Daniels-Davis v. Astrue
MEMORANDUM OPINION AND ORDER. The decision of the Commissioner is hereby AFFIRMED and this social security action is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge K. Nicole Mitchell on 08/12/14. (mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
COMMISSIONER, SOCIAL SECURITY
CIVIL ACTION NO. 6:12CV863
MEMORANDUM OPINION AND ORDER
On November 8, 2012, Plaintiff initiated this civil action pursuant to the Social Security Act
(The Act), Section 205(g) for judicial review of the Commissioner’s denial of Plaintiff’s application
for Social Security benefits.
On March 5, 2007, Marietta Daniels-Davis filed for disability insurance benefits under Title
XVI of the Social Security Act (the Act). See Transcript (“Tr.”) at 169-74. In her application, Plaintiff
alleged disability beginning March 20, 2006. Id. Her claim was initially denied on April 27, 2007, and
upon reconsideration on June 29, 2007. See Tr. at 116, 117. An administrative hearing was held on
August 5, 2009, in Tyler, Texas, before Administrative Law Judge Christopher L. Williams. See Tr.
Plaintiff appeared with representation and testified about her medical issues and their impact
upon her life. See Tr. at 84–113. Vocational expert Tammy Donaldson and medical expert Dr. Sterling
Moore also appeared and testified. Id. The ALJ issued an unfavorable decision on August 31, 2009.
See Tr. at 121–29.
Plaintiff requested Appeals Council review of the ALJ’s decision, and on January 24, 2011, the
Appeals Council remanded Plaintiff’s case back to the ALJ and ordered him to give further
consideration to the treating opinions in the record and to Plaintiff’s maximum residual functional
capacity. See Tr. at 131–32.
In compliance with the Appeals Council’s order, a second administrative hearing was held in
front of ALJ Williams on August 31, 2011. See Tr. at 12 (Administrative Law Judge (“ALJ”)
decision). Plaintiff testified again. Medical expert Dr. Charles Murphy and vocational expert Russell
Bowden also appeared and testified. Id. The ALJ issued a second unfavorable decision on October 5,
2011. See Tr. at 12–22. Based on its findings, the ALJ determined that Plaintiff had not been under
a disability, as defined in the Act, from her application date through the date of his decision. See Tr.
at 118. On November 8, 2011, Plaintiff requested Appeals Council review of the ALJ’s unfavorable
decision. See Tr. at 7–8. On October 23, 2012, the Appeals Council denied Plaintiff’s request for
review. See Tr. at 1. Therefore, the AC’s decision became the Commissioner’s final decision. See
Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Having exhausted her administrative remedies, Plaintiff
filed the above-captioned case seeking judicial review of the Commissioner’s decision under 42 U.S.C.
Title XVI of the Act provides for supplemental security income for the disabled. Judicial
review of the denial of disability benefits under section 205(g) of the Act, 42, U.S.C. § 405(g), is
limited to “determining whether the decision is supported by substantial evidence in the record and
whether the proper legal standards were used in evaluating the evidence.” Bowling v. Shalala, 36 F.3d
431, 435 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Muse v. Sullivan, 925
F.2d 785, 789 (5th Cir. 1991) (per curiam). A finding of no substantial evidence is appropriate only
where there is a conspicuous absence of credible choices or no contrary medical evidence. Johnson v.
Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988); Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
Accordingly, the Court “may not reweigh the evidence in the record, nor try the issues de novo, nor
substitute [the Court’s] judgment for the [Commissioner]’s, even if the evidence preponderates against
the [Commissioner]’s decision.” Bowling, 36 F.3d at 435; Harrell v. Bowen, 862 F.2d 471, 475 (5th
Cir. 1988); see Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Anthony v. Sullivan, 954 F.2d 289,
295 (5th Cir. 1992); Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Rather, conflicts in the
evidence are for the Commissioner to decide. Spellman, 1 F.3d 357, 360 (5th Cir. 1993); Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990); Anthony, 954 F.2d 289, 295 (5th Cir. 1992); Patton v.
Schweiker, 697 F.2d 590, 592 (5th Cir. 1983). A decision on the ultimate issue of whether a claimant
is disabled, as defined in the Act, rests with the Commissioner. Newton v. Apfel, 209 F.3d 448, 455-56
(5th Cir. 2000); Social Security Ruling (“SSR”) 96-5p.
