Turner v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 12/8/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALISHIA KAY TURNER
Plaintiff,
v.
CAROLYN W. COLVIN,
Social Security Commissioner
Defendant.

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) CIVIL ACTION NO. 16-157-N
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MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) Plaintiff, Alishia Kay Turner (“Tuner” or
“Plaintiff”) seeks judicial review of an adverse social security ruling denying claims for
disability insurance benefits and Supplemental Security Income (SSI) (Docs. 1, 18). With
the consent of the parties, the Court has designated the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in this civil action, in accordance
with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See
Docs. 21, 22).

Oral argument was heard on December 1, 2016. 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.
PROCEDURAL BACKGROUND
Plaintiff protectively applied for disability insurance benefits and SSI on July
26, 2013, asserting a disability onset date of March 27, 2013. (Tr. 229-234). At the
time of the administrative hearing, Plaintiff was forty-four years old, had completed
the twelfth grade and had previous work experience as a quality care technician,

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office manager, telephone salesperson, and project manager. (Doc. 18; Fact Sheet).
Plaintiff alleges disability due to degenerative disc disease of the lumbar and
cervical spine, arthritis of the knees and hips, depressive disorder, and anxiety
disorder with posttraumatic stress disorder. (Id). An Administrative Law Judge
(“ALJ”) denied benefits after determining that Tuner did not meet disability listing
requirements; the ALJ further found that Plaintiff was capable of performing light
work with some restrictions. (Tr. 26). Plaintiff requested review of the hearing
decision but the request was denied by the Appeals Council. (Tr. 1-7).
Plaintiff claims that the ALJ (1) committed reversible error in violation of
Social Security Regulations 20 CFR 416.927(d) and Social Security Ruling 96-2 by
failing to assign controlling weight to the opinions of Plaintiff’s treating physician,
Dr. Daniel A. Polansky, M.D., and (2) committed reversible error in violation of
Social Security Ruling 96-6p in assigning great weight and relying upon the opinion
of consultative orthopedist, Dr. Thomas R. Dempsey, M.D. (Doc. 18 at 1-2).
Defendant has responded to—and denies—these claims. (Doc. 19).
STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ’
” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)

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(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [Commissioner].’ ” Winschel,
631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th

Cir.

1983))).

“

‘Even

if

the

evidence

preponderates

against

the

[Commissioner]’s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the “claimant bears the burden of demonstrating the inability to
return to [his or] her past relevant work, the Commissioner of Social Security has

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an obligation to develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581
(11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(per curiam) (“It is well-established that the ALJ has a basic duty to develop a full
and fair record. Nevertheless, the claimant bears the burden of proving that he is
disabled, and, consequently, he is responsible for producing evidence in support of
his claim.” (citations omitted)).

“This is an onerous task, as the ALJ must

scrupulously and conscientiously probe into, inquire of, and explore for all relevant
facts. In determining whether a claimant is disabled, the ALJ must consider the
evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir.
2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).
DISCUSSION
Turner takes issue with the fact that the ALJ did not give controlling weight
to the opinion of Dr. Polansky, Turner’s treating physician.

(Doc. 18 at 2-6).

Plaintiff additionally claims that the ALJ assigned improper weight to the opinion
of Dr. Dempsey, a consulting orthopedist. (Id. at 6-8). This Court will first address
whether the ALJ erred in not assigning Dr. Polansky’s opinion controlling weight.

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At step four of the sequential evaluation process the ALJ found that Turner
had the residual functional capacity to perform light work, except the claimant
would be capable of only simple, routine, repetitive tasks involving only simple work
related decisions with few workplace changes and that claimant could be capable of
occasional interactions with the public, coworkers and supervisors. (Tr. 26).

In

reaching this conclusion, the ALJ stated that the:
[R]esidual functional capacity assessment is supported by the claimant’s mild
diagnoses of degenerative disc disease and arthritic findings in her hips and
knees. The claimant would be capable of light exertion work based on her
September 2014 consultative examination with Dr. Dempsey (Exhibit 12F).
Additionally, the claimant should be limited to simple tasks with only
occasional interaction with others to accommodate her anxiety disorder and
her use of narcotic medications.
(Tr. 32). As a result, the ALJ concluded that Plaintiff could perform light work and that
she was not disabled. (Tr. 35). In reaching this conclusion the ALJ summarized Plaintiff’s
medical records relating to her knees, hips, and back, as follows:
In terms of the claimant’s alleged bilateral knee pain, an October 2009
physical evaluation showed normal knee stability (Exhibit1F/58). In
December 2011, Daniel A. Polansky, M.D., the claimant’s treating physician,
performed a physical examination and found the claimant to have arthritic
disease in the knees (Exhibit 11F/15). In August 2012, Dr. Polansky
observed arthritic disease in the knees, and noted that the claimant had
neuropathy of the lower extremities (Exhibit 11F/6). In July 2013, Dr.
Polansky noted that the claimant had muscle tone and arthritic joints in the
knees with no edema or pulses (Exhibit 2F/3). However, there are no
objective findings to support this notation. Dr. Polansky also noted that the
claimant had inflammatory polyarthritis (Exhibit 2F/2).
At a September 2014 internal consultative examination, Thomas R.
Dempsey, M.D. observed the claimant to have normal knee jerk reflexes
bilaterally (Exhibit 12F/3-4). In June 2015, Dr. Polansky continued to
diagnose the claimant with arthritic knees (Exhibit 17F/2).
In terms of claimant’s alleged hip impairments, in 2005, x-rays of the left hip

