Davis v. Astrue

Filing 21

MEMORANDUM AND ORDER granting 19 MOTION for Summary Judgment and denying 18 MOTION for Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
J OHNNY DAVIS, JR., P l a i n t i ff , v. M ICHAEL J. ASTRUE, C OMMISSIONER OF SOCIAL SECURITY, D e fen d a n t. § § § § § § § §

C iv il Action H-08-0411

M E M O R A N D U M AND ORDER P lain tiff Johnny Davis Jr. seeks review of the denial of his request for disability insu ran ce benefits under Title II of the Social Security Act.1 Davis's motion for summary ju d g m e n t (Dkt. 18) is denied and the Commissioner's motion (Dkt. 19) is granted. The final d e c is io n of the Commissioner is affirmed. B a c k gro u n d Jo h n n y Davis Jr. filed an application under Title II of the Social Security Act on July 2 2 , 2004 alleging disability beginning December 22, 2003. His application was denied in itia lly and on reconsideration and a hearing was held before an Administrative Law Judge (A L J ) on October 26, 2006. The ALJ found Davis was not disabled within the meaning of th e Act at any time between December 22, 2003 and the date of his decision, April 27,2007. T h e Appeals Council denied Davis's request for review and the ALJ's decision became the f in a l decision of the Commissioner. This appeal followed.

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The parties have consented to the jurisdiction of this magistrate judge for all purposes, including final judgment (Dkt. 17).

A n a ly sis A. S t a n d a r d of Review

S e c tio n 405(g) of the Social Security Act sets forth the standard of review in this case. F e d e ra l courts review the decision of the Commissioner to deny Social Security benefits to d e te rm in e whether (1) the Commissioner applied the proper legal standard and (2) the C o m m is s io n e r' s decision is supported by substantial evidence. Waters v. Barnhart, 276 F.3d 7 1 6 , 718 (5th Cir. 2002); Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). S u b s ta n tia l evidence is "more than a scintilla and less than a preponderance." Masterson, 3 0 9 F.3d at 272; Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The court does not r e w e ig h the evidence, try the questions de novo, or substitute its own judgment for that of the C o m m is s io n e r . Masterson, 309 F.3d at 272. "Conflicts in the evidence are for the

[ C o m m is s io n e r] and not the courts to resolve." Selders v. Sullivan, 914 F.2d 614, 617 (5th C ir. 1990). In order to qualify for disability benefits, a plaintiff must prove he has a disability, w h ic h is defined under the Social Security Act as the "inability to engage in any substantial g a in f u l activity by reason of any medically determinable physical or mental impairment w h ich can be expected to result in death or which has lasted or can be expected to last for a c o n tin u o u s period of not less than 12 months." 42 U.S.C. §§ 423 (d)(1)(A) and

1 3 8 2 c (a )(3 )(A ); Masterson, 309 F.3d at 271. The administrative law judge must follow a f iv e -s te p sequential analysis to determine whether a plaintiff is in fact disabled:

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1.

Is the claimant currently engaged in substantial gainful activity, i.e., working? If the answer is yes, the inquiry ends and the claimant is not disabled. D o es the claimant have a severe impairment? If the answer is yes, the inquiry p ro c e ed s to question 3. D o e s the severe impairment equal one of the listings in the regulation known a s Appendix 1? If so, the claimant is disabled. If not, then the inquiry p ro c e ed s to question 4. C a n claimant still perform his past relevant work? If so, the claimant is not d is a b le d . If not, then the agency must assess the claimant's residual functional c a p a c i t y. C o n s id e rin g the claimant's residual functional capacity, age, education, and w o rk experience, is there other work claimant can do? If so, claimant is not d is a b le d .

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5.

