Loyd v. Colvin
Filing
24
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner of Social Security denying plaintiff benefits be affirmed. Signed by Magistrate Judge William E. Cassady on 6/23/2014. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THERESA D. LOYD,
:
Plaintiff,
:
vs.
:
CA 13-0513-C
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 22 & 23 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States Magistrate Judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of plaintiff’s counsel at the April 30, 2014 hearing before the
Court, it is determined that the Commissioner’s decision denying benefits should be
affirmed.1
1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 22 & 23 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
(Continued)
Plaintiff alleges disability due to a history of a cerebrovascular accident, migraine
headaches, backache, and a history of substance abuse. The Administrative Law Judge
(ALJ) made the following relevant findings:
1.
The claimant last met the insured status requirements of the
Social Security Act through June 30, 2011.
2.
The claimant has not engaged in substantial gainful activity since
October 16, 2010, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
3.
The claimant has the following severe impairments: history of
cerebrovascular accident, migraine headaches, backache, and history of
substance abuse (20 CFR 404.1520(c) and 416.920(c)).
.
.
.
A review of the record discloses the claimant’s hospitalization in October
2010, with the discharge summary citing the claimant’s assessed sensory
motor lacunar stroke affecting the left side of her body, as well as
additional assessments of hypertension, tobacco abuse, history of asthma,
history of migraine[s] in the past, and history of anxiety. Notations
indicated that the claimant had experienced a three-day history of leftsided weakness and mild dysarthria prior to hospitalization, but that,
during hospitalization, her dysarthria resolved and she made significant
progress in muscle strength. An MRI of the brain illustrated two adjacent
recent lacunar infarcts, and carotid duplex studies showed mild to
moderate plaquing at the level of the common carotid arteries bilaterally.
Further, there was Doppler evidence suggesting 50-69% diameter stenosis
of both proximal internal carotid arties, with both vertebral arteries
having normal antegrade flow.
Notations from Mobile County Health Department from October 26, 2010,
disclosed that the claimant had experienced back pain for the previous
three days and needed a refill of Soma. She was assessed with anxiety,
backache, and lacunar stroke. During examination, while tenderness to
palpation was noted, no sensory exam abnormalities were detected; no
dysfunction
in
motor
examination
was
observed;
no
coordination/cerebellum abnormalities were noted; and normal reflexes
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
2
were detected. The claimant returned to the health department on
November 15, 2010, with notations indicating that her stroke symptoms
were resolving and that she had equal grip bilaterally. Notations further
indicated that the claimant was not taking medication. At a visit to the
Mobile County Health Department on February 14, 2011, examination
illustrated sound distortions in the claimant’s speech, reduced motor
strength on the left side, incoordination of the left side during
coordination/cerebellum examination, and limited balance. She was
assessed with observed combined systolic and diastolic elevation,
backache, and right hemispheric stroke. Medication refills were given. The
claimant returned for treatment on March 1, 2011, with assessments of
headache syndrome and left hemisphere stroke being made.
At a visit to the Mobile County Health Department on April 13, 2011, the
claimant received assessments of anxiety, observed combined systolic and
diastolic elevation, asthma, backache, and continuous nicotine
dependence. Medications were administered and refills of prescription
medications obtained. The claimant was assessed with backache and
stroke syndrome at a visit on June 13, 2011, with it also being noted that
she presented for a repeat prescription for medication. Treatment
notations dated October 3, 2011, disclosed that . . . examination of [the
claimant’s] musculoskeletal system was normal; her motor examination
demonstrated no dysfunction; and no coordination/cerebellum
abnormalities were noted. She was diagnosed with classic migraine,
anxiety, and backache, and she obtained medication refills. The claimant
was evaluated on February 2, 2012, at the Mobile County Health
Department and was observed to have pain with palpation of the lower
lumbar spine. However, motor examination demonstrated no dysfunction
and no coordination/cerebellum abnormalities were noted. Assessments
included classic migraine, backache, headache syndromes, and primary
insomnia, and medication refills were obtained. On February 28, 2012, the
claimant underwent imaging of the cervical spine that reflected well
preserved disc spaces, no anterior soft tissue swelling, and normal
alignment and contour of the vertebrae with minimal spurring anteriorly
at the C5 level. Additionally, no acute fracture or dislocation was
appreciated. Imaging of the claimant’s lumbar spine illustrated minimal
spurring; no compression fracture or subluxation; and either a small
intervertebral disc herniation or Schmorl’s node at the superior endplate
of the L2 level.
