Johnson v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER: Accordingly, for the reasons explained, the Commissioner's decision is affirmed. (Ordered by Judge Sidney A Fitzwater on 6/4/2015) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NATALIE M. JOHNSON,
Plaintiff,
VS.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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§ Civil Action No. 3:14-CV-2278-D
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MEMORANDUM OPINION
Plaintiff Natalie Johnson (“Johnson”) brings this action under § 205(g) of the Social
Security Act (the “Act”), 42 U.S.C. § 405(g), for judicial review of the final decision of the
Commissioner of Social Security (the “Commissioner”) denying her claim for disability
insurance benefits and supplemental security income under Titles II and XVI of the Act. For
the reasons that follow, the Commissioner’s decision is affirmed.
I
Johnson filed applications for a period of disability and disability insurance benefits
under Title II of the Act and for supplemental security income benefits under Title XVI of
the Act. In both applications, she alleged a disability beginning May 1, 2010 due to
stuttering, fibromyalgia, depression, anxiety, panic attacks, pain, and carpal tunnel syndrome.
Johnson was born on December 17, 1981, and was 28 years old on her alleged onset date.
The Commissioner denied Johnson’s applications initially and on reconsideration. Following
a hearing, the administrative law judge (“ALJ”) found that Johnson is “not disabled.” The
Appeals Council denied Johnson’s request for review, and the ALJ’s decision became the
final decision of the Commissioner. Johnson now seeks judicial review.
In making her decision, the ALJ followed the five-step sequential process prescribed
in 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Johnson has not engaged in
substantial gainful activity since May 1, 2010, her alleged onset date. At step two, the ALJ
found that Johnson has severe impairments of depression, post traumatic stress disorder,
anxiety, obsessive compulsive disorder, status post right shoulder dislocation and humeral
head fracture, status post right carpal tunnel syndrom repair, degenerative disc disease,
fibromyalgia with poly arthritis and poly arthralgias, migraines, and hypothyroidism. At step
three, the ALJ found that Johnson’s impairments fail to meet or equal a listed impairment for
presumptive disability under 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that
Johnson has the following residual functional capacity (“RFC”):
the claimant has the [RFC] to perform and sustain light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) requiring
her to sit for six hours total in an eight-hour work day and stand
or walk for six hours total in an eight-hour [work day]. She can
lift and carry up to 20 pounds occasionally and ten pounds
frequently with no above the shoulder lifting and carrying. She
can occasionally bend, stoop, and crouch, and she cannot kneel,
crawl, squat, climb ladders or work around unprotected heights.
She can frequently but not constantly grasp, grip, handle and do
fine manipulation. From a mental standpoint, she can perform
work that is routine, repetitive and simple in nature, not complex
or detail[ed] and no contact with the general public.
R. 32-33. At step four, the ALJ found that Johnson cannot perform her past relevant work
in data entry (semi-skilled), or as a retail sales clerk and cosmetic sales clerk (semi-skilled).
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At step five, where the burden shifted to the Commissioner, the ALJ found based on the
vocational expert’s (“VE’s”) testimony that Johnson is capable of performing other jobs
existing in significant numbers in the national economy, such as inspector, production worker
(garment sorter), and photocopy machine operator. Accordingly, the ALJ found that Johnson
has not been under a disability at any time between May 1, 2010 (the alleged onset date) and
January 11, 2013 (the date of the ALJ’s decision).
Johnson relies on three grounds to establish that the Commissioner’s decision must
be reversed: first, the ALJ’s RFC finding is not supported by substantial evidence; second,
the ALJ failed to give proper weight to the opinions of Johnson’s treating physicians, Alan
R. Hurschman, M.D. (“Dr. Hurschman”) and Martin Kram, M.D. (“Dr. Kram”); and third,
Johnson was prejudiced by the ALJ’s errors.
II
The court’s review of the Commissioner’s decision is limited to determining whether
substantial evidence supports the decision and whether the Commissioner applied the proper
legal standards to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995);
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam). “The Commissioner’s
decision is granted great deference and will not be disturbed unless the reviewing court
cannot find substantial evidence in the record to support the Commissioner’s decision or
finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th
Cir. 1995) (footnotes omitted).
