Spencer v. Astrue
Filing
22
MEMORANDUM AND ORDER denying 19 Opposed MOTION for Summary Judgment and Response to Defendants Motion for Summary Judgment filed September 16, 2013; granting 15 Cross MOTION for Summary Judgment . The decision of the Commissioner of Social Security is affirmed. (Signed by Magistrate Judge Frances H Stacy) Parties notified.(glyons, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TONY EUGENE SPENCER,
Plaintiff,
vs.
CAROLYN W. COLVINl,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION
Defendant.
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO.4: 13-CV-OOI17
MEMORANDUM AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
Before the Magistrate Judge 2 in this social security appeal is Defendant's Motion for
Summary Judgment and Memorandum in Support (Document No. 15), Plaintiff's Motion for
Summary Judgment and Memorandum in Support (Document No. 19), and Defendant's
Response in Opposition to Plaintiff's Motion for Summary Judgment (Document No. 21). After
considering the cross-motions for summary judgment, the administrative record, the written
decision of the Court, and the applicable law, the Magistrate Judge ORDERS, for the reasons set
forth below, that Defendant's Motion for Summary Judgment is GRANTED, Plaintiff's Motion
for Summary Judgment is DENIED, and the decision of the Commissioner is AFFIRMED.
1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on
February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she is
substituted for Michael J. Astrue as the defendant in this case.
On August 2, 2013, pursuant to the parties' consent, this case was transferred by the District
Judge to the undersigned Magistrate Judge for all further proceedings (Document No. 13).
2
I.
Introduction
Plaintiff Tony Eugene Spencer ("Spencer") brings this action pursuant to the Social
Security Act ("Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of the Social Security Administration ("Commissioner") denying his applications
for disability insurance benefits and for supplemental security income benefits ("SSI"). Spencer
argues that substantial evidence does not support the Administrative Law Judge's ("ALJ")
decision, and that the ALJ, Donald Willy, committed errors of law when he found that Spencer
was not disabled. Spencer argues that he has been disabled since June 30, 2004, due to sciatic
pain, learning disability, memory loss, and leg screws. (Tr. 177). According to Spencer, the ALJ
erred in finding that he did not meet or equal Listing 12.05(C), and committed further error in
determining Spencer's residual functional capacity ("RFC") by not accounting for all of his
alleged limitations. Spencer seeks an order reversing the ALl's decision and awarding benefits,
or in the alternative, remanding his claim for further consideration. The Commissioner responds
that there is substantial evidence in the record to support the ALl's decision that Spencer was not
disabled, that the decision comports with applicable law, and that the decision should, therefore,
be affirmed.
II.
Administrative Proceedings
On April 9, 2010, Spencer filed applications for disability insurance benefits and SSI,
claiming an inability to work due to disability alleged to have begun on June 30, 2004. (Tr. 141146). The Social Security Administration denied his applications at the initial and
reconsideration stages. (Tr. 87-94; 99-105). Spencer then requested a hearing before an ALl (Tr.
106-107). The Social Security Administration granted his request, and the ALJ held a hearing on
September 6, 2011. (Tr. 30-78). The ALJ issued his decision, finding Spencer not disabled. (Tr.
2
11-29). In his decision, the ALJ found that Spencer was not disabled at any time from June 30,
2004, through the date he issued his decision. (Tr. 25).
Spencer sought review by the Appeals Council of the ALl's adverse decision. (Tr. 7-10).
The Appeals Council will grant a request to review an ALl'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 ALl's
actions, findings, or conclusions; (4) there is a broad policy issue that may affect the public
interest; or (5) there is new and material evidence and the decision is contrary to the weight of all
the record evidence. 20 C.F.R. § 404.970; 20 C.F.R. § 416.1470. After considering Spencer's
contentions, in light of the applicable regulations and evidence, the Appeals Council concluded
that there was no basis upon which to grant Spencer's request for review. (Tr. 1-6). The ALl's
findings and decision then became final. Spencer has timely filed his appeal of the ALl's
decision (Document 1). The Commissioner has filed a Motion for Summary Judgment
(Document No. 15). Likewise, Plaintiff has filed a Motion for Summary Judgment (Document
No. 19), to which the Commissioner has filed a response (Document No. 21). This appeal is now
ripe for ruling.
The evidence is set forth in the transcript, pages 1 through 638 (Document No. 10). There
is no dispute as to the facts contained therein.
III. Standard for Review of Agency Decision
The court's review of 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, U.S.C. Title 42, Section 405(g) limits judicial review of the Commissioner's
3
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 pleadings and transcript, "affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
hearing" 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); see also Jones, 174 F.3d at 693; Cook v.
Heckler, 750 F.2d 391, 392-93 (5th Cir. 1985). Conflicts in the evidence are for the
Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289,295 (5th 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 mere 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) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir. 1973».
