Pritchett v. Astrue

Filing 22

MEMORANDUM AND OPINION 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 7/29/2013. (clr)

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

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CIVIL ACTION 12-0768-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, 14).
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. 18).
argument was waived in this action (Docs. 20-21).

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 test for

substantial evidence 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 high school education (Tr. 38),
and had previous work experience as a press operator and sewing
machine operator (Tr. 38, 40).

In claiming benefits, Plaintiff

alleges disability due to hypertension, spondylosis, low back
pain, vertigo, carpal tunnel syndrome, depression, and frequent
urination (Doc. 13).
The Plaintiff filed applications for disability insurance
and SSI on March 16, 2010 (Tr. 90-97; see also Tr. 26).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that Pritchett was capable of
performing her past relevant work (Tr. 26-31).

Plaintiff

requested review of the hearing decision (Tr. 11-15) by the
Appeals Council, but it was denied (Tr. 1-7).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

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Specifically, Pritchett

alleges that:

(1) The ALJ did not properly consider all of her

impairments; (2) the ALJ did not consider the combination of her
impairments; (3) the ALJ’s determination of her residual
functional capacity (hereinafter RFC) is incorrect; (4) the ALJ
did not pose a complete hypothetical question to the vocational
expert (hereinafter VE); and (5) the Appeals Council did not
properly consider newly-submitted evidence (Doc. 14).1
has responded to—and denies—these claims (Doc. 15).

Defendant

The

evidence of record follows.
On December 8, 2006, Plaintiff was examined at Yellow Bluff
Health Center, complaining of a knot under her left arm; she was
in no apparent distress (Tr. 193; see generally Tr. 173-218).
Pritchett was told to apply a hot compress to the area; Keflex2
and Diovan3 were prescribed.

On March 15 and September 4, 2007,

Plaintiff was seen—and prescribed medications—for hypertension
(Tr. 192).

On November 28, Pritchett denied having any

problems; she had prescriptions refilled on March 26, 2008 (Tr.
191).

Plaintiff’s next visit to the Center was on February 4,

2009 when she complained of back pain for one week that was
noted to be tender; in addition to her hypertension medications,

1The Court notes that Plaintiff lists only three claims under the

“Claims on Appeals” heading in her brief; however, claims three and
four were argued in the substance of the arguments.
2
Keflex is used for the treatment of various infections.
Physician's Desk Reference 854-56 (52nd ed. 1998).
3
Diovan is used to treat hypertension. Physician's Desk
Reference 1841-43 (52nd ed. 1998).

3

Pritchett was prescribed Naproxen4 (Tr. 190-91).

A year later,

on March 15, 2010, Plaintiff complained of frequent urination
and the knot under her left arm (Tr. 190).5
On April 27, 2010, Dr. Huey Kidd, D.O., performed a
consultative examination in which he found that Pritchett had a
full range of motion (hereinafter ROM) in her extremities (Tr.
219-20).

Plaintiff had 5/5 strength in the upper extremities

except for abduction of the shoulders, being only able to abduct
to about 110º bilaterally; grip strength in both hands was 5/5.
Pritchett had good dexterity; fine dexterity appeared normal.
Plaintiff was able to heel walk, toe walk, bend and touch her
toes, and squat and stand without difficulty, though she was a
little clumsy; she walked without a limp.

Dr. Kidd’s impression

was that Pritchett had carpal tunnel syndrome.
On May 3, 2010, Dr. E. Russell March, Jr., completed a
residual functional capacity assessment, based on the medical
evidence available at that time, in which he indicated that
Pritchett was capable of lifting and carrying up to fifty pounds
occasionally and up to twenty-five pounds frequently (Tr. 22128).

Pritchett would be able to sit, stand and/or walk up to

4Naprosyn, 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).
5Consistent with most of the notes from Yellow Bluff Health

Center and Dr. Edward Childs (a doctor at the Center), these medical
records are indecipherable.

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six hours each during an eight-hour day.
trouble with hand and/or foot controls.

