Taplin v. Astrue

Filing 18

RULING and CONSENT JUDGMENT regarding 1 Complaint filed by Andre Taplin ordering that the decision of the Commissioner denying benefits is AFFIRMED and that plaintiff's coplaint is DISMISSED with prejudice. Signed by Magistrate Judge Docia L Dalby on September 14, 2012. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ANDRE TAPLIN
VERSUS

CIVIL ACTION NO. 11-516-DLD

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY

CONSENT CASE

RULING
Plaintiff seeks judicial review of a final decision of the Commissioner denying his
claim disability income benefits (DIB). In making that final decision, the Commissioner
reached the fifth and final step of the five-step sequential disability analysis set forth in 20
C.F.R. §§ 404.1520(b)-(f) & 416.920(b)-(f),1 finding that the plaintiff had a severe
impairment of degenerative disc disease and degenerative joint disease but that these
impairments, singularly or in combination, did not meet or medically equal a listing. The
Commissioner also determined that the plaintiff was unable to perform his past relevant
work as a post office mail handler, scaffold builder help, and forklift/puller, but had the
residual functioning capacity2 to perform the exertional requirements of light work with some
limitations.
In reaching this decision, the ALJ considered the medical evidence, the testimony
of the claimant, and the VE testimony in finding that plaintiff would be able to perform the
requirements of representative occupations such as motel cleaner and mial clerk in an

1

2

See,e.g., Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).

Residual functional capacity (“RFC”) is an assessment of an individual’s ability to do sustained workrelated physical and mental activities in a work setting on a regular and continuing basis, i.e., 8 hours a day,
for 5 days a week, or an equivalent work schedule. Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001), citing
SSR 96-8p.

office setting. (TR 22-23) Applying the Medical-Vocational Rules as a guide and framework
for decisionmaking, the Commissioner determined that significant jobs existed in the
national economy which plaintiff could perform despite the limitations in his RFC; therefore,
plaintiff was not disabled within the meaning of the Social Security Act. (TR 15-23)
Background
Plaintiff protectively filed for Title II disability insurance benefits (“DIB”) on April 21,
2009, alleging a disability onset date of April 1, 2005, due to spinal stenosis, degenerative
joint disease, “knees, ankles, and big toe/gout/hbp/cholesterol/hyperparathyroidism.” (TR
126.

Plaintiff's insured status was through December 31, 2009. This claim was denied

initially, and after plaintiff filed a timely request for a hearing, the hearing subsequently was
held on March 24, 2010, which resulted in an unfavorable decision on July 24, 2010. The
plaintiff timely requested a review of this decision, and the Appeals Council denied the
request for review on May 26, 2011, making the ALJ’s decision the final decision of the
Commissioner.
GOVERNING LAW
In reviewing the Commissioner's decision to deny benefits, the Court is limited to a
determination of whether the Commissioner's decision was supported by substantial
evidence existing in the record as a whole and whether the Commissioner applied the
proper legal standards. E.g., Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). In
applying the "substantial evidence" standard, the Court must carefully scrutinize the record
to determine if, in fact, substantial evidence supporting the decision does exist, but the
Court may not reweigh the evidence in the record, nor try the issues de novo, nor substitute

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its judgment for the Commissioner's even if the evidence preponderates against the
Commissioner's decision. Id. Substantial evidence means more than a scintilla, but less
than a preponderance, and is such relevant evidence as a reasonable mind might accept
to support a conclusion. Id. A finding of "no substantial evidence" will be made only where
there is a conspicuous absence of credible choices or an absence of medical evidence
contrary to the claimant's position. Id.
However, the substantial evidence standard of review is not a mere rubber stamp
for the Commissioner’s decision, and it involves more than a search for evidence
supporting the Commissioner’s findings. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir.
1985). The Court must scrutinize the record and take into account whatever fairly detracts
from the substantiality of evidence supporting the Commissioner’s findings. Id.
To determine whether a disability exists for purposes of the Act, the Commissioner
must weigh the following elements of proof: (1) objective medical facts; (2) diagnoses and
opinions of treating and examining physicians; (3) the claimant’s subjective evidence of
pain and disability; and (4) the claimant’s age, education, and work history. Wren v.
Sullivan, 925 F.2d 123, 126 (5th Cir. 1991).
At steps one through four of the five-step sequential analysis, the overall burden of
proving disability under the Social Security Act rests on the claimant. Jones v. Heckler, 702
F.2d 616, 620 (5th Cir. 1985). The determination of a claimant’s residual functional capacity
(“RFC”) between steps three3 and four is exclusively reserved for the Commissioner rather
3

Listing impairments are descriptions of various physical and mental illnesses and abnormalities
generally characterized by the body system they affect. Each impairment is defined in terms of several specific
medical signs, symptoms, or laboratory test results. At the third step, for a claimant to show that his
impairment matches a Listing 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