“Substantial evidence is more than a scintilla but less than a preponderance – that is, enough
that a reasonable mind would judge it sufficient to support the decision.” Pena v. Astrue, 271
Fed.Appx. 382, 383 (5th Cir.2003); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir.1994). Substantial
evidence includes four factors: (1) objective medical facts or clinical findings; (2) diagnoses of
examining physicians; (3) subjective evidence of pain and disability; and (4) the plaintiff’s age,
education, and work history. Fraga v. Bowen, 810 F.2d 1296, 1302 n.4 (5th Cir. 1987). If supported
by substantial evidence, the decision of the Commissioner is conclusive and must be affirmed.
Richardson v. Perales, 402 U.S. 389, 390 (1971). The Court must do more than “rubber stamp” the
ALJ’s decision; the Court must “scrutinize the record and take into account whatever fairly detracts
from the substantiality of evidence supporting the [Commissioner]’s findings.” Cook, 750 F.2d 391,
393 (5th Cir. 1985). The Court may remand for additional evidence if substantial evidence is lacking
or “upon a showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” 42. U.S.C. § 405(g) (2000);
Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994).
A claimant for disability has the burden of proving a disability. Wren v. Sullivan, 925 F.2d 123,
125 (5th Cir. 1991). The Act defines “disability” as an “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be expected
to result in death or which can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). A “physical or mental impairment” is an
anatomical, physiological, or psychological abnormality which is demonstrable by acceptable clinical
and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
In order to determine whether a claimant is disabled, the Commissioner must utilize a five-step,
sequential process. Villa, 895 F.2d at 1022. A finding of “disabled” or “not disabled” at any step of the
sequential process ends the inquiry. Id.; see Bowling, 36 F.3d at 435; see also Harrel, 862 F.2d at 475.
Under the five-step sequential analysis, the Commissioner must determine at Step One whether the
claimant is currently engaged in substantial gainful activity. At Step Two, the Commissioner must
determine whether one or more of the claimant’s impairments are severe. At Step Three, the
Commissioner must determine whether the claimant has an impairment or combination of impairments
that meet or equal one of the listings in Appendix I.
Prior to moving to Step Four, the Commissioner must determine the claimant’s Residual
Functional Capacity (“RFC”), or the most that the claimant can do given his impairments, both severe
and non-severe. Then, at Step Four, the Commissioner must determine whether the claimant is capable
of performing his past relevant work. Finally, at Step Five, the Commissioner must determine whether
the claimant can perform other work available in the local or national economy. 20 C.F.R. §§
An affirmative answer at Step One or a negative answer at Steps Two, Four, or Five results in
a finding of “not disabled.” See Villa, 895 F.2d at 1022. An affirmative answer at Step Three, or an
affirmative answer at Steps Four and Five, creates a presumption of disability. Id. To obtain Title II
disability benefits, Plaintiff must show that he was disabled on or before the last day of his insured
status. Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.1981), cert. denied, 455 U.S. 912, 102 S. Ct.
1263, 71 L. Ed. 2d 452 (1982). The burden of proof is on the claimant for the first four steps, but shifts
to the Commissioner at Step Five if the claimant shows that he cannot perform his past relevant work.
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam).
ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings in the October 5, 2011, decision:
The claimant has not engaged in substantial gainful activity since February 26, 2007, the
application date (20 C.F.R. § 416.971 et seq.).
The claimant has the following severe impairments: obesity, obstructive sleep apnea; liver
disease; hepatitis C and cirrhosis; degenerative joint disease in the hands, wrists, and knees; and
cervical and lumbar spondylosis (20 C.F.R. § 416.920[c]).
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. §§ 416.920(d), 416.925 and 416.926).
The residual functional capacity produced by the medically determinable impairments permits
sitting 6 hours in an 8 hour workday at 2 hour intervals, standing 2 hours in an 8 hour workday
at 30 minute intervals, walking 2 hours in an 8 hour workday at 30 minute intervals, and lifting
less than 10 pounds frequently and 10 pounds occasionally as defined by the regulations at 20
CFR § 416.967(b). The claimant cannot squat, kneel, crouch, climb, or crawl and can
occasionally stoop and bend; and can do frequent handling and fingering (not constant).
