Crockett v. Department of Health and Human Services et al

Filing 30

RULING : The Commissioner's decision is AFFIRMED and Plaintiff's appeal is DISMISSED with prejudice. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 9/19/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CHARMAINE CROCKETT

CIVIL ACTION

VERSUS

NO. 13-74-RLB

CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION

RULING ON SOCIAL SECURITY APPEAL

Plaintiff, Charmaine Crockett (Plaintiff), seeks judicial review of a final decision of the
Commissioner of the Social Security Administration (Commissioner) pursuant to 42 U.S.C. §
405(g) denying Plaintiff’s application for a period of disability and disability insurance benefits.
(R. Doc. 1). 1 Having found all of the procedural prerequisites met (Tr. 1-6), the Commissioner’s
determination is now ripe for review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981 (“The
Appeals Council’s decision, or the decision of the administrative law judge if the request for
review is denied, is binding unless you . . . file an action in Federal district court . . . .”). For the
reasons given below, the Court ORDERS that the decision of the Commissioner is AFFIRMED
and Plaintiff’s appeal is DISMISSED with prejudice.

1

References to documents filed in this case are designated by: (R. Doc. [docket entry number(s)] at [page
number(s)]). Reference to the record of administrative proceedings filed in this case is designated by: (Tr. [page
number(s)]).

I.

STANDARD OF REVIEW
This Court’s review of the Commissioner’s decision is limited to an inquiry into whether

there is substantial evidence to support the findings of the Commissioner and whether the correct
legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019,
1021 (5th Cir. 1990). Substantial evidence has been defined as “‘more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. of N.Y. v. N.L.R.B.,
305 U.S. 197, 229 (1938) (defining “substantial evidence” in the context of the National Labor
Relations Act, 29 U.S.C. § 160(e)). The Fifth Circuit has further held that substantial evidence
“must do more than create a suspicion of the existence of the fact to be established, but no
substantial evidence will be found only where there is a conspicuous absence of credible choices
or no contrary medical evidence.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)
(quotations omitted). Conflicts in the evidence are for the Commissioner “and not the courts to
resolve.” Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The Court may not reweigh the
evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even
if it finds that the evidence preponderates against the Commissioner’s decision. See, e.g.,
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (“This is so because substantial evidence is
less than a preponderance but more than a scintilla.”); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th
Cir. 1988) (“we must carefully scrutinize the record to determine if, in fact, such evidence is
present; at the same time, however, we may neither reweigh the evidence in the record nor
substitute our judgment for the Secretary’s”); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988) (same).

2

If the Commissioner’s decision is supported by substantial evidence, then it is conclusive
and must be upheld. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000). If the
Commissioner fails to apply the correct legal standards, or fails to 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. 1987).
II.

ALJ’S DETERMINATION
In determining disability, the Commissioner (through an ALJ) works through a five-step

sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the
claimant throughout the first four steps of this five-step process to prove disability. If the
claimant is successful in sustaining his or her burden at each of the first four steps, the burden
shifts to the Commissioner at step five. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)
(explaining the five-step process). First, the claimant must prove he is not currently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove his or her
impairment is “severe” in that it “significantly limits your physical or mental ability to do basic
work activities . . . .” 20 C.F.R. § 404.1520(c). At step three the ALJ must conclude the claimant
is disabled if he proves that his or her impairments meet or are medically equivalent to one of the
impairments contained in the Listing of Impairments. See 20 C.F.R. § 404.1520(d) (step three of
sequential process); 20 C.F.R. pt. 404, subpt. P, app. 1 (Listing of Impairments). Fourth, the
claimant bears the burden of proving he is incapable of meeting the physical and mental
demands of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant is successful at all four of the preceding steps then the burden shifts to the
Commissioner to prove, considering the claimant’s residual functional capacity, age, education
and past work experience, that he or she is capable of performing other work. 20 C.F.R §

3

404.1520(g)(1). If the Commissioner proves other work exists which the claimant can perform,
the claimant is given the chance to prove that he or she cannot, in fact, perform that work. Muse,
925 F.2d at 789.
Here, after reviewing the evidence contained in the administrative record (Tr. 30-33), the
ALJ made the following determinations on January 23, 2012:
1.

Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2011.

2.

Plaintiff had engaged in substantial gainful activity since the alleged
August 14, 2007 onset date; however, she did not engage in substantial
gainful activity for the entire period at issue.

3.

