Gladney v. Colvin
Filing
20
Order re: 1 Complaint filed by Royal Gladney stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/27/2016. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROYAL GLADNEY,
*
*
*
*
*
* CIVIL ACTION NO. 15-000171-B
*
*
*
*
*
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
ORDER
Plaintiff
judicial
Social
Royal
review
Security
of
Gladney
a
final
denying
his
(hereinafter
decision
claim
of
for
“Plaintiff”)
the
seeks
Commissioner
supplemental
of
security
income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381,
et
seq.
and
his
claim
for
disability
and
disability
insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401, et seq.
On June 8, 2016, the parties consented
to have the undersigned conduct any and all proceedings in this
case.
(Doc.
17).
Thus,
the
action
was
referred
to
the
undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule
of
Civil
Procedure
73.
Upon
careful
consideration
of
the
administrative record and the memoranda of the parties, it is
hereby
ORDERED
AFFIRMED.
that
the
decision
of
the
Commissioner
be
I.
Procedural History
Plaintiff filed his application for benefits on November
17, 2011.
(Tr. 173, 179).
Plaintiff alleged that he has been
disabled since September 30, 2011, due to back pain, respiratory
problems, carpal tunnel, and acid reflux. (Id. at 74, 223).
Plaintiff’s
request,
he
applications
was
granted
were
an
denied
and
administrative
upon
timely
hearing
before
Administrative Law Judge Angela L. Neel (hereinafter “ALJ”) on
June 11, 2013.
(Id. at 70).
Plaintiff attended the hearing
with his counsel and provided testimony related to his claims.
(Id. at 72-85).
A vocational expert (“VE”) also appeared at the
hearing and provided testimony.
2013,
the
ALJ
issued
an
Plaintiff is not disabled.
(Id. at 85-89).
unfavorable
decision
(Id. at 56).
On August 5,
finding
The Appeals Council
denied Plaintiff’s request for review on February 2, 2015.
at 1-4).
that
(Id.
Therefore, the ALJ’s decision dated August 5, 2013,
became the final decision of the Commissioner.
Having
exhausted
his
administrative
timely filed the present civil action.
remedies,
(Doc. 1).
Plaintiff
The parties
waived oral argument on June 8, 2016 (Docs. 16, 18), and agree
that this case is now ripe for judicial review and is properly
before
this
Court
pursuant
to
1383(c)(3).
2
42
U.S.C.
§§
405(g)
and
II.
Issue on Appeal
1. Whether the ALJ erred in rejecting the
opinions
of
Plaintiff’s
treating
physicians Willie White, M.D. and Walid
W. Freij, M.D., in favor of the opinion
of a one-time consultative examiner, Huey
Kidd, DO?
III. Factual Background
Plaintiff was born on
May 30, 1964, and was
forty-nine
years of age at the time of his administrative hearing on June
11, 2013.
and
(Tr. 74).
testified
that
Plaintiff has an eleventh grade education,
he
was
in
special
education
classes
throughout school. (Tr. 75-76). He last worked from January 2005
to September 30, 2011 at Gate Precast, a cement company, as a
sandblaster.
(Id. at 86, 212). He has a variety of other past
work, including working as a green chain off bearer at a lumber
company, as a groundskeeper, and as general construction worker.
(Id. at 86, 212).
Plaintiff reports that the pain in his back began in 2003,
the pain in his back began in 2005, and his breathing problems
began in 2011. (Id. at 245). Plaintiff testified that he has
carpal
tunnel
syndrome
in
both
hands.
(Id.
at
81,
82,
83).
Plaintiff also testified that his breathing problems occur when
he walks for long periods or smells any type of strong smells.
(Id.). Plaintiff further testified that he has had trouble with
his lower back for “probably about seven, eight years”, and that
3
his back problems occur when he has been standing or sitting for
long periods of time. (Id. at 83, 245).
