Chapman v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER that this action be REVERSED and REMANDED to the Social Security Administration for further proceedings to include, at a minimum, a supplemental hearing for a determination of plaintiff's ability to work. Signed by Magistrate Judge Katherine P. Nelson on 12/10/2015. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TRENNIS W. CHAPMAN,

:
:
:
:
:
:
:
:
:
:

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

CIVIL ACTION 15-0085-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, 12).

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), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b)
(see Doc. 21).
23).

Oral argument was waived in this action (Doc.

After considering the administrative record and the

memoranda of the parties, it is ORDERED that the decision of the
Commissioner be REVERSED and that this action be REMANDED for
further administrative 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, Plaintiff was
forty-seven years old, had completed a ninth-grade education
(Tr. 42), and had previous work experience as a construction
worker and laborer (Tr. 56).

Chapman alleges disability due to

arthritis of the right knee, a history of degenerative disk
disease of the lumbar spine, possible ulnar nerve entrapment of
the right hand, and obesity (Doc. 12 Fact Sheet).
The Plaintiff applied for SSI benefits on February 7, 2012,
alleging a disability onset date of August 15, 2010 (Tr. 19,
128-36).

An Administrative Law Judge (ALJ) denied benefits,

determining that although he could not return to his past
relevant work, Chapman was capable of performing specific light
work jobs (Tr. 19-34).

Plaintiff requested review of the

hearing decision (Tr. 14-15), but the Appeals Council denied it

2

(Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Chapman

(1) The ALJ did not properly consider the medical

evidence, substituting his opinion for those of the doctors; (2)
the ALJ improperly determined that several of his impairments
were not severe; (3) the ALJ failed to consider his obesity; and
(4) he is unable to perform light work (Doc. 12).
responded to—and denies—these claims (Doc. 17).

Defendant has
The Court will

now summarize the relevant evidence of record.
Treatment records from the Federal Bureau of Prisons show
that Chapman was treated, generally, for morbid obesity, GERD,
asthma, and hypertension (see generally Tr. 263-564).

On

November 5, 2010, Plaintiff was seen for his mental health after
having gained some “inner comfort” from taking Amitriptyline1 and
Risperdal;2 he had a diagnosis of unspecified psychosis and was
estimated to have a GAF score of 71-100 (Tr. 373-74).

On March

24, 2011, Chapman complained of bilateral knee pain, but had
full range of motion (hereinafter ROM) in both knees (Tr. 298,
492-94).

The pain was thought to be exacerbated by prolonged

standing and was suggested to be secondary to osteoarthritis and

1Amitriptyline, marketed as Elavil, is used to treat the symptoms

of depression. Physician's Desk Reference 3163 (52nd ed. 1998).
2
 Risperdal is used “for the management of the manifestations of

psychotic disorders.” Physician's Desk Reference 1310-13 (52nd ed.
1998).

3

worsened by his obesity.

On March 30, 2011 x-rays of the knees

were negative except for moderate degenerative joint disease,
greatest in the patellofemoral (Tr. 550).

On June 20, Plaintiff

received a corticosteroid injection for bilateral knee pain (Tr.
485-88).

On December 7, 2011, a chest x-ray was negative (Tr.

543).
On February 27, 2012, Chapman went to University of South
Alabama Medical Center (hereinafter USAMC) where he was
diagnosed to have diabetes mellitus type 2 and was treated for
uncontrolled hypertension (Tr. 568-92).

A chest x-ray showed no

acute chest disease with lung changes consistent with chronic
airways disease.
On March 10, Plaintiff was admitted to Mobile Infirmary
Medical Center, through the Emergency Room, for a week following
complaints of dizziness, syncope, general weakness, emesis, and
profound dehydration (Tr. 593-609).

On musculoskeletal

examination, Chapman had normal ROM with no edema or tenderness
(Tr. 600).

Dr. Prince C. Uzoije diagnosed him to have a urinary

tract infection and adjusted his overall medication regimen.
On April 11, Plaintiff was seen at Franklin Primary Health
Center, Inc. (hereinafter Franklin PHC) for complaints of
chronic lower back pain and bilateral knee pain (Tr. 619-23).
lumbar spine x-ray showed lower lumbar facet arthropathy and
marked degenerative changes of the L5-S1 disc; x-rays of the

4

A

knees showed mild degenerative changes bilaterally (Tr. 623).
On May 11, 2012, non-examiner Whitney McCants, a Single
Decision Maker (hereinafter SDM) for the Social Security
Administration reviewing the evidence of record as of that date,
completed a residual functional capacity evaluation indicating
that Chapman was capable of lifting and carrying up to ten
pounds frequently and twenty pounds occasionally (Tr. 67-68, 72;
see generally Tr. 60-72).

