McCurdy v. Colvin

Filing 22

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 9/7/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIAM McCURDY,

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

CIVIL ACTION 16-0034-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling denying a
claim for disability insurance benefits (Docs. 1, 13).

The

parties filed written consent and this action was 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 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
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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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, McCurdy was
fifty-two years old, had completed a high school education1 (Tr.
66), and had previous work experience as an industrial painter
and sandblaster (Tr. 67).

Plaintiff alleges disability due to

chronic obstructive pulmonary disease (hereinafter COPD),
bronchitis, sleep apnea, chronic hypoxemia, emphysema, obesity,
fatigue, loss of hearing, osteoarthritis in both knees, neck
pain, blurred vision, granulomatous disease, muscle cramps,
asthma, headaches, hypertension, back and hip pain, and
decreased concentration (Doc. 12).
McCurdy applied for disability benefits on October 24,
2012, asserting an onset date of June 1, 2011 (Tr. 49, 163-66).
An Administrative Law Judge (ALJ) denied benefits, determining
that although Plaintiff could not return to his past relevant
work, there were specific light work jobs that he could perform
(Tr. 49-57).

McCurdy requested review of the hearing decision

1Error! Main Document Only.Plaintiff testified that he had

received a Graduate Equivalency Degree (Tr. 66).

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(Tr. 42-45), but the Appeals Council denied it (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, McCurdy

(1) The ALJ’s residual functional capacity

(hereinafter RFC) assessment is not supported by the evidence;
and (2) the ALJ did not properly consider the combination of all
of his impairments (Doc. 13).

Defendant has responded to—and

denies—these claims (Doc. 16).

The Court’s summary of the

relevant record evidence follows.
On February 14, 2011, McCurdy was admitted to Jackson
Medical Center for two nights after experiencing bronchitis
symptoms; a chest x-ray showed pneumonia in the right lung and
prior granulomatous disease (Tr. 228-32).

After being given

flue and pneumonia vaccines, he was discharged home, stable,
with an antibiotic prescription.
On November 3, Dr. Steven Furr, Family Physician, examined
Plaintiff for congestion and a cough; he reported smoking oneand-one-half packs of cigarettes daily and weighing 326 pounds
(Tr. 273-75).

McCurdy had a normal gait and exam.

The Doctor

diagnosed hypertension, obesity, unspecified sleep apnea, and
COPD and encouraged him to quit smoking and lose weight.
A chest x-ray on November 11, 2011, noted old granulomatous
changes on the right (Tr. 262).
On November 11, 2011, Dr. Clifton Knizley, Pulmonologist,

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examined McCurdy for complaints of shortness of breath, provoked
by physical exertion; he reported his exercise capacity was very
poor and that he was a two-pack-daily smoker for thirty-seven
years (Tr. 245-50, 282).

Plaintiff reported that his inhaler

did not help him and he spoke of sleep apnea symptoms.

On exam,

McCurdy had normal range of motion (hereinafter ROM) with no
tenderness.

Knizley noted severe morbid obesity, but diagnosed

shortness of breath, unspecified sleep apnea, tobacco abuse, and
hypoxemia.

The Pulmonologist instructed Plaintiff to use his

breathing medication twice daily instead of on an as-needed
basis; he strongly advised him to stop smoking and lose weight.
On December 8, Dr. Cynthia Crowder, Pulmonologist, examined
McCurdy for sleep apnea; he reported that he did not feel
refreshed after a night’s sleep and was tired and moderately
sleepy during the day (Tr. 258-61, 283).

Plaintiff said he

drank four-to-twelve cups of coffee and three-to-five sodas
daily; he complained of back pain.

A sleep study showed severe

obstructive sleep apnea for which a CPAP was prescribed; McCurdy
was told to stop smoking and lose weight (Tr. 259, 263-64).

On

February 10, 2012, McCurdy reported that he was using his CPAP
regularly and was sleeping and feeling better with the exception
of during hunting season; Dr. Crowder noted he seemed calmer and
told him to stop smoking and lose weight (Tr. 255-57).
On March 19, 2012, McCurdy saw Dr. Knizley for shortness of

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breath, but reported feeling better though he had had difficulty
walking up a hill or going up two flights of stairs (Tr. 24144).

The Pulmonologist added COPD to his diagnosis and strongly

advised Plaintiff to lose weight and quit smoking.

On July 20,

the Doctor noted that McCurdy continued his pack-and-a-half-aday habit; Plaintiff reported becoming dyspneic after cutting
grass, but he could walk a long distance (Tr. 234-36).