4
IV. Burden of Proof
An individual claiming entitlement to disability insurance benefits under the Act has the
burden of proving his disability. Johnson, 864 F.2d at 344. 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 so severe as to limit the claimant in the following
manner:
[H]e 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 for work.
42 U.S.C. § 423(d)(2)(A). The mere presence of impairment is not enough to establish that one is
suffering from disability. Rather, a claimant is disabled only if he is "incapable of engaging in
any substantial gainful activity." Anthony, 954 F.2d at 293 (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
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.
Id.; see also Leggett v. Chafer, 67 F.3d 558, 567 n.2 (5th Cir. 1995); Wren v. Sullivan, 925 F.2d
123, 125 (5th Cir. 1991). Under this formula, the claimant bears the burden of proof on the first
four steps of the analysis to establish that a disability exists. McQueen v. Apfel, 168 FJd 152,
154 (5th Cir. 1999). If successful, the burden shifts to the Commissioner, at step five, to show
that the claimant can perform other work. Id. Once the Commissioner shows that other jobs are
available, the burden shifts back 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 564.
Here, the ALJ determined that Spencer was not disabled at step five, because he retained
the RFC to perform jobs that exist in significant numbers in the national economy. (Tr. 24). In
particular, the ALJ determined that Spencer had not engaged in substantial gainful activity since
June 30, 2004 (step one); that Spencer's degenerative disc disease, borderline intellectual
functioning, and sciatica were severe impairments (step two); and that Spencer did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments in Appendix 1 of the regulations (step three). (Tr. 16-17). The ALJ determined that
Spencer had the RFC to perform unskilled work at the medium exertional level. (Tr. 19). The
ALJ further determined that although Spencer was incapable of performing his past work as a
ditch digger or roofer (step four), he could perform jobs such as grounds keeper, laundry worker,
and kitchen helper (step five), and was not disabled. (Tr. 23-25). As a result, the Court must
determine whether substantial evidence supports the ALl's findings.
6
In determining whether substantial evidence supports the ALl's decision, the court
weighs four factors: (1) the objective medical facts; (2) the diagnosis and expert opinions of
treating physicians on subsidiary questions of fact; (3) subjective evidence of pain and disability
as testified to by the plaintiff and corroborated by family and neighbors; and (4) the plaintiffs
educational background, work history and present age. Wren, 925 F.2d at 126.
V.
Discussion
a.
Objective Medical Evidence
The objective medical evidence shows that Spencer suffers from three severe
impairments: degenerative disc disease, borderline intellectual functioning, and sciatica.
On January 18, 1997, Spencer was taken to the Ben Taub Hospital Emergency Room.
(Tr. 428). He was diagnosed with ethanol intoxication and opiate abuse. (Tr. 424). The physician
prescribed Librium and referred Spencer to a drug and alcohol counselor. (Tr. 425). On October
6, 2009, Spencer reported that his polysubstance abuse was in remission for over a year. (Tr.
255). More specifically, he reported that his cocaine abuse was in remission for one year and his
alcohol abuse for two years. ld
On September 14,2006, Spencer was treated at the Lyndon B. Johnson Emergency Room
for what turned out to be a vasovagal episode. (Tr. 445-460). Upon admission, he reported that
he was experiencing vertigo and had passed out two days prior. (Tr. 452). After an EKG, blood
test, and physical examination, Spencer was discharged and instructed to return if he experienced
a similar episode. (Tr. 451, 454-456). Based upon the medical records, the vasovagal episode
appears to have been isolated and non-recurring.
Spencer went to the Lyndon B. Johnson Hospital Emergency Center on June 24, 2009,
complaining of "on and off' chest pain occurring over the past 14 months, and "on and off'
7
lower back and leg pain occurring over the past two years. (Tr. 435). On a scale of 0-10, Spencer
rated his pain as a "6." (Tr. 440). A history of hypertension and fracture repair in his right leg
was noted. (Tr. 436). An EKG was performed and the results were normal. (Tr. 439). The record
indicates that, upon arrival and discharge, Spencer had no problems with his gait and was able to
ambulate without assistance. (Tr. 443, 438). Spencer was diagnosed with sciatica and prescribed
Vicodin, naproxen, and Prednisone (Tr. 238, 438). Additionally, both lumbosacral and knee xrays were ordered. (Tr. 237, 444).
The lumbosacral x-ray results, dated June 25, 2009, revealed no fracture or malalignment
of the lumbar spine. (Tr. 241). The vertebral body and intervertebral disc height were preserved.
Id. Degenerative changes with osteophyte formation and facet osteoarthritis from L3/4 to L5/S 1
were noted. Id. No sclerotic or lytic changes were seen and an impression of "no acute
abnormality" was recorded. Id. A knee x-ray taken the same day showed no fracture or
dislocation in the left knee, with only mild degenerative changes present. (Tr. 242). Radiopaque
density was noted in the anterior soft tissues of the distal thigh. No joint space or soft tissue
abnormalities were present. Id.