Plaintiff had the following severe impairments: sarcoidosis, 2 carpal tunnel
syndrome, degenerative changes of the lumbar spine.

4.

Plaintiff did not have an impairment that met or medically equaled a
listing — specifically, Listing 1.04 (Disorders of the Spine) and Listing
3.02 (Chronic Pulmonary Insufficiency).

5.

Plaintiff had the residual functional capacity (RFC) to perform light work
that involves frequent, but not constant, fingering; and is free from
excessive exposure to pulmonary irritants.

6.

Plaintiff can perform her past relevant work as a cashier.

7.

Plaintiff did not meet the Social Security Act’s definition of disability at
any time between August 14, 2007 (the alleged onset date), and September
16, 2011 (the decision date).

(Tr. 22-28).

2

Sarcoidosis is a “systemic granulomatous disease of unknown cause, especially involving the lungs with resulting
interstitial fibrosis, but also involving lymph nodes, skin, liver, spleen, eyes, phalangeal bones, and parotid glands;
granulomas are composed of epithelioid and multinucleated giant cells with little or no necrosis.” Thomas Stedman,
Stedman’s Medical Dictionary (Stedman’s), 363870 (27th ed. 2000) (Sarcoidosis).

4

III.

DISCUSSION
Plaintiff’s argument on appeal is limited to the ALJ’s finding of the Plaintiff’s RFC.

Plaintiff argues that the ALJ “improperly rejected the treating physician’s RFC of October 13,
2009, that the Claimant was unable to work” in favor of an October 9, 2007 opinion rendered by
a non-treating consulting physician. (R. Doc. 27 at 3). The treating physician Plaintiff refers to is
Dr. Marta Fechete. (Tr. 507). On October 13, 2009, Dr. Fechete wrote a letter explaining:
Charmaine has a diagnosis of Sarcoidosis. She has been unable to work since
2007 due to generalized body aches, and especially arm and leg pains. She cannot
hold objects for long periods of time as this type of activity exacerbates her pain.
She was working as a truck driver, but now cannot hold the wheel of a vehicle for
the 8 hrs per day that this job entails.
Sarcoidosis also affects her lungs, and causes shortness of breath and
consequently fatigue. Fatigue is a limiting factor for most types of employment.
(Tr. 507). Dr. Fechete’s October 13, 2009 letter offers two types of opinions — the first is an
opinion as to the ultimate issue of disability (Plaintiff “has been unable to work”), while the
second is a statement of what Plaintiff is capable of doing despite her impairments. Dr. Fechete
provided a second letter on June 6, 2011, which only provides an opinion as to the ultimate issue
of disability. (Tr. 638) (5/19/11 is date “you believe patient was unable to work”). 3 The Court
will first address Dr. Fechete’s opinion of Plaintiff’s capabilities, addressed in her first letter on
October 13, 2009, before turning to the Dr. Fechete’s October 13, 2009 and June 6, 2011
opinions as to the ultimate issue of disability. 4

3

While Plaintiff appears to only challenge the rejection of Dr. Fechete’s October 13, 2009 opinion of the ultimate
issue of disability, Plaintiff later briefly mentions that the ALJ should have adopted both the October 13, 2009 and
June 6, 2011 opinions that she is totally disabled. Therefore, the both opinions are discussed in this Ruling.

4

Plaintiff’s sole argument on appeal is limited to the ALJ’s rejection of Dr. Fechete’s October 13, 2009 and June 6,
2011 opinions. Plaintiff has not otherwise alleged that any objective evidence exists that would call the RFC into
question.

5

A.

Dr. Fechete’s October 13, 2009 Opinion of Plaintiff’s Abilities and ALJ’s
RFC Determination

The ALJ rejected Dr. Fechete’s opinion of Plaintiff’s abilities for several reasons, all of
which the Court’s finds valid. First, the ALJ properly found Dr. Fechete did not qualify as a
treating physician when she rendered this opinion on October 13, 2009 — the date of Plaintiff’s
initial visit. (Tr. 24). A physician qualifies as a treating source “if the claimant sees the
physician ‘with a frequency consistent with accepted medical practice for the type of treatment
and/or evaluation required for [the] medical conditions.’” Huet v. Astrue, 375 F. App'x 373, 376
(5th Cir. 2010) (quoting 20 C.F.R. § 404.1502) (alteration in original). Generally, the “opinion
of the treating physician who is familiar with the claimant's impairments, treatments and
responses, should be accorded great weight in determining disability.” Newton v. Apfel, 209 F.3d
448, 455 (5th Cir. 2000); see also 20 C.F.R. § 404.1527(c)(1) (discussing different weights
generally given to medical opinions). 5
Here the ALJ properly found Dr. Fechete was not a “treating source” when rendering this
opinion, because it was not based on Dr. Fechete’s own familiarity with Plaintiff’s impairments
acquired through any ongoing treatment relationship with Plaintiff. 6 See Clayborne v. Astrue,
260 F. App’x 735, 737 (5th Cir. 2008) (doctor properly rejected as treating source where
5