2 0 C.F.R. §§ 404.1520, 416.920; Waters, 276 F.3d at 718. At step five, the burden shifts to th e Commissioner to show that employment for the claimant exists in the national economy. W r e n v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). B. T h e ALJ's Decision

T h e ALJ ruled at each step of the sequential analysis as follows: (1) Davis was not e n g a g e d in any gainful activity; (2) Davis had the severe impairments of a herniated disc in h is lower back, degenerative disc disease in his lower back, morbid obesity, and a pain d i so r d e r ; (3) Davis's impairments did not meet or equal a listing in Appendix 1; (4) Davis c o u ld not perform his past relevant work, but retained the residual functional capacity for less th a n the full range of sedentary work ; (5) Davis could perform jobs existing in significant

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n u m b e rs in the national economy.2 a n a l ys i s .

Davis contends that the ALJ erred at steps 2-5 of his

S e v e rity . An impairment is not severe if it is a "slight abnormality having such m in im a l effect on the individual that it would not be expected to interfere with the in d iv id u a l's ability to work, irrespective of age, education or work experience." Stone v. H e c kle r, 752 F.2d 1099, 1101 (5th Cir. 1985). Davis contends that the ALJ erred in not fin d ing he had the additional severe impairments of depression and anxiety disorder. D a v is points to the testimony of the psychiatric expert Dr. Kendrick, who testified that D a v is was diagnosed with "pain disorder associated with both psychological factors and a g e n e ra l medical condition, major depression, single episode moderate, anxiety disorder a s s o c ia te d with a low back injury with generalized anxiety." Kendrick also stated that D a v is 's medical records note the symptoms of "crying spells, insomnia, feelings of irrita b ility, anger, temper outbursts, loss of sex drive, also concentration and focus, tendency to isolate, weight gain of 30 pounds, anxiety, feeling lightheaded, lightness in chest and h e a d a c h e s , as well as distractibility, concentration difficulties and memory difficulties." K e n d ric k also noted that Davis has a GAF ranging from 45-55.3

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Tr. at 17-26. Id. at 95-96. GAF stands for Global Assessment of Functioning. It is a rating on a scale of 1 to 100 reflecting a clinician's judgment of an individual's overall level of psychological, social, and occupational, but not physical, functioning. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed.2000) (DSM-IV-TR). A GAF score of 41-50 indicates serious symptoms; a score of 51-60 indicates moderate symptoms. 4

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T h e ALJ applied the proper legal standards at step 2 of his analysis.4 The ALJ c o n sid e re d Kendrick's testimony regarding Davis's mental impairment.5 In addition to the te stim o n y relied upon by Davis cited above, Kendrick also testified that Davis sought p s yc h o lo g i c a l treatment only during a six-month period, and there was no evidence that D a v is suffered a mental impairment for a year.6 There is no evidence that Davis sought m e d ic a l treatment after February 2005 for any mental impairment, and the record reflects that a t that time Davis was responding well to treatment.7 Davis's improvement was indicated b y the rise in his GAF score from 45 to 55 during the period he sought treatment.8 While a G A F score of 55 indicates moderate mental symptoms, the GAF score is not determinative o f a disability determination.9 The ALJ's decision to omit mental impairments from his f in d in g s of Davis's severe impairments is supported by substantial evidence. Listing 1.04. Davis contends that the ALJ erred in finding that his impairments did n o t meet or medically equal listing 1.04 addressing disorders of the spine.1 0 Specifically,

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Id. at 18 (citing Stone v. Heckler, 972 F.2d 1099 (5th Cir. 1985)). Id. at 21. Id. at 97. Id. at 20 (citing Ex. 11F, reports of treating psychologist Dr. Bricker). Id. The Commissioner does not endorse the GAF scale for determining disability. Wind v. Barnhart, 133 Fed. Appx. 684, 692 n.5 (11th Cir. 2005) (citing 65 Fed. Reg. 50746, 5076465 (Aug. 21, 2000)). 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. 5

