Willis v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION AND ORDER. For the foregoing reasons, the decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Christine A. Nowak on 9/22/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RAMONA MACHELLE WILLIS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 4:16-CV-677-CAN

MEMORANDUM OPINION AND ORDER
Plaintiff Ramona Machelle Willis (“Plaintiff”) brings this appeal under 42 U.S.C. §405(g)
for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”)
denying her claim for disability insurance benefits [Dkt. 1]. On March 4, 2017, the case was
referred to the undersigned for all further proceedings and the entry of judgment in accordance
with 28 U.S.C. §636(c) and the consent of the Parties. After 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.
BACKGROUND
I.

PROCEDURAL HISTORY OF THE CASE
This is an appeal from a denial of Plaintiff’s disability insurance benefits.

On

February 4, 2014, Plaintiff filed her application for Title II disability insurance benefits (“DIB”),
wherein she alleged she has been disabled since June 9, 2013,1 due to rheumatoid arthritis, bilateral

1

Plaintiff originally alleged disability on June 10, 2012, but later amended her alleged onset date to June 9, 2013
[TR at 61, 164].

ORDER – Page 1

knee replacements, chronic neck and back pain, depression, coronary artery disease, very limited
mobility, memory loss, osteoporosis, osteoarthritis, and hypertension [TR at 61, 80-81, 164-167,
217]. Plaintiff’s application was denied initially on July 17, 2014, and again on reconsideration
on October 6, 2014 [TR at 29, 80-109, 117-120]. On October 28, 2014, Plaintiff filed a written
request for a hearing and Donald R. Davis, an Administrative Law Judge (“ALJ”), held a hearing
on January 5, 2016 [TR at 58, 110-13, 118-20], at which Plaintiff, represented by counsel, and a
vocational expert, Talesia Beasley (“VE”) testified [TR at 58-59, 309]. On March 2, 2016, after
reviewing the evidence and testimony, the ALJ issued a decision finding that Plaintiff was not
disabled within the meaning of the Social Security Act (“the Act”) [TR at 29-50].

On

June 29, 2016, the Appeals Council denied review, making the ALJ’s decision the Commissioner’s
final administrative decision [TR at 1-4]. Plaintiff now seeks judicial review in this Court under
42 U.S.C. §405(g). On September 1, 2016, Plaintiff filed her Complaint [Dkt. 1]. The Court
received Administrative Record from the Social Security Administration (“SSA”) on November
29, 2016 [Dkt. 9]. On March 3, 2017, this case was assigned to the undersigned by consent of all
Parties for further proceedings and entry of judgment [Dkt. 15]. Plaintiff filed her Brief on
January 4, 2017 [Dkt. 11], and the Commissioner filed a Brief in Support of the Commissioner’s
Decision on March 3, 2017 [Dkt. 16].
II.

STATEMENT OF RELEVANT FACTS
1.

Age, Education, and Work Experience

Plaintiff was born on April 23, 1960 [TR at 80], making her fifty-three years of age on the
alleged onset date of June 9, 2013. Id. at 61. Her age classification on the alleged onset date was
“closely approaching advanced age.” See 20 C.F.R. § 416.963(d). Plaintiff has completed high
school [TR at 61]. Plaintiff has an extensive work history, beginning at AT&T from October 1995

ORDER – Page 2

to September 2005. [TR at 107]. She also worked at Ford Motor Credit from March 2004 to
February 2006, then at DHL from June 2006 to August 2008 before her most recent work as a
Mortgage Loan Officer at Bank of America from September 2009 to 2013. [TR at 106].
2.

Relevant Medical Record Evidence

Plaintiff has the following impairments: obesity, history of knee replacements,
osteoporosis, coronary artery disease, hypertension, carpal tunnel syndrome, arthritis, history of
fusion, fibromyalgia syndrome, bipolar disorder, depressive disorder, and Sjorgen’s syndrome
[TR at 32].
a.

