Howell v. Astrue
Filing
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MEMORANDUM OPINION. ORDERED that the decision of the Administrative LawJudge is AFFIRMED. Signed by Magistrate Judge Amos L. Mazzant on 2/4/2013. (pad, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
EUGENE LAWSON,
as next friend of H.N.G.,
Minor Child of Kelli D. Howell
V.
MICHAEL ASTRUE
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
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CASE NO. 4:11-cv-00426
(Judge Mazzant)
MEMORADUM OPINION
Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of a final decision
of the Commissioner of the Social Security Administration denying her application for disability
insurance benefits under Title II of the Social Security Act (the “Act”). 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 affirmed.
HISTORY OF THE CASE
Plaintiff filed an application for disability benefits on October 21, 2008, alleging disability
beginning on November 23, 2007 (TR 175-177). The claim was initially denied on January 2,
2009 (TR 66-69), and denied upon reconsideration on February 26, 2009 (TR 72-74). Plaintiff
filed a timely written request for hearing on March 12, 2009 (TR 84), and appeared at a hearing
before the Administrative Law Judge (“ALJ”) on November 20, 2009 (TR 34-57).
On June 25, 2010, the ALJ denied Plaintiff’s request for disability benefits when he
concluded that Plaintiff was not under a disability as defined by Section 216(i) and 223(d) of the
Social Security Act (TR 7-25). On June 25, 2010, Plaintiff timely requested review from the
Appeals Council, and on May 16, 2011, the Appeals Council denied her request for review,
thereby making the ALJ’s decision the final decision of the Commissioner (TR 1-3). On
November 30, 2012, the parties consented to the undersigned (Dkt. #26, #27, #28).
STATEMENT OF THE FACTS
Plaintiff was born on October 25, 1972, and was thirty-five years of age on the alleged
disability onset date (TR 175). Plaintiff completed high school and one year of college, and is
able to communicate in English (TR 201, 192). Plaintiff has previous work experience as a
waitress, indigent care representative, cashier, driver, medical voucher clerk, and medical clerk
(TR 24, 194). Plaintiff alleged disability due to pseudotumor cerebri, depression, anxiety, right
atrial lipoma, and asthma; however, Plaintiff limited the reasons for stopping work on November
23, 2007, to only depression and anxiety (TR 193). Plaintiff has not engaged in substantial
gainful activity since November 23, 2007 (TR 9-10). Plaintiff added a new claim for sleep apnea
in her appeal (TR 253).
AMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ found that Plaintiff had the following severe impairments: asthma, obesity,
headaches, history of pseudotumor cerebri and depression (TR 10). The ALJ found that Plaintiff
maintained the residual functional capacity to lift, carry, push, and pull 20 pounds occasionally and
10 pounds frequently, as well as sit, stand, and/or walk 6 hours each out of an 8-hour workday (TR
21). The ALJ also found that Plaintiff has the ability to perform the full range of light work as
defined in 20 CFR 404.1567(b) reduced by the inability to ever climb ropes, ladders, or scaffolds
(TR 21). The ALJ further found the Plaintiff is limited to understanding, remembering, and
carrying out detailed and simple instruction; and is precluded from understanding, remembering
and carrying out complex instructions; but may perform semi-skilled and unskilled light and
sedentary work activity (TR 21, 24). Based on the testimony of the vocational expert, the ALJ
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found the Plaintiff’s past relevant work as a medical voucher clerk was sedentary, semi-skilled
work, and as customarily performed in the national economy, does not involve work-related
functions precluded by the claimant’s functional limitations. In making this determination, the
ALJ considered the medical opinions of the various treating physicians; however, he determined
that the Physical Capacities Evaluation completed by Dr. McHenry was contradicted by the
progress notes in Dr. McHenry’s patient file regarding Plaintiff and was not entitled to controlling
weight (TR 23-24).
STANDARD OF REVIEW
In an appeal under § 405(g), this Court must review the Commissioner's decision to
determine whether there is substantial evidence in the record to support the Commissioner's factual
findings and whether the Commissioner applied the proper legal standards in evaluating the
evidence.
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler, 702
F.2d 616, 620 (5th Cir. 1983). This Court cannot reweigh the evidence or substitute its judgment
for that of the Commissioner, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995), and conflicts in
the evidence are resolved by the Commissioner. Carry v. Heckler, 750 F.2d 479, 482 (5th Cir.
1985).
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 at 393. In determining a capability to perform “substantial gainful activity” a
five-step “sequential evaluation” is used, as described below. 20 C.F.R. § 404.1520(a)(4).
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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 (2012). 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). 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). 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. 20
C.F.R. § 404.1520(d). 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). Finally, 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. § 404.1520(f); 42 U.S.C. § 1382(a).
ANALYSIS
Plaintiff raises the following two issues on appeal: (1) did the ALJ apply the proper legal
standard for severity when evaluating Plaintiff’s impairments at step two; and (2) was the Physical
Capacities Evaluation form completed by Dr. McHenry afforded the proper weight. The relevant
period of time under review is November 23, 2007, to May 16, 2011.
