Emery v. Commissioner of Social Security Administration

Filing 17

Memorandum Opinion and Order. Considering the record as a whole, the court concludes that the assessment of plaintiff's residual functional capacity is supported by substantial evidence and does not result from reversible legal error. The hearing decision is affirmed in all respects. (Signed by Magistrate Judge Jeff Kaplan on 9/17/08) (ttm)

IN THE LINITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS W I C H I T A FALLS DIVISION J O D Y M. EMERY Plaintiff, VS. M I C H A E L J. ASTRUE, of C o m m i s s i o n e r SocialSecurity
Defendant.

N O . 7-07-CV-084-BD

MEMORANDUM

OPINION AND ORDER

judicial review of a final decisionof the Commissionerof P l a i n t i f f Jody M. Emery seeks Social Security denying his applications for disability insuranceand supplementalsecurity income ( " S S I " ) benefitsunderTitles II and XVI of the SocialSecurity Act,42 U.S.C. $ 401, et seq. For the r e a s o n sstatedherein,the hearingdecisionis affirmed. I. P l a i n t i f f allegesthat he is disabledas a result of pain in his neck and lower back. After his plaintiff a p p l i c a t i o n sfor disability and SSI benefits were deniedinitially and on reconsideration, law r e q u e s t e d hearingbeforean administrative judge. That hearingwas held on March 28,2006. a At the time of the hearing, plaintiff was 46 yearsold. He has an eleventh-gradeeducationand past work experienceas a salesroute driver, a merchandisedeliverer, a bartender,a security guard, a c a s h i e r / c h e c k e ran oil field laborer, and a pipe cutter. Plaintiff has not engagedin substantial , g a i n f u l activity sinceOctober l, 2002. The ALJ found that plaintiff was not disabledand therefore not entitled to disability or SSI that plaintiff sufferedfrom bulging discs in his benefits. Although the medical evidenceestablished

hyperlipidemia, obesity, and hypertension, and ailments, diabetes related thoracic cervicalspine, and did that the severityof thoseimpairments not meetor equalany impairment thejudge concluded that regulations.The ALJ furtherdetermined plaintiff hadthe residual listedin the socialsecurity of to functionalcapacity performa limitedrange light work, but couldnot returnto his pastrelevant of and Guidelines the testimony a vocational e m p l o y m e n t .Relyingon the Medical-Vocational orderclerk,a of e x p e r t , judgefoundthatplaintiffwascapable workingasa foodandbeverage the -clerk,and a checkcasher jobs that exist in significant clerk, an appointment charge account Council. The to this economy.Plaintiffappealed decision the Appeals in n u m b e r s the national Councilaffirmed. Plaintiff thenfiled this actionin federaldistrict court.
il. of that the assessment his residualfunctional I n a singlegroundfor relief, plaintiff contends capacityis not supportedby substantialevidenceand results from reversible legal error. A. whetherthe Commissioner's is J u d i c i a lreview in socialsecuritycases limited to determining decision is supportedby substantialevidenceand whether the proper legal standardswere used to e v a l u a t e evidence.See42 U.S.C.$ a05(e);Ripleyv. Chater,67F.3d 552,555(5th Cir. 1995). the mind might acceptto S u b s t a n t i a levidenceis defined as "such relevant evidenceas a reasonable Ri C. s u p p o r t a c o n c l u s i o n . " c h a r d s o n v . P e r a l e s , 4 0 2 U . S . 3 8 9 , 4 0 l , 9 l S .1 4t2 0 , 1 4 2 7 , 2 8 L . E d . z d 8 4 2 (197l); Austin v. Shalala,994F .2d 1170,ll74 (5th Cir. 1993). It is more than a scintillabut Richardson,9l S.Ct. at 1427. The district court may not reweigh the l e s s than a preponderance. e v i d e n c eor substituteits judgment for that of the Commissioner,but must scrutinizethe entire supports hearingdecision.Hollis v. Bowen,837 the evidence r e c o r dto ascertain whethersubstantial (5th Cir. 1988). F . 2 d 1378,1383

