Opinion
Civil Action 00-0041-RV-M.
July 28, 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 July 27, 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 Joe V. Sexton 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).
Sexton was born June 5, 1949. At the time of the administrative hearing, Plaintiff was forty-seven years old, had completed a high school education (Tr. 56), and had previous work experience as a self-employed logger and a police officer (Tr. 56, 66). In claiming benefits, Sexton alleges disability primarily due to back and shoulder injuries and resulting pain (Doc. 10).
Plaintiff testified that he had received a Graduate Equivalency Degree (Tr. 56).
Plaintiff protectively filed applications for disability and SSI on October 11, 1994 (Tr. 79-83, 111-13). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although he could not return to his past relevant work, Sexton was able to perform light work which did not require substantial overhead work (Tr. 18-33). Sexton requested review of the hearing decision (Tr. 14-17) by the Appeals Council, but it was denied (Tr. 6-7).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Sexton alleges that the ALJ improperly determined that his testimony regarding his pain was not credible (Doc. 10).
Plaintiff testified that his back hurts all of the time, causing him to spend most of his days in bed (Tr. 59). Sexton is unable to bend and can walk ten minutes before the pain makes him stop. Id. He is unable to stand or sit for more than fifteen minutes at a time (Tr. 60). Plaintiff stated that his left shoulder is weaker than it used to be, that it has a dull throb in it, and that he cannot lift anything sideways and over his head with that shoulder (Tr. 62). The shoulder causes pain in his neck and down his spine every day. Id.
Before examining the evidence, the Court notes that Defendant argues that certain evidence should not be considered because it was submitted to the Appeals Council after the ALJ rendered his opinion (Doc. 12, pp. 14-18). Defendant points to the evidence found at Tr. 446-76.
It should be noted that "[a] reviewing court is limited to [the certified] record [of all of the evidence formally considered by the Secretary] in examining the evidence." Cherry v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985). However, "new evidence first submitted to the Appeals Council is part of the administrative record that goes to the district court for review when the Appeals Council accepts the case for review as well as when the Council denies review." Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994). However, "when the [Appeals Council] has denied review, we will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998), cert. denied, 119 S.Ct. 907 (1999).
In examining the action at hand, the Court notes that the Appeals Council denied review of the additional evidence (Tr. 6). The Court further notes that Plaintiff is claiming that the ALJ's decision is not supported by substantial evidence and is not challenging the Appeals Council's decision to deny review of the new evidence (Doc. 10). In fact, an examination of Plaintiff's proposed report and recommendation reveals that Sexton references the additional evidence only twice ( see Doc. 10, pp. 10, 13). Therefore, this Court need not review the new evidence. Falge, 150 F.3d at 1324. The Court will limit its review of the evidence to the same evidence that the ALJ considered.
Sexton alleges that the ALJ improperly determined that his testimony regarding his pain was not credible. The standard by which the Plaintiff's complaints of pain are 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).
After reviewing all of the evidence, the ALJ found that Sexton was capable of performing light work which did not require substantial overhead work (Tr. 29). In making this determination, the ALJ found Plaintiff's claims of debilitating pain non-credible (Tr. 30-31).
Sexton has asserted that the ALJ's reasoning is not specific, fails to consider his repeated and consistent complaints of pain, and is based on less than all of the record evidence. These arguments will be discussed separately.
Sexton first claims that the ALJ was not specific in reaching his determination. Plaintiff asserts that although the ALJ relies on the reports of treating physicians, he does not state who those physicians are (Doc. 10, p. 9).
In his decision, the ALJ first summarizes the medical evidence (Tr. 22-25). In discussing his finding that Sexton's complaints were not credible, the ALJ referred to the treating physicians for his back and shoulder (Tr. 30). A review of the medical evidence demonstrates that Drs. Benton, White, and West were the most-likely referenced physicians. A review of their notes supports the ALJ's statement that "none of the claimant's attending physicians have suggested any impairment or combination of impairments that would result in severe physical limitations alleged by the claimant" (Tr. 30). Without setting out the medical evidence herein, as faithfully reported by the ALJ, the Court notes that no physician of record suggests that Plaintiff is capable of performing less than light work with limited overhead reaching. Sexton has failed to show otherwise. Though the ALJ did not specifically state which physician reports he was referring to in making his credibility decision, the Court finds that it is at most harmless error.
