Ingram v. Colvin

Filing 19

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 6/28/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONNY D. INGRAM,

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

CIVIL ACTION 15-638-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling
denying a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 12).

The parties filed written consent and this

action 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. 17).
18).

Oral argument was waived in this action (Doc.

After considering the administrative record and the

memoranda of the parties, it is ORDERED that the decision of the
Commissioner be 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.

1

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).
At the time of the most recent administrative hearing,
Ingram was fifty-two years old, had completed a ninth-grade
education (Tr. 44), and had previous work experience as a floor
layer helper (Tr. 43-44).

Plaintiff alleges disability due to

lumbar osteoarthritis facet disease, lumbar degenerative disc
disease, status post rotator cuff repair, osteoarthritis of both
hands, status post anterior cervical discectomy and fusion,
post-surgical change of right shoulder (Doc. 12 Fact Sheet).
The Plaintiff applied for SSI on July 9, 2012, asserting a
disability onset date of July 11, 2010 (Tr. 20, 184-90).

An

Administrative Law Judge (ALJ) denied benefits, determining that
although he could not return to his past relevant work, Ingram
was capable of performing light work (Tr. 20-28).

Plaintiff

requested review of the hearing decision (Tr. 14-15), but the
Appeals Council denied it (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

Specifically, Ingram alleges

the single claim that the ALJ failed to consider certain,
specific evidence regarding his limitations (Doc. 12).

2

Defendant has responded to—and denies—this claim (Doc. 13).

The

relevant evidence of record follows.1
On December 17, 2009, x-rays of Ingram’s lumbar spine
showed mild wedge deformity of the L2 vertebrae consistent with
a compression fracture and mild degenerative disc space
narrowing at L5-S1 with moderate osteoarthritic facet changes;
the diagnosis was mild degenerative rotatory lumbar
levoscoliosis (Tr. 260).
On January 18, 2011, Dr. Jeffrey Conrad, Orthopaedist,
evaluated Plaintiff’s right shoulder; an MRI report revealed a
questionable fraying of the rotator cuff (Tr. 319-20).

Ingram

experienced pain all the time in his entire shoulder with point
pain over the anterior portion of his shoulder although he had
undergone physical therapy and pain management; he took no
medications.

X-rays showed mild degenerative changes at the AC

joint and mild distal clavicle osteolysis.

On examination,

Conrad noted passive and active range of motion (hereinafter
ROM) were significantly limited; he could not abduct his arm
past ninety degrees while external rotation was significantly
limited as well.
pain.

Strength could not be tested because of the

The left shoulder had no limitations.

The Orthopaedist’s

assessment was shoulder strain, questionable adhesive

1As Plaintiff has alleged a disability onset date of July 11,

2010, the Court will not review Dr. Alan Sherman’s examination of
December 17, 2009 (Tr. 254-259).

3

capsulitis, for which he gave an injection and prescribed
physical therapy.

On February 15, 2011, Conrad noted that

Ingram had made little progress with therapy and that his ROM
was difficult secondary to pain; Vicodin2 was prescribed, though
Plaintiff wanted a stronger pain medication (Tr. 315).

On May

11, the Orthopaedist repaired Plaintiff’s partially-torn rotator
cuff without complication (Tr. 308-09).

As of June 13, Ingram

reported that the shoulder was doing so well that he had stopped
his Polar Care therapy; however, he had started experiencing
extreme pain in his neck, radiating down into his right upper
extremity, accompanied by numbness and tingling (Tr. 305).

Dr.

Conrad noted ROM limitations of the neck with extension,
rotation, and flexion; x-rays showed some degenerative changes.
Therapy was prescribed.
On July 15, Ingram was examined by Orthopaedist Clinton W.
Howard, IV for complaints of pain in his right arm and neck, at
a pain level of ten, and significant weakness in the arm (Tr.
304).

On exam, the Doctor noted weakness of elbow flexion,

extension, and grip with a Positive Spurling to the right though
negative to the left; x-rays showed good lordosis, but no
evidence of significant spondylolisthesis.
cervical spine showed the following:

An MRI of the

discogenic disease and

2Error! Main Document Only.Vicodin is a class three narcotic used

“for the relief of moderate to moderately severe pain.”
Desk Reference 1366-67 (52nd ed. 1998).

