Singleton v. Astrue

Filing 27

Memorandum Opinion and Order: The hearing decision is reversed in part and affirmed in part, and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 2/7/2013) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERT SINGLETON,
Plaintiff,
V.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 3:11-cv-2332-BN

MEMORANDUM OPINION AND ORDER
Plaintiff Robert Singleton seeks judicial review of a final adverse decision of the
Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons stated
herein, the hearing decision is reversed and remanded in part and affirmed in part.
Background
Plaintiff alleges that he is disabled due to discogenic and degenerative disorders
of the back. After his applications for disability and supplemental security income
(“SSI”) benefits were denied initially and on reconsideration, Plaintiff requested a
hearing before an administrative law judge (“ALJ”). That hearing was held on July 30,
2010. At the time of the hearing, Plaintiff was 54 years old. He is a high school
graduate and has past work experience as an automotive mechanic, diesel mechanic,
wrecker operator, tire repairer, and retail store manager. Plaintiff has not engaged in
substantial gainful activity since October 4, 2007.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability or SSI benefits. Although the medical evidence established that Plaintiff

suffered from discogenic and degenerative disorders of the back, the ALJ concluded
that those impairments’ severity did not meet or equal any impairment listed in the
social security regulations. The ALJ further determined that Plaintiff had the residual
functional capacity to perform limited light work – specifically, that Plaintiff has the
residual functional capacity to lift/carry ten pounds frequently, twenty pounds
occasionally, sit four hours in an eight hour workday, stand four hours in an eight hour
workday, occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl,
with no climbing of ladders, ropes, or scaffolds – but that Plaintiff could not return to
his past relevant employment. Relying on a vocational expert’s testimony, the ALJ
found that Plaintiff was capable of working as assembly worker, cashier II, and mail
clerk, which are jobs that exist in significant numbers in the national economy. Given
his age, education, and exertional capacity for light work, the ALJ determined that
Plaintiff was not disabled under the Medical-Vocational Guidelines.
Plaintiff sought review by the Appeals Council, which denied his request.
Plaintiff then filed this action in federal district court. In multiple grounds for
relief, Plaintiff contends that the Commissioner’s decision (the “Decision”) is based on
legal error and lacks the required support of substantial evidence. Specifically, Plaintiff
argues that the ALJ committed reversible error by: (1) failing to discuss and apply the
proper weight to the treating and examining physicians’ opinions; (2) improperly
evaluating his credibility; and (3) failing to use Plaintiff’s current age of 55 when
applying the Medical-Vocational Guidelines.

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The Court determines that the hearing decision must be reversed and that this
case will be remanded to the Commissioner of Social Security for further proceedings
consistent with this opinion.
Legal standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence and whether the proper
legal standards were used to evaluate the evidence. See 42 U.S.C. § 405(g); Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The
Commissioner, rather than the courts, must resolve conflicts in the evidence, including
weighing conflicting testimony and determining witnesses’ credibility, and the Court
does not try the issues de novo. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995);
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). This Court may not reweigh
the evidence or substitute its judgment for the Commissioner’s but must scrutinize the
entire record to ascertain whether substantial evidence supports the hearing decision.
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
A disabled worker is entitled to monthly social security benefits if certain
conditions are met. 42 U.S.C. § 423(a). The Act defines “disability” as the inability to
engage in substantial gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or last for a continued

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period of 12 months. Id. § 423(d)(1)(A); see also Cook v. Heckler, 750 F.2d 391, 393 (5th
Cir. 1985). The Commissioner has promulgated a five-step sequential evaluation
process that must be followed in making a disability determination:
1.

The hearing officer must ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is working
is not disabled regardless of the medical findings.

2.

The hearing officer must determine whether the claimed
impairment is “severe.” A “severe impairment” must significantly
limit the claimant’s physical or mental ability to do basic work
activities. This determination must be made solely on the basis of
the medical evidence.

3.

The hearing officer must decide if the impairment meets or equals
in severity certain impairments described in Appendix 1 of the
regulations. The hearing officer must make this determination
using only medical evidence.

4.

If the claimant has a “severe impairment” covered by the
regulations, the hearing officer must determine whether the
claimant can perform his or her past work despite any limitations.

5.

If the claimant does not have the residual functional capacity to
perform past work, the hearing officer must decide whether the
claimant can perform any other gainful and substantial work in
the economy. This determination is made on the basis of the
claimant's age, education, work experience, and residual functional
capacity.

