Jones v. Astrue

Filing 24

MEMORANDUM OPINION AND ORDER entered. Oral argument was waived in this action. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, 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 1/27/12. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

LINZY LAMAR JONES,

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

CIVIL ACTION 11-0279-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, 13).
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. 21).
argument was waived in this action (Doc. 23).

Oral

Upon

consideration of the administrative record, the memoranda of the
parties, and oral argument, it is ORDERED that the decision of
the Commissioner be AFFIRMED and that this action be DISMISSED.
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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
twenty-three years old, had completed a high school education
(Tr. 27), and had previous work experience as a lumber worker
(Tr. 38-39).

In claiming benefits, Plaintiff alleges disability

due to asthma and depression (Doc. 13).
The Plaintiff filed protective applications for disability
insurance benefits and SSI on July 9, 2008 (Tr. 99-103; see Tr.
9).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although
Jones could not perform his past relevant work, there were
specific jobs in the medium work category which he could perform
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(Tr. 9-19).

Plaintiff requested review of the hearing decision

(Tr. 5) by the Appeals Council, but it was denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Jones alleges

(1) The ALJ improperly found that he is capable of

performing medium work; and (2) he cannot perform sustained work
activities in an ordinary work setting (Doc. 13).

Defendant has

responded to—and denies—these claims (Doc. 18).
The Court notes that Plaintiff relies only on the medical
evaluations of Dr. Freij and Psychologist Popkin in making his
claims (Doc. 13).

The Court will review those records herein.

Dr. Walid W. Freij, a consultative physician, examined
Jones on February 15, 2007 (Tr. 158-60).

Freij first noted that

Plaintiff was in no acute distress and that there was no
wheezing in the lungs; there was no limitation in the cervical,
thoracolumbar, or lumbosacral spine.

Jones had full motor

power; deep tendon reflexes were only 2/5.

Dr. Freij’s

assessment was asthma, saying that it was “rather severe based
on the history where patient has to use [a] nebulizer twice a
day sometimes” (Tr. 159).

The Doctor’s additional comments were

as follows:

Based on above history and physical
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examination, patient should avoid jobs that
will expose him to too much dust, fumes, and
smells. He also should avoid jobs that
require him to strain himself continuously.
He would be able to sit. Standing can also
be done. Walking can be done, but not for a
prolonged period of time. He is able to
carry and lift, but this should not be done
excessively since that can exacerbate his
asthma. The patient will be able to hold
objects, manipulate objects. He is able to
hear, speak, and travel. Patient will need
to be treated for his asthma properly. He
is using the nebulizer from his mom, and is
really not being prescribed any medications
from any physician. He will need to be on
medications that he can use chronically to
prevent these asthmatic attacks.

(Tr. 160).
On September 30, 2008, Samuel J. Popkin, a non-examining
Social Security Psychologist, completed a mental residual
functional capacity (hereinafter RFC) assessment in which he
found that Jones had no marked limitations, but was moderately
limited in his ability to do the following:

understand and

remember detailed instructions; carry out detailed instructions;
maintain attention and concentration for extended periods;
perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances; sustain
an ordinary routine without special supervision; work in
coordination with or proximity to others without being
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distracted by them; complete a normal workday and workweek
without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and
length of rest periods; interact appropriately with the general
public; accept instructions and respond appropriately to
criticism from supervisors; get along with coworkers or peers
without distracting them or exhibiting behavioral extremes;
maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness; respond appropriately to
changes in the work setting; travel in unfamiliar places or use
public transportation; and set realistic goals or make plans
independently of others (Tr. 243-44).

