Channell v Social Security Administration

Filing 18

MEMORANDUM RULING. Signed by Magistrate Judge Roy S. Payne on 9/19/2017. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
RAMERALD CHANNEL
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION

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Case No. 2:16-cv-0793-RSP

MEMORANDUM RULING

On October 8, 2014, Administrative Law Judge Gordan Momcilovic issued a
decision finding that Petitioner Ramerald Channel was not disabled within the
meaning of the Social Security Act from December 15, 2011 through the date of the
decision. Mr. Channel, who was 42 with a high school education at that time, was
found to be suffering from severe impairments consisting of cervical disc disease
and lumbar disc disease as the result of a motor vehicle accident in 2010. These
impairments resulted in restrictions on his ability to work, and he had not engaged
in any substantial gainful activity since at least December 15, 2011. Before that time
he had worked as a construction worker and car detailer. He was not able to return
to that kind of work.
After reviewing the medical records and receiving the testimony at the
September 10, 2014 video hearing, the ALJ determined that Petitioner had the
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residual functional capacity to perform less than the full range of sedentary work, as
defined in the Social Security Regulations, in that he can lift or carry 10 pounds
occasionally and less than 10 pounds frequently, and can stand or walk for 2 hours
in an 8-hour workday, and sit for up to six hours in the workday. He should never
climb ladders, ropes or scaffolds, and only occasionally engage in all other postural
functions. He can only frequently reach in all directions, including but not limited
to overhead reaching, with the non-dominant left upper extremity.
Based on the testimony of a vocational expert witness, Jerold Hildre, the ALJ
determined that Petitioner could perform the requirements of certain jobs that exist
in substantial numbers in the national economy, such as order clerk, optical goods
assembler, and lens inserter.

This finding resulted in the determination that

Petitioner was not entitled to Social Security Disability benefits. Petitioner appealed
this finding to the Appeals Council, which denied review on February 22, 2016.
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);
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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).
Petitioner raises three issues on this appeal:
1. Plaintiff meets listing 1.04 for his cervical herniated discs and therefore
the ALJ’s decision was not supported by substantial evidence.
2. The ALJ erred in discrediting the plaintiff and rejecting testimony that was
supported by objective medical evidence.
3. The ALJ erred in failing to consider a closed period of disability.
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
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C.F.R. Part 404, leading to a finding of disability at Step Three. Plaintiff quotes the
requirements of listing 1.04, which pertains to disorders of the spine, but does not
identify which of the three sections of the listing he contends he meets. Nor does he
identify what specific evidence in the record supports any particular finding. The
ALJ addressed this issue on pages 6 and 7 of his opinion (Tr. 22-23).

The

requirements of listing 1.04 are very demanding. Falco v. Shalala, 27 F.3d 160, 162
(5th Cir. 1994). Plaintiff bears the burden of proof at Step Three and must show pain,
limitation of motion, muscle atrophy or weakness, and sensory or reflex loss to meet
the first and easiest part of the listing.

The report of Dr. Mark Smith, the

neurosurgeon, found “no restricted range of motion of the cervical or lumbar spine,”
as well as a “negative straight-leg raise bilaterally.” (Tr. at 345). The Court’s review
of the record does not support Petitioner’s argument that the ALJ erred in this
finding.
Issue No. 2:
This issue presents a closer question. Petitioner’s radiological evidence shows
serious defects in his cervical and lumbar spine. He has a long history of regular
treatment and use of narcotic pain medication, supporting his complaints of pain.
One of his treating doctors, Dr. Hozdic, has opined that Petitioner cannot work
steadily due to his pain. (Tr. 373). However, there is also countervailing evidence
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in the record, and it is the province of the ALJ to weigh the medical evidence and
determine disability, as long as he assigns proper reasons for his choices. In this
case, the Court concludes that the ALJ has done so.
Petitioner complains in this issue that the ALJ discounted the credibility of
Petitioner’s testimony regarding his pain and other symptoms without proper
explanation. The Commissioner concedes that 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 7 through 12, shows that
the ALJ did perform the required analysis of the record and gave very thorough and
specific reasons for his credibility determination. The Court finds that the record,
and particularly the medical evidence, supports the ALJ’s finding that the Plaintiff’s
complaints of pain and disabling symptoms were not fully credible. For instance,
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even the records of Dr. Richard Hozdic, who opined that Petitioner could not work,
show that Petitioner repeatedly reported that his pain was well controlled by his pain
medication. In fact, just the month before the hearing, Petitioner told Dr. Hozdic
that his “pain is fairly well controlled.” (Tr. 374 – August 5, 2014). On December
9, 2013, Petitioner told Dr. Hozdic that his pain had improved with medications.
(Tr. 371). On October 8, 2013, he reported that his “back pain [is] stable with current
medication.” (Tr. 361). On June 4, 2013, he reported “that pain still well controlled
with pain medications.” (Tr. 359). It is undeniable that Petitioner reported back
pain on every visit, but he did not routinely describe it to his doctors in the extreme
way he did during his testimony to the ALJ, which supports the ALJ’s credibility
decision. (Tr. 26).
Petitioner argues in his Brief that the ALJ “knows Plaintiff cannot work under
the influence of narcotic medication.” The regulations make clear that the ALJ must
take into account any evidence about the side effects of medication. The ALJ noted
that Petitioner was being treated for his pain with Hydrocodone throughout the
relevant time period. “However, the claimant has not alleged functional limitations
resulting from this, did not appear to ask his treating sources to change his
medication, and did not report during the application process that he experienced
side effects that would be expected to affect his ability to engage in basic work
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activities.” (Tr. 22). While the Court could take notice that operation of heavy
equipment would be contraindicated while taking serious dosages of Hydrocodone,
the same cannot be said for the kind of sedentary jobs for which the vocational expert
considered Petitioner. Thus, on this record, the Court cannot say that the ALJ erred.
The ALJ also carefully reviewed Petitioner’s testimony and other statements
concerning his limitations and his activities, the many neurological findings in the
record, and the opinions of both treating and consultative medical sources. While
the Court might have reached a different decision on a de novo review, the Court
cannot say that the ALJ’s decision is not supported by substantial evidence.
Issue No. 3:
Plaintiff’s final issue is that the ALJ erred in failing to assess a closed period
of disability. Such a finding would be appropriate if the ALJ had found disability
during some of the eligible period but improvement thereafter. In this case, the ALJ
found that Plaintiff was not disabled within the meaning of the Act during any part
of the relevant time period. Thus, Plaintiff’s improvement is not at issue and no
closed period of disability was appropriate.

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Conclusion:
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 19th day of September, 2017.

____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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