On October 18, 1994, Dr. Benton stated that Plaintiff could "return to his usual duties and occupations with limitations only that he not be required to do long-term overhead activities" (Tr. 337). On August 16, 1995, Dr. White indicated that Plaintiff was neurologically intact following decompressive lumbar surgery (Tr. 345); White did not address Sexton's ability to return to a work setting. On June 15, 1996, a note from Dr. Cockrell, a partner of treating physician Dr. West, states that Sexton's "permanent restrictions include work in the light to medium categories. He has maximum occasional lifting limitations of 50 pounds. No overhead lifting more than 20 pounds. Only occasional overhead reaching" (Tr. 376).
Plaintiff has also claimed that the ALJ failed to consider his repeated and consistent complaints of pain. More specifically, Sexton points to all of the social security records he has completed, arguing that he has consistently alleged that his pain disabled him (Doc. 10, pp. 7-9).
The Court notes that even though Plaintiff has consistently made the same allegations, the complaints do not make it so. The objective medical evidence does not support his complaints; likewise, the objective medical evidence indicates that Sexton's impairments do not appear to be "of such a severity that it can be reasonably expected to give rise to the alleged pain." No doctor has indicated otherwise.
Plaintiff also claims that the ALJ's decision is based on less than all of the record evidence. Sexton specifically states that the ALJ failed to consider certain records of Drs. Fleet and West though they were available (Doc. 10, p. 10).
The Court finds that the notes of Dr. Fleet are specifically discussed and referenced in the ALJ's summary of the medical evidence (Tr. 25; cf. Tr. 429-45). It does appear, though, that the ALJ failed to consider the notes of Dr. West regarding one office visit in which he gave Sexton an injection and prescribed Lortab 7 for "an exacerbation of his symptoms" (Tr. 427). However, that note does not state that Plaintiff's pain had become consistently as bad as it was on that occasion and that it had diminished his capacity to perform light work; in fact, West's use of the word exacerbation indicates otherwise. While the ALJ did not specifically address that office visit in his decision, the Court finds that that failure has not deprived Sexton of a fair evaluation of his claims.
Plaintiff has also urged this Court to look at the medications he has taken to support his claim that he suffers debilitating pain (Doc. 10, p. 12). The ALJ noted that Sexton took pain medication but found that there was no evidence that there were side effects which would keep him from working (Tr. 31). The ALJ is correct. While Plaintiff has a long history of taking Ultram for his pain (Tr. 421, 422-24), there is no evidence that the pain medication renders him unable to work.
Ultram is an analgesic "indicated for the management of moderate to moderately severe pain." Physician's Desk Reference 2218 (54th ed. 2000).
The Court notes further evidence that doctors have made one-time prescriptions for Lortab 7, Darvocet, and Methadone during the course of a year (Tr. 43). However, the fact that the prescriptions were non-refillable and each occurred only once lend support to the ALJ's conclusion that Sexton's pain is not as debilitating as alleged.
Plaintiff also points to the reports of two state agency physicians as supporting his debilitating pain claim, asserting that the ALJ did not consider those assessments (Doc. 10, p. 13). The Court notes, however, that those reports state that Sexton's condition is not expected to last for twelve months or that he is able to return to his previous work (Tr. 85, 100).
Finally, Plaintiff has asserted that records from the physical therapy service support his claim that he can sit and stand for only limited periods of time (Doc. 10, p. 11). The Court, however, does not understand the records to indicate that Sexton is limited to thirty minutes of each behavior as suggested by Plaintiff ( see Tr. 417). Though it is, at best, confusing, the Court understands the note to suggest that Sexton was capable of at least that much activity — not restricted to that amount. The Court further notes that no medical doctor has confirmed the limitations suggested.
The Court has reviewed the many particulars raised by Plaintiff in his claim that the ALJ improperly discredited his testimony of pain. The Court finds that the ALJ's decision is supported by substantial evidence. Though Sexton experiences pain from his various impairments, he has not demonstrated an inability to perform the work which the ALJ said he could do.
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 Joe V. Sexton on all claims.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . 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.