Huff v. Colvin

Filing 20

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. Signed by Magistrate Judge Bert W. Milling, Jr on 8/26/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BOOKER T. HUFF,

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

CIVIL ACTION 14-0041-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 12).

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).

Oral argument was heard on August 25, 2014.

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
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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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-three years old, had completed a high school education
(Tr. 52), and had previous work experience as an industrial
cleaner and a bricklayer helper (Tr. 88).

In claiming benefits,

Plaintiff alleges disability due to arthropathy, gout, low back
pain, pes planus, arthritis of the right hip and left foot, and
obesity (Doc. 12 Fact Sheet).
The Plaintiff filed a protective application for SSI on
January 20, 2011 (Tr. 29, 176-81).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although he was not able to return to his former
jobs, Huff was capable of performing specified sedentary work
(Tr. 25-37).

Plaintiff requested review of the hearing decision

(Tr. 20-21) by the Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

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Specifically, Huff alleges

that:

(1) The ALJ did not properly consider the opinions of his

treating physician; and (2) the residual functional capacity
(hereinafter RFC) is not supported by the evidence (Doc. 12).
Defendant has responded to—and denies—these claims (Doc. 13).
The relevant evidence of record follows.
On April 14, 2011, Dr. Jonathan Campbell examined Huff for
complaints of left ankle and right hip pain; though he
occasionally had lower back pain, there was none on that day
(Tr. 257-61).

Plaintiff stated that there was no radiation of

the hip pain; the Doctor noted that he had negative straight leg
raising, had a steady gait, and walked without assistance.
Campbell found severe pes planus on the left, less so on the
right; range of motion (hereinafter ROM) of the left ankle was
severely impaired, though there were no motor or sensory
deficits.

Campbell specifically noted some mild ROM limitations

in the dorsolumbar spine with more moderate limitations in the
right hip and left ankle.

The Doctor opined that Huff’s

ability to perform “sitting, standing, walking, lifting,
carrying and handling objects, hearing, speaking and traveling
[were inadequate] for normal [work] duty” (Tr. 259).
On June 6, 2011, Plaintiff went to the Mobile County Health
Department (hereinafter MCHD) for complaints of back, hip, and
leg pain; Huff rated his pain as five on a ten-point scale (Tr.
262-76).

Dr. Mark Pita noted pain with palpation over the

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lumbar spine; a motor exam demonstrated no dysfunction.
ray of the lumbar spine was negative.

An x-

The assessment was

arthropathy and backache; Mobic,1 Ultram,2 and Flexeril3 were
prescribed.

On July 19, 2011, in a follow-up examination, Huff

said that his Mobic and Flexeril had reduced his pain to fourof-ten; it was only a three at that time (Tr. 291; see generally
Tr. 291-94).

Plaintiff had not been taking the Ultram; Dr. Pita

noted no dysfunction or abnormalities.

On September 1, Huff

complained of problems with his left ankle and right hip pain;
he had not gotten the prescription for Ultram filled (Tr. 28691).

Plaintiff again rated his pain at three; again, Dr. Pita

noted no dysfunction or abnormalities.

On October 27, Huff

voiced complaints of left ankle and right knee pain at three-often; Pita diagnosed him to have arthropathy and prescribed
Naproxen4 (Tr. 284-86).

On January 27, 2012, Plaintiff asserted

that his left ankle pain had not improved; he rated it at a

1

Error! Main Document Only.Mobic is a nonsteroidal antiinflammatory drug used for the relief of signs and symptoms of
osteoarthritis and rheumatoid arthritis. Physician's Desk Reference
855-57 (62nd ed. 2008).
2
Error! Main Document Only.Ultram is an analgesic “indicated for
the management of moderate to moderately severe pain.” Physician's
Desk Reference 2218 (54th ed. 2000).
3
Error! Main Document Only.Flexeril is used along with “rest and
physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).
4Error!
 Main
 Document
 Only.Naproxyn “is a nonsteroidal anti

inflammatory drug with analgesic and antipyretic properties” used,
inter alia, for the relief of mild to moderate pain. Physician's Desk
Reference 2458 (52nd ed. 1998).

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level three (Tr. 279-84).

An x-ray of the left ankle showed no

fracture or bony abnormality; there was no joint effusion or
significant soft tissue swelling (Tr. 297).

On February 14,

2012, Huff complained of left ankle and lower back pain, rated
as three-of-ten; his back was not hurting on that day (Tr. 27729).

Pita diagnosed arthropathy and gout.
On March 1, Dr. Pita completed a physical capacities

evaluation (hereinafter PCE) in which he indicated that
Plaintiff was capable of sitting and standing or walking, each,
for one hour at a time and up to three hours, each, during an
eight-hour day (Tr. 298).

