Quinn v. Astrue
MEMORANDUM AND ORDER granting 16 Cross MOTION for Summary Judgment, denying 15 Opposed MOTION for Summary Judgment.(Signed by Magistrate Judge George C. Hanks, Jr) Parties notified.(jegonzalez, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CAROLYN W. COLVIN,
Acting Commissioner of Social
CIVIL ACTION NO. H- 1 1-3629
MEMORANDUM AND ORDER
In this case seeking judicial review of a denial of Social Security benefits, Plaintiff
Kevin Quinn ("Quinn") filed a Motion for Summary Judgment. (Dkt. 15) Defendant
Carolyn Colvin, Acting Commissioner of the Social Security Administration, filed her
own Motion for Summary Judgment. (Dkt. 16). The parties have consented to the
jurisdiction of this Court under 28 U.S.C. tj 636(c). Having considered the parties'
briefing, the applicable legal authorities, and all matters of record, the Court DENIES
Plaintiffs motion and GRANTS summary judgment for the Commissioner.
Michael Astrue was the Commissioner of the Social Security Administration at the time that
Plaintiff filed this case but no longer holds that position. Carolyn W. Colvin is the Acting
Commissioner of the Social Security Administration and, as such, is automatically substituted as
Defendant. See FED.R. CIV.P. 2 5 ( ~ ) .
Quinn is a 43-year old man who suffers from back pain, shoulder pain, and
depression. Quinn has a high school education. From 1989 through 2007, Quinn worked
as a welder. Prior to that, Quinn worked as a fork lift operator and a warehouse worker.
Quinn alleges that, due to a workplace accident, he became unable to work on September
11, 2007. On April 10, 2008, Quinn filed an application for social security disability
Quinn was injured on September 11, 2007, when a heavy metal plate fell onto the
back of his knees. (Tr. 368). Quinn was taken by ambulance to the Emergency Room at
Methodist Willowbrook Hospital. (Tr. 368). At the hospital, Quinn complained of
tingling but did not report any pain, and only mild swelling was observed. (Id., Tr. 370).
During his exam, Quinn's gait was described as "normal." (Id.). Quinn was "oriented X
3" and his speech was "spontaneous, well paced, [and] logical." (Tr. 372). An x-ray did
not show any fractures. (Tr. 378). Quinn was given crutches and pain medication, and
discharged. (Tr. 377).
The next day, Quinn saw Dr. Plino Caldera at KSF Orthopedic Center. (Tr. 253).
Quinn arrived using crutches and complained of tingling in his left leg and foot. (Id.).
Quinn told Dr. Caldera he was in good health, except for his injury, and that he did not
have a history of depression or anxiety. (Tr. 254). Dr. Caldera noted that Quinn's knees
were tender but that they were not swollen or bruised, and that Quinn's skin was not
broken. (Id.). An x-ray did not reveal any broken bones or fractures. (Id.). Dr. Caldera
prescribed Vicodin and Motrin as pain medication and told Quinn to use ambulatory aids
as needed and to alternate heat and ice packs. (Id.).
On October 3, 2007, Quinn saw
Dr. Caldera for a follow-up visit. Quinn reported that his knee pain had improved but
was still present, especially in his left knee. (Tr. 247). Quinn's exam revealed a full
range of motion in both knees. (Tr. 248). Dr. Caldera also described him as "alert and
oriented" during the exam. (Id.).
Quinn underwent an MRI on October 18, 2007. (Tr. 308). On October 3 1, 2007,
Quinn saw Dr. Caldera again. Quinn reported to Dr. Caldera that he was "doing much
better" and "only complain[ed] of some soreness at the posterior aspect of the left knee."
(Tr. 244). Dr. Caldera noted that there was no swelling, redness or warmth on Quinn's
knees and that his knees did not lock or "giv[e] way." (Id.). Quinn's gait at that visit was
described as "normal heel-toe pattern bilaterally." (Tr. 245). Quinn's motor strength was
rated at 515 for his quadriceps, hamstrings, ankles dorsiflexion and ankle plantar flexion.
(Tr. 246). At that time, Quinn had been to one physical therapy session and had nine
other sessions scheduled. (Tr. 244).
Approximately a week later, on November 6, 2007, Quinn was seen by Dr.
