Glass v. Colvin

Filing 24

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 2/11/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JENNIFER LYNN GLASS,

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

CIVIL ACTION 13-0311-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, 13).
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 (Doc. 23).

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.

1

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 most recent administrative hearing,
Plaintiff was thirty-seven years old, had completed an eighthgrade education though she did have training as a nursing
assistant (Tr. 474-75), and had previous work experience as a
fast food worker, a cook helper, and a companion (Tr. 484).

In

claiming benefits, Glass alleges disability due to degenerative
disc disease and scoliosis of the lumbar spine, carpal tunnel
syndrome, and asthma (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on October 23, 2008 (Tr. 166-69, 181-86; see Tr. 15).
Benefits were denied following a hearing by an Administrative

2

Law Judge (hereinafter ALJ) (Tr. 32-42).

On review, the Appeals

Council vacated the ALJ’s decision and remanded the action back
for further consideration (Tr. 46-49).

Following another

hearing, the ALJ determined that although Glass could not
perform her past relevant work, there were specific light work
jobs that she could do (Tr. 15-26).

Plaintiff requested review

of the hearing decision (Tr. 10) by the Appeals Council, but it
was denied (Tr. 4-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Glass alleges

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

her treating physician; and (2) the ALJ did not properly
evaluate her complaints of pain (Doc. 13).

Defendant has

responded to—and denies—these claims (Doc. 18).

The relevant

evidence of record follows.
On September 1, 2008, a lumbar spine series was performed,
at McMillan Memorial Hospital, showing degenerative disk disease
at L5-S1 with disk space narrowing (Tr. 284).

There was very

mild convex leftward upper lumbar scoliosis and minimal
retrolisthesis of L2 on L3.

Glass was advised to stop smoking

(Tr. 285).
The next day, Plaintiff went to the Evergreen Medical

3

Center Emergency Room, complaining of lower back pain (Tr. 296303).

Lumbar spine x-rays revealed very mild levorotoscoliosis

of the lumbar spine; Glass was given a Toradol1 injection and a
prescription for Tylenol #3.2
A scoliosis survey, conducted on December 1, 2008,
demonstrated very mild S-shaped scoliotic deformity of the
thoracic and lumbar spine (Tr. 309).

A cervical spine series

showed no definite fracture or foraminal stenosis (Tr. 310).
Glass was seen on December 22, 2008 by Dr. Stanley Barnes
for complaints of back and neck pain (Tr. 401; see generally Tr.
389-405).

His examination showed some nonspecific pain to

palpation on the neck; extremities demonstrated “evidence of
generalized arthralgias, myalgias, aches and pain” in the
lumbosacral region (Tr. 401).
Ultram,4 and Mobic.5

The doctor prescribed Flexeril,3

On January 21, 2009, with the same

1Toradol is prescribed for short term (five days or less)

management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).
2Error!
 Main
 Document
 Only.Tylenol with codeine is used “for the

relief of mild to moderately severe pain.” Physician's Desk Reference
2061-62 (52nd ed. 1998).
3Error!
 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).
4Error! Main Document Only.Ultram is an analgesic “indicated for

the management of moderate to moderately severe pain.” Physician's
Desk Reference 2218 (54th ed. 2000).

4

examination results, Barnes prescribed Soma6 and Lortab7 (Tr.
400).

An MRI of the lumbar spine five days later revealed right

eccentric disk bulge at L5-S1 with mild spinal and foraminal
narrowing, greater on the right and minimal degenerative change
at L4-L5 with no significant spinal or foraminal stenosis (Tr.
399).

On February 18, 2009, Glass complained of lower back

pain; his examination showed arthritis in the extremities for
which he continued pain prescriptions and declared her disabled
(Tr. 400).

On March 18, Plaintiff complained of numbness and

tingling in her hands; Barnes indicated that she may have carpal
tunnel syndrome (Tr. 398).
On April 1, 2009, Dr. William B. Faircloth, with the
Coastal Neurological Institute, examined Glass for complaints of
pain in her lower back and both legs as well as numbness in both
hands, radiating into her elbows (Tr. 417-21).

