Cowart 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 7/24/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DENA J. COWART,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 13-0608-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, 10).
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. 18).
argument was waived in this action (Doc. 17).

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, Plaintiff was
forty-five years old, had completed a two-year college education
(Tr. 37), and had previous work experience in retail
merchandising and had worked as a cashier, shift supervisor, and
stocking supervisor (Tr. 59-60).

In claiming benefits,

Plaintiff alleges disability due to basilar-type migraine
headaches, syncopal episodes, degenerative joint disease of the
knees, status post arthroscopy of the right knee, hypertension,
diabetes mellitus, morbid obesity, asthma, and degenerative disc
disease of the lumbar spine (Doc. 10, Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on August 19, 2010 and March 4, 2011, respectively (Tr.
129-30; see also Tr. 15).

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, Cowart

2

was capable of performing specified sedentary jobs (Tr. 15-28).
Plaintiff requested review of the hearing decision (Tr. 11) by
the Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Cowart alleges

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

her treating physicians and (2) that there is no support for the
ALJ’s determination of Plaintiff’s residual functional capacity
(hereinafter RFC) (Doc. 10).
denies—these claims (Doc. 13).

Defendant has responded to—and
The relevant evidence of record

follows.
On July 14, 2009, Plaintiff was treated at the Mostellar
Medical Center for an upper respiratory tract infection; she was
diagnosed to have asthma, hypertension, and generalized anxiety
(Tr. 267-68; see generally Tr. 255-75).

On September 1, 2009,

Cowart complained of bilateral knee pain after falling to her
knees; range of motion (hereinafter ROM) was limited secondary
to pain (Tr. 264).

X-rays showed degenerative changes in both

knees, though there was no evidence of fracture or subluxation;
Mobic1 and Ultram2 were prescribed for pain (Tr. 264, 274).

1Mobic is a nonsteroidal anti-inflammatory drug used for the

relief of signs and symptoms of osteoarthritis and rheumatoid
arthritis. Physician's Desk Reference 855-57 (62nd ed. 2008).
2Error! 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).

3

Three weeks later, Cowart called and requested an orthopaedic
referral; Darvocet3 and Phenergan4 were prescribed (Tr. 263).
Plaintiff reported, at her October 6, 2009 examination, that she
had seen Orthopaedist Freeman and that her medications were
making her nauseated; noting no changes from the previous
examination, her doctor prescribed Tylox5 (Tr. 262).
On September 29, 2009, Dr. Milton Wallace, Jr., Orthopaedic
Surgeon, examined Plaintiff for bilateral knee pain; he noted a
small effusion and medial joint line tenderness (Tr. 313; see
generally Tr. 306-15).

X-rays showed medial joint compartment

osteoarthritis and some patellofemoral arthritis; injections
were given in both knees.

A month later, Cowart complained that

the injections lasted only two-to-three weeks and that she was
willing to undergo arthroscopy of the left knee (Tr. 313).

On

November 13, 2009, Dr. Wallace noted decreasing pain over time
as well as significant chondromalacia (Tr. 313-14).

On November

20, the notes indicate that Cowart had had arthroscopy on the
left knee ten days earlier;6 on exam, MCL tenderness was noted
for which Tylox was given (Tr. 314).

On December 11, the

3Propoxyphene 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).
4Phenergan is used as a light sedative.

Physician's Desk
Reference 3100-01 (52nd ed. 1998).
5Tylox, a class II narcotic, is used “for the relief of moderate

to moderately severe pain”. Physician's Desk Reference 2217 (54th ed.
2000).
6

The Court found no other evidence of this surgery.

4

Orthopaedist noted little swelling, no redness, and no fluctuant
(Tr. 314).
On December 28, 2009, Cowart returned to Providence
Rehabilitative Services for treatment of pain caused by
prolonged walking, rendering squatting and prolonged sitting and
standing difficult, all initiated by a fall two months earlier
(Tr. 200-02, 221-23).
pain-free.

Cowart indicated that she was presently

On January 5, 2010, Plaintiff walked with an

abnormal gait, though she used no assistive device; a treatment
plan was prepared (Tr. 200-02).
her treatment (Tr. 203).