Spencer went to the Health Spectrum Clinic on March 19, 2010, with a chief complaint
of lower back pain. (Tr. 292). He reported his pain as a "6" out of" 10," and also reported mild to
moderate anxiety. (Tr. 299-300). His gait was recorded as "slow-guarded." (Tr. 292). Spencer
was prescribed Lortab and Xanax, and was instructed to follow-up in one month. Id. Spencer
returned to the Health Spectrum Clinic on April 22, 2010. (Tr. 284). He reported his pain as a
"3" out of "10" and reported mild improvement with his anxiety. (Tr. 293-294). The record
indicates that Spencer's gait was within normal limits. (Tr. 284). Spencer's treatment plan
included a continuation of the Lortab and a follow-up appointment in one month.
8
Dr. Arnold Carothers conducted a medical consultative examination on Spencer on
March 11, 2011. (Tr. 331). Spencer's chief complaints included back pain, sciatic pain, leg
screws, and weakness. Id. The examination revealed that Spencer had normal pinprick and
vibratory sensation in all four extremities. (Tr. 333). His right knee showed mildly decreased
flexion without crepitus or deformity. Id. Dr. Carothers noted that Spencer was able to ambulate
without any difficulty. Id. Regarding Spencer's back, Dr. Carothers reported:
There is no tenderness to palpation over the spinous process or the costovertebral
angle. There is tenderness with palpation over the left S 1 Joint and Piriformis
muscle. There are no muscle spasms or tissue texture changes noted. Sitting
straight leg raise is negative to 70 degrees bilaterally. The patient is able to squat
to the ground and arise from a squatting position without any difficulty. He is able
to forward bend and touch his toes.
(Tr. 333).
Dr. Carothers noted that Spencer fractured his leg at age 15 and was required to have
"ORIF" (open reduction and internal fixation) of his right femur. Right knee radiographs dated
March 11, 2011, revealed no joint effusion or focal soft tissue swelling. (Tr. 330). There was no
gross evidence of hardware complications arising from Spencer's earlier leg surgery. Id. There
was no other focal osseous or alignment defect demonstrated. Mild to moderate tricompartment
degenerative disease was present. Id.
Spencer went to the EI Franco Lee Clinic on June 29,2011, complaining of hip and back
pain. (Tr. 629). Spencer reported chronic, daily lower back pain and an inability to work due to
pain and a lack of mobility. (Tr. 338). A lumbosacral x-ray was scheduled for July 7, 2011 and a
lumbar spine MRI without contrast for August 21,2011. (Tr. 338,630). Dr. Afua Agyarko wrote
an order for Motrin and Ultram. (Tr. 349).
The radiologist noted that Spencer's lumbosacral spme x-rays, dated July 7, 2011,
revealed no fractures, subluxations, or bone abnormalities. (Tr. 402). Mild disc space narrowing
9
of the lower thoracic spine at L4-L5 and L5-S 1 were visible. Id Prominent multilevel anterior
osteophytosis of the lumbar spine was observed, as well as facet hypertrophy from L4 to S 1. Id
The radiologist recorded an impression of "moderate multilevel degenerative changes of the
lumbar spine unchanged since 6/25/2009." (Tr. 403). Dr. Agyarko noted that the x-ray showed
unchanged arthritis in the lower back, and instructed Spencer to return if the pain continued. (Tr.
404). The MRI results, dated August 22, 2011, revealed normal back structure with mild to
moderate degenerative changes. (Tr. 338). There was moderate neuroforaminal stenosis that was
worse on the right at L4/L5 due to moderate diffuse disc bulge and facet hypertrophy. (Tr. 339).
Other mild degenerative changes were present with mild narrowing of the right neural foramina
ofL3/L4.Id
On July 20,2011, Spencer returned again to the EI Franco Lee Clinic. (Tr. 394). He had
previously attempted to donate blood and was informed by the blood center that he may have
hepatitis C. Id Spencer reported intermittent right upper quadrant pain and a history of drug
abuse. (Tr. 619). The registered nurse noted that Spencer was "not in distress" and "ambulatory
with normal gait." (Tr. 399). The nurse practitioner ordered a full panel oftests and imaging. (Tr.
620). The tests resulted in an official diagnosis of hepatitis C. (Tr. 372, 597).
Spencer went to the EI Franco Lee Clinic on August 10,2011, with complaints oflower
back pain. (Tr. 604). Spencer reported that ibuprofen and Tramadol weren't helping control his
pain. Id Dr. Zainab H. Soumahoro referred Spencer to physical therapy and prescribed Feldene
and Flexeril. (Tr. 344). A follow-up visit with Dr. Vu a Phung was scheduled for August 23,
2011. (Tr. 345).
On August 23, 2011, Spencer returned to the EI Franco Lee Clinic for his follow-up
appointment. Dr. Phung prescribed Naprosyn, Flexeril, and Vicodin. (Tr. 341-342). He was also
10
referred to physical therapy. (Tr. 342). Under "Impression & Plan," Dr. Phung noted "avoid
heavy lifting (no more than 15 lbs)." (Tr. 362, 596).