On exam, the

Neurologist noted pain with percussion of the Median nerve,

5Error!
 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).
6Error!
 Main
 Document
 Only.Soma is a muscle relaxer used “for the

relief of discomfort associated with acute, painful musculoskeletal
conditions,” the effects of which last four-to-six hours. Physician's
Desk Reference 2968 (52nd ed. 1998).
7Error! 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).

5

bilaterally, in the extremities as well as with extension of the
wrists bilaterally; there was limited flexion and extension in
the lumbosacral spine.

Straight leg raise was normal on both

the left and right; toe and heel walking were both normal.
Motor and sensory exams were both normal; deep tendon reflexes
in the upper and lower extremities were normal bilaterally.
Faircloth noted two problems:

the first was carpal tunnel

syndrome for which wrist splints were recommended; the second
was mechanical instability for which surgical options were
explained.
On April 20, 2009, Dr. Barnes noted perennial allergic
rhinitis and nicotine addiction (Tr. 392).

A month later, Glass

complained of back pain; the doctor diagnosed osteoarthritis and
musculoskeletal pain for which he prescribed Zanaflex8 (id.).

On

June 22, Plaintiff complained of low back pain; a month later,
Barnes noted arthralgias in the extremities (Tr. 391).

In the

next two monthly visits, the doctor talked with Glass about the
possibility of back surgery and referred her to a consultant,
but Plaintiff did not want to pursue it; Barnes continued back
prescriptions (Tr. 390).

In the October and November 2009

8Error! Main Document Only.Zanaflax “is a short-acting drug for

the acute and intermittent management of increased muscle tone
associated with spasticity.” Physician's Desk Reference 3204 (52nd ed.
1998).

6

examinations, Glass complained of back pain for which she
received pain prescriptions (Tr. 389).
On November 19, 2009, Dr. Barnes completed a clinical
assessment of pain in which he indicated that Glass suffered
pain that would distract her from adequately performing her
daily activities and that exercise would increase her pain so
much that it would cause her to be distracted from—or totally
abandon—her tasks; prescription medication side effects would be
expected to be severe and limit her effectiveness due to
distraction, inattention, or drowsiness (Tr. 407).

Barnes also

completed a physical capacities evaluation in which he indicated
that Plaintiff was capable of sitting for two and standing or
walking for two hours during an eight-hour workday; she would be
able to lift and carry five pounds occasionally and one pound on
a frequent basis (Tr. 408).

The doctor further indicated that

Glass would be capable of using arm and leg controls (for
pushing and pulling movements), climbing, balancing, gross
manipulation, fine manipulation, bending, stooping, and reaching
only rarely.

Plaintiff would miss more than four days of work a

month because of her impairments.
On December 21, 2009, Dr. Barnes noted arthritis in
Plaintiff’s extremities and continued prescriptions for Lortab,

7

Flexeril, and Mobic (Tr. 415).

On January 21, 2010, Plaintiff

complained of neck pain with some radiation; her extremities
showed evidence of generalized arthritis and pain in the
lumbosacral region (id.).

Over the next several months, the

doctor’s examinations next were, essentially, the same though a
prescription for Phenergan9 with codeine was added to the
regimen; in the April 26, 2010 notes, Barnes stated that
extremities and neurologic examinations were normal (Tr. 41314).

The doctor noted back and neck pain on May 26 (Tr. 412).

On June 25, Glass complained of neck and pack pain; on
examination, he noted low back and musculoskeletal pain and
prescribed Flexeril and Lortab (Tr. 442).

On July 27, Barnes

noted diagnoses of musculoskeletal pain, low back pain, and
osteoarthritis and prescribed Flexeril and Lortab (Tr. 441).
On August 18, 2010, Dr. Vijay C. Vyas performed a
consultative examination of Glass; he stated that he had
reviewed her medical records and MRI report (Tr. 423-33).

On

exam, he noted that Plaintiff’s neck was supple, vaguely tender
on the left, though there was no restriction of movement;
Plaintiff told him that she did not have much neck pain.

Dr.

Vyas’s musculoskeletal notes were as follows:

9Error!
 Main
 Document
 Only.Phenergan is used as a light sedative.

Physician's Desk Reference 3100-01 (52nd ed. 1998).

