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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TIMOTHY P. DONOVAN, JR., :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 14-0353-WS-M

 :

CAROLYN W. COLVIN, :

Commissioner of Social Security, :

 :

Defendant. :

REPORT AND RECOMMENDATION

In this action under 42 U.S.C. § 405(g), Plaintiff seeks 

judicial review of an adverse social security ruling which 

denied a claim for disability insurance benefits (Docs. 1, 13). 

The action was referred for report and recommendation pursuant 

to 28 U.S.C. § 636(b)(1)(B). Oral argument was heard on May 18, 

2015 (Doc. 18). After considering 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 Michael J. Astrue and against Plaintiff 

Timothy P. Donovan, Jr. on all claims.

This Court may not reweigh the evidence or substitute its 

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judgment for that of the Secretary of Health and Human Services, 

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), a 

decision that that 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).

The Plaintiff filed a protective application for disability 

benefits on December 29, 2010, alleging his disability began on

June 1, 2006 and is due to arthritis, a bladder stone, and a 

heart condition (Doc. 13; Tr. 8, 116-22).

After hearing testimony from Plaintiff and a Vocational 

Expert, the Administrative Law Judge (ALJ) determined that 

although Donovan could not perform his past work, there were 

specific medium-exertion jobs that he could do (Tr. 8-18). 

Plaintiff requested review of the hearing decision (Tr. 4) by 

the Appeals Council, but it was denied (Tr. 1-3).

Plaintiff claims that the opinion of the ALJ is not 

supported by substantial evidence. Specifically, Donovan 

alleges that: (1) The ALJ did not properly consider his pain; 

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and (2) he can no longer work (Doc. 13). Defendant has 

responded to—and denies—these claims (Doc. 14). The relevant 

evidence of record follows.1

On October 24, 2006, Dr. Greer Megginson, Urologist, found 

that Donovan had a large left inguinal hernia and a smaller one 

on the right (Tr. 180). Nine days later, an x-ray revealed a 

bladder stone; Megginson recommended a cystoscope for the stone 

and a surgeon for the hernias (Tr. 179). Plaintiff resisted 

both suggestions, but said that he would think about them.

On December 20, the IMC Northside Clinic refilled Donovan’s 

Inderal2 prescription (Tr. 184).

On March 9, 2009, Plaintiff went to Saraland Family 

Practice in search of a new doctor and an Inderal prescription 

(Tr. 187). A week later, he complained of headaches and flulike symptoms (id.). 

On March 11, Dr. Hercules Panayiotou noted an abnormal 

electrocardiogram, suggesting possible ischemia, renal 

insufficiency, and hypertension (Tr. 295-97). A follow-up 

 1

Donovan asserts that his disability began on June 1, 2006, so 

there is no need to review evidence that came significantly before 

that date. Likewise, the ALJ noted that December 31, 2010 (Tr. 8) was 

the last day that Plaintiff was insured for disability benefits, so 

there is no need to review evidence beyond that date.

2

Error! Main Document Only.Inderal is used to treat common 

migraine headaches. Physician's Desk Reference 3046-47 (52nd ed. 

1998). 

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echocardiogram showed mild asymmetric septal left ventricular 

hypertrophy, consistent with coronary artery disease and 

diastolic dysfunction; also, there was mild dilation of the left 

atrium and inferior vena cava, aortic sclerosis with mild 

insufficiency, mild mitral, pulmonic, and tricuspid 

insufficiency, and mild pulmonary hypertension (Tr. 328). 

Further tests reported probable moderate-to-mild proximal left 

renal artery stenosis (Tr. 329-30); a treadmill stress test 

caused moderate dyspnea and increased hypertension, suggesting 

ischemia without chest pain (Tr. 292, 332). 

On March 24, 2009, Dr. Randy Dotson noted that a chest xray showed pleural plaquing over the left hemidiaphragm; 

Plaintiff suggested it may be related to two years of working 

with asbestos (Tr. 271).

