Naron v. Astrue

Filing 15

MEMORANDUM AND OPINION denying 13 MOTION for Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

N a r o n v. Astrue

D o c . 15

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JO H N S. NARON, Plaintiff, v. MICH A EL J. ASTRUE, Commissioner of Social Security Defendant. § § § § § § § §

CIVIL ACTION H-08-2550

O P IN IO N ON SUMMARY JUDGMENT T h is social security case is before the court on plaintiff John Naron's motion fo r summary judgment. (Dkt. 13.) For the following reasons, the court denies N a ro n 's motion and affirms the Administrative Law Judge's (ALJ's) decision. B a c k g ro u n d N a r o n is an unemployed forty-two year old man who lives with his parents. H e is morbidly obese and suffers from diabetes, hypertension, and tinea pedis le s io n s on both of his feet. He has also had three surgeries on his right knee and b e e n diagnosed with mixed personality disorder. In 2004, Naron filed an application for Social Security disability benefits a lleg in g that he became disabled on June 4, 2002. The Administration initially d en ied his application but eventually granted him a hearing before an ALJ. O n April 28, 2006, the ALJ issued a decision denying Naron's application. T h e Appeals Council thereafter denied Naron's request for review, making the

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A L J's decision the final decision of the Commissioner of Social Security in Naron's c a se . Naron then filed this appeal. S t a n d a r d of Review F e d e r a l courts review final decisions of the Social Security Commissioner u n d e r the "substantial evidence" standard. Under this deferential standard, the c o u rt reviews the Commissioner's decision to determine only if (1) the C o m m is s io n e r applied the correct legal rules and (2) the Commissioner's decision w a s supported by substantial evidence. See Masterson v. Barnhart, 309 F.3d 267, 2 7 2 (5th Cir. 2002). S u b sta n tia l evidence is "such relevant evidence as a reasonable mind might a c c e p t to support a conclusion." Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2 0 0 0 ) (quoting Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995)). It must be " m o r e than a mere scintilla" but can be "less than a preponderance." See

M a ste rs o n , 309 F.3d at 272. Consequently, the substantial evidence standard s o m e tim e s requires a federal court to uphold the Commissioner's decision even w h e n it believes that most of the evidence weighs against it. See id. D is a b ility Evaluation T h e Commissioner employs a five-step inquiry to determine whether a c la im a n t is disabled and thus entitled to disability benefits: 1. Is the claimant engaged in substantial gainful activity, i.e. working? 2

I f so, the claimant is not disabled. If not, the inquiry proceeds to q u e s tio n two. 2. D o e s the claimant have a severe impairment? If not, the claimant is n o t disabled. If so, the inquiry continues to question three. D o e s the severe impairment meet or equal one of the listings set fo rth in the regulation known as Appendix 1? If so, the claimant is d isab led . If not, the inquiry continues to question four. C a n the claimant still perform past relevant work? If so, the c la im a n t is not disabled. If not, the inquiry proceeds to question fiv e . C o n sid e r i n g the claimant's age, education, work experience, and r e s id u a l functional capacity, is there work that the claimant can do? If so, the claimant is not disabled. If not, the claimant is disabled.

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S e e 20 C.F.R. § 404.1520(a)(4)(I)-(v) (2009); Newton, 209 F.3d at 453. At the first fo u r steps, the claimant bears the burden of proof; at the final step, the C o m m iss io n e r does. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). A n a ly s is A t step one, the ALJ found that Naron had not engaged in substantial g a in fu l activity since the date of his alleged disability.1 At step two, he found that N a ro n had three severe impairments: degenerative arthritis of the right knee, o b e sity , and dermatophytosis of the foot.2 The ALJ also found that Naron suffered

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Tr. at 25. Id.

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fro m diabetes and hypertension but determined that neither of these impairments w e re severe.3 As for Naron's claim that he suffered from mixed personality

d is o r d e r, the ALJ determined that diagnosis was not supported by the medical e v id e n c e .4 A t step three, the ALJ found that none of Naron's three severe impairments m et or equaled a listing.5 At step four, he concluded that Naron could not perform a n y of his past relevant work.6 Finally, at step five the ALJ found Naron could p e r fo r m sedentary work.7 Accordingly, the ALJ denied his application for benefits. N a ro n challenges the ALJ's decision on two grounds. First, he argues that th e ALJ improperly rejected his claim of mixed personality disorder. Second, he c laim s that the ALJ erred in ruling that he could perform sedentary work despite h is impairments. The court treats each argument in turn. 1. M ix e d Personality Disorder In December 2004, psychiatrist Dr. Jaime Ganc evaluated Naron and d ia g n o s e d him as having severe "[m]ixed personality disorder with schizoid and

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Id. Id. at 22. Id. at 25-26. Id. at 26. Id.