“The court may not reweigh the evidence or try the issues de novo or substitute its
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judgment for that of the [Commissioner].” Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.
1984) (citations omitted). “If the Commissioner’s findings are supported by substantial
evidence, then the findings are conclusive and the Commissioner’s decision must be
affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“It is more than a mere scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d
357, 360 (5th Cir. 1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990) (per
curiam)). “To make a finding of ‘no substantial evidence,’ [the court] must conclude that
there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’”
Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir. 1983) (citation omitted). Even if the court
should determine that the evidence preponderates in the claimant’s favor, the court must still
affirm the Commissioner’s findings if there is substantial evidence to support these findings.
See Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of conflicting
evidence is for the Commissioner rather than for the court. See Patton v. Schweiker, 697
F.2d 590, 592 (5th Cir. 1983) (per curiam).
For purposes of social security determinations, “disability” means 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 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). In determining whether an applicant is disabled, the ALJ follows a five-step
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sequential analysis. See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). If the
ALJ finds that the claimant is disabled or is not disabled at any step in the analysis, the
analysis is terminated. Id. Under the five-step sequential inquiry the Commissioner
considers whether (1) the claimant is presently engaged in substantial gainful activity, (2) the
claimant’s impairment is severe, (3) the claimant’s impairment meets or equals an
impairment listed in 20 C.F.R. § 404.1520, Subpart P, Appendix 1, (4) the impairment
prevents the claimant from doing past relevant work, and (5) the claimant cannot presently
perform relevant work that exists in significant numbers in the national economy. See, e.g.,
Leggett, 67 F.3d at 563 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520(a)(4) (2011).
“The burden of proof is on the claimant for the first four steps, but shifts to the
[Commissioner] at step five.” Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per
curiam) (citing Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam)).
At step five, once the Commissioner demonstrates that other jobs are available to a claimant,
the burden of proof shifts to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d
614, 618 (5th Cir. 1990) (per curiam).
When determining the propriety of a decision of “not disabled,” this court’s function
is to ascertain whether the record considered as a whole contains substantial evidence that
supports the final decision of the Commissioner, as trier of fact. The court weighs four
elements of proof to decide if there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant’s
subjective evidence of pain and disability; and (4) age, education, and work history.
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Martinez, 64 F.3d at 174 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per
curiam)). “The ALJ has a duty to develop the facts fully and fairly relating to an applicant’s
claim for disability benefits.” Ripley, 67 F.3d at 557. “If the ALJ does not satisfy [this] duty,
[the] decision is not substantially justified.” Id. Reversal of the ALJ’s decision is
appropriate, however, “only if the applicant shows that [she] was prejudiced.” Id. The court
will not overturn a procedurally imperfect administrative ruling unless the substantive rights
of a party have been prejudiced. See Smith v. Chater, 962 F. Supp. 980, 984 (N.D. Tex.
1997) (Fitzwater, J.).
III
The court turns first to Johnson’s contention that the ALJ’s RFC determination is not
supported by substantial evidence because she improperly rejected the opinion of Johnson’s
treating source, Dr. Hurschman, whose opinion is the only evidence discussing the effects
of Johnson’s physical condition on her ability to work.