Knizley

noted no respiratory distress with no wheeze, rhonchi, rales, or
tenderness; weight loss and smoking cessation were urged.
On July 29, Plaintiff reported feeling better with CPAP
use; he denied myalgias and back pain (Tr. 252-53).

Crowder’s

exam revealed nothing out of the ordinary.
On August 2, Dr. Furr noted McCurdy’s claim of worsening
right upper back pain for three days; he was smoking a pack-anda-half-a-day and had gained eleven pounds since the prior visit
(Tr. 270-72).
diagnosed.

Back tenderness was noted and costochondritis was

On October 8, Plaintiff complained of sinus and

chest congestion, a cough, fever, and drainage for four days
duration (Tr. 266-69).

McCurdy had full ROM in his neck with no

evidence of atrophy or deformity in the musculoskeletal exam.
On November 30, Dr. Knizley’s exam was consistent with
prior exams with no noted irregularities (Tr. 278-81).

On

December 17, McCurdy reported that his respiratory status was
normal, though he had some morning shortness of breath; he was

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told to lose weight and stop smoking (Tr. 305-08).

The

Pulmonologist noted no respiratory distress, with no wheeze,
rhonchi, rales, or tenderness.

On April 9, 2013, Plaintiff

reported his one-and-one-half-pack daily habit; he indicated
that he gets short of breath after walking twenty-to-thirty
yards (Tr. 309-12).

Knizley noted nothing unusual in his

examination notes.
On June 17, Dr. Tim Mullinix, Family Practitioner, examined
Plaintiff for a fall earlier that day, causing lower back and
right hip pain; a lumbosacral spine x-ray revealed no acute
abnormality but some mild spondylolisthesis at L5-S1 (Tr. 28589).

The Doctor noted back tenderness and a guarded gait as

well as standing and walking pain; Zanaflax2 and Toradol3 were
prescribed.
On August 1, McCurdy reported a stable respiratory status
and that he was using his inhaler a lot to perform strenuous
lawn work; he had a sore tailbone because of a fall earlier in
the week (Tr. 313-16).

Knizley noted normal ROM throughout, no

tenderness, and normal muscle tone; Naproxen4 and Lortab5 were

2
Error! 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).
3
Toradol 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).
4
Error! Main Document Only.Naprosyn, or Naproxyn, “is a
nonsteroidal anti-inflammatory drug with analgesic and antipyretic
properties” used, inter alia, for the relief of mild to moderate pain.

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prescribed.

On October 22, 2013, Dr. Knizley reported that

Plaintiff was still smoking a-pack-a-day and was eating poorly
as demonstrated by his recent meal comprised of fried and high
salt foods; McCurdy reported dyspnea with mild-to-moderate
physical activity (Tr. 317-20).

The Doctor noted normal ROM and

no tenderness; he wrote the following in his notes:
[If t]his patient ever wants to feel
better he must start doing some things to
help himself. He eats very poorly and he
continues to smoke in excess of one pack per
day. He is extremely obese weighing almost
350 pounds. He desperately needs to lose
weight and to quit smoking.
(Tr. 319-20).

On December 23, Plaintiff told Knizley that his

respiratory status was fairly stable, though he experienced
dyspnea after moderate-to-high levels of physical activity (Tr.
321-24).

Blood pressure was 218/98; medications were prescribed

and Plaintiff was encouraged to see his primary care physician
for treatment.

He was advised to lose weight and stop smoking.

On January 7, 2014, Dr. Furr examined Plaintiff for left
knee, left shoulder, and back pain after falling; the Doctor
noted that McCurdy weighed 346 pounds and was smoking one-andone-half packs per day (Tr. 298-303).

Blood pressure was

150/80; no discussion was noted of Plaintiff’s hypertension.

Physician's Desk Reference 2458 (52nd ed. 1998).
5
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).

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Furr noted a normal gait and some tenderness in the injured
knee; Celebrex6 was prescribed.
This concludes the Court’s summary of the evidence.
In bringing this action, McCurdy first claims that the
ALJ’s RFC assessment is not supported by the evidence.

He more

specifically asserts a lack of evidence because there is no
medical source statement from any doctor and his own complaints
of pain and limitation, due to heat, pulmonary irritants, and
sleepiness, refute the ALJ’s conclusion (Doc. 13, pp. 2-4).
“The RFC assessment is a function-by-function assessment
based upon all of the relevant evidence of an individual’s
ability to do work-related activities.”
96-8p, Titles II and XVI:

Social Security Ruling

Assessing Residual Functional

Capacity in Initial Claims, 1996 WL 374184, *3.