Plaintiff reports that he lives at home with his family,
and
that
watching
his
TV,
daily
spending
activities
time
with
include
his
sitting
family,
around
sitting
on
and
the
porch, and walking around a little outside. (Id. at 79, 201,
205). Plaintiff reports that his condition affects every aspect
of his personal care because it is hard to use his hands, and
occasionally, he needs help getting dressed or has difficulty
buttoning his clothes 1 . (Id. at 80-81, 85, 202, 256.) Plaintiff
also testified that he drives, but he takes someone along with
him if he is driving a long distance. (Id. at 204).
Plaintiff testified that Dr. Freij spoke with him about
having surgery for his carpal tunnel; however, the surgery was
expensive and Plaintiff did not have insurance. (Id. at 81).
Plaintiff further testified that Dr. White has advised him that
he might need back surgery; however, he does not have insurance.
(Id. at 84).
IV.
Analysis
1
Plaintiff also reported that his hand braces make it difficult
for him to handle money, and that he has difficulty turning door
knobs, writing with a pencil or typing on a keyboard. (Tr. 204205).
Plaintiff further testified that he wears the brace on
his right hand every day to help with the pain, and that he also
wears it when he goes to bed. (Id. at 81). He wears a brace on
his left hand only when needed. (Id.).
4
A.
Standard of Review
In reviewing claims brought under the Act, this Court’s
role
is
a
limited
determining
1)
one.
whether
The
the
Court’s
decision
review
of
the
is
limited
to
Secretary
is
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
2
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.
1986).
The
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s
findings
of
fact
affirmed if they are based upon substantial evidence.
must
be
Brown v.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,
703
F.2d
1233,
1239
(11th
Cir.
1983)
(holding
substantial evidence is defined as “more than a scintilla, but
less
than
a
preponderance”
and
consists
of
“such
relevant
evidence as a reasonable person would accept as adequate to
support
a
conclusion.”).
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.
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
2
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
5
B.
Discussion
An individual who applies for Social Security disability
benefits
must
prove
404.1512, 416.912.
his
or
her
disability.
20
C.F.R.
§§
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”
42
U.S.C.
§§
404.1505(a),
416.905(a).
provide
five-step
a
423(d)(1)(A);
The
see
Social
sequential
also
20
Security
evaluation
§§
regulations
process
determining if a claimant has proven his disability. 3
3
C.F.R.
for
20 C.F.R.
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner 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 claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
6
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since September
30, 2011, the alleged onset date, and that he has the severe
impairments of obesity; asthma; and moderate bilateral carpal
tunnel syndrome, right worse than left 4 .
(Tr. 58).
The ALJ
further found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The
ALJ
(Id.).
concluded
that
Plaintiff
retains
the
residual
functional capacity (hereinafter “RFC”) to perform light work
with the following limitations: Plaintiff can lift and carry 20
pounds occasionally and 10 pounds frequently; can sit, stand,
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
4
The ALJ found that the Plaintiff has the following non-severe
impairments:
acid
reflux;
borderline
right
paratracheal
indeterminate
node;
diastolic
dysfunction,
mild
tricuspid
regurgitation, mild pulmonary hypertension, mild pulmonary
insufficiency, and trace mitral regurgitation; minimal right
nephrolithiasis with 3 mm diameter calculus in lower right
ureter; urolithiasis; elevated PSA and enlarged prostate; and
remote history of ruptured bowel secondary to a stab wound. (Tr.
59). The ALJ further found that there was no objective evidence
to support that the claimant has any type of mental disorder.
(Id. at 58)
7
and walk 6 hours each; can push and pull as much as he can lift
and carry; frequent exposure to right hand controls; frequent
handling
of
right
hand
controls;
no
climbing
ladders
or
scaffolds; and no balancing, stooping, kneeling, crouching and
crawling. (Id. at 59). The ALJ further limited the Plaintiff to
work with no exposure to humidity, wetness, and extreme cold or
heat. (Id.) The ALJ also limited Plaintiff to simple, routine,
and repetitive tasks with simple work-related decisions. (Id.).
Utilizing the testimony of a VE, the undersigned concluded that
considering
and
work
experience, he is unable to perform his past relevant work
(Id.
at 63).
