Bennett v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER entered... 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 3/15/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CURTIS LEE BENNETT,

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

CIVIL ACTION 11-0387-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, 12).
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. 22).
argument was waived in this action (Doc. 21).

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
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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
fifty years old, had completed a ninth-grade education (Tr. 32),
and had previous work experience as an assembler at a lawn mower
factory and a forklift operator (Tr. 51).

In claiming benefits,

Plaintiff alleges disability due to residuals from an
electrocution injury and fall in 1990 (Doc. 12 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on June 26, 2008 (Tr. 120-25; see Tr. 14).

Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that Bennett was not capable of doing his
past relevant work but that he could perform specific light,
unskilled jobs (Tr. 14-24).

Plaintiff requested review of the
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hearing decision (Tr. 9-10) 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.

Specifically, Bennett

alleges the single claim that the ALJ failed in his duty to
develop the record by not ordering a consultative examination
(Doc. 12).

Defendant has responded to—and denies—this claim

(Doc. 17).

The relevant medical evidence of record follows.

On September 2, 2008, a consultative examination was
performed by Psychologist Richard S. Reynolds who found Bennett
to be oriented in four spheres; thought content was logical and
associations were tight (Tr. 236-38).

Recent and remote memory

were fair; judgment, insight, and decision making abilities were
intact.

In Reynolds’s opinion, Bennett’s “ability to

understand, carryout, remember instructions, and to respond
appropriately to supervision, co-workers, and work pressure in a
work setting maybe somewhat impaired by Major Depression, mild
secondary to medical” (Tr. 238).
On September 3, 2008, a consultative physical examination
was performed by Dr. Stephen J. Robidoux who noted that Bennett
was alert with slow mentation and slow, deliberate ambulation;
the doctor detected alcohol on Plaintiff’s breath (Tr. 213-17).
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Robidoux noted full range of motion (hereinafter ROM) in his
neck, back, and lower and upper extremities.

Bennett’s lungs

were taking in 98% oxygen with no rales, ronchi or wheezing; his
heart had a regular rate and rhythm without extra sounds,
murmurs, rubs, or heaves.

Plaintiff was able to squat and raise

and had normal heel and toe walking; the doctor noted that his
neuromuscular system was intact and normal with only a mild
intension tremor.

Robidoux’s impression was alcohol and tobacco

abuse; the doctor noted that Bennett would benefit from an
alcohol rehabilitation program.

There was no limitation to

sitting, standing, walking, lifting, carrying, talking,
listening, and handling objects.
Plaintiff’s treating physician, Dr. Subramonium Das, began
treating him on September 21, 1995 (Tr. 218-34).

X-rays taken

several days after that initial visit revealed no abnormalities
in the lumbar spine and no active cardiopulmonary disease (Tr.
231); an echocardiogram revealed mitral valve prolapse and
tricuspid valve prolapse while a Doppler study revealed mild
tricuspid and mild mitral regurgitation (Tr. 232).

A cardiac

catheterization, performed a month later, was normal (Tr. 23334).

A note from June 26, 2008, indicated that Bennett had no

sensation below the knee; the doctor’s impression was peripheral
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neuropathy and an electrocution injury in 1990 (Tr. 229).

Dr.

Das ordered tests, including nerve conduction studies and an
EMG, though there is no record that they were ever performed.
On September 5, 2009, Plaintiff was admitted to Vaughan
Regional Medical Center for two nights for a transient ischemic
attack on the right side (Tr. 239-55).

Though Bennett was

initially paralyzed in the right upper and lower extremities and
his speech was slurred, these conditions improved a few minutes
after being admitted to the Emergency Room; “the right-sided
weakness improved remarkably” (Tr. 240).

A CAT scan showed no

acute changes but did reveal an old right-sided stroke and some
atrophy.

At discharge, he had 4/5 power on both right

extremities and some weakness in his trapezius muscle on the
right side.

He had some facial drooping on the right side and

some slight slurring of speech.

This concludes all of the

medical evidence.
In this action, Bennett has claimed that the ALJ failed in
his duty to develop the record by not ordering a consultative
examination following his hospitalization (Doc. 12).

Though

acknowledging the two consultative exams that were performed,
Plaintiff asserts that another should have been completed
following his stroke.

The Court notes that the Eleventh Circuit
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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 ALJ summarized the medical evidence and found that
although he could not return to his previous work, there were
specific light work jobs which Bennett could perform (Tr. 1424).

The Court notes that the ALJ made the following specific

findings:

With regard to the transient ischemic
attack that occurred in September 2009,
there is no indication in the medical
evidence of record that this episode
resulted in neurological deficiencies or
other residual effects that would prevent
the claimant from performing work consistent
with the above residual functional capacity
assessment. His discharge summary notes
that the claimant had pronounced weakness on
the right side at the time of admission, but
the strength in his right upper and lower
extremities increased to 4 out of 5 while he
was still being treated in the emergency
room. During his hospital stay, he showed
no neurological deficits, and his vital
signs remained stable. He was discharged in
stable condition (Exhibit 6F, pgs. 1-2).
There is no indication in the record of
evidence that the claimant has sought any
follow-up treatment for residual effects or
other sequelae related to his transient
ischemic attack.

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(Tr. 20).
The Court finds that Bennett’s claim is of no merit.

The

hospital records indicate that Plaintiff had substantially
recovered at the time of his discharge from the transient
ischemic attack (hereinafter TIA).

The transcript also clearly

shows that Bennett sought no further medical treatment for
anything in the ten months between his hospitalization and the
day the ALJ entered his decision.

Plaintiff has not shown—much

less demonstrated—that his abilities were any different after
his TIA as compared to before he experienced it.
Bennett has raised a single claim in this action; that
claim is 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 15th day of March, 2012.

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

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