Todd v. Colvin

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 in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 3/24/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
PAMELA C. TODD,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 13-0411-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 a claim 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 (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

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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
thirty-six years old, had completed a college education (Tr. 3839), and had previous work experience as a nutritionist and
general office clerk (Tr. 49-50).

In claiming benefits,

Plaintiff alleges disability due to osteoarthritis, mitral valve
prolapse, fibromyalgia, hypothyroidism, cystitis, and early
lupus (Doc. 14 fact Sheet).
The Plaintiff filed applications for disability insurance
and SSI on June 28, 2010 (see Tr. 12).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that although she could not return to her past
relevant work, there were specific light work jobs that Todd
could perform (Tr. 12-27).

Plaintiff requested review of the

hearing decision (Tr. 6-7) by the Appeals Council, but it was
denied (Tr. 1-3).

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Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Todd alleges

(1) There is no evidence to support the ALJ’s finding of

her residual functional capacity (hereinafter RFC); (2) the ALJ
failed to develop the record; and (3) the ALJ acted as judge and
doctor in evaluating the evidence (Doc. 14).

Defendant has

responded to—and denies—these claims (Doc. 15).

The relevant

evidence of record follows.
On March 3, 2009, Dr. Seydi V. Aksut, an Intervention
Cardiologist, examined Todd for complaints of chest pain,
tiredness, and anxiety (Tr. 208-12).

His initial diagnosis was

Mitral Valve Prolapse and Palpitations.

A treadmill exercise

test a week later was negative; nuclear images demonstrated no
ischemia, normal wall motion, and normal ejection fraction.

A

transthoracic echocardiogram showed normal left ventricular
systolic function, mild tricuspid regurgitation, and mild
pulmonic valvular regurgitation; the mitral valve leaflets
appeared thickened, but were open with mild mitral
regurgitation.
On January 28, 2010, Dr. Sohrab Fallahi, with Montgomery
Rheumatology Associates, noted “perfect range of motion of every
small, medium, and large sized joint of the upper and lower
extremities on both sides of the body” though she did have
multiple areas of soft tissue tenderness (Tr. 214; see generally

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Tr. 213-24).

His assessment was fibromyalgia, ANA positivity,

and myalgia and arthralgia without inflammatory components;
nevertheless, Fallahi found no “convincing evidence of ANArelated disease in general, lupus in particular” (Tr. 215).

A

month later, the doctor encouraged Todd to exercise (Tr. 216).
On February 11, 2010, Todd went to Selma Doctors Clinic for
right ear pain (Tr. 309-10).

On examination, a questionable

click in the heart was noted; Plaintiff had full range of motion
(hereinafter ROM) in the major joints:
wrists, and hands.

There was no tenderness in the spine or any

paravertebral muscle spasm.
of the extremities.

knees, ankles, elbows,

There was no decreased ROM in any

Three visits over the next three months

concerned further problems with her ear, bronchitis, and a
pimple (Tr. 305-08).
On April 1, 2010, Plaintiff underwent a cystoscopy with
hydrodistention of the bladder after complaints of frequent
urination (Tr. 226-28; see also Tr. 230-43, 245-59, 262-65, 26773).

Dr. Timothy Morrow diagnosed her to have interstitial

cystitis and endometriosis.
On May 26, 2010, Dr. Randall D. Ayers examined Todd for
complaints of swelling in her ankles and hands and tenderness in
her right shoulder (Tr. 276-78, 291-93, 325-27).

The doctor

noted no joint or bony abnormalities though there was muscle
tenderness in the right shoulder.

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On June 28, Ayers found no

clubbing, cyanosis, or edema in the lower extremities; the right
shoulder was restricted on active motion and showed tenderness
subacromially (Tr. 279-80, 294-95, 328-29).

Ayers diagnosed

proteinuria.
On July 8, 2010, Todd was seen at the Selma Doctors Clinic
for right shoulder pain (Tr. 356).

It was noted that muscle

strength was symmetrical bilaterally; gait was normal.

The

doctor noted limited motion of the right shoulder, attributing
it to Lupus.

On August 6, Ativan1 was prescribed (Tr. 355).

On October 15, 2010, Todd was examined at the UAB Selma
Family Medicine Center for complaints of chronic pain; she
indicated, however, that her pain was “well controlled on her
pain regimen” (Tr. 348; see generally Tr. 348-53).
stated that she was exercising regularly.

Plaintiff

The doctor noted that

her muscle tone and strength was normal for her age, without
atrophy or abnormal movement; motor strength was symmetrical
with no obvious weaknesses.
dysfunction.

A motor exam demonstrated no

The doctor noted that there was no instability or

weakness in the cervical or dorsolumbar spine; ROM measurements
were given for all joints.

The assessment was systemic lupus

erythematous.

1

Error! Main Document Only.“Ativan (lorazepam) is indicated
for the management of anxiety disorders or for the short-term
relief of the symptoms of anxiety or anxiety associated with
depressive symptoms.” Its use is not recommended “in patients
with a primary depressive disorder or psychosis.” Physician's
Desk Reference 2516-17 (48th ed. 1994).