At a consultative neurological evaluation with Ilyas A. Shaikh, M.D., in
April 2011, the claimant complained of neck and back pain, as well as leftsided weakness. Examination of the spine disclosed no tenderness to
palpation and a fairly normal range of motion. During neurological
examination, the claimant did not demonstrate any dysarthria, dysphasia,
or dysphonia; her face was bilaterally symmetrical. The claimant’s motor
strength was bilaterally symmetrical and 5/5 to abduction, adduction,
flexion, and extension of the upper and lower extremities, despite her
demonstration of poor effort on the left side. Physical examination
3
disclosed no rigidity or spasticity. Additionally, the claimant’s fine motor
skills were normal; she was able to make a fist and oppose her thumb to
her fingers; and she was able to turn the doorknob and tie her shoelaces.
Dr. Shaikh also noted that the claimant’s grip strength was 5/5 and
bilaterally symmetrical; her sensations were intact; her Romberg was
negative; her cerebellar functions were intact by finger-nose-finger, finger
tapping, and rapid alternate movements; her deep tendon reflexes were
2+ bilaterally at the biceps, triceps, brachioradialis, knees, and ankles; and
her toes were down going and there was no clonus. Regarding
gait/station, the claimant was able to stand on her heels and toes and her
tandem gait was mildly compromised. According to Dr. Shaikh, the
claimant showed poor effort in touching the fingers to the toes and she
limped and favored her left leg. However, the claimant did not use any
hand held assistive device and had a normal association of arm swings.
Dr. Shaikh’s diagnostic impression consisted of history of back pain,
history of left-sided weakness, and history of headaches (probably
migraine in nature). In comments, Dr. Shaikh noted that the claimant had
been treated for mild left-sided weakness related to her lacunar sensory
motor infarct and that, despite neurological examination being fairly
normal, she continued to demonstrate left-sided weakness and to
experience migraine headache, as well.
.
.
.
In June 2011, Kenneth Sherman, M.D., [the] treating source associated
with Mobile County Health Department, completed a physical capacities
evaluation in which he referenced the claimant’s multiple TIA’s and
stroke. Dr. Sherman opined that the claimant could sit for four hours total
during an entire eight hour day, could stand for three hours total during
an eight hour day, and could walk for two hours total during an eight
hour day. He further concluded that the claimant could continuously lift
up to five pounds, could frequently lift six to ten pounds, could
occasionally lift eleven to twenty pounds, and could never lift twenty-one
pounds or more. According to Dr. Sherman, the claimant could frequently
carry up to five pounds, could occasionally carry six to ten pounds, and
could never carry eleven or more pounds. While Dr. Sherman indicated
that the claimant could use her right hand for simple grasping, he
reported that she could not use her left hand for simple grasping. Dr.
Sherman opined that the claimant could use both hands for pushing and
pulling of arm controls, but could not use either hand for fine
manipulation. He additionally concluded that the claimant could use both
feet for pushing and pulling of leg controls; could frequently bend; could
occasionally crawl; and could never squat, climb, or reach. Finally, Dr.
Sherman assigned the claimant a total restriction on exposure to dust,
fumes, and gases; moderate restriction of activities involving being
around unprotected heights and driving automotive equipment; and mild
restriction of activities involving being around moving machinery and
exposure to marked changes in temperature and humidity. In his clinical
assessment of pain evaluation, Dr. Sherman concluded that the claimant’s
4
pain was present to such an extent as to be distracting to the adequate
performance of daily activities or work and that physical activity, such as
walking, standing, bending, stooping, and moving of extremities, would
greatly increase the claimant’s pain to such a degree as to cause distraction
from a task or total abandonment of the task. Further, Dr. Sherman
indicated that medication side effects could be expected to be severe and
to limit the claimant’s effectiveness due to distraction, inattention, and
drowsiness.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
.
.
.
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to lift and
carry no more than twenty pounds occasionally and ten pounds
frequently; to have unrestricted sitting, standing, and walking; to
perform frequent fingering on the left; to frequently use foot controls
on the left; to occasionally bend, stoop, crouch, and climb stairs/ramps;
to never climb ladders, scaffolding, and ropes; to never kneel or crawl;
to never work around unprotected heights or around dangerous
equipment; to be able to understand [and] carry out simple, one or two
step instructions; to be able to understand [and] carry out “detailed but
uninvolved” written or oral instructions involving a few concrete
variables in or from standardized situations; to avoid tasks involving a
variety of instructions or tasks; to perform no work in crowds; to
occasionally work around the public; and to frequently work around coworkers.
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment. In making this finding,
the undersigned has considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements
of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p
and 06-3p.
.
.
.
5
The claimant was hospitalized in October 2010 with a sensory motor
lacunar stroke affecting the left side of the body; however, during
hospitalization, her dysarthria resolved and she made significant progress
in muscle strength. The claimant presented for treatment to Mobile
County Health Department from late October 2010 through late February
2012 on an intermittent basis for assessments of stroke/stroke syndrome,
anxiety, backache, combined systolic and diastolic elevation, classic
migraine, headache syndrome, asthma, continuous nicotine dependence,
and primary insomnia. However, notations from Mobile County Health
Department failed to indicate that the claimant experienced disabling or
debilitating symptoms from either her stroke or from any other diagnosed
condition. The undersigned finds that the objectively demonstrable
evidence of record fails to support that the claimant is as impaired as she
has alleged. The undersigned notes that no credible treating or
consultative physician has opined that the claimant was disabled because
of any physical or mental condition or from any resulting symptoms.
