Grice v. Astrue

Filing 26

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 6/26/2012. (clr)

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

WILLIAM GRICE, JR.,

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

CIVIL ACTION 11-0650-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 15).

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.
25).

Oral argument was waived in this action (Doc. 24).

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
1

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-one years old, had completed a high school education (Tr.
38)1, and had previous work experience as an agricultural laborer
(Tr. 30-32; see Tr. 20).

In claiming benefits, Plaintiff alleges

disability due to degenerative disc disease, anxiety/depression,
obesity, and hypertension (Doc. 16).
The Plaintiff filed a protective application for SSI on
March 5, 2009 (Tr. 119-21; see Tr. 10).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although he could not return to any of his past

1

Error! Main Document Only.Grice testified that he had received a
Graduate Equivalency Degree (Tr. 38).

2

relevant work, Grice was able to perform specified light jobs
existing in the national economy (Tr. 10-22).

Plaintiff

requested review of the hearing decision (Tr. 116-17) by the
Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Grice alleges

(1) The ALJ did not properly consider the medical

evidence; and (2) the ALJ did not properly consider his obesity
(Doc. 15).

Defendant has responded to—and denies—these claims

(Doc. 20).

The relevant medical evidence of record follows.

On March 3, 2009, Plaintiff went to the Northport Medical
Center and received a hemorrhoidectomy which was complicated by
delirium tremens (Tr. 174-88).

He was released, with no

complications, after two nights with some Lortab2 for pain with
instructions not to engage in heavy lifting or strenuous
activity.
On May 30, 2009, Dr. Raveendran Meleth examined Grice who
appeared to be in discomfort; the doctor noted that Plaintiff
walked slowly and had difficulty bending forward and removing
his shoes and socks (Tr. 189-94).

2

He also had trouble getting

Error! Main Document Only.Lortab is a semisynthetic narcotic
analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).

3

onto the examination table and lying flat; he could straightraise his right leg to thirty degrees and his left leg ninety
degrees with no evidence of sciatica.

The doctor noted that

Grice was tremulous and that he had spasms in his back, right
hip, and right knee; he had abnormal posture.

Grice had normal

motor strength, bulk, and tone in all limbs except for his right
lower limb which was limited due to pain and spasm.
diagnosis was as follows:

Meleth’s

(1) low back injury, lumbar strain,

probably degenerative joint disease (hereinafter DJD); (2) neck
pain due to myalgia; (3) left trapezius was tender; (4) anxiety;
and (5) previous history of alcoholism.
X-rays of Plaintiff’s lumbar spine, taken on July 7, 2009,
revealed a slightly rotated RAL; vertebral body heights and
posterior vertebral body alignment were within normal limits
(Tr. 196).

Discogenic degenerative changes were present at the

L4-L5 level; degenerative changes were also noted at the right
sacroiliac joint.
A non-examining state physician, Dr. Richard Whitney,
looking at the hemorrhoidectomy hospital admission, noted that
Grice was wandering around the room with no evidence of leg
problems (Tr. 199).

He characterized Dr. Meleth’s examination

as having a negative straight leg raise; he summarized the
4

lumbar spine x-rays as showing mild DJD.

Whitney concluded that

there was no medical support for the limitations suggested by
Dr. Meleth.
Records show that Plaintiff was seen on November 18, 2009
by Gordon M. Forward, DSW, LCSW, at the Cahaba Mental Center and
was noted to be dysphoric, irritable, and easily distracted with
constricted affect and adequate judgment/insight; he was
diagnosed with major depressive disorder, recurrent, and alcohol
dependency (Tr. 224-36).

A psychiatric assessment was done on

March 25, 2010 during which Grice was noted to be oriented in
three spheres; he was dysphoric with only fair insight and
judgment (Tr. 227).

On May 3, Forward wrote the following

summary of his treatment of Grice:

William Grice is a client of the Cahaba
Center for Mental Health. He is now treated
for an anxiety disorder of long standing,
and several major disappointments in his
life with which he was unable to cope. This
led to alcohol dependency. He is now clean
and has sober thinking. However, he
continues to be socially withdrawn, easily
upset, cries a lot, stays away from people
and is not able to develop give in [sic]
take (working) relationships with others.
He is unable to hold gainful employment
during the next twelve months and nor is he
likely to be able to work at all in the
future.

5

(Tr. 225).
On July 12, 2010, Dr. Chris Searcy noted that Plaintiff
walked with a cane, in an irregular and halting gait, and was
apparently in distress (Tr. 257-60).

Grice winced with

palpation all along the spine, though it was worse in the
lumbosacral area; there was tenderness over the right sacroiliac
joint.

No abnormalities were noted in the extremities.

