Howard v. Colvin
Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability and disability insurance benefits income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 7/31/2014. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
TOMMIE LEE HOWARD,
CAROLYN W. COLVIN,
Commissioner of Social Security,*
Civil Action No. 2:13-00140-B
brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying his claim for a
Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
On April 15, 2014, the parties consented to have the undersigned
conduct any and all proceedings in this case. (Doc. 13).
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.
Plaintiff protectively filed an application for a period of
disability and disability insurance benefits income on September
8, 2009. (Doc. 15 at 1; Tr. 105-08).
Plaintiff alleges that he
has been disabled since June 19, 2009 due to a back injury,
carpal tunnel syndrome, feet problems, arthritis in his knees,
and high cholesterol. (Tr. 144).
Plaintiff’s applications were
denied and upon timely request, he was granted an administrative
(hereinafter “ALJ”) on May 9, 2011. The hearing was attended by
Plaintiff, his attorney, and a vocational expert (hereinafter
“VE”). (Id., at
(Id., at 13-26).
The Appeals Council denied Plaintiff’s request
for review on January 25, 2013. (Id., at 1-3).
Thus, the ALJ’s
decision dated June 20, 2011 became the final decision of the
The parties waived oral argument (Docs. 14, 16),
and agree that this case is now ripe for judicial review and is
properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
Issue on Appeal
Whether substantial evidence supports the ALJ’s
III. Factual Background
Plaintiff was born on November 25, 1955, and was 55 years
of age at the time of his administrative hearing on September
16, 2010. (Tr. 49).
Plaintiff testified at the hearing that he
graduated from high school and worked for the city of Demopolis,
Alabama for 26 years.
According to Plaintiff, during the last
15 - 18 years with the city, he worked as a street sweeper.
(Id., at 33, 36).
Plaintiff testified that he retired from the
city in January 2009, and although he found another job, he quit
the job in June 2009 because he hurt his back in April 2009.
(Id., at 50).
Plaintiff testified that on a regular day, his
lower back pain is an eight (8) out of ten (10) on the pain
scale and it radiates down to his left leg in varying degrees of
severity. (Id., at 37-38). He also testified that he cannot
perform any work, including a job that would allow him to sit or
stand even without any lifting due to the pain in his back.
(Id., at 42-43).
On Plaintiff’s function report, he reported that his daily
chickens, and watching the news. (Id., at 135, 139).
reported that he has no limitations with regard to his personal
dinners, that he washes dishes daily, and that he drives a car.
(Id., at 136-37).
Plaintiff also reported that he is able to
lift up to 45 – 50 pounds. (Id., at 140).
following relevant findings:
3. The claimant has the severe impairments of back
The claimant’s prior treatment history reflects
nerve conduction studies from 2008 that revealed
findings indicative of mild right ulnar neuropathy
indicative of right medial neuropathy at the wrist.
endoscopic carpal tunnel release and right ring
complaints of right hand pain and paresthesia. No
surgical complications were indicated…
Medical records for DCH Medical Center beginning in
May 2009 reflect the claimant was treated for low
back pain subsequent to injuring his back while
cutting/lifting firewood in April 2009.
treatment notes indicated the claimant’s pain level
was increasing and remained unabated with pain
An x-ray of the lumbar spine taken
May 2, 2009 revealed straitening of the lumbar
spine was present.
There was no evidence of
claimant underwent an intrathecal injection/lumbar
myelogram followed by a CT scan in July 2009.
Findings from the CT revealed the claimant had a
left-sided disc bulge or protrusion, which filled
the left neural foramina resulting in the crowding
of the nerve root as it exited the neural foramen.
No spinal stenosis was identified.
of the study demonstrated mild disc bulge in the
lower lumbar spine without evidence of foraminal
stenosis or spinal stenosis. X-rays of the lumbar
The ALJ also determined that Plaintiff has not engaged in
substantial gainful activity since June 19, 2009, and that he
does not have an impairment or combination of impairments that
meets or medically equals any of the listed impairments
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id., at
spine also taken in July 2009 revealed no acute
abnormality. The claimant’s diagnosis included low
back pain, left lower extremity radiculitis, L4-5,
L5-S1 disc abnormality, and failure of conservative
Records from the SpineCare Center reflect the
claimant was referred for evaluation, testing and
consideration of injection therapy on May 5, 2009
in relation to complaints of low back pain
subsequent to cutting/lifting firewood in April
The claimant described his pain as aching,
stinging, sharp, severe, and constant in nature.
