Fox v. Colvin
MEMORANDUM OPINION AND ORDER entered. 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 4/21/2016. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JEFFREY JAMES FOX,
CAROLYN W. COLVIN,
Commissioner of Social Security,
CIVIL ACTION 15-0434-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 which
denied a claim for disability insurance benefits.
filed written consent and this action has been 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. 26).
Oral argument was waived in this action (Doc. 25).
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 Cir. 1983), which must be supported by substantial
Richardson v. Perales, 402 U.S. 389, 401 (1971).
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, Fox was fiftyone years old, had completed a high school education (see Tr.
30), and had previous work experience as a truck driver (Tr.
In claiming benefits, Plaintiff alleges disability due to
upper and lower extremity impairments in combination with
obesity (Doc. 15 Fact Sheet).
Fox filed an application for disability benefits on January
28, 2013, asserting a disability onset date of March 4, 2011
(Tr. 134-35; see also Tr. 20).
Benefits were denied following a
hearing by an Administrative Law Judge (ALJ) who determined that
although he could not do his past relevant work, Plaintiff was
capable of performing specific light work jobs (Tr. 20-32).
requested review of the hearing decision (Tr. 14-16) by the
Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Fox alleges
(1) The ALJ did not properly consider the opinions of his
treating physician; and (2) the ALJ did not properly apply the
Medical Vocational Rules (Doc. 15).
Defendant has responded to—
and denies—these claims (Doc. 20).
The Court will now summarize the relevant record evidence.
On March 4, 2011, Fox was admitted to UAB Hospital
(Highlands) for four nights to undergo laparoscopic incisional
repair of multiple hernias; he improved to a point where his
pain was well-controlled and he was stable at discharge with a
prescription for Lortab1 (Tr. 220-26, 228-29).
On January 9, 2013, Dr. Lisha Thornton examined Plaintiff
for his diabetes mellitus, hypertension, and dyslipidemia; he
also had eye strain, headaches, and foot pain from neuropathy,
especially at night (Tr. 230-34).
The Doctor noted that Fox’s
diabetes,2 hypertension, and asthma were resolved; his gait was
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).
During the same examination, the Doctor indicated that Fox’s
diabetes mellitus was uncontrolled (Tr. 234; cf. Tr. 231).
Thornton encouraged Plaintiff to get his eyes examined
and quit smoking while increasing his Neurontin3 prescription.
On January 9, 2013, records from UAB Health Center Hoover
demonstrated that Fox’s diabetes was under better control (Tr.
272; see generally Tr. 235-77).
Plaintiff was given information
on how to quit smoking (Tr. 238-40).
On March 30, at the request of the Social Security
Administration, Dr. Richard Crittenden performed a consultative
examination of Fox whose chief complaints were neuropathic feet
pain, bilateral shoulder pain, and right knee pain; Plaintiff
said that the neuropathy limited him to standing and walking for
one hour each and the shoulder kept him from overhead reaching,
though it had no effect on hand function (Tr. 278-83).
stated that his daily activities included cooking, cleaning
dishes, vacuuming, and doing laundry; he drove himself to church
and to the grocery store.
He walked as much as he could
Crittenden described Plaintiff as morbidly obese with
normal toe/heel walk; though the Doctor found that he did not
need a cane, Fox had one, unprescribed, that he used
Plaintiff had minor range of motion (hereinafter
ROM) limitations in the right shoulder; muscle strength was 5/5
Neurontin is used in the treatment of partial seizures.
in all major muscle groups with normal muscle bulk and tone.
Sensation to touch was intact, though there was no pinprick
sensation in any of the ten toes.
Dr. Crittenden noted that
Fox’s right shoulder was moderately tender posteriorly and
laterally below the acromion; the right knee was diffusely
mildly tender with mild crepitus on active ROM.
found that Plaintiff could stand and walk, up to six hours each,
with no limitation in sitting; Fox was limited to lifting and
carrying twenty-five pounds occasionally and ten pounds
frequently on the right with no limitations on the left.
could reach only occasionally, with no limitation in handling,
fingering, and feeling.
There was no restriction on climbing
stairs but he was limited in climbing ladders and scaffolding;
there were no limitations in stooping, crouching, kneeling, or
On April 25, 2013, Dr. Lisha Thornton examined Plaintiff
for chest congestion, sinus pressure, headache, and right
shoulder pain (Tr. 295-300).
She noted his height of seventy-
six inches and weight of 342.4 pounds equaled a Body Mass Index
of 41.68; Fox was in no acute distress.