Consultative evaluators of record failed to conclude that the claimant was
precluded from work activity because of conditions or related symptoms;
in fact, Dr. Starkey opined that the claimant’s ability to understand,
remember, and carry out simple/concrete instructions appeared adequate
currently and that her ability to work independently versus with close
supervision appeared adequate.
The undersigned cannot grant great weight to the findings of Dr. Sherman
in his physical capacities evaluation, in that the credible, objective record,
including his own records from Mobile County Health Department, do
not support the limitations he placed on the claimant’s sitting, standing,
and walking, as well as lifting and carrying. Additionally, the
undersigned references Dr. Sherman’s citation of “multiple TIA’s” in
Exhibit 10F and finds no evidence in the current record, including
notations of Dr. Sherman, that the claimant experienced any difficulty
with such condition. The findings with respect to pain made in his clinical
assessment of pain evaluation are not documented to such a degree in Dr.
Sherman’s own treatment notations from Mobile County Health
Department (or in any other documentation of record). Dr. Sherman also
referenced stroke as an impairment in his physical capacities evaluation.
Regarding the claimant’s cerebrovascular accident, notations from Mobile
County Health Department from mid 2010 indicated that her stroke
symptoms were resolving and that she had equal grip bilaterally. Only
one notation from the health department documented abnormal physical
findings regarding the claimant’s post cerebrovascular accident, with the
remainder failing to document ongoing difficulty related to stroke
residuals. Further, the undersigned notes that a consultative evaluator
with specialization in neurology, Dr. Shaikh, failed to conclude that the
claimant experienced disabling or debilitating symptoms as a result of her
stroke. Dr. Shaikh’s neurological evaluation was thorough; his findings
were primarily normal (with the exception of a mildly compromised
tandem gait) and not indicative of an individual continuing to experience
residual symptomatology related to a prior cerebrovascular accidence.
6
Specifically, according to Dr. Shaikh, the claimant showed poor effort in
touching the fingers to the toes and she limped and favored her left leg.
However, he noted that she did not use any hand held assistive device
and had a normal association of arm swings. He further noted that the
claimant had been treated for mild left-sided weakness related to her
lacunar sensory motor infarct. Regarding potential pain related
impairments, the undersigned notes that Mobile County Health
Department notations cited only an assessment of backache and reflected
either normal musculoskeletal system findings or minimal abnormality;
i.e., tenderness to palpation on one occasion and pain with palpation of
the lower lumbar spine on another occasion. Imaging of the claimant’s
lumbar spine illustrated minimal spurring; no compression fracture or
subluxation; and either a small intervertebral disc herniation or Schmorl’s
node at the superior endplate of the L2 level. During Dr. Shaikh’s
evaluation, examination of the claimant’s spine disclosed no tenderness to
palpation and a fairly normal range of motion. The claimant testified that
she did not use a cane, braces, or splints.
Nothing in the record suggests that the claimant’s impairments have been
incapable of being alleviated or controlled with the proper and regular use
of prescription and/or over-the-counter medications. Multiple notations
from Mobile County Health Department revealed that the claimant
presented for prescription medication refills. The claimant testified that
Lyrica helped and that she took over-the-counter medications for
headaches (which helped if she caught the headache before it got too bad).
The objective record contains no evidence of the claimant’s ongoing
difficulties with side effects of medication, when taken as prescribed. The
undersigned additionally finds that there is no objective documentation
that the claimant’s performance of daily activities has been substantially
impaired due to her diagnosed conditions. Dr. Starkey noted that the
claimant could feed, groom, bathe, and dress herself without assistance.
Dr. Starkey further noted that the claimant could manage money, prepare
meals, shop for groceries, use a phone, and drive an automobile without
assistance. Dr. Starkey further noted that the claimant could manage
money, prepare meals, shop for groceries, use a phone, and drive an
automobile without assistance. Moreover, Dr. Starkey stated that the
claimant required no assistance for completing any instrumental activities
of daily living. At her hearing, the claimant testified that she drove, did
the laundry, did grocery shopping, attended church, watched television,
read, and played video games on the computer. There is no indication
from hearing testimony that the claimant experienced difficulty with her
left hand that impacted on her ability to play computer games. The
claimant also testified that she received unemployment for about 1½ years
total, and she indicated actively seeking work while receiving
unemployment. Other than the claimant’s hospitalization for
cerebrovascular accident, it is noteworthy that documentation of record
does not contain any inpatient hospitalizations for the claimant for any
condition. The undersigned further recognizes the paucity of medical
evidence in this case for complaints surrounding her impairments and
7
finds it reasonable to assume that if the claimant were experiencing
difficulties to a disabling degree, she would have presented to her
physician for persistent, regular, and ongoing treatment.
