Bryant v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered that after considering 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 10/26/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT BRYANT,

:
:
:
:
:
:
:
:
:
:

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

CIVIL ACTION 15-0167-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling denying a
claim for disability insurance benefits (Docs. 1, 13).

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),
Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 18).
Oral argument was waived in this action (Doc. 20).

After

considering 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).

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 most recent administrative hearing,
Plaintiff was forty years old, had completed some college
education (Tr. 74), and had previous work experience as a
heating and air installer and servicer (Tr. 82).

Bryant alleges

disability due to multi-level degenerative disc disease of the
lumbar spine with facet spondylosis and chronic right knee pain
secondary to a partial tear of the lateral meniscus and medium
meniscus (Doc. 12).
Plaintiff applied for disability benefits on September 28,
2011; disability is asserted as of December 10, 2010 (Tr. 17;
see also Tr. 38, 181-87).

An Administrative Law Judge (ALJ)

denied benefits, determining that although Bryant could not
return to his past relevant work, there were specific light and
sedentary jobs that he could perform (Tr. 17-26).

Plaintiff

requested review of the hearing decision (Tr. 10-13), but the
Appeals Council denied it (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not

2

supported by substantial evidence.
that:

Specifically, Bryant alleges

(1) The ALJ did not properly consider the conclusions of

his treating physician; (2) the ALJ violated the HALLEX in
improperly taking telephonic testimony from a Medical Expert
(hereinafter ME); and (3) the opinions of the ME were based on
an incomplete record (Doc. 13).
denies—these claims (Doc. 14).

Defendant has responded to—and
The Court will now summarize the

relevant evidence of record.
On July 29, 2010, Stephen A. Roberts, D.O., examined Bryant
for an injury to his back and knees after falling from a ladder;
Plaintiff had mid-to-low back pain with left knee pain and
popping in the right knee (Tr. 309-12).

On September 2,

following a medication regimen of Zanaflex,1 Skelaxin,2 a Medrol
Dosepak,3 Mobic,4 Ultracet,5 and Robaxin,6 as well as physical

1Error!
 Main
 Document
 Only.Zanaflex “is a short-acting drug for the

acute and intermittent management of increased muscle tone associated
with spasticity.” Physician's Desk Reference 3204 (52nd ed. 1998).
2Error!
 Main
 Document
 Only.Skelaxin is used “as an adjunct to rest,

physical therapy, and other measures for the relief of discomforts
associated with acute, painful musculoskeletal conditions.”
Physician's Desk Reference 830 (52nd ed. 1998).
3A Medrol Dosepak (methylprednisolone) is a steroid that prevents

the release of substances in the body that cause inflammation. See
http://www.drugs.com/mtm/medrol-dosepak.html
4Error!
 Main
 Document
 Only.Mobic is a nonsteroidal anti-inflammatory

drug used for the relief of signs and symptoms of osteoarthritis and
rheumatoid arthritis. Physician's Desk Reference 855-57 (62nd ed.
2008).
5Error!
 Main
 Document
 Only.Ultracet is made up of acetaminophen and

tramadol and is used for the short-term (5 days or less) management of
pain. See http://health.yahoo.com/drug/d04766A1#d04766a1-whatis
6Error!
 Main
 Document
 Only.Robaxin “is indicated as an adjunct to

rest, physical therapy, and other measures for the relief of

3

therapy, Roberts ordered an MRI that showed a large horizontal
cleavage tear of the lateral meniscus and a partial meniscectomy
of the medial meniscus in the right knee (Tr. 298-308, 314).

On

September 10, 2010, Dr. Roberts noted normal range of motion
(hereinafter ROM) in the thoracic spine with pain in both the
thoracic and lumbar spine (Tr. 295-96).

On September 29, Bryant

stated that although there had been some improvement with
medication, it had stopped and his back pain and stiffness
persisted (Tr. 286-89, 313).
following:

A lumbar spine MRI showed the

(1) mild desiccation changes at L4-5 and L5-S1 with

moderate loss of disc height at L5-S1; (2) mild broad-based disc
bulge at L3-4 without evidence of neural impingement; and (3)
broad-based disc bulge with central disc protrusion at L4-5,
resulting in moderate crowding of the descending nerve roots,
accentuated by a congenitally narrowed spine; there was crowding
of the descending nerve roots but no definite impingement (Tr.
313, 358).
On September 9, Dr. Scott Atkins, Orthopaedic Surgeon,
examined Bryant who complained of right lateral knee pain with
popping, intermittent swelling, and intermittent severe pain;
the Doctor noted tenderness over the lateral joint line, pain,
and trace effusion (Tr. 257, 266).

