Phillips v. Astrue

Filing 18

OPINION AND ORDER denying 15 Motion for Summary Judgment of Pltf; granting 16 Motion for Summary Judgment of Dft; and that this action is DISMISSED.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

PARTHINEA PHILLIPS,
Plaintiff

v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE
SOCIAL SECURITY ADMIN. 1,
Defendant.

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§ CIVIL ACTION NO. G-12-234
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OPINION AND ORDER
Before the Court, with the consent of the parties, is Plaintiff Parthinea Phillips's action
pursuant to 42 U.S.C. §405(g) of the Social Security Act for a review ofa final decision of the
Commissioner of the Social Security Administration (SSA) denying her claim for disability
insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the
Act. Both parties have filed Motions for Summary Judgment. After considering the parties'
briefs, the administrative record and the applicable law, the Court issues its Opinion and Order.

I. BACKGROUND
Plaintiff Parthinea Phillips (Phillips) was born in 1975, has a tenth or eleventh grade

In accordance with Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn Colvin, who
became the acting Commissioner of the Social Security Administration on February 14, 2013, is substituted
as the defendant in this action.
I

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education, and last worked in 2009 as a cook and/or cashier in a fast food restaurant. (Transcript
(Tr.) 38, 39-42, 51, 61-62). She filed her applications for DIB and SSI on January 5, 2010,
claiming an inability to work since May 10, 2009, due to "[hypertention, sleep apnea, asthma,
depression, [and] [hyperlipidemia]." (Tr. 12. 141-147, 148-151, 190). The SSA denied her
application at the first two levels of administrative review (Tr. 71-78, 80-85), and Phillips
requested a hearing before an Administrative Law Judge (AU). (Tr. 86-87).
On April 28, 2011, the AU found that Phillips suffered the severe impairments of sleep
apnea, obesity, asthma, hypertension and depression. (Tr. 14). Based on testimony by a medical
expert and a vocational expert at the hearing, however, the AU found that Phillips was able to
perform her past relevant work, that this work did not "require the performance of work-related
activities precluded by her residual functional capacity, " and that she was, therefore, not entitled
to either Dm or SSI. (Tr. 12-20). Phillips requested the Appeals Council to review the decision
and submitted additional evidence in support. (Tr. 1-4, 7-8). After reviewing the additional
evidence submitted, the Appeals Council declined the request on June 6,2012, making the AU's
opinion the Commissioner's final decision.
II. DISCUSSION
A federal court reviews the Commissioner's denial of benefits only to ascertain whether
(1) the final decision is supported by substantial evidence and (2) the Commissioner used the
proper legal standards to evaluate the evidence. Brown v. Apfel, 192 F.3d 172, 173 (5 th Cir.
1999). A court may not reweigh the evidence or try the issues de novo. Johnson v. Bowen, 864
F.2d 340,343-344 (5th Cir. 1988). Conflicts in the evidence are for the Commissioner, not the
Court, to resolve. Brown, 192 F.3d at 496.

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Substantial evidence is defmed as being more than a scintilla and less than a preponderance
and of such relevance that a reasonable mind would accept it as adequate to support a conclusion.

Ripley v. Chaler, 67 F.3d 552,555 (5 th Cir. 1995). If the Commissioner's findings are adjudged
to be supported by substantial evidence, then such findings are conclusive and must be affirmed.
Id. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or

medical fmdings exist to support the decision. Johnson, 864 F.2d at 343-344.
A claimant is disabled within the meaning of the Social Security Act if she has a medically
determinable physical or mental impairment lasting at least 12 months that prevents her from
engaging in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). To determine whether an
individual is disabled, the Commissioner utilizes the five-step sequential evaluation process set
forth in 20 C.F.R. §§ 404. 1520(a)(4) and 416.920(a)(4).2 If the Commissioner decides at any step
along the way that an individual is not disabled, the evaluation process comes to a halt at that
particular step and proceeding further becomes unnecessary. Barajas v. Heckler, 738 F .2d 641,
643 (5 th Cir. 1984). Additionally, only if the final step in the process is reached does the fact­
finder consider the claimant's age, education, and work experience in light of her residual
functional capacity. See Rivers v. Schweiker, 684 F.2d 1144, 1152-1153 (5 th Cir. 1982).

