Jackson v. Astrue

Filing 20

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 4/18/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BEATRICE HARRIS JACKSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,1
Defendant.

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CIVIL ACTION 12-0548-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. 19).
argument was waived in this action (Doc. 18).

Oral

Upon

consideration of the administrative record and the memoranda of

1Carolyn W. Colvin became the Commissioner of Social Security on

February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is substituted
for Michael J. Astrue as Defendant in this action. No further action needs
to be taken as a result of this substitution. 42 U.S.C. § 405(g).

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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
fifty-four years old, had completed an eleventh-grade education
(Tr. 35), and had previous work experience as a tax preparer and
machine operator (Tr. 36).

In claiming benefits, Plaintiff

alleges disability due to osteoarthritis, asthma, hypertension,
and chronic obstructive pulmonary disease (Doc. 13 Fact Sheet).
The Plaintiff filed protective applications for disability
insurance and SSI on March 23, 2009 (Tr. 125-31; see also Tr.
19).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that in spite of
her impairments, Jackson was capable of returning to her past

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relevant work as a cigar inspector (Tr. 19-26).

Plaintiff

requested review of the hearing decision (Tr. 14) 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.
alleges that:

Specifically, Jackson

(1) The ALJ did not properly consider the opinion

of one of the examining physicians; (2) the ALJ improperly found
that her testimony of pain and limitation was not credible; and
(3) the ALJ failed to consider her poverty as a reason for nontreatment (Doc. 13).

Defendant has responded to—and denies—

these claims (Doc. 14).

The relevant evidence of record

follows.
On January 25, 2008, Plaintiff underwent a CT of the brain
that was normal (Tr. 241-42).
On January 28, 2008, records from Davis Family Medicine
show that Jackson’s acute sinusitis headache from three days
earlier was resolving (Tr. 251; see generally Tr. 243-73).

On

April 7, she was treated for acute sinusitis and hypertension,
receiving several prescriptions, including one for Keflex2 (Tr.
250).

On May 19, Plaintiff had a tension headache for which she

2Error!
 Main
 Document
 Only.Keflex is used for the treatment of various

infections.

Physician's Desk Reference 854-56 (52nd ed. 1998).

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was given a shot of Toradol3 (Tr. 249).

A week later, she was

seen for joint pain and stiffness; the assessment was
osteoarthritis, asthma, and hypertension (Tr. 248).

On October

17, 2008, Jackson had sinus congestion and some chronic pain and
stiffness (Tr. 247); on December 12, she was treated for acute
sinusitis and asthma (Tr. 246).

In all of these visits to Davis

Family Medicine, Plaintiff’s lungs were clear.
On June 26, 2009, Jackson was examined by Dr. Jamil Akhtar
for complaints of pain in both knees; the doctor noted a normal
examination, though she did have hypertension (Tr. 278-80; see
generally Tr. 276-80).

On July 8, Plaintiff was wheezing and

complaining of shortness of breath for which she was using the
nebulizer; Albuteral4 and Advair were prescribed (Tr. 277).
Records dated September 8, 2009 from Vaughan Regional
Medical Center show that Jackson was having problems with her
asthma; testing demonstrated signs of fatigue (Tr. 285-95, 297302, 318-23; see generally Tr. 281-302).
On May 20, 2010, Dr. Robert M. Combs examined Plaintiff who
was characterized as well-developed, slightly overweight, and in
no acute distress (Tr. 304-11).

He noted her lungs had no

3Toradol is prescribed for short term (five days or less)

management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).
4Error!
 Main
 Document
 Only.Albuterol is the generic name for an

inhalation aerosol used to prevent and relieve “bronchospasm in
patients with reversible obstructive airway disease, and for the
prevention of exercise-induced bronchospasm.” Physician's Desk
Reference 2656 (52nd ed. 1998).

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wheezes, rales, or rhonchi; she had good breath sounds at the
bases, well augmented on deep inspiration.

Combs noted full

range of motion of joints in the extremities with no limitation;
her blood pressure was 140/78.