A week later, Cowart cancelled

Over the next month, Plaintiff

attended six sessions that taught her to improve her ROM and
strength, so that she could perform work-related activities (Tr.
204; see generally Tr. 204-20); Cowart indicated that there were
times she did not perform the exercises at home because of left
knee pain (Tr. 206, 212, 214).
assistance (Tr. 209).
214).

A J-Brace was ordered for her

Plaintiff also received an injection (Tr.

Treatment sessions were discontinued because Cowart quit

going (Tr. 220).
On February 1, 2010, Wallace noted that Plaintiff was very
tender over the left knee for which he gave her an injection
(Tr. 314).

On the nineteenth, Cowart complained of severe pain

for which the Doctor had no explanation (Tr. 314).

On March 19,

Wallace gave Plaintiff an injection in the left knee and

5

provided her a three-month disability parking pass (Tr. 314).
On April 26, the Orthopod noted that x-rays demonstrated
“complete obliteration of the medial joint space” in the right
knee that would ultimately require total knee arthroplasty;
Plaintiff received a Xylocaine shot (Tr. 312).
Mostellar Medical Center records demonstrate that although
she had received injections four days earlier, Plaintiff, on May
3, 2010, reported continuing right knee pain and the
ineffectiveness of her Ativan prescription; the doctor found her
to be in no acute distress (Tr. 259).

Chest x-rays were normal;

the lungs were clear (Tr. 273).
On May 19, Orthopod Ben Freeman, partner to Dr. Wallace,
noted tenderness and gave Plaintiff an injection (Tr. 309).

On

July 20, Wallace performed the arthroscopy of the right knee
(Tr. 311).

On August 16, 2010, Cowart still had some

discomfort, but was doing better; Wallace prescribed Relafen7
(Tr. 308).

On the twenty-fifth, Plaintiff complained of

swelling, but Dr. Freeman saw none, noting good ROM (Tr. 307).
On October 5, Cowart complained of bilateral knee pain,
following a fall; Orthopod Wallace noted some tenderness and
gave her an injection (Tr. 306).
On December 17, Dr. James Devaney saw Plaintiff for a sinus

7Relafen “is indicated for acute and chronic treatment of signs

and symptoms of osteoarthritis and rheumatoid arthritis.”
Desk Reference 2859 (52nd ed. 1998).

6

Physician's

infection, a urinary tract infection, and bad nerves; she was
tested for and diagnosed to have Diabetes Mellitus and was
treated for that and hypertension (Tr. 407-08).

On January 26,

2011, Cowart had a vasogaval syncopal8 episode (Tr. 401-02).
On February 15, 2011, Cowart went to Infirmary West
Hospital with complaints of chest pain; x-rays were normal (Tr.
367; see generally Tr. 351-69).

Ultram was prescribed for

costochondritis9 (Tr. 356).
On March 29, 2011, following another fall, Plaintiff
complained of tenderness in her left hand; Dr. Freeman gave her
an injection, limited her to light work, and prescribed Ultram
(Tr. 315).
On April 11, Dr. Devaney saw Plaintiff for blood pressure
and sugar problems as well as several fainting spells; the
Doctor gave her a right knee injection because of tenderness
(Tr. 399-400).

Two weeks later, Dr. Devaney noted a vasovagal

syncope episode initiated by bilateral knee pain (Tr. 397-98).
The Doctor completed a pain form, stating that Cowart’s pain was
distracting her from adequately performing daily activities;
medication side effects would limit her effectiveness in those

8“Vasovagal syncope occurs when your body overreacts to certain

triggers, such as the sight of blood or extreme emotional distress.”
See http://www.mayoclinic.org/diseases-conditions/vasovagalsyncope/basics/definition/con-20026900

9

“Costochondritis is an inflammation of the cartilage that
connects a rib to the breastbone[; resulting pain] may mimic that of a
heart attack.” See http://www.mayoclinic.org/diseasesconditions/costochondritis/basics/definition/con-20024454

7

activities (Tr. 411).

Two days later, Devaney stated that

Plaintiff could not serve jury duty because of “unexplained
syncopes” (Tr. 410).
On May 5, 2011, Cowart went to Infirmary West after a
syncopal episode and was held for twenty-four hour observation;
an EEG, CT of the brain, and EKG were normal (Tr. 339-44; see
generally Tr. 316-50).

The diagnosis was hypoglycemia; it was

recommended that Cowart’s diabetic regimen be reassessed (Tr.
324).

