Byrd v. Colvin

Filing 24

ORDER adopting 21 Report and Recommendations and affirming the Acting Commissioner's decision. Judgment shall be entered against Plaintiff. Signed by Judge J. Randal Hall on 09/20/2016. (thb)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

JAMES LANIER BYRD

Plaintiff,
v.

Case No. CV614-106

CAROLYN COLVIN,

Acting Commissioner of
Social Security,
Defendant.

ORDER

Before

the

Recommendation

Court

(R&R)

is

the

Magistrate

advising

that

Judge's

the

Report

Social

and

Security

Commissioner's decision denying benefits be affirmed. Doc. 21.1 Byrd
Objects. Doc. 23. The Commissioner does not.
A.

Standard of Review

After conducting a careful and complete review, a district judge

may accept, reject, or modify the R&R. 28 U.S.C. § 636(b)(1); Williams

1

"Doc." citations use the docket and page numbers imprinted by the Court's

docketing software. Those do not always line up with each paper document's
printed pagination. "Tr." citations, on the other hand, use the page numbers in the

bottom right corner ofthe administrative record, which is located on the docket {see
doc. 14).

v. Wainwright, 681 F.2d 732 (llth Cir. 1982), cert, denied, 459 U.S.

1112 (1983). A district judge "shall make a de novo determination of
those portions of the report or specified proposed findings or

recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C).
The district judge must "give fresh consideration to those issues to

which specific objection has been made by a party." Jeffrey S. v. State

Bd. ofEduc, 896 F.2d 507, 512 (llth Cir. 1990) (quoting H.R. 1609,
94th Cong. § 2 (1976)).
B.

Byrd's Objections2
Byrd claimed disability "due to bone spurs and an inability to use

his right arm and hand." The Administrative Law Judge (ALJ) held
Byrd is not disabled under the Social Security Act.

The Magistrate

Judge (MJ) ruled that the ALJ had properly discredited the medical
opinion of treating physician Dr. Angela Davis, declined to order a
consultative examination to further develop the record, assessed Byrd's

residual functional capacity (RFC), and concluded that Byrd could
return to his past work as a social worker or other work in the national

2 The Court adopts the background section from the R&R.
2

economy. Doc. 21. Byrd contends the MJ erred by affirming the ALJ's
decision. Doc. 23.

1.

Dr. Davis' Medical Opinion

The MJ

found that Dr. Davis was properly accorded "little

weight" by the ALJ because her opinion was both internally
inconsistent with her own objective findings and with the record as a

whole. Doc. 21, p. 8 (citing Tr. 27). Byrd argues that the evidence the
MJ relied upon actually bolstered Dr. Davis' opinion and established
that "Byrd could not perform essential job duties" of his prior work.
Doc. 23, pp. 1-2, 6-7. This argument is without merit.

Following cervical spinal surgery, Byrd was cleared to return to
work as a social worker in December 2009 and returned to regular duty

work in January 2010. Tr. 26. Dr. Davis then saw Byrd in November

2010 for hypertension and neck pain. Tr. 47-73. Though she observed

left paraspinal spasm on palpation of the cervical spine, she also noted
normal bilateral upper extremity strength and no motor or sensory

deficits. Id. Byrd complained of severe, persistent cervical spine pain
with radiation throughout his right arm and severe right hand

weakness in March 2011.

Tr. 623.

Though he was noted to have

decreased right grip and arm strength and sensitivity, Byrd had "active
and pain free range of motion" in his right wrist, elbow, and shoulder.
Tr. 623-27.

Dr. Davis prescribed back exercises with heat and

stretching, aspirin, and Flexeril3 to address Byrd's "severe" symptoms.
Tr. 627.

Two months later, Byrd complained of only sporadic, mild

muscle spasms in his right hand, Tr. 619, and in December 2011, Byrd
was observed to have no muscle weakness, Tr. 616.

In March 2012, radiological imaging revealed normal alignment of

CI-6, with spondylitic foraminal narrowing at C3-4 on the right side,

and a "less than optimally]" captured cervical MRI revealed cervical
muscle spasm and multilevel disc osteophyte complexes.

Tr. 595-98.

Byrd complained of moderate, constant bilateral posterior neck pain
with radiation to the left upper arm and right forearm and right hand.

