Cannon v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record, 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 1/31/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICIA ANN CANNON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 13-0398-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, 14).
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. 19).
argument was waived in this action (Doc. 20).

Oral

Upon

consideration of the administrative record, 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 administrative hearing, Plaintiff was
fifty-five years old, had completed two years of college
education (Tr. 141), and had previous work experience as a
retail sales person, child care teacher, and babysitter (Tr. 4445).

In claiming benefits, Plaintiff alleges disability due to

degenerative disc disease of the lumbar spine with scoliosis,
arthropathy, hypertension, obesity and headaches (Doc. 14 Fact
Sheet).
The Plaintiff filed protective applications for disability
benefits and SSI on June 17, 2010 (Tr. 117-27; see Tr. 12).
Benefits were denied following a hearing by an Administrative

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Law Judge (ALJ) who determined that she could perform her past
relevant work as a childcare worker (Tr. 12-21).

Plaintiff

requested review of the hearing decision (Tr. 7) 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, Cannon alleges

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

conclusions of her treating physician; and (2) the ALJ did not
properly consider Plaintiff’s complaints of pain (Doc. 14).
Defendant has responded to—and denies—these claims (Doc. 15).
The relevant evidence of record follows.
The earliest medical evidence dates to June 15, 2009 when
Dr. Greg Evans, Cannon’s treating physician with the Mobile
County Department of Health, in a follow-up examination noted
that her blood pressure was elevated (Tr. 196-98; see generally
Tr. 181-219).

Evans continued prescriptions for Lyrica,1

Darvocet,2 and Soma.3

On February 5, 2010, Plaintiff complained

1

Lyrica is used for the management of neuropathic pain.

Error!
Main Document Only.Physician's Desk Reference 2517 (62nd ed. 2008).
2
Error! 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).
3
Error! 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).

3

of swelling in her right hand thumb, her pain a two on a tenpoint scale; the doctor noted abnormal appearance, swelling,
erythema, tenderness, and pain on motion in both hands (Tr. 18994).

There were no sensory or motor abnormalities.

On May 28,

2010, Cannon complained of headaches and pain in her legs and
feet; on review, however, no headache was noted (Tr. 182-84).
Blood pressure was elevated and Plaintiff reported no pain; her
weight was 212.8 pounds, while standing at sixty-five inches.
Prescriptions included Flexeril and Ultram.
On June 9, 2010, Dr. Andre J. Fontana, Orthopaedic Surgeon,
examined Cannon who complained of lower back pain since falling
in 2001; she claimed to have radiating pain in both legs with
numbness and tingling in her right foot (Tr. 221-23).

Cannon

indicated that she had quit her job, requiring lifting and
picking up boxes, in January 2009 in order to find another job;
she said that she walked minimally, but without assistance.
The Orthopaedic’s examination notes were as follows:
UPPER EXTREMITIES: Cervical spine
flexion 40, extension 20, rotation 50 left
and right, and lateral flexion 20 left and
right. Sweat patterns are good. Grip
strength is 5/5. Reflexes are 1+ in the
biceps, triceps, and brachioradialis. LOWER
EXTREMITIES: Reflexes are 1+ in the patella
and 0 Achilles. Sensory is intact. Motor
is intact. Toe-heel gait is good. Straight

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leg raise is negative. Range of motion of
the knees is good. No crepitance. Left
calf is 37, left thigh 51, and right thigh
50. These are centimeters. She has good
range of motion in both hips.
(Tr. 222-23).

X-rays showed moderate-to-severe scoliosis with

degenerative disc disease at L4-5 with some mild narrowing, as
well as some spurring.

Dr. Fontana stated that Cannon “should

do no lifting over 20-25 pounds infrequently, bending, stooping,
or twisting.
(Tr. 23).

No climbing or walking on unprotected heights”

The surgeon also completed a physical capacities

evaluation in which he noted Plaintiff had no restrictions in
sitting, standing, or walking; in his form, Fontana again noted
that Cannon could lift and carry up to twenty-five pounds
occasionally (Tr. 221).

She was capable of simple grasping and

fine manipulation in both hands and could use all arms and legs
for pushing and pulling of controls.
On July 26, 2010, Plaintiff complained of lower back pain,
her left leg giving out, and a history of headaches; Dr. Evans
noted no headache and pain at two of ten with hypertension (Tr.
228-30; see generally Tr. 223-31).

The cervical,

lumbar/lumbosacral spine, and leg were noted to exhibit
abnormalities though there was no sensory, motor, or
coordination dysfunction.

On November 5, 2010, Plaintiff was in
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no pain and her blood pressure was 130/93; Dr. Evans noted
hypertension, arthropathy, and backache (Tr. 225-28).

Darvocet

and Soma were prescribed.
Emergency Room records from Springhill Medical Center on
September 17, 2010 indicated Cannon’s complaints of a headache,
dizziness, nausea, and vomiting for nine days; she reported pain
of three of ten (Tr. 238-47).

Plaintiff “reported that she has

discussed these issues with her primary care doctor in the past,
but not had any imaging, never had a head CT.
otherwise without complaints” (Tr. 246).

The patient is

All other systems

reviewed were negative; Cannon was mildly distressed, but
discharged home in good condition with a headache diagnosis.
On June 1, 2011, Plaintiff complained of bilateral leg pain
at three of ten; blood pressure was elevated, though Cannon had
lost eight pounds (Tr. 231-37).