Spencer returned on September 23,2011 for prescription refills. (Tr. 591). He reported no
pain, so Dr. Soumahoro discontinued the Flexeril, Naprosyn, and Vicodin. (Tr. 591-592).
Spencer also underwent a mental evaluation. (Tr. 250-257). On October 26, 2009, he was
evaluated by Larry Pollock, PhD. Dr. Pollock administered both the Wechsler Adult Intelligence
Scale-Third Edition ("WAIS-III") and the Wide Range Achievement Test-Fourth Edition
("WRAT4"). (Tr. 250). The results of the WAIS-III revealed a full scale IQ score of 66, a verbal
IQ of 65, and a performance IQ of 74. (Tr. 255). The results of the WRAT4 revealed that
Spencer's Word Reading ability was at the 1st grade level, Sentence Comprehension ability at
the 2nd grade level, Spelling ability at the kindergarten level, and Math Computation ability at
the 3rd grade level. (Tr. 253). Dr. Pollock rated Spencer with a GAF score of 60. (Tr. 256). He
noted that Spencer "used his hands with normal dexterity" and "ambulated independently, his
gait was normal." (Tr. 250). Dr. Pollock wrote:
Appearance, Behavior, and Speech: Mr. Spencer looked his stated age. He was of
average build. His hygiene and grooming were good.
Behavior: Mr. Spencer was irritable, yet cooperative. He worked quickly and
diligently. He was self-motivated and focused.
Concentration: Mr. Spencer's concentration and attention span were fair. He
recalled 5 digits forward and 2 digits in the reverse order of presentation. He was
unable to spell WORLD forward or backward. He successfully counted
backwards from 20.
Communicative Abilities and Behavior: Mr. Spencer was irritable during the
evaluation; however, he easily volunteered information. He was talkative and
used a task-oriented approach during the testing.
Thought Processes: Mr. Spencer's thought processes were goal oriented. He did
not report auditory or visual hallucinations, and no suicidal or homicidal
ideations.
11
(Tr. 252).
Here, substantial evidence supports the ALl's finding that Spencer's degenerative disc
disease, borderline intellectual functioning, and sciatica were severe impairments at step two,
and that such impairments at step three, individually or in combination, did not meet or equal a
listed impairment. Likewise, substantial evidence supports the ALJ's finding that Spencer did not
satisfy the requirements of 12.05(C).
Spencer contends that the ALJ erred in finding that Spencer failed to meet or equal the
requirements of Listing 12.05(C) (mental retardation)3. In order satisfy the requirements of
Listing 12.05(C), three specific requirements must be met. First, the claimant must satisfy the
threshold requirement of the introductory sentence of Listing 12.05, namely that a claimant must
have "significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the evidence demonstrates
or supports onset of the impairment before age 22." Randall v. Astrue, 570 F.3d 651,655-660
(5th Cir. 2009); 20 C.F.R. Pt. 404, Subpt. P, App. I, Listing 12.05. Second, the claimant must
satisfy the first prong of the part (C) two-prong requirement-"[ a] valid verbal, performance, or
full scale IQ of 60 through 70." Id Third, the claimant must satisfy the second prong of part
(C)--claimant must have "a physical or other mental impairment imposing an additional and
significant work-related limitation of function." Id
Here, Spencer maintains that he meets the criteria of Listing 12.05(C) because his full
scale IQ is 66 (Tr. 255), and he has physical impairments (degenerative disc disease and sciatica)
which impose significant additional limitations on his ability to do work related activities.
Spencer relies on his testimony that he was enrolled in special education classes around the sixth
3 Listing 12.05 has, as of February 2014, been changed from "Mental Retardation" to
"Intellectual Disability." The substantive criteria for that Listing, however, remains the same.
12
grade to show that he had significantly subaverage intellectual functioning and deficits in
adaptive behavior before age 22. (Tr. 36-37). However, Spencer indicated on his Disability
Report Form SSA-3368 that he had not attended any special education classes. (Tr. 178).
Moreover, Spencer could not provide any definitive testimony about his schooling:
Q: What's the last grade of school that you completed?
A: Special Ed in Jackson, Mississippi, sixth grade.
ALJ: Sixth grade? Is that what you said? Sixth?
CLMT: Sixth grade, I think.
ALJ: Okay. Thank you.
CLMT: A long time ago.
Q: You finished it or you started sixth grade and didn't finish?
A: It's kind of like, special ed grade I guess.
Q: But did you complete the sixth grade?
A: I probably did complete it.
(Tr. 36-37).
