Waite v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out Signed by Magistrate Judge Bert W. Milling, Jr on 12/30/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHAWN K. WAITE,

:
:
:
:
:
:
:
:
:
:

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

CIVIL ACTION 15-0196-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling denying claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 12).
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), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc.
19).

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

After

considering the administrative record and 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

1

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, Waite was
thirty-four years old, had completed a tenth-grade education
(Tr. 44), and had previous work experience as a car mechanic,
electrician, and carpenter (Tr. 47-48).

Plaintiff alleges

disability due to degenerative disc disease (Doc. 12 Fact
Sheet).
Plaintiff protectively applied for disability benefits and
SSI on April 12, 2012 and April 18, 2012, respectively (see Tr.
22, 131-42).

An Administrative Law Judge (ALJ) denied benefits,

determining that although he could not perform any of his past
relevant work, Waite was capable of doing a full range of
sedentary work (Tr. 22-31).

Plaintiff requested review of the

hearing decision (Tr. 14-15), but the Appeals Council denied it
(Tr. 4-9).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

2

Specifically, Waite alleges

that:

(1) The ALJ improperly found his testimony non credible;

(2) the ALJ did not properly develop the record; (3) the ALJ
improperly determined that he could perform a full range of
sedentary work; and (4) the Appeals Council did not properly
consider newly-submitted evidence (Doc. 12).

Defendant has

responded to—and denies—these claims (Doc. 15).

The relevant

evidence of record follows.
On August 18, 2011, Dr. Charles Todd Stokley, a family
practitioner, examined Waite for low back pain; there was trace
blood in his urine analysis (Tr. 245).

On November 15,

Plaintiff was experiencing pain in his right posterior back and
flank area; Stokley prescribed Lorcet1 and ordered CT
examinations that demonstrated non-obstructive calculi in the
left kidney and prostate stones (Tr. 219-20, 244).
On December 9, Dr. Joe M. Schultz, with Urology & Oncology
Specialists, examined Waite for blood in his urine; normal gait
and station were noted (Tr. 216-18).

The diagnosis was chronic

prostatitis for which he was given antibiotics.

On January 9,

2012, Plaintiff complained of severe, daily, increasing pain in
the penis, scrotum, and testicles that he rated at seven on a
ten-point scale; Dr. Donald D. Kidd, diagnosed dysuria and

1Lorcet is a narcotic used to relieve moderate to severe pain.

See http://www.webmd.com/drugs/2/drug-15828/lorcet-10-650-oral/details

3

prescribed Celebrex2 (Tr. 213-14).
On January 17, 2012, Dr. Stokley saw Waite again for back
pain and noted tenderness over his lower coccyx and in the base
of his scrotum (Tr. 243).

He ordered a CT of the sacrum and

coccyx that showed normal curvature and anatomic appearance with
no evidence of fracture; a destructive lesion could not be ruled
out, though, because of radiographic over-penetration (Tr. 247).
A CT of the pelvis on January 20 revealed spondylolysis
with spondylolisthesis at L5-S1 with a disc bulge and no clear
demonstration of nerve impingement; further notation indicated
prostatomegaly with stones (Tr. 235).

On February 9, Dr. James

Antinnes, Orthopaedic Surgeon, examined Waite for low back pain,
radiating into the left leg, over the prior six weeks; he
assessed chronic lumbago and prescribed Lortab3 (Tr. 225-27,
269).

On February 16, an MRI of the lumbar spine showed Grade I

spondylolisthesis of L5 on S1 due to chronic bilateral
spondylolysis with relatively mild foraminal stenosis worse on
the right; there was also mild disc bulging with endplate spur
effacing the thecal sac without cord deformity (Tr. 229).

An

MRI of the cervical spine demonstrated mild degenerative change,

2Error!
 Main
 Document
 Only.Celebrex is used to relieve the signs and

symptoms of osteoarthritis, rheumatoid arthritis in adults, and for
the management of acute pain in adults. Physician's Desk Reference
2585-89 (58th ed. 2004).
3Error! 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).

