Conner v. Berryhill
Filing
20
Memorandum Opinion and Order : The Commissioner's decision is AFFIRMED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 9/17/2018) (ykp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DANNY R. C.,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Civil Action No. 3:17-CV-1682-BH
Consent
MEMORANDUM OPINION AND ORDER
By consent of the parties and the order of transfer dated September 18, 2017 (doc. 15), this
case has been transferred for the conduct of all further proceedings and the entry of judgment.
Based on the relevant filings, evidence, and applicable law, the Commissioner’s decision is
AFFIRMED.
I. BACKGROUND1
Danny R. C. (Plaintiff) seeks judicial review of a final decision by the Commissioner of
Social Security (Commissioner) denying his claims for disability insurance benefits (DIB) under
Title II of the Social Security Act (Act), and for supplemental security income (SSI) under Title XVI
of the Act. (See docs. 1; 17.)
A.
Procedural History
On February 25, 2014, Plaintiff filed his applications for DIB and SSI, alleging disability
beginning on August 1, 2009. (R. at 169-70.) His claims were denied initially on July 22, 2014, and
1
The background information comes from the transcript of the administrative proceedings, which is
designated as “R.”
upon reconsideration on November 4, 2014. (R. at 219, 231.) On December 16, 2014, Plaintiff
requested a hearing before an Administrative Law Judge (ALJ). (R. at 237-38.) He appeared and
testified at a hearing on February 1, 2016. (R. at 139-68.) On March 24, 2016, the ALJ issued a
decision finding him not disabled and denying his claim for benefits. (R. at 68-85.)
Plaintiff timely appealed the ALJ’s decision to the Appeals Council on April 8, 2016. (R.
at 284-88.) The Appeals Council denied his request for review on May 17, 2017, making the ALJ’s
decision the final decision of the Commissioner. (R. at 1-5.) Plaintiff timely appealed the
Commissioner’s decision under 42 U.S.C. § 405(g). (See doc. 1.)
B.
Factual History
1.
Age, Education, and Work Experience
Plaintiff was born on May 21, 1962, and was 53 years old at the time of the hearing. (R. at
79, 146.) He had a limited education and could communicate in English. (R. at 79, 146-47.) He
had past relevant work experience as a home restoration servicer. (R. at 79.)
2.
Medical Evidence2
On January 6, 2010, Allen Chaun, R.N., completed an adult assessment for Plaintiff. (R. at
469.) Plaintiff demonstrated normal behavior and reported pain in his lower back that was at an 8
out of 10. (Id.) It was noted that he had an adequate support system, could perform all activities
of daily living without assistance, and demonstrated the ability and willingness to learn. (Id.) He
was alert, oriented to person, place, and time, able to speak clearly, cooperative, and had appropriate
affect, good eye contact, and normal speech. (Id.)
On November 3, 2013, Plaintiff went to the emergency department at Lake Pointe
2
Because only Plaintiff’s mental impairments are at issue, physical medical evidence is noted only when it
includes information relevant to the mental impairments.
2
Emergency Services complaining of pain in his left knee. (R. at 440.) He reported that he worked
as a carpenter and had been working on his knees with carpet. (Id.) He was diagnosed with a knee
sprain, hypertension, and osteoarthritis. (Id.)
On May 20, 2014, in his Function Report - Adult, Plaintiff reported that he lived with his
girlfriend in a mobile home. (R. at 345.) He stated that he was limited in his ability to work by his
bad back, legs, knees, arms, and hips, as well as nerve damage, bad eyes, “head pain,” shoulder and
hand pain, and depression. (Id.) From the time he woke up until he went to bed, he would watch
television, sit outside, ride in the car with his girlfriend, lay on the sofa, eat, and talk on the phone.
(R. at 346.) His girlfriend helped him take care of cats. (Id.) His conditions affected his sleep
because he was hurting all the time and did not have medications. (Id.) He could dress but it took
time, shower with difficulty, fix his hair and shave while sitting, feed himself, and use the toilet.
(Id.) He wore a leg brace and used a walking cane sometimes. (Id.) His girlfriend did all of the
cooking and cleaning, and he could not prepare meals because it hurt him to stand for long periods
of time. (Id.) He took out the trash and watered plants, which took him about 1-5 minutes, and he
did not need help or encouragement. (Id.) He did not do other house or yard work because of his
bad back, legs, hips, shoulders, knees, and hands. (R. at 348.) He went outside about once or twice
a day, traveled by walking, driving, or riding in a car, and he could go out alone. (Id.) He would
go to the store with his girlfriend but would stay in the car while she did all of the shopping. (Id.)
He was able to pay bills, count change, handle a savings account, and use checkbooks or money
orders. (Id.) He watched television and movies daily, spent time on the phone and watching
television daily, and did not go anywhere on a regular basis. (R. at 349.) He liked to be at home and
alone, did not like being around other people, and did not do much because of his pain. (R. at 350.)
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He stated that his conditions affected his abilities to lift, squat, bend, stand, reach, walk, sit, kneel,
climb stairs, remember, complete tasks, concentrate, use his hands, and get along with others. (Id.)
He thought he could lift 10 pounds, and maybe walk one block before needing a 10-15 minute break.
(Id) Getting up from sitting was hard, climbing stairs caused pain, and he had “running thoughts”
and memory loss. (Id.) He would get upset easily, could pay attention for maybe 5-10 minutes, did
not finish what he started, did not follow written instructions, and would forget spoken instructions.
(Id.) He got along with authority figures okay, had never been fired or laid off from a job due to
problems getting along with others, did not handle stress well, did not handle changes in routine at
all, and feared being home alone. (R. at 351.) He stated that he was in severe pain, sometimes felt
worthless and depressed, felt like he was not a man at times, liked being alone, and would get upset
and mad a lot because he could not do the things he needed to do. (R. at 352.)
On July 8, 2014, Plaintiff saw Ray Rollins, D.O., for an internal medicine consultive
examination. (R. at 447.) He complained of back, knee, shoulder, arm, and hip problems, as well
as sciatica and arthritis. (Id.) He reported that his back went “out on [him] all the time,” and that
he would occasionally fall while walking. (Id.) He had not worked in three years. (R. at 448.)
Plaintiff was positive for headaches, memory loss, depression, mood swings, and heat intolerance.
(Id.) Plaintiff stated that he could do all activities of daily living, and hear and speak well. (R. at
449.) He was alert, cooperative times three, and in no apparent distress. (Id.)
On July 21, 2014, Robert White, a state agency psychological consultant (SAPC), found that
Plaintiff’s medical evidence showed no mental issues or treatment. (R. at 175, 185.) Although
Plaintiff alleged memory loss, depression, concentration issues, not handling stress well, and being
easily upset, he also tended to personal care, chores, and was able to go out alone. (Id.) Dr. White
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found that Plaintiff did not have any mental medically determinable impairments. (R. at 174-75,
184-85.)
On October 14, 2014, Plaintiff completed a second Function Report - Adult. (R. at 372-79.)
He stated that the pain in his legs, feet, back, and shoulders, as well as his off/on depression, limited
his ability to work. (R. at 372.) From the time he woke up until he went to bed, he would sit around
the house, watch television, talk on the phone, walk in the yard, sit on the porch, take a bath, and go
to bed. (R. at 373.) His girlfriend helped him take care of a cat and a dog, and he could not sleep
due to pain. (Id.) He dressed slower due to his conditions. (Id.) His girlfriend did all of the
cooking, but he took out the trash daily when she asked him to. (R. at 374.) He could go out alone,
and shopped in stores. (R. at 375.) He stated that his conditions limited his abilities to lift, squat,
bend, stand, reach, walk, kneel, climb stairs, remember, concentrate, and use his hands. (R. at 377.)