The claimant is capable of performing her past relevant work as a telemarketer (DOT 399.357014). This work does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 C.F.R. § 416.965).
The claimant has not been under a disability, as defined in the Social Security Act, from
February 26, 2007, the date the application was filed (20 CFR § 416.920[f]).
See Tr. at 12-22.
The ALJ determined that Plaintiff was not disabled under section 1614 (a)(3)A) of the Social
Security Act. See Tr. at 22.
DISCUSSION AND ANALYSIS
Plaintiff asserts she cannot work because she has been suffering from lupus, hepatitis, carpal
tunnel syndrome, and back and knee problems since March 20, 2006.
Plaintiff is a high school
graduate who has had some vocational training in sales and data entry. See Tr. at 31. She is a widow
who lives with her adult son and 87-year old mother, and spends her time watching television. See Tr
at 31-32. She is able to walk for about 30 minutes on “a good day”. See Tr. at 41. She wears her hair
in a ponytail because that is the only way she is able to style it. See Tr. At 41. She can go to the grocery
store, but she has to use a mechanical car to get around the store. See Tr. at 43.
Plaintiff argues, in her sole contention of error, that the ALJ did not properly considered the
opinions of Plaintiff’s treating physician, Perry Wallach, M.D in arriving at his conclusion that Plaintiff
was not disabled under the Act. See Plaintiff’s Brief (“Pl. Br.”) at 1, 9-13.
The Medical Evidence in the Record.
Plaintiff was fifty-two years-old at the time of her application for benefits. See Tr. at 169.
Plaintiff’s medical records indicate that she has been treated for knee and back problems, osteoarthritis,
carpal tunnel syndrome, hepatitis C, and gastrointestinal impairments during the time relevant to her
claim for benefits. After a fall in March 2006 injured her right knee, Plaintiff was issued a knee
immobilizer and instructed to use crutches to ambulate. See Tr. at 272–73. Dr. William Schreiber noted
that Plaintiff’s knee was unstable, and her knee extension and range of motion were reduced. See Tr.
at 253, 254. He suspected torn MC and AC ligaments. Id. An MRI performed in June 2006 confirmed
a torn ACL and prominent joint effusion. See Tr. at 267. Records from 2006 also show that Plaintiff
was treated for a lumbar back strain. See Tr. at 282, 290.
In March 2007, Plaintiff underwent a consultative exam in conjunction with her application
for benefits. See Tr. at 297–99. Plaintiff reported that her back and knee pain affected her ability to
stand for long periods of time, and she could only walk for one block or climb three steps before
needing to stop due to pain. See Tr. at 297. The examiner concluded that Plaintiff suffered from
arthritis in both knees, low back pain, carpal tunnel syndrome, and hepatitis C. See Tr. at 298. An xray of Plaintiff’s lumbar spine showed degenerative disc disease and facet arthrosis. See Tr. at 299. An
x-ray of Plaintiff’s right knee showed degenerative changes and joint effusion. See Tr. at 300. On
April 17, 2007, Plaintiff underwent x-rays on her lumbar spine and right knee. Degenerative disc
changes and facet arthrosis were seen in her lumbar spine, and degenerative changes and joint effusion
were noted in her knee. See Tr. at 466, 467.
Plaintiff was treated by Dr. Perry Wallach for knee, foot, and back pain beginning in July 2007.
See Tr. at 367. He ordered x-rays of Plaintiff’s lumbar spine, which showed degenerative disc disease
and facet arthrosis. Id. This imaging of Plaintiff’s knees showed degenerative changes. See Tr. at 369.
An opinion from Dr. Wallach, dated October 30, 2007, noted that Plaintiff needed to elevate
her legs and change positions frequently in an eight-hour workday. See Tr. at 330. Dr. Wallach also
opined that Plaintiff could not lift objects of any weight in a vocational setting. Id. Dr. Wallach also
stated that Plaintiff was limited in her ability to use her hands and arms for grasping, pushing, pulling,
and fine manipulation, and she was unable to perform postural movements in a vocational setting. See
Tr. at 331. Dr. Wallach expected Plaintiff’s limitations to last a lifetime and believed that she would
miss more than four days of work a month due to her impairments. See Tr. at 332.