A
The ALJ found that Johnson has the RFC to perform and sustain light work, as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b); to occasionally bend, stoop, and
crouch, but not to kneel, crawl, squat, climb ladders or work around unprotected heights; and
to frequently, but not constantly, grasp, grip, handle and do fine manipulation. In reaching
this conclusion, the ALJ rejected at least the opinion of one of Johnson’s treating physicians,
Dr. Hurschman. In his October 17, 2012 medical source statement, Dr. Hurschman opined
that—due to Johnson’s multiple impairments (hypothyroidism, post traumatic stress disorder,
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obsessive-compulsive disorder, migraines, fibromyalgia, and lumbar and cervical facet
disease)—she can stand and/or walk continuously before alternating postures sitting or lying
down for fewer than 15 minutes, and for less than one hour in an eight-hour work day; sit in
a working position continuously before alternating postures standing or lying down for 15
minutes, and for less than one hour in an eight-hour work day; that, during an eight-hour
work day, she reasonably requires 30 minutes per day of rest for pain management and 30
minutes per day of rest due to fatigue; that she can occasionally lift and/or carry up to 5
pounds and can rarely lift and/or carry 6 to 100 pounds; that she can rarely or never reach
with her right arm, can occasionally reach with her left arm, and can never grasp or finger
with either hand. Johnson contends that Dr. Hurschman’s medical source statement is the
only opinion evidence of record that specifically discusses the effects of her physical
condition on her ability to work.
Johnson maintains that the ALJ included none of Dr. Hurschman’s opinions about her
limitations in the RFC finding, and that the ALJ rejected Dr. Hurschman’s opinion about
Johnson’s ability to sit, stand, walk, need for rest, lift, carry, and the use of her arms and
hands. She argues that, in rejecting the only medical opinion that addressed her RFC, the
ALJ impermissibly attempted to glean for herself the effects of Johnson’s impairments
directly from the medical reports and treatment notes, overreaching her authority and
exercising an expertise that the ALJ lacks. In support, Johnson cites Ripley and other cases
to argue that the ALJ may not rely on her own unsupported opinion as to the limitations
presented by an applicant’s medical conditions. She posits that bare treatment records do not
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clearly establish the effect of an impairment on the claimant’s ability to work, and that an
ALJ is not permitted to draw medical inferences on her own that no physician has expressed.
Johnson also maintains that the ALJ’s finding regarding RFC is not supported by substantial
evidence because no physician opined that she can perform the exertional requirements
(which the ALJ found she can perform) for light work.
The Commissioner responds that determining RFC is the sole responsibility of the
ALJ; that the ALJ was not required to adopt Dr. Hurschman’s medical opinion for her
findings regarding Johnson’s RFC to be supported by substantial evidence; that the ALJ is
responsible for evaluating a claimant’s RFC based on the record as a whole; and that the ALJ
properly considered the entire record, and there is substantial evidence to support the ALJ’s
finding that Johnson is not disabled.
B
“Under the regulations and our case law, the determination of [RFC] is the sole
responsibility of the ALJ.” Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012) (per
curiam) (citing Ripley, 67 F.3d at 557). The ALJ “is responsible for assessing the medical
evidence and determining the claimant’s [RFC].” Perez v. Heckler, 777 F.2d 298, 302 (5th
Cir. 1985). The ALJ’s RFC “assessment is not a medical opinion.” Joseph-Jack v. Barnhart,
80 Fed. Appx. 317, 318 (5th Cir. 2003) (per curiam) (citing 20 C.F.R. §§ 416.946,
416.927(e)).
Although an evaluation by the claimant’s treating physician should be accorded great
weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic
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techniques and is not inconsistent with . . . other substantial evidence,” 20 C.F.R.
§ 404.1527(c)(2), “[t]he ALJ is free to reject the opinion of any physician when the evidence
supports a contrary conclusion.” Martinez, 64 F.3d at 176 (quoting Bradley v. Bowen, 809
F.2d 1054, 1057 (5th Cir. 1987) (citation omitted)). An ALJ may give less weight or even
no weight to a treating physician’s opinion for good cause. Statements that may be
disregarded for good cause include those that are “so brief and conclusory that [they lack]
persuasive weight, [are] not supported by medically acceptable clinical laboratory diagnostic
techniques, or [are] otherwise unsupported by the evidence.” Scott v. Heckler, 770 F.2d 482,
485 (5th Cir. 1985) (citations omitted). “[T]he ALJ may discount, or even disregard entirely,
the opinion of the treating physician.” Brown v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999).