He could walk out to his backyard and back inside the house before needing a 10-15 minute rest
break. (Id.) He did not know how long he could pay attention, did not finish what he started, did
not follow written instructions, and followed spoken instructions until he forgot them. (Id.) He got
along well with authority figures, tried not to get stressed out, and did not like change. (R. at 378.)
He stated that his pain was getting worse everyday. (R. at 379.)
On October 29, 2014, Susan Posey, Psy. D., a SAPC, made findings identical to those of Dr.
White. (See R. at 197-98, 208-09.)
On April 27, 2015, Plaintiff underwent a psychiatric evaluation with Donna J. Haynes,
M.S.N., at Lakes Regional MHMR Center (MHMR). (R. at 495-499.) He stated that he had been
depressed, isolated, in chronic pain, and suffering anhedonia and “amotivation.” (R. at 495.) He
had difficulty falling asleep and would wake up at midnight. (Id.) He averaged about 2-4 hours of
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sleep at night, and his chronic pain kept him up. (Id.) Two of his brothers had passed away in the
previous year. (Id.) He had previously been a heavy drinker. (Id.) He had chronic anxiety and
racing thoughts, but no paranoia, delusions, or “mood lability.” (Id.) He also did not have
homicidal or suicidal ideations, and although he reported that he previously had thoughts that he
would be “better off not here,” he had never made an attempt. (Id.) He was alert, oriented times
four, coherent, and had a logical thought process. (R. at 495, 498.) He appeared sad, was
appropriately dressed, and had appropriate affect, blunted range, appropriate speech, appropriate
behavior, adequate memory, good judgment, normal intellect, and ideas of worthlessness, guilt, and
hopelessness. (R. at 498.) His strengths included family support and involvement, good verbal and
intellectual skills, a history of adequate decision-making, interest in hobbies, insight into his
problem, support from friends, motivation for treatment, and the abilities to care for himself and
others, maintain relationships, participate in treatment, and manage finances. (R. at 498-99.) It was
noted that he was limited in his ability to respond to treatment because he was unemployed. (R. at
499.) He was diagnosed with recurring major depressive disorder, and had a Global Assessment
Functioning (GAF) score of 35. (R. at 503-04.)
Plaintiff met with Nurse Haynes again on April 29, 2015. (R. at 500-01.) He had moderate
depression, symptoms of anxiety and insomnia, and low appetite and energy level. (R. at 501.) He
was not suicidal or homicidal. (Id.) He had anhedonia, “amotivation,” social anxiety, sleep
disturbance, chronic pain, and low self-esteem, but no paranoia, delusions, or “mood lability.” (Id.)
He said he was discouraged because of his declining health and his inability to do things he used to
do. (Id.) He had an inability to concentrate or stay focused. (Id.) He was alert, oriented times four,
and coherent, and he had a logical thought process, but no suicidal or homicidal ideations. (Id.)
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On May 27, 2015, Plaintiff saw Angela Phillips, L.V.N., at MHMR, for medication training
and support. (R. at 505-06.) He reported compliance with his medications, but continued moderate
depression that he rated at a 7. (R. at 505.) He thought he would be better if he quit “thinking about
things,” and denied having suicidal or homicidal ideations. (Id.) He had occasional anxiety,
continued paranoia, continued racing thoughts, occasional mood swings, and irritability, and he
stated that he did “not like being around a crowd of people” because he did not really trust anyone.
(Id.) He reported sleeping about 5 hours and having degenerative disc disease and severe arthritis.
(Id.) He had fair appetite, good eye contact, euthymic mood with congruent affect, and his
appearance was neat, clean, and weather appropriate. (Id.) Nurse Phillips educated Plaintiff on his
medications, encouraged him to continue taking his medications as prescribed, discussed positive
coping skills, and encouraged their use as needed. (Id.) She noted that Plaintiff had minimal
progress and no significant change in his symptoms. (Id.) Plaintiff’s medications included
Amitriptyline, Citalopram, Gabapentin, and Propranolol. (R. at 507.)
On June 26, 2015, Plaintiff saw Lillian Stapleton, a qualified mental health professional
(QMHP). (R. at 555.) He stated that he had been doing “alright” and rated his depression and
anxiety at a 4 or 5. (Id.) He reported getting about 6-7 hours of sleep at night and eating well. (Id.)
He denied having suicidal or homicidal ideations, and stated that he had “racing thoughts a lot
during the night.” (Id.) Ms. Stapleton noted that Plaintiff had made “minimal progress [that] session
toward utilizing his resources.” (Id.)
On July 27, 2015, Plaintiff saw Nurse Haynes again at MHMR. (R. at 514-525.) He was
alert, oriented times four, coherent, and had a logical thought process and dysphoric mood with
congruent affect. (R. at 514.) He continued to be moderately depressed and mildly anxious, and his
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pain affected his depression. (Id.) He denied having suicidal or homicidal ideations. (Id.) He was
“sleeping a little at night,” and although Amitriptyline helped, his pain kept him awake late and
woke him up early. (Id.) He stated that he had “buried a good friend 2 weeks ago” and it had not
been a good month for him. (R. at 515.) It was noted that he had major depressive disorder and a
GAF score of 35. (R. at 517.) He had good insight and judgment, no gross deficits in attention and
concentration, no abnormal or psychotic thoughts, a good fund of knowledge, and good memory.
(R. at 520-21.) Nurse Haynes discontinued Citalopram, started Cymbalta for depression and pain,
increased Propranolol, increased Gabapentin, discontinued Amitriptyline, and started Trazodone for
insomnia. (R. at 514.)
On September 18, 2015, Plaintiff met with Nurse Phillips again at MHMR. (R. at 557.) He
was compliant with his medications and complained of dry mouth. (Id.) He had continued moderate
depression that he rated at a 7, and stated that “a lot of stuff still bother[ed] [him].” (Id.) He had
occasional anxiety, auditory hallucinations, no visual hallucinations, continued paranoia, continued
racing thoughts, occasional mood swings and irritability, euthymic mood with congruent effect, and
neat appearance. (Id.) He denied having suicidal or homicidal ideations. (Id.) Nurse Phillips noted
that Plaintiff had made minimal progress with no significant change in his symptoms. (Id.)
Plaintiff also saw Ms. Stapleton on September 18, 2015, in order to assess his progress made
towards improving his daily functions. (R. at 559.) He rated his depression at a 5 and his anxiety
at a 4, and stated that he would get about two to three hours of sleep and wake up early because he
could not just lay in bed. (Id.) He denied having auditory or visual hallucinations, or suicidal or
homicidal ideations but stated that his mind would go blank sometimes when he would watch
television. (Id.) He had support from his girlfriend. (Id.) Ms. Stapleton noted that Plaintiff made
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good progress toward improving his daily functions, and he would go out with his girlfriend once
a month. (Id.)
On November 30, 2015, Peggy High, a QMHP, created a treatment plan for Plaintiff. (R.
at 509-11.) She noted that he reported racing thoughts about his brothers that had passed away, and
that made him depressed, but he was ready to have relief from his depressive symptoms. (R. at 509.)
