Crain v. Colvin

Filing 23

RULING: Under sentence four of 42 U.S.C. § 405(g), the final decision of Acting Commissioner of Social Security Carolyn W. Colvin denying the application for disability benefits filed by plaintiff Martin G. Crain is reversed, and this action will be remanded to the Commissioner for application of the proper legal standards, and reevaluation of the plaintiffs claim for disability benefits. Signed by Magistrate Judge Stephen C. Riedlinger on 10/15/2015. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARTIN G. CRAIN
CIVIL ACTION
VERSUS
NUMBER 14-12-SCR
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Martin G. Crain 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 application for disability insurance income benefits.
Based on the standard of judicial review under § 405(g), a
careful review of the entire administrative record as a whole, and
the analysis that follows, the Commissioner’s decision is reversed.
Standard of Review
Under § 405(g), judicial review of a final decision of the
Commissioner

denying

disability

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.
Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014); 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

the

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

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

ALJ's

finding

or

decision

is

supported

by

substantial evidence in the record as a whole it must be affirmed.1
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
1

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);
Palimino 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 is upheld when there is substantial
evidence to support it).
2

that of the Commissioner, even if the evidence 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.
(5th Cir. 2002).

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

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).
Therefore, on judicial review the Commissioner’s decision is
granted great deference, and the decision will not be disturbed
unless the court cannot find substantial evidence in the record to
support it, or the court finds an error of law was made.

Leggett

v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
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
activity.

the

claimant

from

engaging

20 C.F.R. § 404.1505.

in

substantial

gainful

The regulations require the ALJ

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

20 C.F.R. § 404.1520.

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)

3

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; (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 his past relevant work.

If the

claimant shows at step four that he 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 cannot in fact perform that work.

Boyd, 239

F.3d at 705.
Background and Claims of Error
Plaintiff

was

46

years

of

age

at

administrative law judge’s (“ALJ”) decision.2

the

time

of

the

Plaintiff graduated

from high school and his past relevant work consisted of work at
large retail stores as a meat cutter and fresh area supervisor. In
his application for disability benefits the plaintiff claimed he
2

Plaintiff’s age placed him in the category of a person of
a younger person. 20 C.F.R. § 404.1563(c).
4

became disabled and no longer able to work as of September 15, 2010
because of pain and limitations resulting from neck surgery and a
failed back surgery. AR pp. 61-62, 101-04, 120-22, 132-38, 142-43.
After his application was denied at the initial administrative
levels of review, the plaintiff requested an ALJ hearing.

The

hearing was held, and after it the ALJ issued an unfavorable
decision, finding at the fifth step that the plaintiff was not
disabled.

AR pp. 33-59.

The ALJ found at step two of the

disability

analysis

the

that

plaintiff

had

the

following

combination of severe impairments - failed back syndrome, past
laminectomy with history of lower lumbosacral pain and status post
cervical surgery.

At the third step the ALJ concluded that the

plaintiff’s spinal impairments did not meet or medically equal the
severity of one of the listed musculoskeletal impairments found in
20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1, Listing 1.00.

AR pp.

35-36.
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 other work in the national economy.3

The ALJ found the

plaintiff retained the following RFC:

3

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.
5

[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
except the claimant is limited to stand and walk 4 hours
which is a restricted level of light.
The claimant
ambulates with a cane. The claimant is able to perform
all posturals occasionally; manipulative limitations
would be frequent bilaterally; no visual limitations; no
communication
limitations;
and
no
environmental
limitations. Also, the claimant has pain in his hands.
Given this RFC, and based on the hearing testimony of the
vocational expert, the ALJ concluded that the plaintiff would be
not be able to perform his past relevant work as a meat cutter or
large retail store supervisor.

However, based on the plaintiff’s

age, educational background, work experience and testimony from the
vocational expert, the ALJ determined that there are jobs that
exist in significant numbers in the national economy that the
plaintiff can perform - mail clerk, routing clerk and school bus
monitor.4

AR pp. 36-40, 53-57.

