Hollie v. Colvin, Acting Commissioner of Social Security Administration

Filing 19

Memorandum Opinion and Order. Plaintiff Michael Hollie ("Plaintiff") brings this action for judicial review of the Commissioner of Social Securitys ("Commissioner's") final decision denying his claim for disability insu rance benefits under Title II of the Social Security Act (the "Act") pursuant to 42 U.S.C. § 405(g). For the following reasons, the Commissioners decision is AFFIRMED. (see order) (Ordered by Magistrate Judge Paul D Stickney on 3/26/2014) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MICHAEL HOLLIE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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NO. 3:12-CV-4905-BF

MEMORANDUM OPINION & ORDER
Plaintiff Michael Hollie (“Plaintiff”) brings this action for judicial review of the
Commissioner of Social Security’s (“Commissioner’s”) final decision denying his claim for
disability insurance benefits under Title II of the Social Security Act (the “Act”) pursuant to 42
U.S.C. § 405(g). For the following reasons, the Commissioner’s decision is AFFIRMED.
Background
Plaintiff alleges that he is disabled due to severe pain stemming from failed back syndrome.
See Tr. [D.E. 8-2 at 31]. After his application for disability insurance was denied initially and on
reconsideration, Plaintiff requested a hearing before an administrative law judge. That hearing was
held on August 9, 2011. See id. [D.E. 8-2 at 27]. At the time of the hearing, Plaintiff was 50 years
old. See id. [D.E. 8-2 at 32]. Plaintiff is a high school graduate and has past work experience as a
branch manager of a automotive repair company. See id. [D.E. 8-2 at 33]. Plaintiff has not engaged
in substantial gainful activity since July 23, 2009. See id. [D.E. 8-2 at 32].
The ALJ found that Plaintiff was not disabled and therefore not entitled to disability benefits.
See id. [D.E. 8-2 at 20]. Although the medical evidence established that Plaintiff suffered from
lumbar disc disease and obesity, the judge concluded that the severity of those impairments did not

meet or equal any impairment listed in the social security regulations. See id. [D.E. 8-2 at 19-20].
The ALJ determined that Plaintiff has the RFC to perform a limited range of sedentary work, but
could not return to his past relevant employment as a branch manager of an automotive service
company because it was skilled, light work. See id. [D.E. 8-2 at 20-22]. Relying on the testimony
of a vocational expert, the judge found that Plaintiff was capable of working in representative
managerial occupations, including a generic managerial occupation - jobs that exist in significant
numbers in the national economy. See id. [D.E. 8-2 at 23]. Plaintiff appealed that decision to the
Appeals Council. See id. [D.E. 8-2 at 2]. The Council affirmed. See id. [D.E. 8-2 at 2]. Plaintiff then
filed this action in federal district court.
Legal Standards
A claimant must prove that he is disabled for purposes of the Social Security Act to be
entitled to social security benefits. Leggett v. Chater, 67 F.3d 558, 563-64 (5th Cir. 1995); Abshire
v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988). The definition of disability under the Act is “the
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 has lasted or can
be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);
Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant is
disabled. Those steps are that:
(1)

an individual who is working and engaging in substantial
gainful activity will not be found disabled regardless of
medical findings;

(2)

an individual who does not have a “severe impairment” will
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not be found to be disabled;
(3)

an individual who meets or equals a listed impairment in
Appendix 1 of the regulations will be considered disabled
without consideration of vocational factors;

(4)

if an individual is capable of performing the work the
individual has done in the past, a finding of “not disabled”
will be made; and