Plaintiff also stated that he needed to work on his ability to stay on task, and that he would not be
able to watch a television program. (Id.) Ms. High noted that he had been diagnosed with major
depressive disorder, and exhibited the following symptoms: flight of ideas, racing thoughts,
distracted easily, restlessness, agitation, engaging in pleasurable but harmful activities, depressive
episodes, not sleeping or sleeping too much, slowness, inability to make decisions, feeling down,
blaming himself, feeling worthless, fatigue, loss of energy, changes in weight or appetite, thoughts
of death, and apathy. (Id.) She also noted that Plaintiff had been “diagnosed with a severe and
persistent mental illness and require[d] clinical support and medication to maintain [his] . . .
recovery level.” (R. at 510.)
Ms. High also completed a “Quick Inventory of Depressive Symptomatology” for Plaintiff.
(R. at 530-33.) She noted that he took more than 60 minutes to fall asleep more than half of the
time; woke more than once at night and stayed awake more than 20 minutes; had early morning
insomnia more than half of the time; slept no longer than 7-8 hours per night without naps; felt
intensely sad virtually all of the time; ate less than usual; struggled to focus attention and make
decisions most of the time; blamed himself more than usual; did not think of suicide or death; found
that one or two former interests remained; lacked energy to carry out most of his usual daily
activities; thought slowly and responded to questions after several seconds; and displayed motor
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restlessness. (Id.)
Ms. High also completed an “Adult Needs and Strengths for . . . Resiliency and Recovery”
form for Plaintiff on November 30, 2015. (R. at 534-41.) She noted that Plaintiff had a history of
anxiety, impulse control, and substance abuse, and that his cognition, interpersonal problems,
antisocial behavior, anger control, and eating disturbances were causing problems that were
consistent with a diagnosable disorder. (R. at 534.) She also noted that his depression was causing
severe/dangerous problems. (Id.) Plaintiff had moderate family functioning, sleep, and involvement
in recovery, and severe physical medical issues and employment issues. (R. at 535.) He was not
a suicide risk or a danger to others. (R. at 537.)
On December 11, 2015, Plaintiff saw Nurse Haynes at MHMR for sleep issues as well as
back and leg pain. (R. at 542-54.) He was moderately depressed and reported that he stayed
depressed “all the time” and stressed about everything. (R. at 542.) He was alert, coherent, and
oriented times four, and had a logical thought process, dysphoric mood with congruent affect, good
insight and judgment, no gross deficits in attention and concentration, a good fund of knowledge,
and no suicidal or homicidal ideations. (R. at 542, 550.) He stated that he was frustrated with his
physical health problems, continued to experience anxiety, and was experiencing variations in his
sleep; he would sleep well some nights and not well on others. (Id.) He was sad about his friend
that had passed away two months before. (Id.) His diagnoses included major depressive disorder,
and he had a GAF score of 35. (R. at 545-46.)
On January 9, 2016, Plaintiff was admitted to Dallas Regional Medical Center with
complaints of chest pain. (R. at 572.) He stated that he began feeling unwell the night before, “and
he had been stressed out and anxious due to his wife[‘]s recent hospital stay and discharge.” (R. at
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573.) He continued to feel unwell and started to develop sharp, stabbing chest pain that was at
approximately a 7 out of 10 and originated in his back and went forward to his chest. (Id.) Walking
worsened the pain, and he had some associated “clamminess, diaphoresis, and shortness of breath.”
(Id.) He was given aspirin and nitroglycerin for the pain, and it immediately went away. (Id.) His
symptoms resolved, and it was noted that they most likely resulted from anxiety disorder. (R. at
572.)
He was discharged with diagnoses including atypical chest pain, anxiety disorder,
hypertension, chronic back pain, and bipolar disorder. (Id.)
On February 12, 2016, Scott Kemp, M.D., and Nurse Haynes, completed a mental RFC
assessment for Plaintiff. (R. at 628-31.) They opined that Plaintiff’s abilities to maintain attention
and concentration for extended periods, complete a normal workday and workweek without
interruptions from psychologically based symptoms, and perform at a consistent pace without an
unreasonable number and length of rest breaks were poor. (R. at 629.) Plaintiff’s remaining abilities
in the areas of understanding and memory, sustained concentration and persistence, social
interaction, and adaptation were fair. (R. at 628-30.)
3.
Hearing Testimony
On February 1, 2016, Plaintiff and a vocational expert (VE) testified at a hearing before the
ALJ. (R. at 139-68.) Plaintiff was represented by an attorney. (R. at 141.)
a.
Plaintiff’s Testimony
Plaintiff testified that he was 53 years of age, divorced, and lived in a trailer. (R. at 146.)
He was 6'5" and weighed 218 pounds. (R. at 148.) He thought he had finished 8th grade before he
dropped out so he could work and help his mother. (R. at 147.) He started working when he was
about 13-14 years old, and worked pretty consistently since then. (Id.) He had problems reading,
11
could add and subtract, never served in the military, and thought that he repeated a grade while in
school. (R. at 148.) He received food stamps and did not have any income at all. (Id.) He drove
“very little” because his back and legs would not let him stay in a vehicle for long. (R. at 149.) He
did not drive to the hearing that morning. (Id.)
Plaintiff had previously worked for a company that did smoke, fire, and water damage
restoration. (Id.) The company sent him to school, and he was “ICRC certified” in Texas. (Id.)
While working for that company, he would move heavy furniture, pull carpet, and run heavy
equipment. (Id.) He was let go from that job after he received a DWI while out on a fishing trip.
(R. at 150.) He worked for a carpet company in 2009, but stopped working once he was no longer
able to run up and down stairs, pull heavy pads, move carpet, or move heavy furniture. (Id.) He also
had difficulty getting in and out of the van when he worked. (R. at 164.) He had not worked since.
(Id.) He also stated that his condition had become worse since 2009. (R. at 165.)
The main thing that kept Plaintiff from working was his back. (R. at 150.) He had a
herniated disc and was in constant pain all of the time. (R. at 150, 153.) His pain went down to the
lower part of his back, and sometimes went down through his sciatic nerve all the way down to his
right leg and foot. (R. at 150-52.) His foot would go numb, he stumbled or fell sometimes, and he
used a cane to walk but had not taken it to the hearing because he could not find it. (R. at 151.) He
could stand on his right foot for about 10-15 minutes before he would have to sit down. (R. at 152.)
He also had problems with both of his knees, and both hurt about the same from “kicking
carpet so many years.” (R. at 153.) It hurt to squat, and he was in pain all of the time. (Id.) He had
problems with his right shoulder as well, but not with his left shoulder. (R. at 153-54.) He had
trouble reaching out front or overhead with his right hand sometimes, and reaching overhead was
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worse. (R. at 154.) Plaintiff also had problems with high blood pressure. (R. at 155.) He was
receiving his medication for high blood pressure from MHMR through “Dr. Donna, the psychiatrist
at MHMR.” (Id.)
Plaintiff was receiving treatment at MHMR once a month for depression. (R. at 156.) He
had problems sleeping and received medication to help him sleep. (Id.) The medication sometimes
helped, but he would also be “up all during the night.” (Id.) He would wake up due to racing
thoughts and pain, and it was hard to sleep because his back and leg were “killing” him. (Id.) He
thought he slept about 2-3 hours per night and would catch himself “nodding off” during the day.
(R. at 156-57.) He “hurt enough” to cry and had problems remembering things. (R. at 157.) His
girlfriend prepared all of the meals and would sometimes remind him to take his medications. (Id.)