4

but no disc herniation, canal stenosis, or neural displacement
(Tr. 228).

On March 8, 2012, Plaintiff received a lumbar

epidural steroid injection (Tr. 233-34).

On March 26, Dr.

Antinnes noted the MRI results and the injection and prescribed
a Medrol4 Dosepak as well as another injection that was
administered on April 5 (Tr. 222-24, 231-32).
On April 20, Dr. Stokley examined Waite for a painful rash
on the thoracic spine, diagnosed as shingles (Tr. 242).
In a form completed for the Social Security Administration
on April 30, Waite stated the following:
I have severe pain, and numbness in
legs mainly in left side. When I wake up in
the morning it takes a while to get proper
movement of legs. Throughout the day I
change my positions from sit[t]ing, lying,
or walking whatever I need to do to minimize
the pain. I use warms baths and heating pad
to get bet[t]er rest at bedtime.
(Tr. 166, 173).

Plaintiff also stated that he could not lift,

bend, or stand for long periods of time (Tr. 169); he did not
lift anything heavier than a plate (Tr. 171).
On May 3, Dr. Antinnes saw Plaintiff for continued pain and
talked with him about surgery (Tr. 251-54).

On July 5, the

Doctor performed an L5 Gill laminectomy, a partial L4

4A 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

5

See

laminectomy, a segmental instrumentation, posterior spinal
fusion, and transforaminal lumbar interbody fusion at L5-S1 (Tr.
259-60).

Waite tolerated the procedure well with no

intraoperative complications noted.

On August 6, 2012, Dr.

Antinnes noted that Plaintiff reported that he was doing fine
with no leg pain; there was still back soreness, but it was
improving daily (Tr. 281-85).
On September 18, Dr. Hurley W. Knott, a medical nonexaminer who reviewed the record in existence as of that time,
completed a physical residual functional capacity evaluation
(hereinafter RFC) indicating that Waite was capable of lifting
and carrying ten pounds frequently and twenty pounds
occasionally; he could stand/walk and sit each for six hours
during an eight-hour day (Tr. 263-68).

Waite was unlimited in

his ability to use hand and foot controls; he could frequently
climb ramps or stairs, balance, kneel, crouch, and crawl,
occasionally stoop, but could never climb a ladder, rope, or
scaffolds.

Plaintiff had no limitations seeing, hearing, or

speaking, or in using his hands for manipulation.

Waite should

avoid concentrated exposure to extreme cold or vibration and all
exposure to machinery or heights.
On October 8, Waite reported to Dr. Antinnes that he had
been doing well until two weeks earlier when he started
experiencing left hip pain, causing him to stop walking; x-rays

6

demonstrated no hardware malfunction (Tr. 282-83).

The Surgeon

thought a nerve had been irritated and prescribed a steroid pack
and Toradol,5 to be followed with prescriptions for Mobic6 and
Zanaflax.7
Waite underwent thirteen physical therapy sessions from
November 8 through December 19, 2012, consisting of moist heat,
ultrasound, and massage (Tr. 270-80).

At the onset, Plaintiff

reported his pain as ranging from six-to-ten on a ten-point
scale; though pain improved throughout the course, it was not
alleviated.
On January 8, 2013, Dr. Antinnes noted that Waite had “a
positive FABER[]8 and femoral thrust even on the right side.
This elicited left-sided [Sacroiliac] joint pain . . . even more
prevalent when [the Doctor] did a FABER[]on the left” (Tr. 285).
These tests, in addition to a drop leg test, “reproduced the
symptoms that [Plaintiff had] on a most regular basis” (id.).
Antinnes noted some radicular complaints in the left leg, though

