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Allen v. Colvin

United States District Court, Southern District of Alabama, Northern Division

March 4, 2015

CAROLYN W. COLVIN, Social Security Commissioner, Defendant.



In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff seeks judicial review of an adverse social security ruling denying claims for disability insurance benefits and Supplemental Security Income (hereinafter SSI) (Docs. 1, 14). The parties filed written consent and this action was referred to the undersigned Magistrate Judge to conduct all proceedings and order 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. 19). After considering the administrative record and 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). Substantial evidence 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, Allen was twenty-six years old, had completed several years of college (Tr. 37), and had previous work experience as a cashier, cook, grocery worker, and nurse assistant (Tr. 48). Plaintiff alleges disability due to Status post tibia fracture with ORIF, major depression, headaches, morbid obesity, hypertension, and gastroesophageal reflux disease (Doc. 13).

The Plaintiff applied for disability benefits and SSI on September 27, 2010, alleging an onset date of September 22, 2010 (Tr. 117-26; see also Tr. 12). An Administrative Law Judge (ALJ) denied benefits, determining that although Allen could not perform her previous work, there were sedentary jobs that she could perform (Tr. 12-28). Plaintiff requested review of the hearing decision (Tr. 7), but the Appeals Council denied it (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Allen alleges that: (1) The residual functional capacity (hereinafter RFC) is not supported by the evidence; (2) the ALJ did not properly consider the conclusions of the treating physician; (3) the ALJ did not properly consider her combination of impairments; and (4) Plaintiff cannot perform the jobs to which the vocational expert (hereinafter VE) testified (Doc. 14). Defendant has responded to-and denies-these claims (Doc. 15). The relevant evidence of record will now be summarized.

On Allen's alleged disability onset date (Tr. 117), September 22, 2010, she went to the emergency room at the Bryan W. Whitfield Memorial Hospital and was admitted for two nights for a fractured right tibia and fibula, requiring an open reduction and intramedullary rod fixation by Orthopaedic Dr. A.L. Tropeano; she was discharged in stable condition, independent with a walker (Tr. 218-27, 341-63). Two examinations later, on October 11, the Orthopaedic encouraged partial (25%) weight-bearing on her leg and prescribed physical therapy (hereinafter PT) (Tr. 216-17). A PT note on October 15 noted good home compliance with the exercise program, though Allen herself admitted otherwise four days later (Tr. 329, 337- 40). Also on October 15, Evans complained of chest pain and was diagnosed with gastroesophageal reflux disease (hereinafter GERD) (Tr. 330-33).

On October 15, 2010, Plaintiff was seen by a CRNP at Fitz- Gerald & Perret Clinic for neck pain remaining from her recent fall; Toradol[1] was prescribed (Tr. 229-32; see generally Tr. 229- 326). On November 10, 2010, Dr. M.J. Fitz-Gerald examined Allen who wondered about a tooth extraction under her medication regimen (Tr. 385-87). She was morbidly obese and could not be weighed because of her size; she was in no apparent distress. Plaintiff had good range of motion (hereinafter ROM) in her extremities. Fitz-Gerald put her on a diet and prescribed an appetite suppressant.

On November 19, 2010, Surgeon Tropeano found her doing "fantastic;" though Allen's injuries were not one hundred percent resolved, she could return to full weight-bearing on her leg, though she should be careful, especially with walking and stairs (Tr. 390). Using a walker was alright. On December 27, Plaintiff reported lessening pain and was encouraged to increase her ROM and exercise; Naprosyn[2] was prescribed (Tr. 389).

On February 9, 2011, Dr. Tropeano found tenderness in the right leg at the fractures; x-rays demonstrated progress but she was not one hundred percent healed as it appeared she had a lateral meniscal tear (Tr. 414-18). There was decreased ROM.

From March 8, 2011 through January 26, 2012, Plaintiff was seen at West Alabama Mental Health Center on a monthly basis for depression and feelings of helplessness (Tr. 419-46). There were no problems with appearance, attitude, behavior, thought process, or motor activity though there was a minor problem with memory; an initial diagnosis was major depression without psychotic features (Tr. 440-46). On March 22, 2011, Allen reported feeling less stressed; her affect was normal and motor activity was calm (Tr. 435). On July 18, Plaintiff reported her depression as three on a ten-point scale (Tr. 430). On October 17, her therapist noted moderate progress (Tr. 427). November and December 2011 records indicate Allen reporting depression and overwhelming sadness, problems sleeping, and crying spells (Tr. 425-26). On January 26, 2012, progress was considered moderate; Plaintiff was encouraged to increase her physical activity while being prescribed Lunesta and Zoloft[3] (Tr. 420-24). Allen reported medium compliance (Tr. 420).

