Trahan v. Social Security Administration

Filing 16

MEMORANDUM RULING AND ORDER re 1 Complaint, filed by Larry J Trahan. Considering the administrative record, the briefs of the parties, and the applicable law, the Commissioner's decision is REVERSED AND REMANDED. Signed by Magistrate Judge Carol B Whitehurst on 3/28/2019. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
LARRY J. TRAHAN

CIVIL ACTION NO. 6:17-1133

VERSUS

MAGISTRATE JUDGE WHITEHURST

U.S. COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION

BY CONSENT OF THE PARTIES

MEMORANDUM RULING AND ORDER
Before the Court is an appeal of the Commissioner’s finding of non-disability.
Considering the administrative record, the briefs of the parties, and the applicable
law, the Commissioner’s decision is REVERSED AND REMANDED.
ADMINISTRATIVE PROCEEDINGS
The claimant, Larry J. Trahan, fully exhausted his administrative remedies prior
to filing this action in federal court. The claimant filed an application for disability
insurance benefits (“DIB”), alleging an onset date of April 2, 2015.1 His application
was denied on June 12, 2015.2 The claimant requested a hearing, which was held on
July 28, 2016 before Administrative Law Judge Kim A. Fields.3 The ALJ issued a

1

Rec. Doc. at 33. The record shows that the claimant has acquired sufficient quarters
of coverage to remain insured through December 31, 2018.
2

Tr. 91-94.

3

The hearing transcript is found at Tr. 33-44.

decision on September 21, 2016,4 concluding that the claimant has not been under a
disability from April 2, 2015 through the date of the ALJ’s decision.
The claimant asked for review of the decision, and the Appeals Council denied
this request on July 28, 2017.5 Therefore, ALJ Fields’s September 21, 2016 decision
became the final decision of the Commissioner for the purpose of the Court’s review
pursuant to 42 U.S.C. §405(g). The claimant then filed this action seeking review of
the Commissioner’s decision.
SUMMARY

OF

PERTINENT FACTS

The claimant was born in June 1967 and was 47 years old on his alleged onset
date of April 2, 2015. He is considered a younger individual under the Act. The
claimant is a high school graduate and attended one year of trade school during high
school for auto mechanics, but did not complete the course work. He worked in the
oilfield for thirteen years, but quit that job because he could no longer climb. The
claimant then tried working in the apartment business for approximately one year, but
the work was too hard on his feet. The claimant subsequently worked as a car
salesman at a used car lot for eighteen years. He stopped working this job because
he was having trouble with his legs and back.

4

Tr. 48-77.

5

Tr. 1-3.

-2-

The claimant alleges that he has been disabled since April 2, 2015 due to his
club feet with triple orthodesis fusion, arthritis in his back and hip, degenerative
spinal problems, and spurs on discs in his back.6
ANALYSIS
A.

STANDARD

OF

REVIEW

Judicial review of the Commissioner's denial of disability benefits is limited
to determining whether substantial evidence supports the decision and whether the
proper legal standards were used in evaluating the evidence.7 “Substantial evidence
is more than a scintilla, less than a preponderance, and is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”8 Substantial
evidence “must do more than create a suspicion of the existence of the fact to be
established, but ‘no substantial evidence’ will only be found when there is a
‘conspicuous absence of credible choices' or ‘no contrary medical evidence.’”9

6

Tr. 167.

7

Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Martinez v. Chater, 64 F.3d
172, 173 (5 Cir. 1995).
th

8

Villa v. Sullivan, 895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164
(5 Cir. 1983)).
th

9

Hames v. Heckler, 707 F.2d at 164 (quoting Hemphill v. Weinberger, 483 F.2d 1137.
1139 (5 Cir. 1973), and Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973)).
th

-3-

If the Commissioner's findings are supported by substantial evidence, then they
are conclusive and must be affirmed.10 In reviewing the Commissioner's findings, a
court must carefully examine the entire record, but refrain from re-weighing the
evidence or substituting its judgment for that of the Commissioner.11 Conflicts in the
evidence and credibility assessments are for the Commissioner to resolve, not the
courts.12 Four elements of proof are weighed by the courts in determining if
substantial evidence supports the Commissioner's determination: (1) objective
medical facts, (2) diagnoses and opinions of treating and examining physicians, (3)
the claimant's subjective evidence of pain and disability, and (4) the claimant's age,
education and work experience.13
B.

