Jimenez v. Commissioner, SSA

Filing 24

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 22 Report and Recommendations. ORDERED that the decision of the Administrative Law Judge is AFFIRMED, and Plaintiffs case is DISMISSED with prejudice. Signed by Judge Amos L. Mazzant, III on 9/21/2017. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

BREEZY JIMENEZ

v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECUIRTY ADMINISTRATION

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Civil Action No. 4:16-CV-267
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On August 16, 2017, the report of the Magistrate Judge was entered containing proposed
findings of facts and recommendations that the Administrative Law Judge be affirmed. Having
received the report and recommendation of the Magistrate Judge (Dkt. #22), having considered
each of Plaintiff’s timely-filed objections (Dkt. #23), and having conducted a de novo review of
Plaintiff’s claims and all relevant pleadings, the Court is of the opinion that the findings and
conclusions of the Magistrate Judge are correct; and the Court hereby adopts the Magistrate
Judge’s report (Dkt. #22) as the findings and conclusions of the Court.
BACKGROUND
The facts in this case have been set forth in detail by the Magistrate Judge, and need not
be duplicated in their entirety herein (see Dkt. #22). In summary, on April 17, 2012, and
April 20, 2012, respectively, Breezy Jimenez (“Plaintiff”) filed applications for disability
insurance benefits (“DIB”) and supplemental security income benefits (“SSI”) under Title II and
XVI of the Social Security Act (“Act”), alleging an onset of disability date of May 30, 2009 [TR
at 234, 244]. Plaintiff’s applications were initially denied on August 23, 2012, after which

Plaintiff requested a hearing before an administrative law judge (“ALJ”). Id. at 153-64. The
ALJ conducted a hearing on August 26, 2013, and heard testimony from Plaintiff and a
vocational expert (“VE”), Mr. James P. Grier. Id. at 94-122.
Plaintiff was represented by counsel at the hearing, during which she amended the
alleged onset date to December 12, 2010. Id. at 96, 233. On September 16, 2013, the ALJ
issued an unfavorable decision, denying benefits and finding Plaintiff was not disabled at Step
Five of the prescribed sequential evaluation process (discussed infra). Id. at 19-38. On October
29, 2013, Plaintiff sought review before the Appeals Council. Id. at 72-73. The Appeals
Council initially denied review on March 25, 2015, but later set aside this action to consider
additional information, including a brief filed by Plaintiff’s counsel. Id. at 1. The Appeals
Council again denied review on August 27, 2015, concluding there was “no reason under our
rules to review the Administrative Law Judge’s decision.” The ALJ’s decision is the final
decision of the Commissioner. Id. at 1-7
On April 19, 2016, Plaintiff filed her Complaint in this Court (Dkt. #1). On August 16,
2017, the Magistrate Judge issued a Report and Recommendation (Dkt. #22). On August 30,
2017, Plaintiff filed his Objections to Report and Recommendation of Magistrate Ruling (Dkt.
#23).
Plaintiff objects to the Magistrate Judge’s recommended findings, stating the report and
recommendation is inconsistent with the Fifth Circuit’s recent decision in Kneeland v. Berryhill,
850 F.3d 749 (5th Cir. 2017). Plaintiff claims the ALJ’s written decision does not include a
sufficient analysis of the required factors which must be considered under 20 C.F.R.
§ 404.1527(c) when deciding to disregard or not wholly accept the opinions of Plaintiff’s treating
or examining sources.

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Citing Kneeland v. Berryhill, 850 F.3d 749 (5th Cir. 2017), Plaintiff argues that “absent
reliable medical evidence from a treating or examining physician controverting the claimant's
treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ
performs a detailed analysis of the treating physician's views under the criteria set forth in
20 C.F.R. § 404.1527(c)(2).” (Dkt. #23 at 3). Plaintiff objects to the Magistrate Judge’s Report
and Recommendation on the basis that the explanation within the ALJ’s decision—“while
sufficient to establish controlling weight could not be assigned to Dr. Weinstein’s and Dr.
Obinnah’s opinions—was deficient in [the ALJ’s] application of the 20 C.F.R. § 404.1527(c)
factors before rejecting their opinions totally.” (Dkt. #23 at 2).
As stated by the Magistrate Judge, under 20 C.F.R. § 404.1527(c), when assessing the
weight to be afforded to treating physicians, the ALJ considers the examining relationship
(20 C.F.R. § 404.1527(c)(1)); the treatment relationship, that is the provider’s ability to provide a
detailed, longitudinal picture of Plaintiff’s medical impairments and examinations considering
the length of the treatment relationship and the frequency of examination and the nature and
extent of the treatment relationship (id. at (c)(2)); whether the opinions are supported by medical
evidence (id. at (c)(3)); whether the opinions are consistent with the record as a whole (id. at
(c)(4)); whether the medical opinions are offered by a specialist in the medical field at issue (id.
at (c)(5)); and other factors which tend to support or contradict the medical opinion (id. at
(c)(6)). An ALJ is free to reject the opinion of any physician when the evidence supports a
contrary conclusion. Smith v. Comm’r of Soc. Sec. Admin., No. 4:12-cv-625, 2014 WL 4467880,
at *3 (E.D. Tex. Sept. 9, 2014) (citing Qualls v. Astrue, 339 F. App’x. 461, 466 (5th Cir. 2009)).
While the opinions of treating physicians are generally entitled to great weight, reliance on those
opinions can be decreased and even rejected by the ALJ for good cause. Id. (citing Greenspan v.
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Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). The ALJ may also disregard statements made by
treating physicians which are brief and conclusory, not supported by medically acceptable
clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence. Id. (citing
Greenspan, 38 F.3d at 236).

