Madden v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as more fully set out in order. Signed by Magistrate Judge Bert W. Milling, Jr on 1/28/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONALD V. MADDEN,

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

CIVIL ACTION 14-0289-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, 13).

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 waived in this action (Doc. 19).

Upon

consideration of the administrative record and the memoranda of
the parties, 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
Cir. 1983), which must be supported by substantial evidence.

1

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
fifty years old, had completed a seventh-grade education (Tr.
95), and had previous work experience as a contractor,
electrical helper, material handler, and security guard (Tr.
121).

In claiming benefits, Madden alleges disability due to

Diabetes Mellitus, peripheral neuropathy, diabetic dynamic
visual changes, and chronic obstructive pulmonary disease
(hereinafter COPD) (Doc. 13 Fact Sheet).
The Plaintiff filed a protective application for SSI on
February 14, 2011 (Tr. 217-26; see also Tr. 77, 140).

Benefits

were denied following a hearing by an Administrative Law Judge
(hereinafter ALJ) who determined that although he could not
return to his former work, there were light jobs that Madden
could perform (Tr. 77-86).

Plaintiff requested review of the

hearing decision (Tr. 71-72) by the Appeals Council, but it was
denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence.
that:

Specifically, Madden alleges

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

treating physician; (2) the ALJ failed to recognize certain
findings made by a physician whose opinion was given significant
weight; (3) the ALJ improperly discredited his testimony; and
(4) the residual functional capacity (hereinafter RFC) is
without evidentiary support (Doc. 13).
to—and denies—these claims (Doc. 14).

Defendant has responded
The relevant evidence of

record follows.1
On May 12, 2010, Robert E. Edge, O.D., examined Madden’s
eyes and found that the best correction in both was 20/50 for
distance and 20/40 for close work; the Doctor could not explain
why vision was not closer to 20/20 (Tr. 424-26).

Plaintiff had

useful binocular vision in all directions for distance; Edge
found that, in spite of Madden’s diabetes, there was no
retinopathy.

The Doctor stated the ocular exam was normal.

On April 9, 2011, Dr. Thomasina Anderson-Sharpe,2 a family
practitioner with the Mobile County Health Department

1

The Court notes that although Madden claims that his disability
began on March 1, 2006 (Tr. 217; see also Tr. 77), in his brief before
this Court, Plaintiff cites no evidence prior to May 12, 2010 (Doc.
13, p. 3). The Court will begin with that evidence.
The Court further notes that Madden submitted evidence to the
Social Security Administration following the ALJ’s decision (Tr. 770). The Appeals Council found this evidence to concern a later time
than the period considered by the ALJ and did not review it (Tr. 2).
Plaintiff has not challenged that decision (see Doc. 13), so the Court
will not consider that evidence.
2Later records refer to the Doctor as Sharpe, not Anderson-Sharpe

(Tr. 476), so the Court will refer to her now only as Dr. Sharpe.

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(hereinafter MCHD), examined Madden for diabetes and pain in his
joints and muscles, especially in his legs; he stated that he
managed his daily activities and could do any house or yard
work, though it tired him (Tr. 434-37).

Madden smoked a pack a

day; Dr. Sharpe noted breath sounds throughout.

Plaintiff had

normal gait, heel gait, and tandem gait, but no toe gait;
straight leg raise was negative.

Madden had full motor and grip

strength bilaterally, muscle bulk, and tone; he had decreased
sensation in both feet.

The Doctor made the follow diagnosis:

(1) uncontrolled type 2 diabetes with peripheral neuropathy,
insulin dependent; (2) leg and foot pain secondary to #1; (3)
visual changes secondary to #1; (4) COPD; (5) Hypertension; and
(6) Hyperlipidemia.
On June 9, 2011, Madden went to MCHD to get prescriptions
refilled; he was experiencing no pain (Tr. 438-40).

Plaintiff

was oriented and in no acute distress; sensory and motor exams
were normal.

Madden was encouraged to stop smoking.

On August 18, 2011

Dr. Sharpe completed a Physical

Capacities Evaluation indicating that Plaintiff was capable of
sitting for two and standing/walking for less than one hour at a
time but capable of sitting for six and standing/ walking for
two hours during the course of an eight-hour workday (Tr. 453).
Dr. Sharpe found that Madden could lift twenty pounds frequently
and twenty-five pounds occasionally and was able to carry up to

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ten pounds frequently and twenty-five pounds occasionally.
Plaintiff could use his hands for simple grasping, fine
manipulation, and pushing and pulling of arm controls; he could
not use his feet for repetitive movements.

Dr. Sharpe indicated

that Madden could occasionally bend, squat, crawl, and climb and
could frequently reach; he was moderately restricted in working
at unprotected heights, being around moving machinery, driving
automotive equipment, and being exposed to dust, fumes, and
gases and totally restricted in being exposed to marked changes
in temperature and humidity.

