Parker v. Astrue

Filing 17

MEMORANDUM AND ORDER denying 11 MOTION for Summary Judgment , granting 12 MOTION for Summary Judgment (Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PATRICIA A. PARKER,

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Plaintiff,
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V.
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CAROLYN W. COLVIN, COMMISSIONER §
OF THE SOCIAL SECURITY
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ADMINISTRATION,
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Defendant.
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CIVIL ACTION NO. H-12-3068

MEMORANDUM AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court1 in this social security appeal is Plaintiff’s Motion for Summary Judgment
(Document No. 11), and Defendant’s cross Motion for Summary Judgment (Document No. 12).
After considering the cross motions for summary judgment, the parties’ additional briefing, the
administrative record, the written decision of the Administrative Law Judge, and the applicable law,
the Court ORDERS, for the reasons set forth below, that Plaintiff’s Motion for Summary Judgment
is DENIED, Defendant’s Motion for Summary Judgment is GRANTED, and the decision of the
Commissioner is AFFIRMED.

1

On May 2, 2013, pursuant to the parties’ consent, this case was transferred by the District
Judge to the undersigned Magistrate Judge for all further proceedings. See Document No. 9.

I.

Introduction
Plaintiff Patricia A. Parker (“Parker”) brings this action pursuant to Section 205(g) of the

Social Security Act (“Act”), 42 U.S.C. § 405(g), seeking judicial review of an adverse final decision
of the Commissioner of the Social Security Administration (“Commissioner”) denying her
application for supplemental security income benefits (“SSI”). Parker argues in one point of error
that the ALJ “failed to consider all of the evidence.” The Commissioner, in contrast, argues that
there is substantial evidence in the record to support the ALJ’s decision, and that the decision
comports with applicable law.

II.

Administrative Proceedings
On or about February 25, 2010, Parker applied for SSI, claiming that she has been unable to

work since June 30, 2008, as a result of depression and a left shoulder torn rotator cuff. (Tr. 100103; 136).

The Social Security Administration denied the application at the initial and

reconsideration stages. After that, Parker requested a hearing before an ALJ. The Social Security
Administration granted her request and the ALJ, Justilian Martin, held a hearing on August 5, 2011,
at which Parker’s claims were considered de novo. (Tr. 9-28). On August 26, 2011, the ALJ issued
his decision finding Parker not disabled. (Tr. 34-41).
Parker sought review of the ALJ’s adverse decision with the Appeals Council. The Appeals
Council will grant a request to review an ALJ’s decision if any of the following circumstances are
present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an error of law in
reaching his conclusion; (3) substantial evidence does not support the ALJ’s actions, findings or
conclusions; or (4) a broad policy issue may affect the public interest. 20 C.F.R. § 416.1470. On
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May 2, 2012, the Appeals Council found no basis for review (Tr. 1-3), and the ALJ’s decision thus
became final.
Parker filed a timely appeal of the ALJ’s decision. 42 U.S.C. § 405(g). The parties have
filed cross motions for summary judgment (Document Nos. 11 & 12). The appeal is now ripe for
ruling.

III.

Standard for Review of Agency Decision
The court’s review of a denial of disability benefits is limited “to determining (1) whether

substantial evidence supports the Commissioner’s decision, and (2) whether the Commissioner’s
decision comports with relevant legal standards.” Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
Indeed, Title 42, Section 405(g) limits judicial review of the Commissioner’s decision: “The findings
of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive.” The Act specifically grants the district court the power to enter judgment, upon the
pleadings and transcript, “affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing” when not supported by
substantial evidence. 42 U.S.C.§ 405(g). While it is incumbent upon the court to examine the record
in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d 1233, 1236
(5th Cir. 1979), the court may not “reweigh the evidence in the record nor try the issues de novo, nor
substitute [its] judgment for that of the [Commissioner] even if the evidence preponderates against
the [Commissioner’s] decision.” Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Jones v.
Apfel, 174 F.3d 692, 693 (5th Cir. 1999); Cook v. Heckler, 750 F.2d 391 (5th Cir. 1985). Conflicts
in the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th
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Cir. 1992).
The United States Supreme Court has defined “substantial evidence,” as used in the Act,
to be “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co.
v. N.L.R.B., 305 U.S. 197, 229 (1938). Substantial evidence is “more than a scintilla and less than
a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence must create
more than “a suspicion of the existence of the fact to be established, but no ‘substantial evidence’
will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical
evidence.’” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).