A. Appeals Council Review
Phillips initially argues that remand is warranted because the Appeals Council's decision
does not reflect that it properly considered the additional medical records she submitted. In
addition, she argues that the additional evidence she submitted to the Appeals Council diluted the
record such that substantial evidence no longer supports the ALl's decision.

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See also, 20 C.F.R. §§ 404. 1520a, 416.920a.
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The administrative record in this case clearly reflects that the Appeals Council received and
reviewed the additional records submitted by Phillips's attorney. (Tr. 1-4). Nonetheless, the
Appeals Council concluded that the additional "information does not provide a basis for changing
the [ALJ's] decision." (Tr. 1-4). While Phillips argues that the decision is superficial and devoid
of reasoning, the Appeals Council is not required to provide a "detailed discussion" for rejecting
new evidence that it receives. See Jones v. Astrue, 228 Fed. Appx. 403, 407 (5 th Cir. 2007);

Higginbotham v. Barnhart, 405 F.3d 332, 337-38, n. 1 (5 th Cir. 2005) (noting that "the
requirement of a detailed discussion of additional evidence was suspended" in 1995); Gonzalez

v. Comm'r of Soc. Sec. Admin., No. 3:1O-CV-02003-0 BF, 2012 WL 1058114, at *10
(N.D.Tex. Jan. 26, 2012); Musial v. Astrue, No. 4:1O-CV-280-A, 2011 WL 5346307, at *7
(N.D. Tex. Nov. 3,2011).
Furthermore, having carefully considered all the evidence in the record, 3 the Court
concludes that remand is not warranted on this basis because the medical evidence submitted by
Phillips is not "so inconsistent with the AU's findings that it undermines the ultimate disability
determination." Gonzalez, 2012 WL 1058114, at *10. In particular, the Court observes that the
notes and assessment completed by Phillips's psychologist, Dr. Whitley, Ph.D., did not contain
any new impairments that were not already acknowledged or incorporated by the ALJ in his
decision. (Tr. 14-19,254-270). While it is true that Dr. Whitley opined that Phillips would be
unable to work, as a psychologist, he is not qualified to render opinions concerning physical
conditions diagnosed by a medical doctor (i.e., sleep apnea); nor is his assessment that she has

3 See Higginbotham, 405 F.3d at 337 (recognizing that evidence submitted for the first time to the
Appeals Council is considered part of the record upon which the Commissioner's final decision is based).

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a learning disorder or borderline IQ supported by any objective evidence or testing

U. e.,

intelligence or otherwise). See Scott v. Heckler, 770 F.2d 482,485 (5 th Cir. 1985) (recognizing
that an opinion must be supported by medically acceptable clinical laboratory diagnostic
techniques). Nevertheless, even to the extent his opinion was supported, the evidence reflects that
Phillips worked for years with all of the conditions she now claims to be disabling. See Vaughan

v. ShaJala, 58 F.3d 129, 131 (5 th Cir. 1995). Finally, Dr. Whitley's assessment that Phillips is
unable to work goes to an issue expressly reserved for the Commissioner. Villalpando v. Astrue,
320 Fed.Appx. 208, 211 (5 th Cir. 2009).
Accordingly, the Court concludes that because substantial evidence supports the
Commissioner's ultimate disability decision, remand is simply not warranted for this alleged error.

See Beck v. Barnhart, 205 Fed.Appx. 207 n. 6 (5 th Cir. 2006); Jones v. Astrue, No. Civ.A 13­
404-JJB, 2015 WL 1346244, at *8 (M.D. La. Mar. 23,2015); see also, Mays v. Bowen, 837 F.2d
1362, 1364 (5 th Cir. 1988) (holding that remand was not warranted where there would have been
no change in the ultimate finding that plaintiff was not disabled).

B. The Stone Argument
Phillips's next challenge relates to whether the ALI followed the correct standard for
medical severity in evaluating Phillips's impairments. Specifically, she argues that the ALI
"created legal error requiring remand when he failed to apply the correct severity standard to all
of Phillips's impairments at step two of the five-step disability analysis." (Dkt. No. 15 at 14).
The Court cannot agree.

Although Phillips is correct that the ALJ did not recite the Stone

standard or set forth the proper standard in discussion ofthe her impairments, this is not sufficient,
standing alone, to warrant automatic remand. Taylor v. Astrue, 706 F.3d 600,603 (5 th Cir. 2012).

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Instead, the Fifth Circuit has clarified that even ifthe AU erred in failing to follow the procedures
set out in Stone, 4 such error does not require automatic remand unless the claimant is harmed by
the error.