Plaintiff had recently been to the hospital for a possible heart attack. (R. at 158.) He was
told to return for a stress test but was unable to because he did not have health insurance. (R. at 15859.) He had not seen doctors very much because he did not have insurance. (R. at 159.) He would
go to emergency room if he was in a lot of pain, but would be unable to fill the prescriptions he
would receive, and he did not go often. (Id.) He dealt with a lot of the pain on his own and took
over-the-counter medication when he ran out of his prescription pain medication. (Id.)
Plaintiff could not walk very far and estimated that he could walk to the 20-yard line of a
football field without his cane. (R. at 160.) Sitting was also a problem for him, and he would move
all of the time because of his sciatic nerve and lower back. (Id.) He could not bend from the waist
to pick things up off of the floor, could not climb stairs from the first floor to the second floor
without using the railing to pull himself up, could not push or pull a vacuum cleaner, could lift a
five-pound bag of potatoes, and could lift one gallon of milk. (R. at 160-61.) He was not sure if he
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had problems with his grip, but he had arthritis and had dropped things before. (R. at 161.) He did
not think he could open a pickle jar, but he could use a can opener, button buttons, and tie his shoes
even though it was difficult. (R. at 161-62.) He was also slow to get dressed but could dress
himself, and he sat down on a chair or on the side of the bed to get dressed. (R. at 162-63.) He
could shower and dry off by himself. (R. at 163.) He did not clean, cook, wash clothes, go to
church, mow the lawn, or do any housework. (Id.) He sometimes attended an alcoholics anonymous
class and would not go see friends. (Id.)
b.
VE’s testimony
The ALJ asked the VE what the exertional level was for Plaintiff’s job as a restoration
worker. (R. at 165.) The VE responded that the DOT code was 389.664-010, and it was heavy,
semi-skilled work with an SVP of 3. (Id.)
The ALJ then asked the VE to consider a hypothetical individual with the same age,
education, and work history as Plaintiff, who could lift, push, pull, and carry 20 pounds occasionally
and 10 pounds frequently; stand, walk, and sit for 6 hours out of 8 hours; occasionally climb ramps
and stairs; never climb ladders, ropes, or scaffolds; and occasionally conduct “other postural
activities”; with no manipulative, visual, or environmental limitations. (R. at 165-66.) The ALJ
asked if there were any jobs the hypothetical individual could perform, and the VE responded that
there were. (R. at 166.) The ALJ asked for three examples, and the VE stated that the hypothetical
individual could perform light, unskilled jobs, such as a price tagger, DOT 209.587-034 (SVP 2),
with about 190,000 jobs nationally and about 5,700 jobs in Texas; a laundry press operator, DOT
363.685-026 (SVP 2), with about 200,000 jobs nationally and about 4,500 jobs in Texas; or a
cafeteria attendant, DOT 311.677-010 (SVP 2), with about 290,000 jobs nationally and about 9,000
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jobs in Texas. (Id.) The VE testified that her testimony was consistent with the DOT. (Id.)
Plaintiff’s attorney asked the VE if the same hypothetical individual would be able to engage
in the jobs she identified at a competitive level if the individual had difficulty with concentration and
attention such that he was off task as much as 15% of the time. (R. at 167.) The VE responded that
the individual would not. (Id.) His attorney asked if the jobs the VE identified had production
requirements. (Id.) The VE responded that they did, and that an individual would have to be able
to get his work done by the end of the day. (Id.) His attorney then asked if it was required to attend
the identified jobs for 2-hour periods at a time. (Id.) The VE responded that it was. (Id.) Plaintiff’s
attorney finally asked if the hypothetical individual would be able to engage in the identified jobs
at a competitive level if he were required a sit/stand option that allowed for position changes every
15-20 minutes. (Id.) The VE responded that the individual would likely be off task too often with
having to sit so frequently in between times. (Id.)
C.
ALJ’s Findings
The ALJ issued his decision denying benefits on March 24, 2016. (R. at 68-85.) At step one,
the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 1, 2009, the
alleged onset date. (R. at 73.) At step two, the ALJ found that he had the following severe
impairments: degenerative arthritis, degenerative joint disease, and degenerative disc disease of the
lumbar spine with sciatica of the right leg. (R. at 74.) Despite those impairments, at step three, the
ALJ found that Plaintiff had no impairment or combination of impairments that met or equaled the
severity of one of the impairments listed in the social security regulations. (R. at 75.)
Next, the ALJ determined that Plaintiff retained the RFC to perform light work, but included
the following limitations: he could occasionally climb ramps and stairs; never climb ladders, ropes,
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or scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl. (Id.)
At step four, the determined that Plaintiff was unable to perform any past relevant work. (R.
at 79.) At step five, the ALJ found that transferability of job skills was not an issue because the
Medical Vocational Rules supported a finding that Plaintiff was not disabled whether or not he had
transferable job skills, but considering his age, education, work experience, and RFC, there were
jobs that existed in significant numbers in the national economy that he could perform. (Id.)
Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined by the
Social Security Act, from August 1, 2009 through March 24, 2016. (R. at 80.)
II. LEGAL STANDARD
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 v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3). Substantial evidence is defined as more than a
scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a
reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,
564 (5th Cir. 1995). In applying the substantial evidence 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. A finding
of no substantial evidence is appropriate only if there is a conspicuous absence of credible
evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson
v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
The scope of judicial review of a decision under the supplemental security income program
16
is identical to that of a decision under the social security disability program. Davis v. Heckler, 759
F.2d 432, 435 (5th Cir. 1985). The relevant law and regulations governing the determination of
disability under a claim for disability insurance benefits are also identical to those governing the
determination under a claim for supplemental security income. See id. Courts may therefore rely
on decisions in both areas without distinction in reviewing an ALJ’s decision. See id.
To be entitled to social security benefits, a claimant must prove that he or she is disabled as
defined by the Social Security Act. Leggett, 67 F.3d at 563–64; Abshire v. Bowen, 848 F.2d 638,
640 (5th Cir. 1988). The definition of disability under the Social Security Act is “the inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Anthony v.
Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant
is disabled:
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 he has done in the past, a
finding of “not disabled” must be made.
5.
If an individual’s impairment precludes him from performing his past work,
other factors including age, education, past work experience, and residual
functional capacity must be considered to determine if work can be
17
performed.
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)).
Under the first four steps of the analysis, the burden lies with the claimant to prove disability.
Leggett, 67 F.3d at 564. 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. Once the claimant
satisfies his or 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 is capable of performing. Greenspan, 38 F.3d at 236. This burden may be satisfied either
by reference to the Medical-Vocational Guidelines of the regulations or by expert vocational
testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A
finding that a claimant is not disabled at any point in the five-step review is conclusive and
terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
III. ISSUES FOR REVIEW
Plaintiff presents two issues for review:
1.
Absent good cause or controverting evidence from a treating or examining
physician, the ALJ may only withhold controlling weight from a treating
physician if he conducts the multi-factor analysis required by 20 C.F.R.
§404.1527. Did the ALJ in this case reversibly err when he did not
specifically discuss the Section 404.1527 factors and gave little weight to the
joint opinion from mental health providers Scott Kemp, M.D. and Donna
Haynes, N.P.?3
2.
Substantial evidence will not support an ALJ’s decision when the ALJ
ignores uncontroverted medical evidence. The ALJ in this case found that
Plaintiff had no severe mental impairment and issued an RFC that contained
no psychological limitations. Was the ALJ’s decision supported by
3
Although listed first, Plaintiff’s issue regarding the ALJ’s consideration of treating source opinions implicates
the RFC assessment, which comes after step two in the sequential evaluation process. (See doc. 17 at 14-20.)
