Thomas v. Commissioner of Social Security

Filing 15

RULING: Under sentence four of § 405(g) the final decision of the Commissioner is affirmed. Signed by Magistrate Judge Stephen C. Riedlinger on 4/28/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

STEVE WAYNE THOMAS
CIVIL ACTION
VERSUS
NUMBER 13-45-SCR
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Steve Wayne Thomas brought this action under 42
U.S.C. § 405(g) for judicial review of the final decision of
Carolyn

W.

Colvin,

Acting

Commissioner

of

Social

Security

(“Commissioner”) denying his applications for disability insurance
and supplemental security income benefits (“SSI”).
Based on the standard of review and the analysis which
follows, the Commissioner’s decision is affirmed.
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.
Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012); 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

evidentiary

decision.

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

Commissioner’s decision.

the

evidence

weighs

against

the

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

2

from a disability, which is defined as a medically determinable
physical or mental impairment lasting at least 12 months that
prevents

the

claimant

from

engaging

in

substantial

gainful

activity. 20 C.F.R. §§ 404.1505; 416.905. The regulations require
the ALJ to apply a five step sequential evaluation to each claim
for benefits.

20 C.F.R. §§ 404.1520; 416.920.

In the five step

sequence used to evaluate claims the Commissioner must determine
whether: (1) the claimant is currently engaged in substantial
gainful activity; (2) the claimant has a severe impairment(s); (3)
the

impairment(s)

meets

or

equals

the

severity

of

a

listed

impairment in Appendix 1 of the regulations;1 (4) the impairment(s)
prevents the claimant from performing past relevant work; and, (5)
the impairment(s) prevents the claimant from doing any other work.
Masterson, 309 F.3d at 271.
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 her past relevant work.

If the

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

1

Listed 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.
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; 416.925.
3

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 cannot in fact perform that work.

Boyd, 239

F.3d at 705.
Background and Claims of Error
Plaintiff was 53 years old at the time of the administrative
law judge’s (“ALJ”) decision.2

Plaintiff graduated from high

school and went to college for three years.

Plaintiff had been

employed as a mail handler clerk for the United States Postal
Service,

a

customer

service

representative

company, and a juvenile counselor and tutor.

for

a

rental

car

AR pp. 15-21, 128,

146, 149, 160, 166-69. In his applications for disability and
supplemental security income benefits, the plaintiff alleged that
he became disabled in January 2010 as a result of multiple physical
impairments

related

resulting pain.

to

diabetic

neuropathy,

back

injury

and

AR p. 159.

After his application was denied at the initial stage, the
plaintiff requested an ALJ hearing, after which the ALJ issued an

2

Plaintiff’s age placed him in the category of “closely
approaching advanced age.” 20 C.F.R. §§ 404.1563(d); 416.963(d).
4

unfavorable decision.

AR pp. 12-31.3

The ALJ found at the second

step that the plaintiff had a combination of severe impairments plantar fasciitis, diabetes mellitus, neuropathy, and degenerative
disc disease.

At the third step the ALJ specifically considered

two musculoskeletal listed impairments related to the plaintiff’s
conditions - Listing 1.02 and Listing 1.04 - and concluded that the
plaintiff’s severe impairments did not meet or medically equal
these listed impairments.

AR pp. 57, 60.

The ALJ then evaluated the plaintiff’s residual functional
capacity

(“RFC”)

to

determine

whether,

despite

his

severe

impairments, the plaintiff was able to do any of his past relevant
work or do other work in the national economy.4

The ALJ made a

finding that the plaintiff had the remaining ability to perform
sedentary work, except that he could only occasionally climb ramps,
stairs, ladders, ropes and scaffolds, stoop, kneel, and crouch, but
never crawl.5

AR p. 61.

Given this RFC, and based on the

3

Plaintiff exhausted his administrative remedies before
filing this action for judicial review. The ALJ’s decision is the
Commissioner’s final decision for purposes of judicial review.
4

Residual functional capacity is a measure of a claimant’s
capacity to do physical and mental work activities on a regular and
sustained basis. It is the foundation of the findings at steps
four and five. 20 C.F.R. § 404.1545; § 416.945.
5

“Sedentary work involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs
(continued...)
5

testimony of vocational expert John Yin, the ALJ concluded that the
plaintiff was able to engage in his past relevant work as a tutor,
counselor, and customer service representative. Therefore, the ALJ
found at the fourth step that the plaintiff was not disabled.