The Commissioner, in response to Spencer's argument that he meets Listing 12.05(C),
points out that while Spencer does have IQ scores that fall within the
"c" criteria and does have
other physical impairments, he has made no showing, and there is no evidence in the record of
onset of the impairment before age 22. See e.g., Parker v. Astrue, Civil Action No. 11-294-SCR,
2012 WL 5384821 *4 (M.D. L.A. Nov. 1,2012) ("the mere existence ofIQ scores which satisfy
the first part of paragraph C, along with a limited or special education" are insufficient, in and of
themselves, to "demonstrate[] deficiencies in adaptive functioning initially manifested during the
developmental period, that is, onset of the impairment before age 22"); Potts v. Astrue, Civil
13
Action No. H-12-cv-229, 2013 WL 5785659 *8 (S.D. Tex. Feb. 19 2013) (claimant's "poor
performance in school, his past history as a special education student, and his illiteracy" are
insufficient to meet his burden of establishing a "deficit in adaptive functioning" as required by
Listing 12.05(C)). Additionally, the mental evaluations and assessments support the ALl's
findings that Spencer did not meet the criteria of Listing 12.05(C), and that Spencer retained the
RFC for unskilled work.
Based on his clinical findings and testing, Dr. Pollock diagnosed Spencer with borderline
intellectual functioning. (Tr. 253, 255). Notably, Dr. Pollock did not diagnose Spencer with
either mental retardation or intellectual disability. Also, Dr. Pollock did not expressly state
whether onset began prior to the age of 22 (as is required to satisfy Listing 12.05(C)). In his
Psychiatric Review Technique, dated November 12, 2009, Dr. Mark Schade specifically
indicated that Listing 12.05(C) was not satisfied, and like Dr. Pollock, diagnosed Spencer with
borderline intellectual functioning. (Tr. 262). Furthermore, Dr. Schade specifically indicated that
there was no evidence of onset prior to the age of 22. Id. Dr. Schade also noted that while
Spencer "allege [d] limitations due to pain, he stated no significant mental limitations in daily
activities, no problems with memory, concentration or completing tasks. Clmt able to shop, pay
bills, drive, spend time woth [sic] others." (Tr. 270). In his Mental Residual Functional Capacity
Assessment, dated November 12, 2009, Dr. Schade wrote, "[c]laimant can understand,
remember, and carry out only simple instructions, make simple decisions, attend and concentrate
for extended periods, interact adequately with coworkers and supervisors, and respond
appropriately to changes in routine work settings." (Tr. 282).
Similarly, Dr. Lee Wallace noted in his Psychiatric Review Technique, dated September
17, 2010, that Spencer did not meet the requirements of Listing 12.05(C), but instead indicated
14
that borderline intellectual functioning was the appropriate diagnosis. (Tr. 305). Furthermore, Dr.
Wallace noted in his Mental Residual Functional Capacity Assessment that "[claimant] can
understand, remember, and carry out only simple instruction, make simple decision [sic], and
respond to change [sic] in work settings". (Tr. 317).
The mental evaluation by Dr. Pollock, along with the opinions of Dr. Schade and Dr.
Wallace, substantially support the ALJ's decision that Spencer did not satisfy the requirements of
12.05(C), but instead suffered from borderline intellectual functioning. 4 Upon this record, the
ALJ's finding that Spencer retained the RFC for unskilled work is consistent with the medical
evaluations and treatment records. Furthermore, the ALJ provided specific reasons in support of
his determination. This factor weighs in favor of the ALJ's decision.
b.
Diagnosis and Expert Opinions
The second element considered is the diagnosis and expert opinions of treating and
examining physicians on subsidiary questions of fact. Unless good cause is shown to the
contrary, "the opinion, diagnosis and medical evidence of the treating physician, especially when
the consultation has been over a considerable length of time, should be accorded considerable
weight." Perez v. Shweiker, 653 F.2d 997, 1001 (5th Cir. 1981). For the ALJ to give deference to
a medical opinion, however, the opinion must be more than conclusory and must be supported by
clinical and laboratory findings. Scott v. Heckler, 770 F.2d 482,485 (5th Cir. 1985); Oldham v.
Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981). Indeed, "[a] treating physician's opinion on the
See American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 41-42
(4th ed. Rev. 2000) (DSM-IV-TR) ("Thus, it is possible to diagnose Mental Retardation in
individuals with IQ's between 70 and 75 who exhibit significant deficits in adaptive behavior.
Conversely, Mental Retardation would not be diagnosed in an individual with an IQ lower than
70 if there are no significant deficits or impairments in adaptive functioning .... Impairments in
adaptive functioning, rather than a low IQ, are usually the presenting symptoms in individuals
with Mental Retardation.").
4
15
nature and severity of a patient's impairments will be given controlling weight if it is 'wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with ... other substantial evidence." Newton v. Apfel, 209 F.3d 448, 455 (5th Cir.
2000) (quoting Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995)).
There are several medical opinions in the record, including the opinion of Spencer's
treating physician, the opinions of medical experts who reviewed Spencer's medical records, and
the opinions of physicians who consultatively examined Spencer.
