Weir v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be REVERSED and this action be REMANDED for further proceedings. Signed by Magistrate Judge Bert W. Milling, Jr on 11/16/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KELLEY E. WEIR, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 15—0052-CG-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling
denying a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13).

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. 21).
argument was waived in this action (Doc. 20).

Oral

After considering

the administrative record, the memoranda of the parties, and
oral argument, it is ORDERED that the decision of the
Commissioner be REVERSED and that this action be REMANDED for
further procedures not inconsistent with the Orders of this
Court.

1

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).

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, Weir was twentythree years old, had completed a high school education (Tr. 46),
and had no previous work experience (see Tr. 32).

Plaintiff

alleges disability due to obesity, lumbar spondylosis with
chronic low back pain, polyarthralgias, anxiety, sleep apnea,
depression, alcohol independence, and restrictive pulmonary
disease (Doc. 13 Fact Sheet).
Weir applied for SSI on December 6, 2011, asserting
disability as of that date (Tr. 26, 138-46).

An Administrative

Law Judge (ALJ) denied benefits, determining that there were
specific sedentary jobs that Plaintiff could perform (Tr. 2634).

Weir requested review of the hearing decision (Tr. 22),

but the Appeals Council denied it (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not

2

supported by substantial evidence.
that:

Specifically, Weir alleges

(1) The ALJ’s finding of Plaintiff’s residual functional

capacity (hereinafter RFC) is incorrect; (2) the ALJ did not
properly consider the opinions and conclusions of his
physicians; and (3) the ALJ improperly discounted Plaintiff’s
testimony (Doc. 13).

Defendant has responded to—and denies—

these claims (Doc. 16).

The relevant evidence of record

follows.1
On February 15, 2011, Psychologist John W. Davis examined
Weir who had normal conversation but showed some anxiety and
depression; his emotional responses were appropriate to thought,
content, and situation (Tr. 270-74).

Memory was good in the

present and recent and remote past; there were no loose
associations or confusion.

Judgment and insight were good;

intelligence was thought to be average.

The Psychologist noted

“depressive symptoms such as appetitive disturbance (grossly
overweight), sleep disorder, psychomotor retardation, decreased
energy, and feelings of guilt or worthlessness;” his diagnosis
was Depression, NOS (Tr. 273).

Davis indicated that Weir’s

“ability to understand and remember simple instructions, carry
out simple instructions, and make judgments on simple workrelated decisions [was] mildly impaired” (Tr. 274).

The

1The

Court will not review medical evidence that pre-dates Weir’s
asserted disability date, unless required to address the claims
brought herein.

3

Psychologist further found that his ability to understand,
remember, carry out, and make judgments on complex work-related
decisions was moderately impaired; he was also moderately
impaired in his ability to interact appropriately with the
public, supervisors, and co-workers and in responding
appropriately to changes in routine settings (Tr. 274).
On October 18, 2011, Dr. Christopher H. Dyas noted Weir’s
weight of 489 pounds, standing at six foot, one inch, and a Body
Mass Index of 64 for which he recommended gastric bypass surgery
(Tr. 276-78, 280-83).
On February 2, 2012, Dr. Jonathan T. Miller, Internist,
examined Weir for bilateral foot and joint pain for which he was
taking an NSAID (Tr. 290-91).

He had normal range of motion

(hereinafter ROM) in his neck and all major joints with no
tenderness; he had normal motor and sensory function.
was normal with no distress.

Breathing

He weighed in at 490 pounds and

stood six foot, four inches tall and was encouraged to eat
nutritiously and exercise.

A week later, examination results

were the same; Plaintiff was taught stretching exercises for his
foot pain and prescribed Ultracet2 as needed (Tr. 288-89).
Weir’s morbid obesity increased his joint pain and hypertension.
On March 15, 2012, Psychologist Lucile T. Williams examined

2Ultracet

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

4

Weir and found his affect appropriate to content of thought and
conversation; he did not appear anxious, but seemed mildly
depressed (Tr. 297-98).

Plaintiff was oriented in four spheres;

immediate, recent, and remote memory were all good.

Thought

processes were grossly intact with no loose associations,
tangential, or circumstantial thinking; Weir was not confused.
Insight and self-understanding were fair while judgment was
poor; intelligence was thought to be average.

The Psychologist

noted Plaintiff’s admission of drinking a lot one night each
weekend over a four-year period; she diagnosed Depressive
Disorder NOS.
On March 1, 2012, Dr. Miller found no changes but noted
that Weir could not get insurance approval for the gastric
bypass (Tr. 299-300).

