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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ROBERT BRYANT, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 15-0167-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

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

judicial review of an adverse social security ruling denying a 

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

Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc. 18). 

Oral argument was waived in this action (Doc. 20). After 

considering the administrative record and the 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

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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 most recent administrative hearing, 

Plaintiff was forty years old, had completed some college

education (Tr. 74), and had previous work experience as a 

heating and air installer and servicer (Tr. 82). Bryant alleges 

disability due to multi-level degenerative disc disease of the 

lumbar spine with facet spondylosis and chronic right knee pain 

secondary to a partial tear of the lateral meniscus and medium 

meniscus (Doc. 12).

Plaintiff applied for disability benefits on September 28, 

2011; disability is asserted as of December 10, 2010 (Tr. 17; 

see also Tr. 38, 181-87). An Administrative Law Judge (ALJ) 

denied benefits, determining that although Bryant could not 

return to his past relevant work, there were specific light and 

sedentary jobs that he could perform (Tr. 17-26). Plaintiff 

requested review of the hearing decision (Tr. 10-13), but the 

Appeals Council denied it (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not 

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supported by substantial evidence. Specifically, Bryant alleges 

that: (1) The ALJ did not properly consider the conclusions of 

his treating physician; (2) the ALJ violated the HALLEX in 

improperly taking telephonic testimony from a Medical Expert

(hereinafter ME); and (3) the opinions of the ME were based on 

an incomplete record (Doc. 13). Defendant has responded to—and 

denies—these claims (Doc. 14). The Court will now summarize the 

relevant evidence of record.

On July 29, 2010, Stephen A. Roberts, D.O., examined Bryant 

for an injury to his back and knees after falling from a ladder; 

Plaintiff had mid-to-low back pain with left knee pain and 

popping in the right knee (Tr. 309-12). On September 2, 

following a medication regimen of Zanaflex,1 Skelaxin,2 a Medrol 

Dosepak,3 Mobic,4 Ultracet,5 and Robaxin,6 as well as physical 

																																																							 1Error!	Main	Document	Only.Zanaflex “is a short-acting drug for the 

acute and intermittent management of increased muscle tone associated 

with spasticity.” Physician's Desk Reference 3204 (52nd ed. 1998). 

2Error!	Main	Document	Only.Skelaxin is used “as an adjunct to rest, 

physical therapy, and other measures for the relief of discomforts 

associated with acute, painful musculoskeletal conditions.” 

Physician's Desk Reference 830 (52nd ed. 1998). 

3A Medrol Dosepak (methylprednisolone) is a steroid that prevents 

the release of substances in the body that cause inflammation. See

http://www.drugs.com/mtm/medrol-dosepak.html

4Error!	Main	Document	Only.Mobic is a nonsteroidal anti-inflammatory 

drug used for the relief of signs and symptoms of osteoarthritis and 

rheumatoid arthritis. Physician's Desk Reference 855-57 (62nd ed. 

2008). 

5Error!	Main	Document	Only.Ultracet is made up of acetaminophen and 

tramadol and is used for the short-term (5 days or less) management of 

pain. See http://health.yahoo.com/drug/d04766A1#d04766a1-whatis

6Error!	Main	Document	Only.Robaxin “is indicated as an adjunct to 

rest, physical therapy, and other measures for the relief of 

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therapy, Roberts ordered an MRI that showed a large horizontal 

cleavage tear of the lateral meniscus and a partial meniscectomy 

of the medial meniscus in the right knee (Tr. 298-308, 314). On 

September 10, 2010, Dr. Roberts noted normal range of motion 

(hereinafter ROM) in the thoracic spine with pain in both the 

thoracic and lumbar spine (Tr. 295-96). On September 29, Bryant 

stated that although there had been some improvement with 

medication, it had stopped and his back pain and stiffness 

persisted (Tr. 286-89, 313). A lumbar spine MRI showed the 

following: (1) mild desiccation changes at L4-5 and L5-S1 with 

moderate loss of disc height at L5-S1; (2) mild broad-based disc 

bulge at L3-4 without evidence of neural impingement; and (3) 

broad-based disc bulge with central disc protrusion at L4-5, 

resulting in moderate crowding of the descending nerve roots, 

accentuated by a congenitally narrowed spine; there was crowding 

of the descending nerve roots but no definite impingement (Tr. 

313, 358).