See 20 C.F.R. § 404.1520(b)-(f); Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007)
(“In evaluating a disability claim, the Commissioner conducts a five-step sequential
analysis to determine whether (1) the claimant is presently working; (2) the claimant
has a severe impairment; (3) the impairment meets or equals an impairment listed in
appendix 1 of the social security regulations; (4) the impairment prevents the claimant
from doing past relevant work; and (5) the impairment prevents the claimant from
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doing any other substantial gainful activity.”). The claimant bears the initial burden
of establishing a disability through the first four steps of the analysis; on the fifth, the
burden shifts to the Commissioner to show that there is other substantial work in the
national economy that the claimant can perform. Audler, 501 F.3d at 448. A finding
that the claimant is disabled or not disabled at any point in the five-step review is
conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir.
1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. Id. However, the Court does not hold
the ALJ to procedural perfection and will reverse the ALJ’s decision as not supported
by substantial evidence where Plaintiff shows that the ALJ failed to fulfill the duty to
adequately develop the record only if that failure prejudiced Plaintiff, Jones v. Astrue,

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691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s substantial rights have
been affected, Audler, 501 F.3d at 448.
Analysis
The Treating and Examining Physicians’ Opinions
Plaintiff first contends that the ALJ failed to discuss and apply the proper
weight to the treating and examining physicians’ opinions. See Dkt. No. 19-1 at 9-12.
“The opinion of the treating physician who is familiar with the claimant’s
impairments, treatments and responses, should be accorded great weight in
determining disability.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). “A treating
physician’s opinion on the nature and severity of a patient’s impairment will 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.” Id.
(internal quotations omitted). “The opinion of a specialist generally is accorded greater
weight than that of a non-specialist.” Id. (internal quotations omitted). However, the
ALJ is “free to reject the opinion of any physician when the evidence supports a
contrary conclusion” when good cause is shown. Id. at 455-56 (internal quotations
omitted). An ALJ may show good cause “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.” Id. at 456.
Social Security Administration (“SSA”) Regulations provide that the SSA “will
always give good reasons in [its] notice of determination or decision for the weight [it

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gives the claimant’s] treating source’s opinion” and list factors an ALJ must consider
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.” 20 C.F.R. § 404.1527(d)(2).
Specifically, this regulation requires consideration of:
(1) the physician’s length of treatment of the claimant;
(2) the physician’s frequency of examination;
(3) the nature and extent of the treatment relationship;
(4) the support of the physician’s opinion afforded by the medical
evidence of record;
(5) the consistency of the opinion with the record as a whole; and
(6) the specialization of the treating physician.
See 20 C.F.R. § 404.1527(c).
In Newton, the Fifth Circuit concluded that “an ALJ is required to consider each
of the § 404.1527(d) factors before declining to give any weight to the opinions of the
claimant’s treating specialist.” 209 F.3d at 456. However, in decisions construing
Newton, the Fifth Circuit has explained that “[t]he Newton court limited its holding to
cases where the ALJ rejects the sole relevant medical opinion before it.” Qualls v.
Astrue, 339 F. App’x 461, 467 (5th Cir. 2009). Therefore, where there are competing
opinions of examining physicians, the ALJ need not necessarily set forth his analysis
of the Section 404.1527(d) factors when declining to give controlling weight to a
treating physician. Id. at 466-67.

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In this case, the ALJ was provided with several competing opinions from
examining physicians, including a consultive examination report from Dr. Frank
Kromelis, MD on May 5, 2009, see Administrative Record [Dkt. No. 17] at 201-02; a
Physical Residual Function Capacity Questionnaire from Dr. William McHenry, M.D.,
Plaintiff’s primary physician, dated January 8, 2010, see id. at 258-260, as well as
other medical treatment records; and an assessment and medical source statement
from Dr. Robert A. Goldberg, M.D., dated May 5, 2010, see id. at 264-72. The ALJ was
also provided with a Physical Residual Functional Capacity Assessment from Dr. John
Durfor, M.D., dated May 26, 2009, see id. at 217-24, and a Case Assessment Form from
Dr. James Wright, M.D., dated August 11, 2009, affirming Dr. Durfor’s assessment, see
id. at 230. Neither of these assessments reflect that Plaintiff was examined by the
opining doctor.
Each of the examining physicians’ opinions differs. Dr. Kromelis did not opine
specifically as to Plaintiff’s exertional and functional capabilities but concluded that
Plaintiff suffered from “low back pain with right S1 radicular symptoms” and “mild loss
of disc space.” Id. at 201-02. Dr. Goldberg, an orthopedic specialist who performed his
examination at the ALJ’s request after the administrative hearing, opined that, in an
eight hour workday, Plaintiff could sit for a total of five hours, stand for a total of three
hours, and walk for a total of three hours, with certain other limitations – specifically,
that, at any time without interruption, Plaintiff could sit for two hours, walk for one
hour, and stand for one hour. See id. at 268. Dr. McHenry, Plaintiff’s primary treating