The undersigned also notes that the claimant’s clinical examination
findings have often been found to be normal or minimally abnormal, and
the objective diagnostic evidence of record has been sparse and/or not
reflective of an individual experiencing debilitating or disabling
symptoms. Imaging of the lumbar spine has been discussed in relation to
the claimant’s reports of backache. Imaging of the claimant’s cervical
spine reflected well preserved disc spaces, no anterior soft tissue swelling,
and normal alignment and contour of the vertebrae with minimal
spurring anteriorly at the C5 level. Additionally, no acute fracture or
dislocation was appreciated. The undersigned notes, in relation to the
claimant’s complaints of migraine headache, that the record failed to
document any finding diagnostic of or relevant to the condition. Carotid
duplex studies showed mild to moderate plaquing at the level of the
common carotid arteries bilaterally. Physical examination of record
indicated that no sensory exam abnormalities were detected; no
dysfunction
in
motor
examination
was
observed;
no
coordination/cerebellum abnormalities were noted; and normal reflexes
were detected. During neurological examination with Dr. Shaikh, the
claimant did not demonstrate any dysarthria, dysphasia, or dysphonia;
her face was bilaterally symmetrical. The claimant’s motor strength was
bilaterally symmetrical and 5/5 to abduction, adduction, flexion, and
extension of the upper and lower extremities, despite Dr. Shaikh’s opinion
of her demonstration of poor effort on the left side. Physical examination
disclosed no rigidity or spasticity. Additionally, the claimant’s fine motor
skills were normal; she was able to make a fist and oppose her thumb to
her fingers; and she was able to turn the doorknob and tie her shoelaces.
Dr. Shaikh also noted that the claimant’s grip strength was 5/5 and
bilaterally symmetrical; her sensations were intact; her Romberg was
negative; her cerebellar functions were intact by finger-nose-finger, finger
tapping, and rapid alternate movements; her deep tendon reflexes were
2+ bilaterally at the biceps, triceps, brachioradialis, knees, and ankles; and
her toes were down going and there was no clonus.
While it is credible that the claimant experiences some degree of pain and
other symptoms, it is not credible that she experiences the level of
symptomatology to the extent alleged. Based on a review of the medical
evidence of record, as well as the claimant’s testimony at the hearing, the
undersigned finds that the preponderance of the evidence contained in the
record does not support the claimant’s allegations of totally incapacitating
pain and other symptomatology and that the claimant’s statements
regarding the severity, frequency, and duration of her symptoms are
overstated. The record fails to document persistent, reliable manifestations
of a disabling loss of functional capacity by the claimant resulting form
her reported symptomatology. Therefore, the undersigned finds that the
claimant’s allegations of inability to work because of her subjective
8
symptoms are not fully credible, and all of the above factors lead the
undersigned to a conclusion that the claimant’s alleged symptoms and
conditions are not of a disabling degree. After considering the entirety of
the record, the undersigned concludes that the claimant would not be
precluded from performing the physical and mental requirements of work
activity on a regular and sustained basis.
6.
The claimant is capable of performing past relevant work as a
cleaner housekeeper. This work does not require the performance of
work-related activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965).
The claimant has past relevant work as a cashier (DOT# 211.462-010),
unskilled work at the light exertional level; cleaner housekeeper (DOT#
325.687-014), unskilled work at the light exertional level; short order cook
(DOT# 313.374-014), semi-skilled work at the light exertional level;
industrial cleaner (DOT# 381.687-018), unskilled work at the medium
exertional level; and flagger (DOT# 372.667-022), unskilled work at the
light exertional level. In comparing the claimant’s residual functional
capacity with the physical and mental demands of her work as a cleaner
housekeeper, the undersigned finds that the claimant is able to perform it
as actually and generally performed. Vocational expert testimony
established that, based upon hypothetical question #1, the claimant’s past
relevant work as a cleaner housekeeper could be performed.
The undersigned is aware that other hypothetical questions were posed at
the hearing that elicited different responses from the vocational expert.
Those questions, however, contained residual functional capacities
and/or hypothetical information that, upon further review of the credible
record, are not accurate or have less evidentiary foundation. Accordingly,
the vocational expert’s responses thereto are of no probative value.
7.
The claimant has not been under a disability, as defined in the
Social Security Act, from October 16, 2010, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).
(Tr. 41, 41-43, 43-44, 46 & 47-50 (internal citations omitted; emphasis in original).) The
Appeals Council affirmed the ALJ’s decision (Tr. 1-4) and thus, the hearing decision
became the final decision of the Commissioner of Social Security.
