Parker v. Astrue

Filing 16

RULING: The final determination of the Commissioner of SS, that pltf was not disabled prior to 10/10/2009, and denying his 1 application for disability and supplemental security income benefits prior to that date, is affirmed and this action will be dismissed. Signed by Magistrate Judge Stephen C. Riedlinger on 11/1/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

PERCY PARKER
CIVIL ACTION
VERSUS
NUMBER 11-294-SCR
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Percy Parker1 brought this action pursuant to 42
U.S.C. § 405(g) for judicial review of a final decision of Michael
J. Astrue, the Commissioner of Social Security (“Commissioner”)
denying his claims for supplemental security income (“SSI”) and
disability insurance benefits.
For the reasons which follow the Commissioner’s decision is
affirmed.
Background
Plaintiff Percy Parker was 57 years of age at the time of the
benefits decision.

AR pp. 72, 122.2 Plaintiff attended school

1

Plaintiff Percy Parker died on April 30, 2012. His daughter
has been substituted as plaintiff under Rule 25(a), Fed.R.Civ.P.
Record document numbers 13 and 14. References to “plaintiff” in
this ruling are to the claimant, Percy Parker.
2

Under the regulations, this placed the plaintiff in the
category “person of advanced age.” 20 C.F.R. § 404.1563(e) and §
416.963(e).

until the eighth grade and was in special education classes.3

AR

pp. 72, 150. He worked from 1992 until 2007 at various occupations
- laborer, gas station attendant, painter/grinder, and maintenance
person.4
In

AR pp. 79-81, 146, 156-63.
his

April

2008

applications

for

disability

and

SSI

benefits, the plaintiff alleged that he had been unable to engage
in substantial gainful activity since October 1, 2007 because of
mental problems and problems with his legs.

AR pp. 122-32, 145.

The applications were initially denied and the plaintiff requested
a hearing before an administrative law judge (“ALJ”).
94. An ALJ hearing was held on September 17, 2009.

AR pp. 87However, on

October 10, 2009 the plaintiff suffered a massive brain hemorrhage,
which left him in a coma and with an extremely poor prognosis for
recovery.5

Therefore, when the ALJ issued his decision on November

2, 2009, he found that the plaintiff had a continuing disability
that began on the date he suffered the brain aneurysm.6

AR p. 44.

The ALJ then had to address the period from the date the

3

Under the regulations the plaintiff’s educational level was
“limited.” 20 C.F.R. § 404.1564(b)(3) and § 416.964(b)(3).
4

Plaintiff had some earnings in the first quarter of 2008,
but it did not qualify as substantial gainful activity. AR p. 39.
5

The brain aneurysm occurred on October 10, 2009. AR pp.
365-76. This condition eventually lead to the plaintiff’s death in
2012.
6

See, Listing Impairment 4.10, Aneurysm of aorta or major
branches.
2

plaintiff claimed he became unable to work, his alleged onset date
of October 1, 2007, through October 9, 2009.
At step two of the disability analysis, the ALJ found that
during this time period the plaintiff had the following combination
of

severe

impairments:

schizoaffective

disorder,

intellectual functioning and substance abuse.7

borderline

AR p. 39.

At step

three the ALJ concluded the plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the
impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1.

In his

analysis the ALJ specifically addressed Listings 12.03, 12.04,
12.05

and

12.09,

which

cover

the

mental

impairments

of

schizophrenic, paranoid and other psychotic disorders, affective
disorders, mental retardation, and substance addition disorders.
AR pp. 39-41.
Before proceeding to the fourth step the ALJ made his findings
on the plaintiff’s credibility and residual functional capacity
(“RFC”).

Based

on

his

review

of

all

the

evidence

the

ALJ

determined that the plaintiff had the residual functional capacity
to perform a full range of work at all exertional levels,8 but had

7

Plaintiff had a history of alcohol dependence and marijuana
abuse. In October 2007 the plaintiff was hospitalized twice for
substance abuse/mental health treatment, and discharged for followup treatment at the Baton Rouge Mental Health Center. AR pp. 183202.
8

There is no objective evidence in the record that the
plaintiff had any physical, exertional limitations.
Plaintiff
(continued...)
3

nonexertional limitations as a result of his mental impairments
which limited him to work involving simple, routine, repetitive
tasks.

AR p. 41.

