Stanford v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE re 1 Complaint filed by Harvey Stanford. The case should be remanded on the narrow point of whether the ALJ's RFC as to limited upper-level extremity limits Plaintiff from performing the jobs identified by the VE. Pursuant to the foregoing, the decision of the Administrative Law Judge is REMANDED as to point of error 2 only. Signed by Magistrate Judge Don D. Bush on 2/26/2013. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
HARVEY STANFORD
V.
MICHAEL ASTRUE COMMISSIONER OF
SOCIAL SECURITY ADMINISTRATION

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CASE NO. 4:11-CV-106

MEMORANDUM OPINION AND ORDER OF
UNITED STATES MAGISTRATE JUDGE
The Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of a final
decision of the Commissioner denying his claim for Disability Insurance Benefits (“DIB”). After
carefully reviewing the briefs submitted by the parties, as well as the evidence contained in the
administrative record, the Court finds that the Commissioner’s decision should be REMANDED
as set forth below.
HISTORY OF THE CASE
Plaintiff protectively filed an application for Supplemental Security Income disability benefits
under Title II of the Social Security Act on February 15, 2001, claiming entitlement to disability
benefits due to severe heart disease, major depression, anxiety, and bi-polarism. Plaintiff’s
application was denied initially and on reconsideration. Pursuant to Plaintiff’s request, a hearing was
held before an Administrative Law Judge (ALJ) in Dallas, Texas on January 6, 2009. Plaintiff was
represented by counsel at the proceeding. At the hearing, the ALJ’s psychological medical expert,
Alvin Smith, Ph. D., and the ALJ’s vocational expert (VE), Russell Bowden, testified.

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On August 12, 2009, the ALJ denied Plaintiff’s claim, finding Plaintiff “not disabled.”
Plaintiff requested Appeals Council review, which the Appeals Council denied on December 6,
2010. Therefore, the August 12, 2009 decision of the ALJ became the final decision of the
Commissioner for purposes of judicial review under 42 U.S.C. § 405(g). See 20 C.F.R. § 404.981
(2005).
ADMINISTRATIVE LAW JUDGE'S FINDINGS
After considering the record, the ALJ made the prescribed sequential evaluation. The ALJ
made the following findings:
1.

The claimant met the insured status requirements on November 6, 2007, the
earliest date under consideration herein, and he will continue to meet the
insured status for the requirements of the Social Security Act at least through
December 31, 2009.

2.

The claimant has not engaged in substantial gainful activity since November
6, 2007, the earliest date under consideration here in (20 C.F.R. §§ 404.1571
et seq.).

3.

At all times from November 6, 2007 through the date of this decision the
claimant has the following severe impairments: coronary artery disease status
post coronary artery bypass grafting with surgical residuals of some left upper
extremity weakness, hypertension, a major depressive disorder, and an
anxiety disorder (20 C.F.R. § 404.1520(c)).

4.

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. §§ 404.1525 and 404.1526).

5.

After careful consideration of the entire record, I find that the claimant has
the residual functional to perform light work as defined in 20 C.F.R.
404.1567(b) except for the inability to more than occasionally climb ramps
or stairs; climb ladders, ropes, or scaffolds; balance; stoop; kneel; crouch; or
crawl. Additionally, he has the inability to more than occasionally reach,
handle, and finger with his left upper extremity; inability to perform detained
or complex job tasks; and inability to perform work requiring more than
incidental public contact. Specifically, he retains the residual functional

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capacity to frequently lift and/or carry 10 pounds and occasionally up to 20
pounds; sit 6 hours in an 8-hour workday; stand and/or walk 6 hours in an 8hour workday; push and/or pull commensurate with lifting limitations;
understand, remember, and carry out simple (1 and 2 step) instructions;
respond appropriately to supervisors, co-workers, and usual work situations;
and deal with changes in a routine work setting at all times from November
6, 2007, the earliest date under consideration herein, through the date of this
decision. During this time period, he does not have the non-extertional
limitations of inability to more than occasionally climb ramps or stairs; climb
ladders, ropes, or scaffolds; balance; stoop; kneel; crouch; or crawl; and
inability to more than occasionally reach, handle, and finger with his left
upper extremity (20 C.F.R. § 404.1567(b) and SSRs 85-15 and 96-8P).
6.

The claimant is unable to perform any past relevant work (20 C.F.R. §
404.1565).

7.

