Lee v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 12/22/2015. copy mailed to plaintiff (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENDA LEE,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 15-00013-N

MEMORANDUM OPINION AND ORDER
Plaintiff Brenda Lee brings this action, pro se, pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of
Social Security denying her applications for disability insurance benefits (“DIB”).
The parties have consented to the exercise of jurisdiction by, and this case has been
ordered referred to, the undersigned United States Magistrate Judge for all
proceedings in this Court pursuant to 28 U.S.C. § 636(c). See Docs. 17, 18. Oral
argument was held on August 18, 2015. Doc. 16. Present were Plaintiff, representing
herself, and Patricia Beyer, Esq., representing Defendant Carolyn Colvin.
Upon consideration of the administrative record (“R.”) (Doc. 11), Plaintiff’s
Brief (Doc. 13), and the Commissioner’s Brief (Doc. 15),1 the Court has determined
that

the

Commissioner’s

decision

denying

Plaintiff’s

benefits

should

be

Plaintiff also submitted other documents (See, e.g., Doc. 21), including notes from medical
treatment. However, these documents were not before the Administrative Law Judge (compare Doc.
11), so they cannot be considered here. See 20 C.F.R. § 416.1470(b).
1

AFFIRMED.2
I.

Procedural Background

Plaintiff filed an application for DIB on October 3, 2011 (see R. 187-195),
alleging a disability onset date of September 15, 2010. See R. 19. Her application was
initially denied. See R. 87-91. Hearings were conducted before Administrative Law
Judge Tracy S. Guice (“the ALJ”) on April 22, 2013 (see R. 40-47) and October 7,
2013.3 See R. 48-79. On December 20, 2013, the ALJ issued the decision, now before
this Court, finding Plaintiff not disabled. R. 12-30. The Appeals Council issued a
decision declining to review the ALJ’s determination on November 17, 2014 (see R.
1-7), rendering the Commissioner’s decision being final for purposes of judicial
review (see 20 C.F.R. § 404.981). Claimant timely filed a complaint in this Court on
January 13, 2015. See Doc. 1.
II.

Factual Background

Ms. Lee, the Plaintiff in this case, is a resident of Monroeville, Alabama, born
October 18, 1966. R. 193. She was 46 at the time of the second hearing before the
ALJ. R. 48, 193. She completed high school and is a certified nursing assistant. R.
56-57. Her past relevant work experience includes positions as a machine operator, a
garment factory worker, a nursing-home nursing assistant, and a stock clerk. R. 57.
She has not worked since before the alleged onset date of September 15, 2010. R. 21.

Any appeal taken from this memorandum opinion and order and simultaneously entered separate
judgment may be made directly to the Eleventh Circuit Court of Appeals. See Doc. 23.
2

Plaintiff was represented by council before the ALJ (see R. 10, R. 39) but is proceeding pro se on
appeal.
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2

Ms. Lee suffers from a number of medical issues, including post-surgery left knee
medial meniscus tear with degenerative joint disease, lumbar radiculopathy,
neuropathy, and anemia. R. 21.
In July 2009, Plaintiff underwent arthroscopic surgery performed by Dr.
Engerson to repair a small meniscus tear in her left knee. R. 303, 422. After
post-surgery physical therapy, she was approved to return to regular work by her
physician. R. 298. In September 2010, Plaintiff stopped working R. 231. A second
knee surgery was performed on November 4, 2010, followed by physical therapy and
prescription of pain medication. R. 310-11, 317-19. Dr. Bose, the physician
performing the second surgery, prescribed several functional limitations, but did not
state that Plaintiff could not return to work. R. 314. Later x-rays on July 15, 2013,
revealed scoliosis in the lumbar spine and degenerative change and/or moderate
arthritis in the knees. R. 506. On September 6, 2013, Dr. Thomas Lane diagnosed
Plaintiff with neuralgia (i.e., nerve pain), hypertension, and degenerative joint
disease, and prescribed ibuprofen, multivitamins, and a B12 injection. R. 536-38. On
September 13, 2013, Dr. Thomas Lane completed a Clinical Assessment of Pan,
stating that “Pain is present but does not prevent functioning in everyday activities
or work.” R. 532.
III.