5Toradol is prescribed for short term (five days or less)

management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).
6Error!
 Main
 Document
 Only.Mobic is a nonsteroidal anti-inflammatory

drug used for the relief of signs and symptoms of osteoarthritis and
rheumatoid arthritis. Physician's Desk Reference 855-57 (62nd ed.
2008).
7Error!
 Main
 Document
 Only.Zanaflax “is a short-acting drug for the

acute and intermittent management of increased muscle tone associated
with spasticity.” Physician's Desk Reference 3204 (52nd ed. 1998).
8FABER is an acronym for flexion, abduction, external rotation,

and extension of the hip. It is a clinical test used to identify the
source of pain (ilipsoas, groin or inguinal, or sacroiliac joint. See
http://medical-dictionary.thefreedictionary.com/FABER+test

7

not as severe as in the joint; an injection was given in the
joint on the left.
At the evidentiary hearing, Plaintiff, acting pro se,
testified that he selected his disability onset date of January
13, 2012 because that was the date of the last work check he
received (Tr. 39, 47).

Waite drove once a week to get things

from the convenience store; he could dress and groom himself,
but did no housecleaning (Tr. 49).

Plaintiff did no grocery

shopping, cooking, laundry, or yard work (Tr. 50).

Waite’s

problem was his back pain, still the same as it was, eight weeks
after surgery (Tr. 50).

This concludes the Court’s summary of

the evidence.
In bringing this action, Waite first claims that the ALJ
improperly found his testimony of pain and limitation was not
credible (Doc. 12, pp. 14-16).

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

The Eleventh Circuit Court of Appeals has also held

8

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) (2015).
The ALJ held that Waite’s impairments could cause symptoms,
but his “statements concerning the intensity, persistence, and
limiting effects of these symptoms [we]re not entirely credible”
(Tr. 29).

The ALJ went on to find that “the medical record

[was] consistent with the conclusion that the claimant’s

9

conditions only limited him regarding his ability to stand and
walk, although the record supports the conclusion that he
retained a significant portion of his ability to walk” (Tr. 29).
The ALJ noted Waite’s surgery and that he had reported to his
Surgeon that he was doing better—although there were lapses in
the recovery—afterwards; he further noted Dr. Antinnes’s finding
that the hardware was in position and that his expectation that
Waite’s nerve irritation would calm down (Tr. 29; cf. Tr. 283).
The Court finds substantial support for the ALJ’s
conclusion.

First, the medical records do not support the

severe restriction of activities claimed by Waite; no doctor of
record recorded the limitations suggested by Plaintiff.

While

the record indicates that Waite was not pain-free, it does not
provide the necessary support for this Court to conclude that
the ALJ’s finding is in error.
Plaintiff next claims that the ALJ did not properly develop
the record.

More specifically, Waite asserts that the ALJ

should have ordered a consultative orthopaedic examiner (Doc.
12, pp. 16-17).

The Eleventh Circuit Court of Appeals has

required that "a full and fair record" be developed by the ALJ
even if the claimant is represented by counsel.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).

Cowart v.
However, the ALJ

“is not required to order a consultative examination as long as
the record contains sufficient evidence for the [ALJ] to make an

10

informed decision.”

Ingram v. Commissioner of Social Security

Administration, 496 F.3d 1253, 1269 (11th Cir. 2007) (citing
Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)).
The Court notes that Dr. Antinnes, an orthopaedic surgeon,
provided the evidence most relevant to Waite’s claim of
disability.

Plaintiff’s dissatisfaction with his own doctor’s

records does not establish the need for the ALJ to have sought
the opinion of another physician.
In another but different argument concerning the record,
Waite seems to hold the ALJ responsible for not seeking out
medical records of another examining doctor, Dr. Kim (Doc. 12,
pp. 16-17).

The record demonstrates that two of Kim’s exams

took place after the evidentiary hearing and before the ALJ’s
determination was entered (Tr. 299-304; cf. Tr. 19) though they
were not submitted for consideration until after the ALJ had
rendered his decision (Tr. 298).

The Court notes that social

security regulations state that a claimant is responsible for
providing evidence from which the ALJ can make a determination.
20 C.F.R. § 404.1545(a)(3).