Accordingly, the first part of Plaintiff’s second issue regarding the severity of his mental impairment is addressed first.
18
substantial evidence when Plaintiff’s mental health providers considered his
work abilities fair-to-poor and when the ALJ admitted that Plaintiff’s
depression mildly interfered with Plaintiff’s activities of daily living, social
functioning, and concentration, persistence, or pace?4
(doc. 17 at 6.)
A.
Severe Impairment
Plaintiff argues that “the ALJ’s failure to find any severe mental impairment is not supported
by substantial evidence.” (doc. 17 at 20.) He claims that his “depressive disorder satisfies the de
minimis severity standard because the uncontroverted evidence from MHMR demonstrates that it
interferes with his ability to work.” (Id. at 21.) The Commissioner responds that the ALJ properly
found that Plaintiff’s alleged mental impairment was non-severe. (doc. 18 at 13.)5
At step two of the sequential evaluation process, the ALJ “must consider the medical severity
of [the claimant’s] impairments.” 20 C.F.R. § 404.1520(a)(4)(ii), (c). To comply with this
regulation, the ALJ “must determine whether any identified impairments are ‘severe’ or ‘not
severe.’” Herrera v. Comm’r of Soc. Sec., 406 F. App’x 899, 903 (5th Cir. 2010). Under the
Commissioner’s regulations, a severe impairment is “any impairment or combination of impairments
which significantly limits [a claimant’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c). The Fifth Circuit has held that a literal application of this regulation would
4
Within his second issue, Plaintiff argues that the ALJ’s decision is not supported by substantial evidence
because he failed to find any severe impairment and failed to incorporate any mental limitations into Plaintiff’s RFC.
(See doc. 17 at 20-26.) His arguments essentially present two separate issues relating to the severity of his mental
impairment and to the ALJ’s RFC assessment. Those issues will be addressed separately.
5
The Commissioner also argues that the ALJ correctly applied the standard for evaluating a severe mental
impairment under Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), and alternatively, that any error in applying that
standard was harmless. (doc. 18 at 10-11.) Plaintiff does present this issue as an error for review, however. Although
he notes that the ALJ did not apply the correct standard in his reply, he specifically states that the “Commissioner’s
argument is beside the point, [because] even if the ALJ applied a standard consistent with Stone,” substantial evidence
does not support “the ALJ’s finding that his depression was non-severe.” (doc. 19 at 3-4.)
19
be inconsistent with the Social Security Act because the regulation includes fewer conditions than
indicated by the statute. Stone v. Heckler, 752 F.2d 1099, 1104–05 (5th Cir. 1985). Accordingly,
in the Fifth Circuit, an impairment is not severe “only if it is a slight abnormality having such
minimal effect on the individual that it would not be expected to interfere with the individual’s
ability to work.” Id. at 1101. In other words, “the claimant [need only] make a de minimis showing
that her impairment is severe enough to interfere with her ability to do work.” Anthony v. Sullivan,
954 F.2d 289, 294 n.5 (5th Cir. 1992) (citation omitted). When determining whether a claimant's
impairments are severe, an ALJ is required to consider the combined effects of all physical and
mental impairments regardless of whether any impairment, considered alone, would be of sufficient
severity. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (citing 20 C.F.R. § 404.1523). The
claimant has the burden to establish that her impairments are severe. See Bowen v. Yukert, 482 U.S.
137, 146 n.5 (1987).
Plaintiff points to the medical records from MHMR. (doc. 17 at 21-22.) They show that he
reported depression, isolation, anhedonia, “amotivation,” racing thoughts, anxiety, paranoia,
occasional mood swings, ideas of worthless, guilt, and hopelessness. (R. at 495, 505, 509, 514, 542,
557.) It was noted on a couple of visits that he had only minimal progress, and no significant
changes in his symptoms. (R. at 505, 557.) At one appointment, Plaintiff stated that he would not
be able to watch a television program. (R. at 509.) It was also noted that he was diagnosed with
major depressive disorder and had a GAF score of 35. (R. at 503-504, 517.) The records
additionally showed that he was alert, oriented times four, coherent, and had logical thought
processes, adequate memory, good insight and judgment, normal intellect, adequate decision
making, no gross deficits in attention and concentration, no abnormal or psychotic thoughts, and a
20
good fund of knowledge. (R. at 495, 498, 514, 520-21, 542, 550.) He continuously denied having
suicidal or homicidal ideations, and his mood fluctuated between euthymic and dysphoric. (R. at
505, 514-15, 542, 557.) It was also noted that he made good progress toward improving his daily
functions, and that he was ready to have relief from his depressive symptoms. (R. at 509, 559.)
The ALJ’s decision noted that although Plaintiff testified that he did not do any cleaning or
household chores, the consultive examination notes stated “that he could perform all activities of
daily living,” and the record showed that he was “capable of doing chores himself if they were
required of him.” (R. at 74.) Plaintiff’s function report reflected that he could take out the trash,
walk, drive a car, ride in a car, and that he went outside daily. (Id.) Although Plaintiff testified he
did not see his friends, his function report stated that he spent time with others on a daily basis, he
did not have problems getting along with friends, family, or neighbors, and he had never been fired
or laid off from a job due to problems getting along with others. (Id.) He could also go out alone
and did not need reminders to go places. (Id.) The ALJ noted that although Plaintiff reported
having difficulties with completing tasks, using his memory, and concentration, his mental status
examinations showed normal findings, and he consistently appeared oriented to place, time, and
situation, and had good insight and judgment, good immediate, recent, and remote memory, no gross
deficits in cognitive abilities, and a good fund of knowledge. (R. at 74-75.) Plaintiff had reported
that he could pay bills, count change, handle a savings account, and use a checkbook and money
order. (R. at 75.) Given his consideration of Plaintiff’s function report, the medical evidence, and
the hearing testimony, the ALJ used the proper technique6 to determine that his depression resulted
in no episodes of decompensation and caused only “mild limitations” as to his functional areas of
6
The “special technique” for evaluating the severity of mental impairments is described in 20 C.F.R. §
404.1520a.
21
daily living, social functioning, and concentration, persistence, and pace. (R. at 74-75.)
Plaintiff has not shown that his depression was a severe impairment, and substantial medical
evidence instead supports the ALJ’s findings that his depression did not interfere with his ability to
perform work-related activities. See Hammond v. Barnhart, 124 F. App’x 847, 853 (5th Cir. 2005)
(holding that, even though there was “some evidence that point[ed] to a conclusion that differ[ed]
from that adopted by the ALJ,” there was no error because there was “far more than a scintilla of
evidence in the record that could justify [the] finding that [the plaintiff’s] impairments were not
severe disabilities”); see also McDaniel v. Colvin, No. 4:13-CV-989-O, 2015 WL 1169919 at *5
(N.D. Tex. Mar. 13, 2015) (finding that the ALJ did not err in finding impairments to be non-severe
because the ALJ considered the relevant evidence in his decision and the plaintiff did not point to
evidence showing “any work-related limitations beyond those already found by the ALJ”).
Accordingly, the ALJ did not err by finding Plaintiff’s depression to be a non-severe impairment,
and remand is not required on this issue.
Moreover, even if the ALJ erred in failing to find that his depression was a severe
impairment, he proceeded beyond step two, and in making the RFC determination, he considered
the mental RFC assessment from Dr. Kemp and Nurse Haynes, as well as Plaintiff’s GAF scores that
were reported as 35. (R. at 78.) He also noted that Plaintiff’s mental status examinations showed
“mostly normal findings.” (Id.)