Plaintiff’s
RFC,
his
age,
education
He further concluded that there are jobs existing in
the national economy that Plaintiff is able to perform, such as
“Inserting Machine Operator”; “Checker I/Greeter”, and “Produce
Weigher”,
all
light
and
unskilled
positions.
(Id.
Thus, the ALJ concluded that Plaintiff is not disabled.
at
64).
(Id. at
64-65).
The
Court
now
considers
the
foregoing
in
light
record in this case and the issues on appeal.
1.
Issue
A. Whether the ALJ erred in rejecting the
opinions
of
the
treating
physician,
Willie White, M.D. and Walid W. Freij,
M.D., a neurologist, in favor of the
opinion
of
a
one-time
consultative
examiner, Huey Kidd, D.O.?
8
of
the
In
this
case,
Plaintiff
argues
that
the
ALJ
erred
in
rejecting the opinions of his treating physicians, Dr. Willie
White, M.D, set forth in an “Ability to Work” questionnaire and
a “Physical Functional Capacity” questionnaire (Tr. 438; 439441) and that of Dr. Walid W. Freij, M.D., a neurologist, set
forth in a “Physical Functional Capacity Assessment” (Tr. 444447)
in
favor
consultative
of
the
examiner.
opinion
(Tr.
of
Huey
365-378).
Kidd,
(Doc.
DO,
13
a
at
one-time
2-3).
The
Commissioner counters that the medical evidence does not support
Dr. White or Dr. Freij’s opinion that Plaintiff is unable to
work,
and
their
opinions
are
inconsistent
with
the
physical
findings and sparse treatment history included in the record.
(Doc. 14 at 4-5). Having carefully reviewed the record in this
case,
the
Court
concludes
that
Plaintiff’s
claim
is
without
merit.
As part of the disability determination process, the ALJ is
tasked
with
examining,
weighing
and
the
opinions
non-examining
and
findings
physicians.
In
of
treating,
reaching
a
decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.
See Winschel v.
Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
The failure to do so is reversible error.
See Williams v.
Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
9
When weighing the opinion of a treating physician, the ALJ
must give the opinions “substantial weight,” unless good cause
exists for not doing so.
Costigan v. Commissioner, Soc. Sec.
Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 (11th
Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of Soc.
Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).
The opinion of “a
one-time examining physician — or psychologist,” on the other
hand,
is
not
physician.
entitled
to
the
same
deference
as
a
treating
Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,
2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).
An ALJ is also “required to consider the
opinions of non-examining state agency medical and psychological
consultants because they ‘are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation.’”
(11th
Cir.
Milner v. Barnhart,
2008)
404.1527(f)(2)(i)).
examining
sources
examining sources.”
275 Fed. Appx. 947, 948
(unpublished)
“The
when
ALJ
they
may
do
(citing
rely
not
on
20
C.F.R.
opinions
conflict
with
of
§
non-
those
of
Id. (citing Edwards v. Sullivan, 937 F.2d
580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
non-examining
physicians,
testimony
any
of
medical
good
cause
source
10
exists
when
it
to
is
discredit
contrary
to
the
or
unsupported by the evidence of record.
Phillips v. Barnhart,
357 F.3d 1232, 1240 (11th Cir. 2004).
“Good cause may also
exist
where
a
doctor’s
opinions
are
merely
conclusory,
inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”
Hogan v. Astrue, 2012 U.S.
Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
764
F.2d
834,
835
(11th
Cir.
1985)
Sryock v. Heckler,
(per
curiam)
(citation
omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
209,
212
(11th
Cir.
2010)
(The
ALJ
may
reject
any
medical
opinion if the evidence supports a contrary finding.).
With respect to Plaintiff’s back pain, the record reflects
that during a September 2011 visit with Dr. White, Plaintiff
reported that he had hurt his back and neck in a motor vehicle
accident. (Tr. 437). He was prescribed Lortab. (Id.)
It does not appear that Plaintiff sought any treatment for
his back in 2012.
