Shepard v. Colvin
Filing
19
MEMORANDUM OPINION. Signed by Magistrate Judge Roy S. Payne on 6/2/2018. (nkl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
RODNEY SHEPARD
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
§
§
§
§
§
Case No. 2:17-CV-132-RSP
MEMORANDUM OPINION
On July 24, 2015, Administrative Law Judge Daniel Curran issued a decision finding that
Petitioner Rodney O. Shepard was not disabled within the meaning of the Social Security Act from
July 19, 2011 through the date of the decision. Mr. Shepard, who was 49 with a high school
education and a welding certificate at that time, was found to be suffering from severe impairments
including panic disorder, atrial fibrillation, obesity and sleep apnea. These impairments resulted
in restrictions on his ability to work, and he had not engaged in any substantial gainful activity
since at least July 19, 2011. Before that time, he had worked as concrete truck driver, and was not
able to return to that type of work.
After reviewing the medical records and receiving the testimony at the July 14, 2015
hearing, the ALJ determined that Petitioner had the residual functional capacity (RFC) to perform
light work, as defined in the Social Security Regulations, in that he can lift and carry 20 pounds
occasionally and 10 pounds frequently, can stand or walk for 6 hours, and can sit for 6 hours, in
an 8-hour workday. His is able to understand, remember and carry out only simple instructions;
and can make simple, work-related decisions. He can respond appropriately to supervision, coworkers and usual work situations, and can deal with changes in a routine work setting. However,
his work must not require joint decision-making or teamwork, or more than occasional contact
1
with the general public. His work cannot require him to direct, or receive directions from, the
general public. His work must be simple, routine, solitary and repetitive, not requiring close
supervision. He must avoid exposure to unguarded hazards, such as uneven walking surfaces,
open nip points, unprotected heights, moving machinery, open pits, open flames, open pools of
water, and sharp objects. He must work in a controlled environment that does not require more
than occasional exposure to extremes of temperature, loud noises, smoke, flashing lights or other
intrusive environmental distractions.
Considering Petitioner’s RFC, the ALJ relied upon the testimony of a Vocational Expert,
Russell B. Bowden, and found that Petitioner had the residual functional capacity to perform a
variety of jobs available in the national economy in significant numbers as those jobs are described
in the Dictionary of Occupational Titles published by the Department of Labor. Those jobs include
assembler, packer, and hardware assembler. This resulted in a finding of no disability. Petitioner
appealed this finding to the Appeals Council, which denied review on February 1, 2017. 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
2
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. The ALJ’s decision finding Petitioner did not meet Listing 12.06 is not supported by
substantial evidence.
2. The ALJ’s assessment that Petitioner has the residual functional capacity to perform
light work is not supported by substantial evidence.
3. The ALJ erred in discrediting Petitioner without discussing evidence that explains his
non-compliance at times.
Analysis:
Issue No. 1:
Consideration of Petitioner’s arguments about Listing 12.06 is greatly complicated by the
fact that Petitioner’s briefing mixes in medical records put in the record after the last ALJ hearing
in July 2015. Indeed, they refer to evaluations of Petitioner that occurred after the hearing. The
Appeals Council noted that these records could not be considered without a new application for
benefits. Tr. 2. Yet Petitioner does not discuss this fact. For instance, the record quoted at length
from pages 12 through 14 of Petitioner’s brief and attributed to the consulting psychologist Dr.
Betty Feir, is actually a report from the family physician Dr. Richard Hozdic regarding a November
17, 2015 evaluation, long after the ALJ hearing. Tr. 1724. Similarly, the long quotes on pages 14
and 15, which actually are from Dr. Feir, are from a September 19, 2016 evaluation, more than a
year after the ALJ hearing. Tr. 12.
3
In the Fifth Circuit, the rule is that in order to justify a remand to the Commissioner, any
new evidence “must relate to the time period for which benefits were denied, and that it not concern
evidence of a later-acquired disability or of the subsequent deterioration of the previously nondisabling condition.” Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987). It must also be
evidence that might have changed the outcome below. Id. Based on the fact that the ALJ
discounted the earlier reports of Dr. Hozdic (Tr. 889) concerning Petitioner’s expected
absenteeism due to his impairments, the Court finds it unlikely that the later report would have
changed the outcome. Tr. 123. However, the same cannot be said of the later report of Dr. Feir.
