Crockett v. Commissioner of Social Security

Filing 26

Memorandum Opinion and Order: The final decision of the Commissioner is AFFIRMED. (Ordered by Magistrate Judge Rebecca Rutherford on 3/12/2018) (axm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PREMELLA CROCKETT,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social
Security Administration,
Defendant.

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No. 3:16-CV-2780-BT

MEMORANDUM OPINION AND ORDER
Plaintiff Premella Crockett brings this action for judicial review of the
final decision of the Acting Commissioner of the Social Security
Administration (“Commissioner”) denying her claims for disability
insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act, pursuant to Title 42, United States Code,
Section 405(g). For the following reasons, the final decision of the
Commissioner is AFFIRMED.
BACKGROUND
Plaintiff alleges that she is disabled due to arthritis and high blood
pressure. Tr. 213 [ECF No. 16-7]. After her application was denied initially
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and upon reconsideration, a hearing was held on August 12, 2014, in Dallas,
Texas, before an Administrative Law Judge (the “ALJ”). Tr. 32 [ECF No. 163]. Plaintiff was born on March 16, 1956 and was 58 years old at the time of
the hearing. Tr. 36-37 [ECF No. 16-3]. Plaintiff has a high school education.
Tr. 37 [ECF No. 16-3]. Plaintiff testified at her hearing that she takes care of
her own personal care such as dressing, bathing, and grooming without
assistance from others. Tr. 49 [ECF No. 16-3]. Plaintiff also testified that
she does the dishes and small loads of laundry. Tr. 49 & 54 [ECF No. 16-3].
Plaintiff has past work experience as a customer service
representative. Tr. 56 [ECF No. 16-3]. Plaintiff testified that in 2014, she
applied for customer service jobs at Borden’s, Comcast, and Kroger’s. Tr. 50
[ECF No. 16-3]. Plaintiff also received unemployment benefits from the
state of Texas from January 1, 2012 through March 31, 2013. Tr. 38-39
[ECF No. 16-3]. Plaintiff was advised at her hearing that in order to receive
unemployment benefits, she must be able to work, but that in order to
obtain disability benefits, she must be unable to work. Tr. 38 [ECF No. 163]. After this discussion, Plaintiff amended her alleged onset date from
April 1, 2011 to April 1, 2013. Tr. 18 & 39 [ECF No. 16-3]; Tr. 62 [ECF No.
16-4].
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On March 27, 2015, the ALJ issued his decision finding that Plaintiff
has not been under a disability within the meaning of the Social Security
Act from April 1, 2013 through the date of his decision. Tr. 23 [ECF No. 163]. The ALJ determined that there were no clinical signs or laboratory
findings to substantiate the existence of a severe impairment. Tr. 21 [ECF
No. 16-3]. Plaintiff appealed the ALJ’s decision to the Appeals Council and
on August 10, 2016, the Appeals Council affirmed the ALJ’s decision. Tr. 1
[ECF No. 16-3]. Plaintiff filed this action in federal district court on
September 30, 2016. Compl. [ECF No. 1].
LEGAL STANDARDS
A claimant must prove that she 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 medicallydeterminable 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).
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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 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); 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
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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)).
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 is supported by substantial
evidence and to whether the proper legal standards were utilized.
Greenspan, 38 F.3d at 236 (citing 42 U.S.C. §§ 405(g), 1383(c)(3)). An
“ALJ’s decision is not subject to reversal, even if there is substantial
evidence in the record that would have supported the opposite conclusion,
so long as substantial evidence supports the conclusion that was reached by
the ALJ.” Corpany v. Colvin, 2014 WL 1255316, at *9 (N.D. Tex. Mar. 26,
2014) (citing Dollins v. Astrue, 2009 WL 1542466, at *5 (N.D. Tex. June 2,
2009)). 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 be more than a scintilla, but it need not be a
preponderance.” Leggett, 67 F.3d at 564. The reviewing court does “not
reweigh the evidence, try the issues de novo, 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.
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“Absent an error that affects the substantial rights of a party,
administrative proceedings do not require ‘procedural perfection.’” Wilder
v. Colvin, 2014 WL 2931884, at *5 (N.D. Tex. June 30, 2014) (quoting
Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012)). “The ALJ is not
required to discuss every piece of evidence in the record nor must the ALJ
follow formalistic rules of articulation.” Hunt v. Astrue, 2013 WL 2392880,
at *7 (N.D. Tex. June 3, 2013) (citing Castillo v. Barnhart, 151 F. App’x 334,
335 (5th Cir. 2005)); see also Falco v. Shalala, 27 F.3d 160, 164 (5th Cir.
1994) (“That [the ALJ] did not follow formalistic rules in her articulation
compromises no aspect of fairness or accuracy that her process is designed
to ensure.”). “Procedural errors affect the substantial rights of a claimant
only when they ‘cast into doubt the existence of substantial evidence to
support the ALJ’s decision.’” Wilder, 2014 WL 2931884, at *5 (quoting
Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988)). “Remand is required
only when there is a realistic possibility that the ALJ would have reached a
different conclusion absent the procedural error.” Id. (citing January v.
Astrue, 400 F. App’x 929, 933 (5th Cir. 2010)).