According to the Fifth Circuit's decision in Newton, “absent reliable medical evidence from a treating or examining
physician controverting the claimant's treating specialist, an ALJ may reject the opinion of the treating physician
only if the ALJ performs a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R.
§ 404.1527(d)(2).” Newton, 209 F.3d at 453. Those criteria provide that the ALJ consider: (1) the length of the
treatment relationship and frequency of examination; (2) the nature and extent of the treatment relationship; (3) the
relevant evidence supporting the opinion; (4) consistency of the treating physician's opinion with the record as a
whole; (5) whether the opinion is that of a specialist; and (6) other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(d)(2).

6

The ALJ points out (Tr. 25-26) that Dr. Fechete continued to treat Plaintiff after her initial appointment on October
13, 2009, and therefore later became a treating source. (Tr. 638) (began treating Plaintiff on October 13, 2009); (Tr.
25) (Discussing Dr. Fechete’s October 13, 2009 opinion, the ALJ found: “To the extent Dr. Fechete’s opinion
pertains to the period prior to her treatment relationship with the claimant, her opinion is entitled to no weight in this
matter.”); (Tr. 26) (As for Dr. Fechete’s later opinions, ALJ explained that “Dr. Fechete, whose earlier opinion has
been discounted due to the lack of a treating relationship at the time, continued to treat the claimant . . . . By [June 6,
2011], Dr. Fechete is considered a treating source.”).

6

“isolated visits” did not amount to an “ongoing treatment relationship” with doctor); Hernandez
v. Heckler, 704 F.2d 857, 860-61 (5th Cir. 1983) (affirming ALJ's rejection of doctor’s opinion
of claimant’s abilities and that claimant was totally disabled as opinion was given on plaintiff’s
second appointment and doctor, who only saw claimant twice in a 17-month period, was not a
treating physician); Taylor v. Astrue, 245 F. App'x 387, 391 (5th Cir. 2007) (“[N]othing about
Taylor’s relationship with Dr. Weisberg establishes the ‘longitudinal’ pattern of care described in
[the regulations]; Taylor’s two visits to Dr. Weisberg, four years apart, are the sort of “individual
examinations” that are distinguished . . . from the continuous care provided by a treating
physician.”). Because Dr. Fechete was not a treating source at the time, the ALJ was not
required to give great weight to her opinion, or apply the factors outlined by the Fifth Circuit in
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000).
Second, the ALJ rejected Dr. Fechete’s opinion because it referred to the claimant’s
ability to work “for a period of time beginning two years before Dr. Fechete ever treated the
claimant.” (Tr. 25) (ALJ’s decision); (Tr. 507) (On October 13, 2009, Dr. Fechete reported that
Plaintiff had been unable to work as of 2007.); (Tr. 638) (Dr. Fechete’s records confirm that her
treatment of Plaintiff began on October 13, 2009); see Oldham v. Schweiker, 660 F.2d 1078,
1086 (5th Cir. 1981) (Rejecting opinion as it was hard “to imagine how Dr. Harris could support
his opinion with medical evidence [when] he never treated [claimant] during the year” he found
claimant “became totally disabled. In fact, his opinion was offered subsequent to a period of
almost three years in which he never saw claimant.”).
Dr. Fechete’s opinion, the ALJ reasoned, is not based on her own treatment and medical
observations; rather, Dr. Fechete simply reiterates “the complaints the claimant had offered at the
initial clinic visit.” (Tr. 24). Indeed, Dr. Fechete’s actual exam notes from October 13, 2009