A disabledworker is entitled to monthly social securitybenefits if certain conditions aremet. 4 2 U.S.C. g an@). The Act defines "disability" as the inability to engagein substantialgainful activity by reasonof any medically determinablephysical or mental impairment that canbe expected t o result in deathor last for a continuedperiod of 12 months. Id. $ 423(d)(l)(A); Cookv. Heckler, 7 5 0 F.2d 39I,393 (5th Cir. 1985). The Commissionerhas promulgateda five-step sequential evaluation processthat must be followed in making a disability determination: 1. The hearing officer must first ascertainwhether the claimant is engagedin substantialgainful activity. A claimant who is of w o r k i n g is not disabledregardless the medical findings. whetherthe claimed The hearineofficer must then determine i m p a i r m e n f is "severe." A "severe impairment" must physicalor mental ability to s i g n i f i c a n t l ylimit the claimant's d o basic work activities. This determinationmust be made s o l e l y on the basisof the medical evidence. The hearing officer must then determine if the impairment meets or equals in severity certain impairments described i n Appendix 1 of the regulations. This determinationis made using only medical evidence. If the claimant has a "severeimpairment" covered by the regulations, the hearing offrcer must determine whether the claimant can perform his past work despiteany limitations. If the claimant doesnot have the residual functional capacity to perform pastwork, the hearingofftcer must decidewhether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the and b a s i sof the claimant'sage, education,work experience, residual functional capacity.

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S e egenerally,20 C.F.R. $ 404.1520(b)-(f). The claimant has the initial burdenof establishinga U.S. 137,146n.5, 107S.Ct. d i s a b i l i t yin the first four steps this analysis.Bowenv. Yuckert,482 of to 2 2 8 7, 2294 n.5, 96 L.Ed.2d I I 9 ( I 987). The burdenthen shifts to the Commissioner show that the claimant is capableof performing work in the national economy. Id. Afinding that the claimant

is disabledor not disabledat any point in the five-stepreview is conclusiveand terminatesthe a n a l y s i s .Lovelacev. Bowen,813F.2d 55, 58 (5th Cir. 1987). In reviewing the propriety of a decision that a claimant is not disabled,the court's function is to ascertain whether the record as a whole contains substantial evidence to support the C o m m i s s i o n e r ' sfinal decision. The court weighs four elementsto determinewhether there is and of s u b s t a n t i aevidence disability: (1) objectivemedicalfacts;(2) diagnoses opinionsoftreating l (3) of a n d examiningphysicians; subjectiveevidence pain and disability; and (4) the claimant'sage, (5th Cir. 1995),citing Wrenv. e d u c a t i o n ,and work history. Martinez v. Chater,64 F.3d 1,72,174 S u l l i v a n , g z s F . 2 d I 2 3 , 1 2 6 (5th Cir. l99l). The ALJ hasa duty to fully and fairly developthe facts r e l a t i n g to a claim for disability benefits. Ripley,67 F.3d at 557. If the ALJ doesnot satisff this justified. 1d However,procedural perfectionis not d u t y , the resultingdecisionis not substantially r e q u i r e d . The court will reversean administrativeruling only if the claimant shows that his rights were prejudiced. Smith v. Chater,962 F.Supp.980, 984 (N.D. Tex. 1997). substantive B. the that the ALJ improperlydiscredited opinion of his treatingphysician, P l a i n t i f f contends D r . ChristianKusi-Mensah,who concludedthat his ability to perform most work-relatedactivities w a s severelylimited. (SeeTr. at2ll-14). The opinion of a treatingsourceis generallyentitledto clinical and laboratory by c o n t r o l l i n g weight so long as it is "well-supported medically acceptable with the other substantialevidencein [the] caserecord." diagnostictechniquesand is not inconsistent Shalala,l F.3d357,364(5th Cir. 1993).Evenif a treating 2 0 C.F.R.$ 404.1527(d)(2); Spellmanv. "and must be weighed s o u r c eopinion is not given controllingweight, it still is entitledto deference WL 374188 providedin 20 C.F.R.404.1527 416.972."SSR96-2p,1996 and u s i n gall of the factors

factors See at *4 (SSA JuL.2,1996). alsoNewtonv.Apfel,209F.3d 448,456(5th Cir. 2000). These of: r e q u i r e consideration 1. 2. 3. 4. length of treatmentof the claimant; the physician's frequencyof examination; the physician's the nature and extent of the treatment relationship; the supportof the physician'sopinion afforded by the medical e v i d e n c eofrecord; of the consistency the opinion with the recordasa whole; and of the specialization the treatingphysician.