DISCUSSION
A claimant is entitled to an award of disability insurance benefits and
supplemental security income when she is unable to engage in substantial gainful
activity by reason of any medically determinable physical or mental impairment which
9
can be expected to result in death or last for a continuous period of not less than 12
months. See 20 C.F.R. §§ 404.1505(a) & 416.905(a) (2013). In determining whether a
claimant has met her burden of proving disability, the Commissioner follows a five-step
sequential evaluation process. See 20 C.F.R. §§ 404.1520 & 416.920. At step one, if a
claimant is performing substantial gainful activity, she is not disabled. 20 C.F.R. §§
404.1520(b) & 416.920(b). At the second step, if a claimant does not have an impairment
or combination of impairments that significantly limits her physical or mental ability to
do basic work activities, she is not disabled. 20 C.F.R. §§ 404.1520(c) & 416.920(c). At
step three, if a claimant proves that her impairments meet or medically equal one of the
listed impairments set forth in Appendix 1 to Subpart P of Part 404, the claimant will be
considered disabled without consideration of age, education and work experience. 20
C.F.R. §§ 404.1520(d)& 416.920(d). At the fourth step, if the claimant is unable to prove
the existence of a listed impairment, she must prove that her physical and/or mental
impairments prevent her from performing her past relevant work. 20 C.F.R. §
404.1520(f) & 416.920(f). And at the fifth step, the Commissioner must consider the
claimant’s residual functional capacity, age, education, and past work experience to
determine whether the claimant can perform other work besides past relevant work. 20
C.F.R. §§ 404.1520(g) & 416.920(g). Plaintiff bears the burden of proof through the first
four steps of the sequential evaluation process, see Bowen v. Yuckert, 482 U.S. 137, 146
n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987), and while the burden of proof shifts
to the Commissioner at the fifth step of the process to establish other jobs existing in
substantial numbers in the national economy that the claimant can perform,2 the
2
See, e.g., McManus v. Barnhart, 2004 WL 3316303, *2 (M.D. Fla. Dec. 14, 2004)
(“The burden [] temporarily shifts to the Commissioner to demonstrate that ‘other work’ which
the claimant can perform currently exists in the national economy.”).
10
ultimate burden of proving disability never shifts from the plaintiff, see, e.g., Green v.
Social Security Administration, 223 Fed.Appx. 915, 923 (11th Cir. May 2, 2007) (“If a
claimant proves that she is unable to perform her past relevant work, in the fifth step,
‘the burden shifts to the Commissioner to determine if there is other work available in
significant numbers in the national economy that the claimant is able to perform.’ . . .
Should the Commissioner ‘demonstrate that there are jobs the claimant can perform, the
claimant must prove she is unable to perform those jobs in order to be found
disabled.’”). 3
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she is capable of performing her
past relevant work as a cleaner/housekeeper, is supported by substantial evidence.
Substantial evidence is defined as more than a scintilla and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining
whether substantial evidence exists, we must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the Commissioner’s] decision.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).4 ). Courts are precluded, however,
from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 Fed.
App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005)). And, “[e]ven if the evidence preponderates against the
Commissioner’s findings, [a court] must affirm if the decision reached is supported by
3
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
4
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
11
substantial evidence.” Id. (citing Crawford v. Commissioner of Social Security, 363 F.3d
1155, 1158-59 (11th Cir. 2004).
The plaintiff’s sole argument in this case is that the ALJ committed reversible
error in failing to give adequate and controlling weight to the opinion of plaintiff’s
treating physician, Dr. Kenneth Sherman, in violation of 20 C.F.R. §§ 404.1527 and
416.927, as well as SSR 96-2p. (Doc. 15, at 1.) More specifically, plaintiff contends that
the ALJ erred in failing to accord controlling weight to the physical capacities
evaluation (“PCE”) and clinical assessment of pain (“CAP”) forms completed by her
treating family practitioner on June 13, 2011 (Tr. 347-349). (Doc. 15, at 3-6.)
The law in this Circuit is clear that an ALJ “’must specify what weight is given to
a treating physician’s opinion and any reason for giving it no weight, and failure to do
so is reversible error.’” Nyberg v. Commissioner of Social Security, 179 Fed.Appx. 589, 590591 (11th Cir. May 2, 2006) (unpublished), quoting MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (other citations omitted). In other words, “the ALJ must give the
opinion of the treating physician ‘substantial or considerable weight unless “good
cause” is shown to the contrary.’” Williams v. Astrue, 2014 WL 185258, *6 (N.D. Ala. Jan.
15, 2014), quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004) (other citation
omitted); see Nyberg, supra, 179 Fed.Appx. at 591 (citing to same language from Crawford
v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 2004)).
