Brooks v. Astrue
MEMORANDUM OPINION AND ORDER entered, Oral argument was waived in this action (Doc. 28). Upon consideration of 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 7/11/2011. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,:
CIVIL ACTION 10-0612-M
MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 20).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 27).
argument was waived in this action (Doc. 28).
consideration of 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
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 administrative hearing, Plaintiff was
thirty-four years old, had completed a high school education
(Tr. 224), and had previous work experience as a heavy equipment
operator, pipe layer, and fish harvester (Tr. 224-228).
claiming benefits, Brooks alleges disability due to the
open proximal radial and ulnar
fractures; major soft tissue injury avulsion right forearm;
ulnar nerve as well as median nerve injury; complex Olecranon
fracture; osteoarthritis; severe osteoarthritic change in right
elbow; hypertension; severe right ulnar neuropathy; and mild
right carpal tunnel syndrome (Doc. 21).
The Plaintiff filed protective applications for disability
benefits and SSI on August 1, 2007 (see Tr. 11; Tr. 108-14).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although he could not return
to his past relevant work, Brooks was capable of performing
specific limited light work jobs (Tr. 11-22).
requested review of the hearing decision (Tr. 6-7) by the
Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Brooks alleges
(1) The ALJ did not properly consider his complaints of
pain; (2) the ALJ did not pose a proper hypothetical question to
the vocational expert (hereinafter VE); (3) the ALJ did not
properly assess his residual functional capacity (hereinafter
RFC); and (4) the ALJ did not conduct a full and fair hearing
Defendant has responded to—and denies—these claims
The relevant evidence of record follows.
On July 15, 2007, Brooks was admitted to the University of
Alabama, in Birmingham, Hospital for a shotgun blast to the
right elbow for which he underwent irrigation and debridement as
well as placement of the external fixator as there was an
Olecranon fracture (Tr. 167-85).
Plaintiff had extensive soft
tissue damage which required skin grafting and ulnar nerve
Brooks was discharged, after having undergone physical
therapy, with a splint on his right upper extremity and a
prescription for Lortab.1
Plaintiff was noted to have “decreased
sensation on ulnar nerve distribution with decreased little
finger flexion;” he had “3/5 strength in all of his muscles in
[the] lower extremity [but] full range of motion in the shoulder
and wrist” (Tr. 180).
On August 8, 2007, Brooks was seen by Dr. Rena L. Stewart
who noted that he was “doing tremendously well” (Tr. 187).
of the skin grafts are beautifully taken, his pain is
diminishing, and he is already establishing a good early range
of motion” (id.).
Stewart noted no ulnar nerve function, though
he had intact median and radial function; his hand was “still
quite weak” (id.).
Plaintiff’s elbow range of motion was from
45 – 85 degrees; the shoulder was completely normal.
On September 24, 2008, Brooks was seen in the emergency
room at Vaughn Regional Medical Center for right arm swelling
and numbness; he was also unable to straighten out his right
middle, ring, and fifth fingers (Tr. 192-99).
diagnosed as having right arm atrophy and neuropathy so was
Error! Main Document Only.Lortab is a semisynthetic narcotic
analgesic used for “the relief of moderate to moderately severe pain.”
given a prescription for Toradol.2
On June 2, 2009, Dr. Huey Kidd, D.O., noted that x-rays of
Brooks’s right arm revealed “a plate extending the proximal
third of the ulnar into the elbow.
The elbow joint appears
The elbow joint has osteoarthritic changes and very
little joint space.
The patient does have motion[;] however
there is severe osteoarthritic change” (Tr. 203).
On June 22, 2009, Neurologist Walid W. Freij examined
Brooks who had elevated blood pressure but was in no acute
distress (Tr. 204-16).
Plaintiff had a defect over the right
elbow, covered in a skin graft, which was numb to pinprick and
light touch sensation; he had no limitations in the cervical,
thoracolumbar, or lumbarsacral spine.
extending his fingers up.
Brooks had difficulty
Strength was _/5; he had difficulty
making a fist, extending and flexing the hand at the wrist and
strength is estimated to be 2/5.
Atrophy was noted in the
Interosseous muscles and in the FDI and ADM muscles.
doctor’s assessment was:
“(1) severe right ulnar neuropathy at
the elbow as demonstrated by the examination, but also as
demonstrated by a NCV/EMG test that was done [and] (2) mild
Physician's Desk Reference 2926-27 (52nd ed. 1998).
Toradol is prescribed for short term (five days or less)
Amanagement of moderately severe acute pain that requires analgesia at
the opioid level.@ Physician's Desk Reference 2507-10 (52nd ed. 1998).
carpal tunnel syndrome affecting the sensory component.
proven on the NCV test” (Tr. 206).
Dr. Freij went on to state
that Brooks “would not be able to do physical work with his
right upper extremity.
