Tyler v. Colvin
Filing
25
MEMORANDUM OPINION. The Commissioner's decision is VACATED and this matter is REMANDED for further proceedings consistent with this memorandum opinion. (Ordered by Judge Sidney A Fitzwater on 12/20/2016) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TERRI TYLER,
Plaintiff,
VS.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
§
§
§
§ Civil Action No. 3:15-CV-3917-D
§
§
§
§
§
§
§
MEMORANDUM OPINION
Plaintiff Terri Tyler (“Tyler”) brings this action under § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g) (the “Act”), for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her claim for disability
insurance benefits (“DIB”) under Titles II and XVI of the Act. For the reasons that follow,
the court vacates the Commissioner’s decision and remands this matter for further
proceedings consistent with this memorandum opinion.
I
Tyler filed applications for DIB under Titles II and XVI of the Act in August 2012,
alleging disability beginning December 24, 2010 due to back pain, panic attacks, depression,
diabetes, glaucoma, high blood pressure, migraines, and nerve damage in her back. The
Commissioner denied Tyler’s applications initially and on reconsideration. Following a
hearing, the administrative law judge (“ALJ”) found that Tyler is “not disabled.” P. Br. 4.
The Appeals Council denied Tyler’s request for review, and the ALJ’s decision became the
final decision of the Commissioner.
In making his decision, the ALJ followed the five-step sequential process prescribed
in 20 C.F.R. § 416.920(a). At step one, he found that Tyler has not engaged in substantial
gainful activity since December 24, 2010, her alleged onset date. At step two, the ALJ found
that Tyler has severe impairments of degenerative disc disease of the spine status postsurgery with lower back pain; chronic pain disorder; insomnia; hypertension; diabetes
mellitus; affective disorder; and anxiety disorder. At step three, the ALJ found that Tyler’s
impairments failed 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 Tyler has the residual
functional capacity (“RFC”) to
occasionally lift/carry 20 pounds, frequently lift/carry 10
pounds, stand and/or walk for 6 hours in an 8-hour workday, and
sit for 6 hours in an 8-hour workday, except that the claimant
can never crouch or climb ladders, ropes, or scaffolds; [to]
occasionally balance, stoop, kneel, crawl, and climb
ramps/stairs; [but Tyler] should avoid exposure to hazards such
as dangerous machinery, driving a vehicle, or unprotected
heights; and can understand, remember, and carry out only
simple tasks and instructions.
R. 64. These restrictions resulted from “severe physical impairments, which include lumbar
disc disease, low back pain, chronic pain syndrome, insomnia, hypertension, and diabetes[.]”
R. 74. In making this determination, the ALJ gave little weight to, and ultimately rejected,
all medical opinion evidence in the record that could have been considered. At step four, the
ALJ found that Tyler cannot perform her past relevant work as an electronics technician. At
step five, where the burden shifts to the Commissioner, the ALJ found, based on the
-2-
vocational expert’s (“VE’s”) testimony, that Tyler is capable of performing other jobs
existing in significant numbers in the national economy, such as laundry folder, cleaner, and
bench assembler. Accordingly, the ALJ concluded that Tyler had not been under a disability
at any time between December 24, 2010 (alleged onset date) and July 25, 2014 (ALJ’s
decision date).
Tyler contends that the Commissioner’s decision must be reversed because the ALJ’s
RFC finding is not supported by substantial evidence.
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. See 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
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
-3-
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 Commissioner follows
a five-step sequential analysis. See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005). If the Commissioner 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
-4-
activity, (2) the claimant’s impairment is severe, (3) the claimant’s impairment meets or
equals an impairment listed in 20 C.F.R. Part 404, 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). “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) (internal citations and quotation marks omitted).
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.
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 Commissioner’s decision
-5-
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
Tyler contends that the Commissioner’s decision must be reversed because the ALJ’s
RFC determination was not based on substantial evidence, considering that he rejected the
medical opinion evidence of Tyler’s treating physicians, Oladele Olusanya, M.D. (“Dr.