Plaintiff could stand or walk and sit

six hours a day; he was unlimited in his ability to use hand and
foot controls.

Plaintiff was capable of climbing, stooping,

kneeling, and crawling occasionally and balancing frequently; he
would have to avoid working around machinery and heights.
On May 11, 2012, went to Franklin PHC for complaints of
bilateral knee and lower back pain; he was advised to use a cane
(Tr. 637-39).
On May 23, 2012, Kenneth Randall Starkey, Psy.D., performed
a consultative psychological evaluation and found Plaintiff to
be of low average range of intellectual functioning; insight and
judgment seemed generally adequate (Tr. 625-28).

Chapman’s

diagnosis was Antisocial Personality Disorder; a secondary
diagnosis was Adjustment Disorder with Depressed Mood in full
remission.

Starkey reported a GAF of 64.3

He thought

3A GAF score between 61 and 70 indicates “[s]ome symptoms OR some

difficulty in social, occupational, or school functioning, but

5

Plaintiff’s prognosis was guarded, but that his motivation was
good.

As for functional capacity, the Psychologist stated:
Mr. Chapman’s ability to understand,
remember, and carry out simple/concrete
instructions appears good (from a
psychological perspective). His ability to
work independently (vs. with Close
Supervision) appears adequate (especially
for simple/concrete tasks he has been
instructed to complete). His ability to
work with supervisors, co-workers and the
general public appears marginal (at the
present time). His ability to work with job
pressures also appears marginal. If awarded
disability benefits, Mr. Chapman should be
able to manage these benefits without the
need for assistance.

(Tr. 628).
On August 13, 2012, Plaintiff went to Franklin PHC for back
and left ankle pain that he rated as ten on a ten-point scale;
Lortab4 was prescribed (Tr. 633-36).

On November 16, Chapman

returned to Franklin PHC for treatment of his hypertension,
diabetes, and left ankle pain; the ankle was tender, with
minimal swelling, and moderate pain with motion (Tr. 652-57).
The lumbar spine was tender with moderate pain on motion.
was antalgic.

Gait

An x-ray of the left ankle demonstrated arthritic

change involving the tibial talar joint and calcaneal spurring.

generally functioning pretty well, has some meaningful interpersonal
relationships.” See
https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm

4Error! Main Document Only.Lortab is a semisynthetic narcotic

analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).

6

On January 16, 2013, Plaintiff complained of back and joint
pain, but made no mention of his ankle; there was no joint
swelling or muscle weakness (Tr. 648-51).

On March 18, right

shoulder examination demonstrated tenderness and acute pain in
the AC joint with crepitus; strength tests of the supraspinatus
and external rotation were abnormal (Tr. 641-45).
ROM.

Left shoulder examination was normal.

Pain limited

An x-ray of the

left shoulder confirmed prior surgical history;5 a chest x-ray
showed no acute disease (Tr. 646).
On January 22, 2013, Plaintiff was admitted to Mobile
Infirmary for eight nights, through the Emergency Room, after a
week of shortness of breath, by Dr. Uzoije; his discharge
diagnosis included, among other things, acute exacerbation of
chronic obstructive pulmonary disease and atrial fibrillation
with rapid ventricular response (Tr. 666-725).
have mild congestive heart failure.

He was noted to

On discharge, Chapman was

to follow up with Franklin and cardiology doctors.
On February 28, Chapman was examined by Dr. Stanley N.
Thornton of Cardiology Associates, complaining of shortness of
breath, left shoulder pain, and numbness in his right hand pinky
finger; Plaintiff reported no limb pain or swelling or muscle
weakness or aches (Tr. 659-65).

Chapman had an irregular heart

5On May 3, 2015, Plaintiff stated that he had never had surgery

on his left shoulder (Tr. 733).

7

rate; musculoskeletal examination was normal.

