Borden v. Commissioner, SSA

Filing 17

MEMORANDUM AND OPINION, and ORDER. Ordered that the final decision of the Commissioner is AFFIRMED pursuant to 42 U.S.C. § 405(g), and Plaintiffs complaint is DISMISSED with prejudice. Signed by Magistrate Judge John D. Love on 7/10/2017. (gsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
GINGER BORDEN,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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CIVIL ACTION No. 6:15-cv-1170
JDL

MEMORANDUM OPINION AND ORDER
On December 28, 2015, Plaintiff initiated this civil action pursuant to the Social Security
Act, Section 205(g) for judicial review of the Commissioner’s denial of Plaintiff’s application for
Social Security benefits. For the reasons stated below, the Court AFFIRMS the ALJ’s decision.
BACKGROUND
On May 9, 2012, Plaintiff filed an application for supplemental security income, alleging
impairments that became disabling on December 17, 20091.

(Transcript (“Tr.”) at 95-96.)

Plaintiff’s claims were initially denied on August 10, 2012. (Id.) Thereafter, Plaintiff requested
a hearing and the ALJ held a hearing on June 2, 2014. (Id. at 40.) The ALJ denied the claims on
September 24, 2014. (Id. at 17–35.) On October 26, 2015, the Appeals Council denied a request
for review. (Id. at 1.) Therefore, the ALJ’s decision became the Commissioner’s decision, Sims
v. Apfel, 530 U.S. 103, 106–07 (2000), and Plaintiff initiated this civil action for judicial review.
STANDARD
Title II of the Act provides for federal disability insurance benefits while Title XVI
provides for supplemental security income for the disabled. Judicial review of the denial of

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The relevant period for Plaintiff’s SSI claim begins May 9, 2012, as SSI benefits are not payable prior to the date
of the application. (Tr. at 20); see 20 C.F.R § 416.335.

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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) (quoting 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) (citing 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
(quoting 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) (citing Selders v. Sullivan,
914 F.2d 614, 617 (5th Cir. 1990)); Anthony, 954 F.2d 289, 295 (5th Cir. 1992) (citing 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); SSR 96-5p, 61 Fed. Reg. 34471 (July 2, 1996).
“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 F. App’x 382, 383 (5th Cir. 2003) (citing 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;

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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). However,
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); 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.”
423(d)(1)(A).

42 U.S.C. § 416(i)(1)(A); 42 U.S.C. §

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 (citing
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.

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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. §§ 416.920(b)-(f) and 404.1520(b)(1)(f). 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. 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, 63233 (5th Cir. 1989) (per curiam).
ADMINISTRATIVE LAW JUDGE’S FINDINGS
The ALJ made the following findings in his September 24, 2014 decision:
1. The claimant has not engaged in substantial gainful activity since May 9, 2012, the
application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: bipolar disorder and borderline
personality disorder (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
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exertional levels but with the following nonexertional limitations: the claimant can
understand, remember, and carry out only simple and detailed tasks and instructions,
and she cannot perform jobs that require high-stress activity.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on September 10, 1964 and was 47 years old, which is defined
as a younger individual age 18-49, on the date the application was filed (20 CFR
416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR
416.964).
8. Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 416.968).
9. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act,
since May 9, 2012, the date the application was filed (20 CFR 416.920(g)).
(Tr. at 22–35.)
The ALJ determined that Plaintiff is not disabled under sections 216(i) and 223(d) of the
Social Security Act. (Id. at 35.)
ANALYSIS
Plaintiff alleges that the ALJ erred by: (1) improperly analyzing Plaintiff’s severe
impairments and whether Plaintiff met a listed impairment at step 3; and (2) failing to properly
weigh all of the medical opinions in the record. (Doc. No. 15, at 5, 9.)
1. Severe Impairment Determination
With respect to Plaintiff’s first argument, Plaintiff contends that the ALJ committed error
by finding that Plaintiff had only mild limitations with respect to two of the part B criteria of
Listing 12.04. (Doc. No. 15, at 6.)

