Touch v Colvin

Filing 16

MEMORANDUM AND ORDER denying 12 Defendant's MOTION for Summary Judgment , and granting 11 Plaintiff's MOTION for Summary Judgment and Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment, and remands this case to the Commissioner. (Signed by Magistrate Judge Christina A Bryan) Parties notified.(cjan, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
CHUCK C. TOUCH,
Plaintiff,
v.
NANCY A. BERRYHILL,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

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September 04, 2018
David J. Bradley, Clerk

CIVIL ACTION NO.: 3:17-CV-0219

MEMORANDUM AND ORDER
Plaintiff Chuck C. Touch filed this case under the Social Security Act, 42 U.S.C. §§
405(g) for review of the Commissioner’s final decision denying his request for social security
disability insurance benefits. Touch and the Commissioner filed cross-motions for summary
judgment (Dkts. 11, 12). After considering the pleadings, the record, and the applicable law, the
court DENIES the Commissioner’s motion, GRANTS Touch’s motion, and remands this case to
the Commissioner.1
I. Background
1. Factual and Administrative History
Touch filed a claim for social security disability insurance benefits on February 4, 2014,
alleging the onset of disability as of June 1, 2012 due to spine lumbar fusion L4-S1 and back
injury/pain, and depression. Dkt. 6-4 at 24; 608 at 6. He amended his onset date to January 25,

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The district court has referred this matter to this magistrate judge for report and recommendation. Dkt. 14.

2013 after denial of his prior disability application. Dkt. 6-3 at 57-60.2 His claim was denied on
initial review and reconsideration. The administrative law judge (ALJ) held a hearing on July 8,
2016, at which Touch and a vocational expert testified. The ALJ issued an unfavorable decision
on August 24, 2016. The Appeals Council denied review on November 22, 2016 and the ALJ’s
decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
2.

Standard for District Court Review of the Commissioner’s Decision

Section 405(g) of the Act governs the standard of review in social security disability
cases. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). Federal court review of the
Commissioner’s final decision to deny Social Security benefits is limited to two inquiries: (1)
whether the Commissioner applied the proper legal standard; and (2) whether the
Commissioner’s decision is supported by substantial evidence. Copeland v. Colvin, 771 F.3d
920, 923 (5th Cir. 2014); Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
With respect to all decisions other than conclusions of law, 3 “[i]f the Commissioner’s
findings are supported by substantial evidence, they are conclusive and must be affirmed.” Perez
v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Substantial evidence has also been defined as “more than a mere scintilla and less than a
preponderance.” Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). When reviewing the Commissioner’s decision, the
court does not reweigh the evidence, try the questions de novo, or substitute its own judgment for
that of the Commissioner. Masterson, 309 F.3d at 272. Conflicts in the evidence are for the
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The previously adjudicated period is not before the court. California v. Sanders, 430 U.S. 99, 107-08 (1977).
th
Conclusions of law are reviewed de novo. Western v. Harris, 633 F.2d 1204, 1206 (5 Cir. 1981).

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Commissioner to resolve, not the courts. Id. The courts strive for judicial review that is
“deferential without being so obsequious as to be meaningless.” Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999).
The court weighs four types of evidence in the record when determining whether there is
substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) the claimant's subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th
Cir.1991); Hamilton-Provost v. Colvin, 605 Fed. App’x 233, 236 (5th Cir. 2015).
3. Disability Determination Standards
The ALJ must follow a five-step sequential analysis to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920; Waters, 276 F.3d at 718. The Social Security Act
defines “disability” as 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 twelve
months.” Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990) (citing 42 U.S.C. § 423(d)(1)(A)).
A finding at any point in the five-step sequence that the claimant is disabled, or is not disabled,
ends the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
In the first step, the ALJ decides whether the claimant is currently working or “engaged
in substantial gainful activity.” Work is “substantial” if it involves doing significant physical or
mental activities, and “gainful” if it is the kind of work usually done for pay or profit. 20 C.F.R.
§§ 404.1572, 416.972; Copeland v. Colvin, 771 F.3d 920, 924 (5th Cir. 2014).
In the second step, the ALJ must determine whether the claimant has a severe
impairment. Under applicable regulations, an impairment is severe if it “significantly limits your