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p a ra n o id features." 8 According to Dr. Ganc, Naron's disorder gave him poor or no a b ility in several work-related skills: using judgment, behaving in an emotionally s t a b le manner, relating predictably in social situations, and demonstrating re liab ility in a work environment.9 T h e ALJ rejected Dr. Ganc's diagnosis of mixed personality disorder for s e v era l reasons. First, Dr. Ganc was not a treating physician.1 0 Second, Dr. Ganc s a w Naron only one time and at the request of Naron's lawyer.1 1 Third, none of N a ro n 's treating physicians ever suggested that he might have a mental im p a irm e n t.1 2 Finally, the notes of Naron's treating physicians, which stated that N a ro n had an "intact" mood and was "alert, oriented, and well groomed," su g g est ed that he did not in fact have mixed personality disorder.1 3 N a r o n points to two parts of the record that supposedly discredit the ALJ's re je c tio n of Dr. Ganc's diagnosis. First, he cites the hearing testimony of the A d m in is tr a tio n 's vocational expert, who stated that Dr. Ganc's diagnosis of mixed

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Id. at 185. Id. at 187-88. Id. at 22. Id. Id. Id.

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p e rs o n a lity disorder would preclude Naron from performing "competitive work." 1 4 S e c o n d , Naron cites his own hearing testimony, in which he described his erratic w o r k history (twenty-seven jobs in the past fifteen years) and the daily activities th a t his disorder allegedly prevented him from performing.1 5 N e it h e r of these pieces of evidence are sufficient to undermine the ALJ's c o n c lu s io n . The vocational expert's testimony was based on the assumption that D r. Ganc's assessment was true. Yet the ALJ gave several reasons, supported by the e v id e n c e , why Dr. Ganc's assessment was not to be believed. As for Naron's own te stim o n y , the ALJ noted that Naron's job history, which revealed that he could h o ld down jobs for longer than a year, was more indicative of a "lack of motivation to work" rather than a severe mental impairment, especially in light of the fact that n o physician other than Dr. Ganc had ever hinted that Naron suffered from a p s y c h ia tr ic disorder.1 6 And as for Naron's testimony concerning his daily activities, th e ALJ determined that numerous pieces of evidence (which the court details in th e next section) tended to show that Naron exaggerated the degree to which he w a s limited by his impairments.1 7

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Id. at 234. Id. at 270-71, 275-76, 281-86. Id. at 23-24. Id. at 24.

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It is well settled that an ALJ may refuse to credit a physician's diagnosis if it is unsupported by the evidence. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1 9 9 4 ) . The ALJ gave several cogent reasons why the record evidence did not s u p p o r t Dr. Ganc's diagnosis of mixed personality disorder. The court finds that th e s e reasons were sufficient to convince a reasonable mind that Dr. Ganc's d ia g n o s is was not to be credited. Accordingly, the ALJ's rejection of Dr. Ganc's d ia g n o s is was supported by substantial evidence.1 8 2. A b i lit y to Perform Sedentary Work T h e ALJ's decision that Naron could perform sedentary work is likewise s u p p o rte d by substantial evidence. For each physical impairment that Naron c la im e d , the ALJ explained why the record evidence showed that the impairment d id not inhibit Naron's ability to perform sedentary work.1 9 D e g e n e ra tiv e arthritis of the right knee. Naron had surgery on his right k n e e in 1991, 2002, and 2003. The medical evidence showed that, though he su ffe re d from degenerative arthritis in that knee, it was not so severe that it

Naron also complains that the ALJ should have ordered Naron to be examined by a mental health professional. An ALJ, however, is not required to order a consultive examination at government expense "`unless the record establishes that such an examination is necessary to enable the administrative law judge to make the disability decision.'" Pierre v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989) (quoting Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977)). Because the evidence tended to show that Naron did not suffer from mixed personality disorder, the ALJ was not obligated to order such an examination.
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Tr. at 21-24.