His next visit with Dr. White was on January
5, 2013, when Plaintiff presented to the J. Paul Jones emergency
room complaining of lower back and leg pain. (Id. at 411). On
that date, Dr. White noted on examination that Plaintiff had a
decreased
range
of
motion
in
his
lumbosacral
spine
with
a
paraspinal muscle spasm, but no paresthesia. (Id.). Dr. White
diagnosed
Plaintiff
with
spasmodic
11
lower
back
pain,
and
prescribed
Decadron,
Depomedrol,
Dydroxyzine,
and
Diazepam
followed by Toradol and Flexeril. (Id.).
At some point, Dr. White completed a “Physical Functional
Capacity Assessment”. (Id. at 439-441). In the assessment, Dr.
White opines that due to Plaintiff’s back pain, he cannot carry
anything,
but
he
can
lift
40
pounds
or
more,
at
a
maximum
frequency of 1/3 of an 8 hour day. 5 (Id.). Dr. White further
indicates that Plaintiff can stand and/or walk for a total of 2
to 3 hours per day, but for no more than 30 to 40 minutes
without
interruption.
(Id.).
Dr.
White
also
opined
that
Plaintiff can only sit for a total of 2 to 3 hours a day, but
for no more than 1 hour at a time. (Id. at 440). Dr. White
further opined that Plaintiff can never climb, balance, stoop,
crouch, kneel, or crawl, and that Plaintiff’s ability to reach,
handle, push, and pull are affected by his impairments. (Id.).
Dr. White opined that Plaintiff has environmental restrictions,
including
Plaintiff
working
is
unable
around
to
heights
climb
steps
or
or
vibrations,
and
ladders
“keep
or
that
up”
anything greater than 40 pounds. (Id. at 441).
Dr. White also completed an “Ability to Work” form wherein
he opines that Plaintiff would be unable to work for eight hours
5
The date on which Dr. White prepared this document is not
clear. The top of the document bears fax dates of June 4, 2013,
and June 11, 2013. (Tr. 439-441).
12
a day, five days a week due to his lower back pain and muscle
spasms. (Id. at 438). He also opines that Plaintiff has been
disabled since on or before September 30, 2011, and that his
condition has lasted or is expected to last at least twelve
months. (Id.)6.
The record reflects that Plaintiff’s treatment for carpal
tunnel began on April 2, 2007, when Dr. White referred Plaintiff
to Dr. Freij for persistent pain in his left hand and wrist.
(Id. at 284). Plaintiff reported pain and soreness mostly in his
left thumb region, but also in the left wrist, with associated
tenderness and numb sensation. (Id.). He also reported numbness
that kept him awake at night, and difficulty gripping with the
left hand due to soreness. (Id.).
observed
5/5
motor
power
Upon examination, Dr. Freij
throughout,
DTRs
2/5
all
over,
unremarkable finger to nose and heel to shins exam, unremarkable
gait, and negative Tinel’s sign bilaterally. (Id. at 285). Dr.
Freij’s assessment was carpal tunnel syndrome (suggested by the
history
arthritis
of
numbness
(affecting
and
the
repeated
first
6
awakening
metacarpal
at
night)
phalangeal
and
joint).
The final treatment notes of Dr. White contained in the record
are dated February 17, 2014. (Tr. 32). This is after the ALJ’s
decision. The notes reflect that Plaintiff was seen for
“palpating” lower back pain that would not allow him to rest.
(Id.). Dr. White noted that Plaintiff was still taking Lortab,
but he did not bring the medication with him to the appointment.
(Id.). No new treatment was discussed. (Id.).
13
(Id.).
A NCV/EMG test for the left upper extremity was performed
on that date. (Id. at 286). Upon reviewing the results, Dr.
Freij indicated that he was also sending Plaintiff for x-rays of
his left hand and wrist, with a special concentration on his
left thumb. (Id.). Dr. Freij indicated that he would see the
Plaintiff
after
the
workup
for
re-evaluation
and
treatment.
(Id.). Upon reviewing the NCV/EMG test, Dr. Freij noted that the
test revealed evidence of a mild bilateral Median neuropathy
(median nerve entrapment at wrist) affecting sensory components
without evidence of denervation, and mild left Ulnar neuropathy.
