Carter v. Commissioner of Social Security Administration et al

Filing 14

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 Joseph B. Carter is affirmed and this action will be dismissed. A separate judgment will be issued. Signed by Magistrate Judge Stephen C. Riedlinger on 10/2/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOSEPH B. CARTER
CIVIL ACTION
VERSUS
NUMBER 14-118-SCR
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Joseph B. Carter 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
(“SSI”).
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 will is
affirmed.
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

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

In applying the substantial evidence standard the court must
review

the

entire

record

as

whole,

but

may

not

reweigh

the

evidence, try the issues de novo, or substitute its judgment for
that of the Commissioner, even if the evidence weighs against the
Commissioner’s decision.

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

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

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

(5th Cir. 2002).
If

the

Commissioner

fails

to

apply

the

correct

legal

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

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

Cir. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981);
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).

Thus,

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

3

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)
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

59

years

of

4

age

at

the

time

of

the

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

Plaintiff obtained

a four year college degree, a masters in business administration
and also completed real estate appraisal licensing training in
1995.

Plaintiff’s past relevant work was employment as a real

estate appraiser from 1993 until July 18, 2011. In his application
for disability benefits the plaintiff asserted that he became
disabled and no longer able to work as of July 18, 2011 because of
osteoarthritis of his vertebra, coronary artery disease and vision
problems.

AR pp. 91-92, 107-113.3

After his application was denied at the initial stages, the
plaintiff requested an ALJ hearing, after which the ALJ issued an
unfavorable decision.

AR pp. 10-38, 50-51.

The ALJ found at the

second step that the plaintiff’s osteoarthritis, degenerative disk
disease, and coronary artery disease were severe impairments.4

At

the third step the ALJ concluded that the plaintiff’s combination
of severe impairments did not meet or medically equal the severity
of any listed impairment.

AR pp. 15-16.

The ALJ then evaluated the plaintiff’s residual functional
capacity

(“RFC”)

to

determine

whether,

despite

his

severe

2

Plaintiff’s age placed him in the category of a person of
advanced age. 20 C.F.R. § 404.1563(e).
3

Plaintiff remains insured for disability benefits through
December 31, 2015. AR p. 13.
4

The ALJ concluded the plaintiff’s vision problems were not
severe under Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).
5

impairments, the plaintiff was able to do any of his past relevant
work or other work in the national economy.5

The ALJ found the

plaintiff had an RFC to perform a full range of light work as
defined in the regulations.6

AR p. 16.

Given this RFC, and based

on the hearing testimony of the vocational expert, Wendy Klamm, the
ALJ concluded that the plaintiff would be able to perform his past
relevant work as a real estate appraiser, as it is performed in the
national economy.7

Therefore, at the fourth step the ALJ concluded

the plaintiff is not disabled.8
In his appeal memorandum the plaintiff argued that the ALJ
committed the following errors that require reversal of the ALJ’s

5

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.
6

“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).
7

Under § 404.1560(b)(2) and the case law it is wellestablished 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); Alexander v.
Astrue, 412 Fed.Appx. 719 (5th Cir. 2011).
8

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.
6

decision: (1) the ALJ should have found severe impairments related
to mild cerebral palsy and idiopathic scoliosis, eyestrain and
light sensitivity; (2) the ALJ should have found the plaintiff had
a listed impairment; (3) the ALJ should have given more weight to
treating physician Dr. Michael Dunn than to the opinions of the
consultative and state agency medical examiners; and (4) the ALJ
should

have

found

that

the

plaintiff

is

unable

to

maintain

employment.

Analysis
Plaintiff argued that at the second step the ALJ should have
found that he had other conditions
cerebral

palsy

and

idiopathic

- vision problems, mild

scoliosis

-

that

were

severe

impairments.
Review of the record does not support the plaintiff’s argument
that the ALJ committed error at step two.

The ALJ determined that

the

severe

plaintiff

had

a

combination

of

impairments

-

osteoarthritis, degenerative disk disease and coronary artery
disease.

There is no indication in the plaintiff’s application or

other records that the plaintiff claimed mild cerebral palsy and
idiopathic

scoliosis

were

severe

impairments.

Moreover,

the

medical and other records either do not mention these conditions,
and there is no indication that they cause any limitations or
restrictions of the plaintiff’s ability to perform work-related

7

activities.9

In his decision, the ALJ specifically addressed

eyestrain and light sensitivity, but found these impairments were
nonsevere.

AR p. 16.

As the ALJ noted, there is a lack of

information in the records regarding any treatment or limitations
resulting from these impairments.

Review of the record as a whole

supports the ALJ’s conclusion. Thus, the ALJ applied the correct
legal standard at step two10 and his findings at this step are
supported by substantial evidence.11
Plaintiff also asserted that the ALJ committed error in his
finding at the third step - that the plaintiff did not have
impairments that meet or medically equal the severity of a listed
impairments in 20 C.F.R. Part 404, Subpt. P, Appendix 1.