On a pain scale of 1 to 10, his pain level was
rated as an 8/10 and at a 10/10 at its worst. The
radiation into the lateral aspect of the left lower
The objective findings of the report
showed his lumbar examination was normal to
Range of motion testing revealed he
experienced increased pain with flexion at 45
There was palpation tenderness in the
mid-lumbosacral region and left paraspinous muscles
with increased tone.
Examination of the bilateral
upper and lower extremities revealed no atrophy or
His hand grasp was 5/5.
Strait leg raise
was negative but with increased pain to the low
back at 90 degrees. Muscle strength was 4/5 in the
left leg and 5/5 in the right leg. The diagnostic
impressions of the claimant included low back pain;
left extremity radiculitis; probable lumbar disc
herniation; and failure of conservative treatment.
The claimant under a L4-5 and L5-S1 transforaminal
epidural injection with fluoroscopy on May 14, 2009
and a caudal epidural injection under fluoroscopy
with intraoperative epidurogram on May 28, 2009
Treatment notes dated May
29, 2009 reflect the claimant presented with
complaint of a constant dull aching pain in his
left lower extremity radiating down to his left
ankle as well as low back pain subsequent to
lifting a heavy log firewood in April 2009.
treatment note indicates the claimant stated his
back pain had improved. His pain level at the time
was noted at 5/10 and had ranged from a level 2/10
to a level 8/10 during a two-week period.
reported his primary problems involved bending and
lifting. He also reported he had received previous
treatment for prior back problems.
taking medication intermittently.
modalities for pain control…
Treatment records from July 2009 reflect the
claimant presented for a lumbar CT myelogram.
complained of ongoing low back pain since April
2009. The claimant’s pain was described as aching,
stinging, sharp, severe, and constant in nature.
He had also developed left leg numbness. His pain
level was rated at an 8/10 and at a level 10/10
when at its worst. The treatment records indicated
the claimant had previously received epidural
examination revealed a normal lumbar examination.
The claimant’s range of motion showed increased
pain with flexion, lying to sitting. The bilateral
lower extremities were without edema, erythema or
Sensation was normal and straight leg
raising was negative but caused increased pain of
the low back at 90 degrees.
Muscle strength was
4/5 in the left leg and 5/5 in the right leg.
Diagnostic impression of the claimant included low
back pain; left extremity radiculitis; L4-L5 left
foraminal disc protrusion resulting in impingement
of the exiting left L4 nerve; at L5-S1 left
paracentral/foraminal annular tear likely with a
mild bulge resulting in mild left neural foraminal
narrowing; and a failure of conservative treatment.
The claimant received Toradol and Robaxin for
muscle spasms and pain…
An initial office visit treatment record from West
Alabama Neurosurgery dated August 5, 2009 reflects
the claimant presented with a history of back and
leg discomfort that had been treated with a
combination of epidurals and physical therapy. The
record noted, however, the claimant’s symptoms had
shown improvement with the combination therapies
and that the claimant reported he felt better. He
stated he only rarely experienced leg discomfort
and some paresthesia and that he was not taking any
treatment record included an assessment of the
claimant’s MRI which revealed a foraminal disc
bulge at L4-5 with some superior migration abutting
the LS nerve root in the neural foramen. A physical
examination summary showed the claimant had 5/5
strength with hip flexion. His deep tendon reflexes
were symmetric at the knees. Straight leg raising
was negative and no obvious sensory abnormalities
were observed. Given how well the claimant was
doing, a continued conservative course of treatment
was recommended rather than surgery…
stated as follows:
After careful consideration of the entire record, I
find that the claimant has the residual capacity to
404.1567(c) except the claimant is limited to
extremity pushing/pulling; and no unrestricted
In making this finding, I have considered all
symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the
objective medical evidence and other evidence,
based on the requirements of 20 CFR 404.1529 and
SSRs 96-4p and 96-7p.