She would have no
She would be limited in

reaching and handling.
On June 7, 2010, Dr. Edward Childs noted that Plaintiff had
a sixteen-year history of intermittent low back pain; he noted
tenderness in the lumbar muscles for which Flexeril6 was
prescribed (Tr. 234-35; see generally Tr. 231-37).

On June 28,

2010, Pritchett was seen for a follow-up examination and
reported no symptoms or side effects from her medications; her
blood pressure was under control (Tr. 233).

On July 27,

Plaintiff complained of increased blood pressure and dizziness
for the previous five days; on examination, blood pressure was
120/84 (Tr. 232).

Pritchett also complained of cervical back

pain, radiating into her legs; the doctor noted tenderness.

On

August 24, Plaintiff complained of numbness in her hands and
decreased grip strength (Tr. 231).
Records from the Yellow Bluff Health Center show that, on
July 22, Pritchett had complaints of headaches and feeling
light-headed (Tr. 246; see generally Tr. 239-56).

On October

19, Plaintiff had upper respiratory congestion (Tr. 245).

On

November 30, Pritchett had a productive cough, but no dizziness,

6Error! 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 1455-57 (48th ed. 1994).

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fever, or chills (Tr. 244).

On January 3, 2011, Plaintiff had a

headache and was feeling light-headed (Tr. 243).

On February

28, Pritchett had a headache, a trigger thumb on her right hand,
and lower back pain with decreased ROM in both shoulders; the
doctor noted L4 – S1 tenderness and mildly diminished abduction
in the shoulders (Tr. 259).

On April 28, 2011, Pritchett was

found to have uncontrolled hypertension and migraine headaches
(Tr. 265).

On May 31, the doctor noted that Plaintiff’s

increased hypertension tended to be associated with her
headaches; back pain was intermittent (Tr. 265).

On June 28,

Pritchett complained of headaches, radiating into her neck, and
lower back pain (Tr. 264).

X-rays of the lumbar spine two days

later revealed minimal scoliosis or malposition, resulting in a
diagnosis of mild spondylosis (Tr. 267).
On July 5, Dr. Childs completed a clinical assessment of
pain in which he indicated that Pritchett suffered pain at a
level that would distract her from performing daily activities
and that physical activity would increase her pain, but not to
the point of preventing adequate functioning (Tr. 269-70).

The

doctor indicated that pain medication would cause significant
side effects that would limit her work duty effectiveness;
Childs expected little improvement in her pain over time and
expressed the opinion that her pain would get worse.

The doctor

also completed a statement indicating his opinion that Pritchett

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was capable of sitting for four hours, standing for three hours,
and walking for one hour at a time and during an eight-hour day
(Tr. 272-74).

Plaintiff would be capable of lifting and

carrying up to ten pounds frequently and twenty pounds
occasionally.

Dr. Childs found Plaintiff capable of simple

grasping, pushing and pulling of arms controls, and fine
manipulation frequently with the left hand, but only
occasionally with the right hand; she could use leg controls
frequently.

Pritchett could stoop, crouch, kneel, crawl,

balance, and reach occasionally, but never climb; he thought she
would miss one day of work per month because of her impairments.
On August 30, 2011, records from Yellow Bluff Health Center
show that Plaintiff complained of head pain, radiating into her
neck (Tr. 290).

In a note from October 18, Plaintiff stated

that the medications that she was taking for her back helped for
only a short period of time before the pain returned (Tr. 294).
The ALJ rendered a determination that Plaintiff was capable
of returning to her past previous work (Tr. 26-31).

In reaching

this decision, the ALJ found that Pritchett’s complaints of pain
were not credible to the extent alleged (Tr. 30).

The ALJ gave

significant weight to Dr. March’s assessment (Tr. 30).

This

concludes the medical evidence of record.
In bringing this action, Pritchett first claims that the
ALJ did not properly consider all of her impairments.

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More

specifically, she asserts that the ALJ did not consider her
mental impairment or depression (Doc. 14, pp. 2-4).

