52nd ed. 1998).
2Error!
 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).
3Topomax is used in the treatment of migraine headaches.

Error!
Main Document Only.Physician's Desk Reference 2378-79 (62nd ed. 2008).

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On October 28, Pitts completed a Pain Form in which she
indicated that Plaintiff’s neuropathy would cause her pain that
would distract her from adequately performing her daily
activities or work, that physical exercise would greatly
increase her pain, distracting her from what she was doing, and
that medication side effects would be severe and limit her
effectiveness (Tr. 277-78).

Pitts further stated that Finley

was incapable of “gainful employment on a repetitive,
competitive and productive basis over an eight hour work day,
forty hours a week, without missing more than 2 days of work per
month” (Tr. 278).

On that same date, the CNRP also completed a

Migraine Questionnaire that indicated that Plaintiff experienced
headaches four-to-five times a week, each lasting up to an hour,
and that medications did not help; symptoms included dizziness
and blurred vision (Tr. 279-81).

Pitts further stated that the

headaches caused depression and anxiety and would cause her to
be moderately impaired in her daily activities; her
concentration would be affected often.
On December 29, 2010 Finley admitted to Pitts that she was
not taking her headache medication as prescribed, saying that
they made her sleepy; she also complained of anxiety, high
irritability, and depression (Tr. 282-84).

On examination,

Pitts noted nothing abnormal; she added Dysthymic disorder to
her assessment and adjusted the dosage of her headache medicine.

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On January 26, 2011, Finley was seen for her annual
gynecological exam (Tr. 313-16).

On March 22, 2011, Plaintiff

complained of dizziness; she stated that she had “intermittent
headaches, but for the most part they are controlled with her
prescribed meds;” Finley reported no depression (Tr. 311).
Pitts noted peripheral neuropathy in the right foot (Tr. 312).
On May 3, 2011, Plaintiff complained of depression; Lexapro4 was
prescribed (Tr. 308-10).
On April 14, 2011, Finley reported to the University of
South Alabama Department of Neurology, complaining of swallowing
problems, dizziness, weakness, headaches, memory loss, and
depression (Tr. 337).

Plaintiff complained of daily headaches,

lasting up to an hour, with mild photophobia and phonophobia.
Her Neurontin5 prescription was increased; doxepin was also
prescribed.

This concludes the relevant evidence of record.

Finley first claims that the ALJ did not properly consider
her impairments.

More specifically, she argues that her

peripheral neuropathy, hemiparesis, anxiety, and depression were
severe (Doc. 12, pp. 2-4).

In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984),

4

Lexapro is indicated for the treatment of major depressive
disorder. Error! Main Document Only.Physician's Desk Reference 117576 (62nd ed. 2008).
5Error!
 Main
 Document
 Only.Neurontin is used in the treatment

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

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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); cf. 20
C.F.R. § 404.1521(a) (2013).6

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.”
In his determination, the ALJ found that Finley’s anxiety
and depression did “not cause more than minimal limitation in
the claimant’s ability to perform basic mental work activities
and [were] therefore nonsevere” (Tr. 26).

In reaching this

decision, the ALJ reviewed the four broad functional areas for

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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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evaluating mental disorders and found Plaintiff to only have
mild limitation in concentration, persistence, or pace (Tr. 26).
The Court notes that Plaintiff regularly reported no depression
in her examinations by CRNP Pitts; furthermore, she did not seek
or receive any treatment for either her depression or anxiety.
Finally, Finley has not pointed to any evidence demonstrating
that the anxiety or depression interfered with her ability to
work.

The Court finds substantial support for the ALJ’s

conclusion that Plaintiff’s anxiety and depression were not
severe impairments.
The ALJ did not specifically make a finding that Finley’s
peripheral neuropathy was severe or not severe, though he did
note that the records did not “substantiate any significant or
persistent peripheral neuropathy” (Tr. 28).
specific statement regarding her hemiparesis.

The Court found no
The Court will

proceed with the presumption that no finding is a finding of
non-severity.
The Court notes that Neurologist Martino diagnosed Finley
to have hemiparesis on January 12, 2010.

The doctor examined

Finley four times over a six-month period, maintaining the
diagnosis, while reporting slow improvement; Plaintiff has
apparently not seen Dr. Martino since July 2010, fourteen months
before the ALJ’s decision (see Tr. 326-36).
The notes from Nurse Pitts show that although Plaintiff

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complained of right-sided weakness in their first meeting, Pitts
noted no abnormalities or dysfunction and did not diagnose these
impairments (Tr. 221-23).

The first diagnosis of peripheral

neuropathy was not made until October 2010, six months after the
initial examination; even at that time, however, the CNRP noted
no musculature or neurological abnormalities (Tr. 284-86).

The

diagnosis continued through Pitts’ treatment notes, though no
specific findings were included in those notes to support the
diagnosis (see Tr. 282-84, 308-16).
Although Finley has supplied diagnoses of these
impairments, she has not pointed to medical notes that provide
evidence that they interfere with her ability to work as
required in Brady.

In spite of Plaintiff’s complaint that the

ALJ “cited no acceptable medical evidence to support his
decision that those conditions are not severe impairments” (Doc.
12, p. 4), the Court reminds Finley that the burden is on her to
prove that she is disabled.

See 20 C.F.R. § 416.912(a) (2013);

see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The Court finds no merit in Plaintiff’s claim that the ALJ
improperly found that some of her impairments were not severe.
Finley next claims that the ALJ did not properly consider
the opinions and conclusions of one of her treating sources.
Plaintiff more specifically asserts that the ALJ improperly
rejected the conclusions put forth by CRNP Pitts in her Pain

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Form and Migraine Questionnaire (Doc. 12, pp. 4-7).

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);7 see
also 20 C.F.R. § 404.1527 (2013).
In his determination, the ALJ gave substantial weight to
the evidence in Pitts’ treatment notes, but rejected her
conclusions in the Pain Form and the Migraine Questionnaire
(Doc. 28-29).

In reaching this decision, he stated that the

CRNP had overstated Plaintiff’s pain in the Pain Form based on
her treatment notes and those of the neurologists (Tr. 28).

He

went on to note that the “limitations set forth in the migraine
questionnaire [] seem greatly disproportionate to and
inconsistent with the objective medical findings described in
the treatment notes” (Tr. 28).

Following those statements, the

ALJ pointed out the inconsistencies between her conclusions in
the Form and Questionnaire and her treatment notes.

The ALJ

also pointed out that Pitts’ conclusions were inconsistent with
the other medical evidence of record.

The Court finds

7The 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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substantial support for the ALJ’s determination and finds no
merit in the Plaintiff’s claim otherwise.
Finley has raised two different claims in bringing this
action.

Both 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 12th day of December, 2013.

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

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