Tr. 610. Dr. Davis opined that Byrd would be unable to sit 6 hours out

of an 8-hour day, could stand and walk 6 hours out of an 8-hour day
without rest or alternating between postures, could lift up to 10 pounds
3 Flexeril is prescribed to relieve "skeletal muscle spasm of local origin without
interfering with muscle function." Menefee v. Barnhart, 336 F. Supp. 2d 1175, 1178
n.8 (N.D. Ala. 2004).

repetitively, and would be limited in his ability to handle, push, pull,
manipulate, or finger with his right hand. Tr. 512. Dr. Davis noted,

however, that she was "unsure" whether Byrd's pain allegations were
"consistent with clinical findings"

and that further consultative

evaluations were needed to determine whether Byrd could work a
normal 40-hour workweek. Tr. 513, 514. In June and December of that

same year, Dr. Davis observed that Byrd had no muscle weakness,
weakness in extremities, or neck stiffness and weakness. Tr. 602, 607.

Byrd testified that on a typical day, he independently dresses
himself, walks his dog, runs errands,

prepares meals, watches

television, and performs household chores including folding laundry,

mopping, unloading the dishwasher, vacuuming, taking out the trash,

riding a lawnmower, and "whatever [else] needs to be done." Tr. 58-59,
186-88.

Byrd sometimes needs help washing his left side and has

difficulty turning his neck to drive, has difficulty manipulating small
buttons and changing lightbulbs, and can only "write enough to write a
personal check." Tr. 61-67.

The MJ correctly held Dr. Davis' opinion internally inconsistent

and at odds with Byrd's own testimony as to his wide range of daily
activities. Byrd's complaints of neck pain and right arm weakness were
intermittent and demonstrated improvement, if anything.

From

November 2010, when Byrd complained of "severe" pain and right arm
weakness, to March 2012, when Byrd complained of "moderate" pain, to
December 2012, when no complaints of stiffness or weakness were

observed, the record simply does not support Dr. Davis' extreme opinion
that Byrd is unable to perform the requirements of an 8-hour workday

or would miss more than 5 days of work each month.

Contrary to

Byrd's contention, the objective imaging and other medical evidence of
record also do not support Dr. Davis' extreme opinion — no other
medical source ever opined Byrd was totally disabled based on either

the objective imaging or their own clinical observations. See generally
Tr. 262-628.

As the MJ correctly observed, Byrd's admitted daily activities

further undermine Dr. Davis' opinion. While "participation in everyday
activities of short duration, such as housework or fishing" does not

automatically disqualify a claimant from disability, Lewis v. Callahan,

125 F.3d 1436, 1441 (llth Cir. 1997), here, Byrd testified that he is able
to independently perform these varied activities on a daily basis. Byrd's
daily activities simply cannot be used to bolster Dr. Davis' conclusion
that he is unable to work.

2.

Past Work as a Social Worker

The MJ also properly found that Byrd could perform the

requirements of his past relevant work.

Though Byrd's treating

physician initially cleared him to return to work in December 2009 with
several suggested accommodations to enable him to complete his job
duties, Tr. 446-48, he was cleared for regular work duty by his surgeon

without accommodation a month later, Tr. 435. Byrd was then able to

perform the requirements of his job on "light duty" status for ten
months. See Tr. 440-45.

While Byrd is correct that the question of disability "does not take
the possibility of 'reasonable accommodation' into account," doc. 23 at 2

(quoting Cleveland v. Pol'y Mgm't Sys. Corp., 526 U.S. 795, 803 (1999)),
the record supports a finding that he can perform the requirements of

his past work as a social worker both as actually performed - with

accommodations

-

and

as

generally

performed

--

without

accommodations.4

Social workers are required to reach, handle, and

finger only occasionally, and are not required to feel. See Dictionary of

Occupational Titles 195.107-010 (DOT entry for sedentary, skilled work
as "caseworker"). Even fully crediting Dr. Davis' opinion that Byrd is
incapable of repetitive fine motor manipulation, handling, or pushing
and pulling, such a limitation does not preclude him from performing
the occasional manipulative requirements of a social worker.5 Id.

3.

Agency Reviewing Physician

The MJ found the agency reviewing physician's opinion to be

"essentially consistent with" the objective clinical evidence of record.
Doc. 21, n.5.6

4

The reviewer opined that Byrd could perform medium

Byrd admitted he left his past work due to being laid off, not because of the

limitations imposed by his impairments. Tr. 490.

5 Byrd also objects to the MJ's finding that he had the mental ability to work as a
social worker. Byrd references the agency consultative psychologist's opinion that
he "seems to possess the ability to understand [ land remember simple instructions.
. . ." Tr. 492; see doc. 23, p. 4. However, no medical source has opined Byrd is
limited to simple, repetitive tasks. An observed capacity to perform simple tasks is
not the same thing as a concrete, unambiguously opined limitation for the purpose
of the RFC assessment. Notably, Byrd does not object to the MJ's finding that the
ALJ properly formulated his RFC to exclude any mental functioning limitation; nor
has Byrd pointed to evidence that any medical source found him to be so limited.

