Myles v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER entered. Oral argument was waived in this action 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, as more fully set out in order. Signed by Senior Judge Charles R. Butler, Jr on 2/2/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERESA F. MYLES,

:
:
:
:
:
:
:
:
:
:

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

CIVIL ACTION 14-0293-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, 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. 16).
argument was waived in this action (Doc. 19).

Oral

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

1

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, Myles was fortyfive years old, had completed a high school education (Tr. 32),
and had previous work as a nursery laborer, cashier/checker,
packer, correctional officer, and construction worker (Tr. 5253).

In claiming benefits, Plaintiff alleges disability due to

peripheral neuropathy, fibromyalgia, headaches, anxiety,
depression, and hypertension (Doc. 12 Fact Sheet).
Myles filed applications for disability benefits and SSI on
July 11, 2011 and October 20, 2011, respectively (see Tr. 12;
see also Tr. 131-34, 149-57).

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, Myles
was capable of performing specified light work jobs (Tr. 12-24).
Plaintiff requested review of the hearing decision (Tr. 7-8) by
the Appeals Council, but it was denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not

2

supported by substantial evidence.

Specifically, Myles alleges

the single claim that the ALJ did not properly evaluate the
conclusions of her treating physician (Doc. 12).
responded to—and denies—this claim (Doc. 13).

Defendant has

A summary of the

relevant record medical evidence follows.1
On December 10, 2010, x-rays of the lumbar spine revealed
minimal degenerative spurring in the lower lumbar region (Tr.
420).

On December 28, Plaintiff underwent an MRI of the lumbar

spine that was negative (Tr. 293; see generally Tr. 283-96).
On March 4, 2011, Dr. Jeffrey D. Faggard, with the IMC
Diagnostic & Medical Clinic, examined Myles for complaints of
joint pain, worse in her hands, knees, feet, and hips (Tr. 29192).

Plaintiff reported that Lyrica2 helped some; she also took

Tramadol.3

The Doctor noted that she was in no acute distress

and had full range of motion (hereinafter ROM) in her neck
shoulders, elbows, wrists, fingers, hips, knees, ankles, and
feet, though there was diffuse tenderness to palpation and ROM;

1Myles asserts a disability date of July 6, 2011 (Tr. 133; cf.

Tr. 12); she points to medical records dating as early as December 28,
2010 to support her disability claim (Doc. 12 Fact Sheet). As such,
the Court will review little evidence pre-dating this latter date and
will review only that evidence directly relating to her claim herein.

2Lyrica is used for the management of neuropathic pain.

Error!

nd
Main
 Document
 Only.Physician's Desk Reference 2517 (62 ed. 2008).
3Tramadol “is indicated for the management of moderate to

moderately severe chronic pain in adults who require around-the-clock
treatment of their pain for an extended period of time.” Physician's
Desk Reference 2520 (66th ed. 2012).

3

Faggard continued prescriptions for Savella4 and Ultram5 and
added Robaxin.6

On April 5, 2011, the Doctor noted that Myles

was doing better and was walking without a cane; Faggard noted
full ROM throughout with no tenderness (Tr. 290).

The diagnosis

was Fibromyalgia, apparently stable, and mild osteoarthritis.
On July 7, Plaintiff complained of severe pain all over,
especially in her legs, and stated that her medicine was not
helping; she never started the Robaxin (Tr. 288-89).

The Doctor

noted full ROM throughout, though there was diffuse tenderness
with ROM; Faggard set her up for physical therapy treatment.
Myles underwent five sessions of physical therapy from July
12 through August 8, 2011 at Encore Rehabilitation, Inc. for
complaints of low back pain (nine on a ten-point scale) with
radicular symptoms, marked stiffness, weakness, and loss of
motion and function (Tr. 242-59).

On the first visit, the

Therapist, Lundy Foose, noted moderate restrictions on both the
left and right, finding the following ROM measurements:

lumbar

flexion was 50%, lumbar extension was 75%, and side-bending and
rotation was 25%; she noted, however, that “functional ROM was

4Savella is used in the treatment of fibromyalgia.

See
http://www.drugs.com/savella.html
5Ultram is an analgesic “indicated for the management of moderate

to moderately severe pain.” Physician's Desk Reference 2218 (54th ed.
2000).
6Robaxin “is indicated as an adjunct to rest, physical therapy,

and other measures for the relief of discomforts associated with
acute, painful musculoskeletal conditions.” Physician's Desk
Reference 2428 (52nd ed. 1998).

4

observed to be [within normal limits] while pt was sitting,
standing, transitioning on the plinth from supine to sitting and
while donning shoes” (Tr. 243).

The Therapist also noted that

Myles exaggerated her complaints of pain (Tr. 244).

On the

second session, July 15, 2011, Foose noted the following:

“Pt

was observed to be able to bend completely forward at the waist
to pick an object off of the floor without difficulty.

However,

when asked to perform AROM of flexion and extension pt selflimits both” (Tr. 250).

On July 25, Plaintiff reported that her

pain had decreased to six following the session (Tr. 252).

On

August 5, Myles reported that she felt great after her last
session and that therapy was helping (Tr. 255).