IV.

Burden of Proof
An individual claiming entitlement to disability insurance benefits under the Act has the

burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The 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 12 months.” 42
U.S.C. § 423(d)(1)(A). The impairment must be proven through medically accepted clinical and
laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment must be so severe as to
limit the claimant in the following manner:
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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied to work.
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42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one
is suffering from a disability. Rather, a claimant is disabled only if he is “incapable of engaging in
any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting
Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986)).
The Commissioner applies a five-step sequential process to decide disability status:
1.

If the claimant is presently working, a finding of “not disabled” must be
made;

2.

If the claimant does not have a “severe impairment” or combination of
impairments, he will not be found disabled;

3.

If the claimant has an impairment that meets or equals an impairment listed
in Appendix 1 of the Regulations, disability is presumed and benefits are
awarded;

4.

If the claimant is capable of performing past relevant work, a finding of “not
disabled” must be made; and

5.

If the claimant’s impairment prevents him from doing any other substantial
gainful activity, taking into consideration his age, education, past work
experience and residual functional capacity, he will be found disabled.

Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this framework, the claimant bears the burden
of proof on the first four steps of the analysis to establish that a disability exists. If successful, the
burden shifts to the Commissioner, at step five, to show that the claimant can perform other work.
McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner shows that other jobs
are available, the burden shifts, again, to the claimant to rebut this finding. Selders v. Sullivan, 914
F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the Commissioner determines that the
claimant is or is not disabled, the evaluation ends. Leggett, 67 F.3d at 563.

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Here, the ALJ found at step one that Parker had not engaged in substantial gainful activity
since February 24, 2010, her amended alleged onset date. At step two, the ALJ found that Parker’s
left rotator cuff tear, morbid obesity, diabetes mellitus and hypertension were all severe impairments.
At step three, the ALJ concluded that Parker did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. The ALJ then, prior to consideration
of steps four and five, determined that Parker had the residual functional capacity (“RFC”) to
perform a limited range of sedentary work, including the ability to “lift/carry 10 pounds occasionally
and less than 5 pounds frequently; stand/walk 2 hours in an 8 hour workday with normal breaks; sit
6 hours in an 8 hour workday with normal breaks; never climb ladders, ropes, scaffolds; no work at
unprotected heights; and no overhead reaching with the left arm [but] could reach at waist level.”
(Tr. 37). At step four, using that RFC and relying on the testimony of a vocational expert, the ALJ
determined that Parker could perform her past relevant work as a security officer/supervisor as that
work was actually and generally performed, and that she was, therefore, not disabled.
In this appeal, Parker’s only argument is that the ALJ failed to consider all the evidence,
including the medical opinion of Dr. Frank Barnes, and her inability to afford treatment.2 According
to Parker, this failure constitutes reversible error.

V.

Discussion
In a Medical Record Review dated July 21, 2011, Dr. Frank Barnes, from his review of

Parker’s MRI results of July 8, 2011, wrote:
Ms. Parker has a condition in her left shoulder which will cause a great deal of pain
2