(Id. at 289). Also, an X-Ray performed on that date showed no
evidence of fracture or dislocation, and no evidence of acute or
bony trauma to the left hand. (Id. at 290).
Plaintiff next saw Dr. Freij on
January 21, 2008. (Tr.
283). Dr. Freij noted that Plaintiff reported that he still had
pain in his hands, that Plaintiff was given Naproxen and wrist
braces at the last visit, that those measures apparently were
not helping, but Plaintiff had failed to show up for his followup. (Id.). Upon examination, Dr. Freij observed some swelling in
Plaintiff’s
hands,
and
noted
that
Plaintiff’s
progressed since the previous year. (Id.).
condition
had
Dr. Freij also noted
that Plaintiff reported some pain when squeezing and making a
fist, and that Plaintiff’s strength was 5/5. (Id.). Dr. Freij’s
14
assessment
was
bilateral
carpel
tunnel
syndrome,
with
progression since last year. (Id.) The treatment plan was to
repeat the NCV/EMG test, prescribe Lyrica, and consider surgery
if the Lyrica did not work.(Id.).
Another NCS/EMG test was performed on February 18, 2008.
(Tr. 291-294). The
test results again revealed evidence of mild
bilateral carpal tunnel syndrome (median nerve entrapment at the
wrist)
affecting
denervation.
sensory
evidence
Ulnar
of
sensory
(Id.).
components
There
denervation,
also
across
neuropathy
was
the
as
well
without
evidence
wrist
as
and
evidence
evidence
of
mild
elbow
of
of
right
without
mild
left
sensory Ulnar neuropathy across the wrist without evidence of
denervation.
(Id.).
Dr.
Friej
noted
that
Plaintiff
would
be
referred to Dr. Harris to consider surgery for the left median
nerve release. (Id.).
Plaintiff’s next saw Dr. Friej more than a year later on
September 21, 2009. Dr. Freij noted that Lyrica and Lortab were
helping Plaintiff ‘quite a bit’, but that his pain had become
worse upon running out of Lyrica and Lortab. (Id. at 282). Dr.
Friej also noted that Plaintiff’s strength was 5/5, and that
Plaintiff wanted to delay surgery until he had enough vacation
time.
(Id.).
Plaintiff
was
prescribed
Lyrica
and
Lortab
as
needed, and Dr. Friej noted that it would be necessary to repeat
the nerve conduction exam if Plaintiff opted for surgery next
15
year because it would have been nearly two years since the last
test was conducted. (Id.)
Plaintiff did not see Dr. Freij in 2010 or 2011. His next
visit with Dr. Freij occurred on January 16, 2012. (Tr. 381).
Plaintiff again complained of swelling, pain, and numbness in
his
hands.
On
examination,
Dr.
Freij
noted
that
Plaintiff’s
strength was 5/5, and that there was swelling in his hands.
(Id.)
He
diagnosed
Plaintiff
with
carpal
tunnel
syndrome
bilaterally, prescribed Lortab and gave Plaintiff wrist braces.
(Id.).
Plaintiff
indicated
that
he
was
willing
to
pursue
surgery, but was unable to do so because of a lack of insurance.
(Id.).
Follow
up
appointments
occurred
January 14, 2013. (Tr. 380, 393).
on
July
16,
2012
and
Dr. Freij noted that Lortab
and the wrist braces had been helping Plaintiff, and that he
should continue using them. (Id.). Upon examination, Plaintiff’s
strength was noted to be 5/5, and his hand grips were normal.
(Id. at 380, 381, 393).
During Plaintiff’s June 10, 2013 visit, Dr. Freij noted
that Plaintiff reported that his hands had been doing relatively
well
until
he
was
mowing
experiencing
numbness,
examination,
Plaintiff
his
lawn
tingling,
was
having
in
and
some
June
pain.
“give
2013,
and
began
(Tr.
35).
Upon
way”
with
his
hands, but his hand strength was 5/5, and his gait was normal
16
(Id.). Dr. Freij diagnosed Plaintiff with “bilateral moderate
carpal tunnel syndrome”, and discussed switching Plaintiff from
Lortab to Ultram for his pain. (Id.).
