Lockett 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 2/15/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
DARRELL LOCKETT,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commission of Social Security,
Defendant.

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CIVIL ACTION 12-0427-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (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. 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
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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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
forty-three years old, had completed a high school education
(Tr. 30), and had previous work experience as a machine
operator, a security guard, and a grinder (Tr. 30-32).

In

claiming benefits, Plaintiff alleges disability due to
hypothyroidism, hypertension, osteoarthritis, and back pain
(Doc. 12).
The Plaintiff protectively filed an application for
disability insurance benefits on April 20, 2009 (Tr. 106-12; see
Tr. 12).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although he
could not perform his past relevant work, Lockett was capable of
performing specified light work jobs (Tr. 12-22).

Plaintiff

requested review of the hearing decision (Tr. 7) by the Appeals
Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence.
alleges that:

Specifically, Lockett

(1) The ALJ did not properly consider the

opinions and conclusions of his treating physician; and (2) the
ALJ did not state what weight he gave to some of the evidence
(Doc. 13).

Defendant has responded to—and denies—these claims

(Doc. 17).

The relevant evidence of record follows.1

On October 21, 2008, Lockett was seen at the Marion Clinic,
complaining of weight gain, leg swelling, and lower back
discomfort; lab results demonstrated Iatrogenic hypothyroidism
(Tr. 212; see generally Tr. 203-67).

On November 5, Plaintiff

indicated that his back pain was better; his fatigue had
improved with medication (Tr. 209).

Lockett declined the

doctor’s suggestion of physical therapy.

On December 8,

Plaintiff was noted to have very slight leg edema (Tr. 206).

On

January 27, 2009, Lockett complained of having low back pain
when he lies down, asserting that the pain was ten on a tenpoint scale; tenderness was noted over L4-5 (Tr. 204-05).
X-rays taken on April 4, 2008 at Vaughan Regional Medical
Center demonstrated that heart size and pulmonary vascular
caliber were normal; there was no pulmonary infiltrate (Tr. 274;
see generally Tr. 268-86).

A thyroid scan and uptake revealed

that the thyroid gland was grossly normal in size; no focal area

1

Plaintiff has asserted disability as of February 26, 2009 (Tr.
106), so the Court will not review the evidence that precedes that
date by an extended period of time.

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of increased or decreased uptake was present (Tr. 276).

An

ultrasound showed “[m]ild enlargement of the thyroid gland with
increased vascularity and heterogeneity which may be related to
the patient’s underlying history of thyroiditis” (Tr. 279).

On

October 21, 2008, an x-ray of the lumbar spine demonstrated
normal alignment with vertebral body heights and disk spaces
maintained (Tr. 281).
(Tr. 283).

Chest x-rays on December 8 were normal

Lumbar spine x-rays on January 27, 2009 were normal

(Tr. 285).
On June 12, 2008, Dr. Jorge A. Pino, of Diabetes and
Endocrinology Associates, examined Plaintiff, finding him in no
acute distress; his impression was Hyperthyroidism, Graves’ type
(Tr. 291-92; see generally Tr. 287-300).

Lockett underwent a

radioactive iodine treatment, following which he was stable and
doing well (Tr. 293).

It was reported on October 14 that

Plaintiff had become hypothyroid for which he was being treated
and, as of March 31, 2009, was doing better (Tr. 294-96).
On June 3, 2009, Lockett was examined by Dr. Sumathi Puttu
at the UAB Selma Family Medicine Center; Plaintiff complained of
low back pain, at a level of eight on a ten-point scale, which
radiated into his thigh and posterior leg (Tr. 310-18).

Lockett

noted that his symptoms were exacerbated by bending, lifting,
and changing positions although they were relieved by
medication; he also noted numbness and weakness.

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Plaintiff

listed Lortab2 and Flexiril3 among his current medications.

Dr.

Puttu noted numbness in Lockett’s right upper extremity and
lower extremities though he was in no acute distress; motor
strength was symmetrical with no obvious weaknesses.

The doctor

noted full strength in Plaintiff’s fingers, hands, wrists,
elbows, and shoulders; there was no tenderness, instability, or
weakness in the cervical and thoracic spine although there was
tenderness and restricted range of motion in the lumbosacral
spine secondary to pain.
A physical residual functional capacity (hereinafter RFC)
was completed on June 10, 2009 by Dr. Robert Heilpern who
reached his conclusions by reviewing the record evidence
available at that time (Tr. 319-26).