With regard to credibility, the ALJ found that

the plaintiff’s statements about the intensity, persistence and
limiting effects of his impairments were not credible to the extent
they were inconsistent with this RFC.
testimony

of

vocational

expert

AR p. 42.

Richard

D.

Based on the

Corbin,

the

ALJ

determined that with this RFC the plaintiff would be capable of
the maintenance, janitorial work he had performed in the past.
Therefore, prior to on October 10, 2009, the plaintiff was able to
perform past relevant work and was not disabled at the fourth step.
AR pp. 43, 80-81.
After the ALJ’s partially favorable decision the plaintiff
sought review from the Appeals Council, claiming that the ALJ erred
in finding that he was not disabled prior to October 10, 2009.

The

Appeals Council denied the plaintiff’s request for review and on
February 1, 2011 affirmed the ALJ’s decision.

Thus, the ALJ’s

findings constituted the final decision of the Commissioner.
pp. 3-5.

AR

Plaintiff then filed this petition for judicial review

challenging

the

Commissioner’s

determination

8

that

he

was

not

(...continued)
testified at the hearing that he was not seeing or being treated by
any medical doctors for physical health problems. AR pp. 51-52.
Furthermore, Dr. Douglas Casey performed a consultative examination
on May 14, 2008. The results of his physical examination were all
within normal limits. AR pp. 238-43.
4

disabled before October 10, 2009.
Standard of Review
Under § 405(g), judicial review of a final decision of the
Commissioner denying disability and SSI benefits is limited to two
inquiries: (1) whether substantial evidence exists in the record as
a whole to support the Commissioner’s findings, and (2) whether the
Commissioner’s final decision applies the proper legal standards.
Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Perez v.
Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).

If substantial

evidence supports the Commissioner’s findings, they are conclusive
and must be affirmed.

Richardson v. Perales, 402 U.S. 389, 91

S.Ct. 1420, 1422 (1971); Martinez v. Chater, 64 F.3d 172, 173 (5th
Cir. 1995).

Substantial evidence is that which is relevant and

sufficient for a reasonable mind to accept as adequate to support
a conclusion.

It is more than a mere scintilla and less than a

preponderance.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.

1994); Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).

A

finding of no substantial evidence is appropriate only if no
credible
decision.

evidentiary

choices

or

medical

findings

support

Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

the
In

applying the substantial evidence standard the court must review
the entire record as whole, but may not reweigh the evidence, try
the issues de novo, or substitute its judgment for that of the
Commissioner,

even

if

the

evidence
5

weighs

against

the

Commissioner’s decision.

Newton v. Apfel, 209 F.3d 448, 452 (5th

Cir. 2000). Conflicts in the evidence are for the Commissioner and
not the court to resolve.

Masterson v. Barnhart, 309 F.3d 267, 272

(5th Cir. 2002).
If

the

Commissioner

fails

to

apply

the

correct

legal

standards, or provide a reviewing court with a sufficient basis to
determine that the correct legal principles were followed, it is
grounds for reversal.

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th

Cir. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981);
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A claimant has the burden of proving that he or she suffers
from a disability, which is defined as a medically determinable
physical or mental impairment lasting at least 12 months that
prevents

the

activity.

claimant

from

engaging

in

substantial

20 C.F.R. § 404.1505 and § 416.905.

gainful

The regulations

require the ALJ to apply a five step sequential evaluation to each
claim for benefits.

20 C.F.R. § 404.1520 and § 416.920.

In the

five step sequence used to evaluate claims the Commissioner must
determine

whether:

substantial

gainful

(1)

the

claimant

activity;

(2)

is

the

currently

claimant

engaged

has

a

in

severe

impairment(s); (3) the impairment(s) meets or equals the severity
of a listed impairment in Appendix 1 of the regulations; (4) the
impairment(s) prevents the claimant from performing past relevant
work; and, (5) the impairment(s) prevents the claimant from doing

6

any other work.

Masterson, 309 F.3d at 271.

Listed impairments are descriptions of various physical and
mental illnesses and abnormalities generally characterized by the
body system they affect.
several

specific

results.

Each impairment is defined in terms of

medical

signs,

symptoms,

or

laboratory

test

For a claimant to show that his impairment matches a

listed impairment he must demonstrate that it meets all of the
medical criteria specified in the listing.

An impairment that

exhibits only some of the criteria, no matter how severely, does
not qualify.