I have also considered
requirements of 20 CFR 404.1527 and SSRs 96-2p, 965p, 96-6p, and 06-3p.
provided by Social Security Ruling 96-7p.
also taken into consideration the controlling case
law in the Eleventh Circuit regarding the standard
used to assess subjective complaints of pain and
other subjective symptoms.
This standard requires
“(1) evidence of an underlying medical condition
and either (2) objective medical evidence that
confirms the severity of the alleged pain arising
from the condition or (3) that the objectively
determined medical condition is of such severity
that it can reasonably be expect to give rise to
the alleged pain.” Holt v. Sullivan, 921 F.2d 1221
(11th Cir. 1991).
After careful consideration of the evidence, I find
impairments could reasonably be expect to cause the
statements concerning the intensity, persistence
and limiting effects of these symptoms are not
fully credible to the extent they are inconsistent
In terms of the claimant’s alleged symptoms and
physical limitations, I do not consider them to be
Although the claimant testified
While the clinical findings of the
medical record reflect the claimant experiences
some limitations due to his physical impairments,
the preponderance of the evidence does not support
a conclusion that the claimant’s limitations are as
severe as alleged or that his impairments are
disabling to the extent he is unable to perform all
reported in his Adult Function Report…he required
no assistance with his personal care, he was able
to go outside daily, prepare something to eat, wash
dishes, make the bed, take care of pet chickens and
dogs, watch television, walk, and drive a car.[ ]
Moreover, claimant’s statements are not fully
credible in the light of the medical history, the
medical reports of the treating physicians, and the
clinical findings made on examination. In this
examination reflect the claimant had a normal
bipedal gate. He stood with a right lateral shift
that was easily corrected manually. He demonstrated
active range of motion of the lumbar spine to have
a minimal restriction for flexion. Transitional
motions were easily done and his neurologic status
was intact. There was no significant edema,
erythema, atrophy or sensory deficits noted. To the
extent the claimant alleges problems with walking,
there was no indication in the evidentiary record
the claimant required an assistive device for
Further, the descriptions of the
symptoms and limitations which the claimant has
provided throughout the record have generally been
vague, unpersuasive, and somewhat contradictory.
surgery on his right hand he could not remember
when it occurred.
He could not remember when he
underwent eye surgery.
He initially testified the
surgery was on his left eye and then later
testified the surgery was performed on his right
impairments have been essentially routine and/or
conservative in nature and not reflective of the
type of care generally expected for a totally
treating physician recommended against surgery
and continuances with physical therapy.
claimant’s allegations of disabling symptoms, it is
reasonable to expect some indication in the
treatment records of some ongoing restrictions
placed on the claimant by a treating doctor;
however, a review of the evidentiary record in this
case reveals no such restrictions recommended by a
treating doctor that would preclude the performance
of substantial gainful activity. Thus, I have
considered the claimant’s subjective allegations to
the fullest extent possible given the objective
medical evidence in the record and find that no
treating physician has placed any restrictions on
the claimant inconsistent with the above residual
(Id., at 20-23).
opinions of Plaintiff’s treating physicians and his reasons for
As for the opinion evidence, and in light of the
documentary record[,] I assign persuasive weight to
the opinions of the claimant’s treating physicians.
I take note that none of the treatment records of
the claimant’s treating physicians indicated that
the claimant experienced pain or other subjective
symptomatology to such a degree as to render him
totally disabled, and there are no treatment notes
that placed such significant exertional, postural,
or environmental restriction on him that would
preclude all forms of substantial gainful activity…
Moreover, the objective medical opinions provided
are not inconsistent with the residual functional
capacity discussed herein.
(Id., at 24).
concluded that Plaintiff is not capable of performing his past
work as a street sweeper. (Id., at 24).
Consistent with the
Plaintiff’s residual functional capacity for a reduced range of
medium work, as well as his age, education, and work experience,
packer, and deliverer. (Id., at 25-26).
Thus, the ALJ concluded
that Plaintiff is not disabled. (Id., at 26).
Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.2 Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).
