Landry v. Colvin

Filing 22

OPINION AND ORDER granting 16 Motion for Summary Judgment of Dft Carolyn W Colvin and denying 14 Motion for Summary Judgment of Pltf and this action is DISMISSED.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT

April 27, 2017

FOR THE SOUTHERN DISTRICT OF TEXAS

David J. Bradley, Clerk

GALVESTON DIVISION
TONY LYNN LANDRY

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V.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration

CIVIL ACTION NO. G-15-170

OPINION AND ORDER
Before the Court, with the consent of the Parties, are the cross-Motions for
Summary Judgment of Plaintiff, Tony Lynn Landry, and Defendant, Carolyn W. Colvin,
the Acting Commissioner of the Social Security Administration.
After consideration of the Motions and a review of the administrative record, the
Court now issues this Opinion and Order.
On July 9, 2012, Plaintiff filed his application for disability benefits. Plaintiff was
afforded a hearing before an Administrative Law Judge (ALJ) on September 17, 2013. At
the hearing Plaintiff was represented by counsel. Following the hearing the ALJ issued
an Opinion denying Plaintiff’s application. The Appeals Council denied Plaintiff’s request
for review on May 6, 2015, thereby rendering the ALJ’s Opinion the Commissioner’s final
decision. On July 8, 2015, Plaintiff filed this lawsuit.
The sole issue before the Court is whether the ALJ’s decision is supported by
substantial evidence. If it is, any belief by this Court that the decision is wrong is

irrelevant. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988) (The district court “may
not re-weigh the evidence, nor try the issues de novo, nor substitute (its) judgment for that
of the Secretary, even if the evidence preponderates against the Secretary’s decision.”);
42 U.S.C. § 405g (The findings of the Commissioner as to any fact, if supported by
substantial evidence, shall be conclusive.)
At the time Plaintiff filed his application he was about to turn 52. His application
listed “Liver transplant list(,) hepatitis c(,) kidney cancer treatment(,) Renal Failure (and)
Hep C.” At the time of the hearing before the ALJ he alleged disability “due to cirrhosis
of the liver, Hepatitis C, renal cancer with resulting nephrectony, osteoporosis,
hypertension, depression and anxiety.” According to Plaintiff, his conditions precluded
him from being employed for any gainful work at all.
The ALJ considered Plaintiff’s testimony in light of a review of his lengthy medical
records and concluded that Plaintiff did not suffer from any physical or mental impairments
sufficient to render him disabled under the Social Security Act and its regulations. The
ALJ, in interpreting the medical records, determined that the objective medical evidence
required denial of Plaintiff’s application. He found that on January 26, 2012, Dr. Amin,
Plaintiff’s personal physician, found no significant functional limitations. In April 2012,
Dr. Holoye also found no significant functional limitations. In May, Dr. Amin again
found no significant functional limitations. In October, Dr. Holoye did so again. In
November, Dr. Samaratunga reviewed Plaintiff’s medical records and determined that
Plaintiff’s exertional limitations would not preclude Plaintiff from working and that his
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allegations to the contrary were only partly credible. Then, on January 2013, Dr. Durfor
affirmed Samaratunga’s assessments. The ALJ echoed Dr. Samaratunga’s opinion as to
Plaintiff’s credibility: “The claimant’s statements concerning the intensity, persistence and
limiting effects of (his) symptoms are not entirely credible.” The ALJ specifically noted
that
(b)esides the lack of supporting objective evidence, the claimant’s own
admissions concerning his activities of daily living also do not comport with
his subjective complaints. For example, he was able to perform household
work, cook, drive, travel unaccompanied, and attend several studies groups
a week. And there is no medical support that he required taking naps every
two hours.
The ALJ, therefore, concluded that Plaintiff had a physical residual functional capacity to
perform light work as required by jobs that, in the opinion of the testifying vocational
expert, existed in significant numbers in the national and local economy.
Although not originally alleged in his application, Plaintiff raised the issue of mental
impairments as a basis for seeking disability benefits. Perhaps the ALJ could have chosen
to ignore this argument, Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995) (ALJ’s duty
to investigate does not extend to possible disabilities not alleged by Plaintiff or not clearly
indicated in the record.), but he chose, instead, to consider it even though Plaintiff was
never treated for mental problems. Cf. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir.
1990) (ALJ can rely on lack of treatment in his decision to deny benefits on that basis.)
Despite his lack of treatment, Plaintiff did have a consultive mental examination performed
by Dr. Adams on September 24, 2012. Dr. Adams found, inter alia, that Plaintiff suffered
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from only mild impairments and that his daily living activities were “roughly” within
normal limits.