Taylor, 706 F.3d at 603; McDaniel v. Colvin, No. 4:13-CV-989-0, 2015 WL

11169919, at *3 (N.D.Tex. March 13, 2015) (recognizing clarification set forth in TayIOl'; see

generally, Mays, 837 F.2d at 1364 (recognizing that procedural perfection is not required unless
it affects the substantial rights of a party).
Having considered the evidence in the record, the Court concludes remand is not warranted
because any error was harmless. In particular, unlike Stone, the AU did not make his disability
determination at step two. Instead, after finding all the impairments that Phillips alleged to be
"severe",5 the ALJ proceeded on to the remaining steps of the sequential process to consider all
Phillips's medically determinable impairments - both severe and non-severe - before determining
that she was not disabled and could return to her past relevant work. 6 See Taylor, 706 F. 3d at 603
("any error by the ALJ in not following the procedures set out in Stone [at step two] is harmless"
when the ALJ proceeds to step five and determines that the claimant is not disabled); Jones v.

Bowen, 829 F.2d 524, 527 n. 1 (5 th Cir.1987) (rejecting claimant's argument concerning Stone

In Stone, the Fifth Circuit stated that it would assume that the AU had applied an incorrect
standard to the severity requirement unless the correct standard was either set forth by reference to Stone
or expressly stated in the decision. Stone v. Heckler, 752 F.2d 1099, 1106 (5 th Cir. 1985). Absent such
an express reference or statement in the decision, the Fifth Circuit determined "the claim must be
remanded to the Secretary for reconsideration." [d.
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Phillips now contends that the AU erred when he failed to find her learning disorder and
"possible" borderline IQ, which was never determined by any testing, to be "severe" impairments;
however, she never alleged either was disabling, nor does the record support that these conditions were
disabling. See Leggett v. Chafer, 67 F.3d 558, 566-67 (5 th Cir. 1995) (the AU was not required to
explore "mere possible" disabilities that were never alleged by the claimant or supported in the record).
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6 The record clearly reflects that Phillips worked for years with a learning disorder and/or
"possible" borderline IQ (Tr. 171). See Vaughan v. Shalala, 58 F.3d 129, 131 (5 th Cir. 1995).

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because ALJ proceeded through steps four and five ofthe analysis); Chaparro v. Bowen, 815 F.2d
1008, 1011 (5 th Cir.1987) (although dicta, the court explained that claimant was not harmed by
any Stone error because the decision to deny the claimant benefits was not based on a finding of
non-severity, but on whether he could return to his past relevant work); Burqette v. Colvin, No.
12-1155,2013 WL 3776291, at *3 (W.D.La. July 15,2013) (recognizing that no prejudice exists
because "once a severe impairment is determined to exist, all medically determinable impairments
[including non-severe ones] must be considered in the remaining steps of the sequential analysis").

C. The Credibility Determination
Phillips's final challenge relates to the ALJ's credibility determination. Although the
ALJ's decision reflects that he stated and applied the two-part credibility standard (Tr. 18-19),
Phillips objects that the ALJ's finding (Tr. 19) is merely "boilerplate" and insufficient to find her
not credible.
An ALJ must consider a claimant's testimony and indicate reasons for his credibility
decision.

Scharlow v. Schweiker, 655 F.2d 645, 648 (5 th Cir. 1983). In making a credibility

determination, the ALJ must consider the objective medical evidence, as well as other factors,
including: (1) the individual's daily activities; (2) the location, duration, frequency, and intensity
of the individual's pain or other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms; (6) any measures other
than treatment the individual uses or has used to relieve pain or other symptoms; and (7) any
factors concerning the individual's functional limitations and restrictions due to pain or other

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symptoms. SeeSSR 96-7p, 1996 WL 374186, at *3 (S.S.A. July 2, 1996); Salgado v. Astrue,
271 F. App'x 456,462 (5 th Cir. 2008) (discussing factors). The AU is not, however, "required
to mechanically follow every guiding regulatory factor in articulating reasons for denying claims
or weighing credibility." Giles v. Astrue, 433 F. Appx. 241, 249 n. 30 (5 th Cir.2011). Instead,
when the AU's credibility determination is supported by substantial evidence in the record, it
must be "accorded great deference" by a reviewing court. Newton v. Apfel, 209 F.3d 448,459
(5 th Cir. 2(00); see also, Chambliss v. Massanari, 269 F.3d 520, 522 (5 th Cir. 2001).