X-rays performed on the same day showed osteoarthritis and degenerative changes in Plaintiff’s
feet and knees. See Tr. at 362–65. In addition to her musculoskeletal problems, Plaintiff was also
treated for lung and digestive problems as well as hepatitis C in 2007. Chest CTs showed chronic
obstructive pulmonary disease (COPD). See Tr. at 396, 452. Plaintiff was also diagnosed with chronic
reflux with dysphagia, chronic constipation, lupus, hepatitis C and fatigue. See Tr. at 325, 327, 338,
477, 494, 498, 504.
At a January 30, 2008, appointment, Dr. Wallach assessed Plaintiff with memory problems
and carpal tunnel syndrome. See Tr. at 520–21. He ordered x-rays of Plaintiff’s hands and cervical spine
in May 2008 after her symptoms persisted. The x-rays of her hands showed degenerative changes, and
the x-ray of her cervical spine showed degenerative spondylosis and narrowing. See Tr. at 636, 664,
666. Dr. Wallach’s treatment records throughout 2008 note that Plaintiff experienced from chest, knee,
and back pain, and he diagnosed her with arthritis, chronic pain, hepatitis C, and hypertension. See Tr.
at 639, 766, 775, 780.
Dr. Wallach issued another opinion on September 24, 2008, regarding the severity of and
functional limitations caused by Plaintiff’s impairments. Dr. Wallach listed Plaintiff’s primary
diagnoses as arthritis and hepatitis C. See Tr. at 711. Dr. Wallach stated that Plaintiff was not a
malinger and that her pain caused constant interference with her attention and concentration. See Tr.
at 712. He opined that Plaintiff could walk half a block, sit forty-five minutes, and stand ten minutes
before stopping. Id. Plaintiff could rarely lift ten pounds, and needed the freedom to shift positions
and elevate her legs. See Tr. at 713. Dr. Wallach estimated that Plaintiff would miss three days of work
per month due to her symptoms. See Tr. at 714.
Plaintiff was also treated for her various gastrointerology impairments with Dr. Elias Fanous
beginning in 2008. See Tr. at 817–31. Dr. Fanous noted Plaintiff’s elevated liver functions and
dysphagia. See Tr. at 827–31. A liver biopsy performed in November 2008 showed chronic hepatitis
with cirrhosis. See Tr. at 842. Treatment notes from 2009 show that Plaintiff was receiving treatment
from Dr. Fanous for her hepatitis, which caused fatigue and lethargy. See Tr. at 817–19. Another liver
biopsy performed in 2009 showed cirrhosis and liver disease. See Tr. at 825. The notes from 2010 and
2011 show continued diagnosis of and treatment for hepatitis, cirrhosis, and epigastric pain. See Tr. at
Dr. Wallach’s treatment notes from 2009 show that Plaintiff continued to suffer from arthralgias
and associated pain in her knees, feet, wrists, hands, and shoulder. See Tr. at 1052–1112. Dr. Wallach
also continued to diagnose carpal tunnel syndrome, memory loss, and hepatitis. See Tr. at 1055, 1072.
In addition, Plaintiff underwent diagnostic polysomnograms due to severe dyspnea. See Tr. at 1030,
1038, 1043, 1214. The studies showed severe sleep disordered breathing and sleep fragmentation. Id.
On August 14, 2009, Dr. Wallach issued yet another opinion regarding Plaintiff’s symptoms
and limitations. See Tr. at 807–08. The doctor stated that the maximum weight Plaintiff could lift was
five pounds, and the most she could stand or sit without interruption was one hour. See Tr. at 807. The
doctor also believed that Plaintiff’s ability to reach, handle, finger, push, and pull were affected by her
arthritis. See Tr. at 808.
Plaintiff’s knee pain persisted into 2010. Dr. Wallach noted knee crepitus and limping at an
appointment in January 2010. See Tr. at 1026. By June 2010, Plaintiff reported that he knee pain was
constant and continued to worsen. See Tr. at 1011. X-rays performed several months later showed
severe degenerative arthrosis in both knees. See Tr. at 984. X-rays of Plaintiff’s feet and lumbar spine
also showed degenerative changes. See Tr. at 985, 1002. Notes from 2011 show that Dr. Wallach
continued to diagnose degenerative joint disease in Plaintiff’s knees. See Tr. at 955–58, 965–66.