On September 9, Dr. Scott Atkins, Orthopaedic Surgeon, 

examined Bryant who complained of right lateral knee pain with 

popping, intermittent swelling, and intermittent severe pain; 

the Doctor noted tenderness over the lateral joint line, pain, 

and trace effusion (Tr. 257, 266). After reviewing the MRI, 

																																																																																																																																																																				 discomforts associated with acute, painful musculoskeletal 

conditions.” Physician's Desk Reference 2428 (52nd ed. 1998). 

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arthroscopic surgery on the right knee with partial lateral 

meniscectomy was recommended and completed (Tr. 401). On 

October 19, 2010, Dr. Atkins noted that Bryant was doing well 

following his surgery (Tr. 268). He had a small effusion; 

coordination, fine motor testing, deep tendon reflexes, and 

sensation were all normal. Plaintiff had full extension and 

flexion of 120 though there was moderate tenderness over the 

lateral joint lines. Bryant was placed on light duty work 

restrictions; therapy was ordered (Tr. 405-08). On November 11,

Atkins noted Bryant was doing well with no new complaints; 

Plaintiff was placed at maximum medical improvement and told he 

could return to work without restrictions (Tr. 269). The Doctor 

noted a two percent partial permanent impairment rating of the 

right lower extremity. 

On October 27, 2010, Dr. Wesley L. Spruill, at The 

SpineCare Center, found that Plaintiff had ROM limitation of the 

cervical spine with full equal ROM, sensation, and strength in 

both upper extremities (Tr. 403-04). He had negative straight 

leg raise bilaterally with some low back and buttock pain, but 

with no radicular symptoms; he had low back pain on flexion and 

extension. The Doctor’s impression was L4-5 and L5-S1 

degenerative disc disease with small non-impinging L4-5 disc 

protrusion. On November 2, Spruill gave Plaintiff an epidural 

injection in the L4-5 area (Tr. 318-19). A week later, a second 

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injection was administered (Tr. 320-21). 

On November 24, 2010, Plaintiff still complained of back 

pain; Dr. Roberts noted that Bryant had had knee surgery and 

been released back to work for that impairment (Tr. 278-81). 

Plaintiff had normal ROM in the thoracic spine and gross normal 

ROM in the lumbar spine with no significant pain; he reported no

recent or current radicular pain into the posterior thigh. The 

Doctor restricted Bryant to seventy-five pounds maximum lifting 

following an osteopathic manipulative treatment.

On December 16, Dr. Spruill noted Plaintiff’s complaints of 

continued mid and low back pain, radiating into the left leg; he 

rated his pain as nine on a ten-point scale (Tr. 325-29). The 

Doctor noted that the thoracic and lumbar exams were normal 

though there was mid-thoracic tenderness at T6-8. Spruill gave 

Bryant another injection of Toradol7 and Robaxin (Tr. 322-23, 

329). On January 11, 2011, Bryant reported his pain was twenty 

percent better, and was not radiating, rating it at seven but at 

nine at its worst; the Doctor noted increased pain with lumbar 

flexion at sixty degrees and extension at fifteen degrees (Tr. 

338, 340-43). Muscle strength in the legs was 5/5 bilaterally; 

thoracic tenderness continued. Straight leg raise was negative. 

																																																							 7Toradol is prescribed for short term (five days or less) 

management of moderately severe acute pain that requires analgesia at 

the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998). 

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Physical therapy and Ultram8 were prescribed. On March 23,

Bryant reported that his pain was fifty percent better, rating 

it as level four, and was aggravated by standing or sitting too 

long (Tr. 344-47). Noting that Plaintiff had degenerative disc 

disease with continued low back pain, Spruill found that he had 

no lower extremity symptoms and no weakness; the Doctor found 

that Plaintiff had reached maximum medical improvement and 

placed no work restrictions on him. 

On May 5, 2011, lumbar spine x-rays showed no instability 

or spondylolisthesis though there was disc space narrowing at 

L5-S1 (Tr. 373). 

On May 20, Bryant stated his low back pain was at eight, 

but denied it was radiating into his lower extremities (Tr. 350-

54, 366-67). The Doctor noted no edema, erythema, or atrophy in 

the bilateral lower extremities; straight leg raise was negative 

bilaterally. Plaintiff was given an epidural injection.

On June 15, an MRI of the lumbar spine, when compared to 

one taken nine months earlier, showed Plaintiff had slight 

progression of disease at L4-5 with equivocal impingement of the 

descending nerve roots, right greater than the left (Tr. 360).

On June 23, Dr. Bryan S. Givhan, Neurosurgeon, found Bryant 

to have 5/5 strength in all muscle groups in upper and lower 

																																																							 8Error! Main Document Only.Ultram is an analgesic “indicated for 

the management of moderate to moderately severe pain.” Physician's 

Desk Reference 2218 (54th ed. 2000). 