On December 26, 2011, Plaintiff went to the Fitz-Gerald & Perret Clinic, claiming that her right leg had been going out on her, causing her to fall; she was given a Decadron[4] shot and encouraged to lose weight (Tr. 462-66). On January 25, 2012, Allen was seen by a CRNP for a headache; weight was recorded at 428 pounds with a body mass index at 67 (Tr. 458-61). A week later, Plaintiff reported that the Topomax[5] had helped with the headaches (Tr. 454-57). Allen limped with a cane; there was normal crepitus to the right knee. Plaintiff saw the CRNP again on February 21, 2012 for follow-up on her headaches as well as new complaints of a cough and sore throat; no pain was noted on examination (Tr. 449-53). Findings of the musculoskeletal system were normal overall; the cervical spine had full ROM. Allen had abnormal gait with a cane; the assessment was morbid obesity and osteoarthritis for which she was prescribed Maxalt-MLT. Dr. Fitz-Gerald, completed a form indicating that Allen could not perform sustained work eight hours a day, five days weekly and could not maintain attention, concentration, or pace for two-hour periods (Tr. 448).

On January 5, 2012, Dr. Kevin Thompson, Orthopaedic, examined Allen for complaints of right knee pain (Tr. 476-80). On exam, the Doctor noted normal, non-antalgic heel to toe gait with right knee tenderness; though there was subjective instability, there was no demonstrable clinical instability. An MRI was normal, with a mild irregularity of the medical meniscus, though there was no tear; on January 26, Thompson gave her a cortisone injection (Tr. 470-75).

On August 21, 2012, Neurophysiologist A.B. Todorov examined Allen at the request of the Social Security Administration (Tr. 482-92). The Doctor noted no impairments of the cervical or lumbar spine and that the extremities showed good tonicity, trophicity, and strength. There was very minor limitation in ROM in the right knee; though the knee would hyperextend, there were no sensory or reflex abnormalities. Allen walked with difficulty, having very poor balance because of her morbid obesity. Squatting and rising were difficult because of her weight and leg pain. Todorov found no restrictions in handling objects. The Neurophysiologist completed a physical capacities evaluation in which he indicated that Allen was capable of lifting up to ten pounds continuously, twenty pounds frequently, and fifty pounds occasionally and able to carry ten pounds frequently and twenty pounds occasionally (Tr. 486-91). Plaintiff could sit for four, stand for one, or walk for one hour at a time and sit eight, stand two, and walk one hour during an eight-hour day. Todorov indicated that a cane was a medical necessity because of her morbid obesity, but that she could use a cane and still carry small objects (Tr. 487, 492). There were no restrictions in either hand for reaching, handling, fingering, feeling, or pushing and pulling; while she could use her left foot frequently, her right foot could only occasionally operate foot controls. On occasion, Allen could climb stairs and ramps, balance, and stoop, but she could never climb ladders or scaffolds, kneel, crouch, or crawl. Plaintiff could be exposed to humidity and wetness frequently but to unprotected heights and moving mechanical parts only occasionally. The Doctor found that Allen could never walk even a block or climb a few steps with the use of a single handrail at a reasonable pace.

The ALJ, in determining non-disability, found that Allen had the following RFC:

To perform sedentary work as defined in 20 C.F.R. ยงยง 404.1567(a) and 416.967(a) except that the claimant requires a sit/stand option allowing this individual to alternate between sitting and standing at fifteen to thirty minute intervals throughout the work day. She can never climb ramps, stairs, ladders, ropes or scaffolds. The claimant can never crawl. She can occasionally balance, stoop, kneel and crouch. Ms. Allen is limited to jobs that can be performed while carrying an assistive device. She must avoid concentrated exposure to extreme temperatures as irritants such as fumes, odors, dust, gases and poorly ventilated areas. The claimant must avoid all exposure to work around hazardous machinery and unprotected heights. Work is ...

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