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D a v is argues that the ALJ did not give sufficient consideration to the effect of his morbid o b e s ity on his condition. "For a claimant to qualify for benefits by showing that his unlisted impairment, or c o m b in a tio n of impairments, is `equivalent' to a listed impairment, he must present medical f in d in g s equal in severity to all criteria for the one most similar listed impairment." Sullivan v . Zebley, 493 U.S. 521, 531 (1990)(emphasis in original). In order to meet listing 1.04, a c la im a n t must show a spinal disorder resulting in compromise of a nerve root or the spinal c o rd , along with the abnormalities set forth in section A, B, or C of listing 1.04. The medical rec o rd indicates that Davis had a herniated nucleus pulposus, one of the spinal disorders id e n tif ie d in listing 1.04.1 1 However, the ALJ found that Davis did not meet the listing b e c a u s e there was no evidence of motor loss manifested by atrophy with muscle weakness o r reflex loss, an abnormality required by listing 1.04A.12 D a v is argues that the ALJ erred in relying on Dr. Lang, the medical expert who te stif ie d at the hearing, because he incorrectly testified that the record did not contain a s tra ig h t leg raise test. But Dr. Lang corrected that oversight, and stated that nonetheless the re c o rd did not contain evidence of any motor or reflex loss or atrophy, and in fact the

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Tr. at 87. Davis has not made any argument that he meets listing 1.04 by virtue of sections B or C. 6

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e v i d e n c e indicated "muscle strength is 5/5 in the lower extremities. That is, no weakness. H a n d grip is good. No muscle atrophy was noted." 13 T h e ALJ's opinion is consistent with SSR 02-1p, cited by Davis, because it recognizes that obesity may be a factor in making a meets or equals listing determination.1 4 However, D a v is points to no evidence in the record that would allow his obesity to substitute for the la c k of motor loss manifested by atrophy with muscle weakness or reflex loss on which the A L J rested his decision. Thus, the court concludes that substantial evidence supports the A L J 's decision that Davis's severe impairment of a herniated disc did not meet listing 1.04. R e sid u a l Functional Capacity. Davis contends that the ALJ did not follow the law b e c au s e he did not consider all of his impairments and his pain in reaching his determination o f Davis's residual functional capacity (RFC). Davis also contends the ALJ erred in finding D a v is not entirely credible, and in discounting the effects of medication on Davis's ability to do sustained work. The ALJ was required to consider functional limitations associated with medically d e te rm in a b le impairments in making his RFC determination. Hollis v. Bowen, 837 F.2d 1 3 7 8 , 1386-87 (5th Cir. 1988). Contrary to Davis's assertion, the ALJ here considered D a v is 's back pain and mental impairments in making his determination, but he found that the

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Tr. at 90-91. Id. at 20 ("As the Social Security Administration has recognized, obesity can aggravate the effects of an [sic] back injury, and the claimant has complained of shortness of breath, attributed to his size."). 7

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lim itatio n s that were supported by the record did not preclude Davis from engaging in s u b s t a n tia l gainful activity. For example, the ALJ's assessment of less than the full range o f sedentary work accounts for Davis's limited ability to twist, crouch, kneel, climb, and s to o p .1 5 The ALJ's conclusion that Davis's mental impairments were sufficiently addressed b y an RFC assessment for less than the full range of sedentary work is supported by medical e v id e n c e that Davis responded positively to psychological treatment.16 T h e ALJ concluded that Davis's "statements concerning the intensity, persistence and lim itin g effects of [his] symptoms are significantly less than entirely credible." 1 7 The ALJ is entitled to determine the credibility of witnesses. Greenspan v. Shalala, 38 F.3d 232, 237 (5 th Cir. 1994). A claimants subjective pain complaints must be corroborated by objective e v id e n c e . Wren v. Sullivan, 925 F.2d 123, 129 (5th Cir. 1994). In this case, the ALJ found th a t the record indicated that Davis was prescribed medication for moderate pain, not d is a b lin g pain, and that his pain responded well to medication.1 8 Thus, there is substantial e v id e n c e to support the ALJ's conclusion that Davis's pain did not preclude him from all f o rm s of sedentary work.