On the same day, Dr. Freij completed an “Ability to Work”
form, and opined that Plaintiff is unable to work eight hours a
day, five days a week due to his carpal tunnel syndrome and
ulnar and radial neuropathy. (Tr. 443). He further opined that
Plaintiff has been disabled since September 30, 2011, and that
his condition had lasted or was expected to last at least 12
months. (Id.). Dr. Freij noted that his findings were based on
Plaintiff having nerve damage affecting both hands, and causing
pain, numbness, and tingling. (Id.).
Dr.
Freij
Assessment,
also
wherein
completed
he
a
opined
Physical
that
Functional
Plaintiff
can
Capacity
carry/lift
between 10 and 20 pounds. (Tr. 444). He further opined that
Plaintiff
kneel,
could
and
frequently
could
climb,
occasionally
balance,
crawl.
(Tr.
stoop,
445).
crouch,
He
or
further
opined that Plaintiff’s ability to reach, handle, feel, push,
and pull would be affected by his carpal tunnel and ulnar radial
neuropathy, and that Plaintiff should avoid temperature extremes
and vibrations. (Tr. 447). Dr. Freij further observed that work
that requires the use of Plaintiff’s hands or repetitive motions
at his wrists, and work that requires carrying and lifting would
be impacted by Plaintiff’s physical limitations. (Id.).
17
Plaintiff’s last two visits with Dr. Freij were in December
2013 and June 2014 7 . (Tr. 15, 34). Dr. Freij noted that the
nerve tests in 2008 revealed evidence of mild bilateral carpal
tunnel syndrome affecting sensory and sensory components without
evidence of denervation, mild right sensory ulnar neuropathy,
left
sensory
neuropathy
ulnar
mild.
neuropathy
Dr.
Freij
and
thought
bilateral
it
“most
sensory
radial
likely”
that
Plaintiff’s “carpal tunnel was worse” since it had been five
years since the nerve tests. On examination, Plaintiff’s motor
strength was 5/5 and no atrophy was noted in the APBs 8 .
Dr.
Freij noted that Vicoprofen 7.5 mg seemed to be helping although
it was a little expensive for Plaintiff; thus, the medicine was
changed to Vicoden 7.5 mg.(Id.)
Plaintiff was advised to avoid
using his hands in a repetitive motion, to wear a wrist brace,
and to take NSAID pm. (Id. at 15). Plaintiff again indicated
that he did not want to consider surgery because he did not have
insurance. (Id. at 34).
Upon review, the undersigned finds that the ALJ had good
cause for rejecting
Dr. White and Dr. Freij’s opinions that
7
These visits were after the ALJ rendered her decision in
August 2013.
8
The abductor pollicis brevis (“APB”)is a muscle in the hand
that
functions
as
an
abductor
of
the
thumb.
See
https://nervesurgery.wustl.edu/ev/hand/median/thenarbranch/Pages
/AbductorPollicisBrevis.aspx
18
Plaintiff cannot perform sustained work because of his back pain
and
carpal
tunnel.
Dr.
White’s
opinion
that
Plaintiff
is
disabled is undermined by the spare treatment for back problems
and his treatment records. Plaintiff’s back problems date back
to
a
motor
vehicle
accident
in
September
2006.
While
he
requested in 2006 to be referred to a neurosurgeon for lower
back pain and was scheduled for an MRI, there are no further
records regarding any treatment for back pain until three years
later,
in
September
2009.
(Tr.
309,
310).
In
2009,
he
was
prescribed a variety of medicine, including Lortab, Decadron,
Depo-Medrol, Flexeril, and Mobic. (Id.).
MRIs were performed in June 2010, January 2011, and June
2011. (Tr. 301, 315-316, 322-323). Dr. Joseph H. Hagood noted in
June 2010 that Plaintiff’s alignment was somewhat straightened,
his vertebral body heights were maintained, and his disc spaces
appeared
normal,
though
there
was
some
sclerosis
about
the
sacroiliac joint that Dr. Hagood believed could indicate some
early
arthritic
change.
(Id.
at
321-322).