Entitlement to Benefits
The Disability Insurance Benefit (“DIB”) program provides income to

individuals who are forced into involuntary, premature retirement, provided they are

10

42 U.S.C. § 405(g); Martinez v. Chater, 64 F.3d at 173; Carey v. Apfel, 230 F.3d 131,
135 (5 Cir. 2000).
th

11

Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Villa v. Sullivan, 895 F.2d at
1021; Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Carey v. Apfel, 230 F.3d at 135; Boyd v.
Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
12

Martinez v. Chater, 64 F.3d at 174.

13

Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991); Martinez v. Chater, 64 F.3d at

174.

-4-

both insured and disabled, regardless of indigence.14 Every individual who meets
certain income and resource requirements, has filed an application for benefits, and
is determined to be disabled is eligible to receive Supplemental Security Income
(“SSI”) benefits.15
The term “disabled” or “disability” means the inability to “engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.”16 A
claimant shall be determined to be disabled only if his physical or mental impairment
or impairments are so severe that he is unable to not only do his previous work, but
cannot, considering his age, education, and work experience, participate in any other
kind of substantial gainful work which exists in significant numbers in the national
economy, regardless of whether such work exists in the area in which the claimant
lives, whether a specific job vacancy exists, or whether the claimant would be hired
if he applied for work.17

14

See 42 U.S.C. § 423(a).

15

42 U.S.C. § 1382(a)(1) & (2).

16

42 U.S.C. § 1382c(a)(3)(A).

17

42 U.S.C. § 1382c(a)(3)(B).

-5-

C.

Evaluation Process and Burden of Proof
The Commissioner uses a sequential five-step inquiry to determine whether a

claimant is disabled. This process required the ALJ to determine whether the
claimant (1) is currently working; (2) has a severe impairment; (3) has an impairment
listed in or medically equivalent to those in 20 C.F.R. Part 404, Subpart P, Appendix
1; (4) is able to do the kind of work he did in the past; and (5) can perform any other
work at step five.18 If it is determined at any step of that process that a claimant is or
is not disabled, the sequential process ends. “A finding that a claimant is disabled or
is not disabled at any point in the five-step review is conclusive and terminates the
analysis.”19
Before going from step three to step four, the Commissioner assesses the
claimant's residual functional capacity20 by determining the most the claimant can still
do despite his physical and mental limitations based on all relevant evidence in the
record.21 The claimant's residual functional capacity is used at the fourth step to

18

20 C.F.R. § 404.1520; see, e.g., Wren v. Sullivan, 925 F.2d at 125; Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 271-72 (5th Cir. 2002);
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
19

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. den. 914 U.S. 1120
(1995) (quoting Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)).
20

20 C.F.R. § 404.1520(a)(4).

21

20 C.F.R. § 404.1545(a)(1).

-6-

determine if he can still do his past relevant work and at the fifth step to determine
whether he can adjust to any other type of work.22
The claimant bears the burden of proof on the first four steps.23 At the fifth
step, however, the Commissioner bears the burden of showing that the claimant can
perform other substantial work in the national economy.24 This burden may be
satisfied by reference to the Medical-Vocational Guidelines of the regulations, by
expert vocational testimony, or by other similar evidence.25 If the Commissioner
makes the necessary showing at step five, the burden shifts back to the claimant to
rebut this finding.26 If the Commissioner determines that the claimant is disabled or
not disabled at any step, the analysis ends.27

22

20 C.F.R. § 404.1520(e).

23

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
24

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
25

Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).

26

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
27

Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992), citing Johnson v. Bowen, 851
F.2d 748, 751 (5th Cir. 1988). See, also, 20 C.F.R. § 404.1520(a)(4).

-7-

D.

THE ALJ’S FINDINGS AND CONCLUSIONS
On appeal to this Court is ALJ Fields’s September 21, 2016 decision that the

claimant is not disabled because he has the functional capacity to perform sedentary
work with certain modifications, including the jobs of telephone solicitor and check
cashier.28
E.