The ALJ is

responsible for determining a claimant’s RFC, 20 C.F.R. §
404.1546 (2016), but that decision can not be based on “sit and
squirm” jurisprudence.
(11th Cir. 1984).

Wilson v. Heckler, 734 F.2d 513, 518

The Court also notes that the Plaintiff is

responsible for providing evidence from which the ALJ can make
an RFC determination.

20 C.F.R. § 404.1545(a)(3).

The ALJ found that Plaintiff had the RFC to
perform a reduced range of light work as

6
Error! Main Document Only.Celebrex is a NSAID 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).

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defined in 20 C.F.R. § 404.1567(b).7
Specifically, the claimant could
occasionally lift/carry up to 20 pounds and
frequently lift/carry 10 pounds. He could
stand/walk for six hours and sit for six
hours per workday with customary breaks. He
would need to alternate between sitting and
standing at a work station on an occasional
basis. The claimant should not push or pull
heavy arm or leg controls. He should never
climb, crouch, kneel, or crawl. The
claimant should avoid exposure to
concentrated wetness, humidity, dust, gases,
and chemical fumes. The claimant should not
drive automotive equipment or operate
dangerous moving machiner [sic] such as
jackhammers or forklifts. He cannot work
around unprotected heights. Due to pain,
fatigue and other symptoms, he would be
expected to experience deficiencies in
concentration, persistence and pace that
could cause him to be off-task or
unproductive approximately 5 percent of the
day.
(Tr. 52).
The ALJ reviewed the medical evidence (Tr. 53-55) before
discounting McCurdy’s credibility, finding that the extent of
his limitations and pain were not supported by the record
evidence (Tr. 55).

The ALJ noted Plaintiff’s shortness of

breath typically occurred with strenuous physical activity,

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“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.”

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walking on inclines, or when exposed to heat.

The ALJ noted

McCurdy’s reports that he could do yard work and household
chores and that he enjoyed fishing; he could walk a long
distance.

The ALJ further noted that pain complaints were not

persistent and that the objective medical evidence showed only
mild, degenerative changes.

The ALJ pointed out that in spite

of regular medical advice to stop smoking, Plaintiff had not.
The Court finds substantial evidence to support the ALJ’s
finding regarding McCurdy’s credibility.

In addition to the

ALJ’s findings, the Court notes Plaintiff’s failure to eat
properly and lose weight and his admission that he was able to
go hunting though it interfered with his sleep (Tr. 255, 317).
The evidence plainly shows, as noted by Dr. Knizley, that
McCurdy did not do things to help himself (Tr. 319).
McCurdy also asserted that there was no medical source
statement in the record from which the ALJ could properly assess
his RFC.

The Court acknowledges the lack of record medical

evidence, but finds that there was enough for a determination to
have been made here.

Plaintiff had several treating doctors who

consistently reported an essentially symptom-free patient who,
for whatever reason, did not comply with medical advice; no
doctor noted limitations, placed limitations on him, or found
that McCurdy was disabled.

In any event, Plaintiff has not

directed this Court to specific, objective medical evidence that

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contradicts the determination made.

The Court finds substantial

evidence to support the ALJ’s decision regarding McCurdy’s RFC.
Plaintiff next claims that the ALJ did not properly
consider the combination of all of his impairments.

He asserts,

specifically, that the ALJ ignored his hearing loss, muscle
cramps, and obesity and how they might affect his ability to
work (Doc. 13, pp. 4-5).

A component of this claim asserts that

the ALJ did not ask the Vocational Expert (hereinafter VE) a
proper hypothetical question that included all his impairments.
"The Secretary shall consider the combined effect of all of
the individual's impairments without regard to whether any such
impairment, if considered separately, would be of such
severity."

42 U.S.C. § 423(d)(2)(C).

The Eleventh Circuit

Court of Appeals noted this instruction and further found "[i]t
is the duty of the [ALJ] to make specific and well-articulated
findings as to the effect of the combination of impairments and
to decide whether the combined impairments cause the claimant to
be disabled."

Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.

1984); see also Reeves v. Heckler, 734 F.2d 519 (11th Cir.
1984); Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
In the ALJ's findings, she lists McCurdy’s impairments and
concludes by saying that he "does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404,

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Subpart P, Appendix 1" (Tr. 24).

This language was upheld as

sufficient consideration of the effects of the combinations of a
claimant's impairments.