There

was severe limitation in the right hip range of motion, with
wincing with any movement; Plaintiff complained of pain with
flexion of the right knee, though Searcy thought it was righthip related.

The doctor’s diagnostic impression was disability

due to nearly incapacitating back pain, hypertension, and
anxiety disorder.

Searcy completed a medical source statement

in which he indicated that Grice was capable of sitting for one
hour and standing/walking for less than one hour during an
eight-hour day; Plaintiff was capable of lifting/carrying up to
five pounds occasionally and one pound frequently (Tr. 259).
The doctor indicated that Grice could also do the following:
use his fingers for fine manipulation and grasping, twisting,
and handling on an occasional basis; use arm and/or leg controls
and operate a motor vehicle only rarely; but could never climb
or balance, bend or stoop, reach or work around hazardous
6

machinery.

Searcy also anticipated that Plaintiff’s impairments

would likely cause him to miss work more than three times a
month.

The doctor also completed a questionnaire in which he

indicated that Grice’s pain was profound and intractable,
virtually incapacitating him and that physical activity would
increase his pain to such an extent that he would have to take
medication or go to bed (Tr. 260).
This concludes the medical evidence.

The Court will move

on to Plaintiff’s claims.
Grice first claims that the ALJ did not properly consider
the medical evidence.

More specifically, he asserts the

following three claims:

(1) the ALJ erred in relying on the

opinion of Dr. Whitney, a non-examining physician; (2) the ALJ
erred in rejecting the opinion of Dr. Searcy, the only examining
physician who provided a residual functional capacity
(hereinafter RFC) assessment; and (3) the ALJ erred in rejecting
the opinion of Mr. Forward, Grice’s treating counselor (Doc. 15,
pp. 2-6).
It is noted initially 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 opinion of any physician when the evidence supports a
7

contrary conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084

(5th Cir. 1981);3 see also 20 C.F.R. § 416.9527 (2012).

The

Court notes that 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).
Grice first argues that the ALJ erred in relying on the
opinion of Dr. Whitney, a non-examining physician (Doc. 15, pp.
2-3).

Plaintiff asserts that Whitney did not correctly

summarize the medical report in Dr. Meleth’s examination and
that he mischaracterized the results of the spine x-rays taken
on July 7, 2009 (id.; see also Tr. 199; cf. Tr. 189-94, 196).
The Court finds Grice correct in asserting that Whitney
ignored examination results by Dr. Meleth.

Specifically, the

straight leg raising test was positive in both legs and was done
with pain and tremors (Tr. 193); Whitney said that the test was
negative (Tr. 199).

Whitney also characterized the spine x-rays

as showing only mild DJD (Tr. 199) while the report itself never
used the word mild (Tr. 196).

Plaintiff specifically argues

3

The Eleventh Circuit, in the en banc decision Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to

8

that “[w]hile the ALJ did not claim to give any weight to Dr.
Whitney’s opinion, he did adopt Dr. Whitney’s opinion by
stating, ‘his X-rays reveal only mild degenerative disc disease’
(Tr. 20)” (Doc. 15, p. 3).
The Court notes that although the x-ray report does not use
mild in its description, the report does not indicate that the
impairment is of a severe nature either.

The Court finds that

the x-ray results could be fairly stated as mild.

The Court

finds that the ALJ’s characterization of Grice’s DJD as mild to
be, at most, harmless error.

The Court further finds that Dr.

Whitney’s incorrect summary of Dr. Meleth’s findings does not
render the ALJ’s decision to be without substantial evidence to
support it.
Plaintiff further asserts that the ALJ erred in rejecting
the opinion of Dr. Searcy, the only examining physician who
provided an RFC assessment (Doc. 15, pp. 3-4).

The ALJ’s

decision not to credit Dr. Searcy’s opinion is as follows:

Dr. Searcy’s physical assessment of the
claimant is rejected. Dr. Searcy examined
the claimant on only one occasion and it
does not appear he had the benefit of any
objective test. His Medical Source
Statement was not founded on medical
evidence but rather on the claimant’s
October 1, 1981.

9

allegations. The only objective findings in
the record report mild degenerative joint
disease of the back and sciatic joint. This
is not disabling to the point found by Dr.
Searcy. Dr. Searcy also found that the
claimant suffered severe pain, but
examinations have shown the claimant to be
alert, oriented and in no acute distress.
He was not taking any medication in March
2010 (Exhibit 10F). He has denied pain in
March 2009 (Exhibit 9F). At the time Dr.
Searcy examined the claimant in July 2010,
his only pain medication was over-thecounter Tylenol.

(Tr. 20).

The Court cannot say that the ALJ’s rejection of Dr.