Dr. Thornton’s

assessment was obstructive sleep apnea, coronary artery disease,
atrial fibrillation, hypertension, and diastolic and systolic
congestive heart failure for which his prescription medication
regimen was changed.

On April 12, 2013 Plaintiff returned to

see Dr. Thornton, complaining of shoulder pain he asserted to be
dislocated; he was referred to an orthopedic doctor (Tr. 81014).

The cardiovascular examination was normal.
On May 3, Plaintiff went to Franklin PHC for left shoulder

(rotator cuff) pain (Tr. 731-34).

Examination showed left

shoulder tenderness and pain with ROM as well as right knee
tenderness; he walked with a cane.
On May 21, Cardiologist Thornton completed a heart
questionnaire indicating that Plaintiff had a class II heart
condition that would moderately limit his ability to work (Tr.
726-27).

The Doctor declined to say whether or not Chapman

could work an eight-hour day.

He noted that fatigue was a

factor but would not prevent functioning in everyday activities
or work; physical activity would increase fatigue, but would not
prevent adequate functioning.

Thornton also stated that the

fatigue would not require reclining or napping.
On May 24, Plaintiff was admitted to Mobile Infirmary, for
three days, for complaints of shortness of breath and a cough
for four days; he denied chest pain, but exhibited leg swelling,

8

arthralgias and left shoulder pain (Tr. 748-809).

The

musculoskeletal exam demonstrated some edema, normal ROM, and no
tenderness.

Chapman was discharged, in stable condition with

the following diagnoses:

congestive heart failure, acute asthma

exacerbation, diabetes mellitus, hypertension, and hypokalemia;
Plaintiff was told to follow up with his doctor at Franklin in a
week.

On June 23, Chapman returned to the Infirmary for left

shoulder pain he rated at six; there was no numbness or
radiation (Tr. 740-47).

On exam, he had normal ROM.

He was in

stable condition and diagnosed to have chronic pain syndrome;
Ultram6 was prescribed (Tr. 728-30).
On June 28, 2013, Dr. Andre J. Fontana, Orthopaedic
Surgeon, examined Chapman for left shoulder discomfort, lower
back pain, and a history of other impairments; he walked without
assistance (Tr. 737-39).

In the cervical spine, Plaintiff had

45º flexion, 45º rotation to the right and left, and 15º lateral
flexion to the left and right; grip strength was 5/5.

Chapman

had full ROM in the left shoulder with some popping and a little
tenderness over the acromioclavicular joint.

Heel and toe gait

were good, though Plaintiff walked with a slight waddling gait;
motor was 5/5.
supine.

Straight leg raise was 90º sitting and 70º

ROM in the left hip was 0 degrees of internal rotation;

6Error! Main Document Only.Ultram is an analgesic “indicated for

the management of moderate to moderately severe pain.”
Desk Reference 2218 (54th ed. 2000).

9

Physician's

right hip had full range of internal and external rotation.
There was minimal crepitus in his right knee with no apparent
swelling.

Fontana’s impression was right knee arthritis,

history of degenerative disk disease of the lumbar spine,
possible ulnar nerve entrapment of the right hand, and possible
AC joint injury of the left shoulder.

The Orthopaedic stated

that Chapman “should not do any pushing or pulling with heavy
arm controls of the left arm.

No lifting over 20 pounds, no

climbing, no kneeling, no crawling.
machinery” (Tr. 737).

He cannot be around moving

The Doctor said that he had considered

the evidence provided in making his assessment.

On July 15,

2013, Fontana completed a physical capacities evaluation in
which he indicated that Plaintiff could sit, stand, and walk for
eight hours at a time and during the day; he could lift and
carry up to twenty-five pounds occasionally and five pounds
frequently (Tr. 736).

Chapman could perform simple grasping in

either hand, fine manipulation in the left hand, but could not
use arm controls in either arm; the Orthopaedic did not express
an opinion as to whether or not Plaintiff could use leg
controls.

Chapman could reach frequently, bend and squat

occasionally, but could never crawl or climb; he was mildly
restricted in driving automotive equipment, moderately
restricted in being around moving machinery, and totally
restricted in being around unprotected heights.

10

This concludes the Court’s summary of the evidence.
In bringing this action, Chapman claims that the ALJ did
not properly consider the medical evidence, substituting his
opinion for those of the doctors in fashioning his residual
functional capacity (hereinafter RFC) (Doc. 12, pp. 2-6).
Plaintiff specifically takes issue with the weight given to Dr.
Fontana and non-examiner McCants.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

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.
(2015).