Olusanya”) and Elizabeth Varghese, M.D. (“Dr. Varghese”), and Tyler’s Global Assessment
of Functioning (“GAF”)1 scores as assessed by various Metrocare staff members.2
A
Generally, controlling weight is assigned to a treating physician’s opinions that are
well-supported by medically acceptable clinical and laboratory diagnostic techniques and are
not inconsistent with other substantial evidence in the record. Newton v. Apfel, 209 F.3d 448,
455 (quoting Martinez, 64 F.3d at 176) (internal quotation marks omitted); see also 20 C.F.R.
1
“GAF is a standard measurement of an individual’s overall functioning level ‘with
respect only to psychological, social, and occupational functioning.’” Boyd v. Apfel, 239
F.3d 698, 700 n.2 (5th Cir. 2001) (quoting Am. Psychiatric Ass’n Diagnostic and Statistical
Manual of Mental Disorders 32 (4th ed. 1994)).
2
Tyler does not challenge the Commissioner’s decision on the ground that the ALJ
failed to follow the proper procedure when rejecting her medical opinion evidence, as
required by 20 C.F.R. § 404.1527(c). Although Tyler disagrees with the ALJ’s rejection of
the opinion evidence, she waived the issue in this court when she “elected to for[]go [the
issue] for economy.” P. Reply 6.
-6-
§ 404.1527(c)(2) (“If we find that a treating source’s opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight.”). “The ALJ may give little or no
weight to a treating source’s opinion, however, if good cause is shown.” Ranes v. Astrue,
2009 WL 2486037, at *9 (N.D. Tex. Aug. 14, 2009) (Fitzwater, C.J.) (citing Newton, 209
F.3d at 455-56). “Good 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 (citations omitted).
The ALJ stated that, to determine Tyler’s RFC, he relied on “objective medical
evidence, the relevant hearing testimony, and the opinion evidence to the extent credible.”
R. 78. As to the opinion evidence, the ALJ gave “little weight” to the opinions of Drs.
Olusanya and Varghese, and to various GAF scores in Tyler’s medical records, finding that
they contradicted both objective medical evidence in the record and Tyler’s subjective
allegations of her symptoms. R. 77. The ALJ did not consider state agency assessments of
Tyler’s condition after Tyler invoked her right to cross-examine the state’s consultants who
completed the assessments, and the ALJ did not give an opportunity for cross-examination.
These comprised the only opinion evidence in the record.
Dr. Olusanya completed two statements assessing the effects of Tyler’s physical
impairments—one in April 2013 and the other in February 2014. Dr. Olusanya based his
-7-
2013 statement on his diagnoses of back pain, chronic pain, insomnia, hypertension, diabetes
mellitus, and anxiety. In the statement, he opined that Tyler could neither sit nor stand for
more than 30 minutes at a time, nor could she be in either position for more than two hours
total during an eight-hour work day. Dr. Olusanya estimated that Tyler would require
approximately three hours of rest during an eight-hour work day for pain management and
fatigue.3 Tyler’s impairments would also require that both legs be elevated to her waist level
while sitting to facilitate circulation and minimize pain. And Dr. Olusanya opined that Tyler
should rarely or never lift or carry any weight, nor should she reach with either arm. She
should only occasionally “grasp” or “finger” with either hand. R. 536.
Dr. Olusanya’s 2014 statement, provided on a form from the Texas Health and Human
Services Commission, largely confirmed his prior assessment. He reiterated that any
working activities must be done with frequent breaks, and, at most, Tyler could spend a total
of two hours on a given activity (e.g., sitting). Unlike Dr. Olusanya’s 2013 statement,
however, his 2014 statement cited only back pain as a disabling diagnosis. And Dr.
Olusanya opined that Tyler could lift up to 10 pounds, contrary to the 2013 statement
determining she could not lift any weight.
The ALJ found that these opinions were unsupported by substantial evidence and were
“completely inconsistent with [Dr. Olusanya’s] own objective findings of record.” R. 77.