As support

for her claim, Plaintiff points to two different instances in
the record where she had contact with the Social Security
Administration (hereinafter SSA) in seeking benefits in which
she mentions these impairments.

In the first, an SSA employee

reported the following contact:
I contacted the CL regarding her ADLs
as she mentions: “Some days I try to do
some cooking, laundry start feeling light
headed, dizziness and depressed go sit
down.” I asked the CL if her “depressed”
state prevented her from working and she
denied it and stated that “my blood pressure
and my hands hurt a lot. It’s my hands that
give me a lot of problems.”
(Tr. 149).

In another questionnaire for SSA, Plaintiff answered

a question about her daily activities by stating that
“Everything has changed my whole life.
myself going places.
work.

I’m used to doing for

Now all of that have change.

I can’t

So I have a physical and mental problem and very

depressed everyday can’t sleep at nite.

For pain and

depression” (Tr. 157).
The Court notes that there is no record of Plaintiff ever
receiving any mental health treatment; Pritchett has not
directed this Court to any evidence that she even suggested
these impairments to any of her treating physicians (see Doc.

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14).

She made no complaints of a mental impairment or

depression at her hearing before the ALJ (Tr. 37-47).
Plaintiff’s statements of symptoms alone are insufficient
to establish a severe impairment.

20 C.F.R. § 404.1508 (2013)

(“A physical or mental impairment must be established by medical
evidence consisting of signs, symptoms, and laboratory findings,
not only by your statement of symptoms”).

The Court further

notes that an “ALJ is under no obligation to seek independent,
additional expert medical testimony before concluding that an
impairment is not severe.”

Sneed v. Barnhart, 214 Fed.Appx.

883, 886 (11th Cir. 2006) (citing Wilson v. Apfel, 179 F.3d 1276,
1278 (11th Cir. 1999)).

Furthermore, the ALJ is not required to

go through the process of examining a mental impairment,
discussed in 20 C.F.R. § 404.1520a, when the record provides
nothing more than Plaintiff’s assertions of impairment.

See

Rudolph v. Apfel, 2000 WL 207878, at *3 (S.D. Ala. February 16,
2000).

Pritchett’s claim otherwise is without merit.

Plaintiff next claims that the ALJ did not consider the
combination of her impairments.

She asserts that the ALJ did

not consider her dizziness, lightheadedness, and vertigo (Doc.
14, pp. 4-6).
It is true that "the Secretary shall consider the combined
effect of all of the individual's impairments without regard to
whether any such impairment, if considered separately, would be

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of such severity."

42 U.S.C. § 423(d)(2)(C).

The Eleventh

Circuit Court of Appeals has noted this instruction and further
found that "[i]t is the duty of the administrative law judge to
make specific and well-articulated findings as to the effect of
the combination of impairments and to decide whether the
combined impairments cause the claimant to be disabled."

Bowen

v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984); see also Reeves
v. Heckler, 734 F.2d 519 (11th Cir. 1984); Wiggins v. Schweiker,
679 F.2d 1387 (11th Cir. 1982).
In the ALJ's findings, he lists Plaintiff's impairments and
concludes by saying that she “does not have an impairment or
combination of impairments that meets or medically equals one of
the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1" (Tr. 29).

This specific language has been upheld by

the Eleventh Circuit Court of Appeals as sufficient
consideration of the effects of the 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").

Plaintiff’s claim is without merit.

Pritchett next asserts that the ALJ’s determination of her
RFC is incorrect (Doc. 14, p. 3).

This claim seems to be based

on the ALJ’s failure to discuss her mental impairments or the

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combination of her impairments, already discussed herein.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546.

The Court also notes

that the social security regulations state that Plaintiff is
responsible for providing evidence from which the ALJ can make
an RFC determination.

20 C.F.R. § 416.945(a)(3).

As the Court

has already found that Plaintiff’s prior two claims lack merit,
and they form the basis for this claim, the Court finds that
this claim, too, lacks merit.
Pritchett next claims that the ALJ did not pose a complete
hypothetical question to the VE.