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Id. at 22. Id. at 259. Id. at 25. Id. at 24, 206, 272, 338, 358, 363, 383, 463. 8

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In making his RFC assessment, the ALJ discounted the testimony of Davis's c h iro p ra c to r, Dr. Neuburger, that Davis would be unable to work for 3-4 months following b a c k surgery on the ground that a chiropractor is not an acceptable medical source.1 9 A ch iro p rac to r is not an acceptable medical source for the purpose of determining whether a c la im a n t has a medically determinable impairment.2 0 Davis is correct that federal regulations p e rm it consideration of evidence from a chiropractor to show the severity of impairments and h o w they affect a claimant's ability to work,2 1 but an ALJ may give less weight to a c h iro p ra c to r' s opinion than evidence from medical doctors. Griego v. Sullivan, 940 F.2d 9 4 2 , 945 (5th Cir. 1991). The ALJ noted that no treating physician provided a statement that D a v is was disabled or cannot work or has a lower RFC than the ALJ assigned.2 2 In any e v e n t, Dr. Neuburger's opinion does not support a disability finding because even assuming D a v is would be unable to work for a 3-4 month period following surgery, he would not meet th e 12-month duration requirement for finding a claimant disabled. § 423(d)(1)(A); Cook v. Heckler, 750 F.2d 391, 393 (5th cir. 1985). In sum, the court finds that the ALJ's RFC assessment is based on proper legal s ta n d a rd s and is supported by substantial evidence in the record. 42 U.S.C.

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Id. at 23. 20 C.F.R. § 404.1513(a). 20 C.F.R. § 404.1513(d). Tr. at 23. 9

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E x i ste n c e of Other Work Davis Can Perform. Davis contends that the ALJ's c o n c lu s io n that he retains the RFC for less than a full range of sedentary work means that he is disabled. Davis relies on SSR 96-9p, which advises that "individuals who are limited to n o more than sedentary work by their medical impairments have very serious functional lim itatio n s . . . a finding of `disabled' usually applies when the full range of sedentary work is significantly eroded." However, SSR 96-9p makes clear that an RFC for less than a full r a n g e of sedentary work does not necessarily equate with a disability finding, and an ALJ m u s t still determine whether there is other work in the national economy the individual can d o considering his age, education, and work experience. That is what the ALJ here did. D a v is further contends that the ALJ's determination that Davis can perform other jobs i s erroneous because he failed to consider the sedative effect of Davis's medication. But d e sp ite his allegations, Davis does not point to evidence in his medical records that the side e f f e c ts of his medications were so severe as to prevent Davis from performing sustained w o rk .2 3 The medical experts that testified at the hearing did not believe the evidence in the re c o rd was sufficient to make such a finding.2 4 F i n a l ly, Davis contends that the ALJ's decision rests on the erroneous finding that D a v is retained transferable skills from his past work that could be applied to other o c c u p a tio n s. Davis's contention misconstrues the ALJ's decision. The ALJ found that Davis

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Id. at 24. Id. 99-101. 10

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d id not retain skills from his past work. Thus, the ALJ was not required to make detailed f in d in g s identifying Davis's transferable skills.2 5 The ALJ's step-five determination was b a se d on the testimony of a vocational expert, who stated that Davis retained no skills that c o u ld be transferred to work at the sedentary level. The ALJ's hypothetical question to the v o c a tio n a l expert incorporated all the limitations that the ALJ found were supported by the re c o rd . The vocational expert testified that Davis could perform the sedentary, unskilled jobs o f order clerk, sorter, and assembler and that a significant number of those jobs exist re g io n a lly.26 The ALJ's step-five determination is supported by substantial evidence. C o n c lu s io n D a v is has failed to show that the ALJ's decision contains an error of law or is not s u p p o rte d by substantial evidence. Davis's motion for summary judgment is denied. The d e c isio n of the Commissioner is affirmed. The court will issue a separate final judgment. S ig n e d at Houston, Texas on August 3, 2009.

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20 C.F.R. § 404.1569(d)(4). Tr. at 102. 11

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