Treating Sources

Plaintiff has an extensive history of knee impairments, which began on July 20, 2010, when
she reported knee pain to Dr. Ho B. Oei, who noted that Plaintiff was obese [TR at 406]. Plaintiff
underwent bilateral knee replacement surgery, performed by Dr. Michael Muncy, on
November 4, 2010. [TR at 486-89]. On January 27, 2011, Dr. Muncy reported that Plaintiff had
developed arthrofibrosis and had significantly limited ranges of motion in both knees, and so Dr.
Muncy performed a manipulation under anesthesia. [TR at 484-85]. Dr. Muncy later performed
revision procedures on both knees on April 19, 2012. [TR at 482-483]. He reported on July 10,
2012 that Plaintiff was progressing well and was happy with the results of the surgery. [TR at 473].
However, three years later, on April 8, 2015, Plaintiff presented to Dr. Allaadin Mollabashy
reporting continued knee pain, and Dr. Mollabashy prescribed Plaintiff a walker for lifetime use.
[TR at 810]. Several weeks later on May 29, 2015, Dr. Mollabashy performed a second revision
procedure on Plaintiff’s right knee. [TR at 1053-55].
Plaintiff’s history of back trouble began on April 25, 2013, when Plaintiff reported feeling
pain and numbness in her hands for the past several months. [TR at 541-44]. On August 15, 2013,

ORDER – Page 3

Dr. Neil Shah performed a fusion surgery on Plaintiff’s spine at C3-C4. [TR at 629-31]. On
April 15, 2014, Plaintiff presented to Dr. McColm and reported she was still in constant back pain.
[TR at 496]. Dr. Shah reviewed new images of Plaintiff’s spine on May 9, 2014, but determined
that her spine was stable and well aligned. [TR at 619]. Nearly a year later on April 21, 2015,
Dr. Mark Valente examined bone scans of Plaintiff and determined she would likely need to
undergo another fusion procedure at C3-C4. [TR at 916]. Dr. Valenta reported degenerative
changes in Plaintiff’s spine, including spinal stenosis at C3-C4 and moderate bilateral neural
narrowing at C7-T1 on August 25, 2015. [TR at 1180]. Plaintiff received a second opinion on her
spine on November 23, 2015 from Dr. Shah, who reported moderate to severe disc disease with a
right complex facet joint synovial cyst and severe spinal canal stenosis at L4-5. [TR at 1177].
Plaintiff also has a history of psychological, immunological, chronic pain, and
cardiovascular impairments. On November 1, 2011, a psychiatrist, Dr. Sherry Huey You-Surles,
determined that Plaintiff was suffering from severe depressive symptoms, as well as moderate
manic and anxiety symptoms. [TR at 642]. On September 8, 2012, Dr. Oei reported that a lip
biopsy taken from Plaintiff was consistent with Sjorgen’s syndrome, an immune system disorder
that causes severely dry eyes and mouth. [TR at 428]. In January of 2014, Dr. Oei reported that
he believed fibromyalgia may be the source of Plaintiff’s continued complaints of pain and that
Plaintiff exhibited tenderness in sixteen of eighteen tenderness points. [TR at 461, 465]. Finally,
Plaintiff had several cardiovascular imaging tests performed on May 15, 2015, by Dr. Neil Phung,
who determined that Plaintiff suffered from mild left ventricular hypertrophy and moderate mitral
regurgitation, but that her systolic and diastolic functions were normal. [TR at 1084-89].
Plaintiff has been seeing Dr. Vincent McColm as her primary care physician since
May 25, 2007. [TR at 1125]. Dr. McColm completed a Residual Functional Capacity Assessment

ORDER – Page 4

and a Mental Capacity Assessment for Plaintiff on November 18, 2015. [TR at 1123-25, 1128-31].
Dr. McColm stated that Plaintiff could lift ten pounds occasionally, sit for two hours in an eighthour work day, and stand or walk for zero hours in an eight-hour workday. He also noted that
Plaintiff would need to take breaks every ten to fifteen minutes and was limited to using her hands
for only ten percent of the workday. [TR at 1123-25]. Dr. McColm also reported that Plaintiff had
“Moderate” limitations in understanding and remembering simple and detailed instructions, as
well as “Marked” limitations in performing activities within a schedule or without special
supervision. [TR at 1128]. He also reported that Plaintiff had “Extreme” limitations in working a
full workday without psychological interruptions. [TR at 1129]. Dr. McColm concluded that in
his opinion Plaintiff was not physically capable of working an eight-hour day, five days a week,
on a sustained basis. [TR at 1124].
b.

