Glass v. Commissioner of Social Security
MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 11/6/15. (mhf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
PHILLIP S. GLASS,
CIVIL ACTION NO. 3:15-CV-014-SAA
COMMISSIONER OF SOCIAL SECURITY,
Plaintiff Phillip S. Glass has applied for judicial review under 42 U.S.C. § 405(g) of the
Commissioner of Social Security’s decision denying his Title II application for a period of
disability (POD) and disability insurance benefits (DIB), as well as his Title XVI application for
supplemental security income (SSI) under the Social Security Act. Plaintiff protectively filed
applications for benefits on October 11, 2011 alleging disability beginning on January 1, 2009.
Docket 10, pp. 121-29. The agency administratively denied the plaintiff’s claim initially and
upon reconsideration. Plaintiff then requested an administrative hearing, which an
Administrative Law Judge (ALJ) held on September 26, 2013. Id. at 22-53. The ALJ issued an
unfavorable decision on December 3, 2013 (Id. at 8-17), and the Appeals Council denied
plaintiff’s request for a review on November 21, 2014, Id. at 1-4. Plaintiff timely filed the
instant appeal from the decision, and it is now ripe for review.
Because both parties have consented to a magistrate judge conducting all the proceedings
in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to issue this
opinion and the accompanying final judgment.
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process. See 20 C.F.R. § 404.1520; 416.920. The burden to prove
disability rests upon plaintiff through the first four steps of the process, and if plaintiff is
successful in sustaining his burden at each of the first four levels, the burden then shifts to the
Commissioner at step five. See Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999). First, the
plaintiff must prove he is not currently engaged in substantial gainful activity. 20 C.F.R. §
404.1520(b); 416.920(b). Second, the plaintiff must prove his impairment(s) are “severe” in that
they “significantly limit his physical or mental ability to do basic work activities . . ..” 20
C.F.R. § 404.1520(c); 416.920(c). At step three the ALJ must conclude that the plaintiff is
disabled if he proves that his impairments meet or are medically equivalent to one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010). 20 C.F.R. §
404.1520(d); 416.920(d). If the plaintiff does not meet this burden, at step four he must prove he
is incapable of meeting the physical and mental demands of his past relevant work. 20 C.F.R. §
404.1520(e); 416.920(e). Finally, at step five, the burden shifts to the Commissioner to prove
that, considering plaintiff’s residual functional capacity, age, education and past work
experience, he is capable of performing other work. 20 C.F.R § 404.1520(g); 416.920(g). If the
Commissioner proves other work exists which plaintiff can perform, plaintiff is then given the
chance to prove that he cannot, in fact, perform that work. See Muse v. Sullivan, 925 F.2d 785,
789 (5th Cir. 1991).
Plaintiff was born December 20, 1973 and was 39 years old at the time of the ALJ
hearing. Docket 10, p. 28-29. He is considered a younger individual for the purpose of
determining disability benefits. He has a high school education and attended one year of college.
Id. at 29. He has an extensive medical history. In 1984, plaintiff’s right leg was amputated
above the knee after he was diagnosed with osteosarcoma in the right distal femur. Id. at 213-14.
In 1991, the osteosarcoma reoccurred in his left lung, requiring wedge resection of the lower
lobe of his left lung. Id. at 234. In 1999, he suffered a right femoral neck fracture which
required pin placement in his right femoral head. Id. at 251. He has had extensive chemotherapy
and has, over the years, received treatment for a variety of additional medical issues including
regurgitation of the tricuspid valve of the heart, interstitial lung disease, peripheral neuropathy,
and gastroesophageal reflux disease. Id. Despite his medical history, plaintiff was previously
employed in various temporary jobs classified at the heavy exertion level including as a welder,
warehouse worker, and roofer. Docket 10, pp. 29-35, 45-48.
After reviewing the record as a whole, the ALJ issued his unfavorable opinion on
December 3, 2013. Id. at 8-17. The ALJ first determined that plaintiff had met the insured status
requirement through March 31, 2011. Id. at 10. To evaluate the plaintiff’s disability claim, the
ALJ proceeded through the Social Security Administration’s five-step sequential evaluation
process. 20 C.F.R. §§ 404.1520, 416.920; see also id. at 8-17. From that process, the ALJ
determined that the claimant suffered from the “severe” impairments of “right above the knee
amputation, mild tricuspid regurgitation, sensorineural hearing loss, gastroesophageal reflux
disease (GERD), and interstitial lung disease,” (Id. at 12), but that these impairments did not
meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R.
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). Docket 10, p. 11-12.
The ALJ then determined that plaintiff retained the residual functional capacity (RFC) to
perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), except that he could not
“climb ladders, ropes, or scaffolds;” could “occasionally balance, crouch, stoop, kneel or crawl;
could not work at unprotected heights;” could not “push, pull, or operate foot controls with his
right lower extremity;” needed “the option to sit or stand at will at the workplace; must avoid
concentrated exposure to pulmonary irritants; and would be limited to jobs with a noise intensity
level of moderate or lower as defined in the Selected Characteristics of Occupations.” Docket
10, p. 11-15. He found that although the plaintiff was unable to perform any past relevant work,
there were jobs that exist in significant numbers in the national economy which plaintiff could
perform, such as a cashier or a ticket seller. Id. at 16. Based on these findings, the ALJ
determined that plaintiff was not eligible for disability benefits under the Social Security Act. Id.
STANDARD OF REVIEW
The court’s scope of review is limited. On appeal the court must consider whether the
Commissioner’s final decision is supported by substantial evidence and whether the correct legal
standards were applied. Crowley, 197 F.3d at 196, citing Austin v. Shalala, 994 F.2d 1170 (5th
Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). In making that determination,
the court has the responsibility to scrutinize the entire record. Ransom v. Heckler, 715 F.2d 989,
992 (5th Cir. 1983). The court has limited power of review and may not reweigh the evidence or
substitute its judgment for that of the Commissioner, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th
Cir. 1988), even if it finds the evidence leans against the Commissioner’s decision. See Bowling
v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); see also Harrell v. Bowen, 862 F.2d 471, 475 (5th
The Fifth Circuit has held that 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.” Crowley, 197 F.3d at 197 (citation omitted). Conflicts in the evidence
are for the Commissioner to decide, and if there is substantial evidence to support the decision, it
must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614,
617 (5th Cir. 1990). The court’s inquiry is whether the record, as a whole, provides sufficient
evidence that would allow a reasonable mind to accept the ALJ’s conclusions. See Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Crowley, 197 F.3d at 197. “If supported by
substantial evidence, the decision of the [Commissioner] is conclusive and must be affirmed.”
Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson, 402 U.S. at 390.
Plaintiff argues the ALJ erred in several ways when deciding that plaintiff was not
disabled under the Social Security Act. Plaintiff argues the ALJ (i) erred in his evaluation of
treating physician and DDS opinions; (ii) erred in his assessment of the consultative examiner;
(iii) violated the provisions of Stone v. Heckler; (iv) erred in using boilerplate language; and (v)
failed to follow the treating physician’s rule. See generally Docket 16.
Did the ALJ Err in Consideration of Dr. Folse’s Opinion?
In asserting these errors, arguments (i) and (v) bring a similar argument—that the ALJ
inadequately considered the medical evidence, including the opinion of plaintiff’s treating
physician from St. Jude Children’s Research Hospital, Dr. Timothy E. Folse. Docket 16, pp. 712, 19-27. For that reason, the undersigned has considered these arguments in conjunction with
At step two, the ALJ found that plaintiff suffered from several severe impairments:
“right above the knee amputation; mild tricuspid regurgitation; sensorineural hearing loss;
gastroesophageal reflux disease (GERD); and interstitial lung disease.” Docket 10, pp. 10-11.
Then, after determining that plaintiff’s impairments or combination of impairments did not meet
a listing, the ALJ assigned a “light work” RFC with some limitations. Id. at 11-12. In reaching
this RFC finding, the ALJ engaged in a two-step analysis where he concluded that “the
claimant’s statements concerning the intensity, persistence, and limiting effects of these
symptoms [were] not entirely credible.” Id. at 13. As part of his credibility determination and
RFC finding, the ALJ elected not to give controlling weight to the opinion of the treating
physician, Dr. Folse, but instead gave significant weight to the non-examining consultant
reviewer, Dr. Carol Kossman. Docket 10, p. 15. Plaintiff claims this RFC was reached in error
because records from Dr. Folse, indicate that plaintiff would not be capable performing work
under such conditions. Docket 16, pp. 7-12, 19-27.
As this court has reiterated many times, the law governing consideration of opinions from
treating physicians is clear. While “the ALJ must consider all the record evidence and cannot
‘pick and choose’ only the evidence that supports his position,” Loza v. Apfel, 219 F.3d 378, 393
(5th Cir. 2000), the responsibility to determine the plaintiff’s RFC belongs to the ALJ, Ripley v.
Chater, 67 F.3d 552, 557 (5th Cir. 1995). Even though the opinion of a claimant’s treating
physician is entitled to great weight, an ALJ nevertheless may discount the opinion for good
cause. Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995), citing Paul v. Shalala, 29 F.3d 208,
211 (5th Cir. 1994); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
The ALJ wrote that he “determined it proper to give less than controlling weight to the
opinion of the claimant’s treating physician, Dr. Folse[,] as a result of persuasive contrary
evidence, as supported by 20 C.F.R. §404.1527(d)(2) . . . .” Id. at 14. In addition to the medical
records from St. Jude Children’s Hospital, Dr. Folse penned a letter on February 25, 2013, that
detailed plaintiff’s medical history with the hospital, which began with a cancer diagnosis in
1984 when plaintiff was a child. Docket 10, pp. 251-52. Dr. Folse concluded his letter by
writing, “[i]n my opinion, these conditions indicate that Mr. Glass is unable to be gainfully
employed.” Id. at 252. Though plaintiff asserts it was error not to give this opinion controlling
weight, the ALJ correctly noted first and foremost that the ultimate “determination of whether an
individual is disabled is clearly reserved to the Commissioner.” Docket 10, p. 15. Thus, as the
ALJ asserted, he was under no duty to give any significance to this conclusory statement by Dr.
Folse. See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003).
Plaintiff also asserts that the ALJ inappropriately focused on this single conclusory
statement from Dr. Folse and did not properly consider the remainder of the medical evidence.
Docket 16, pp. 8-12. He quotes the ALJ:
The undersigned rejects Dr. Folse’s opinion that the claimant is not
capable of gainful employment. The possibility always exists that
a doctor may express an opinion in an effort to assist a patient with
whom he sympathizes for one reason or another. Another reality,
which should be mentioned, is that patients can be quite insistent
and demanding in seeking supportive notes or reports from their
physicians, who might provide such a note in order to satisfy their
patient’s requests and avoid unnecessary doctor/patient tension.
While it is difficult to confirm the presence of such motives, they
are more likely in situations where the opinion in question departs
substantially from the rest of the evidence of record, as in the
Id. at 15. Plaintiff contends this statement exemplifies that the ALJ’s decision to disregard
considerable evidence of plaintiff’s medical condition and resulting impairments, and there was
not sufficient contrary medical evidence to justify withholding the deference ordinarily reserved
to a treating physician’s records and opinion. Docket 16, p. 8-9.
However, the ALJ elected not to give Dr. Folse’s opinion controlling weight for several
justifiable reasons—not simply because he suspected that the doctor expressed a more
sympathetic opinion to assist his patient. For instance, the ALJ provided several instances from
the records where Dr. Folse’s conclusion was inconsistent with his own findings and indications
that objective tests demonstrated little abnormality beyond plaintiff’s pre-existing impairments.
For example: “Although Dr. Folse lists plaintiff’s mitral regurgitation of the tricuspid valve as a
limiting impairment, his treatment notes describe the murmur as ‘mild’ and contained no
restrictions on activity for the claimant.” Docket 10, p. _____; “Although claimant reported
back pain to his treating physician in June 2012, Dr. Folse found he had normal range of motion,
normal strength, and no tenderness in his musculoskeletal system. His motor sensory functions
were also grossly normal.” Docket 10, p. ____; and “[Dr. Folse] lists regurgitation of the
tricuspid valve as one of [plaintiff’s] compromising impairments (Exhibit 8F), but in his
treatment notes he refers to the claimant’s heart murmur as mild (Exhibit 9F). He notes chronic
back pain due to altered gait (Exhibit 8F), but his treatment notes reflect the claimant’s
musculoskeletal exam and neurological exam are normal.” Docket 10, p. ____.
In addition, the ALJ correctly noted that the medical evidence from other sources also
confirms these relatively normal findings given plaintiff’s complaints. For instance, the
functional performance test performed at St. Jude in May 2013 revealed some below normal
dorsiflexion and left quadriceps strength, but plaintiff’s physical performance test was within
normal limits, his electrocardiogram was normal, and he was simply advised to exercise more
and be careful walking around in poorly lit areas or on uneven surfaces. Docket 10, p. 13-14,
360. Also, when plaintiff presented to the ER in July 2013, his “pulmonary, cardiac, extremity,
and neurologic exams were normal” and he was diagnosed with a lumbosacral sprain by the
admitting physician, Dr. Jason Waller. Id. at 14, 325.
The court has thoroughly reviewed the medical records and observed similar findings
throughout the medical record. For instance, an X-ray report from March 2012 indicates that
plaintiff exhibited no cardiomegaly, clear lungs, no infiltrates, and no other acute findings other
than a questionable left upper lobe nodule. Docket 10, p. 225. Similarly, a visit to the Baptist
Memorial Hospital’s Emergency Room in July 2013 was diagnosed as a lumbosacral sprain and
other pain consistent with plaintiff’s pre-existing impairments. Docket 10, p. 324. The court is
certainly sympathetic with the litany of ailments and difficulties plaintiff has endured and
continues to endure in his everyday life, the reality is that there is abundant medical evidence to
support the ALJ’s decision. Whether the court would have reached a different decision is not
relevant; the court is limited to determining only whether the ALJ’s decision was justified by
substantial evidence as that term has been defined by the Fifth Circuit. Further, there is simply
no evidence in the record which objectively confirms deterioration of plaintiff’s condition as of
his alleged onset date or since then.
After comprehensive review of the record, the undersigned is of the opinion that the ALJ
properly considered Dr. Folse’s opinion and that the ALJ’s decision not to assign controlling
weight to that opinion was substantially justified. Rather than failing to consider Dr. Folse’s
opinion, the ALJ relied on consistent contrary medical evidence which did not provide ample
objective justification for plaintiff’s claims.
B. Did the ALJ Err Assessing the Consultative Examiner’s Opinion?
Dr. Bruce Randolph performed a consultative examination of plaintiff in January 2012.
Docket 10, pp. 220-23. As a result of his examination Dr. Randolph concluded that claimant was
“limited in his ability to perform activity which requires the use of his right lower extremity . . .
climbing stairs, ladders, squatting, kneeling, and crawling.” Id. at 223. Further, Dr. Randolph
advised that plaintiff could “sit and use his left lower extremity and both upper extremities, . . .
intermittently stand and walk every 10 minutes as needed, . . . [and] should be able to lift and
carry at least 15 pounds.” Id.
In assessing this opinion, the ALJ afforded Dr. Randolph’s opinion only partial weight,
because the plaintiff had been unable to state what his lifting and carrying capabilities were at the
hearing. The ALJ ultimately found that the claimant could at least lift and carry up to the
exertional limits of the light work RFC and that plaintiff would need an option to sit or stand at
will while at the workplace. Docket 10, p. 13. Plaintiff asserts that the ALJ did not provide a
reason for having given only partial weight to Dr. Randolph’s opinion and that the ALJ’s
“standing and walking limitation is absolutely inconsistent with the light work” RFC. Id.
The plaintiff’s argument is without merit. As to the claimed error of assigning only
partial weight to Dr. Randolph’s opinion, it must be noted that the ALJ is the fact-finder and has
sole responsibility for weighing all the evidence, including the opinions from consultative
examiners. See Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). Regarding the argument
that the ALJ’s limitation on standing and walking is inconsistent with a light work RFC, the
limitations placed on plaintiff’s light work RFC sufficiently account for limitations highlighted
by Dr. Randolph’s opinion and, thus, are not inconsistent. Docket 17, p. 16.
Contrary to plaintiff’s assertions [Docket 16, p. 13], the ALJ did not find that plaintiff
could perform the full range of light work, his conclusions were not inconsistent. The ALJ
limited plaintiff to light work by “requiring no climbing ladders, ropes, or scaffolds or pushing,
pulling, or operating foot controls with his right lower extremity; occasional balancing,
crouching, stooping, kneeling, crawling, and climbing ramps or stairs; and the option to sit or
stand at will.” Docket 17, p. 17. Not only was such a finding in many ways consistent with Dr.
Randolph’s opinion, but by placing limitations such the “sitting and standing at will” option
[Docket 10, p. 12] on plaintiff’s RFC, the ALJ accounted for plaintiff’s impairments.
C. Did the ALJ violate the provisions of Stone v. Heckler?
Plaintiff says the ALJ violated the provisions of Stone v. Heckler by failing to mention
certain impairments in his determination of plaintiff’s severe impairments at step two. Docket
16, pp. 14-16. His medical records reflect that he suffers from a host of other conditions, such as
hypersensitivity reaction and reduced pulmonary diffusions, which “were not determined to be
either severe impairments, non severe impairments or even medically determinable
impairments.” Id. at 14. According to plaintiff, having not included these various impairments
in the step two analysis violates the severity standard provisions of Stone v. Heckler. Id. at 1416; see also 752 F.2d 1099, 1101 (5th Cir. 1985) (“[A]n impairment can be considered as not
severe only if it is a slight abnormality [having] such minimal effect on the individual that it
would not be expected to interfere with the individual’s ability to work, irrespective of age,
education[,] or work experience.”).
This argument, too, is without merit. Although Stone provides the severity standard for
determining impairments, the ALJ fulfilled that obligation. See Docket 17, pp. 19-24. The ALJ
found that the plaintiff suffered from several severe impairments: “right above the knee
amputation; mild tricuspid regurgitation; sensorineural hearing loss; gastroesophageal reflux
disease (GERD)[;] and interstitial lung disease.” Docket 10, pp. 10-11. In doing so, the ALJ
concluded that those impairments provided a “more than minimal effect on the claimant’s ability
to perform work-related activities” and were, therefore, severe in nature. Id. at 10. The
Commissioner asserts that this reference to the Stone opinion, as well as a discussion of what
qualifies as non-severe, the citation to SSR 85-28, and the ALJ’s findings of severe impairments
all, in conjunction, satisfy Stone. Docket 17, pp. 19-21. The court agrees.
Even though plaintiff relies on the statement from Stone that “we will in the future
assume that the ALJ and Appeals Council have applied an incorrect standard . . . unless the
correct standard is set forth by reference to this opinion or another of the same effect, or by an
express statement that the construction we give to 20 C.F.R. § 404.1520(c) (1984) is used,” the
Fifth Circuit has revised otherwise strict standard since Stone was decided. For instance, the
Circuit has since held that a failure to cite Stone is not automatic reversible error. See Taylor v.
Astrue, 706 F.3d 600, 603 (5th Cir. 2012). There, the court noted that failing to specifically
identify the specific applicable legal standard, thus requiring absolute procedural perfection, was
not required unless it affected the substantial rights of a party. Id.
The court applies the same reasoning from Taylor v. Astrue. The ALJ did not specifically
mention Stone, but it is evident from his reference to the standard from Stone, as well as his
discussion and analysis of plaintiff’s medical records and impairments, that the standard was
applied and the evidence of severity was properly considered. Finally, the court finds that
plaintiff has not shown how the ALJ’s step two finding violated SSR 96-8p.
D. Did the ALJ improperly use boilerplate language?
Plaintiff cites a recent opinion from this court for his claim that the ALJ improperly used
boilerplate language in reaching his ultimate disability determination. Docket 16, p. 16-19
(relying on Gonzalez v. Commissioner of Social Security, No. 14-104, 2015 WL 1509497 (N.D.
Miss. March 31, 2015). However, the instant case, and more particularly the ALJ’s analysis
from the case, are quite distinguishable from Gonzalez.
Put simply, the plaintiff’s argument misconstrues and misapplies the reasoning from
Gonzalez. Gonzalez discussed the ALJ’s use of boilerplate language because it involved
“inexcusably brief, rote, unsupported conclusions” which represented a lack of analysis on the
part of the ALJ in considering the plaintiff’s disability. Id. at 5. That is not the case here. This
particular plaintiff certainly has suffered some incredible adversity since he was a child;
nevertheless, the ALJ’s analysis itself was quite thorough. See generally, Docket 10, pp. 8-17.
Although the opinion certainly includes some boilerplate language from the template criticized in
Gonzales, particularly when detailing many of the procedures an ALJ must proceed through to
analyze a disability case properly, the use of the language itself is not error; it was the failure to
engage in particularized evaluation of the plaintiff’s claims beyond use of the template format
that led to the court’s decision in Gonzales. See generally, Docket 10, pp. 8-17. When
considered against the entirety of the evidence, the ALJ’s analysis in this case quite obviously
takes into account the entire spectrum of evidence. The ALJ engaged in detailed discussion of
the plaintiff’s medical records and, provided ample reasoning for his findings. Such an opinion
certainly satisfies the necessary requirements for a proper analysis.
After diligent review, the court concludes that the ALJ’s decision was supported by
substantial evidence and applied the proper legal standards. The Commissioner’s decision is
affirmed, and the case is closed. A final judgment in accordance with this memorandum opinion
will issue this day.
SO ORDERED, this, the 6th day of November, 2015.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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