Claims on Appeal

On appeal to this Court, Plaintiff asserts that the Commissioner’s decision to
deny benefits is in error (i.e., not supported by substantial evidence) on the following

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grounds:4
1. The ALJ relied on the opinion of Dr. Lane, who is biased because he
was hired by the SSA;
2. The ALJ did not have enough medical evidence to make a decision;
and
3. The Plaintiff is entitled to benefits because she takes pain
medication and receives mental health treatment.
Doc. 13 generally.
IV.

Standard of Review

In all Social Security cases, a plaintiff (sometimes referred to as a claimant)
bears the burden of proving that he or she is unable to perform his or her previous
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether
that burden has been met, and thus a claimant has proven that he or she is disabled,
the examiner (most often an ALJ) must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of examining physicians;
(3) evidence of pain; and (4) the plaintiff’s age, education, and work history (see id);
and, in turn,
uses a five-step sequential evaluation to determine whether the
claimant is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual functional
Plaintiff also contends that she was treated unfairly in the workers’ compensation process. Doc. 13
at 1. However, the review of this Court is limited to those issues presented to the ALJ. 20 C.F.R. §
416.1470(b).
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capacity, or] RFC[,] to perform her past relevant work; and (5) if not,
whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. Appx. 868, 870 (11th Cir. 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)).
If a plaintiff proves that he or she cannot do his or her past relevant work, it
then becomes the Commissioner’s burden to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy. Id.;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] bears the
burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the Commissioner’s decision
to deny a plaintiff benefits is supported by substantial evidence. Substantial
evidence is defined as more than a scintilla but less than a preponderance, and
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “In determining whether
substantial evidence exists, [a court] must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the [Commissioner’s] decision.”

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Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Courts are precluded, however,
from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370
Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005)). “Even if the evidence preponderates against
the Commissioner’s findings, [a court] must affirm if the decision reached is
supported by substantial evidence.” Id. (citing Crawford v. Commissioner of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis added).
V.
A.

Analysis

There is no indication that Dr. Lane’s opinion was biased.
Plaintiff contends that Dr. Thomas Lane5 is biased because he was paid by

the Social Security Administration and that this bias affected the report that he
submitted. Doc. 13 at 1. However, Plaintiff offers no proof for this assertion beyond
the mere fact that Dr. Lane was paid by the SSA. Id. Dr. Lane was paid for his time,
the exercise of his expertise, and the transmission of relevant medical records. See,
e.g., R. 422, 432. He is an independent physician who maintains a private practice
and is not employed by the SSA. Id. It is inappropriate to “ascribe bias to the work of
(such an) independent physician . . .” See, Richardson v. Perales, 402 U.S. 389, 403,
91 S. Ct. 1420 (1971). Without any evidence to the contrary, the Court concludes that
an independent physician such as Dr. Lane does not have “any interest on their part
in the outcome of the administrative proceedings beyond the professional curiosity a

Plaintiff refers to the physician in question only as “Dr. Lane” or “he.” Doc. 13 at 1. Plaintiff was
treated or examined by both Dr. Carole Lane and Dr. Thomas H. Lane. R. 430, 461. The SSA referred
Plaintiff to Dr. Thomas H. Lane for evaluation. R. 46, 58, 532-34.
5

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dedicated medical man possesses.” Id.
Rather, Dr. Lane’s medical opinion is due the weight normally accorded to an
examining physician. Dr. Lane personally examined the Plaintiff. R. 432-37. An
examining physician is due “more weight,” especially when it is consistent with
other medical opinions. 20 C.F.R. § 404.1527. Dr. Lane’s opinion is consistent with
that of Plaintiff’s other treating physicians, Dr. Engerson and Dr. Bose, who both
concluded that Plaintiff was not disabled. R. 21 compare R. 23, R. 298-305, R.
312-323. Thus, the ALJ properly considered the neutral medical opinion of Dr.
William Lane consistent with 20 C.F.R. § 404.1527 and Richardson v. Perales.
B.