Referencing Dr. Olusanya’s records from various examinations of Tyler from 2011 through
3
Dr. Olusanya noted, however, that this estimate is difficult to make because “[p]ain
[] is not on a time clock[.]” R. 535.
-8-
2014, the ALJ noted that “Dr. Olusanya’s records are almost entirely normal, particularly
with the claimant’s back, extremity, and lung examination.” R. 77. The ALJ detailed
multiple reports from these examinations in which Dr. Olusanya noted that Tyler complained
of pain, but did not note any physical abnormalities. The ALJ also referenced reports from
other Metrocare physicians in which they observed no physical abnormalities in their
examination of Tyler.
Two months later, on April 18, 2014, Dr. Varghese completed a Medical Assessment
of Ability to Do Work-Related Activities (Mental) (“Mental Assessment”). Dr. Varghese
found that Tyler exhibited clinical signs of mental illness, including low energy and chronic
depression. According to Dr. Varghese, Tyler’s mental illness resulted in a substantial loss
in her ability to work consistently without an unreasonable number of breaks and to cope
with normal work stress without exacerbating her pathologically- and psychologically-based
symptoms. Dr. Varghese’s Mental Assessment also concluded that Tyler experienced some
loss in her ability to remain reliably punctual and maintain regular attendance, maintain
concentration and attention for two hours, make simple work-related decisions, ask simple
questions, accept instructions and respond appropriately to criticism, get along with
coworkers or peers, maintain personal appearance, and behave in an emotionally stable
manner. Dr. Varghese estimated that Tyler’s impairments and symptoms would result in
Tyler’s missing about three days of work per month. The assessment further noted that
Tyler’s mental disorders “probably do exacerbate the degree of disability this patient
experiences from his/her physical impairments.” R. 786.
-9-
The ALJ also gave “little weight” to the Mental Assessment, finding that it also
contradicted other evidence in the record. As support, he noted that Tyler “told her providers
at Metrocare throughout the record that she is stable, has a good mood, and has no
psychiatric symptoms when she is taking her medications as prescribed.” R. 77.
Tyler’s low GAF scores comprised the final piece of opinion evidence, to the extent
that the scores could be considered opinion evidence. The ALJ gave “little weight” to the
GAF scores, citing a general unreliability and “conceptual lack of clarity” in all GAF scores.
R. 78.
B
Tyler maintains that, because the ALJ rejected or excluded all medical opinion
evidence in the record, he impermissibly drew medical conclusions from the available
objective evidence in the record. The Commissioner responds that the ALJ was entitled to
establish Tyler’s RFC without any opinion evidence because the determination of RFC is an
administrative, rather than medical, assessment.
The ALJ is solely responsible for determining RFC at the hearing stage. Ripley, 67
F.3d at 557 (citing 20 C.F.R. § 404.1546). This responsibility, however, does not permit the
ALJ to draw medical conclusions; his inquiry is limited to a legal determination of the RFC
based on the record. Williams v. Astrue, 355 Fed. Appx. 828, 831-32 (5th Cir. 2009) (per
curiam) (citing Ripley, 67 F.3d at 557-58) (“[T]he ALJ impermissibly relied on his own
medical opinions as to the limitations presented by [various diagnoses] to develop his factual
finding.”). And while the ALJ is free to reject medical opinions that contradict or are
- 10 -
unsupported by objective evidence, it is error to “mak[e] the RFC determination after
rejecting the only medical opinions in the record that addressed the effect of [the claimant’s]
. . . impairments on [her] ability to work.” Fitzpatrick v. Colvin, 2016 WL 1258477, at *7
(N.D. Tex. Mar. 31, 2016) (Fitzwater, C.J.) (citing Thornhill v. Colvin, 2015 WL 232844,
at *10 (N.D. Tex. Dec. 15, 2014) (Horan, J.), rec. adopted, 2015 WL 232844 (N.D. Tex. Jan.