A court may not decide the facts anew,
reweigh the evidence, or substitute its judgment for that of the
Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
The Commissioner’s findings of fact must be affirmed if
they are based upon substantial evidence. Brown v. Sullivan, 921
F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence
exists, a court must view the record as a whole, taking into
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
An individual who applies for Social Security disability
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
determining if a claimant has proven his disability. 3 20 C.F.R.
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
automatically found disabled regardless of age, education, or
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history. Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
§§ 404.1520, 416.920.
In this case, Plaintiff challenges the ALJ’s RFC assessment
and argues that the record is devoid of any RFC assessment from
The Commissioner also contends that the ALJ’s RFC
determination encompasses his function-by-function assessment as
he specifically incorporated the statutory definition of medium
regarding Plaintiff’s ability to lift, carry, sit, stand, or
walk. (Doc. 11 at 6-12).
An administrative hearing before an ALJ is not adversarial
Thus, it is well-established that a claimant bears
the burden of proving disability and for producing evidence in
support of his claim while the ALJ has “a basic duty to develop
a full and fair record.” Ellison v. Barnhart, 355 F.3d 1272,
1276 (11th Cir. 2003) (per curiam); Ingram v. Comm’r of SSA, 496
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
F.3d 1253, 1269 (11th Cir. 2007).
This duty to develop the
record exists even when the claimant is represented by counsel.
fulfilling the duty to conduct a full and fair record, the ALJ
is not required to order a consultative examination unless the
record establishes that such is necessary to enable the ALJ to
render a decision. Holladay v. Bowen, 848 F.2d 1206, 1210 (11th
Cir. 1988) (the ALJ is not required to order a consultative
examination and has discretion to order such an exam only when
administrative law judge has a duty to develop the record where
examination as long as the record contains sufficient evidence
Good v. Astrue, 240 Fed. App'x 399, 404 (11th Cir.
2007) (rejecting claim that ALJ reversibly erred in failing to
record contained sufficient evidence to permit the ALJ’s RFC
The RFC is a measure of what a claimant can do despite his
credible limitations. See 20 C.F.R. § 404.1545.
of a claimant’s residual functional capacity are reserved for
the ALJ, and the assessment is to be based upon all the relevant
evidence of a claimant’s remaining ability to work despite his
1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546 and Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)).
An ALJ’s RFC
Based upon a review of the record, the undersigned finds
Plaintiff’s limitations – due to the absence of a consultative
examination – is incorrect.
The ALJ had sufficient evidence to
accurately assess Plaintiff’s impairments.
As outlined supra,
treatment, including the treatment Plaintiff received from Drs.
Robidoux, Shepphard, Spruill, and Buckley.
The ALJ highlighted
opinioned that Plaintiff was disabled nor did they place any
limitations on Plaintiff greater than or at odds with the RFC
Further, as noted by the ALJ, when Plaintiff was examined
at West Alabama Spine in August 2009, only three months after
his April 2009 back injury, he reported that he “fe[lt] much
paresthesia, and that he was no longer taking any narcotics or
Upon observation, Plaintiff’s straight
leg raising was negative and no obvious sensory abnormalities
were observed. (Id., at 213).
Dr. McKenzie recommended that
Plaintiff continue with the conservative treatment that he had
significant benefit to Plaintiff unless his pain were to “recur
with vengeance”. (Id., at 213).
The record contains no evidence
that Plaintiff ever sought further treatment for his back pain.
Additionally, the record contains the results of a number
of X-rays, CT scans, and MRIs, none of which identified any
treatment and physical therapy, except Plaintiff’s 2008 right
hand surgery. (Id., at 213).
The ALJ also had the benefit of
Plaintiff’s subjective account of his limitations, including his
written function report. (Id., at 135, 139)4.
While Plaintiff challenges the ALJ’s determination that he
is able to meet the statutory exertional requirements of medium
work, which is the ability to lift no more than 50 pounds at a
When determining a claimant’s RFC assessment, the ALJ is
permitted to rely on any evidence of record, including a
claimant’s subjective statement, that is supported by the
objective medical evidence and the record as a whole. Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (as the finder of
fact, the ALJ has a particularly wide latitude to evaluate the
credibility of testimony). As required, in this case, the ALJ
specifically articulated his reasoning for discrediting the
inconsistent portions of Plaintiff’s subjective account of his
time with frequent lifting or carrying of objects weighing up to
supports the ALJ’s RFC determination.