But “an ALJ may not—without opinions from medical experts—derive the applicant’s [RFC]
based solely on the evidence of his or her claimed medical conditions. Thus, an ALJ may
not rely on his own unsupported opinion as to the limitations presented by the applicant’s
medical conditions.” Williams v. Astrue, 355 Fed. Appx. 828, 832 n.6 (5th Cir. 2009) (per
curiam). Although the ALJ must adequately explain the reasons for her decision, her RFC
determination can be supported by substantial evidence even if she does not specifically
discuss all the evidence that supports the decision or all the evidence that she rejects. Falco
v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).
C
Johnson contends that the opinion of Dr. Hurschman, her treating source, is the only
evidence that discusses the effects of her physical condition on her ability to work, and the
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ALJ in reaching a different conclusion necessarily impermissibly attempted to glean the
effects of Johnson’s impairments directly from the medical reports and treatment notes. The
premise of Johnson’s straightforward argument, if correct, would support reversal of the
Commissioner’s decision. As noted above, “an ALJ may not—without opinions from
medical experts—derive the applicant’s [RFC] based solely on the evidence of his or her
claimed medical conditions.” Williams, 355 Fed. Appx. at 832 n.6 (citing Ripley, 67 F.3d
at 557)). But Johnson’s contention is not supported by the record. There is no indication in
the ALJ’s decision that she derived Johnson’s RFC based solely on the evidence of her
claimed medical conditions, or that the ALJ relied on her own unsupported opinion as to the
limitations presented by Johnson’s medical conditions.
The reasoning that the ALJ followed in support of her RFC determination was based
on (1) consideration of all of Johnson’s symptoms and the extent to which the symptoms
could reasonably be accepted as consistent with the objective medical evidence and other
evidence, and (2) consideration of opinion evidence.
Concerning Johnson’s symptoms, the ALJ followed a two-step process. She
determined, first, whether there was an underlying medically determinable physical or mental
impairment that could be reasonably expected to produce Johnson’s pain or other symptoms.
Once that determination was made, the ALJ evaluated, second, the intensity, persistence, and
limiting effects of Johnson’s symptoms to determine the extent to which they limited her
functioning. Regarding the second step, the ALJ recognized that, when statements about the
intensity, persistence, or functionally limiting effects of pain or other symptoms were not
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substantiated by objective medical evidence, she must make a finding concerning the
credibility of the statements based on a consideration of the entire record. The ALJ found
that Johnson’s medically determinable impairments could be expected to cause some of the
alleged symptoms, but that her allegations of complete inability to work were not supported
by the record. The ALJ cited as an example that the medical evidence showed that Johnson’s
treatment had generally been successful in controlling her symptoms, but that she had refused
treatment on multiple occasions and had not followed up with recommended counseling and
treatment. The ALJ found that this evidence tended to show that Johnson’s symptoms may
not have been as serious as had been alleged. And the ALJ found that at least one physician
had noted that Johnson exhibited medications-seeking behavior. The ALJ also found that
Johnson had made somewhat inconsistent statements regarding her most recent injury,
suggesting that the information she provided generally may not have been entirely reliable.
She found that limitations should be assessed to Johnson’s RFC, but that Johnson’s
allegations of being totally precluded from work-related activities were not fully credible,
to the extent alleged.
Concerning opinion evidence, the ALJ recognized that the opinion of a treating
physician is entitled to great weight when supported by objective medical evidence and
consistent with other substantial evidence of record. But the ALJ also acknowledged the
limitations on opinions expressed by physicians concerning issues that are reserved for the
Commissioner. Citing Dr. Hurschman specifically, she noted that he had initially treated
Johnson in February 2012 and in October 2012; that he had opined that, since May 2010,
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Johnson had multiple disabling limitations; that this pessimistic assessment was not borne
out by the treatment records; and that his opinion was rendered less persuasive because it was
without substantial support from other evidence of record.
After discussing the opinion of Dr. Kram on non-exertional limitations, the ALJ
concluded that, although Johnson might experience some degree of discomfort and
depressive symptomatology that are at times incompatible with performing certain levels of
sustained work activity, neither the objective medical or non-medical evidence established
that her ability to function was so severely impaired as to preclude unskilled work at the light
level of exertion, and that this RFC assessment was supported by the medical evidence of
record.
As is apparent from the foregoing summary of the ALJ’s decision, the ALJ did not
derive Johnson’s RFC based solely on the evidence of her claimed medical conditions, or rely
on her own unsupported opinion as to the limitations presented by Johnson’s medical
conditions. Moreover, the ALJ properly rejected the opinion of Dr. Hurschman based on her
finding that his assessment was not borne out by the treatment records and that it lacked
substantial support from other evidence of record.
The court therefore concludes that Johnson has failed to demonstrate that the ALJ
improperly rejected the opinion of Johnson’s treating source, Dr. Hurschman, and,
consequently, that the RFC determination is not supported by substantial evidence.
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IV
Johnson contends as her second ground for reversal that the ALJ improperly rejected
the opinions of Drs. Hurschman and Kram, her treating physicians, without acknowledging
the important legal principle that the Commissioner will always give greater weight to a
treating source’s opinion even if that opinion is inconsistent with other substantial evidence.
A
Johnson maintains that, by regulation and by statute, the Commissioner will always
consider and evaluate the medical opinions received in the applicant’s case and will generally
give more weight to opinions from treating sources; when a treating source’s medical opinion
is not entitled to controlling weight, it is still entitled to deference and may be entitled to the
greatest weight; when a treating source has seen a claimant for long enough to develop a
longitudinal picture, the agency will always give greater weight to the treating source’s
opinion than to the opinions of non-treating sources, even if the other opinions are also
reasonable or even if the treating source’s opinion is inconsistent with other substantial
evidence of record; agency rules provide that special weight is accorded to the opinions of
a claimant’s treating physicians; in finding that controlling weight should not be assigned to
Drs. Kram’s and Hurschman’s source statements, the ALJ failed to recognize that their
opinions were still entitled to deference; the ALJ found that Dr. Hurschman’s “pessimistic
assessment” was not borne out by the treatment records and was without substantial support,
but she did not cite contradictory evidence; the ALJ did not identify what abnormalities she
expected to find, or the medical basis for this conclusion; the ALJ made an overarching and
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foundational error by failing to recognize the special deference that must be accorded to
treating source opinions when they are not accorded controlling weight; the ALJ’s failure to
explicitly acknowledge this crucial legal principle strongly suggests that she did not apply
the proper legal standard when evaluating treating source opinions and she incorrectly
weighed the medical opinions of record; objective evidence supported Dr. Hurschman’s
medical source statement; he evaluated Johnson for pain management related to neck, low
back, shoulder, leg, wrist, and general joint pain and was asked to evaluate her headaches;
he documented head and facial pain, limited neck range of motion, positive Patrick sign,
limited low back range of motion, cervical (neck) and lumbar (low back) muscle spasms, and
limited left shoulder range of motion; he noted cervical spine facet compression signs were
strongly positive; facet arthropathy was confirmed by the neck and low back MRIs; he
performed low back medial branch nerve blocks on February 15, 2012 and March 5, 2012;
because Johnson reported no pain relief, he tried radio frequency ablation on the low back
in June 2012, and, although she achieved some relief, her pain returned to a baseline 8/10 by
September 2012; examination continued to show positive signs and muscle spasms, and he
performed a lumbar epidural steroid injection as the next treatment option; and, on the same
day he completed his source statement, he also gave Johnson a botox injection in the neck
and face to help with her migraine headaches. Johnson contends that none of this evidence
contravened Dr. Hurschman’s opinion that Johnson’s impairments caused significant
limitations in her ability to work, and no other examining or reviewing physician gave an
opinion that contravened his opinion.
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Regarding Dr. Kram, Johnson maintains that the ALJ’s lay expectations are not
substantial evidence. She posits that, without a clear explanation, the ALJ found that Dr.