The ALJ

stated that in reaching this finding, he specifically considered
Listing 1.02 (Major disfunction of a joint(s)), Listing 1.04
(Disorders of the spine), Listing 4.04 (Ischemic heart disease),
and Listing 14.09 (Inflammatory arthritis).
Listed impairments are descriptions of various physical and
mental illnesses and abnormalities generally characterized by the

9

The mere diagnosis
condition in the medical
impairment is disabling
capacity.
See, Hames v.
1983); Bordelon v. Astrue,

of an impairment or the mention of a
records, does not establish that the
or affects a claimant’s functional
Heckler, 707 F.2d 162, 165 (5th Cir.
281 Fed.Appx. 418 (5th Cir. 2008).

10

The ALJ cited and applied the correct legal standard Stone v. Heckler. AR pp. 15-16.
11

See, AR pp. 29-31, 35-36, 111, 127, 133-34, 166, 170, 172,
175, 191-92.
8

body system they affect.
several

specific

results.

medical

Each impairment is defined in terms of
signs,

symptoms,

or

laboratory

test

For a claimant to show that his impairment matches a

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

An impairment that

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

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

885, 891-92 (1990); 20 C.F.R. § 404.1525.

The criteria for

listings is stringent, and it is the plaintiff’s burden to prove
that his condition satisfies a listing.

Falco v. Shalala, 27 F.3d

160, 162 (5th Cir. 1994).
Here, the plaintiff has simply made a conclusory assertion
that he should be found disabled at the third step based on a
listing.

This is insufficient to demonstrate the ALJ committed an

error at this step of the analysis.

Moreover, for the reasons

explained by the Commissioner, review of the record as a whole
shows that substantial evidence supports the ALJ’s conclusion at
step three that the plaintiff is not disabled.12

This claim of

error is unsupported.
In his analysis of the evidence, the ALJ gave little weight to
Dr. Dunn’s opinion,13 and greater weight to the opinions of the

12

Record document
Memorandum, pp. 5-9.
13

number

11,

Defendant’s

Opposition

AR p. 184, November 10, 2011 letter signed by Michael A.
(continued...)
9

state agency medical consultant Dr. Charles Lee,14 and the state
agency medical examiner Dr. Stephen Wilson.15

Plaintiff argued the

ALJ committed legal error in discounting the opinions of treating
physician Dr. Dunn, and giving more evidentiary weight to the
reports of Drs. Lee and Wilson.
The legal principles governing the review of a claim that the
ALJ erred in weighing the medical reports and opinions are wellestablished.
physician

Although the opinion and diagnosis of a treating

should

generally

be

given

considerable

weight

in

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

of

a

conclusory,

treating
unsupported

doctor’s
by

The ALJ may discount the

medical

medically

opinion

when

acceptable

it

is

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 the evidence
supports a contrary conclusion.

Bradley, 809 F.2d at 1057.

The regulations also state that when the ALJ finds the medical

13

(...continued)
Dunn M.D. and addressed, “To Whom it May Concern.”
14

AR pp. 42-44, Charles Lee, M.D., assessment dated October
6, 2011.
15

AR pp. 185-92, Stephen M. Wilson, M.D., report of physical
examination and statement of ability to do work-related activities
dated September 7, 2012.
10

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.

20 C.F.R. §§ 404.1527(c) and

(d); SSR 96-2p;16 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.”
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).

16

TITLES II AND XVI: GIVING CONTROLLING WEIGHT TO TREATING
SOURCE MEDICAL OPINIONS, 1996 WL 374188.
11

Based on these legal principles, review of the ALJ’s decision
demonstrates that this claim of error has no merit.

To the extent

that Dr. Dunn rendered any opinion that the plaintiff was unable to
work, or maintain gainful employment, this type of statement is not
a medical opinion to which the regulatory factors are applied, and
under the regulations such a statement is not given any special
significance.

Since there was first-hand medical evidence from

other sources, the ALJ was also not required to consider and
analyze each factor listed in the regulations.
Nevertheless, the ALJ gave a detailed explanation and had good
cause for not fully crediting the statements by Dr. Dunn in his
November 2011 letter. As discussed by the ALJ, Dr. Dunn’s opinions
were conclusory, and were not supported by objective findings
contained in records of his treatment or treatment by other medical
sources.

Furthermore, Dr. Dunn’s statements about the plaintiff’s

ability to work were not only unsupported, they were inconsistent
with other evidence in the record, such as the report of the
consultative examination, the assessment of Dr. Lee, and evidence
of the plaintiff’s ability to do various activities on a daily
basis.

Dr. Lee concluded in his assessment that the plaintiff was

capable of light work.

AR pp.

42-45, 81.

The consultative

examination and report by Dr. Wilson in September 2012 showed that
the plaintiff was capable of doing the sitting, standing, walking,
lifting, carrying and other requirements of light work as it is

12

defined

in

the

regulations.