4

Physician's

mild spondylosis with mild bony foraminal encroachment on the
right at C5-6 and left at C6-7; no evidence of disc herniation;
and a lesion in the T4 vertebral body, likely reflecting an
atypical hemangioma (Tr. 303).
written (Tr. 302).

A prescription for Lortab3 was

On August 3, 2011, a bone scan revealed mild

increased uptake in both shoulders, felt to be degenerative in
origin and greater on the right, and increased uptake at the
level of L3 or L4 on the right, thought to be arthritic (Tr.
301).

On September 1, Plaintiff complained of significant neck

pain and right arm pain; Dr. Howard noted that the MRI results
corresponded to his symptoms and ordered physical therapy,
cervical traction, and pain medications (Tr. 300).

Physical

therapy began on September 13 and was to be conducted three
times a week for four weeks (Tr. 298).

On September 22, Ingram

complained of significant right arm pain, down into his hand,
with some weakness in the shoulder; he had forward flexion to
about eighty degrees (Tr. 296).

On October 12, the Physical

Therapist noted, in his last report, that Plaintiff indicated
that he had a significant reduction in pain and increase in
mobility with his chief complaint being mild, right trapezius
pain; he had full cervical ROM in all planes with pain while
right shoulder elevation was ninety degrees (Tr. 295).

Cervical

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).

5

strength was full while right shoulder strength was 2+/5.

On

October 17, 2011, a CT of the cervical spine demonstrated no
acute osseous injury and mild degenerative disease (Tr. 287).
On November 10, Dr. Howard performed a C5-6, C6-7 anterior
cervical discectomy and fusion with no complications (Tr. 29192). On November 23, Ingram had mild neck pain, but normal
strength in his bilateral upper extremities; the Orthopaedist
prescribed a Kenalog injection, Tylox,4 and Flexeril5 (Tr. 284).
On December 7, Plaintiff had no significant arm pain, though
there was some posterior cervical pain and paratrapezial pain;
Lortab 10 was prescribed (Tr. 283).

On January 3, 2012, Ingram

reported no neck pain; Howard said he could return to work (Tr.
282).
On January 10, Plaintiff told Dr. Conrad that he had pain
and discomfort when lifting his right shoulder over his head
though, overall, the pain was better; strength was intact with
abduction and external and rotation (Tr. 281).

Abducting his

arm past 120º caused pain and discomfort, though strength was
intact up to that point.
On February 8, 2012, Orthopaedist Howard noted that

4Error! Main Document Only.Tylox is a class II narcotic used “for

the relief of moderate to moderately severe pain”. Physician's Desk
Reference 2217 (54th ed. 2000).
5Error! 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).

6

Plaintiff had no significant cervical neck pain, though there
was some shoulder pain with normal strength in that extremity;
the Doctor found that Ingram had reached maximum medical
improvement, indicated that he had seven percent disability of
the back with full body disability of eight percent, and that he
could continue with light duty work (Tr. 271-72).
Plaintiff also saw Orthopaedist Conrad on February 8, 2012
for his shoulder; he could abduct the shoulder to about 110º
with his strength intact (Tr. 270).

Ingram was tender to

palpation over the long head of the biceps tendon.

On February

29, Dr. Conrad successfully performed a fluoroscopic-guided
arthrogram of the right shoulder (Tr. 321-23).
On March 1, Dr. Howard gave Plaintiff a Kenalog injection
for significant low back and right leg pain; he also gave him a
muscle relaxer (Tr. 269).
On March 6, Plaintiff complained of right arm pain,
shooting down into his leg and foot for which Conrad prescribed
Talwin;6 the Doctor, looking at the MRI, noted some tendinosis of
the rotator cuff, but no full thickness tearing (Tr. 267-68).
On April 4, the Orthopaedist found that Ingram had reached
maximum medical improvement; he noted that Plaintiff could
elevate his shoulder to ninety degrees on his own, but that the

6Talwin is an opioid analgesic used to treat moderate to severe

pain. See https://www.drugs.com/cdi/talwin.html

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arm could be pulled to 130-140º (Tr. 266).