20 C.F.R. § 416.945(a)(3)

The Court further notes 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);7 see also 20 C.F.R. § 416.927.
In his determination, the ALJ found that Chapman had the
“residual functional capacity to perform light work as defined

7The 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.

11

in 20 C.F.R. 416.967(b)8 with additional limitations.

The

claimant can do work that does not require climbing, kneeling,
crawling, or pushing or pulling.

The claimant can do work that

permits him to avoid hazards, dangerous machinery, and heights”
(Tr. 25).

After summarizing the medical evidence, the ALJ gave

significant weight to the conclusions of Cardiologist Thornton
and Orthopaedic Surgeon Fontana, great weight to SDM McCants,
moderate weight to Clinical Psychologist Starkey, and little
weight to Psychologist Hinton (Tr. 28-31).

The ALJ also found

that Chapman’s testimony of pain and limitations were not
credible to the extent alleged (Tr. 31-32), a finding
unchallenged in this action.
In addressing the evidence provided by Fontana, the ALJ
specifically found “that the record [was] not consistent with
the conclusion that the claimant [was] limited to only
occasionally lifting and carrying six to ten pounds” (Tr. 30).
The balance of the ALJ’s evaluation of Fontana’s opinions is as

8

“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” (footnote not in original).

12

follows:

The claimant’s clinical signs have been
consistent with the conclusions that the
claimant retained a significant portion of
his functionality. Specifically, the
undersigned notes that the record includes
clinical signs of only “a slight” waddling
gait, a “good” toe and heel gait, intact
sensation, five of five strength of his
lower extremities, only “a minimal amount”
of crepitus regarding his right knee, no
appearance of swelling, no atrophy of the
right shoulder and normal right shoulder
strength, and 90 degrees of movement during
a straight-leg raising examination when in a
sitting position and 70 degrees during a
straight-leg raising examination when in a
supine position (Exhibits B10F/2-6 and
B16F). As the record is generally
consistent with these medical opinions, the
undersigned gives significant weight to
these medical opinions.
(Tr. 30).
The Court notes, as Plaintiff has pointed out, that the
ALJ’s finding that Chapman is capable of frequently lifting and
carrying of ten pounds places him squarely within the light work
requirements and at odds with Dr. Fontana’s conclusion.

If the

ALJ had accepted the Orthopaedic’s conclusion, Plaintiff would
be only capable of, at most, sedentary work.
The Court agrees with Plaintiff that the overall record
provides evidence that supports Fontana’s conclusion and that is
contrary to the ALJ’s conclusion.

Specifically, an x-ray in

April 2011 demonstrated moderate degenerative joint disease in

13

the knees bilaterally (Tr. 550).

An x-ray of the lumbar spine

in April 2012 demonstrated marked degenerative changes; an x-ray
of the knees showed mild degenerative changes bilaterally (Tr.
623).
39).

In May 2012, Chapman was advised to use a cane (Tr. 637An x-ray of the left shoulder in March 2013 demonstrated

previous surgery though there had been none (Tr. 646, 733).

An

examination at Franklin in March 2013 showed tenderness,
crepitus, and abnormal strength tests in the supraspinatus and
external rotation strength tests of the right shoulder; though
there was full ROM, pain was a limiting factor (Tr. 643).
These records, when considered cumulatively, cast serious
doubt on the ALJ’s rejection of Dr. Fontana’s conclusion that
Chapman can lift and carry only up to five pounds on a frequent
basis.

Though the ALJ accepted the majority of the Orthopaedic

Surgeon’s opinions, the rejection of this limitation is not
supported by substantial evidence.

This conclusion gains

strength in the fact that it is provided by an examining
specialist who provided the only physical capacities evaluation
in this record.9
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evi

9The Court further notes that SDM McCants concluded that

Plaintiff could lift and carry only ten pounds, but that conclusion
was based on evidence pre-dating much of the evidence cited herein as
support for Fontana’s decision and was made without examination.

14

dence.

Therefore, it is ORDERED that the action be REVERSED and

REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for a
determination of Chapman’s ability to work.

Judgment will be

entered by separate Order.

DONE this 10th day of December, 2015.

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

15