Parker makes no argument as to the ALJ’s assessment of her alleged depression.
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and weakness of her left upper extremity. It also limits the effective motion of the
shoulder.
It requires a surgical operation for relief of the problem. The usual recovery time of
this surgery is between 6 and 12 months. The recovery time is longer in older
patients such as Ms. Parker.
(Tr. 269-270). The ALJ did not mention or discuss this opinion of Dr. Barnes in his written decision.
In that respect Parker is correct. Parker is incorrect, however, that the ALJ’s failure to mention or
discuss Dr. Barnes’ opinion means that he didn’t consider it, or that he committed reversible error.
The medical evidence in the record is quite sparse (Tr. 217-272). There is no dispute in the
objective medical evidence or in the expert medical opinion evidence that Parker has a left rotator
cuff tear. There is also no real dispute in the record that Parker’s left rotator cuff tear causes Parker
pain. The medical expert who testified at the hearing, Dorothy Leong, admitted as much (Tr. 21-25).
The only real dispute presented by the evidence in the record was whether the pain from Parker’s left
rotator cuff tear was disabling. The ALJ concluded, as follows, that it was not:
The claimant has complaints of left shoulder pain. X-ray of the left shoulder shows
no fracture, dislocation or bony spurs. There is minimal narrowing of joint space
(Ex. 2F2). Claimant was advised to have an MRI but stated that she had
claustrophobia and would not go for [a] regular MRI. She was advised to have an
open MRI done but never went for that (Ex. 9F). Subsequently, the claimant finally
went for an open MRI, performed in July 2011, which showed a complete tear of the
supraspinata tendon (Ex. 7F1). The claimant had been taking Ibuprofen at [the] time
and stated it g[ave] her relief, however she has not been taking [it] on a regular basis
(Ex. 2F1). The claimant has deferred treatment based on financial considerations.
The claimant has received AC injection with relief (Ex. 4F3, 10F1, 11F2).
The claimant has not sought or received treatment on a regular basis alleging she
cannot afford treatment (Ex. 10F1). However, the claimant has a smoking habit that
is inconsistent with the claimant’s allegations that she cannot afford treatment. In
addition, the claimant testified she is not currently on any pain medication, despite
the complaints of disabling pain. Even if the claimant could not afford private care,
treatment is available through the indigent programs. If the claimant’s condition was
not severe enough to motivate her to seek treatment, it is difficult to accept her
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assertion that her impairments are disabling.