Aside
from
these
findings, Dr. Hagood indicated that the lumbar spine appeared
otherwise unremarkable. (Id.). Records dated the day after this
MRI
indicate
that
there
was
a
small
shallow
broad-based
protrusion of disc slightly eccentric to right of midline at L4L5, and a tiny central protrusion of disc at L5-SI. (Id. at
301).
Radiology
records
completed
19
in
January
and
June
2011
indicate that Plaintiff had normal lumbar spine, and there was
essentially no change in the results since the June 2010 scan.
(Tr.
323,
322).
Dr.
Hagood
noted
that
if
Plaintiff
had
any
radicular pain, an MR should be obtained to evaluate the discs.
(Id. at 322). As noted supra, Plaintiff reported back pain to
Dr. White during a September 2011 visit, and was prescribed
Lortab.
He did not seek any treatment for back pain in 2012,
and only saw Dr. White once for back pain in 2013, and in 2014.
Dr. White noted that Plaintiff had a decreased range of motion
in his lumbosacral spine with a paraspinal muscle spasm, but no
paresthesia.
He diagnosed Plaintiff with lower back pain and
prescribed medication. (Tr. 32, 411, 437, 439-441). These sparse
records,
and
repeated
‘normal’
and
‘unremarkable’
expressed
in
Dr.
notations
White’s
are
that
at
the
odds
Physical
lumbar
with
spine
the
Functional
was
opinions
Capacity
Assessment, and the Ability to Work form wherein he opined that
Plaintiff is unable to work 8 hours 5 days a week9.
the
ALJ
had
good
cause
for
rejecting
these
Accordingly,
opinions
of
Dr.
White.
9
Dr. White’s opinions are also at odds with those of Dr.
Freij, who upon examining Plaintiff, opined that Plaintiff can
lift and carry up to twenty pounds, and that he has no
limitations in standing or walking. (Tr. 444). It was the ALJ’s
duty to resolve conflicts in the evidence, and she did so in
this case. Richardson v. Perales, 402 U.S. 389, 399, 91 S. Ct.
1420, 28 L. Ed. 2d 842 (1971).
20
The ALJ likewise had good cause for rejecting Dr. Freij’s
opinion that Plaintiff is disabled due to his carpal tunnel
syndrome. While Plaintiff has been diagnosed with carpal tunnel
syndrome and ulnar and radial neuropathy based on nerve studies,
his treatment with Dr. Freij was infrequent and conservative.
While
Dr.
Freij’s
treatment
notes
reflect
that
surgery
was
discussed with Plaintiff, but declined due to lack of insurance,
the
notes
employed,
also
reflect
Plaintiff
that
declined
earlier,
surgery
while
while
still
he
gainfully
built
up
his
vacation. (Tr. 282).
Moreover, Dr. Freij’s treatment notes reflect that during
Plaintiff’s July 2012 visit, Dr. Freij observed that Plaintiff’s
wrist braces and Lortab were helping his condition. And, in June
2013, Dr. Freij’s treatment notes reflect that Plaintiff’s hands
were doing “relatively well” until he mowed his lawn, and this
triggered numbness, tingling and pain in his hands. Dr. Freij’s
treatment
notes
reflect
that
his
examinations
of
Plaintiff
repeatedly showed full strength in Plaintiff’s upper and lower
extremities and that hand gripping was normal. (Tr. 34, 282,
380,
381,
393).
The
records
also
reflect
that
during
Plaintiff’s visit to Dr. Fahoum for shortness of breath
10
10
on
Asthma is noted by the ALJ to be a severe impairment. (Tr. 58).
The Plaintiff does not dispute any finding of the ALJ with
regards to his asthma.
21
September
20,
2011,
Dr.
Fahoum
noted
normal
digits
and
no
tenderness to indicate any arthritis. (Id. at 338). Dr. Fahoum’s
treatment records dated March 20, 2014 and May 15, 2014, also
reflect that upon examination, Plaintiff had full strength in
his upper and lower extremities and normal digits. (Id. at 17,
19). This evidence, including Dr. Freij’s own treatment records,
demonstrate
that
the
ALJ
had
good
cause
for
rejecting
Dr.