Examining Sources

Plaintiff underwent a Consultative Examination conducted by Dr. John M. Joseph on
August 5, 2015 [TR at 1132-35]. During his examination, Dr. Joseph noted that Plaintiff had been
previously diagnosed with Sjorgen’s Syndrome and suffered from dry eyes and mouth
[TR at 1133]. He also noted that Plaintiff had a history of sleep apnea, but did not use a CPAP
machine [TR at 1133]. Dr. Joseph reported that Plaintiff suffered from moderate to severe fatigue,
was status post bilateral knee replacement, and had undergone revision procedures on both knees,
although the surgeries had not been satisfactory, as Plaintiff still reported persistent pain and lack
of mobility [TR at 1133]. Dr. Joseph reported that Plaintiff had undergone surgery on her spine at
C3-C4 and C5-C6, and was status post gastric bypass surgery [TR at 1133]. He further noted that
Plaintiff was moderately obese and suffered from Fibromyalgia and depression. [TR at 1134].

ORDER – Page 5

Dr. Joseph concluded by recommending water therapy for decreasing Plaintiff’s pain and
increasing mobility, as well as reducing the amount of NSAIDs taken by Plaintiff. [TR at 1135].
c.

State Agency Consultants

On October 6, 2014, Plaintiff underwent a physical examination conducted by Dr. Robert
White on behalf of the State Agency [TR at 101]. Dr. White found that Plaintiff was capable of
carrying or lifting twenty pounds occasionally and ten pounds frequently, standing or walking for
two hours in an eight-hour workday, and sitting for six hours in an eight-hour workday [TR at102].
He also opined that Plaintiff could occasionally climb ramps and stairs, and could never climb
ladders, ropes or scaffolds [TR at 103]. Dr. White also noted that Plaintiff could occasionally
balance, stoop, bend, crouch, and crawl [TR at 103].
On October 1, 2014, Plaintiff underwent a mental examination conducted by Dr. James
Wright on behalf of the State Agency. [TR at 104]. Dr. Wright found that Plaintiff could
understand, remember, and carry out detailed, but not complex, instructions. [TR at 104]. He also
found that Plaintiff could make decisions, attend and concentrate for extended periods of time,
accept instructions, and respond appropriately in a work setting. [TR at 105-06].
III.

THE HEARING
1.

Plaintiff’s Testimony

Plaintiff testified that she stopped working in June of 2013 because she passed out while
at work [TR at 62]. It was discovered that she had a bulging disc in her cervical spine that required
surgical correction; however, she did not recover as expected [TR at 62]. Plaintiff further testified
that the pain feels like her neck is “burning off her shoulders,” and that she cannot type due to the
pain [TR at 63]. She also testified that two spine specialists had recommended she undergo another
spinal surgery [TR at 63].

ORDER – Page 6

Plaintiff testified that she had knee replacement surgery in 2011 and had undergone several
revision procedures, two on the left and three on the right knee [TR at 64]. She testified that her
pain is “horrible,” and that she is in pain when she walks. [TR at 64]. Plaintiff testified she could
only remain on her feet for fifteen to twenty minutes at a time, but then she must sit down due to
the pain [TR at 64]. She described the pain as “stabbing”, and that her knees would get stiff
[TR at 64]. Plaintiff testified that she takes pain medication but that relief from the medication is
brief [TR at 64-65]. She further testified that she needed to elevate her legs to reduce the pain,
estimating she needed to have her legs elevated for twenty hours a day [TR at 65].
2.

Vocational Expert Testimony

Also present at the hearing was VE Dr. Talesia Beasley [TR at 59]. Dr. Beasley testified
that all of Plaintiff’s past work had been sedentary [TR at 69]. She also found that Plaintiff’s past
work as a Mortgage Loan Processor at Bank of America was considered “Semi-skilled” work, with
a skilled vocational preparation (“SVP”) of five and Dictionary of Occupational Titles (“DOT”)
number of 249.262.018 [TR at 71, 313]. Dr. Beasley testified that if Plaintiff could not work a
forty-hour work week, there would be no work available to the Plaintiff in either the local or
national economy [TR at 70]. She further testified that Plaintiff’s most recent work at Bank of
America did not require more than frequent handling [TR at 70].
When cross-examined by Plaintiff’s counsel, Dr. Beasley testified that Plaintiff’s prior job
at Bank of America did not include frequent contact with the public [TR at 70]. She also testified
that Plaintiff being limited to only understanding detailed instructions would not limit Plaintiff
from performing her most recent work at Bank of America [TR at 70].

ORDER – Page 7

IV.

FINDINGS OF THE ALJ
1.

