Massey v. Colvin

Filing 29

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 1/21/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AMY G. MASSEY,

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

CIVIL ACTION 13-0178-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, 20).
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. 28).
argument was waived in this action (Doc. 27).

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
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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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, Massey was
thirty-nine years old, had completed a high school education and
training to be a certified nurse assistant (Tr. 49), and had
previous work experience as an accounts payable clerk, insurance
clerk, paralegal, billing clerk, bank teller, office manager,
personnel clerk, administrative secretary, medical clerk, fast
food worker, and office manager (Tr. 75-76).

In claiming

benefits, Plaintiff alleges disability due to cardiomegaly, a
history of a pacemaker implanted in September 2010, and
degenerative disc disease of the cervical spine (Doc. 20 Fact
Sheet).
The Plaintiff filed a protective application for disability
insurance benefits on April 28, 20091 (Tr. 174-75; see Tr. 22).

1Plaintiff has asserted that although she also filed an

application for Supplemental Security Income, that application
was not processed herein (Doc. 20, p. 1 n.1; see also Tr. 16573).

2

Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although she had severe
impairments, Massey was capable of returning to many of the jobs
that she had performed in the past (Tr. 22-34).

Plaintiff

requested review of the hearing decision (Tr. 16-17) by the
Appeals Council, but it was denied (Tr. 8-12); the Appeals
Council later set that decision aside but, again, denied review,
finding no basis for changing the ALJ’s decision (Tr. 1-7).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Massey alleges

(1) The ALJ did not properly consider the opinions and

conclusions of her treating physician; (2) the ALJ’s decision
regarding her residual functional capacity (hereinafter RFC) was
incorrect; and (3) the Appeals Council did not properly consider
the evidence submitted to it (Doc. 20).
to—and denies—these claims (Doc. 23).

Defendant has responded
The relevant evidence of

record follows.2
On April 9, 2009, Massey was seen at St. Joseph’s Hospital
of Atlanta for administration of a renal ultrasound that was
negative (Tr. 366; see generally Tr. 363-74).

On May 9, she was

examined as part of a follow-up for a heart transplant eleven
years earlier; she complained of fatigue, shortness of breath,

2Massey asserts disability as of April 21, 2009 (Tr. 174), so

evidence preceding that date or that does not directly relate to the
claims raised herein will not be discussed.

3

and occasional edema (Tr. 363-65).

It was noted that she

probably had diastolic dysfunction, based on a heart
catheterization four months earlier, though there was evidence
of normal left ventricular function.
On May 27, 2009, Dr. Donald Jansen, a Cardiologist,
completed a questionnaire in which he stated that Massey had
undergone an orthotropic heart transplant eleven years earlier
and that she probably suffered from diastolic dysfunction with
associated shortness of breath and fatigue (Tr. 614-15).

The

Cardiologist stated that her left ventricular function was
preserved; she also had a history of renal insufficiency with
associated hyperkalemia.

Jansen noted that Plaintiff became

fatigued and experienced shortness of breath with minimal to
moderate activity; he expressed the opinion that she was
disabled and had been since May 7, 2009.
On July 1, 2009, Dr. Robert H. Heilpern, a Pediatrician,
reviewed the records in existence at that time and determined,
without benefit of a physical examination, that Massey had the
ability to lift and carry twenty pounds occasionally and ten
pounds frequently, stand and sit, each, for six hours during an
eight-hour day; she was also capable of unlimited pushing and
pulling of arm and leg controls (Tr. 378-85, 454).

Though she

could never climb a ladder, rope, or scaffold, she could
occasionally climb a ramp or stairs, and could frequently

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balance, stoop, kneel, crouch, and crawl.

Plaintiff should

avoid all exposure to machinery and heights and concentrated
exposure to extreme heat and cold, vibration, fumes, odors,
dusts, gases, and poor ventilation; she could, however, have
unlimited exposure to wetness, humidity, and noise.
A nuclear cardiac scan on December 23, 2009 conducted by
Dr. Donald Jansen revealed no arrhythmia or significant ischemia
though there was moderate breast attenuation (Tr. 395).
study was considered normal.

The

An echocardiogram was within

normal limits though there was mild mitral and moderate
tricuspid regurgitation; there were no changes from the study
completed one year earlier (Tr. 396).
On January 13, 2010, Dr. Brandon Cantrell, Orthopedic
Surgeon, examined Massey for a history of pain in the left hip
and lumbar back for the previous nine months (Tr. 399-401).

The

doctor noted mild tenderness to palpation at the left SI joint
and that the lumbar spine was mildly tender at the left gluteus
medius; hip rotation did not increase discomfort.

She also had

some generalized increased tone in the lower extremity; she was
also hyper reflexive at the patellar and Achilles tendons.
clonus was noted.

No

Imaging of the lumbar spine showed normal

disc space height and vertebral body height without acute boney
change; imaging of the pelvis was normal, showing no abnormality
or arthritis in either hip.

Cantrell prescribed physical

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therapy and Vicodin.3
On January 27, 2010, Dr. Thomas L. Dopson, an Orthopaedic,
examined Massey and noted good range of motion of the cervical
spine, shoulders, elbows, hips, and knees as well as 5/5 motor
strength (Tr. 406-11).

There were a few trigger points in the

mid lumbar region; ankle dorsiflexion, plantar flexion, knee
flexion and extension were all 5/5.

Straight leg raising was

negative; there was tenderness over the quadriceps origin on the
left hip.

X-rays of the cervical spine showed multilevel

degenerative changes, most significantly at C5-C6, with
calcification of the disk and small posterior osteophyte; Dopson
considered the degeneration to be moderately severe.

Plaintiff

also had hand swelling and left hip discomfort of undetermined
etiology; he prescribed Lortab.4
Records demonstrate that Massey underwent physical therapy
from January 13 through March 1, 2010 (Tr. 412-27).

In the

initial evaluation, the therapist noted that Plaintiff was
unable to stand, sit, or walk without pain; she had difficulty
shifting “into the left hip during stance phase of gait,”
causing significant antalgia (Tr. 415).

Massey reported

3Vicodin is a class three narcotic used “for the relief of

moderate to moderately severe pain.” Physician's Desk Reference 136667 (52nd ed. 1998).
4Lortab is a semisynthetic narcotic analgesic used for “the

relief of moderate to moderately severe pain.” Physician's Desk
Reference 2926-27 (52nd ed. 1998).

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significant improvement on February 3; twelve days later, she
was doing better (Tr. 419, 421).

On her last treatment date,

Plaintiff noted that her groin pain was gone, but her left hip
was hurting (Tr. 423); new exercises were added to her daily
regimen (Tr. 424-25).
On April 1, 2010, Dr. Dopson found Massey to have good
motion of the spine with some paracervical trigger points;
reflexes were 2+ symmetrical in the upper extremities (Tr. 43536).

Motor strength was 5/5; there was good motion in both

shoulders.

Lower extremities were 2+ symmetrical in the knee

and ankle with good motion in the hips; motor strength was 5/5
in the lower extremities throughout.

Plaintiff had restriction

of motion in the left hip with pain.

Overall, Massey’s back was

better.

The Lortab was discontinued; she could engage in

activity as tolerated.
Dr. Mark A. Senger, Doctor of Osteopathy, examined
Plaintiff for the first time on April 13, 2010, noting full
range of motion (hereinafter ROM) in the spine (Tr. 441-43).
Muscle strength was 5/5 bilaterally; she walked with normal gait
without assistance.

The doctor noted 1+ pitting edema to the

bilateral calves; there was no back tenderness.