Good cause is shown when the: “(1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241
(11th Cir. 2004). Where the ALJ articulate[s] specific reasons for failing to
give the opinion of a treating physician controlling weight, and those
reasons are supported by substantial evidence, there is no reversible error.
Moore [v. Barnhart], 405 F.3d [1208,] 1212 [(11th Cir. 2005)].
Gilabert v. Commissioner of Soc. Sec., 396 Fed. Appx. 652, 655 (11th Cir. Sept. 21, 2010) (per
12
curiam). Most relevant to this case, an ALJ’s articulation of reasons for rejecting a
treating source’s RFC and pain assessments must be supported by substantial evidence.
See id. (“Where the ALJ articulated specific reasons for failing to give the opinion of a
treating physician controlling weight, and those reasons are supported by substantial
evidence, there is no reversible error. In this case, therefore, the critical question is
whether substantial evidence supports the ALJ’s articulated reasons for rejecting
Thebaud’s RFC.”) (citing Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005));
D’Andrea v. Commissioner of Social Security Admin., 389 Fed.Appx. 944, 947-948 (11th Cir.
Jul. 28, 2010) (per curiam) (same).
In this case, the ALJ specifically determined that great weight could not be
accorded numerous findings by Dr. Sherman reflected in the June 13, 2011 PCE and
CAP.
The undersigned cannot grant great weight to the findings of Dr. Sherman
in his physical capacities evaluation, in that the credible, objective record,
including his own records from Mobile County Health Department, do
not support the limitations he placed on the claimant’s sitting, standing,
and walking, as well as lifting and carrying. Additionally, the
undersigned references Dr. Sherman’s citation of “multiple TIA’s” in
Exhibit 10F and finds no evidence in the current record, including
notations of Dr. Sherman, that the claimant experienced any difficulty
with such condition. The findings with respect to pain made in his clinical
assessment of pain evaluation are not documented to such a degree in Dr.
Sherman’s own treatment notations from Mobile County Health
Department (or in any other documentation of record). Dr. Sherman also
referenced stroke as an impairment in his physical capacities evaluation.
Regarding the claimant’s cerebrovascular accident, notations from Mobile
County Health Department from mid November 2010 indicated that her
stroke symptoms were resolving and that she had equal grip bilaterally.
Only one notation from the health department documented abnormal
physical findings regarding the claimant’s post cerebrovascular accident,
with the remainder failing to document ongoing difficulty related to
stroke residuals. Further, the undersigned notes that a consultative
evaluator with specialization in neurology, Dr. Shaikh, failed to conclude
that the claimant experienced disabling or debilitating symptoms as a
result of her stroke. Dr. Shaikh’s neurological evaluation was thorough;
his findings were primarily normal (with the exception of a mildly
compromised tandem gait) and not indicative of an individual continuing
13
to experience residual symptomatology related to a prior cerebrovascular
accidence. Specifically, according to Dr. Shaikh, the claimant showed
poor effort in touching the fingers to the toes and she limped and favored
her left leg. However, he noted that she did not use any hand held
assistive device and had a normal association of arm swings. He further
noted that the claimant had been treated for mild left-sided weakness
related to her lacunar sensory motor infarct. Regarding potential pain
related impairments, the undersigned notes that Mobile County Health
Department notations cited only an assessment of backache and reflected
either normal musculoskeletal system findings or minimal abnormality;
i.e., tenderness to palpation on one occasion and pain with palpation of
the lower lumbar spine on another occasion. Imaging of the claimant’s
lumbar illustrated minimal spurring; no compression fracture or
subluxation; and either a small intervertebral disc herniation or Schmorl’s
node at the superior endplate of the L2 level. During Dr. Shaikh’s
evaluation, examination of the claimant’s spine disclosed no tenderness to
palpation and a fairly normal range of motion. The claimant testified that
she did not use a cane, braces, or splints.
(Tr. 47-48.) Thus, as is clear from the foregoing, the ALJ’s articulated reasons for
rejecting Dr. Sherman’s CAP assessment and numerous findings on his PCE assessment
are that the findings encompassed therein are not bolstered by the evidence of record,
including the treating family practitioner’s own medical records, all of which support
contrary findings (id.). See Gilabert, supra, 396 Fed.Appx. at 655. The Court finds the
ALJ’s articulated reasons for rejecting Dr. Sherman’s CAP and specific PCE findings
supported by substantial evidence.
The medical evidence reflects that Loyd was hospitalized on October 16, 2010,
and treated over the course of the next several days for a sensory motor lacunar stroke
affecting the left side of her body. (Tr. 241-249.) On admission, the claimant did have
some noticeable mild left-sided weakness but no other serious neurological deficits. (Id.
at 241 & 242.) The consulting neurologist, Dr. William Denson, performed a
neurological examination that revealed the following:
This is an alert, cooperative white female in no acute distress. Speech is
normal. Pupils are 2.5 mm and symmetrically reactive to light. Visual
fields are full, and she is not extinguished. Extraocular movements intact
without nystagmus. Facial sensation is slightly reduced to light touch on
14
the left. There is minimal effacement to left nasolabial fold. Tongue and
palate are midline. Neck supple. On motor testing, there is a very mild left
hemiparesis with 4+/5 strength noted on the legs and she could easily
oppose gravity. There is a very mild pronator drift to extended left arm.
