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Hethcox v. Colvin

United States District Court, S.D. Alabama, Northern Division

February 9, 2015

CAROLYN W. COLVIN, Social Security Commissioner, Defendant.


BERT W. MILLING, Jr., Magistrate Judge.

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied claims for disability insurance benefits and Supplemental Security Income (hereinafter SSI ) (Docs. 1, 12). The parties filed written consent and this action has been referred to the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 ( see Doc. 20). Oral argument was waived in this action (Doc. 21). Upon consideration of 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 evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The 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, Plaintiff was forty-seven years old, had completed an eighth-grade education (Tr. 79), and had previous work experience as a cashier (Tr. 91). In claiming benefits, Plaintiff alleges disability due to moderate intellectual disability, arthritis, degenerative disc disease of the cervical spine with chronic neck pain status post anterior fusion, fibromyalgia, myofascial pain syndrome, bursitis of the knees and hips, tendonitis of the shoulders, gastroesophageal reflux disease, episode of lumbar L5 strain, episode of prurigo nodularis, pain disorder with depression and anxiety, and obsessive compulsive personality (Doc. 13).

The Plaintiff filed protective applications for disability benefits and SSI on October 25, 2010 (Tr. 160-70; see also Tr. 61). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that Hethcox could perform her past work as a cashier as well as other specified light jobs (Tr. 61-71). Plaintiff requested review of the hearing decision (Tr. 32) by the Appeals Council, but it was denied (Tr. 1-6).

Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Hethcox alleges that: (1) The ALJ's residual functional capacity (hereinafter RFC ) is vague and insufficient; (2) the ALJ did not fully develop the record; (3) the Appeals Council did not properly review evidence submitted to it; and (4) the Appeals Council erred in not finding that she meets the requirements of Listing 12.05C (Doc. 12). Defendant has responded to-and denies-these claims (Doc. 16). The relevant record evidence will now be summarized.[1]

On January 12, 2010, Dr. Walid W. Freij, Neurologist, examined Hethcox for pain in her fingers, especially on the right; there was swelling and redness in the fingers on the right side, though she was tender all over, basically (Tr. 260-61). An electrodiagnostic study revealed evidence of left lateral plantar neuropathy without evidence of denervation; the diagnosis was arthritis, fibromyalgia, and peripheral neuropathy. Freij continued her prescriptions for Lyrica[2] and Naproxen[3] and added Cymbalta[4] to her regimen and told her to return in six months.

On March 25, 2010, Hethcox underwent an MRI of the cervical spine that showed prominent diffuse disk protrusion, particularly severe on the left at C6-7, causing both neuroforamen stenosis on the left and diffuse spinal stenosis (Tr. 281). On April 14, Plaintiff was seen at the Selma Doctors Clinic for neck pain; the exam was essentially normal, though a mitral heart click was heard (Tr. 267). Trazodone, [5] Ultracet, [6] and Soma[7] were prescribed; Savella[8] was continued.

On May 7, Hethcox underwent a C6-C7 anterior cervical discectomy for left radiculopathy, severe cervical stenosis with cervical myelopathy (Tr. 319-21; see generally Tr. 303-21). On July 16, 2010, fusion changes were noted in an MRI of the cervical spine; there was no apparent spinal stenosis (Tr. 315); an MRI of the lumbar spine demonstrated mild desiccation at L4-L5 with mild facet degenerative changes in the lower lumbar spine (Tr. 314). On September 21, Dr. Walter G. Haynes, III, Neurosurgeon, examined Hethcox for complaints of swelling in the left side of her neck, numbness in her left arm, and tingling between her shoulder blades; radiographs revealed "ongoing fusion at C6-7 which [was] quite surprising considering [she was] still continuing her tobacco habit" after having been urged to quit (Tr. 304). The Doctor noted some palpable paravertebral spasm on the left side of her neck as well as a possible lima anteriorly on the left side; Plaintiff had 5/5 strength bilaterally in her upper extremity muscles groups and her reflexes were intact and symmetrical.

On December 29, 2010, Gregory Parker, a non-examining physician with the Social Security Administration (hereinafter SSA ), completed a physical residual functional capacity (hereinafter RFC ) assessment, finding that Hethcox was capable of lifting and carrying twenty pounds occasionally and ten pounds frequently (Tr. 322-29). She was capable of sitting for six and standing and/or walking for about six hours during an eight-hour workday; she would have no problem with pushing and/or pulling of foot or hand controls. Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations.

On January 24, 2011, Psychologist Donald W. Blanton examined Hethcox, finding her thoughts and conversation logical, associations intact, and affect flat, but appropriate (Tr. 331-33). Plaintiff complained of anxiety and restlessness; she was depressed. Blanton noted that "[s]he appeared to have a slight psychomotor retardation" (Tr. 332); intelligence was estimated to be below average. Hethcox was obsessed with her pain. Insight was limited and judgment was fair. The Psychologist's impression was pain disorder with anxiety and depression, obsessive compulsive personality, orthopedic problems and a history of burns, financial problems, and a GAF of 60.[9]

On February 17, 2011, Joanna Koulianos, Ph.D., a non-examining Psychologist with the SSA, completed a Psychiatric Review Technique form that indicated that Hethcox suffered from depression, anxiety, a pain disorder, and obsessive compulsive personality (Tr. 334-47). The Psychologist suggested that Plaintiff suffered mild restriction of activities of daily living, moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Koulianos also completed a mental RFC in which she indicated that Hethcox was moderately limited in her ability to do the following: understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and respond appropriately to changes in the work setting (Tr. 348-51). The Psychologist went on to find that Plaintiff was able to understand, remember, and carry out short and simple instructions; she could concentrate and attend for reasonable periods of time. Hethcox's contact with the general public should not be a regular job duty. Corrective action from her supervisor should be simple and supportive. Finally, Koulianos noted that any changes in the work environment or work expectations should be introduced gradually.

On March 8, 2011, Plaintiff was examined at the Selma Doctors Clinic for complaints of burning in her legs; the examination was normal though there was neuropathy in the legs (Tr. 367). Range of Motion (hereinafter ROM ) measurements were normal; no tenderness was noted. Toradol[10] was prescribed. On March 29, Hethcox was seen for back pain; the examination was normal (Tr. 366).

On May 19, 2011, Dr. Freij examined Hethcox and found tenderness over all the muscles of the shoulder and back; strength was 5/5 (Tr. 352-54). His notes reported "a rheumatologist who confirmed the diagnosis of fibromyalgia and he thought she had shoulder pain also related to supraspinatous tendinitis and knee pain because of bursitis and hip pain because of trochanteric bursitis;" the Rheumatologist had also strongly advised Plaintiff to quit smoking, but she had not. He prescribed Lortab.[11] On July 20, 2011, Hethcox told Dr. Freij that her medications were helping her feel better; his examination revealed crepitation in the left and right knee (Tr. 353). Motor power was 5/5; Nexium was added to her daily prescriptions for Gastroesophageal ...

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