Allen v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as more fully set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 3/4/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CLAUDIE ALLEN,

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

CIVIL ACTION 14-0364-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 denying claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 14).
The parties filed written consent and this action was referred
to the undersigned Magistrate Judge to conduct all proceedings
and order judgment in accordance with 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73 (see Doc. 20).
action (Doc. 19).

Oral argument was waived in this

After considering the administrative record

and 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).

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, Allen was
twenty-six years old, had completed several years of college
(Tr. 37), and had previous work experience as a cashier, cook,
grocery worker, and nurse assistant (Tr. 48).

Plaintiff alleges

disability due to Status post tibia fracture with ORIF, major
depression, headaches, morbid obesity, hypertension, and
gastroesophageal reflux disease (Doc. 13).
The Plaintiff applied for disability benefits and SSI on
September 27, 2010, alleging an onset date of September 22, 2010
(Tr. 117-26; see also Tr. 12).

An Administrative Law Judge

(ALJ) denied benefits, determining that although Allen could not
perform her previous work, there were sedentary jobs that she
could perform (Tr. 12-28).

Plaintiff requested review of the

hearing decision (Tr. 7), but the Appeals Council denied it (Tr.
1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.

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Specifically, Allen alleges

that:

(1) The residual functional capacity (hereinafter RFC) is

not supported by the evidence; (2) the ALJ did not properly
consider the conclusions of the treating physician; (3) the ALJ
did not properly consider her combination of impairments; and
(4) Plaintiff cannot perform the jobs to which the vocational
expert (hereinafter VE) testified (Doc. 14).

Defendant has

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

The relevant

evidence of record will now be summarized.
On Allen’s alleged disability onset date (Tr. 117),
September 22, 2010, she went to the emergency room at the Bryan
W. Whitfield Memorial Hospital and was admitted for two nights
for a fractured right tibia and fibula, requiring an open
reduction and intramedullary rod fixation by Orthopaedic Dr.
A.L. Tropeano; she was discharged in stable condition,
independent with a walker (Tr. 218-27, 341-63).

Two

examinations later, on October 11, the Orthopaedic encouraged
partial (25%) weight-bearing on her leg and prescribed physical
therapy (hereinafter PT) (Tr. 216-17).

A PT note on October 15

noted good home compliance with the exercise program, though
Allen herself admitted otherwise four days later (Tr. 329, 33740).

Also on October 15, Evans complained of chest pain and was

diagnosed with gastroesophageal reflux disease (hereinafter
GERD) (Tr. 330-33).
On October 15, 2010, Plaintiff was seen by a CRNP at Fitz-

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Gerald & Perret Clinic for neck pain remaining from her recent
fall; Toradol1 was prescribed (Tr. 229-32; see generally Tr. 229326).

On November 10, 2010, Dr. M.J. Fitz-Gerald examined Allen

who wondered about a tooth extraction under her medication
regimen (Tr. 385-87).

She was morbidly obese and could not be

weighed because of her size; she was in no apparent distress.
Plaintiff had good range of motion (hereinafter ROM) in her
extremities.

Fitz-Gerald put her on a diet and prescribed an

appetite suppressant.
On November 19, 2010, Surgeon Tropeano found her doing
“fantastic;” though Allen’s injuries were not one hundred
percent resolved, she could return to full weight-bearing on her
leg, though she should be careful, especially with walking and
stairs (Tr. 390).

Using a walker was alright.

On December 27,

Plaintiff reported lessening pain and was encouraged to increase
her ROM and exercise; Naprosyn2 was prescribed (Tr. 389).
On February 9, 2011, Dr. Tropeano found tenderness in the
right leg at the fractures; x-rays demonstrated progress but she
was not one hundred percent healed as it appeared she had a
lateral meniscal tear (Tr. 414-18).

There was decreased ROM.

1Toradol 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).
2Naprosyn, 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).

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From March 8, 2011 through January 26, 2012, Plaintiff was
seen at West Alabama Mental Health Center on a monthly basis for
depression and feelings of helplessness (Tr. 419-46).

There

were no problems with appearance, attitude, behavior, thought
process, or motor activity though there was a minor problem with
memory; an initial diagnosis was major depression without
psychotic features (Tr. 440-46).