Kenneth J.H. Lee of the Spine Care Center. (Tr. 257). During his exam, Quinn denied
having a history of depression. (Tr. 260). Quinn told Dr. Lee that he had lumbar back
pain since his workplace accident in September 2007. (Tr. 257). Quinn also told Dr. Lee
that medication did not help with the back pain. (Id.). Quinn rated his back pain as being
a 4 out of 5, and reported he felt numbness and tingling in his legs. (Tr. 257). Quinn also
reported a "jolting pain especially when he walks." (Tr. 257). Dr. Lee's notes describe
Quinn as being "in no acute distress," but he noted that Quinn walked with "an antalgic
gait" and had difficulty performing the single left heel rise on the left side. (Tr. 257).
According to Dr. Lee, imaging showed a sacrilization of Quinn's L5 vertebrae and that he
had "age appropriate spondylosis, which has been minimal."
diagnosed Quinn with "weakness and left lower extremity radiculopathy secondary to a
left paracentral disc herniation at L5-S1" and recommended that Quinn undergo "an L5S l decompression and discectomy." (Tr. 258). Dr. Lee also recommended an epidural
steroid injection. Quinn refused injections or surgical interventions due to a family
member's problems after spine surgery. Dr. Lee accordingly stated, "I do not have much
more to offer this gentleman. I will release him back to work full duty but still under
medical care." (Tr. 259).
Quinn next went to Dr. Andrew Kretschmer, who referred him to Dr. Andrew
McKay for pain management. (Tr. 338).' Quinn saw Dr. McKay on January 15, 2008.
(Id.). Dr. McKay reviewed the MRI from October, and described it as showing "at the
L5-Sl level a 5mm, left posterior lateral disc herniation with spondylosis with mass
effect on the left S1 nerve root and right S1 nerve root. Facet arthrosis was seen with
bilateral foramina1 narrowing. At the L4-5 level there was a 3 mm disc herniation with
spondylosis that may abut the L5 nerve root."
Quinn again stated his
reluctance to undergo spinal surgery, so Dr. McKay recommended an epidural steroid
injection. (Tr. 339).
Records fiom Quinn's visits with Dr. Kretschrner appear in the record as Exhibit 10F. They
are, however, handwritten and illegible.
On January 31, 2008, Quinn received an epidural steroid injection in his lower
back. (Tr. 333). Three weeks after the injection, Quinn told Dr. McKay that the injection
resulted in a 50% decrease of his pain and an increase in his ability to function. (Tr. 327).
On March 17, 2008, however, Quinn met with Dr. Sarnir Sobhy Ebeade as part of his
workers compensation claim process. Quinn told Dr. Ebeade that he was still in
significant pain. (Tr. 413). Quinn told Dr. Ebeade that standing for more than 20
minutes, walking more than a few blocks, or bending over all increased the pain, and that
"nothing helps including medications." (Id.). Quinn also complained to Dr. Ebeade of
"aching pain in both shoulders." (Id.). Dr. Ebeade described Quinn as walking without a
limp and without walking aids, but noted "he walks with a dramatic slow pace and slight
flexion posture." (Tr. 4 13). Dr. Ebeade performed a physical exam and assessed Quinn' s
range of motion. Dr. Ebeade's report reviewed and briefly summarized Quinn's medical
records, including the October 2007 MRI and records from Dr. Caldera, Jennifer
Riggens, Quinn's physical therapist, Dr. Lee and Dr. McKay. (Tr. 416-417). Dr. Ebeade
opined that Quinn had achieved his maximum medical improvement, and he rated Quinn
as having a 3 percent impairment in his shoulders, a 0 percent impairment in his knees,
and a 0 percent impairment in his spine. (Tr. 419). Dr. Ebeade assessed Quinn's total
impairment at 3 percent. (Id.) Dr. Ebeade found that Quinn was able to return to work.
(Id.). Ten days after seeing Dr. Ebeade, Quinn received a second series of epidural steroid
injections in his lower back. (Tr. 304).
On April 10, 2008, Quinn filed for social security benefits, alleging that he was
unable to work because of his back injury and the resulting pain. (Tr. 176). On May 23,
2008, Quinn was evaluated for a "Functional Capacity Evaluation" at The Spine and
Rehabilitation Center by Dr. Michael Corey Thompson, a chiropractor. (Tr. 406). Dr.
Thompson noted that Quinn was "cooperative throughout the evaluation." (Id.). Quinn
told Dr. Thompson that he was still in pain from his back injury, and that the steroid
injections and pain medication had not helped. In addition, Quinn stated that he now had
a constant headache and that "therapy seemed to increase his symptoms." Quinn reported
decreased strength in his legs and a numbing and cold sensation in his legs and feet. (Id.).
Dr. Thompson recorded that Quinn had difficulty sitting and standing, a slow and
guarded gait, and "significant" difficulty crawling. (Tr. 407).
