Hare v. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER that the Secretary's decision be AFFIRMED and that this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 8/25/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERRI K. HARE,

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

CIVIL ACTION 15-0045-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, 9).

The

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. 15).
action (Doc. 14).

Oral argument was waived in this

After considering the administrative record,

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).

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).
At the time of the administrative hearing, Plaintiff was
forty-eight years old, had completed some college education (Tr.
46), and had previous work experience as an insurance agent and
a technical support specialist (Tr. 57).

Plaintiff alleges

disability due to Alprazolam1 dependence, panic disorder,
dysthymic disorder, lumbar degenerative disc disease,
fibromyalgia, polyarthralgia, osteoarthritis, irritable bowel
syndrome, temporomandibular joint disease, and bilateral carpal
tunnel syndrome (Doc. 9 Fact Sheet).
Hare applied for disability benefits on September 16, 2011,
asserting a disability onset of January 1, 2007 (Tr. 21; 11925).

An Administrative Law Judge (ALJ) denied benefits,

determining Plaintiff was capable of performing specified
sedentary work (Tr. 21-34).

Hare requested review of the

hearing decision (Tr. 15-16), but the Appeals Council denied it
(Tr. 1-6).

1Alprazolam is the generic name for Xanax.

http://www.drugs.com/alprazolam.html

2

See

Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Hare alleges

(1) The ALJ did not properly consider the conclusions of

her treating physician; and (2) the Appeals council did not
properly review newly-submitted evidence (Doc. 9).
has responded to—and denies—these claims (Doc. 10).

Defendant
The

relevant evidence of record follows.
On March 28, 2007, Dr. Robert McKnight, who had been
treating Plaintiff since 2002, diagnosed Hare to have Irritable
Bowel Syndrome and depression, prescribing Lexapro2 and Ultram3
(Tr. 219; see generally Tr. 195-253).

Four months later, the

Doctor substituted Cymbalta4 for the Lexapro (Tr. 218).

On

September 13, McKnight prescribed Xanax5 for panic attacks (Tr.
217).

On February 8, 2008, Plaintiff complained of panic

attacks and insomnia and was prescribed Wellbutrin6 (Tr. 216).
On August 8, Hare had recently fallen, injuring her left knee
and causing left groin strain; Lortab7 and Flexeril8 were

2Lexapro is indicated for the treatment of major depressive

disorder. Physician's Desk Reference 1175-76 (62nd ed. 2008).
3
Ultram is an analgesic “indicated for the management of moderate
to moderately severe pain.” Physician's Desk Reference 2218 (54th ed.
2000).
4Cymbalta is used in the treatment of major depressive disorder.

Physician's Desk Reference 1791-93 (62nd ed. 2008).
5Xanax is a class four narcotic used for the management of

anxiety disorders. Physician's Desk Reference 2294 (52nd ed. 1998).
6Wellbutrin is used for treatment of depression.

Physician's
Desk Reference 1120-21 (52nd ed. 1998).

7Lortab is a semisynthetic narcotic analgesic used for “the

3

prescribed (Tr. 212).

In October, the Doctor found Plaintiff to

have arthritis all over, with both hips and elbows being worse;
he diagnosed arthralgia (Tr. 211).

On February 26, 2009,

McKnight added fatigue to continuing prior diagnoses and
continued medications (Tr. 210).

On November 2, Hare had right

hip pain for which Lortab was prescribed (Tr. 208).

On January

4, 2010, Plaintiff complained of joint pain in the right hip,
feet, ankles, and shoulders in addition to finger pain; McKnight
diagnosed polyarthralgia and prescribed Lortab (Tr. 207).

Two

days later, Plaintiff had a positive ANA screen (Tr. 246).

On

March 2, the Doctor indicated Hare may have fibromyalgia and
prescribed Lortab; six weeks later, he re-prescribed the Lortab
and Xanax (Tr. 205-06).
stress (Tr. 204).