Dr. Evans noted obesity,

arthropathy, and lumbar and lumbosacral pain and recommended
that she see a Nutritionist.

Darvocet, Soma, Fioricet,

Flexeril,4 and Ultram5 were all prescribed.
At the evidentiary hearing, Cannon testified that she was

4

Error! 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).
5
Error! 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).

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fifty-five years old, living alone in a flat (Tr. 29-42, 43-44).
She was using a cane because her leg gave out every so often as
recently as four days ago; though not prescribed, it helped her
balance.

She quit her work in retail because it required her to

stand, causing her legs and feet to swell; she left retail to
find work with children.

Plaintiff could no longer work because

the medications she took for her daily back pain made her drowsy
and sleepy; lifting, bending, mopping, and sweeping created more
pain.

The back pain radiated into both legs, made worse with

walking and standing; she could only walk six yards before she
had to sit down.
scale.

She rated her pain as seven on a ten-point

Sitting without a firm pillow was difficult; she could

only manage it for an hour.

Cannon could lift ten pounds; she

did her shopping and house-cleaning twice a month.

To pass the

time, she watched TV and completed puzzles; she sang in the
church choir and visited with her daughter weekly.

She had to

lie down for thirty minutes at a time; Plaintiff had about five
days a month she felt so bad she could not leave the house.
A Vocational Expert (hereinafter VE) testified that Cannon
had worked as a retail sales person, a child care teacher, and
babysitter; though she had no formal training, she had acquired
nine years of experience as a teacher (Tr. 42-43, 44-49).

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In

response to the ALJ’s questioning, the VE indicated that an
individual with the same residual functional capacity
(hereinafter RFC) as Cannon would be able to perform her
previous job as a child daycare teacher; other job possibilities
included work as a service clerk, ticket taker, and toll
collector.
In her determination, the ALJ found that although Plaintiff
had severe impairments, she had the RFC to perform a limited
range of light work (Tr. 15).

She specifically found that

Cannon could
lift and carry up to twenty pounds
occasionally and ten pounds frequently. She
[could] sit for six hours in an eight-hour
workday and stand and/or walk for six hours
in an eight-hour workday, but she must [be
able to] change positions between sitting
and standing approximately every hour
without leaving the workstation. She [would
be] unable to climb ladders, scaffolds, or
ropes or work around unprotected heights or
dangerous equipment. She [could]
occasionally operate foot controls, climb
stairs and ramps, bend, stoop, kneel,
crouch, and crawl.
(Tr. 15).
Cannon’s first claim in bringing this action is that the
ALJ did not accord proper legal weight to the opinions,
diagnoses and medical evidence of her physician; she

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specifically referenced Orthopoedist Fontana (Doc. 14, pp. 6-7).
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);6 see also 20 C.F.R. § 404.1527 (2013).

In her decision, the ALJ summarized the meager medical
evidence of record, including the examination notes of Dr.
Fontana.

She noted that the Orthopoedist’s “opinion is

generally consistent with the record as a whole, including the
minimal findings from objective testing and examination and the
conservative treatment [Cannon] has received;” she gave it some
weight (Tr. 18).

The ALJ specifically noted that Fontana’s

finding that Plaintiff could never crawl was unsupported by the
record evidence as his notes indicated normal range of motion in
her knees and hips; the ALJ did limit crawling to occasionally,
however (Tr. 18; cf. Tr. 222-23).
Cannon specifically objects to the ALJ’s finding that she
was able to sit, stand, and or walk for six hours, each, during

6The 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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an eight-hour day (Doc. 14, p. 7).

The Court notes, however, as

Plaintiff acknowledges, that Dr. Fontana rendered no opinion on
her abilities to do these things (see Tr. 221).

Furthermore,

Plaintiff’s own doctor never provided an opinion as to her
abilities, treating her conservatively and with medication.
It must be noted that the burden is on the claimant to
prove that she is disabled.

See 20 C.F.R. § 404.1512(a) (2013);

see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
The Court notes that the ALJ is responsible for determining a
claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

The Court further

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).

In this

action, Cannon has not provided evidence that could lead this
Court to conclude that the ALJ’s decision is not supported by
substantial evidence.

Any claim otherwise is without merit.

Cannon also asserts that the ALJ did not properly consider
her complaints of pain (Doc. 14, pp. 8-11).

The standard by

which a claimant’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

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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
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.

11

20 C.F.R. 404.1529(a) (2013).
The ALJ found that Cannon’s testimony regarding her
abilities, limitations, and pain was not supported by the record
(Tr. 18-20).

The ALJ first noted that she had been treated

conservatively and that Plaintiff had acknowledged that her
medications relieved her pain; she then noted that Plaintiff’s
self-reported daily activities did not support her alleged
limitations.

Finally, the ALJ noted that Cannon had divulged to

Dr. Fontana that she had quit work her work to find another job
and “not because she was unable to work” (Tr. 19).
The Court would further note that although Plaintiff rated
her pain at a level of seven of ten at the hearing (Tr. 40), the
worst reported pain in all of the medical records was only three
of ten on her last visit with Dr. Evans on June 1, 2011 (Tr.
233).

Dr. Evans never stated one way or the other whether

Cannon could work; he just prescribed medications.

Dr. Fontana,

on the other hand, indicated that Plaintiff could work.

There

is nothing in the record to dispute that.
Plaintiff has raised two 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

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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 31st day of January, 2014.

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

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