Therefore, the ALJ found the

plaintiff is not disabled and is not entitled to disability
benefits.5
Plaintiff asserted that the ALJ committed the following errors
that require reversal of the ALJ’s decision: (1) at step three the

4

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.
5

“Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is
in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.”
20 C.F.R. §
404.1567(b).
6

ALJ erred in finding that his impairments did not meet or equal the
requirements of Listing 1.04A (Disorders of the spine); (2) the ALJ
erred by failing to evaluate his mental impairments of depression
and anxiety; and (3) the ALJ failed to consider and weigh the
opinions of treating physician, Dr. John E. Clark, according to the
standards

set

forth

in

Newton

v.

Apfel,6

and

the

applicable

regulations.
Analysis
Based on review of the record as a whole, the court finds that
the ALJ committed legal error by failing to consider and analyze
Dr. Clark’s opinions in accordance with the applicable law and
regulations.
The

legal

established.
physician

principles

governing

this

issue

are

well-

Although the opinion and diagnosis of a treating

should

generally

be

given

considerable

weight

in

determining disability, a treating physician’s opinions are not
conclusive and may be assigned little or no weight when good cause
is shown.

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, 209 F.3d at 455-56.
An ALJ is free to reject the medical opinion of any physician when

6

209 F.3d at 453.
7

the evidence supports a contrary conclusion.

Bradley, 809 F.2d at

1057.
However, when the ALJ finds a treating physician’s 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: (1) the length and frequency of

treatment; (2) nature and extent of the treatment relationship; (3)
the extent the opinion is supported by medical signs and laboratory
findings; (4) the consistency of the opinion with the record as a
whole; and, (5) the treating physician’s specialization and other
factors.

20 C.F.R. § 404.1527(c)(1)-(6); SSR 96-2p;7 Newton, 209

F.3d at 456.

In Newton, the Fifth Circuit held that “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 the regulations.8

Nevertheless, the ALJ need

not consider each of the factors where there is competing firsthand medical evidence and the ALJ finds that one doctor’s opinion
is more well-founded than another. Id., at 458; Walker v. Barnhart,

7

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

In Newton the court cited 20 C.F.R. § 404.1527(d)(2),
however, the applicable regulation is now found at 20 C.F.R. §
404.1527(c)(2).
8

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.”
treating

source’s

20 C.F.R. § 404.1527(d).

statement

or

opinion

that

the

Thus, a

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 record establishes, and the Commissioner does not dispute,
that Dr. Clark is the plaintiff’s treating physician.9

As the ALJ

stated in his decision, the medical evidence from Dr. Clark shows
that the plaintiff has a long history of both cervical and lumbar
pain subsequent to anterior cervical discectomy and fusion along
with two lumbar surgeries that included a bone graft and hardware
removal after a bone infection.

AR p. 36.

Dr. Clark’s records and

reports indicate that he treated the plaintiff on a regular and

9

The ALJ referred to Dr. Clark as the “claimant’s treating
physician.” AR p. 36. Dr. Clark is board certified in physical
medicine and rehabilitation. His medical practice is in the areas
of spine and sports medicine.
9

continuing basis since 2002.

Treatment notes of the plaintiff’s

monthly follow-up visits cover the period from September 9, 2009
through May 2012.10

The records as a whole show that the plaintiff

suffers from a cervical and lumbar spine condition with a history
of

chronic

treatment.

pain

that

was

not

remedied

by

surgery

and

other

Therefore, the plaintiff’s treatment consisted of

“palliative care with supportive efforts,” in the form of a drug
regimen consisting of Methadone, Roxicodone and Adderall.11
In addition to his treatment records, Dr. Clark provided two
assessments
capacity.

of

the

plaintiff’s

physical

residual

functional

The first one was in November 2010 and the second was

completed December 12, 2011.12

In the 2010 report, Dr. Clark

summarized and described the plaintiff’s diagnoses, prognosis,
symptoms, clinical findings and objective signs, treatment, and
noted the consistency of the plaintiff’s impairments with the
reported symptoms and functional limitations.

AR pp. 234-35.

Dr.