Strength was intact

with external rotation and belly press testing.

A functional

capacity evaluation (hereinafter FCE) was ordered.
On April 9, 2012, an FCE was conducted by Gulf Coast
Therapy; on a ten-point scale, Ingram rated his current pain as
five with his worst pain over the prior thirty days to be an
eight (Tr. 310-14).

Plaintiff stood for thirty minutes, rating

his pain at five, walked two hundred yards in two minutes,
rating his pain at eight, and lifted ten pounds from the floor,
rating his pain at five (Tr. 311).

Ingram was instructed to

perform a number of repetitive activities to assess consistency
of movement through an expected ROM within an expected period of
time; most movements were exaggerated or broken while effort was
considered questionable.

Plaintiff complained of low back pain

during a treadmill test and while doing repetitive squats, after
which he reported being dizzy and light-headed; he refused to
perform squat and kneel activities due to bilateral leg cramping
(Tr. 312).

Ingram had reduced right-hand grip-strength;

Plaintiff did not complete any of the dynamic lifting tests,
giving only questionable effort (Tr. 313).

The Occupational

Therapist noted inappropriate illness behavior in two of two
categories, a pain range of five-to-ten, and a poor aerobic
fitness level; she found Plaintiff qualified to do sedentary
work, though lifting over five times per day would put him at

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significant medical risk (Tr. 314).
On April 19, 2012, Dr. Conrad went over the FCE and noted
symptom magnification; he found that Plaintiff could abduct and
forward flex his shoulder to 110º with excellent strength that
was at least 4+/5 (Tr. 265).

The Orthopaedist found that Ingram

had five percent upper extremity permanent impairment and three
percent impairment of the whole body; he recommended limited
overhead lifting.

On May 23, Ingram complained of pain and

discomfort in his shoulder in lifting his arm; Conrad rejected
prescribing narcotics but did prescribe Ultram7 (Tr. 263).
On June 25, Plaintiff reported mild neck pain on the left
but did not report any significant arm pain; he was given a
steroid shot by Dr. Howard (Tr. 262).
On October 13, Dr. Zakiya Douglas examined Ingram, finding
him cachectic and in discomfort; he had some difficulty getting
on and off the examination table (Tr. 274-78).

Plaintiff had a

stable, wide-based gait; he was unable—or unwilling—to perform a
heel or toe test.

The Doctor performed an ROM examination for

the entire body, noting limitation in the right shoulder along
with tenderness to palpation along the left trapezius area;
there was pain in both hips in straight leg testing with
crepitus in both knees.

Ingram had full strength in all

7Error! Main Document Only.Ultram is an analgesic “indicated for

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

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Physician's

extremities though there was muscle wasting and handgrip
difficulty, in opposition, in the right hand; manipulation in
both hands was normal.

Dr. Douglas’s diagnoses were as follows:

osteoarthritis of the knees bilaterally; torticollis of the left
neck causing muscle spasm; and right shoulder pain, likely from
prior rotator cuff injury.
On September 23, 2013, Plaintiff went to Springhill Medical
Center with complaints of right testicle pain and right knee and
hip pain, caused by a fall (Tr. 324-30).

X-rays of the knee

were normal; x-rays of the hip showed mild degenerative changes
of the right shoulder, but no dislocation (Tr. 324-25).

Ingram

was found to have bilateral hydroceles8 with normal blood flow
and was prescribed anti-inflammatory medication and Lortab.
On November 12, Plaintiff went to Springhill Medical Center
for an abscess on his right forearm; he also had impetigo on his
face (Tr. 345-62).

An antibiotic and Lortab were prescribed.

On December 5, Dr. Todd Elmore, Neurologist, examined
Ingram and found that he had limited ROM in his cervical spine
and right shoulder; he had self-limiting pain behavior (Tr. 33239).

On motor exam, Ingram had diffuse weakness throughout,

giving poor effort; he had subjective decreased numbness in
hands and feet.

Reflexes were diminished throughout, but

8

“A hydrocele is a fluid-filled sac surrounding a testicle that

causes swelling in the scrotum.” http://www.mayoclinic.org/diseasesconditions/hydrocele/basics/definition/con-20024139

10

present; gait and station were normal.
nerve damage.

