Riviere v. Colvin et al
MEMORANDUM OPINION AND ORDER entered. It is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 3/17/2015. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ROCHELLE C. RIVIERE,
CAROLYN W. COLVIN,
Social Security Commissioner,
CIVIL ACTION 14-0401-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405((g), Plaintiff seeks
judicial review of an adverse social security ruling denying a
claim for disability insurance benefits (Docs. 1, 10).
parties filed written consent and this action has been referred
to the undersigned Magistrate Judge to conduct all proceedings
and order judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73 (see Doc. 16).
action (Doc. 15).
Oral argument was waived in this
After considering 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
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.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
evidence 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-four years old, had completed a tenth-grade education (Tr.
29), and had previous work experience as a school crossing guard
and shoe store manager (Tr. 29-30, 42).
disability due to fibromyalgia, bursitis, and migraines (Doc. 10
The Plaintiff applied for disability benefits on September
7, 2011, alleging an onset date of August 26, 2011 (Tr. 98-101;
see also Tr. 14).
An Administrative Law Judge (ALJ) denied
benefits, determining that Riviere was capable of performing her
past relevant work as a school crossing guard (Tr. 13-21).
Plaintiff requested review of the hearing decision (Tr. 7), but
the Appeals Council denied it (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
(1) The ALJ did not properly consider the
opinions of her treating physicians; (2) the ALJ’s residual
functional capacity (hereinafter RFC) is not supported by the
evidence; and (3) the ALJ improperly found that her testimony of
pain and limitation was not credible (Doc. 10).
responded to—and denies—these claims (Doc. 11).
The Court will
summarize the relevant evidence of record.1
On January 10, 2011, Dr. Timothy Peter Ahmadi examined
Riviere for moderate to severe back pain, radiating into the
left leg; he further noted cervical spine pain, surmising that
“most likely she had lumbar disc disease with nerve root
compression” (Tr. 175; see generally Tr. 165-84).
X-rays of the
lumbar spine were normal, providing no evidence of spondylolysis
or spondylolisthesis (Tr. 184).
On January 27, Plaintiff had
low grade lumbar back pain for which she was given a Decadron
injection2 (Tr. 172).
On February 7, an MRI of the lumbar spine
was performed that was normal except for some nonspecific mass
at L2, suspected to be a hemangioma of clinical insignificance
A week later, Dr. Ahmadi diagnosed acute
sinusitis but prescribed an antibiotic for back pain (Tr. 171).
On April 19, 2011, Riviere had multiple complaints of pain all
over along with intermittent diarrhea and vomiting; the Doctor
1As Plaintiff alleges a disability onset date of August 26, 2011
(Tr. 100), the Court will not report the medical history that predates 2011.
Only.Decadron is a corticosteroid used for,
among other things, the treatment of rheumatic disorders. Physician's
Desk Reference 1635-38 (52nd ed. 1998).
concluded she had irritable bowel syndrome and, possibly,
fibromyalgia for which he prescribed Elavil3 and something for
her stomach (Tr. 170).
On June 14, Ahmadi noted no pain
complaints, but diagnosed acute rhinitis and sinusitis,
prescribing Tramadol4 (Tr. 169); four days later, Darvocet5 was
prescribed for moderate to severe cervical spine pain (Tr. 167).
On June 30, the Doctor noted muscle tenderness, diagnosed
possible fibromyalgia, and gave her some Cymbalta6 samples (Tr.
On July 18, Riviere complained of pain in the back, lower
leg, and upper extremity, though there was no gross abnormality
in any joint; Ultram7 was prescribed (Tr. 166).
On August 18, 2011, Rheumatologist Gino DiVittorio examined
Plaintiff, noting complaints of pain all over, but mainly in the
neck, shoulders, and mid- and lower back; he noted fifteen wide
spread tender points, with a symptoms score of eight, though all
Only.Amitriptyline, marketed as Elavil, is
used to treat the symptoms of depression. Physician's Desk Reference
3163 (52nd ed. 1998).
4Tramadol “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.” Error! Main
Document Only.Physician's Desk Reference 2520 (66th ed. 2012).
Only.Propoxyphene 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).
6Cymbalta is used in the treatment of major depressive disorder.
Error! Main Document Only.Physician's Desk Reference 1791-93 (62nd ed.
7Error! 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).
joints were normal (Tr. 188-89, 215).
The Doctor noted that
this met the diagnostic criteria for fibromyalgia; Riviere was
encouraged to exercise regularly, avoid caffeine and alcohol,
and take Lyrica.8
On September 15, 2011, Plaintiff complained of
hurting all over and admitted that she had not been exercising;
DiVittorio noted mild widespread tender points, pain at
palpation in the ischial bursas, but no leg edema and
substituted Ultracet9 for Ultram (Tr. 186).
On October 13, Dr.
DiVittorio noted tender points in Plaintiff’s upper and lower
back, causing pain; her morning Lyrica made her sleepy though
she slept poorly (Tr. 205).