Kram’s records did not document expected findings. Johnson contends that Dr. Kram saw
her nine times from September 2011 through January 2013; that his records, while difficult
to read, document only a partial response to medications, which required changes in
medications or dosages, and abnormal mental status examinations; at Dr. Kram’s last
recorded visit, he described Johnson as sabotaging her own treatment by seeking to get back
with her abusive husband; Johnson’s mother described her as incapable of making logical
decisions; Johnson became angry and wanted to fire Dr. Kram, but later relented; and that
this type of outburst was commonly reported by other treatment sources, such as Metrocare
and Parkland; although the ALJ faulted Dr. Kram for apparently inconsistent responses, she
does not comment on the similarly inconsistent responses of Dr. Reedy (the State Agency
reviewing psychiatrist), who believed that Johnson was limited in her ability to maintain
attention and concentration for extended periods and work in coordination or proximity to
others, but inexplicably concluded that Johnson could work with others for long periods of
time; Dr. Kram also opined that Johnson was limited in these same identified areas, albeit at
a more severe level; and given that Dr. Kram had a longitudinal treating relationship, the
ALJ’s failure to recognize and accord deference was erroneous.
Johnson concludes that, had the ALJ properly applied the law and recognized the
deference due to treating source opinions, Drs. Hurschman’s and Kram’s limitations would
have been given greater weight.
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The Commissioner responds that the ALJ properly weighed the opinions of Drs.
Hurschman and Kram; the ALJ properly discounted Dr. Hurschman’s medical source
statement because it was not supported by the treating records and was unsupported by
substantial evidence; the ALJ properly discounted Dr. Kram’s medical source statement
because it was not only inconsistent with other medical records, but also internally
inconsistent; and the ALJ was entitled to discount both physicians’ medical source statements
because they were merely conclusory check-box forms, which are entitled to little weight.
B
As a threshold matter, the court disagrees with Johnson that the ALJ failed to
acknowledge the Commissioner’s policy regarding the weight and deference to be given to
treating source opinions. The ALJ began her discussion of the opinion evidence pertinent
to her RFC determination by stating: “[t]he opinion of a treating physician is entitled to great
weight when supported by objective medical evidence and consistent with other substantial
evidence of record.” R. 34. Nor is there cause to reverse based on the ALJ’s failure to
discuss explicitly the deference that is due a treating source’s opinion that is not given
controlling weight. Although the court benefits from more detailed decisions when
conducting judicial review, it reviews the ALJ’s judgment, not her opinion. See LeCoq v.
Barnhart, 3:04-CV-0825-D, slip op. at 10 (N.D. Tex. Aug. 24, 2005) (Fitzwater, J.) (citing
Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)) (stating “[t]he statute requires us to
review the quality of the evidence . . . not the quality of the ALJ’s literary skills.”). “The
ALJs work under great burdens. . . . When they slow down to write better opinions, that
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holds up the queue and prevents deserving people from receiving benefits.” Id. at 10-11
(quoting Stephens, 766 F.2d at 287). It is not apparent from any other part of the ALJ’s
decision that she failed to give proper deference to the opinions of Johnson’s treating
sources, Drs. Hurschman and Kram. And the ALJ’s failure to discuss explicitly the
deference due their opinions does not compel the court to conclude that she failed to give the
opinions proper deference. See Murphy v. Barnhart, No. 3:02-CV-2741-D, slip op. at 10-11
(N.D. Tex. Feb. 9, 2004) (Fitzwater, J.) (“The ALJ may not have written a flawless opinion
that expresses in great detail the way he reached his conclusions in this case, but his finding
and conclusions provide a sufficient basis for the court to follow his reasoning and determine
that he traveled an acceptable analytical path.”); Anderson v. Barnhart, No. 3:02-CV-2123D, slip op. at 12 (N.D. Tex. June 23, 2003) (Fitzwater, J.) (“The ALJ may not have written
a flawless opinion that expresses in great detail the way he reached his conclusions in this
case. Nevertheless, the opinion does provide a sufficient basis for the court to follow his
reasoning and determine that he followed an acceptable analytical path.”).