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extremities; he had a negative straight leg raise test and a 

negative Patrick’s maneuver (Tr. 363-64). Plaintiff’s back 

showed some mild pain to palpation in the lumbar, especially on 

the right about L4-5; he had mild pain flexion and extension, 

but no obvious paraspinous spasm. Givhan recommended continued 

conservative treatment and “work at any level his pain will 

allow” (Tr. 364).

On August 15, 2011, Dr. Spruill reported Plaintiff’s 

complaints of pain at level eight; his examination revealed 

nothing different than the prior exam (Tr. 368-72). The Doctor 

declared Bryant to have reached maximum medical improvement and 

continued previous work restrictions of lifting no more than 

seventy-five pounds. On November 7, Plaintiff reported his pain 

at seven, worse with sitting or standing too long; Spruill noted 

low back pain on flexion and extension (Tr. 502-03). Straight 

leg raise on the left caused leg pain while on the right, it 

caused buttock pain; the Doctor prescribed Chlorzoxazone,9

Nucynta,10 and an NSAID. On January 30, 2012, Plaintiff stated 

that his pain had been forty percent better until he ran out of 

his prescriptions; he rated his pain at nine (Tr. 497-501). 

Spruill noted pain on flexion and extension in the lumbar; he 

																																																							 9Chlorzoxazone is a skeletal muscle relaxer, used in combination 

with rest and physical therapy. See http://www.drugs.com/cdi/parafonforte-dsc.html

10Nucynta is a narcotic used to treat moderate to severe pain. 

See http://www.drugs.com/nucynta.html

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prescribed Relafen11 and Skelaxin. On April 5, 2012, Bryant 

stated there was no change in his pain—a constant level eight; 

the Doctor noted lumbar pain increased with flexion and 

extension with tenderness in the thoracic and mid lumbosacral 

regions (Tr. 485-96). Hand grip strength was full bilaterally; 

there was low back pain at L3-S1 with straight leg raise along 

with mild leg pain. Spruill’s impression was that Plaintiff’s 

“[q]uality of life [had] improved, pain levels [were] reduced 

and daily activities [had] increased” with treatment (Tr. 490). 

Ultram was prescribed over Relafen. On June 27, following a 

non-remarkable exam, Dr. Spruill prescribed a TENS unit (Tr. 

473-84). 

On August 3, Dr. Timberlake saw Bryant for complaints of 

lower back pain and depression; noting tenderness in the lumbarsacral area, the Doctor prescribed Lortab,12 Amitriptyline,13 and 

a steroid (Tr. 418-19). The Doctor stated that Plaintiff was 

completely and totally disabled to do gainful work now or in the 

future.

																																																							 11Error!	Main	Document	Only.Relafen “is indicated for acute and 

chronic treatment of signs and symptoms of osteoarthritis and 

rheumatoid arthritis.” Physician's Desk Reference 2859 (52nd ed. 

1998). 

12Error! Main Document Only.Lortab is a semisynthetic narcotic 

analgesic used for “the relief of moderate to moderately severe pain.” 

Physician's Desk Reference 2926-27 (52nd ed. 1998).

13Error!	Main	Document	Only.Amitriptyline, marketed as Elavil, is 

used to treat the symptoms of depression. Physician's Desk Reference

3163 (52nd ed. 1998). 

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On September 25, 2012, Dr. Spruill examined Bryant for 

increased pain in the right sacroiliac region and low back; 

there was no problem with leg weakness or numbness (Tr. 461-70). 

Spruill stated that Bryant’s lumbar exam was normal though there 

was pain with flexion at forty-five degrees and extension at ten 

degrees; there was tenderness at the mid lumbosacral region and 

in the right sacroiliac joint. Muscle strength was 4/5 in the 

hands and legs bilaterally; straight leg raise was negative 

bilaterally. Medications were continued. On October 19, 2012, 

the Doctor gave Plaintiff an epidural injection (Tr. 457-60). 

On December 3, Bryant rated his back pain as six generally and 

nine at its most intense; he said the pain was twenty percent 

better since the last injection and his daily activities had 

increased (Tr. 445-56). Spruill noted that the cervical, 

thoracic, and lumbar spine exams were normal though there was 

tenderness of the Myofascial trigger point on the right and left 

at L4-5; there was normal ROM bilaterally in all extremities. 