The Fifth Circuit has stated that a failure to make a severity finding at step two is not
reversible error when an ALJ continues with the sequential evaluation process. Herrera, 406 F.
App’x at 903 (citing Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987)) (noting the ALJ’s failure
to make a severity finding at step two was not a basis for remand where the ALJ proceeded to later
22
steps of the analysis); Mays v. Bowen, 837 F.2d 1362, 1365 (5th Cir. 1988) (per curiam) (“[I]f the
ALJ proceeds past the impairment step in the sequential evaluation process the court must infer that
a severe impairment was found.”). Accordingly, even if the ALJ erred in failing to determine that
Plaintiff’s depression was a severe impairment, the error was harmless. See Norris v. Berryhill, No.
3:15-CV-3634-BH, 2017 WL 1078524, at *13 (N.D. Tex. Mar. 22, 2017) (finding that even if the
ALJ erred in failing to explain why he found only certain impairments to be severe, the error was
harmless where he proceeded with the sequential evaluation process).7
B.
RFC Assessment8
Plaintiff argues that the ALJ’s RFC assessment is not supported by substantial evidence.
(doc. 17 at 14, 19-20, 26-27.)
Residual functional capacity, or RFC, is defined as the most that a person can still do despite
recognized limitations. 20 C.F.R. § 404.1545(a)(1). The RFC determination is a combined “medical
assessment of an applicant’s impairments with descriptions by physicians, the applicant, or others
of any limitations on the applicant’s ability to work.” Hollis v. Bowen, 837 F.2d 1378, 1386–87 (5th
Cir. 1988) (per curiam). It “is an assessment of an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis.” Social Security
Ruling (SSR) 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An individual’s RFC should
7
Plaintiff also argues this case is similar to Blades v. Comm’r of Soc. Sec. Admin., No. 3:01–CV–2483–K, 2003
U.S. Dist. LEXIS 23165 (N.D. Tex. Dec. 12, 2003), because the ALJ failed to rely on the evidence from MHMR or the
mental RFC assessment. (doc. 17 at 22-23.) In Blades, the ALJ rejected the examining psychologist’s finding that the
claimant had a severe mental impairment at step two, and did not move forward to step three. See Cooper v. Colvin, No.
4:14–CV–00423–O–BL, 2015 WL 4738024, at *7 (N.D. Tex. Aug. 10, 2015) (citing Blades, 2003 U.S. Dist. LEXIS
23165 at *4–5). Here, although the ALJ did not find that Plaintiff had a severe mental impairment, he utilized the
hearing testimony, Plaintiff’s function report, and medical evidence in the record, and he continued with the sequential
evaluation process. (See R. at 74-79.) Accordingly, Blades is distinguishable.
8
Because Plaintiff’s first issue and second part of his second issue implicate the ALJ’s RFC assessment, they
are considered together.
23
be based on all of the relevant evidence in the case record, including opinions submitted by treating
physicians or other acceptable medical sources. 20 C.F.R. § 404.1545(a)(3) (2012); SSR 96-8p,
1996 WL 374184, at *1.
The ALJ “is responsible for assessing the medical evidence and determining the claimant’s
residual functional capacity.” Perez v. Heckler, 777 F.2d 298, 302 (5th Cir. 1985). The ALJ may
find that a claimant has no limitation or restriction as to a functional capacity when there is no
allegation of a physical or mental limitation or restriction regarding that capacity, and no
information in the record indicates that such a limitation or restriction exists. See SSR 96-8p, 1996
WL 374184, at *1. The ALJ’s RFC decision can be supported by substantial evidence even if she
does not specifically discuss all the evidence that supports her decision or all the evidence that she
rejected. Falco v. Shalala, 27 F.3d 160, 163–64 (5th Cir. 1994). A reviewing court must defer to
the ALJ’s decision when substantial evidence supports it, even if the court would reach a different
conclusion based on the evidence in the record. Leggett, 67 F.3d at 564. Nevertheless, the
substantial evidence review is not an uncritical “rubber stamp” and requires “more than a search for
evidence supporting the [Commissioner’s] findings.” Martin v. Heckler, 748 F.2d 1027, 1031 (5th
Cir. 1984) (citations omitted). The Court “must scrutinize the record and take into account whatever
fairly detracts from the substantiality of the evidence supporting the” ALJ’s decision. Id. Courts
may not reweigh the evidence or substitute their judgment for that of the Secretary, however, and
a “no substantial evidence” finding is appropriate only if there is a “conspicuous absence of credible
choices” or “no contrary medical evidence.” See Johnson, 864 F.2d at 343 (citations omitted).
Here, after making a credibility finding regarding Plaintiff’s alleged symptoms and
limitations, and reviewing the evidence of record, the ALJ determined that Plaintiff had the RFC to
24
perform light work, except that he could occasionally climb ramps and stairs; never climb ladders,
ropes, or scaffolds; and occasionally balance, stoop, kneel, crouch, and crawl. (R. at 75.)
1.
Treating Source Opinion
Plaintiff argues that without good cause and without conducting a detailed analysis as
required under 20 C.F.R. § 404.1527(c)(1)–(6), the ALJ rejected Dr. Kemp’s and Nurse Haynes’
opinions in the mental RFC assessment they completed. (doc. 17 at 14-18.) The Commissioner
responds that substantial evidence supports the ALJ’s decision to give little weight to the opinions
in the mental RFC assessment. (doc. 18 at 20.)9
The Commissioner is entrusted to make determinations regarding disability, including
weighing inconsistent evidence. 20 C.F.R. § 404.1529(b). Every medical opinion is evaluated
regardless of its source, but the Commissioner generally gives greater weight to opinions from a
treating source. Id. § 404.1527(c)(2). A treating source is a claimant’s “physician, psychologist,
or other acceptable medical source” who provides or has provided a claimant with medical treatment
or evaluation, and who has or has had an ongoing treatment relationship with the claimant. Id. §
404.1502. When “a treating source’s opinion on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence,” the Commissioner
must give such an opinion controlling weight. Id. § 404.1527(c)(2). If controlling weight is not
9
The Commissioner appears to initially argue that the ALJ properly discounted the opinions of Dr. Kemp and
Nurse Haynes because they were “insufficient to establish that Plaintiff’s alleged mental impairment could be considered
as relevant to his claim for Title II [DIB] since his date last insured [was] December 31, 2009.” (doc. 18 at 18.) The
ALJ did not address this, however, and his “decision must stand or fall with the reasons set forth in [it], as adopted by
the Appeals Council.” Newton, 209 F.3d at 455. Additionally, even if the opinions in the mental RFC assessment were
not relevant to Plaintiff’s claim for DIB, they were relevant to his claim for SSI benefits under Title XVI because as the
Commissioner also notes, the relevant time period for consideration of Plaintiff’s claim for SSI began February 25, 2014
and ended on March 24, 2016. (Id. at 17.)
25
given to a treating source’s opinion, the Commissioner considers six factors in deciding the weight
given to each medical opinion: (1) whether the source examined the claimant or not; (2) whether the
source treated the claimant; (3) the medical signs and laboratory findings that support the given
opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is
made by a specialist or non-specialist; and (6) any other factor which “tend[s] to support or
contradict the opinion.” See id. § 404.1527(c)(1)–(6).