AR

pp. 18-23, 63.
In his appeal memorandum the plaintiff argued the following
administrative errors require reversal and remand under sentence
four of § 405(g): (1) the ALJ erred in according little weight to
the opinions of his treating physician Dr. Thad Broussard; (2) the
ALJ’s finding that he could return to his past relevant work is not
based on substantial evidence; and (3) the ALJ failed to consider
the impact of both severe and nonsevere impairments on his ability
to work.
Analysis
The ALJ did not err in weighing the evidence as a whole or the
opinions of Dr. Broussard.
Plaintiff’s primary argument is that the ALJ erred in weighing
the numerous medical reports and opinions of the doctors who
treated him, the doctor who performed a consultative examination
and

the

state

agency

consulting

physician,

Dr.

Charles

Lee.

Plaintiff focused on the ALJ’s determination to give little weight

5

(...continued)
are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” 20 C.F.R. §404.967(a);
§416.967(a).
6

to the reports and opinions of his treating orthopedic physician,
Dr. Broussard and great weight to the opinions of Dr. Stephen
Wilson,

the

orthopedic

doctor

who

examination on October 4, 2010.

performed

a

consultative

AR pp. 62-63.

The legal principles governing the review of a claim that the
ALJ erred in weighing the various doctors’ medical reports and
opinions are well-established.

Although the opinion and diagnosis

of a treating physician should generally be given considerable
weight in determining disability, it is well established that a
treating

physician’s

opinions

are

not

conclusive

and

assigned little or no weight when good cause is shown.

may

be

The ALJ may

discount the weight of a treating doctor’s medical opinion when it
is

conclusory,

unsupported

by

medically

acceptable

clinical,

laboratory or diagnostic techniques, or is otherwise unsupported by
the evidence.

Newton v. Apfel, 209 F.3d at 455-56.

An ALJ is free

to reject the medical opinion of any physician when the evidence
supports a contrary conclusion.

Bradley v. Bowen, 809 F.2d at

1057.
The regulations also state that when the ALJ finds the medical
opinion is not entitled to controlling weight, certain factors
should be considered in deciding how much weight to give the
opinion.

These factors include the length of treatment, the

consistency of the opinion with the record as a whole, and the
treating physician’s specialization.

7

20 C.F.R. §§ 404.1527©) and

(d); §§ 416.927©) and (d); SSR 96-2p;6 Newton, 209 F.3d at 456.
Nevertheless, the ALJ need not consider each of the factors where
there is competing first-hand medical evidence and the ALJ finds
that one doctor’s opinion is more well-founded than another. Id.,
at 458; Walker v. Barnhart, 158 Fed.Appx. 534 (5th Cir. 2005).
A medical source’s opinions on some issues are not medical
opinions, but are instead “opinions on issues reserved to the
Commissioner because they are administrative findings that are
dispositive of a case; i.e. that would direct the determination or
decision of disability.”

20 C.F.R. § 404.1527(d); § 416.927(d).

Thus, a treating source’s statement or opinion that the claimant is
“disabled” or “unable to work,” is not a medical opinion, but a
legal conclusion on an issue reserved to the Commissioner.

The

factors set out in the regulations apply only to medical opinions,
not

opinions

reserved

to

the

Commissioner.

20

C.F.R.

§

404.1527(d)(1)-(3); Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir.
2003).
The ALJ’s analysis and decision complied with the above law
and regulations.

In his decision the ALJ gave a detailed summary

of the medical evidence, reports and opinions, including those of
Dr. Broussard and Dr. Wilson.

After considering their opinions in

light of all the evidence, the ALJ gave little weight to Dr.

6

TITLES II AND XVI: GIVING CONTROLLING WEIGHT TO TREATING
SOURCE MEDICAL OPINIONS, 1996 WL 374188.
8

Broussard’s opinions, great weight to those of Dr. Wilson, and less
weight to the non-examining medical consultant, Dr. Lee.

In

reaching these conclusions the ALJ complied the relevant legal
standards.
Insofar as Dr. Broussard stated in his reports that the
plaintiff is “functionally disabled from gainful employment,”7 this
is not a medical opinion, but a legal conclusion on an issue
reserved to the Commissioner.

Therefore, the ALJ was not required

to accord the statement any special significance.