The claimant appears to be able to perform her activities of daily living adequately.
The claimant lives alone. She has not reported needing any particular assistance.
She indicated she is able to make her own meals. She takes care of and walks her
dog. She watches television and reads during the day. She is able to drive her jeep
and goes out alone unassisted. She goes grocery shopping twice a month. She is able
to take care of her personal needs such as dressing and bathing. She does laundry,
dusts and washes dishes. She walks, 20 minutes, for exercise. She visits with people
and talks to friends on the phone (Ex. 7E). Overall, the claimant’s activities of daily
living provide support for the residual functional capacity as found herein.
Although the claimant has complaints of severe pain, it is the conclusion of the
Administrative Law Judge that the pain experienced by the claimant is limiting, but
when compared with the total evidence, not severe enough to preclude all types of
work. The claimant has described daily activities that are not limited to the extent
one would expect, given the complaints of disabling symptoms and limitations. The
issue is not the existence of pain, but rather the degree of incapacity incurred because
of it. While the claimant complains of severe pain, it does not seem reasonable to
conclude from the findings in evidence that such could be the basis for the degree of
pain alleged. The claimant does not appear to be experiencing progressive physical
deterioration which might be expected when there is intense and continuous pain.
This is not to say the claimant is pain-free; however, the evidence did not support a
finding that [her] pain is disabling. It did not appear that the claimant’s pain is of
such frequency, intensity, or duration as to be disabling. The evidence of record
failed to demonstrate the presence of pathological clinical signs, significant medical
findings, or neurological abnormalities which would establish the existence of a
pattern of pain of such severity that would contraindicate claimant in engaging in all
substantial gainful activity.
As for the opinion evidence, the undersigned concurs with the state agency medical
consultants’ determination that the claimant’s condition is not severe enough to keep
her from working. Despite her multiple impairments, the evidence did not show that
her ability to perform basic work activities was as limited as she had indicated.
Moreover, the undersigned notes that none of the claimant’s treating physicians have
stated that she cannot work.
In sum, the above residual functional capacity assessment is supported by the
objective medical evidence and the credible testimony of Dr. Leong.
(Tr. 39-40). The ALJ’s conclusion is supported by the record as a whole. The objective medial
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evidence shows that Parker has a left torn rotator cuff, accompanied by tenderness and pain on
palpation of the acromioclavicular joint, pain over the shoulder joint on abduction, and an inability
to raise her arm more than 80-90% of abduction. (Tr. 217-218, 221-223, 227). She takes only overthe-counter medication for pain, and does not even do so regularly. The testifying medical expert,
Dr. Leong, opined from her review of Parker’s medical records that Parker could, even with her left
torn rotator cuff, engage in a limited range of sedentary work activities. (Tr. 21-23). Parker’s
subjective complaints of pain and limited range of motion were found to be not fully credible and
inconsistent with her reported daily activities. (Tr. 40, 172-178). Finally, her past work as a security
officer/supervisor, as reported by Parker, did not require any overhead lifting or reaching and was
therefore within her ability to perform a limited range of sedentary work. (Tr. 27, 167).
Given that the record fully supports the ALJ’s determination that Parker is able to engage in
a limited range of sedentary work that does not require overhead lifting or reaching, including her
past work as a security officer/supervisor, there was no need for the ALJ to discuss each and every
piece of evidence in the record. Bordelon v. Shalala, 31 F.3d 661, 1994 WL 684574 *1 (5th Cir.
1994) (“the ALJ need not discuss every piece of evidence in the record”); Castillo v. Barnhart, 151
F.App’x 334, 2005 WL 2675002 *1 (5th Cir. 2005) (“That the ALJ did not specifically cite each and
every piece of medical evidence considered does not establish an actual failure to consider the
evidence.”); Hulen v. Colvin, No. EP-12-CV-178-RFC, 2013 WL 4788816 (W.D. Tex. Sept. 6,
2013) (“It is not necessary for an ALJ to summarize and discuss every piece of record evidence in
his decision.”); see also Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994) (“That [the ALJ] did not
follow formalistic rules in his articulation compromises no aspect of fairness or accuracy that this
process is designed to ensure.”). With respect to the opinion of Dr. Barnes, the record shows that
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Dr. Barnes’ opinion was fully explored with the testifying medical expert at the administrative
hearing:
Q:
Yeah, Doctor, in regard to Exhibit 10F, we have the review by Dr. Barnes.
You read that report, right?
A:

Yes.

Q:
Okay. Now he mentions one of the three things of significance that are in
this, the later MRI, Item 2, severe impingement upon the subacromial space and
rotator cuff was seen. He concludes from that review, in quote, great deal of pain.
I’m assuming you’re feeling you’re feeling like you’re disagreeing with Barnes
because your testimony is implying that she could work eight hours a day with the
restriction that you said. Is that correct?
A:
I don’t know how he would determine that she would have a great amount of
pain unless, you know, she’s reported that to him. But was this paper review on his
part?
Q:

Paper review.

A:

I’m sorry. W[as] it paper review?

Q:
Paper review, right. Paper review, yeah, exactly. He did not evaluate her
directly, no.
A:

Right.

Q:
So my question is, when you read severe impingement, you’re very
comfortable reading that and you having not examined her either being sure that she
can work eight hours a day five days a week?
A:

Back up a little bit. Where are you reading severe impingement?

Q:

That’s –

A:

Where are you reading that?

Q:

That’s the second, the MRI result, the one on 7/18.

A:
Let me just pull that out real quick. Yeah, she does have some evidence of
severe subacromial – I’m sorry, severe impingement of subacromial space. That
basically would indicate that, you know, you would have limitations in overhead
activity, you know. Basically you don’t move your shoulder above, you know, above

waist level you would probably have problems there.
Q:
So you’re saying the severe impairment is not going to have no – any pain
consequence unless you’re in that reaching posture?
A:

That is correct.