On March 22, 2011, Allen

reported feeling less stressed; her affect was normal and motor
activity was calm (Tr. 435).

On July 18, Plaintiff reported her

depression as three on a ten-point scale (Tr. 430).
17, her therapist noted moderate progress (Tr. 427).

On October
November

and December 2011 records indicate Allen reporting depression
and overwhelming sadness, problems sleeping, and crying spells
(Tr. 425-26).

On January 26, 2012, progress was considered

moderate; Plaintiff was encouraged to increase her physical
activity while being prescribed Lunesta and Zoloft3 (Tr. 420-24).
Allen reported medium compliance (Tr. 420).
On December 26, 2011, Plaintiff went to the Fitz-Gerald &
Perret Clinic, claiming that her right leg had been going out on
her, causing her to fall; she was given a Decadron4 shot and
encouraged to lose weight (Tr. 462-66).

On January 25, 2012,

3Zoloft is “indicated for the treatment of depression.”

Physician's Desk Reference 2229-34 (52nd ed. 1998).
4Decadron is used for, among other things, the treatment of

rheumatic disorders. Physician's Desk Reference 1635-38 (52nd ed.
1998).

5

Allen was seen by a CRNP for a headache; weight was recorded at
428 pounds with a body mass index at 67 (Tr. 458-61).

A week

later, Plaintiff reported that the Topomax5 had helped with the
headaches (Tr. 454-57).

Allen limped with a cane; there was

normal crepitus to the right knee.

Plaintiff saw the CRNP again

on February 21, 2012 for follow-up on her headaches as well as
new complaints of a cough and sore throat; no pain was noted on
examination (Tr. 449-53).

Findings of the musculoskeletal

system were normal overall; the cervical spine had full ROM.
Allen had abnormal gait with a cane; the assessment was morbid
obesity and osteoarthritis for which she was prescribed MaxaltMLT.

Dr. Fitz-Gerald, completed a form indicating that Allen

could not perform sustained work eight hours a day, five days
weekly and could not maintain attention, concentration, or pace
for two-hour periods (Tr. 448).
On January 5, 2012, Dr. Kevin Thompson, Orthopaedic,
examined Allen for complaints of right knee pain (Tr. 476-80).
On exam, the Doctor noted normal, non-antalgic heel to toe gait
with right knee tenderness; though there was subjective
instability, there was no demonstrable clinical instability.

An

MRI was normal, with a mild irregularity of the medical
meniscus, though there was no tear; on January 26, Thompson gave

5Topomax is used in the treatment of migraine headaches.

Physician's Desk Reference 2378-79 (62nd ed. 2008).

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her a cortisone injection (Tr. 470-75).
On August 21, 2012, Neurophysiologist A.B. Todorov examined
Allen at the request of the Social Security Administration (Tr.
482-92).

The Doctor noted no impairments of the cervical or

lumbar spine and that the extremities showed good tonicity,
trophicity, and strength.

There was very minor limitation in

ROM in the right knee; though the knee would hyperextend, there
were no sensory or reflex abnormalities.

Allen walked with

difficulty, having very poor balance because of her morbid
obesity.

Squatting and rising were difficult because of her

weight and leg pain.
objects.

Todorov found no restrictions in handling

The Neurophysiologist completed a physical capacities

evaluation in which he indicated that Allen was capable of
lifting up to ten pounds continuously, twenty pounds frequently,
and fifty pounds occasionally and able to carry ten pounds
frequently and twenty pounds occasionally (Tr. 486-91).
Plaintiff could sit for four, stand for one, or walk for one
hour at a time and sit eight, stand two, and walk one hour
during an eight-hour day.

Todorov indicated that a cane was a

medical necessity because of her morbid obesity, but that she
could use a cane and still carry small objects (Tr. 487, 492).
There were no restrictions in either hand for reaching,
handling, fingering, feeling, or pushing and pulling; while she
could use her left foot frequently, her right foot could only

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occasionally operate foot controls.

On occasion, Allen could

climb stairs and ramps, balance, and stoop, but she could never
climb ladders or scaffolds, kneel, crouch, or crawl.