8

Shoulders, elbows, wrists and fingers are
normal and the grips are normal. There is
some tenderness on the right side of the
lumbosacral area. There is no tenderness in
the lumbar spine. The leg raising on the
right side, she can raise to about 75
degrees, on the left side she could raise to
about 70 degrees and was having pain but the
pain radiates to the right side when she
lifts the left side. The knees, ankles,
calf and thigh are normal. The peripheral
pulses are normal. Her gait is normal. She
tried walking on the toes and heels. She is
a little unsteady. She does have a callus
on the bottom of one of the feet and she
could not walk very well. She could not
walk on the heel very well. She can bend
forward about 70 degrees, can bend backward
about 5-10 degrees, sideways about 10-15
degrees. She could squat all the way with
the help of a table and get up without any
help and without any pain or restriction.
(Tr. 425).

“The cranial nerves, motor and sensory system is

completely normal even though she complains of numbness once in
a while” (id.).

Dr. Vyas’s impression was as follows:

chronic

lumbosacral pain with degenerative joint disease; mild obesity,
on diet pills; previous history of drug abuse for many years;
smoker; and history of asthma.

The doctor complete a range of

motion (hereinafter ROM) chart in which he indicated that Glass
had diminished ROM in the following areas:

lateral flexion

bilaterally in the cervical spine; flexion, extension, and
lateral flexion, bilaterally, in the dorsolumbar spine; and

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flexion, extension, and internal rotation of the hips (Tr. 42627).

All other ROM measurements were normal in those areas as

well as in the knees, ankles, shoulders, elbows, forearms, and
wrists.

Dr. Vyas also completed a physical capacities

evaluation in which he indicated that Glass was capable of
lifting and carrying up to twenty pounds frequently (Tr. 42833).

Plaintiff could sit three and stand and walk, each, for

two hours at a time and could sit six and stand and walk, each,
for four hours during an eight-hour day.

The doctor indicated

that Glass could reach, handle, finger, and feel with both hands
continuously but could only push and pull on a frequent basis;
she could use her right foot occasionally and her left foot
frequently for pushing and pulling of foot controls.

Plaintiff

could climb stairs and ramps frequently, but climb ladders or
scaffolds, balance, stoop, kneel, crouch, and crawl only
occasionally.

The doctor further noted that Glass could be

exposed to moving mechanical parts and loud noise only
frequently (as opposed to continuously); she could operate a
motor vehicle frequently as well.
On August 27, 2010, Dr. Barnes noted Glass’s complaints of
back pain and stated that he was not really sure what to do;
noting no particular examination results other than arthritis in

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the extremities, he gave her a Toradol injection and continued
her prescriptions (Tr. 441).

On September 29 and November 1,

2010, the doctor noted no pain complaints (Tr. 439-40).

On

December 3, Plaintiff complained of back pain, stating that she
could not get by without the medication; Lortab was prescribed
(Tr. 439).

There were no complaints of pain in Dr. Barnes’s

examination notes of January 7, 2011, February 11, March 18,
April 21, or May 20; he noted that she had had several
injections and was receiving Lortab prescriptions during this
period (Tr. 436-38).

On June 21, Glass had neck and back pain;

extremities and neurological examinations were normal (Tr. 436).
On August 22, 2011, Dr. Barnes noted that Plaintiff complained
of back, hip, and knee pain; he added Zanaflex to her Lortab
prescription (Tr. 435).
At the most recent evidentiary hearing, Plaintiff testified
that Dr. Barnes had given her shots in the back and prescribed
Zanaflex and Lortab; she took three-to-four Lortab 10 mg a day,
but they made her drowsy (Tr. 474-83).

She said that the

injections did not work; she had had physical therapy following
a car accident, but that did not help either.
she had carpal tunnel in her wrists.

Glass said that

Plaintiff reported that

she could walk fifteen minutes, sit for an hour, and lift a

11

gallon of milk.

She drove short distances twice a week;

Plaintiff could climb a set of stairs if there was a railing she
could hold onto.

She could not stoop or squat.

Her left hand

went numb daily.

Glass could prepare a simple meal for herself;

she needed someone to brush her hair for her and she liked to
have someone close by in case she fell in the shower.

Plaintiff

could not make her bed, clean the bathroom, shop, take out the
trash, iron, sweep, mop, or vacuum.