Popkin also opined that

Plaintiff “may be expected to miss 1 or 2 days of work per month
due to exacerbation of psychiatric symptoms” (Tr. 245).
In his decision, the ALJ reached the following conclusion:

I find that the claimant has the residual
functional capacity to perform medium work
as defined in C.F.R. 404.1567(c) and
416.967(c). Specifically, the claimant is
able to lift or carry up to 25 pounds
frequently and 50 pounds occasionally; stand
or walk up to 6 hours in an 8 hour day; sit
up to 6 hours in an 8 hour day; frequently
climb ramps or stairs; no climbing ladders,
ropes or scaffolding; frequently balance,
kneel, crouch, crawl and stoop. No
manipulative or visual limitations. Avoid
concentrated exposure to temperature
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extremes, dust, humidity, wetness, fumes,
odors, chemicals and gases; avoid all
exposure to hazardous machinery and
unprotected heights; unlimited exposure to
noise and vibration. Communicative
limitations are the ability to understand,
remember and carry out simple one and two
step instructions; and the ability to use
judgment in simple, one or two step work
related decisions; the claimant has moderate
limitations in his ability to respond
appropriately to customers or the general
public, supervision, coworkers and customary
work pressures; moderate limitations in
using judgment in detailed or complex work
related decisions; understanding,
remembering or carrying out detailed or
complex instructions and moderate
limitations in maintaining attention;
concentration or pace for periods of at
least 2 hours.

(Tr. 13).

In reaching this decision, the ALJ found that Jones

did have some symptoms and limitations, but not to the extent
alleged (Tr. 14).1

He went on to find that Plaintiff’s “treating

and examining physicians do not indicate the claimant’s medical
condition would preclude him from performing medium work
activities, as described in the above residual functional
capacity assessment” (Tr. 17).

More specifically, the ALJ gave

“great weight to their diagnoses and opinions to the extent that
they are not inconsistent with the functional limitations noted
in the above residual functional capacity assessment” (id.).

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The ALJ noted that Popkin’s opinion deserved some weight, but
not as not as much as the opinions of treating and examining
medical sources (id.).
In bringing this action, Jones first asserts that the ALJ
improperly found that he was capable of performing medium work
(Doc. 13, pp. 4-7).

The Court notes that “[m]edium work

involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds.

If

someone can do medium work, we determine that he or she can also
do sedentary and light work.”

20 C.F.R. § 404.1567(c) (2011).

The Court finds that the Plaintiff’s RFC, as found by the ALJ,
is consistent with the regulations’ definition of medium work.
Plaintiff has more specifically asserted, however, that the
ALJ did not properly consider the limitations found by Dr.
Freij.

Freij had indicated that Plaintiff should not have a job

where he has to lift and carry things “excessively” and that he
should not be required to walk for a “prolonged period of time”
(Tr. 160).
The Court finds that these restrictions are less than
clear, at best.

The Court notes that no physician other than

Freij placed any physical restrictions on Jones.

1

Also, the

The Court notes that Plaintiff did not challenge this finding.

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doctor admits that his opinion is based on Plaintiff’s
subjective complaints (Tr. 160); the fact that no diagnostic
tests or procedures were performed by Freij limits the value of
the evaluation as well.

Finally, Jones’s own testimony that he

has been working part-time, unloading trucks and stocking
shelves (Tr. 27-28), belies his claim that he is unable to
perform work requiring the ability to lift and carry and walk on
a sustained basis.

Plaintiff’s claim that the ALJ did not

properly consider his ability to perform medium work is not
supported by the evidence of record.
Jones next claims that he cannot perform sustained work
activities in an ordinary work setting (Doc. 13).

In asserting

this claim, Plaintiff points to Psychologist Popkin’s opinion
that he “may be expected to miss 1 or 2 days of work per month
due to exacerbation of psychiatric symptoms” (Doc. 13, p. 9; cf.
Tr. 245).
As acknowledged by the ALJ, the opinion of a nonexamining
physician Ais entitled to little weight and taken alone does not
constitute substantial evidence to support an administrative
decision.@

Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th Cir.

1990) (citing Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir.
1985).

No other medical evidence of record suggests this type
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of limitation.

Even more telling, Plaintiff, by his own

testimony, missed only three days, at most, in working part-time
during the six months he claims to have been disabled (Tr. 2829).

This claim is of no merit.
Jones has raised two different 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."

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),
that this action be DISMISSED.

and

Judgment will be entered by

separate Order.
DONE this 27th day of January, 2012.

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

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