7

confirm that her opinion of Plaintiff’s abilities is merely a restatement of Plaintiff’s own reported
history and subjective complaints. (Tr. 539) (Plaintiff reported working as a truck driver, that her
“arms and legs give out after holding things for prolonged periods,” and her “whole body”
aches.); (Tr. 507) (Dr. Fechete opined that Plaintiff can no longer work as a truck driver due to
“generalized body aches, especially arm and leg pains. She cannot hold objects for long periods
of time.”). Therefore, Dr. Fechete’s opinion was likewise properly rejected as it was not based
on her “own knowledge” and “medical findings.” SSR 96–5P, 1996 WL 374183, at *4. (A
Medical Source Statement must be based on the source’s own knowledge and medical findings);
see also Perez v. Barnhart, 415 F.3d 457, 466 (5th Cir. 2005) (“The ALJ was therefore justified
in giving little weight to Dr. Heinze’s testimony because he did not perform any clinical
examinations on Perez.”).
Finally, the ALJ explained in detail that he discounted Dr. Fechete’s opinion as
inconsistent with the objective medical findings from the time period addressed in Dr. Fechete’s
October 13, 2009 letter (2007-2009), including the findings of Plaintiff’s treating neurologist, Dr.
Kevin Callerame. (Tr. 25) (“Dr. Callerame’s opinion is given greater weight, as he actually
provided treatment for the claimant during the period Dr. Fechete is [sic] addresses, whereas Dr.
Fechete did not.”). While the ALJ acknowledged Plaintiff’s ongoing complaints of leg and arm
pain, and difficulty holding objects, he found “the objective findings do not document the degree
of limitation suggested by Dr. Fechete.” (Tr. 25).
For example, an MRI of Plaintiff’s brain, taken August 8, 2007 to determine the presence
of any neurological dysfunction, was normal despite complaints of paresthesia on the right side
of Plaintiff’s face. (Tr. 409). Dr. Callerame’s objective findings from his August 21, 2007
neurological evaluation indicated Plaintiff’s impairments were less severe than she had

8

subjectively reported. (Tr. 389). Dr. Callerame assessed only “mild ptosis” on the right side of
the face and “proximal muscle weakness of both the arms and the legs.” (Tr. 389). Plaintiff’s
August 22, 2007 nerve conduction studies revealed facial nerve neuropathy on the right and mild
right carpal tunnel syndrome. (Tr. 393, 395-407). On August 31, 2007, Dr. Callerame noted
Plaintiff’s cranial nerves II-XII 7 were normal, her facial strength was normal and symmetric, her
facial sensation was intact. (Tr. 391). Plaintiff’s motor exam of “the extremities reveal[ed]
normal strength and normal tone. Reflexes [were] equal and symmetric. Gait [was] normal,” as
well. (Tr. 391). Dr. Callerame reported on October 19, 2007 that Plaintiff’s “sarcoid,” which
caused “paresthesias of the face and some weakness” when she began treatment, had now
“dramatically improved on steroids.” (Tr. 480). An October 19, 2007 motor exam of Plaintiff’s
extremities likewise revealed normal strength, normal tone, normal gait, and reflexes that were
equal and symmetric in all extremities. (Tr. 480). On January 22, 2008, Dr. Callerame reported
Plaintiff was “doing wonderful on Neurontin and prednisone.” (Tr. 470). Plaintiff’s January 22,
2008 motor exam showed normal strength, normal tone and normal gait. (Tr. 470).
Dr. Callerame examined Plaintiff for the last time on March 5, 2008. (Tr. 24, 482). As
the ALJ points out, Plaintiff presented with complaints of shortness of breath and weakness,
which were inconsistent with Dr. Callerame’s objective findings. (Tr. 24, 482). Upon
examination, Dr. Callerame found Plaintiff’s cranial nerves ii-xii were normal, motor strength
was 5/5, senses were intact, reflexes were 2/4, and Plaintiff’s gait and cerebellar exam were both
normal, as well. (Tr. 482). At the end of his treatment notes, Dr. Callerame explained: “She also
brought some paperwork over for disability that I will complete, but from a neurological
7

The cranial nerves “provide motor and sensory function to the head and face, and autonomic innervation (for
salivation, tearing, perspiration, and temperature control) and visceral sensation (for internal organs such as the
intestines) elsewhere in the body. The cranial nerves can be injured singly or in various combinations.”
Steven J. Holtz, M.D., Peripheral and Cranial Nerve Injury Due to Trauma, 10 Am. Jur. Proof of Facts 3d 757 § 19
(1990).