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. First, a claimant who is engaged in substantial
gainful employment at the time of his disability claim 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 a listed impairment in 20 C.F.R., Part 404, 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). Under the first four steps of the analysis, the burden lies with the claimant to prove
disability and at the last step the burden shifts to the Commissioner. Audler v. Astrue, 501 F.3d
446, 448 (5th Cir. 2007). If at any step the Commissioner finds that the claimant is or is not
disabled, the inquiry terminates. Id. Under the first four steps of the analysis, the burden lies with
the claimant to prove disability and at the last step the burden shifts to the Commissioner. Audler
v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). If at any step the Commissioner finds that the
claimant is or is not disabled, the inquiry terminates. Id.

ORDER – Page 8

2.

ALJ’s Disability Determination

After conducting a review of the facts of Plaintiff’s case, the ALJ made the following
sequential evaluation. At step one, the ALJ found that the Plaintiff had not engaged in substantial
gainful activity since June 9, 2013, the alleged onset date [TR at 31]. At step two, the ALJ
determined the Plaintiff had the following severe impairments: obesity, history of knee
replacements, osteoporosis, coronary artery disease, hypertension, carpal tunnel syndrome,
arthritis, history of fusion, fibromyalgia syndrome, bipolar disorder, depressive disorder, and
Sjorgen syndrome [TR at 32]. At step three, the ALJ found that Plaintiff did not have an
impairment, or a combination of impairments, that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [TR at 36].
At step four, the ALJ determined that Plaintiff had the residual functional capacity to
perform light work, specifically finding that Plaintiff could lift and carry twenty pounds
occasionally and ten pounds frequently [TR at 41]. The ALJ also found that Plaintiff can stand or
walk for two hours of an eight-hour workday, and sit for six hours of an eight-hour workday
[TR at 41]. The ALJ determined Plaintiff could occasionally climb ramps and stairs, but never
ladders, ropes, or scaffolds and could occasionally balance, stoop, kneel, crouch, and crawl [TR at
41]. The ALJ also found that Plaintiff can frequently manipulate with her hands, understand,
remember, and carry out detailed, but not complex, instructions, and respond appropriately to
changes in a routine work setting [TR at 41]. The ALJ limited Plaintiff to only working in 2-hour
intervals between breaks, and determined Plaintiff should not be employed in fast-paced assembly
line work [TR at 41]. Continuing the step four analysis, the ALJ determined that Plaintiff was
capable of performing her past relevant work as a mortgage loan officer, and therefore ended his

ORDER – Page 9

analysis at step four [TR at 49]. Based on this determination, the ALJ concluded that Plaintiff was
not disabled from June 9, 2013 to March 2, 2016 [TR at 50].
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). Additionally, any
conflicts in the evidence, including the medical evidence, are resolved by the ALJ, not the
reviewing court. Carry v. Heckler, 750 F.2d 479, 484 (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, 750
F.2d at 393. “Substantial gainful activity” is determined by a five-step sequential evaluation
process, as described above. 20 C.F.R. § 404.1520(a)(4).
ANALYSIS
After reviewing both Plaintiff’s and Commissioner’s briefs, the Court discerns two primary
issues on appeal: (1) whether the ALJ failed to fully develop the record, and (2) whether the ALJ
gave the opinions of Plaintiff’s treating sources appropriate weight. The Court will review both
issues in turn.