Nevertheless, Dr. Adams concluded that Plaintiff experienced

“significantly disruptive psychiatric symptoms.” Dr. Adams’s findings were reviewed by
Dr. Boulos on November 9, 2012, who concluded Plaintiff had no severe mental
impairment. After further review on January 16, 2012, Dr. Reedy affirmed Dr. Boulos’s
conclusion. The ALJ, in reliance on the subsequent reviews, found Dr. Adams’s findings
inconsistent with his conclusion and chose to disregard it. This was within the discretion
of the ALJ. See, Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985) (If an opinion is
conclusory or inconsistent with objective acceptable medical clinical diagnoses the ALJ
may give the opinion little or no weight.); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.
1994) (If an opinion is internally inconsistent, the ALJ can accord it less or no weight.)
(citing, 20 C.F.R. § 404.1527(c)(2)). As a result, the ALJ found that Plaintiff was not
suffering from any disabling mental impairments.
In his Motion, Plaintiff raises several challenges to the ALJ’s Opinion. First, he
claims that the ALJ’s reliance on the testimony of the vocational expert to find Plaintiff
capable of performing light work is “inaccurate or at least questionable.” The Court
rejects this argument as simply Plaintiff’s different interpretation of the objective medical
evidence.

Plaintiff’s interpretation cannot negate the findings of the ALJ that are

supported by substantial evidence.
Second, Plaintiff faults the ALJ’s hypotheticals for omitting any reference to the
impairment, if any, caused by his osteoporosis. Plaintiff argues that an ALJ must
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“incorporate reasonably all disabilities of the claimant” in his questions to a vocation
expert, if his questions do not do so, his determination is not supported by substantial
evidence. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). On May 9, 2013, a
screening found a bone mass density decrease of 10.9 % at L1-L4, an indication of some
osteoporosis. The bone mass density decreases in the femoral neck area, 9.4 % on the left
and 7.3% on the right, were labeled normal. At the hearing before the ALJ Plaintiff
testified that the osteoporosis caused pain, but there is no objective medical evidence that
osteoporosis contributed to any functional impairment.

Accordingly, the ALJ may

reasonably have decided to omit any reference to any limitation caused by Plaintiff’s mild
osteoporosis. But, more importantly, Plaintiff’s counsel did not object to the questions on
this basis or correct the hypotheticals on cross-examination. As a result, Plaintiff waived
his right to challenge the hypotheticals on review. Quintanilla v. Astrue, 619 F.Supp. 2d
306, 323-24 (S.D. Tex. 2008).
Next, Plaintiff complains that the vocational expert was not questioned about
transferable skills from his past work and, therefore, the ALJ’s determination does not
negate that Plaintiff is disabled, as a matter of law, under Medical-Vocational Guidelines,
Rule 201.14. This Court disagrees. The ALJ determined that Plaintiff had the maximum
substantial work capacity to perform “light” work, therefore, Rule 202.14 was correctly

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applied and the fact that Plaintiff had no transferable skills1 was, as the ALJ found,
immaterial. The applicable rule directed the finding of “not disabled.”
Finally, Plaintiff argues that the ALJ’s credibility decision was fatally flawed.
According to Plaintiff, the ALJ mischaracterized or misconstrued the evidence regarding
his symptoms and failed to consider his exemplary work history. At Step 5 the ALJ
determined that Plaintiff’s credibility became a “relevant” inquiry. After reviewing the
records that ALJ offered the following summary
In reaching a conclusion as to residual functional capacity, great weight is
assigned to the opinions of the reviewing state agency consultants who
opined that the claimant retained the functional capacity to perform a range
of light work. (Exhibits 7F; 13F) These opinions are consistent with the
above discussed evidence. There is no evidence of seriously debilitating
physical defects, and diagnostic abnormalities did not progress. Moreover,
as noted, the claimant engaged in fairly typical activities of daily living, and
certainly activities that are consistent with the above finding
In sum, the above residual functional capacity assessment is supported by
statements and observations from treating and examining source, objective
medical evidence of record, and the admissions and statements offered by the
claimant. Moreover, the above finding reasonably accommodates the
claimant’s subjective complaints as supported by the record.
Plaintiff counters by pointing out numerous sporadic notations in the record that “are
consistent” with his testimony. This Court concedes that the notations cited exist and do
comport with Plaintiff’s testimony. However, the Court’s task is to determine if the ALJ’s
ultimate decision is supported by substantial evidence, not a preponderance of the evidence

1

Contrary to Plaintiff’s assertion, the vocational expert was asked, on cross-examination,
about transferable skills and testified that Plaintiff had none.
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or, certainly, not beyond a reasonable doubt. Despite Plaintiff’s specific references, there
is ample objective evidence to support the ALJ’s credibility assessment. Moreover, as
noted above, Dr. Samaratunga, after a review of Plaintiff’s medical recordings, also
concluded that Plaintiff’s allegations describing his limitations were only partly credible.
As to Plaintiff’s work history, it is obvious the ALJ at least considered it. But even
assuming Plaintiff’s work history were exemplary and his efforts to continue to work
despite his limitations were laudable, the issue is whether the Plaintiff can still perform any
available work. The ALJ found he could and there is substantial evidence to support that
decision.
It is, therefore, ORDERED that the Motion for Summary Judgment (Instrument no.
16) of Defendant, Carolyn W. Colvin, is GRANTED, the Plaintiff’s Motion for Summary
Judgment (Instrument no. 14) is DENIED and this action is DISMISSED.
DONE at Galveston, Texas, this

27th

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day of April, 2017.