On May 11, Savella9 was prescribed for

On September 23, Hare complained of

abdominal, shoulder, hip, and head pain as well as anxiety;
Lortab was prescribed (Tr. 202).

On November 30, she complained

of weakness and pain in her hips (Tr. 201).

On March 18, 2011,

Plaintiff had hip pain and received prescriptions for Lortab and
Xanax (Tr. 198).

relief of moderate to moderately severe pain.” Physician's Desk
Reference 2926-27 (52nd ed. 1998).
8Flexeril is used along with “rest and physical therapy for

relief of muscle spasm associated with acute, painful musculoskeletal
conditions.” Physician's Desk Reference 1455-57 (48th ed. 1994).
9Savella is a drug enhancing transmission in neurotransmitters to

ease pain, reduce fatigue, and help memory. See http://www.webmd.com/
fibromyalgia/guide/savella-for-fibromyalgia-treatment

4

On March 24, 2011, Dr. E. Rhett Hubley with Baldwin Bone &
Joint, P.C., examined Hare for intermittent right hip pain (Tr.
193).

The Doctor noted a little discomfort with straight leg

raising and pain with internal rotation in both the flexed and
extended position; she had full range of motion (hereinafter
ROM).

X-rays showed there was “perhaps some slight narrowing in

her right hip joint” and “a very small osteophyte forming on the
superior surface of the femoral neck . . . [with] disc narrowing
at L5/S1 of probably 25%” (Tr. 193).

Unable to specifically

diagnose Plaintiff’s ailment, the Doctor put her on a Medrol
Dosepak10 and said he would see her again in two weeks.
On May 26, 2011, Dr. McKnight prescribed Lortab for right
hip arthritis (Tr. 197).

On July 18, the Doctor re-represcribed

Xanax and Lortab as well as Pristiq11 for depression (Tr. 196).
On July 21, McKnight wrote the following “To Whom It May
Concern” letter:
Ms. Hare began complaining of a
multiple joint pain and low grade fever in
January 2010. At that time, she had
laboratory workup which revealed a positive
antinuclear antibody consistent with connect
tissue disease. Since that time, she has
been dependent upon pain medication to
function; however, she finds it difficult to

10A Medrol Dosepak (methylprednisolone) is a steroid that prevents

the release of substances in the body that cause inflammation.
http://www.drugs.com/mtm/medrol-dosepak.html
11Pristiq is used in treating depression and anxiety.

http://www.webmd.com/drugs/2/drug-150251/pristiq-oral/details

5

See

get out of bed secondary to pain and is
unable to get out of her house most days
and, when she is able to get out, she cannot
tolerate it more than a couple of hours with
activity.
In short, Ms. Hare is unable to move
about and function without her pain
medications due to her multiple joint pains
and muscle pain secondary to her disease.
(Tr. 254).

On August 3, 2011, Dr. McKnight wrote the same

letter again but added the following sentence at the end:
“Because of these restrictions, she is unable to work for one
year” (Tr. 255).
On January 9, 2012, Lucille Williams, Psy.D., examined Hare
who complained of physical problems as well as panic attacks;
she stated, though, that she had not had an attack since taking
Xanax (Tr. 257-58).

Plaintiff did not appear anxious, seemed

euthymic, and was oriented in four spheres; recent and remote
memory were good.

Thought processes were grossly intact with no

loose associations, tangential, or circumstantial thinking;
insight, understanding, and judgment were good.
intelligence was estimated to be average.

Hare’s

The Psychologist’s

impression was Alprazolam Dependence, Panic Disorder without
Agoraphobia Controlled by Medication, and Dysthymic Disorder.
On February 1, 2012, Dr. Kevin Varden, an Internist, noted
good ROM in Hare’s neck; she had some right foot discomfort and
slight decreased sensation of the toes distally (Tr. 260-63,

6

278).

However, she had normal flexion, extension, and

dorsiflexion, and motor and sensory were intact.

