Thomas v. Colvin

Filing 21

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 3/28/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHEILA MAE THOMAS,

:
:
:
:
:
:
:
:
:
:

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

CIVIL ACTION 13-0466-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. 20).
argument was waived in this action (Doc. 18).

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

1

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, Thomas was
sixty-one years old, had completed a high school education (Tr.
31), and had previous work experience as a home companion, sales
clerk, and telemarketer (Tr. 40).

In claiming benefits,

Plaintiff alleges disability due to degenerative disk disease
and lumbago (Doc. 14 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on July 21, 2010 (Tr. 101-12; see also Tr. 13).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that Thomas was capable of
returning to her past relevant work as a sales clerk and
telemarketer (Tr. 13-22).

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

2

supported by substantial evidence.
that:

Specifically, Thomas alleges

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

her treating physician; (2) the ALJ did not properly consider
her claims of pain; and (3) the ALJ’s determination of her
residual functional capacity (hereinafter RFC) does not consider
all of her limitations (Doc. 14).
and denies—these claims (Doc. 15).

Defendant has responded to—
The evidence of record

follows.
On November 23, 2010, Thomas was examined by Dr. Kevin K.
Varden for complaints of left lower back pain; he noted that
although she was moderately obese, she was in no acute distress
(Tr. 181-82).

The Doctor noted that her extremities were non-

tender to the touch, except for the paravertebral area, left
lower back; she had equivocal straight leg raise on the left.
Muscle strength was 5/5 bilaterally; the neurological exam was
good and she had full range of motion (hereinafter ROM) in her
back in spite of her pain.
fully squat.

Thomas’s gait was normal; she could

An x-ray of the lumbar spine was negative except

for partial sacralization of L5.

Varden’s impression was

“[c]hronic back pain, lumbago, with no evidence for significant
residual neurological problems or complications” (Tr. 182).

It

was his opinion that Plaintiff “would be able to do most workrelated activities involved such as sitting, standing, walking,
[and] carrying objects” (id.).

3

Treatment records from Franklin Primary Health Center show
that, on February 8, 2011, Thomas had x-rays of her right
shoulder that were normal (Tr. 189).

X-rays of the cervical

spine demonstrated normal cervical lordosis and mild-to-moderate
disc space narrowing at C3-4 and C4-5 with severe disc space
narrowing at C5-6; lumbar spine x-rays were normal (id.).

The

examining physician noted pain over the lumbar-sacral spine on
ROM, though everything else was normal; Lortab1 was prescribed as
needed (Tr. 187-88).

Three weeks later, Plaintiff rated her

pain as five on a ten-point scale; the doctor again noted ROM
back pain and included it as part of his diagnosis, but recorded
nothing else relevant (Tr. 185-86).

On September 13, 2011,

Thomas rated her pain as nine; it was noted that she had limited
ROM in the right lower extremity (Tr. 194-96).

Lortab was again

prescribed.
Dr. Otis Harrison, one of Plaintiff’s doctors at the
Franklin Center, completed an undated pain assessment in which
he indicated that she had pain that was intractable and
virtually incapacitating (Tr. 198).

It was noted that physical

activity would increase her pain to the point of requiring
medication and/or bed rest; the side effects of her medications
would totally restrict her from functioning at work.

Harrison

1Error! 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).

4

also completed an undated physical capacities evaluation in
which he indicated that Thomas was capable of lifting and
carrying one pound frequently and five pounds occasionally; she
could sit for two and stand or walk for two hours during an
eight-hour workday (Tr. 199).

Harrison also indicated that

Plaintiff could engage in fine manipulation, bending and/or
stooping, reaching, operating motor vehicles, and working with
or around hazardous machinery on an occasional basis and pushing
and pulling of arm or leg controls, climbing, gross
manipulation, and being around environmental problems only
rarely.

This is all of the medical evidence of record.

In bringing this action, Thomas first claims that the ALJ
did not properly consider the conclusions of her treating
physician, Dr. Otis Harrison (Doc. 14, pp. 4-11).

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);2 see
also 20 C.F.R. § 404.1527 (2013).
Plaintiff asserts error with regard to this claim in the

2The 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.

5

ALJ’s finding that Dr. Harrison does not qualify as a treating
physician because of the limited number of times he examined her
(Doc. 14, pp. 4-5).

In her decision, the ALJ specifically noted

that Thomas did “not have a treating relationship with Dr.
Harrison.

The evidence documents that the claimant was only

treated at the Franklin Primary Health Center on three
occasions” (Tr. 18-19).
The Court questions whether the physician actually examined
Plaintiff on those three occasions as the report from the most
recent doctor’s visit, on September 13, 2011, was not signed by
Harrison, but by a physician’s assistant (Tr. 194-96).

It is of

no moment, however, as the ALJ provided other reasons for
rejecting Harrison’s opinions that are supported by substantial
evidence.
Specifically, the ALJ noted the following:
Harrison’s opinions are not consistent with
the objective evidence or the clinical
findings in the record. Specifically, the
Administrative Law Judge finds it
significant that the lumbar x-rays are
normal and that the claimant has required
very limited, sporadic medical care as she
has only sought medical treatment on three
occasions. Furthermore, the claimant has no
emergency room visits for pain and no
referrals to a pain management specialist.