Cranial nerves

were grossly intact.
On June 8, 2010, Dr. R. Paul Crank, Jr., reviewed the
records in existence at that time and determined, without

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benefit of a physical examination, that Massey was capable of
lifting and carrying twenty pounds occasionally and ten pounds
frequently and could sit or stand for six hours, each, during an
eight-hour workday (Tr. 446-53).

She would have no limitations

as far as pushing and pulling of arm or leg controls.

The

doctor further indicated that Plaintiff would never be able to
crawl, could occasionally climb a ladder, rope, or scaffolds,
but could frequently climb a ramp or stairs, balance, stoop,
kneel, and crouch; she would be limited in her ability to reach,
but had unlimited ability to handle, finger, and feel.

Crank

further indicated that Plaintiff should avoid all exposure to
extreme heat or cold, avoid concentrated exposure to machinery
and heights, but had no limitations regarding wetness, humidity,
noise, vibration, fumes, odors, dusts, gases, or poor
ventilation.
On June 24, 2010, Dr. Dopson noted Massey’s complaints of
worsening symptoms, causing occipital headaches; she denied
radicular symptoms into the upper extremities as well as
numbness, tingling, or weakness (Tr. 493-94).
heel-to-toe gait with unlabored respiration.

She had normal
Plaintiff had a

few trigger points in the bilateral trapezius and paracervical
region; ROM of the head and neck were intact, though there was
bilateral discomfort on rotation.

In the upper extremities,

there was no tenderness, ROM was intact, and strength was 5/5.

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The pelvis and lower extremities demonstrated no atrophy,
asymmetry, or tenderness; strength was 5/5.
On July 11, 2010, Plaintiff went to Perry Hospital for what
was described as a near syncope episode; bed rest was prescribed
(Tr. 585; see generally Tr. 584-98).

An EKG and chest ray were

normal; Plaintiff had full ROM without edema.
pain at discharge.

Massey was in no

On August 11, 2010, Massey went to Perry

Hospital, after passing out and experiencing severe shortness of
breath (Tr. 581; see generally 570-83).

A chest x-ray showed

mild cardiomegaly and pulmonary vascular congestion suspicious
for early congestive failure or volume overload.

She was in no

pain at discharge; the diagnosis was a syncope episode.

Nine

days later, Plaintiff returned for mild shortness of breath
problems; she had normal sinus rhythms and full ROM with no
edema (Tr. 550-69).
An echocardiogram, performed on August 12, 2010, showed
normal left ventricular size and function, biatrial enlargement,
mild aortic insufficiency, mild mitral regurgitation, and
moderate tricuspid regurgitation (Tr. 488).

Chest x-rays, taken

several weeks later, demonstrated no acute pathology (Tr. 483).
Records from St. Joseph’s Hospital of Atlanta show that a
left and right heart catheterization was performed on August 20,
2010, demonstrating no angiographic evidence for coronary artery
disease (Tr. 606; see generally Tr. 600-12).

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Global left

ventricular function was normal; the right heart catheterization
was normal.

Massey underwent surgery for placement of a

permanent pacemaker (Tr. 601).
On September 20, 2010, Marcus Parker, P.A. to Senger, noted
that Massey did not have shortness of breath, chest pain,
fatigue, leg edema, or abdominal pain; she stated that her heart
felt like it was racing (Tr. 475-77).

The P.A. noted that

ambulation was normal and her heart rhythm was regular with no
murmurs or clicks.

No motor or sensory deficits were

appreciated.
On September 27, 2010, Osteopath Senger completed a
questionnaire in which he indicated that Massey could lift and
carry less than five pounds occasionally and could lift no
amount frequently (Tr. 464-67).

He indicated that she could not

stand for as much as two hours during the day; though stating
that Plaintiff’s ability to sit was affected by her impairments,
the doctor failed to say how.

She could use neither her arms

nor legs for pushing or pulling movements.

Massey would be able

to climb, balance, kneel, crouch, crawl, or stoop on only an
occasional basis; her abilities to reach, handle, finger, and
feel were unlimited.

