Kinchen v. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER: Plaintiff's Motion for Summary Judgment, Doc. 21 , is DENIED, the Commissioner's Motion for Summary Judgment, Doc. 22 , is GRANTED, and the Commissioner's decision is AFFIRMED. (Ordered by Magistrate Judge Renee Harris Toliver on 7/20/2017) (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
FELICIA ANN KINCHEN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security Administration,
Defendant.

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Civil Action No. 3:16-CV-1102-BK

MEMORANDUM OPINION AND ORDER
The parties have consented to proceeding before the magistrate judge. Doc. 14.
Now before the Court are the parties’ cross motions for summary judgment. Doc. 21;
Doc. 22. For the reasons that follow, Plaintiff’s Motion for Summary Judgment is
DENIED, and the Commissioner’s Motion for Summary Judgment is GRANTED.
I. BACKGROUND
A.

Procedural History
Plaintiff Felicia Ann Kinchen seeks judicial review of a final decision by the

Commissioner denying her application for disability insurance benefits and supplemental
security income payments under the Social Security Act (“the Act”). In July 2012,
Plaintiff filed for benefits, alleging disability beginning June 2, 2011. Doc. 15-7 at 24,
29. Plaintiff later amended her disability onset date to December 25, 2011. Doc. 15-3 at
39. Her application subsequently was denied at all administrative levels. Doc. 15-3 at 2,
25.

B.

Factual Background
Plaintiff was 37 years old on her amended disability onset date. Doc. 15-3 at 42.

She attended high school until the ninth grade and has past relevant work as a caregiver,
nurse aide, quality control inspector, and sitter. Doc. 15-7 at 30.
From about 2010 through 2012, Plaintiff was primarily treated by Dr. Vivian
Okechukwu, M.D., who saw her for a variety of ailments, including, inter alia, back pain,
diabetes, and hypertension. Doc. 16-7 at 25; Doc. 16-5 at 31; Doc. 16-6 at 19; Doc. 16-7
at 21. In November 2012, Dr. Okechukwu completed a one-page “Medical
Release/Physician’s Statement” check-mark form, opining that Plaintiff was unable to
work due to her morbid obesity and diabetes, and that her disability, though not
permanent, was expected to last more than six months. Doc. 15-7 at 78.
In September 2012, Dr. Kimberly Hewitt, M.D., completed a physical Residual
Functional Capacity (“RFC”) assessment in which she concluded that Plaintiff could
lift/carry 50 pounds occasionally and 25 pounds frequently, and stand/walk/sit for six
hours in an eight-hour workday. Doc. 16-7 at 9. Dr. Hewitt’s findings were affirmed in
June 2013 by Dr. Robin Rosenstock, M.D. Doc. 16-7 at 64.
Later that month, Dr. Jim Cox, Ph.D., completed a mental RFC assessment,
opining that Plaintiff “retains [the] capacity to understand, remember and carry out
detailed but not complex instructions, make simple decisions, attend and concentrate for
extended periods, accept instructions and respond appropriately to changes in routine
work settings.” Doc. 16-7 at 60-62. In May 2014, Plaintiff was treated by Dr. Gary
Worth, M.D., complaining of memory problems following a car accident. Doc. 16-11 at
50. Dr. Worth found no suicidal or homicidal ideation and diagnosed Plaintiff with
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schizoaffective disorder, social phobia, posttraumatic stress disorder, and rule out
schizophrenia. Doc. 16-11 at 50.1
At the hearing before the ALJ, Plaintiff testified that she cannot work because she
“[does not] like people,” Doc. 15-3 at 44; cannot finish tasks, listen, concentrate, follow
verbal instructions, or handle stress well, Doc. 15-3 at 44, 47; experiences pain over
“pretty much [her] whole body,” Doc. 15-3 at 45; has numbness and tingling in her hands
and legs, Doc. 15-3 at 45; and has difficulty lifting, sleeping, and standing for long
periods of time, Doc. 15-3 at 46.
C.