6

The R&R says the ALJ "never stated that he gave the reviewer's opinion

significant weight." Doc. 21, n. 5. In fact, as Byrd correctly notes, the ALJ gave the

work with limited handling, fingering, and feeling in the right hand.
See Tr. 482-84. Byrd argues that the MJ does not possess the expertise
to assess whether the reviewer's opinion was consistent with Byrd's
most recent MRI findings. He further argues - without any citation to
evidence in the record - that the reviewer's opinion may also be
inconsistent with later medical evidence. State agency consultants are

highly qualified speciahsts who are also experts in the Social Security
disability programs, and their opinions may be entitled to great weight

if

the

evidence

supports

their

opinions.

See

20

C.F.R.

§ 404.1527(e)(2)(i); SSR7 96-6p. The ALJ was entitled to rely upon the
reviewer's opinion as substantial evidence because it is uncontradicted
by any other evidence of record.8

reviewer "great weight." Tr. 27. However, such error is harmless given the
ultimate disability finding, and does not otherwise support non-adoption of the
otherwise well-supported R&R.

7 Social Security Rulings (SSR) "represent precedent final opinions and orders and
statements of policy and interpretations that we have adopted." 20 C.F.R.
§ 402.35(b)(1). SSRs are entitled to deference, though they are not binding on the
courts. Fair v. Shalala, 37 F.3d 1466, 1467 (llth Cir. 1994); Silveira v. Apfel 204
F.3d 1257, 1260 (9th Cir. 2000) ("This court defer[s] to [SSRs] . . . unless they are

plainly erroneous or inconsistent with the Act or regulations").
8 Notably, Byrd does not cite a single inconsistency between the reviewer's opinion
and the record to demonstrate the reviewer's opinion was entitled to less than full
weight.
9

4.

Consultative Examination

The MJ determined that the ALJ did not err by failing to order a
consultative examination.

Doc. 21, n. 5.

Byrd argues that a single

treating note "recommendedting] a functional capacity evaluation and
neurosurgery evaluation to determine the extent of [Byrd's] disability"
somehow triggered the ALJ's duty to further develop the record by

ordering a consultative examination. Doc. 23 at 5-6 (citing Tr. 613).
However, Dr. Davis' uncertainty alone does not create an ambiguity in
the record. ALJs have an affirmative duty to develop the record where

appropriate.

But they are not required to order a consultative

examination where the record contains sufficient evidence to make an

informed decision.

Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d

1253, 1269 (llth Cir. 2007) (citing Doughty v. Apfel, 245 F.3d 1274,

1281 (llth Cir. 2001)); Wilson v. Apfel, 179 F.3d 1276, 1278 (llth Cir.
1999).

Here, the record is neither incomplete nor ambiguous. It contains

ample evidence that Byrd's allegedly disabling pain was abated with
10

time and conservative treatment.

See Tr. 623-27 (March 2011 visit,

observing "severe" cervical spinal pain and right hand weakness and

prescribing a muscle relaxant and aspirin for daily use, physical

therapy, heat, and stretching); Tr.620-22 (May 2011 visit, observing no
transient weakness and prescribing a muscle relaxant and aspirin for

daily use); Tr. 616 (December 2011 visit, observing no muscle or
extremity weakness and no extremity numbness and prescribing a

aspirin for daily use); Tr. 611-13 (March 2012 visit, observing muscle
weakness and spasms and prescribing a muscle relaxant and aspirin for
daily use and narcotic pain medication for use only as needed for

breakthrough pain); Tr. 606-07 (June 2012 visit, observing no muscle or
neck weakness or neck stiffness

and prescribing narcotic pain

medication for use only as needed for breakthrough pain); Tr. 602
(December 2012 visit, observing no muscle or extremity weakness and
no extremity numbness and noting no active pain medications

prescribed).

There is no requirement to order a consultative

examination when the record contains sufficient evidence to make an

informed decision, Wilson, 179 F.3d at 1278; Holladay v. Bowen, 848
li

F.2d 1206, 1210 (llth Cir. 1988), and that was the case here.

Hence, James Lanier Byrd's Fed. R. Civ. P. 72(b)(2) Objection is
OVERRULED, the R&R is ADOPTED, and judgment shall be entered
against him.

ORDER ENTERED at Augusta, Georgia, this <r^^day of
September, 2016.

,

J.

V

UNITED
XSQUT

12

fATES DISTRICT JUDGE
DISTRICT OF GEORGIA