On that same date, Senger completed

another questionnaire in which he indicated that Plaintiff was
disabled under Listing 4.05, recurrent arrhythmias, and had been
from approximately April 13, 2009 (Tr. 620-21).

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On November 17, 2010, Dr. Michael H. Hoskins noted that
Plaintiff was in no acute distress; he did hear a soft systolic
murmur at the left lower sternal border consistent with
tricuspid regurgitation (Tr. 543-46).

Massey’s pacemaker was

functioning normally; the doctor increased her rate responses to
help with her fatigue.

Plaintiff had two episodes of atrial

tachycardia, each lasting about five seconds, but Hoskins did
not think they required specific therapy.

An echocardiogram,

conducted on February 1, 2011, was essentially normal, though it
did disclose mild tricuspid regurgitation and trace mitral valve
regurgitation (Tr. 539-40).

On April 6, Hoskins reiterated his

findings from his previous examination that there was nothing
objective to explain her symptoms; a stress test on that date
“strongly suggest[ed] that her fatigue [was] from deconditioning
and not because of cardiac insufficiency” (Tr. 527; see
generally Tr. 526-27).

On July 25, 2011, Dr. Hoskins noted that

Massey was, generally, in no distress; he noted that there was
no objective electrophysiological data to explain her symptoms
(Tr. 512-13).

The doctor thought Plaintiff would benefit from a

structured exercise program.

This concludes the relevant

evidence of record.

Plaintiff's first claim is that the ALJ did not accord

proper legal weight to the opinions, diagnoses and medical
evidence of Plaintiff's physicians.

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Massey specifically refers

to the conclusions of Osteopath Senger (Doc. 20, pp. 4-14).

It

should be noted 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
conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.

1981);5 see also 20 C.F.R. § 404.1527 (2013).

In her determination, the ALJ summarized the evidence of
record, but discounted Dr. Senger’s opinion that Massey was
disabled and was so limited in her physical abilities (Tr. 30).
The ALJ’s reasons were that doctor indicated that she met a
cardiac listing and Senger was an internist rather than a
specialist; the ALJ further noted that the medical records
demonstrated that her cardiac condition was stable.

The ALJ

further noted that the doctor had only treated Massey for a
period of five months at the time of his diagnosis and at the
time of his diagnosis, Plaintiff’s examination “showed no
tenderness of the back, full range of motion of the spine, and
normal 5/5 muscle strength” which was inconsistent with the
extreme limitations he had suggested.

The Court finds

evidentiary support for the ALJ’s conclusions, noting that

5The 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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Massey has not directed this Court’s attention to any other
medical evidence of record, that was available for the ALJ’s
consideration, that supports Senger’s conclusions.
The Court further notes that one component of Massey’s
argument with regard to this claim relies on medical evidence
not before the ALJ (see Doc. 20, pp. 5-7, 12-13, 14).

The Court

finds it inappropriate to address the new evidence with regard
to this claim at this time and will take it up later.
Massey also decries the ALJ’s reliance on the opinions from
two non-examining physicians who both found her capable of
performing light work (Doc. 20, pp. 7-11).

The Court notes,

however, that the ALJ also gave great weight to the conclusions
of Dr. Hoskins who, on several different occasions, noted that
there was no objective evidence of cardiac insufficiency to
explain her symptoms; he suggested that the problem was because
of Massey’s poor deconditioning.

The Court finds Plaintiff’s

insinuation that Hoskins is somehow less qualified to speak to
her abilities than Internist Senger unconvincing (see Doc. 20,
p. 12) (Dr. Hoskins is “an electrophysiologist, dealing with a
specific and highly specialized area of medicine within the
broad field of cardiology”).
The Court finds no merit in Plaintiff’s claim regarding the
ALJ’s failure to properly consider the conclusions of her
treating physician.