The Non-examiner

determined that Lockett could occasionally lift and carry fifty
pounds and frequently lift and carry twenty-five pounds; he
could also stand, walk, and sit for six hours, each, during a
workday.

Plaintiff would be able to use hand or foot controls.

Although Lockett would never be able to climb a ladder, rope, or
scaffolds, he could frequently climb stairs, balance, stoop,
kneel, crouch, and crawl.

It was Dr. Heilpern’s opinion that he

2

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
Error! Main Document Only.Flexeril is used along with “rest and
physical therapy for relief of muscle spasm associated with acute,
painful musculoskeletal conditions.” Physician's Desk Reference 145557 (48th ed. 1994).

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should not work at unenclosed heights.
On September 7, 2010, Lockett was examined by Psychologist
Donald W. Blanton who noted that his thoughts and conversation
were logical (Tr. 334-38).

On the Wechsler Adult Intelligence

Scale, IV, Plaintiff scored a full scale IQ of 69; this
corresponds to the mild range of mental retardation.

Blanton

indicated that Lockett had a moderate level of depression.

It

was the Psychologist’s opinion that Plaintiff had marked
limitations in his ability to understand, remember, carry out,
and use his judgment in following detailed or complex
instructions.
On September 29, 2009, Dr. Glenton Davis noted that
Plaintiff’s vital signs were stable, his abdomen was benign, and
his extremities were stable (Tr. 347; see generally Tr. 344-48).
The diagnosis was goiter, hypothyroidism, and osteoarthritis;
Naprosyn4 was prescribed.

On May 19, 2010, Lockett’s blood

pressure was 160/100 (Tr. 346).

On July 20, vital signs were

stable, cardiovascular was normal, the abdomen was benign, and
extremities were stable (Tr. 345).

On November 8, Dr. Davis

wrote a letter in which he stated that Lockett had a “history of
hypertension, hypothyroidism, and osteoarthritis, which is

4Error!
 Main
 Document
 Only.Naprosyn, or Naproxyn, “is a nonsteroidal

anti-inflammatory drug with analgesic and antipyretic properties”
used, inter alia, for the relief of mild to moderate pain.
Physician's Desk Reference 2458 (52nd ed. 1998).

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getting progressively worse” (Tr. 349).

The doctor noted that

he prescribed Naprosyn and had recently added hydrocodone5 and
Flexeril to help with pain.

Davis said that Lockett was one

hundred percent disabled, completing a physical medical source
statement that indicated that Plaintiff was capable of sitting,
standing, and walking for one hour each during an eight-hour
workday; he would be able to lift and carry no more than five
pounds.

Lockett should avoid dust, fumes, gasses, temperature

extremes, humidity, and other environmental pollutants.

It was

the Doctor’s opinion that Plaintiff should only occasionally use
arm or leg controls, engage in either gross or fine
manipulation, and operate motor vehicles; he could only rarely
climb, balance, bend, stoop, or reach.

Lockett would be totally

restricted from working with or around hazardous machinery.
Davis expressed the opinion that Plaintiff’s impairments would
cause him to miss work more than three times a month.

Dr. Davis

also completed a pain form in which he expressed the opinion
that Lockett’s pain would distract him from adequately
performing daily activities and that physical activity would
increase his pain so as to distract him or cause him to abandon
his task; the Doctor also found that his medications would cause
significant side effects, limiting his effectiveness (Tr. 352).

5Error!
 Main
 Document
 Only.Hydrocodone is used “for the relief of

moderate to moderately severe pain.”
27 (52nd ed. 1998).

7

Physician's Desk Reference 2926-

On December 15, 2010, Plaintiff complained of some pain and
stiffness daily; nevertheless, the examination was normal (Tr.
354).

On February 2, 2011, Plaintiff was again suffering from

pain and stiffness; vital signs were stable, lungs were clear,
and the abdomen was stable, though there was a breakout of
eczema (Tr. 353).

On February 14, Davis completed another

physical medical source statement and pain form that nearly
mirror the forms he had completed on November 3, 2010 (Tr. 35556; cf. Tr. 351-52).
The ALJ reviewed the evidence of record and determined that
Lockett had severe impairments of hypothyroidism, hypertension,
and osteoarthritis that would prevent him from performing his
past relevant work, but that he would still be able to perform a
reduced range of light work (Tr. 14-19).