In her first issue, Plaintiff asserts that the ALJ failed to follow Stone v. Heckler, 752 F.2d
1099 (5th Cir. 1985), or the slight abnormality standard, in evaluating Plaintiff’s psuedotumor,
depression, anxiety, lipoma, and asthma. Step two of the sequential evaluation process requires
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that the ALJ determine whether Plaintiff’s impairments or combination of impairments are severe.
If the ALJ finds that the impairments are not severe, the process ends. 20 C.F.R. § 404.1521(a)
provides that “[a]n impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.” See also 20 C.F.R. §
404.1520(c). The Fifth Circuit interpreted the regulations regarding severity and found as
follows:
An impairment can be considered as not severe only if it is a slight abnormality
[having] such minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work, irrespective of age, education or work
experience.
Stone, 752 F.2d at 1101. The Fifth Circuit further found that the Court would assume that the ALJ
and Appeals Council had applied an incorrect standard to the severity requirement unless the
correct standard is set forth by reference to the Stone opinion, or another case of the same effect, or
by an express statement of the construction used in the case. Id. at 1106. The Court must look
beyond the use of “magic words” and determine whether the ALJ applied the correct severity
standard. Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986). “Unless the correct standard
of severity is used, the claim must be remanded to the [Commissioner] for reconsideration.”
Scroggins v. Astrue, 598 F. Supp. 2d 800, 805 (N.D. Tex. 2009) (citing Stone, 752 F.2d at 1106).
The Commissioner argues that because the case proceeded beyond step two of the
sequential evaluation, the Stone standard does not apply. In Loza v. Apfel, the Fifth Circuit found
that the ALJ used the wrong definition of severe impairment at step two of the analysis, and then
proceeded to step five. Loza v. Apfel, 219 F.3d 378, 398 (5th Cir. 2000). Despite the fact that the
case proceeded past step two, the Fifth Circuit reversed the case because the ALJ did not use the
Stone standard of severe. Id. at 393. The Fifth Circuit has never held that Stone only applies to
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cases where a plaintiff is found not disabled at step two. See Bragg v. Commissioner of Social
Security, 567 F. Supp. 2d 893, 907 (N.D. Tex. 2008); Key v. Astrue, No. 3-06-CV-1087-N, 2007
WL 2781930 at * 4 (N.D. Tex. Sept. 4, 2007).
In this case the ALJ made the following findings with regard to severe impairments:
At step two, I must determine whether the claimant has a medically determinable
impairment that is “severe” or a combination of impairments that is “severe” (20 CFR
404.1520(c)). An impairment or combination of impairments is “severe” within the
meaning of the regulations if it significantly limits an individual’s ability to perform basic
work activities. An impairment or combination of impairments is “not severe” when
medical and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to
work (20 CFR 404.1521: Social Security Rulings (SSRs) 85-28, 96-3p, and 96-4p). If the
claimant does not have a severe medically determinable impairment or combination of
impairments, she is not disabled. If the claimant has a severe impairment or combination
of impairments, the analysis proceeds to the third step (TR 8).
.....
I find the claimant’s medically determinable asthma, obesity, headaches, history of
psuedotumor cerebri and depression are more than slight abnormalities and cause
more than minimal functional limitations. She, therefore, has a severe impairment
by regulatory definition. (20 CFR 404.1524(c) (January 2, 2001)) and Social
Security Ruling 96-3p. (TR 18).
.....
In determining whether the impairment is “severe”, I must consider the claimant’s
pain and symptoms (TR 18).
Plaintiff asserts that the ALJ failed to follow the Stone standard in analyzing whether her
psuedotumor, depression, anxiety, lipoma, asthma, tachycardia, and lumbar pain were severe
impairments.
However, because the ALJ found Plaintiff’s asthma, headaches, history of
psuedotumor cerebri, and depression to be severe, the only necessary analysis involves Plaintiff’s
anxiety, tachycardia, and lumbar pain. The Commissioner asserts that the ALJ used the proper
standard in determining whether Plaintiff had a severe impairment, citing to the ALJ’s multiple
references to the SSA regulations which provide the root definition of a severe impairment. The
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Commissioner asserts that there is no basis for finding a conflict between the Stone standard and
the ALJ decision because he found the claimant’s asthma, headaches, history of pseudotumor
cerebri, and depression to be severe; and he addressed Plaintiff’s tachycardia, lumbar pain, and
anxiety as being resolved or controlled (TR 10-17).
In Scroggins, this situation was addressed and the Court found as follows:
Thus, according to the standard applied by the ALJ, a severe impairment could have,
at most, a minimal effect on a claimant's ability to work. This is not the standard set
forth in Stone, which holds that a severe impairment “would not be expected to
interfere with the individual's ability to work.” 752 F.2d at 1101 (emphasis added).
Unlike the standard applied by the ALJ, Stone provides no allowance for a minimal
interference on a claimant's ability to work. While the difference between the two
statements appears slight, it is clear that the ALJ's construction is not an express
statement of the Stone standard. This difference, coupled with the ALJ's failure to
cite Stone or a similar opinion, leads the Court to conclude that the ALJ applied an
incorrect standard of severity at step 2.