Plaintiff’s claim that the ALJ did

not fully and fairly develop the record is without merit.
Waite next claims that the ALJ improperly determined that
he could perform a full range of sedentary work.

The Court

notes that the ALJ is responsible for determining a claimant’s
RFC.

20 C.F.R. § 404.1546 (2015).

11

The Court further notes

that

[s]edentary work involves lifting no
more than 10 pounds at a time and
occasionally lifting or carrying articles
like docket files, ledgers, and small tools.
Although a sedentary job is defined as one
which involves sitting, a certain amount of
walking and standing is often necessary in
carrying out job duties. Jobs are sedentary
if walking and standing are required
occasionally and other sedentary criteria
are met.
20 C.F.R. § 404.1567(a) (2015).

In bringing this claim, Waite asserts that the ALJ
improperly relied on the Grid in reaching his decision because
of his pain and inability to sit for prolonged periods. (Doc.
12, pp. 7-8).

The Eleventh Circuit Court of Appeals has held

that the “grids should not be applied when the variables used
did not take into account the claimant’s particular
limitations.”

McRoberts v. Bowen, 841 F.2d 1077, 1081 (11th

Cir. 1988) (citing Gibson v. Heckler, 762 F.2d 1516, 1521 (11th
Cir. 1985)).

In Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir.

1996), the Court stated that “[t]he ALJ should not rely
exclusively on the grids when the claimant has a nonexertional
impairment that significantly limits his basic work skills or
the claimant cannot perform a full range of employment at the
appropriate level of exertion.”

Rather, the grid should be used

as a “framework to evaluate vocational factors” along with other

12

“independent evidence, preferably through a vocational expert’s
testimony, of the existence of jobs in the national economy.”
Wolfe, 86 F.3d at 1077.
The Court finds that although Waite experiences pain, it is
linked specifically to his degenerative disk disease and has
been thoroughly and properly considered by the ALJ, as found
previously by the Court.

Furthermore, Plaintiff points to no

objective medical evidence to support his assertion that he
cannot sit for prolonged periods.
Waite also takes issue with the ALJ’s rejection of Dr.
Knotts’s conclusions, the non-examining medical reviewer, in
finding him never able to climb ladders, ropes, or scaffolding
and only occasionally able to stoop (Doc. 12, p. 10).

The

Government correctly notes, however, that Social Security Ruling
96-9p holds that those activities “would not usually erode the
occupational base for a full range of unskilled sedentary work
significantly because those activities are not usually required
in sedentary work.”
371485, *7.
occasionally.

Social Security Ruling 96-9p, 1996 WL

The same thing is true for an ability to stoop only
Social Security Ruling 96-9p, 1996 WL 371485, *7.

Plaintiff further points to Knotts’s restrictions on
“concentrated exposure to extreme heat or vibration, and [for
Plaintiff to] avoid all exposure to hazards, such as machinery
and heights” (Doc. 12, p. 10); however, the Court notes that “a

13

need to avoid all exposure to these conditions would not, by
itself, result in a significant erosion of the occupational
base.”

Social Security Ruling 96-9p, 1996 WL 371485, *9.

The Court finds no error in the ALJ’s finding that
Plaintiff can perform a full range of sedentary work.
Waite’s final claim is that the Appeals Council did not
properly consider newly-submitted evidence (Doc. 12, pp. 18-20).
Plaintiff specifically references records submitted by Dr. Joe
Kim (see Tr. 11-12, 299-306).
The Appeals Council considers additional evidence submitted
by a claimant if it is new, material, and chronologically
relevant.

20 C.F.R. § 404.970(b).

The Appeals council must

then decide if the new information renders the ALJ’s “action,
findings, or conclusion [] contrary to the weight of the
evidence currently of record.”

Id.

The Court further notes

that “when a claimant properly presents new evidence to the
Appeals Council, a reviewing court must consider whether that
new evidence renders the denial of benefits erroneous.”
496 F.2d at 1262.

Ingram,

The newly-presented evidence was as follows.

