Goree v Berryhill

Filing 19

ORDER ACCEPTING 17 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: For the foregoing reasons, the Court OVERRULES Plaintiff's objections and ACCEPTS the Magistrate Judge's findings, conclusions, and recommendations. The Court AFFIRMS the decision of the ALJ and that of the Commissioner. Accordingly, this action is DISMISSED with prejudice. (Ordered by Judge Reed C. O'Connor on 7/22/2019) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
GUY N. GOREE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security Administration,
Defendant.

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Civil Action No. 7:18-cv-00072-O

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation in
this case. See Findings, Conclusions, and Recommendation [hereinafter, the “FCR”], ECF No. 17.
Plaintiff Guy Goree filed objections. See Pl.’s Obj., ECF No. 18. The Magistrate Judge
recommends that the Court affirm the Commissioner’s decision. The Court conducted de novo
review of those portions of the proposed findings and recommendation to which objections were
made. The Court finds that the findings and conclusions of the Magistrate Judge are correct.
Therefore, Plaintiff’s objections are OVERRULED and the Magistrate’s findings and conclusions
are ADOPTED as the findings and conclusions of the Court.
I.

BACKGROUND
This case involves the denial of disability insurance benefits (“DIB”) and supplemental

security income (“SSI”). Plaintiff initially alleged his disability began on January 1, 2013. Admin.
Rec. 189, ECF No. 13-1. Plaintiff filed for DIB and SSI on March 31, 2015. Id. The Commissioner
of the Social Security Administration (“Commissioner”) denied Plaintiff’s application for benefits

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on July 22, 2015, and denied the application again on reconsideration on November 3, 2015. Id. at
19. Administrative Law Judge (“ALJ’) Douglas S. Stults held a hearing on July 27, 2016. Id. At
the hearing, Plaintiff requested that his alleged disability onset date be amended to May 2, 2014.
Id. The ALJ found that Plaintiff was not disabled in a decision issued on May 22, 2017. Id. at 19–
33. The ALJ applied the five-step analysis for determining disability articulated in 20 CFR
§ 404.1520. Id. at 21–32. The ALJ found that the state medical examiners’ opinions were
supported by the evidence as a whole. Id. at 31. On the fifth step, the ALJ concluded that Plaintiff
could adjust to a significant number of jobs nationwide based upon the testimony of a vocational
expert. Id. at 32–33.
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 when 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). When applying the substantial evidence standard, the reviewing court does
not re-weigh 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 Commissioner, not the court, has the duty to

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weigh the evidence, resolve material conflicts in the evidence, and make credibility choices.
Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991).
The Social Security Administration uses a five-step process to determine whether an
individual is disabled. See 20 C.F.R. § 404.1520(a)(4). The steps are followed in order, and if at
any step the Commissioner determines that the claimant is not disabled, the evaluation does not go
on to the next step. Id. The five steps consider: (1) whether the claimant is engaged in substantial
gainful activity; (2) the medical severity of the claimant’s impairments; (3) whether the claimant’s
medical impairment or combination of impairments meets or medically equals the criteria listed in
the Listing of Impairments; (4) the claimant’s residual functional capacity and past relevant work;
and (5) whether the combination of the claimant’s residual functional capacity, age, education, and
work experience allow for adjustments to be made to permit the claimant to work. See id. If the
impairment is severe but does not meet or equal a listed mental impairment, then the Commissioner
must conduct a residual functional capacity assessment. Id. § 404.1520a(d)(3).
III.

ANALYSIS OF OBJECTIONS
Plaintiff challenges the Commissioner’s denial of his disability claims, the ALJ’s

determination, and the Magistrate Judge’s findings, arguing that the ALJ’s residual functioning
capacity (“RFC”) finding is not supported by any medical opinion of record and not supported by
substantial evidence. Pl.’s Obj., ECF No. 18.
Plaintiff argues that: (1) the ALJ’s RFC finding was not based on any medical assessment
of record; (2) “the ALJ improperly inferred Plaintiff’s RFC based on his own interpretation of the
medical records without the assistance of an examining or treating physician”; and (3) the ALJ
should have requested an updated medical source statement describing types of work Plaintiff
could perform. Id. at 2–4.

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A.