Plaintiff again references her

dizziness, lightheadedness, and vertigo as being missing in the
query to the VE (Doc. 14, p. 5).

The Eleventh Circuit Court of

Appeals has held that an ALJ's failure to include severe
impairments suffered by a claimant in a hypothetical question to
a vocational expert to be reversible error where the ALJ relied
on that expert's testimony in reaching a disability decision.
Pendley v. Heckler, 767 F.2d 1561 (11th Cir. 1985).
The Court notes that the ALJ did not find any of these
impairments to be severe (Tr. 28).

In Brady v. Heckler, 724

F.2d 914, 920 (11th Cir. 1984), the Eleventh Circuit Court of
Appeals held that "[a]n impairment can be considered as not
severe only if it is a slight abnormality which has such a
minimal effect on the individual that it would not be expected

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to interfere with the individual's ability to work, irrespective
of age, education, or work experience."

Brady v. Heckler, 724

F.2d 914, 920 (11th Cir. 1984); Flynn v. Heckler, 768 F.2d 1273
(11th Cir. 1985); cf. 20 C.F.R. § 404.1521(a).7

The Court of

Appeals has gone on to say that "[t]he 'severity' of a medically
ascertained disability must be measured in terms of its effect
upon ability to work, and not simply in terms of deviation from
purely medical standards of bodily perfection or normality."
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

It is

also noted that, under SSR 96-3p, “evidence about the
functionally limiting effects of an individual’s impairment(s)
must be evaluated in order to assess the effect of the
impairment(s) on the individual’s ability to do basic work
activities.”
Plaintiff has not demonstrated that the incidence of the
symptoms to which she points—dizziness, lightheadedness, and
vertigo—would prevent her from working.

Without this showing,

these impairments cannot be said to be severe and the ALJ’s
failure to include them in hypothetical questions to the VE
would not be error.
Finally, Pritchett claims that the Appeals Council did not
properly consider newly-submitted evidence.

Plaintiff

 7"An impairment or combination of impairments is not severe if it
does not significantly limit your physical or mental ability to do
basic work activities."

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references the evidence appearing at pages 260-95 (Doc. 14, pp.
6-8).
It should be noted that "[a] reviewing court is limited to
[the certified] record [of all of the evidence formally
considered by the Secretary] in examining the evidence."
v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985).

Cherry

However, “new

evidence first submitted to the Appeals Council is part of the
administrative record that goes to the district court for review
when the Appeals Council accepts the case for review as well as
when the Council denies review.”

Keeton v. Department of Health

and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994).

Under

Ingram v. Commissioner of Social Security Administration, 496
F.3d 1253, 1264 (11th Cir. 2007), district courts are instructed
to consider, if such a claim is made, whether the Appeals
Council properly considered the newly-submitted evidence in
light of the ALJ’s decision.

To make that determination, the

Court considers whether the claimant “establish[ed] that:

(1)

there is new, noncumulative evidence; (2) the evidence is
'material,' that is, relevant and probative so that there is a
reasonable possibility that it would change the administrative
result, and (3) there is good cause for the failure to submit
the evidence at the administrative level."

Caulder v. Bowen,

791 F.2d 872, 877 (11th Cir. 1986).
The Appeals Council found that the new evidence did not

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provide a basis for changing the ALJ’s decision as it was all
generated after the ALJ’s decision had been rendered and did not
purport to relate back to the period of time under consideration
(Tr. 2).

Except for the evidence appearing at Tr. 261-67, this

is true.

Even so, the Court has reviewed all of the evidence

and summarized it herein and finds that it would not have
changed the ALJ’s decision.

Even the strongest of the evidence,

the pain form and the form detailing Plaintiff’s physical
abilities completed by Dr. Childs (Tr. 269-70, 272-74), is
unsupported by objective medical evidence in the doctor’s own
records or by any other physician of record.

Pritchett’s claim

that the Appeals Council did not properly consider the newlysubmitted evidence is without merit.
Plaintiff has raised five different claims in 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."
U.S. at 401.

Perales, 402

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 29th day of July, 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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