Hale v. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner and dismissing with prejudice Plaintiff's complaint. Signed by Magistrate Judge John D. Love on 2/12/18. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
KEVIN DEAN HALE,
Plaintiff,
v.
ACTING COMMISSIONER CAROLYN
W. COLVIN,
Defendant.

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CIVIL ACTION NO. 6:16-CV-01215-JDL

MEMORANDUM OPINION AND ORDER
On October 7, 2016, 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. Pursuant to 42 U.S.C. § 405(g), the case is before this Court for
findings of fact and conclusions of law. For the reasons stated below, the Court AFFIRMS the
ALJ’s decision.
BACKGROUND
On January 13, 2011, Plaintiff filed a Title II Application for a period of disability and
disability insurance benefits and a Title XVI application for supplemental security income for a
period beginning on January 13, 2011. (Transcript (“Tr.”) at 103.) The claims were initially
denied on May 4, 2011.

Id. at 96–97. The claims were denied upon reconsideration on

September 23, 2011. Id. at 98–99. Plaintiff requested a hearing with the ALJ and had a video
hearing on August 14, 2012. Id. at 78–95 (hearing testimony). The ALJ denied the claims on
August 23, 2012. Id. at 113. On November 25, 2013, the Appeals Council granted a request for
review, directing the ALJ to give further consideration to the treating physician, J.W. Dailey,

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M.D. and analyze the weight given to the evidence of Dr. Dailey’s assessment against the
conflicting residual functional capacity. Id. at 119. The Appeals Council indicated that the ALJ
would: (1) endeavor to obtain updated and additional evidence of Plaintiff’s impairments; (2)
further evaluate Plaintiff’s subjective complaints and provide rationale in accordance with the
disability regulations; (3) give further consideration to the claimant’s maximum residual capacity
during the entire period at issue and provide rationale with specific references to evidence of
record in support of assessed limitations; and (4) if necessary, obtain evidence from a vocational
expert to clarify the effect of the assessed limitations on Plaintiff’s occupational base. Id. at
119–20. A second video hearing was held on October 29, 2014. Id. at 54–77 (second hearing
testimony). The ALJ denied the claims on March 4, 2015. Id. at 42. On August 11, 2016, the
Appeals Council denied a request for review. Id. at 1–3. 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
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

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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 at 360 (citing Selders v. Sullivan, 914 F.2d 614, 617
(5th Cir. 1990)); Anthony, 954 F.2d at 295 (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;
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 at 393. The Court may remand for
additional evidence if substantial evidence is lacking or “upon a showing that there is new

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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.
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

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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 March 4, 2015 decision:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2011.
2. The claimant has not engaged in substantial gainful activity since June 27, 2006,
the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following “severe” impairments: rheumatoid arthritis,
osteoarthritis of the knees, hypertension, degenerative disc disease, spondylosis,
dysthymic disorder, and depression (20 CFR 404.1520(c) and 416.920(c)). The
claimant’s chronic pain / chronic pain syndrome does not fulfill the definition of a
medically determinable impairment. The claimant’s drug and alcohol abuse is in
remission and is therefore not “material.”
4. I agree with the DDS consultants that 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
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I agree with the DDS consultants
that the impairments reasonably result in a residual functional capacity to lift
and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk
for 6 hours in an 8-hour workday, and sit for 6 hours in an 8-hour workday. The
claimant can make decisions, accept instructions, attend and concentrate for twohour periods, interact adequately with others, and respond appropriately to
changes in a routine work setting, he [can] maximally understand, remember, and
carry out simple instructions. The consultant assigned no social restrictions.
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6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was born on November 14, 1964 and was 41 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date.
The claimant subsequently changed age category to closely approaching advanced
age (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20
CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and assigned residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform by operation of the Grid Rules.
11. The claimant has not been under a disability, as defined in the Social Security
Act, from June 27, 2006 through the date of this decision (20 CFR 404.1520(g)
and 416.920(g)).
(Tr. at 16–42.)
The ALJ determined that Plaintiff is not disabled under sections 216(i), 223(d), and
1614(a)(3)(A) of the Social Security Act. Id. at 39.
ANALYSIS
Plaintiff objects to the ALJ’s finding on the basis that his RFC finding is not supported by
substantial evidence. (Doc. No. 18 at 4.) Plaintiff argues that the ALJ failed to give proper
weight to Plaintiff’s treating doctor, James Dailey, M.D. Id. at 5. Plaintiff also maintains that
the ALJ did not consider all the evidence in Plaintiff’s medical record or Plaintiff’s subjective
complaints, and failed to accommodate for Plaintiff’s impairments and resulting symptoms. Id.
The Commissioner maintains that the ALJ analyzed the entire medical record of Plaintiff,