Dr. Devaney examined her on May 13 (Tr. 395).

On May 18, 2011, Dr. Wallace completed a pain form
indicating that Cowart’s pain frequently distracted her from
adequately performing everyday activities; he thought, though,
that the side effects from her medications would not create
serious problems (Tr. 434).
On June 1, records from Cardiology Associates and
Providence Hospital demonstrate that, following a syncopal
episode, Cowart had normal systolic function, normal pulmonary
artery pressure, and a normal EKG (Tr. 412-14, 435-52).

A CT of

the head showed no abnormalities.
On June 9, Orthopod Wallace examined Plaintiff for
complaints of bilateral knee pain (Tr. 474).

He noted some

effusion in the left knee, but no redness or warmth; the Doctor

8

prescribed Celebrex.10
On June 10, Dr. Devaney examined Cowart for her recent
syncopal episodes (Tr. 461-62; see generally Tr. 453-73).

Two

weeks later, Plaintiff complained of a headache for the previous
week (Tr. 459-60).

On July 13, Cowart again complained of a

headache; the Doctor told her not to drive (Tr. 457-58).

X-rays

of the sinuses the next day demonstrated no abnormality (Tr.
466).

On August 11, 2011, Devaney examined Cowart for a

fainting spell, a headache, and blood pressure issues; he
prescribed Tylenol with codeine11 (Tr. 453-54).
On August 26, 2011, Plaintiff was seen at Cardiology
Associates, following a thirty-day monitoring for a cardiac
event; there was no arrhythmia, though there was some sinus
rhythm/sinus tachycardia (Tr. 415-27).

Two days later,

Providence Hospital records demonstrate that Cowart complained
of chest pain and a near-syncopal episode following a poorlyperformed, but negative, stress test; she was hypertensive (Tr.
240, 253; see generally Tr. 224-54).

An EKG revealed no

ischemia; computer tomography showed no pulmonary embolism, but
confirmed chronic sinusitis.

Catheterization of the left side

10Celebrex is used to relieve the signs and symptoms of

osteoarthritis, rheumatoid arthritis in adults, and for the management
of acute pain in adults. Physician's Desk Reference 2585-89 (58th ed.
2004).
11Tylenol with codeine is used “for the relief of mild to

moderately severe pain.” Physician's Desk Reference 2061-62 (52nd ed.
1998).

9

of her heart was normal though there was 20% right coronary
artery stenosis.

Plaintiff’s chest pain was thought to be

bronchitis; she was told to lose weight and was discharged the
next day in stable condition.

A skull series on August 31 was

normal (Tr. 465).
On September 7, 2011, Dr. Devaney examined Cowart for
various complaints, including a right foot sprain, a fever, and
high blood pressure (Tr. 455-56).

On November 8, Plaintiff

complained of tachycardia and fainting; Xanax12 was prescribed
for anxiety and depression (Tr. 518-19).

Three days later, Dr.

Devaney wrote a “To Whom it May Concern” letter stating that
Coward should not be driving because of “episodes of syncope and
black out spells” (Tr. 475).
Plaintiff was admitted to Infirmary West Hospital on
December 12 for four nights for repeated syncopal episodes and a
cluster migraine headache (Tr. 477-513).

A CT showed no acute

brain abnormality (Tr. 495); Ultram, codeine, and Fiorinal13 were
prescribed (Tr. 483, 495).
On December 16, Dr. Devaney examined Cowart for a headache
(Tr. 516-17).

On that same date, he completed a clinical

assessment of pain indicating that Plaintiff had pain, but that

12Xanax is a class four narcotic used for the management of

anxiety disorders. Physician's Desk Reference 2294 (52nd ed. 1998).
13Fiorinal is used for relieving tension (or muscle contraction)

headaches. Physician's Desk Reference 1855-57 (52nd ed. 1998).

10

it would not frequently prevent functioning in daily activities
(Tr. 476).

The Doctor indicated that the side effects from her

medications would limit her effectiveness.

Devaney further

stated that because of her uncontrolled syncope, Cowart was
unable to drive or work (Tr. 476).

In examination notes of

January 13, 2012, Plaintiff complained of a non-stop headache
that was causing memory loss; the Doctor noted that the syncope
had improved (Tr. 514-15).

