Robinson v. Colvin
MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 5/25/2016. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social Security,
CIVIL ACTION 15-0507-M
MEMORANDUM ORDER AND OPINION
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI).
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. 21).
Oral argument was heard on May 23, 2016.
Upon consideration of
the administrative record, the memoranda of the parties, and
oral argument, 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
Richardson v. Perales, 402 U.S. 389, 401 (1971).
substantial evidence test 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 supplemental administrative hearing,
Plaintiff was forty-seven years old, had completed a high school
education (Tr. 789),1 and had previous work experience as a
laborer, wrapper, housekeeper, and sewing machine operator (Doc.
In claiming benefits, Robinson alleges disability due to
hypertension, osteoarthritis of the lumbar spine, atypical chest
pain, and obesity (Doc. 18).
The Plaintiff filed applications for disability insurance
benefits and SSI on October 19, 2012, asserting a disability
Error! Main Document Only.Plaintiff told Psychologist Jackson that
she had received a Graduate Equivalency Degree (Tr. 204).
onset date of February 1, 2012 (Tr. 21, 69-72, 284-89).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although she could not
return to her past relevant work, Robinson was capable of
performing a full range of sedentary work (Tr. 21-32).2
Plaintiff requested review of the hearing decision (Tr. 16-17)
by the Appeals Council, but it was denied (Tr. 5-8).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
(1) The ALJ did not properly consider the
opinions of her treating physician; (2) the ALJ did not properly
assess her non-exertional impairments; and (3) the Appeals
Council did not properly consider newly-submitted evidence (Doc.
Defendant has responded to—and denies—these claims (Doc.
The Court will now summarize the relevant evidence of
On April 3, 2012, records from Franklin Primary Health
Center (hereinafter Franklin) show that Robinson was examined
The ALJ found that Robinson had engaged in substantial gainful
activity from the asserted onset date of February 1, 2012 through
January 1, 2013 and was, therefore, unable to claim disability
benefits or SSI during that period of time (Tr. 23-24). Plaintiff has
not challenged this finding (see Doc. 14).
The Court will not review records pre-dating Robinson’s asserted
disability onset date of February 1, 2012.
with complaints of frequent urination and hypertension; the
hypertension was described as malignant (Tr. 193-95).
next examination, on November 30, 2012, the Examiner noted
diffuse and moderate abdominal tenderness; she was referred to
another doctor for feet pain (Tr. 190-92).
On December 17,
Robinson was seen for tenderness in the lumbo-sacral spine and
severely elevated blood pressure; Tramadol4 was prescribed (Tr.
On January 22, 2013, Robinson went to Mobile Infirmary ER
with complaints of sharp-shooting chest pain; she reported that
she had quit smoking (Tr. 152-69).
Plaintiff was discharged
with a diagnosis of atypical chest pain and uncontrolled
hypertension and given a prescription for Lortab.5
On January 30, Robinson returned to the Mobile Infirmary ER
with complaints of chest and back pain; she reported smoking
five packs of cigarettes a day (Tr. 170-79).
examination revealed normal range of motion (hereinafter ROM).
Plaintiff was diagnosed to have hypertension and given a
Tramadol “is indicated for the management of moderate to
moderately severe chronic pain in adults who require around-the-clock
treatment of their pain for an extended period of time.” Error! Main
Document Only.Physician's Desk Reference 2520 (66th ed. 2012).
Error! 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).
prescription for Diovan.6
On January 30, 2013, Plaintiff went to Franklin for
hypertension and chest pain for the prior two days; examination
demonstrated no abdominal tenderness and normal ROM, muscle
strength, and stability in all extremities with no pain (Tr.
Cardiac examination was normal.
On February 1,
Robinson had no chest or abdominal pain (Tr. 180-82).
On February 2, Robinson went to the ER and was admitted to
Mobile Infirmary, for four nights, for complaints of
intermittent squeezing and sharp chest pain and palpitations
along with intermittent headaches; the previous night, she had
felt lightheaded with a severe headache and numbness of the
upper and lower extremities (Tr. 248-67).
revealed hyperdynamic left ventricular function.
A chest x-ray
revealed no significant change; a CT of the head/brain revealed
no acute intracranial process.