C
Nor does the court agree with Johnson’s assertion that the ALJ reversibly erred in
deciding the weight to be given to the opinions of Drs. Hurschman and Kram. As the court
has explained above, an ALJ can reject the opinion of a treating physician that is not
supported by medically acceptable clinical laboratory diagnostic techniques, or is otherwise
unsupported by the evidence. See Scott, 770 F.2d at 485.
Initially, when conducting her step three analysis—i.e., whether Johnson’s
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impairments met or equaled an impairment listed in 20 C.F.R. § 404.1520, Subpart P,
Appendix 1—the ALJ described in detail Dr. Hurschman’s findings and the history of his
pain management treatment of Johnson. The ALJ noted that Dr. Hurschman first treated
Johnson on February 6, 2012; that he continued to treat Johnson through at least October 17,
2012, when he completed his medical source statement; that his treatment of her included
lumbar facet joint medial branch nerve blocks with fluoroscopy and a lumbar radio frequency
ablation of the facet joint medial branch nerves with fluoroscopy; that he diagnosed her with
lumbar degenerative disc disease and lumbar spondylosis on September 12, 2012; and that
he treated her with a lumbar epidural steroid injection. The ALJ also summarized Dr.
Hurschman’s assessments in his medical source statement.
The ALJ also described Dr. Kram’s treatment and opinions. She noted that Dr. Kram
had first examined Johnson on September 2, 2011, and that he later diagnosed her as having
recurrent major depressive disorder, posttraumatic stress disorder, chronic panic disorder, and
attention deficit hyperactivity disorder, and assessed a GAF score of 59-60. The ALJ noted
that Dr. Kram’s followup treatment of Johnson included medications, and the ALJ
summarized Dr. Kram’s assessment contained in his medical source statement.
At step five, the ALJ determined that Johnson has the RFC to do the following: sit for
six hours total in an eight-hour work day and stand or walk for six hours total in an eighthour work day; lift and carry up to 20 pounds occasionally and ten pounds frequently with
no above the shoulder lifting and carrying; occasionally bend, stoop, and crouch, but not
kneel, crawl, squat, climb ladders, or work around unprotected heights; grasp, grip, handle
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and do fine manipulation; perform work that is routine, repetitive, and simple in nature, not
complex or detailed and that does not involve contact with the general public. In determining
Johnson’s RFC, the ALJ first discussed Johnson’s treatment records, noting that the medical
evidence showed that her treatment had been generally successful in controlling her
symptoms; that Johnson had refused treatment on multiple occasions; and that she did not
follow up with recommended counseling and treatment, demonstrating that her symptoms
may not have been as serious as she alleged. The ALJ also discussed Johnson’s credibility,
pointing out that at least one physician had noted that Johnson exhibited medications-seeking
behavior, and that her statements regarding her shoulder injury were somewhat inconsistent.
The ALJ then discussed Dr. Hurschman’s and Dr. Kram’s opinions. She noted that
Dr. Hurschman had initially treated Johnson in February 2012 and in October 2012; that he
had opined that, since May 2010, Johnson had multiple disabling limitations; that this
pessimistic assessment was not borne out by the treatment records; and that his opinion was
rendered less persuasive because it was without substantial support from other evidence of
record. Concerning Dr. Kram’s opinion, the ALJ noted that, although Dr. Kram opined that
Johnson had an extreme loss of function in multiple areas, his own reports failed to reveal
the type of significant clinical and laboratory abnormalities that would be expected if
Johnson were in fact disabled. The ALJ also concluded that the course of treatment that Dr.
Kram had pursued had not been consistent with what would be expected if Johnson were
disabled.
Finally, the ALJ also noted that Dr. Kram’s report appeared to contain
inconsistencies, because he reported that Johnson had an extreme loss of ability to maintain
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attention and concentration for extended periods, but that she was capable of consistently
applying commonsense understanding to carry out instructions and sustain ordinary routine
without special supervision. The ALJ therefore determined that Dr. Kram’s opinion was less
persuasive.
The ALJ found that neither the objective medical or non-medical evidence established
that Johnson’s ability to function is so severely impaired as to preclude unskilled work at the
light level of exertion.