(Tr. 19).

The Court notes that the ALJ went on to point out

that Harrison’s conclusions were at odds with Dr. Varden whose

6

examination was more thorough than any of those conducted at
Franklin Primary Health Center.

Furthermore, the objective

medical evidence—what little there is—does not support the
extreme limitations found by Harrison; though Thomas complained
of low back pain, and Harrison noted decreased ROM measurements,
x-rays of the lumbar spine were negative.

Dr. Harrison’s own

treatment records do not support his own conclusions,
conclusions that have no foundation anywhere in this record.
Thomas’s claim otherwise is without merit.
Plaintiff next claims that the ALJ did not properly
consider her claims of pain (Doc. 14, pp. 11-15).

The standard

by which the Thomas'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
only to limited review in the courts to ensure that the finding

7

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).
The ALJ discounted Thomas’s claims of debilitating pain,
finding them not credible to the extent alleged (Tr. 18, 19-20).
In reaching that decision, the ALJ noted that by her own
testimony, Plaintiff was capable of engaging “in a wide array of
activities of daily living” (Tr. 20).

The ALJ also noted that

there was no evidence that her pain medications did not relieve
her pain; she further found that, in spite of Thomas’s testimony
otherwise, there was no medical evidence that her medications
caused any side effects that would preclude her from working

8

(id.).

Finally, the ALJ noted the overall “paucity of the

medical evidence” and “lack of persistent and regular treatment”
(id.).
The Court finds substantial support for the ALJ’s
conclusions.

The total medical evidence in this record is twenty

pages (Tr. 181-200) and provides little evidence of impairment,
much less disability.

This claim lacks merit.

Thomas’s final claim is that the ALJ’s determination of her
RFC does not consider all of her limitations (Doc. 14, pp. 1518).

The Court notes that the ALJ is responsible for determining

a claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

That decision

cannot 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
Plaintiff is responsible for providing evidence from which the
ALJ can make an RFC determination.

20 C.F.R. § 404.1545(a)(3).

In her determination, the ALJ found that Thomas had the RFC
to perform the full range of light work as
defined in 20 C.F.R. 404.1567(b)3 and

3“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

9

416.967(b). She is capable of lifting and
carrying up to 20 pounds occasionally and 10
pounds frequently. She can stand or walk for
six hours out of an eight-hour day. She can
sit for six hours out of an eight-hour day.
She can frequently operate arm or leg
controls. She can frequently stoop, kneel,
crouch, crawl, and climb ramps or stairs.
She can occasionally climb ladders, ropes,
and scaffolding. She can perform frequent
fine and gross manipulation. She has no
environmental limitations or mental
limitations.
(Tr. 16).

In reaching this determination, the ALJ summarized

the medical record and pointed out the evidence upon which she
both relied and rejected.

The ALJ also discussed Thomas’s

complaints of pain and discounted them.

The Court notes that it

found substantial support for the ALJ’s conclusions with regard
to Plaintiff’s previous claims dealing with the ALJ’s parsing of
the evidence and her assertions of pain.
In bringing this claim regarding the ALJ’s RFC, Thomas
raises two arguments that have not been previously addressed.
Those are that the ALJ failed to consider the effect of her
mental impairments on her ability to work and that the ALJ did
not consider the combination of all of her impairments (Doc. 14,
p. 16).
With regard to her first argument, the Court notes that the
ALJ found that Plaintiff did not have a severe mental impairment

limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.”

10

(Tr. 16).

Thomas has not challenged this finding.

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).4

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."
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

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.”
The Court finds that the ALJ’s finding that Thomas did not
have a severe mental impairment implicitly suggested that her

4

"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."

11

anxiety would not interfere with her ability to work.

As such,

there was nothing to consider in reaching an RFC determination.
As far as Thomas’s assertion that the ALJ did not properly
consider the combination of her impairments, the Court notes
that "the Secretary shall consider the combined effect of all of
the individual's impairments without regard to whether any such
impairment, if considered separately, would be of such
severity."

42 U.S.C. § 423(d)(2)C).

The Eleventh Circuit Court

of Appeals has noted this instruction and further found that
"[i]t is the duty of the administrative law judge to make
specific and well-articulated findings as to the effect of the
combination of impairments and to decide whether the combined
impairments cause the claimant to be disabled."

Bowen v.

Heckler, 748 F.2d 629, 635 (11th Cir. 1984); see also Reeves v.
Heckler, 734 F.2d 519 (11th Cir. 1984); Wiggins v. Schweiker,
679 F.2d 1387 (11th Cir. 1982).
In the ALJ's findings, she lists Plaintiff's impairments
and specifically finds that she “does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1” (Tr. 16).

This language has been upheld

by the Eleventh Circuit Court of Appeals as sufficient
consideration of the effects of the combinations of a claimant's
impairments.

Jones v. Department of Health and Human Services,

12

941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant does not have
“an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4").

The Court finds Thomas’s arguments

otherwise unpersuasive.
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.

Judgment will be entered by

separate Order.
DONE this 28th day of March, 2014.

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

13