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physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.20(c).
Under Fifth Circuit binding precedent, “[a]n impairment can be considered as 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, irrespective of age, education or work
experience.” Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (emphasis added)
(quoting Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) ). “Re-stated, an impairment is
severe if it is anything more than a “slight abnormality” that “would not be expected to interfere”
with a claimant’s ability to work. Id. This second step requires the claimant to make a de
minimis showing. See Anthony v. Sullivan, 954 F.2d 289, 293 n.5 (5th Cir. 1992).” Salmond v.
Berryhill, 892 F.3d 812, 817 (5th Cir. 2018).
If the claimant is found to have a severe impairment, the ALJ proceeds to the third step of
the sequential analysis: whether the severe impairment meets or medically equals one of the
listings in the regulation known as Appendix 1. 20 C.F.R. Part 404, Subpart P, Appendix 1. If
the impairment meets one of the listings in Appendix 1, the claimant is disabled. If the ALJ
finds that the claimant’s symptoms do not meet any listed impairment, the sequential analysis
continues to the fourth step.
In step four, the ALJ must decide whether the claimant can still perform his past relevant
work by determining the claimant’s “residual functional capacity” (RFC). “The RFC is the
individual’s ability to do physical and mental tasks on a sustained basis despite limitations from
her impairments.” Giles v. Astrue, 433 Fed. App’x 241, 245 (5th Cir. 2011) (citing 20 C.F.R.
404.1545). The ALJ must base the RFC determination on the record as a whole and must
consider all of a claimant’s impairments, including those that are not severe. Id.; 20 C.F.R. §§
404.1520(e) and 404.1545; see also Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990).

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The claimant bears the burden to prove disability at steps one through four, meaning the
claimant must prove she is not currently working and is no longer capable of performing her past
relevant work. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). If the claimant meets her
burden, the burden shifts to the commissioner at step five to show that the “claimant is capable of
engaging in some type of alternative work that exists in the national economy.” Id. Thus, in order
for the Commissioner to find in step five that the claimant is not disabled, the record must
contain evidence demonstrating that other work exists in significant numbers in the national
economy, and that the claimant can do that work given her RFC, age, education, and work
experience. Fraga v. Brown, 810 F.2d 1296, 1304 (5th Cir. 1998).
4. The ALJ’s Decision
The ALJ performed the standard 5-step sequential analysis. The ALJ found that Touch
met the insured status requirements of the Social Security Act through December 31, 2015, and
did not engage in substantial gainful activity after January 25, 2013, his alleged onset date. Dkt.
6-3 at 15. The ALJ found that Touch had the severe impairments of lumbar spine degenerative
disc disease and affective disorders, none of which met or equaled a listing. Id. at 15-17.
The ALJ found that Touch had the RFC to perform light work, except that he could
“lift/carry 20 pounds occasionally and 10 pounds frequently; sit for six hours in an eight-hour
day; and stand and walk six hours. He can frequently balance, kneel, crawl, and climb ramps and
stairs . . . [and] can occasionally climb ladders, ropes, and scaffolds, stoop, and crouch. He can
maximally understand, remember, and carry out simple instructions and make simple decisions.
[He] can have only occasional interaction with the public and coworkers.” Dkt. 6-3 at 17.
Based on the testimony of a vocational expert, Thomas King, the ALJ found that Touch
could not perform his past relevant work as a sedentary and skilled employment counselor, but

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considering his age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that claimant can perform, and thus he has not been under a
disability from his alleged onset date through the date of the ALJ’s decision. Id. at 21-22.
II. Analysis
Touch argues that the ALJ committed reversible error by (1) failing to properly evaluate
medical opinions; (2) failing to consult a medical expert regarding his mental RFC and not
properly accounting for his mental limitations in his RFC; (3) determining an RFC that is
inconsistent with his finding of “severe” mental impairments; (4) failing to consider his pain; (5)
failing to consider the side effects of his medication; and (6) failing to make a determination that
he could maintain employment.
A. Consideration of Dr. Navin Subramanian’s Medical Opinion
Touch argues that had the ALJ properly considered the opinion of Dr. Navin
Subramanian, she would have found that Touch had the RFC to perform less than the full range
of sedentary work, and consequently found that his condition met a listing or otherwise required
a finding that he is disabled. Dr. Subramanian, an orthopedic surgeon, treated Touch for his back
condition. Dr. Subramanian opined that Touch could only sit, stand, and walk less than 2 hours
total per workday, could lift only up to 10 pounds occasionally, would be drowsy due to his
medication, and would likely miss more than 4 days of work per month due to his symptoms or
treatment. Dkt. 6-11 at 52-57. Notes from an August 2014 office visit indicate he continued to
have back pain but treatment with hydrocodone and flexeril was “giving him symptomatic
relief.” Dkt. 6-11 at 58. Dr. Subramanian recommended continuation of symptomatic treatment
with medication, heating pad, and home stretches, and added a topical anti-inflammatory muscle
relaxant “to attempt to begin to ween him from the hydrocodone.” Touch was advised to return
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to the clinic in three months. Dkt. 6-11 at 59. The ALJ noted that the medical records indicate a
conservative treatment plan and that relief was provided by medication. Therefore, the ALJ
concluded that Dr. Subramanian’s opinion is not supported by evidence and is entitled to “little
weight.” Dkt. 6-3 at 19.
A treating physician’s opinion regarding the nature and severity of a patient’s impairment
will be given controlling weight if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence. Newton
at 455. Nonetheless, the treating physician’s opinions are not conclusive. Greenspan v. Shalala,
38 F.3d 232, 237 (5th Cir. 1994). When good cause is shown, the ALJ is free to reject, assign less
weight, little or even no weight, to the opinion of a treating physician:
Good cause may permit an ALJ to discount the weight of a treating physician
relative to other experts 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.
Newton, at 456; see also Greenspan, 38 F.3d at 237. In addition, the ALJ’s decision must state
reasons for declining to give a treating physician’s opinions controlling weight. Newton, at 455.
The ALJ considers the following factors when deciding whether good cause exists to discount
the opinion of a treating physician: (1) the physician's length of treatment of the claimant, (2) the
physician's frequency of examination, (3) the nature and extent of the treatment relationship, (4)
the support of the physician's opinion afforded by the medical evidence of record, (5) the
consistency of the opinion with the record as a whole; and (6) the specialization of the treating
physician.4 Id; Kneeland v. Berryhill, 850 F.3d 749, 760 (5th Cir. 2017) (citing Newton).