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than for the claimant’s physicians. If a claimant proves that he no longer is able to work
in his prior job, then the burden shifts to the Commissioner to show that there is some other
type of substantial gainful activity that the claimant can perform. Id. Thus, in cases such
as this one where the Commissioner determines that the claimant cannot perform his past
relevant work and accordingly reaches the fifth step of the five-step disability sequential
analysis,4 the Commissioner bears the burden of establishing that there is other work in the
economy that the claimant can perform. Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.
1999). If the Commissioner adequately points to potential alternative employment, the
ultimate burden of persuasion then returns to the claimant to prove his inability to perform
those jobs. Id.; Kraemer v. Sullivan, 885 F.2d 206 (5th Cir. 1989).
ISSUES
The issue before this Court is whether the Commissioner’s finding that Andre Taplin
is not disabled is supported by the substantial evidence and was reached by applying the
proper legal standards. 42 U.S.C. § 405(g).
Pro se plaintiff argues for remand based on two statements of error:
1)

That the ALJ improperly considered his subjective complaints
of pain or improperly discounted his credibility; and

2)

That the ALJ improperly weighed the opinion of his treating physician, giving
more weight to a non-treating physician.

v. Zebley, 493 U.S. 521, 529–32, 110 S.Ct. 885, 891–92, 107 L.Ed.2d 967 (1990); 20 C.F.R. § 404.1525.
4

The Commissioner uses a five-step sequential analysis to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful activity (i.e., whether the claimant is
working); (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or
equals the severity of an impairment listed in 20 C.F.R., Part 404, Subpart B, Appendix 1; (4) whether the
impairment prevents the claimant from doing past relevant work (i.e., whether the claimant can return to his
old job); and (5) whether the impairment prevents the claimant from doing any other work. Perez v. Barnhart,
415 F.3d 457, 461(5th Cir.2005); Masterson v. Barnhart, 309 F.3d 267,271-72 (5th Cir.2002); Newton v. Apfel,
209 F.3d 448, 453 (5th Cir.2000). See, also, 20 C.F.R. § 404.1520.

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(rec.doc. 14)
DISCUSSION AND ANALYSIS
Issue 1 - Consideration of subjective complaints & credibility
In the Fifth Circuit, allegations of pain must be corroborated by objective medical
evidence. Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991); Houston v. Sullivan, 895
F.2d 1012, 1016 (5th Cir. 1989). Also, it is the ALJ’s duty to make affirmative findings
regarding a plaintiff's subjective complaints when making a credibility determination. Falco
v. Shalala, 27 F.3d 160, 163 (5th Cir.1994) (citing Scharlow v. Schweiker, 655 F.2d 645,
648- 49 (5th Cir.1981))"The ALJ must weight the objective medical evidence and assign
articulated reasons for discrediting the claimant's subjective complaints." Pineda v. Astrue,
2008 WL 3341022 (5th Cir. 2008); Falco, at 163.
Further, the ALJ is not required to give subjective complaints precedence over the
objective medical evidence.

Carry v. Heckler, 750 F.2d 479, 485 (5th Cir. 1985).

Otherwise, every claimant would receive benefits and there would be no need for the
determination process. To the contrary, a claimant's subjective complaints may be
discounted by an ALJ if they are inconsistent with other evidence in the record. Dunbar v.
Barnhart, 330 F. 3d, 670, 672 (5th Cir. 2003). An ALJ may find, from the medical evidence,
that an applicant's complaints are not to be credited or are exaggerated, too. Johnson,
supra, 767 F.2d at 182. In judging a claimant's credibility, the ALJ also can consider such
things as the claimant's participation in daily activities and household chores, and the
medications the claimant is taking. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991);
Reyes v. Sullivan, 915 F.2d 151, 154-55 (5th Cir. 1990).