Indeed, Plaintiff himself
reported that he is able to lift 45 – 50 pounds. (Id., at 140).
weekly basis he is able to drive a car, prepare meals, and visit
his mother, and on a daily basis, he is able to care for his
personal needs, make his bed, go outside, and care for his pet
foregoing, the undersigned finds that the evidence before the
ALJ was sufficient to allow him to render an informed decision
required to order a consultative examination.
Further, it is
before him in determining Plaintiff’s RFC and concluded that
Plaintiff is capable of performing a reduced range of medium
Thus, the ALJ’s findings are supported by substantial
evidence of record.
failed to include a “function-by-function assessment” in his RFC
finding as required by Social Security Ruling 96-8p. (Doc. 10 at
In accordance with SSR 96-8p, the “RFC assessment must
expressed in terms of the exertional levels of work, sedentary,
light, medium, heavy, and very heavy.” SSR 96-8p, at 1.
ruling on a function-by-function issue presented to it, a panel
of the Eleventh Circuit provided the following guidance:
While the ALJ could have been more specific and
explicit in his findings, he did consider all of
the evidence and found that it did not support the
level of disability Freeman claimed. Only after he
determined that she failed to carry her burden of
performing any of her work-related activities did
he state that she could perform light exertional
activity. Therefore, the ALJ complied with SSR 968p by considering Freeman’s functional limitations
and restrictions and, only after he found none,
proceeding to express her residual functional
Furthermore, the ALJ’s analysis of the evidence and
statement that Freeman could perform light work
indicated how much work-related activity she could
perform because “light work requires standing or
walking, off and on, for a total of approximately 6
hours of an 8-hour workday.” SSR 83-10. The ALJ
also told the VE that the hypothetical individuals
hypotheticals did have limitations on sitting,
standing, and walking. In sum, the ALJ adequately
Freeman v. Barnhart, 220 Fed. App’x 957, 960 (11th Cir.
The Freeman decision makes clear that “[w]here an ALJ
considers all of the evidence, determines that the claimant is
not disabled, and also poses a hypothetical to a VE which limits
the claimant to a certain level of exertional activity,
Eleventh Circuit [has] found that the ALJ complied with the
requirements of SSR 96-8p.” Warren v. Astrue, 2010 U.S. Dist.
LEXIS 85836, at *18, 2010 WL 3294186 (N.D. Ga. Jul. 14, 2010)
(citing Freeman, supra), report and recommendation adopted, 2010
2010); cf. Hall v. Astrue, 2010 U.S. Dist. LEXIS 64704, at *21,
2010 WL 2643565 (S.D. Ala. Jun. 29, 2010) (“In Freeman. . ., the
respect to a claimant’s ‘functional limitations and work-related
abilities on a function-by-function basis’ is excusable where it
is apparent the ALJ did ‘consider all of the evidence.’”).
In this case, as in Freeman, there is no question that the
ALJ could have been more specific and explicit in his findings
related abilities on a function-by-function basis.
undersigned finds no reversible error in this regard inasmuch as
the ALJ clearly considered all the evidence of record and found
Plaintiff claimed. (Tr. 16-24).
Moreover, the ALJ’s analysis of
the evidence and his specific determination that Plaintiff is
capable of performing a reduced range of “medium work as defined
in 20 CFR 404.1567(c)” is an implicit indication of the work-
Plaintiff to “occasional climbing, bending and left lower leg
extremity pushing/pulling; and no unrestricted heights” based on
Plaintiff’s medical records. (Id., at 20).
Finally, the ALJ
Plaintiff’s RFC for a reduced range of medium work, as well as
his age, education, and work experience and VE identified the
medium, unskilled jobs of grocery bagger, hand packager, and
deliverer as jobs which exists in significant numbers in the
education and work experience could perform. (Id., at 57-58).
Accordingly, like the Eleventh Circuit in Freeman, this Court
[Plaintiff’s] functional capacity.” 220 Fed. App’x at 960.
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
period of disability and disability insurance benefits income be
DONE this 31st day of July, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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