The ALJ Properly Considered Dr. Wallach’s Opinions.
The ALJ determined, based upon the evidence in the record, that Plaintiff was able to perform
her past work, and was not disabled. Considering Plaintiff’s residual functional capacity, the ALJ found
that Plaintiff could perform her past relevant work based on vocational expert testimony. See Tr. at 22
[Findings 5]). Thus, the ALJ concluded that Plaintiff was not disabled and not entitled to DIB. See Tr.
at 22 [Finding 6]). Plaintiff contends that the ALJ’s decision constitutes reversible error, because the
reasons given by the ALJ for rejecting the opinions of Dr Wallach were not supported by substantial
evidence, and his reliance on the non-examining medical expert was error. See Pl.’s Br. At 1, 9-13.
The RFC assessment is an administrative finding of fact, and the ALJ is responsible for making
this assessment. See 20 C.F.R. § 416.946(c); Social Security Ruling (SSR) 96-8p, 1996 WL 374184;
SSR 96-5p, 1996 WL 374183, at *5 (a medical source’s statement about what an individual can still
do must not be equated with the administrative finding known as the residual functional capacity
assessment). The ALJ specifically stated that when he assessed Plaintiff’s residual functional capacity,
he “considered opinion evidence in accordance with the requirements of 20 CFR 416.927 and SSRs
96-2p, 96-5p, 96-6p and 06-3p,” which explain how the agency evaluates opinion evidence from
treating, examining, and nonexamining sources. See Tr. at18; see also 20 C.F.R. § 416.927; SSRs 962p, 1996 WL 374188; 96-5p; 96-6p, 1996 WL 374180; and 06-3p, 2006 WL 2329939.
The ALJ’s statement illustrates that, contrary to Plaintiff’s assertion, he properly considered the
opinion evidence when he determined that Plaintiff had the residual functional capacity for less than
a full range of sedentary work, including sitting six hours in an eight-hour workday at two-hour
intervals; standing two hours in an eight-hour workday at thirty-minute intervals; walking two hours
in an eight-hour workday at thirty-minute intervals; and lifting up to ten pounds occasionally, but less
than ten pounds frequently. See Tr. at 18 [Finding 4]). See Pl.’s Br. at 1, 9-13. The ALJ limited
Plaintiff to occasional stooping and bending, but no squatting, kneeling, crouching, climbing, or
crawling. See Tr. at 18.
In addition, the ALJ found that Plaintiff could perform frequent, but not constant, handling and
fingering. The ALJ’s residual functional capacity determination shows that the he properly considered
and relied upon the opinions of Dr. Wallach, Plaintiff’s treating physician. See Tr. at 18, 329-332, 484488, 710-714, 806-808. See Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994); Scott v. Heckler,
770 F.2d 482, 485 (5th Cir. 1985) (an ALJ is entitled to determine the credibility of medical experts
and weigh their opinions accordingly). Dr. Wallach’s opinions generally support the ALJ’s
determination that Plaintiff was limited to less than a full range of sedentary work. See Tr. at 16-18,
329-332, 484-488, 710-714, 806-808. For example, the ALJ noted that in August 2009, Dr. Wallach
opined that Plaintiff could lift five pounds. See Tr. at 16, 807. The ALJ limited Plaintiff to frequently
lifting less than ten pounds. See Tr. at 18. Consistent with Dr. Wallach’s opinion, the ALJ found that
Plaintiff could not squat, kneel, crouch, climb, or crawl. See Tr. at 18, 331, 487, 714, 808.
By including handling and fingering limitations in the RFC assessment, the ALJ sufficiently
incorporated Dr. Wallach’s opinion that Plaintiff’s arthritis limited her ability to use her hands.1 See
Tr. 331, 487, 714, 808.
The ALJ noted that in August 2009, Dr. Wallach opined that Plaintiff could stand/walk two
hours in an eight-hour day. See Tr. at 16, 807. In addition, Dr. Wallach consistently indicated in
October 2007, September 2008, and August 2009 that Plaintiff needed to change positions throughout
the workday. See Tr. at 330, 486, 712-713, 807. Therefore, the ALJ properly included the following
limitations in his residual functional capacity assessment: sit six hours in an eight hour workday at twohour intervals; stand two hours in an eight-hour workday at thirty-minute intervals; and walk two hours
in an eight-hour workday at thirty-minute intervals. See Tr. at 18. By employing many of the limitations
set forth by Dr. Wallach, it is obvious that the ALJ did not entirely reject Dr. Wallach’s opinions. See
Pl.’s Br. at 1, 9-13.
