Mendum v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER denying 15 Motion for Judgment on the Pleadings. This case is dismissed with prejudice. Signed by Chief District Judge Louis Guirola, Jr. on 3/15/12. (RLW)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

SHARON L. MENDUM

PLAINTIFF

V.

CAUSE NO. 1:10CV537-LG-RHW

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Sharon L. Mendum’s [15] Motion
for Judgment on the Pleadings. Plaintiff challenges the final decision of the
Commissioner of Social Security affirming an administrative law judge's (ALJ)
determination that Plaintiff was not disabled. In her motion, Plaintiff asserts that
the ALJ (1) failed to follow the treating physician rule; and (2) failed to evaluate her
credibility properly.
Factual Background
Plaintiff is a high school graduate who was 54 years old at the alleged onset
of disability. [12-1] at 41, 43. Her past relevant work includes fast food worker;
biscuit cook; customer service representative; tax preparer; stitcher; and retail store
manager. Id. at 67-68. Plaintiff alleges that she has been disabled since October
19, 2005, because of back and neck pain. The medical evidence also indicates that
Plaintiff has suffered from carpal tunnel syndrome, rotator cuff injury, migraine
headaches, diabetes, and hypertension. [12-2] at 33, 80-82, 168.
Dr. Mathew Wallack, a board certified neurologist, began pain management

treatment of Plaintiff on October 26, 2005. Id. at 80. There is an extensive
treatment history from Dr. Wallack, indicating that he examined and treated
Plaintiff through June 5, 2007. Id. at 45-145. Dr. Wallack initially diagnosed
Plaintiff with chronic low back pain and right proximal leg pain, long-standing neck
pain, bilateral upper extremity pain related to rotator cuff syndrome and carpal
tunnel syndrome, and headaches. Id. at 81-82. A review of the record reveals that
Dr. Wallack has administered repeated epidural steroid injections in an effort to
treat Plaintiff’s back pain. See id. at 45-145. As medications, Plaintiff has taken
Neurontin, Flexeril, Durgesic, OxyContin and Methadone. Id. at 70, 81. Dr.
Wallack’s treatment records also indicate treatment with radiofrequency and
physical therapy. Id. at 66, 68. Dr. Wallack also reported limited motion of the
spine, tenderness and muscle spasms, abnormal gait, and decreased sensation. Id.
at 73, 76, 81.
In a report dated July 28, 2006, Dr. Wallack opined that Plaintiff was unable
to return to work as a result of her lumbar and cervical conditions. Id. at 66. In an
August 25, 2006, report, he opined that Plaintiff’s pain was disabling because she
was unable to sit for more than 15 minutes at a time. Id. at 61. In a Lumbar Spine
Impairment Questionnaire, dated October 13, 2008, Dr. Wallack diagnosed spinal
degenerative disease with a poor prognosis. Id. at 46-52. He based his opinion on
clinical findings of limited motion in the cervical and lumbar spines; tenderness and
muscle spasms of the cervical, thoracic, and lumbar spines; swelling of the lumbar

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spine; an antalgic gait; sensory loss involving the distal proximal extremities; and
diffuse trigger points. Id. Dr. Wallack also cited to MRI results in support of his
findings. Id. Dr. Wallack reported that the symptoms and limitations were
present beginning in October 2005, when he first began treating her. Id.
As limitations, Dr. Wallack concluded that Plaintiff was able to sit less than
one hour total and stand/walk less than one hour total during an 8-hour work day.
He also noted that Plaintiff needed to get up and move around for 15 minutes after
sitting for 15 minutes. He further opined that Plaintiff was able occasionally to
lift/carry up to 5 pounds, but never more. He concluded that Plaintiff’s pain and
other symptoms were severe enough to interfere with her attention and
concentration. He further noted that Plaintiff was capable of handling no more
than low stress. He opined that Plaintiff required unscheduled breaks to rest
approximately every hour for 15 to 30 minutes per day. Dr. Wallack estimated that
Plaintiff would be absent from work more than three times a month as a result of
her condition. Id.
Dr. Eric Wolfson, a board certified neurosurgeon, evaluated Plaintiff on May
22, 2006, based upon a referral from Dr. Wallack. Id. at 32-33. Dr. Wolfson
diagnosed intractable lumbar discogenic pain syndrome and recommended a
discogram. Id. On July 19, 2006, Dr. Wolfson recommended physical therapy
followed by possible surgery, if therapy was unsuccessful. Id. at 31. On August 16,
2006, Plaintiff reported no improvement from physical therapy; however, Dr.

