Danley v. Colvin

Filing 31

MEMORANDUM OPINION AND ORDER entered that the Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5thCir. 1980), and that this action be DISMISSED. Judgment will be entered by separate Order. Signed by Magistrate Judge Bert W. Milling, Jr on 9/27/2013. (mjn)

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

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION 13-0081-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, 20).
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. 30).
argument was waived in this action (Doc. 28).

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

1

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
thirty-five years old, had completed a high school education
(Doc. 20 Fact Sheet), and had previous work experience as a
restaurant manager, a server, and a telemarketer (Tr. 56-57).
In claiming benefits, Plaintiff alleges disability due to HIV,
diabetes, high blood pressure, right leg and lower back pain,
depression, and anxiety (Doc. 20 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on February 8, 2011 (Tr. 117-29; see Tr. 13).

Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that although he could not return to his
past relevant work, Danley was able to perform specific light
work jobs (Tr. 13-23).

Plaintiff requested review of the

hearing decision (Tr. 8-9) by the Appeals Council, but it was
denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not

2

supported by substantial evidence.
that:

Specifically, Danley alleges

(1) The ALJ did not properly consider the opinions of his

treating physicians; (2) the ALJ did not properly consider
Plaintiff’s testimony; (3) the ALJ did not properly consider the
combination of his impairments; and (4) the ALJ did not develop
a full and fair record (Doc. 20).
and denies—these claims (Doc. 25).

Defendant has responded to—
The relevant evidence of

record follows.
The Court notes that Danley alleges to have been disabled
since December 1, 2010 (Tr. 117).

The medical records preceding

that date, generated more than four months before then (Tr. 194232, 254-72), will not be reviewed herein.
On February 14, 2011, Plaintiff was seen at the Emergency
Room of the Jackson Hospital & Clinic for complaints of lower
back pain, radiating down into his right leg (Tr. 233-44).
Danley was having no problem walking, though he had a mild limp;
there was no tenderness in the extremities.

An x-ray revealed

possible mild degenerative disc disease at L5-S1, but was
otherwise normal (Tr. 244).

Plaintiff was discharged with

prescriptions for Lortab1 and Flexeril.2

1Error! 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).
2Error!
 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).

3

On February 15, 2011,3 Danley was seen at the University of
Alabama in Birmingham 1917 Clinic (hereinafter 1917 Clinic) to
reestablish care for his HIV (Tr. 248-53).
chronic diarrhea, nausea, and vomiting.

He was experiencing

Plaintiff was diagnosed

to be HIV positive and to have poorly-controlled type two
diabetes mellitus, hypertension, and low back pain with
radiculopathy.
Records from Vaughan Regional Medical Center (hereinafter
Vaughan RMC) show that Plaintiff was admitted on March 4, 2011,
for two nights, for a possible insect bite to his neck with
accompanying fever, chills, headache, and nausea (Tr. 304-10).
Danley was treated with an antibiotic.
On May 17, 2011, Psychologist Lee Stutts examined Danley,
finding him to be fully oriented, calm, and cooperative (Tr.
274-76).

Motor skills were grossly intact and he walked without

assistance.

Memory, judgment, and insight were intact.

Plaintiff was estimated to have an average IQ.

Stutts diagnosed

Danley to have depressive disorder, not otherwise specified;
there could have been a degree of personality disturbance.

It

was the Psychologist’s opinion that Plaintiff’s “ability to
understand and to carry out and remember instructions [was]

3

Plaintiff visited the clinic on February 2, 2011 to initially
reestablish care after having lived away from the area for a period
(Tr. 251-53). No actual treatment or assessment was made at that
time.

4

moderately impaired” and that his “ability to respond
appropriately to supervision, coworkers and the public [was]
moderately impaired” (Tr. 276).
On June 7, 2011, Psychologist Donald E. Hinton completed a
Psychiatric Review Technique Form in which he indicated that
Danley suffered from an Affective Disorder characterized by
depression (Tr. 277-90).4

It was the Psychologist’s opinion that

Danley experienced mild restriction of activities of daily
living, moderate difficulties in maintaining social functioning,
and moderate difficulties in maintaining concentration,
persistence, or pace (Tr. 287).

On that same date, Hinton

completed a mental residual functional capacity (hereinafter
RFC) assessment in which he indicated that Plaintiff was
moderately limited in his ability to do the following:
understand, remember, and carry out detailed instructions;
maintain attention and concentration for extended periods;
interact appropriately with the general public; and respond
appropriately to changes in the work setting (Tr. 291-94).

The

Psychologist expressed the further opinions that Danley could
maintain attention and concentration for two-hour periods and
that he should only have minimal changes in his work setting.
On September 8, 2011 Plaintiff went to the Vaughan RMC with

4The Court notes that Hinton did not examine Danley personally

but made his determinations based on the medical records in existence
at the time of his evaluation.

5

complaints of back and right leg pain; he rated the pain,
characterized as dull, as five on a ten-point scale (Tr. 297303).

