Hinton v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, 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 3/26/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NATALIE ROGERS HINTON,

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

CIVIL ACTION 13-0418-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, 15).
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. 16).
argument was heard on March 24, 2014.

Oral

Upon consideration of the

administrative record, the memoranda of the parties, and oral
argument, 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-eight years old, had completed a high school education
(see Tr. 30), and had previous work experience as a police
officer with the canine unit (Tr. 208).

In claiming benefits,

Plaintiff alleges disability due to degenerative disc disease,
depression, myofascial pain syndrome, and restless leg syndrome
(Doc. 15 Fact Sheet).
The Plaintiff filed protective applications for disability
insurance and SSI on November 4, 2010 (Tr. 168-82; see Tr. 21).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although she could not
return to her past relevant work, Hinton was capable of
performing specific light work jobs (Tr. 21-31).

Plaintiff

requested review of the hearing decision (Tr. 15-16) by the
Appeals Council, but it was denied (Tr. 1-5).

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Hinton claims that the ALJ’s opinion is not supported by
substantial evidence.

Specifically, she alleges that:

(1) The

ALJ improperly determined that her mental impairment was not
severe; (2) the ALJ’s residual functional capacity (hereinafter
RFC) determination is not supported by the evidence; and (3) the
ALJ should have ordered a consultative examination (Doc. 15).
Defendant has responded to—and denies—these claims (Doc. 17).
The relevant evidence of record follows.
On August 11, 2003, records from Providence Hospital show
that Plaintiff underwent a lumbar hemilaminotomy/foraminotomy at
L5-S1 for herniation on the right (Tr. 360-69).

On December 22,

2003, a second such surgery was conducted for L4-5 herniation on
the right (Tr. 351-59).1
Hinton underwent seventeen physical therapy treatments,
spanning March 8 through June 4, 2008 for back pain (Tr. 24347).

On the initial visit, Plaintiff rated her lower back pain

as two on a scale of ten and was worse with sitting or bending;
she reported no pain in her upper back (Tr. 243).

The therapist

noted weak hip extensors and that Hinton demonstrated poor
abdominal and gluteal recruitment; she had severe tenderness to
palpation of the sacrococcygeal region and thoracic spine.

Over

time, the therapist noted benefits from traction and manual

1Though these surgeries predate Hinton’s asserted disability date

of February 28, 2008 by more than four years, the Court included them
in this summary to lay the foundation for her claim of back pain.

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therapy; endurance had improved.

In the last treatment note,

the therapist noted that Hinton reported that her pain had
increased a lot since the previous session; she further noted
that Plaintiff had responded well with use of the TENS unit and
pelvic traction.
Treatment records from Coastal Neurological Institute show
that Plaintiff underwent nerve conduction studies in early 2008
on the bilateral lower extremities; all tests were within normal
limits (Tr. 299; see generally Tr. 284-319).

On April 9, 2008,

it was noted that Plaintiff had shown great improvement in her
upper back, neck, and hand as far as burning and pain following
her four weeks of physical therapy; she rated her current pain
as three on a ten-point scale (Tr. 293-96).
normal; strength was full throughout.

Her gait was

Inspection of the lumbar

spine was noted to be normal; though back pain was considered to
be unchanged, myofascial pain syndrome and muscle spasms were
improved.

Skelaxin2 was prescribed.

On May 15, Hinton rated her

pain as four of ten; she had abnormal trigger points in both the
cervical and lumbosacral spine but full strength in all
extremities (Tr. 289-92).

On July 11, Hinton stated that her

prescription medication Requip had made the pain in her neck

2Error!
 Main
 Document
 Only.Skelaxin is used “as an adjunct to rest,

physical therapy, and other measures for the relief of discomforts
associated with acute, painful musculoskeletal conditions.”
Physician's Desk Reference 830 (52nd ed. 1998).

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“tremendously better;” she rated her pain as only two (Tr. 287;
see generally Tr. 284-88).

The doctor noted that cervical range

of motion reproduced mild pain on forward flexion, extension,
and lateral bending; she had multiple palpable trigger points in
the bilateral trapezius muscles, paraspinous muscles, and
rhomboid though Plaintiff reported it had greatly improved since
the last visit.