THE ALLEGATIONS

OF

ERROR

Mr. Trahan challenges the ALJ’s failure to properly apply controlling law in
evaluating the medical opinions of Dr. Charles Olivier, the claimant’s treating
physician; failure to apply controlling law in evaluating the claimant’s credibility; and
failure to properly assess the claimant’s residual functional capacity.
Medical Background
Dr. Olivier is the claimant’s treating physician, having treated him from
approximately April 15, 2015 to November 2016. Initially, the claimant was
evaluated by Dr. Olivier for bilateral leg pain, low back pain, and hip pain. The
claimant was born with a left club foot, for which he underwent surgery. The
claimant stated he had difficulty walking in the mornings. Examination of the
claimant’s back showed loss of lumbar lordosis and midline tenderness. The claimant
had left foot numbness of the third, fourth, and fifth toes. He limped when walking
28

Tr. 43.

-8-

and his left foot examination showed stiffness, diminished sensation at the third,
fourth, and fifth toes, and was rigid. X-rays of the lumbar spine showed moderate
degenerative changes, especially at the L2-3 level, and spurs on the superior end
plates of L4 and L5. Bilateral hip x-ray showed a normal left hip, but probable
subluxation of the right hip. On April 15, 2015, Dr. Olivier diagnosed the claimant
with low back pain, pain in hip, lumbar/lumbosacral disc degenerative disease, club
foot, and dysplasia of the right hip, and the claimant was prescribed Mobic and a back
brace. Dr. Olivier opined that the claimant should be limited to light duty work and
should “check into disability.”29
On June 15, 2015, Dr. Olivier reported that the claimant was doing a little
better and was responding well to Mobic and the use of the back brace. However, the
claimant’s diagnosis did not change, and Dr. Olivier again opined that the claimant
was restricted to “light duty.” At that time, Dr. Olivier prescribed a cane for
walking.30 On August 10, 2015, the claimant reported he was doing the same, yet on
this date, Dr. Olivier opined that the claimant was restricted to “no duty.”31

29

Tr. 359-60.

30

Tr. 274-75.

31

Tr. 278-79.

-9-

On October 9, 2015, Dr. Oliver completed a Medical Source Statement, in
which he reported the following restrictions: inability to sit for 6 hours in an 8-hour
workday due to back and hip pain; inability to stand/walk for 2 hours in an 8-hour
workday due to pain; limited to standing/walking for 15 minutes at one time; the need
to alternate positions between sitting and standing every 15 minutes to alleviate pain
and numbness; the need to use a cane or assistance device when engaging in
occasional standing/walking; limited range of motion of the cervical spine; difficulty
maintaining neck flexion for longer than 30 minutes at one time; lifting of 10 pounds
or less; the need to elevate legs two feet high multiple times per day (hourly) with
prolonged sitting; and the need to take unscheduled breaks during the workdays due
to his impairments. Dr. Olivier reported that the claimant would be expected to miss
work or leave early due to his impairments multiple times per week. Dr. Oliver
further opined the claimant likely be “off task” 25% or more of the workday due to
his symptoms interfering with his attention and concentration.32
In an updated Medical Source Statement completed by Dr. Olivier on July 20,
2016, Dr. Olivier reported that the claimant continued to have substantially similar
functional limitations as stated in the October 2015 Statement, and continued to have

32

Tr. 280-82.

-10-

these limitations through the date of completion of the form. On December 28, 2015,
Dr. Olivier opined that the claimant, who was having the same pain, was “disabled.”33
On April 29, 2016, Dr. Olivier reported that the claimant had the same impairments
and pain.34
Dr. Olivier’s opinions are accompanied by the diagnostic testing the claimant
underwent at his request. X-rays dated October 9, 2015 showed diffuse degenerative
changes throughout the cervical spine, but worse at C3-4, C5-6 and C6-7.35 Lumbar
x-rays showed moderate degenerative changes, especially at L2-3, and spurs on
superior end plates at L4 and L5.36 The right hip x-ray revealed subluxation of the
hip head, and that the right hip looked shorter.37 Dr. Olivier’s assessment was
paresthesia of the skin, intervertebral lumbar disc degeneration, congenital
deformities of the feet, and cervical spondylosis.38
On November 4, 2015, EMG/NCV testing revealed severe bilateral carpal
tunnel syndromes (“CTS”), severe bilateral cubital tunnel syndromes, and bilateral
33

Tr. 292-94.

34

Tr. 284-86.

35

Tr. 296, 317.

36

Id.

37

Id.

38

Id.

-11-

ulnar entrapment at the wrists, as well as possible left C8 and C5 radiculopathy.39
On December 28, 2015, Dr. Olivier’s examination revealed atrophy of the first web
space of the left hand, positive Tinel’s sign bilaterally, and decreased sensation to
light touch in all fingers bilaterally.40

Dr. Olivier’s new diagnoses included

spondylosis, cervical region; CTS; lesion of the ulnar nerve; and other lesions of the
left upper limb median nerve.41 X-rays of the left foot revealed calcification of the
Achilles tendon and heel spur as well as multiple post-surgical changes. On February
29, 2016 and April 29, 2016, Dr. Olivier’s clinical findings were consistent with
prior examinations. Notably, the positive findings on the claimant’s bilateral
straight leg raise tests grew more severe (i.e., the degree at which pain was
elicited decreased) over time. On December 18, 2015, it was 60 degrees bilaterally.42
On February 29, 2016, it was 60 degrees on the right and 45 degrees on the left.43 On
April 4, 2016, it was 50 degrees on the right and 45 degrees on the left.44

39

Tr. 302.

40

Tr. 292-94.

41

Id.

42

Tr. 311.

43

T. 288.

44

Tr. 302.

-12-

At the request of the ALJ, Dr. John Anigbogu, who specializes in pain
management and rehabilitation, completed a Medical Interrogatory of Physical
Impairments (Adults) on August 6, 2016. Notably, Dr. Anigbogu did not examine the
claimant. Dr. Anigbogu assessed the claimant’s residual functional capacity as
follows: continuous lifting and/or carrying of up to 10 pounds; frequent lifting and/or
carrying of up to 20 pounds; unlimited sitting at one time or total; standing for up to
3 hours at one time; walking for up to 3 hours at one time, standing a total of 3 hours
in an 8-hour workday; walking for 3 hours in an 8 hour workday; continuous bilateral
reaching (overhead and all other); frequent bilateral handling; occasional bilateral
fingering and feeling; and frequent bilateral pushing and pulling. Dr. Anigbogu also
opined that the claimant can frequently operate foot controls with both feet; can
continuously climb stairs and ramps; occasionally climb ladders or scaffolds; and
continuously balance, stoop, kneel, crouch, and crawl.45
In his decision, the ALJ stated he gave “little weight” to Dr. Olivier’s October
2015 Medical Source Statement, which imposed significant limitations such that the
claimant would not be capable of performing even sedentary work, on grounds the
Statement was not supported by the medical evidence in the record. Rather, the ALJ
gave “great weight” to the April 2016 opinion of Dr. Anigbogu, finding Dr. Anigbogu
45

Tr. 356-63.

-13-

was an impartial medical expert who reported that the claimant suffered from bilateral
carpal tunnel and cubital tunnel syndrome, chronic low back pain, and hip pain and
obesity, but nevertheless was able to perform light work with difficulties in repetitive
function.
Failure to properly evaluate Dr. Olivier’s opinions
The claimant argues that the ALJ erred in giving greater weight to the opinion
of Dr. Anigbogu than the opinion of Dr. Olivier on grounds Dr. Olivier is the
claimant’s treating physician, while Dr. Anigbogu merely answered medical
interrogatories and never examined the claimant. The claimant also argues the ALJ
erred as a matter of law in not following the regulatory guidelines in discounting Dr.
Olivier’s opinions.
As a general rule, 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), citing
Leggett v. Chater, 67 F.3d 558, 566 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir.1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871
(1995). A treating physician's opinion on the nature and severity of a patient's
impairment will be given controlling weight if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
-14-