(5)

if an individual’s impairment precludes the individual from
performing the work the individual has done in the past, other
factors including age, education, past work experience, and
residual functional capacity must be considered to determine
if other work can be performed.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing Villa v. Sullivan, 895 F.2d 1019, 1022
(5th Cir. 1990) (paraphrasing 20 C.F.R. § 404.1520(b)-(f)).
The burden of proof lies with the claimant to prove disability under the first four steps of the
five-step inquiry. Leggett, 67 F.3d at 564. The burden of proof shifts to the Commissioner at step
five of the inquiry to prove that other work, aside from the claimant’s past work, can be performed
by the claimant. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (citing Anderson v. Sullivan,
887 F.2d 630, 632-33 (5th Cir. 1989)). If the Commissioner demonstrates that other jobs are
available to the claimant, the burden of proof shifts back to the claimant to rebut such a finding.
Selders v. Sullivan , 914 F.2d 614, 618 (5th Cir. 1990).
The Commissioner’s determination is afforded great deference. Leggett, 67 F.3d at 564.
Judicial review of the Commissioner’s findings is limited to whether the decision to deny benefits
was supported by substantial evidence and to whether the proper legal standard was utilized.
Greenspan, 38 F.3d at 236; 42 U.S.C.A. § 405(g). Substantial evidence is defined as “that which
is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must
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be more than a scintilla, but it need not be a preponderance.” Leggett, 67 F.3d at 564. The
reviewing court does not re-weigh the evidence, retry the issues, or substitute its own judgment, but
rather scrutinizes the record as a whole to determine whether substantial evidence is present.
Greenspan, 38 F.3d at 236.
Analysis
Plaintiff’s appeal raises the following issues:
1.

Whether the the ALJ improperly rejected the opinion of
Plaintiff’s treating physician; and

2.

Whether the ALJ’s decision is supported in light of new
evidence submitted to the Appeals Council.