There was no change in treatment. On March 4, 2013, Spruill 

noted decreased ROM and increased pain with flexion and 

extension in the lumbar spine; right leg strength was decreased 

(Tr. 435-44). Straight leg raise was positive on the right at 

sixty degrees. The Doctor’s impression, however, was that 

Bryant’s “[q]uality of life [was] improved, pain levels reduced 

and daily activities increased due to current medical regimen;” 

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he prescribed Toradol (Tr. 438). 

On March 12, 2013, an MRI of the lumbar spine demonstrated, 

overall, no significant change since the June 15, 2011 MRI (Tr.

504-05).

On April 3, Dr. Timberlake reported Plaintiff’s complaints 

of low back pain and that he was seeking a nerve block; Nucynta 

and Chlorzoxazone were prescribed (Tr. 429-30).

On April 4, following a routine examination, Dr. Spruill 

gave Bryant an epidural injection for low back pain with lower 

limb radiculitis; he prescribed Oxycodone with no refills. (Tr. 

525-38).

On April 17, Dr. Timberlake gave Plaintiff a Toradol 

injection (Tr. 427-28).

On April 24, Dr. Timberlake completed a form indicating

that Plaintiff was capable of sitting for two, and standing or 

walking for one hour during an eight-hour day; he could lift 

and/or carry five pounds occasionally to one pound frequently 

(Tr. 424). Bryant would be capable of gross and fine 

manipulation, operating motor vehicles, and working with or 

around hazardous machinery occasionally and could engage in 

pushing and pulling movements (arm and/or leg controls), 

climbing, and balancing only rarely; he could never bend, stoop, 

or reach. It was Timberlake’s opinion that Plaintiff would be 

absent from work more than three times a month because of his

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impairments or treatment. The Doctor also completed a 

questionnaire on that same date indicating that Bryant’s pain 

was profound, intractable, and virtually incapacitating; he 

further indicated that activity would increase his pain to such 

an extent that he would have to take medication or get bed rest 

(Tr. 425). Plaintiff’s pain would prevent him from maintaining 

attention, concentration, or pace for periods of at least two 

hours; medications for his pain would severely limit his ability 

to perform simple tasks.

On May 17, 2013, Dr. Timberlake re-prescribed Lortab or 

Tylenol #314 and Amitriptyline and encouraged back exercises and 

hot soaks twice daily (Tr. 542-43). 

On May 19, Bryant told Dr. Spruill that his low back and 

buttocks pain was sixty percent better since the injection a 

month earlier; he rated his pain at seven with levels of ten 

(Tr. 507-24). The doctor noted increased right leg pain and 

weakness and stated that he did not recommend “prolonged bed 

rest for over two days due to pain” (Tr. 515). 

On July 15, Bryant complained to Dr. Timberlake of extreme 

right chest and abdomen pain of several seconds duration; the 

Doctor noted soft but mild-to-moderate tenderness that he 

diagnosed to be Costochondritis for which he prescribed 

																																																							 14Error!	Main	Document	Only.Tylenol with codeine is used “for the 

relief of mild to moderately severe pain.” Physician's Desk Reference

2061-62 (52nd ed. 1998). 

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Ibuprofen (Tr. 550-51). No mention of back pain was made. On 

December 23, 2013, Plaintiff complained of a cough and 

congestion (Tr. 548-49).

In his decision, the ALJ denied benefits, determining that 

although Bryant could not return to his past relevant work, 

there were specific light and sedentary jobs that he could 

perform (Tr. 17-26). In reaching this determination, the ALJ 

summarized the medical evidence before finding that Plaintiff’s 

claims of incapacitating pain were not credible (Tr. 20-21), a 

finding that is unchallenged in this action (see Doc. 13). 

The ALJ also discredited Dr. Timberlake’s finding that 

Bryant was disabled, leading to Plaintiff’s first claim herein

(Tr. 24). The Court notes that "although the opinion of an 

examining physician is generally entitled to more weight than 

the opinion of a non-examining physician, the ALJ is free to 

reject the opinion of any physician when the evidence supports a 

contrary conclusion." Oldham v. Schweiker, 660 F.2d 1078, 1084 

(5th Cir. 1981);15 see also 20 C.F.R. § 404.1527 (2015).

One reason the ALJ gave for discrediting Timberlake was the 

paucity of the evidence. Specifically, the ALJ noted that there 

was no evidence that the Doctor had seen Bryant prior to August 

2012 though the records described him as an established patient 

																																																							

					 15The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

of the former Fifth Circuit rendered prior to October 1, 1981.

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(Tr. 24; cf. Tr. 418). 