On April 25, Plaintiff complained of

frequent headaches and fatigue over the prior two weeks for
which he was given Fioricet;3 the exam was otherwise normal (Tr.
301-02).

On June 1, though ROM in all major joints was good

with no tenderness noted, Lortab 7.54 was prescribed for back and
leg pain due to severe morbid obesity (Tr. 304-05).

Weight loss

and improved diet compliance were reemphasized; Miller limited
standing and walking.

That same date, the Doctor completed a

3Fioricet

contains a barbiturate and relaxes muscle contractions
involved in tension headaches. http://www.drugs.com/fioricet.html
4Lortab is a semisynthetic narcotic analgesic used for “the
relief of moderate to moderately severe pain.” Physician's Desk
Reference 2926-27 (52nd ed. 1998).

5

pain form indicating that Weir experienced pain frequently that
would distract him from adequately performing work and that pain
medicine would cause side effects, imposing mild limitations
(Tr. 303).
Following an examination on June 12, 2012, Dr. Charles B.
Rodning, Professor at the University of South Alabama Department
of Surgery, wrote a letter to Blue Cross Blue Shield of Alabama
indicating that Plaintiff was in serious need of gastric bypass
surgery (Tr. 307, 317).

“The ravages of his [super morbid

obesity] will become evermore severe and debilitating, if
operative intervention is not performed.

We think it would be

unconscionable to deny operative intervention” (id. at 307).

On

July 17, Rodning re-evaluated Weir, with multiple somatic
complaints, and prescribed requested narcotics and anti-anxiety
medications (Tr. 306).
On November 7, 2012, Dr. Miller saw Plaintiff for recurrent
back and knee pain; he was stable with back tenderness (Tr. 32122).

Dietary compliance and restrictions were discussed,

reviewed, and reemphasized.
On August 6, November 26, December 27, 2012, and January 3,
2013, Dr. Rodning wrote prescriptions for Lortab; on October 31,
2012, he prescribed Xanax;5 on November 13 and 20 and December 4

5Xanax

is a class four narcotic used for the management of
anxiety disorders. Physician's Desk Reference 2294 (52nd ed. 1998).

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and 18, 2012, Rodning prescribed both medications (Tr. 323-31).
On January 10, 2013, Dr. John Couch performed a lumbar
paravertebral facet joint injection with fluoroscopy, finding no
signs of lumbar spine infection; there was low back pain on
extension and flexion (Tr. 332-34, 341-43).

Polyarthralgias

were noted.
On January 7, 2013, Dr. Miller treated Weir for sinus and
bronchitis symptoms; he was no in respiratory distress (Tr. 33536).

Plaintiff had full ROM and no tenderness in his back.
On March 5, 2013, Dr. Thomas Dempsey, Orthopaedic, examined

Weir who complained of chronic back pain; he had no radicular
symptoms (Tr. 339-40).

Plaintiff weighed 520 pounds with a BMI

of 65.

Weir walked with a waddle; he had 50% ROM in the lumbar

spine.

Plaintiff claimed six-to-eight on a ten-point pain

scale; back x-rays revealed no abnormalities.

Dempsey

prescribed Ultram6 and Naprosyn7.
On March 11, 2013, Dr. Miller completed a physical
capacities evaluation (hereinafter PCE) in which he indicated
that Weir could sit for four hours at a time and total in a
workday; though he could stand/walk for less than an hour at a

6Ultram

is an analgesic “indicated for the management of moderate
to moderately severe pain.” Physician's Desk Reference 2218 (54th ed.
2000).
7Naprosyn, or Naproxyn, “is a nonsteroidal anti-inflammatory drug
with analgesic and antipyretic properties” used for the relief of mild
to moderate pain. Physician's Desk Reference 2458 (52nd ed. 1998).

7

time, he could do that for four hours total (Tr. 337).
Plaintiff could lift fifty pounds frequently and one hundred
pounds occasionally; he could carry twenty-five pounds
frequently and one hundred pounds occasionally.

He had no

problems with simple grasping, pushing and pulling of arm
controls, or fine manipulation; Miller did not state whether or
not Plaintiff could use foot controls.

He could frequently

crawl and reach, occasionally bend and squat, but never climb;
he was mildly limited in activities at unprotected heights and
being around moving machinery.