The doctor’s impression was that

she had no limitation of daily activities and “no significant
limitation in doing work-related activity such as sitting,
standing, walking or lifting or carrying or handling objects”
(Tr. 304).

Dr. Combs completed a medical source statement in

which he indicated that Jackson was capable of lifting and
carrying up to ten pounds frequently and twenty pounds
occasionally, but never more than twenty pounds; he thought that
Plaintiff could stand and walk, each, for two hours and sit for
eight hours at a time and do all three for eight hours during a
normal workday.

The doctor indicated that Jackson was capable

of using her hands for reaching overhead frequently, but
reaching (in general), handling, fingering, feeling, and pushing
and pulling movements continually; she could use foot controls
frequently.

Combs said that Plaintiff could climb, balance,

stoop, kneel, crouch, and crawl only occasionally.
On May 20, 2010, Plaintiff underwent pulmonary function
testing, giving good effort (Tr. 313-16).

No bronchodilator was

given.
On June 1, 2010, Dr. Glenton Davis diagnosed Plaintiff to
be suffering from otitis media and sinusitis for which she was

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prescribed Amoxil5 and Phenergan6 (Tr. 325).
On June 7, 2010, Dr. Osasere Aghedo examined Jackson who
was in no acute distress (Tr. 327-31).

He noted that the

tympanic membranes in both ears appeared to be fluid-filled; his
diagnosis was acute serious otitis media, eusatachian tube
dysfunction, hearing loss, nasal septal deviation, and allergic
rhinitis.
At the hearing, Plaintiff testified that in her past work
as a cigar inspector, she checked the tobacco and weighed the
cigars on a daily basis; she would have to lift up to twentyfive pounds fairly frequently (Tr. 35-44).

Jackson had problems

with arthritis, knee pain, and breathing problems; using the
inhaler to help her breathe made her sleepy.

Arthritis affected

her hands, knees, and toes, making her ache all over.

Plaintiff

regularly had problems with ear infections and sinusitis; she
has also had problems with mitral valve prolapse, though she had
not had any problems in more than eight months.

Jackson stated

that she could only walk about fifteen steps on a bad day; she
has five-to-six bad days a week.

Plaintiff testified that she

does not get out much, going to church only twice a month.

Her

hypertension medication made her sleepy, requiring that she lie

5Error! Main Document Only.Amoxil is an antibiotic used for the

treatment of infection. Physician's Desk Reference 2792-93 (52nd ed.
1998).
6
Error! Main Document Only.Phenergan is used as a light sedative.
Physician's Desk Reference 3100-01 (52nd ed. 1998).

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down.

The pain in Jackson’s legs, arms, and hands measured ten

on a ten-point scale, though after taking Lyrica,7 it dropped to
an eight or nine; her doctor provided the medicine as she could
not afford it.

Plaintiff slept only about three hours a night

because she woke up with pain or unable to breathe.
Dr. Michael McClanahan, a vocational expert, testified
concerning Plaintiff’s past previous work (Tr. 44-46).

When

questioned by the ALJ about a hypothetical person with Jackson’s
vocational background who could “perform a range of light
unskilled work with no work at unprotected heights, no work with
hazardous machinery, [and] no concentrated exposure to
respiratory irritants,” McClanahan stated that the person would
be able to do Jackson’s past work as a cigar inspector (Tr. 45).
In his decision, the ALJ summarized the evidence of record
and determined that Jackson was capable of performing light work
(Tr. 19-26).

He went on to conclude that she was capable of

returning to her past relevant work as a cigar inspector.

This

concludes the relevant evidence.
In bringing this action, Jackson first claims that the ALJ
did not properly consider the opinion of one of the examining
physicians.

She specifically references Dr. Robert Combs (Doc.

13, pp. 11-13).

It should be noted that "although the opinion

7Lyrica is used for the management of neuropathic pain.

Main
 Document
 Only.Physician's Desk Reference 2517 (62

7

nd

Error!

ed. 2008).