Plaintiff

could be exposed to humidity and wetness frequently but to
unprotected heights and moving mechanical parts only
occasionally.

The Doctor found that Allen could never walk even

a block or climb a few steps with the use of a single handrail
at a reasonable pace.
The ALJ, in determining non-disability, found that Allen
had the following RFC:
To perform sedentary work as defined in 20
C.F.R. §§ 404.1567(a) and 416.967(a) except
that the claimant requires a sit/stand
option allowing this individual to alternate
between sitting and standing at fifteen to
thirty minute intervals throughout the work
day. She can never climb ramps, stairs,
ladders, ropes or scaffolds. The claimant
can never crawl. She can occasionally
balance, stoop, kneel and crouch. Ms. Allen
is limited to jobs that can be performed
while carrying an assistive device. She
must avoid concentrated exposure to extreme
temperatures as irritants such as fumes,
odors, dust, gases and poorly ventilated
areas. The claimant must avoid all exposure
to work around hazardous machinery and
unprotected heights. Work is limited to
simple, repetitive routine tasks of one to
three steps in a low stress job defined as
having only occasional decision-making
required and only occasional changes in the
work setting.
(Tr. 16).

The Court notes that the ALJ found that Plaintiff’s

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testimony, as well as that of her father, was not credible as to
the extent and limitation of her pain and abilities (Tr. 24-25);
Allen has not sought to challenge these findings in this action
(see Doc. 14).

This concludes the Court’s summary of the

relevant record evidence.
In bringing this action, Plaintiff first asserts that the
RFC found by the ALJ is not supported by the evidence (Doc. 14,
pp. 3-6).

The Court notes that the ALJ is responsible for

determining a claimant’s RFC.

20 C.F.R. § 404.1546 (2014); that

decision cannot be based on “sit and squirm” jurisprudence.
Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir. 1984).
The Court notes that Allen’s second claim, subsumed within
the first, is that the ALJ did not properly consider the
conclusions of her treating physician, Dr. Fitz-Gerald (Doc. 14,
pp. 4-5).

It should be noted, though, 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);6 see also 20 C.F.R. § 404.1527.
In his determination, the ALJ faithfully summarized the

6The 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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treatment records of the Fitz-Gerald & Perret Clinic (Tr. 19,
20, 21, 22, 23), but assigned little weight to the Physician’s
Medical Source Statement finding that Plaintiff was incapable of
working a forty-hour workweek or maintaining concentration,
persistence, and pace for two-hour periods (Tr. 26; cf. Tr.
448).

The ALJ’s reasons for rejecting those conclusions were

that they were not supported by any of the evidence of record,
much less his own treatment records; the ALJ specifically
pointed out that Fitz-Gerald never placed any restrictions on
Allen’s activities or even reported any limitation of abilities
(Tr. 26).

The ALJ also, however, credited the report of

“Orthopaedic Spine and Center” (Tr. 26).

Though the ALJ

incorrectly identified University Orthopaedic Clinic and Spine
Center (see Tr. 470-80), the records there and from the
Orthopaedic Surgeon Tropeano described Allen’s injury as allbut-healed.

The Court further notes that the consultative

examination by the Neurophysiologist Todorov supports the ALJ’s
finding that Fitz-Gerald’s conclusions are without foundation,
even though Allen has pointed out that the ALJ did not embrace
all of his conclusions (Doc. 14, pp. 5-6; cf. Tr. 26).
Plaintiff’s third claim, that the ALJ did not properly
consider the combination of impairments, also falls under the
RFC umbrella claim (Doc. 14, p. 4 n.1).

It is true that "the

Secretary shall consider the combined effect of all of the

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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."

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 Allen'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").

This claim is of no merit.

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Allen has raised various arguments as to why the RFC, as
determined by the ALJ, is not supported by the evidence.

The

Court finds no merit in any of them, noting that Plaintiff bears
the responsibility of providing the evidence from which the ALJ
can make an RFC determination.

20 C.F.R. § 404.1545(a)(3).

Allen's final claim is that she cannot perform the jobs to
which the VE testified (Doc. 14. pp. 6-7).