On April 14, Dr. Panayiotou summarized Donovan’s 

examination results, noting his refusal to take several tests (a 

GXT cardiolite and chest CT); Plaintiff had also failed to begin 

newly-prescribed medication (Tr. 291-93). Though the Doctor 

explained his proposed medical procedures and regimen, Donovan 

said he would think more about it. 

On October 28, blood pressure medication was prescribed; 

the record shows recurrent refills for hypertension and 

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headaches over the next thirty months (Tr. 186, 195).

On December 30, a CT scan demonstrated a slightly enlarged 

bladder and a growing bladder stone, right kidney atrophy, a 

large, stable hernia on the left, and bladder diverticulum and 

diverticulosis (Tr. 221-22). 

On March 23, 2010, Donovan went to the Springhill Medical 

Center ER for complaints of a possible esophageal obstruction 

with no chest pain; a chest x-ray was negative (Tr. 243-45). It 

was recommended that Plaintiff admit himself to the hospital for 

gastrointestinal evaluation, but he left against medical advice. 

On June 22, Donovan went back to the ER with complaints of 

gradually worsening shortness of breath with no chest pain; an 

x-ray showed possible early congestive heart failure but an EKG 

showed no acute changes (Tr. 233-42). 

On December 30, Dr. Megginson noted Donovan’s difficulties 

with a large hernia, large bladder stone, atrophic right kidney, 

and bladder diverticulum and diverticulosis but stated that 

Plaintiff had chosen not to do anything about them (Tr. 214). 

At the evidentiary hearing, Donovan testified that he was 

sixty-seven years old, had graduated from high school, and had 

worked as a heavy equipment operator (Tr. 26-27). Donovan

sought disability for two impairments: (1) a golf-ball-sized 

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bladder stone, irritated by the vibration of the equipment he 

operated, that caused urinary bleeding and incontinence; and (2) 

arthritis (Tr. 27-30, 40). He had hypertension, and although 

Doctor Panayiotou recommended catheterization to discover the 

extent of his heart impairment, Donovan would not undergo the 

procedure (Tr. 30-31). Plaintiff worked in the Alabama shipyard 

as a young man, pulling out asbestos, causing pleural disease; 

he never took medication for it, though (Tr. 31-32). Donovan 

did take blood pressure medicine and bladder medicine for 

infection when he needed it (Tr. 32-33). He lived alone; his 

children and grandchildren were responsible for household and 

outdoor chores (Tr. 33, 34). Plaintiff could tend to his 

personal needs and could prepare a meal for himself (Tr. 33-34). 

Responding to the ALJ, Donovan testified that he does “all [his] 

fishing and hunting at Walmart” (Tr. 35); he has a driver’s 

license (Tr. 36). Donovan spent his days talking with friends 

and relatives by phone; television did not interest him and he 

could not read because, although an eye specialist suggested he 

get reading glasses, he never did (Tr. 37). The only pain 

medicine he had ever taken was Advil, although his arthritic 

pain, some days, registered ten on a ten-point pain scale (Tr. 

38-39). 

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This concludes the Court’s summary of the evidence.

Donovan first claims that the ALJ did not properly consider 

his pain; he specifically references arthritic knees, a bladder 

stone, and an impaired heart (Doc. 13). 

The standard to evaluate Donovan’s pain 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 determining 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). Furthermore, the Social Security regulations 

specifically state the following:

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statements about your pain or other symptoms 

will not alone establish that you are 

disabled; there must be medical signs and 

laboratory findings which show that you have 

a medical impairment(s) which could 

reasonably be expected to produce the pain 

or other symptoms alleged and which, when 

considered with all of the other evidence 

(including statements about the intensity 

and persistence of your pain or other 

symptoms which may reasonably be accepted as 

consistent with the medical signs and 

laboratory findings), would lead to a

conclusion that you are disabled.