While an ALJ should afford considerable weight to opinions and diagnoses of treating
physicians when determining disability, sole responsibility for this determination rests with the ALJ.
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). If evidence supports a contrary conclusion, an
opinion of any physician may be rejected. Id. A treating physician’s opinion may also be given
little or no weight when good cause exists, such as “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.” Id. at 455–56. Nevertheless, “absent reliable medical
evidence from a treating or examining physician controverting the claimant’s treating specialist, an
ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of
the treating physician’s views under the criteria set forth in [then] 20 C.F.R. § 404.1527(d)(2).” Id.
at 453. A detailed analysis is unnecessary, however, when “there is competing first-hand medical
evidence and the ALJ finds as a factual matter that one doctor’s opinion is more well-founded than
another,” or when the ALJ has weighed “the treating physician’s opinion on disability against the
medical opinion of other physicians who have treated or examined the claimant and have specific
medical bases for a contrary opinion.” Id. at 458.
Here, the ALJ discussed the findings in the mental RFC assessment completed by Dr. Kemp
26
and Nurse Haynes. (R. at 78.)10 In giving their opinions “little weight,” the ALJ determined that
the RFC form was “not accompanied by any substantive explanation” regarding its basis, that “Dr.
Kemp did not have a longitudinal relationship with [Plaintiff],” and that their opinions were
inconsistent with Plaintiff’s mental status examinations that showed “mostly normal findings.” (Id.)
The ALJ pointed to medical records that showed that Plaintiff’s judgment, insight, memory, and
fund of knowledge were good, and that he had no gross deficits in cognitive abilities as examples
of the inconsistencies between the medical evidence and the mental RFC assessment. (Id.)
Although the ALJ did not make a specific finding as to each of the factors in 20 C.F.R. §
404.1527(c)(1), he specifically stated that he considered opinion evidence in accordance with the
requirements of 20 C.F.R. §§ 404.1527 and 416.927. (See R. at 76.) His decision reflects that he did
consider the factors; he reviewed Dr. Kemp’s and Nurse Haynes’ opinions and found that they were
inconsistent with Plaintiff’s mental status examinations as a whole, that there was a lack of a treating
relationship between Dr. Kemp and Plaintiff, and that there was no substantive explanation for the
opinions expressed in the RFC form. (See R. at 78.) The regulations require only that the
Commissioner “apply the factors and articulate good cause for the weight assigned to the treating
source opinion.” See 20 C.F.R. § 404.1527(c)(2); Brewer v. Colvin, No. 3:11-CV-3188-N, 2013 WL
1949842, at *6 (N.D. Tex. Apr. 9, 2013), adopted by, 2013 WL 1949858 (N.D. Tex. May 13, 2013);
Johnson v. Astrue, No. 3:08-CV-1488-BD, 2010 WL 26469, at *4 (N.D. Tex. Jan. 4, 2010). “The
ALJ need not recite each factor as a litany in every case.” Brewer, 2013 WL 1949842, at *6.
Plaintiff argues that although Dr. Kemp and Nurse Haynes did not provide a written
10
Although the ALJ referred only to Dr. Kemp in considering the mental RFC assessment, it was signed by
both Dr. Kemp and Nurse Haynes. (R. at 631.) Notably, it appears that the mental RFC assessment was primarily
completed by Nurse Haynes. (See R. at 628-31.)
27
explanation for their opinions in the mental RFC assessment, “an explanation can be gleaned from
the available medical evidence.” (doc. 17 at 16.) The Commissioner responds that it was proper
for the ALJ to discount those opinions because they “typify the ‘brief and conclusory’ statements
that an ALJ may disregard under the good cause exception[] to the treating physician rule.” (doc.
18 at 18.) The Fifth Circuit has recognized that opinions of treating physicians are not entitled to
considerable weight when they are brief and conclusory, and lack explanatory notes or supporting
objective tests and examinations. See Heck v. Colvin, 674 F. App’x 411, 415 (5th Cir. 2017); Foster
v. Astrue, 410 F. App’x 831, 833 (5th Cir. 2011). The mental RFC assessment at issue was a brief
and conclusory check-box form that did not include any explanatory notes or supporting tests or
examinations. (See R. at 628-31.) Although Plaintiff argues that the medical evidence provides an
explanation for the opinions in the assessment, Dr. Kemp and Nurse Haynes did not identify any
medical records that were relied upon for their opinions, and the basis for their opinions is unclear.
(See id.) The ALJ could therefore discount the opinions for lacking “any substantive explanation.”
See Foster, 410 F. App’x at 833 (agreeing with the magistrate judge’s conclusion that the ALJ did
not err in assigning only little weight to a brief and conclusory questionnaire).
Plaintiff next argues that “while Dr. Kemp’s relationship with [Plaintiff] is unclear,” Nurse
Haynes also completed the questionnaire, “and she certainly shared a longitudinal relationship with
[him].” (doc. 17 at 17.) The Commissioner responds that Nurse Haynes was a nurse practitioner
and did not qualify as a treating source. (doc. 18 at 20.) Dr. Kemp does not appear in any of the
other evidence of record and therefore does not appear to qualify as a treating physician. See Payne
v. Colvin, No. 3:15-CV-2557-BH, 2016 WL 5661647, at *11–12 (N.D. Tex. Sept. 28, 2016) (finding
that an ALJ did not err in failing to find that a doctor was a treating physician where the doctor only
28
met with the plaintiff once). Additionally, although Nurse Haynes treated Plaintiff several times,
and he referred to her as his psychiatrist at MHMR during his testimony, she was a nurse, and her
opinions were not entitled to any weight. See Hayes v. Astrue, No. 3:11–CV–1998–L, 2012 WL
4442411, at *3 (N.D. Tex. Sept. 26, 2012) (finding no error where the ALJ rejected the opinions of
a treating registered nurse, explaining that “the ALJ was not required to give her opinions any
weight” because she was “not an ‘acceptable medical source’”). Accordingly, the ALJ did not err
in discounting the opinions in the mental RFC assessment based on his finding that Dr. Kemp “did
not have a longitudinal relationship” with Plaintiff. See Rodriguez v. Shalala, 35 F.3d 560, at *2
(5th Cir. 1994) (unpublished) (citing Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir.1990))
(“[W]here the examining physician is not the claimant’s treating physician and where the physician
examined the claimant only once, the level of deference afforded his opinion may fall
correspondingly.”).
Plaintiff also argues that the inconsistencies identified by the ALJ were “more imagined than
real.” (doc. 17 at 17.) As stated, the ALJ considered Dr. Kemp’s and Nurse Haynes’ opinions and
found that they were inconsistent with Plaintiff’s mental status examinations, which showed “mostly
normal findings.” (R. at 78.) He considered medical evidence showing he had good insight,
judgment, and memory, a good fund of knowledge, and no gross deficits in cognitive abilities. (Id.)
As noted, the ALJ “is responsible for assessing the medical evidence,” and he properly considered
the consistency of opinions in the mental RFC assessment with the record as a whole in making his
determination. See Perez, 777 F.2d at 302; see also Greenspan, 38 F.3d at 236 (noting that a
reviewing court does not reweigh the evidence, retry the issues, or substitute its own judgment).