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2 0 C.F.R. g 404.1527(d)(2). A treating sourceopinion cannotbe rejectedabsentgood causefor r e a s o n s c l e a r l y a r t i c u l a t e d i n t h e h e a r i n g d e c iMyersv.Apfel,238F.3d617,62l(5thCir.200l). sion. More specifically, the ALJ must clearly articulate the weight given to the treating sourceopinion: [ T ] h e notice of the determinationor decisionmust contain specific medical opinion, reasonsfor the weight given to the treating source's in by s u p p o r t e d the evidence the caserecord,andmust be sufficiently specific to make clear to any subsequentreviewers the weight the a d j u d i c a t o r gave to the treating source'smedical opinion and the reasonsfor that weight. S S R 96-2p, 1996WL 374188at *4-5. datedFebruary23,2006, Dr. Kusi-Mensah I n a residualfunctional capacityquestionnaire of work activity because chronic low i n d i c a t e dthat plaintiff would have difficulty with sustained and mellitus, depression, limited vision due to diabeticretinopathy. b a c k pain, neck pain, diabetes ( T r . at 2ll-14). Specifically,Dr. Kusi-Mensahstated that plaintiff: (l) cannotsit for more thantwo hours at a time or stand for more than l0 minutes at a time; (2) needsa one hour break every two hours during an eight-hour work day; (3) can never twist, stoop, climb ladders,or lift more than 50 p o u n d s ;(4) canrarelycrouch,squat,climb stairs,look up, or lift morethan l0 pounds;(5) frequently

experiencespain and other symptoms severeenoughto interfere with attention and concentration jobs. (/d.). n e e d e dto perform even simple work tasks;and (6) cannotperform even "low stress" The ALJ rejectedtheseopinions, finding that plaintiff: (l) can lift andlor carry 20 pounds on a frequent basis; (2) canstoop, crouch, climb, and kneel occasionally; and (3) can stand and/or walk a total of three hours in a work day. (ld. atzl). The judge went on to find that plaintiff had the residual functional capacityto perform a significant rangeof light work, limited only by the need to avoid unprotected heights and other hazards due to his limited depth perception and lack of thoroughdecision,the ALJ explained p e r i p h e r a lvision in his left eye. (Seeid.). In an exceedingly why she discountedthe opinions offered by Dr. Kusi-Mensah: 23,2006] progress notesof [February A review of Dr. Kusi-Menash's Dr. showedthat the claimant requested Kusi-Menashcompletea form perrnanentlydisabled,andthe claimant was told claiming that he was (neurologist neurosurgeon) or to by t h a t he needed be seen a specialist is no evidencethat the claimant saw a t o completethe form. There that the 26,2006,indicated notes,datedFebruary s p e c i a l i s t .Progress physical for his lawyer and to have papers claimant was there for a at the andthat Dr. Kusi-Menashcompleted questionnaire completed, have been that time. Medical recordsshowedthat the claimant might Programsincelate in a t the Wichita Falls Family PracticeResidence 2 0 0 3 , b u t most of the visits until June2005 showedthat Dr. Ahmed treatedthe claimant, not Dr. Kusi-Menash. Social Security Ruling 96-2p statesthat controlling weight must be medical opinion if the opinion is well g i v e n to a treating source's supportedby medically acceptableclinical and laboratorydiagnostic techniquesand is not inconsistentwith the other substantialevidence treatment notes did not in the case record. The contemporaneous s h o w reportsofdepression or ofincapacity to tolerateeven a "low There are signs and findings reported in the stress" job. q u e s t i o n n a i r esuchas positive straight-leg , raising,not mentionedin treatment notes. There are not findings to show contemporaneous t h a t the claimantnevercan stoopor can rarely climb or crouch. The t r e a t m e n tnotesdo not supportsuchlimitations. The opinion of Dr. K u s i - M e n a s h , a treating physician, is considered,but not given controlling weight, because it is inconsistent with the other substantialevidenceand his own treatmentrecords.

Treatment records from neurosurgeon Sanjoy Sundaresan,M.D., indicated that the claimant was grossly neurologically stable and He ambulatedwithout assistance. had no signsor symptomsofcauda equine syndrome or myelopathy. The magnetic resonanceimaging but abnormalities, showedfindings did s c a n s not showanysignificant population. The claimantwas l i k e l y similar to many in the working adamant about not wanting to try interventional pain management t e c h n i q u e s for his lower back and neck pain suggestedby Dr. Sundaresan.The claimant rejected injections, reporting that he had experiencedsuch before (although there was no medical evidenceof did any), which did not help. Dr. Sundaresan not think that surgery of w o u l d be of benefit. Therewas somediscussion a trial of a spinal cord stimulator, but no apparentfollow-up. On his initial visit, the which wereprescribed. narcoticpainmedications, c l a i m a n trequested M o s t of the claimant'streatmenthas been with the Wichita Falls F a m i l y PracticeResidency.A review of treatmentrecordsindicates t h e claimantwas seenby Dr. Can and Dr. Ahmed on August 5,2004, An s h o r t l y after his last visit with Dr. Sundaresan. examinationof that datewas nonnal with no neurological deficits, no radicular pain, normal reflexes, and normal strength. It was noted the claimant had a long history of chronic opiate use. He recently was startedon a with Lonab and opiate,which he supplanted slow release long-acting, of S o m a . He was poorly expressive his problem and the reasonfor wanting back surgery but indicated that he would still take opiates, even after surgery. He indicated he did not want to go to r e h a b i l i t a t i o nto get off the opiatesbut he was hoping "he would need f e w e r medications." Dr. Can did not think the claimantwould ever be off opiates, nor did he think he wanted to in his present state of m i n d . Often, individuals seekingnarcotic pain medicationsallege s y m p t o m smaking it more likely to receivethe desiredmedications. of the F o r all suchreasons, conclusions Dr. Kusi-Menashare given reviewingphysicians madefindings l i t t l e weight. The Stateagency's the same as shown in the residual functional capacity essentially determined. These are consistentwith the medical records and are convincing[.] (Id. at23-24) (internal citations omitted). The hearing decision makes clear that the ALJ rejected in with the medicalevidence the record. opinionsbecause theywere inconsistent D r . Kusi-Mensah's T h i s constitutes "good cause"for giving the treatingsourceopinion little weight. SeeGreenspanv. denied,1l5 S.Ct.1984(1995);Staffordv.Barnhart, F.3d232,237(5th Cir. 1994),cert. Shalala,3S