20 C.F.R. § 404.1529(a) (2014).

In her determination, the ALJ reviewed the medical 

evidence, systematically discussing the asserted impairments.

The ALJ found that although Donovan experienced some pain, it 

was not as intense or limiting as suggested (Tr. 14). In 

reaching this decision, the ALJ noted Plaintiff’s resistance to 

follow medical advice, his irregular treatment, and specifically 

referred to Donovan’s leaving the ER against medical advice (Tr. 

14). The ALJ noted that there was no arthritis diagnosis and no 

medical reports of Plaintiff’s claims of pain (Tr. 15). The ALJ 

pointed to Donovan’s refusal to undergo medical procedures to 

evaluate his heart impairment and his failure to take prescribed 

medications to treat it (Tr. 15).

The Court finds substantial support for the ALJ’s decision. 

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The Court notes that Donovan takes no pain medications, except 

for Inderal for his headaches, as he is able to rely on overthe-counter medications. Plaintiff has not demonstrated that he 

has a medical condition that could, conceivably, cause the pain 

asserted; likewise, there is no objective medical support for 

his assertions.

Donovan has also asserted that he can no longer work 

because of his impairments. Plaintiff again cites his arthritic 

knees, bladder stone, and heart impairment (Doc. 13). 

After reviewing the medical evidence, the ALJ found that 

Donovan had the residual functional capacity (hereinafter RFC):

to perform less than a full range of medium 

work as defined in 20 C.F.R. § 404.1567(c).3 

The claimant is able to lift and carry 25 

pounds frequently and 50 pounds occasionally 

and sit, stand and walk for a total of 6 

hours each during an 8-hour workday. He can 

frequently use the upper and lower 

extremities to push and pull, balance, 

stoop, kneel, crouch, crawl and climb ramps 

and stairs, and reach overhead. He can 

continuously handle, finger and feel. The 

claimant is precluded from exposure to 

extreme heat and cold, working around 

vibrations or pulmonary irritants, and 

 3

Error! Main Document Only.“Medium work involves lifting no more 

than 50 pounds at a time with frequent lifting or carrying of objects 

weighing up to 25 pounds. If someone can do medium work, we determine 

that he or she can also do sedentary and light work” (footnote not in 

original).

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working around unprotected heights or 

dangerous machinery. He is able to perform 

simple routine tasks involving no more than 

simple, short instructions secondary to 

complaints of arthritic pain.

(Tr. 12). In fashioning this RFC, the ALJ specifically 

precluded Donovan from working around vibrations to accommodate 

his bladder stone, working around unprotected heights or 

dangerous machinery to accommodate hypertension, working around 

extreme heat or cold to alleviate arthritis, and working while 

exposed to pulmonary irritants (Tr. 14-16). In summary, the ALJ 

reached her RFC decision because of Plaintiff’s conservative 

medical treatment history, the lack of consistent complaints 

from him in the medical records, and the lack of evidence 

supporting arthritis (Tr. 16).

The ALJ went on to find that Donovan was able to work, 

although not at his previous job as a heavy equipment operator 

(Tr. 16). Relying on the testimony of a Vocational Expert at 

the evidentiary hearing (Tr. 41-45), the ALJ found that

Plaintiff was capable of performing the jobs of hand packager, 

warehouse worker, and patient transporter (Tr. 17). 

The Court finds substantial evidence to support the ALJ’s 

decision. Though Plaintiff demonstrated to the ALJ that he 

could not perform his past work, the ALJ accommodated his 

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specific physical complaints in finding different work that he 

could perform. Donovan has not convinced this Court that the 

ALJ has committed any error in reaching that determination.

Plaintiff has raised two claims in bringing this action; 

both are without merit. Upon consideration of the entire 

record, the Court finds "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 Carolyn W. Colvin and 

against Plaintiff Timothy P. Donovan, Jr.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. 

§ 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

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recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 19th day of May, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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