Riviere admitted she was not
On November 10, Plaintiff reported that she was
exercising, hurting very little, but her sleeping was only fair;
the Rheumatologist noted minimal tender points, no leg edema,
and recommended exercise (Tr. 204).
On February 10, 2012,
Plaintiff reported hurting “some” all over and not sleeping
well; she was not exercising (Tr. 213).
exercise and prescribed Savella.10
On February 23, Doctor Ahmadi reported Plaintiff’s claim of
8Lyrica manages neuropathic pain.
Only.Physician's Desk Reference 2517 (62 ed. 2008).
Only.Ultracet is made up of acetaminophen and
tramadol and is used for the short-term (5 days or less) management of
pain. See http://health.yahoo.com/drug/d04766A1#d04766a1-whatis
10Savella is a drug enhancing transmission in neurotransmitters to
ease pain, reduce fatigue, and help memory. http://www.webmd.com/
inability to “do constant or persistent work because of [her]
pain,” though noting no cardiopulmonary symptoms, shortness of
breath, tenderness, or edema (Tr. 206).
On March 27, 2012,
Ahmadi completed a physical capacities evaluation (hereinafter
PCE), indicating that Riviere could sit for an hour at a time,
but a total of less than an hour during an eight-hour day; she
could stand/walk for an hour at a time and total a day (Tr.
She could lift only up to ten pounds occasionally and
carry five pounds frequently; capable of simple grasping and arm
controls, Riviere had no fine manipulation and could not use leg
Plaintiff could never bend, squat, crawl, climb, or
reach and was totally prohibited from activities involving
unprotected heights, moving machinery, exposure to dust, fumes,
and gases or marked changes in temperature and humidity; she
could not drive.
Also on March 27, Ahmadi found Plaintiff’s
pain so frequent as to be intractable and virtually
incapacitating; because of her medications, she was unable to
function productively at work (Tr. 209).
On April 27, Riviere
reported doing reasonably well “except for pain in several areas
due to fibromyalgia;” he noted no abnormalities and prescribed
Xanax11 (Tr. 207).
A month earlier, on March 22, 2012, Dr. DiVittorio reported
Only.Xanax is a class four narcotic used for
the management of anxiety disorders. Physician's Desk Reference 2294
(52nd ed. 1998).
that Plaintiff hurt “some” but, overall, felt better with
exercise and sleep; she had mild tender points in her back (Tr.
The Doctor recommended that Riviere “do more exercises”
On May 3, 2012, Plaintiff said she had quit taking
Savella because it disturbed her sleep; she hurt some, with no
edema (Tr. 210).
She had mild, widespread tender points; Ultram
and exercise were prescribed.
On August 10, following an
otherwise normal exam, Dr. Vittorio ordered an anesthetic
injection in the left hip for bursitis; he recommended exercise
and added Cymbalta (Tr. 219-20, 223-24).
Two weeks later, the
Rheumatologist reported that he had told Riviere that she needed
to exercise regularly and avoid alcohol and caffeine; he
prescribed Lyrica (Tr. 225).
On September 7, Dr. DiVittorio
stated there were “no more options.
She can not afford or
She is not exercising.
There is no [sic] much else I can offer” (Tr. 222).
Though she had “widespread tender points,” Plaintiff was “not
adherent to her medication regimen and  denied medication side
effects” (Tr. 217).
On November 8, 2012, Riviere told Dr. Ahmadi that she had
some pain but it was better; the exam was normal (Tr. 233; see
generally Tr. 223-33).
On December 17, she was treated for a
cold and sinusitis; he reported no edema or calf tenderness (Tr.
A month later, the exam was normal but for sinus problems
On February 2, 2013, Dr. Ahmadi noted her diagnosis
and medications, and stated that except for congestion she was
medically stable (Tr. 230).
On March 27, 2013, he noted that
other than her diagnoses and medications, she was doing well.
On April 8, Ahmadi noted lower back and leg pain, but she was
otherwise “medically stable;” he prescribed Neurontin12 (Tr.
In a note the next day, the Doctor noted that Riviere had
returned the next day because her medications had not worked;
“[s]he had pain all over and was under care of a rheumatologist
and did not do any good” (Tr. 226).
This concludes the Court’s summary of the evidence.
Plaintiff first claims that the ALJ did not properly
consider the opinions of her treating physicians.
Riviere asserts that the reports of Drs. Ahmadi and DiVittorio
were not properly considered (Doc. 10, pp. 10-16).
It should be
noted 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
any physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);13 see
also 20 C.F.R. § 404.1527 (2014).
Only.Neurontin is used to help with seizures.
Physician's Desk Reference 2110-13 (52nd ed. 1998).
13The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions
of the former Fifth Circuit rendered prior to October 1, 1981.
Riviere claims that the ALJ failed “to state what weight,
if any, was afforded to the opinions of Dr. DiVittorio” (Doc.
10, p. 14) while the Government argues that the ALJ specifically
discounted them (Doc. 11, p. 6).
The Court finds that Plaintiff
is more correct in her argument, but it is of no moment.
The Court can re-summarize the records quickly.