There was also some mild palpable tenderness in

the paraspinous muscles of the lumbar spine; the Skelaxin and
Zanaflex were discontinued.
On March 3, 2010, Hinton went to Providence Hospital
Emergency Room for complaints of chest pain and palpitations
(Tr. 321-31).

An EKG showed nonspecific T wave abnormality and

possible left atrial enlargement.
On March 3, 2010, Family Practitioner Michael C. Madden
examined Plaintiff for back pain; he noted tenderness and
referred her to another doctor, Dr. Hall, for treatment (Tr.
249).

On November 17, 2010, Madden noted lumbar tenderness; x-

rays showed no fractures or dislocations (Tr. 250).

Straight

leg raises were negative bilaterally; the doctor prescribed
Zanaflax,3 Flextra,4 and Requip.5

3Error!
 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).
4Error!
 Main
 Document
 Only.Flextra DS combines acetaminophen and

phenyltoloxamine to treat aches and pains. It can cause dizziness or
drowsiness. See http://www.drugs.com/mtm/flextra-ds.html

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On March 29, 2010, Dr. Charles E. Hall, an Orthopaedic,
examined Hinton for complaints of leg and low back pain (Tr.
406).

On examination, the doctor noted that the upper extremity

examination was unremarkable; the lower extremity examination
revealed no definite motor deficits though there was some
decreased segmental motion in the lumbar spine.

No upper motor

neuron signs were noted; reflexes were equal with sensation
intact from L3-S1.

Straight leg was equivocal.

Dr. Hall stated

that he needed more information to complete his assessment.
On February 8, 2011, Dr. Kathryn Cunningham, after
reviewing the medical evidence of record as of that date,
completed a physical RFC assessment indicating that Hinton was
capable of lifting and carrying up to twenty pounds occasionally
and ten pounds frequently (Tr. 253-60).

She would be capable of

sitting, standing, and/or walking for six hours during an eighthour day and would have be limited in performing pushing and
pulling movement with her legs because of her back pain.
Cunningham found that Hinton would be able to climb, stoop, and
crouch occasionally and balance, kneel, and crawl frequently.
On March 15, 2011, Psychologist John W. Davis examined
Hinton and noted some anxiety and depression, though he found

5Requip is used in the treatment of the symptoms of Parkinson’s

Disease and Restless Leg Syndrome. Error!
 Main
 Document
 Only.Physician's
Desk Reference 1300-08 (66th ed. 2012).

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her to have the capacity for a full range of emotional qualities
(Tr. 261-65).

Davis found Plaintiff oriented in three spheres

with no loose associations, tangential or circumstantial
thinking, or confusion.

Judgment and insight were good.

The

Psychologist’s impression was that Hinton had depression
secondary to her general medical condition; her prognosis was
guarded and correlated with her physical health.

Davis

indicated that her ability to understand, remember, carry out,
and make judgments on simple work-related decisions was mildly
impaired; her ability to understand, remember, carry out and
make judgment on complex work-related decisions was moderately
impaired.

The Psychologist further found that Plaintiff would

be moderately impaired in her ability to interact appropriately
with the public, supervisors, and co-workers and to respond
appropriately to usual work situation and changes in that
setting.

Finally, Davis specifically noted that Hinton’s mental

capacity “should be considered as an add-on factor but in and of
itself [] not disabling” (Tr. 265).
On March 17, 2011, Psychologist Ellen N. Eno, after
reviewing the medical evidence of record as of that date,
completed a psychiatric review assessment indicating that Hinton
had an affective disorder characterized as depression secondary
to a general medical condition (Tr. 266-79).

The Psychologist

indicated that Plaintiff would have mild limitations in her

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daily living activities, mild difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, persistence, or pace.

Eno went on to complete a

mental RFC assessment in which she found that Hinton would be
moderately limited in her ability to carry out detailed
instructions, and maintain attention and concentration for
extended periods (Tr. 280-83).
This concludes the relevant evidence of record.
In bringing this action, Plaintiff has first asserted that
the ALJ improperly determined that her mental impairment was not
severe (Doc. 15, pp. 2-4).