Plaintiff has

pointed to four different Social Security Rulings (hereinafter
SSR’s), suggesting that they are at odds with the VE’s testimony
(Doc. 14, pp. 6-7).
SSR 83-12, titled “Capability to Do Other Work-The MedicalVocational Rules as a Framework,” states the following:
In some disability claims, the medical
facts lead to an assessment of RFC which is
compatible with the performance of either
sedentary or light work except that the
person must alternate periods of sitting and
standing. The individual may be able to sit
for a time, but must then get up and stand
or walk for a while before returning to
sitting. Such an individual is not
functionally capable of doing either the
prolonged sitting contemplated in the
definition of sedentary work (and for the
relatively few light jobs which are
performed primarily in a seated position) or
the prolonged standing or walking
contemplated for most light work. . . .
However, most jobs have ongoing work
processes which demand that a worker be in a
certain place or posture for at least a
certain length of time to accomplish a
certain task. Unskilled types of jobs are
particularly structured so that a person

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cannot ordinarily sit or stand at will. In
cases of unusual limitation of ability to
sit or stand, a [Vocational Specialist
(hereinafter VS)] should be consulted to
clarify the implications for the
occupational base.
SSR 83-12, *4 (emphasis added).
SSR 83-14, titled “Capability to Do Other Work—The MedicalVocational Rules as a Framework for Evaluating a Combination of
Exertional And NonExertional Impairments,” notes that “section
201.00(h) of Appendix 2 calls attention to the fact that
bilateral manual dexterity is necessary for the performance of
substantially all unskilled sedentary occupations.”
* 2 (emphasis added).

SSR 83-14,

Later the Ruling again emphasizes that

“[t]he bulk of unskilled sedentary jobs requires bilateral
manual dexterity.”

SSR 83-14, *4.

And again, the services of a

VS are indicated.
SSR 85-15, titled “Capability to Do Other Work—The MedicalVocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments,” states that the “loss of fine manual
dexterity narrows the sedentary and light ranges of work much
more than it does the medium, heavy, and very heavy ranges of
work.”

SSR 84-15, *7.

And finally, SSR 96-9p, titled “Determining Capability to
Do Other Work—Implications of a Residual Functional Capacity for
Less than a Full Range of Sedentary Work,” discusses two

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limitations relevant to Allen.

The first, the need to

“alternate sitting and standing”, states:

An individual may need to alternate the
required sitting of sedentary work by
standing (and, possibly, walking)
periodically. Where this need cannot be
accommodated by scheduled breaks and a lunch
period, the occupational base for a full
range of unskilled sedentary work will be
eroded. The extent of the erosion will
depend on the facts in the case record, such
as the frequency of the need to alternate
sitting and standing and the length of time
needed to stand. The RFC assessment must be
specific as to the frequency of the
individual's need to alternate sitting and
standing. It may be especially useful in
these situations to consult a vocational
resource in order to determine whether the
individual is able to make an adjustment to
other work.

SSR 96-9p *7 (emphasis added).

The second, the need for a

“medically required hand-held assistive device,” states as
follows:
Since most unskilled sedentary work
requires only occasional lifting and
carrying of light objects such as ledgers
and files and a maximum lifting capacity for
only 10 pounds, an individual who uses a
medically required hand-held assistive
device in one hand may still have the
ability to perform the minimal lifting and
carrying requirements of many sedentary

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unskilled occupations with the other hand.[7]
For example, an individual who must use a
hand-held assistive device to aid in walking
or standing because of an impairment that
affects one lower extremity (e.g., an
unstable knee), or to reduce pain when
walking, who is limited to sedentary work
because of the impairment affecting the
lower extremity, and who has no other
functional limitations or restrictions may
still have the ability to make an adjustment
to sedentary work that exists in significant
numbers. On the other hand, the
occupational base for an individual who must
use such a device for balance because of
significant involvement of both lower
extremities (e.g., because of a neurological
impairment) may be significantly eroded.

SSR 96-9p *7 (emphasis added).
The ALJ’s RFC for Allen was that she could perform
sedentary work8 requiring a sit/stand option to alternate at
thirty-minute intervals throughout the work day (Tr. 16).