Pl.’s Br. [D.E. 14 at 2].
1. Dr. Rand M. Voorhies’ Opinion
Plaintiff first contends that the following reasons for the ALJ’s rejection of his treating
physician, Dr. Rand M. Voorhies’ (“Dr. Voorhies”) opinion regarding Plaintiff’s inability to work
were not sufficient: (1) Dr. Voorhies’ and his nurse practitioner, Janell Escude’s (“Nurse Escude”)
opinions that Plaintiff’s post-surgical symptoms would likely limit future employment is an issue
reserved for the Commissioner; (2) that their opinions were not supported by contemporaneous
medical records; and (3) their indication that the final determination from a rehabilitation and
vocational standpoint will be deferred to his treatment physical medicine and rehabilitation
specialist, Dr. Lorraine Rudder (“Dr. Rudder”). Id. [D.E. 14 at 19].
The opinion of a 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) (citing Greenspan, 38 F.3d at 237; Leggett, 67 F.3d at 566).
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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 the other substantial evidence in [the] record.” 20 C.F.R. §
404.1527(d)(2). On the other hand, “[g]ood cause may permit an ALJ to discount the weight of a
treating physician relative to other experts where the treating physician’s evidence is conclusory, is
unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or is otherwise
unsupported by the evidence.” Newton, 209 F.3d at 456. If good cause is shown, then the ALJ may
accord the treating physician’s opinion less weight, little weight, or even no weight. Paul v. Shalala,
29 F.3d 208, 211 (5th Cir. 1995). If the ALJ does not accord a treating doctor’s opinion controlling
weight, the ALJ must set forth specific reasons for the weight given, supported by the medical
evidence in the record. See 20 C.F.R. § 404.1527(c)(2).
The ALJ explained that he did not give any weight to Dr. Voorhies’ and Nurse Escude’s
statements suggesting that Plaintiff is disabled to the extent they describe Plaintiff having a lesser
RFC than for sedentary work with the exceptions of having a sit/stand option at 30-minute intervals;
using a cane for significant standing and walking; no climbing of ladders, scaffolds, or ropes; only
occasionally performing other postural functions; and avoiding unprotected heights and extremes
of cold. See Tr. [D.E. 8-2 at 20-21]. The July 15, 2011 letter from Dr. Voorhies and Nurse Escude
stated in part as follows:
Mr. Hollie had an excellent surgical outcome with no postop event or complications
following the lumbar fusion L4 to S1 with instrumentation at six months postop. The
six month postop x-rays continue to show a solid fusion radiographically with the
implants in good alignment and no instrumentation failure. The patient continues to
rank moderate pain to the lumbar spine and down the left leg (8/10) and the pain was
more severe and disabling prior to surgery. Although the patient did have significant
improvement, the residual symptomatology would likely limit any future
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employment. The final determination from a rehabilitation standpoint and vocational
standpoint on your client is being deferred to his treatment physical medicine and
rehabilitation specialist, Dr. Lorraine Rudder . . . .
See id. [D.E. 8-7 at 46]. Therefore, Dr. Voorhies and Nurse Escude did not definitively opine that
Plaintiff was disabled or that Plaintiff was not capable of future employment. See id. [D.E. 8-7 at
46]. Plaintiff did not submit a subsequent opinion from Dr. Rudder regarding Plaintiff’s vocational
and rehabilitation status. Further, Dr. Rudder’s May 10, 2011 evaluation did not indicate that in his
opinion, Plaintiff was disabled or had any restrictions on ability to work. See id. [D.E. 8-7 at 38].
Rather, Dr. Rudder made the following observations: Plaintiff is a “[w]ell developed[,] well
nourished [A]frican [A]merican male in mild distress;” that Plaintiff “does feel that sx improved
since surgery in terms of severity[,] he feels that he no longer has weakness/limp since surgery;”
Plaintiff “states he tries to walk 2 miles daily-5x1week”; and that the treatment plan includes
“discontinu[ing] percocet.” See id. [D.E. 8-7 at 38-39]. These assessments do not support the
allegations of a claimant who is in too much pain for employment. Further, the ALJ found Plaintiff’s
allegations to not be fully credible for the following reasons: “[t]here is relative paucity of treatment
in the record, other than the claimant’s surgery, since the alleged onset;” (2) Plaintiff’s “function
report describes a generally sedentary lifestyle (Exhibit 5E). The claimant was able to drive to the
hearing from Red Oak, TX, a distance of more than 20 miles;” (3) Plaintiff “denied having side
effects from his medication;” and (4) although Plaintiff “stated that he could not sit for more than
30 minutes at a time, he was able to do so at the hearing.” See id. [D.E. 8-2 at 21].
The ALJ’s finding is supported by substantial evidence. Dr. Voorhies did not opine that
Plaintiff was disabled or was definitively precluded from future employment, but merely opined that
“the residual symtomatology would likely limit any future employment” and that the “final
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determination from a rehabilitation standpoint and vocational standpoint is being deferred to his
treatment physical medicine and rehabilitation specialist, Dr. Lorraine Rudder.” See id. [D.E. 8-7 at
46]. Therefore, the ALJ’s finding did not reject Dr. Voorhies’ opinion because his opinion that
Plaintiff is likely to be precluded from future employment does not conflict with a finding that
Plaintiff is capable of sedentary work. Further, Dr. Rudder, whom Dr. Voorhies ultimately deferred
to with respect to vocational capacity and employment prospects and who was Plaintiff’s treating