AR

pp.

185-90.

On

physical

examination, Dr. Wilson essentially reported that his orthopedic
and neurological examination of the plaintiff’s upper and lower
extremities was normal - no evidence of muscle spasm, weakness or
atrophy, deformities, decreased range of motion, or numbness.
Plaintiff had good strength in his lower extremities and a negative
straight leg raising test.

AR pp. 191-92.

Plaintiff’s hearing

testimony and statements in his disability application about his
daily activities are also consistent with the assessments of Drs.
Wilson and Lee.

Plaintiff testified at the hearing that his

doctors advised him not to jog, but he could walk and do some
lifting.

Plaintiff stated that he is able to drive and regularly

pick up about 20 pounds, and that if he went early in the morning
he would be able to go to the store and get a 60 pound bag of sand,
and get it in and out of his trunk onto a wheelbarrow.

Plaintiff

reported that he is able to take a walk every day and do light
housework, household repairs, shopping, attend church and mow the
yard.

AR pp. 31-35, 128-31.
Thus, it is apparent that in analyzing and weighing the

medical reports and opinions, including those of Dr. Dunn, the ALJ
applied the correct legal standards. The evidence relied on by the
ALJ provided substantial evidentiary support for his decision to
give little weight to Dr. Dunn’s conclusory opinions regarding the
plaintiff’s ability to work and maintain employment.

13

Plaintiff’s final claim is that the ALJ erred by not making a
finding on whether he could maintain employment.17
error is unsupported.

This claim of

By definition, residual functional capacity

is a measure of a claimant’s capacity to do physical and mental
work activities on a regular and sustained basis.

20 C.F.R. §§

404.1545 and 416.945; SSR 96–8p. As explained and clarified by the
Fifth Circuit in Frank v. Barnhart18 and Perez v. Barnhart,19 the ALJ
is not required in every case to make a specific finding regarding
the claimant’s ability to maintain employment.

Such a finding is

generally implicit in the assessment of the claimant’s RFC.

An

explicit finding that the claimant can maintain employment is not
required unless there is evidence in the record that the disabling
symptoms of the claimant’s condition wax and wane.
Here, the plaintiff failed to point to evidence which
demonstrates that the ALJ was required to make a specific finding
that

he

could

also

maintain

employment.

Review

of

the

administrative record as a whole does not reveal the type of
objective evidence that indicates the plaintiff’s symptoms have
frequent periods of increasing/decreasing severity.20

17

The ALJ was

See, Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002).

18

326 F.3d 618 (5th Cir. 2002); Dunbar v. Barnhart, 330 F.3d
670 (5th Cir. 2003).
19

415 F.3d at 465.

20

Perez, 415 F.3d at 465 (plaintiff’s testimony that he had
(continued...)
14

not required to make a separate determination that the plaintiff
was not only capable of substantial gainful activity but also able
to maintain employment, i.e., hold a job for a significant period
of time.21
The ALJ determined the plaintiff had an RFC for light work.
This RFC finding is supported by substantial evidence - the reports
of Drs. Wilson and Lee, and the plaintiff’s own testimony and
statements about his functioning and daily activities.

Given an

RFC for light work and based on the vocational testimony given by
the expert at the administrative hearing, the ALJ determined at the
fourth step that the plaintiff would be able to do the job of real
estate appraiser as it is performed in the national economy.
pp. 19-20, 29.

AR

This vocational evidence provides substantial

evidence to support the ALJ’s conclusion at step four that the
plaintiff could perform this past work and is not disabled.
Conclusion
Whether the plaintiff was diagnosed with osteoarthritis,

20

(...continued)
good days and bad days, or that his pain waxes and wanes,
insufficient to establish factual basis requiring ALJ to make a
separate finding the plaintiff was able to maintain employment).
21

“Watson holds that in order to support a finding of
disability, the claimant’s intermittently recurring symptoms must
be of sufficient frequency or severity to prevent the claimant from
holding a job for a significant period of time.” The claimant must
establish the factual predicate required by Watson to necessitate
a separate finding. Frank, 326 F.3d at 619-20.
15

degenerative disk disease, mild cerebral palsy or other conditions
does not determine whether he is disabled.

Disability within the

meaning of the Social Security Act is not based on a diagnosis.
Rather, disability is established when the claimant’s medically
determinable

impairments

or

combination

of

impairments

cause

functional limitations that prevent the performance of substantial
gainful activity.
The analysis above demonstrates that the ALJ’s finding at the
fourth

step

that

the

plaintiff’s

severe

impairments

did

not

preclude him from engaging in substantial gainful activity is
supported by substantial evidence. The ALJ also applied the proper
legal standards in reaching his decision.

Plaintiff’s claims of

error are without merit, and the final decision of the Commissioner
is affirmed.
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 Joseph B. Carter is affirmed and this action will be
dismissed.

A separate judgment will be issued.

Baton Rouge, Louisiana, October 2, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

16