Parker v Commissioner of Social Security Administration

Filing 13

RULING : Under sentence four of 42 U.S.C. § 405(g), the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security, denying the application for disability income benefits filed by plaintiff John Robert Parker, is affirmed. A separate judgment will be issued. Signed by Magistrate Judge Stephen C. Riedlinger on 10/30/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOHN ROBERT PARKER
CIVIL ACTION
VERSUS
NUMBER 14-177-SCR
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff John Robert Parker 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 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
In applying the substantial evidence standard the court must
review

the

entire

record

as

whole,

1

but

may

not

reweigh

the

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

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

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

3

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.
Listed impairments are descriptions of various physical and
mental illnesses and abnormalities generally characterized by the
body system they affect.
several
results.

specific

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).
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.

4

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 also completed automotive machinist training.
Plaintiff’s past relevant work consisted of employment as an
equipment operator, mechanic, modular building repair technician,
and

modular

building

yard

foreman.

In

his

application

for

disability benefits filed in June 2011, the plaintiff claimed that
he is disabled and no longer able to work because of a back injury,
left eye blindness, depression and learning disabilities.

AR pp.

90-95, 127-32, 204-09.
After his application was denied at the initial stages, the
plaintiff requested an ALJ hearing after which the ALJ issued an
unfavorable decision.
second

step

that

the

AR pp. 10-40, 50-89.
plaintiff

2

had

a

The ALJ found at the

combination

of

severe

Plaintiff’s age placed him in the category of “younger
person.” 20 C.F.R. § 404.1563(c).
5

impairments - blindness in one eye,3 disorder of the lumbar spine,4
borderline intellectual functioning, mood disorder, post traumatic
stress disorder and substance abuse.

At the third step the ALJ

concluded that the plaintiff’s combination of severe impairments
did

not

meet

impairment.

or

medically

equal

the

severity

of

any

listed

AR pp. 14-16.

The ALJ then evaluated the plaintiff’s residual functional
capacity (“RFC”) to determine whether the plaintiff was able to do
any of his past relevant work or other work in the national
economy.5
work

as

The ALJ found the plaintiff had an RFC to perform light
defined

in

the

regulations,6

but

also

found

other

3

Blindness in plaintiff’s left eye was caused by traumatic
injury to the eye when the plaintiff was 18 months old. AR pp.
258-62. Plaintiff’s vision in his right eye is 20/20. The state
agency medical consultant, Dr. James H. Dew, stated the plaintiff
had a visual impairment, but it did not meet the listing and was
non-severe. AR p. 419. Nevertheless, the ALJ did not fully credit
Dr. Dew’s opinion and found that the plaintiff’s left eye blindness
is one of his severe impairments. AR p. 17.
4

The record indicates a history of back injury and pain since
2008.
Plaintiff was treated with some prescribed medication,
physical therapy, and injections, but at the time of the hearing
the plaintiff stated he was taking over-the-counter medicine for
back pain. See, AR pp. 32-33, 264-77, 294-311, 326-57, 367-69,
377-78, 383-90, 403, 410-14.
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
(continued...)
6

nonexertional limitations.

He determined the plaintiff was also

limited to: (1) no more than frequent use of the right lower
extremity

for

foot

controls,

pedals

or

similar

devices;

(2)

frequent postural activities; and, (3) unskilled work and contact
with the public only incidental to the work performed.
Given

this

RFC,

and

based

on

the

hearing

AR p. 16.

testimony

of

the

vocational expert, Harris N. Rowzie, the ALJ concluded that the
plaintiff would not be able to perform any of his past relevant
work.

However, based on the plaintiff’s age, education, work

experience and RFC the expert identified several jobs in the
national economy the plaintiff could perform - bottle packer and
poultry dresser.

Rowzie named these two examples, and also

testified that beyond these two examples there are many others. AR
pp. 16-21, 31.