Sullivan v. Zebley, 493 U.S. 521, 529-32, 110 S.Ct.

885, 891-92 (1990); 20 C.F.R. § 404.1525 and § 416.925.
The burden of proving disability rests on the claimant through
the first four steps. At the fourth step the Commissioner analyzes
whether the claimant can do any of his past relevant work.

If the

claimant shows at step four that he or she is no longer capable of
performing

past

relevant

work,

the

burden

shifts

to

the

Commissioner to show that the claimant is able to engage in some
type of alternative work that exists in the national economy.
Myers, supra.

If the Commissioner meets this burden the claimant

must then show that he or she cannot in fact perform that work.
Boyd, 239 F.3d at 705.
Analysis
Plaintiff argued that three errors were made by the ALJ which
require reversal and remand for a proper evaluation of his claim
7

for benefits covering the time period from October 1, 2007 through
October 9, 2009: (1) the ALJ’s finding at step three is not
supported by substantial evidence as the record shows the plaintiff
meets

Listing

12.05C.;

(2)

the

ALJ’s

credibility

finding

is

inadequate and not supported by substantial evidence; and, (3) the
ALJ improperly rejected the opinions of the plaintiff’s treating
physician, Dr. Pamela J. Parsons.
Careful

review

of

the

administrative

record

as

a

whole

demonstrates that the claims of reversible error are without merit,
and that substantial evidence supports the final decision of the
Commissioner that the plaintiff was not disabled from October 1,
2007 through October 9, 2009.
1.

Plaintiff failed to demonstrate that his impairment meets
the requirements of Listing 12.05C, and the ALJ’s finding
at step three was supported by substantial evidence.

Plaintiff argued that the ALJ should have found he was
disabled under Listing 12.05C. for two reasons: (1) uncontradicted
evidence that his IQ scores fall within the range stated in the
listing; and, (2) the existence of another mental impairment
imposing an additional and significant work-related limitation - a
schizoaffective disorder.

Plaintiff asserted that his functional

deficits began before the age of 22, noting that he attended
special education classes and his highest level of education was
eighth grade.

Plaintiff acknowledged evidence relied on by the

Commissioner which showed that he did not have deficits in adaptive
8

functioning prior to age 22, but cited other evidence which he
contends establish the diagnostic description of the listing.

In

addition, the plaintiff argued that it was error for the ALJ to
rely on and give significant weight to the testimony of the medical
expert, Tommy T. Stigall, PhD.
The criteria that must be satisfied for Listing 12.05C. are as
follows:
12.05 Mental Retardation: Mental retardation refers to
significantly subaverage general intellectual functioning
with
deficits
in
adaptive
functioning
initially
manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the
impairments before age 22.
The required level of severity for this disorder is met
when the requirements in A,B,C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function.
Both the plaintiff and the Commissioner cited the Fifth
Circuit decision in Randall v. Astrue, 570 F.3d 651 (5th Cir.
2009).

In this case the Fifth Circuit held that to establish

disability under Listing 12.05C., a claimant has the burden of
first demonstrating that his impairment satisfies the introductory
paragraph’s diagnostic description, and then showing the severity
criteria of paragraph A, B, C or D.
not define “adaptive functioning.”

Listing 12.05C. itself does

However, the Fifth Circuit has

indicated that the definition of “adaptive activities” found in §
9

12.00(C)(1) should be used. Thus, adaptive functioning encompasses
adaptive activities “such as cleaning, shopping, cooking, taking
public transportation, paying bills, maintaining a residence,
caring

appropriately

for

your

grooming

and

hygiene,

telephones and directories, and using a post office.”9

using

Arce v.

Barnhart, 185 Fed.Appx. 437 (5th Cir. 2006)(unpublished), citing
also, Morris v. Dretke, 413 F.3d 484, 487 (5th Cir. 2005).
Neither party disputes the evidence in the record which
demonstrates that the plaintiff meets the requirements of the first
part

of

paragraph

C.

Plaintiff’s

IQ

tests

established

a

performance IQ score of 69 on the WAIS-III test administered as
part of an evaluation by clinical psychologist Fred L. Tuton on
June 11, 2008.

AR p. 245-50.10

Furthermore, as determined by the

ALJ at step two, the plaintiff has a severe mental impairment of
schizoaffective disorder. Plaintiff asserted, and the Commissioner
did not contest, that this satisfies the “other mental impairment”
requirement needed to meet the second part of paragraph C.11

9

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(1).

