Opinion
Civil Action 00-0094-CB-M.
October 24, 2000.
REPORT AND RECOMMENDATION
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 (SSI). The action was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral argument was heard on October 24, 2000. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant Kenneth S. Apfel and against Plaintiff Willie L. McNealey on all claims.
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).
McNealey was born June 15, 1950. At the time of the administrative hearing, Plaintiff was forty — seven years old, had completed two years of technical college education (Tr. 53, 226), and had previous work experience as a laborer in a steel foundry (Tr. 55) In claiming benefits, McNealey alleges disability due to a back injury and concomitant pain as well as a psychological disorder (Doc. 12).
The Plaintiff filed applications for SSI and disability benefits on September 28 and October 3, 1995, respectively (Tr. 143 — 45, 97 — 100). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that McNealey could perform specified jobs at both the light and sedentary job classifications (Tr. 12 — 37). Plaintiff requested review of the hearing decision (Tr. 9 — 11) by the Appeals Council, but it was denied (Tr. 4 — 5).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, McNealey alleges that: (1) The ALJ did not properly consider his complaints of pain; (2) the ALJ ignored recommendations made by one of the consultative examiners; (3) the ALJ erred in giving greater weight to one examiner over another; and (4) the ALJ's residual functional capacity determination was contrary to the opinions of the examining physicians (Docs. 1, 16).
McNealey first claims that the ALJ did not properly consider his complaints of pain. The standard by which Plaintiff's pain is to be evaluated requires "(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986)). The Eleventh Circuit Court of Appeals has also held that the determination of whether objective medical impairments could reasonably be expected to produce the pain was a factual question to be made by the Secretary and, therefore, "subject only to limited review in the courts to ensure that the finding is supported by substantial evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986).
The evidence of record demonstrates that Plaintiff injured his back in 1990, causing "discomfort in the lower lumbar spine with radiation in the posterior left thigh and calf" (Tr. 200). A lumbar hemilaminectomy and diskectomy were performed at the L4-5 by Dr. Chester H. Boston on February 15, 1993 (Tr. 200, 248 — 55). Follow-up treatment notes by Boston seven months after the surgery indicated that McNealey continued to complain of pain, but Boston stated that his "complaints were inappropriate for his physical findings. His MRI demonstrates nothing other than some mild epidural fibrosis at the site of his prior surgery." (Tr. 248). On November 19, 1993, Boston assigned Plaintiff a permanent partial impairment rating of 5% for the whole person and dismissed him from his care without any particular restrictions (Tr. 253). The surgeon later indicated that McNealey continues to be symptomatic without any good objective evidence of continuing spinal disease" and that he should be able to return to some sort of gainful activity (Tr. 248).
On July 25, 1995, neurosurgeon Zenko J. Hrynkiw examined Plaintiff and found that his spinal range of motion was markedly restricted (Tr. 256 — 59). Hrynkiw further found that straight leg raising on the left was positive at fifteen degrees and that Plaintiff had decreased hip motor power on the right and left as well as decreased sensitivity of L3 through S1 on the left; the neurosurgeon's impression was that Plaintiff suffered from back pain and sciatica to the left (Tr. 258). Hrynkiw stated in a letter six months later, however, that he "could not find the cause of his continued complaints of pain," noting that the MRI did not provide "convincing evidence for recurrent disc herniation" (Tr. 256). The doctor, however, recommended that McNealey undergo a myelogram and a post myelographic CAT scan, saying that they were great for diagnosing disc disease. Id.
Neurologist Walid Freij evaluated Plaintiff on November 28, 1995, noting that he appeared to be in no acute distress (Tr. 217 — 20). Testing revealed full motor power in all muscles tested, normal reflexes, decreased pinprick sensation in both lower extremities, and a slightly antalgic gait; McNealey "used a cane although he was able to walk without it" (Tr. 218). Freij found no radiculopathy but noted evidence of peripheral neuropathy and suggested that an EMG/nerve conduction study would rule it out and would further test the presence of radiculopathy (Tr. 218, 220). The neurologist further indicated that Plaintiff "will be able to sit, stand, [and] walk for a limited duration of time. He should not be lifting or carrying. He should be able to handle objects if they are not heavy" (Tr. 220).