Plaintiff had normal
gait; his right shoulder had mild crepitus with moderately
Physician's Desk Reference 2110-13 (52nd ed. 1998).
reduced ROM while the left shoulder had mild crepitus with good
Thornton prescribed Ultram,4 referred him to an orthopaedic
physician, and told him to quit smoking.
On July 11, 2013,
Thornton examined Fox for his annual physical; he was doing well
overall, smoking, and watching portions at meals, but not
exercising (Tr. 301-06).
Plaintiff was alert and oriented and
in no acute distress; on the musculoskeletal exam, the Doctor
noted no tenderness, swelling, or deformity, though there was
crepitus and reduced ROM in the right shoulder.
He had normal
Plaintiff was encouraged to get regular
exercise and change his diet to combat his obesity as well as to
On July 16, Dr. Marshall Crowther examined Plaintiff for
right shoulder pain; Fox also complained of neck and right knee
pain, but no back pain (Tr. 285-88).
X-rays showed mild
degenerative change in the glenohumeral and acromioclavicular
joints, but the changes were not considered significant.
Doctor noted that internal rotation was limited secondary to
pain; Plaintiff was given a corticosteroid injection and was
prescribed a topical pain compound.
Ultram is an analgesic “indicated for the management of moderate
to moderately severe pain.” Physician's Desk Reference 2218 (54th ed.
On July 24, 2013, Dr. Thornton saw Fox for shoulder and
right knee pain; he also complained of burning and numbness in
his feet; he rated his pain at two (Tr. 311-15).
The Doctor next examined Plaintiff on February 7,
2014 for complaints of intermittent left ear pain, hemorrhoids,
and increased neuropathic feet pain; he did not complain of any
muscular pain, but rated his pain at seven (Tr. 316-21).
had normal gait; Thornton referred him for a colonoscopy.
On March 6, Dr. Carol Rosenstiel determined that Fox’s
vision was 20/20 bilaterally (Tr. 291; see generally Tr. 29093).
On March 11, Dr. Thornton saw Plaintiff for increased sugar
levels; he complained that Lyrica6 was not controlling his
neuropathic pain (Tr. 322-27).
She increased the dosage for the
Lyrica and his diabetic medications and encouraged him to lose
weight and exercise.
On March 13, Dr. Crowther examined Plaintiff for follow up
for his right shoulder pain and a new complaint of right knee
pain when he tried to straighten it; his pain was seven on a
Tramadol “is indicated for the management of moderate to
moderately severe chronic pain in adults who require around-the-clock
treatment of their pain for an extended period of time.” Physician's
Desk Reference 2520 (66th ed. 2012).
Lyrica is used for the management of neuropathic pain.
ten-point scale (Tr. 344-48, 367).
The Doctor noted no ROM
limitations in the right shoulder but about fifteen degrees
limitations in his right knee extension; gait was normal.
rays demonstrated fairly advanced degenerative narrowing and
osteophytic change, mostly affecting patellofemoral compartment,
but tricompartmental changes were seen.
was degenerative joint disease of the right knee and rotator
cuff impingement syndrome of the right shoulder for which he
recommended injections for both the knee and shoulder, a
compounding pain cream, a lateral hinged patellar J brace for
knee stability, and physical therapy; he could bear weight as he
was able and was told to avoid stairs.
On April 2, 2014, Dr. Thornton noted Fox’s complaints of
fatigue and drowsiness because of his medications; he rated his
pain at eight (Tr. 361-66).
levels were improving.
The Doctor noted that his glucose
Plaintiff’s right shoulder had poor ROM
with crepitus; his right knee had reduced ROM with crepitus.
the same date, Thornton completed a physical capacities
evaluation in which she indicated that Fox could lift and carry
twenty pounds occasionally and ten pounds frequently; he could
sit for three and stand/walk less than one hour during an eight-
Physician's Desk Reference 2517 (62nd ed. 2008).
hour day (Tr. 336).
cane to walk.
Dr. Thornton indicated that Fox needed a
She went on to state that Plaintiff could
frequently engage in gross and fine manipulation, operate motor
vehicles, work around dust, allergens, and fumes; he could
occasionally climb stairs or ladders and balance and bend, but
could never use arm or leg controls, stoop, reach, or work
around hazardous machinery.
The Doctor went on to complete
forms indicating that Fox experienced pain and fatigue/weakness
to an extent that would negatively affect adequate performance
of daily activities, that physical activity would greatly
increase his pain/fatigue/weakness, and that prescribed
medication would cause side effects that would limit his
effectiveness (Tr. 337-40).
This concludes the Court’s review of the evidence.