10

Under the regulations, where the verbal, performance and
full scale IQs are provided in the Wechsler series, the
Commissioner uses the lowest of the three in conjunction with
Listing 12.05.
20 C.F.R. Ch. III, Pt. 404, Subpt. P, App.1,
12.00D.6.c.
In this case the plaintiff’s other scores were a
verbal score of 75 and a full scale score of 70.
11

Record document number 8, Plaintiff Memorandum in Support,
p. 9. The Fifth Circuit has not yet addressed whether a finding at
step two that an impairment is severe is the equivalent of the
(continued...)
10

Therefore,
established

the

determinative

the

substantive

issue

is

whether

requirements

of

the
the

plaintiff
diagnostic

description in the introductory paragraph of the listing, which
requires

that

a

claimant

at

least,

“(1)

have

significantly

subaverage general intellectual functioning; (2) have deficits in
adaptive behavior; and (3) have manifested deficits in adaptive
behavior before age 22.”
Plaintiff’s

Randall, 570 F. 3d at 661.

arguments

that

his

impairments

satisfy

the

diagnostic description of Listing 12.05 are not supported by the
record.

Plaintiff initially argued that the IQ test scores in the

range provided by the listing, and his limited eighth grade
education with enrollment in special education, satisfied the
listing’s diagnostic description.12

However, in support of this

argument the plaintiff merely cited cases which state that there is
a presumption that IQ remains stable over time, and that neither a
formal diagnosis of mental retardation nor IQ tests conducted
before the age of 22 are required to meet the requirements of
Listing 12.05C. None of these cases hold or support the conclusion
that the mere existence of IQ scores which satisfy the first part

11

(...continued)
“significant work-related limitation of function” requirement of
the second part of paragraph C of 12.05. Henderson v. Astrue, 2008
WL 269450 (N.D. Tex. Jan. 30, 2008). Since the Commissioner did
not argue that the plaintiff’s severe mental impairment does not
satisfy the second requirement of paragraph C, for purposes of this
ruling the court accepts that it does so.
12

Plaintiff Memorandum in Support, pp. 9-11.
11

of

paragraph

C,

along

with

a

limited

or

special

education,

establish that the impairment satisfies all the elements of the
diagnostic description.13

Even if this evidence established the

first element of the diagnosis - significantly subaverage general
intellectual functioning - the plaintiff failed to explain or cite
any

authority

to

show

that

such

evidence

also

demonstrates

deficiencies in adaptive functioning initially manifested during
the developmental period, that is, onset of the impairment before
age 22.
Plaintiff focused more on these two elements in his reply
memorandum,

citing

evidence

in

the

record

which

he

argued

established that he had deficits in adaptive functioning before age
22. Plaintiff cited evidence that: (1) he had poor academic skills
and was still in fourth grade and special education at age 16;14 (2)

13

Such a conclusion would also be contrary to Randall, in
which the court emphasized that a claimant must satisfy the
diagnostic description’s substantive requirements independently of
the severity criteria, and noted with approval the following
language from a Seventh Circuit case:
An IQ between 60 and 70 is insufficient, even with the
presence of some impairment, to establish disability per
se on grounds of mental retardation. Rather the key term
in the introductory paragraph of section 12.05 of the
regulation, so far as bears on this case, is deficits in
adaptive functioning.(internal quotations omitted).
Randall, 570 F.3d at 660, citing, Novy v. Astrue, 497 F.3d
708, 709-10 (7th Cir. 2007).
14

Plaintiff stated at the administrative hearing and in other
documents that the highest grade he attended was eighth grade and
he entered the Job Corps at 16. AR pp. 72, 150, 348, 351. This
(continued...)
12

his treating doctor noted a lack of ability to converse in a clear,
linear fashion which would make communicating in the workplace very
difficult;

and,

(3)

notations

from

examining

physicians

of

destructive, aggressive and violent behavior, illogical thought
processes, psychosis, hallucinations and paranoia.15
argued

that

the

evidence

relied

on

by

the

Plaintiff

Commissioner

was

isolated, reflected abilities in 2008 rather than prior to age 22,
and for various other reasons should not be credited.

In effect

the plaintiff argued that the evidence weighs against the ALJ’s
finding, and that the court should reweigh the evidence and try the
third step issues de novo.