ORDER – Page 10

Failure to Fully Develop the Record
Plaintiff contends that the ALJ committed prejudicial error when he declined to request
further examinations of Plaintiff to determine whether there were any limiting effects of Plaintiff’s
pain that were not reasonably caused by a particular impairment [Dkt. 11 at 4-5]. Plaintiff
specifically cites three instances in the ALJ’s Notice of Decision in which the ALJ hints at ordering
a further examination of Plaintiff, but does not do so: (1) the ALJ allegedly recognized “that the
effect of Willis’[s] pain needed to be evaluated by a pain specialist, [and] then noted ‘I am informed
in other cases that such an examination is not available in this locale,’” [Dkt. 11 at 5, quoting
TR at 34]; (2) the ALJ considered a “mini-Work Evaluation,” but found “[u]nfortunately, no work
evaluation has been performed and so I must rely upon inferences drawn from the medical and
other evidence of record to decide the case using hypotheticals” [Dkt. 11 at 5, quoting TR at 44];
and (3) the ALJ “recognize[ed] that holes needed to be patched with regard to the treating source
opinions, [but] the ALJ reported that ‘[u]nfortunately, I have been informed in other recent cases
that such a request cannot be effectuated’” [Dkt. 11 at 5, quoting TR at 46].
Further, Plaintiff responds that she was prejudiced by the ALJ’s failure to request further
consultative examination because:
if the ALJ had fully developed the record and patched the alleged holes in the
treating physician opinions of Drs. Mollabashy and McColm, holes which
[Plaintiff] does not concede exist, those opinions would have been fully supported
by the record and therefore entitled to great weight. In addition, proper evaluation
by a pain specialist and a proper work capacity evaluation would have verified the
extent of pain being experienced by [Plaintiff] and the overall limiting effect of her
combined impairments, which would preclude her from performing substantial
gainful activity
[Dkt. 11 at 6-7]. The Commissioner responds that Plaintiff takes each of these statements out of
context, and when viewed in context, none of these statements contain “any determination by the
ALJ regarding the development of Plaintiff’s administrative record.” [Dkt. 16 at 5]. Moreover,
ORDER – Page 11

the Commissioner asserts that Plaintiff’s arguments are irrelevant to raising a “requisite suspicion”
in this case. [Dkt. 16 at 6-7]. Moreover, the Commissioner argues that Plaintiff has wholly failed
to demonstrate how she was prejudiced by this alleged error [Dkt. 16 at 7].
The ALJ has a duty to fully and fairly develop the facts relating to a claim for disability
benefits to ensure the ALJ’s decision is supported by substantial evidence. Ripley v. Chater, 67
F.3d 552, 557 (5th Cir. 1995). A court will reverse the ALJ’s decision as not supported by
substantial evidence if the claimant shows: (1) the ALJ failed to fulfill this duty to adequately
develop the record; and (2) that this failure prejudiced the plaintiff. Kane v. Heckler, 731 F.2d
1216, 1219 (5th Cir. 1984). The burden to prove disability by demonstrating a physical or mental
impairment lies with the claimant, while ordering consultative examinations is within the
discretion of the ALJ. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987); 20 C.F.R. § 404.1512(a).
The ALJ is required to request more documentation only where there is no relevant evidence from
other treating sources. Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012).
1.

Consultative Exam Unnecessary

Full inquiry does not require a consultative examination at government expense unless the
record establishes that such an examination is necessary to enable the ALJ to make the disability
decision. Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977). The decision to order a
consultative exam is within the ALJ’s discretion. See Harper v. Barnhart, 176 Fed.Appx. 562, 566
(5th Cir. 2006); Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir. 1989). Plaintiff must, however,
present evidence that raises a suspicion of impairment for a consultative exam to be necessary. See
Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996). A consultative examination is not necessary
when substantial evidence supports the ALJ’s conclusion. See Turner, 563 F.2d at 671. Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a

ORDER – Page 12

conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler, 702 F.2d 616,
620 (5th Cir. 1983). In the present case, substantial evidence in the record supports the ALJ’s
conclusion that Plaintiff is not disabled. Although the ALJ alluded to the utility of a consultative
examination, there is no indication that the ALJ found the evidence in the record inconclusive or
otherwise inadequate to render a decision. In regard to the chronic pain issue, it is clearly evident
from the record that the ALJ considered Plaintiff’s complaints of chronic pain and her medical
records [TR 33-36]. Considering the issue of the ALJ not ordering a “mini-Work Evaluation,” it
is clearly evident from the record that the ALJ considered Plaintiff’s triggers and symptoms,
medical records, and her activities of daily living [TR 33-36]. With regard to the issue of the ALJ
not “patching the holes” in Drs. Mollabashy and McColm’s opinions, it is clearly evident from the
record that the ALJ considered the discrepancies in each physician’s opinion as “more form than
of substance” and further details the resolution of these discrepancies in the decision [TR at 4647]. There is also no evidence that Plaintiff raised the need for or independently sought an
additional consultative examination at the hearing (where she was represented by counsel) or at
any time before the ALJ rendered his decision. See Norris v. Berryhill, No. 3:15-CV-3634-BH,
2017 WL 1078524, at *17 (N.D. Tex. Mar. 22, 2017). Substantial evidence exists in the record
that supports the ALJ’s finding of no disability, and therefore further examination of Plaintiff was
not necessary.
2.