In the present case, the ALl's decision does reflect the use of the boilerplate language of
which Phillips complains, however, the ALJ's decision provides sufficient analysis detailing how
he reached his conclusion and it is supported by substantial evidence in the record. For example,
while acknowledging Phillips's subjective complaints ,7 the AU discussed Phillips's daily activities

(see Tr. 17); the frequency, intensity and duration of Phillips's pain and symptoms (see Tr. 18­
19); the factors that precipitated and/or aggravated her symptoms (seeTr. 19); the type, dosage,
effectiveness and side effects of the medications she took to alleviate her symptoms (seeTr. 14-15,
17, 354, 357, 359, 366); aside from medication, any treatment recommended and received (see
Tr. 14, 19); and other factors concerning her functional limitations and restrictions due to pain or
other symptoms (seeTr. 14, 19). The AU also discussed the conclusions drawn by the physicians
and/or mental health providers, treating or otherwise, and why and to what extent their notes and

7 Phillips reported that she was unable to return to work because of sleep apnea and asthma; that
she had depressive symptoms that included crying spells, dislike of being around others, inability to follow
instructions well, seeing shadows and having problems understanding and remembering; that her
psychotropic medication was effective "off and on"; that she receives psychiatric treatment once every
three weeks; that she suffers from drowsiness and feeling more sensitive as a side effect of a medication;
that she was not able to buy a C-PAP machine due to financial concerns, that she experienced no symptoms
related to hypertension; and that she denies performing any form of work activity for payor for free since
May 2009. (Tr. 19)

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records did, or did not, support Phillips's claims. (SeeTr. 14-19).
Nevertheless, Phillips objects to the manner in which the ALJ characterized her lack of
treatment for sleep apnea. She claims that her inability to afford the treatment (i.e., a C-PAP
machine) has resulted in the sleep apnea being disabling as a matter oflaw. 8 The law recognizes
that an impairment that can be reasonably resolved through medical treatment is not disabling.

Lovelace v. Bowen, 813 F.2d 55,59 (5 1h Cir. 1987). If, however, the claimant demonstrates that
she "cannot afford the prescribed treatment and can find no way to obtain it, the condition that is
disabling in fact continues to be disabling in law." Taylor v. Bowen, 782 F.2d 1294, 1298 (5 th
Cir.1986); see also, SSR 82-59,1982 WL 31384 at *4 ("All possible resources (e.g., clinics,
charitable and public assistance agencies, etc.), must be explored" before an individual may claim
he is unable to afford prescribed treatment); see also SSR 96-7p, 1996 WL 374186, at *8 (July
2, 1996). Based on the evidence in the record, Phillips made no such showing. On the contrary,
the evidence before the ALJ reflected that Phillips was able to obtain care when she sought it and,
due to her financial concerns, her treating doctors encouraged her to obtain a used C-PAP machine
(Tr. 52, 271), but she never followed through with this recommendation despite having been
diagnosed as far back as her first sleep study in 1999 when she was employed. See Price v.

Colvin, No. 4: 13-CV-01322, 2014 WL 2611804 at *2-3 (S.D. Tex. June 10, 2014) (claimant has
not demonstrated that he is unable to obtain a C-PAP machine by utilizing any free or low-cost
medical services potentially available). Accordingly, finding the ALJ' s credibility determination
to be supported by substantial evidence in the record, the Court concludes that the ALJ's

8 During the hearing, Phillips testified that she had a sleep study in 1999 and that a doctor advised
her that a C-PAP machine was needed to treat and/or correct her sleep apnea. Phillips testified that she
was unable to afford a C-PAP machine to treat her sleep apnea. (Tr. 14-15, 271, 347).

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determination is entitled to "great deference." See Chambliss, 269 F.3d at 522; Newton, 209
F.3d at 459.

CONCLUSION
Considering the record as a whole, this Court concludes that proper legal standards were
adhered to and the Commissioner's decision is supported by substantial evidence. The Court,
therefore, concludes that the Plaintiffs Motion for Summary Judgment (Dkt. No. 15) is DENIED,
that Defendant's Motion for Summary Judgment (Dkt. No. 16) is GRANTED; and
that this action must be DISMISSED.

DONE at Galveston, Texas, this

21 sf:

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day of April, 2015.