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Wolfson recommended continued conservative treatment. Id. at 30. Plaintiff
underwent an MRI of her lumbar spine on September 6, 2006. Id. at 29. On
September 11, 2006, Dr. Wolfson examined the MRI results and recommended no
surgical treatment. Id. at 28. On October 4, 2006, he recommended further
treatment with Dr. Wallack. Id. at 27.
Dr. Lennon Bowen, a board certified neurologist, examined Plaintiff On
January 23, 2006, for complaints of bilateral arm pain and headaches. Id. at 16768. Dr. Bowen diagnosed migraine headaches and carpal tunnel syndrome. Id.
On August 16, 2006, Plaintiff visited Dr. Philip Compton complaining of back
pain. Id. at 163. Dr. Compton was Plaintiff’s regular treating physician as of the
date of the ALJ hearing. [12-1] at 47-48. On June 5, 2007, Dr. Compton filled out a
form for the Office of Disability Determination Services (DDS) indicating that
Plaintiff suffered from hypertension and diabetes, each with a good prognosis. [12-2]
at 147. He did not assess any functional limitations. Nor did he mention any
diagnosis with respect to Plaintiff’s back and neck. Id. On October 12, 2007, Dr.
Compton filled out a second DDS form, which did list lower back pain as a diagnosis
and indicated that Plaintiff’s lower back pain had a “fair” prognosis. Id. at 146.
The administrative record indicates that Plaintiff visited Dr. Compton for
examination or follow-up on more than a dozen occasions beginning in August 16,
2006, through February 11, 2010. Id. at 148-66, 182-96.
On August 15, 2007, Dr. Robert L. Cobb performed a consultative

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examination at the behest of the Social Security Administration. Id. at 34-35. Dr.
Cobb diagnosed chronic low back pain syndrome, right shoulder pain with history of
rotator injury, history of occasional headaches, obesity, hypertension, diabetes, and
asthma. Id. Dr. Cobb opined that Plaintiff had functional limitations “as noted
above;” however, the report is silent as to Plaintiff’s functional limitations other
than the limitations recited in Plaintiff’s history. Id. These limitations include
inability to stand on her feet more than 5 to 10 minutes at a time; no radiating
pain in the legs; ability to lift and carry 10 to 15 pounds, occasionally, but pain with
any greater weight; and ability to bend at the waist and stoop occasionally. Id.
On August 28, 2007, Dr. James Griffin reviewed Plaintiff’s medical records,
including Dr. Cobb’s report, and assessed her residual functional capacity (RFC).
Id. at 37-44. Dr. Griffin listed Plaintiff’s primary diagnosis as a herniated disc and
chronic pain. Id. He opined that Plaintiff could lift/carry/push/pull 20 pounds
occasionally and 10 pounds frequently; could sit/stand/walk for 6 hours each in an
8-hour workday; was limited in her ability to reach in all directions (including
overhead); and should avoid even moderate exposure to fumes, odors, dusts, gasses,
and poor ventilation due to asthma and chronic cough. Id.
Plaintiff testified at the hearing conducted by the ALJ and reported on her
back and neck pain and the limitations caused by the pain. [12-1] at 41-67.
Specifically, she testified that she could not sit or stand for long periods of time and
needed a job that allowed her to “constantly be up and down.” Id. at 45. She stated

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that she could stand for 5 to 10 minutes. Id. at 56. She also testified that she was
able to sit no longer than 30 minutes before needing to stand up and move around.
Id. Plaintiff further testified that she could lift 10 pounds with both hands
comfortably. Id. at 57.
A vocational expert also testified at the hearing. Id. at 67. The ALJ
presented the vocational expert with a hypothetical based on Plaintiff’s age,
education, and work history, and her ability to perform light or sedentary work. Id.
The ALJ indicated to the vocational expert that Plaintiff would require a sit/stand
option; only occasional bending, kneeling, and stooping; no overhead reaching; and
a need for an air conditioned environment with no extreme heat or cold or exposure
to gas, fumes, dust, or noxious odors. Id. at 68-69. Based on these limitations, the
vocational expert concluded that Plaintiff would be able to perform her past work as
a customer service representative and tax preparer. Id. at 69. The vocational
expert classified both of these jobs as sedentary. Id. at 66. If the individual was
also markedly limited in her ability to concentrate during an 8-hour day, the
vocational expert stated that Plaintiff would be unable to perform any work. Id. at
69.
Standard of Review
The federal district court reviews the Commissioner’s decision only to
determine whether the final decision is supported by substantial evidence and
whether the Commissioner used the proper legal standards to evaluate the