Spencer contends that the ALJ erred by not giving controlling weight to the opinion of
treating physician, Dr. Vu a Phung, that Spencer "avoid heavy lifting (no more than 15 lbs)." (Tr.
596). Although the opinions of treating physicians are to be given considerable weight, '" [T]he
Commissioner is free to reject the opinion of any physician when the evidence supports a
contrary conclusion.'" Martinez, 64 F.3d at 176 (quoting Bradley v. Bowen, 809 F2d 1054, 1057
(5th Cir. 1987)). Furthermore, regardless of the opinions and diagnoses of medical sources, "the
ALJ has sole responsibility for determining a claimant's disability status." Martinez, 64 FJd at
176. Here, the ALJ relied heavily upon the examining and reviewing physicians, along with
other objective medical evidence.
Dr. Oguejiofor, the medical expert ("ME"), testified at the administrative hearing that he
believed that Spencer could function on the medium exertionallevel and that Spencer could lift
20 pounds and up to 50 pounds occasionally. (Tr. 65). Dr. Oguejiofor also testified that he
believed that Spencer could ambulate over a period of time, had no manipulative difficulties, and
didn't require a sit/stand option. (Tr. 65-66). In providing his expert testimony, Dr. Oguejiofor
acknowledged Spencer's ORIF on his previously fractured right leg and his history of back pain.
16
(Ir. 63, 65-66). Dr. Oguejiofor further testified that Spencer did not meet Listing 1.04 because
Spencer showed no atrophy, loss of power, or radiculopathy. (Ir. 66).
Dr. Randal Reid conducted a Physical Residual Functional Capacity Assessment of
Spencer on November 12, 2009. (Ir. 272-279). He assessed Spencer as being able to frequently
lift and/or carry 25 pounds and occasionally lift and/or carry 50 pounds. (Ir. 273). Later, on
September 24, 2010, Dr. James Wright provided the same assessment of Spencer's
carrying/lifting ability in another Physical Residual Functional Capacity Assessment. (Ir. 320).
Dr. Wright noted that Spencer's "alleged limitations not fully supported by mer in file". (Ir.
324). Ihe ALJ also relied upon Dr. Carothers' Consultative Examination, dated March 11,2011.
Ihe ALJ wrote:
Likewise, objective evidence of record fails to show any findings or observations
consistent with disabling back pain. August 2011 treatment notes revealed
moderate L4/L5 stenosis due to moderate disc bulge and facet hypertrophy and
other mild degenerative changes with mild narrowing at the right neural foramina
L3/L4 were noted. (Exhibits 15F3 and 17F9). Despite these findings, there is no
indication from treating sources that they were disabling or caused physical
limitations that precluded work. A March 2011 physical examination showed
some tenderness with palpation over the left S I joint and Piriformis muscle;
however, there was no evidence of muscle spasms and straight leg raising was
negative to 70 degrees. (Exhibit 13F4).
Moreover, the record indicated, DOD notwithstanding, the [sic] he retained the
ability to ambulate independently and without difficulty, bend forward and touch
his toes, squat to the ground and arise without difficulty, walk on both his heels
and toes, maintain normal gait, drive, play with his dogs, and sit long enough to
watch his television programs. (Exhibit 2Fl, 2F2, and 13F4). Neurological testing
and testing of his extremities were all essentially normal. (Exhibit 13F4).
Ihe objective and clinical evidence that supports the claimant's finding of
sciatica; however, there is no evidence or treating source opinion that this
condition is disabling or ruinous to an ability to sustain full-time work activity.
(Ir.22).
17
The AL] properly acted within his purview in deciding not to give controlling weight to
Dr. Phung's opinion that Spencer avoid heavy lifting. The Court concludes that the diagnosis and
expert opinion factor supports the ALJ's finding that Spencer retained the RFC for unskilled
work at the medium exertionallevel. The ALJ's decision is a fair summary and characterization
of the medical records and medical expert testimony. The diagnosis and expert opinion factor
also supports the ALJ's decision.
c.
Subjective Evidence of Pain
The third element considered is the subjective evidence of pain, including the claimant's
testimony and corroboration by family and friends. Not all pain is disabling, and the fact that a
claimant cannot work without some pain or discomfort will not render him disabled. Cook, 750
F.2d at 395. The proper standard for evaluating pain is codified in the Social Security Disability
Benefits Reform Act of 1984, 42 U.S.C. § 423. The statute provides that allegations of pain do
not constitute conclusive evidence of disability. There must be objective medical evidence
showing the existence of a physical or mental impairment which could reasonably be expected to
cause pain. Statements made by the individual or his physicians as to the severity of the
plaintiffs pain must be reasonably consistent with the objective medical evidence on record. 42
U.S.C. § 423. "Pain constitutes a disabling condition under the SSA only when it is 'constant,
unremitting, and wholly unresponsive to therapeutic treatment.'" Selders, 914 F.2d at 618-619
(quoting Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988)). Pain may also constitute a nonexertional impairment which can limit the range of jobs a claimant would otherwise be able to
perform. See Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994). The Act requires this Court's
findings to be deferential. The evaluation of evidence concerning subjective symptoms is a task
18
particularly within the province of the ALl, who has had the opportunity to observe the claimant.