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Plaintiff’s statements about his limitations, and the opinions of non-treating doctors, and that
substantial evidence supports the RFC assessment. (Doc. No. 19 at 6–24.)
After a medically determinable impairment is identified, the ALJ must then evaluate the
Plaintiff’s statements about his symptoms and consider the remaining evidence in the record to
determine the intensity, persistence, and functionally limiting effects of the symptoms and how
they affect the Plaintiff’s ability to do basic work. “This requires the ALJ to make a finding
about the credibility of the plaintiff’s statements about the symptoms and their functional
effects.” Salgado v. Astrue, 271 F. App’x 456, 458–59 (5th Cir. 2008) (citing SSR 96-7p).1 “In
evaluating the intensity and persistence of [Plaintiff’s] symptoms, [the ALJ considers] all of the
available evidence, including [Plaintiff’s] history, the signs and laboratory findings, and
statements from [Plaintiff], [Plaintiff’s] treating or nontreating source, or other persons about
how [Plaintiff’s] symptoms affect [him].” 20 C.F.R. § 404.1529(c). Although an ALJ must give
specific reasons for a credibility determination, “neither the regulation nor interpretive case law
requires that an ALJ name, enumerate, and discuss each factor in outline or other rigid,
mechanical form. It suffices when the administrative decision is sufficiently specific to make
clear that the regulatory factors were considered.” Prince v. Barnhart, 418 F.Supp.2d 863, 871
(E.D. Tex. 2005).
If an ALJ does not give a treating doctor substantial weight, he must consider specific
factors in deciding the weight to give to the medical opinion, including the examining
relationship, treatment relationship, supportability, consistency with the record, and
specialization. Bryant v. Astrue, 272 Fed. Appx. 352, 355 (5th Cir. 2008). “Some opinions by
physicians are not medical opinions, and as such have no ‘special significance’ in the ALJ’s
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While SSR 96-7 was rescinded on March 16, 2016, the ALJ’s decision was made prior to that change and the
Court therefore applies the regulations as they stood at that the time of the decision.

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determination. Among the opinions by treating doctors that have no special legal significance
are determinations that an applicant is ‘disabled’ or ‘unable to work[.]’” Frank v. Barnhart, 326
F.3d 618, 620 (5th Cir. 2003) (internal citation omitted).

This is because it is a legal

determination reserved for the Commissioner. Id.
Dr. Dailey was one of Plaintiff’s treating doctors from March 2010 through July 2014.
(Tr. at 22–24.) He saw Plaintiff on multiple occasions, gave him various diagnoses, and was
responsible for Plaintiff’s prescription refills. In addition to Plaintiff’s treatment, Dr. Dailey
submitted three function assessments during the relevant period. Id. at 33. The support for Dr.
Dailey’s assessment opinions came from Plaintiff’s subjective complaints of chronic plain,
stiffness, and use of cane. Id. Dr. Dailey saw loss of tone, bulk, and strength in the extremities
with impaired range of motion. Id. Dr. Dailey stated that Plaintiff had slight restrictions in
working with detailed instruction due to his pain and depression, and also noted at various times
different lifting restrictions. Id. Plaintiff had moderate restriction with working with pressures
and responding to changes, and moderate difficulty interacting with others. Id.
The ALJ looked at the assessments done by Dr. Dailey and noted:
“[p]hysicians usually do not write medical reports with an eye toward legal
standards – like whether a particular abnormality is reasonably likely to produce
the quantum of pain or other symptoms alleged. Even if the claimant’s doctor
knows the answer, there is no accompanying explanation as to why the assigned
degree of restriction was considered to be within the doctor’s medical
expectations, or not.”
Id. at 34–35. Because the assessments appeared to have legal conclusions, the ALJ “partially
discounted” them. Id. at 35. The ALJ found that Dr. Dailey’s opinion did not clarify to the
layman “whether [the opinion] is simply an admixture of subjective complaints and objective
evidence under the general rubric of ‘pain’.” Id. The ALJ therefore found that Dr. Dailey’s
opinions were “brief and conclusory” and assigned them “split-weight.” Id. He stated that
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“[e]ven if the assigned limitations are completely accurate, the doctor was not asked to
distinguish between the genuineness of the complaints [] and the limitations the impairments
were reasonably expected to produce[.]” Id. The ALJ determined he could not give the opinion
substantial weight because he was “simply not permitted to give full weight to medical opinions
that are missing the supporting rationale, no matter how genuine the symptoms and limitations
may otherwise appear to be.” Id. at 35–36. In the ALJ’s analysis, he details out the reasons Dr.
Dailey’s assessments are not given strong weight because of their opinions and not tied to
specific medical evidence. (Tr. at 33–34.) The assessments were not medical opinions, but
medical source statements. Id. at 613–14, 828–34. Therefore, the ALJ was allowed to give these
statements less weight and the Court finds no reversible error.
As for the weight given to Dr. Dailey’s medical records and the other medical evidence,
the ALJ analyzed Plaintiff’s medical history in-depth. Id. 19–25. Based on the medical records,
the ALJ determined that Plaintiff’s medical exams only show “mild deficits” with tenderness,
limited range of motion in various joints, and antalgic behavior. Id at 38. The ALJ stated that
the limits in Plaintiff’s fingers or wrists “appear[ed] to be the result of chronic pain, not a
medically determinable impairment.” Id. The ALJ also noted that “[h]is treatment has been
conservative in nature and primarily involved medications and injections. The record suggests
that these treatments were effective.” Id. at 32. The ALJ maintained that Plaintiff reported with
60% effectiveness after injections, and “treatment notes show that he presented for almost two
years from April 2012 to February 2014 primarily for medication refills, which suggests that this
medication was effective.” Id. The ALJ noted that any treatment Plaintiff had from 2012 to
2014 was not for the conditions that Plaintiff alleged were disabling. Id.