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evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Martinez v. Chater, 64
F.3d 172, 173 (5th Cir. 1995). If the court determines the Commissioner’s decision
to be supported by substantial evidence, then the findings are conclusive and the
court must affirm the decision. Richardson v. Perales, 402 U.S. 389, 390 (1971); see
also 42 U.S.C. § 405(g). This standard requires supporting evidence that is “‘more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Richardson, 402 U.S. at 401 (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The court is not
permitted to “reweigh the evidence in the record, nor try any issues de novo, nor
substitute our judgment for the judgment of the [Commissioner], even if the
evidence preponderates against the [Commissioner’s] decision.” Johnson v. Bowen,
864 F.2d 340, 343 (5th Cir. 1988). “‘Conflicts in the evidence are for the
[Commissioner] and not the courts to resolve.’” Brown, 192 F.3d at 496 (quoting
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)). While the court may alter
the Commissioner’s decision if based upon faulty legal analysis, the court should
defer to the Commissioner’s legal conclusions if they are within a permissible
meaning of the statutory or regulatory language. Chevron, U.S.A., Inc. v. National
Resources Defense Council, 467 U.S. 837, 843–44 (1984).
A claimant bears the burden of proving the existence of a medically
determinable impairment that has prevented the claimant from engaging in
substantial gainful employment. 42 U.S.C. § 423 (d)(1)(A); 42 U.S.C. § 423 (d)(5).

