Thomas v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and memoranda of the parties, it is ORDERED that the Commissioners decision be AFFIRMED and this action be DISMISSED, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 4/17/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VINCENT E. THOMAS,

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

CIVIL ACTION 14-0445-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 denying a claim for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13).
The parties filed written consent and this action was 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. 18).
19).

Oral argument was waived (Doc.

After considering the administrative record and memoranda

of the parties, it is ORDERED that the Commissioner’s decision
be AFFIRMED and 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).

Substantial

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).
The Plaintiff applied for disability benefits and SSI on
August 22, 2011 and August 9, 2011, respectively, alleging a
disability onset date of May 17, 2011 (Tr. 20, 140-49).

At the

administrative hearing, Thomas was thirty-seven years old, had
completed a high school education (Tr. 39), and had previous
work experience as an electrician’s helper and tank cleaner (Tr.
61).

Plaintiff alleges disability due to Type I Diabetes

Mellitus, loss of vision in his right eye, gastroparesis, and
nephritic neuropathy (Doc. 13 Fact Sheet).
An Administrative Law Judge (ALJ) denied benefits,
determining that although Thomas could not return to his past
relevant work, there were specific medium-exertion jobs that he
could perform (Tr. 20-27).

Plaintiff requested review of the

hearing decision (Tr. 14-16), but the Appeals Council denied it
(Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

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Specifically, Thomas alleges

the single claim that the ALJ did not properly consider the
opinions of his treating physician (Doc. 13).

Defendant has

responded to—and denies—this claim (Doc. 14).

The relevant

record evidence follows.1
On February 24, 2011, Thomas was seen at the Mobile County
Department of Health, seeking prescription refills for his
diabetes and hypertension; his blood pressure, which was
significantly elevated, was due to not taking his medications
for one and one-half weeks (Tr. 219-22).

Otherwise, the exam

was essentially normal; Plaintiff’s diabetes was characterized
as uncontrolled.

Dental care was recommended but declined.

On March 2, Dr. Karl Whiting, O.D., at Franklin Primary
Vision Center, noted that Thomas had 5/600 vision in the right
eye and 20/40 in the left eye, uncorrected; the left eye
improved to 20/25 with correction (Tr. 352).

There was

longstanding retinal detachment in the right eye.

It was

recommended that Plaintiff wear safety frames full-time to
protect his good eye.
On April 18, Thomas was admitted for two nights to the
University of South Alabama Medical Center (hereinafter USAMC)
for intractable abdominal pain, nausea, and vomiting (Tr. 23855).

The attending physician diagnosed him to have diabetic

1As Thomas asserts his disability began on May 17, 2011, the

Court will not review evidence that pre-dates that by a long period or
medical evidence unrelated to his claims in this action.

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gastroparesis, but concluded that although his diabetes was
formerly under control, Thomas had brought this hospitalization
on himself by failing to follow his prescribed diabetic regimen;
Plaintiff indicated that he was not going to change in spite of
advice to do so.
On November 8, Dr. Edward C. Baranano, Ophthalmologist,
examined Plaintiff and found his right eye blind due to past
retinal detachment; his left eye was stable (Tr. 268-72).
Thomas was restricted to driving with side view mirrors.
On November 11, Plaintiff went to the Emergency Room at
USAMC and was treated for hypoglycemia (Tr. 273-77)
On November 17, Dr. Alan Jay Sherman performed a
consultative examination, finding Thomas’s vision was 20/30 in
the left eye, 20/40 in both eyes, and right eye blindness (Tr.
279-85).

The Doctor noted finger-to-thumb fine motor movement

was mildly clumsy bilaterally; upper extremity strength to
resistance was 4/5.

Plaintiff had good range of motion

throughout except for mild decreased flexion of the left knee
with pain; grip strength was normal though dexterity was mildly
restricted.

Because of Thomas’s medical history of diabetes,

blindness, and hypertension, Sherman did not think that he could
work full-time.
On January 16, 2012, Plaintiff was admitted to USAMC for a
week following complaints of nausea, vomiting, and abdominal

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pain for two days (Tr. 286-329).

He was diagnosed to have

shigellosis, a bacterial infection.
On February 22, 2012, Thomas went to Franklin Primary
Health Care to get prescriptions refilled (Tr. 332-35).

On

March 15, was seen for nocturnal incontinence (Tr. 330-21).
On June 24, ER records from Springhill Medical Center show
that Plaintiff was treated for hypoglycemia (Tr. 336-41).
Thomas reported that he had taken his insulin but forgot to eat
at a contemporaneous time.
On July 19, Dr. James O. Devaney, a family practitioner
with the Franklin Clinic, completed a Diabetes Questionnaire
indicating that Plaintiff’s blood sugar levels were under good
control within normal limits (Tr. 342-43).

The Doctor stated

that Plaintiff had diabetic neuropathy associated with renal
function and would have moderately severe-to-severe limitations
in working.
This concludes the Court’s summary of the evidence.

Thomas claims that the ALJ did not accord proper legal

weight to the opinions, diagnoses and medical evidence of his
treating physician, Dr. Devaney.

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."

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Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);2 see
also 20 C.F.R. § 404.1527 (2014).
In his decision, the ALJ summarized the record evidence
before finding Plaintiff capable of performing specific mediumexertion jobs; in reaching this conclusion, the ALJ relied on
the testimony of a vocational expert (Tr. 22-27).

The ALJ

discounted Dr. Sherman’s opinions, a conclusion not challenged
in this action.

The ALJ also found that Thomas’s testimony

regarding the severity of his limitations was not supported by
the evidence; Plaintiff has not challenged this finding either.
The ALJ gave little weight to Dr. Devaney’s opinion that
Thomas would be moderately severe-to-severely limited in his
ability to work, finding evidence lacking to support the
conclusion.

He specifically noted that Devaney’s opinion was

premised on his finding that Thomas had neuropathy associated
with renal function even though Plaintiff had testified at the
hearing that he did not have neuropathy.
The Court finds substantial support for the ALJ’s
conclusion.

Dr. Devaney’s treatment notes provide no evidence

of limitation and provide barely any evidence beyond
prescription information.

As a whole, the record demonstrates

that Thomas has not properly cared for his impairments, causing

2The 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.

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him to seek emergency intervention more than once.

The Court

further notes that, by his own reports, Thomas’s daily
activities rebut his treating physician’s suggestion of
inability.
Thomas has raised a single claim here; that claim lacks
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 17th day of April, 2015.

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

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