The ALJ’s Findings
In November 2014, the ALJ denied Plaintiff’s application for benefits, finding

that Plaintiff had the RFC to lift and carry 20 pounds occasionally and ten pounds
frequently, and “mentally, she can understand, remember and carry out only simple
tasks.” Doc. 15-3 at 17, 20. Additionally, the ALJ determined that while Plaintiff
“cannot interact with the general public or work in coordination/cooperation with
coworkers to complete work tasks[, s]he can interact with supervisors occasionally during
the workday.” Doc. 15-3 at 20. The ALJ found that Plaintiff could not return to her past
work, but she could perform other work in the national economy and thus was not
disabled. Doc. 15-3 at 24-25.

1

This list of diagnoses results from cross-referencing the diagnostic codes (295.70,
300.23, and 309.81) contained in the Assessment portion of Dr. Worth’s treatment notes,
with the International Classification of Diseases, Ninth Revision, Clinical Modification
(“ICD-9-CM”) system. Available at
https://www.cms.gov/Medicare/Coding/ICD9ProviderDiagnosticCodes/codes.html.
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II. LEGAL STANDARD
An individual is disabled under the Act if, inter alia, she is unable “to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment” which lasts or can be expected to last for at least 12 months. 42
U.S.C. § 423(d)(1)(A). The Commissioner uses the following sequential five-step
inquiry to determine whether a claimant is disabled: (1) an individual who is working and
engaging in substantial gainful activity is not disabled; (2) an individual who does not
have a “severe impairment” is not 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 her past
work, a finding of “not disabled” must be made; and (5) if an individual’s impairment
precludes her from performing her past work, other factors including age, education, past
work experience, and residual functional capacity must be considered to determine if any
other work can be performed. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (per
curiam) (summarizing 20 C.F.R. §§ 404.1520(b)-(f), 416.920(b)-(f)).
Under the first four steps of the analysis, the burden of proof lies with the
claimant. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). The analysis terminates if
the Commissioner determines at any point during the first four steps that the claimant is
disabled or is not disabled. Id. If the claimant satisfies her burden under the first four
steps, the burden shifts to the Commissioner at step five to show that there is other
gainful employment available in the national economy that the claimant can perform.
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). This burden may be satisfied
either by reference to the Medical-Vocational Guidelines of the regulations, expert
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vocational testimony, or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304
(5th Cir. 1987).
Judicial review of the Commissioner’s denial of benefits is limited to whether the
Commissioner’s position is supported by substantial evidence and whether the
Commissioner applied proper legal standards in evaluating the evidence. Greenspan, 38
F.3d at 236; 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla, less than
preponderance, and is such relevant and sufficient evidence as a reasonable mind might
accept as adequate to support a conclusion. Leggett, 67 F.3d at 564. Under this standard,
the reviewing court does not reweigh the evidence, retry the issues, or substitute its own
judgment, but rather, scrutinizes the record to determine whether substantial evidence is
present. Greenspan, 38 F.3d at 236.
III. ARGUMENT
Plaintiff’s sole claim is that the ALJ’s RFC determination failed to take into
account all of her limitations, arguing that she is “significantly more limited” than the
ALJ concluded and “unable to perform light work or basic work related mental functions
a [sic] sustained basis.” Doc. 21-1 at 4-5. In support, Plaintiff points to (1) her hearing
testimony, (2) the diagnoses and symptoms reported in her medical records, and (3) Dr.
Okechukwu’s check-box opinion that Plaintiff is disabled and unable to work for six
months. Doc. 21-1 at 5-7.
The Commissioner argues that the ALJ’s RFC determination is supported by
substantial evidence. Doc. 22 at 9. Specifically, the Commissioner contends that the
ALJ properly (1) considered the opinions of Drs. Hewitt, Rosenstock, and Cox, (2)
considered Plaintiff’s medical record, and (3) discounted Dr. Okechukwu’s statement.
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Doc. 22 at 10-16. The Commissioner thus concludes that, in the absence of reversible
error, remand is not required. Doc. 22 at 17.
IV. ANALYSIS2
In support of her motion, Plaintiff primarily cites her hearing testimony, as well as
her subjective complaints noted in the medical records – essentially asking the Court to
find that such evidence supports her disability claim. Doc. 21-1 at 5-7. As a preliminary
matter, however, the Court notes that it is tasked not with reweighing the evidence, or
determining whether evidence supports Plaintiff’s disability claim, but with determining
whether the ALJ’s decision is supported by substantial evidence. Newton v. Apfel, 209
F.3d 448, 452 (5th Cir. 2000). Upon review of the record evidence in this case, the Court
finds that the ALJ’s RFC determination is supported by substantial evidence –
irrespective of whether this Court would have reached the same conclusion.
The RFC is an assessment, based upon all of the relevant evidence, of a
claimant’s ability to work, despite her impairments. 20 C.F.R. § 404.1545(a). Stated
differently, it is the most a claimant can do, notwithstanding her physical and mental