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ANALYSIS
Plaintiff contends that the ALJ erroneously failed to find that Plaintiff
had a medically determinable and severe impairment, despite the fact that
x-rays demonstrated degenerative joint disease, clinical evidence upon
examination showed tenderness, and Plaintiff was treated with naproxen,
an anti-arthritis medication. Pl.’s Br. 8-9 [ECF No. 20]. Plaintiff argues
that, although she incorrectly testified at her hearing that she was
diagnosed with rheumatoid arthritis, her confusion about the precise
diagnosis did not relieve the ALJ of his obligation to evaluate the effects of
all of her medically determinative impairments. Pl.’s Br. 9 [ECF No. 20].
Plaintiff argues that there is clear evidence that she has degenerative joint
disease, also known as degenerative arthritis or osteoarthritis. Pl.’s Br. 9
[ECF No. 20]. Plaintiff further argues that, although the record only
contains four medical record exhibits, including some pertaining to the
time period prior to the amended onset date of April 1, 2013, this was due
in part to her treating physician not submitting medical records and also in
part due to Plaintiff not having sufficient funds for treatment. Pl.’s Br. 11
[ECF No. 20].

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Plaintiff argues that the ALJ also erred by failing to assist Plaintiff in
obtaining a consultative examination to evaluate her work-related
limitations, given that she does not have medical insurance. Pl.’s Br. 11
[ECF No. 20]. Plaintiff states that the agency’s medical consultants limited
Plaintiff to the performance of light work but found that there was
insufficient evidence to determine the severity of her alleged arthritis. Pl.’s
Br. 12 [ECF No. 20]. Plaintiff argues that the ALJ has an absolute obligation
to develop a full and fair record and that it is reversible error for him not to
order a consultative examination when it is necessary for him to make an
informed decision. Pl.’s Br. 12-13 [ECF No. 20]. Plaintiff also points out that
her counsel asked the ALJ to schedule a consultative examination to
evaluate her rheumatoid arthritis and that the ALJ stated in his decision
that he did not grant the request because he did not see sufficient evidence
of rheumatoid arthritis, but this was based on Plaintiff’s misunderstanding
of her diagnosis. See Pl.’s Br. 14 [ECF No. 20]; Tr. 18 [ECF No. 16-3] & 255
[ECF No. 16-7]. Plaintiff argues that her testimony, x-rays, prescribed
medications, and subjective complaints all establish that she has arthritis,
and that the nature of the error here can only be addressed by remanding
the case for further proceedings. Pl.’s Br. 14 [ECF No. 20].
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In response, the Commissioner argues that the ALJ’s decision shows
that he thoroughly considered the medical evidence and appropriately
assessed Plaintiff’s impairments. Def.’s Br. 4 [ECF No. 21]. The
Commissioner argues that, while Plaintiff contends that the objective
medical evidence shows that her arthritis was a medically determinable
impairment, the objective evidence that Plaintiff alleges that the ALJ
ignored was specifically detailed by the ALJ in his decision. Def.’s Br. 4
[ECF No. 21]; Tr. 21-23 [ECF No. 16-3]. For example, the Commissioner
argues that, while Plaintiff contends that an x-ray of her hip, one notation
of tenderness during a physical examination, and a prescription for
naproxen all proved that her arthritis was a medically determinable
impairment, the ALJ specifically noted that Plaintiff’s “single complaint of
unspecified chronic pain in January 2014,” and an x-ray of Plaintiff’s hip
finding degenerative joint disease did not suffice to meet the 12 month
durational requirement for severity. Def.’s Br. 4 [ECF No. 21]; Tr. 22-23
[ECF No. 16-3]. The Commissioner points out that Plaintiff does not
dispute the ALJ’s finding that her complaint does not meet the 12 month
durational requirement. Def.’s Br. 4-5 [ECF No. 21].