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Although Plaintiff argues that the ALJ did not consider Dr. Dailey’s report, the record as
a whole shows that he considered the medical evidence and the opinion evidence and articulated
clear reasons for his findings. The Court finds no reversible error.
Plaintiff next argues that the ALJ did not consider Plaintiff’s subjective complaints but
only affirmed his previous findings by agreeing with the DDS. (Doc. No. 18 at 5.) The ALJ
noted that Plaintiff listed issues showering, cooking, and cleaning due to dropping items,
difficulty with being on his feet, and falling frequently so he only showered once a week. (Tr. at
31.) Plaintiff also had difficulty with buttons, zippers, and shoe laces and difficulty raising his
arms, handling money, and writing. Id. However, the ALJ found that Plaintiff appeared to be
independent in self-care and in instrumental activities of daily living and reported few deficits in
that area. Id. at 32. Further, the report stated that Plaintiff indicated the symptoms tended to wax
and wane. Id. The ALJ looked at all of Plaintiff’s complaints and concluded that the Plaintiff
“clearly has a perception of disability from full-time, competitive employment. The [Plaintiff’s]
allegations are consistent with that perception, whether or not there is an objective reason for the
perception.” Id. at 33. However, the ALJ noted that, according to the acts and regulations,
Plaintiff’s limitations can “diminish the capacity for basic work activities only to the extent that
they may reasonably be accepted as consistent with the existence of a medical impairment which
could reasonably be expected to produce the pain or other symptoms alleged.” Id.
The ALJ looked at all Plaintiff’s medical records from three treating physicians, opinion
evidence from four doctors, and compared this to Plaintiff’s subjective complaints. Id. at 20–25,
33–40. The ALJ determined that Plaintiff’s medical evidence had a basis for some of Plaintiff’s
complaints, but the substantial evidence supported the consultants’ conclusions that the degree of
pain experienced were out of proportion and inconsistent with the medical findings and

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expectations, and Plaintiff was therefore not credible. Id. Because the ALJ looked at Plaintiff’s
subjective complaints against the entire medical records and opinion evidence to find Plaintiff’s
complaints were not credible, the Court sees no reversible error based on the record.
In sum, the ALJ gave specific reasons for finding Plaintiff’s statements not credible that
were supported by substantial evidence in the record. The ALJ enumerated those reasons and
fully considered the evidence in the record consistent with the consideration of the factors set
forth in the regulations. For these reasons, the Court finds no error in the ALJ’s determination.
CONCLUSION
It is accordingly ORDERED that the decision of the Commissioner is AFFIRMED and
Plaintiff’s complaint is hereby DISMISSED WITH PREJUDICE.

So ORDERED and SIGNED this 12th day of February, 2018.

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