The court cannot do this on judicial

review. Rather, the court’s only inquiries are whether the correct
legal standards were applied and whether substantial evidence
supports the ALJ’s conclusions.
A review of the record as a whole and the ALJ’s decision shows
the record contains substantial evidence that the plaintiff did not
have deficits in adaptive functioning before age 22, and did not
satisfy the criteria for disability under Listing 12.05C.
39-41.

AR pp.

Stigall, the medical expert who testified at the hearing,

stated it was his opinion that the plaintiff’s impairments did not
meet or equal a listed impairment.

He specifically analyzed

14

(...continued)
obviously contradicts any statement that the plaintiff was in
fourth grade until age 16. AR p. 238.
15

Plaintiff cited, AR pp. 72, 74, 185, 206-07, 238, 247, 331.
13

Listings 12.03, 12.04, 12.05C., 12.06 and 12.09 and stated that the
plaintiff’s impairments did not meet or equal them.
66-67.

AR pp. 52-54,

With regard to Listing 12.05C., Stigall based his opinion

on Tuton’s evaluation and interpretation of the tests results.
Tuton did not diagnose the plaintiff with mental retardation.
Based on the tests results and his examination, Tuton’s diagnosis
was borderline intellectual functioning - not mental retardation.
Stigall also stated that doctors’ notations of the plaintiff’s
multiple self-contradictions and lack of ability to communicate in
a clear, linear fashion, were most likely a manifestation of the
plaintiff’s schizoaffective disorder.16
The

record

also

contained

AR pp. 64-65.

evidence

that

the

plaintiff’s

academic deficiencies were primarily related to difficulties in
reading,

but

he

had

good

comprehension

and

writing

skills.

According to the plaintiff, after he left school he was in the Job

16

Plaintiff acknowledged that the ALJ is entitled to rely on
a medical expert’s testimony, but argued that it was error for the
ALJ to rely on Stigall’s testimony because he did not review
Tuton’s report prior to the hearing. Plaintiff failed to explain
how this fact resulted in prejudice/reversible error in the ALJ’s
analysis at the third step. Moreover, the record reflects that
Stigall reviewed Tuton’s evaluation during the hearing, and that
the plaintiff’s representative was able to fully question Stigall
on the report and his opinions based on the report. AR pp. 55-70.
“Procedural perfection in administrative proceedings is not
required” so long as “the substantial rights of a party have not
been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988);
Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988).
14

Corps for two years and learned how to operate heavy equipment.17
Plaintiff also reported that he was able to prepare his own meals,
clean the house, wash dishes, shop for groceries, attend church and
use

public

transportation.

In

a

report

of

a

November

2007

psychiatric evaluation, it was noted that some of the plaintiff’s
strengths were his participation in hobbies and social activities,
maintaining employment, and the ability to adapt to stressful life
circumstances.

AR pp. 188, 189, 196, 235, 242, 248, 269, 348.

The above cited evidence is more than substantial evidence to
support the conclusion that the plaintiff did not satisfy the
listing

requirement

of

deficiencies

in

adaptive

functioning

initially manifesting before age 22, and that he was not disabled
under Listing 12.05C.
2.

The ALJ properly evaluated the plaintiff’s credibility
and sufficiently explained the reasons for the finding,
which was supported by substantial evidence.

The ALJ must consider a claimant’s subjective complaints, but
may find that those complaints are not credible or are exaggerated
in light of the objective medical and other evidence of record,
17

Plaintiff argued that the Commissioner provided no evidence
that he was able to successfully acquire skills as a heavy
equipment operator, and failed to explain how his inability to move
past fourth grade at age 16 did not indicate intellectual or
adaptive limitations. Record document number 11, Plaintiff Reply
Memorandum, p. 4. At the third step it is the plaintiff’s burden not the Commissioner’s burden - to establish that his impairment
meets all of the medical criteria specified in the listing. An
impairment that exhibits only some of the criteria, no matter how
severely, does not qualify. Sullivan, supra.
15

such as daily activities and medications.

The ALJ is not required

to give subjective evidence precedence over objective evidence.
Anthony

v.

Sullivan,

954

F.2d

289,

295-96

(5th

Cir.

1992);

Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Villa v.
Sullivan,

895

F.2d

1019,

1024

(5th

Cir.

1990).