He also recorded that
Quinn had "bilateral shoulder pain," significant difficulty with pushing and pulling, and a
limited ability to reach and squat. (Id.).
On May 27, 2008, Quinn again saw Dr. McKay for a follow-up after his second
round of steroid injections. (Tr. 404). Quinn reported "suboptimal" pain relief from the
injections, and that he needed pain medication. (Id.). Quinn also reported neck pain and
migraines "which [had] recently begun." (Id.). Dr. McKay described Quinn as being in
"mild distress" and recommended Quinn see an orthopedic spine surgeon and begin
physical therapy. (Tr. 405).
As part of the disability benefits application process, Quinn appeared for a
consultative physical examination with Dr. Hanna J. Abu-Nassar on June 10, 2008. (Tr.
267). Dr. Abu-Nassar described Quinn as a "well developed, well nourished male in no
apparent distress," and noted he was "mentally clear and cooperative." (Tr. 268).
Although Quinn's back was "exquisite[ly] tender in the mid back as well as in his lower
back," Dr. Abu-Nassar described Quinn's gait as "normal" although "slow," and she
stated that he was able to get on and off the exam table "normally." (Tr. 269). Further,
she noted that Quinn moved around the room "normally" and that there was no evidence
of any muscle atrophy. (Id.).
On June 24, 2008, Dr. Yvonne Post completed Quinn's Physical Residual
Functional Capacity Assessment, opining that he could: (1) occasionally lift 50 pounds
and frequently lift 25 pounds; (2) stand and/or walk for a total of about 6 hours in an 8hour workday; (3) sit with normal breaks for a total of about 6 hours in an 8-hour
workday; (4) push and/or pull without limitations.
The only postural
limitation she imposed was occasional stooping. (Tr. 278). Dr. Post's analysis reviewed
Quinn's medical history and injury, particularly noting the November 6, 2007 exam by
Dr. Lee and the consultative physical exam by Dr. Abu-Nasser. Reviewing the imaging
of Quinn's spine, she concluded "This [claimant's] ability to sustain a normal work week
is not wholly compromised. Limitations caused by allegations are not supported by
medical evidence." (Tr. 283).
On August 4, 2008, Quinn saw Dr. Glenn Bricken, a clinical psychologist, to
assess whether he was a "psychologically appropriate candidate for spine surgery or a
chronic pain program." (Tr. 291). Dr. Bricken noted Quinn was "alert and oriented"
during the exam, and that he did not appear to exhibit any cognitive deficits. (Tr. 292).
Quinn reported a loss of energy, fatigue, insomnia, anger, irritability, and difficulties
concentrating and focusing. (Tr. 292). He also reported anxiety about his future ability
(Id.). Dr. Bricken stated that Quinn "presented as a depressed, anxious
individual" but that "[wlith appropriate medical and psychological intervention, Mr.
Quinn is likely to make additional recovery, learn to work around his injury and return to
gainful employment in a less physically demanding profession." (Tr. 293). Dr. Bricken
recommended Quinn begin a trial of antidepressant medication and undergo individual
psychotherapy. (Tr. 294). Quinn saw Dr. Bricken again on October 7, 2008 and October
20, 2008. (Tr. 430, 429). Each time, Quinn was noted as alert, oriented to person, place
and time, and with intact thought processes and judgment. (Id.). He was described as
having no attention or concentration deficits. (Id.). Dr. Bricken's recommendation after
each of these visits was that Quinn "continue cognitive behavioral therapy." (Id.).
On November 13, 2008, Dr. Bricken filled out a pre-printed form entitled "Mental
Residual Functional Capacity Questionnaire." (Tr. 432). Responding to the questions
posed by the form, Dr. Bricken assessed Quinn's GAF as 50. (Tr. 432). Dr. Bricken also
checked boxes indicating his opinion that Quinn suffered from a number of serious
symptoms, including "[a] pervasive loss of interest in almost all activities," "feelings of
guilt and worthlessness," "appetite disturbance," "difficulty thinking or concentrating,"
and "recurrent severe panic attacks." (Tr. 433). The basis for these opinions was not
provided. Dr. Bricken also checked the box stating that Quinn's prognosis was "poor."
(Tr. 433). He did not explain the change in his opinion from his August report. With
respect to Quinn's "mental abilities and aptitudes," Dr. Bricken checked boxes for almost
every area indicating that Quinn was either "unable to meet competitive standards" or
had "no useful ability to function." (Tr. 434). The only exception was a box that Dr.