In bringing this action, Fox first claims that the ALJ did
not properly consider the opinions of his treating physician,
Dr. Lisha Thornton (Doc. 15, pp. 3-8).
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);7 see
also 20 C.F.R. § 404.1527 (2015).
Fox asserts that the ALJ improperly gave greater weight to
the conclusions of another doctor than to Thompson.
specifically, he asserts that the ALJ failed to recognize that
Dr. Thornton was considering all of his impairments, severe and
non-severe, in assessing his abilities as opposed to Dr.
Crowther whose evaluation was focused on orthopaedic
Plaintiff’s argument emphasizes his obesity and
right knee impairment as reasons why Thornton’s physical
capacities and pain evaluations were entitled to greater weight.
In rejecting the treating physician’s opinion, the ALJ
first noted the lack of support for those conclusions in her own
records, specifically pointing out Fox’s admission that he could
engage in particular daily activities inconsistent with her
conclusions (Tr. 29).
The ALJ further pointed out that
Thornton’s records failed to indicate a need for a cane, though
her physical capacities evaluation proclaimed it necessary (Tr.
29); just a month before that conclusion, Thornton had found
Plaintiff to have a normal gait (Tr. 325).
The ALJ also
The 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.
discredited Thornton’s finding that Fox’s medications caused
side effects that would reduce workplace effectiveness, noting
no support in her records for the conclusion (Tr. 29).8
bringing this claim, Plaintiff fails to rebut these specific
reasons for the ALJ’s rejection of Thornton’s conclusions.
Plaintiff points to Dr. Crittendon’s examination as support
for Thornton’s disability conclusion (Doc. 15, p. 7; cf. Tr.
This relates specifically to Fox’s right knee
However, the ALJ rejected the severity of that
impairment as the medical evidence did not support the
durational requirement (Tr. 22).
In addressing the issue, the
ALJ specifically discussed Crittendon’s examination findings and
his specific conclusion that there was no objective evidence to
support Plaintiff’s claim of right knee pain (Tr. 22-23; cf. Tr.
The Court finds no support for Fox’s argument that
Crittendon’s notes bolster Dr. Thornton’s conclusions.
As for Plaintiff’s argument regarding his obesity, the
Court notes that the ALJ specifically addressed the impairment,
first finding it severe (Tr. 22).
The ALJ went on to point out
the evaluation required for obesity, before finding that no
The Court notes that Fox complained once about the effects of
his medications, though it was the last time Thornton examined him
(Tr. 361). Nevertheless, Fox has not complained of this error and the
“treating or examining source of record has attributed any
additional limitations to the claimant’s obesity” (Tr. 24, 28).
The Court cannot say that the ALJ failed to properly consider
Fox’s obesity in rejecting Dr. Thornton’s conclusions of
Finally, with regard to this claim, the Court notes the
following language in Plaintiff’s brief:
“Regardless of the
longevity of treatment or the content of the treating notes”
(Tr. 15, p. 8).
Fox’s claim regarding her treating physician
fails exactly because of the “content of the treating notes” as
Thornton’s medical records do not support a conclusion of
The balance of the medical record does not support
It is of no benefit to him that Plaintiff’s
treating physician was in the best position to “assess the
nature, extent and severity of her patient’s impairments and
their effects on everyday and workplace activities” if she
failed to actually record the information as it occurred (see
Doc. 15, p. 8).
Fox’s second claim is that the ALJ did not properly apply
the Medical Vocational Rules (hereinafter MVR) (Doc. 15, pp. 810).
More specifically, Plaintiff argues that if the ALJ had
Court considers it to be, at most, harmless.
applied the MVR, he would have gridded out under Rule 201.14 and
been found disabled.
The Court finds that Fox’s premise is faulty, however, in
that Rule 201.14 contemplates an individual capable of
performing sedentary work.
The ALJ specifically found that
Plaintiff had the residual functional capacity to perform light
work (Tr. 25).
His questioning of the Vocational Expert
contemplated an individual capable of performing light work (Tr.
52) and the answers received specifically identified the jobs as
light (Tr. 52-53).
The ALJ accepted the Vocational Expert’s
answers as his own conclusions and found that Fox was capable of
performing specific light work jobs (Tr. 31).
herein is irrelevant to the findings.9
Fox has raised two claims in bringing this action.
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.
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
The Court further finds that Plaintiff’s assertion (see Doc. 15,
p. 10) that the ALJ should have developed the record by calling a
medical expert to reconcile differences in the record is of no merit
entered by separate Order.
DONE this 21st day of April, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
in light of the failure of the evidence to support disability.
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