The ALJ relied on adequate medical evidence.
Plaintiff next contends that the ALJ did not have adequate information on her

condition when she issued her decision. Doc. 13 at 2. The ALJ considered data from a
number of medical professionals, including: treating orthopedic physician Todd
Engerson, M.D.; treating orthopedic physician William J. Bose, M.D.; examining
internal medicine physician William H. Lane, M.D.; examining osteopathic
physician Mark Ellis, D.O.; examining osteopathic physician (x-ray only exam) Huey
Kidd, D.O.; and examining osteopathic physician Jeff George, D.O. R. 19-23.
The record before the Court reflects that Plaintiff had limited medical
treatment between 2011 and the hearing before the ALJ on April 22, 2013, when the
ALJ sent Plaintiff to Dr. William Lane. R. 43-46. The ALJ sent Plaintiff to Dr. Lane
in order to develop the record and update Plaintiff’s medical history. Id. All of the
sources evaluated by the ALJ were acceptable medical sources. See 20 C.F.R. §

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404.1513(a)(1). It is not the burden of the ALJ to present evidence which shows that
a claimant is disabled. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). Rather,
it is the Plaintiff’s burden to present acceptable medical sources which prove her
case. Id.; 20 C.F.R. § 404.1508. Thus, this assignment of error is overruled.
C.

The ALJ properly considered allegations of pain and mental health
issues.
Finally, the Plaintiff argues that she takes pain medication and receives

mental health treatment and that the ALJ failed to consider this in her decision.
Doc. 13 at 3. However, the ALJ’s opinion reflects that he did consider Plaintiff’s
allegations of pain, including Dr. Engerson’s note that deep squatting still caused
Plaintiff knee pain. R. 20. This was taken into account in the ALJ’s RFC
determination by stating that Plaintiff could only “occasionally balance, stoop, kneel
. . .” and was “precluded from climbing ladders, ropes, and scaffolds; precluded from
walking on uneven terrain . . .” R. 18. The ALJ also considered Dr. Lane’s Clinical
Assessment of Pain, which stated that “[p]ain is present but does not prevent
functioning in everyday activities of work.” R. 21. The ALJ gave “significant weight
to the opinions of Dr. Lane, as he is a long-standing medical source.” Id. Ultimately,
the ALJ found that the “claimant’s statements concerning the intensity, persistence,
and limiting effects of these symptoms [including her pain] are not credible to the
extent they are inconsistent with the above residual functional capacity
assessment.” R. 23. This conclusion was based on the consistent medical opinions of
three treating physicians. Id. To question this assessment, when it is supported by
such persuasive evidence, would clearly be “deciding the facts anew or re-weighing
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the evidence,” as proscribed by Davison. 370 Fed. App’x 995, 996 (citing Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).
Plaintiff first raised allegations concerning her mental functional limitations,
mental health treatment, or mental health evaluations in her brief. See, e.g., R.
19-23. No mental health issues were noted by any of the six physicians who
evaluated Plaintiff. Id. Moreover, there is no record evidence of any mental health
treatment for the relevant time period. Thus, Plaintiff’s allegation could not have
been considered by the ALJ. This Court’s review is limited to evidence which was
available to the ALJ. See 20 C.F.R. § 416.1470(b). If there was any evidence available
concerning a mental health condition, it was the responsibility of the Plaintiff to
present it to the ALJ. 42 U.S.C. 423(d)(5)(A). Thus, the ALJ properly evaluated and
considered by pain and mental health allegations as they were made known to her.
D.
The ALJ relied on substantial evidence in making the RFC
assessment and in finding that the Plaintiff could perform other work.
Finally, the ALJ’s RFC determination, and his subsequent determination that
the Plaintiff can perform light work existing in the national economy, are supported
by substantial evidence as required by Jones (190 F.3d at 1228) and Crawford (363
F.3d at 1158-59). In making the decision, the ALJ relied on the opinions,
assessments, and treatment notes of the six physicians discussed above. R. 19-23,
76-77. As required by the Eleventh Circuit, the evidence relied upon is “more than a
scintilla” and is “such relevant evidence as a reasonable person would accept as
adequate to support [the ALJ’s] conclusion.” See Martin v. Sullivan, 894 F. 2d 1520,
1529 (11th Cir. 1990) (internal citations omitted). In the last analysis, the record
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evidence does not support Plaintiff’s assignments of error. Rather, the record as a
whole reflects that the ALJ’s decision was supported by substantial evidence.
VI.

Conclusion

Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying Plaintiff benefits is AFFIRMED.
DONE and ORDERED this the 22nd day of December 2015.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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