Bricken checked to indicate that Quinn was "seriously limited, but not precluded" from
"adher[ing] to basic standards of neatness and cleanliness."
(Tr. 435). As with his
responses elsewhere on the form, Dr. Bricken did not specify the medical findings that
led to these conclusions. (Id). Dr. Bricken checked "Yes" when asked "Does your
patient had a low IQ or reduced intellectual functioning", stating "chronic pain and
medications reduce [patient's] hnctioning and lower IQ."
(Id.). Dr. Bricken also
checked a line to indicate he believed Quinn would be absent "more than four days per
month." (Tr. 435).
Quinn's last examination in the record occurred on February 19, 2009. Quinn
appeared for a consultative psychiatric examination with Dr. Martin H. Keeler. (Tr. 444).
Dr. Keeler noted that Quinn drove himself to the examination and that Quinn was
casually dressed and "did not appear to be an invalid." (Tr. 444). Dr. Keeler stated that
Quinn's "attitude was somewhat contentious" but he noted that was "in keeping with the
fact that he was protecting against the previous denial of disability [benefits]." (Id.).
Quinn "was cooperative but became angry when anything that he said was questioned."
(Id.). Quinn told Dr. Keeler that he had been previously been told to seek treatment for
depression, but that he had not done so. (Id.). Quinn described his depression as
"primarily in terms of feeling angry and disappointed and mistreated."
reported being able to care for his own needs, cooking, shopping and handling finances.
(Tr. 445). Dr. Keeler noted that Quinn "could maintain attention for long periods of
time." (Id.). Dr. Keeler estimated that Quinn was of "average" intelligence, and noted
that Quinn "answered questions accurately and elaborated appropriately. He was logical,
coherent and relevant." (Tr. 447, 446). Dr. Keeler assessed Quinn's GAF as 65, and
opined that Quinn was "depressed and discouraged by does not demonstrate sufficient
signs of major depression to make that diagnosis at this time." (Tr. 447). Dr. Keeler did
note, however, that Quinn "was annoyed throughout the interview." (Id.).
Dr. Keeler provided a medical source statement regarding Quinn's ability to
perform work activities. (Tr. 449). Dr. Keeler opined that Quinn was "mildly limited" in
carrying out simple instructions and in his ability to make judgments on complex workrelated decisions. (Id.). Dr. Keeler also opined that Quinn was mildly limited in his
abilities to interact appropriately with others, stating "He is argumentative at times. The
problem is not whether he could be completely appropriate but whether he would care
to." (Tr. 450).
Procedural Historv and AL J Hearing
On April 10, 2008, Quinn filed an application for social security disability benefits
under Title 11. Quinn's application was denied initially on June 26, 2008, and again upon
reconsideration on October 7, 2008. Quinn requested a hearing before an Administrative
Law Judge ("ALJ"), which took place on December 15,2008 before ALJ Earl W. Crump.
Quinn was represented by counsel at the hearing. (Tr. 31). Quinn and his girlfriend
testified, as did an impartial vocational expert ("VE"). (Tr. 3 1).
After the hearing, the ALJ issued a decision finding that Quinn's date last insured
was December 31, 2011, but that Quinn had not established he was disabled. (Tr. 15).
Accordingly, the ALJ denied Quinn's application for benefits. The ALJ found that Quinn
suffered from severe impairments of lower back problems and depression, but that these
impairments did not, singularly or in combination, meet or medically equal a listing. (Tr.
18, 19). The ALJ found that Quinn had the residual functional capacity ("RFC") to
perform a limited range of light work, but that he was precluded from performing
detailed work or work requiring sustained concentration, attention, persistence and pace
for prolonged periods of time.
The ALJ found that Quinn's statements
regarding his symptoms and their limitations upon his ability to work were not wholly
credible to the extent they conflicted with the RFC. (Tr. 21). The ALJ found that Quinn
was unable to perform his past relevant work, but that he was a younger individual with a
high school education. Considering Quinn's age, education, work experience and RFC,
the ALJ found that there were jobs Quinn could perform that existed in significant
numbers in the national economy. (Tr. 23). Accordingly, the ALJ found that Quinn
"ha[d] not been under a disability" from September 11, 2007 though the date of the
decision, February 26, 2010. (Tr. 24).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. FED. R. CIV.P. 56(a). "The
movant bears the burden of identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact." Triple Tee GoK Inc. v. Nike,
Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-25, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986)). If the burden of proof at trial lies with
the nonmoving party, the movant may satisfy its initial burden by "'showing-that
pointing out to the district court-that
there is an absence of evidence to support the
nonmoving party's case." Celotex, 477 U.S. at 325. Although the party moving for
summary judgment must demonstrate the absence of a genuine issue of material fact, it
does not need to negate the elements of the nonmovant's case. Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). "A fact is 'material' if its resolution in
favor of one party might affect the outcome of the lawsuit under governing law."
