Green v. Commissioner of SSA
MEMORANDUM RULING. Signed by Magistrate Judge Roy S. Payne on 09/22/2015. (nkl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
DAVID L. GREEN
CAROLYN W. COLVIN,
ACTING COMMISSIONER, SOCIAL
Case No. 2:13-CV-0430-RSP
On April 16, 2012, Administrative Law Judge Christopher L. Williams issued a decision
finding that Petitioner David Green was not disabled within the meaning of the Social Security
Act from July 29, 2010 through the date of the decision. Mr. Green, who was 57 with a ninth
grade education at that time, was found to be suffering from severe impairments including
affective disorders, depressive disorder, not otherwise specified, and a history of substance
abuse. He had not engaged in any substantial gainful activity since at least July 29, 2010.
Before that time he had spent most of his adult life in prison. He estimated he had spent 35 years
total in prison. Tr. 27. While he had attempted some work in the past, the ALJ concluded that
he had no relevant past work.
After reviewing the medical records and receiving the testimony at the hearing, the ALJ
determined that Petitioner had the residual functional capacity to perform the full range of
medium work, as defined in the Social Security Regulations, including lifting or carrying 50
pounds occasionally and 25 pounds frequently, unlimited push/pull, and standing, walking and
sitting (with normal breaks) for 6 hours of an 8-hour workday, except he is limited to unskilled
simple repetitive type work at the medium exertional level. Based on the testimony of a
vocational expert witness, the ALJ determined that Petitioner could perform the requirements of
certain jobs that exist in substantial numbers in the national economy, such as laundry worker,
drycleaner helper, and hand packager. This finding resulted in the determination that Petitioner
was not entitled to Supplemental Security Income benefits. Petitioner appealed this finding to
the Appeals Council, which denied review on April 29, 2013. Petitioner timely filed this action
for judicial review seeking remand of the case for award of benefits.
This Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. See Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994),
cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). Substantial evidence is
more than a scintilla, but can be less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552,
555 (5th Cir.1995). A finding of no substantial evidence will be made only where there is a
“conspicuous absence of credible choices” or “no contrary medical evidence.” Abshire v. Bowen,
848 F.2d 638, 640 (5th Cir.1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)). In
reviewing the substantiality of the evidence, a court must consider the record as a whole and
“must take into account whatever in the record fairly detracts from its weight.” Singletary v.
Bowen, 798 F.2d 818, 823 (5th Cir.1986).
Plaintiff raises five issues on this appeal:
1. The Administrative Law Judge’s decision was not supported by substantial
evidence as the evidence shows plaintiff meets listing 12.04 and 12.06.
2. The Administrative Law Judge’s decision was not supported by substantial
evidence as plaintiff suffers from a combination of impairments that show he is
3. The Administrative Law Judge erred in discrediting the opinions of plaintiff’s
treating physicians and therapist.
4. The Administrative Law Judge erred in discrediting plaintiff’s subjective
5. The Administrative Law Judge erred in failing to present a proper hypothetical
to the vocational expert to include all of plaintiff’s non-exertional limitations.
Issue No. 1:
Plaintiff contends that the ALJ erred in not finding that Plaintiff’s impairments meet or
medically equal the requirements of one of the listed impairments in 20 C.F.R. Part 404,
leading to a finding of disability at Step Three. Plaintiff refers to the requirements of Listings
12.04 and 12.06, which pertain to mental disorders. The ALJ addressed this issue on page 4 of
his opinion (Tr. 13). The requirements of the listings are demanding. Plaintiff bears the
burden of proof at Step Three and must prove that he has experienced “repeated episodes of
decompensation, each of extended duration,” as well as “marked”1 limitations in at least two
of the three following areas: activities of daily living, maintaining social functioning, and
maintaining concentration, persistence or pace.
In addition to this proof, Plaintiff must
separately show either a “complete inability to function outside the area of one’s
home” (for Listing 12.06) or a “medically documented history” of extended duration
meeting detailed criteria (for Listing 12.04) that Plaintiff does not even argue he has met.
On a scale of mild, moderate, marked or extreme.
While Plaintiff’s brief cites a variety of entries in the medical records, and often in
Plaintiff’s own testimony, Plaintiff’s burden is not to show that there is favorable evidence in the
record. Rather, Plaintiff must show that the ALJ lacked any substantial evidence to support his
findings. Both Dr. Matthew Turner and Dr. Glen McClure performed reviews of the records and
opined that Plaintiff did not meet the Listings. While Dr. Carmen Zegarra did make findings
tending to support Plaintiff’s position, the ALJ articulated reasons for assigning greater weight to
the opinions of the former. The Court’s review of the record does not support Plaintiff’s
argument that the ALJ erred in this finding.
Issue No. 2:
This issue is focused on the physical limitations described by the Plaintiff, and primarily
the fact that he testified to using a cane to assist in walking for the last six years. Plaintiff argues
that the ALJ should have found that he meets Listing 1.00 regarding the inability to ambulate
effectively due to problems with a hip, knee or ankle. However, the Listing clearly requires
greater limitations than even Plaintiff testified to, let alone those documented by a medical
source. Plaintiff uses only one cane--not the two canes, crutches or walker described in the
Listing—and clearly walks well enough to independently provide for the activities of daily
living. The ALJ did not err by not finding that Plaintiff met Listing 1.00.
Issues Nos. 3 and 4:
Plaintiff here asserts that the ALJ erred in not assigning controlling weight to the medical
opinions of a “treating source.” While not completely clear, it appears that the Plaintiff is
referring to the ALJ’s discounting of the findings of Dr. Segarra. Ordinarily, the opinions of a
treating physician should be given more weight than those of someone less familiar with the
Plaintiff’s condition. However, Dr. Segarra only saw the Plaintiff on two occasions, so her status
as a treating physician is marginal. A review of the records satisfies the Court that the ALJ was
justified in assigning “significant” weight to Dr. Segarra but more to the other medical experts,
whose findings were more detailed and consistent with each other.
Plaintiff also complains that the ALJ discounted the credibility of Plaintiff’s testimony
regarding his pain and other symptoms without proper explanation. While the ALJ has great
discretion in weighing the evidence and determining credibility, there are parameters governing
those findings. For instance, in Social Security Ruling 96-7, the Commissioner clarified that:
It is not sufficient for the adjudicator to make a single, conclusory
statement that “the individual's allegations have been considered” or that “the
allegations are (or are not) credible.” It is also not enough for the adjudicator
simply to recite the factors that are described in the regulations for evaluating
symptoms. The determination or decision must contain specific reasons for the
finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual's statements and the
reasons for that weight.
A review of the ALJ’s opinion, especially at pages 5 through 9, shows that the ALJ did
perform the required analysis of the record and give the specific reasons for his credibility
determination. The Court finds that the record, and particularly the medical evidence, amply
supports the ALJ’s finding that the Plaintiff’s complaints of pain and disabling symptoms were
not fully credible.
Issue No. 5:
The last issue concerns whether the hypothetical question given to the vocational expert
witness at the hearing included all appropriate restrictions on Plaintiff’s ability to work. For the
reasons discussed above, the Court finds that the residual functional capacity determination of
the ALJ was supported by substantial evidence.
Having found that the record supports the finding of the ALJ, the decision of the
Commissioner is affirmed and this action is dismissed.
SIGNED this 3rd day of January, 2012.
SIGNED this 22nd day of September, 2015.
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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