Plaintiff Has Adduced No Evidence That Would Show a Possibility of An Altered
Result

Moreover, for this Court to reverse and remand, Plaintiff must show that she was
prejudiced by the ALJ’s decision to not order a consultative examination, if one was necessary.
See Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012). To show prejudice, Plaintiff must show

ORDER – Page 13

that had the ALJ requested the necessary examination, she would have adduced evidence that
would have altered the result. See Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984).
Even if the Court found that a further examination of Plaintiff was necessary for the ALJ
to properly determine disability, Plaintiff has failed to present any evidence that would show the
possibility of an altered result if the ALJ had ordered an examination. In her brief, Plaintiff accuses
the Social Security Administration of systemic failure in not requesting consultative examinations
with more frequency [Dkt. 11 at 5]. However, Plaintiff failed to cite any evidence that a different
outcome was possible if ALJ had requested a further examination of Plaintiff besides a conclusory
remark that an examination “would have verified the extent of pain experienced.” Id. at 7. This is
not enough to show a possibility of an altered result had the ALJ requested a further examination.
The Court finds that a further examination of Plaintiff by a pain specialist, a “mini-Work
Evaluation,” and follow-up consultations with Drs. Mollabashy and McColm were not necessary
for the ALJ to make a determination of disability. Accordingly, the ALJ did not fail to fully
develop the record.
The ALJ Afforded Proper Weight to the Medical Opinions in the Record
Plaintiff’s next point of contention is that the ALJ failed to afford proper weight to the
medical opinions in the record [Dkt. 11 at 8]. Plaintiff contends that the ALJ did not conduct the
relevant 20 C.F.R. § 404.1527(c) factors correctly, and failed to state good cause for the weight
given to the medical opinions in the record [Dkt. 11 at 8]. Defendant responds that Plaintiff
mischaracterizes some of the medical opinions given by Dr. Mollabashy, that Dr. McColm’s and
Dr. You-Surles’s opinions are not supported by each doctor’s own medical findings.

ORDER – Page 14

1.

Requirements for Giving Weight to Treating Physician

The weight to be given to medical opinions in Social Security cases depends in large part
on whether the opinions are proffered by treating, examining, or nonexamining physicians. In the
Fifth Circuit, the treating physician rule provides that the opinion of a claimant’s treating physician
on a medical issue (i.e., the nature and severity of a patient’s impairment) is entitled to great
weight. Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000); Leggett v. Chater, 67 F.3d 558,
566 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994), cert. denied, 514 U.S.
1120 (1995). A treating physician’s opinion regarding the severity and nature of a plaintiff’s
impairment must be given controlling weight if it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with…other substantial
evidence.”

Martinez v. Chater, 64 F.3d 172, 175-76 (5th Cir. 1995) (citing 20 C.F.R.

§ 404.1527(d)(2)).2 The opinion of an examining physician is, in turn, entitled to greater weight
than the opinion of a nonexamining physician; and when an examining physician’s opinion is
contradicted by another doctor, it also may be rejected only for specific and legitimate reasons
supported by substantial evidence in the record. See Bradley v. Bowen, 809 F. 2d 1054, 1057 (5th
Cir. 1987); see also Cline v. Astrue, 577 F. Supp. 2d 835, 845 (N.D. Tex. 2008).
To that end, SSA Regulations provide that the ALJ “will always give good reasons in [a]
notice of determination or decision for the weight [the ALJ gives the claimant’s] treating source’s
opinion,” and also list the factors an ALJ must consider to assess the weight to be given to the

2

20 C.F.R. § 404.1527 has been revised several times since the Fifth Circuit’s opinions in Newton and in Martinez
and those courts’ reference to subsection (d)(2) refer to the factors now present at subsection (c)(2) of
20 C.F.R. § 404.1527. Compare 20 C.F.R. § 404.1527 (effective to July 31, 2006) with 20 C.F.R. § 404.1527 (Aug.
24, 2012). The Court further notes that for all claims filed on or after March 27, 2017, the Rules in § 404.1520c (not
1527) shall apply.