Sossamon v. Lone Star State o Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotation
omitted). "If the moving party fails to meet [its] initial burden, the motion [for summary
judgment] must be denied, regardless of the nonmovant's response." United States v.
$92,203.00 in US. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
STANDARD OF REVIEW
Judicial review of the Commissioner's final decision under 42 U.S.C. tj 405(g) is
limited to whether the decision is supported by substantial evidence in the record and
whether the proper legal standard was used in evaluating the evidence. Greenspan v.
Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 514 U.S. 1120 (1995); Anthony v.
Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). Substantial evidence is such evidence that a
reasonable mind might accept as adequate to support the decision.
Perales, 402 U.S. 389, 401 (1971). The Court must affirm the Commissioner's final
decision when substantial evidence supports the Commissioner's decision and the
Commissioner followed the relevant legal standards. See Carey v. ApfeZ, 230 F.3d 131,
135 (5th Cir. 2000). Reversal is appropriate only if no credible evidentiary choices
support the Commissioner's decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
1988). Indeed, "[tlhe court does not reweigh the evidence in the record, try the issues de
novo, or substitute its judgment for the Commissioner's, even if the evidence weighs
against the Commissioner's decision." Carey, 230 F.3d at 135, citing Brown v. Apfel,
192 F.3d 492,496 (5th Cir. 1999).
The claimant bears the burden of proving his disability by establishing a physical
or mental impairment lasting at least 12 months and preventing him from engaging in any
(2004). To determine whether a claimant
substantial gainful activity. 42 U.S.C. $ 1 3 8 2 ~
is capable of engaging in any substantial gainful activity, the Commissioner applies a
five-step sequential evaluation process. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir.
1994); 20 C.F.R. § 416.920(a)(4) (2010). A finding that a claimant is disabled at any
point in the five-step process is conclusive and terminates the Commissioner's analysis.
Bowling, 36 F.3d at 435. Although the burden of production shifts to the Commissioner
at step five, the ultimate burden of persuasion remains with the claimant. See Perez v.
Barnhart, 415 F.3d 457,461 (5th Cir. 2005).
Quinn first contends that the ALJ should have made a finding as to whether he
was capable of holding a job for a significant period of time. Next, Quinn contends that
the ALJ failed to properly account for (1) his shoulder pain, (2) limitations on his ability
to walk or stand, and (3) his mental impairments. Quinn also argues that the ALJ should
have found his shoulder impairment was "severe."
A. Statutory Basis for Benefits
Quinn applied for Social Security disability insurance benefits. Social Security
disability insurance benefits are authorized by Title I1 of the Social Security Act. The
disability insurance program provides income to individuals who are forced into
involuntary, premature retirement, provided they are both insured and disabled,
regardless of indigence. See 42 U.S.C.
5 423(c) (definition of insured
status); 42 U.S.C.
5 423(d) (definition of disability).
B. Determination of Disability
Under the Social Security Act, a "disability" is defined 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 12 months." 42 U.S.C.
5 423(d)(l)(A). A
claimant is disabled "only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy . . . ." Id.
A "physical or mental impairment" is an anatomical, physiological, or psychological
abnormality demonstrable by acceptable clinical and laboratory diagnostic techniques.
Id.; 42 U.S.C.
A disability claim is examined in a five-step sequential analysis to determine
whether "(1) the claimant is presently working; (2) the claimant has a severe impairment;
(3) the impairment meets or equals an impairment listed in Appendix 1 of the social
security regulations; (4) the impairment prevents the claimant from doing past relevant
work; and (5) the impairment prevents the claimant from doing any other substantial
gainful activity." Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). If, at any step,
the claimant is determined to be disabled or not disabled, the determination is conclusive
and the inquiry ends. Id.
The burden of establishing disability rests with the claimant for the first four steps,
and then shifts to the Commissioner to show that there is other substantial work in the
national economy that the claimant is able to perform. Id. The Commissioner's analysis
at steps four and five is based on the assessment of the claimant's residual functional
capacity ("RFC"), or the work a claimant still can do despite his or her physical and
mental limitations. Perez v. Barnhart, 415 F.3d 457, 461-62 (5th Cir. 2005); 20 C.F.R.
