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Wimberley v. Berryhill

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

March 29, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Troy Crandall Wimberley (hereinafter “Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq. On October 23, 2018, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 16). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Doc. 17). Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be AFFIRMED.

         I. Procedural History[1]

         Plaintiff protectively filed his application for benefits on March 26, 2015. (Doc. 10-5 at 2). Subsequently, he filed an application for benefits on March 30, 2015, alleging disability beginning February 7, 2014, based on lower back and neck disorders and spina bifida. (Id. at 4, 8; Doc. 10-6 at 15). Plaintiff's application was denied and upon timely request, he was granted an administrative hearing before Administrative Law Judge Ben E. Sheely (hereinafter “ALJ”) on November 22, 2016. (Doc. 10-2 at 41; Doc. 10-4 at 2). Plaintiff, who was represented by counsel, appeared by video from Evergreen, Alabama at the hearing and provided testimony related to his claims. (Doc. 10-2 at 12, 44-59). A vocational expert (“VE”) also appeared at the hearing and provided testimony. (Id. at 59-62). On February 9, 2017, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 9). The Appeals Council denied Plaintiff's request for review on October 24, 2017. (Id. at 2). Therefore, the ALJ's decision dated February 9, 2017, became the final decision of the Commissioner. (Id.).

         Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). Oral argument was conducted on November 27, 2018, and the parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. Issues on Appeal

1. Whether the ALJ reversibly erred by failing to weigh all the medical evidence of record and failing to state the particular weight he gave different medical opinions and the reasons therefor?
2. Whether the ALJ erred in failing to develop a full and fair record by ordering a consultative orthopedic examination?
3. Whether the ALJ erred by failing to adequately evaluate Plaintiff's subjective complaints of pain?

         III. Factual Background

         Plaintiff was born on September 9, 1971, and was forty-five years of age at the time of his administrative hearing on November 22, 2016. (Doc. 10-2 at 44; Doc. 10-5 at 8). Plaintiff has a tenth or eleventh grade education and can read and write. (Doc. 10-2 at 44; Doc. 10-6 at 16). Plaintiff last worked from 2010 to February 2014 at Walmart, first in the garden center, then in sporting goods, and finally in security. (Doc. 10-2 at 45-46; Doc. 10-6 at 5, 33). Plaintiff was terminated from that job due to poor job performance, which he attributed to his physical condition. (Doc. 10-2 at 47; Doc. 10-6 at 15). Prior to that, Plaintiff prepared concrete pipes from 2006 to 2008 and worked as a wood stacker at a sawmill from 2005 to 2006. (Doc. 10-2 at 46- 47; Doc. 10-6 at 33). From 1999 to 2005, Plaintiff worked as a barge crane and forklift operator. (Doc. 10-2 at 47; Doc. 10-6 at 33).

         At his hearing, Plaintiff testified he is no longer able to perform his security job because of pain in his lower back, neck, and legs. (Doc. 10-2 at 47). His medical treatment for neck and lower back problems has consisted of taking medications, physical therapy, and multiple injections. (Id. at 48-50; Doc. 10-7 at 46, 50, 60, 64). Plaintiff also reported headaches, which have been treated with medication, including Topamax and Trokendi. (Doc. 10-2 at 58; Doc. 10-7 at 128).

         IV. Standard of Review

         In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining (1) whether the decision of the Commissioner is supported by substantial evidence and (2) whether the correct legal standards were applied.[2] Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991). “Substantial evidence is more than a scintilla, but less than a preponderance” and consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). In determining whether substantial evidence exists, a reviewing court must consider the record as a whole, taking into account evidence both favorable and unfavorable to the Commissioner's decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (per curiam); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, at *4 (S.D. Ala. June 14, 1999).

         V. Statutory and Regulatory Framework

         An individual who applies for Social Security disability benefits must prove his or her disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). The Social Security regulations provide a five-step sequential evaluation process for determining whether a claimant has proven his or her disability. See 20 C.F.R. §§ 404.1520, 416.920.

         The claimant must first prove that he or she is not engaged in substantial gainful activity. Carpenter v. Comm'r of Soc. Sec., 614 Fed.Appx. 482, 486 (11th Cir. 2015) (per curiam). The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. Id. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. Id. If the claimant cannot prevail at the third step, the ALJ must determine the claimant's residual functional capacity (“RFC”) before proceeding to step four. Id. A claimant's RFC is an assessment, based on all relevant medical and other evidence, of a claimant's remaining ability to work despite his or her impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (llth Cir. 1997). Once a claimant's RFC is determined, the evaluation proceeds to the fourth step, where the claimant must prove an inability to perform his or her past relevant work. Carpenter, 614 Fed.Appx. at 486.