The discharge diagnosis was as
chest pain with mixed features; accelerated high blood
pressure; and headache at admission that had resolved.
On March 4, at the request of the Social Security
Administration, Psychologist Jennifer M. Jackson performed a
mental evaluation on Robinson who said that she had been anxious
Error! Main Document Only.Diovan is used to treat hypertension.
and depressed for a year, though she had never received any
treatment (Tr. 204-06).
Plaintiff was oriented to time, place,
and person and had no signs of confusion, loose association,
tangential, or circumstantial thinking; she had limited judgment
and fair insight.
Jackson reported Robinson’s activities of
daily living as follows:
Ms. Robinson described her daily
activities as eating three meals, watching
television, listening to music, working
“three days” a week, “reading a book,” and
taking a bath.
Ms. Robinson can complete all personal
ADL’s independently. She knows how to wash
dishes, sweep, mop, vacuum, make a bed, and
clean a bathroom. Ms. Robinson said that
she does not know how to cook. She said
that she knows how to do “a little” laundry.
She knows how to drive and has a license.
Ms. Robinson described her reading, writing,
and arithmetic skills as “fair.” She said
that she can count money and make change
well enough to shop independently. She can
stay at home unsupervised.
The Psychologist’s impression was anxiety disorder,
but that she could be expected to have a favorable response to
treatment within six-to-twelve months; Jackson also thought that
Plaintiff would benefit from assistance in managing funds.
On March 5, 2013, Plaintiff went to Franklin for her
Physician's Desk Reference 1841-43 (52nd ed. 1998).
hypertension; blood pressure readings were better (Tr. 218-20).
She had no musculoskeletal pain with full ROM; Robinson had
stopped taking the Tramadol.
On March 21, 2013, Robinson went to Providence Hospital ER
for back pain of three months’ duration; she was told to avoid
activities that exacerbated the problem and to follow up with
her own physicians (Tr. 208-09).
On March 29, Plaintiff went to Franklin and complained of
sharp leg pain, aggravated by walking and standing, and lower
back pain; she rated her pain as ten on a ten-point scale (Tr.
Robinson admitted that she had been out of her blood
pressure medication for longer than a week.
indicated that she had chronic lumbago.
On April 8, Plaintiff
complained of fatigue, weight loss, chest and back pain, and
numbness in her extremities; she was neither anxious nor
depressed (Tr. 211-14).
The Examiner noted no abdominal
tenderness, normal ROM, muscle strength, and stability with no
pain in all extremities; Zanaflex was prescribed.7
On April 3, Robinson was examined by Dr. Jason H. Cole, of
Cardiology Associates, for complaints of fatigue, chest pain,
Error! Main Document Only.Zanaflex “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).
palpitations, and numbness of the limbs; she said she had no
abdominal pain, limb swelling, muscle weakness, muscle aches, or
leg pain (Tr. 242-47).
On April 9, 2013, Plaintiff underwent a
stress test that was thought to be normal (Tr. 232-34).
April 17, Robinson reported that she only experienced cardiac
discomfort after she ate and had no exertional complaints; she
had no chest pain, palpitations, abdominal pain, muscle weakness
or pain (Tr. 227-31).
Dr. Cole found that Plaintiff could
return to work without restrictions.
On April 22, Dr. Todd Volkman, Orthopaedist, examined
Robinson for back pain, radiating into the right buttock and leg
for which she took Lortab; she claimed level-ten pain in her
back and both legs and level-eight pain in both arms (Tr. 27783).
Plaintiff was tender over the sacroiliac regions with near
full ROM, but discomfort with flexion and extension; the Doctor
prescribed Mobic,8 Zanaflex, and physical therapy.
On June 3,
the Physical Therapist noted that Plaintiff had not shown any
real change, but that she had shown poor initial response and
had been inconsistent in attending her sessions (Tr. 275-76).
On October 23, Robinson was seen by Cardiologist Richard J.
Error! 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.
Chernick, after appearing at the ER and complaining of chest
pain and shortness of breath; she reported that she did not take
her medications regularly (Tr. 222-25).