Ocular movements are mildly slowed when compared to the right. Light
touch and pinprick are mildly reduced in the left arm and intact in the left
leg. DTRs were 0-1+ bilaterally. Plantar responses are flexor. No tremor or
ataxia.
(Tr. 245.) Loyd’s condition significantly improved over the next forty-eight (48) hours
and she was discharged from the hospital on October 19, 2010. (Tr. 246.) Plaintiff’s
treating family practitioner at the Mobile County Health Department, Dr. Kenneth
Sherman, treated plaintiff one week later, on October 26, 2010 (Tr. 268-269), and another
two times over the course of the next eight months before completion of the
aforementioned PCE and CAP (compare Tr. 262-267 with Tr. 347-349 & 354-356).
Although Dr. Sherman’s office notes from October 26, 2010 reference “residual left side
weakness[]” (Tr. 268), the neurological exam was normal (Tr. 269 (“No sensory exam
abnormalities were noted. [] A motor exam demonstrated no dysfunction. []
No
coordination/cerebellum abnormalities were noted.”)).5 Some three and one-half
months later, on February 14, 20116 --after noting plaintiff had decided to apply for
disability, would bring in a form to be filled out, and that he would “assist as much as
possible”—Dr. Sherman’s neurological exam revealed several abnormal findings (Tr.
263 (“Speech: [] Demonstrated sound distortions. Motor: [] Strength was reduced [o]n the
left side. Coordination/Cerebellum: [] Incoordination on the left side. [] Past-pointing was
seen. Balance: [] Limited.”)). Two weeks later, on March 1, 2011, however, Dr. Sherman’s
5
Sherman’s examination of plaintiff’s back revealed merely some tenderness to
palpation. (Tr. 269.)
6
In the interim, Certified Registered Nurse Practitioner Andrea S. Pitts observed
on November 15, 2010 that plaintiff’s stroke symptoms were resolving as Loyd demonstrated
equal grip bilaterally. (Tr. 265.)
15
office notes contain no mention of a neurological exam or abnormal findings, the sole
focus of plaintiff’s visit being her complaints of bad headaches. (Tr. 262.)7
Most
importantly, when Dr. Sherman completed the PCE and CAP on June 13, 2011 (Tr. 347349), the completion of those forms and refilling Loyd’s prescriptions were the sole
focuses of plaintiff’s visit (Tr. 355 (“The Chief Complaint is: Rx refill. [N]eeds forms
filled out.”)), there being no physical examination of plaintiff by Dr. Sherman (see id.
(reflecting as the sole physical findings plaintiff’s vital signs obtained by the nurse)).
The foregoing review of Dr. Sherman’s pertinent medical records reflect few
abnormal objective findings and nothing about those abnormal findings on February 14,
2011 support a determination that those abnormalities persisted on June 13, 2011 so as
to support the sitting, standing, walking, and lifting/carrying limitations reflected on
the PCE.8 Moreover, no objective findings contained in the remainder of the pertinent
7
Dr. Mark Pita’s April 13, 2011, examination notes reveal no neurological exam,
presumably due to plaintiff’s chief complaint being low back pain. (Tr. 356-358.) Indeed, Dr.
Pita made no mention of plaintiff’s October 2010 stroke. (See id. at 357.) Moreover, Pita’s notes
contain no objective abnormal findings on examination of the back. (See id.)