In Brady v. Heckler, 724 F.2d 914,

920 (11th Cir. 1984), 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

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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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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 Hinton’s “mental
impairment of depression does not cause more than minimal
limitation in the claimant’s ability to perform basic mental
work activities and is therefore nonsevere” (Tr. 24).

The ALJ

noted that Plaintiff had testified that she had never received
any mental health counseling or been prescribed any depression
medication, concluding that “her disability is not predicated on
any mental impairment” (id.).

Going through the analysis, the

ALJ found that Plaintiff had only mild limitations in her
activities of daily living, social functioning, and
concentration, persistence, or pace, and had never experienced
any episodes of decompensation (Tr. 24-25).

In reaching these

limitations conclusions, the ALJ pointed to Plaintiff’s own
testimony as well as the observations of Psychologist Davis.
The Court finds that the ALJ’s conclusion is supported by
substantial evidence.

Though Plaintiff has directed the Court’s

attention to Davis’s finding that she had some moderate
limitations in her ability to perform complex tasks and in her

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interactions with others, the Court finds that this does not
equal the regulations requirement that she be “significantly
limited” because of her impairment.

This claim is of no merit.

Hinton next claims that the ALJ’s RFC determination is not
supported by the evidence (Doc. 15, pp. 4-6).

She specifically

asserts that the ALJ had no evidence on which he based his
decision other than his personal viewing of her at the hearing.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

That decision

can not be based on “sit and squirm” jurisprudence.
Heckler, 734 F.2d 513, 518 (11th Cir. 1984).

Wilson v.

However, the Court

also notes that the social security regulations state that a
claimant is responsible for providing evidence from which the
ALJ can make an RFC determination.

20 C.F.R. § 404.1545(a)(3).

In reaching the RFC determination, the ALJ discounted
Hinton’s testimony regarding her pain and limitations, pointing
out that medical evidence did not support her claims (Tr. 2728).7

The ALJ, in determining Plaintiff’s RFC and finding her

testimony not credible, pointed to her activities of daily
living (Tr. 29); these activities belie Hinton’s claim that she

7Though Plaintiff notes in her brief that the ALJ discounted her

testimony (Doc. 15, pp. 5, 8), she does not specifically raise the
claim here that it was improper even though it had been raised in
arguments before the Appeals Council (see Tr. 235-36, 237-38). In the
event the Court is mistaken in finding that Hinton has not raised this
claim herein, the Court finds that the ALJ’s determination in this
matter is well-stated and supported by substantial evidence.

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cannot work.

Finally, the ALJ gave some weight to the

conclusions of the non-examining physician, Dr. Cunningham,
though not full weight as he found Hinton more physically
limited than Cunningham had (Tr. 29).

This acknowledgement of

Cunningham’s conclusions provides evidence that his RFC
conclusion was not created in a vacuum.

The Court notes that

while the ALJ did note Plaintiff’s standing at the hearing after
sitting for a period of time, this did not amount to “sit and
squirm” jurisprudence as there was other evidence on which he
based his decision.

The Court finds substantial support for the

ALJ’s determination of Hinton’s RFC.
Plaintiff’s final claim is that the ALJ should have ordered
a consultative examination.

More specifically, Hinton suggests

that the ALJ should have solicited more information regarding
her back impairments. (Doc. 15, pp. 7-8).

The Court notes that

the Eleventh Circuit Court of Appeals has required that "a full
and fair record" be developed by the Administrative Law Judge
even if the claimant is represented by counsel.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).

Cowart v.

The Court notes that Plaintiff was examined by Orthopaedist
Hall on March 29, 2010 for her back pain.

Hall indicated that

he needed more information to make his assessment, including an
MRI (Tr. 406).

The Court further notes that the ALJ’s decision

was not entered for more than two years after Hall’s exam, yet

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no further medical evidence from Dr. Hall—or any other treating
physician, for that matter—was provided by Hinton for
consideration.

While acknowledging that there is very little

medical evidence in this record, Plaintiff is reminded that she
is ultimately responsible for providing evidence to demonstrate
that she is disabled.

This claim is of no merit.

Plaintiff has raised three different claims in bringing
this action.

All 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.
separate Order.

Judgment will be entered by

DONE this 26th day of March, 2014.

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

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