Brooks v. Astrue

Filing 29

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
NORTHERN DIVISION

CLARENCE BROOKS,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

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).

Oral

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.

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.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

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).

In

claiming benefits, Brooks alleges disability due to the
following impairments:

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).

Plaintiff

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.
that:

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
(Doc. 20).

Defendant has responded to—and denies—these claims

(Doc. 22).

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
repair.

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).

“All

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).

Plaintiff was

diagnosed as having right arm atrophy and neuropathy so was
1

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.
fixed.

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:

The

“(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).
2
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).

This is

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.

He is

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.

Brooks

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
(Tr. 214).

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.
228-).

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).

He can

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.

Plaintiff could

walk for ten minutes at a time, but up to five hours a day.

He

said that he did not do any yard work or any tasks around the
house.

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
level work.

When the ALJ asked if Plaintiff could do any work,

the VE listed specific sedentary and light works jobs.

The ALJ

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).

In

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
evidence."

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
the following:

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
to work.
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
10

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.

The

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.
230).

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
otherwise.

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).

More

specifically, Plaintiff asserts that the ALJ’s proposed queries
to the VE did not reference his headaches or hypertension.

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 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
11

1561 (11th Cir. 1985).
The Court notes that the record is, essentially, devoid of
information regarding hypertension or headaches.

While Brooks

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
headaches.

As such, the Court finds that the ALJ’s failure to

include these impairments in the hypothetical to the VE was
reasonable.

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

3

In one place, though, the record states that the medication was

12

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.

(Tr. 14).

The Court finds substantial support for the ALJ’s

determination retarding Plaintiff’s RFC.

for pain and only taken as needed (Tr. 136).

13

These findings were

reached by Neurologist Freij after examination and testing.

No

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.

It gains

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:
the hearing.

More specifically,

“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
bias.

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
14

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
action.

All have been found to be 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 11th day of July, 2011.

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

15