8
Moreover, based on the very limited office notes supplied by Dr. Sherman on
June 13, 2011, it appears that the treating family practitioner based the CAP findings (Tr. 348349) upon Loyd’s complaints of low back pain (compare id. with Tr. 355 (containing plaintiff’s
June 13, 2011 allegations that her low back pain was 8 on a 10-point scale and the pain was
persistent, sharp, dull, burning and throbbing)). However, Dr. Sherman’s previous office notes
contain but one position objective sign of back pain—tenderness to palpation (Tr. 269)—that is
certainly not enough information supportive of the CAP findings. Moreover, no other evidence
in the record supports such CAP findings. (See Tr. 319 (“No tenderness to palpation [of spine]
and fairly normal range of motion.”); Tr. 321 (noting poor effort by plaintiff in range of motion
testing of the spine); Tr. 353 (on October 3, 2011, Dr. Pita noted plaintiff’s musculoskeletal
system was normal); Tr. 365 (x-rays of the lumbar spine revealed minimal spurring and small
intervertebral disc herniation or Schmorl’s node at the superior endplate of L2); Tr. 366-367
(February 2, 2012 exam by Dr. Pita revealed pain with palpation of lower lumbar spine but that
pain was reported or found to be only a 3 on a 10-point scale).) Finally, there is nothing about
plaintiff’s low back ailment—described by all physicians at the Mobile County Health
Department as a “backache”—which could reasonably be expected to cause the pain described
by Dr. Sherman on the June 13, 2011 CAP, in large measure because of plaintiff’s described
activities of daily living (Tr. 77-78 (plaintiff’s testimony that she is capable of driving and does
drive despite the fact her license has been suspended, she attends church and visits her
daughter and grandson, and occupies herself daily with TV, reading, and videogames on the
(Continued)
16
medical evidence support the sitting, walking, standing, and lifting/carrying
limitations reflected on Dr. Sherman’s PCE. Indeed, the detailed neurological
examination conducted by consulting neurologist Dr. Ilyas A. Shaikh on April 22, 2011
was essentially normal. (Tr. 320 (“Ms. Loyd . . . does not demonstrate any dysarthria,
dysphasia or dysphonia. Face is bilaterally symmetrical. Tongue and uvula are midline.
Pupils are bilaterally symmetrical and reactive to light. Extra-ocular movements are
intact. Funduscopic examination shows bilateral sharp disc margins. There is no ptosis.
Hearing is bilaterally intact. . . . Motor strength is bilaterally symmetrical and 5/5 to
abduction, adduction, flexion and extension of upper and lower extremities despite
demonstrating poor effort on the left side. There is no rigidity or spasticity. Fine motor
skills are normal. She is able to make a fist and oppose thumb to fingers. She is able to
turn the door knob and tie her shoelaces. Her grip strength is 5/5 and bilaterally
symmetrical. . . . Sensations are intact to pin prick, light touch, proprioception, and
temperature. Romberg is negative. . . . Cerebellar functions are intact by finger nose
finger, finger tapping and rapid alternate movements. . . . Deep tendon reflexes are 2+
bilaterally at biceps, triceps, brachioradialis, knees and ankles. Her toes are down going
and there is no clonus. . . . She is able to stand on her heels and toes. Her tandem gait is
mildly compromised. She showed poor effort in touching the fingers to the toes. She
limps and favors her left leg. She is not using any hand held assistive device. She has
normal association of hand swings.”).) Moreover, the consulting psychologist, Dr.
Kenneth Starkey, observed in his April 27, 2011 report that though plaintiff complained
computer)) and maintenance of a fairly constant weight (Tr. 61 (plaintiff’s testimony that her
weight stays around 146 pounds)). Accordingly, the Court finds that the ALJ did not err in
rejecting Dr. Sherman’s CAP findings.
17
of left arm and leg weakness, she did not demonstrate those deficits during their
“meeting[.]” (Tr. 324.) Finally, Dr. Pita’s examination findings from October 3, 2011 and
February 2, 2012 reflect no abnormal findings on neurological examination. (Compare Tr.
353 (“Cranial Nerves: [] Normal. Motor: [] A motor exam demonstrated no dysfunction.
Coordination/Cerebellum: [] No coordination/cerebellum abnormalities were noted.”)
with Tr. 367 (same).) Thus, the ALJ did not commit reversible error in rejecting the
sitting, standing, walking, and lifting/carrying limitations found by Dr. Sherman on the
June 13, 2011 PCE, her reasons for rejecting those limitations being supported by
substantial evidence.9
Because plaintiff raises no other issues, the Commissioner’s fourth-step
determination is due to be affirmed. Compare Green, supra, 223 Fed.Appx. at 923 (“[T]he
burden lies with the claimant to prove her disability. . . . In the fourth step of that
analysis, the ALJ determines the claimant’s RFC and her ability to return to her past
relevant work.”) with Land v. Commissioner of Social Security, 494 Fed.Appx. 47, 48 (11th
Cir. Oct. 26, 2012) (“’The burden is primarily on the claimant to prove that he is
disabled, and therefore entitled to receive Social Security disability benefits.’”) and
Conner v. Astrue, 415 Fed.Appx. 992, 995 (11th Cir. Feb. 28, 2011) (“An individual who
files an application for Social Security Disability . . . Benefits must prove that she is
disabled.”).
CONCLUSION
9
Indeed, even if plaintiff still experiences a modicum of residual mild left-sided
weakness (see Tr. 320 (“Despite her neurological examination being fairly normal she continues
to demonstrate left sided weakness.”)), such weakness was fairly contemplated in the
hypothetical question posed to the vocational expert (see Tr. 83-84) and would not prevent the
right-hand dominate plaintiff (see Tr. 61) from performing her past relevant work as a
cleaner/housekeeper (compare Tr. 84 with Tr. 46-50).
18
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be affirmed.
DONE and ORDERED this the 23rd day of June, 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
19
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