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The Commissioner further argues that, while Plaintiff contends that
there is no dispute that the medical evidence shows the existence of
degenerative joint disease, with the exception of Plaintiff’s January 2014
complaint of pain, the other medical evidence only shows minor pain
complaints and no physical examination findings. Def.’s Br. 5 [ECF No. 21].
The Commissioner also argues that, while Plaintiff attempts to explain the
lack of objective evidence by her inability to afford treatment, Plaintiff
testified that she received free or low cost treatment at the Dallas County
hospital, Parkland Hospital, but complained that it took a long time to get
an appointment. Def.’s Br. 6 [ECF No. 21]; Tr. 46-47 [ECF No. 16-3]. The
Commissioner argues that, considering that most of Plaintiff’s medical
records were from Parkland Hospital, she was clearly able to be seen there,
and regardless of the issue of ability to afford treatment, there is no
evidence showing that Plaintiff is disabled with or without treatment. Def.’s
Br. 6 [ECF No. 21]. The Commissioner also argues that the ALJ did not err
by denying Plaintiff’s request for a consultative examination, because there
is no indication that the medical evidence was inadequate or that he lacked
sufficient facts to make a determination. Def.’s Br. 7-8 [ECF No. 21]. The
Commissioner argues that the dearth of evidence supporting Plaintiff’s
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scattered complaints of pain was not due to lack of treatment, but rather,
Plaintiff did not have any pain complaints at most of her medical
appointments. Def.’s Br. 8 [ECF No. 21].
In her reply, Plaintiff argues that she never stated that the ALJ
ignored the evidence related to her degenerative arthritis, but rather that,
despite acknowledging the evidence supporting the existence of
degenerative arthritis, the treatment Plaintiff was able to receive through
the free clinic, and Plaintiff’s descriptions of her limitations, the ALJ erred
by failing to find that this impairment was “medically determinable” or
“severe.” Reply 1-2 [ECF No. 22]. Plaintiff also argues that the deficiency in
this case was not that Plaintiff was completely unable to obtain treatment,
but rather that there was an absence of medical opinion supporting the
ALJ’s conclusion that the evidence was insufficient to support more than
minimal work related limitations. Reply 4 [ECF No. 22]. Plaintiff further
argues that the ALJ’s decision to deny the request for a consultative
examination does not explain why the ALJ did not schedule a medical
expert to testify at the hearing, return the case record to the state agency for
review of the updated record by a medical consultant, or ask for additional
information from Plaintiff’s treating sources. Reply 5 [ECF No. 22].
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It is Plaintiff’s burden to demonstrate that she has a medically
determinable severe impairment. See Leggett, 67 F.3d at 564. As the
Commissioner argues, the evidence shows that Plaintiff was able to obtain
treatment from Parkland Hospital, but that Plaintiff had to wait to get an
appointment. Therefore, the lack of treatment records supports the ALJ’s
conclusion that Plaintiff did not experience the severity of symptoms as
alleged, otherwise, she would have sought additional treatment, whether or
not the additional treatment required a wait. Furthermore, while Plaintiff
argues that the lack of medical records was also due, in part, to her
physician’s failure to submit the records, Plaintiff’s counsel sought
additional time after the hearing to obtain additional medical records, and
Plaintiff does not explain why her counsel could not have similarly obtained
the missing records. See Tr. 256 [ECF No. 16-7]; Banks v. Colvin, 2014 WL
4660847, at *6 n.4 (M.D. La. Sept. 17, 2014) (“While the ALJ has a duty to
fully and fairly develop the record, the ‘claimant has the burden of proof in