Hames, 707 F.2d at 166.
Spencer testified at the hearing before the ALI that he believes that he cannot do work for
anyone and that he simply cannot function anymore. (Tr. 60). He offered no testimony or
corroboration from his family or friends with respect to his complaints about his condition. He
reported that he completed the sixth grade, attended special education classes, and lacked short
term memory. (Tr. 36-38, 43, 54).
Spencer also testified that he regularly experiences back pain, cramps in his leg, and
numbness and tingling in his foot. (Tr. 38). He reported that his back pain was so severe at times
that he was forced to remain in bed and couldn't even arise to go to the bathroom. (Tr. 39). He
further reported that when the pain was less severe, he had to crawl or hop to the bathroom. (Tr.
39, 48). Spencer testified that he experiences extreme pain in his leg that he believes contributes
to his back pain. (Tr. 41). He reported the pain in his leg as so severe that he had contemplated
cutting it off. (Tr. 47). Spencer further reported that he regularly experienced sleepless nights,
and instead slept during the day due to his blurry vision. (Tr. 42). He reported constant tiredness
and a lack of energy. (Tr. 46). When asked by the ALI if he could handle a job that allowed for
either sitting or standing, Spencer replied that he would "fall asleep on it." (Tr. 60). However,
Spencer has not reported his sleep problems to the doctor. (Tr. 46). He testified that he's
bedridden for three to four months during the winter time and not functional for three to four
days a week during the summer (Tr. 48-49). Spencer also reported frequent headaches. (Tr. 41).
Spencer further testified that he is unable to lift more than 25 pounds and can stand for at
most "30 minutes to an hour". (Tr. 49-50). He reported difficulty walking, bending at the waist,
19
stooping, twisting his upper body, squatting, and kneeling. (Tr. 51-53). Spencer claimed that he
could only climb a single flight of stairs and has trouble gripping with his hands. (Tr. 52-53).
ALl Willy found Spencer's complaints and subjective symptoms not entirely credible. In
doing so, the ALl wrote:
The claimant testified that he was unable to work because of several mental and
physical impairments. According to his testimony, he was unable to stand for
more than 30 minutes, walk to [sic] far, or lift more than 25 pounds. He said he
was unable to kneel, bend, climb stairs, drive, or hold onto things consistently. He
said his condition was so severe that he had to lie down throughout the day. He
said he occasionally was unable to stand and would have to crawl to the
bathroom. He said he took 10 Tylenols [sic] in the morning to deal with his pain.
He said he did not have any energy. However, he acknowledged that he played
with his grandkids, sat on the porch, walk [sic] to a nearby store for cigarettes,
bathe [sic] and groom [sic] himself, and watch [sic] his grandkids.
Dr. Oguejiofor testified that the claimant's alleged problems with his hands, back
pain, and buttocks pain was [sic] not documented. He noted that the consultative
examination revealed normal upper extremities. He said the claimant's testimony
that he needed a cane was not consistent with records that revealed and [sic]
ability to ambulate without difficulty. He said there were no objective findings
consistent with the criteria for listings 1.02 or 1.04. He stated the claimant alleged
a variety of symptoms undocumented by medical records. For example, the
claimant is positive for hepatitis C; however, there is no record of treatment or
hospitalizations and recent liver function tests were normal. He opined that the
claimant was capable of performing a full range of work at the medium exertional
level.
Dr. Sternes testified that the claimant did not meet the criteria for listings 12.04 or
12.05 because there was no evidence that demonstrated or supported an onset
before age 22. He said the claimant's primary problem was understanding what he
was told to do. Accordingly, he said the claimant was better suited for unskilled
work that required the accomplishment of simple things only. He said the
claimant would have no problems adapting to change in the work setting or
interacting appropriately with others. Dr. Sternes noted the record indicated
substance abuse in remission (alcohol 2 years and cocaine 2 year) [sic] and was
not a contributing factor.
After careful consideration of the evidence, the undersigned finds that the
claimant's medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above residual capacity assessment.
20
(Tr. 20-21).
Spencer contends that the ALJ failed to include all of his alleged limitations in the RFC
determination. However, credibility determinations, such as made by the ALJ in connection with
Spencer's testimony about his limitations, are within the province of the ALJ to make. See
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994) ("In sum, the ALJ 'is entitled to
determine the credibility of medical experts as well as lay witnesses and weigh their opinions
accordingly."') (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). Because the ALJ
made and supported his credibility determination with references to medical evidence and
Spencer's testimony about his daily activities, and because the ALJ did not rely on any improper
factors, the subjective evidence factor also weighs in favor of the ALl's decision.
d.