On a form completed the same

day, Dr. Miller stated that Weir’s pain was the same as reported
nine months earlier, but his medication side effects were now
expected to be severe and limit his effectiveness (Tr. 338; cf.
Tr. 303).
At the evidentiary hearing, Plaintiff testified that he was
twenty-three years old, lived with his mother and grandparents,
and weighed five hundred, twenty pounds (Tr. 43-46; see
generally Tr. 43-58).

Weir finished high school and had taken a

semester of computer drafting and design in college, but quit
because he could not sit through the classes.

He worked one day

at Domino’s but could not stand on his feet all day so he quit.
He took naps three or four times a day because his medications

8

made him drowsy; he took Hydrocodone,8 Lortab, Klonopin,9 and
Xanax.

Dr. Miller is his primary physician.

Plaintiff did not

have the willpower to diet and it hurt too much to exercise; he
could walk fifteen, stand twenty, and sit thirty minutes.

Sleep

and medication were the only things that relieved his pain; on a
ten-point scale, his pain rated eight without medicine and six
with it.

Weir experienced sharp pain all over but specifically

mentioned his back, knees, and feet.
concentrate.

Plaintiff could not

He took the garbage out and folded clothes every

now and then; he made his bed every once in a blue moon but
never did his laundry.

Generally, Weir took medications and

slept or watched TV; he did not drive because it scared him.
When he turned twenty-one, he would drink one or two weekend
nights a month so he could have friends to hang out with, but he
did not drink a lot presently.

He took medication for

hypertension, but it was not under control which caused
headaches three or four times a week.

He took anti-inflammatory

medicines because his hands swelled and shook a lot.
This concludes the relevant evidence of record.10

8Hydrocodone

is a narcotic analgesic used “for the relief of
moderate to moderately severe pain.” Physician's Desk Reference 292627 (52nd ed. 1998).
9Klonopin is a class four narcotic used for the treatment of
panic disorder. Physician's Desk Reference 2732-33 (62nd ed. 2008).

10The Court notes that additional evidence from Drs. Miller and
Couch was submitted to the Appeals Council, but was not considered by
the ALJ (see Tr. 344-55; cf. Tr. 5, 37-38). As Plaintiff has raised

9

In bringing this action, Weir’s first two claims are that
the ALJ’s RFC determination is incorrect because the ALJ did not
properly consider the opinions and conclusions of two examining
sources (Doc, 13, pp. 7-15).

Plaintiff specifically references

his treating physician, Dr. Miller, and Psychologist Davis.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546 (2015).

That decision

cannot be based on “sit and squirm” jurisprudence.
Heckler, 734 F.2d 513, 518 (11th Cir. 1984).

Wilson v.

However, the Court

also notes that the social security regulations state that
Plaintiff is responsible for providing evidence from which the
ALJ can make an RFC determination.

20 C.F.R. § 404.1545(a)(3).

It should also 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."

Oldham v. Schweiker, 660 F.2d 1078, 1084

(5th Cir. 1981);11 see also 20 C.F.R. § 404.1527 (2015).

In her decision, the ALJ reviewed the medical evidence and
gave “great weight to Dr. Miller’s functional restrictions” as
they were consistent with his treatment notes and Weir’s

no claim that the Appeals Council failed to properly consider it (Doc.
13), the Court need not consider the evidence herein.

11The 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.

10

testimony (Tr. 31).

Psychologist Davis’s assessment was given

greater weight, over that of Dr. Sherman,12 because the latter
had performed a physical examination and concluded that Weir
could not work for mental reasons, while Davis, a mental
specialist, reached no such conclusion (Tr. 31).

The ALJ found

that Weir had
the residual functional capacity to perform
medium work as defined in 20 C.F.R.
416.967(c)13 except the claimant can stand
and walk no more than 30 minutes at one
time, and no more than four hours in an
eight hour day. Sitting is unrestricted
with the usual breaks. The claimant can
occasionally operate foot controls, climb
ramps, stoop, and crouch. He should never
climb ladders, scaffolds, ropes, and stairs,
kneel, crawl, work at unprotected heights or
with dangerous machinery, work in
temperature extremes, near humidity and
wetness, or exposed to concentrated
environmental pollutants such as dust,
chemicals, or fumes. The claimant must have
minimal changes in work setting and
routines. He is able to understand to carry
out simple one or two-step instructions
involving a few concrete variables in
standardized situations. He should avoid
tasks involving a variety of instructions or
tasks.
(Tr. 29-30).

12

Dr. Alan J. Sherman’s report was not summarized herein as it was
unnecessary for the claims raised (Tr. 248-54).
13“Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds.
If someone can do medium work, we determine that he or she can also do
sedentary and light work.” 20 C.F.R. § 404.1567(c) (2015) (footnote
added).