“When a treating or examining physician’s opinions are

inconsistent with other substantial evidence in the record, the opinions are not entitled to any
specific weight in the ALJ’s decision.” Id. (citing DeLeon v. Barnhart, 174 Fed. Appx. 201, 202
(5th Cir. 2006)).
Plaintiff argues that the ALJ decision must be reversed for failing to specifically delineate
and address, in the decision itself, the ALJ’s § 404.1527(c) analysis for affording only partial
weight to the opinions of Plaintiff’s treating physicians, Drs. Elena Weinstein and Augustine
Obinnah. The ALJ however clearly discusses facts underpinning each of the relevant factors.
Again, these factors include: (1) the physician’s length of treatment; (2) the physician’s
frequency of examination; (3) the nature and extent of the treatment relationship; (4) the support
of the physician’s opinion afforded by the medical evidence of record; (5) the consistency of the
opinion with the record as a whole; and (6) the specialization of the treating physician. Newton,
209 F.3d at 456. As explained by the Magistrate Judge, the ALJ’s decision expressly discusses
the examiner and treatment relationship between Plaintiff and Drs. Elena Weinstein and
Obinnah, and whether they specialize in the medical issues under treatment. See, 20 C.F.R.
§ 404.1527(c)(1, 2 and 5). The ALJ’s decision states Dr. Elena Weinstein is a rheumatologist
who saw Plaintiff in October of 2011, January 2012, and March 2012; and Dr. Obinnah is a
physician who saw Plaintiff monthly since March of 2013 (Dkt. #22 at 15)(citing TR at 29-30).
Thus as to each physician, their RFC opinions (dated May of 2012 and July of 2013,
respectively) were reached after no more than four treatment visits. The ALJ’s decision also

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discusses whether medical testing or examination results support Plaintiff’s claims of disability,
whether the treating physicians’ opinions are supported by the record as a whole, and any other
factors that support or contradict the medical opinions, including Plaintiff’s credibility.
See, 20 C.F.R. § 404.1527(c)(3, 4, and 6).
Unlike Kneeland, there is evidence in this case that the ALJ both mentioned and
considered Drs. Weinstein and Obinnah’s opinions. Indeed, the Magistrate Judge’s report and
recommendation detailed the ALJ’s consideration:
As stated in the ALJ’s decision, although Plaintiff complained of severe and
debilitating pain, she reportedly takes no pain medication. The ALJ’s opinion
outlines Plaintiff’s activities of daily living—all supported by evidence of
record—which undermine her reports of intense and frequent physical and mental
symptoms that limit her ability to work. The ALJ’s decision explains that during
Plaintiff’s treatment by Dr. Alan Weinstein, M.D., Plaintiff’s physical complaints
were not significant at the outset and they improved thereafter; and during her
March 2012 appointment with Dr. Elena Weinstein, Plaintiff reported she was
“somewhat fatigued,” with intermittent body aches, but her neck was normal, and
she had normal gait and station with full range of motion and only eight
fibromyalgia tender points. As stated in the ALJ’s decision, Plaintiff thereafter
waited nearly six months before seeing a doctor for symptoms of pain, which the
ALJ deemed “wholly inconsistent with what one would expect from someone
alleging severe and debilitating symptoms.” [TR at 31]. The ALJ’s decision
thoroughly explains the medical examination findings of Plaintiff’s treatment
providers along with the treatment gaps reflected in Plaintiff’s medical records,
and the decision contrasts this information with Plaintiff’s subjective complaints
[TR at 29-31].
(Dkt. #22 at 15-16) (emphasis added). Quoting directly from the ALJ’s decision, the Magistrate
Judge further explains:
[T]he ALJ assigned Dr. Elena Weinstein’s opinions afforded “partial weight as
there is no diagnosis within the record to explain why [Plaintiff] must avoid
cleaning solvents or cigarette smoke as she has not been diagnosed with asthma or
any respiratory condition and there is no evidence to support the number of
absences,” ([TR] at 31) and she likewise afforded partial weight to Dr. Obinnah’s
opinions, concluding there was no evidence of record supporting a finding that
Plaintiff “would miss 4 or more days a month . . . as [Plaintiff] has received
nothing more than intermittent, conservative care.” ([TR] at 30).

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(Dkt. #22 at 17).
As explained in the Magistrate Judge’s Report and Recommendation, the ALJ’s decision
states that based on inconsistencies within Plaintiff’s record, the ALJ considered Plaintiff’s
complaints of pain only partially credible, and the ALJ afforded greater weight to the opinion of
Dr. Covington, a physician’s assistant “who treated the claimant on a regular basis” and
expressed opinions “well supported by objective findings and the record as a whole.” (Dkt. #22
at 17) (citing TR at 31).
Contrary to Plaintiff’s argument, the ALJ performed an analysis of the treating
physician’s views under the criteria set forth in 20 C.F.R. § 404.1527 and properly applied
the law. (Dkt. #23 at 3, 6). On the specific facts before the Court herein, the ALJ’s written
decision is supported by the record, and adequately explains why the ALJ discounted the RFC
opinions of Dr. Elena Weinstein and Dr. Obinnah (Dkt.#17 at 22).
CONCLUSION
Having received the report of the Magistrate Judge, having considered each of Plaintiff’s
timely filed objections (Dkt. #23), and having conducted a de novo review of Plaintiff’s claims
and all relevant pleadings, this Court is of the opinion that the findings and conclusions of the
Magistrate Judge are correct and adopts the Magistrate Judge’s report (Dkt. #22) as the findings
and conclusions of the Court.

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.

It is, therefore, ORDERED that the decision of the Administrative Law Judge is
AFFIRMED, and Plaintiff’s case is DISMISSED with prejudice.
SIGNED this 21st day of September, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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