The claimant was born on July 6, 1956 and was 51 years old, which is
defined as an individual closely approaching advanced age, on November 6,
2007, the earliest date under consideration (20 C.F.R. § 404.1563).

8.

The claimant has at least a high school education and is able to communicate
in English (20 C.F.R. §§ 404.1564).

9.

The claimant’s acquired job skills do not transfer to other occupations within
the residual functional capacity defined above (20 C.F.R. § 404.1568 and
SSR 82-41).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R. §§ 404.1569 and
404.1569a).

11.

The claimant has not been under a disability, as defined in the Social Security
Act, from November 6, 2007, the earliest date under consideration herein,
through the date of this decision (20 C.F.R. § 404.1520(g)).

(Tr. 28-57).

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STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision of no disability is limited to two
inquiries: whether the decision is supported by substantial evidence in the record, and whether the
proper legal standards were used in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994). If supported by substantial evidence, the Commissioner’s findings are conclusive
and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). 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. Id. at 401. The Court may not reweigh the
evidence in the record, try the issues de novo, or substitute its judgment for that of the
Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995). A finding of no substantial
evidence is appropriate only if no credible evidentiary choices or medical findings exist to support
the decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The Court is not to
substitute its judgment for that of the Commissioner, and reversal is permitted only “where there is
a conspicuous absence of credible choices or no contrary medical evidence.” Hames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983).
The legal standard for determining disability under Titles II and XVI of the Act is whether
the claimant is unable to perform substantial gainful activity for at least twelve months because of
a medically determinable impairment. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); see also Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). In determining a capability to perform “substantial
gainful activity,” a five-step “sequential evaluation” is used, as described below.

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SEQUENTIAL EVALUATION PROCESS
Pursuant to the statutory provisions governing disability determinations, the Commissioner
has promulgated regulations that establish a five-step process to determine whether a claimant
suffers from a disability. 20 C.F.R. § 404.1520 (1987). First, a claimant who, at the time of his
disability claim, is engaged in substantial gainful employment is not disabled. 20 C.F.R. §
404.1520(b) (1987). Second, the claimant is not disabled if his alleged impairment is not severe,
without consideration of his residual functional capacity, age, education, or work experience. 20
C.F.R. § 404.1520(c) (1987). Third, if the alleged impairment is severe, the claimant is considered
disabled if his impairment corresponds to an impairment described in 20 C.F.R., Subpart P,
Appendix 1 (1987). 20 C.F.R. § 404.1520(d) (1987). Fourth, a claimant with a severe impairment
that does not correspond to a listed impairment is not considered to be disabled if he is capable of
performing his past work. 20 C.F.R. § 404.1520(e) (1987).
At the fifth step, it must be determined whether claimant could perform some work in the
national economy. A claimant who cannot return to his past work is not disabled if he has the
residual functional capacity to engage in work available in the national economy. 20 C.F.R. §
404.1529(f) (1987); 42 U.S.C. § 1382(a).
At this juncture, the burden shifts to the Commissioner to show that there are jobs existing
in the national economy which Plaintiff can perform, consistent with his medically determinable
impairments, functional limitations, age, education, and work experience. See Bowen v. Yuckert, 482
U.S. 137 (1987). Once the Commissioner finds that jobs in the national economy are available to
the claimant, the burden of proof shifts back to the claimant to rebut this finding. See Selders v.
Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).

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In this case, a determination was made at the fifth step.
ANALYSIS
In his first point of error, Plaintiff contends that the ALJ failed to apply proper weight to the
treating and examining opinions of his doctors. The Fifth Circuit has required that the treating
doctor’s opinion be given “great weight.” Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995);
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). The ALJ cannot reject a medical opinion
without an explanation for doing so. Loza v. Apfel, 129 F.3d 378, 395 (5th Cir. 2000). However,
a treating physician’s opinions are far from conclusive and may be assigned little or no weight when
good cause is shown. Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2000). The opinion of a treating
source will not be given controlling weight if it is inconsistent with the other substantial evidence
of record. Spellman v. Shalala, 1 F.3d 357, 364-65 (5th Cir. 1993).
Plaintiff states that the opinion of Dr. Harrison was improperly rejected. Plaintiff only states
in general terms that the ALJ improperly rejected Harrison’s opinions. However, the ALJ found that
Plaintiff had a severe impairment of major depressive disorder, the same diagnosis given by
Harrison. As the ALJ notes, Harrison was not a treating doctor but gave a one time consultative
exam. As such, Harrison is not entitled to any special deference as a treating physician. See
Robinson v. Astrue, 271 Fed. Appx. 394, 396 (5th Cir. 2008). The records note that Plaintiff, at the
time he went to Harrison, was referred by his lawyer and had not previously sought mental health
counseling (TR 412, 414).
The ALJ notes the considerations he is to apply under 20 C.F.R. 404.1527(d)(2) and SSRs
96-2p and 96-5p. He acknowledges that, though not entitled to controlling weight, the opinion of
Harrison must still be considered. The ALJ notes that the mental exam was relatively benign and