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The parties should note that in considering their summary judgment arguments, the
Court has relied upon the parties’ assessment of and citation to the evidence of record.
The Court is not under any obligation to probe the record to find supporting evidence for
one side or the other. See FED. R. CIV. P. 56 (the movant and opponent of a motion for
summary judgment must support their positions by “citing to particular parts of materials
in the record”); Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.
2006) (the court has no obligation under Rule 56 “to sift through the record in search of
evidence to support a party’s opposition to summary judgment”) (quotation omitted).
Additionally, to aid in the efficient resolution of social security appeals, the Court
requests that, in the future, counsel for both parties list the ECF document and page
numbers, rather than the transcript page numbers, when citing to the administrative
record in their briefs.
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limitations. Id. The RFC is considered by the ALJ, along with the claimant’s age,
education, and work experience, in determining whether the claimant can work. 20
C.F.R. § 404.1520(f). The RFC determination falls solely to the ALJ, who alone is
responsible for resolving any conflicts in the evidence. See Chambliss v. Massanari, 269
F.3d 520, 522 (5th Cir. 2001) (per curiam). A finding of no substantial evidence is
appropriate only if there is a conspicuous absence of credible evidentiary choices or no
contrary medical findings. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (per
curiam).
A.

The ALJ’s Physical RFC Determination
The Court finds that the ALJ’s physical RFC determination is supported by

substantial evidence. First, the ALJ considered and discussed Plaintiff’s medical records,
giving great weight to the opinions of Drs. Hewitt and Rosenstock, the only physicians to
opine on Plaintiff’s physical work-related abilities, both of whom concluded that Plaintiff
was not disabled. Doc. 15-3 at 23; see Doc. 16-7 at 8-15, 64. Specifically, both found
that Plaintiff can (1) lift/carry 50 pounds occasionally and 25 pounds frequently, i.e.
perform medium work; and (2) stand/sit/walk for six hours in an eight-hour workday.
Doc. 16-7 at 9-12, 64.
At the hearing, Plaintiff alleged difficulties lifting/carrying objects, specifically
noting an inability to lift/carry her infant granddaughter without experiencing pain. Doc.
15-3 at 46. Giving Plaintiff’s testimony “all benefit of the doubt,” the ALJ rejected the
doctors’ lift/carry assessment and determined that Plaintiff could only lift 20 pounds
occasionally and 10 pounds frequently, i.e. perform light work. Doc. 15-3 at 23. This
determination takes into account Plaintiff’s allegations and comports with her medical
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records and the various examinations where she denied any weakness, and/or was found
to have normal range of motion, strength, and gait.3
To the extent Plaintiff argues that the ALJ erred in failing to specifically discuss
Dr. Okechukwu’s opinion denoted by check-mark, any such error does not undermine the
ALJ’s RFC determination. While the opinion of a treating physician is generally
afforded considerable weight, a statement by a medical source that a claimant is
“disabled” or “unable to work” is not a medical opinion entitled to deference, but rather a
legal conclusion “reserved to the Commissioner.” Frank v. Barnhart, 326 F.3d 618, 620
(5th Cir. 2003) (per curiam); see 20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), (3).
Dr. Okechukwu opined only that Plaintiff was unable to work and that her disability,
while not permanent, was expected to last for more than six months. Doc. 15-7 at 78.
These statements are precisely the type that an ALJ need not credit. Frank, 326 F.3d at
620. Thus, any error by the ALJ was harmless. See Morris v. Bowen, 864 F.2d 333, 335
(5th Cir. 1988) (per curiam) (noting that remand is required only if the error “cast[s] into
doubt the existence of substantial evidence to support the ALJ’s decision”).
B.