He is not able to use the hand at all in
terms of gripping, holding things, pulling or pushing.
able to use the left upper extremity and is able to stand and
walk” (Tr. 206).
The Neurologist completed a physical
capacities evaluation in which he indicated that Plaintiff was
able to sit, stand, and walk for up to eight hours at a time and
during a workday; noting weakness and atrophy in the right hand,
the doctor declined to say how much weight Brooks could lift or
carry (Tr. 210-11).
The doctor noted that Plaintiff could never
use his right hand for reaching, handling, fingering, feeling,
pushing or pulling but could do so continuously with his left
hand; there were no restrictions in using his feet.
could stoop, kneel, and crouch frequently, climb stairs, ramps,
ladders, or scaffolds and balance occasionally, but could never
crawl (Tr. 213).
While Plaintiff could frequently be exposed to
moving mechanical parts, he could only occasionally be exposed
to unprotected heights, operating a motor vehicle, humidity and
wetness, dust, odors, fumes and pulmonary irritants, and extreme
heat or cold; the doctor further noted that extreme heat or cold
would increase Plaintiff’s pain in his right upper extremity
Dr. Freij indicated that Plaintiff had suffered
these limitations and had had these abilities since 2007.
Brooks testified at the evidentiary hearing that he has no
feeling in his right hand and can only barely grasp objects (Tr.
He has numbness and sharp pain in his elbow and,
sometimes, it swells at night, causing pain in his thumb.
During the day, while trying to play with his baby, he
experiences pain at a seven on a scale of ten which lasts for
about thirty minutes; this happens three times a day every day.
Tylenol and over-the-counter medications do not help; his doctor
would not prescribe medication for the pain (Tr. 230).
use two fingers on his right hand for picking up small objects
or buttoning his shirt.
Plaintiff does not have trouble using
his left arm though it bothers him some from using it so much.
Brooks said that he could lift about twenty pounds and stand for
twenty minutes at a time and up to three hours during an eighthour day; he could sit for thirty minutes at a time and three
and one-half hours during an eight-hour day.
walk for ten minutes at a time, but up to five hours a day.
said that he did not do any yard work or any tasks around the
He gets headaches three times a week which last for up
to one hour if he lies down and takes some Tylenol; he also has
elevated blood pressure.
Brooks testified that he could not tie
his shoes or put on his belt without help; he does not drive.
Renee Smith testified as a VE that she had reviewed the
record in this case and had been present for the testimony given
at the hearing (Tr. 242-51).
She testified that, if Plaintiff’s
testimony at the hearing were believed, he would not be able to
perform any of his past work as those jobs were at least medium
When the ALJ asked if Plaintiff could do any work,
the VE listed specific sedentary and light works jobs.
then posed a hypothetical question, based on the physical
capacities evaluation completed by Dr. Freij, with specific
limitations to which the VE said his previous response was still
applicable (Tr. 247; cf. Tr. 211-14).
In his determination, the ALJ found that Brooks could
perform less than a full range of light work (Tr. 14).
making this determination, he gave substantial weight to the
opinions and conclusions of Dr. Freij and found that Plaintiff’s
testimony of pain and limitations was not supported by the
evidence of record (Tr. 18).
The ALJ then found, based on the
VE’s testimony, that there were specific jobs which Brooks could
perform (Tr. 21).
This concludes the evidence of record.
Brooks first claims that the ALJ did not properly consider
his complaints of pain (Doc. 20, pp. 2-4).
The Court notes that
the standard by which the Plaintiff's complaints of pain are to
be evaluated requires "(1) evidence of an underlying medical
condition and either (2) objective medical evidence that
confirms the severity of the alleged pain arising from that
condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain."
Holt v. Sullivan,
921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler,
782 F.2d 1551, 1553 (11th Cir. 1986)).
The Eleventh Circuit
Court of Appeals has also held that the determination of whether
objective medical impairments could reasonably be expected to
produce the pain was a factual question to be made by the
Secretary and, therefore, "subject only to limited review in the
courts to ensure that the finding is supported by substantial
Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.),
vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated
sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986).
Furthermore, the Social Security regulations specifically state
statements about your pain or other symptoms
will not alone establish that you are
disabled; there must be medical signs and
laboratory findings which show that you have
a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent with the medical signs and
laboratory findings), would lead to a
conclusion that you are disabled.
20 C.F.R. 404.1529(a) (2010).
The Court notes that the ALJ found that Brooks experiences
a moderate degree of pain (Tr. 14).
However, he further found
that Plaintiff’s allegations of disabling pain were not
credible, pointing to the report of Dr. Freij whose physical
capacities evaluation expressed the opinion that Plaintiff was
capable of working; this determination was made after a physical
examination and nerve conduction studies.