After reviewing the MRI,

discomforts associated with acute, painful musculoskeletal
conditions.” Physician's Desk Reference 2428 (52nd ed. 1998).

4

arthroscopic surgery on the right knee with partial lateral
meniscectomy was recommended and completed (Tr. 401).

On

October 19, 2010, Dr. Atkins noted that Bryant was doing well
following his surgery (Tr. 268).

He had a small effusion;

coordination, fine motor testing, deep tendon reflexes, and
sensation were all normal.

Plaintiff had full extension and

flexion of 120 though there was moderate tenderness over the
lateral joint lines.

Bryant was placed on light duty work

restrictions; therapy was ordered (Tr. 405-08).

On November 11,

Atkins noted Bryant was doing well with no new complaints;
Plaintiff was placed at maximum medical improvement and told he
could return to work without restrictions (Tr. 269).

The Doctor

noted a two percent partial permanent impairment rating of the
right lower extremity.
On October 27, 2010, Dr. Wesley L. Spruill, at The
SpineCare Center, found that Plaintiff had ROM limitation of the
cervical spine with full equal ROM, sensation, and strength in
both upper extremities (Tr. 403-04).

He had negative straight

leg raise bilaterally with some low back and buttock pain, but
with no radicular symptoms; he had low back pain on flexion and
extension.

The Doctor’s impression was L4-5 and L5-S1

degenerative disc disease with small non-impinging L4-5 disc
protrusion.

On November 2, Spruill gave Plaintiff an epidural

injection in the L4-5 area (Tr. 318-19).

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A week later, a second

injection was administered (Tr. 320-21).
On November 24, 2010, Plaintiff still complained of back
pain; Dr. Roberts noted that Bryant had had knee surgery and
been released back to work for that impairment (Tr. 278-81).
Plaintiff had normal ROM in the thoracic spine and gross normal
ROM in the lumbar spine with no significant pain; he reported no
recent or current radicular pain into the posterior thigh.

The

Doctor restricted Bryant to seventy-five pounds maximum lifting
following an osteopathic manipulative treatment.
On December 16, Dr. Spruill noted Plaintiff’s complaints of
continued mid and low back pain, radiating into the left leg; he
rated his pain as nine on a ten-point scale (Tr. 325-29).

The

Doctor noted that the thoracic and lumbar exams were normal
though there was mid-thoracic tenderness at T6-8.

Spruill gave

Bryant another injection of Toradol7 and Robaxin (Tr. 322-23,
329).

On January 11, 2011, Bryant reported his pain was twenty

percent better, and was not radiating, rating it at seven but at
nine at its worst; the Doctor noted increased pain with lumbar
flexion at sixty degrees and extension at fifteen degrees (Tr.
338, 340-43).

Muscle strength in the legs was 5/5 bilaterally;

thoracic tenderness continued.

Straight leg raise was negative.

7Toradol 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).

6

Physical therapy and Ultram8 were prescribed.

On March 23,

Bryant reported that his pain was fifty percent better, rating
it as level four, and was aggravated by standing or sitting too
long (Tr. 344-47).

Noting that Plaintiff had degenerative disc

disease with continued low back pain, Spruill found that he had
no lower extremity symptoms and no weakness; the Doctor found
that Plaintiff had reached maximum medical improvement and
placed no work restrictions on him.
On May 5, 2011, lumbar spine x-rays showed no instability
or spondylolisthesis though there was disc space narrowing at
L5-S1 (Tr. 373).
On May 20, Bryant stated his low back pain was at eight,
but denied it was radiating into his lower extremities (Tr. 35054, 366-67).

The Doctor noted no edema, erythema, or atrophy in

the bilateral lower extremities; straight leg raise was negative
bilaterally.

Plaintiff was given an epidural injection.

