Jordan v. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 5/9/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
GRADY JORDAN
Plaintiff,
v.
NANCY A. BERRYHILL1,
Social Security Commissioner
Defendant.

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) CIVIL ACTION NO. 16-353-N
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MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) Plaintiff, Grady Jordan (“Jordan” or
“Plaintiff”) seeks judicial review of an adverse social security ruling denying claims
for disability insurance benefits (DIB) (Docs. 1, 14). With the consent of the parties,
the Court has designated the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in this civil action, in accordance with
28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73.
(See Docs. 23, 25).

Oral argument was waived in this action (Doc. 22).

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.
PROCEDURAL BACKGROUND
Plaintiff protectively applied for disability insurance benefits on December
10, 2010. (TR. at 256-59). The application was initially denied on January 11,

Nancy A. Berryhill has replaced Carolyn Colvin and is now the acting Social Security
Commissioner.

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2011, after which Plaintiff requested a hearing. (Doc. 14 at 1). A hearing was held
before an ALJ on February 19, 2013, and the ALJ issued an unfavorable decision on
April 8, 2013. (Id.) Plaintiff appealed the decision to the Appeals Council and on
June 22, 2014, the case was remanded for further consideration, including the
consideration of Dr. Dismukes’ opinions. (TR. at 192-93, 92-96). A second hearing
in front of an ALJ was held on December 18, 2014, and the ALJ rendered a second
unfavorable decision on December 23, 2014. (Id. at 33-48, 66-74). Plaintiff again
appealed the decision of the ALJ and the Appeals Council denied review on May 6,
2016. (Id. at 32, 374-377, 1-7).
At the time of the second administrative hearing, Plaintiff was fifty-two years
old, had completed high school, and had previous work experience as a construction
worker and welder. (Doc. 13; Fact Sheet). Plaintiff alleges disability due to post
traumatic arthritis due to left calcaneal fracture, history of cervical fusion, and loss
of pituitary gland function. (Id). An Administrative Law Judge (“ALJ”) denied
benefits after determining that Jordan did not meet disability listing requirements;
the ALJ further found that Plaintiff was capable of performing a limited range of
light work. (TR. at 39).
Plaintiff claims that the ALJ committed reversible error in rejecting the
opinion of one of Plaintiff’s treating physicians, Keith Dismukes, M.D. and “in doing
so she performed an inadequate, cursory review of the evidence.” (Doc. 14 at 1).
Defendant has responded to—and denies—these claims. (Doc. 20).

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STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ’
” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)
(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [Commissioner].’ ” Winschel,
631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir.
2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983))).

“ ‘Even if the evidence preponderates against the

[Commissioner]’s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that

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come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the “claimant bears the burden of demonstrating the inability to
return to [his or] her past relevant work, the Commissioner of Social Security has
an obligation to develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581
(11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(per curiam) (“It is well-established that the ALJ has a basic duty to develop a full
and fair record. Nevertheless, the claimant bears the burden of proving that he is
disabled, and, consequently, he is responsible for producing evidence in support of
his claim.” (citations omitted)).

“This is an onerous task, as the ALJ must

scrupulously and conscientiously probe into, inquire of, and explore for all relevant
facts. In determining whether a claimant is disabled, the ALJ must consider the
evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir.
2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually

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presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).
DISCUSSION
Plaintiff asserts that the weight assigned to the opinions of Dr. Dismukes
was in error based on the ALJ’s incomplete and/or improper consideration of Dr.
Dismukes’ treatment records of Plaintiff. (Doc. 14 at 5). Defendant asserts the
ALJ’s assignment of weight was based on substantial evidence and was not in error.
(Doc. 20, generally).
At step two of the sequential evaluation process the ALJ found that Plaintiff
had a severe impairment of “post traumatic arthritis due to left calcaneal fracture
and history of cervical fusion.” (TR. at 38). At step three, the ALJ found that
Plaintiff did not have “an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairment of 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR Part 404.1520(d), 404.1525 and 404.1526).” (Id. at
39). The ALJ then determined that Plaintiff had the residual functional capacity
(“RFC”) to perform light work “except that he required a sit-stand option allowing
him to alternate sitting or standing position at 60 minute intervals throughout the
day, no operation of foot controls with the left lower extremity, never climb ladders,
ropes, or scaffolds and no exposure to excessive vibration, unprotected heights, and
hazardous machinery”. (Id. at 39).