She

was further “limited to jobs that can be performed while
carrying an assistive device” (Tr. 16).

In his hypothetical to

the VE, the ALJ queried an individual who could perform
sedentary work (Tr. 52), with “a sit/stand option that allows

7
 “FN7. Bilateral manual dexterity is needed when sitting but is

not generally necessary when performing the standing and walking
requirements of sedentary work.”

8“Sedentary work involves lifting no more than 10 pounds at a

time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary
criteria are met.” 20 C.F.R. § 414.1567(a).

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them to alternate between sitting and standing positions at 15
to 30-minutes intervals . . . simply at the discretion of the
worker” (Tr. 51), but was “limited to jobs that can be performed
while using a handheld assistive device, but [] the requisite
lifting requirements [] of the exertional limit could be still
accomplished while ambulating with that handheld assistive
device” (Tr. 53).
Crediting the VE’s testimony, the ALJ found that Plaintiff
was capable of performing the jobs “nut sorter (DOT 521.687086), addresser (DOT 209.587-010) and call out operator (DOT
237.367-014),” acknowledging his specific query of “the hand
held assistive device with the addresser job” (Tr. 27-28).
Nut sorter is defined as follows:
TITLE(s): NUT SORTER (can. & preserv.)
alternate titles: hull sorter; nut picker;
nut sifter;
picking-belt operator[.] Removes defective
nuts and foreign matter from bulk nut meats:
Observes nut meats on conveyor belt, and
picks out broken, shriveled, or wormy nuts
and foreign matter, such as leaves and
rocks. Places defective nuts and foreign
matter into containers. May be designated
according to kind of nut meat sorted as
Almond Sorter (can. & preserv.); Peanut
Sorter (can. & preserv.).
GOE: 06.03.02 STRENGTH: S GED: R1 M1 L1 SVP:
2 DLU: 77

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DOT 521.687-086.9
Addresser is defined as follows:
TITLE(s): ADDRESSER (clerical) alternate
titles: addressing clerk; envelope addresser
Addresses by hand or typewriter, envelopes,
cards, advertising literature, packages, and
similar items for mailing. May sort mail.
GOE: 07.07.02 STRENGTH: S GED: R2 M1 L2 SVP:
2 DLU: 77
DOT 209.587-010.
Call out operator is defined as follows:
TITLE(s): CALL-OUT OPERATOR (business ser.;
retail trade)
Compiles credit information, such as status
of credit accounts, personal references, and
bank accounts to fulfill subscribers'
requests, using telephone. Copies
information onto form to update information
for credit record on file, or for computer
input. Telephones subscriber to relay
requested information or submits data
obtained for typewritten report to
subscriber.
GOE: 07.05.03 STRENGTH: S GED: R3 M2 L3 SVP:
2 DLU: 77
DOT 237.367-014.
After reading the descriptions of the three different
sedentary jobs, the Court notes that none reference sitting

9See http://www.occupationalinfo.org/52/

The Court would further
note that an explanation for all terms within the Dictionary of
Occupational Titles can be found in Appendix C.

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versus standing or bilateral manual dexterity.

With addresser

and call out operator, Plaintiff would not be able to type while
standing, but if she could write with one hand while balancing
with the other, she should be able to do both jobs.

While one

would think that sorting nuts would be more effectively and
efficiently accomplished with two hands rather than one (since
half of the work day, according to the ALJ, Allen will need to
stand, using a cane for balance), maybe that is not the case.
Nevertheless, the Court has reviewed the Social Security
Rulings suggested by Allen and noted the language relevant to
the facts presented here and cannot say that the ALJ’s decision
is not supported by substantial evidence.

The Rulings state

that having to alternate between sitting and standing, and using
a handheld device, would limit the number of jobs, bit they did
not say that jobs were precluded.

Likewise, each Ruling

suggests, though not reported herein, that the testimony of a VS
should be obtained if there are questions.

In this action, the

ALJ had a VE testify; that testimony was that Plaintiff could
perform the jobs of nut sorter, addresser, and call out
operator. Allen’s claim is without merit.
Plaintiff has raised four 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

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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 4th day of March, 2015.

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

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