A stress echocardiogram
On January 16, 2014, Dr. Daniela Weatherly reported her
examination of Robinson as follows:
Follow up on her back pain. She went
and saw Dr. Volkman and has had an abnormal
MRI indicating herniated disc and DJD. She
comes here because she needs to discuss
leave of absence and basically her pain is
extreme and severe. It interferes with her
daily activities. She is unable to drive.
She states her daughter is driving her. She
is unable to cook for herself. She is
barely able to take a bath and dress. Pain
is severe in intensity and radiates towards
her buttock. It is associated with
occasional muscle weakness.
On examination, Weatherly reported that Plaintiff
had difficulty raising and laying [sic] down on the exam bed and
had positive straight leg raise.
The Doctor completed a
physical abilities and limitations form indicating that Robinson
could not work (Tr. 269).
More specifically, the Doctor said
that she could stand for fifteen minutes and sit thirty minutes
at a time; she could lift and carry as much as five pounds on a
Robinson could manipulate both hands frequently
but could never bend.
It was Weatherly’s opinion that
Plaintiff’s pain was severe and that she could not cook, drive,
or bathe and dress herself and that she had suffered this
condition for over a year.
On January 30, 2014, Dr. Robert Lerner examined Robinson
for “vague epigastric pain” and bloatedness; her medications
included Ultram9 and Flexeril10 (Tr. 272-73).
the Doctor noted no paraspinal tenderness, but slight epigastric
tenderness; he recommended a laxative.
This concludes the Court’s summary of the evidence
considered by the ALJ.
Plaintiff’s first claim is that the ALJ did not properly
consider the opinions and conclusions of her treating physician,
Daniela Weatherly (Doc. 14, pp. 11-13).
The Court 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
Error! Main Document Only.Ultram is an analgesic “indicated for
the management of moderate to moderately severe pain.” Physician's
Desk Reference 2218 (54th ed. 2000).
Error! Main Document Only.Flexeril is used along with “rest and
physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).
physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);11 see
also 20 C.F.R. § 404.1527 (2015).
As support for her argument concerning Dr. Weatherly,
Robinson references a total of seven transcript pages (see Tr.
22, 222-24, 269, 322, 726).
The Court notes the following about
these cited pages:
Tr. 22 is the second page of the ALJ’s decision and does
not mention Dr. Weatherly.
Tr. 222-24 show Weatherly to be the treating physician but
the report was produced by Cardiologist Chernick.
examination, an echocardiogram was normal and Robinson admitted
that she did not regularly take her medications.
Tr. 269 is the form completed by Weatherly in which she
sets out Plaintiff’s physical capacities.
Tr. 322 is an admission sheet from Mobile Infirmary,
acknowledging that Weatherly is the doctor of record.
was submitted to the Appeals Council after the ALJ’s decision
was rendered, so is unavailable for consideration with regard to
this claim as the Court can only review that evidence considered
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.
by the ALJ.
See Ingram v. Commissioner of Social Security
Administration, 496 F.3d 1253, 1264-65 (11th Cir. 2007).
Court further notes, as a practical matter, that the admitting
diagnosis of back pain is the only evidence on the page.
Tr. 726 is a page from Mobile Infirmary acknowledging that
Weatherly is the admitting physician on July 13, 2014.
page was submitted to the Appeals Council after the ALJ’s
decision was rendered, so is unavailable for consideration with
regard to this claim as the Court can only review that evidence
considered by the ALJ.
The Court further notes, however, that
the page only appears to show that Robinson had a negative urine
The Court finds that the only cited evidence relevant to
this claim is the form completed by Weatherly.
With regard to
the limitations suggested there by the Doctor, the ALJ made the
On January 16, 2014, the claimant was
examined by Dr. Weatherly in a follow-up
examination (Exhibit 11F). Dr. Weatherly
determined that the claimant has “back
pain.” (Exhibit 11F). On the same day, Dr.
Weatherly completed and signed a medical
source statement (Exhibit 11F). Dr.
Weatherly stated that the claimant could
lift/carry up to five pounds frequently
(Exhibit 11F). Additionally, Dr. Weatherly
stated that the claimant is unable to work
for any amount of time (Exhibit 11F). Dr.