The court holds that the ALJ had good cause to discount Dr. Hurschman’s opinion,
and that she gave sufficient reasons to support her decision.
After reviewing Dr.
Hurschman’s opinions and Johnson’s other treatment records, the ALJ concluded that Dr.
Hurschman’s pessimistic assessment that Johnson had multiple disabling limitations was not
borne out by the treatment records and was without substantial support from the other
evidence of record, and, in fact, that much of the record evidence conflicted with Dr.
Hurschman’s opinions about Johnson’s physical impairments and their impact on her RFC.
Dr. Hurschman opined in his medical source statement that Johnson’s physical impairments
were so disabling as to prevent her from standing, walking, or sitting for more than one hour
in total in an eight-hour work day. But other treatments records indicated that Johnson had
painless range of motion in her neck, no vertebral tenderness, no back tenderness, and normal
range of motion in her back; that her pain from fibromyalgia was significantly improved; that
she could walk without difficulty; and that, after a hospitalization for sepsis in March 2013,
she was able to return home with full activity and no restrictions regarding her mobility.
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Further, Johnson’s testimony at the hearing before the ALJ that she prefers not to lie down
while her son is at home suggests that she is capable of standing, walking, or sitting for more
than one hour total in an eight-hour work day. Because there was contrary evidence in the
record and the ALJ had adequate grounds to find that Dr. Hurschman’s opinion in this
respect was not “well-supported,” the ALJ was not obligated to give controlling weight or
even special deference to Dr. Hurschman’s opinion of Johnson’s physical RFC.
As with Dr. Hurschman’s opinions, Johnson does not contend that the ALJ should
have given Dr. Kram’s opinions controlling weight, but that the ALJ erred in failing to give
them special deference, instead relying merely on her own lay expectations to support her
conclusion that Dr. Kram’s opinions were less persuasive. The court concludes that the ALJ
had an adequate basis in the record to discount Dr. Kram’s opinions, and that her decision
adequately explains her reasons for doing so.
For example, in evaluating Dr. Kram’s opinions, the ALJ noted that Dr. Kram’s report
was internally inconsistent in that it stated that Johnson had an extreme loss of ability to
maintain attention and concentration for extended periods, but also concluded that she was
still capable of carrying out instructions and sustaining ordinary routine without supervision.
The ALJ also stated that Dr. Kram’s reports did not reveal the type of significant clinical and
laboratory abnormalities that would be expected if Johnson were disabled. And the ALJ
cited the fact that Johnson had refused treatment on multiple occasions and did not follow
up with recommended counseling and treatment, suggesting that her symptoms may not have
been as severe.
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Other record evidence also supports the ALJ’s questioning of Dr. Kram’s conclusions.
Treatment records from 2010 reflect that Johnson had no sign of psychotic features, that she
was not delusional, and that her thought processes were organized. There is also evidence
in Johnson’s treatment records that her anxiety and depression were treated effectively with
medication, and that her impulse control and ability to interact with others was improved in
May 2011. Considered together, the inconsistencies within Dr. Kram’s statement and the
other contradictory evidence of record constitute sufficient good cause for the ALJ to
discount Dr. Kram’s assessment of Johnson’s mental RFC. The court therefore concludes
that the ALJ did not err in declining to give Dr. Kram’s opinions special deference.
Accordingly, the court concludes that the ALJ did not err in weighing the opinions of
Drs. Hurschman and Kram.
V
Johnson argues as her third ground that the Commissioner’s decision must be reversed
because she was prejudiced by the ALJ’s errors. She maintains that the ALJ’s hypothetical
question to the VE at step five presented only the ALJ’s unsupported physical limitations,
and that the VE’s testimony therefore is not substantial evidence to carry the Commissioner’s
burden at step five. Because Johnson has failed to demonstrate that the ALJ erred or that her
RFC determination is not supported by substantial evidence, the court need not decide
whether the ALJ committed reversible error.
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*
*
*
For the reasons explained, the Commissioner’s decision is affirmed.
June 4, 2015.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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