... other substantial evidence.” Newton, 209 F.3d at 455, citing Martinez v. Chater,
64 F.3d 172, 176 (5th Cir. 1995), citing 20 C.F.R. §404.1527(d)(2). “The opinion of
a specialist generally is accorded greater weight than that of a non-specialist.” Paul
v. Shalala, 29 F.3d 208, 211 (5th Cir.1994).
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.” Id. “‘[T]he ALJ is free
to reject the opinion of any physician when the evidence supports a contrary
conclusion.’” Id. The treating physician's opinions are not conclusive. See Brown
v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999). The opinions may be assigned little or no
weight when good cause is shown. Greenspan, 38 F.3d at 237. Good cause may
permit an ALJ to discount the weight of a treating physician relative to other experts
where the treating physician's evidence is conclusory, is unsupported by medically
acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported
by the evidence. See, e.g., Brown, 192 F.3d at 500; Greenspan, 38 F.3d at 237; Paul,
29 F.3d at 211.
The Social Security Regulations provide as follows:
When we do not give the treating source's medical opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii)
of this section, as well as the factors in paragraphs (c)(3) through (c)(6)
-15-

of this section in determining the weight to give the medical opinion.
We will always give good reasons in our notice of determination or
decision for the weight we give your treating source's medical opinion.
20 C.F.R. § 404.1527. The following factors are considered when an ALJ declines
to give controlling weight to a claimant’s treating physician:
(1)
(2)
(3)
(4)
(5)
(6)

the physician's length of treatment of the claimant,
the physician's frequency of examination,
the nature and extent of the treatment relationship,
the support of the physician's opinion afforded by the medical
evidence of record,
the consistency of the opinion with the record as a whole; and
the specialization of the treating physician.

Id.
Section 404.1527 is construed in Social Security Ruling (“SSR”) 96–2p, which
states:
[A] finding that a treating source medical opinion is not well supported
by medically acceptable clinical and laboratory diagnostic techniques or
is inconsistent with the other substantial evidence in the case record
means only that the opinion is not entitled to “controlling weight,” not
that the opinion should be rejected. Treating source medical opinions are
still entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. 404.1527 and 416.927. In many cases, a treating
source's medical opinion will be entitled to the greatest weight and
should be adopted even if it does not meet the test for controlling
weight.
SSR 96–2p, 61 F.R. 34490, 34491 (July 2, 1996) (emphasis added). SSR 96–5p
provides, with respect to “Residual Functional Capacity Assessments and Medical

-16-

Source Statements,” that “Adjudicators must weigh medical source statements under
the rules set out in 20 C.F.R. 404.1527 . . . providing appropriate explanations for
accepting or rejecting such opinions.” SSR 96–5p, 61 F.R. 34471, 34474 (July 2,
1996).
Several federal courts have concluded that an ALJ is required to consider each
of the §404.1527(c) factors when the ALJ intends to reject or give little weight to a
treating specialist's opinion. See, e.g., Clark v. Commissioner of Social Security, 143
F.3d 115, 118 (2nd Cir.1998); Goatcher v. U.S. Department of Health & Human
Servs., 52 F.3d 288, 290 (10th Cir.1995); Dwyer v. Apfel, 23 F.Supp.2d 223, 228
(N.D.N.Y.1998); Amidon v. Apfel, 3 F.Supp.2d 350, 355–56 (W.D.N.Y.1998);
McDonald v. Apfel, No. CA 3–97–CV–2035–R, 1998 WL 159938, *8 (N.D.Tex. Mar.
31, 1998). The Fifth Circuit holds that an ALJ is required to consider each of the
§404.1527(d) factors before declining to give any weight to the opinions of the
claimant's treating specialist. Newton, 209 F.3d at 455.
In Newton, the claimant was diagnosed by her treating physician, Raymond M.
Pertusi, D.O., a rheumatologist, with swollen and painful joints, pleuritic chest pain,
fevers, fatigue, a rash, and kidney or urinary problems. 209 F.3d at 452. Dr. Pertusi
submitted an assessment finding the claimant had the functional capacity for no work.
Id. at 453-54. In his decision, the ALJ stated that Dr. Pertusi’s opinions regarding the
-17-

claimant's residual functional capacity, specifically his opinion that Newton could not
perform even sedentary work during the period of claimed disability, were not
entitled to “great weight.” The ALJ found Dr. Pertisu’s opinion regarding residual
functional capacity was not reliable because it was insufficiently substantiated by
clinical or diagnostic evidence, and thus was conclusory, and questioned Dr. Pertusi’s
credibility.