Weatherly stated that the claimant would
miss more than four working days per month
[sic] as a result of her impairment and/or
treatments (Exhibit 11F). The undersigned
finds no weight to the conclusory opinions
of Dr. Weatherly in Exhibit 11F. These
opinions are contradicted by the office
notes in Exhibits 13F and 10F, the
claimant’s wide range of activities of daily
living (Dr. Jackson stated that the claimant
“can complete all personal ADL’s
independently. She knows how to wash
dishes, sweep, mop, vacuum, make a bed, and
clean a bathroom . . . She knows how to
drive and has a license. Ms. Robinson
described her reading, writing, and
arithmetic skills as ‘fair.’ She said that
she can count money and make change well
enough to shop independently. She can stay
at home unsupervised.” (Exhibit 6F)), and
the absence of lengthy hospitalizations.
Dr. Weatherly apparently relied quite
heavily on the subjective report of symptoms
and limitations provided by the claimant,
and seemed to uncritically accept as true
most, if not all, of what the claimant
reported. Yet, as explained elsewhere in
this decision, there exist good reasons for
questioning the reliability of the
claimant’s subjective complaints.
The Court finds substantial support for the ALJ’s
Dr. Weatherly’s evidence consists of a single
examination and a report that Robinson is disabled.
evidence from that exam demonstrates Plaintiff’s difficulties,
but does not support the Doctor’s finding of disability.
Likewise, the balance of the evidence before the ALJ fails to
support the extreme limitations suggested by Weatherly.
Court further notes that the only evidence that supports the
treating physician’s finding of disability is Plaintiff’s own
statements; however, the ALJ rejected her testimony as noncredible (Tr. 28, 30), a finding gone unchallenged in this
Robinson’s claim that the ALJ did not properly consider
the conclusions of her treating physician is without merit.
Plaintiff next claims that the ALJ did not properly assess
her non-exertional impairments of hypertension, atypical chest
pain, osteoarthritis, and back pain.
Robinson further argues
that this failure led to the ALJ’s improper reliance on the
Medical-Vocational Guidelines, known as the Grid (Doc. 14, pp.
The Court notes that nonexertional impairments are
limitations one suffers that cannot be measured in terms of
20 C.F.R. § 404.1569a(a) (2015).
factors, such as pain or the effects of medications, are
alleged, "the preferred method of demonstrating that the
claimant can perform specific jobs is through the testimony of a
MacGregor v. Bowen, 786 F.2d 1050, 1054
(11th Cir. 1986), citing Cowart v. Schweiker, 662 F.2d 731, 736
(11th Cir. 1981).
The Court further notes that 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.”
grid should be used as a “framework to evaluate vocational
factors” along with other “independent evidence, preferably
through a vocational expert’s testimony, of the existence of
jobs in the national economy.”
Wolfe, 86 F.3d at 1077.
In this action, the ALJ found that Robinson had the severe
impairments of hypertension, osteoarthritis of the lumbar spine,
and atypical chest pain (Tr. 24).
The ALJ went on to find that
she had the residual functional capacity to perform a full range
of sedentary work, so was unable to perform her past relevant
Nevertheless, relying on Grid Rule 201.21,12 the ALJ found
Rule 201.21 contemplates a younger individual, with a high
that Plaintiff was capable of working and was not disabled.
The Court notes that although a Vocational Expert was
present and testified at the second administrative hearing, the
ALJ did not question her about Plaintiff’s nonexertional
In the determination, the ALJ discussed those
impairments, but noted that no medical source, other than Dr.
Weatherly, had indicated any limitations for Plaintiff at all
Robinson has questioned the ALJ’s reliance on Psychologist
Jackson who noted her daily activities and abilities, arguing
that a Psychologist “is not qualified to adequately assess the
Plaintiff’s daily living restrictions from a physical
standpoint” (Doc. 14, p. 8; cf. Tr. 206).
The Court rejects
this argument, noting that Jackson was only reporting Robinson’s
own accounting of her activities.
Plaintiff also asserted that her osteoarthritis and back
pain would keep her from performing the necessary amount of
sitting required for sedentary work (Doc. 14, p. 8).
support, she pointed to medical sources telling her to limit her
sitting (see Tr. 209, 269, 345).