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A review of the ALJ's determination reflects that while the ALJ found that plaintiff's
medically determinable impairments could "reasonably be expected to produce the alleged
symptoms," the plaintiff's "statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (TR 22)
Plaintiff complains that the ALJ did not properly consider his allegations of
“excruciating pain in” his “back, leg, feet and shoulder;” his allegations that the pain at night
is so unbearable that he can only sleep for 3 to 4 hours at a time; his allegations that he
has “chronic low back pain but there are often times” of “debilitating periods of low back
pain” that “last anywhere from three days to weeks at a time;” or his allegations that his
combination of impairments have a “very profound impact on” his “daily living.” (rec.doc.
14) Plaintiff also testified that his legs swell by the end of the day; standing aggravates his
knee pain, and sitting makes his back stiff. (TR 20)
In contrast to plaintiff's allegations of excruciating or debilitating pain, however, the
record reflects that plaintiff also testified that he was able to take care of his personal
needs, helps take care of his mother, and transports her to all of her doctor's appointments.
Plaintiff stays with his mother three or four hours each day, shops for groceries three times
a week, and can perform light housework such as folding clothes. He drives, can walk onefourth mile before needing to stop, goes to the YMCA two days a week to exercise, and
cooks complete meals each day. Plaintiff also testified that he visits with friends and
relatives or visits with friends at his cousin's Daquiri Shop to play dominos. He plays cards
and shoots pool occasionally, and uses a knee brace when walking and exercising. (TR
19-21).
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The record reflects that, in addition to considering plaintiff's testimony, the ALJ also
considered the relevant medical evidence in reaching his credibility determination. For
example, the ALJ acknowledged that the plaintiff was treated by Dr. Richard Schissler of
the VA Medical Clinic for “degenerative joint disease of the right ankle and bilateral knees,
lumbar spine stenosis, lower back pain, bilateral plantar fascitis, and pes planus.” (TR 18)
The ALJ discussed the x-rays which showed mild degenerative joint disease in the right
ankle and both knees, the ankle brace for gout flare-ups, and the fact that his feet
misalignment was correctable by manipulation. (Id.) The ALJ also discussed the opinion
of Dr. Johnson, the consultative examiner. Dr. Johnson reported that plaintiff stated he had
two left knee surgeries in 1987 and 1998, and a right knee surgery in 2001. Dr. Johnson's
examination in July, 2009, revealed a normal range of motion of upper and lower
extremities with no joint tenderness or swelling, a normal gait and station, and a mild
lumbar tenderness with minimal spasms and normal range of motion. (TR 19) The ALJ
also discussed the August, 2009, examination report of plaintiff's VA orthopedist, Dr. Henry
Beinert, who found that plaintiff was capable of holding a “non-lifting sedentary occupation”
with an alternating sit and stand requirement. (TR 380, 19)5
Thus, it is clear that the ALJ properly considered the plaintiff’s subjective complaints
in the context of the objective medical evidence6 and plaintiff's testimony regarding his
activities of daily living. The ALJ's analysis of the objective evidence as it related to

5

The ALJ also discussed the opinion of Dr. Schissler, who determined in June, 2010, that plaintiff was
"unemployable in any capacity." (TR 183)
6

The law in the Fifth Circuit is that while an ALJ must consider a claimant's subjective complaints, he
is allowed to examine the objective medical evidence to test the claimant's credibility. Johnson v. Heckler,
767 F.2d 180, 182 (5th Cir. 1985).

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plaintiff's complaints underscored his determination of plaintiff's credibility as intended
under applicable rulings and regulations. The countervailing evidence in the medical
records, which is at odds with plaintiff's testimony regarding the severity and frequency of
his pain and limitations, provides sufficient evidence to support the ALJ's credibility
determination regarding plaintiff's complaints, and the ALJ adequately explained his
reasons for discounting plaintiff's subjective complaints about his symptoms. Falco, at 164.
Plaintiff’s arguments are without merit.
Issue 2 - Treating Physician Rule
The governing law in the Fifth Circuit is that the opinions, diagnoses, and medical
evidence of treating physicians who are familiar with a plaintiff's condition should be
accorded considerable weight in determining disability. Loza v. Apfel, 219 F.3d 378, 395
(5th Cir. 2000). An ALJ may give less weight to a treating physician's opinion only when
there is good cause shown to the contrary. Id. Good cause includes instances where the
physician's evidence is conclusory, unsupported by medically acceptable clinical,
laboratory, or diagnostic techniques, or otherwise unsupported by the record. Hospital
Service District No. 1 Of The Parish Of LaFourche v. Thompson, 2004 WL 192047, *3 (E.D.
La. Aug. 25, 2004). Also, the general rule is that a treating physician's opinion on the
nature and severity of a claimant's impairments will be given "controlling weight" only if it
is well supported by medically acceptable clinical and laboratory diagnostic techniques, and
is not inconsistent with other substantial evidence. Newton v. Apfel, 209 F.3d 448, 455 (5th
Cir. 2000). If the treating physician's opinion is conclusory, unsupported by medically
acceptable clinical, laboratory, or diagnostic tests or otherwise unsupported by the
evidence, the ALJ has good cause for discounting the treating physician's opinion in favor
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of other experts, not giving the opinion considerable weight. Myers v. Apfel, 238 F.3d 617,
621 (5th Cir. 2001), Newton, 209 F. 3d at 456 (citing Brown v. Apfel, 192 F.3d 492,500 (5th
Cir. 1999).
Also, the regulations and circuit law are clear that while it is within the ALJ's
discretion to assign greater or lesser weight to the medical evidence, it is not within his
discretion to reject the opinion of a treating physician without a detailed analysis7 of the
treating physician's view. 1920 C.F.R. § 404.1527(d)(2), SSR 96-2p. See also, Reynolds
v. Astrue, 2010 WL 583918, at *7 (N.D. Miss. 2010). However, that detailed analysis is
only required in the absence of competing first-hand medical evidence. Newton, at 456458.
Plaintiff complains that the ALJ gave greater weight to the consultative examiner's
opinion, and he argues that the consultative examiner gave him an inadequate
examination. Other than this conclusory statement, however, plaintiff points to no evidence
that the examination was inadequate. Plaintiff argues that while Dr. Johnson found mild
spasms, he suffers from substantial spasms, and that his range of motion was limited, not
normal. Plaintiff further argues that Dr. Schissler's opinion that he was unemployable was
a medical decision and should have been given greater weight than Dr. Johnson's opinion.
However, the Commissioner is not bound by a treating physician's conclusion that
the claimant is disabled, as the question of whether an individual is disabled for purposes
of the Social Security Act is a matter that can be determined only by the Commissioner.
Carry v. Heckler, 750 F. 2d 479, 484 n.13 (5th Cir. 1985); Barajas v. Heckler, 738 F.2d 641,
7