18, 2011, DiVittorio found that Riviere had fifteen widespread
tender points, mainly in the neck, shoulders, and mid- and lower
back, that met the criteria for a diagnosis of fibromyalgia (Tr.
188-89); this was eight days before Plaintiff’s asserted onset
On November 10, Plaintiff reported to Dr. DiVittorio that
she was exercising, hurting very little, but her sleeping was
only fair; the Rheumatologist noted minimal tender points, no
leg edema, and recommended exercise (Tr. 204).
In a March 22,
2012 note, the Rheumatologist reported that Plaintiff hurt
“some” but, overall, felt better with exercise and sleep; she
had mild tender points in her back (Tr. 212).
The August 10
exam was normal except for left hip bursitis (Tr. 219-20, 22324).
On September 7, Dr. DiVittorio’s records indicate that he
was releasing her from his care because she did not exercise or
take her medications as ordered (Tr. 217, 222).
emphasizes that the Doctor released Riviere because she did not
follow prescribed treatment, so there was nothing he could do
Though the ALJ has not clearly defined the weight
given Dr. Vittorio’s opinions, the Court finds that they do not
support a finding of disability.
The ALJ clearly defined his views on Dr. Ahmadi’s
conclusions, giving little weight to the PCE and pain forms he
completed “because the documents contain insufficient rationale
with no citation to medical evidence that would reasonably
support the opinions” (Tr. 18).
The ALJ went on to note that
the opinions in those forms were inconsistent with treatment
records and his physical exams (Tr. 18).
The Court finds substantial support for this conclusion.
Nowhere in Dr. Ahmadi’s treatment notes is there any objective
indication of limitation.
While the Doctor repeated Riviere’s
claims of pain in his treatment notes, he never limits her in
any way; most of his exams made after he completed the PCE and
pain forms were essentially normal.
The Court finds substantial support for the ALJ’s
conclusion that Dr. Ahmadi’s opinions were to be given little
While the ALJ did not state what weight he gave Dr.
DiVittorio’s opinion, it was, at most, harmless error,14 as the
Doctor’s treatment notes do not counsel a finding of disability.
Riviere next claims that the ALJ’s RFC is not supported by
the evidence (Doc. 10, pp. 16-19).
The Court notes that the ALJ
14Error! Main Document Only.As such, remand of this action would
be inappropriate. See Reeves v. Heckler, 734 F.2d 519, 526 n.3 (11th
is responsible for determining a claimant’s RFC.
20 C.F.R. §
That decision can not be based on “sit and
Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984).
In his determination, the ALJ found that Plaintiff had the
RFC “to perform light work as defined in 20 C.F.R. 404.1567(b)15
except [that] she is unable to climb ladders, ropes, or
She can occasionally crouch” (Tr. 16).
previously, the ALJ discounted Dr. Ahmadi’s opinions in reaching
this decision; the Court found substantial support for that
The ALJ also discounted Riviere’s own statements of
pain and limitation (Tr. 18, 19-20); the Court will soon address
Plaintiff’s claim that this decision was improper.
The Court finds substantial support for the ALJ’s
determination of Plaintiff’s RFC.
action is scant.
The medical evidence in this
Although Dr. DiVittorio provided the best
medical evidence of disability—and that fell short of proof—he
quit treating Plaintiff because she failed to comply with his
15“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.”
Dr. Ahmadi’s treatment notes failed to show
any limitations as they rely on Plaintiff’s subjective
complaints of pain; his notes regularly indicate a normal exam
except for Riviere’s assertions.
Plaintiff is reminded that the
social security regulations state that Plaintiff is responsible
for providing evidence from which the ALJ can make an RFC
20 C.F.R. § 404.1545(a)(3).
Plaintiff’s final claim is that the ALJ improperly found
that her testimony of pain and limitation was not credible (Doc.
10, pp. 18, 19-20).
The standard by which the Riviere'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."
Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v.
Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)).
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
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.
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 ALJ found that Riviere’s pain and limitation were not
as severe as alleged (Tr. 18).
He based this conclusion on her
limited use of pain medications and her failure to follow a
prescribed medical regimen (Tr. 20).
The ALJ further noted
Plaintiff’s daily activities (Tr. 19).
The Court finds substantial support for the ALJ’s
First, the medical evidence does not support
Riviere’s claims of debilitating pain and limitation; the only
evidence that would support those claims were the PCE and pain
forms completed by Dr. Ahmadi, but those forms were correctly
accorded little weight.
Dr. DiVittorio’s records, however,
reveal both that Plaintiff was not suffering as much as she
claimed and that she was not even doing the things she could to
improve her situation.
Plaintiff is reminded that the Social
Security regulations state that “[i]n order to get benefits, you
must follow treatment prescribed by your physician if this
treatment can restore your ability to work.”
20 C.F.R. 1530(a)
The regulation goes on to state that “[i]f you do not
follow the prescribed treatment without a good reason, we will
not find you disabled or, if you are already receiving benefits,
we will stop paying you benefits.”
20 C.F.R. § 404.1530(b); see
also Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
Plaintiff has raised three different claims in bringing
All are 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
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
DONE this 17th day of March, 2015.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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