Therefore, at the fifth step the ALJ found the

plaintiff is not disabled.7
In his appeal memorandum the plaintiff argued that the ALJ
committed the following errors that require reversal of the ALJ’s
decision: (1) at step three the ALJ should have found the plaintiff
had a listed impairment; (2) the ALJ erred by discounting the

6

(...continued)
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

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.
7

evidence from the plaintiff’s treating physicians and giving more
weight to the reports and opinions of the consultative and state
agency medical examiners; and (3) the ALJ erred in finding the
plaintiff had the ability to perform light work.
Based on the standard of judicial review and a careful review
of the entire administrative record as a whole, the plaintiff’s
claims of reversible error are unsupported and without merit.
Analysis
At step two the ALJ determined that the plaintiff had a
combination of severe impairments, consisting of blindness in one
eye,

disorder

of

the

lumbar

spine,

borderline

intellectual

functioning, mood disorder, post traumatic stress disorder and
substance abuse.

AR p. 14.

finding at step two.8

Plaintiff agreed with the ALJ’s

However, the plaintiff alleged error at step

three, claiming the ALJ should have concluded his impairment or
combination of impairments met the severity of one of the listed
impairments found in Appendix 1. 20 C.F.R. Ch. III, Pt. 404, Subpt.
P, App. 1.
Plaintiff did not identify any specific listing under which he
believed the ALJ should have found him disabled, nor did he cite
what evidence in the record established he satisfied the criteria
of a listing.

Plaintiff has the burden of proving that his

8

Record document number 1-5, Memorandum in Support of Appeal
& Applicant’s Eligibility and Disability, p. 2.
8

impairment matches a listed impairment by specifying the medical
findings and evidence, which demonstrate he meets all of the
medical criteria specified in a particular listing.
failed to do this.

Plaintiff

Plaintiff simply made a conclusory assertion

that he should be found disabled based on a listing.

This is

insufficient to establish the ALJ made an erroneous finding at step
three.

Moreover, for the reasons and evidence cited by the

Commissioner,
substantial

review

evidence

of

the

supports

record
the

as

a

ALJ’s

whole

shows

conclusion

that

that
the

plaintiff is not disabled based on any listed impairment, including
Listings 1.04 (Disorders of the spine), 2.02 (Loss of central
visual acuity), 12.02 (Organic Mental Disorders), 12.04 (Affective
Disorders), 12.05 (Intellectual disability), and 12.06 (Anxiety
Related Disorders).9

Thus, the plaintiff’s alleged claim of error

at the third step is without merit.
With regard to the RFC finding, the plaintiff argued that it
is not supported by substantial evidence.

Review of the record as

a whole establishes that there is substantial evidentiary support
for the ALJ’s RFC finding.

The ALJ concluded that, because of

limitations associated with his back condition and mood disorder,
the plaintiff could perform a modified range of light work.

This

finding is supported by the following evidence and medical source

9

Record
document
Memorandum, pp. 5-15.

number
9

12,

Defendant’s

Opposition

reports contained in the record. Dr. Stephen M. Wilson of the Bone
and Joint Clinic performed a consultative examination on October 5,
2012.

After reviewing the medical records and performing a

physical examination, Dr. Wilson found the plaintiff: (1) was
limited to occasionally lifting and carrying 21 to 50 pounds, but
frequently lifting and carrying up to 20 pounds; (2) was capable of
sitting four hours, standing two hours, and walking two hours, at
one time, without interruption; (3) was capable of sitting for 8
hours total in an 8 hour work day, standing for a total of 6 hours
and walking for a total of 4 hours; (4) did not require a cane to
ambulate; (5) no limitations in use of his hands and feet except
for limited to frequent, rather than continuous, pushing/pulling,
and operation of foot controls; (6) could occasionally climb
stairs/ramps, ladders/scaffolds, balance, stoop, kneel, crouch and
crawl; (7) had no environmental limitations, except for not being
able to work at unprotected heights; and (8) had no limitations on
other daily activities such as shopping, traveling, walking on
uneven surfaces, using public transportation, climbing stairs using
a single hand rail, preparing simple meals, personal care, or
sorting, handling/using papers and files.

