Dillard v. Colvin
MEMORANDUM OPINION AND ORDER that the decision of the Commissioner by AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 2/24/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
KENNETH R. DILLARD,
CAROLYN W. COLVIN,
Social Security Commissioner,
CIVIL ACTION 15-311-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 (SSI)
(Docs. 1, 14).
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. 15).
Oral argument was waived in this action (Doc. 20).
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
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).
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-nine years old, had attended the tenth grade and had
previous work experience as a floor installer, sheet metal
production worker, and woodworking machine operator.
Plaintiff alleges disability due to Degenerative
Disc Disease (DDD), Osteoarthritis (OA), Chronic Obstructive
Pulmonary Disease (COPD), and Neuropathy. (Id).
The Plaintiff protectively applied for disability benefits
and SSI on April 15, 2008, asserting a disability onset date of
June 16, 1995.
On June 29, 2010, Plaintiff
additionally applied for SSI, asserting a disability onset date
of June 29, 2010 (Tr. 234-37; Doc. 14 at 1; Fact Sheet).1
Administrative Law Judge (ALJ) denied benefits after determining
On March 26, 2012, the Appeals Council consolidated Plaintiff’s June
29, 2010, claims with his earlier claims.
that Dillard did not meet disability listing requirements2; the
ALJ further found that Plaintiff was capable of performing less
than the full range of light work. (Tr. 336).
requested review of the hearing decision but the Appeals Council
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
(1) The ALJ committed reversible error by
substituting her own medical opinion for the opinion of a
medical professional; and (2) the ALJ failed to assign
controlling weight to the opinion of Plaintiff’s treating
physician, Dr. Felix Dulanto. (Doc. 14).
responded to—and denies—these claims (Doc. 15).
evidence of record follows.
On May 14, 2008, Dillard was examined by Dr. Ahmas Haidar
for problems with his right leg since he was a teenager.
This was Plaintiff’s first examination for that
Dillard additionally complained of pain in
his back, right hip, right knee, and right ankle.
exam, Dillard was noted to have a normal range of motion (ROM)
in his hips, knees, and ankles and a normal dorsi- and plantar
This is actually the second ALJ opinion, after the District Court
remanded this action for further consideration of Plaintiff’s
orthopedic impairments, subjective complaints, maximum residual
functional capacity, and any supplemental evidence from a vocational
expert. (Tr. 331).
He could not walk on his tiptoes and heels, but
he could squat and bend forward with his fingertips fourteen
inches from the floor.
required for ambulation.
No assistive devices were used or
Dillard was assessed as having chronic
right leg pain, with no specific findings. (Id).
Dillard’s Lumbar spine, taken the same day, indicated Grade I
spondylolithesis of L5 on S1 with bilateral spondylosis of L5;
spondylotic changes in the upper lumbar spine and lower thoracic
spine with moderate degenerative disc disease at the L1-2 and
L2-3 levels; and mild scoliosis. (Tr. 164).
X-rays of Dillard’s
hip showed mild degenerative changes with no acute bony
An impression of Dillard’s lumbar spine x-rays taken on
October 20, 2008, indicated discogenic spondylosis throughout
the imaged mid to lower thoracic spine and from T12 to L3-2;
facet arthrosis, lower lumbar spine; postural comments and
biomechanical alterations; but no other gross evidence of bone
or joint pathology.
On June 10, and July 16, 2009, Dillard went to the Manna
Ministry Medical Clinic for follow up of his chronic pain to the
right side of the body and was given prescription medication
refills. (Tr. 193-94). X-rays of Dillard’s lumbar and thoracic
spine, taken on October 6, 2009, showed mild degenerative
changes to the thoracic spine and degenerative changes with DDD
to the lumbar spine. (Tr. 221).
On December 7, 2009, Dillard presented to the Mobile County
Health Department for x-rays of his knees which showed mild
narrowing of the medial lateral joint compartments on the
frontal views but which were otherwise unremarkable.
Dillard sought monthly follow up care from Dr. Roberts from
October 6, 2009 to May 13, 2010, for prescription medication
refills for knee, hip, shoulder, and back pain, instability, and
On July 28, 2010, Dillard visited the Stanton Road Clinic
(Stanton) for a second opinion regarding pain in his neck, back,
knees, and feet.
He was given new medication for depression and
continued his previous medication of Lortab3 and Lyrica4.
On August 25, 2010, Dillard went to the Franklin Primary
Health Center (Franklin) for complaints of back, neck, leg, and
ankle pain and requested higher dosages of prescription pain
Plaintiff was noted to walk with a
He was diagnosed with DDD, osteoarthritis,
radiculopathy, depression, tobacco abuse, and early COPD.