On February 14, Devaney saw

Plaintiff for a three-day headache, two fainting spells, and
blood sugar and pressure problems (Tr. 539, 541).
On March 8, 2012, Plaintiff was admitted to Mobile
Infirmary Medical Center for six nights, following a syncopal
episode at her social security hearing, secondary to a basilartype migraine headache (Tr. 529; see generally Tr. 520-34).14
lumbar puncture was uncomplicated.

A

An MRI of the lumbar showed

degenerative joint changes with disk bulge as well as mild
lumbar facet arthropathy and ectasia of the abdominal aorta; a
brain MRI showed an eight millimeter pituitary microadenoma.
EKG was unremarkable.

An

Plaintiff was discharged home in stable

condition with prescriptions for Topomax,15 Klonopin,16

14

The Court notes that the ALJ discussed this event and noted the
diagnosis in her opinion (Tr. 25), rendering Cowart’s assertion
otherwise wrong (Doc. 10, p. 11).
15Topomax is used in the treatment of migraine headaches.

Error!
Main Document Only.Physician's Desk Reference 2378-79 (62nd ed. 2008).

11

Percocet,17 and Paxil.18

On March 28, Dr. Devaney examined Cowart

for a severe headache and eye problems (Tr. 538, 540).
On May 4, 2012, Cowart went to Mobile Infirmary for a
headache, diminished vision, nausea, and light sensitivity; she
was discharged with prescriptions for Ativan19 and Zofran (Tr.
547-54).

On May 9, Dr. Delaney saw Plaintiff as a follow-up to

her hospitalization and indicated that her chest pain and
headaches were related (Tr. 536-37).

This concludes the

relevant evidence of record.
In bringing this action, Plaintiff asserts that the ALJ did
not properly consider the conclusions of her treating
physicians.

Cowart specifically references Drs. Devaney and

Wallace (Doc. 10, pp. 11-16).

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,

16Klonopin is a class four narcotic used for the treatment of

panic disorder. Error! Main Document Only.Physician's Desk Reference
2732-33 (62nd ed. 2008).

17

Percocet is used for the relief of moderate to moderately
severe pain. Error! Main Document Only.Physician's Desk Reference
1125-28 (62nd ed. 2008).
18Error!
 Main
 Document
 Only.Paxil is used to treat depression.

Physician's Desk Reference 2851-56 (52nd ed. 1998).
19Error!
 Main
 Document
 Only.“Ativan (lorazepam) is indicated for the

management of anxiety disorders or for the short-term relief of the
symptoms of anxiety or anxiety associated with depressive symptoms.”
Its use is not recommended “in patients with a primary depressive
disorder or psychosis.” Physician's Desk Reference 2516-17 (48th ed.
1994).

12

660 F.2d 1078, 1084 (5th Cir. 1981);20 see also 20 C.F.R. §
404.1527 (2013).

The Court notes that Cowart, in bringing this claim,
asserts that “the ALJ’s ‘explanation’ for her RFC assessment
consists of rejecting portions, or all, of the opinions of Ms.
Cowart’s treating physicians, Dr. Devaney and Dr. Wallace” (Doc.
10, p. 16).

The Court finds no basis for this assertion with

regards to the opinions and conclusions put forth by Orthopod
Wallace.

The ALJ faithfully summarized Wallace’s medical

records and noted that his medical regimen was apparently
successful because no further treatment was given beyond June
2011, a year prior to when the ALJ’s decision was rendered (Tr.
23).

The Court would further note that the medical evidence

reveals no more complaints of knee pain, the condition for which
Plaintiff was being treated by Wallace, by Plaintiff to any
doctor beyond Wallace’s final examination.
As for Dr. Devaney, the ALJ does reject some of his
conclusions, but not all of them (Tr. 26).

Specifically, the

ALJ noted the Doctor’s driving restriction, gave it great
weight, and adopted it as part of the RFC (Tr. 26).

The ALJ,

however, rejected Devaney’s conclusion that Cowart was disabled

20The 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.

13

and unable to work, finding that the medical and testimonial
evidence did not support that opinion (Tr. 26).

The ALJ also

noted that the RFC determination is, ultimately, the ALJ’s
decision (Tr. 26).
The Court notes that Devaney is the only medical source of
record asserting Cowart’s disability.