AR pp. 473-80.

These

findings by Dr. Wilson are consistent with and fall within the
scope of the regulatory definition of light work.10

10

20 C.F.R. § 404.1567(b)(light work); SSR 83-10, Titles II
and XVI: Determining Capability To Do Other Work-The Medical(continued...)
10

State agency medical consultant Dr. Roy Rubin reviewed the
medical

records

and

provided

a

residual

assessment dated October 24, 2011.
essentially

that

requirements

of

the

plaintiff

medium

work.

functional

capacity

Dr. Rubin’s findings were

could
AR

perform

pp.

the

exertional

420-27.

Under

the

regulations, an individual who can do a medium level work is also
able to perform light work.11

Dr. Rubin noted that the plaintiff

was limited to: (1) frequent pushing and/or pulling in the right
lower extremity due to radicular symptoms; and (2) due to his back
condition

frequently

performing

postural

activities

such

as

climbing, balancing, stooping, kneeling, crouching and crawling.
AR p. 421-22.
With regard to the plaintiff’s mental impairments, the record
contained an October 24, 2011 psychological evaluation by licensed
clinical psychologist Valerie McAdams, PsyD, and a mental residual
functional

capacity

assessment

by

state

agency

psychological

consultant Irma Best, Ph.D., completed on November 23, 2011.12

The

assessment

had

completed

by

Best

stated

that

the

plaintiff

moderation limitation in his ability to understand and remember

10

(...continued)
Vocational Rules Of Appendix 2, 1983 WL 31251, *5-6.
11

“Medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25
pounds. if someone can do medium work, we determine that he or she
can also do sedentary and light work. 20 C.F.R. § 404.1567(c).
12

AR pp. 429-50.
11

detailed instructions, but could do “simple tasks.”

Best also

concluded the plaintiff had: (1) moderate limitation in his ability
to carry out detailed instructions; (2) moderate limitation in his
ability

to

sustain

concentration

for

extended

periods,

with

concentration adequate for basic activities; and, (3) occasional
limitation in his ability to interact with the general public and
coworkers, with the ability to maintain basic social interactions.
AR p. 450.
The evidence cited above is relevant and sufficient for a
reasonable mind to accept as adequate support for the ALJ’s RFC
finding.

Thus, the ALJ’s conclusion the plaintiff can do light

work, but is also limited to frequent postural activities, no more
than frequent use of the right lower extremity for foot controls,
pedals or similar devices, and unskilled work where contact with
the public is only incidental to the work performed, is supported
by substantial evidence and must be affirmed.13
Finally, the plaintiff argued the ALJ committed legal error by
giving more weight to the evaluations done by the consultative and
state agency medical examiners, rather than the reports of his
treating physicians.

Review of the record as a whole in light of

the applicable legal standards shows that this claim of error is

13

The fact that the plaintiff can cite some evidence in the
record that supports his claim is irrelevant in terms of judicial
review. As long as the ALJ's finding or decision is supported by
substantial evidence in the record as a whole it must be affirmed.
12

also unsupported.
It is the role of the ALJ to weigh the evidence and resolve
conflicts in the evidence. Greenspan v. Shalala, 38 F.3d 232, 240
(5th Cir. 1994); Wingo v. Bowen, 852 F.2d 827, 830 (5th Cir. 1988).
It is well established that the opinion and diagnosis of a treating
physician

should

generally

be

given

considerable

weight

in

determining disability. It is equally 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, 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
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;14 Newton, 209 F.3d at 456.

14

Nevertheless, the ALJ

TITLES II AND XVI: GIVING CONTROLLING WEIGHT TO TREATING
SOURCE MEDICAL OPINIONS, 1996 WL 374188.
13

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’s.