The Court specifically notes that neurosurgeon Freij found evidence of peripheral neuropathy (Tr. 218) though the ALJ reported otherwise( cf. Tr. 17).
Dr. F. H. Qureshi, orthopedic surgeon, examined McNealey on June 30, 1997, and found him to be in no apparent distress, noting that he walked casually with a cane (Tr. 275). Plaintiff's cervical and dorsal spine were essentially normal with no obvious deformity of the dorsal lumbar spine. Though McNealey complained of excruciating pain, Qureshi found normal pain sensation and muscle power. Plaintiff's straight leg raising test was positive on the left at ninety degrees. Qureshi's impression was chronic back syndrome, possible arachanoditis, and possible nerve root adhesions from surgery; the doctor stated that McNealey had a "low threshold of pain" and had a possible clinical dependency problem" (Tr. 275). The surgeon completed a physical capacities evaluation which indicated that Plaintiff could sit four, stand two, and walk two hours at a time and during an eight-hour workday (Tr. 276). Qureshi found that McNealey could lift ten pounds continuously, up to twenty-five pounds frequently, and up to fifty pounds occasionally; the doctor further indicated that Plaintiff should bend, squat, crawl, climb, and reach only occasionally. Id.
Dr. John A. MacLennan, a family practitioner, has treated Plaintiff for pain since October 11, 1993, prescribing Lorcet on a regular basis (Tr. 221 — 25. 232 — 43, 267 — 74, 284 — 86). The doctor has found McNealey disabled because of his chronic, severe pain as he is unable to lift any weight, stand for more than one — half hour, or sit for more than forty-five minutes at a time (Tr. 221, 223); MacLennan stated, however, that he had based his opinions "primarily on the patient's subject [sic] complaints" (Tr. 223). The doctor further indicated that physical activity would prevent McNealey's working, that his medication would keep him from working, and that there was little likelihood for improvement (Tr. 224 — 25).
At the hearing before the ALJ, Plaintiff testified that he was in constant pain, that the pain was a nine on a ten — point scale every day all day long (Tr. 61-62). McNealey stated that he took pain pills daily which made him drowsy or knocked him out (Tr. 62). Plaintiff further testified that his activities had been seriously curtailed since the injury; while he drove his child to school every morning, he had to go home afterwards and lie down (Tr. 63). McNealey stated that he went to the grocery store with his wife and walked through one or two aisles with her but then he needed to return to the car (Tr. 64). He further testified that he was able to perform sedentary activities though he could only sit for forty-five minutes at a time (Tr. 64 — 65).
A medical examiner, after reviewing all of the evidence of record and listening to the testimony given at the hearing, testified that the records did not demonstrate "a mechanical, physical reason that would cause" McNealey's claimed pain or the severe limitations imposed by Dr. MacLennan (Tr. 68-76).
The ALJ summarized all of this information (Tr. 12-37) after which he found that Plaintiff's testimony was not credible as his subjective complaints were "disproportionate to the objective medical evidence" (Tr. 26). In reaching this decision, the ALJ noted that some of Plaintiff's statements "were plainly exaggerated" and inconsistent with written statements he had made earlier (Tr. 26; cf. Tr. 177 — 78, 192 — 96)
The ALJ also found Dr. MacLennan's conclusion that McNealey was disabled was unsupported by the medical evidence (Tr. 29-30). In reaching this decision, the ALJ noted that MacLennan was a general practitioner, that the doctor relied on no specific objective medical evidence in forming his opinion, and that he had relied on Plaintiff's subjective complaints in reaching his conclusion. Id. The ALJ also cited the findings of Dr. Boston (a neurosurgeon), Freij (a neurologist), Qureshi (an orthopedic surgeon), and Hrynkiw (a neurosurgeon) in rejecting MacLennan's conclusion and in finding that Plaintiff was able to work. Id.