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p re v en te d him from performing sedentary work. F o r instance, in December 2002, after his second knee surgery, Naron's tre a tin g orthopedist, Dr. Joseph Muscat, reported that Naron walked with a " n o rm a l gait" and had "0% impairment." 2 0 In January 2004, after his final knee s u r g ery , Dr. Muscat commented that Naron walked with a "normal gait" and had "fu ll range of motion and excellent strength." 2 1 He observed that Naron's recovery w as "about as good as he can get" and placed "[n]o work restrictions" on him.2 2 T h o u g h Naron did report "pain, soreness, and tenderness" in his right knee, these s y m p to m s were "occasional." 2 3 And as late as January 2005, Dr. Scott Rand, N a ro n 's family physician, observed that Naron had no tenderness in his right k n e e .2 4 N o n e of Naron's doctors ever opined that the arthritis in his right knee was s o disabling that he could not perform even sedentary work. On the contrary, the m e d ic a l evidence indicated that Naron could work despite his three knee surgeries a n d reports of occasional pain.

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Id. at 108. Id. at 97. Id. Id. Id. at 227.

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T in e a pedis lesions and dermatophytosis. Naron first sought treatment for h is tinea pedis lesions in July 2004.2 5 After taking prescribed medication, Naron re p o rte d during a follow-up visit one month later that his feet were "a lot better." 2 6 In March 2005, Naron was diagnosed with dermatophytosis of the foot and again p re sc rib e d medication.2 7 A follow-up visit two months later revealed that his c o n d itio n was improving.2 8 Another follow-up visit in July 2005 indicated that his fe e t had further improved.2 9 Again, none of Naron's physicians reported that his fo o t problems were so severe that they precluded him from working. D ia b e te s and obesity. As with Naron's other impairments, none of Naron's d o cto rs stated that his diabetes or obesity prevented him from working. Rather, N a ro n 's doctors prescribed diet and exercise (treatments that Naron admitted not fo llo w in g ) to bring his blood sugar and weight under control.3 0 H y p e r te n sio n . Naron was diagnosed with and treated for benign essential

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Id. at 135. Id. at 134. Id. at 215. Id. at 213. Id. at 211. Id. at 195, 204, 207, 215, 227.

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h y p erten sion .3 1 Again, as with his other impairments, none of Naron's doctors e v er indicated that his benign hypertension limited his ability to work. E v id e n c e that Naron could perform sedentary work. As the ALJ pointed out, s e v era l pieces of evidence demonstrated that Naron could perform sedentary work: · N a r o n wrote in his daily activity questionnaire that on an average day he w a lk e d for twenty minutes, swam for an hour, and did house work.32 A t the hearing, Naron testified that he generally watched TV for eight hours a day and spent about three hours a day on his computer.33 N a ro n 's job history demonstrated that he had the ability to work despite his im p a ir m e n ts .34 In a physical assessment report completed in October 2004, one Dr. Dolan w ro te that, based on his review of the medical evidence, Naron could o c c a s io n a lly lift fifty pounds, frequently lift twenty-five pounds, stand or w alk at least two hours in an eight hour workday, and sit about six hours in an eight hour workday.35 D r . Henry Hamilton, a medical expert who testified at the hearing, opined th at, based on his own review of the medical evidence, Naron could perform s e d e n ta r y work.3 6

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In sum, the evidence before the ALJ was more than sufficient to cause a reasonable
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Id. at 195, 199, 204, 207, 211, 213, 216, 219. Id. at 88. Id. at 270, 271. Id. at 79. Id. at 152. Id. at 289.

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m in d to conclude that Naron could perform sedentary work despite his im p a irm e n ts . Consequently, the ALJ's decision rejecting Naron's application for b e n e fits was supported by substantial evidence.3 7 C o n clu s io n T h e ALJ's decision was based on the correct legal standards and supported b y substantial evidence. Accordingly, Naron's motion for summary judgment is d e n ie d and the ALJ's decision affirmed. The court will issue a separate final ju d g m e n t. S ig n ed at Houston, Texas on June 17, 2009.

Naron also argues that the ALJ's decision was not supported by substantial evidence because he was granted disability benefits in a second application one day after the ALJ's decision. But this court may review the ALJ's decision only on the record before the ALJ. See Johnson v. Heckler, 767 F.2d 180, 182-83 (5th Cir. 1985). The fact that Naron was awarded benefits in separate application--based on a separate record--has no relevance. If Naron presented new medical evidence that he was disabled and showed good cause why he could not have presented the new evidence before the ALJ, then the court could remand for another hearing. See Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994). However, Naron has presented no new medical evidence.

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