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The Social Security Administration (SSA) utilizes a five-step sequential process to
determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a), § 404.920(a).
Under this analysis, the ALJ may decide a claimant is disabled if he finds that (1)
the claimant is not employed in substantial gainful activity; (2) the claimant has a
severe, medically determinable impairment; (3) the claimant’s impairment meets or
equals one of the listings in appendix 1 to subpart P of § 404; (4) the impairment
prevents the claimant from performing any past relevant work; and (5) the
impairment prevents the claimant’s ability to adjust to performing any other work.
Id.
The claimant initially bears the burden of proving disability under the first
four steps, but the burden shifts to the SSA for the fifth step. Chapparo v. Bowen,
815 F.2d 1008, 1010 (5th Cir. 1987). Therefore, if the claimant proves that he is
unable to perform past relevant work, the SSA must demonstrate that the claimant
can perform another occupation that exists in significant numbers in the national
economy. The burden then shifts back to the claimant to establish that he cannot
perform this alternative employment. Id.
ALJ’s Decision
The ALJ issued a decision on July 31, 2009, finding severe impairments of
ruptured disc at L3-4, chronic low back pain, obesity, and asthma. [12-1] at 17-22.
Nevertheless, the ALJ concluded that Plaintiff retained the RFC to perform light
work with a sit/stand option; only occasional bending, kneeling, and stooping; no
exposure to gases, fumes, odors, and dusts; only work in environments with air
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conditioning; and no requirements of overhead reaching. Based on this RFC, the
ALJ found that Plaintiff was capable of performing her past work as a tax preparer
and customer service representative.
Law and Analysis
Plaintiff argues that the ALJ failed to follow the treating physician rule.
Specifically, Plaintiff asserts that the ALJ impermissibly rejected the opinion of Dr.
Wallack regarding the limits of Plaintiff’s ability to work. Dr. Wallack essentially
concluded that Plaintiff was incapable of performing any work as a result of chronic
back pain. Plaintiff argues that Dr. Wallack’s opinion is uncontradicted by other
substantial evidence in the record; therefore, it should be given controlling weight.
The opinion of a treating physician is to be given controlling weight if the
opinion is well-supported by clinical and laboratory findings and is not inconsistent
with other substantial evidence in the record. 20 C.F.R. 404.1527(d)(2); Perez v.
Barnhart, 415 F.3d 457, 465-66 (5th Cir. 2005). The ALJ may accord lesser weight
to a treating physician’s opinion for good cause, such as where the treating
physician’s opinion is conclusory, not credible, or unsupported by objective medical
evidence or clinical laboratory findings. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir.
2000). "Absent reliable medical evidence from a treating or examining physician
controverting the claimant’s treating specialist, an ALJ may reject the opinion of
the treating physician only if the ALJ performs a detailed analysis of the treating
physician’s views under the criteria set forth in 20 C.F.R. § 404.1527(d).” Id. at 453
(emphasis in the original). The criteria for assessing a treating physician’s opinion
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as required by 20 C.F.R. § 404.1527(d)(2) are: (1) the physician’s length of treatment
of the claimant; (2) the physician’s frequency of examination; (3) the nature and
extent of the treatment relationship; (4) the support of the physician’s opinion
afforded by the medical evidence of record; (5) the consistency of the opinion with
the record as a whole; and (6) the specialization of the treating physician.
The ALJ is free to assign little or no weight to the opinion of any physician
for good cause. Newton, 209 F.3d at 455-56. A treating physician’s opinion may be
rejected when the evidence supports a contrary conclusion. Martinez, 64 F.3d at
176. "If the ALJ determines that the treating physician’s records are inconclusive
or otherwise inadequate to receive controlling weight, absent other medical opinion
evidence based on personal examination or treatment of the claimant, the ALJ must
seek clarification or additional evidence form the treating physician”. Newton, 209
F.3d at 453.
In this case, there is substantial evidence in the record, from both treating
and examining sources, to controvert the opinion of Dr. Wallack. The ALJ gave
“little weight” to Dr. Wallack’s opinion. [12-1] at 21. By contrast he gave
"significant weight" to the findings and opinions of Dr. Griffin, Dr. Cobb, and Dr.
Compton. Id. Dr. Compton was a treating physician whose treatment of Plaintiff
both overlapped and post-dated Dr. Wallack's. The ALJ rejected Dr. Wallack's
opinion based in part on the records of Dr. Compton. The ALJ concluded that
[i]t is true that clinical findings from Philip Compton, M.D., through
February 5, 2009, show the claimant required occasional treatment for
limitations cited in the RFC, they also confirm she responded well to
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treatment. (Exhibits 8F and 9F). It is noted the most recent
consultation records show that claimant voiced no complaints. (Exhibit
9F).
Id. Moreover, in a DDS form dated October 12, 2007, Dr. Compton listed Plaintiff’s
lower back pain as a diagnosis, but indicated that the condition had a “fair”
prognosis. Dr. Compton was silent as to any limitations from Plaintiff’s conditions.
Dr. Cobb was not a treating physician, but he was an examining physician
who conducted a clinical exam of Plaintiff at the behest of the Commissioner. Dr.
Cobb noted, among other things, that Plaintiff had good range of motion and no
tenderness or spasm in her back; she was able to fully squat; and there were no
weaknesses or sensory changes in the lower extremities. Dr. Cobb also recited
Plaintiff’s functional limitations, which indicated that she could stay on her feet no
more than 5 to 10 minutes at a time and was able to lift 10 to 15 pounds,
occasionally. He noted that she was able to bend at the waist and stoop,
occasionally.
Dr. Griffin reviewed Plaintiff's medical records, including Dr. Cobb’s report,
and provided an assessment of Plaintiff's RFC. Dr. Griffin concluded that Plaintiff