ORDER – Page 15

opinion of a treating physician when the ALJ determines that such opinion is not entitled to
“controlling weight.” See 20 C.F.R. § 404.1527(c)(2). As stated in Newton:
Even though the opinion and diagnosis of a treating physician should be afforded
considerable weight in determining disability, the ALJ has sole responsibility for
determining a claimant’s disability status. [T]he ALJ is free to reject the opinion
of any physician when the evidence supports a contrary conclusion. The treating
physician’s opinions are not conclusive. The opinions may be assigned little or no
weight when good cause is shown. Good cause may permit an ALJ to discount the
weight of a treating physician relative to other experts where the treating
physician’s evidence is conclusory, is unsupported by medically acceptable
clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the
evidence.
209 F.3d at 455-56 (internal citations and quotation marks omitted).
Thus, unless controlling weight is given to a treating physician’s opinion, the SSA
regulations specifically require consideration of the following factors set forth in 20 C.F.R.
§ 404.1527(c)(2) (hereinafter “the relevant factors”) in deciding the weight given to each medical
opinion: (1) length of treatment relationship and frequency of examination; (2) nature and extent
of treatment relationship; (3) supportability of the medical opinion; (4) consistency;
(5) specialization of the physician; and (6) other factors. See 20 C.F.R. § 404.1527(c)(2) (listing
factors to consider); Newton, 209 F.3d at 456 (stating the Fifth Circuit requires consideration of
each of the 20 C.F.R. § 404.1527(c)(2) factors); Boyd v. Barnhart, 258 F. Supp. 2d 1013, 1020
(E.D. Miss. Mar. 26, 2003) (unless a treating source’s opinion is given controlling weight, the ALJ
must explain the weight given to the opinions of other physicians). The Court must also consider
if the error is a harmless error. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).

ORDER – Page 16

2.

Factors to be Considered Before Declining to Give Treating Physicians’
Opinions Controlling Weight

SSA regulations provide that the SSA “will always give good reasons in [its] notice of
determination or decision for the weight [it gives the claimant's] treating source's opinion.” See 20
C.F.R. § 404.1527(c)(2). Section 404.1527(c) requires the ALJ to consider specific factors to
assess the weight to be given to the opinion of a treating physician when the ALJ determines that
it is not entitled to “controlling weight.” Id. Specifically, the ALJ must consider: (1) examining
relationship; (2) treatment relationship; (3) supportability of the medical opinion; (4) consistency;
(5) specialization of the physician; and (6) other factors. See § 404.1527(c) (listing factors to
consider). The ALJ must consider all six of these factors if “controlling weight” is not given to a
treating physician’s medical opinions. Id. (unless the ALJ gives a treating source’s opinion
controlling weight under paragraph (c)(2) of this section, the ALJ must consider all of the
following

factors

in

deciding

the

weight

we

give

to

any

medical

opinion); Newton, 209 F.3d at 456 (stating the Fifth Circuit requires consideration of each of
the 20 C.F.R. § 404.1527(c)(2) factors).
3.

Weight Afforded Dr. McColm, Dr. Mollabashy, and Dr. You-Surles’s Opinions

The ALJ determined that Plaintiff has the RFC to “lift and/or carry and/or push/and/or pull
20 pounds occasionally and 10 pounds frequently, stand and/or walk (with normal breaks) for a
total of two hours in an eight hour work day and sit (with normal breaks) for about six hours in an
eight-hour workday….occasionally climb ramps and stairs, never climb ladders, ropes, or
scaffolds, and occasionally balance, stoop, kneel, crouch, and crawl….frequently handle and
finger. She is able to understand, remember, and carry out detailed but not complex instructions,
make decisions, attend and concentrate for extended periods, accept instructions, and respond
appropriately to changes in a routine work setting….should be restricted to work for only 2-hour
ORDER – Page 17