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physician, determined that, in an eight hour workday, Plaintiff could sit for two hours,
stand/walk for two hours, and lie down/recline for four hours, with the flexibility to
change positions frequently, as well as other limitations. See id. at 258-60.
The non-examining physicians, Dr. Durfor and Dr. Wright, opined that, in an
eight hour workday, Plaintiff could stand and/or walk for a total of six hours and sit
for a total of six hours. See id. at 218, 230.
In his Decision, the ALJ briefly discussed Plaintiff’s historical medical visits and
extensively discussed Dr. Goldberg’s consultative examination. See id. at 14-16. The
AlJ found that Plaintiff has the residual functional capacity to lift/carry ten pounds
frequently, twenty pounds occasionally, sit four hours in an eight hour day, stand four
hours in an eight hour workday, occasionally climb ramps/stairs, balance, stoop, kneel,
crouch, and crawl, with no climbing of ladders, ropes, or scaffolds. In making the
residual functional capacity finding, the ALJ stated:
The undersigned must consider any medical opinions, which are
statements from acceptable medical sources, which reflect judgments
about the nature and severity of the impairments and resulting
limitation. Any difference between the medical consultants’ functional
assessment and the assessment herein are due in part to new evidence
and testimony. However, in spite of the differing functional analyses, the
undersigned concurs with the medical consultants that the claimant is
not “disabled.”
Id. at 17. The ALJ then discussed Plaintiff’s daily activities and stated that, “[w]hile
it is noted that the claimant has a history of back pain, there is minimal evidence to
substantiate this as debilitating.” Id.

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However, the ALJ failed to discuss Dr. McHenry’s Physical Residual Function
Capacity Questionnaire, which is a medical source statement. See Social Security
Regulation (“SSR”) 96-5p, 1996 WL 374183 (S.S.A. July 2, 1996); Peal v. Comm’r of
Soc. Sec. Admin., 3:10-cv-0176-BF, 2011 WL 942781, at *9 (N.D. Tex. Mar. 18, 2011).
The Court rejects Defendant’s contention that the questionnaire concerns an issue
reserved for the Commissioner and is therefore not entitled to special significance. Dkt.
No. 21-1 at 5. SSR 96-5p explains that a medical source statement is a “medical
opinion ... about what an individual can still do despite a severe impairment(s), in
particular about an individual’s physical or mental abilities to perform work-related
activities on a sustained basis.” 1996 WL 374183, at *2. These statements are opinions
based on the medical sources’ personal knowledge of the individual. Id. The
questionnaire falls into this category. See Peal, 2011 WL 942781, at *9.
Medical source statements submitted by treating sources are opinions entitled
to special significance and may be entitled to controlling weight. Peal, 2011 WL
942781, at *9. The ALJ also failed to explain the weight he gave to the opinion of Dr.
Goldberg, a specialist who performed the most recent examination of Plaintiff –
although the Decision does appear to give some weight to Dr. Goldberg’s opinion. It is
impossible to tell from the Decision which opinions the ALJ considered, how the ALJ
weighed the various medical opinions, and why he assigned them a particular weight.
Because there were several opinions from examining physicians, it was not
strictly necessary for the ALJ to set forth his analysis concerning the Section