Lortab is a semisynthetic narcotic analgesic used for “the relief of
moderate to moderately severe pain.” Physician's Desk Reference 292627 (52nd ed. 1998).
Lyrica is used for the management of neuropathic pain. Physician's
Desk Reference 2517 (62nd ed. 2008).
was given prescription Lortab, Lyrica, and Elavil5.
rays showed early osteoarthritic changes in the lateral
compartments of both knees.
X-rays of his cervical
spine showed multilevel degenerative spondylosis. (Id). X-rays
showed osteoarthritic changes in both hips, right greater than
On September 3, 2010, Dr. Cunningham with the Mobile County
Health Department completed a physical residual functional
capacity assessment based on Dillard’s medical records and
opined that Dillard could occasionally lift/carry twenty pounds,
frequently lift/carry ten pounds, stand or walk at least two
hours in an eight hour day, sit six hours in an eight hour day,
and could push/pull for an unlimited amount of time. (Tr. 595).
It was determined that Dillard could frequently climb
ramps/stairs, balance, stoop, and crawl, and occasionally climb
ladders/rope/scaffolds, crouch, and kneel. (Tr. 595-602).
On September 30, 2010, Dillard returned to Franklin for a
It was noted that he used a cane and
his pain was seven to eight on scale of ten.
diagnosed with DDD (c-spine), depression, early OA, and smoked.
He was given a refill of Lortab and Lyrica and a
prescription for Paxil6 with a plan to decrease his narcotics.
Elavil, is used to treat the symptoms of depression. Physician's Desk
Reference 3163 (52nd ed. 1998).
Paxil is used to treat depression. Physician's Desk Reference 2851-56
On October 21, 2010, Dillard returned to Stanton with
complaints of a burning sensation in the bottom of his feet,
with occasional numbness, tingling, and getting cold.
Dillard also complained of tingling in his arms.
(Tr. 610It was
noted that he had difficulty walking secondary to right leg
Dillard was diagnosed with peripheral
polyneuropathy of unknown etiology and neuropathy studies were
Dillard returned to Stanton on December 8, 2010, for
follow-up stating his pain was seven out of ten and on exam it
was noted that Dillard was able to walk and get on the exam
table with minor assistance.
medications were continued.
On January 7, 2011, Dillard returned to Franklin for
complaints of severe pain.
He was found to have decreased ROM
in the spine and was diagnosed with DDD, OA, chronic pain,
smoking, and COPD.
Dillard was continued on Lyrica, Lortab,
Elavil, and Paxil.
On March 20, 2011, Dillard visited Stanton for complaints
of right ankle pain and swelling.
It was noted that
Dillard had a long history of chronic back pain and antalgic
(52nd ed. 1998).
gait and that he used a cane to get around.
taken which showed no significant arthritis of his right ankle.
Dillard was diagnosed with a right ankle sprain and given
a prescription for Mobic.
On May 23, 2011, Dr. Dulanto completed a clinical
assessment of pain form provided to him by Dillard’s attorney
wherein Dr. Dulanto indicated that he had treated Dillard since
August 25, 2010, for DDD and OA.
indicated that Dillard’s pain was intractable and virtually
incapacitating and that physical activity caused an increase of
pain to such an extent that bed rest would be necessary.
Dr. Dulanto further indicated that Dillard would be totally
restricted and unable to function at a productive level of work.
The same day, Dillard was seen at Franklin for follow up
No physical exam was performed secondary to
Dillard being wheelchair bound and Dillard stated that he could
not walk more than five minutes at a time and “can’t pick up any
Dillard’s previous diagnoses were reaffirmed
and he was given a refill for Lortab and Paxil. (Tr. 627-28).
On July 21, 2011, Dillard was seen at Franklin for
complaints of lower back pain, headaches, restlessness, shoulder
pain, and leg pain and for refills of his prescription
Dillard’s prescription medications were continued.
On August 13, 2011, Dillard returned to Stanton Road for
follow up of his lower back pain.
his pain as a three out of ten.
On exam, Dillard had “full
range of motion in all extremities, decreased sensation in feet,
no step out on spine and tenderness in C4-6, T10-12, L1-L5.”
His pain medications were continued. (Id).
From September 27, 2011, to April 30, 2012, Dillard visited
Franklin four times for refills of pain medications including,
Lortab, Neurontin7, and Cymbalta and for follow up of his DDD,
OA, depression, Neuropathy, and COPD
(Tr. 423-30). In February,
2012, it was noted that Dillard was wheelchair bound and could
not walk. (Tr. 425-26)
In April, 2012, Dillard was additionally
diagnosed with a right ankle sprain. (Tr. 423-24).