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showed no evidence of fracture, dislocation, or degenerative process (Exhibit
7F/12). There was evidence of an anterior labrum tear of the left acetabulum,
and Michael L. Granberry, M.D. prescribed the claimant anti-inflammatory
medication. The claimant also exhibited some pain with internal rotation
and flexion past 90 degrees. However, she had good external rotation with no
pain, negative straight leg raises, and negative deep tendon reflex testing.
A 2005 MRI of the left hip showed only mild degenerative blunting of the
acetabular labrum without frank tear or avulsion (Exhibit 7F/8). In 2009, an
x-ray of the left hip showed a small spur of the lateral aspect of the
acetabulum (Exhibit 7F/5). An MRI showed no evidence of marrow edema,
fracture lines, or avascular necrosis of the left hip, and no abnormal fluid
collections or joint effusions with the left hip joint space maintained and
symmetric to the right hip (Exhibit 7F/4).
A 2012 MRI of the left hip showed partial tearing or edema within the distal
left gluteus medius muscle and tendon with moderate left trochanteric
bursitis (Exhibit 1F/40). Additionally, the imaging study showed a small
effusion of the left intratrochanteric bursa.
At an internal consultative examination in September 2014, Thomas R.
Dempsey, M.D. noted that MRI’s of the left hip in 2005 and 2009 showed no
significant abnormalities (Exhibit 12F//2). Upon physical examination, Dr.
Dempsey observed that claimant had full range of motion without pain in
internal or external rotation, flexion, extension, abduction, and adduction
bilaterally (Exhibit 12F/3-4). Dr. Dempsey also ordered x-rays of the hips,
which showed no obvious abnormalities, and he diagnosed the claimant with
hip pain of unknown etiology.
In terms of claimant’s spine impairments, a June 2009 MRI of the lumbar
spine showed spinal stenosis and degenerative disc disease present at L5-S1
and L4-L5 (Exhibit 1F/56). The imaging study showed moderate to severe
foraminal stenosis on the right and mild on the left. A November 2009 MRI
of the cervical spine showed mild broad based subligamentous herniation
without migration at C6-7 creating mild central canal narrowing and
moderate foraminal encroachment bilaterally (Exhibit 1F/44). John P.
Couch, M.D. examined the claimant and assessed her with ruled out cervical
radiculopathy, cervicalgia, ruled out degeneration of cervical intervertebral
disc, ruled out spinal stenosis of the cervical region, ruled out lumbosacral
radiculitis, disc disorder of the lumbar region, lumbar facet syndrome,
lumbago, muscle spasm, ruled out degeneration of the thoracic intervertebral
disc, and pain in the thoracic spine (Exhibit 1F/59).
In April 2010, the claimant saw Dr. Couch for a lumbar epidural steroid