The Court notes that the record indicates that Timberlake 

proclaimed Bryant disabled based on his finding of moderate 

tenderness in the lumbo-sacral area following a single, 

otherwise non-remarkable, examination. While it is true that 

Timberlake followed this disability pronouncement, eight months 

later, with a pain form and physical capacity evaluation that 

provided an opinion as to Bryant’s inability to work (see Tr. 

424-25), the Court finds that there is substantial support for 

the ALJ’s conclusion that there is no objective evidence in 

Timberlake’s own notes to support his conclusion; Plaintiff 

admits as much in his brief (Doc. 13, p. 4) (“While Dr. 

Timberlake’s records themselves may not feature the objective 

findings the ALJ seeks, the totality of the evidence supports 

his opinion, so it should be given great, if not controlling, 

weight”). Bryant references evidence provided by Drs. Spruill 

and Timberlake that the ALJ did not summarize though it appears 

in the list of exhibits before him at the time his decision was 

entered (Doc. 13, pp. 4-5; cf. Tr. 30). 

However, the Court finds otherwise. The Court has 

considered those records and notes that Spruill never retracted 

his finding that Plaintiff had reached maximum medical 

improvement and could return to work, limiting him only to 

lifting seventy-five pounds (Tr. 372). While it is true that 

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Dr. Spruill continued to examine him quarterly, the records 

show, essentially, that the changes exist more in Bryant’s 

reporting of his symptoms than the Doctor’s examination notes. 

The Court further notes that the most recent MRI (Tr. 504-05)—

apparently unseen by the ALJ—provides no support for a 

disability finding, bolstering Dr. Spruill’s silence on the 

issue. Plaintiff’s failure to point to specific, objective 

evidence of disability from any source belies his assertion of 

it.

Bryant next claims that the ALJ violated the HALLEX16 in 

improperly taking telephonic testimony from an ME. Plaintiff 

correctly notes that the ALJ did so in spite of being against 

the rules and his objection (Doc. 13, pp. 6-7). The Government 

admits that the ALJ’s action was error, but argues that it was 

harmless as using telephonic testimony was allowed by the time 

the decision was entered (Doc. 14, p. 6).17 

The Court has carefully reviewed the hearing transcript and 

finds that, in spite of the apparent difficulty encountered at 

the hearing because of the use of the telephone coupled with the 

																																																							 16The HALLEX, the Hearings, Appeals and Litigation Law Manual, “is 

a policy manual written by the Social Security Administration to 

provide policy and procedural guidelines to ALJs and other staff 

members.” Howard v. Astrue, 505 F.Supp.2d 1298, 1300 (S.D. Ala. 2007) 

(citing Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000). 

17The Parties agree that the evidentiary hearing was conducted on 

May 29, 2013, the use of telephonic testimony was allowed beginning on 

June 20, 2013, and the ALJ’s decision was entered on June 27, 2013 

(Doc. 13, pp. 6-7; Doc. 14, pp. 5-6; Tr. 26).		

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other participants video-conferencing from two different cites, 

Bryant did have the opportunity to question the ME regarding the 

evidence (Tr. 33-63). While ALJ Michael L. Levinson’s flouting 

of the rules was wrong, it is not reversible error as the Court 

has discovered no discernible harm to Plaintiff.18 This claim is 

of no merit.

Finally, Bryant argues that the opinions of the ME were 

based on an incomplete record (Doc. 13, p. 8). More 

specifically, Plaintiff asserts there were five exhibits that 

the ME did not have at his disposal to review at the time of his 

testimony (see Tr. 435-551).

Plaintiff refers to records from Drs. Timberlake and 

Spruill and an updated MRI, all reviewed herein earlier. The 

Court found that the ALJ’s failure to consider the evidence was 

harmless as it provided no more support for Bryant’s assertions 

of disability than the evidence actually reviewed. The Court 

finds that the ME’s consideration of it would have made no 

difference in the ultimate determination. This claim is of no 

merit.

Bryant has raised three different claims in bringing this 

																																																							 18The Court notes that although only a technical violation 

occurred, the Court reaches its decision because there was more than 

substantial evidence for the ALJ’s finding that Plaintiff had the 

ability to work. Had there been less evidence supporting that 

decision, and the ME’s testimony been more critical to the outcome, 

the Court would have reversed the decision. Here, however, a reversal 

would waste resources and be meaningless. 

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action. All are without merit. Upon consideration of the 

entire record, the Court 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 

ORDERED that the Secretary's decision be AFFIRMED, see 

Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and 

that this action be DISMISSED. Judgment will be entered by 

separate Order.

DONE this 26th day of October, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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