Clark reported the plaintiff would have the following limitations
during a normal eight hour workday: (1) frequent or constant pain
severe enough to interfere with attention and concentration needed
to perform even simple work tasks; (2) the ability to sit or stand

10

AR pp. 16, 27, 176-224, 234-37, 241-48, 261-65, 269-72.

11

See, e.g., AR pp. 177, 181, 190, 199.

12

AR pp. 234-37 (Physical Residual Functional Capacity
Questionnaire, November 16, 2010); AR pp. 269-72 (Physical Residual
Functional Capacity Questionnaire, December 12, 2011).
10

for only 15 to 20 minutes at a time before needing to get up, sit
down or walk around; (3) the ability to stand/walk for less than
two hours, and sit for about two hours; (4) the ability to be able
to shift positions at will and take unscheduled breaks; (5) the
need to use a cane/assistive device during flare-ups; (6) can never
lift and carry over ten pounds, but can lift and carry less than
ten pounds occasionally, and ten pounds rarely; (7) can look down
or up, and turn head right or left only occasionally; (8) can never
stoop or climb ladders and can rarely twist, squat and climb
stairs; and, (9) likely to be absent from work more than four days
a month as a result of his impairments.
December

2011

Dr.

Clark’s

reported

AR pp. 235-37.

similar

findings

on

In
the

plaintiff’s restrictions and limitations due to post-surgical
changes, continuing degenerative disc disease of the cervical and
lumbar spine, and chronic pain. AR pp. 269-72. However, Dr. Clark
found that the plaintiff would be even more restricted in some
areas.

Plaintiff could never twist. Plaintiff’s ability to both

sit, or stand/walk was now less than two hours a day, and the
plaintiff would have to get up and walk around for about ten
minutes, approximately every 20 minutes.

Plaintiff’s ability to

lift and carry was limited to less than ten pounds occasionally.
The ALJ addressed the records and reports of Dr. Clark in his
written decision.

The ALJ specifically noted and summarized both

physical RFC assessments completed by Dr. Clark.

11

After doing so,

the ALJ simply stated that he had “considered this opinion,
however, the claimant testified at the hearing he can lift up to 20
pounds, and stand and sit 15 to 20 minutes.”

AR p. 38.

The ALJ

did not note any evidence in the record, other than this testimony,
that he believed contradicted Dr. Clark’s medical opinions related
to the plaintiff’s condition and limitations.

Nor did the ALJ

indicate whether he gave Dr. Clark’s reports and medical opinions
significant, little or no weight.
The only other report of a physical examination of the
plaintiff and an assessment of his functional abilities is the
consultative examination performed by Dr. Barnabas Fote on May 28,
2011.13

AR pp. 225-27.

The ALJ cited several of Dr. Fote’s

physical examination findings. Plaintiff was able to walk into the
room and get on the exam table without assistance or an assistive
device; plaintiff walked with a limp; his neck exam was normal, and
there was no evidence of lumbar muscle spasm or tenderness.14

As

13

The record includes a report of a September 24, 2010 office
visit and examination by Dr. Michael A. Braxton. AR pp. 251-57.
The report did not contain any assessment of the plaintiff’s
ability to perform work-related activities.
The ALJ did not
specifically discuss or evaluate this evidence in his decision.
Similarly, the record includes some medical records from primary
care physician Dr. Gerald M. Barber.
Because the plaintiff
provided them with the request for review to the Appeals Council,
the ALJ could not have considered these records. AR pp. 13, 288300.
14

Dr. Fote also completed a range of motion chart, which
indicated limitations in range of motion of the cervical and lumbar
spine. AR p. 228. The ALJ did not mention this part of Dr. Fote’s
report.
12

the

ALJ

noted

in

his

decision,

Dr.

Fote

concluded

that

the

plaintiff did not need an assistive device, and “should be able to
sit and stand, pull and push as tolerated,” and should also be able
to kneel, crawl, crouch, reach, grasp, handle and finger objects.
AR pp. 37, 227.