9

standpoint, her exam at this point is normal.” (Tr. 482). The disability forms referenced by Dr.
Callerame are not in the record as they were never provided by Plaintiff. (Tr. 24). March 5, 2008
also appears to be the last time Plaintiff sought treatment from Dr. Callerame, despite his note
that she return in 3 months as usual. (Tr. 482). Because Dr. Callerame’s disability forms were
not provided, and Plaintiff discontinued treatment with Dr. Callerame after March 5, 2008, the
ALJ reasoned that “Dr. Callerame’s opinion would not have helped the claimant’s case.” (Tr.
24).
A September 29, 2008 MRA of Plaintiff’s brain showed “[p]osterior circulation was
unremarkable of bilateral vertebral arteries. Basilar artery unremarkable. No PCOM visualized.”
(Tr. 586). Plaintiff’s September 29, 2008 MRI of her brain also found “[n]ormal proximal
intervascular flow voids . . . . Normal definition of gray-white matter” and “[d]iffusion scans
[that were] unremarkable.” (Tr. 587). Treatment notes from November 10, 2008 note Plaintiff’s
August 2008 MRA “read as normal,” and that both her MRA and MRI from August 2008 were
“unrevealing” despite complaints of right facial numbness and spasms, and right upper extremity
spasms. (Tr. 555). Plaintiff again complained of facial numbness and facial twitching at her
November 10, 2008 appointment. (Tr. 555). However, she had no new complaints and reported
that her facial spasms occurred intermittently, and her facial twitching had “somewhat
improved.” (Tr. 555). Neurological examination showed Plaintiff’s cranial nerves ii-xii were
intact, with the exception of her “l[eft] smile;” her motor strength was 5/5; and her deep tendon
reflexes were normal (2+). (Tr. 555). On August 11, 2008, Plaintiff complained of body aches,
weakness and right facial numbness, yet examination revealed her cranial nerves were intact, her
strength was intact throughout, and her deep tendon reflexes were normal (2+). (Tr. 559).
December 2009 imaging of Plaintiff’s right hip found her joint space was well maintained with

10

no fracture or dislocation. (Tr. 581). Overall, despite her complaints of hip pain, imaging
revealed Plaintiff had a “[n]ormal right hip.” (Tr. 581).
The ALJ also appropriately discredited Dr. Fechete’s opinion as she was a family
practitioner, and not a neurological specialist like Dr. Callerame. (Tr. 25) (“Further, Dr. Fechete
is a family physician, while Dr. Callerame is a neurologist who was treating the claimant for her
neurological complaints, including the carpal tunnel syndrome.”).
Next the ALJ explained that Dr. Fechete’s opinion about the impact of Plaintiff’s “lung
impairment on her functioning for the two-year period prior to the beginning of the treatment
relationship,” is likewise inconsistent with the relevant medical evidence from that time period.
(Tr. 25). While the record documents a history of complaints of shortness of breath, the
objective medical findings do not support the degree of pulmonary limitation assessed by Dr.
Fechete. (Tr. 557, 558). For example, despite complaints of shortness of breath, examinations
continuously revealed Plaintiff’s lungs were clear and that she appeared to not be in any acute
distress. (Tr. 475, 492, 557, 579, 583, 584). Plaintiff’s August 14, 2007 chest x-ray showed “no
evidence of active pulmonary disease” and a cardiac size that was “near the upper limit of
normal.” (Tr. 345). Other testing from the relevant period show Plaintiff’s respiratory system
was normal upon examination, and that her breathing was even and unlabored. (Tr. 339, 341). A
November 13, 2008 pulmonary function study concluded: “Pulmonary Function Diagnosis: Mild
Restriction; Moderately Severe Diffusion Defect.” (Tr. 550-53). Imaging of Plaintiff’s chest,
also taken on November 13, 2008, found mild cardiomelagy, but Plaintiff’s lungs were clear with
no effusion. (Tr. 583). Plaintiff’s October 1, 2008 CT scan of her chest revealed some
abnormalities potentially related to sarcoidosis, but otherwise there was no evidence of an
abnormal mass in the lungs, no evidence of axillary lymphadenopathy, and her adrenal glands