On August 19, 2011, Dr. Sharpe

completed a form finding that Madden’s pain would frequently
distract him from adequately performing work activities and that
medications taken for the pain would cause side effects,
limiting his effectiveness (Tr. 454).
On August 19, Dr. Sharpe examined Plaintiff who was still
smoking daily; he reported not feeling tired or poorly and
suffered pain at one on a ten-point scale (Tr. 462-64).

The

Doctor noted that Madden was in no acute distress and that
respiration rhythm and depth were normal without wheezing,
rales, or crackles.

Without being specific, abnormalities were

noted in the leg, feet, and toes; there was decreased sensation
in both feet.

Sharpe encouraged Plaintiff to quit smoking and

adjusted some of his medications.

On October 18, 2011, the

Doctor examined Madden who was seeking prescription refills; she

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noted that he was noncompliant with her medical regimen and was
out of his insulin (Tr. 459-60).

Plaintiff reported not feeling

tired or poorly; he rated his pain as one.
normal.

Respiration was

In her assessment, the Doctor noted that his diabetes

was poorly controlled, stating that his therapy noncompliance
was due to cost; Celebrex was prescribed.3

On January 12, 2012,

Madden reported impotence and pain at level one; prescriptions
were written (Tr. 457-58).

On February 15, Sharpe noted that he

continued to take impotence medications she had discharged; he
reported having no pain (Tr. 455-56).
On February 15, 2012, Dr. Navjeet Singh, a non-examining
physician, completed a physical RFC questionnaire indicating
that Madden was capable of lifting and carrying twenty pounds
occasionally and ten pounds frequently; he could stand or walk
for two hours and sit for six hours during an eight-hour day
(Tr. 300-05).

Plaintiff was unlimited in his ability to use

foot and hand controls; he could occasionally climb, balance,
stoop, kneel, crouch, and crawl.

Singh indicated that he should

avoid concentrated exposure to working around machinery or
heights.
On April 19, 2012, Dr. Sharpe examined Madden for a

3Error!
 Main
 Document
 Only.Celebrex 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).

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medication consult; he reported that he was still smoking but
was in no pain (Tr. 475-76).

Respiration rhythm and depth were

normal with no wheezing, rales, or crackles; a motor exam
demonstrated no dysfunction.
On June 28, Dr. Gregory Evans, with the MCHD, examined
Plaintiff who was seeking prescription refills; Madden reported
being in no pain (Tr. 486-88).

Respiration was normal; motor

and sensory exams revealed no abnormalities.

The Doctor’s

diagnosis was uncontrolled diabetes mellitus with hypersmolarity
and peripheral neuropathy.

Chest x-rays showed that the lungs

were clear with no edema or pleural fluid (Tr. 511).

On July 3,

MCHD records show Madden complaining of pain at level six; no
examination was conducted (Tr. 483-85).

On September 11, a CRNP

reported that Plaintiff was seeking prescriptions; he was still
smoking and was moderately exercising less than three times a
week (Tr. 479-82).

Madden was not feeling tired or poorly and

reported having no pain.

Respiration was normal; no motor or

sensory exam abnormalities were noted.

Plaintiff admitted that

he was noncompliant with his care plan; he was encouraged to
quit smoking and to adhere to treatment.

One week later, Madden

was in no acute distress and reported no pain; Dr. Elmo Ozment
noted nothing out of the ordinary (Tr. 477-79).
At the evidentiary hearing before the ALJ, Madden testified
that he did not work because he could hardly see; though he wore

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readers, he did not wear distance glasses because they did not
help and no one would buy them for him (see, generally, Tr. 94115).

Plaintiff was unaware of organizations that help provide

glasses to people.

He drove some, but very little.

mother lived together and helped each other out.

He and his

Madden could

sit for two hours before his legs, hands, and feet got numb; the
numbness in his legs caused him to fall a lot.

Plaintiff could

haul the garbage out, wash the car, and do other odds and ends
around the house; he could walk two hundred yards, but would
then have to sit down.

He could not button his shirt collar or

put in cufflinks because of finger numbness.

He works in his

rose garden about thirty minutes a week; he has seven acres of
land to mow with a riding mower twice a year.
left the house.

Madden rarely

He has diabetes and had to take five or six

shots a day for it; the diabetes kept him from working.

He

could walk for thirty-five minutes before his back and legs hurt
so much he had to sit down.
a work accident.

Madden has back problems because of

He admitted not following his medical regimen—

eating properly, taking his medicine, and exercising—but said it
was because he was depressed at his inability to work.

Madden

could shop for groceries, clean the bathroom, and do some
housework.

This concludes the relevant evidence of record.

In bringing this action, Madden first claims that the ALJ
did not properly consider the opinions of his treating doctor,

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Dr. Sharpe (Doc. 13, pp. 8-12).