With regard to his consideration of Dr. Fote’s

assessment, the ALJ simply stated that he had “considered this
opinion, but finds the claimant has limitations based on his
medical records.”

AR p. 37.

The ALJ did not specifically state

what weight, if any, he gave to Dr. Fote’s findings or opinions.15
Based on this review of the medical reports and the record as
a whole, Dr. Fote’s report does constitute first-hand medical
evidence - he examined the plaintiff to complete his consultive
examination.

However, Dr. Fote’s assessment does not contradict

the assessment and specific conclusions of Dr. Clark.

It simply

states Dr. Fote’s unexplained belief that the plaintiff should be
able to do certain things, such as, sit, stand, pull, kneel and
reach,

“as

tolerated.”

Dr.

Fote’s

report

not

only

fails

to

controvert Dr. Clark’s opinions, it provides no actual information
or opinions on the limitations caused by the plaintiff’s severe

15

The record includes an assessment of the plaintiff’s RFC by
a non-examining state agency medical consultant, Dr. Timothy
Honigman. AR pp. 64-67, 231. This medical consultant essentially
found the plaintiff could do a narrower range of light work,
because of postural limitations and limitations on the amount of
standing the plaintiff could do in an eight hour workday. The ALJ
did not mention Dr. Honigman’s assessment in his decision. It is
not clear whether the ALJ considered it or, if he did, what weight
he gave it, if any, in determining the plaintiff’s RFC.
13

spinal impairments and chronic pain.
Without reliable medical evidence from a treating or examining
physician that controverts Dr. Clark’s

opinions and findings, the

ALJ

Clark’s

rejected

performing

and/or

the

regulations.

discredited

detailed

Dr.

analysis

required

by

opinions
Newton

without
and

the

There is nothing in the ALJ’s decision that even

resembles the type of analysis called for in Newton - consideration
of factors such as Dr. Clark’s specialization, the length and
frequency of his treatment, the nature and extent of his treatment
relationship

with

the

plaintiff,

the

extent

his

opinion

is

supported by the medical signs and laboratory findings, and the
consistency of his opinions with the record as a whole.
The court also notes that after summarizing Dr. Clark’s
opinions on the plaintiff’s functional abilities, the ALJ simply
referred to the plaintiff’s testimony about how much weight he
could lift and how long he could stand.

AR p. 38.

This is the

only apparent basis on which the ALJ discredited Dr. Clark’s
opinions.

However, the plaintiff did not testify that he could

lift up to 20 pounds.

The ALJ asked, “And what limitations did

your doctor place on you as far as picking up weight?”
replied,
testimony

“No more than 20 pounds.”
from

the

plaintiff

AR p. 48.

about

his

Plaintiff

The few lines of

limitations

constitute the detailed analysis required by Newton.

do

not

Nor does his

testimony constitute substantial evidence to support the ALJ’s
decision to reject or discredit the comprehensive assessments of

14

the plaintiff’s RFC provided by Dr. Clark.
Conclusion
In summary, the ALJ’s perfunctory treatment of Dr. Clark’s
medical opinions constitute reversible error.

This error requires

remand so that the doctor’s reports and opinions, and other
evidence relevant to the plaintiff’s disability claim, can be
considered

and

analyzed

in

accordance

with

the

proper

legal

standards as set forth in Newton and the applicable regulations.16
Insofar as the plaintiff argued that other errors also require
reversal of the Commissioner’s decision, the plaintiff may pursue
any

arguments

related

to

these

claims

of

error

in

the

administrative proceedings on remand.
Accordingly, under sentence four of 42 U.S.C. § 405(g), the
final decision of Acting Commissioner of Social Security Carolyn W.
Colvin denying the application for disability benefits filed by
plaintiff Martin G. Crain is reversed, and this action will be
remanded to the Commissioner for application of the proper legal
standards, and reevaluation of the plaintiff’s claim for disability
benefits.

A separate judgment will be issued.

Baton Rouge, Louisiana, October 15, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

16

See, Jones v. Astrue, 2000 WL 2633793, 10-1 (N.D.Tex. July
5, 2011).
15