Freij’s opinions that Plaintiff is unable to work.
Moreover,
Dr.
Huey
Kidd,
D.O.,
examined
Plaintiff
on
February 14, 2012 at the request of the Agency and he found that
Plaintiff had 5/5 grip strength bilaterally, a full range of
motion in the upper extremities and 5/5 strength and full range
of motion in the lower extremities. His findings are consistent
with multiple treatment notes in the record made by both of
Plaintiff’s
treating
professionals.
(Tr.
physicians
367,
see
id.
and
at
17,
the
19,
other
338,
medical
389).
He
further found that Plaintiff is able to heel walk, able to toe
walk, is able to bend and touch his toes, and is able to stand
without difficulty. (Id.). Tests performed showed a reduction in
FVC that would suggest a restrictive process, though Dr. Kidd
noted that the presence of restriction should be confirmed by
measuring
long
volumes
11
.
(Id.
11
at
369).
Dr.
Kidd
diagnosed
Dr. Kidd notes that Plaintiff had difficulty performing
the FVC properly and consistently. (Tr. 370).
22
Plaintiff with asthma and carpal tunnel syndrome. (Id. at 367).
Based on the foregoing, the Court finds that the ALJ had
good cause to assign no weight to the opinions of Dr. White and
Dr. Freij that Plaintiff was unable to work.
Further,
ALJ’s
there
finding
positions
was
that
substantial
Plaintiff
identified
by
ALJ.
the
RFC
RFC
is
a
to
support
perform
to
the
the
of
what
Plaintiff can do despite his or her credible limitations.
See
20 C.F.R. § 404.1545.
the
has
evidence
measure
Determinations of a claimant’s RFC are
reserved for the ALJ, and the assessment is to be based upon all
the relevant evidence of a claimant’s remaining ability to work
despite
his
or
her
substantial evidence.
impairments,
and
must
be
supported
by
See Beech v. Apfel, 100 F. Supp. 2d 1323,
1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546 and Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)); Saunders v.
Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 2012 WL 997222, *4
(M.D. Ala. March 23, 2012).
Once the ALJ has determined the
Plaintiff’s RFC, the claimant bears the burden of demonstrating
that
the
evidence.
1985).
To
ALJ’s
decision
is
not
supported
by
substantial
See Flynn v. Heckler, 768 F.2d 1273, 1274 (11th Cir.
Plaintiff has failed to meet his burden in this case.
determine
Plaintiff’s
RFC,
the
ALJ
utilized
the
testimony of a vocational expert at the hearing. (Tr. 85). The
ALJ presented the VE with a hypothetical situation in which an
23
individual is limited to work with a light exertion level and
the following limitations: frequent use of his right hand for
hand controls and handling, no climbing ladders or scaffolds, no
balancing, kneeling, or crawling, and no work around unprotected
heights, moving mechanical parts, and the humidity and wetness
and
extreme
irritants.
temperatures
(Id.
at
or
86-87).
the
The
heat,
and
hypothetical
no
respiratory
individual
was
further limited to simple, routine, repetitive tasks and making
simple work related decisions. (Id.). The VE testified that such
an individual could not perform any of the Plaintiff’s past
work, but could perform other work including inserting machine
operator (unskilled light work at 2 SVP), checker I or ‘greeter’
at a retail store (unskilled light work at 2 SVP), and produce
weigher (unskilled light work at 1 SVP). (Id. at 87-88). The
hypothetical posed to the VE was consistent with the medical
evidence discussed above, and the ALJ’s decision was directly
based upon the testimony that followed.
Based on the evidence set forth in detail herein, the Court
finds that the substantial evidence in this case support’s the
ALJ’s finding that Plaintiff can perform a range of light work,
with
the
stated
restrictions.
Accordingly,
Plaintiff’s
claim
must fail.
V.
Conclusion
For
the
reasons
set
forth
24
herein,
and
upon
careful
consideration of the administrative record and memoranda of the
parties,
it
is
hereby
ORDERED
that
the
decision
of
the
Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 27th day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
25
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