Muscle spasms were noted in the back but there was no

tenderness or problem with Danley’s range of motion (hereinafter
ROM); his extremities were normal.

Plaintiff was given pain

medication, a corticosteroid, and a prescription for
hydrocodone.5
On January 30, 2012, Plaintiff was seen at the 1917 Clinic
for complaints of back and right leg pain, anxiety, and
depression (Tr. 333-34; see generally Tr. 315-36).

Danley

reported that he had been hospitalized for an attempted suicide
the prior month.

The doctor found that Plaintiff’s HIV was

poorly controlled as he was not adhering to his medical regimen;
he was also non-compliant with his hypertension and diabetes.
Danley was encouraged to take his medicine and was given a
prescription for Xanax.6

On February 1, Plaintiff reported

depression, angry outbursts, fights, isolation and auditory
hallucinations; his doctor indicated that he was at a moderate
risk for another suicide attempt and was counseled on strategies
for coping with issues of guilt, shame, and regret (331-33).

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

moderate to moderately severe pain.” Physician's Desk Reference 292627 (52nd ed. 1998).
6
Error! Main Document Only.Xanax is a class four narcotic used
for the management of anxiety disorders. Physician's Desk Reference
2294 (52nd ed. 1998).

6

Danley was examined on March 26, 2012 at which time he
complained of continued depression and hearing voices; he
admitted that he had occasionally not taken his medications (Tr.
322-24).

On examination, the doctor noted that Plaintiff’s HIV

was improved, but not suppressed, and that he was still noncompliant with his diabetes; his prescription for Celexa7 was
continued.

On May 16, a consulting endocrinologist noted that

Danley’s diabetes had never been well-controlled (Tr. 317-18).
Treatment records from the Cahaba Center for Mental Health
on April 4, 2012, show that Plaintiff was anxious; he had
planted some flowers with his grandmother (Tr. 338-41).

On

April 25, it was noted that Danley’s blood sugars had been up
and down; he was not suicidal.
On April 23, 2012, Plaintiff was seen at Vaughan RMC for
high blood sugar; he reported malaise, weakness, achiness,
nausea, and vomiting (Tr. 351-59).

The doctor noted mild

distress; Danley was diagnosed with acute gastritis and given a
prescription for his nausea.

On June 30, Plaintiff was seen for

moderate pain in his right upper arm; the doctor noted no ROM
issues (Tr. 343-50).

Cellulitis was diagnosed and Lortab was

prescribed.
On July 12, 2012, records from the Cahaba Center for Mental

7Celexa

is used in treating depression. Error! Main Document
Only.Physician's Desk Reference 1161-66 (62nd ed. 2008).

7

Health show that Danley’s diagnosis of Depressive Disorder was
confirmed (Tr. 361-63).
continued.

Prescriptions for Celexa and Xanax were

On August 2, it was reported that Plaintiff was

compliant with his medications and that he was suffering no side
effects (Tr. 364).
At the evidentiary hearing, Plaintiff testified that he
quit working because he was too sick (Tr. 36).

Danley was

nauseated, fatigued, and had a headache (Tr. 36).

He was also

suffering excruciating right leg pain, which he rated as nine on
a ten-point scale; he took Neuronton8 for it (Tr. 36-38).
Plaintiff took a lot of different medications, causing stomach
pain, diarrhea, drowsiness, and constant tiredness; the
combination also caused fluctuations in his blood sugar (Tr. 4041).

Nausea caused Danley to vomit three or four times a day;

he had to lie down to stop the leg pain (Tr. 41).
spent 90-95% of his time in bed (Tr. 42).

Plaintiff

Danley has a health

care provider who cleans the house, washes the dishes and bed
linens, sweeps the floor, and prepares light meals (Tr. 42).
Plaintiff has attempted suicide several times; he has trouble
concentrating and remembering things (Tr. 43).

Danley’s only

social interaction is with relatives (Tr. 43).

He sleeps only

three or four hours a night (Tr. 43-44).

Danley has trouble

8Error!
 Main
 Document
 Only.Neurontin is used in the treatment of

partial seizures.

Physician's Desk Reference 2110-13 (52nd ed. 1998).

8

standing, walking, and sitting; he has experienced both auditory
and visual hallucinations (Tr. 46).

Plaintiff testified that he

had sharp, shooting pain that starts in his lower back and goes
down through his leg into the bottom of his foot (Tr. 52).

He

stated that he did not think that he had any symptoms from the
HIV itself, but that it caused him to take longer to heal (Tr.
53).

Plaintiff suffers from both depression and anxiety (Tr.

54).

He can only do a few household chores; his leg pain and

panic attacks prevent him from driving very often (Tr. 54-55).
A Vocational Expert testified at the hearing about
Plaintiff’s past work and then, following some questions from
the ALJ, listed jobs available that a hypothetical person with
Danley’s vocational abilities was capable of performing (Tr. 5561).
Plaintiff’s Grandmother, Melvia Danley, testified that
Danley lives in her house, though not with her, and that she
pays all of the bills because he has been unemployed for a long
time (Tr. 62-67).