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On February 8, 2011, Dr. Aksut examined Todd for sharp
chest pains and tiredness (Tr. 358-62).

A complete two-

dimensional transthoracic echocardiogram was performed with the
following results:

normal left ventricular systolic function;

mild tricuspid and pulmonic valvular regurgitation; and mild
mitral regurgitation with the mitral valve leaflets appearing
slightly thickened (Tr. 360).

A treadmill exercise report was

negative with no angina or arrhythmias noted.

Nuclear images

revealed no signs of ischemia, normal wall motion, and a normal
ejection fraction.
On February 23, Selma Doctors Clinic treatment notes
indicated signs of arthritis; Plaintiff was experiencing no
chest pain (Tr. 366).

Her left shoulder was quiet.

On March

16, Todd said that arthritis was still bothering her and that
she had had some palpitations; the doctor noted that extremities
were normal (Tr. 364).

On October 28, the doctor noted that

Plaintiff had apparently recovered from a recent bout of strep
throat; extremities were normal (Tr. 376).
On December 2, 2011, Psychologist Kale Edney Kirkland
performed an examination in which no diagnosis was made as Todd
was “not currently in need of mental health treatment and [was]
psychologically stable” (Tr. 385; see generally Tr. 380-85).
Kirkland also completed a mental medical source statement in
which no limitations were found (Tr. 380-81).

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This concludes

the relevant medical evidence.
In bringing this action, Todd first claims that there is no
evidence to support the ALJ’s finding of her RFC (Doc. 14, pp.
3-10).

The Court notes that the ALJ is responsible for

determining a claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

That decision can not be based on “sit and squirm”
jurisprudence.
1984).

Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.

However, 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. § 404.1545(a)(3).
In his decision, the ALJ determined that Todd had the RFC
to perform less than the full range of light
work as defined in 20 C.F.R. 404.1567(b)2 and
416.967(b). She can perform unskilled work
with no climbing of ropes, ladders, or
scaffolds; no more than occasional bending,
stooping, crouching, crawling, or kneeling;
no work at unprotected heights; no work with
hazardous machinery; no more than frequent

2“Light work involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.”

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interaction with co-workers and supervisors;
and no more than occasional contact with the
general public.
(Tr. 15).

In reaching this determination, the ALJ noted Todd’s

self-reported daily activities and her range of activities
outside of the house (Tr. 17).

The ALJ went on to find that

Plaintiff’s claims of pain and limitation were not credible to
the extent alleged (Tr. 21-22, 25), a finding not challenged in
this action.

The ALJ faithfully summarized the record evidence,

specifically noting a report by Dr. Fallahi that found no
“convincing evidence of ANA-related disease in general, lupus in
particular” (Tr. 18; see generally Tr. 17-20); he also noted
Psychologist Kirkland’s finding that Todd did not “seem to have
any mental or intellectual impairment” (Tr. 21).

The ALJ’s

decision that Plaintiff could perform specific jobs was based on
questions posed to a Vocational Expert (hereinafter VE) (Tr. 2526); Todd has not challenged the questions posed to the VE in
this action.
Plaintiff has questioned the ALJ’s RFC in arguing that “the
evidentiary record is completely devoid of any medical opinions
of record in [sic] which supports his RFC” (Doc 14, p. 3).

Todd

references the “six distinct medically severe impairments” with
which she had been diagnosed (id.).

The Court notes, however,

that the ALJ showed that the medical evidence did not confirm

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all of those diagnoses and did not support Todd’s claim that
they were disabling.

Furthermore, there is no treating

physician of record that has limited Plaintiff’s activities in
any manner or even noted that she was limited from certain
activities because of her impairments.

Todd has failed to meet

her burden of providing evidence that she is disabled.

The

Court finds substantial support for the ALJ’s decision that
Plaintiff has the RFC to perform a reduced range of light work.
Todd also claims that the ALJ failed to develop the record
(Doc. 14, pp. 10-11).

The Eleventh Circuit Court of Appeals has

required that "a full and fair record" be developed by the
Administrative Law Judge even if the claimant is represented by
counsel.
1981).

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

The Court notes that this record contains nearly two
hundred pages—though some of it is, admittedly, repetitive—of
medical evidence.

Although the evidence did not provide support

for Plaintiff’s asserted disability, this failure does not equal
a need for record development.

The record did not need to be

more fully developed as it provided substantial evidence of
Todd’s ability to work.

Plaintiff’s claim otherwise is without

merit.
Todd’s final claim is that the ALJ acted as Judge and
doctor in evaluating the evidence (Doc. 13, pp. 11-12).

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While

Todd is correct in asserting that an ALJ cannot substitute his
opinion for that of a physician, she has failed to provide any
evidence that the ALJ in this action has done so.

This claim

lacks merit.
Todd 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 24th day of March, 2014.

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

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