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).
To the extent any treating sources stated that no jobs are
available to the plaintiff or that the plaintiff is partially
disabled, such statements are not medical opinions.

AR p. 482-86.

Therefore, the ALJ was not required to give them any special
consideration or significance. Id.

Furthermore, the ALJ had good

cause not to credit Dr. Taylor’s November 2012 report, and his
decision is supported by substantial evidence.
statements

were

conclusory

and

14

inconsistent

Dr. Taylor’s

with

the

other

objective medical evidence in the record.

Not only do the reports

of Dr. Wilson and Dr. Roy support the ALJ’s findings, the medical
records from the plaintiff’s treating doctors during 2010 and 2011
also support the conclusion that the plaintiff can do a modified
range of light work.15

The ALJ’s evaluation of the evidence,

including the opinions of the various medical sources contained in
the record, complied with the relevant legal standards.

Plaintiff

failed to demonstrate that the ALJ committed any error in weighing
the evidence.
At the fourth step, the ALJ found that the plaintiff could not
do any of his past relevant work because the requirements of that
work exceeded his RFC.

Therefore, the ALJ had to proceed to the

final step to determine whether there was other work the plaintiff
could do that exists in significant numbers in the national
economy.16

Because the plaintiff’s ability to do light work was

15

See, e.g., AR pp. 340-47, 352, 355, 357, 385. The ALJ’s
analysis of the evidence shows that the ALJ carefully considered
each of the doctor’s reports and opinions. The ALJ did not fully
credit the reports of Drs. Wilson and Roy which indicated the
plaintiff could do medium work, but adopted their assessments to
the extent they supported the conclusion that the plaintiff could
do a modified range of light work. AR pp. 17-19.
16

Work exists in the national economy when it exists in
significant numbers either in the region where the claimant lives
or in several other regions of the country; when there is a
significant number of jobs, in one or more occupations, having
requirements which the claimant is able to meet with his physical
or mental abilities and qualifications. It does not matter whether
work exists in the immediate area in which the claimant lives, a
specific job vacancy exists for the claimant, or the claimant would
(continued...)
15

reduced by postural and other nonexertional limitations, the ALJ
correctly relied on the testimony of a vocational expert.17

In

response to the questions presented at the hearing, which fairly
incorporated all of the plaintiff’s limitations recognized by the
ALJ, the vocational expert testified that there were jobs existing
in significant numbers in the national economy that the plaintiff
would be able to perform, and the expert gave two examples - bottle
packer and poultry dresser.

This vocational evidence constitutes

substantial evidence to support the ALJ’s finding at the fifth step
that the plaintiff is not disabled because he can perform other
work existing in significant numbers in the national economy.
Conclusion
Based on the standard of judicial review under § 405(g), and
a careful review of the entire administrative record as a whole,
the plaintiff’s claims of error are without merit.

The analysis

above demonstrates that the proper legal standards were applied and

16

(...continued)
be hired if he applied for work. However, isolated jobs that exist
only in very limited numbers in relatively few locations outside of
the region where the claimant lives are not considered work which
exists in the national economy. 20 C.F.R. § 404.1566(a).
17

It is well established that if a claimant has nonexertional
limitations the ALJ uses the Medical-Vocational Guidelines only as
a framework, and is required to obtain vocational expert testimony
to support the finding at step five of the disability analysis.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); Fields v.
Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986); Vaughn v. Shalala, 58
F.3d 129, 132 (5th Cir. 1995).
16

that substantial evidence supports the determination at the fifth
step that the plaintiff is not disabled.
Accordingly, under sentence four of 42 U.S.C. § 405(g), the
final decision of Carolyn W. Colvin, Acting Commissioner of Social
Security, denying the application for disability income benefits
filed by plaintiff John Robert Parker, is affirmed.
A separate judgment will be issued.
Baton Rouge, Louisiana, October 30, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

17