A treating physician’s opinion may be given little or no weight when good cause is shown.
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000); Greenspan, 38 F.3d at 237.Contrary to Plaintiff’s
assertion, the ALJ provided good reasons for not giving controlling weight to Dr. Wallach’s October
2007, September 2008, and August 2009 opinions about Plaintiff’s functional capacity. See Tr. at 1618, 329-332, 484-488, 710-714, 806-808). See Pl.’s Br. at 1, 9-13.
Good cause for declining to follow a treating physician’s opinion includes disregarding
statements that are brief and conclusory. Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995). Dr.
Wallach provided his opinions primarily by checkmarking his answers on the RFC assessment forms.
See Tr. at 329-332, 484-488, 710-714, 806-808. Other than identifying Plaintiff’s diagnoses and
subjective complaints, Dr. Wallach failed to include any support on the assessment forms for his
Plaintiff incorrectly states that the ALJ found she could “lift and carry ten pounds
frequently.” See Pl.’s Br. at 11. Instead, the ALJ limited Plaintiff to lifting “less than” ten pounds
frequently. See Tr. at 18.
opinions. See Tr. at 16, 329-332, 484-488, 710-714, 806-808. See 20 C.F.R. § 416.927(c)(3) (“The
better an explanation a source provides for an opinion, the more weight we will give that opinion”).
Thus, Dr. Wallach’s October 2007, September 2008, and August 2009 opinions are examples of “brief
and conclusory” statements that the Fifth Circuit has indicated that an ALJ has good cause to not accord
controlling weight. “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 . . . otherwise unsupported by the
evidence.” Newton, 209 F.3d at 455-456; 20 C.F.R. § 416.927(c)(3) (supportability is a factor to
consider when weighing a treating source’s opinion). The record contains a limited number of actual
examination/treatment notes from Dr. Wallach around the time he provided his first assessment of
Plaintiff’s functional capacity in October 2007. See Tr. at 329-332, 359-360,373-376, 484-488.
According to the record, Plaintiff saw Dr. Wallach only a couple of times, in July and
September 2007, before Dr. Wallach provided his October 2007 opinion about Plaintiff’s RFC. See
Tr. at 372-376, 533-537, 711. Thus, Dr. Wallach’s lack of a lengthy treatment history with Plaintiff
prior to October 2007 decreases the value of the opinion that Dr. Wallach provided that month.
In addition, Dr. Wallach’s opinions were inconsistent with the total body of evidence in the
record. See 20 C.F.R. § 416.927(c)(4) (consistency is a factor for the ALJ to consider when he weighs
a treating source’s opinion). For example, the ALJ pointed out the inconsistencies between Dr.
Wallach’s October 2007 and August 2009 opinions about Plaintiff’s RFC. See Tr. at 16-18, 48, 329332, 484-488, 710-714, 806-808. In October 2007, Dr. Wallach limited Plaintiff to half an hour of
sitting, standing, or walking. In August 2009, Dr. Wallach found that Plaintiff could sit, stand, or walk
up to two hours. See Tr. at 16, 330, 486, 807. Thus, the ALJ had good cause to accord limited
evidentiary weight to Dr. Wallach’s inconsistent opinions. See Tr. at 16-18.
When William E. Shreiber, M.D., evaluated Plaintiff’s torn anterior cruciate ligament (ACL)
in her right knee in March 2006, he opined that it was unlikely that Plaintiff would require ACL
reconstruction. See Tr. at 16, 125, 254, 320, 471. Similarly, in August 2006, David J. Carney, M.D.,
an orthopaedic surgeon, determined that Plaintiff was not a surgical candidate despite an MRI
confirming a torn ACL. See Tr. at 16, 126, 205, 255, 267-268; see also Hames v. Heckler, 707 F.2d
162, 165 (5th Cir. 1983) (a diagnosis alone is not enough to establish a disabling impairment). Instead,
Dr. Carney opined that Plaintiff needed only strengthening exercises. See Tr. at 255, 315.