11

appeared normal. (Tr. 579). Moreover, as the ALJ noted, “[n]o pulmonary restrictions were
placed on the claimant.” (Tr. 25). Therefore, the ALJ appropriately rejected Dr. Fechete’s
October 13, 2009 opinion of Plaintiff’s abilities as inconsistent with the objective medical
findings between 2007 and 2009.
The 2007-2009 medical evidence not only supports the rejection of Dr. Fechete’s October
13, 2009 opinion, that evidence — along with the later medical and other non-medical evidence
in the record — likewise constitutes substantial evidence supporting the ALJ’s RFC
determination. Here, the ALJ found Plaintiff capable of performing light work that involves
frequent, but not constant, fingering; and is free from excessive exposure to pulmonary irritants.
(Tr. 23). Dr. Timothy Honigman, a non-examining consultant, also found Plaintiff capable of
performing light work, limited only by the need to avoid exposure to pulmonary irritants. (Tr.
428-435). Dr. Honigman’s RFC did not include any manipulative or fingering limitations like the
RFC assessed by the ALJ. (Tr. 23, 431).
Plaintiff suggests the RFC assessment is not substantially supported, however, because
the doctor rendering the opinion “accepted” by the ALJ, Dr. Timothy Honigman, was not “a
treating or even examining source.” (R. Doc. 27 at 3-4). Contrary to Plaintiff’s allegations, the
opinion of non-examining consultant, Dr. Honigman, was not the sole piece of evidence the ALJ
relied upon in determining Plaintiff’s RFC. The ALJ also did not wholly adopt Dr. Honigman’s
opinion, as Plaintiff suggests (R. Doc. 27 at 3-4). Dr. Honigman did not place any manipulative
limitations on Plaintiff’s ability to use her fingers. (Tr. 431). Rather, the ALJ considered all of
the evidence, which included Dr. Honigman’s medical source statement, and agreed with Dr.

12

Honigman’s findings of light work and pulmonary exposure limitations, based on their
congruence with the record. 8
Moreover, Plaintiff incorrectly argues that Dr. Honigman’s opinion is incorrect because
he “failed to mention neuropathy found in the EMG found in the record at page 393.” (R. Doc.
27 at 4); (Tr. 391) (there is no EMG found in the record at page 393); (Tr. 393) (“No EMG
performed at patient’s request” on August 21, 2007). Dr. Honigman explicitly refers to an EMG
conducted on August 31, 2007, as well as Dr. Callerame’s “[i]mpression” of “cranial
neuropathy” throughout August of 2007. (Tr. 435). 9 Dr. Honigman not only recognized
Plaintiff’s neuropathy, his opinion is arguably more favorable as it was rendered before Plaintiff
began to show dramatic neurological improvement from taking steroids like prednisone and
neurotonin in 2008. (Tr. 470, 482) (dramatic neurological improvement in January and March of
2008); (Tr. 554) (November 5, 2008 – “Normal” nerve conduction study and EMG).
In addition to the evidence already discussed, the following evidence further supports the
ALJ’s finding that Plaintiff could perform light work that involves frequent, but not constant,
fingering; and is free from excessive exposure to pulmonary irritants. (Tr. 23). January 27, 2011
radiological imaging of Plaintiff’s lumbar spine showed “Tiny osteophytes projected anteriorly
from the end plates of L3, 4, and 5” there were no signs of “disc narrowing, acute fracture or
8

See Social Security Ruling 96-5P:
Even though the adjudicator’s RFC assessment may adopt the opinions in a medical source
statement, they are not the same thing: A medical source statement is evidence that is submitted to
SSA by an individual’s medical source reflecting the source’s opinion based on his or her own
knowledge, while an RFC assessment is the adjudicator’s ultimate finding based on a
consideration of this opinion and all the other evidence in the case record about what an individual
can do despite his or her impairment(s).

SSR 96-5P, 1996 WL 374183, at *4 (July 2, 1996).
9

Dr. Honigman also refers to Dr. Callerame’s reports of “facial weakness and numbness,” diagnosis of “sarcoidosis,
mild ptosis, decreased sensation in [Plaintiff’s] face, [and] mild weakness in [her] arms” and to August 21, 2007
MRI and CT scans of Plaintiff’s brain. (Tr. 435) (Tr. 351, 389, 393, 395-407, 409).