On June 15, an MRI of the lumbar spine, when compared to
one taken nine months earlier, showed Plaintiff had slight
progression of disease at L4-5 with equivocal impingement of the
descending nerve roots, right greater than the left (Tr. 360).
On June 23, Dr. Bryan S. Givhan, Neurosurgeon, found Bryant
to have 5/5 strength in all muscle groups in upper and lower

8Error! Main Document Only.Ultram is an analgesic “indicated for

the management of moderate to moderately severe pain.”
Desk Reference 2218 (54th ed. 2000).

7

Physician's

extremities; he had a negative straight leg raise test and a
negative Patrick’s maneuver (Tr. 363-64).

Plaintiff’s back

showed some mild pain to palpation in the lumbar, especially on
the right about L4-5; he had mild pain flexion and extension,
but no obvious paraspinous spasm.

Givhan recommended continued

conservative treatment and “work at any level his pain will
allow” (Tr. 364).
On August 15, 2011, Dr. Spruill reported Plaintiff’s
complaints of pain at level eight; his examination revealed
nothing different than the prior exam (Tr. 368-72).

The Doctor

declared Bryant to have reached maximum medical improvement and
continued previous work restrictions of lifting no more than
seventy-five pounds.

On November 7, Plaintiff reported his pain

at seven, worse with sitting or standing too long; Spruill noted
low back pain on flexion and extension (Tr. 502-03).

Straight

leg raise on the left caused leg pain while on the right, it
caused buttock pain; the Doctor prescribed Chlorzoxazone,9
Nucynta,10 and an NSAID.

On January 30, 2012, Plaintiff stated

that his pain had been forty percent better until he ran out of
his prescriptions; he rated his pain at nine (Tr. 497-501).
Spruill noted pain on flexion and extension in the lumbar; he

9Chlorzoxazone is a skeletal muscle relaxer, used in combination

with rest and physical therapy. See http://www.drugs.com/cdi/parafonforte-dsc.html

10Nucynta is a narcotic used to treat moderate to severe pain.

See http://www.drugs.com/nucynta.html

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prescribed Relafen11 and Skelaxin.

On April 5, 2012, Bryant

stated there was no change in his pain—a constant level eight;
the Doctor noted lumbar pain increased with flexion and
extension with tenderness in the thoracic and mid lumbosacral
regions (Tr. 485-96).

Hand grip strength was full bilaterally;

there was low back pain at L3-S1 with straight leg raise along
with mild leg pain.

Spruill’s impression was that Plaintiff’s

“[q]uality of life [had] improved, pain levels [were] reduced
and daily activities [had] increased” with treatment (Tr. 490).
Ultram was prescribed over Relafen.

On June 27, following a

non-remarkable exam, Dr. Spruill prescribed a TENS unit (Tr.
473-84).
On August 3, Dr. Timberlake saw Bryant for complaints of
lower back pain and depression; noting tenderness in the lumbarsacral area, the Doctor prescribed Lortab,12 Amitriptyline,13 and
a steroid (Tr. 418-19).

The Doctor stated that Plaintiff was

completely and totally disabled to do gainful work now or in the
future.

11Error!
 Main
 Document
 Only.Relafen “is indicated for acute and

chronic treatment of signs and symptoms of osteoarthritis and
rheumatoid arthritis.” Physician's Desk Reference 2859 (52nd ed.
1998).
12Error! 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).
13Error!
 Main
 Document
 Only.Amitriptyline, marketed as Elavil, is

used to treat the symptoms of depression. Physician's Desk Reference
3163 (52nd ed. 1998).

9

On September 25, 2012, Dr. Spruill examined Bryant for
increased pain in the right sacroiliac region and low back;
there was no problem with leg weakness or numbness (Tr. 461-70).
Spruill stated that Bryant’s lumbar exam was normal though there
was pain with flexion at forty-five degrees and extension at ten
degrees; there was tenderness at the mid lumbosacral region and
in the right sacroiliac joint.

Muscle strength was 4/5 in the

hands and legs bilaterally; straight leg raise was negative
bilaterally.

Medications were continued.

On October 19, 2012,

the Doctor gave Plaintiff an epidural injection (Tr. 457-60).
On December 3, Bryant rated his back pain as six generally and
nine at its most intense; he said the pain was twenty percent
better since the last injection and his daily activities had
increased (Tr. 445-56).