The ALJ specifically found that Plaintiff's pain was not disabling to the point that he could not work (Tr. 26). Though the ALJ found that McNealey had demonstrated the first prong of the analysis, i.e., that there was evidence of an underlying condition, he found that Plaintiff had failed to show "objective signs and findings that could reasonably be expected to produce the degree and intensity of pain and limitations alleged. There are no diagnostic studies to show abnormalities which could be expected to produce such severe symptoms" (Tr. 26).
The Court finds substantial support for the ALJ's conclusion that Plaintiff does not suffer from disabling pain. While there is evidence contrary to this conclusion, the medical evidence, as a whole, demonstrates that McNealey's complaints are inconsistent with the objective medical evidence. Furthermore, there has been no showing that his medical condition is so severe that he should be suffering the pain of which he complains. This claim is of no merit.
Plaintiff next claims that the ALJ ignored recommendations made by one of the consultative examiners. Specifically, McNealey refers to Dr. Freij's finding that he should not be lifting or carrying anything. Plaintiff further argues that the ALJ is required to "state specifically the weight accorded to each item of evidence and why he reached that decision." Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)
The ALJ relied on Dr. Qureshi's findings in forming the basis of Plaintiff's residual functional capacity ( cf. Tr. 28, 276). Though he did not specifically state that he was giving greater weight to the opinions of Qureshi over Freij, it is apparent that he did. Reasons for doing this could be that Qureshi's examination was more recent and that he completed a physical capacities evaluation though Freij did not. One might also think that the opinions of an orthopedic surgeon would be more valuable than those of a neurologist when it came to determinations of a patient's ability to perform certain activities. Though the ALJ committed error in not specifically stating what weight he was giving the opinions of Freij, the Court finds that it is, at most, harmless error.
McNealey also claims that the ALJ erred in giving greater weight to one examiner over another. Plaintiff refers to the ALJ's selection of the opinions of Donald W. Blanton over Kenneth Schneider, both. psychologists.
The ALJ stated that he gave more weight to Blanton's report because he had administered an MMPI exam and provided the results of the test (Tr. 30). The ALJ further stated that Blanton's determination that Plaintiff suffered from only mild depression, as opposed to Schneider's determination of pronounced depression and anxiety, was more consistent with the balance of the medical evidence. Id. The Court finds substantial support for these conclusions. This claim is of no merit.
McNealey's final claim is that the ALJ's residual functional capacity (RFC) determination was contrary to the opinions of the examining physicians. The Court notes initially that the ALJ is responsible for determining a claimant's RFC. 20 C.F.R. § 1546 (2000). The Court has already addressed Plaintiff's concerns that Dr. Freij's opinions were not incorporated into the RFC.
The Court finds no real inconsistency in the ALJ's reliance on the physical capacities evaluation of Dr. Qureshi. While it is true that Qureshi indicated that Plaintiff could only walk two, stand two, and sit four hours at a time, this is not inconsistent with the ALJ's conclusion that McNealey could perform sedentary work. This claim is of no merit.
The restrictions would pose problems for jobs at the light exertional level. However, because the ALJ specifically noted that jobs were available at the sedentary level, the Court finds that no harm was done.
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404. 1567(a)(1998).
Plaintiff has raised four different claims in bringing this action. All are without merit. Upon consideration of the entire record, the Magistrate Judge finds "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401. Therefore, it is recommended that the Secretary's decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that this action be dismissed, and that judgment be entered in favor of Defendant Kenneth S. Apfel and against Plaintiff Willie L. McNealey on all claims.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Ojection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.
DONE this 24th day of October 2000.