Q:

What is your, what is your speciality?

A:
It’s physical medicine and rehabilitation. Again, overhead activities would
be what would be causing the impingement.
\

Q:

Okay.

A:

Because you’re rubbing the bone against the tendon overhead.

Q:
So you’re saying just moving around in a clerical position where you’re
working at a desk reaching down, you pick something off the floor, go onto a shelf
and getting something basically waist height, you’re absolutely sure that that pain is
never going to reach the point where she is not, she is not going to be able to work
eight hours a day 40 hours a week? You’re sure of that?
A:
Cannot say it with absolute certainty, you know, but based on medical
probability.
(Tr. 23-25).
In addition, with respect to the ALJ’s alleged failure to inquire about and consider the reasons
Parker did not seek treatment, the record shows that Parker was, notwithstanding her failure to seek
treatment, not disabled by her torn rotator cuff. Where there is no evidence of a disabling condition,
a claimant’s inability to afford treatment is irrelevant. Fellows v. Apfel, 211 F.3d 125, 2000 WL
309976 *3 (5th Cir. 2000); see also Sustaita v. Astrue, No. EP-11-CV-00178-RFC, 2012 WL
3581163 *4 (5th Cir. Aug. 17, 2012) (“Where there is no evidence that a condition would be
disabling without regular treatment, however, the ALJ may properly consider the lack of treatment
otherwise unavailable due to indigence as evidence of non-disability.”). As such, in this case, where

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there was no evidence in the record that Parker was disabled as a result of any of her impairments,
including her left torn rotator cuff, her failure to seek treatment and the reasons for that failure,
including her inability to afford treatment, was irrelevant. As such, the ALJ did not err in failing to
inquire about her financial ability to seek treatment.
In all, because there is nothing in the record that supports the conclusion that Parker cannot
perform her past work as a security officer/supervisor, the ALJ did not err in failing to mention the
opinion of Dr. Barnes or inquire about the reasons Parker did not seek regular medical treatment.
Additionally and alternatively, even if the ALJ erred in failing to mention and discuss Dr. Barnes’
opinion, and erred in failing to develop the record as to Parker’s difficulties in obtaining medical
treatment, such error was harmless. An error is harmless if it does not “affect the substantial rights
of a party,” Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012), or when it “is inconceivable that the
ALJ would have reached a different conclusion” absent the error. Frank v. Barnhart, 326 F.3d 618,
622 (5th Cir. 2003); Bornette v. Barnhart, 466 F.Supp.2d 811, 816 (E.D. Tex. 2006) (“Harmless error
exits when it is inconceivable that a different administrative conclusion would have been reached
absent the error.”).

Here, the record shows that Parker, by her own admission as to the daily

activities she did perform (Tr. 172-178), could also perform her past work as a security
officer/supervisor, as she described it:
the job is described as supervisor for Mrs. Baird’s Bakery. Checks all visitors in and
out, answer the phone . . . Doing and writing complete reports, perform duties like
this, yes, walking, zero, standing two, sitting six, climbing zero, stooping zero,
kneeling zero, crouching zero, crawling zero, handling and grasping big objects,
reaching zero, write type or hand – small objects, telephone is written in.
(Tr. 26-27; 167). The ALJ’s decision is therefore supported by substantial evidence in the record
and is not the product of the ALJ’s failure to consider all the evidence.
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VI.

Conclusion and Order
Based on the forgoing, and the conclusion that the ALJ did not err, and that if he did err such

error was harmless, it is
ORDERS that Defendant's Motion for Summary Judgment (Document No. 12) is
GRANTED, Plaintiff’s Motion for Summary Judgment (Document No. 11) is DENIED, and the
Commissioner's decision is AFFIRMED.
Signed at Houston, Texas, this 5th day of March, 2014.

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