The

ALJ’s

evaluation of the claimant’s credibility is entitled to deference
and must be upheld if it is supported by substantial record
evidence.

Id.

Plaintiff’s argument can essentially be summarized as follows:
there

is

other

evidence

in

the

record

which

supports

his

credibility and weighs against the ALJ’s finding. However, because
the ALJ’s credibility determination was supported by substantial
evidence,

that

there

is

also

evidence

which

supports

his

credibility is not a basis for reversing the ALJ’s decision.18
The ALJ cited the correct standards governing the credibility
determination, and then correctly applied those principles to the

18

Judicial review under § 405(g) does not require that all of
the evidence support the ALJ’s findings.
Even if substantial
evidence supports the claimant’s position this is not a ground for
reversal. As long as the finding or decision is supported by
substantial evidence in the record as a whole it must be affirmed.
§ 405(g); see, Carroll v. Dept. Health, Ed. and Welfare, 470 F.2d
252, 254, n. 4 (5th Cir. 1972); Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001); Palomino v. Barnhart, 515 F.Supp.2d 705, 710
(W.D. Tex. 2007), citing, Chambliss v. Massanari, 269 F.3d 520, 522
(5th Cir. 2001)(when record as a whole indicates a mixed collection
of evidence regarding plaintiff's impairments and their impact,
Commissioner’s decision upheld as long as there is substantial
evidence to support it).
16

record evidence.

AR p. 41. It is apparent from the ALJ’s written

decision that the ALJ considered all the evidence.

For example,

the ALJ discussed the plaintiff’s testimony, daily activities,
records and treatment notes from the plaintiff’s hospitalizations
in 2007 and follow-up care through the Baton Rouge Mental Health
Center, and reports from the plaintiff’s treating doctors.

After

considering the evidence the ALJ concluded that the plaintiff’s
statements about the intensity, persistence and limiting effects of
his impairments were credible, but only to the extent consistent
with his residual functional capacity.

The ALJ explained several

reasons for this conclusion, such as the plaintiff’s testimony and
statements about his daily activities, the fact that his last
employment ended because he was laid off rather than because of his
impairments, and improvements in the plaintiff’s condition after
treatment.19

This evidence is sufficient for a reasonable mind to

accept as adequate to support the ALJ’s conclusion that the
plaintiff was not entirely credible.
Therefore, with regard to the ALJ’s credibility assessment,
the plaintiff failed to demonstrate that the ALJ applied an
incorrect legal standard, or that the ALJ’s finding was supported
by less than substantial evidence.

19

This claim of reversible error

Initially, the plaintiff was going to the mental health
center every few weeks, but at the time of hearing he was going
every three months. AR pp. 50-51, 226. See also, AR pp. 73, 16769, 171, 224-30, 238-39, 245-46, 327-28, 333-34, 336, 347-51.
17

is without merit.
3.

The ALJ did not improperly reject the opinions of the
plaintiff’s treating physician.

Plaintiff’s argument that the ALJ improperly rejected Dr.
Parsons’

opinions

focused

on

Dr.

Parsons’

mental

residual

functional capacity assessments completed on April 27, 2009 and
August 14, 2009.

AR pp. 352-363.

Plaintiff acknowledged that the

ALJ gave reasons for not crediting Dr. Parsons’ opinions, but
argued that the ALJ did not consider each of the factors required
by the regulations and the Fifth Circuit decision in Newton.
Plaintiff essentially argued that the ALJ’s error was not harmless,
because if the ALJ had properly analyzed and weighed the opinions
the RFC determination and the outcome at the third step would have
been different.
It is well established that a treating physician’s opinions
are not conclusive, and
good cause is shown.

may be assigned little or no weight when

Good cause may permit the ALJ to discount the

weight of a treating doctor where that evidence is conclusory,
unsupported

by

medically

acceptable

clinical,

laboratory

or

diagnostic techniques, or is otherwise unsupported by the evidence.
Newton, 209 F.3d at 455-56.

It is equally well established that

the ALJ has the authority and duty to weigh the evidence, and on
judicial review the court cannot reweigh the evidence.

The ALJ’s

“power

power

to

judge

and

weigh

evidence
18

includes

the

to

disregard,” and the court must uphold that determination if it is
supported by substantial evidence.