         If a claimant meets his or her burden at the fourth step, it then becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's RFC, age, education, and work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985) (per curiam). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the burden then shifts back to the claimant to prove his or her inability to perform those jobs in order to be found disabled. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

         VI. The ALJ's Findings

         In the case sub judice, the ALJ found that Plaintiff has the severe impairments of degenerative disc disease and degenerative joint disease. (Doc. 10-2 at 14). The ALJ also found that Plaintiff's headaches are non-severe because they cause no more than a minimal limitation in Plaintiff's ability to perform basic work activities. (Id. at 14-15). The ALJ found that Plaintiff's impairments, when considered individually and in combination, do not meet or medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Id. at 15). The ALJ further found that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following additional limitations: Plaintiff can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, and he can never climb ladders, ropes, or scaffolds. (Id.). The ALJ concluded that Plaintiff is able to perform his past relevant work as a security guard, cashier, and barge crane operator, and that there are also other jobs in the national economy that he is able to perform, such as airline security representative and poultry dresser. (Id. at 18-19). Thus, the ALJ found that Plaintiff is not disabled. (Id. at 19).

         VII. Discussion

         A. The ALJ properly weighed and discussed the medical evidence of record, and substantial evidence supports the ALJ's Residual Functional Capacity for a range of light work with the stated restrictions.

         Plaintiff argues that the ALJ failed to properly weigh all the medical evidence of record and to state with particularity the weight he gave to different medical opinions provided in this case and the reasons therefor. (Doc. 12 at 6). The Commissioner counters that Plaintiff's arguments fail because he has not shown that the ALJ's findings as to his functional limitations were not supported by substantial evidence. (Doc. 13 at 5). Based on a careful review of the record, the Court finds that Plaintiff's arguments are without merit.

         1. Medical Evidence.

         The record reflects that on November 10, 2014, Plaintiff presented for treatment to his family medicine physician, Dr. Charles M. Eddins, M.D. (Doc. 10-7 at 18). Plaintiff reported neck pain and low back pain and radiating symptoms. (Id.). On November 17, 2014, Dr. Eddins noted that Plaintiff's lumbosacral spine x-rays showed severe degenerative changes at ¶ 5-S1, while his cervical spine x-rays were within normal limits. (Id. at 17).

         Dr. Eddins referred Plaintiff to William J. Bose, M.D., an orthopedist, who saw Plaintiff on two occasions. (See id. at 10-13, 17). Dr. Bose sent Plaintiff for cervical and lumbar spine MRIs on December 10, 2014. (Id. at 13). Plaintiff's cervical spine MRI was negative, while his lumbar spine MRI revealed discogenic disease at ¶ 5-S1 including a small central broad-based protrusion, and left asymmetric bulging laterally encroaching on the exiting L5 nerve root, as well as mild facet arthropathy. (Id. at 5-6). Dr. Bose assessed Plaintiff with cervical pain/cervicalgia, lumbar degenerative disc disease, and occipital neuralgia and recommended referral to a neurologist for work up and treatment of occipital neuralgia. (Id. at 10-11).

         On January 6, 2015, Plaintiff was examined by Donald R. Tyler, M.D., a neurosurgeon at Coastal Neurological Institute, for complaints of neck pain, bilateral arm pain, bilateral arm and hand numbness, low back pain, and left leg pain and numbness. (Id. at 37). Dr. Tyler diagnosed Plaintiff with low back pain, cervicalgia, and lumbar and cervical degenerative disc disease. (Id. at 40).

         At Dr. Tyler's request, Plaintiff first presented to Jonathan C. Rainer, M.D. at Coastal Neurological Institute on January 14, 2015. (Id. at 52). This was the beginning of a treatment relationship that would involve frequent visits and last more than a year. At the initial visit, Dr. Rainer diagnosed Plaintiff with myalgia/arthromyalgia/myositis, cervicalgia, lumbar spine degenerative disc disease, unspecified musculoskeletal disorder of the neck, and low back pain. (Id. at 56). Dr. Rainer prescribed Gabapentin and Tizanidine and noted there were no surgical plans. (Id.). He recommended an epidural steroid injection for Plaintiff's lumbar pain[3] and physical therapy and medication changes for Plaintiff's “myofascial cervical symptoms and facet generated pain[.]” (Id.). In March 2015, after Plaintiff reported continuing lower back and neck pain with radicular symptoms, Dr. Rainer recommended a right occipital block[4] and ordered physical therapy. (Id. at 42, 45-46). The next month, Plaintiff told Dr. Rainer that his right occipital block had provided partial relief for a few days before his radicular cervical spine pain returned. (Id. at 70).

         Plaintiff had MRIs of the lumbar spine, cervical spine, and brain done on May 20, 2015. (Id. at 86-89). The lumbar spine MRI showed Grade 1 retrolisthesis at ¶ 5 on S1 and a right paracentral disc osteophyte complex with facet arthropathy and mild bilateral neuroforaminal stenosis. (Id. at 87). The MRI of the cervical spine showed no acute findings, but the brain MRI showed minimal pansinusitis and scattered foci of increased intensity on FLAIR within the white ...

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