Searcy’s RFC opinion is not supported by substantial evidence.
The ALJ is correct in noting that Dr. Searcy conducted no
objective medical tests in reaching his opinion, lending support
to the ALJ’s conclusion that the opinion was based on Grice’s
own subjective complaints.

Furthermore, the ALJ correctly noted

that Plaintiff was not on any pain medications which would
indicate the severe limitations suggested by Searcy.

Finally,

there is no other evidence in the record which indicates the
restrictions placed by Dr. Searcy.

The Court has already

addressed the ALJ’s characterization of Grice’s DJD as mild and
found it to be harmless.
Plaintiff also asserts that the ALJ erred in rejecting the
opinion of Mr. Forward, Grice’s treating counselor (Doc. 15, pp.
10

5-6).

Grice argues that although Forward was not a physician,

his opinion as a counselor could be accepted as an “other
source” under 20 C.F.R. § 416.913(d).4
In her decision, the ALJ gave Forward’s opinion no weight,
noting that he was a counselor instead of a doctor.

The ALJ

went on to state that “[h]is opinion is not supported by the
record of evidence and is made with the assumption that the
claimant had discontinued all substances; however, the claimant
continued to drink beer as late at [sic] July 2010” (Tr. 20).
The Court notes that the ALJ did not reject Forward’s
opinion solely because he was not a physician.

This is

important because the Counselor’s evidence could have been
considered as evidence from another source.

However, the ALJ

was correct in basing her decision on the fact that there was no
other medical evidence demonstrating that Grice’s mental
limitations would totally preclude him from working.

Forward’s

own records demonstrate that Plaintiff was not taking any sort
of medications.

Also, the evidence shows that Grice was

receiving treatment, at most, once a month; on the most recent

4

“In addition to evidence from the acceptable medical sources . .
. , we may also use evidence from other sources to show the severity
of your impairment(s) and how it affects your ability to work. . . .
Other sources include, but are not limited to (1) [m]edical sources
not listed in paragraph (a) of this section (for example, nursepractitioners, physicians’ assistants, naturopaths, chiropractors,

11

examination date, the same date that Forward indicated that
Plaintiff would be unable to sustain employment, Grice indicated
that he was doing “pretty well” while Forward indicated that his
GAF was 605 (Tr. 225-26).

This demonstrates that Forward’s notes

are not internally consistent.

Based on the medical evidence,

the Court finds no error in the ALJ’s rejection of Forward’s
opinion that Grice would not be able to work.
In summary, Plaintiff has raised three different claims as
to why the ALJ’s decision did not properly consider the evidence
of record.

The Court finds no merit in those claims.

Grice’s final claim is that the ALJ did not properly
consider his obesity.

More specifically, Plaintiff asserts that

his obesity was a factor that should have been considered in
connection with his degenerative disc disease (Doc. 15, pp. 67).

In Social Security Ruling 02-1p, the Social Security

Administration issued a ruling entitled Evaluation of Obesity
which examines the analysis for determining the following:
whether a person is obese (based on a formula known as the Body
Mass Index); whether the obesity is a medically determinable

audiologists, and therapists).”
5
“A GAF score between 51-60 indicates “moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational or school functioning
(e.g., few friends, conflicts with peers or co-work).” American
Psychiatric Association, Diagnostic and Statistical Manual of Mental

12

impairment; and whether the obesity is severe.

The latter

determination is made by determining whether “it significantly
limits an individual’s physical or mental ability to do basic
work activities.”

SSR 02-1p.

The Court notes that the ALJ found that Grice’s obesity was
a severe impairment (Tr. 12).

In the determination, the ALJ

noted that obesity often affected the ability to work before
going on to state that Plaintiff’s “obesity had been considered
in this decision and is not found to be affect [sic] the
claimant’s functioning so as to disable him” (Tr. 19).

While

the ALJ has not shared her analysis in reaching this decision,
the Court notes that Grice has failed to direct this Court’s
attention to any medical evidence suggesting that obesity
limited his ability to work.

The Court further notes that, in

the ALJ's findings, she lists Plaintiff's impairments and goes
on to state that he “does not have an impairment or combination
of impairments that meets or medically equals one of the listed
impairments 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
416.920(d), 416.925 and 416.926)” (Tr. 12).

This specific

language has been upheld by the Eleventh Circuit Court of
Appeals as sufficient consideration of the effects of the

Disorders, 32 (4th ed. 1994).

13

combinations of a claimant's impairments.

Jones v. Department

of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir.
1991) (the claimant does not have “an impairment or combination
of impairments listed in, or medically equal to one listed in
Appendix 1, Subpart P, Regulations No. 4").

Grice’s claim that

the ALJ did not properly consider her obesity is without merit.
In summary, Plaintiff has raised two different claims.
Both of those claims 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 26th day of June, 2012.

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

14