The Doctor found Huff capable of

lifting fifty pounds one hour a day, twenty pounds four hours a
day, and five pounds for six hours; he could carry twenty-five
pounds for two hours, twenty pounds for three hours, ten pounds
for four hours, and five pounds for five hours during a workday.
Plaintiff could use his hands for simple grasping, pushing and
pulling of arm controls, and fine manipulation; though he could
use his right leg/foot for repetitive actions, he could not use
his left.

Huff could crawl for one hour, bend and squat for two

hours, climb for three hours, and reach for four hours during a
workday; he was moderately restricted in working at unprotected
heights and being around moving machinery, and mildly limited in
driving automotive equipment.

Pita indicated on the form that

Plaintiff had lumbago and sciatica that affected his left leg

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and foot.
On May 3, 2012, Plaintiff was seen at the MCHD for
complaints of right hip and left ankle pain; examination notes
were not provided (Tr. 299).
On May 24, 2012, Dr. Pita completed a pain form indicating
that the pain Huff suffered from gout and carpal tunnel syndrome
would keep him from adequately performing daily activities or
work; physical activity would greatly increase his pain,
distracting him from whatever he was doing (Tr. 300-01).

Side

effects from his medications would be severe and would limit his
effectiveness in performing activities.

Pita said that Huff

should avoid repetitive wrist and hand motions; Plaintiff was
not capable of “gainful employment on a repetitive, competitive
and productive basis over an eight hour work day, forty hours a
week, without missing more than 2 days of work per month or
experiencing frequent interruptions to his work routine” (TR.
301).
On June 12, Orthopod William A. Crotwell, III examined Huff
who complained of left foot and ankle pain when walking, rating
it as nine on a ten-point scale; he was walking with a cane (Tr.
303-06).

The Doctor noted slow movement because of the left

foot and limited motion in the right hip; Plaintiff had a severe
pronated flat, foot, also described as splayed.
x-rays demonstrated severe mid-foot arthritis.

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Additionally,
Right hip

arthritis was severe.

Crotwell noted that because of “the

severe arthritis and limited motion of his right hip and left
foot,” Huff was limited to sedentary work in which he could
alternate sitting and standing, for only six hours a day with a
break of one and one-half hours; he could do no medium or
excessive walking (Tr. 305).

The Orthopod also completed a PCE

in which he indicated that Plaintiff could sit, stand, and walk
for one hour, each, at a time and sit six, stand two, and walk
one hour during an eight-hour day (Tr. 306).

Huff could lift

ten pounds occasionally and could carry five pounds
occasionally; he would have no trouble using his hands, but his
left leg could not be used for foot controls.

Plaintiff could

never bend, squat, crawl, climb, or reach; he was moderately
restricted in driving automotive equipment and totally
restricted from activities involving unprotected heights, or
being around moving machinery.

This concludes the medical

evidence of record.

Huff's first claim is that the ALJ did not accord proper

legal weight to the opinions, diagnoses and medical evidence of
his physician.

Specifically, Plaintiff points to the

conclusions of Dr. Mark Pita (Doc. 12, p. 3, 7-9).

The Court

notes 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

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any physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);5 see
also 20 C.F.R. § 404.1527 (2013).
In her decision, the ALJ summarized the evidence of record
and related what weight she gave it (Tr. 25-37).

Specifically,

the ALJ found that although Huff had severe impairments, she
found that his testimony about the extent of his abilities and
limitations was not credible (Tr. 27-28, 30, 31, 34-35); that
finding has gone unchallenged.

The ALJ also gave little weight

to Dr. Pita’s evaluation of Plaintiff’s abilities, specifically
finding as follows:
Dr. Pita’s assessments are inconsistent with
each other, with Dr. Pita’s own office
notes, and inconsistent with objective
medical evidence provided by credible
medical sources. The restricted use of the
upper extremities assessed in the pain
report is inconsistent with the lack of
restrictions in manipulative function in the
upper extremities in the physical capacity
evaluation. The impairments cited by Dr.
Pita including sciatica and carpal tunnel
are also notably absent from corresponding
treatment records, despite citing them as
underlying cause of the pain and functional
deficits alleged. Neither of these
underlying conditions was diagnosed by Dr.
Pita in corresponding treatment notes, and
radiological imaging does not support
evidence of sciatica. There are also no

5The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent
decisions of the former Fifth Circuit rendered prior to October 1,
1981.