Once a week, Glass could

leave her home to visit friends or family and attend church.
Generally, she sat at home and watched television and tried to
knit.
This concludes the evidence to be reviewed.
Glass first claims that the ALJ did not properly consider
the opinions and conclusions of her treating physician.

She

specifically references Dr. Barnes (Doc. 13, pp. 4-10).

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.

12

1981);10 see also 20 C.F.R. § 404.1527 (2013).
The ALJ, in her determination, held that she gave little
weight to Barnes’s conclusions
because they are inconsistent with the
longitudinal record and appear to be based
primarily on the claimant’s subjective
allegations. His opinions are inconsistent
with the claimant’s failure to receive
treatment from specialists in the fields of
pulmonology, orthopedics, or pain
management. They are also inconsistent with
the claimant’s daily living activities and
the exam findings made by Dr. Faircloth and
Dr. Barnes11 including the claimant’s normal
gait, normal motor strength, normal
sensation, and the fact that she is able to
perform a full squat and rise without
difficulty.

(Tr. 24).
The Court finds substantial support for the ALJ’s
determination in this matter.

The MRI and x-rays of record

demonstrate impairment, but only to a mild degree.

The Court

notes that while Dr. Faircloth noted Glass’s complaints of pain,
his own examination notes did not support the extreme
limitations suggested by Dr. Barnes.

The notes and conclusions

10The 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.
11The Court presumes that the ALJ meant to say that Barnes’s

conclusions were inconsistent with the exam findings of Dr. Vyas.

13

of Dr. Vyas stand totally at odds with Barnes’s conclusions.
Even Barnes’s own treatment records exhibit multiple consecutive
examinations wherein no mention of Plaintiff’s pain is noted
except as a continuing diagnosis; even when Plaintiff did
complain of pain, there is nothing in the treatment notes to
provide objective support for those complaints.

The Court finds

no merit in Glass’s claim that the ALJ did not properly consider
the conclusions of her treating physician.
Glass next claims that the ALJ did not properly evaluate
her complaints of pain (Doc. 13, pp. 10-14).

The standard by

which the Plaintiff's complaints of pain are to be evaluated
requires "(1) evidence of an underlying medical condition and
either (2) objective medical evidence that confirms the severity
of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity
that it can be reasonably expected to give rise to the alleged
pain."

Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)

(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
1986)).

The Eleventh Circuit Court of Appeals has also held

that the determination of whether objective medical impairments
could reasonably be expected to produce the pain was a factual
question to be made by the Secretary and, therefore, "subject

14

only to limited review in the courts to ensure that the finding
is supported by substantial evidence."

Hand v. Heckler, 761

F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774
F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275
(11th Cir. 1986).

Furthermore, the Social Security regulations

specifically state the following:
statements about your pain or other symptoms will
not alone establish that you are disabled; there
must be medical signs and laboratory findings
which show that you have a medical impairment(s)
which could reasonably be expected to produce the
pain or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity and
persistence of your pain or other symptoms which
may reasonably be accepted as consistent with the
medical signs and laboratory findings), would
lead to a conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2013).
In her determination, the ALJ found that although she suffered
pain and limitations, they were not as severe as Glass alleged (Tr.
22).

The ALJ noted that her daily living activities were

inconsistent with her assertions of disability, pointing out the
inconsistencies in records that she had completed as well as her
testimony (Tr. 22).

The ALJ noted that Glass received no particular—

and certainly no specialized—treatment for her pain (Tr. 22).

The

ALJ noted that Dr. Faircloth’s medical notes did not support the

15

degree of pain Plaintiff alleged; although the doctor did
discuss with Glass the possibility of surgery, his records did
not indicate any urgency for it, allowing her to decide when she
could no longer bear the pain (Tr. 22-23).

The ALJ noted that

Dr. Vyas’s records were totally unsupportive of Glass’s pain
allegations (Tr. 23).

She also noted that although Plaintiff

asserted medication side effects at her hearing, Glass had never
made those complaints to her treating physician, Dr. Barnes (Tr.
23).
The Court finds substantial support for the ALJ’s
conclusions.

The evidentiary record simply does not support her

allegations.
Glass 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 11th day of February, 2014.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

16