§§ 404.1545, 416.945. The Commissioner assesses the RFC before proceeding from step
three to step four. Id. Once the Commissioner shows that a claimant is able to perform a
significant number of jobs in the national economy, the burden shifts back to the plaintiff
to rebut this finding. Id.
C. The ALJ was not required to make a finding regarding Quinn's ability
to maintain employment.
The ALJ found that Quinn had the RFC to perform a limited range of light work,
but precluded him from performing detailed work or work requiring sustained
concentration, attention, persistence and pace for prolonged periods of time. (Tr. 20).
Relying on the holding in Singletary v. Bowen, Quinn argues that the ALJ should also
have made a finding as to whether Quinn was capable of holding a job for a significant
period of time. 798 F.2d 818 (5th Cir. 1986). Quinn argues that, due to his allegedly
near-constant back pain and episodic numbness, as well his mental impairment, he cannot
maintain long periods of concentration and he contends this inability to concentrate
should have resulted in a finding that he is unable to maintain employment.
The Fifth Circuit has specifically rejected the contention that an ALJ who finds
that a claimant can obtain employment must always make such a second finding. See,
e.g., Frank v. Barnhart, 326 F.3d 618, 621 (5th Cir. 2003) ("Singletary simply interpreted
'disability' under the Act to apply to cases in which a person could work for short
periods, but could not hold a job. It did not require . . . separate findings on "obtaining"
and "maintaining" a job in every case. . . "). Instead, a finding that the claimant can
maintain employment is required only when the claimant's impairment "waxes and
wanes" in its manifestation of disabling symptoms. Frank, 326 F.3d at 619. In Frank,
the Fifth Circuit gave an example of when separate finding of a claimant's ability to
maintain employment might be required: "For example, if [the Plaintiff] had alleged that
her degenerative disc disease prevented her from maintaining employment because every
number of weeks she lost movement in her legs, this would be relevant to the disability
determination." Id. Similarly, a claimant's allegation that he has "good days and bad
days" simply does not rise to the level of impairment that would require a second
separate finding regarding the claimant's ability to maintain employment. Perez v.
Barnhart, 415 F.3d 457,465 (5th Cir. 2005).
Additionally, "it is not enough for a claimant to assert, in general, that the
impairment waxes and wanes; the claimant must demonstrate that his particular
impairment waxes and wanes." Tigert v. Astrue, 2012 WL 1889694, 7 (N.D. Tex. May 2,
2012) (Magistrate Judge J. Cureton) (adopted May 24,2012); see also Frank, 326 F.3d at
465 ("It is axiomatic that the pain from any type of ailment will vary in intensity,
especially the farther one gets from treatment that alleviates pain."). Instead, any
fluctuations of the claimant's symptoms record are to be taken into account during ALJ's
formulation of the RFC, which is "an assessment of an individual's ability to do sustained
work-related physical and mental activities, meaning eight hours a day for five days a
week." SSR 96-8p; see, e.g., Dunbar v. Barnhart, 330 F.3d 670, 671 (5th Cir. 2003)
(separate finding on ability to maintain employment is not required "absent evidence that
a claimant's ability to maintain employment would be compromised despite his ability to
perform employment as an initial matter, or an indication that the ALJ did not appreciate
that an ability to perform work on a regular and continuing basis is inherent in the
definition of RFC").
The record does not show that Quinn has not established that he has the type of
impairments contemplated by Frank. Instead, the substantial evidence in the record
demonstrates that Quinn's back pain was largely self-reported and that it improved with
treatment and medication. Substantial evidence also supported the ALJ's finding that
Quinn's testimony about the level of interference posed by his back pain was not wholly
credible to the extent it conflicted with the objective medical evidence in the record.
Similarly, Quinn's mental impairment of depression arose out of his back pain and
medical providers opined that his depression was expected to improve with medication
and treatment. Even though the evidence raised questions about the level to which these
symptoms interfered with Quinn's ability to concentrate, the ALJ nonetheless assessed an
RFC that accounted for these alleged issues. The ALJ found that Quinn had the RFC to
perform a limited range of light work, but precluded him from performing detailed work
or work requiring sustained concentration, attention, persistence and pace for prolonged
periods of time. (Tr. 20). Thus, the ALJ's RFC properly accounted for the issues Quinn
now raises and the ALJ was not required to make a separate finding as to whether Quinn
was able to maintain employment over a period of time.