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Newton refers to the criteria set forth in 20 C.F.R. § 404.1527(d)(2), but this regulation now appears at 20 C.F.R. §
404.1527(c)(2). Kneeland, 850 F.3d at 760 n.52. Touch argues that the ALJ erred in not analyzing the medical
opinions under 20 C.F.R. 1520c. Dkt. 11 at 6-7. The regulations regarding the weight to afford medical opinions
were amended effective March 27, 2017, see 20 C.F.R. § 1520c, but these amendments were not in effect at the time
of the ALJ’s decision in this case, which is governed by 20 C.F.R. 1527(c).

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Here, there is no medical opinion from a treating or examining source that contradicts Dr.
Subramanian opinion regarding Touch’s back pain. The ALJ should have done an analysis of the
§ 1527(c) factors. She did not do so. It is not necessary to follow formalistic rules or to expressly
address each factor. See Rollins v. Astrue, 464 F. App'x 353, 358 (5th Cir. 2012) (any error in the
ALJ's failure to walk explicitly through each factor in § [404.1527(c)(2)] was harmless because
procedural perfection in administrative proceedings is not required and the ALJ's opinion
addresses two of the factors). However, in this case the ALJ’s consideration of the factors was
cursory at best.
The record shows that Dr. Subramanian is Touch’s treating physician for his lumbar
spine degenerative disc disease and is an orthopedic specialist. These two factors weigh in favor
of giving the opinion considerable weight. As her reasons for not doing so, the ALJ stated in full:
The claimant was found to have less than sedentary residual functional capacity.
However, this is inconsistent with the medical evidence of record and supporting
evidence submitted. The supporting evidence included an office visit note from
September 20145 noting the claimant had back pain; however, his prescribed
medication provided symptomatic relief (B10F/6). The claimant’s treatment was
conservative and the plan included weaning the claimant off hydrocodone,
indicative or reduced symptoms. Therefore, the treating source’s opinions are not
supported by the evidence and given little weight.
Dkt. 6-3 at 19. This explanation does not address significant aspects of Dr. Subramanian’s
opinion, i.e., that Touch’s medication causes drowsiness, that his pain will cause him to be “off
task” 10% of a typical work day, and that he will likely miss about 4 days per month due to his
impairments or treatment. Dkt. 6-11 at 54, 57. There are several pages of medical records from
Dr. Subramanian during the relevant period (January 25, 2013 through December 31, 2015) in
the record for this case. Nothing in those records, or in Touch’s testimony regarding his activities
of daily living, or in the ALJ’s opinion reveal a basis for giving little weight to Dr.
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This appears to be a typographical error, as the notes accompanying Subramanian’s report are from August 21,
2014. Dkt. 6-11 at 58-59.

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Subramanian’s opinion. See Newton, 209 F.3d at 455 (“The ALJ’s decision must stand or fall
with the reasons set forth in the ALJ’s decision, as adopted by the Appeals Council.”). The court
concludes that the ALJ committed legal error in giving little weight to the opinion or a the
treating orthopedic surgeon, Dr. Subramanian.
B. Remand is Required
The ALJ’s error discussed above is not harmless because the vocational expert testified
that under the limitations presented by Dr. Subramanian’s opinion, there would be no jobs Touch
could perform. Dkt. 6-3 at 1-72. Because the court concludes that this case must be remanded
due to legal error, the court need not address Touch’s numerous other challenges to the ALJ
decision. On remand, the ALJ should reconsider and properly weigh all evidence before reaching
a decision as to Touch’s disability.
III. Conclusion and Order
The court concludes that the ALJ committed legal error by not adequately explaining her
reasons for giving little weight to the treating physician’s opinion. The ALJ’s RFC assessment is
also not supported by substantial evidence. Therefore, Touch’s motion is GRANTED and the
Commissioner’s motion is DENIED and this case is REMANDED for further consideration
pursuant to sentence four of 42 U.S.C. § 405(g).

Signed on September 04, 2018, at Houston, Texas.

Christina A. Bryan
United States Magistrate Judge

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