The ALJ ultimately concluded that Newton retained the residual

functional capacity to perform the exertional requirements of a full range of sedentary
work. On appeal, the claimant argued the ALJ failed to properly apply the
regulations in discounting the opinion of his treating physician. Agreeing with the
claimant, the court noted:
This is not a case where there is competing first-hand medical evidence
and the ALJ finds as a factual matter that one doctor's opinion is more
well-founded than another. See and compare, e.g., Spellman v. Shalala,
1 F.3d 357 (5th Cir.1993). Nor is this a case where the ALJ weighs the
treating physician's opinion on disability against the medical opinion of
other physicians who have treated or examined the claimant and have
specific medical bases for a contrary opinion. See and compare, e.g.,
Prosch v. Apfel, 201 F.3d 1010 (8th Cir.2000). Instead, this is a case
where the ALJ summarily rejected the opinions of Newton's treating
physician, based only on the testimony of a non-specialty medical expert
who had not examined the claimant. At best, the record was incomplete,
and Pertusi could have provided clarification or supplementation, if
requested. This case is reversed and remanded for further consideration
consistent with this decision.
209 F.3d at 458.

-18-

Here, the Commissioner argues the ALJ did not commit error in failing to
identify and discuss all four regulatory factors for discounting the opinions of a
treating physician, on grounds such an assessment is not required where the ALJ
merely gives less weight to the opinion of a treating physician, and does not reject it
outright. In support of this argument, the Commissioner cites Qualls v. Astrue, 130
Fed. App’x 461 (5th Cir. 2009) for the proposition that the Newton court limited its
holding to cases where the ALJ rejects the sole relevant medical opinion before it.
After a review of both the Newton and Qualls cases, this Court finds the facts
of the instant case more closely align with Newton. Most significantly, in Qualls, the
claimant had five treating physicians, and the ALJ gave greater weight to the opinion
of only one of the physicians, while substantial evidence in the record supported the
opinions of at least some of the other treating physicians. Noted the court in Qualls:
The ALJ was presented with substantial evidence which contradicted
Dr. Steuer's opinion. Qualls was seen by five treating physicians and,
despite evidence that she informed several doctors that she sought
disability benefits, she obtained a Medical Source Statement from only
one—Dr. Steuer. From October to December 2002, Dr. Steuer
documented excellent improvement in Qualls's symptoms and indicated
that she had only moderate difficulty in performing the activities of daily
life. Nevertheless, the Medical Source Statement he filled out two
months later stated that Qualls was incapable of performing even
sedentary work. Nothing in Qualls's medical record explains the sudden
change and the inconsistency between Dr. Steuer's Medical Source
Statement and his clinical notes.

-19-

339 F. App'x at 466.
The facts of this case are much more similar to the facts in Newton, wherein the
claimant had only one treating physician who opined that the claimant can perform
no work, while a non-examining physician reported that the claimant perform at a
higher exertional level. As the ALJ did in Newton, ALJ Fields gave “little weight”
to Dr. Olivier’s opinion, and great weight to the opinion of Dr. Anigbogu, who did
not examine the claimant and who merely completed a medical interrogatory. As the
court stated in Newton, “. . . this [is not] a case where the ALJ weighs the treating
physician's opinion on disability against the medical opinion of other physicians who
have treated or examined the claimant and have specific medical bases for a contrary
opinion.” 209 F.3d at 458. Instead, this is a case where the ALJ summarily rejected
the opinion of Dr. Olivier, based only on the testimony of a non-specialty medical
expert who had not examined the claimant.
The Newton court further stated, “the record was incomplete, and Dr. Pertusi
could have provided clarification or supplementation, if requested.” 209 F.3d at 458.
The ALJ owes a duty to a claimant to develop the record fully and fairly to ensure
that his decision is an informed decision based on sufficient facts. Brock v. Chater,
84 F.3d 726, 728 (5th Cir. 1996), citing Kane v. Heckler, 731 F.2d 1216, 1219 (5th
Cir.1984). Here, the ALJ was faced with medical records from the claimant’s treating
-20-