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404.1527(d) factors if he declined to give weight to Dr. McHenry’s medical source
statement. See Qualls, 339 F. App’x at 466-67. However, it appears from the Decision
that the ALJ may have given more weight to the non-examining, non-treating
physicians than to Dr. McHenry and Dr. Goldberg. The Court determines that the ALJ
should have considered Dr. McHenry’s medical source statement and explained the
weight he gave to Dr. McHenry’s and Dr. Golberg’s medical source statements and that
failure to do so was error.
Defendant contends that, even if error occurred, the error was harmless because,
if the ALJ had discussed Dr. McHenry’s opinion, he would not have given it great
weight. See Dkt. No. 21-1 at 6. The Court is unable to say what the ALJ would have
done. The opinions expressed in Dr. McHenry's medical source statement, and to a
lesser degree Dr. Goldberg’s medical source statement, included significant limitations
beyond those that the ALJ recognized in determining both Plaintiff's residual function
capacity and his ability to engage in any form of substantial gainful activity. The ALJ
posed to the vocational expert no hypotheticals that addressed Dr. McHenry’s or Dr.
Goldberg’s opinions concerning Plaintiff's residual functional capacity. Had the ALJ
given proper consideration to the treating and examining physicians’ records and
assessment of Plaintiff's ability to engage in work-related activities, the ALJ might
have reached a different decision as to disability. This is especially true in light of the
fact that the burden lies with the Commissioner at Step 5 to identify gainful
employment available in the national economy that the claimant is capable of
performing. See Greenspan, 38 F.3d at 236; see also Myers v. Apfel, 238 F.3d 617, 62111

22 (5th Cir. 2001) (holding that remand was required when the ALJ failed to consider
all evidence from a treating source and failed to present good cause for rejecting it);
Newton, 238 F.3d at 621-22 (holding that remand was required when the ALJ failed
to consider each of the Section 404.1527(d) factors before declining to give weight to the
opinions of the claimant's treating specialist); Harris v. Astrue, No. 3:11-cv-1089-M,
2012 WL 4442303, *15 (N.D. Tex. Sept. 7, 2012), rec. adopted, 2012 WL 4458405 (N.D.
Tex. Sept. 26, 2012).
Therefore, the ALJ’s failure to consider Dr. McHenry’s questionnaire and explain
the weight given to Dr. McHenry’s and Dr. Goldberg’s opinions was prejudicial error,
and reversal and remand is required.
The ALJ’s Credibility Findings
Plaintiff next contends that the ALJ’s credibility findings were not supported by
substantial evidence. In making a credibility determination, the ALJ must consider the
objective medical evidence, as well as other factors, including:
(1) the individual’s daily activities;
(2) the location, duration, frequency, and intensity of the individual’s
pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
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(6) any measures other than treatment the individual uses or has
used to relieve pain or other symptoms; and
(7) any factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
See SSR 96-7p, 1996 WL 374186, at *3 (S.S.A. July 2, 1996); Salgado v. Astrue, 271 F.
App’x 456, 462 (5th Cir. 2008) (discussing factors). However, “[t]he ALJ is not required
to mechanically follow every guiding regulatory factor in articulating reasons for
denying claims or weighing credibility.” Giles v. Astrue, 433 F. App’x 241, 249 n.30 (5th
Cir. 2011).
In this case, the ALJ determined that Plaintiff was not credible to the extent his
testimony was inconsistent with the ALJ’s Decision. See Administrative Record [Dkt.
No. 17] at 17. The ALJ stated, “[w]hile it is noted that the claimant has a history of
back pain, there is minimal evidence to substantiate this as debilitating.” Id. The ALJ
further based his determination on Plaintiff’s testimony concerning his ability to
perform daily “work” activities, including Plaintiff’s ability to care for the animals on
his farm and drive a John Deere Gator around his property. Id.
Although typically the ALJ’s analysis would have been proper, because the ALJ
failed to consider a medical source statement from Plaintiff’s treating physician and
failed to weigh the medical source statement from Dr. Goldberg, a specialist, the Court
cannot conclude that the ALJ’s credibility determination was supported by substantial
evidence, as it was not considered in light of the objective medical evidence. On

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remand, the Commissioner should reconsider its credibility determination after
weighing Dr. Goldberg’s and Dr. McHenry’s medical source statements.
The Medical-Vocational Guidelines
Finally, Plaintiff contends that the Medical-Vocational Guidelines direct a finding
of disability from Plaintiff’s 55th birthday and asks this court to reverse the Decision
and award benefits to Plaintiff from that date.
At the fifth step of the sequential evaluation process, the ALJ considers the
plaintiff’s age in combination with his residual functional capacity, education, and
work experience to determine whether the plaintiff is capable of adjusting to and
performing work that exists in substantial numbers in the national economy. See 20
C.F.R. § 404.1563(a) (2010); Flores v. Astrue, No. 5:09-cv-214-BG, 2010 WL 3858173,
at *2 (N.D. Tex. Aug. 30, 2010), rec. adopted, 2010 WL 3856435 (N.D. Tex. Oct. 4,
2010). The ALJ may consult the Medical-Vocational Guidelines (the “Grid Rules”) to
determine whether, given the plaintiff’s vocational characteristics, work exists in the
national economy that the claimant can perform. Heckler v. Campbell, 461 U.S. 458,
461-62 (1983). Located in the Commissioner’s regulations at appendix 2 of part 404,
the Grid Rules consist of rules that direct a finding of disability when the plaintiff’s
residual functional capacity, age, education, and previous work experience correspond
to the job requirements under a particular rule. See 20 C.F.R., pt. 404, subpart P., app.
2.