13

sublaxation.” (Tr. 572). A February 1, 2010 CT scan of Plaintiff’s lumbar spine showed normal
lumbar spine alignment with no fracture or prevertebral soft tissue abnormality (Tr. 578). There
was only mild disc height reduction and bilateral facet atrophy at L5-S1; otherwise, the
intervertebral disc spaces are well maintained and the sacroiliac joints are within normal limits.”
(Tr. 578). Plaintiff’s February 1, 2010 CT scan showed minimal degenerative discopathy and
facet arthropathy, but otherwise revealed a normal lumbar spine without evidence of fracture,
sublaxation, neuroforaminal or spinal canal stenosis. (Tr. 578). Plaintiff’s respiratory exam was
normal on December 10, 2010. (Tr. 612). Imaging of Plaintiff’s chest taken on March 13, 2010,
in response to her continued complaints of shortness of breath, found Plaintiff’s “Heart size is [in
the] upper limits of normal. Lung fields are clear.” (Tr. 574). In response to Plaintiff’s
complaints of headaches and left extremity numbness, a CT scan of Plaintiff’s head was taken on
March 13, 2010, which found: “The ventricles are nondilated. No edema, hemorrhage or mass
effect is seen. No extraaxial fluid collection. Normal noncontrast CT brain.” (Tr. 575). The
discharge notes on Plaintiff’s September 20, 2010 medical records advise Plaintiff that she may
engage in activities “as tolerated” and do not otherwise limit her ability to engage in workrelated activities. (Tr. 521). And so, the medical evidence is consistent with the RFC assessed by
the ALJ.
Despite her alleged disability onset date of August 14, 2007, Plaintiff worked 30 to 40
hours a week as a city bus driver from July 5, 2010 until May 19, 2011. (Tr. 89). Notably,
Plaintiff did not begin working on July 5, 2010 because of an improvement in her symptoms;
rather, she explained her return to work was financially motivated. (Tr. 89-92) (“I only went
back because I had got put out of my house. . . . I wasn’t feeling better, but I have no other
choice but to go to work. Like I said, I had gotten put out of my house.”). See Vaughan v.

14

Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (the ability to work while suffering from conditions
alleged to be disabling is evidence that the conditions are not disabling); Fraga v. Bowen, 810
F.2d 1296, 1035 n.11 (5th Cir. 1987) (ability to work despite pre-existing impairment supports
finding of not disabled).
Given the evidence contained in the record, the Court finds the ALJ’s RFC assessment is
supported by substantial evidence.
B.

Dr. Fechete’s October 13, 2009 and June 6, 2011 Opinions of Total Disability

On both October 13, 2009 and June 6, 2011 Dr. Fechete provided what could be
construed as opinions that Plaintiff was either disabled or unable to work. (Tr. 507, 638).
Regardless of whether Dr. Fechete was a treating source, 10 opinions on issues reserved to the
Commissioner, like the ultimate issue of disability, are not medical opinions, as Plaintiff
suggests. See 20 CFR § 404.1527(d) (an opinion from a medical source that a claimant is
disabled is “not [a] medical opinion[]”); Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995)
(“Even though the opinion and diagnosis of a treating physician should be afforded considerable
weight in determining disability, the ALJ has sole responsibility for determining a claimant's
disability status.”). A statement by a medical source that a claimant is “disabled” or “unable to
work” does not require the Commissioner to find that claimant disabled and is entitled to no
weight. See Barajas v. Heckler, 738 F.2d 641, 645 (5th Cir. 1984) (“A statement made by a
treating physician that a claimant is disabled does not mean that the claimant is disabled for
purposes of the Social Security Act . . . .”); 20 C.F.R. § 404.1527(d)(3) (“We will not give any
10

Dr. Fechete continued to treat Plaintiff after her initial appointment on October 13, 2009, and therefore later
became a treating source. (Tr. 638) (began treating Plaintiff on October 13, 2009); (Tr. 25) (Discussing Dr.
Fechete’s October 13, 2009 opinion, the ALJ found: “To the extent Dr. Fechete’s opinion pertains to the period prior
to her treatment relationship with the claimant, her opinion is entitled to no weight in this matter.”); (Tr. 26) (As for
Dr. Fechete’s later opinions, ALJ explained that “Dr. Fechete, whose earlier opinion has been discounted due to the
lack of a treating relationship at the time, continued to treat the claimant . . . . By [June 6, 2011], Dr. Fechete is
considered a treating source.”).

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special significance to the source of an opinion on issues reserved to the Commissioner . . . .”).
Therefore, the ALJ properly rejected Dr. Fechete’s opinions as to the ultimate issue of disability
— a decision reserved to the Commissioner.
IV.

CONCLUSION
For the reasons given above, IT IS ORDERED that the Commissioner’s decision is

AFFIRMED and Plaintiff’s appeal is DISMISSED with prejudice.
Signed in Baton Rouge, Louisiana, on September 19, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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