intervals between breaks, but can sustain a full 8-hour workday. She is also limited to frequent
contact with the public, and she should avoid fast-paced assembly line work” [TR at 41].
Dr. Vincent McColm saw Plaintiff for three appointments at the Medical Clinic of North
Texas between August 2013 and April 2014 [TR 496, 504, 513]. In November 2015, Dr. McColm
opined that Plaintiff could not stand, needed 30-minute breaks every 15 minutes, could not remain
mentally stable during an eight-hour workday, could not consistently show up for work, and could
only use her hands for 10% of the time [TR at 1123-1124, 1129]. The ALJ did not afford
controlling weight to Dr. McColm’s opinion after finding it to be “brief and conclusory”
[TR at 45]. The ALJ also walked through each of the aforementioned factors, and stated that
Dr. McColm’s opinions were not sufficiently detailed or consistent with medical expectations, and
that the opinions did not trace some of Plaintiff’s alleged extreme limitations back to a medical
cause [TR at 45-46]. Dr. Alladdin Mollabashy performed a revision of Plaintiff’s total right knee
arthroplasty on May 19, 2015 [TR at 1053-1055, 1057]. After her surgery, Plaintiff saw Dr.
Mollabashy three more times: on June 3, July 29, and October 7, 2015 [TR at 987, 1029, 1043].
Dr. Mollabashy averred that Plaintiff was unable to work throughout her recovery process [TR at
991, 1012, 1060]. The ALJ did not give Dr. Mollabashy’s opinion controlling weight after finding
it too was not sufficiently detailed or consistent with medical expectations. He also stated that he
was unable to trace some of Plaintiff’s alleged extreme limitations back to a medical cause
[TR at 45-46]. Dr. Sherry You-Surles saw Plaintiff on April 11, 2014, and noted Plaintiff was
depressed [TR at 648-649]. The ALJ did not give Dr. You-Surles’s opinion controlling weight
because it also was not sufficiently detailed or consistent with medical expectations and did not
connect Plaintiff’s alleged extreme limitations back to a medical cause [TR at 45-46]. The ALJ
awarded partial weight to Drs. McColm, Mollbashy, and You-Surles’s opinions [TR at 47].

ORDER – Page 18

Plaintiff contends that the ALJ failed to state good cause for not giving the opinions of
Drs. McColm, Mollabashy, and You-Surles controlling weight, and also failed to properly conduct
the required § 404.1527(c) analysis [Dkt. 11 at 8]. First, the ALJ stated in his Notice of Decision
that he found the restrictive opinion of Dr. McColm to be “brief and conclusory” [TR at 45]. One
of the recognized forms of good cause is when the opinion is “conclusory.” See Newton,
209 F.3d at 455-56. The ALJ proceeded to conduct the relevant factor analysis despite stating
good cause [TR at 45]. The ALJ’s analysis under the relevant factor analysis was thorough and
explained how each factor affected the ALJ’s decision to not afford Dr. McColm’s opinion
controlling weight. Id. The ALJ went on to say that he found the opinions of Drs. Mollabashy and
You-Surles fared similarly under the same analysis, and therefore, he afforded those opinions
lesser weight than the decisions of the state agency consultants [TR at 46-48].
The ALJ’s main concern with the opinions of these three physicians was that they were not
sufficiently detailed or consistent with medical expectations. Id. at 45. He states that he was unable
to trace some of Plaintiff’s alleged extreme limitations back to a medical cause. Id. at 45-46. The
Court finds that the ALJ properly explained his decision to not afford Plaintiff’s treating
physicians’ opinions controlling weight. The 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). In
the present case, the ALJ properly stated good cause for not affording controlling weight to the
three medical opinions on Plaintiff’s disability in the record and conducted a thorough analysis of
the relevant 20 C.F.R. § 404.1527(c) factors. The ALJ has correctly followed the procedures
dictated by the Fifth Circuit in Newton as well as the statutory regulations found in 20 C.F.R.
§ 404.1527.

ORDER – Page 19

Since Drs. McColm and Mollabashy concluded Plaintiff is impaired due to pain, among
the “other relevant factors” the ALJ must consider when assessing the weight of their opinions,
(see 20 C.F.R. 404.1527(c)), is the credibility of Plaintiff’s subjective complaints when compared
to the objective findings reflected in the record as a whole. Upon doing so, the ALJ concluded
“the claimant’s ‘severe’ impairments were capable of producing pain or other symptoms that
would interfere with the ability to perform basic work activities, they could not reasonably be
expected to give rise to the level of disabling limitations the claimant actually alleged. Although I
find the claimant to be sincere and genuine, the most serious symptoms and limitations are outside
the range of reasonable attribution to a medically determinable impairment(s).” [TR at 49]. The
ALJ’s decision is supported by the record, includes the analysis required under 20 C.F.R.
§ 404.1527(c)(2), and explains why the ALJ discounted the RFC opinions of each of Dr. McColm,
Dr. Mollabashy, and Dr. You-Surles. Newton, 209 F.3d at 455 (quoting Paul v. Shalala, 29 F.3d
208, 211 (5th Cir. 1994)). The Court therefore finds that the ALJ did not err when he rejected or
discounted the opinions of Plaintiff’s treating sources.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.

SIGNED this 22nd day of September, 2017.

___________________________________
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE

ORDER – Page 20