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injection with fluoroscopy (Exhibit 1F/11). Dr. Couch diagnosed the claimant
with lumbar radiculitis and lumbar degenerative disc disease. In August
2010, Dr. Couch performed and additional lumbar epidural steroid injection
to the right L5-S1 (Exhibit 1F/18). In October 2010, Dr. Couch assessed the
claimant with thoracic spondylosis (exhibit 1F/69).
In October 2012, Dr. Polansky noted that the claimant had chronic back and
leg pain and observed arthritic disease in the spine with point tenderness
over the sacroiliac bursa (Exhibit 11F/3). Dr. Polansky diagnosed the
claimant with scoliosis, arthritis of the spine, sacroiliac bursitis, and
neuropathy of the lower extremities. In July 2013, Dr. Polansky noted that
the claimant had arthritis of the spine (Exhibit 2F/2). An x-ray of the cervical
spine showed facet joint hypertrophy encroaching on the posterior aspect of
the right C3 and right C5 neural foramina, which was not significantly
changed from an August 2012 imagining study (Exhibit 2F/10). The x-rays
also showed spurring with mild narrowing of the left C7 neural foramen,
which was not significantly changed from and August 2012 imaging study.
The overall impression was of a stable cervical spine with degenerative
changes. X-rays of the lumbar spine showed narrowing at L5-S1 with
degenerative endplate spurs, which was stable (Exhibit 2F/10). Additionally
the x-rays showed mild sclerosis of the L5-S1 facet joint, but the overall
impression [w]as of a stable lumbar spine with degenerative changes.
In January 2014, Dr. Polansky again noted that the claimant had arthritis of
the spine (Exhibit 5F/1). In September 2014, Dr. Dempsey performed a
consultative examination and observed the claimant to have a full range of
motion in the thoracic spine with paraspinal muscle strength within normal
limits and no muscle spasms (Exhibit 12F/3). The Claimant’s lumbosacral
spine showed ten degrees of forward flexion, ten degrees of extension, ten
degrees of lateral bending and rotation, no increased kyphosis, scoliosis, or
lordosis, and no paraspinal muscle spasms. The claimant’s cervical spine
showed 20 degrees of forward flexion, 20 degrees of extension, and ten
degrees of lateral bending and rotation. Dr. Dempsey also noted that the
claimant complained of pain on any touching of the skin on the back or the
neck, and assessed the claimaint with low back pain, cervicalgia, pain in
thoracic spine, and neck pain (Exhibit 12F/4). Dr. Dempsey diagnosed the
claimant with mild degenerative disc disease of the cervical spine with mild
foraminal stenosis at C5-C6 and C6-C7, mild lumbar degenerative disc
disease, and thoracic pain of an unknown etiology.
(TR. 27-29). The ALJ additionally summarized a clinical pain form completed by Dr.
Polansky as follows:

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In January 2014, Daniel Polansky, M.D. the claimants primary care
physician, completed a clinical assessment pain form in which he opined that
the claimant’s pain was intractable and virtually incapacitating, and that
physical activity greatly increased the claimant’s pain causing distraction
from tasks or total abandonment of tasks for at least two hours in an eighthour workday (Exhibit 4F/1). Additionally, Dr. Polansky opined that the
claimant[’s] pain and/or drug side effects would be expected to be severe and
to limit effectiveness due to distraction, inattention, drowsiness, etc. (Exhibit
4F/2). Dr. Polansky opined that the claimant could not sit, stand, bend, or lift
to any degree, and stated that the claimant could not engage in any form of
gainful employment on a repetitive, competitive and productive basis over an
eight-hour workday, forty hours each week.
(Tr. 31). The ALJ then stated that he gave Dr. Polansky’s opinion little weight.
(Id.)

Plaintiff, however, contends that Dr. Polansky’s opinion on the clinical

assessment pain form (above) should have been given controlling weight because it
was supported by the medical evidence of record. (Doc. 18 at 3-6).
“In assessing medical opinions, the ALJ must consider a number of factors in
determining how much weight to give to each medical opinion, including (1)
whether the physician has examined the claimant; (2) the length, nature, and
extent of a treating physician's relationship with the claimant; (3) the medical
evidence and explanation supporting the physician’s opinion; (4) how consistent the
physician’s opinion is with the record as a whole; and (5) the physician’s
specialization.

These factors apply to both examining and non-examining

physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir.
Sept. 30, 2014) (per curiam) (unpublished) (internal citations and quotation marks
omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)). 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

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opinion of any physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);1 see also 20 C.F.R. §
404.1527. Regardless, the ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987) (per curiam).
In the ALJ’s opinion, the weight given to Dr. Polansky’s opinion was
diminished because it was not consistent with the other opinions of record and
benign imaging studies.

(TR. at 31).

More specifically, with regard to Dr.

Polansky’s opinion that Turner’s problems are “virtually incapacitating”, the ALJ
stated:
The undersigned has given this opinion little weight because it is entirely
inconsistent with the other opinions of record. Additionally, this opinion is
inconsistent with the claimant’s relatively benign imaging studies of her hips,
and only mild diagnoses of her back conditions (Exhibits 7F, 1F/40 and
12F/4). Finally, this opinion is inconsistent with Dr. Dempsey’s September
2014 observations that the claimant had normal knee jerk reflexes, and full
range of motion without pain on internal and external rotation, flexion,
extension, abduction, and adduction of the bilateral hips (Exhibit 12F).
(Id.). The ALJ went on to state that Plaintiff’s “medical records show only mild
findings with conservative treatment.

She has not undergone any surgical

procedures on her back, knees, or hips, nor has she received formal mental health
treatment. […] Additionally, the claimant left her last place of employment because
of a performance issue unrelated to her alleged impairments. Most significantly,
the claimant’s July 2013 x-rays showed stable findings when compared to prior

1The

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.