D. The ALJ's RFC determination is supported by substantial evidence.
Next, Quinn contends that the ALJ's RFC analysis failed to properly account for
(1) his shoulder pain, (2) limitations on his ability to walk or stand, and (3) his mental
impairments. Quinn also argues that the ALJ should have found his shoulder impairment
1. Quinn's Shoulder Pain
The ALJ found that Quinn had the RFC to perform a limited range of light work,
limiting him to lifting andlor carrying 20 pounds occasionally and 10 pounds frequently;
pushing andlor pulling 20 pounds occasionally and 10 pounds frequently; standing and/or
walking for 6 hours in an 8-hour day; sitting for 6 hours in an 8-hour workday; and only
occasional climbing, balancing, stooping, kneeling, crouching and crawling. (Id.) Quinn
argues that this RFC fails to adequately account for his shoulder impairment, and he also
argues the ALJ erred by not including his shoulder pain among his list of severe
The evidence does not support Quinn's argument that his shoulder pain is a severe
impairment. The relevant standard for determining whether an impairment is "severe" is
found in Fifth Circuit's holding in Stone v. Heckler that an impairment is not severe "only
if it is a slight abnormality [having] such minimal effects on the individual that it would
not be expected to interfere with the individual's ability to work." 752 F.2d 1099, 1101
(5th Cir. 1985). Quinn bears the burden of establishing that his impairment is "severe."
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
However, Quinn did not list
shoulder pain on his initial application for benefits, except to generally state that "back
injury has caused pain overall in my entire body," nor did his descriptions of his
symptoms include any shoulder pain or impairment. (Tr. 176, 184). Quinn's 8-page
Function Report, listing his alleged symptoms and limitations at length, contains only one
mention of shoulder pain-he
states his ability to reach overhead is "limited" due to
shoulder pain. (Tr. 202).
Next, the medical evidence contains little mention of Quinn reporting shoulder
pain or limitations. The only two doctors whose notes contain discussion of shoulder
pain are Dr. Thompson and Dr. Ebeade, who evaluated Quinn for a workers
compensation claim. Dr. Thompson saw Quinn for a "Functional Capacity Evaluation"
and noted Quinn complained of bilateral shoulder pain when pushing, pulling and
reaching. (Tr. 407). The evaluation was "incomplete" but generally noted that Quinn's
functional strength testing was "fair" to "good," despite Quinn's complaints of shoulder
pain. (Tr. 408). Similarly, Dr. Ebeade assessed only a 3 percent impairment in Quinn's
shoulders and he opined that Quinn could return to work with this impairment. (Tr. 413).
Dr. Ebeade's finding of 3 percent impairment is unexplained.
Finally, at the ALJ hearing, Quinn did not mention any pain in his shoulders until
he was specifically prompted by the ALJ. (Tr. 53). When asked, Quinn stated he could
not reach over head with either arm because "both of my shoulders were injured also."
(Tr. 53). The record, however, does not reveal any independent injury to Quinn's
shoulders. Finally, during the hearing, Quinn told the ALJ that he was not taking any
pain medication for his back or shoulder pain.
Even if Dr. Ebeade's opinion that Quinn had a 3 percent impairment in his
shoulders had been well-explained and supported, Quinn has not provided any authority
to show that a 3 percent impairment constitutes a "slight abnormality" that would have
more than a "minimal effect" on him and "be expected to interfere with his ability to
work." Additionally, Quinn was not taking pain medication for his shoulders or back
pain, and the ALJ found that Quinn's testimony about his pain and symptoms was not
fully credible to the extent it conflicted with the medical record. Accordingly, the ALJ
did not err by failing to include Quinn's alleged shoulder pain among the list of his
"severe" impairments. See, e.g., Joubert v. Astrue, 287 Fed. App'x 380 (5th Cir. 2008)
(substantial evidence supported ALJ's determination that claimant's hypertension, chest
pain and back pain were not severe when medical evidence showed few complaints of
pain and only limited treatment, and medication controlled symptoms).
Next, Quinn argues that his shoulder pain limits his ability to "push, pull, and
reach" and the RFC assessed was in error. In making an RFC assessment, the ALJ must
consider all symptoms, including pain, and the extent to which these symptoms can be
reasonably accepted as consistent with objective medical evidence and other evidence.
The ALJ must also consider limitations and restrictions imposed by all of an individual's
impairments, even impairments that are not severe. See 20 C.F.R. §§ 404.1529, 416.929;
SSR 96-7p; SSR 96-8p.
The ALJ limited Quinn's RFC to less than the full range of
light work: i.e., to lifting and/or carrying 20 pounds occasionally and 10 pounds
frequently; pushing and/or pulling 20 pounds occasionally and 10 pounds frequently.