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not indicative of the limitations found. Dr. Smith, the ME, testified that the results of the test
demonstrate diagnostic testing within normal range. The ALJ cites the testing and the longitudinal
evidence of the record which demonstrate no mental health complaints prior to Harrison’s
examination. The ALJ finds that the assessment is not entitled to evidentiary weight. As to Dr.
Strom, he refers to upper left extremity weakness which the ALJ recognizes. Dr. Strom saw the
claimant once for a consultative exam at the request of Disability Services. The ALJ does note that
Dr. Strom’s opinion is that Plaintiff’s cognitive impairment may interfere with work activities. The
ALJ did find that Plaintiff was restricted to understanding, remembering, and carrying out simple
tasks.
Harrison and Strom are considered non-treating sources. A non-treating source is an
examination by an acceptable medical source absent an ongoing treatment relationship. 20 C.F.R.
404.1502. As required, the ALJ did evaluate the medical opinions of the above named sources. In
sum, the ALJ is entitled to determine the credibility of medical experts as well as lay witnesses and
weigh their opinions accordingly. See Greenspan v. Shalala, 38 F.3d 232 (5th Cir. 1994).
Plaintiff also contends that the ALJ did not discuss Dr. Karla’s consultative exam. The
patient’s complaint, as noted by Dr. Karla, is that “I try to get my disabilities” (TR 543). This, the
ALJ did note. The ALJ further noted that no records were provided, only a self- reporting history
by the Plaintiff. Dr. Karla’s diagnosis is Major Depression – the same condition the ALJ found to
be severe. Dr. Karla assessed Plaintiff’s GAF score at 45-50 – again, based on what the Plaintiff had
told him. The ALJ is not required to discuss individual GAF scores.
The Commissioner has specifically declined to endorse the GAF scale for use in the disability
programs and has stated that it “does not have a direct correlation to the severity requirements in our

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mental disorders listings.” Revised Medical Criteria for Evaluating Mental Disorders and Traumatic
Brain Injury, 65 Fed.Reg. 50,746, 50,764–65 (Aug. 21, 2000); see also Cromwell v. Astrue, 2011
WL 666282, at *7 (N.D.Tex. 2011). The GAF score was part of the record, and the ALJ did
consider the same.
Plaintiff’s argument that the ALJ failed to accept many of the doctors’ findings that he is
unable to work is of no avail. As noted in Frank v. Barnhart, 326 F.3d 618,620 (5th Cir. 2003), a
physician’s opinion that a claimant is disabled or unable to work is not the type of opinion entitled
to controlling weight or even special significance. These are matters reserved for the ALJ.
The ALJ did review and comment on Dr. Gleason’s records at length. The ALJ noted that
no objective medical evidence from any doctor sustains a bipolar disorder. The ALJ noted that
Gleason and Harrison diagnosed Plaintiff with a major depressive disorder. The ALJ did give
credence to the treating sources’ opinions that Plaintiff has some functional limitations. However,
the ALJ did not accept the fact that the functional limitations, as expressed, are supported by the
longitudinal record. Based on the record and Dr. Smith’s testimony at the hearing, the ALJ found
moderate restrictions and no evidence of decompensation. Although the ALJ found that Plaintiff
met the “A” criteria for listings 12.04 and 12.06, he found that he did not meet the “B” criteria.
In activities of daily living, the ALJ gives several reasons why he only finds a moderate
restriction. The ALJ notes there are voluminous inconsistencies of record with respect to his daily
activities. He notes that Dr. Gleason’s notes simply do not support a more marked restriction.
Again, he gives his reasons for discounting Dr. Gleason’s opinion on the basis of social functioning.
As the ALJ notes, Dr. Gleason’s opinion as to marked limitations in concentration, persistence and