physical medicine and rehabilitation specialist, did not opine that Plaintiff was experiencing the
extent of pain or other limitations that would preclude Plaintiff from employment. As Plaintiff
acknowledges, it is Plaintiff’s burden to “prove disability,” and Plaintiff has failed to do so here. See
Pl.’s Br. [D.E. 14 at 20]. Because substantial evidence supports the ALJ’s decision, Plaintiff’s
arguments regarding any procedural imperfections are not controlling. See Audler v. Astrue, 501 F.3d
446, 448 (5th Cir. 2007) (“Procedural perfection in administrative proceedings is not required as
long as the substantial rights of a party have not been affected.”).
2. New Evidence Submitted to Appeals Council
Plaintiff also argues that new and material evidence was submitted to the Appeals Council
and that the Appeals Council failed to follow the procedures required for considering those materials.
Pl.’s Br. [D.E. 14 at 25-33]. The Regulations provide a claimant the opportunity to submit new and
material evidence to the Appeals Council for consideration when deciding whether to grant a request
for review of an ALJ’s decision. 20 C.F.R. § 404.970(b). For new evidence to be considered
material, there must exist “the reasonable possibility that it would have changed the outcome of the
Secretary’s determination.” Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994) (quoting Chaney
v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981)). Additionally, to be considered material, the
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evidence must “relate to the time period for which benefits were denied.” Johnson v. Heckler, 767
F.2d 180, 183 (5th Cir. 1985). Thus, as a corollary, evidence of a later-acquired disability or a
subsequent deterioration of a non-disabling condition is not material. Id. Evidence submitted for the
first time to the Appeals Council is considered part of the record upon which the Commissioner’s
final decision is based. Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005). A court
considering that final decision should review the record as a whole, including the new evidence, to
determine whether the Commissioner’s findings are supported by substantial evidence and should
remand only if the new evidence dilutes the record to such an extent that the ALJ’s decision becomes
insufficiently supported. Higginbotham v. Barnhart, 163 F. App’x 279, 281-82 (5th Cir. 2006).
Based on its internal procedures, the Appeals Council need not provide a detailed discussion
about all new evidence submitted to it. Higginbotham, 405 F.3d at 335 n.1 (referring to a
memorandum from the Commissioner's Executive Director of Appellate Operations dated July
1995). Nevertheless, where new medical evidence is so inconsistent with the ALJ’s findings that it
undermines the ultimate disability determination, several judges have found that the case should be
remanded so that the Appeals Council can fully evaluate the treating source statement. See Brown
v. Astrue, No. 3:10-CV-275-O (BK), 2010 WL 3895509, at *4-6 (N.D. Tex. Sept. 13, 2010); Lee v.
Astrue, No. 3:10-CV-155-BH, 2010 WL 3001904, at *7 (N.D. Tex. July 31, 2010); Stewart v.
Astrue, No. 7:07-CV-52-BD, 2008 WL 4290917, at *4 (N.D. Tex. Sept. 18, 2008). However, new
evidence that is merely cumulative of evidence already considered by the ALJ is not material and,
therefore, does not require remand. See Moore v. Astrue, No. 3:07-CV-2017-B, 2009 WL 5386134,
at *3 (N.D. Tex. Nov. 13, 2009); Price v. Astrue, No. 3:09-CV-1275-BD, 2011 WL 888260, at *3
(N.D. Tex. Mar. 11, 2011).
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Here, because the new evidence is merely cumulative of evidence previously submitted to,
and considered by the ALJ, Plaintiff has failed to demonstrate that the new evidence is material. See
Tr. [D.E. 8-8 at 4-44; 8-9 at 1-2]. As the Commissioner points out, the material has already been
summarized in Dr. Voorhies’ opinion. See id. [D.E. 8-7 at 23-24; 8-8 at at 4-44; 8-9 at 2]; Def.’s Br.
[D.E. 15 at 16]. Plaintiff asserts that the material has been relied on by Dr. Voorhies in formulating
his opinion. Pl.’s Br. [D.E. 14 at 7]. Further, the new evidence submitted pertains to assessments
made and treatments given prior to Plaintiff’s back surgery in January 2011. See Tr. [8-8 at at 4-44;
8-9 at 2]. Plaintiff has argued that Dr. Voorhies’ opinion is more comprehensive than other evidence
in the record because he has assessed Plaintiff post-January 2011 back surgery. See Pl.’s Br. [D.E.
14 at 24-25]. In addition, Plaintiff argues that the new evidence supports Dr. Voorhies’ opinion but
Dr. Voorhies did not conclude that Plaintiff is not able to work or is disabled - merely that he is
“likely” limited in future employment but stated that the final decision would be left to Dr. Rudder.
See id. [D.E. 18 at 13]; Pl.’s Br. [D.E. 8-7 at 46]. Dr. Rudder never opined subsequently that Plaintiff
could not work. Accordingly, remand is not required because the new evidence submitted by
Plaintiff is not material in that there is no reasonable possibility that it would have changed the
outcome of the ALJ’s disability determination. See Moore, 2009 WL 5386134, at *3 (cumulative
evidence is not material evidence that justifies a remand); Price, 2011 WL 888260, at *3 (same). The
Court notes that even if the evidence could be considered material, it certainly does not dilute the
record to such an extent that the ALJ’s decision becomes insufficiently supported.

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Conclusion
For the reasons stated above, the final decision of the Commissioner is AFFIRMED.
SO ORDERED.
This 26th day of March, 2014.

_____________________________________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE

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