As a result, the ALJ concluded that Plaintiff

was not disabled. (Id. at 43).
After summarizing the Plaintiff’s initial hearing testimony, acknowledging

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Plaintiff’s continued hormone replacement therapy by Dr. Dismukes, and
summarizing a consultative exam of November 21, 2011, by a consultative
examiner, Dr. Roubidoux, the ALJ stated that the RFC was consistent with the
medical record as a whole. (Id. at 41). The ALJ then stated that he gave only little
weight to Dr. Dismukes’ opinions. (Id. at 41). Plaintiff, however, asserts that the
weight assigned to the Medical Source Statement and Clinical Assessment of Pain
forms dated March 1, 2013 completed by Dr. Dismukes (TR. at 471-72), was in error
because the ALJ’s review of the medical evidence was “cursory and incomplete.”
(Doc. 14 at 5). The Medical Source Statement and Clinical Assessment of Pain
forms are described by Plaintiff as follows:
[Dr. Dismukes] stated Mr. Jordan could sit one hour and stand or walk less
than one hour in an eight-hour workday. He could occasionally lift and/or
carry up to ten pounds, or five pounds frequently. He required a splint for his
left foot. He could only occasionally perform gross or fine manipulation or
operate motor vehicles. He could never perform pushing and pulling
movements of arm and/or leg controls, climb stairs or ladders, balance, bend,
stoop, reach overhead, or work with or around hazardous machinery. He
stated these limitations were normal for Mr. Jordan’s condition, and his
diagnoses were confirmed by objective findings. He explicitly stated these
limitations had been present since before March 31, 2010. (Tr. 471).
Dr. Dismukes also completed a Clinical Assessment of Pain form. He stated
Mr. Jordan’s pain was present to such an extent as to be distracting to
adequate performance of daily activities. Significant side effects may be
expected which may limit effectiveness of work duties or performance of
everyday tasks. Physical activity such as walking, standing, bending,
stooping, waving of extremities, etc., would increase his pain to such an
extent that bed rest and/or medication is necessary. He concluded Mr.
Jordan’s condition could reasonably cause this level of pain. He stated Mr.
Jordan’s pain prevented him from maintaining attention, concentration or
pace for periods of at least two hours. He stated Mr. Jordan’s pain had
persisted at this level since before March 31, 2010. (Tr. 472)

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(Id. at 3-4). Defendant points out that the above opinions are on “single-page,
check-the-box style forms”. (Doc. 20 at 5).
“In assessing medical opinions, the ALJ must consider a number of factors in
determining how much weight to give to each medical opinion, including (1)
whether the physician has examined the claimant; (2) the length, nature, and
extent of a treating physician's relationship with the claimant; (3) the medical
evidence and explanation supporting the physician’s opinion; (4) how consistent the
physician’s opinion is with the record as a whole; and (5) the physician’s
specialization.

These factors apply to both examining and non-examining

physicians.” Eyre v. Comm'r, Soc. Sec. Admin., 586 F. App'x 521, 523 (11th Cir.
Sept. 30, 2014) (per curiam) (unpublished) (internal citations and quotation marks
omitted) (citing 20 C.F.R. §§ 404.1527(c) & (e), 416.927(c) & (e)). 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);2 see also 20 C.F.R. §
404.1527. Regardless, the ALJ must state with particularity the weight given to
different medical opinions and the reasons therefor. Sharfarz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987) (per curiam).

2The

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.

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In the ALJ’s opinion, the weight given to Dr. Dismukes’ opinion was
diminished because it was not consistent with the medical evidence of record. (TR.
at 41). More specifically, with regard to Dismukes’ opinion, the ALJ stated:
Pursuant to the remand order I have considered and given little weight to the
opinion Dr. Dismukes in Exhibit 15F. During the relevant time period, Dr.
Dismukes treated the claimant primarily for hormone supplements. The only
treatment for a specific complaint was in May, 2007, when the claimant
sought treatment for allergic rhinitis (Exhibit 1F). There is no evidence that
the claimant was receiving any pain medication and, thus, the pain
questionnaire is not supported by the record. His medical source statement is
not supported by the objective evidence, the subjective complaints during the
time period, or the treatment records.
(Id.) Plaintiff points to several factual discrepancies to show that the ALJ did not
fully review the records of Dr. Dismukes, resulting in an improper assignment of
weight to Dr. Dismukes’ opinions. Specifically, Plaintiff points out (1) that the
record from May 2007, was not Plaintiff’s only visit to Dr. Dismukes for a specific
complaint because he also visited with a specific complaint on July 2007, which
resulted in Dr. Dismukes prescribing Celebrex for arthritis after Plaintiff
complained of an inability to turn his neck and due to his left foot feeling “frozen”,
(2) the ALJ’s failure to acknowledge a podiatry visit from 2003, that revealed severe
pain in Plaintiff’s left heel and resulted in a change of orthotics, (3) the ALJ’s failure
to note Plaintiff’s prescription for pain medications of Celebrex, Cortef, and
Advil/Tylenol during the relevant time period, and (4) the ALJ’s failure to consider
Plaintiff’s subjective testimony relating to his activities of daily living. (Doc. 14 at
4-7).

For the reasons set forth below, the undersigned does not find Plaintiff’s

arguments to be compelling.