Because there

was competing first-hand medical evidence, the ALJ also was not
required to evaluate Dr. Broussard’s opinions using all the factors
in the regulations. Nevertheless, the ALJ adequately explained how
he weighed the opinions of Drs. Broussard, Wilson and Lee, and his
conclusions were supported by substantial evidence.

As explained

by the ALJ, Dr. Broussard’s statements on the plaintiff’s ability
to work and other limitations were inconsistent with other evidence
contained in the record as a whole.
For example, when the plaintiff was examined by Dr. Wilson on
October 4, 2010, the physical examination of his back and lower
extremities revealed no swelling, inflammation or muscle spasms.
Dr. Wilson reported the plaintiff’s orthopedic and neurological
examination of the lower extremities showed no evidence of muscle
atrophy or muscle weakness.

7

Dr. Wilson also reported there was no

AR pp. 252, 282.
9

subjective or objective numbness, good strength on dorsiflexion of
the

feet

and

toes

bilaterally,

palpable

and

equal

pulses

bilaterally, and a negative straight leg raising test in the
sitting position. Plaintiff had no problem with his sacroiliac and
hip joints.
Dr. Wilson also reviewed the MRI of the plaintiff’s lumbar
spine.

This is the only MRI contained in the record and it was

done on November 9, 2009.

AR p. 255.

Dr.

Wilson stated that this

test showed very minimal degenerative disc disease with narrowing
of the disc space at L4-5 and L5-S1, with no evidence of foraminal
impingement, as well as some very minimal anterior spurring and
facet arthritis.8
report

that

the

AR pp. 271-72.
plaintiff

medication for pain.

was

Dr. Wilson also noted in his
only

taking

over

the

counter

AR p. 271.9

Similarly, other medical evidence in the record was consistent
with Dr. Wilson’s report.
therapy by Dr. Broussard.

Plaintiff was referred to physical
In April 2010 it was reported that the

plaintiff progressed, responded well and was doing better with
physical therapy.

AR pp. 208, 215-16, 252.

Also in April 2010,

the foot specialist, Dr. Qui Tan Le, who was treating the plaintiff

8

The results of the MRI were normal except for some mild
bulging of the disc and mild arthritic changes at L4-5 and L5-S1.
AR p. 255.
9

See also, AR p. 201 (no prescription medication listed for
pain); AR p. 278 (Dr. Broussard stated the plaintiff was on no
medication at that time from his office).
10

for his diabetic neuropathy, stated that the condition could cause
unsteady gait and falling if the plaintiff engaged in prolonged
standing on hard surfaces.

Dr. Le’s treatment records do not show

that he ever limited the plaintiff’s in any other activities, such
as his ability to sit.

AR pp. 235-44, 249.10

The records of Dr. George Jiha of the Spine Diagnostic and
Pain Treatment Center from November 5 to December 13, 2010 included
the following notations:

with medication the plaintiff’s diabetic

neuropathy pain was better, no acute distress; upright sitting
posture; normal lordosis standing posture; no instability; straight
leg raise/Patrick’s test negative bilaterally. AR pp. 299-44, 307,
314, 316, 321. The state agency, non-examining medical consultant,
Dr. Lee reviewed all the treatment records and reports, test
results, plaintiff’s daily activities, and the report of Dr.
Wilson, and concluded that the plaintiff could perform sedentary
work with some postural limitations.11
Finally,

the

plaintiff’s

disability

report

and

hearing

testimony also provided evidence that the plaintiff was still able
to live by himself and drive his car.

He was able to do some

10

In November 2009 and March 2010, the records of physiatrist
Dr. John Nyboer and Dr. Broussard also reflected that the
plaintiff’s pain was increased with walking and standing.
Dr.
Broussard stated in his evaluation on March 3, 2010 that the
plaintiff’s work activities should involve more sitting than
standing and a reduction in the amount of walking. AR pp. 246,
254.
11

AR pp. 33-42 (Dr. Lee’s evaluation dated October 15, 2010).
11

cooking/meal

preparation

and

household

chores,

attend

church

services, visit some family members, and shop once a week for 30 to
45 minutes at a time.

AR pp. 25-30, 176-78.

The analysis above demonstrates that the record contains
substantial evidence to support the ALJ’s decision to give less
weight to the conclusory opinions of Dr. Broussard and more weight
to Drs. Wilson and Lee, and that in weighing the evidence the ALJ
applied the proper legal standards.