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If an ALJ determines that a claimant has a severe impairment at step two, the ALJ must
then determine at step 3 if the severe impairment meets or equals a listing in the appendix to the
regulations, 20 C.F.R. Part 404, Subpt. P, App. 1. See Muse v. Sullivan, 925 F.2d 785, 789 (5th
Cir. 1991). Section 12.04 of the appendix sets forth specific criteria with respect to mental
affective disorders. See 20 C.F.R. pt 404, subpt. P., app. 1. §12.04. A Plaintiff with a severe
mental affective disorder must show that she meets either the requirements of parts A and B of
section 12.04, or alternatively, the requirements of part A and C. Id. Turning specifically to the
part B criteria, Plaintiff must prove her mental impairments result in at least two of the
following: (1) marked restrictions in activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence,
or pace; or (4) repeated episodes of decompensation, each of extended duration. See 20 C.F.R. pt
404, subpt. P., app. 1. §12.04(B). In order to do so, Plaintiff must set forth medical findings that
support each of the criteria for the equivalent impairment determination. Selders v. Sullivan, 914
F. 2d 614, 619 (5th Cir. 1990). The ALJ is not required to make any particular finding if it is not
supported by the evidence. 20 C.F.R. § 404.1545(a)(3).
Plaintiff specifically challenges the ALJ’s finding that Plaintiff had only mild limitations
in the first and second Part B criteria: 1) activities of daily living and 2) social functioning. (See
Doc. No. 15, at 5.) Plaintiff contends that there were no medical opinions in the record to
support the ALJ’s findings of fact with regard to whether Plaintiff met or equaled a listed
impairment because the ALJ assigned “little weight” to the opinions of Dr. Williams, the only
doctor in the record who offered opinions specifically regarding the part B criteria.

(Id.)

Plaintiff further argues that the ALJ improperly relied on the testimony of Dr. Cole, an impartial
medical expert who testified at the administrative hearing, to assess the four part B criteria. (See

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Doc. No. 15, at 6–7.) Plaintiff states, “[b]ecause the only medical opinions within evidence
indicated the Plaintiff was moderately limited in activities of daily living and social functioning
(TR 104), the ALJ’s holding the Plaintiff was mildly limited in those two domains constituted a
medical conclusion or an interpretation of medical evidence.” (Id. at 8.) As such, Plaintiff
contends that the ALJ’s findings of fact with respect to the first and second part B criteria
constituted reversible error. (See id. at 9.)
The ALJ’s determination is supported both legally and by substantial evidence. As an
initial matter, Plaintiff’s argument that the ALJ’s holding constituted a medical conclusion or an
interpretation of medical evidence fails. Plaintiff assumes that the ALJ is limited to assessing the
medical opinion evidence of Dr. Williams in making a determination as to whether Plaintiff
meets the Part B criteria. (See Doc. No. 15, at 8–9.) However, acceptable medical sources for
providing evidence to establish an impairment include all of the various records of physicians or
closely related medical professionals. 20 C.F.R. §§ 404.1513(a)(1)–(5) and 416.913(a)(1)–(5).
Simply because none of the other medical sources in the record referred to the part B criteria by
name does not mean they were not relevant to the ALJ’s part B analysis. Further, although the
ALJ considers the opinions from medical sources on the issue of whether a claimant meets or
equals a listing, “the final responsibility for deciding” this issue belongs to the ALJ. 20 C.F.R. §
416.927(d)(2).
Indeed, the ALJ extensively discussed Plaintiff’s treatment records and the medical
opinion evidence. (See Tr. at 27–30.) For example, in finding Plaintiff had only mild restrictions
in activities of daily living, the ALJ noted that Plaintiff’s mental status exams showed Plaintiff
was “cleanly groomed and dressed, which was representative of her appearance at the hearing.”
(Tr. at 28). Additionally the ALJ noted that during Dr. Jereb’s psychological evaluation,

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“[Plaintiff] told Dr. Jereb she could complete some practical tasks in a timely and appropriate
manner; she bathed, groomed, and dressed herself; she states she could cook, had valid driver’s
license, read and wrote well; and could add and subtract using her fingers.” (See id. At 28, 453.)
Likewise, in determining that Plaintiff had only mild difficulties in social functioning, the ALJ
noted, for example, that “[claimaint’s] JSA Health mental status exams had the following
findings: cooperative, candid, and polite attitude; normal speech with some hyperactivity and
mildly dysarthric speech; normal affect; no suicidal/homicidal ideation; and intact impulse
control.” (Tr. at 29, 467.)
Additionally, the ALJ noted that Dr. Cole and Dr. Murphy both testified that Plaintiff
does not have a medically determinable impairment that meets or equals a the requirements of a
listing. (Tr. at 28, 63.) The ALJ assigned “significant weight” to Dr. Cole’s opinion because he
found “it to be largely consistent with the record and well supported by the objective findings.”
(Tr. at 32.) Plaintiff alleges that Dr. Cole’s testimony was contradictory because Dr. Cole
testified that Plaintiff’s medical status exam “didn’t show any indication of a severe level of
impairment” (Tr. at 63), yet testified that Plaintiff had various functional limitations (Tr. at 64–
66). (See Doc. No. 15 at 8.) The phrase “severe impairment” has a very particular meaning in
the context of the Social Security Act that is unique from a layman’s understanding of the term.
Based on Dr. Cole’s other testimony, it is clear that Dr. Cole was not disputing that in the social
security sense, Plaintiff has the severe impairments of bipolar disorder and borderline personality
disorder. (See Tr. at 61 (“Q. Then, give me your diagnosis of what impairments this Claimant
has within your field of specialty and their severity. A. The basis one is the bipolar disorder that
she referred to. It’s also in the record. The severity is the issue, and I can go into that if you’d
like.”)). The ALJ thus did not commit error by disregarding Dr. Cole’s statement that Plaintiff