Though finding that
Brooks was limited in using his right upper extremity, and
noting that certain things would exacerbate the pain he
suffered, the Neurologist clearly found that Plaintiff was able
The ALJ also noted that Plaintiff’s own testimony regarding
his daily activities demonstrated that his pain was not as
limiting as alleged (Tr. 19).
The Court notes that Brooks
testified that he could lift twenty pounds, sit for three and
one-half hours and walk for five hours during an eight-hour day;
this is not indicative of a person with debilitating pain.
Court further notes that Plaintiff has asserted that he had to
take Lortab because of the pain (Doc. 20, p. 4), but Brooks
testified that he had had to use over-the-counter medications
because his doctor would not prescribe pain medications (Tr.
Furthermore, while Dr. Kidd may have noted severe
osteoarthritic change (Doc. 20, p. 4; see also Tr. 203), he Kidd
did not find that Plaintiff was disabled.
In fact, no doctor
found that Brooks was disabled, because of his pain or
Plaintiff’s assertion that the ALJ did not properly
evaluate his allegations of pain is without merit.
Brooks next claims that the ALJ did not pose a proper
hypothetical question to the VE (Doc. 20, pp. 6-7).
specifically, Plaintiff asserts that the ALJ’s proposed queries
to the VE did not reference his headaches or hypertension.
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 vocational expert 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 notes that the record is, essentially, devoid of
information regarding hypertension or headaches.
did tell Dr. Freij that he was on hypertension medication (Tr.
204) and testified that he has high blood pressure and that
headaches require him to lie down three times a week (Tr. 239),
Plaintiff has failed to point to any medical evidence of such
(see Doc. 20).
In providing information to the Social Security
Administration, Plaintiff stated that he took high blood
pressure medication,3 but did not indicate that it was
uncontrolled or a reason he was seeking disability; rather,
those documents shows that Brooks was seeking benefits because
of his right arm injury (see Tr. 132-58; see specifically Tr.
136-37, 152, 154-56).
Again, the Court notes that there is no
medical evidence of uncontrolled hypertension or debilitating
As such, the Court finds that the ALJ’s failure to
include these impairments in the hypothetical to the VE was
Brooks’s claim otherwise is without merit.
Plaintiff next claims that the ALJ did not properly assess
his RFC (Doc. 20, pp. 5-7).
Brooks specifically asserts that
the ALJ failed to take into consideration his complaints of
In one place, though, the record states that the medication was
pain, uncontrolled hypertension, and need for Lortab when
reaching his RFC determination.
The Court notes that the ALJ is responsible for determining
a claimant=s RFC.
20 C.F.R. ' 404.1546 (2010).
In his decision,
the ALJ found that Brooks had
the residual functional capacity to perform
light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b). The claimant
has the following non-exertional
limitations: He can never use his right
dominant hand for repetitive action such as
in simple grasping, the pushing and pulling
of arm controls, and for fine manipulation.
He can continuously use his left hand for
repetitive action such as in simple
grasping, the pushing and pulling of arm
controls, and for fine manipulation. He can
continuously use his feet for repetitive
movement such as in the pushing and pulling
of leg controls. He can occasionally climb
and balance; frequently stoop, kneel, and
crouch; and never crawl. He can never reach
overhead with his right hand, but
continuously reach overhead with his left
hand. He can frequently work around moving
machinery, and occasionally work around
unprotected heights, drive automotive
equipment, and exposure [sic] to marked
changes in temperature and humidity. He
experiences a moderate degree of pain.
The Court finds substantial support for the ALJ’s
determination retarding Plaintiff’s RFC.
for pain and only taken as needed (Tr. 136).
These findings were
reached by Neurologist Freij after examination and testing.
other medical evidence is in conflict with these conclusions.
Furthermore, the Court has already found that Brooks’s claim
regarding his pain and limitation was without merit.
no further strength in its association with this claim.
Plaintiff’s final claim is that the ALJ did not conduct a
full and fair hearing (Doc. 20, pp. 7-8).
Brooks asserts the following:
“Mr. Brooks was late arriving to
Upon explaining Mr. Brooks’s tardiness to the ALJ,
the ALJ responded that the hearing could proceed without the
claimant, as he could not see how his testimony would be
relevant to the claim because this case only involved one arm
being impaired” (Doc. 20, p. 8).
Brooks notes that the
statement did not appear in the record and reveals the ALJ’s
The Court notes that the Eleventh Circuit Court of
Appeals has required that "a full and fair record" be developed
by the Administrative Law Judge even if the claimant is
represented by counsel.
Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981).
The Court finds no merit in this claim.
Even if the
improper statement was made, the medical evidence does not
support a finding of disability or that any of the ALJ’s
decisions was improperly reached.
Brooks has not demonstrated
any legal error in the ALJ’s decision.
Plaintiff has raised four different claims in bringing this
All have been found to be without merit.
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.
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
DONE this 11th day of July, 2011.
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?