Her September 19, 2016 findings seem persuasive and material to the Listing 12.06 issue. 1
However, they are clearly not about the relevant time period. Rather they suggest a “subsequent
deterioration,” which Bradley teaches should not be considered on this appeal. Dr. Feir performed
a psychological consultative examination on October 5, 2011, which painted a very different
picture and supported the ALJ’s RFC. Tr. 769-775. The ALJ discussed this report at length. Tr.
116-117. The change in the five years between the two examinations suggests a clear deterioration.
Removing from the analysis the subsequent records, there is more than substantial evidence
supporting the ALJ’s finding that Listing 12.06 is not met. At the November 6, 2012 hearing, Dr.
Jimmy Cole provided expert medical testimony on Petitioner’s mental impairment claim and
testified that the Listing was not met. Tr. 155. Likewise, at the July 14, 2015 hearing, Dr. Maxwell,
a psychiatrist, testified to the same effect, finding that there were no “marked” limitations in
functioning. Tr. 189-191. This was also the conclusion of Dr. Caren Phelan, a consultative
1
As it is the Commissioner’s role to evaluate the evidence initially, the Court expresses no
opinion on the proper disposition of any new application based on this evidence.
4
psychologist, in her October 13, 2011 assessment. Tr. 786. Accordingly, the Court finds that the
ALJ’s determination regarding Listing 12.06 is supported by substantial evidence.
Issue No. 2:
Consideration of this issue, dealing with the physical impairments, is also affected by the
issue described above concerning subsequent evidence. The report of Dr. Hozdic, discussed at
great length at pages 18-20 of Petitioner’s brief, is from a September 16, 2015 evaluation, well
after the ALJ’s hearing. Tr. 1714. It also contradicts Petitioner’s own testimony at the hearing
that his disability was due to two things: his arrhythmia and his agoraphobia with panic disorder.
Tr. 148-149. All of the other physical issues detailed in the brief—the back problems, the obesity,
the old knee and ankle injuries—were present at that time but were not claimed to be the cause of
his inability to work. Rather, they were the basis for the restriction to light work.
Other than precipitating the panic attacks, the arrhythmia was shown to have no serious
effect on Petitioner’s ability to function. Dr. Charles Murphy so testified at the November 6, 2012
hearing. Tr. 150-154. No medical evidence indicates that Petitioner’s heart condition precludes
light work. The ALJ carefully considered all of the other medical evidence and his determination
regarding the light work RFC is supported by that evidence and the testimony at the July 14, 2015
hearing by Dr. Don Clark, M.D. Dr. Clark testified that the light work RFC proposed by the ALJ
was appropriate for Petitioner. Tr. 197. Accordingly, the Court finds that substantial evidence
supports the RFC.
Issue No. 3:
Petitioner complains in this issue about the ALJ’s determination concerning Petitioner’s
credibility. The Commissioner has long conceded that while the ALJ has great discretion in
5
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.
Here Petitioner contends that the ALJ did not expressly discuss the evidence in the record
which Petitioner asserts explains why he was occasionally non-compliant with his medication or
doctor’s orders. Non-compliance was one of the factors discussed by the ALJ to explain why the
ALJ did not fully credit Petitioner’s statements about the limiting effects of his impairments. Tr.
122. The ALJ noted that “his failure to follow treatment recommendations raises at least an
inference that the claimant’s alleged symptoms are not as bothersome as he alleges.” Id. However,
there were many other factors discussed by the ALJ in support of his credibility determination,
such as the fact that Petitioner hasn’t required inpatient care or follow-up visits to his doctors; that
his reported activities of daily living show greater functional capacity than claimed; and, of course,
that the medical evidence does not support the greater limitations claimed. Tr. 122-123.
All in all, the Court finds that the ALJ met his burden of explaining his determination of
Petitioner’s limited credibility, and his decision is supported by substantial evidence.
6
Conclusion:
Having determined that the decision is supported by substantial evidence, the ruling below
is affirmed and this action is dismissed.
SIGNED this 3rd day of January, 2012.
SIGNED this 2nd day of June, 2018.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?