Dr. Wallace, Plaintiff’s

Orthopaedic Surgeon, indicated that her pain would distract her
from adequately performing daily activities (Tr. 434), but this
was a year before the ALJ’s decision and just before she quit
seeking Wallace’s treatment for what now appears to be a
resolved knee problem.

Devaney points to no objective medical

evidence to support his conclusion that Plaintiff is unable to
work; the Court further notes that the Doctor indicated in his
treatment notes, just a month after declaring her disabled, that
her syncope was improved (Tr. 514-15).

The Court further notes

that the ALJ discredited Cowart’s testimony about her abilities
and limitations (Tr. 20, 23, 26), a finding not challenged in
this action.
While Plaintiff has multiple medical problems and has
suffered syncopal episodes, including one before the ALJ, the
evidence does not demonstrate a total inability to work.
Cowart’s arguments otherwise does not change that finding;
Devaney’s declaration of disability does not mean that she is
disabled.

This claim is without merit.

14

Plaintiff has also asserted there is no support for the
ALJ’s determination of Plaintiff’s RFC (Doc. 10).

The Court

notes that the ALJ is responsible for determining a claimant’s
RFC.

20 C.F.R. § 404.1546 (2013).

The ALJ’s RFC assessment is

as follows:
[T]he undersigned finds that the claimant has the
residual functional capacity to perform light
work as defined in 20 C.F.R. 404.1567(b) and
416.967(b) except the claimant can lift and carry
20 pounds occasionally, and up to 10 pounds
frequently; can stand or walk for two hours in an
eight hour workday but only for 15 minutes at a
time; can sit for six hours in an eight hour
workday; no more than frequent use of the left
upper extremity for handling, fingering, feeling,
pushing, and pulling; no requirement for
operation of foot pedal controls or pushing and
pulling with the bilateral lower extremities;
occasionally can climb rams [sic] or stairs;
should never crawl; requires the use of a cane in
the dominant right upper extremity; should avoid
temperature extremes, humidity and wetness,
vibration, fumes, odors, dust, gases, and poor
ventilation, and hazards; and the claimant should
not commercially drive or be exposed to open
water.
(Tr. 22).
Cowart, in bringing this claim, asserts that the ALJ found
her capable of performing light work while also concluding that
she could perform sedentary work (Doc. 10, p. 5; cf. Tr. 22,
26).

While the Court acknowledges the inconsistency, the Court

finds this to be a scrivener’s error and, ultimately, harmless.
Cowart also insinuates that the ALJ’s decision is to be

15

reversed because of her reliance on a single decision maker
(Doc. 10, pp. 16-17; see Tr. 294-301).

Plaintiff correctly

notes that a single decision maker is not an acceptable medical
source under the regulations.
416.913.

See 20 C.F.R. §§ 404.1513,

Nevertheless, the ALJ never even cites the evidence to

which Cowart points, so it is difficult to see how the Court can
find error as there is no evidence that the ALJ relied on it.
Plaintiff has also argued that although her syncopal
episodes were a severe impairment, they were not included in the
RFC or the hypothetical to the Vocational Expert (hereinafter
VE) (Doc. 10, pp. 12-13).

The Court notes that the RFC and the

ALJ’s first hypothetical question to the VE are near-mirror
images (Tr. 22; cf. Tr. 60-61).

The Court further notes that

the ALJ correctly noted that the objective medical evidence
provided no explanation for the syncopal episodes (Tr. 25).
Furthermore, as noted by the ALJ, this impairment was taken into
consideration with the ALJ’s limiting Cowart from work
environments with hazards and prohibiting her from driving (Tr.
25).

The Court finds no merit in this argument.
Finally, Plaintiff makes the bald assertion that the ALJ

did not meet her burden of showing that she could perform work
in the national economy (Doc. 10, p. 22).

The Court notes that

the last page of the ALJ’s decision reveals that the ALJ took
testimony from a VE who indicated that Cowart was capable of

16

performing the jobs of (1) packaging and/or sorting; (2)
weighing, measuring, or checking; and (3) clerical work (Tr. 27;
cf. Tr. 60-62).

Plaintiff’s claim lacks serious consideration,

much less merit.
Cowart has raised two claims in bringing this action; both
are utterly 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 24th day of July, 2014.

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

17