402 F.Supp .2d717,724 (8.D. Tex. 2005). Although the ALJ did not make a specificfinding as to her e a c hof the factors set forth in 20 C.F.R. $ 404.1527(d)(2), narrativeindicatesthat eachfactor was considered. (Tr. at 22-23). The regulations require only that the hearing officer "apply" the (d)(2) factors and articulate good reasonsfor the weight assignedto the treating source section 1527 o p i n i o n . 20 C.F.R. $ 404.1527(d)(2).Thejudge neednot reciteeachfactoras a litany in everycase. .2d S e eAlejandro v. Barnhart,2gl F.Supp 497,507(S.D. Tex. 2003).1 There is substantial evidence in the record to support the reasonsgiven by the ALJ for with depression r e j e c t i n gthe opinionsof Dr. Kusi-Mensah. Although plaintiffhad beendiagnosed (see a n d prescribedantidepressants, Tr. at 155-56,216-17),there is no opinion by a mental health job. Rather, as was so severe to precludeevena "low stress" p r o f e s s i o n athat plaintiff s depression l the only evidence of the existenceor severity of any depressivecondition is statementsmade by all p l a i n t i f f that he "feelsdepressed the time" and is "tired[] all the time." (Seeid. at 155,216). Nor i s there any evidencethat Dr. Kusi-Mensah,or any other treating or examining medical source, in o b s e r v e dphysical limitations to the degreeallegedby plaintiff. The recordis remarkable that it that plaintiff had difficulty walking, standing,sitting, lifting and i s entirely void of any observation performedby the Texoma c a r r y i n g ,twisting, stooping,or climbing. To the contrary,examinations Spine Center and the state agency physician revealed that plaintiff could ambulate without that plaintiff could a s s i s t a n c e .(Id. at 129,130,210). The stateagencyphysicianalso determined lift f r e q u e n t l y lift or carry l0 pounds,could occasionally or carry20 pounds,and could standand

I To the extent plaintiffargues that the ALJ erroneouslydeterminedthat Dr. Kusi-Mensah'scontemporaneous notesdo not containclinical evidenceof positive straightleg raises,(compareTr. at 24 with id. at 217,221; treatrnent (seeid. 24), s e e also 178, 190),or that the bulging discsshown on plaintiffs MRI are not "significant" abnormalities, evidence prejudice.While a positivestraightleg raiseandbulgingdiscsmay constitute p l a i n t i f f h a s failed to demonstrate ofpain, theydo not establish thattheseverity allegations impairmentthat supports subjective o f amedicallydeterminable o f plaintiffs impairmentsresulted in the limitations found by Dr. Kusi-Mensah in his residual functional capacity assessment.

with the together work day. (ld. at204). This evidence, sit aboutsix hoursduringan eight-hour nor of observation onedoctorthat "I do not think this manwill everbe off opiates, do I think that the of state mind," (seeid. at 178),supports ALJ'sfindingthatplaintiff h e wantsto in his present (See at24). id. painmedication. narcotic in his m a ybe exaggerating symptoms orderto receive CONCLUSION of that Considering recordas a whole, the court concludes the assessment plaintiffs the not evidence does resultfrom reversible and is by residual functionalcapacity supported substantial legalerror. The hearingdecisionis affirmedin all respects. S O ORDERED. 17, D A T E D : September 2008.

JUDC}E STATES MAGISTRATE