There was no evidence of

Elmore found Plaintiff capable of performing a

sedentary job, though “[h]e could probably work any sort of
manual activity as long as it did not involve any overhead
movements with his right arm or lifting greater than 50 lbs”
(Tr. 334).

The Neurologist went on to note that “[o]ther than

limited range of motion in his right shoulder, all his other
complaints [were] entirely subjective in nature” (Tr. 334).

Dr.

Elmore complete a physical capacities evaluation in which he
indicated that Ingram was capable of sitting four, standing
three, and walking two hours at a time while able to sit eight,
stand six, and walk five hours during an eight-hour day (Tr.
339).

The Neurologist further indicated that Plaintiff could

lift ten pounds continuously, twenty-five pounds frequently, and
fifty pounds occasionally and could carry ten pounds
continuously, twenty pounds frequently, and twenty-five pounds
occasionally; he found him capable of using both hands for
simple grasping, pushing and pulling of arm controls, and fine
manipulation.

Ingram would have no trouble using leg controls.

The Doctor also found Plaintiff able to bend, squat, crawl, and
climb occasionally and reach frequently.
This concludes the Court’s summary of the evidence.
In bringing this action, Ingram claims that the ALJ failed
to consider certain, specific evidence regarding his

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limitations.

Plaintiff specifically references the FCE

completed by Gulf Coast Therapy on April 9, 2012 (Doc. 12; cf.
Tr. 310-14).

The Court notes “no rigid requirement that the ALJ

specifically refer to every piece of evidence in his decision,
so long as the ALJ's decision . . . is not a broad rejection
which is not enough to enable [a reviewing court] to conclude
that the ALJ considered [the claimant's] medical condition as a
whole.”

Mitchell v. Commissioner, Social Security

Administration, 771 F.3d 780, 782 (11th Cir. 2014) (quoting Dyer
v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).
The Court finds that Plaintiff is correct in asserting that
the ALJ did not review the FCE in his opinion.

Defendant admits

as much, but argues that it would not have changed the ALJ’s
decision (Doc. 13).
In his determination, the ALJ found that Plaintiff had the
residual functional capacity to perform light work,9 but was
limited in his ability to crouch, stoop, and kneel only
occasionally (Tr. 23).

Furthermore, he could not climb ladders,

9“Light work involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b)
(2015).

12

ropes, or scaffolds and could not crawl.

He could not be

exposed to dangerous heights or machinery.
The ALJ first discredited Ingram’s own testimony of pain
and limitation (Tr. 24, 26), a finding gone unchallenged in this
action.

The ALJ also gave great weight to the examination notes

and conclusions of Neurologist Elmore who found Plaintiff
capable of performing “any sort of manual activity as long as it
did not involve any overhead movements with his right arm or
lifting greater than 50 lbs” (Tr. 26-27; cf. Tr. 334).

The

Court further notes that the conclusions of Dr. Douglas support
Dr. Elmore’s findings (see Tr. 274-78).

Dr. Conrad, Ingram’s

treating Orthopaedic physician found, after reviewing the FCE
report, that he was able to return to work, restricting
Plaintiff only with regard to overhead lifting (Tr. 265).
Ingram’s other treating Orthopaedic, Dr. Howard, found that he
had reached maximum medical improvement and could continue with
light duty work (Tr. 271-72).
The Court further notes that the FCE, although finding that
Ingram could perform only sedentary work, was not particularly
favorable (Tr. 310-14).

His effort was considered questionable

and his movements, through the exercises, exaggerated; he
refused to perform certain tests.

As noted by Dr. Conrad, after

reviewing the report, “[t]here was some noted symptom
magnification” (Tr. 265).

13

The Court finds, at most, harmless error in the ALJ’s
failure to discuss the FCE in his determination.
remand of this action would be inappropriate.

As such,

See Reeves v.

Heckler, 734 F.2d 519, 526 n.3 (11th Cir. 1984).

Furthermore,

the Court finds that the ALJ’s conclusions, regarding Ingram’s
ability to work, are supported by substantial evidence.
Plaintiff has raised a single claim in bringing this
action.

That claim is 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.

Judgment will be entered by

separate Order.
DONE this 28th day of June, 2016.

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

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