establishing his disability. If the claimant does not provide sufficient
evidence, the ALJ must make a decision based on the available evidence.’ . .
. It was Plaintiff’s burden to prove he was disabled. At the request of
Plaintiff’s attorney, the ALJ agreed to hold the record open for two
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additional weeks after the hearing for Plaintiff to submit these records, yet
Plaintiff failed to provide these records. Considering this, the ALJ was
under no obligation to obtain more medical records from [plaintiff’s
doctor].”) (quoting Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir.
1989); citing Ripley v. Chafer, 67 F.3d 552, 557 (5th Cir. 1995))).
Plaintiff testified at her hearing that in 2014, she applied to customer
service jobs at Borden’s, Kroger’s, and Comcast, and also that she would
have accepted any job offers. Tr. 38 & 50 [ECF No. 16-3]. Plaintiff also
testified that she received unemployment benefits from January 1, 2012
through March 31, 2013, and amended her initial onset date from April 1,
2011 to April 1, 2013, only after being advised at the hearing that, in order
to obtain unemployment benefits, Plaintiff must be able to work, and that
in order to obtain disability benefits she must be unable to work. Tr. 38-39
[ECF No. 16-3]. This testimony tends to support the ALJ’s conclusion that
Plaintiff was not in fact disabled and was able to work. In addition, as the
Commissioner argues, the ALJ was not required to order a consultative
examination if he did not find that the medical evidence was inadequate or
that he lacked sufficient facts to make a determination. Furthermore, the
Court notes that it was Plaintiff’s counsel who specifically requested a
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consultative examination for the purpose of evaluating Plaintiff’s
rheumatoid arthritis in a letter dated August 20, 2014. Tr. 255 [ECF No. 167]. With respect to Plaintiff’s contention that the state agency consultants
did not find that the record contained sufficient evidence to determine the
severity of her alleged arthritis, as the Commissioner argues, the ALJ
discussed the evidence that Plaintiff contends supports her allegation of
degenerative arthritis, but determined that this evidence did not support a
finding of severe impairment. Moreover, the state agency consultants
specifically stated that Plaintiff’s “allegations are not fully supported by [the
evidence of record] on file.” Tr. 65 &89 [ECF No. 16-4].
As previously discussed, the Court’s task here is to scrutinize the
record as a whole to determine whether substantial evidence is present, and
the “ALJ’s decision is not subject to reversal, even if there is substantial
evidence in the record that would have supported the opposite conclusion,
so long as substantial evidence supports the conclusion that was reached by
the ALJ.” Corpany, 2014 WL 1255316, at *9; Greenspan, 38 F.3d at 236.
Furthermore, “[p]rocedural errors affect the substantial rights of a claimant
only when they ‘cast into doubt the existence of substantial evidence to
support the ALJ’s decision,’” and “[r]emand is required only when there is a
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realistic possibility that the ALJ would have reached a different conclusion
absent the procedural error.” Wilder, 2014 WL 2931884, at *5 (quoting
Morris, 864 F.2d at 335; citing January, 400 F. App’x at 933). The Court
concludes that any alleged procedural errors do not cast into doubt the
existence of substantial evidence to support the ALJ’s decision. There is not
a realistic possibility that the ALJ would have reached a different
conclusion, and substantial evidence supports the ALJ’s decision.
CONCLUSION
For the foregoing reasons, the final decision of the Commissioner is
AFFIRMED.
SO ORDERED.
March 12, 2018.
_____________________
REBECCA RUTHERFORD
U.S. MAGISTRATE JUDGE

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