physician, which indicated numerous complaints of pain related to the claimant’s club
foot, for which he had surgery, as well as diagnostic evidence corroborating the
claimant’s complaints of low back and hip pain. While this Court acknowledges that
Dr. Olivier’s Medical Source Statement is relatively scant in terms of support for his
opinions, Dr. Olivier is the only treating physician of record and is the doctor most
personally familiar with the claimant’s condition and complaints. At best, the ALJ
was under a duty to seek clarification of Dr. Olivier’s opinions, or supplementation
for Dr. Olivier’s medical opinions before making his finding of non-disability.
This Court concludes the ALJ, in effect, declined to given any weight to the
opinions of Dr. Olivier. Under these circumstances, the ALJ was required to consider
each of the §404.1527(d) factors before rejecting those opinions. Newton, 209 F.3d
at 455. Considering the foregoing, the Court concludes the ALJ erred in giving “great
weight” to the medical opinions of Dr. Anigbogu, a non-examining physician, and
giving essentially no weight to the opinions of Dr. Olivier, the claimant’s treating
physician, without engaging in an assessment of the regulatory factors as required
under Fifth Circuit jurisprudence. At the very least, the Court finds the ALJ should
have sought clarification of Dr. Olivier’s opinions, or supplementation for Dr.
Olivier’s medical opinions, before making his finding of non-disability.

-21-

Claimant’s credibility
The claimant argues there is not substantial evidence in the record to support
the ALJ’s finding that the claimant was less than credible in describing his complaints
of pain. The ALJ made the following conclusion regarding the claimant’s complaints
of pain and overall credibility in his decision:
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments would reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical evidence in
the record for the reasons explained in this decision.
The ALJ is entitled to resolve conflicts in evidence. Quintanilla v. Astrue, 619
F. Supp.2d 306, 321 (S.D. Tex. 2008) (J. Jack), citing Carey v. Apfel, 230 F.3d 131,
135 (5th Cir. 2000) (citation omitted). If a plaintiff's symptoms are not founded in
objective medical evidence, then the ALJ must make a credibility determination of
plaintiff's complaints.

Myers v. Apfel, 238 F.3d 617, 620–21 (5th Cir.2001) (per

curiam). In making this determination, the ALJ must make every effort to obtain
available information including, among other things, taking into consideration
evidence concerning duration, frequency and intensity of symptoms, and type,
dosage, effectiveness, and side effects of medication taken for symptoms. See 20
C.F.R. §404.1529(c)(3). In addition, if a claimant alleges a greater impairment than

-22-

can be shown by objective medical evidence alone, the ALJ is to carefully consider
the individual's statements about symptoms along with the record to reach a
conclusion about the credibility of the individual's statements. SSR 96–7p, 1996 WL
374186, at *1. “The ALJ's findings regarding the debilitating effect of the subjective
complaints are entitled to considerable judicial deference.” James v. Bowen, 793 F.2d
702, 706 (5th Cir.1986), citing Dellolio v. Heckler, 705 F.2d 123, 127 (5th Cir.1983).
Significantly, the Fifth Circuit has stated that “cursory, boilerplate language about
carefully considering the entire record does not constitute an explanation.” Kneeland
v. Berryhill, 850 F.3d 749, 761 (5th Cir. 2017).
Here, the ALJ found the claimant was physically able to do sedentary work,
with certain modifications. The claimant argues the ALJ’s opinion fails to take into
consideration the objective medical evidence in the record that supports his
complaints of pain and which were confirmed by Dr. Olivier, including the claimant’s
club left foot, which eventually caused bilateral leg, low back and hip pain, all of
which undercut the ALJ’s conclusion. The claimant specifically points to Dr.
Olivier’s August 10, 2015 examination, which revealed positive straight leg raise,
positive tenderness, loss of lordosis, numbness of left foot, limited range of motion
of the left hip, limp on walking with occasional click, diminished sensation of the left
foot, and decreased sensation and strength of the upper right extremity, as well as the
-23-