The ALJ’s Mental RFC Determination
Similarly, the ALJ’s mental RFC determination is supported by substantial

evidence. In his decision, the ALJ considered and discussed Plaintiff’s mental health

3

See Doc. 16-2 at 5-6 (finding full range of motion, full motor strength in all extremities,
and normal gait); 16-3 at 4-5 (denying weakness and finding normal joint range of
motion), 14 (finding normal range of motion), 60 (denying joint erythema, stiffness and
muscle pain); Doc. 16-7 at 20 (denying muscle pain and finding normal range of motion),
28 (finding normal range of motion), 40 (noting normal posture and gait); Doc. 16-11 at
32-33 (denying weakness, joint pain, muscle pain, neck pain, back pain, or joint
swelling/pain).
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treatment records that were obtained from various practitioners. Doc. 15-3 at 22-23. In
particular, he gave great weight to Dr. Cox’s opinion. Doc. 15-3 at 20. Dr. Cox found
that Plaintiff’s mental impairments mildly limited her activities of daily living and
moderately limited her ability to maintain social functioning, concentration, persistence,
or pace. Doc. 16-7 at 56. This included moderate difficulties remembering and
following detailed instructions, performing detailed tasks, interacting with the general
public, and responding to criticism from supervisors. Doc. 16-7 at 60-61. However, in
the narrative section of the assessment, Dr. Cox concluded that Plaintiff “retains [the]
capacity to understand, remember and carry out detailed but not complex instructions,
make simple decisions, attend and concentrate for extended periods, accept instructions
and respond appropriately to changes in routine work settings.” Doc. 16-7 at 62.4
Moreover, the ALJ included these comprehension and interpersonal limitations in
his mental RFC determination when he limited Plaintiff to jobs that (1) require her to
understand, remember, and carry out only simple tasks; and (2) do not require
cooperation/coordination with coworkers, interaction with the general public, or more
than occasional interaction with supervisors during the workday. See Doc. 15-3 at 20, 22,
44; Doc. 16-7 at 62. Given the essentially wholesale incorporation of Dr. Cox’s
assessment into the ALJ’s mental RFC assessment, the Court finds that the RFC is
supported by substantial evidence. See Gipson v. Astrue, No. 10-CV-1413-BK, 2011 WL

As Defendant points out, under the Commissioner’s Program Operations Manual
System (POMS) governing mental limitations, the ALJ must assess a claimant’s RFC by
using this narrative to decide the claimant’s ability to meet the mental demands of work.
Doc. 22 at 16 (citing POMS, DI 25020.010B.1 (available at
<https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010>)).
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540299, at *6 (N.D. Tex. Feb. 11, 2011) (Toliver, J.) (finding the ALJ’s mental RFC
assessment was supported by substantial evidence where it “closely track[ed] the
language in the consultative psychologist’s narrative”) (citing Greenspan, 38 F.3d at 236;
POMS, DI 25020.010B.1).
In summation, the ALJ recognized that Plaintiff’s impairments were severe, but
determined they were not disabling. Doc. 15-3 at 18, 25. While Plaintiff may believe
that her hearing testimony and medical records warrant a more restrictive RFC and/or
finding of disability, as stated previously, the Court can neither reweigh the evidence, nor
substitute its judgment for that of the Commissioner’s. Greenspan, 38 F.3d at 236. The
Court thus concludes that the Commissioner’s decision is supported by substantial
evidence.
IV. CONCLUSION
In light of the foregoing, Plaintiff’s Motion for Summary Judgment, Doc. 21, is
DENIED, the Commissioner’s Motion for Summary Judgment, Doc. 22, is GRANTED,
and the Commissioner’s decision is AFFIRMED.
SO ORDERED on July 20, 2017.

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