Scroggins, 598 F. Supp.2d at 805-06.
In Scroggins, the court determined that because there was a variance in the standard
applied by the ALJ, and in the absence of Stone being cited, the Court concluded that the ALJ
applied the incorrect standard. This Court has consistently remanded disability cases when it is
apparent that the ALJ failed to apply the Stone standard. This approach also requires further
analysis to determine if there was substantial evidence to support the ALJ’s decision that
Plaintiff’s anxiety, tachycardia, and lumbar pain were not severe impairments; and this Court will
not remand just because the proper standard is not cited when the result is the same.
The Commissioner asserts that Plaintiff’s anxiety, tachycardia, and lumbar pain were not
severe impairments that resulted in functional limitations, because they were resolved or
controlled with treatment or medication. Dr. Huddleston’s medical records indicate that Plaintiff
had “some increased anxiety while on steroids” (TR 1961). Plaintiff testified that she no longer
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took steroids, no longer took medication for depression, and felt okay (TR 51-52).
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Commissioner argues that the evidence of record established that Plaintiff’s anxiety resolved after
discontinuing steroid use and Plaintiff no longer experienced limitations. The Court agrees that
substantial evidence supports the ALJ’s conclusion that Plaintiff’s anxiety was not a severe
impairment.
The Commissioner also asserts that Plaintiff’s tachycardia was not a severe impairment
and the ALJ’s decision is supported by substantial evidence. The Commissioner points out that
although Plaintiff was diagnosed with tachycardia, the diagnostic tests by two treating physicians
showed normal (TR 11). Dr. John Cox on July 27, 2008, and Dr. Holland Robert on September
30, 2008, reported Plaintiff’s heart sounds, pulses, and rhythm were normal (TR 816, 831, 1274,
1292). Further, a medical record from Dr. Marcus McKinzie on December 24, 2008, states that
Plaintiff denied chest pains, shortness of breath, palpitations, or syncope; and that the
electrocardiogram was normal (TR 1310, 1319, 1322, 1524). Substantial evidence supports the
ALJ’s conclusion that Plaintiff’s symptoms resolved and there was no resulting limitation from
tachycardia.
Finally, the Commissioner asserts that the record does not support a finding that Plaintiff’s
lumbar pain is “severe” and continues to result in functional limitations in accordance with the
ALJ’s finding. The Court agrees. Although Plaintiff complained of lumbar pain and the ALJ
considered the impairment, there were medical tests and records that documented a minor problem
that had been stabilized (TR 11, 349-352, 455, 484-485, 501, 510, 1220, 1962). Plaintiff testified
that physical therapy and injections had helped, her back was a lot better, and her back did not
prevent her from working (TR 48). Substantial evidence supports the ALJ’s finding.
Even if the ALJ actually applied the incorrect severity standard, remand is not required
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when there is no evidence to support a finding that Plaintiff’s anxiety, tachycardia, or lumbar pain
were severe impairments under the correct standard. Substantial evidence in the record supports
the ALJ’s conclusions that Plaintiff’s anxiety, tachycardia, and lumbar pain were not severe
impairments.
In Plaintiff’s second issue, she asserts that the ALJ did not give proper weight to the
opinion of Dr. McHenry, one of the treating physicians. The ALJ weighs the credibility of all
evidence against the totality of the evidence provided, and bears the sole responsibility for
determining disability status. Moore v. Sullivan, 919 F.2d. 901, 905 (5th Cir. 1990). “Conflicts
in the evidence are for the [ALJ] and not the courts to resolve." Selders v. Sullivan, 914 F.2d 614,
617 (5th Cir. 1990). With good cause, the ALJ may give the opinion of a treating physician less
weight, little weight, or no weight.
Greenspan v. Shalala, 38 F.3d. at 237.
Good cause
exceptions include statements that are brief and conclusory, unsupported by medical acceptable
clinical laboratory diagnostic techniques, or are otherwise unsupported by the evidence presented.
Scott v. Heckler, 770 F.2d. 482, 485 (5th Cir. 1985).
The Commissioner argues that Dr. McHenry’s treatment of Plaintiff was limited to eye
problems stemming from pseudotumor cerebri, and his case notes did not discuss evaluation of
Plaintiff’s physical abilities or Plaintiff’s other medical problems. Further, the Commissioner
notes the ALJ’s finding that the doctor’s opinions as stated on the Physical Capacities Evaluation
questionnaire were in conflict with the notes in his medical records stating Plaintiff could return to
work and her visual acuity was normal (TR 24). The form in question was a fill-in-the-blank form
offering very limited explanation, which could have been considered brief and conclusory
statements by the ALJ (TR 1969-1973), and was found contradictory to the clinical notes and
records of Dr. McHenry (TR 23-24).
The ALJ’s opinion shows that he considered Dr.
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McHenry’s opinion, but rejected the doctor’s determination of disability. There is substantial
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evidence in the record to support the ALJ’s decision.
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CONCLUSION
Pursuant to the foregoing, it is ORDERED that the decision of the Administrative Law
Judge is AFFIRMED.
SIGNED this 4th day of February, 2013.
___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE
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