had some limitations as a result of her back condition, but the limitations he
outlined were not as severe as those outlined by Dr. Wallack. The ALJ further
found that Plaintiff’s testimony at the hearing “confirmed limitations allowed in the
RFC”. [12] at 21. In light of the ALJ's reliance on the opinions and findings of these
three medical doctors (one of whom was a treating physician and one of whom was
an examining physician), as well as Plaintiff’s own testimony regarding her
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limitations, the Court concludes that there was good cause to reject the opinion of
Plaintiff’s treating physician, Dr. Wallack; and substantial evidence to support the
ALJ’s findings with respect to Plaintiff’s disability.
Plaintiff also argues that the ALJ failed to properly evaluate her credibility.
Specifically, she argues that the ALJ failed to give sufficient reasons for discounting
her testimony and that the ALJ mischaracterized the record regarding Plaintiff’s
medications. In assessing Plaintiff's claims of disability, the ALJ must consider the
claimant’s subjective complaints of pain, but also is allowed to considered other
medical evidence in determining the extent of the pain. Harper v. Sullivan, 887
F.2d 92, 96 (5th Cir. 1989). The ALJ is entitled to considerable deference when
assessing the disabling nature of claimant's pain, given the subjective nature of
such complaints. See Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991). Whether
a claimant is able to work despite some pain is within the province of the
Commissioner and should be upheld if supported by substantial evidence. Jones v.
Heckler, 702 F.2d 616, 622 (5th Cir. 1983).
In considering Plaintiff’s subjective complaints, the ALJ found that
medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements
concerning the intensity persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the
. . . residual functional capacity assessment.
[12-1] at 21. In support of the RFC, the ALJ relied in part on August 15, 2007,
chest and lumbar spine x-rays that found no significant abnormalities. Id. The
ALJ also relied on the clinical findings of Dr. Cobb who concluded that Plaintiff
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displayed good range of motion in the lower back, was able to squat, and exhibited
no weakness or sensory changes or findings of positive straight leg raise. Id. The
ALJ found that Plaintiff had the RFC
to perform light work, with a sit, stand option. In addition, the work
must require only an occasional ability to bend, kneel, and/or stoop and
not be performed in environments with exposure to gases, fumes,
odors, or dust. Further, the work must be performed in environments
with air conditioning and not require an ability to overhead reach.
[12-1] at 22. During the hearing, Plaintiff testified that she could not sit or stand
for long periods of time, but needed a job that allowed her to “constantly be up and
down.” She testified that she is able to sit for 30 minutes before needing to change
position. She also testified that she could lift 10 pounds comfortably. Thus, the
ALJ took into account Plaintiff’s subjective statements and concluded that this
testimony “confirmed limitations allowed in the RFC” while recognizing that
Plaintiff indicated that “the severity of the symptoms had increased.” [12-1] at 21.
Plaintiff takes exception with the ALJ’s finding that her medications were
effective and caused no side effects. At the time of the hearing, Plaintiff indicated
that she took ibuprofen for her pain, but that she no longer took narcotic medication
(OxyContin). An examination of Plaintiff’s testimony reveals that the ALJ’s
findings are supported by substantial evidence, namely Plaintiff’s own testimony.
Although the medical records suggest that Plaintiff had a history of side effects
from narcotics, Plaintiff testified that the medication (ibuprofen) she was taking at
the time of the hearing did not cause any side effects. [12-1] at 50-51. Additionally,
Plaintiff testified that the ibuprofen provided slight to moderate relief. Id. at 51.
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To the extent that the ibuprofen provided some relief, it was not a
mischaracterization of the record for the ALJ to say that the medication was
“effective”. Thus, the ALJ’s findings are supported by substantial evidence in the
record.
As a final consideration, Plaintiff relies heavily on this Court's opinion in
Lowery to support her motion. Lowery v. Astrue, 2010 WL 5625967 (S.D. Miss. Dec.
21, 2010). Although the Lowery opinion provides a helpful starting point and
analytical framework, the Court finds that Lowery is distinguishable on several key
points. First, in assessing Plaintiff’s limitations, the ALJ in this case relied on
medical evidence from both a treating physician (Dr. Compton) and an examining
physician (Dr. Cobb). In Lowery, the ALJ relied only on an examining physician
and a non-treating, non-examining physician. See Lowery, 2010 WL 5625967, at *57. Second, the limitations ascribed by the ALJ in this case are supported by
evidence from Dr. Cobb's opinion and Dr. Griffin's assessment, and to some extent
by Plaintiff's own testimony. In Lowery, the ALJ's findings as to Lowery's residual
functional capacity were based primarily on the conclusions of a non-examining,
non-treating physician whose opinion the ALJ found to be "not wholly consistent
with the record" and gave only "some weight". Id. at *6. Finally, in Lowery, unlike
in the present case, the ALJ did not adequately explain the basis for Plaintiff’s
limitations and “created a set of limitations that does not find support in any of the
reports from the medical experts.” Id. at *5, *7. In the present case, the ALJ cited

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as support the opinions of Dr. Cobb, Dr. Griffin, and to some extent, Plaintiff’s own
testimony, when he determined her limitations.
Based on the foregoing, the Court finds that Plaintiff’s Motion for Judgment
on the Pleadings should be denied and the complaint dismissed with prejudice.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff Sharon
Mendum's [15] Motion for Judgment on the Pleadings is DENIED. This case is
DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED this the 15th day of March, 2012.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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