4"Detailed analysis" refers to the six factors set forth in § 404.1527(e) and explicitly applies only to
medical opinions, not disability opinions, as those opinions are reserved for the Commissioner. See Frank
v. Barnhart, 326 F. 3d 618 (5th Cir. 2003).

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645 ( 5th Cir. 1984). Further, the Commissioner acts well within his discretion when he
discounts an opinion of a treating physician that is only conclusory in nature without any
supporting clinical or laboratory findings. Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.
1985); Jones v. Heckler, 702 F.2d 616, 621 ( 5th Cir. 1983); Oldham v. Schweiker, 660 F.
2d 1078, 1084 (5th Cir. 1981). In the final analysis, conflicts in the medical evidence are
to be resolved by the Commissioner, not by the courts. E.g.,Oldham, 660 F.2d at 1084.
Here, the opinion of Dr. Schissler to which plaintiff refers is a report in June 2010,
where Dr. Schissler stated that plaintiff was unemployable. There are three problems with
this report: 1) it is outside the relevant time period; and 2) it contradicts Dr. Schissler's later
report, the consultative examiner's report, and the orthopedist's report; and 3) it is a
conclusory statement without supporting clinical or laboratory findings.
The relevant time period for disability income benefits is from the date of onset, April
1, 2005, to the date last insured, December 31, 2009. As plaintiff's insured status expired
on December 31, 2009, plaintiff had to establish disability before or on that date. Dr.
Schissler's June, 2010, report, while it may be indicative of the deterioration of plaintiff's
condition, does not relate to the relevant time period. Moreover, the record evidence
indicates that Dr. Schissler later opined in August, 2010, that plaintiff was limited to
“nonlifting sedentary work as long as he can change position every 15 minutes . . . and
avoiding walking more than 2 blocks.” (TR 182) This later opinion is consistent with the
opinion of the orthopedist. Further, the court notes that the RFC assigned by the ALJ is
consistent with the limitations suggested in the orthopedist's opinion, not the consultative
examiner's opinion. Finally, neither plaintiff nor Dr. Schissler point to any clinical or
laboratory finding that supports the opinion that plaintiff is unemployable. In the final
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analysis, it is the Commissioner who determines whether or not plaintiff is disabled, and
good cause thus has been shown for the exception to the general "substantial weight" rule
in the Fifth Circuit, as there is substantial evidence to support the ALJ's decision regarding
the evidentiary weight assigned to Dr. Schissler's opinion.
Based on a review of the record and considering that the ALJ is afforded
considerable deference in making credibility determinations, the court finds that the ALJ's
decision that the claimant was not disabled under the applicable law and regulations should
be upheld. Although the ALJ did not reach a result that was favorable to the plaintiff, his
determination was well reasoned and supported by the substantial evidence in the record
and was reached using the proper legal standard.
CONCLUSION
Accordingly, for the reasons assigned, the decision of the Commissioner denying
DIB benefits will be affirmed, and the complaint of Andre Taplin will be DISMISSED, with
prejudice.
Signed in Baton Rouge, Louisiana, on September 14, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ANDRE TAPLIN
VERSUS

CIVIL ACTION NO. 11-516-DLD

MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY

CONSENT CASE

FINAL JUDGMENT
In accordance with written reasons assigned this date,
IT IS ORDERED, ADJUDGED AND DECREED that the decision of the
Commissioner denying benefits shall be and hereby is AFFIRMED and that plaintiff’s
complaint hereby is DISMISSED, with prejudice.
Signed in Baton Rouge, Louisiana, on September 14, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY