Lingo v. Commissioner of SSA et al
Filing
24
MEMORANDUM OPINION AND ORDER -. Signed by Magistrate Judge Roy S. Payne on 1/5/2014. (ch, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ANITA LINGO
§
v.
§
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION
§
CIVIL ACTION NO. 2:12cv349
MEMORANDUM OPINION AND ORDER
On June 18, 2012, Plaintiff initiated this civil action pursuant to the Social Security Act (The
Act), Section 205(g) for judicial review of the Commissioner’s denial of Plaintiff’s application for
Social Security benefits. The parties have consented to allow the undersigned United States Magistrate
Judge to enter final judgment in the proceeding pursuant to 28 U.S.C. § 636(c).
I.
HISTORY
On November 13, 2009, Plaintiff protectively filed a Title II application for a period of disability
and disability insurance benefits and protectively filed a Title XVI application for supplemental security
income benefits. She claimed that since September 2, 2008, she had been unable to work due to pain
in her lower back as well as tendonitis and carpal tunnel syndrome in her right arm and hand. After a
hearing, the ALJ denied benefits on February 23, 2011, finding that Plaintiff could perform her previous
job as a front desk clerk because she could do light work. Alternatively, the ALJ determined that
Plaintiff could perform other light-duty jobs existing in the national and local economy.
Plaintiff appealed this decision to the Appeals Council, which denied the request for review.
Thus, the ALJ’s decision serves as the Commissioner’s final administrative decision for purposes of
judicial review pursuant to 42 U.S.C. §405(g). See Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct.
2080, 147 L. Ed. 2d 80 (2000). Plaintiff then filed the instant action for review by this Court.
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II.
STANDARD
Title II of the Act provides for federal disability insurance benefits. Title XVI of the Act
provides for supplemental security income for the disabled. The relevant law and regulations governing
the determination of disability under a claim for disability insurance benefits are identical to those
governing the determination under a claim for supplemental security income. See Davis v. Heckler,
759 F.2d 432, 435, n.1 (5th Cir. 1985); Rivers v. Schweiker, 684 F.2d 1144, 1146, n. 2 (5th Cir. 1982);
Strickland v. Harris, 615 F.2d 1103, 11055th (5th Cir. 1980).
Judicial review of the denial of disability benefits under section 205(g) of the Act, 42 U.S.C.
§ 405(g), is limited to “determining whether the decision is supported by substantial evidence in the
record and whether the proper legal standards were used in evaluating the evidence.” Bowling v.
Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.
1990)); Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (per curiam). A finding of no substantial
evidence is appropriate only where there is a conspicuous absence of credible choices or no contrary
medical evidence. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (citing Hames v. Heckler,
707 F.2d 162, 164 (5th Cir. 1983)). Accordingly, the Court “may not reweigh the evidence in the
record, nor try the issues de novo, nor substitute [the Court’s] judgment for the [Commissioner]’s, even
if the evidence preponderates against the [Commissioner]’s decision.” Bowling, 36 F.3d at 435 (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)); see Spellman v. Shalala, 1 F.3d 357, 360 (5th
Cir. 1993); Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Cook v. Heckler, 750 F.2d 391, 392
(5th Cir. 1985). Rather, conflicts in the evidence are for the Commissioner to decide. Spellman, 1 F.3d
357, 360 (5th Cir. 1993) (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)); Anthony, 954
F.2d 289, 295 (5th Cir. 1992) (citing Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)). A
decision on the ultimate issue of whether a claimant is disabled, as defined in the Act, rests with the
Commissioner. Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000); Social Security Ruling (“SSR”)
96-5p.
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“Substantial evidence is more than a scintilla but less than a preponderance – that is, enough
that a reasonable mind would judge it sufficient to support the decision.” Pena v. Astrue, 271
Fed.Appx. 382, 383 (5th Cir.2003) (citing Falco v. Shalala, 27 F.3d 160, 162 (5th Cir.1994)).
Substantial evidence includes four factors: (1) objective medical facts or clinical findings; (2) diagnoses
of examining physicians; (3) subjective evidence of pain and disability; and (4) the plaintiff’s age,
education, and work history. Fraga v. Bowen, 810 F.2d 1296, 1302 n.4 (5th Cir. 1987). If supported
by substantial evidence, the decision of the Commissioner is conclusive and must be affirmed.
Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). However, the
Court must do more than “rubber stamp” the ALJ’s decision; the Court must “scrutinize the record and
take into account whatever fairly detracts from the substantiality of evidence supporting the
[Commissioner]’s findings.” Cook, 750 F.2d 391, 393 (5th Cir. 1985). The Court may remand for
additional evidence if substantial evidence is lacking or “upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.” 42. U.S.C. § 405(g) (2000); Latham v. Shalala, 36 F.3d 482, 483 (5th Cir.
1994).
A claimant for disability has the burden of proving a disability. Wren v. Sullivan, 925 F.2d 123,
125 (5th Cir. 1991). The Act defines “disability” as an “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 can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment” is an
anatomical, physiological, or psychological abnormality which is demonstrable by acceptable clinical
and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
In order to determine whether a claimant is disabled, the Commissioner must utilize a five-step,
sequential process. Villa, 895 F.2d at 1022. A finding of “disabled” or “not disabled” at any step of the
sequential process ends the inquiry. Id.; see Bowling, 36 F.3d at 435 (citing Harrel, 862 F.2d at 475).
Under the five-step sequential analysis, the Commissioner must determine at Step One whether the
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claimant is currently engaged in substantial gainful activity. At Step Two, the Commissioner must
determine whether one or more of the claimant’s impairments are severe. At Step Three, the
Commissioner must determine whether the claimant has an impairment or combination of impairments
that meet or equal one of the listings in Appendix I. Prior to moving to Step Four, the Commissioner
must determine the claimant’s Residual Functional Capacity (“RFC”), or the most that the claimant can
do given his impairments, both severe and non-severe. Then, at Step Four, the Commissioner must
determine whether the claimant is capable of performing her past relevant work. Finally, at Step Five,
the Commissioner must determine whether the claimant can perform other work available in the local
or national economy. 20 C.F.R. §§ 404.1520(b)-(f), 416.920(b)-(f). An affirmative answer at Step
One or a negative answer at Steps Two, Four, or Five results in a finding of “not disabled.” See Villa,
895 F.2d at 1022. An affirmative answer at step three, or an affirmative answer at steps four and five,
creates a presumption of disability. Id. To obtain Title II disability benefits, Plaintiff must show that
she was disabled on or before the last day of her insured status. Ware v. Schweiker, 651 F.2d 408, 411
(5th Cir.1981), cert. denied, 455 U.S. 912, 102 S. Ct. 1263, 71 L. Ed. 2d 452 (1982). The burden of
proof is on the claimant for the first four steps, but shifts to the Commissioner at Step Five if the
claimant shows that she cannot perform her past relevant work. Anderson v. Sullivan, 887 F.2d 630,
632-33 (5th Cir. 1989) (per curiam).
III.
ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings in his March 21, 2011, decision:
The claimant meets the insured status requirements of the Social Security Act through
December 31, 2013.
The claimant has not engaged in substantial gainful activity since September 2, 2008, the
alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe impairments: degenerative disc disease of the lumbar
spine, arm pain, and chronic obstructive pulmonary disease (COPD) (20 C.F.R. §§ 404.1520(c)
and 416.920(c)).
The claimant does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
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After careful consideration of the entire record, the undersigned finds that the claimant has the
residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b) except she can no more than occasionally climb ramps and stairs, stoop, kneel, and
crouch. She should work in a relatively clean environment avoiding concentrated exposure to
dust, fumes, and other pulmonary irritants. She cannot perform work requiring the repetitive
use of her hands and can do no more than frequent handling and fingering with her hands.
The claimant is capable of performing past relevant work as a front desk clerk, which is light
semi-skilled work (DOT 238.367-038). This work does not require the performance of workrelated activities precluded by the claimant’s residual functional capacity (20 C.F.R. 404.1565
and 416.965).
The claimant has not been under a disability, as defined in the Social Security Act, from March
1, 2009, through the date of this decision (20 C.F.R. §§ 404.1520(f) and 416.920(f)).
Tr. at 18-24. The ALJ determined that Plaintiff was not disabled under sections 216(i) and 223(d)
(period of disability and disability insurance benefits) or section 1614(a)(3)(A) (supplemental security
income benefits) of the Social Security Act.
Although the ALJ determined that Plaintiff was not disabled because she could perform her
past relevant work as a front desk clerk, he went on to consider Step Five of the sequential evaluation.
At this step, in the alternative, the ALJ determined that there were other jobs which Plaintiff could
perform that existed in significant numbers in the national and local economy, such as gate guard and
information clerk.
IV.
DISCUSSION
A. Plaintiff’s Claims and Testimony
In her brief, Plaintiff raises three claims, set forth as follows:
1.
The ALJ underestimated Plaintiff’s limitations due to her back injury because he did
not give sufficient weight to the opinions of the physicians who treated and examined
Plaintiff for her back injury;
2.
The ALJ underestimated Plaintiff’s limitations due to her carpal tunnel syndrome and
tendonitis because he did not give sufficient weight to the opinions of the physicians
who examined Plaintiff and diagnosed her with those impairments;
3.
Because he did not properly evaluate the opinion evidence of the medical sources, the
ALJ did not give sufficient weight to the opinion of Plaintiff’s treating doctor, Y.
Nguyen Pham, M.D., that she could not lift more than five pounds consistently and
was disabled.
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At the administrative hearing, Plaintiff’s attorney, Paul Turner, gave a short summary about
the case. He said that Plaintiff stopped working in 2008 due to problems with her arm, but that she
is insured through 2013. She injured her back in the late 1990's and had two back surgeries, but
continued to work until her arm trouble forced her to quit.
After stating that Plaintiff could not work because of carpal tunnel syndrome, lower back pain,
and COPD, Turner said that Plaintiff had undergone a full laminectomy (removal of a portion of the
vertebral bone called the lamina) and a lumbar fusion with instrumentation in 1999. At that time, she
was listed as having an 18 percent whole-body impairment before being released back to work.
Plaintiff was subsequently treated by Dr. Pham for her back as well as for COPD. She was
diagnosed with carpal tunnel syndrome or tendinitis in her right arm in 2008. The Texas Workforce
Commission advised her that they could not pay her unemployment benefits because she is not able
to work due to a physical condition.
After Turner’s opening statement, Plaintiff was placed under oath to testify. She stated that
she stopped working because of her arm, explaining that “ I was at work doing my job and all of the
[sic] sudden I couldn’t use it. I couldn’t, it was just horrible. I was in so much pain I was crying and
I went over to my supervisor. At 10:00 that morning I asked her if I could take my lunch hour early
so I could go to the emergency room, because I was not supposed to go until 11:00. She let me go.”
Plaintiff went on to state that at the emergency room, she was told that she had carpal tunnel
and tendinitis in her arm and that she needed to see an orthopedic surgeon. However, she could not
see an orthopedic surgeon because she lost her job and insurance.
Plaintiff stated that at that time, she was working in the county courthouse doing mail-outs of
documents which people sent in. She explained that after the documents were recorded and scanned,
they were put into envelopes and sent back to the owners. She had worked at the front counter of the
office, which involved waiting on customers, taking money, and working on the computers when
people got a marriage license or wanted a birth certificate. However, Plaintiff said that she had
difficulty doing this job because it involved a lot of standing.
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Prior to the date of her arm injury, Plaintiff stated that she had not had problems with her arm,
but that she has had problems since this injury. Plaintiff explained that she “dropped things” and that
she has to do things like picking up the milk in the refrigerator with both hands. The problem is
primarily in her right arm, which makes it more difficult because she is right-handed, although she
indicated that she had pain in her left hand as well. Plaintiff stated that she has problems opening jars
but not using a can opener, and that she would have problems doing something like counting out
change.
Plaintiff stated that her back hurts “every day all the time” and that it was hurting right then.
Her legs were tingling at the hearing because she did not have enough time to stand up and walk
around; she explained that if she sat for long periods of time, her legs would turn numb and start
tingling. She has problems going up stairs because she has to pause at the top and wait before she can
move forward. She does not have a car and is not a good driver, but sometimes could not drive at all
because she can only hold her right leg down
After stating that her back has been getting worse since she worked at the motel in 2005,
Plaintiff stated that she has a prescription for pain pills from Dr. Pham, but has not been able to get
it filled. He did not treat her daily but gave her the prescription for Darvocet.
Plaintiff said that she had two inhalers for her breathing problems, including one called
Symbicort to use twice a day as well as a rescue inhaler. She did have these and they helped, but it
did not fix the problem. She used the rescue inhaler “sometimes twice, maybe, a day” but the
Symbicort was the main one; if she used the Symbicort the first thing in the morning, she tries as
much as she can not to use the rescue inhaler. Plaintiff conceded that she smokes, but said that it was
less than a pack a day and she is trying to quit.
On a normal day, Plaintiff said that she gets up, takes a shower, and tries to do things around
the house. She tries to get laundry done but seldom sweeps or mops because it hurts her back and she
cannot pick up a bucket of water. She can put laundry in the washer and take it out a few pieces at
a time to put in the dryer.
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When questioned by counsel, Plaintiff stated that she worked as a desk clerk in a motel from
2005 to 2007. She missed some work there because of breathing problems and her back; she started
the job cleaning rooms but she couldn’t do that, so they put her in the office. Often, however, there
was no chair or stool and she was not able to sit down. She ended up losing this job because she
missed too many days of work.
Willa Burton, Plaintiff’s mother, testified that she had breast cancer in 2009 and could not take
care of herself, so she asked Plaintiff to move in with her. She has seen Plaintiff fall and drop things.
On other occasions, Burton and Plaintiff would go to see Plaintiff’s grandmother in a nursing home,
and Plaintiff would have to drive, but by the time they got there, Plaintiff’s legs were numb and she
had difficulty driving because she had to take her right arm off the wheel and drive with one hand.
Burton said that sometimes Plaintiff simply could not drive her to the nursing home or for radiation
treatment so they would have to get friends to drive them.
Burton again stated that she saw Plaintiff drop things and that Plaintiff could not sweep.
Plaintiff also had difficulty taking baths and standing up to cook meals. When they went to see
Burton’s youngest daughter, who lived two and a half hours away, they had to stop so that Plaintiff
could get out to take a break and move her legs around.
Counsel asked for 30 days to supplement the medical records, and the ALJ agreed. Following
this, vocational expert Charles Smith testified. Smith stated that Plaintiff’s past work included a stint
as a front desk clerk, light physical demand, semi-skilled, SVP four, classification code 238.367-038.
She also worked as a bank teller, light physical demand, SVP five, skilled, classification code
211.362-018. Plaintiff had worked as an order puller, medium physical demand, SVP two, unskilled,
classification code 203.582-054, and as a police clerk, which is the job Plaintiff described as being
with the county clerk’s office. This job is listed as sedentary physical demand, SVP six, skilled,
classification code 375.362.010. The job which Plaintiff described as being at the counter helping
people which such things as marriage licenses was described as a license clerk, which is light physical
demand, SVP three, semi-skilled, classification code 205.367-034.
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The ALJ then posed some hypotheticals to Smith, all of which assumed a person of Plaintiff’s
age, education, and work experience. In the first hypothetical, the ALJ posited a person who can do
no more than light work and was restricted to no more than occasional climbing ramps or stairs,
stooping, kneeling, and crouching. This individual also cannot do repetitive motion or work with their
hands and must work in a relatively clean environment. Smith testified that the hypothetical person
could do all of Plaintiff’s past relevant work except for the order puller job. This hypothetical person
could also work as an information clerk or a receptionist.
The second hypothetical involved the same facts as the first except that handling and fingering
was reduced to no more than occasional. Smith stated that “the past relevant work would not be
available,” but the receptionist and information clerk jobs only require occasional reaching and
handling and thus would be available to this hypothetical person. Another job which would be
available would be as a gate guard.
The third hypothetical involved the same facts as the second except for the addition of a
sit/stand option every hour. Smith stated that the jobs of receptionist, information clerk, and gate
guard would still be available to that hypothetical person.
The fourth hypothetical involved all of the same restrictions as in the third, with the addition
of the fact that the person would be required to miss more than two days per month due to health
conditions. Smith stated that positions would not be available for that hypothetical person. He added
that if the total number of breaks, excluding the lunch break, exceeds five in an eight-hour period,
work becomes meaningless for that individual.
In response to questioning by counsel, Smith stated that two extra breaks, for a total of four in
a day, of no more than 10 to 15 minutes, would be acceptable. He acknowledged that this was based
on his training and expertise and that he had no treatise or document to back it up. Smith explained
that examples of an “information clerk” would be someone who worked in a travel center, a library,
or an information desk in the shopping mall.
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Plaintiff testified that if she sat for an hour, she would need to take a 20 to 30 minute break by
standing, and if she stood for a hour, she would need to take a 20 to 30 minute break by sitting. Smith
stated that his testimony was consistent with the Dictionary of Occupational Titles.
B. The Medical Records
The medical records show that in July of 1997, Plaintiff injured her back. She underwent two
back surgeries in 1999. Although she made adequate progress, her doctors at that time opined that she
had 15 to 18 percent impairment to her body as a whole. (Tr. 290). After these surgeries but before
the relevant period, Plaintiff worked as an order entry clerk for a printing company, a desk clerk at a
motel, and a deputy clerk at a county courthouse. (Tr. 153).
Between June of 2006 and July of 2008, Plaintiff was treated on a number of occasions by Dr.
Pham. Her complaints included intermittent back pain, anxiety, COPD, a dog bite, tiredness, a sore
throat, and pain resulting from a slip and fall on some ice. Dr. Pham prescribed various medications
including Xanax (for anxiety), Flagyl (an antibiotic), Phenergan (for nausea and vomiting), Albuterol
(for breathing problems and asthma), and Symbicort (for asthma).
On September 2, 2008, Plaintiff went to the emergency room at the Marshall Regional Medical
Center, where she saw Dr. James Nichols with a complaint of moderate pain in her right arm with
tingling and numbness. (Tr. 255). An examination found that her hands and wrists were normal, her
right forearm was tender with a limited range of motion, and she had a positive Phalen’s sign, an
indicator of carpal tunnel syndrome. Dr. Nichols gave her educational materials on tendinitis and
carpal tunnel syndrome as well as a prescription for a pain medication called ibuprofen, and told her
to follow up with a physician named Dr. Douglas Waldman. However, Plaintiff states that she did not
do so because she lost her job and insurance shortly afterwards. After she lost her job, she was denied
unemployment because the Texas Workforce Commission determined that she could not work due to
a physical condition.
Plaintiff’s next medical examination was on April 1, 2010, when she saw Dr. Sita Devulapalli
for a consultative exam. (Tr. 269). She told Dr. Devulapalli that she had low back pain for the past
12 years, causing numbness in her legs and limiting her ability to sit, stand, or walk for extended
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periods. She also complained of pain, tingling, and numbness in both hands, with the right hand being
worse.
Dr. Devulapalli found that Plaintiff had normal blood pressure and weight, appropriate affect,
no edema, good pulses, normal chest sounds, normal strength in her upper and lower extremities,
normal muscle tone and no atrophy in her extremities, normal reflex activity, normal gait, negative
straight leg raises (indicating the absence of a herniated disc) and she could maneuver without
difficulty. Dr. Devulapalli also found positive Tinel’s signs in both wrists (indicating possible carpal
tunnel syndrome), tenderness in her elbow joints, muscle spasms in her lower spine, and the ability
to bend forward 40 degrees. He diagnosed her with low back pain secondary to degenerative disc
disease, carpal tunnel syndrome, and tendinitis in the bilateral elbow joints.
On May 19,2010, Dr. Laurence Ligon, a state agency expert, completed a physical residual
functional capacity assessment of Plaintiff. (Tr. 277) Based primarily upon the examination of Dr.
Devulapalli, Dr. Ligon opined that Plaintiff could occasionally lift and/or carry 20 pounds, frequently
lift and/or carry 10 pounds, stand or walk, with normal breaks, for six hours of an right-hour day, and
sit, with normal breaks, for six hours of an eight-hour day.
In August of 2010, Plaintiff saw Dr. Pham because she was applying for disability. (Tr. 335).
Dr. Pham found that her hand grip was 5-/5 for her left hand and 4-/5 for her right hand, her hip flexion
was 4/5 bilaterally, and her knee extension was 4-/5 bilaterally. He found tendinitis in her right
shoulder and elbow, a positive Phalen’s test in her right wrist, but a negative Tinel’s test. Dr. Pham
diagnosed carpal tunnel syndrome, a low back injury, and anxiety; he prescribed a wrist brace,
ibuprofen, Xanax, and Symbicort, and advised Plaintiff to stop smoking.
Two weeks after this exam, on August 18, 2010, Dr. Pham wrote a letter at the request of
Plaintiff’s counsel (Tr. 286). This letter reads as follows:
Mrs. Anita Lingo was seen back in our clinic on August 5, 2010. Her last office visit
was in 2008. Apparently she had lost her job and her health insurance and so was not
able to come back to see me. She reports that she was laid off when her arm/wrist pain
became so bad that she could not perform her job. Her exam today showed marked
weakness in her right hand consistent with carpal tunnel syndrome, as well as tendinitis
in her right shoulder. I estimate that she can not lift more than 5 lbs consistently or
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perform repetitive motions (such as writing or typing). Ms. Lingo is right handed, so
I can not imagine how she can obtain gainful work at this point.
As an additional note, Ms. Lingo also has a history of COPD and low back problems.
She had visited my clinic multiple times prior to 2008 due to exacerbations of her
emphysema. She reports having shortness of breath with walking long distances or
climbing stairs. I had planned to test her pulmonary functions to determine the extent
of lung damages, but she does not have the funding to pay for the testing. With regard
to her back pain, I do not have records of it since the surgery was several years ago.
C. The Plaintiff’s Issues
1. The Back Injury
Plaintiff’s first claim is that the ALJ underestimated her limitations due to her back injury
because he did not give sufficient weight to the opinions of the physicians who treated and examined
Plaintiff for her back injury. Instead, she says, the ALJ gave considerable weight to the opinion of Dr.
Ligon, who did not examine her. Plaintiff also asserts that Dr. Ligon considered only a fraction of the
medical records, and in fact did not consider the medical records from Dr. Pham or the records
concerning Plaintiff’s surgery in 1999, and that Dr. Ligon offered no basis or explanation for his
conclusions.
Plaintiff likewise says that the ALJ did not consider the medical records from 1999, including
the finding of an 18 percent impairment with which she says that Dr. Pham agreed. She states that the
ALJ sought to justify this decision because Plaintiff had worked since that time and because of the
amount of time which had elapsed. However, Plaintiff argues that her employment after November
of 1999 does not undermine the validity of this impairment rating because there is no evidence that
this impairment rating meant should could not do any of the jobs which she held after 1999.
Alternatively, Plaintiff argues that it is possible her impairment rating improved since November of
1999, pointing out that her treating physician, Dr. Zum Brunnen, did not believe that she had reached
maximum medical improvement; however, the ALJ did not seek clarification from Dr. Zum Brunnen.
Plaintiff goes on to argue that this impairment rating and her employment history after 1999
confirm that she had a permanent impairment to her back despite these surgeries. She points to the
medical records showing that she could not bend forward more than 40 degrees and had muscle spasms
12
in her lower spine and states that the ALJ failed to consider objective findings on the X-rays including
the slight retrolisthesis of L3 on L4 and the posterior fusion at L4-L5.
The Commissioner maintains that the ALJ properly weighed and discounted the opinions of
Dr. Zum Brunnen and another physician named Dr. Greenspan because of the remote dates of these
opinions and Plaintiff’s work history after the opinions. These physicians had been involved with
Plaintiff’s back surgery in 1999, some nine years prior to the relevant period, and Plaintiff worked for
several years after these opinions were rendered.
The Commissioner further argues that substantial evidence supports the finding that Plaintiff
was not disabled and that substantial evidence supports the RFC determination.
First, the
Commissioner points to the objective medical findings by Dr. Devulapalli that Plaintiff had normal
power in all of her extremities, a normal gait, and normal X-rays of her right elbow as evidence that
she could perform light duty.
In addition, the Commissioner asserts that the medical records of Dr. Pham’s examinations of
Plaintiff also support the RFC determination. While Dr. Pham was Plaintiff’s treating physician from
2006 through 2008, he did not treat her for low back pain, and she only mentioned intermittent back
pain to Dr. Pham once, in 2006. On September 18, 2007, Plaintiff stated that she was in no pain. At
her last appointment with Dr. Pham, on July 28, 2008, Dr. Pham stated that Plaintiff’s COPD was
improving and cleared her to return to work with “no restrictions.”
With regard to Dr. Pham’s August 2010 letter, the Commissioner states that the ALJ properly
discounted the opinions expressed in the letter because these were not consistent with the objective
medical findings in Dr. Devulapalli’s April 2010 consultative exam or with Dr. Pham’s own previous
examinations. In addition, the Commissioner states that a conflict exists between the opinions
expressed in the letter and Dr. Devulapalli’s exam, and that when a conflict exists, it is the
responsibility of the ALJ to weigh the evidence, resolve conflicts in the evidence, and decide the case.
In this case, the Commissioner says, the ALJ properly discounted the estimate that Plaintiff
could lift no more than five pounds because it was inconsistent with Dr. Devulapalli’s determination
that Plaintiff had normal strength. Dr. Pham’s estimate was also inconsistent with Plaintiff’s
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statements to him that she could do light cleaning and laundry, wash dishes, and “lift no more than 20
pounds.” Finally, the Commissioner contends that the ALJ properly discounted Dr. Pham’s statement
that “I cannot imagine how she can obtain gainful work at this point” because this is nothing more than
a conclusory statement of disability.
In her reply brief, Plaintiff states that impairment ratings are intended to be permanent, but that
the Commissioner nonetheless ignores her 1999 impairment rating because it is outside the relevant
time period. She argues that the fact she worked after receiving this rating is of no moment because
there is no evidence showing that this rating would have prevented her from doing any of the jobs she
held since 1999. Plaintiff also points out that she complained of back pain to Dr. Pham on January 31,
2008 and that the term “intermittent” in the medical records indicated that she suffered from “periodic
bouts of back pain.”
The Commissioner’s sur-reply states that Plaintiff’s complaint of back pain in January of 2008
was the result of a fall on some ice and that Plaintiff did not allege disability as a result of this fall.
One month later, in February of 2008, Plaintiff saw Dr. Pham and no mention was made of the slip and
fall or any back pain.
2. Carpal Tunnel
Plaintiff states that Dr. Nichols, Dr. Pham, and Dr. Devulapalli also concluded that Plaintiff
had carpal tunnel syndrome and tendinitis, based on positive results on Tinel’s test and Phalen’s test.
The ALJ stated at one point in his decision that “there is no indication that the diagnosis of carpal
tunnel was confirmed by any objective tests, such as nerve conduction studies.” Thus, the ALJ stated
that Plaintiff’s arm pain is “more properly characterized as non-specific arm/hand pain,” but noted that
“the functional limitations associated with this condition have been considered in determining
Plaintiff’s residual functional capacity.”
Despite stating that Plaintiff’s arm pain is more properly characterized as non-specific
arm/hand pain, however, the ALJ went on to say that “the consultative examiner’s diagnoses were low
back pain secondary to degenerative disc disease, carpal tunnel syndrome and tendinitis in the bilateral
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elbow joints. The undersigned has reviewed this evidence and finds it to be well supported by
objective tests and direct observation and it is therefore afforded significant weight.”
The Plaintiff contends that the Tinel’s and Phalen’s tests are objective medical evidence
showing that she suffered from carpal tunnel syndrome, but that the ALJ improperly discounted these.
Although the ALJ’s errors may appear harmless, Plaintiff argues that the ALJ did not mention
tendinitis in formulating the RFC and the ALJ did not state how Plaintiff could be incapable of
repetitive use of hands but could perform “frequent handling and fingering.” Plaintiff states that the
ALJ “fails to explain how he determined this mild functional limitation,” but avers that the ALJ
“probably underestimated the extent of Plaintiff’s residual functional capacity due to her carpal tunnel
syndrome and tendinitis.”
The Commissioner contends that the term used to describe the impairment doesn’t matter, but
that what matters is that the ALJ properly considered how Plaintiff’s impairments limited her ability
to perform basic work activities. The Commissioner characterizes the argument as one of “semantics,”
noting that the ALJ stated that “the functional limitations associated with this condition have been
considered in formulating [Plaintiff’s] residual functional capacity.”
3. Discounting the Opinion of the Treating Physician
Plaintiff states that the ALJ did not properly consider the opinions of Dr. Pham as expressed
in the August 2010 letter. She notes that while Dr. Pham said that he did not see her between 2008
and 2010, the ALJ claimed that Plaintiff was seen in the Marshall Internal Medicine Clinic between
2008 and 2010; however, Plaintiff says that the ALJ’s statement was in error.
The ALJ said that except for Dr. Pham, none of the treating physicians who saw her indicated
any specific functional limitations, but Plaintiff maintains that Dr. Pham was her only treating source
since 2006. Plaintiff complains that the ALJ rejected Dr. Pham’s August 2010 opinion that she could
not lift more than five pounds or perform repetitive actions such as typing or writing, but that there
were objective medical records supporting this conclusion, including the Tinel’s and Phalen’s tests
confirming that Plaintiff had carpal tunnel syndrome. Plaintiff claims that the only doctor to controvert
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this was Dr. Ligon, who never examined her, did not explain the basis for his findings, and did not
consider all of the medical records in evidence at the time that the decision was rendered. Plaintiff
contends that the ALJ “gave more weight to Dr. Ligon than Dr. Pham.”
Plaintiff also points to Dr. Pham’s opinion that he did not believe she could obtain gainful
work. While Plaintiff concedes that the Commissioner is ultimately responsible for deciding if a
person is disabled, Plaintiff states that “opinions from a medical source, especially a treating source,
must never be ignored.” She complains that the ALJ “summarily dismissed” Dr. Pham’s statement,
but that if the rationale for this opinion was deficient or incomprehensible, the ALJ should have
contacted Dr. Pham for clarification. In addition, because the ALJ’s order did not give controlling
weight to Dr. Pham’s opinion, Plaintiff says that the ALJ should have undertaken the analysis
prescribed in 20 C.F.R. 404.1527(c)(2) concerning factors to be examined relative to the probative
value of Dr. Pham’s opinion. Finally, Plaintiff says that the opinion was consistent with that of the
Texas Workforce Commission, whose finding should have been considered by the ALJ.
The Commissioner responds that the ALJ properly discounted Dr. Pham’s opinions in the
August 2010 letter because these opinions were not consistent with Dr. Devulapalli’s objective
findings in April of 2010 or with the previous medical records from Dr. Pham. Although Plaintiff
argues that the ALJ did not give sufficient weight to Dr. Pham’s opinion, the Commissioner maintains
that it is the function of the ALJ to resolve conflicts in the evidence. Furthermore, the Commissioner
states that the ALJ may reject a physician’s opinion when the evidence supports a contrary conclusion.
In this case, the Commissioner states that the ALJ discounted Dr. Pham’s estimate that Plaintiff
could not lift more than five pounds because it was inconsistent with Dr. Devulapalli’s opinion that
Plaintiff had “normal strength.” There was a conflict between Dr. Pham’s findings and Dr.
Devulapalli’s findings concerning Plaintiff’s strength, the ALJ resolved the inconsistency in favor of
Dr. Devulapalli. In addition, the Commissioner observes that the medical records of Plaintiff’s visits
with Dr. Pham showed no evidence of disabling back pain or uncontrolled COPD, and that a 20 C.F.R.
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404.1527(c)(2) analysis was not required because Dr. Devulapalli’s examination provided first-hand
medical evidence contradicting Dr. Pham’s opinion.
In her reply brief, Plaintiff points to a letter which counsel sent to Dr. Devulapalli on March
6, 2013. In this letter, counsel states that he asked Crystal Jackson in Dr. Devulapalli’s office if the
power portion of the neurological exam was evidence of how much weight Plaintiff would lift, and
Jackson said that it was not. Counsel asked if Dr. Devulapalli agreed with this statement, and the
doctor signed a line on the letter stating that he agreed. The Commissioner objected to this new
evidence, stating that the Court’s review is limited to the administrative record before the
Commissioner on February 23, 2011 and that the Plaintiff has failed to show good cause why a similar
statement from Dr. Devulapalli could not have been included in the evidence provided to the ALJ. In
addition, the Commissioner argues that the letter is not material because the totality of the evidence
supported the RFC determination made by the ALJ.
V. ANALYSIS
The Plaintiff’s first claim is that the ALJ underestimated Plaintiff’s limitations due to her back
injury because he did not give sufficient weight to the opinions of the physicians who treated and
examined Plaintiff for her back injury.
The medical records show that Dr. Devulapalli examined Plaintiff in April of 2010 and found
that she had normal gait and could get on the examining table without difficulty, although she did have
difficulty in tandem walking or walking on her toes and heels. She had no kyphosis or lordosis in her
back, although she did have muscle spasms and could bend forward 40 degrees. Her straight leg raise
test was negative for any tenderness, indicating no herniated disc. X-rays of Plaintiff’s back found
exaggerated lordotic curvature of the spine and signs of her prior back surgery with no compression
fracture, and X-rays of her right elbow were normal.
In May of 2010, a residual functional capacity assessment was carried out by Dr. Laurence
Ligon. Dr. Ligon did not examine Plaintiff, but relied heavily on the findings made by Dr.
Devulapalli; in fact, Dr. Ligon’s “additional comments” repeat Dr. Devulapalli’s findings verbatim.
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Dr. Ligon concluded that Plaintiff could occasionally lift or carry 20 pounds and frequently lift
or carry 10 pounds. He stated that Plaintiff could stand or walk up to six hours, with normal breaks,
in an eight hour day and could sit, with normal breaks, up to six hours in an eight-hour day. Her
capacity for pushing and pulling was unlimited, other than the restrictions on lifting and carrying, and
she had no postural, manipulative, visual, or communicative limitations.
Dr. Devulapalli’s findings support the RFC findings of the ALJ and amount to “substantial
evidence” to support the decision of the Commissioner. Falco, 27 F.3d at 162 (5th Cir.1994) (noting
that substantial evidence means that evidence which is “enough that a reasonable mind would judge
it sufficient to support the decision.”) In determining substantial evidence, the court may not reweigh
the evidence in the record, try the issues de novo, or substitute the Court’s judgment for that of the
Commissioner, even if the evidence may preponderate against the Commissioner’s decision. Bowling,
36 F.3d at 435.
Plaintiff points to the medical evidence furnished by Dr. Pham, but much of this evidence does
not contravene the Commissioner’s findings. Between 2006 and 2008, Plaintiff complained to Dr.
Pham of back pain on only two occasions, one of which involved a slip and fall on some ice rather than
a long-term disabling condition, and a month after this fall, Plaintiff was seen again by Dr. Pham and
made no complaint about her back. When Dr. Pham cleared her to return to work in 2007, this was
with “no restrictions.”
To the extent that Dr. Pham’s August 2010 letter may offer a contrary opinion, the Fifth Circuit
has made clear that conflicts in the evidence are for the Commissioner to decide. Spellman, 1 F.3d at
360. Dr. Pham’s letter says only that Plaintiff has “a history of low back problems.” This conclusory
assertion does not contravene the ALJ’s residual functional capacity assessment or the determination
that Plaintiff was capable of light duty. Plaintiff’s first ground for relief is without merit.
Plaintiff’s second claim is that the ALJ underestimated her limitations due to her carpal tunnel
syndrome and tendinitis because he did not give sufficient weight to the opinions of the physicians
who examined Plaintiff and diagnosed her with those impairments. Although the ALJ used the more
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non-specific term “arm pain” rather than identifying the condition as carpal tunnel syndrome, the ALJ
also gave “significant weight” to Dr. Devulapalli’s diagnoses, which included a diagnosis of carpal
tunnel syndrome. Furthermore, with relation to the determination of “arm pain,” the ALJ stated that
“the functional limitations associated with this condition have been considered in formulating her
residual functional capacity.”
Although Dr. Devulapalli diagnosed Plaintiff with carpal tunnel syndrome based on positive
Tinel’s tests in both wrists, he found that Plaintiff’s upper extremities had normal power, normal tone
with no atrophy, and reflex activity of 2+, which is normal. Her senses of touch, pain, and vibration
were intact in both hands. Based on the findings made by Dr. Devulapalli, Dr. Ligon concluded that
Plaintiff could occasionally lift or carry 20 pounds and frequently lift or carry 10 pounds, that her
capacity for pushing and pulling was unlimited, other than the restrictions on lifting and carrying, and
she had no manipulative limitations. Dr. Devulapalli’s findings constitute substantial evidence to
support the residual functional capacity determination of the ALJ.
Dr. Pham’s letter of August 18, 2010 states that Plaintiff had “marked weakness” in her right
hand. He estimated that she could lift no more than five pounds consistently or perform repetitive
motions such as writing or typing. The conflict with Dr. Devulapalli’s findings was resolved by the
ALJ in favor of Dr. Devulapalli, and the Court cannot second-guess this determination. Bowling, 36
F.3d at 435; Spellman, 1 F.3d 357, 360 (5th Cir. 1993) (conflicts in the evidence are for the
Commissioner to decide). In addition, as the Commissioner observes, Plaintiff’s records indicate that
she was able to perform such tasks as washing laundry and dishes, and Plaintiff once told Dr. Pham
that she could lift “no more than 20 pounds.” Because the ALJ’s determination was supported by
substantial evidence, that determination must be upheld. Villa, 895 F.2d at 1021.
Plaintiff’s third contention is that because the ALJ did not properly evaluate the opinion
evidence of the medical sources, he did not give sufficient weight to the opinion of Dr. Pham that she
could not lift more than five pounds consistently and was disabled. She argues that because the ALJ
did not give controlling weight to Dr. Pham’s opinion, the ALJ was required to undertake the analysis
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prescribed in 20 C.F.R. §404.1527(c)(2) and §416.927(c)(2). This statute provides that if an ALJ
decides not to afford the treating physician’s opinion controlling weight, there are five factors to be
considered in deciding how much weight to give the opinion. These factors are: (1) the nature of the
relationship between the plaintiff and the physician; (2) the medical evidence supporting the
physician’s opinion; (3) the consistency of the physician’s opinion with the record as a whole; (4) the
physician’s specialization; and (5) any other factors that tend to support or contradict the opinion.
However, the regulations require only that the ALJ consider these factors, not that the ALJ include a
factor-by-factor analysis in his decision. See Hoyle v. Colvin, civil action no. 4:12cv3464, 2013 WL
3873954 (S.D.Tex., July 23, 2013). In addition, the Fifth Circuit has explained that consideration of
these factors is required “in the absence of competing first-hand medical evidence.” Frank v.
Barnhart, 326 F.3d 618, 620 (5th Cir. 2003), citing Newton v. Apfel, 209 F.3d 448, 456-58 (5th Cir.
2000). Here, competing first-hand medical evidence existed in the form of Dr. Devulapalli’s
examination and findings. It was the duty of the ALJ to resolve the conflict in the evidence and the
conflict was resolved in favor of Dr. Devulapalli’s findings, a decision which the Court cannot secondguess.
Plaintiff also complains that the ALJ discounted the medical records from 1999, when she had
back surgery and was given an 18 percent impairment rating. The relevant period in this case began
in 2008, nine years later. More importantly, Plaintiff acknowledges that she worked for several years
after this back surgery was performed. In Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987), the
plaintiff asserted that he had suffered from hypertension since 1977, but conceded that he worked from
1957 until 1983 as a steel fitter and inspector. The Fifth Circuit noted that “the evidence indicated that
Fraga was able to, and did, perform heavy work for several years while he suffered from hypertension,”
indicating that the condition was not disabling. In the present case, the evidence shows that Plaintiff
performed light-duty work after undergoing back surgery, which is the same type of work which her
RFC permits her to do. See Vaughn v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (citing Fraga in
holding that “ability to work despite pre-existing condition supports ALJ’s finding of not disabled”);
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Gibson v. Astrue, civil action no. 3:11cv733, 2012 WL 10411 (N.D.Tex., January 3, 2012) (citing
Vaughn in holding that a claimant’s ability to work for several years with the same impairments that
the claimant alleged to be disabling supports a finding of not disabled). Although Plaintiff appears to
argue that the ALJ had a duty to clarify the 1999 medical records, the evidence shows that the facts
pertaining to the relevant period, which began in 2008, were fully developed. This contention is
without merit.
Finally, Plaintiff notes Dr. Pham opined that “I cannot imagine how she can obtain gainful
work at this point.” Plaintiff says that “while the ALJ is correct that the Commissioner is responsible
for determining if an individual is disabled, opinions from a medical source, especially a treating
source, on the ultimate issue of disability must never be ignored,” citing 20 C.F.R. §404.1527(e).
However, 20 C.F.R. §404.1527(d)(1) and 20 C.F.R. §404.927(d)(1) provide that opinions that a
claimant is disabled, including statements such as “unable to work,” are not medical opinions but
rather opinions on issues reserved to the Commissioner. Frank, 326 F.3d at 320. The Commissioner
correctly argues that Dr. Pham’s statement in this regard is entitled to no special weight. Nor is the
fact that the Texas Workforce Commission denied benefits based on that agency’s determination that
Plaintiff is unable to work. See Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (citing 20 C.F.R.
404.1504 in holding that “the determinations of other agencies, while persuasive, do not bind the
Social Security Administration.” Plaintiff’s claim on this point is without merit.
VI. CONCLUSION
A claimant bears the burden of proving that he or she suffers from a disability, defined as 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 12 months. Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005). The Fifth Circuit has explained that the claimant has the burden of proving that he was
disabled by showing a “medically determinable” impairment, demonstrated by “medically acceptable
21
.
clinical and laboratory diagnostic techniques.” Greenspan v. Shalala, 38 F.3d 232, 239 (5th Cir.
1994).
In this case, substantial evidence supports the ALJ’s finding that the Plaintiff was not under
a disability as defined in the Social Security Act from the date of onset until the day the decision was
rendered, as set out in 20 C.F.R. 404.1520(g). Because the Plaintiff failed to meet her burden of proof
and the ALJ’s decision was supported by substantial evidence in the record, it must be affirmed.
Bowling, 36 F.3d at 435. It is accordingly
ORDERED that the decision of the Commissioner is hereby AFFIRMED and the abovestyled and numbered Social Security action is hereby DISMISSED with prejudice.
SIGNED this 3rd day of January, 2012.
SIGNED this 5th day of January, 2014.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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