Even Quinn admitted that, without any pain medication, he could lift a gallon of milk and
perform some limited household chores. (Tr. 53). This is significantly more restricted
than the RFC assessed by Dr. Post (Tr. 277), and is in line with Quinn's own estimations
of his abilities. (Tr. 406). Accordingly, the RFC took Quinn's alleged limitations into
account and the medical evidence in the record does not support greater limitations than
those imposed by the ALJ.
2. Limitations on Ability to Walk or Stand
Quinn also contends the ALJ failed to account for his limited ability to walk and
stand, and he contends the ALJ's RFC is not supported by substantial evidence. The ALJ
limited Quinn to standing and/or walking for 6 hours in an 8-hour day, and sitting for 6
hours in an 8-hour workday. Quinn relies on his 2007 MRI, which he contends shows
"posteroiated disc protrusion and sponylosis [sic] with mass affect upon the left
ventrolateral thecal sac and left and right nerve root." Quinn also points to Dr.
Thompson's notes that he had "significant difficulty" and pain upon standing, and to Dr.
Lee's notes that he reported "jolting pain" when walking.
The notes to which Quinn points are largely records of his self-reported
symptoms. In contrast, there is substantial evidence in the medical record showing that
Quinn retained normal lower extremity strength and that his movements and gait were
repeatedly described as "normal." (Tr. 370, 245, 269). Further, the spondylosis of the
spine to which Quinn points was described as "minimal" and Dr. Lee, upon whom Quinn
relies, released Quinn to return to work in 2007. (Tr. 258). Finally, even Quinn testified
he could walk "maybe a couple of blocks." (Tr. 52). Substantial evidence therefore
supports this portion of the ALJ's RFC assessment.
3. Mental Impairments
Finally, Quinn contends the ALJ erred in finding that he was only "mild[ly]"
limited in social functioning. Quinn points to Dr. Bricken's opinion that Quinn was
unable to maintain socially appropriate behavior, and to Dr. Keeler's notes that Quinn
was "annoyed and "isolated and "argumentative."
Dr. Bricken's notes from his examinations of Quinn note that Quinn was "alert
and oriented," and that he did not appear to exhibit any cognitive deficits. (Tr. 292). Dr.
Bricken further stated that "[wlith appropriate medical and psychological intervention,
Mr. Quinn is likely to make additional recovery, learn to work around his injury and
return to gainful employment in a less physically demanding profession." (Tr. 293).
These notations contrast sharply with the opinions Dr. Bricken later reported via a preprinted form entitled "Mental Residual Functional Capacity Questionnaire." (Tr. 432).
The ALJ discounted the bulk of Dr. Bricken's opinions on this form as "internally
inconsistent and inconsistent with the record as a whole." (Tr. 22). The ALJ noted that
Dr. Bricken's opinions of Quinn's limitations were "highly excessive" and contradicted
Dr. Bricken's own notes. (Id.). This type of treating physician questionnaire has been
described by the Fifth Circuit as "typify[ing] 'brief or conclusory' testimony." Foster v.
Astrue, 410 Fed. App'x. 83 1, 833 (5th Cir. Feb.10, 201 1). The substantial evidence in the
record supports the ALJ's decision to discount Dr. Bricken's opinions regarding Quinn's
social functioning as being inconsistent and unsupported.
Similarly, Dr. Keeler's notes do not support Quinn's claim that the ALJ should
have found greater social limitations. Dr. Keeler, a consulting psychiatric examiner,
noted that Quinn's "attitude was somewhat contentious in keeping with the fact that he
was protecting against the previous denial of disability [benefits]." (Tr. 444). Dr. Keeler
observed that Quinn "was cooperative but became angry when anything that he said was
(Id.) Dr. Keeler did note that Quinn "was annoyed throughout the
interview," but found that he was only "mildly limited" in his abilities to interact
appropriately with others, stating, "The problem is not whether he could be completely
appropriate but whether he would care to." (Tr. 450). These statements, and Dr. Keeler's
opinions as a whole, are consistent with the ALJ's finding regarding Quinn's mental
Substantial evidence therefore supports the ALJ's findings regarding
Quinn's mental limitations.
A review of the record reveals that the ALJ applied the appropriate legal standards
in making his determination. A review of the pleadings, the discovery and disclosure
materials on file, and any affidavits shows that there is no genuine issue as to any
material fact in this case, and summary judgment is therefore appropriate. FED.R. CIV.P.
56(c). Accordingly, Quinn's Motion for Summary Judgment is DENIED and the
Commissioner's Motion for Summary Judgment is GRANTED.
Signed at Houston, Texas on June 6,20 13
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