11

A comparison of this RFC determination with Dr. Miller’s
PCE form indicates two differences bothering Plaintiff:

(1) The

Doctor found Weir able to sit for four hours a day while the ALJ
found “sitting unrestricted with the usual breaks;” and (2) the
ALJ did not include Miller’s reaching “only frequently”
restriction in the RFC.
Plaintiff’s assertions are correct.

The Court finds the

ALJ’s sitting language incorrectly characterized the Doctor’s
conclusion.

The ALJ attributed a half-day more of sitting to

Weir’s RFC than Dr. Miller found him capable.

The Court further

finds that the ALJ also incorrectly suggested, by omission, that
Plaintiff could continuously reach.14
Weir also points to differences in Psychologist Davis’s
conclusions and those of the ALJ as incorporated into her RFC
determination.

Specifically, while Davis found that Plaintiff’s

ability to interact with the public, supervisors and co-workers
was moderately impaired, the ALJ made no finding in this regard.
The ALJ then specifically credited Miller’s functional
restrictions report as the basis for the RFC determination, even
though she got two of the elements wrong.

The ALJ also gave

“greater weight”15 to Davis’s conclusions, but failed to point

14Performing

an activity frequently means doing it only one-third
to two-thirds of a day. Social Security Ruling 83-10. This is much
different than doing it continuously.

15The Court acknowledges that giving “greater weight” to one

12

out what she found deficient in them.

The ALJ used Miller’s and

Davis’s conclusions, minus specific limitations, in her
hypothetical questions to the Vocational Expert (hereinafter VE)
and relied on that testimony to determine that there were
specific jobs that Weir could perform (Tr. 33, 59-61).

That

determination is not supported by substantial evidence in light
of its failure to include the limitations found by Miller and
Davis and not rejected by the ALJ.
Plaintiff also claims that the ALJ improperly discounted
his testimony regarding his pain and limitations (Doc. 13, pp.
15-19).

The thrust of this argument, though, is that the ALJ

ignored Dr. Miller’s two pain evaluations.
The standard by which the Plaintiff'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."

Holt v. Sullivan,

921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler,

examiner’s conclusions over the “little weight” given to those of
another examiner provides little guidance for the reviewer to
understand how much weight is being given to whom. Nevertheless, the
ALJ is required to "state specifically the weight accorded to each
item of evidence and why he reached that decision." Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The ALJ has not done
this here.

13

782 F.2d 1551, 1553 (11th Cir. 1986)).

The Eleventh 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 substantial
evidence."

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. 1986).
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).
In her determination, the ALJ found that Weir’s impairments
could cause some of his symptoms, but that his “statements
concerning the intensity, persistence and limiting effects of

14

these symptoms are not entirely credible” (Tr. 32).
three reasons for this determination:

She gave

(1) Weir’s hearing

testimony was not fully credible; (2) his activities of daily
living were inconsistent with a finding of disability; and (3)
the severity of his pain had no medical support in the record
(Tr. 32).

It is the third reason that gives the Court pause for

consideration.
Dr. Miller provided two different pain forms indicating
that Plaintiff’s pain would distract him from adequately
performing work (Tr. 303, 338).

In the more recent form, the

Doctor indicated that Weir’s medication regimen would cause
severe side effects, limiting his effectiveness (Tr. 338).

The

ALJ did not acknowledge either of these forms in finding
Plaintiff’s allegations of pain and limitation non-credible.
This determination was made in spite of finding that Dr.
Miller’s PCE was “consistent with [his] treatment notes, and the
claimant’s testimony of his back and knee pain” (Tr. 31).

The

ALJ’s determination of Plaintiff’s pain is not supported by
substantial evidence because the ALJ chose to ignore evidence in
the record.
Weir has brought three different claims in this action.
All three have merit because the ALJ ignored evidence in the
record she purportedly credited in finding against Plaintiff.

15

The ALJ’s failure means that her decision is not supported by
substantial evidence.
The Court must, however, strike a cautionary note as it
does not find Weir disabled.

Dr. Miller’s PCE form suggests

that there might be jobs that Weir can perform.

However, the

ALJ’s decision fails to do what is necessary for the Court to
reach that conclusion.
Therefore, it is ORDERED that the action be REVERSED and be
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding Plaintiff’s pain, limitations, and ability
to work.

Judgment will be entered by separate Order.

DONE this 16th day of November, 2015.

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

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