Medical Assessments

Plaintiff argues that if the ALJ did not rely upon the opinions of Drs. O’Callaghan, Rowley,
and Herman, then the RFC finding is not based on any medical evidence of record (“MER”). Pl.’s
Obj. 2, ECF No. 18. But the record indicates that the ALJ did rely on the opinions of Drs.
O’Callaghan, Rowley, and Herman—just not solely. Admin. Rec. 31, ECF No. 13-1. An ALJ
cannot derive a claimant’s RFC without opinions from medical experts. Williams v. Astrue, 355
Fed. Appx. 828, 832 (5th Cir. 2009). Because the ALJ did rely on the opinions of the state medical
examiners, the ALJ’s decision was properly based on a medical assessment of record.
Alternatively, Plaintiff argues that if the RFC finding is based on the opinions of Drs.
O’Callaghan, Rowley, and Herman, then Washington v. Berryhill is controlling. Pl.’s Obj. 3, ECF
No. 18; see Washington v. Berryhill, 3:17-CV-0001-BK, 2017 WL 4422404, at *4 (N.D. Tex. Oct.
5, 2017). In Washington, an ALJ’s opinion was reversed and remanded for “essentially adopting”
a state disability examiner’s two-year-old assessment despite circumstances changing significantly
in the meantime. Washington v. Berryhill, 3:17-CV-0001-BK, 2017 WL 4422404, at *4 (N.D. Tex.
Oct. 5, 2017). Plaintiff underscores that the opinions of Drs. O’Callaghan, Rowley, and Herman
were based upon an incomplete record and rendered nearly two years before the ALJ’s decision.
Id. But, the ALJ did not “essentially adopt” the opinion of Drs. O’Callaghan, Rowley and Herman.
Rather, the ALJ found Goree had limitations that Drs. O’Callaghan, Rowley, and Herman did not
find. Admin. Rec. 189, 216, 230, ECF No. 13-1. And unlike Washington, there were not
significantly changed circumstances in the record. As the Magistrate Judge noted, substantial
evidence in the record supported the opinions of the state medical examiners. FCR 11, ECF No.
17. The ALJ’s RFC finding differed from the state disability examiners’ opinions. Id. Furthermore,
the ALJ did not rely solely on the state disability examiners’ opinions. Id. The ALJ also relied on

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Drs. Miller, Nadoo, and Smith’s opinions in assessing Goree’s RFC. Admin. Rec. 29–31, ECF No.
13-1.
When analyzing Plaintiff’s argument that the state medical examiners did not have a
complete MER at the time of their assessments, the Magistrate Judge noted substantial evidence
in the record justified their opinions. FCR 11, ECF No. 17. Such evidence included Goree’s
testimony and the MER. Admin. Rec. 157–173, 636, 697, 737, 789, ECF No. 13-1. An ALJ cannot
determine their own medical conclusions from some of the data without relying on a medical
expert’s help. Frank v. Barnhart, 326 F.3d 618, 621–22 (5th Cir. 2003). The substantial evidence
in the record supporting the state medical examiners’ opinions combined with the fact that the ALJ
did not rely solely upon the state medical examiners resolves Plaintiff’s argument on this point.
Given that the ALJ did not “essentially adopt” the state medical examiners’ opinions and,
in fact, relied upon other medical opinion evidence, Washington does not apply. Therefore,
Plaintiff’s medical assessment objection is OVERRULED.
B.

Requirement to Obtain an Updated Medical Source for Work Capacity

Plaintiff argues that because Drs. O’Callaghan, Rowley, and Herman did not have a
complete MER at the time of their assessments, the ALJ should have requested “an updated
medical source statement describing the types of work that [Plaintiff] could perform given his
limitations,” instead of relying on the vocational expert’s testimony. Pl.’s Obj. 4, ECF No. 18.
Usually, an ALJ should request a medical source statement describing the types of work
that the claimant is still capable of performing, but the absence of such a statement does not make
the record incomplete if the ALJ’s decision is supported by substantial evidence in the existing
record. Ripley, 67 F.3d at 557. The ALJ can rely upon vocational expert testimony to determine if

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there is work that can be done in the national economy by the claimant. Fraga v. Bowen, 810 F.2d
1296, 1304 (5th Cir. 1987).
Magistrate Judge Ray noted that the state disability examiners “may not have had a
complete MER at the time of their initial and reconsideration assessments,” but explained that
substantial evidence in the record corroborated their opinions. FCR 10–11, ECF No. 17. The
Magistrate Judge also noted that the vocational expert testimony “considered Goree’s age,
education, work experience, and RFC assessment limitations,” and concluded that “although
Goree could not return to his past relevant work as a truck driver, he could be a mail sorter, mail
clerk, or collator operator in private industry.” Id. at 12. If no medical statement has been provided,
the reviewing court examines whether the ALJ’s decision is supported by substantial evidence in
the existing record. See Ripley, 67 F.3d at 557. This Court agrees with the Magistrate Judge that
the ALJ’s decision was reflected by substantial evidence in the record and that because he relied
on a vocational expert’s testimony, the ALJ was not required to obtain an updated medical source
statement. As such, Plaintiff’s objection that the ALJ was required to obtain an updated medical
source statement is OVERRULED.
The Magistrate Judge pointed to evidence that addressed the issues to which Plaintiff now
objects and provided reasoning for his decision. Therefore, this Court finds substantial evidence
to support the decision and as such, the objections should be overruled. See Leggett, 67 F.3d at
564; see also Johnson, 864 F.2d at 343–44.
IV.

CONCLUSION
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections and ACCEPTS

the Magistrate Judge’s findings, conclusions, and recommendations. The Court AFFIRMS the

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decision of the ALJ and that of the Commissioner. Accordingly, this action is DISMISSED with
prejudice.
SO ORDERED this 22nd day of July, 2019.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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