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pace are not borne out by the objective clinical testing. Again, the ALJ gives his reasons for
rejecting Dr. Gleason’s opinion as to evidence of decompensation.
The ALJ also notes the clinical notations of Doctors Sisk, Gangsani and Davis which to the
ALJ evidence no psychological complaints well over five years post surgery. He notes in the records
of Dr. Harrison that, on a typical day, the Plaintiff does non-vigorous exercise and performs
household chores. And the ALJ notes that, despite Plaintiff’s assertions to the contrary, he remains
fairly active on a daily basis. The ALJ notes that a stress test performed on the plaintiff indicates he
can do ordinary physical activity with no limitations. The ALJ notes that Dr. Harrison’s mental
exam was rather benign. The ALJ also notes the inconsistencies in Dr. Gleason’s findings and notes
that secondary gain is involved. The ALJ cites the absence of psychological treatment prior to his
referral to Dr. Harrison; the rather benign mental examinations and the relatively normal diagnostic
testing.
Plaintiff also submitted new evidence to the Appeals Council – the mental evaluation of
Dr. Jones. This Court is under an obligation to consider and address the new evidence submitted to
the Appeals Council. See Higginbotham v Barnhart, 405 F.3d 332 (5th Cir. 2005). It is Plaintiff’s
responsibility to demonstrate how the new evidence would have changed the ALJ’s decision. See
Primm v. Astrue, 2010 WL 5677051 (W.D. La. 2010). The question becomes whether such new
evidence is so inconsistent with the record that was before the ALJ.
Plaintiff maintains that Dr. Jones corroborated the opinions of Gleason and Harrison. By
Plaintiff’s own admission, there is nothing so inconsistent with the record that was before the ALJ.
In fact it was consistent. For example, the GAF assigned by Jones was 50, the same score as before.
His IQ measurement was nearly the same. On one of the records submitted to the Appeals council

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is a record from Dr. Davis. On the psychiatric note, the patient denies depression, memory loss,
stress or anxiety – all contrary to what he and his wife are telling the other doctors (TR711). Point
of error 1 is overruled.
Plaintiff’s second point of error is that the ALJ’s determination that plaintiff can perform jobs
in the national economy at step 5 is not supported by substantial evidence. The ALJ gave the VE
his hypothetical and asked whether there were jobs in the national economy that Plaintiff could
perform with the limitations recognized by the ALJ. The VE identified three jobs. Although the
ALJ asked whether the jobs were consistent with the DOT, the VE stated that there was no conflict.
Plaintiff maintains that there is an obvious conflict, since Plaintiff is limited to occasional fingering
and handling with his left upper extremity. Plaintiff argues that, if he were limited to sedentary
activity rather than light, the medical vocational guidelines would direct a finding of disabled.
The VE testified that there were over 700 unskilled light occupations represented by a little
over 500,000 jobs in Texas that the Plaintiff could do. The VE gave three examples of those type
of jobs. One of the jobs noted was DOT 529.687-186. The job description is light with a SVP of
2. Nothing in the description refers to constant bilateral use of the hands.
After the close of the hearing and before the Appeals Council decision, Plaintiff submitted
the report of VE Tami Donaldson. Her opinion is that, given the RFC found by the ALJ, the Plaintiff
cannot perform the jobs identified by the testifying VE, Bowden. Her report concludes that the jobs
noted by the VE would require constant bilateral use of hands which would be precluded by the
ALJ’s RFC of only occasional left upper extremity use. “A finding based on unreliable VE
testimony is equivalent to a finding that is not supported by substantial evidence and must be
vacated.” Britton v. Astrue, 521 F.3d 799, 803 (7th Cir. 2008). Morever, the Fifth Circuit, in Carey

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v. Apfel, held that an erroneous characterization of a job’s exertional requirements or skills required
to perform a particular job calls into question both the probative value and reliability of the expert’s
testimony and that an unexplained discrepancy between the ALJ’s RFC finding and the definition
of the identified jobs in the DOT would necessitate remand. See Carey v. Apfel, 230 F.3d 131 at 147
(5th Cir. 2000).
The case should be remanded on the narrow point of whether the ALJ’s RFC as to limited
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upper-level extremity limits Plaintiff from performing the jobs identified by the VE.
Pursuant to the foregoing, the decision of the Administrative Law Judge is REMANDED
as to point of error 2 only.
SO ORDERED.
SIGNED this 26th day of February, 2013.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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