On June 19, 2013, Dr. Kim reported that Plaintiff’s left
hip and lower extremity pain was five of ten, though it
sometimes went to eight (Tr. 299-302).

On examination, the

Doctor noted that Waite’s gait was non-antalgic, that he could
forward flex at the lumbar spine to 45 degrees and extend to 15

14

degrees.

There was moderate tenderness with maneuvering and

exquisite tenderness over the left sacroiliac joint.

There were

no focal motor deficits in either upper or lower extremities,
proximally or distally.

There was “diminished sensation to

pinprick over the right L5 distribution and mildly diminished
sensation to pinprick over the right C6 and C7 distribution”
(Tr. 301).

The Doctor’s impression was as follows:

(1) lumbar

radiculitis, left-sided L5 and S1 levels; (2) spinal stenosis,
lumbar with symptomatic neurogenic claudication; (3) post
laminectomy syndrome, lumbar; (4) chronic, refractory low back
pain of multifactorial etiology; (5) left-sided sacroiliitis;
and (6) medical comorbidities (history of kidney stones and
depression) (Tr. 302).

Kim prescribed Lortab.

On July 17,

2013, Plaintiff again reported his pain as five on a ten and
that he was using his medications without side effects (Tr. 3034).

There was decreased tenderness on examination.

The

Doctor’s impression was the same; Plaintiff was to return in
three months.

On September 4, 2013, six weeks after the ALJ’s

decision was entered, Kim examined Waite who complained of low
back pain, radiating into his left hip, at a level six; he also
had right-sided headaches as well as weakness in the left hand
(Tr. 305-06).

The Doctor noted 4/5 strength to the left elbow

extension and some tenderness along his right occiput; he had
radicular pain over the posterior aspect of both legs.

15

Plaintiff was to return in four months.
Also on September 4, 2013, Dr. Kim completed a physical
capacities evaluation in which he indicated that Waite could sit
two and stand or walk one hour at a time and sit four and stand
or walk two hours during an eight-hour day (Tr. 11).

Plaintiff

was capable of lifting twenty pounds frequently and twenty-five
pounds occasionally and could carry five pounds frequently and
ten pounds occasionally.

He could use both hands for simple

grasping, pushing and pulling of arm controls and fine
manipulation; Kim did not state whether or not Plaintiff could
use leg controls.

The Doctor indicated that Waite could bend

and reach occasionally but could never squat, crawl, or climb;
he would have mild restrictions in working at unprotected
heights, being around moving machinery, and driving automotive
equipment and could never be exposed to marked changes in
temperature and dust, fumes, or gas.

Kim also completed a pain

form indicating that Plaintiff frequently suffered pain that was
intractable and virtually incapacitating; medications had no
significant effect on his ability to work (Tr. 12).
The Appeals Council reviewed this newly-submitted evidence
and found that it provided no basis for changing the ALJ’s
decision (Tr. 5).

The Council further noted that the physical

capacities evaluation and pain form from September 4, 2013
concerned Waite’s condition at that time and did not concern his

16

condition as of the time of the ALJ’s decision, July 22, 2013.
The Court finds no error in the Appeals Council’s decision.
Dr. Kim’s first two examinations pre-dated the ALJ’s decision,
but there was nothing there suggesting that Waite’s condition
was any worse than had been previously reported; by his own
reports, Plaintiff’s pain had diminished.

The Doctor noted no

limitations or restrictions that would have been of benefit to
the ALJ had he had the opportunity to see those records.
As for the examination, physical capacity evaluation, and
pain form of September 4, the Appeals Council correctly found
that those records pertained to a date beyond the period for
which Waite’s disability was being considered.

Kim did not

indicate that his opinions of Plaintiff’s limitations and pain
related back to the period of time that the ALJ was considering.
As such, the Court finds that the Appeals Council was not in
error in rejecting it.
Waite has raised four different claims in bringing this
action.

All 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.

17

Judgment will be entered by

separate Order.
DONE this 30th day of December, 2015.

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

18