On May 29, 2012, Dillard was evaluated by Dr. William
Crotwell, an orthopedic surgeon.
It was noted
that, subjectively, Dillard complained of constant pain
across his back and of bilateral knee pain and indicated he
has to use crutches and a wheelchair at times.
Dillard rated his pain as an eleven on a pain scale
On exam, Dr. Crotwell noted Dillard acted
in a bizarre manner and was difficult to examine.
It was noted that he got up out of his wheelchair and made
Neurontin is used in the treatment of partial seizures.
Desk Reference 2110-13 (52nd ed. 1998).
poor attempts on exam. Dr. Crotwell noted Dillard’s right
knee x-rays indicated mild joint space collapse with mild
arthritis, but his left knee x-ray was normal.
x-ray of Dillard’s lumbar spine, AP, and lateral, showed
hips were normal and Dillard was noted to have some mild
rotatory scoliosis of about ten degrees and
spondylolitheis, grade I with some mild arthritis.
Dr. Crotwell’s impression was that Dillard had lumbar DDD,
mild arthritis of the right knee and a history of lumbar
pain with weakness and instability with no objective
From August 13, 2012, to June 11, 2013, Dillard
returned to Franklin for follow up care and refills for
chronic pain from DDD and osteoarthritis and depression,
including, Cymbalta8, Flexeril9, Lortab, and Neurontin. (Tr.
325-26, 415-417, 418-20, 421-22).
In November, it was
noted that Dillard was typically wheelchair bound but
presented walking with crutches.
December, it was discovered that Dillard’s urine screen
from August, 2012, was positive and Plaintiff explained
that he had taken one of his mother’s pills when he ran out
Cymbalta is used in the treatment of major depressive disorder.
Physician's Desk Reference 1791-93 (62nd ed. 2008).
Flexeril is used along with “rest and physical therapy for relief of
muscle spasm associated with acute, painful musculoskeletal
conditions.” Physician's Desk Reference 1455-57 (48th ed. 1994).
In June, Plaintiff was assessed
as having multiple DDD with pain and unable to walk without
This concludes the Court’s summary of the
In bringing this action, Dillard claims that the ALJ
arbitrarily substituted her own medical opinion for that of a
medical professional without the support of substantial evidence
in fashioning her residual functional capacity (hereinafter RFC)
(Doc. 14, pp. 2-9). Plaintiff additionally takes issue with the
weight that the ALJ gave to the opinion of Dr. Dulanto,
Dillard’s treating physician.
(Id. at 10-11).
In her determination, the ALJ found that Dillard had the
“residual functional capacity to perform less than the full
range of light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b).” (Tr. 347).
More specifically, the ALJ concluded
that the claimant:
[C]an stand and walk no more than thirty minutes at
one time and no more than three to four hours in an
eight hour day. He can occasionally operate foot
controls, climb stairs, and ramps, and balance, stoop,
and crouch. He cannot climb ladders, ropes or
scaffolds. He cannot kneel or crawl. He cannot work
around unprotected height, dangerous equipment,
temperature extremes, humidity and wetness, or
concentrated environmental pollutants.
After summarizing the medical evidence, the ALJ
stated that she gave little weight to the conclusions of Dr.
Dulanto and some weight to the opinions of Dr. Cunningham and
This Court will first address whether the ALJ erred in
assigning Dr. Dulanto’s opinion little weight. The Court notes
that "although the opinion of an examining physician is
generally entitled to more weight than the opinion of a nonexamining physician, the ALJ is free to reject the opinion of
any physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);10 see
also 20 C.F.R. § 404.1527.
In the ALJ’s opinion, the weight
given to Dr. Dulanto’s opinion was diminished “because it is
inconsistent with his own records and is not supported by the
evidence.” (Tr. 344).
More specifically, the ALJ pointed out
that the x-rays on which Dr. Dulanto reportedly relied in
reaching his opinion were not objectively supportive of Dr.
Dulanto’s conclusion relating to the severity of Plaintiff’s
This Court additionally recognizes the inconsistencies
between Plaintiff’s medical records and Dr. Dulanto’s opinion.
For example, on December 8, 2010, five months prior to Dr.
Dulanto’s assessment, Stanton medical records note that
Plaintiff was able to “walk and get on exam table with minor
assistance.” (Tr. 609).
Then, in August, 2011, following Dr.
Dulanto’s assessment, Stanton records indicate Plaintiff’s pain
The 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.
was three out of ten and that, on exam, Plaintiff had full ROM
in all extremities.