The ALJ’s reasons for assigning only little weight to the mental RFC assessment combined
29
with his review and analysis of the objective record, satisfy his duty under the regulations and
constitute “good cause” for affording little weight to the opinions contained in the mental RFC
assessment. See Brewer, 2013 WL 1949842, at *6 (finding the ALJ’s explanation as to why he did
not give controlling weight to a treating physician’s opinion constituted “good cause” even though
he did not make a specific finding as to each of the factors set forth in 20 C.F.R. § 1527 (c)(2));
Johnson, 2010 WL 26469, at *4 (same); Hawkins v. Astrue, No. 3:09-CV-2094-BD, 2011 WL
1107205, at *6 (N.D. Tex. March 25, 2011) (same); Gomez v. Barnhart, No. SA-03-CA-1285-XR,
2004 WL 2512801, at *2 (W.D. Tex. Nov. 5, 2004) (finding the ALJ complies with regulations if
the resulting decision reflects that consideration was given to medical consultant’s opinion).
Remand is therefore not required on this issue.
2.
Plaintiff’s Mental Limitations
Plaintiff also argues that “the ALJ . . . erred by failing to include any mental limitations in
his RFC assessment.” (doc. 17 at 24.) He contends that even if his mental impairment was nonsevere, the ALJ was still required to account for it in his RFC determination. (Id.) He claims that
although the ALJ found that his depression, while not severe, resulted in mild limitations in
activities of daily living, social functioning, and maintaining concentration, persistence, or pace, he
“failed to explain why his RFC failed to contain any psychological limitations whatsoever.” (Id. at
24-25.) The Commissioner responds that “the ALJ properly found Plaintiff’s mental impairments
were not severe enough to have any effect on his work,” and he “was not required to take the nonsevere mental impairment into consideration in the RFC analysis.” (doc. 18 at 22-23.)
As noted, a reviewing court must defer to the ALJ’s RFC decision when substantial evidence
supports it. Leggett, 67 F.3d at 564. In Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000), the Fifth
30
Circuit held that an “ALJ must consider all the record evidence and cannot ‘pick and choose’ only
the evidence that supports his position.” Id. (citing Switzer v. Heckler, 742 F.2d 382, 385–86 (7th
Cir. 1984)); Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984); Green v. Shalala, 852 F.
Supp. 558, 568 (N.D. Tex. 1994); Armstrong v. Sullivan, 814 F. Supp. 1364, 1373 (W.D. Tex.
1993)). Likewise, the substantial evidence test does not involve a simple search of the record for
isolated bits of evidence that support the ALJ’s decision. Singletary v. Bowen, 798 F.2d 818,
822–23 (5th Cir. 1986). An ALJ must address and make specific findings regarding the supporting
and conflicting evidence, the weight to give that evidence, and reasons for his or her conclusions
regarding the evidence. Armstrong, 814 F. Supp. at 1373.
There is no general duty to explain or provide rational and logical reasons for a decision,
however. Escalante v. Colvin, No. 3:14-CV-0641-G, 2015 WL 1443000, at *14 (N.D. Tex. Mar.
31, 2015) (citing cases); see Norris, 2017 WL 1078524, at *21 (citing Escalante, 2015 WL 1443000,
at *14). The regulations require only that an ALJ consider and evaluate medical opinions. See 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). They do not require an ALJ to state the weight given to
each symptom and diagnosis in the administrative record. See Proge v. Comm'r of Soc. Sec., No.
3:13-CV-310-SAA, 2014 WL 4639462, at *4 (N.D. Miss. Sept. 16, 2014) (applying 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2)).
Even where an ALJ finds that a claimant’s mental impairments are non-severe, “‘the ALJ
must still consider the impact of [any] non-severe mental impairments—either singly or in
combination with other conditions—when he determines [his] RFC.’” Gonzales v. Colvin, No. 3:15CV-0685-D, 2016 WL 107843, at *5 (N.D. Tex. Jan. 11, 2016) (quoting Williams v. Astrue, No.
3:09–CV–0103–D, 2010 WL 517590, at *8 (N.D. Tex. Feb. 11, 2010)). “This is because even non-
31
severe limitations may combine with other severe impairments to . . . narrow the range of work that
the individual can perform.” Tusken v. Astrue, No. 4:08-CV-657-A, 2010 WL 2891076, at *12
(N.D. Tex. May 25, 2010), adopted by, 2010 WL 2891075 (N.D. Tex. July 20, 2010).
Here, as noted, before making the RFC determination, the ALJ utilized the proper technique
in determining that Plaintiff’s depression was not a severe mental impairment. (Id. at 74-75.) He
explained that:
The limitations identified in the “paragraph B” criteria11 are not a [RFC] assessment
but are used to rate the severity of mental impairments at steps 2 and 3 . . . . The
mental [RFC] assessment used at steps 4 and 5 . . . requires a more detailed
assessment by itemizing various functions contained in the broad categories found
in paragraph B . . . . Therefore the following [RFC] assessment reflects the degree
of limitation the [ALJ] found in the “paragraph B” mental function analysis.
(R. at 75.)
Additionally, although the ALJ found that Plaintiff’s depression was not a severe
impairment, his decision reflects that he considered Plaintiff’s mental functioning when performing
his RFC analysis. (See R. at 78.) As noted, the ALJ considered Dr. Kemp’s and Nurse Haynes’
mental RFC assessment, as well as Plaintiff’s mental status examinations and his GAF scores in
making his RFC determination. (Id.) The ALJ found that both the mental RFC assessment and the
GAF scores were entitled to little weight, and concluded that his RFC determination was “supported
by the medical evidence in the record.” (Id.) Because “the ALJ sufficiently considered [Plaintiff’s]
mental impairments in calculating the RFC, [he] did not err by not including any mental limitations
11
“Paragraph B contains four broad functional areas: activities of daily living; social functioning; concentration,
persistence, and pace; and episodes of decompensation,” which the ALJ utilizes to rate the degree of functional limitation
resulting from a mental impairment. Gonzales, 2016 WL 107843, at *4 (citing 20 C.F.R. § 404.1520a(b)(2), (c)(3); 20
C.F.R. Pt. 404, Subpt. P. App. 1, § 12.00C).
32
in the RFC.” Gonzales, 2016 WL 107843, at *6.12 Remand is also not required on this issue.
In conclusion, the ALJ did not err in assigning only little weight to the mental RFC
assessment completed by Dr. Kemp and Nurse Haynes, or in declining to include any mental
limitations in Plaintiff’s RFC, and his decision is supported by substantial evidence.
IV.
CONCLUSION
The Commissioner’s decision is AFFIRMED.
SO ORDERED, on this 17th day of September, 2018.
___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
12
Plaintiff relies on Tusken, 2010 WL 2891076, and Ellis v. Astrue, No. 7:09-CV-70-O-BF, 2010 WL 3422872
(N.D. Tex. July 27, 2010), adopted by, 2010 WL 3398257 (N.D. Tex. Aug. 27, 2010), to support his argument that the
ALJ was required to include his mental limitation in the RFC determination. (doc. 17 at 25.) Both cases are
distinguishable, however. In Ellis, the court held that the hypothetical question the ALJ asked the VE was deficient
because “[a] significant discrepancy exist[ed] between the limitations included in the hypothetical question posited to
the VE and the limitations the ALJ found in his decision.” Ellis, 2010 WL 3422872, at *5. Plaintiff does not challenge
the hypothetical presented to the VE. In Tusken, the court concluded that the ALJ erred by failing to consider the
limiting effects of all the claimant’s impairments, including his non-severe impairments. Tusken, 2010 WL 2891076,
at *12. As found, “the ALJ adequately discussed and considered the limiting effects of Plaintiff’s mental impairments
in formulating his RFC.” Gonzales, 2016 WL 107843, at *8. Accordingly, Tusken also differs from this case.
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