In addition, Dr. Carney reported that Plaintiff could work as a telemarketer. See Tr. at 259-260.
Thus, the ALJ properly determined not to give controlling weight to Dr. Wallach’s opinions about
Plaintiff’s significantly limited functional capacity because Dr. Wallach’s opinions were inconsistent
with the opinions of Drs. Carney and Shreiber. See Tr. at 16, 125-126, 205, 254-255, 259-260, 320,
329-332, 471, 484-488, 710-714, 806-808.
On April 17, 2007, Frank P. Reuter, M.D., performed a consultative examination on Plaintiff,
and Dr. Reuter’s resulting report is inconsistent with Dr. Wallach’s opinions about Plaintiff’s
significantly limited functional capacity, particularly related to her ability to use her hands. See Tr. at
18, 297-301, 329-332, 484-488, 710-714, 806-808. Although Plaintiff alleged numbness in both hands
due to carpal tunnel syndrome, Dr. Reuter’s examination showed that Plaintiff had good grip strength.
See Tr. 18, 297-298. Dr. Reuter noted that Plaintiff could pick up a paper clip with either hand. See Tr.
at 18, 298. Dr. Reuter related that Plaintiff’s fine motor movements were good, and he observed no
motor weakness or muscular wasting. See Tr. 18, 45, 298. Thus, the ALJ properly determined that
Plaintiff could perform frequent, but not constant, handling and fingering. See Tr. 18, 297-298.
Dr. Reuter also observed that Plaintiff had good strength and reflexes in her lower extremities
See Tr. 298. For example, the straight-leg-raising test was normal. Despite diagnosing arthritis in
Plaintiff’s knees, Dr. Reuter reported that his examination showed good range of motion in both knees.
See Tr. at 298. In addition, Dr. Reuter observed that Plaintiff walked without difficulty, she could squat,
and she could stand on either foot. See Tr. at 298. Considering the inexplicable inconsistencies between
Dr. Wallach’s opinions and Dr. Reuter’s examination findings, the ALJ properly determined not to give
controlling weight to Dr. Wallach’s opinions. See Tr. at 12, 16, 18, 297-301, 329-332, 484-488, 710714, 806-808.
The ALJ considered that Elias Fanous, Jr., M.D., began treating Plaintiff for autoimmune
hepatitis and hepatitis C with cirrhosis in 2009. This treatment was generally successful in controlling
Plaintiff’s allegedly disabling symptoms. See Tr. at 16-17, 20, 45, 809-825, 1128-1141. For example,
on March 31, 2009, Dr. Fanous noted that Plaintiff’s autoimmune hepatitis was “controlled on
prednisone and mercaptopurine.” See Tr. at 822, 1139; see also Johnson v. Bowen, 864 F.2d 340, 348
(5th Cir. 1988) (a condition that medication or therapy can control or remedy cannot serve as the basis
for a finding of disability). In May 2009, Dr. Fanous related that Plaintiff reported “no reflux and no
belly pain.” See Tr. at 821, 1138. The ALJ considered that in July 2009, Dr. Fanous stated that Plaintiff
had “done very well except some mild nausea, fatigue, and lethargy”. See Tr. at 16, 819, 1137. She had
no significant gastrointestinal complaints.
The ALJ pointed out that Dr. Fanous reported that Plaintiff continued to do well through
February 2010, with only some fatigue and lethargy. See Tr. at 16, 816-818, 1134-1136. On September
7, 2010, Dr. Fanous noted that Plaintiff had done fairly well with no significant change. See Tr. at 813,
1131. Dr. Fanous pointed out that Plaintiff was not taking prednisone, despite his repeated
recommendations. Dr. Fanous reported that Plaintiff was still noncompliant in March 2011. See Tr. at
810, 1129. Dr. Fanous did not indicate that Plaintiff’s hepatitis was disabling, or that Plaintiff was more
functionally limited than the ALJ found. See Tr. at 18, 809-825, 1128-1141. Therefore, because Dr.
Fanous’ evidence is inconsistent with Dr. Wallach’s opinions, the ALJ properly determined not to give
controlling weight to Dr. Wallach’s opinions about Plaintiff’s significantly limited functional capacity.