Moreover, the ALJ explained
that Dr. Dulanto’s opinions were inconsistent with the treatment
rendered to Plaintiff by Dr. Dulanto, himself, i.e., pain
medication management without hospitalization or referral to a
As a result, this Court finds that there was objective
evidence that contradicted Dr. Dulanto’s opinion such that the
ALJ did not err by giving him only little weight.
assertion is without merit.
Next, Plaintiff has asserted that the substantial evidence
does not support the ALJ’s RFC finding. The Court notes that the
ALJ is responsible for determining a claimant’s RFC.
§ 404.1546 (2015).
That decision cannot be based on “sit and
(11th Cir. 1984).
Wilson v. Heckler, 734 F.2d 513, 518
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
20 C.F.R. § 404.1545(a)(3) (2015).
In addition to the medical records reviewed by the ALJ in
determining the Dillard’s RFC, there were several consultative
opinions which were reviewed.
Specifically, in May, 2008,
It is noted that Plaintiff was eventually referred to a specialist in
November, 2011, but that was six months after Dr. Dulanto’s opinions
Plaintiff was examined by Dr. Ahmad Haidar who concluded that
Dillard had a normal ROM in the lower extremities, normal dorsiand plantar flexion, and could squat and bend forward.
noted that Plaintiff walked with a limp, but no assistive
devices were used for ambulation.
On June 18,
2008, Dr. Jeffcoat opined that Plaintiff was capable of the
medium range of work based on a medical records review.
On September 10, 2010, Dr. Cunningham, based on a
review of Plaintiff’s medical records, opined that Plaintiff
could perform work.
In May, 2011, Dr. Dulanto
opined that Plaintiff’s pain was intractable and virtually
incapacitating and that physical activity would increase
Plaintiff’s pain to such an extent that bed rest would be
Furthermore, Dr. Dulanto opined that
Plaintiff’s pain would render Plaintiff unable to function at a
productive level of work. (Id.)
Finally, in May, 2012,
Plaintiff was examined by Dr. Crotwell who completed a Physical
Dr. Crotwell opined that Plaintiff could
sit for one hour at one time and a total of eight hours, stand
for one hour at a time for a total of six hours, and walk for
one hour at a time and a total of four hours.
lift up to ten pounds continuously, eleven to twenty-five pounds
frequently, and twenty-six to fifty pounds occasionally and
could carry up to five pounds continuously, six to twenty pounds
frequently, and twenty-one to twenty-five pounds occasionally.
Dr. Crotwell further opined that Plaintiff could frequently
reach and occasionally bend, squat, crawl, and climb.
In her opinion, the ALJ specifically listed the compelling
and non-compelling aspects of each of the consultative exams and
the opinion of Dr. Dulanto, Plaintiff’s treating physician,
which formed the basis of her RFC finding.
For example, the ALJ
noted that neither Dr. Jeffcoat nor Dr. Cunningham were able to
examine Plaintiff, but that Dr. Cunningham had a wider range of
medical records available to her on which to base her opinion.
The ALJ reduced the weight assigned to Dr. Dulanto,
finding his opinion to be inconsistent with the objective
medical findings and his own treatment of Plaintiff.
the ALJ, recognized Dr. Crotwell’s ability to examine Plaintiff,
but also indicated Dr. Crotwell’s failure to consider
Plaintiff’s neuropathy in reaching his opinions.
notes that after making these assessments, the ALJ determined
that Plaintiff’s RFC was more restrictive than Dr. Crotwell’s
With regard to Plaintiff’s assertion that the RFC is not
supported because he cannot walk and is wheelchair bound, the
ALJ additionally explained that Plaintiff’s assertions were
inconsistent with his medical records and that his use of a
wheel chair was based on his own subjective complaints and not
the objective medical findings.
(Tr. 338, 343).
The ALJ also
acknowledged that the assistive devices used by Plaintiff were
not prescribed by a physician, until after Plaintiff presented
Thus, it is evident that the ALJ both
considered and explained the basis of her RFC.12
based on the totality of the medical records and for the reasons
provided by the ALJ as to the weight accorded to each of the
treating and consulting physicians, this Court finds that there
was substantial evidence supporting the RFC reached by the ALJ.
Plaintiff has raised two claims in bringing this action;
both are without merit.
Upon consideration of the entire
record, the Court finds "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.
Therefore, it is ORDERED that the
Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
F.2d 947, 950 (5th Cir. 1980), and that this action be
Judgment will be entered by separate Order.
DONE this 24th day of February, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
This Court additionally finds Plaintiff’s assertion that the RFC is
not supported by substantial evidence based on the fact the it
contradicts a previous RFC finding by a different ALJ to not be
compelling as the previous RFC finding was vacated.
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