16, 2015) (Lynn, J.)). Such a determination necessarily involves the ALJ’s substitution of
his own medical opinion for those he dismissed. See id. “While the ALJ may choose to
reject medical sources’ opinions, he cannot then independently decide the effects of
Plaintiff’s . . . impairments on her ability to perform work-related activities, as that is
prohibited by Ripley[.]” Thornhill, 2015 WL 232844, at *10 (citing Ripley, 67 F.3d at
557-58).4
4
In Ripley the Fifth Circuit explained:
[the] ALJ is responsible for determining an applicant’s residual
functional capacity. After considering the evidence, however,
we conclude that the ALJ’s determination . . . was not supported
by substantial evidence. The record includes a vast amount of
medical evidence establishing that Ripley has a problem with his
back. What the record does not clearly establish is the effect
Ripley’s condition had on his ability to work . . . . The
Commissioner argues that the medical evidence substantially
supports the ALJ’s conclusion. In making this argument, the
Commissioner points to reports discussing the extent of Ripley’s
injuries. Without reports from qualified medical experts,
however, we cannot agree that the evidence substantially
supports the conclusion that Ripley was not disabled because we
are unable to determine the effects of Ripley’s conditions . . . on
his ability to perform sedentary work.
- 11 -
In this case, the ALJ gave little weight to, and ultimately rejected, all of the opinion
evidence in the record that could be considered. The ALJ appears to have considered some
of the treating physicians’ diagnoses in concluding that Tyler can “occasionally lift/carry 20
pounds, frequently lift/carry 10 pounds, stand and/or walk for 6 hours in an 8-hour workday,
and sit for 6 hours in an 8-hour workday . . . and can understand, remember, and carry out
only simple tasks and instructions.” R. 64. But other than the treating physicians’ opinions
and the GAF scores (all of which the ALJ rejected), the record lacks any medical evidence
to support a determination that Tyler can perform such work despite her physical and mental
impairments. Rather, the record only contains objective medical records and test results, and
Tyler’s subjective allegations. Accordingly, the court concludes that the ALJ impermissibly
relied on his own medical opinion to develop his RFC determination. See, e.g., Williams,
355 Fed. Appx. at 832, n.6 (citing Ripley, 67 F.3d at 557) (“In Ripley, we held that an ALJ
may not—without opinions from medical experts—derive the applicant’s [RFC] based solely
on the evidence of [the applicant’s] 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.”). Because the ALJ erred by making an RFC determination without medical
evidence addressing the effects of Tyler’s impairments on her ability to work, the
Commissioner’s decision is not supported by substantial evidence. See Fitzpatrick, 2016 WL
1258477, at *8.
Ripley, 67 F.3d at 557-58, & n.27.
- 12 -
IV
“The existence of [Ripley] error does not automatically result in reversal of the
Commissioner’s decision.” Id. “Procedural perfection in administrative proceedings is not
required,” and the court “will not vacate a judgment unless the substantial rights of a party
have been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam).
When an ALJ commits a Ripley error, remand “is appropriate only if [the plaintiff] shows
that [she] was prejudiced.” Ripley, 67 F.3d at 557. “Prejudice can be established by showing
that additional evidence would have been produced if the ALJ had fully developed the
record, and that the additional evidence might have led to a different decision.” Id. at n.22.
In this case, the evidence before the ALJ showed that Tyler suffered from both severe
back pain and other physical and mental impairments that, at least in some respects, affected
her ability to work. Given this evidence, the ALJ could have reached a different disability
determination had he fully developed the record and obtained an admissible expert medical
opinion regarding the effects that Tyler’s impairments had on her ability to work.
Accordingly, the court holds that the ALJ’s failure to obtain medical opinion evidence
regarding the effects of Tyler’s imparments prejudiced her and warrants vacating and
remanding the Commissioner’s decision for further proceedings consistent with this
memorandum opinion. See Thornhill, 2015 WL 232844, at *11; see also Johns v. Colvin,
2015 WL 1428535, at *20 (N.D. Tex. Mar. 30, 2015) (Ramirez, J.).
- 13 -
*
*
*
For the foregoing reasons, the Commissioner’s decision is VACATED and this matter
is REMANDED for further proceedings consistent with this memorandum opinion.
December 20, 2016.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
- 14 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?