Spruill noted that the cervical,

thoracic, and lumbar spine exams were normal though there was
tenderness of the Myofascial trigger point on the right and left
at L4-5; there was normal ROM bilaterally in all extremities.
There was no change in treatment.

On March 4, 2013, Spruill

noted decreased ROM and increased pain with flexion and
extension in the lumbar spine; right leg strength was decreased
(Tr. 435-44).
sixty degrees.

Straight leg raise was positive on the right at
The Doctor’s impression, however, was that

Bryant’s “[q]uality of life [was] improved, pain levels reduced
and daily activities increased due to current medical regimen;”

10

he prescribed Toradol (Tr. 438).
On March 12, 2013, an MRI of the lumbar spine demonstrated,
overall, no significant change since the June 15, 2011 MRI (Tr.
504-05).
On April 3, Dr. Timberlake reported Plaintiff’s complaints
of low back pain and that he was seeking a nerve block; Nucynta
and Chlorzoxazone were prescribed (Tr. 429-30).
On April 4, following a routine examination, Dr. Spruill
gave Bryant an epidural injection for low back pain with lower
limb radiculitis; he prescribed Oxycodone with no refills. (Tr.
525-38).
On April 17, Dr. Timberlake gave Plaintiff a Toradol
injection (Tr. 427-28).
On April 24, Dr. Timberlake completed a form indicating
that Plaintiff was capable of sitting for two, and standing or
walking for one hour during an eight-hour day; he could lift
and/or carry five pounds occasionally to one pound frequently
(Tr. 424).

Bryant would be capable of gross and fine

manipulation, operating motor vehicles, and working with or
around hazardous machinery occasionally and could engage in
pushing and pulling movements (arm and/or leg controls),
climbing, and balancing only rarely; he could never bend, stoop,
or reach.

It was Timberlake’s opinion that Plaintiff would be

absent from work more than three times a month because of his

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impairments or treatment.

The Doctor also completed a

questionnaire on that same date indicating that Bryant’s pain
was profound, intractable, and virtually incapacitating; he
further indicated that activity would increase his pain to such
an extent that he would have to take medication or get bed rest
(Tr. 425).

Plaintiff’s pain would prevent him from maintaining

attention, concentration, or pace for periods of at least two
hours; medications for his pain would severely limit his ability
to perform simple tasks.
On May 17, 2013, Dr. Timberlake re-prescribed Lortab or
Tylenol #314 and Amitriptyline and encouraged back exercises and
hot soaks twice daily (Tr. 542-43).
On May 19, Bryant told Dr. Spruill that his low back and
buttocks pain was sixty percent better since the injection a
month earlier; he rated his pain at seven with levels of ten
(Tr. 507-24).

The doctor noted increased right leg pain and

weakness and stated that he did not recommend “prolonged bed
rest for over two days due to pain” (Tr. 515).
On July 15, Bryant complained to Dr. Timberlake of extreme
right chest and abdomen pain of several seconds duration; the
Doctor noted soft but mild-to-moderate tenderness that he
diagnosed to be Costochondritis for which he prescribed

14Error!
 Main
 Document
 Only.Tylenol with codeine is used “for the

relief of mild to moderately severe pain.”
2061-62 (52nd ed. 1998).

12

Physician's Desk Reference

Ibuprofen (Tr. 550-51).

No mention of back pain was made.

On

December 23, 2013, Plaintiff complained of a cough and
congestion (Tr. 548-49).
In his decision, the ALJ denied benefits, determining that
although Bryant could not return to his past relevant work,
there were specific light and sedentary jobs that he could
perform (Tr. 17-26).

In reaching this determination, the ALJ

summarized the medical evidence before finding that Plaintiff’s
claims of incapacitating pain were not credible (Tr. 20-21), a
finding that is unchallenged in this action (see Doc. 13).
The ALJ also discredited Dr. Timberlake’s finding that
Bryant was disabled, leading to Plaintiff’s first claim herein
(Tr. 24).

The Court notes 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);15 see also 20 C.F.R. § 404.1527 (2015).
One reason the ALJ gave for discrediting Timberlake was the
paucity of the evidence.

Specifically, the ALJ noted that there

was no evidence that the Doctor had seen Bryant prior to August
2012 though the records described him as an established patient

15The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions
of the former Fifth Circuit rendered prior to October 1, 1981.