In reaching that

decision, the ALJ discounted Plaintiff’s testimony, finding it
inconsistent with the other evidence of record (Tr. 19); the
Court notes that this finding has not been challenged in this
action.
18).

The ALJ also discounted the opinions of Dr. Davis (TR.

Relying on the testimony of a vocational expert, the ALJ

listed specific jobs that Plaintiff could perform existing in
the national economy (Tr. 20).
In bringing this action, Plaintiff first claims that the
ALJ did not properly consider the opinions and conclusions of
his treating physician.

Lockett specifically refers to the

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evidence provided by Dr. Glenton W. Davis (Doc. 13, pp. 4-6).
It should be noted 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 contrary
conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.

1981);6 see also 20 C.F.R. § 404.1527 (2012).
The ALJ reviewed the evidence provided by Dr. Davis and his
conclusions as to what the evidence meant, but gave it “little
weight because it [was] not supported by the objective medical
evidence; it [was] inconsistent with other substantial medical
evidence of record of the claimant; multiple prior X-rays
(Exhibit 3F); and the findings and observations contained in
Exhibit 8F do not support his opinions” (Tr. 18).

The Court finds substantial support for the ALJ’s
determination that Davis’s opinions should be given little
weight.

The Court first notes that Lockett’s complaint that the

ALJ did not accord him treating doctor status, referring to him
instead as a “consultative examiner,” is, at most, harmless
error.

The ALJ reviewed all of the doctor’s medical notes and

forms included in the record (Tr. 17, 18; cf. Tr. 344-56).

Dr.

 6The 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 October 1,
1981.

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Davis’s medical notes, however, do not support the extreme
limitations—and 100% disability—suggested by him.

There is no

objective medical evidence in this record that supports Davis’s
conclusions.

The Court notes that medical records from Vaughan

Regional Medical Center demonstrated normal heart and pulmonary
function, normal chest and lumbar spine x-rays, and only a mild
enlargement of the thyroid gland (Tr. 268-86).

Furthermore, the

results of a thorough medical examination by Dr. Sumathi Puttu
belie Davis’s conclusions (Tr. 310-18).

Specifically, although

Puttu found some numbness in Lockett’s right upper extremity and
lower extremities, he had full strength in his fingers, hands,
wrists, elbows, and shoulders; although there was tenderness and
restricted range of motion in the lumbosacral spine secondary to
pain, Plaintiff told him that his medications relieved his
symptoms.

The Court finds no merit in Lockett’s claim that the

ALJ did not properly consider the conclusions of his treating
doctor.
Plaintiff next claims that the ALJ did not state what
weight he gave to some of the evidence.

More specifically,

Lockett asserts that the report by Dr. Puttu is not signed and
should be disregarded; Plaintiff further complains that the ALJ
did not explain what weight he gave Dr. Puttu’s opinion as a
non-examining physician (Doc. 13, pp. 6-7).
The Court finds that Dr. Puttu’s report was electronically

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signed and meets the requirements implemented by the Social
Security Administration.

See POMS § DI 26510.089(A)(4) (“Each

medical assessment form must have a reviewing Medical
Consultant’s actual physical signature or an approved electronic
signature”).7
Plaintiff has also pointed to Vuxta v. Commissioner of
Social Security, 194 Fed.Appx. 874 (11th Cir. 2006) for the
holding that because he did not rely on the conclusions of the
treating physician, the ALJ had to explain what weight he gave
to the non-examining physician (Doc. 13, p. 7).

While Lockett’s

citation of law is correct, its application is misplaced here as
Dr. Puttu was an examining doctor.

While the ALJ did not cite

specifically what weight he was giving to Puttu’s conclusions,
he gave it more than Dr. Davis’s as he relied on Puttu’s
examination to discredit the conclusions of the treating
physician.

The Court notes that the ALJ stated that he gave

great weight to the opinion of the nonexamining physician (Tr.
17).

Plaintiff’s claim is without merit.
Lockett 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

7

See https://secure.ssa.gov/apps10/poms.nsf/lnx/0426510089
(visited on February 14, 2013).

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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 14th day of February, 2013.

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

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