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clinical findings reported in treatment
records supporting carpal tunnel syndrome.
The severity of pain assessed by Dr. Pita
also remains inconsistent with the
claimant’s own reports of the severity of
his pain in treatment records. The
assessment is further inconsistent with the
lack of clinical findings of dysfunction in
coordination and motor function, despite the
assessed severity of function limitations.
Dr. Pita’s assessments remain inconsistent
with his own assessments, objective findings
from credible medical sources such as Dr.
Crotwell and Dr. Campbell, and inconsistent
with the findings and evidence provided in
Dr. Pita’s own office notes. Therefore,
these assessments were afforded little
weight based on the lack of consistency with
the full record.
(Tr. 34).

The ALJ’s conclusions are directly on point:

Dr.

Pita’s diagnoses of sciatica and carpal tunnel syndrome appear
only in his PCE and pain form, finding no mention in his
treatment notes; his treatment notes do not support the
limitations stated in the PCE and pain forms; and his
conclusions are not supported by the other evidence of record.
Huff has argued that Dr. Pita’s PCE is more alike than
different from the PCE’s prepared by the State examiners (Doc.
12, pp. 3-5, 8).

The Court notes that Dr. Campbell only

examined Plaintiff once and never completed a PCE (see Tr. 25661); the ALJ stated that Campbell’s conclusions were persuasive,
but, at least in part, unsupported by the evidence (Tr. 31).
Though Dr. Crotwell only examined Huff once, he did complete a

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PCE that allowed for a full day’s work, a significant difference
from the PCE completed by Pita (see Tr. 306; cf. Tr. 298); the
ALJ assigned Dr. Crotwell’s conclusions significant weight (Tr.
33).

Though Dr. Pita’s conclusions might have been similar in

some respects to the other doctors’ conclusions, they are not
mirror images.
Though not addressed by the ALJ, the Court notes that Dr.
Pita regularly misdiagnosed Huff’s obesity when compared with
the Body Mass Index (hereinafter BMI).

For example, on June 6,

2011, Pita noted that Plaintiff was not morbidly obese at
seventy-two6 inches and 293 pounds (Tr. 263); Huff’s BMI with
these variables is 39 and only barely escapes the morbidly obese
classification.

See http://wuphysicians.wustl.edu/graphics

/assets/images/FileUpload/5069image.jpg; see also
http://www.upstate.edu/community/services/bariatric/
am_i_morbidly_obese.php).

On July 19, Dr. Pita’s notes show

that Huff did not appear to be obese, although he weighed two
more pounds than the previous reading (Tr. 292); the chart
signifies severe obesity.

Over the next six months, Dr. Pita

continued to find that Plaintiff was not obese, when in fact he
was severely obese (see Tr. 277, 280, 287).

It is difficult to

6Pita’s notes on this date actually find that Huff is only

seventy inches tall, but since every other measure listed him to be
seventy-two inches (six feet) tall, the Court will make all
measurements from that height.

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place much confidence in a doctor whose opinions on such a basic
measurable medical quantity are clearly wrong.
The Court finds substantial evidence to support the ALJ’s
rejection of Dr. Pita’s opinions.

Huff’s arguments otherwise

are without merit.
Huff next claims that the RFC is not supported by the
evidence, arguing additionally that he cannot perform sedentary
work7 (Doc. 12, pp. 2-7).

The Court notes that the ALJ is

responsible for determining a claimant’s RFC.

20 C.F.R. §

404.1546 (2013).
In her decision, the ALJ specifically found
“that the claimant has the residual
functional capacity to perform sedentary
work as defined in 20 C.F.R. 416.967(a)
except the claimant can lift and carry 20
pounds occasionally and 10 pounds
frequently. The claimant can stand/walk for
up to 2 hours for 15 minutes at a time, and
sit without restriction during an 8-work
workday. The claimant can occasionally
climb ramps or stairs, and never climb
ladders, ropes or scaffolds. The claimant
can occasionally kneel or crawl. The
claimant can never be exposed to unprotected
heights or dangerous moving machinery.
(Tr. 29).

7Error!
 Main
 Document
 Only.“Sedentary work involves lifting no more

than 10 pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools. Although a sedentary job
is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. § 404.1567(a) (2013).

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The Court notes that the ALJ’s RFC determination most
closely resembles the PCE completed by Dr. Crotwell (see Tr.
306).

Though the ALJ granted Crotwell’s conclusions significant

weight, she did not accept everything the Orthopod suggested
(Tr. 33).

The ALJ explained what she did not accept and why;

the Court finds that explanation persuasive and supported by
substantial evidence.

This claim is of no merit.

Plaintiff has raised two claims in bringing this action.
Neither of those claims has 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 26th day of August, 2014.

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

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