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, 660 F.2d 1078, 1084 (5th Cir. 1981);4 see
also 20 C.F.R. § 404.1527 (2014).
In her determination, the ALJ summarized the evidence of
record and then explained her credibility determinations.

She

gave little weight to Dr. Sharpe’s conclusions, finding them
internally inconsistent and inconsistent with the other evidence
of record (Tr. 84).
The Court finds substantial support for the ALJ’s
conclusion.

In arguing that the ALJ was wrong, Madden has

pointed to one date, August 19, 2011, when Sharpe noted
abnormalities in the foot, lower leg, and toes as well as
decreased sensation in both feet (Doc. 13, p. 9).

The balance

of that particular argument points only to diagnoses of diabetic
peripheral neuropathy, albeit by different examining physicians.
The Court notes that Sharpe reported no similar
abnormalities in her examinations of October 18, 2011 (Tr. 459

4

The 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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60), January 12, 2012 (Tr. 457-58), February 15, 2012 (Tr. 45556), or April 19, 2012 (Tr. 475-76).

Plaintiff points to no

other medical evidence of these abnormalities.

Madden’s

assertion that a one-time notation of medical imperfection,
buoyed by a diagnosis repeated by MCHD’s multiple examiners,
falls very short of the evidence required to find that the ALJ’s
decision is in error.
The Court notes that Plaintiff engages in similar arguments
regarding Dr. Sharpe’s findings regarding Madden’s COPD, his
ability to reach, and his pain and the effects of his
medications (Doc. 13, pp. 9-12).

Again, though Madden suffers

the severe impairments of COPD and peripheral neuropathy, as
found by the ALJ, the diagnoses alone are insufficient to
demonstrate an inability to work.

Dr. Sharpe’s notes, as well

as the records of other examining sources, regularly report that
Plaintiff had no trouble breathing, had normal physical
examinations, and that he claimed no pain or medication side
effects.

Plaintiff’s claim that Dr. Sharpe’s conclusions were

not properly considered is without support in this record.
Next, Madden claims that the ALJ failed to recognize
certain findings made by a physician whose opinion was given
significant weight.

Dr. Singh had found that Madden could walk

only two hours during an eight-hour period and that he could
only occasionally stoop.

Plaintiff questions how the ALJ’s

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rejection of these findings by Dr. Singh can be reconciled with
the ALJ’s conclusion that the overall opinion should be given
significant weight (Doc. 13, pp. 13-14).
In pointing only to medical diagnoses, Madden again fails
to persuade the Court of the ALJ’s error.

There is no

evidentiary support, save for Plaintiff’s own testimony, for the
limitations sought in this argument.

This claim lacks merit.

Madden next claims that the ALJ improperly discredited his
testimony of pain, the side effects of his medications, and his
functional limitations (Doc. 13, pp. 18-20).

The standard by

which the Plaintiff'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
is supported by substantial evidence."

11

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) (2014).
The Court finds that the ALJ properly rejected Plaintiff’s
testimony as unsupported by the medical evidence and because of
his failure to comply with prescribed medical treatment (Tr. 8182).

Madden repeatedly reported that he was experiencing no—or

very minimal—pain to his examining physicians; likewise, medical
records do not show that he complained of medication side
effects.

This record is devoid of objective medical evidence to

support this claim.
Madden’s final claim is that the RFC is without evidentiary
support.

Plaintiff specifically points to the ALJ’S findings,

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in the RFC, that he should have a sit/stand option and that five
percent of the time he would be non-productive (Doc. 13, pp. 1518).
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546 (2014).

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 the RFC determination, the ALJ found that Madden “should
be allowed to alternate between sitting and standing at his
workstation on an occasional basis;” the ALJ stated that this
was an accommodation to Plaintiff’s diabetes and diabetic
neuropathy (Tr. 80, 83).

The ALJ also found that Plaintiff

could “be expected to be off task or to work at a nonproductive
pace up to 5% of the workday;” the ALJ stated that this was “to
accommodate any residual pain, weakness, fatigue, and medication
side effects” (Tr. 80, 83).
In bringing this claim, Madden argues that the ALJ has
failed to link these findings to specific medical evidence.
Court finds that Plaintiff is not wrong in this argument, but
not for the reasons asserted.

While no record medical source

specifically suggested a sit/stand option or that an employer

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The

could expect Madden to be productive only 95% of the time,
Madden’s own testimony is that he cannot work at all; the Court
found no support for that assertion.

Dr. Sharpe suggests

limitations that enjoy no objective evidentiary support even in
her own medical records.

The ALJ’s accommodations to Madden’s

claimed limitations are not a basis for finding error in her
determination that he can work.

This claim is without merit.

Madden has raised four different claims in bringing this
action.

All are without evidentiary support.

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 January, 2015.

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

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