The Court finds that the ALJ provided

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cogent reasons, supported by the evidence, for rejecting
Senger’s conclusions.
Massey also claims that the ALJ’s decision regarding her
RFC was incorrect (Doc. 20, p. 7).

The Court notes that the ALJ

is responsible for determining a claimant’s RFC.
404.1546 (2013).

20 C.F.R. §

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. § 404.1545(a)(3).
The ALJ determined that Plaintiff was capable of performing
a reduced range of light work (Tr. 26).

The ALJ went on to find

that many of the jobs that Massey had previously performed fell
within this RFC classification or lower (Tr. 32); additionally,
the ALJ listed other jobs that Plaintiff would be capable of
performing (Tr. 33).
The Court notes that the only evidence contradicting the
ALJ’s RFC comes from Dr. Senger and Plaintiff herself.

The

Court found substantial support for the ALJ’s rejection of Dr.
Senger’s conclusions.

The Court would further note that the ALJ

rejected Massey’s testimony regarding her limitations and
abilities (Tr. 27, 30-32), a conclusion not challenged by
Plaintiff in this action.

The Court finds substantial support

for the ALJ’s conclusions regarding Massey’s RFC.
Finally, Plaintiff claims that the Appeals Council did not

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properly consider the evidence submitted to it (Doc. 20, pp. 1420).

The evidence in dispute can be found at Tr. 642-775.
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."
v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry

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
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).
In examining the action at hand, the Court notes that the

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Appeals Council denied review of the additional evidence (Tr. 17).

As Massey is claiming that the Appeals Council did not

properly consider the new evidence, this Court will examine it
under the Caulder analysis.
The Court notes that although more than one hundred pages
of new evidence were presented for the Appeals Council’s review,
Plaintiff’s arguments herein relate to only a small portion of
it (Doc. 20, pp. 14-15).

The Court also notes that Massey has

not made the argument that this evidence “relates to the period
on or before the date of the [ALJ’s] hearing decision” as
required in 20 C.F.R. § 404.976(b).
Plaintiff does argue that some of the evidence is similar
to evidence presented by Dr. Senger (Doc. 20, pp. 16-17).
Massey specifically refers to limitations suggested by Dr.
Kenneth Burnham, her new cardiologist.

Burnham indicated that

Plaintiff could sit for two hours, and stand or walk for one
hour, at a time and could sit for six hours, and stand or walk
for one hour, during an eight-hour workday (Tr. 760).

Though

this compares favorably to Senger’s opinion (see Tr. 465), the
similarity ends there.

Senger concluded that Massey could lift

or carry less than five pounds occasionally and no amount on a
frequent basis (Tr. 464) while Dr. Burnham indicated that
Plaintiff was capable of lifting five pounds continuously,
twenty pounds frequently, and twenty-five pounds occasionally

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and could carry five pounds continuously, ten pounds frequently,
and twenty-five pounds occasionally (Tr. 760).

This ability to

lift and carry falls squarely within the definition of light
work.6

Though Burnham’s assessment of Massey’s ability to stand

and walk would seem to not comport with the definition of a full
range of light work, the ALJ did not find that she could perform
a full range of light work.

What the ALJ found was that

Plaintiff could perform eight of her past relevant jobs, seven
of which were performed at the sedentary level (Tr. 32).

Massey

has not demonstrated, even with the new evidence, that she is
incapable of performing her past relevant work.

Therefore, the

Court finds that Plaintiff has not demonstrated that the Appeals
Council committed error in not considering the newly-submitted
evidence as she has failed to demonstrate a reasonable
possibility that it would change the ALJ’s conclusions.
Massey has raised three different claims in bringing this
action.

All are without merit.

Upon consideration of the

6“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.” 20 C.F.R. § 404.1567(b)
(2013).

17

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), that
this action be DISMISSED, and that judgment be entered in favor
of Defendant Michael J. Astrue and against Plaintiff Amy G.
Massey.
DONE this 21st day of January, 2014.

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

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