Plaintiff had

mild tenderness in the right hip bursa to palpation.
normal.

Gait was

Hare had decreased extension with pain in her back, but

good ROM throughout all planes, limited to about fifteen
degrees; there was slight tenderness to palpation in the lower
back paravertebral area.

Dr. Varden’s impression was pain

syndrome, back pain syndrome, and probable fibromyalgia with
osteoarthritis by history.

The Doctor found no neurogenic or

major neurological-type complications and indicated that she
could perform “normal work-related activities, sitting some,
standing and walking okay, carrying light objects, etc.” (Tr.
261).

A right hip x-ray was normal.

On December 5, 2011, Dr. McKnight prescribed Xanax for
anxiety (Tr. 271).

On February 17, 2012, in a pre-op visit,

Hare was noted to be fatigued (Tr. 270).

On March 20, Ultram

and Lortab were prescribed for arthralgia (Tr. 269).
On July 16, 2012, Dr. Daniel Stubler examined Hare for
complaints of left arm tingling for two month; muscle spasms in
her calves, abdomen, and neck; hand tremors; and hip weakness
(Tr. 284-86).

Plaintiff was oriented in three spheres with

recent and remote memory, attention span, concentration,
language, and fund of knowledge grossly intact.
examination was normal.

Cranial nerve

Strength testing was 5/5 throughout;
7

Stubler did not detect any fatiguing in the proximal muscles;
there was normal bulk and tone of muscles throughout.
tendon reflexes were 2/4 throughout.

Deep

Plantar response was

downgoing and there was about a three beat of clonus on the
left.

Gait was normal.

Dr. Stubler’s impression was to rule

out cervical myopathy and neuromuscular disorder but he could
not entirely exclude a demyelinating disease; Hare had
connective tissue disease.
ordered more tests.

The Doctor prescribed Wellbutrin and

On August 6, Stubler tested Plaintiff for

motor nerve conduction; finding the results abnormal, he
concluded that Hare had mild bilateral Carpal Tunnel Syndrome
but no evidence for a left upper extremity plexopathy, myopathy,
C3-C8 radiculopathy or disorder of the neuromuscular junction
(Tr. 287-91).
On June 25, 2012, fourteen months since her previous exam
with him, Hare was seen by Dr. Hubley who noted that the
steroids had not been helpful; Plaintiff complained of left
shoulder pain and left arm numbness (Tr. 292).

The Doctor noted

full ROM in the neck, but there was impingement pain with
abduction and rotation in her shoulder; she had a tremor while
trying to pick something up.

Hubley prescribed Lortab and

recommended examination by a neurologist and rheumatologist.
This concludes the Court’s summary of the relevant evidence
of record.

8

Hare's first claim is that the ALJ did not accord proper
legal weight to the opinions, diagnoses and medical evidence of
her physician, Dr. McKnight (Doc. 9, pp. 8-10).

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);12 see
also 20 C.F.R. § 404.1527 (2014).
The ALJ summarized the medical history provided by Hare’s
treating physician, including his letter stating that she was
unable to work for a year, before making the following findings:
The undersigned finds that Dr.
McKnight’s statements are inconsistent with
the record as a whole, including physical
and neurological examinations as set forth
above and EMG/NCV that showed only mild
bilateral carpal tunnel syndrome and no
evidence for a left upper extremity
plexopathy, myopathy, C3-C8 radiculopathy or
disorder of the neuromuscular junction
(Exhibits 6F, 12F and 13F). The undersigned
further finds it significant that there is
no evidence that the claimant has seen a
rheumatologist for a diagnosis or treatment
since a positive ANA test alone does not
definitively indicate a diagnosis of
connective tissue disease or autoimmune
disorder. Further, Dr. McKnight’s
statements regarding the claimant‘s

12The 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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disabling pain appear to be overstated when
compared to physical examination findings
and her described activities of daily
living. For these reasons, the undersigned
finds Dr. McKnight’s opinions to be less
than fully credible, assigns little weight
and otherwise finds them not to be
persuasive. Furthermore, the undersigned
notes that whether an individual is disabled
is an administrative finding reserved to the
Commissioner, and thus, such opinions are
not binding or necessarily dispositive.
(Tr. 30).
The Court finds substantial evidence to support the ALJ’s
conclusion.