On August 8,

Plaintiff stated that although she was not having a good day,
her pain was only five (Tr. 253).
On September 15, Dr. Mark Wiles, with Internal Medicine
Center, found Myles in no apparent distress; he noted that there
were no motion limitations throughout (Tr. 375-76).
On October 6, Dr. Faggard examined Myles for increased pain
in her left shoulder, radiating into the arm; Tylenol helped
(Tr. 283-85).

The Doctor noted full ROM throughout; there was

no pain in the back with forward flexion, lateral bending, and
extension.

An x-ray of the left shoulder was negative.

On November 20, Plaintiff went to the Springhill Medical
Center Emergency Room after a fainting spell in which she hit

5

her head; she complained of a throbbing headache and right
shoulder and back tenderness (Tr. 307-13).
normal.

A CT of the head was

On examination, Myles had right dorsal shoulder and

paravertebral muscle tenderness though she had full passive ROM.
The final diagnostic impression was syncope and scalp abrasion,
likely triggered by a medication reaction.
On October 28, 2011, Plaintiff was seen at Mostellar
Medical Center to establish medical care; she had had a headache
for two weeks and increased pain for the previous couple of days
(Tr. 332-33; see generally Tr. 314-33).
examination was normal.

The physical

On December 9, Myles was treated for

pharyngitis (Tr. 325-26).

On April 16, 2012, Plaintiff

presented for feet, leg, and back pain; Dr. Elmore Alexander,
D.O., diagnosed depression, among other things, and recommended
a gluten-free and carbohydrate adjusted diet (Tr. 321-22).
On May 15, 2012, Dr. Wiles examined Plaintiff for
fibromyalgia; the current episode had begun a month earlier and
gotten worse (Tr. 302-05).

Plaintiff reported that bed rest,

NSAID’s, Lyrica, and Savella helped.

Wiles noted normal ROM

throughout except in the left shoulder and left and right upper
arm with tenderness in both sets of shoulders, hips, and upper
arms as well as her lumbar back.

On June 29, 2012, Dr. Faggard,

following a phone call from Myles about her pain, called in a

6

prescription for Tylenol #37 (Tr. 300).
On July 17, 2012, Myles was seen by Dr. Faggard for
complaints of pain all over, staring a month earlier and getting
worse (Tr. 372-74).

On examination, the Doctor found tenderness

in the right and left shoulder, right and left hip, right and
left knee, and both arms; he found ROM to be full throughout.
Faggard continued her medications and told her to return in six
months.

On that same date, Faggard completed a Pain Form in

which he indicated that he had been treating Myles for sixteen
months for fibromyalgia (Tr. 334-35).

The Doctor stated that

Plaintiff had pain that would distract her from performing her
daily activities, that physical activity would greatly increase
her pain, causing distraction from—or total abandonment of—her
task, and that either the pain, or the medications she took for
it, would limit her ability to work.

Faggard restricted Myles

from bending, squatting, and climbing; he further indicated that
Plaintiff could not engage in regular, productive work as she
would miss more than two days per month because of her
impairment.

This concludes the relevant evidence of record.

Myles alleges the single claim that the ALJ did not
properly evaluate the conclusions of her treating physician, Dr.
Faggard (Doc. 12).

It should be noted that "although the

7Error!
 Main
 Document
 Only.Tylenol with codeine is used “for the

relief of mild to moderately severe pain.”
2061-62 (52nd ed. 1998).

7

Physician's Desk Reference

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);8 see also 20 C.F.R. § 404.1527
(2014).
In the determination, the ALJ summarized the medical
evidence and then explained what weight the evidence was given.
No weight was given to the pain form completed by Dr. Faggard as
it was inconsistent with his own treatment records; the ALJ
specifically pointed out that his own records demonstrated no
joint swelling and normal ROM findings in the May and July 2012
notes (Tr. 21).

The ALJ further pointed out that Myles had

indicated to her doctors that her medications helped with her
fibromyalgia pain and that she had never reported back to
Faggard in advance of her scheduled appointments because of her
pain (Tr. 21).

The ALJ noted that the Physical Therapist’s

records were inconsistent with Dr. Faggard’s limitations.
Finally, the ALJ pointed out that the Doctor did not “identify
specifically the tender or trigger points as referenced in SSR
12-2P” (Tr. 19).

8The 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.

8

The Court finds substantial support for the ALJ’s rejection
of Dr. Faggard’s opinions in his Pain Form.

It is of no moment

that the Doctor is a specialist as his opinions are unsupported
in his own medical records, much less the record as a whole.
While the Court is sympathetic to Myles’s argument that she did
not see her physician more often or get more physical therapy
treatment because of her poor finances, the objective medical
evidence does not support Dr. Faggard’s conclusions.

The only

evidence providing support for those conclusions is Plaintiff’s
own testimony; however, the ALJ rejected the credibility of that
testimony as unsupported by the evidence (Tr. 18, 19), a finding
unchallenged in this action.

Myles’s claim is without merit.

Plaintiff has raised a single claim in this action.
without merit.

It is

Upon consideration of the entire record, the

Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
at 401.

Perales, 402 U.S.

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 2nd day of February, 2015.

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

9