See Tr. at 16-17, 20, 329-332, 484-488, 710-714, 806-825, 1128-1141.
This is not a case, like Newton, where the ALJ summarily rejected the opinion of Plaintiff’s
treating physician based only on the opinion of a non-specialty medical expert who had not examined
the claimant. See Newton, 209 F.3d at 456. Instead, the ALJ properly considered the competing medical
evidence from the treating and examining physicians outlined above. See Newton, 209 F.3d at 458. The
ALJ’s residual functional capacity finding illustrates the ALJ’s proper consideration of the entire
record, including Dr. Wallach’s opinions. Therefore, the facts here are distinguishable from the facts
in Newton, where the ALJ relied solely on the opinion of a non-specialty medical expert who had never
examined the claimant. The testifying medical expert considered the record, heard Plaintiff’s testimony
at the August 2011 hearing, and he has full knowledge of the Commissioner’s programs. See Tr. at 1618, 44-51). See 20 C.F.R. §§ 416.927(c)(6), 416.927(e)(2)(iii) (when an ALJ considers a nonexamining
medical expert’s opinion, the ALJ considers the medical expert’s understanding of the agency’s
disability programs and their evidentiary requirements, and the extent to which the medical expert is
familiar with the information in a claimant’s case record).
In addition, the ALJ noted that the record, particularly Dr. Reuter’s consultative examination,
supported the testifying expert’s opinion. See Tr. at 18, 297-301; see also 20 C.F.R. §§ 416.927(c)(3),
416.927(e)(2)(iii) (supportability is a factor to consider when weighing a testifying medical expert’s
opinion). The Fifth Circuit has long maintained that the ALJ has the primary responsibility for weighing
medical opinions. See Greenspan, 38 F.3d at 237; see also Scott, 770 F.2d at 485. Therefore, contrary
to Plaintiff’s assertion, the ALJ properly gave significant weight to the medical expert’s testimony that
his opinion was consistent with Dr. Wallach’s most recent August 2009 opinion about Plaintiff’s
residual functional capacity. See Tr. at 18, 46-48, 806-808; see also Pl.’s Br. at 9-13.
According to Plaintiff, Dr. Wallach’s September 2008 opinion that Plaintiff would miss three
days of work per month is equivalent to opining that she was unable to work, because the vocational
expert testified that employers would not tolerate that amount of absences. See Tr. at 54-55, 714; see
Pl.’s Br. 12. “Among the opinions by treating doctors that have no special significance are
determinations that an applicant is ‘disabled’ or ‘unable to work.’” See Frank v. Barnhart, 326 F.3d
618, 620 (5th Cir. 2003); 20 C.F.R. § 404.1527(e)(1). “These determinations are legal conclusions that
the regulations describe as ‘reserved to the Commissioner.’” Id. Dr. Wallach’s opinion that Plaintiff
would miss three days of work per month does not deserve special weight or significance. See Pl.’s Br.
The Fifth Circuit has noted that it is the task of the ALJ to resolve conflicts in the evidence.
Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987). To the extent that Plaintiff is asking the Court to
reweigh the evidence in her favor, the Court will refrain from doing so. See Brown v. Apfel, 192 F.3d
492, 496 (5th Cir. 1999)(In applying the substantial evidence standard, the Court must carefully
examine the entire record but must refrain from reweighing the evidence or substituting its judgment
for that of the Commissioner). “The Commissioner’s decision is granted great deference and will not
be disturbed unless the reviewing court cannot find substantial evidence in the record to support the
Commissioner’s decision or finds that the Commissioner made an error of law.” Leggett, 67 F.3d at
564. Substantial evidence and relevant legal precedent support the ALJ’s decision. Therefore, the
opinion of the ALJ should be affirmed.
Substantial evidence supports the ALJ’s ultimate conclusion that Plaintiff was not disabled.
Therefore, the Commissioner’s finding of “not disabled” should be affirmed. See Morris, 864 F.2d at
335; Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“[The Court] will not reverse the decision of
an ALJ where the claimant makes no showing that he was prejudiced in any way by the deficiencies
It is accordingly
ORDERED that the decision of the Commissioner is hereby AFFIRMED and this social
security action is DISMISSED WITH PREJUDICE.
So ORDERED and SIGNED this 12th day of August, 2014.
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