The Court notes that the first and last page cited are part
school education and no transferrable skills, that is capable of
of generalized instructions from Mobile Infirmary given to
people claiming to have back pain (Tr. 209, 345).13
suggestions are not, however, equivalent to a treating
physician’s instructions not to sit for prolonged periods of
Only one physician, Dr. Weatherly, has placed any
restrictions on Robinson (Tr. 269).
However, this Court found
that the ALJ properly rejected her conclusions.
The Court finds no merit in Plaintiff’s argument that the
ALJ did not properly evaluate her nonexertional impairments,
leading to an improper reliance on the Grid.
Robinson has not
demonstrated that her nonexertional impairments affect her
ability to perform work.
As such, the ALJ’s findings that
Plaintiff could perform a full range of sedentary work and was
not disabled under the Grid is not an error as those decisions
are supported by substantial evidence.
Finally, Robinson asserts that the Appeals Council did not
properly consider newly-submitted evidence (Doc. 14, pp. 9-10).
Following the ALJ’s decision, Plaintiff submitted 456 pages of
medical evidence for review by the Appeals Council (Tr. 6, 9;
cf. Tr. 309-764).
In making this claim, Plaintiff points to a
performing sedentary work.
The Court further notes that Tr. 345 is not a part of the record
that the ALJ considered; likewise, this Court cannot consider it for
single page of evidence, a radiological report indicating that
she had four disc bulges—two that were mild, one moderate, and
one marked (Doc 14, p. 10; Tr. 313).
The Court notes that a disability claimant can present new
evidence at any stage of the administrative proceedings.
C.F.R. ¶¶ 404.900(b) and 416.1400(b) (2015); Ingram v.
Commissioner of Social Security, 496 F.3d 1253, 1261 (11th Cir.
If the evidence is first presented to the Appeals
Council, the Council considers it only if it relates “to the
period on or before the date of the [ALJ’s] hearing decision.”
20 C.F.R. §§ 404.970(b) and 416.1470(b).
If the Appeals Council
determines that the evidence provides no basis for changing the
ALJ’s decision, no further explanation is required.
Commissioner, 771 F.3d 780, 783-85 (11th Cir. 2014).
of law was reinforced in an Eleventh Circuit Court of Appeals
decision that stated as follows:
“The Appeals Council may deny or dismiss [a]
request for review. . . .” 20 C.F.R. §
416.1467. But the Appeals Council is not
required to make specific findings of fact
when it denies review. It need only
“consider the additional evidence” that is
new, material, and chronologically relevant.
Id. § 416.1470(b). The Appeals Council
stated that it considered the new evidence
purposes of this claim.
that Parks submitted, and the Appeals
Council added the evidence to the record.
The Appeals Council was not required to do
Parks ex rel. D.P. v. Commissioner, Social Security
Administration, 783 F.3d 847, 853 (11th Cir. 2015).14
In this action, the Appeals Council considered the new
evidence and found that it did “not provide a basis for changing
the [ALJ’s] decision (Tr. 6).
The evidence was added to the
record (Tr. 9; cf. Tr. 309-764).
The Appeals Council did all
that it was required to do, Robinson’s claim notwithstanding.
In connection with this claim, Plaintiff submitted new
evidence from her treating physician, Dr. Weatherly, that
reiterates her opinion that Robinson is unable to work (Doc. 14,
The Court notes that the Court can consider this
evidence “only upon a showing that there is new evidence which
is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
42 U.S.C.A. § 405(g), Sentence 6.
The Court notes that the evidence does not include results
from objective tests or even copies of Weatherly’s medical
The Court notes that the C.F.R. cites are for SSI claimants.
Corresponding cites for disability claimants can be found at 20 C.F.R.
§§ 404.967 and 404.970(b).
treatment notes; it consists of the Doctor’s opinion, in several
forms, that Plaintiff is disabled.
The Court finds that this
evidence would not meet the requirements of a sentence six
remand under 28 U.S.C. § 405(g) as Robinson has not demonstrated
the materiality of the evidence or provided good cause for
providing it at this late date.
Robinson has raised three different claims in bringing this
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
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), that
this action be DISMISSED.
Judgment will be entered by separate
DONE this 25th day of May, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?