The evidence cited above also

shows that the ALJ’s RFC finding was supported by substantial
evidence.
The ALJ’s finding at step four that the plaintiff could return
to past relevant work is based on substantial evidence.
With regard to this claim of error, the plaintiff relied on
his

testimony

and

other

evidence

describing

the

exertional

requirements of his past work as he actually performed it.12
Plaintiff argued that the ALJ’s finding of a sedentary RFC with
some postural limitations, clearly would prevent him from being
able to lift the amount of weight required in his past employment
as a post office mail handler, customer service representative, and
juvenile counselor.
Given the legal standards that govern at the fourth step of
the disability analysis, the plaintiff’s argument is without merit.

12

Record document number
Plaintiff’s Appeal, pp. 13-14.
12

11,

Memorandum

in

Support

of

Under §§ 404.1560(b)(2) and 416.960(b)(2) and the case law, it is
well-established that a determination of whether a claimant can do
his or her past relevant work may rest on descriptions of past work
as actually performed or as generally performed in the national
economy.

Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990);

Khawaja v. Shalala, 20 F.3d 1170 (5th Cir. 1994); Cooper v.
Barnhart, 55 Fed.Appx. 716 (5th Cir. 2002); Alexander v. Astrue,
412 Fed.Appx. 719 (5th Cir. 2011).

Therefore, even if the ALJ

erred in concluding that the plaintiff’s RFC would not prevent him
from doing past work as it was actually performed, this error is
harmless.13

In this case the ALJ also found that the plaintiff

could perform his prior work as a tutor, counselor and customer
service representative as generally performed in the national
economy.

AR p. 63.

The vocational expert testified that as

generally performed in the national economy, the exertional level
required

in

the

positions

of

tutor,

representative would be sedentary.

counselor,

AR pp. 21-23.

and

customer

This evidence

constitutes substantial evidence to support the ALJ’s finding that
the plaintiff could perform these past jobs as they are generally
13

The primary policy underlying the harmless error rule is to
preserve judgments and avoid waste of time. Mays v. Bowen, 837
F.2d 1362, 1364 (5th Cir.1988). Thus, procedural perfection in
administrative proceedings is not required. A judgment will not be
vacated unless the substantial rights of a party have been
affected. Procedural improprieties constitute a basis for remand
only if they would cast into doubt the existence of substantial
evidence to support the ALJ’s decision. Id.; Morris v. Bowen, 864
F.2d 333, 335 (5th Cir.1988).
13

performed in the national economy, and therefore, is not disabled
at the fourth step.
Plaintiff’s argument that the ALJ failed to consider the
impact of both severe and nonsevere impairments on the
plaintiff’s ability to work is not supported by the record.
Plaintiff argued that in determining whether he could return
to his past relevant work, evidence that he suffered from bone
spurs and facet arthritis was ignored by the ALJ.

Review of the

ALJ’s analysis and decision shows that the ALJ did not fail to
properly consider this evidence.
Although the plaintiff argued there is a possibility these
nonsevere impairments may have aggravated his back condition making
it less likely that he could return to his past work, the plaintiff
did not cite to any medical or other evidence that the impairments
exacerbated his pain.

Moreover, as acknowledged by the plaintiff,

the ALJ included these conditions in his review of the evidence,
which demonstrates that he was aware of and considered them in his
analysis.
relied

on

AR p. 59.
to

The medical reports and opinions that the ALJ

determine

the

plaintiff’s

RFC,

also

took

the

impairments into account in evaluating the plaintiff’s limitations.
Thus, this final claim of error is unsupported and provides no
basis to reverse the ALJ’s decision.
Conclusion
On judicial review the court cannot reweigh the evidence,
14

resolve conflicts in the evidence or substitute its judgment for
that of the Commissioner.

Therefore, regardless of the fact that

the plaintiff can point to evidence in the record which supports
his claims, as long as substantial evidence exists to support the
Commissioner’s decision it must be affirmed.14
administrative

record

as

a

whole

and

the

Review of the
analysis

above

demonstrates that: (1) the proper legal standards were applied to
evaluate the plaintiff’s claim for disability and SSI benefits;
and,

(2)

substantial

evidence

supports

the

Commissioner’s

conclusion that the plaintiff is not disabled. Under sentence four
of § 405(g) the final decision of the Commissioner is affirmed.
Baton Rouge, Louisiana, April 28, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
14

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)(as long as there is substantial
evidence to support the Commissioner’s determination, the quantity
of evidence submitted by the claimant is irrelevant in terms of
judicial review); 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).
15