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lacked severe impairments, as Dr. Cole simply meant that Plaintiff’s impairments that were not
so “severe” as to cause Plaintiff to have marked functional limitations. Plaintiff’s argument that
the ALJ committed error by ascribing significant weight to a contradictory witness is thus
meritless. See Worsham v. Shalala, 3 F.3d 440 (5th Cir. 1993) (“The ALJ is entitled to determine
the credibility of medical experts and to weigh their opinions accordingly.”)
Plaintiff also argues that the ALJ improperly relied on Dr. Cole’s testimony in his
analysis of the part B criteria because Dr. Cole did not explicitly testify regarding the part B
criteria. (Doc. No. 15 at 8.) Plaintiff’s contention that the ALJ must reject Dr. Cole’s opinion
because he did not specifically say he was addressing the Part B criteria is unpersuasive. Plaintiff
cites no case law for the assertion that Dr. Cole was required to refer to the part B criteria by
name for his testimony to be relevant to those criteria. While it is true that the ALJ did not
explicitly ask Dr. Cole to discuss the part B criteria, the ALJ did ask Dr. Cole to give him a
diagnosis of the Plaintiff’s impairments and provide his assessment of the medical evidence,
including Plaintiff’s functional limitations. (See Tr. at 61; 64–5.) As with the ALJ’s reliance on
the other medical evidence of record, the ALJ did not commit error by relying on Dr. Cole’s
opinion in his part B analysis.
The ALJ was also entitled to assign “little weight” to the opinion of Dr. Williams because
the ALJ found his assessment to be inconsistent with the overall record. (Tr. at 32.)

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explained above, substantial evidence supports the ALJ’s decision to rely on the other medical
source opinions in the record in making his step 3 determination. It is not the Court’s duty to
“reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court’s]
judgment for the [Commissioner]’s.” Bowling, 36 F.3d at 435 (quoting Harrell v. Bowen, 862
F.2d 471, 475 (5th Cir. 1988)). Further, Dr. Williams found that Plaintiff had only moderate

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impairments with respect to the first two Part B criteria. Such findings would still be insufficient
to establish that Plaintiff had an impairment equal to an appendix listing. Any alleged error in
the ALJ’s failure to assign more weight to Dr. Williams’ opinions was thus harmless. See Mays
v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988) (“This court will not vacate a judgment unless the
substantial rights of a party have been affected.”).
Accordingly, Plaintiff’s assertion that there was no medical opinion evidence in the
record to support the ALJ’s assessment of the 12.04(B) criteria is unpersuasive. The ALJ’s
decision that Plaintiff did not meet the criteria of 12.04(B) was supported by substantial evidence
and was not in error of law.
2. Treating Physician’s Opinion
Plaintiff argues that the ALJ failed to properly consider the opinions of Dr. Ronald J.
Jereb and failed to give Dr. Jereb’s opinion the proper weight of a treating physician. (Doc. No.
15, at 9.) Specifically, Plaintiff argues that the ALJ improperly weighed and rejected Dr. Jereb’s
opinions by failing to properly analyze the six factors in 20 C.F.R. § 416.927(c). (Id. at 14.)
Additionally, Plaintiff contends that the ALJ erred by not providing substantive reasons as to
why he rejected Dr. Jereb’s opinions. (Id. at 16, 12.) Defendant contends that the ALJ properly
considered Dr. Jereb’s opinions, and made clear to subsequent reviewers the reasons for the
weight he accorded to each of the medical opinions in the record. (See Doc. No. 16, at 9.)
Contrary to Plaintiff’s argument, Dr. Jereb was not Plaintiff’s treating physician. A
treating physician is defined in the Federal Regulations as one “who has, or has had an ongoing
treatment relationship with the patient.” 20 C.F.R. § 416.902. Generally, a treating physician is
someone that the patient can establish that he sees or has seen with a “frequency consistent with
accepted medical practice for the type of treatment/evaluation required for the medical condition