Jones v. Department of Health and Human

Services, 941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant
does not have “an impairment or combination of impairments
listed in, or medically equal to one listed in Appendix 1,
Subpart P, Regulations No. 4").
Nevertheless, the Court will review the specific claim
brought, noting that McCurdy asserted a hearing loss only once
(see Tr. 207).

This was in a form completed for the Social

Security Administration (hereinafter SSA) on which Plaintiff
indicated that background noise interfered with hearing.

There

is no record this complaint was ever made to a medical source.
Plaintiff also cites four instances of muscle cramps that
the ALJ did not properly consider (Doc. 12 Fact Sheet).

The

Court has reviewed those medical records (see Tr. 234, 242, 278,
and 310) and notes that the diagnosis first appeared in Dr.
Knizley’s record of March 19, 2012 under the caption “Past
Medical History Diagnosis” (Tr. 242); that is the label under
which it appears in Knizley’s successive records (Tr. 234, 278,
310).

The Court notes that the designation appeared although

Plaintiff had no complaints of muscle cramps during any of the
examinations rendered; furthermore, muscle cramps was never part
of the current assessment for any evaluation.

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The Court notes that McCurdy’s claim criticizes the ALJ for
not finding his hearing loss and muscle cramps to be severe.
The Court finds no merit in this assertion as there has been no
showing that either impairment—of which there is no objective
medical evidence—would interfere with McCurdy’s ability to work.
See Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) ("An
impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the
individual's ability to work, irrespective of age, education, or
work experience"); 20 C.F.R. § 404.1521(a) (“An impairment or
combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic
work activities”); McCruter v. Bowen, 791 F.2d 1544, 1547 (11th
Cir. 1986) ("The 'severity' of a medically ascertained
disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality"); and
Social Security Ruling 96-3p (“evidence about the functionally
limiting effects of an individual’s impairment(s) must be
evaluated in order to assess the effect of the impairment(s) on
the individual’s ability to do basic work activities”).
McCurdy has also asserted that the ALJ did not properly
consider the effect of obesity on his ability to work (Doc. 13,

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pp. 5-6).

Plaintiff references Social Security Ruling 02-1p,

entitled Evaluation of Obesity, which examines the analysis for
determining the following:

whether a person is obese (based on

a formula known as the Body Mass Index); whether the obesity is
a medically determinable impairment; and whether the obesity is
severe.

The latter determination is made by determining whether

“it significantly limits an individual’s physical or mental
ability to do basic work activities.”

SSR 02-1p.

The ALJ found that Plaintiff’s obesity was a severe
impairment (Tr. 51).

The ALJ went on to find the following:

Although the claimant is morbidly
obese, the records do not suggest that the
claimant has significant difficulty with
standing or walking due to his body habitus.
In fact, the claimant told his treating
provider in July 2012 that he was able to
walk long distances (Exhibit 3F). The
claimant does not require the use of any
assistive device to ambulate. Although the
record contains transient reports of back
pain, there are no persistent complaints to
his treating providers. The claimant often
had normal gait and full range of motion of
his lumbar spine and extremities on
examination. Additionally, objective
findings showed only mild degenerative
changes in any joint. There is no
indication that any of the claimant’s
treating providers suggested any surgical
intervention for his back pains.
(Tr. 55).

This explanation defies Plaintiff’s assertion that

the ALJ did not properly consider the effects of his obesity.
More importantly, McCurdy points to no medical evidence that his

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obesity impacted his ability to work.
Finally, McCurdy has asserted that the hypothetical
question to the VE did not properly consider the combination of
his impairments.

The Eleventh Circuit Court of Appeals has held

that an ALJ's failure to include severe impairments suffered by
a claimant in a hypothetical question to a VE to be reversible
error where the ALJ relied on that expert's testimony in
reaching a disability decision.

Pendley v. Heckler, 767 F.2d

1561 (11th Cir. 1985).
The Court has reviewed the ALJ’s questioning of the VE and
finds the questions there consistent with the ALJ’s RFC
assessment (Tr. 88-95; see generally Tr. 83-101).

Again,

though, the Court notes that McCurdy has not demonstrated
deficiency in his consideration—or ultimate determination—of
Plaintiff’s RFC.

This claim is without merit.

McCurdy has raised two different claims in bringing this
action.

Both are without merit because the record medical

evidence does not support the limitations Plaintiff claims.
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.

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Judgment will be

entered by separate Order.
DONE this 7th day of September, 2016.

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

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