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Despite the one additional visit to Dr. Dismukes in 2007, there is still
substantial evidence that Dr. Dismukes treated Plaintiff “primarily for hormone
supplements.” (TR. at 379-394, 448-56, 470). The fact that the ALJ did not cite to a
second visit, as Plaintiff points out, is not evidence that the ALJ failed to evaluate
Dr. Dismukes’ records or that his assessment of Dr. Dismukes’ relationship with
Plaintiff, a valid factor in determining weight assigned, was inaccurate. See 20
C.F.R. §§ 404.1527(c). Second, contrary to Plaintiff’s assertion, the ALJ specifically
acknowledged the 2003 podiatry record Plaintiff contends was omitted from the
ALJ’s review. (Id. at 39). In that regard, the ALJ stated as follows:
Otherwise, he did receive treatment in 2003, for complaints of “off an one”
[sic] help pain attributed to rear foot valgus, calcaneal spur, plantar rasciitis,
and post traumatic arthritis. (Exhibit 12F). On examination, he did present
with severe pain to palpation of the plantar-medial left heel, antalgic gait,
everted calcaneous left, and rigidly everted left hind-foot with no subtalar
range of motion. (Exhibit 12F). However, he also had normal sensations,
normal deep tendon reflexes, 5/5 muscle strength for all groups tested, and
normal muscle tone. (Exhibit 12F) Treatment at this time remained
conservative as well and claimant was prescribed orthotics.
(Id.) As a result, it is clear that Plaintiff’s contention that the ALJ failed to consider
Plaintiff’s 2003 podiatry visit in assigning weight to Dr. Dismukes’ opinion, is
without merit.
Plaintiff next claims that the ALJ failed to consider Plaintiff’s prescribed
pain medications including, Cortef, Celebrex, and Tylenol/Advil as needed.
However, in summarizing the medical record, the ALJ stated “[a]gain, other than
for hormone replacement therapy, the claimant has had no ongoing treatment for
significant complaints. He has had no treatment for chronic pain and is on no

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prescribed pain medication.” (Id. at 40). Plaintiff points out that he was prescribed
Celebrex in July 2007. However, the medical record indicates that Plaintiff was
prescribed Celebrex for pain only once, with no refills.

(Id. at 39; TR. at 380).

Further, Plaintiff seems to assert that Plaintiff’s prescription for Cortef was
treatment for ongoing pain; however, the medical record (and Plaintiff’s brief)
reflect that the same was treatment for Plaintiff’s pituitary gland. (See Doc. 14 at 2
(“On March 4, 1986, after hospitalization and extensive pituitary testing, it was
determined Mr. Jordan’s pituitary gland still was not functioning properly. He
would require Synthroid, Cortef and testosterone injections. (Tr. 435-436).”). While
Plaintiff points out that Cortef can be used for pain, he points to nowhere in the
medical record to substantiate that Plaintiff was taking it for pain. Further, while
Plaintiff was taking Tylenol and Advil as needed, the same does not discredit the
ALJ’s determination that Plaintiff was not taking prescription pain medication.
Lastly, Dr. Robidoux, the consultative examiner, after reviewing Plaintiff’s medical
records, stated “no chronic pain care found. On no pain medications.” (TR. at 412).
As a result, the ALJ’s conclusion that Plaintiff was not taking ongoing pain
medications is supported by substantial evidence and was not improper.
Plaintiff’s last point of contention is that the ALJ failed to consider Plaintiff’s
subjective testimony as to his physical capabilities. (Doc. 14 at 5-6). However, the
ALJ articulated that Plaintiff’s testimony was not fully credible. Specifically, the
ALJ noted, “the record also documents no complaints of significant side effects to
the injections, thus his testimony of adverse medication side effects are not

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supported and are not credible” […] “in the consultative report the claimant
described activities contradictory to his purported level of limitations. He stated ‘ I
cut grass and cook and shop’ and he continued to drive as well (Exhibit 4F, p.13).
However, the claimant testified he performs no household chores.” (TR. at 40, 41).
Plaintiff additionally asserts that the ALJ adopted the consultative examiner’s
attitude towards Plaintiff resulting from Plaintiff’s refusal to test his left foot.
There is, however, no evidence that the ALJ’s consideration of this factor was a
basis for the weight assigned to Dr. Dismukes’ opinions.
Despite, Plaintiff’s assertions to the contrary, this Court finds that there was
substantial evidence that contradicted Dismukes’ opinions such that the ALJ did
not err by giving his opinion little weight.

Further, the ALJ’s explanation

specifically articulates the reasoning behind his decision to diminish the weight
attributed to Dr. Dismukes’ opinion, i.e. because of the limitations of his treatment
of Plaintiff, because of lack of record on ongoing pain medication for chronic pain,
and a lack of support by the objective medical record, the subjective complaints, or
the treatment records. (TR. at 41). As such, Plaintiff’s assertion that Dr. Dismukes’
opinion should have been assigned more weight is without merit.
CONCLUSION
Plaintiff has raised one claim in bringing this action and it is 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." Richardson v.
Perales, 402 U.S. 389, 401 (1971). Therefore, it is ORDERED that the Secretary's

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decision be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.
1980), and that this action be DISMMISSED.

Judgment will be entered by

separate Order.
DONE this 9th day of May 2017.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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