She visits when she can and brings food to

him; he is depressed, suicidal, and his condition has gotten
worse.

His mind has deteriorated, he has trouble concentrating,

and he does very little around the house.

He lies in bed all of

the time and is in a considerable amount of pain.
In his decision, the ALJ found that Plaintiff had the
residual functional capacity to perform less than a full range

9

of light work (Tr. 18).

He found that although Danley suffered

some pain and exertional limitations, his impairments were not
as debilitating as indicated (Tr. 19-20).

The ALJ gave

considerable weight to the opinions of Dr. Stutts and
Psychologist Hinton (Tr. 20-21).

The ALJ also adopted the

conclusions of the VE as his own, specifically finding that
there were jobs that Danley could perform (Tr. 22-23).
This concludes the relevant evidence of record.
Plaintiff first claims that the ALJ did not properly
consider the opinions of his treating physicians (Doc. 20,
pp. 7-8).

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);9 see also 20
C.F.R. § 404.1527 (2013).

In raising this claim, Plaintiff points to no medical
evidence that was ignored and fails to identify any physician
whose opinion was given short shrift (Doc. 20, pp. 7-8).

Though

Plaintiff provides a short review of his symptoms (Doc. 20, pp.

9The 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.

10

4-5), there is no assertion that any particular medical
conclusion has been ignored.
On the other hand, the Court finds that the ALJ faithfully
reported the medical evidence and credited the evidence on which
he relied in reaching his decision.

The Court finds the ALJ’s

decision to be supported by substantial evidence.

Plaintiff’s

claim otherwise is without merit.10
Plaintiff next claims that the ALJ did not properly
consider his testimony (Doc. 20, pp. 12-13).

Danley goes on to

assert that the ALJ failed to “provide explicit and adequate
reasons” for discounting it (id. at p. 12).
The Court notes that the ALJ specifically found that
Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible
to the extent they are inconsistent” with his RFC assessment

10

In reaching this decision, the Court notes that it has not
considered the evidence provided to the Appeals Council by Plaintiff
from the UAB School of Medicine (Tr. 377). Error! Main Document
Only.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." Cherry v. Heckler, 760 F.2d
1186, 1193 (11th Cir. 1985). 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.
In this action, Plaintiff has not claimed that the Appeals
Council improperly denied review of this evidence. Therefore, the
Court will not consider it.

11

(Tr. 19).

The ALJ goes on to note that Danley’s asserted date

of disability, December 1, 2010, bears no relationship to any
medical evidence in the record (id.).

He then notes that

Plaintiff’s “treatment has been essentially routine and/or
conservative in nature, which suggests that his symptoms may not
be as severe as alleged in connection with this application”
(id.).

The ALJ went on to note that Danley’s “complaints to

treating physicians are inconsistent with symptoms of the
severity alleged at the hearing” (id. at p. 20).

The Court

would further note that there is medical evidence that Plaintiff
has been non-compliant with his doctor’s medical advice (Tr.
322-24, 333-34).

The Court finds that Danley’s claim that the

ALJ did not properly consider his testimony is without merit.
Plaintiff next claims that the ALJ did not properly
consider the combination of his impairments (Doc. 20, pp. 8-11).
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
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."

12

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 he “does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1" (Tr. 15).

This 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").

Danley’s claim otherwise is without merit.

Plaintiff’s final claim is that the ALJ did not
develop a full and fair record.

Danley goes on to assert

that the ALJ improperly found that he did not have a mental
impairment and did not have him evaluated for that
impairment (Doc. 20, pp. 11-12).

The Eleventh Circuit

Court of Appeals has required that "a full and fair record"
be developed by the ALJ even if the claimant is represented
by counsel.

Cowart v. Schweiker, 662 F.2d 731, 735 (11th

Cir. 1981).

13

The ALJ specifically found that Plaintiff had the severe
impairment of depression (Tr. 15).

The ALJ went on to find that

Danley did not meet the requirements of Listing 12.04, going
through the specific analysis as to why he did not meet the
Listing (Tr. 16-17).

The Court also notes that Plaintiff

received treatment, including prescriptions from a psychiatrist,
at the Cahaba Center for Mental Health for over a period of four
months (Tr. 337-41, 360-64), evidence that did not go unnoted by
the ALJ (Tr. 21).

It should also be noted that Plaintiff

underwent a consultative psychological evaluation by Dr. Stutts,
ordered by the Social Security Administration (Tr. 273-76).
Danley’s claim that the ALJ did not fully develop the record is
without merit.
Plaintiff has raised four claims in this action.
without merit.

All are

Upon consideration of the entire record, the

Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
at 401.

Perales, 402 U.S.

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.
entered by separate Order.
DONE this 27th day of September, 2013.

14

Judgment will be

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

15