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at issue.” See Leggett v. Charter, 67 F.3d 558, 566 (5th Cir. 1995). Dr. Jereb was hired by
Plaintiff’s counsel to conduct a one-time consultative examination. (See Tr. at 452.) Dr. Jereb is
not due special deference as a treating physician based on this single examination of Plaintiff.
See Robinson v. Astrue, 271 F. App’x 394, 396 (5th Cir. 2008); see also Christman v. Comm’r of
Soc. Sec. Admin., 2014 WL 10181063, at *3 (E.D. Tex. 2014) (“Examining doctors are not
entitled to the weight of treating doctors.”) (citing Hernandez v. Astrue, 278 F. App’x 333, 338
(5th Cir. 2008)).
Plaintiff effectively asks this Court to extend the holding in Newton v. Apfel to cover the
facts of this case. (Doc. No. 15, at 11.) In Newton, the Fifth Circuit held 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 specialist only if the ALJ performs a
detailed analysis of the treating physicians views under the criteria set forth in 20 C.F.R.
404.1527(d)(2).” Newton, 209 F.3d at 453 (5th Cir. 2000). Specifically, Plaintiff contends that
because Dr. Jereb provided the only medical opinions within the administrative record based
upon a personal examination of the Plaintiff, that this Court should require the ALJ to conduct a
detailed analysis of Dr. Jereb’s views. (See id. at 11–12.) However, Plaintiff points to no case
law to support its contention that the holding in Newton should extend to a one-time consultative
examiner such as Dr. Jereb. See Gonzales-Sargent v. Barnhart, 2007 WL 175207, at *8 (W.D.
Tex. 2007) (rejecting plaintiff’s claim that a prior Fifth Circuit case required the six-part analysis
for a treating doctor to also apply to a non-treating doctor).
With respect to the general criteria to evaluate medical evidence under 20 C.F.R. §
416.927(c), the ALJ provided a sufficient explanation to support his determination that Dr. Jereb
was not credible with respect to his finding that Plaintiff had “marked and extreme limitations in

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nearly every area of work functioning.” The ALJ extensively discussed and considered the
opinions of Dr. Jereb. (Tr. at 32.) Indeed, the ALJ did not wholesale reject Dr. Jereb’s opinions.
As noted previously, the ALJ factored in portions of Dr. Jereb’s assessment of Plaintiff in his
Part B determination. With respect to Dr. Jereb’s opinions that Plaintiff has “marked and
extreme limitations in nearly every area of work functioning”, the ALJ specifically explained
that Dr. Jereb’s opinions were unsupported by Plaintiff’s treatment records, unsupported by Dr.
Jereb’s own mental examination, and unsupported by specific objective medical findings. (Tr. at
26, 33.) For example, the ALJ explained that Plaintiff’s treatment records showed that Plaintiff’s
symptoms were manageable with medication and allowed Plaintiff to perform low-stress work
requiring only simple and detailed tasks. (Tr. at 30–32.) While Plaintiff argues that Dr. Jereb’s
mental examination included other findings that did indicate functional limitations consistent
with Dr. Jereb’s limitation determinations, Plaintiff does not address the other medical source
evidence in the record supporting the ALJ’s decision, and which the ALJ specifically discussed.
Indeed, the ALJ observed that “[t]he majority of [Plaintiff’s] mental status examinations have been
essentially normal, including normal social functioning, intact concentration, intact memory, and full
orientation” (Tr. 32). “Where the record contains conflicting evidence, the Secretary, not the

courts, must make credibility determinations and resolve the conflicts in the evidence.” Worsham
v. Shalala, 3 F.3d 440 (5th Cir. 1993). Additionally, Dr. Cole testified that Dr. Jereb’s opinion
that Plaintiff had marked and extreme limitations was unsupported by the record. (See Tr. at 64.)
Although Plaintiff again challenges the ALJ’s reliance on Dr. Cole’s testimony, as discussed
previously, the ALJ was entitled to rely on Dr. Cole in his analysis. As such, Plaintiff’s claim
that the ALJ erred by not providing substantive reasons as to why he rejected Dr. Jereb’s
opinions is without merit.
CONCLUSION
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In light of the foregoing, the final decision of the Commissioner is AFFIRMED pursuant
to 42 U.S.C. § 405(g), and Plaintiff’s complaint is DISMISSED with prejudice.

So ORDERED and SIGNED this 10th day of July, 2017.

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