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Plaintiff was 54 at the time of the hearing, which means that he was an individual
“closely approaching advanced age” for purposes of determining disability. Under the
Grid Rules, Plaintiff was not disabled at the time of the hearing. See MedicalVocational Rule 202.14. Plaintiff turned 55 less than one month after the Decision, at
which point he became a person of “advanced age” for purposes of determining
disability. See 20 C.F.R. § 416.963(e). A person of advanced age with Plaintiff’s residual
functional capacity, age, education, and previous work experience is considered
disabled under the Grid Rules. See Medical-Vocational Rule 202.06. Plaintiff contends
that, because his age at the time of the Decision constituted a borderline situation, the
ALJ should have applied Grid Rule 202.06 and found him disabled.
Plaintiff seems to imply that this Court can award him benefits “from age fiftyfive.” Dkt. No. 19-1 at 16. However, Plaintiff’s current age is of no moment, because the
ALJ could only consider Plaintiff’s age up to the time of the Decision. See Florent v.
Astrue, No. 09-5512, 2010 WL 2977617, at *11 (E.D. La. June 17, 2010), rec. adopted,
2010 WL 2978224 (E.D. La. Jul. 20, 2010). But Plaintiff is correct that the ALJ must
not mechanically apply the age categories in the Grid Rules to a borderline situation.
See 20 C.F.R. § 404.1563(b); Flores, 2010 WL 3858173, at 3. Because the term
“borderline” is not specifically defined, the Fifth Circuit has observed that the
Commissioner is vested with considerable discretion in determining whether such a
situation is present. See Harrell v. Bowen, 862 F.2d 471, 479 (5th Cir. 1988). As a
general rule, a person who is within six months of the next higher age category is

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considered to be in a borderline situation. Florent, 2010 WL 2977617, at *11 n.5.
Plaintiff is therefore in a borderline situation.
The decision to place someone whose age approaches another category in that
category is within the ALJ’s discretionary, and the ALJ’s decision is accorded
considerable deference. See Fosha v. Barnhart, 372 F. Supp. 2d 948, 957 (S.D. Tex.
2005); see also Stanridge-Salazar v. Massanari, No. 00-50806, 254 F.3d 70, 2001 WL
502506, at *1 (5th Cir. Apr. 24, 2001) (“Other than the fact that Stanridge was
approximately six months from her 55th birthday when the ALJ’s decisions were
issued (which would change her status from a person ‘approaching advance age’ to a
person of ‘advanced age’), she presents nothing to support her argument that the ALJ
erred in finding her to be a person ‘approaching advanced age.’”). Although Section
404.1563(b) mandates that the issue must be “considered” such that the record
contains enough of an explanation fo the ALJ’s overall disability adjudication to enable
reviewing courts to determine whether the decision is supported by substantial
evidence, there is no requirement that an ALJ explain in his written decision why he
did not use an older age category. See Stout v. Astrue, No. 10-4466, 2012 WL 1020179,
at *10 (E.D. La. Feb. 22, 2012) rec. adopted 2012 WL 1020179 (E.D. La. Mar. 26, 2012)
(citing Bowie v. Comm. of Soc. Sec., 539 F.3d 395, 400-01 (5th Cir. 2008)). The ALJ’s
reliance on the testimony of a vocational expert in assessing the overall impact of all
of the factors of a plaintiff’s case will typically suffice. See Stout, 2012 WL 1020179, at
*10 (collecting cases).

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In this case, the ALJ specifically informed the vocational expert that Plaintiff was
54, see Administrative Record [Dkt. No. 17] at 43, and asked him to consider Plaintiff’s
age when considering whether there were jobs Plaintiff could perform that exist in
significant number in the national economy, see id. at 44. As such, the ALJ’s decision
not to place Plaintiff in the “advanced age” category is supported by substantial
evidence, and this Court must not disturb it. See Fosha, 372 F. Supp. 2d at 957.
Conclusion
The hearing decision is reversed in part and affirmed in part, and this case is
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
DATED: February 7, 2013

____________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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