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);8 see also 20 C.F.R. § 404.1527
(2012).
In evaluating the evidence, the ALJ noted that no treating
physician had provided sufficient evidence to assess Jackson’s
residual functional capacity for light work (Tr. 25).
Nevertheless, the ALJ found that Dr. Combs was a specialist and
that his opinions were consistent with the evidence as a whole;
for those reasons, the ALJ gave significant weight to Dr. Combs’
opinions (Tr. 25).
Jackson’s specific complaint is that the ALJ did not adopt
all of Dr. Combs’ conclusions about her abilities.

Plaintiff

argues that the ALJ’s opinion cannot be accepted because he did
not include in his hypothetical Combs’ opinions about all of her
particular abilities.

More specifically, Dr. Combs had found

that Jackson was capable of the following:

using her hands for

reaching overhead on a frequent basis; reaching (in general),
handling, fingering, feeling, and pushing and pulling movements

8The 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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on a continual basis; and climb, balance, stoop, kneel, crouch,
and crawl only occasionally (Doc. 13, p. 13; cf. Tr. 308-09).
The Court is not aware of any law or regulation that
requires the ALJ to ask a vocational expert whether every
particular action found by a physician, whose opinion is being
relied on by the ALJ, can be performed by a claimant at a
specific job.

Plaintiff has not argued that any of the

“limitations” found by Dr. Combs would affect her ability to do
the job of cigar inspector and the Court notes that Jackson’s
job, as she described it, did not require her to climb, stoop,
kneel, or crawl; although she had to handle and reach, Dr. Combs
found that she could perform these motions on a continual basis
(Tr. 179-80; cf. Tr. 308).

The Court finds no merit in this

claim.
Plaintiff next claims that the ALJ improperly found that
her testimony of pain and limitation was not credible.

More

specifically, Jackson asserts that the ALJ failed to explain why
he rejected her testimony (Doc. 13, pp. 5-11).

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

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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) (2012).
In his decision, the ALJ noted that Jackson had “little, if
any, follow-up treatment” for her asthma and chronic obstructive

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pulmonary disease; he went on to note that there were no
emergency room or hospital visits for these severe impairments
(Tr. 24).

He went on to note that in the only test of record,

she performed the PFT test without a bronchodilator and that her
treating physician noted that her lungs were clear (Tr. 24-25).
The ALJ found that there was no evidence that her otitis media,
allergies, hypertension, and osteoarthritis would keep her from
working (Tr. 25).

Noting that Plaintiff had admitted that she

left her job as a cigar inspector because the plant closed, the
ALJ found that there was no evidence of significant
deterioration in her health since working at that job (Tr. 25;
cf. Tr. 37).

Finally, the ALJ noted that Dr. Combs’ opinions of

Jackson’s abilities would not preclude her from working (Tr.
25).

The Court finds that these are all valid reasons,

supported by the evidence, to have rejected Plaintiff’s
testimony of her pain and limitations.

Jackson’s claim

otherwise is without merit.
Plaintiff’s final claim is that the ALJ failed to consider
her poverty as a reason for non-treatment (Doc. 13, pp. 13-15).
It is noted that the Eleventh Circuit Court of Appeals has held
that poverty excuses noncompliance with medical treatment.
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
Jackson has pointed to two instances in the record where
there is some indication of a lack of finances.

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Specifically,

she told Dr. Combs that she had taken Lyrica for pain but had
had to switch doctors because of finances, so the Lyrica was no
longer prescribed (Tr. 304).

She also testified at the

evidentiary hearing that she could not afford to purchase the
Lyrica (Tr. 43).
The Court notes that these are the only two references in
the entire record regarding Jackson’s finances and they relate
to the same circumstance:
medication.

an inability to purchase one

There is no other record evidence of Plaintiff

failing to receive treatment because of an inability to pay;
Jackson has not argued otherwise.

This claim is of no merit.

Plaintiff has raised three different claims in bringing
this action.

All 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), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.

DONE this 18th day of April, 2013.

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

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