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studies, indicating that her condition has not significantly changed since she was
working prior to being fired (Exhibit 2F/10).

Additionally, 2014 x-rays showed

relatively mild findings, indicating that her physical impairments are stable and
that she was able to work in the past with the current state of her condition
(Exhibit 12F/4).” (Tr. 32). 2
Despite, Plaintiff’s assertions to the contrary, this Court finds that there was
substantial evidence that contradicted Dr. Polansky’s opinion such that the ALJ did
not err by giving his opinion as to Plaintiff’s capabilities little weight. Further, the
ALJ’s explanation specifically articulated the reasoning behind his decision to
diminish the weight attributed to Dr. Polansky’s opinion, i.e. due to a lack of
consistency with other records, benign imaging studies, and the findings of a
consultative exam. As such, Plaintiff’s assertion that Dr. Polansky’s opinion should
have been given controlling weight is without merit.
Plaintiff has additionally asserted that the ALJ committed reversible error by
assigning great weight to the opinion of consultative orthopedist, Dr. Thomas R.
Dempsey. (Doc. 18 at 2, 6-8).3
With regard to Dr. Dempsey’s opinion, the ALJ stated as follows:
In September 2014, Thomas R. Dempsey, M.D. performed an internal
consultative examination in which he opined that the claimant could
occasionally lift and carry up to 50 pounds, and continuously lift up to 20
pounds (Exhibit 12F/5). Dr. Dempsey further opined that the claimant could

It is additionally worth noting that at her social security hearing, Plaintiff did not testify that she
could not work at all, only that she had not pursued employment because “everything is a standing
position or something along those lines, and I’m just not capable to climb up on anything like that
anymore.” (TR. 56)
3
 The factors to be considered by the ALJ with regard to the weight given to Dr. Dempsey’s opinion
are the same as those stated in the analysis of the weight given to Dr. Polansky’s opinion.

2

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sit, stand, and walk for eight hours in an eight-hour workday, and would not
require a cane to ambulate (Exhibit 12F/6). He noted that the claimant could
continuously reach, handle, finger, feel, and push/pull bilaterally, and could
climb stairs and ramps frequently, climb ladders or scaffolds occasionally,
and balance stoop, knee, crouch, and crawl continuously (Exhibit 12F/8).
Finally, Dr. Dempsey opined that the claimant would have no environmental
limitations. In a March 2015 letter Dr. Dempsey also stated that the
claimant required a significant amount of narcotics and benzodiazepenes for
relief of her symptoms, and that she would be limited in bending, lifting, or
carrying any significant weight (Exhibit 15F). Dr. Dempsey recommended an
expert opinion of her functional status. The undersigned gives Dr. Dempsey’s
opinion great weight because it is generally consistent with the claimant’s
benign imaging studies of the hips and back with only mild diagnoses.
However, the undersigned has limited the claimant to light exertion to
address the claimant’s subjective complaints of pain and her use of narcotic
pain relievers.
(Tr. 31). Plaintiff contends that Dr. Dempsey’s opinion failed to accurately present
the medical records that were presented to him and that his opinions are not
supported by substantial evidence. (Doc. 18 at 7-8). Namely, Plaintiff contends
that Dr. Dempsey incorrectly described a 2009 MRI and failed to reference x-rays
done in 2013. (Id. at 7). Plaintiff additionally asserts that the results of x-rays and
MRIs of Plaintiff’s left hip, cervical, lumbar, and thoracic spine do not support Dr.
Dempsey’s opinion that Plaintiff could sit, stand, and walk for 8-hours at one time
for an 8-hour workday. (Id. at 8).
While there may be medical records contradicting Dr. Dempsey’s opinion, this
Court is not free to re-weigh the evidence. See Bloodsworth, 703 F.2d at 1239.
Rather, this Court must determine whether there was relevant substantial evidence
to support the conclusion of the ALJ. In the instant action, the ALJ explicitly stated
the weight given to Dr. Dempsey’s opinion and articulated the reasoning for the
same. Despite the disparities pointed out by Plaintiff, this Court finds that there is

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adequate evidence in Plaintiff’s medical records and the record as a whole to
support Dr. Dempsey’s opinion. Moreover, the ALJ further limited Plaintiff based
on her subjective complaints and use of pain medicine. As a result, this Court does
not find error in the ALJ’s assignment of weight to Dr. Dempsey’s opinion and finds
Plaintiff’s claim to be without merit.
CONCLUSION
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." Richardson v.
Perales, 402 U.S. 389, 401 (1971). 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 DISMMISSED.

Judgment will be entered by

separate Order.
DONE this 8th day of December, 2016.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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