13

(Tr. 24; cf. Tr. 418).
The Court notes that the record indicates that Timberlake
proclaimed Bryant disabled based on his finding of moderate
tenderness in the lumbo-sacral area following a single,
otherwise non-remarkable, examination.

While it is true that

Timberlake followed this disability pronouncement, eight months
later, with a pain form and physical capacity evaluation that
provided an opinion as to Bryant’s inability to work (see Tr.
424-25), the Court finds that there is substantial support for
the ALJ’s conclusion that there is no objective evidence in
Timberlake’s own notes to support his conclusion; Plaintiff
admits as much in his brief (Doc. 13, p. 4) (“While Dr.
Timberlake’s records themselves may not feature the objective
findings the ALJ seeks, the totality of the evidence supports
his opinion, so it should be given great, if not controlling,
weight”).

Bryant references evidence provided by Drs. Spruill

and Timberlake that the ALJ did not summarize though it appears
in the list of exhibits before him at the time his decision was
entered (Doc. 13, pp. 4-5; cf. Tr. 30).
However, the Court finds otherwise.

The Court has

considered those records and notes that Spruill never retracted
his finding that Plaintiff had reached maximum medical
improvement and could return to work, limiting him only to
lifting seventy-five pounds (Tr. 372).

14

While it is true that

Dr. Spruill continued to examine him quarterly, the records
show, essentially, that the changes exist more in Bryant’s
reporting of his symptoms than the Doctor’s examination notes.
The Court further notes that the most recent MRI (Tr. 504-05)—
apparently unseen by the ALJ—provides no support for a
disability finding, bolstering Dr. Spruill’s silence on the
issue.

Plaintiff’s failure to point to specific, objective

evidence of disability from any source belies his assertion of
it.
Bryant next claims that the ALJ violated the HALLEX16 in
improperly taking telephonic testimony from an ME.

Plaintiff

correctly notes that the ALJ did so in spite of being against
the rules and his objection (Doc. 13, pp. 6-7).

The Government

admits that the ALJ’s action was error, but argues that it was
harmless as using telephonic testimony was allowed by the time
the decision was entered (Doc. 14, p. 6).17
The Court has carefully reviewed the hearing transcript and
finds that, in spite of the apparent difficulty encountered at
the hearing because of the use of the telephone coupled with the

16The HALLEX, the Hearings, Appeals and Litigation Law Manual, “is

a policy manual written by the Social Security Administration to
provide policy and procedural guidelines to ALJs and other staff
members.” Howard v. Astrue, 505 F.Supp.2d 1298, 1300 (S.D. Ala. 2007)
(citing Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000).

17The Parties agree that the evidentiary hearing was conducted on

May 29, 2013, the use of telephonic testimony was allowed beginning on
June 20, 2013, and the ALJ’s decision was entered on June 27, 2013
(Doc. 13, pp. 6-7; Doc. 14, pp. 5-6; Tr. 26).

15

other participants video-conferencing from two different cites,
Bryant did have the opportunity to question the ME regarding the
evidence (Tr. 33-63).

While ALJ Michael L. Levinson’s flouting

of the rules was wrong, it is not reversible error as the Court
has discovered no discernible harm to Plaintiff.18

This claim is

of no merit.
Finally, Bryant argues that the opinions of the ME were
based on an incomplete record (Doc. 13, p. 8).

More

specifically, Plaintiff asserts there were five exhibits that
the ME did not have at his disposal to review at the time of his
testimony (see Tr. 435-551).
Plaintiff refers to records from Drs. Timberlake and
Spruill and an updated MRI, all reviewed herein earlier.

The

Court found that the ALJ’s failure to consider the evidence was
harmless as it provided no more support for Bryant’s assertions
of disability than the evidence actually reviewed.

The Court

finds that the ME’s consideration of it would have made no
difference in the ultimate determination.

This claim is of no

merit.
Bryant has raised three different claims in bringing this

18The Court notes that although only a technical violation

occurred, the Court reaches its decision because there was more than
substantial evidence for the ALJ’s finding that Plaintiff had the
ability to work. Had there been less evidence supporting that
decision, and the ME’s testimony been more critical to the outcome,
the Court would have reversed the decision. Here, however, a reversal
would waste resources and be meaningless.

16

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 26th day of October, 2015.

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

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