Hare points to her long-standing relationship with

McKnight (since 2003), but the Court notes his medical records
reveal nothing more than a series of check-off examination notes
with prescriptions for whatever Plaintiff requested.

McKnight

never provides any ROM measurements nor makes any attempt to
describe what Plaintiff can do.

The Doctor never notes any of

Hare’s daily activities while the ALJ pointed to many activities
in which Plaintiff testified that she engages (Tr. 24-25).

The

ALJ points to the evidence provided by Drs. Varden, Stubler, and
Hubley as support for his conclusions.

The Court concurs in his

assessment, finding this claim meritless.13
Plaintiff has also claimed that the ALJ did not properly
review evidence submitted to it following the ALJ’s decision

13The Court notes Plaintiff does not challenge the ALJ’s finding

that her own testimony of limitation and pain was not credible (Tr.
30, 31, 32).

10

(Doc. 9, pp. 10-11).

That evidence can be found at pages 293-

309 in the transcript.
It should be noted that "[a] reviewing court is limited to
[the certified] record [of all of the evidence formally
considered by the Secretary] in examining the evidence."
v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry

However, “new

evidence first submitted to the Appeals Council is part of the
administrative record that goes to the district court for review
when the Appeals Council accepts the case for review as well as
when the Council denies review.”

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).

Under

Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed
to consider, if such a claim is made, whether the Appeals
Council properly considered the newly-submitted evidence in
light of the ALJ’s decision.

To make that determination, the

Court considers whether the claimant “establish[ed] that:

(1)

there is new, noncumulative evidence; (2) the evidence is
'material,' that is, relevant and probative so that there is a
reasonable possibility that it would change the administrative
result, and (3) there is good cause for the failure to submit
the evidence at the administrative level."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
The evidence from Diagnostic and Medical Clinic shows that

11

Dr. Daren A. Scroggie examined Plaintiff on February 8, 2010 and
March 23, 2010 after having been referred by Dr. McKnight; he
diagnosed fibromyalgia, lumbago, and insomnia and prescribed
Lyrica14 and Ambien15 (Tr. 293-305).
On August 21, 2013, Dr. McKnight provided a treatment note
as well as a physical capacities evaluation (hereinafter PCE)
(Tr. 306-07).

On that same date, Drs. Stubler (Tr. 308) and

Hubley (Tr. 309) also provided PCE’s.
The Court finds that Dr. Scroggie’s medical notes are
cumulative to the other evidence of record.

Though Hare points

to the fibromyalgia diagnosis (Doc. 9, p. 11), the ALJ listed it
as one of Plaintiff’s severe impairments (Tr. 23).

The Court

further notes that Hare has provided no good reason for the
failure of this evidence to have been submitted earlier as it
easily pre-dates the ALJ’s decision of May 29, 2013.
The Court finds the three PCE’s submitted by McKnight,
Stubler, and Hubler lacking in relevance as they all post-date
the ALJ’s decision and give no indication that the projected
abilities/inabilities of Plaintiff relate back to the relevant
time period.

The Court finds no error in the Appeals Council’s

decision not to remand the evidence for consideration before the

14Lyrica is used for the management of neuropathic pain.

Error!

Main
 Document
 Only.Physician's Desk Reference 2517 (62 ed. 2008).
15AmbienError! Main Document Only. is a class four narcotic used

for the short-term treatment of insomnia. Physician's Desk Reference
2799 (62nd ed. 2008).
nd

12

ALJ.
Plaintiff has raised two claims in bringing this action.
Both 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 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 25th day of August, 2015.

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

13