Greenspan v. Shalala, 38 F.3d

at 238.
Review

of

the

record

as

a

whole

demonstrates

that

the

plaintiff’s third claim of error is also without merit. The record
reflects

that

the

ALJ

cited

the

proper

legal

standard

considering the medical opinions of a treating physician.
42-43.

for

AR pp.

While the ALJ did not cite and specifically discuss each

Newton factor,20 the ALJ gave several reasons for not accepting Dr.
Parson’s

2009

assessments

of

the

plaintiff’s

mental

residual

functional capacity, namely, that the findings checked off by Dr.
Parsons were not supported by the clinic treatment records, and
they were also inconsistent with her previous assessment and the
assessment of Dr. Monnette.
The reasons given by the ALJ for discounting the restrictions
indicated in Dr. Parson’s 2009 reports are supported by the record.

20

The factors are length of treatment, frequency of
examination, nature and extent of the treatment relationship,
support of opinion afforded by medical evidence, consistency of
opinion with the record as a whole, and specialization of the
treating physician. Newton, 209 F.3d at 456. To the extent the
ALJ may have omitted discussion of a particular factor, the
plaintiff did not specify which factor the ALJ did not consider.
Moreover, the plaintiff failed to support his conclusory assertion
that he was prejudiced by the ALJ’s failure to conduct a proper
analysis under Newton. He did not explain how a different analysis
would have changed the conclusion that his impairment did not
satisfy the criteria of a listed impairment (third step), or the
ultimate finding that he was not disabled from October 1, 2007
through October 9, 2009.
19

Other than one brief notation in January 2009,21 the record did not
contain any clinic records of plaintiff’s treatment by Dr. Parsons
or other mental health personnel in 2009.

AR p. 324.

Dr. Parsons’

opinions in 2009 were also inconsistent with her assessment on July
31, 2008 and Dr. Monnette’s assessment done on November 5, 2007.
AR pp. 231-37, 332.

While the plaintiff pointed out several

excerpts from the treatment records which he contends support Dr.
Parsons’ restrictions, the same records contain other information
which supports the ALJ’s finding that the limitations imposed by
Dr. Parsons were unsupported.

Again, the fact that the plaintiff

cites some evidence in the record to support his position does not
change the fact that the ALJ had good cause not to credit Dr.
Parsons’ conclusory assessments done in April and August of 2009.
4.

The ALJ’s RFC determination and finding that
plaintiff was not disabled at the fourth step
supported by substantial evidence.

the
was

The residual functional capacity determination is needed at
the fourth step to decide whether the claimant can do any of his
past relevant work, and it is needed at the fifth step to decide
whether the claimant can adjust to other work in the national
economy.

20 C.F.R. § 404.1520(e) and § 416.920(e).

21

Thus, after

This notation stated that the plaintiff reported “he is
doing ok,” and his “appetite is intact.”
Plaintiff did report
restlessness and lack of sleep after discontinuing one of his
medications, but the record contained a notation to resume that
medication. AR p. 324.
20

concluding that the plaintiff was not disabled at the third step,
the ALJ correctly proceeded to evaluate the plaintiff’s residual
functional capacity. The ALJ found that prior to October 10, 2009,
despite his impairments, the plaintiff had the capacity to engage
in a full range of work at all exertional levels, but was limited
to simple, routine, repetitive tasks. This finding is supported by
substantial evidence.

The June 1, 2008 review and mental residual

functional capacity assessment by Joseph Kahler, PhD and Stigall’s
hearing testimony provide more than substantial evidence to support
the ALJ’s RFC determination.22

Based on this residual functional

capacity, vocational expert Corbin testified that the plaintiff
would be able to perform his past cleaning and janitorial work. AR
pp. 43, 80-81.

Therefore, the ultimate conclusion at the fourth

step that the plaintiff was not disabled from October 1, 2007
through October 9, 2009, is supported by substantial evidence and
must be affirmed.

Conclusion
The record as a whole demonstrates that the ALJ applied the
correct

legal

standards,

substantial evidence.

and

the

findings

are

supported

by

Therefore, under sentence four of 42 U.S.C.

§405(g), the final determination of the Commissioner of Social
Security Michael J. Astrue, that plaintiff Percy Parker was not

22

AR pp. 54-55, 251-67.
21

disabled prior to October 10, 2009, and denying his application for
disability and supplemental security income benefits prior to that
date, is affirmed and this action will be dismissed.
Baton Rouge, Louisiana, November 1, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

22