claimant’s limitations in range of motion of the cervical spine, which would cause
him difficulty maintaining neck flexion for longer than 30 minutes at a time. Dr.
Olivier cited the claimant’s need to keep his legs elevated two feet multiple times per
day. Dr. Olivier additionally opined that the claimant would miss work or leave early
multiple times per week due to his impairments.
The Commissioner stresses that the claimant was treated conservatively by Dr.
Olivier and that the claimant admitted his medication helped his pain, even at doses
below that prescribed by Dr. Olivier.
The record shows that the claimant’s impairments – including disorders of the
cervical and lumbar spine, dysfunction of the major joints, bilateral carpal tunnel
syndrome, and obesity – were found by the ALJ to be severe and could reasonably
cause the pain the claimant complained of. These impairments are well-documented
by Dr. Olivier, and are supported by diagnostic imaging and other tests conducted at
the request of Dr. Olivier. By concluding in boilerplate language that the claimant’s
complaints of pain are not consistent with the medical evidence of impairments in the
record, however, and in relying on a functional assessment of a non-examining
doctor, the ALJ appears to have engaged in “picking and choosing” only the evidence
that supports his position. Loza v. Apfel, 219 F.3d 378, 393–94 (5th Cir. 2000), citing
Switzer v. Heckler, 742 F.2d 382, 385–86 (7th Cir.1984); Garfield v. Schweiker, 732
-24-

F.2d 605, 609 (7th Cir.1984); Green v. Shalala, 852 F.Supp. 558, 568
(N.D.Tex.1994); Armstrong v. Sullivan, 814 F.Supp. 1364, 1373 (W.D.Tex.1993).
Furthermore, inasmuch as the ALJ relied more on Dr. Anigbogu’s assessment
of the claimant’s condition than he relied on the assessment of Dr. Olivier – and this
Court’s conclusion that such was error under the circumstance of this case – the
Court concludes the ALJ’s assessment of the claimant’s credibility is not supported
by substantial evidence in the record.
Residual Functional Capacity
With respect to the ALJ’s assessment of his residual functional capacity, the
claimant argues the ALJ’s RFC assessment is flawed because it does not include a
limitation that the claimant must elevate his legs, his need for numerous breaks
throughout a workday, his tendency to be off-task during the workday, and the
necessity of missed work to accommodate his impairments.
ALJ Fields relied primarily on the residual functional capacity assessment of
Dr. Anigbogu in making his determination of non-disability, and largely ignored the
RFC assessment of Dr. Olivier. The Commissioner argues that although Dr. Olivier
opined that the claimant should elevate his legs at least 2 feet high multiple times per
day, this limitation is based on the claimant’s subjective complaints rather than the
objective medical evidence. The Commissioner essentially suggests that Dr. Olivier
-25-

is “leaning over backwards” to support the claimant’s application for disability, and
that there is no medical evidence in the record to support such a limitation. The
Commissioner makes the same arguments with respect to the claimant’s contention
that he would be off-task during a workday, and would need to miss several days a
week due to his limitations.
Inasmuch as this Court has already concluded that the ALJ erred in discounting
the opinions of the claimant’s treating physician and gave greater weight to the
opinion of a non-examining physician – the latter upon which the ALJ’s assessment
of RFC was largely based – this Court concludes there is not substantial evidence in
the evidence to support the ALJ’s RFC assessment. As set forth in this ruling, the
claimant has presented objective medical evidence that supports his complaints of
pain and impairment, and the ALJ gave little weight to those complaints. Considering
that the ALJ did not factor some of those complaints into the assessment of the
claimant’s RFC, and did not request clarification of or supplementation for, some of
the opinions of Dr. Olivier, the Court concludes the ALJ’s RFC assessment was
flawed.
Considering the foregoing, the undersigned concludes the ALJ’s determination
that the claimant can perform sedentary work is not supported by the record, and this
matter should be remanded for further development of this portion of the record.
-26-

CONCLUSION AND RECOMMENDATION
Thus, for the reasons stated herein, IT IS THE RECOMMENDATION of the
undersigned that the decision of the Commissioner be REVERSED AND
REMANDED.
Signed in Lafayette, Louisiana, this 28th day of March, 2019.

-27-