Age, Education, and Work History
The final element to be weighed is the claimant's educational background, work history,
and present age. A claimant will be determined to be under disability only if the claimant's
physical or mental 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. 42 U.S.C. § 423(d)(2)(A).
"A vocational expert is called to testify because of his familiarity with job requirements
and working conditions. 'The value of a vocational expert is that he is familiar with the specific
requirements of a particular occupation, including working conditions and the attributes and
skills needed.'" Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1999) (quoting Fields v. Bowen
805 F.2d 1168,1170 (5th Cir. 1986)). It is well settled that a vocational expert's testimony,
based on a properly phrased hypothetical question, constitutes substantial evidence. Bowling v.
Shalala, 36 F.3d 431, 436 (5th Cir. 1994). A hypothetical question is sufficient when it
21
incorporates the impairments which the ALJ has recognized to be supported by the whole record.
Id. Beyond the hypothetical question posed by the ALJ, the ALJ must give the claimant the
"opportunity to correct deficiencies in the ALl's hypothetical questions (including additional
disabilities not recognized by the ALl's findings and disabilities recognized but omitted from the
question)." Bowling, 36 F.3d at 436.
The record shows that Spencer was 50 years old at the time of the administrative hearing
(Tr. 24, 32), had no educational or vocational degree, and had performed past relevant work as a
ditch digger and roofer (Tr. 74). At the hearing, The ALJ questioned Tierney Nielson, a
vocational expert ("VE"), about McCartney's ability to engage in gainful work activities:
Q: Is there any past relevant work?
A: I have him down as a ditch digger, which was very heavy, unskilled, and a
roofer, he said he supervised on several people but he still performed it, it was
heavy, four, semi-skilled.
Q: I take it he cannot do his past relevant work and there are no transferable
skills?
A: That's correct.
Q: What do you have at medium, unskilled that he could perform, given the two
residual function capacities that have been identified here. [sic]
A: In the medium, there was [sic] no limitations correct?
[INAUDIBLE]
Q: That's what he told me.
A: Okay. The medium unskilled would be such as groundskeeper, 406.687-010,
38,000 in Texas, 690,000 nationwide. A laundry worker, 361.687-018, medium,
unskilled, 28,000 in Texas, 408,000 nationwide. Kitchen helper, 318.687-018,
medium, unskilled, 35,000 in Texas, 780,000 nationwide, and that's a
representative sample taken from the dictionary of occupational titles.
Q: If I take the claimant's testimony he's probably at less than sedentary, is he
not?
22
A: That's correct.
Q: And ifis [sic] in fact at sedentary, he would grid at age 50.
A: That's correct.
Q: All right so the only issue would be if there are any light jobs that he could
perform where he could perform a full range of light work, is that correct?
A: Yes.
Q: And are there any that you can identify?
A: Yes. Meeting that same hypothesis - - an office cleaner, 323.387-014, light,
unskilled, 15,000 in Texas, 380,000 nationwide; laundry worker 363.685-026,
light, unskilled, 6500 [sic] in the state of Texas, 200,000 nationwide; and we'll
just sayan office cleaner, 323.687-014, light, unskilled, 15,000 in Texas, 380,000
nationwide and that's a representative sample of light unskilled that would meet
that hypothesis.
Q: What are other vocational issues here that you've identified in your review of
the file that I need to understand in order to attempt to decide this case?
A: Well, his ability to complete a task.
Q: Okay. And the doctor is saying that he can do that, the issue I guess is there's a
contradiction between him and the two reports I have.
A: Yes.
Q: Anything else?
A: His reliability.
Q: Okay, and he's claiming that he can't do it in two or three days and I don't
know whether anybody has spoken on that.
ALl: have you spoken on that, Dr. Stem?
PE: No sir.
ALl: Well, what's the issue on reliability?
PE: I have nothing to contradict that he couldn't be reliable.
ALl: Okay, so it's just his testimony versus the lack of evidence.
23
PE: Okay.
Q: Anything else?
A: No, sir.
Q: All right. The information that you gave me about everything is form the DOT
and its supplements?
A: Yes.
Q: And the information on the numbers of jobs is from the department of labor?
A: Yes, sir.
Q: Your opinions are based upon your having placed people into jobs that have
hypothetical disabilities in the national economy?
A: Yes, sir.
(Tr. 73-76). The ALJ then allowed Spencer's counsel to question the VE. (Tr. 77). Based on
counsel's questions, the VE testified that if the hypothetical client missed three or more days of
work a month, that the hypothetical client would be unable to maintain employment. ld.
Furthermore, the VE testified that if the hypothetical client was unable to remain on task for 20
percent or more of the work day, that the hypothetical client would be unable to maintain
employment. ld.
Given the ALJ's reliance on the consulting ME, the ALJ's credibility determination
relative to Spencer's testimony about his pain and limitations, and responses by the VE regarding
the hypothetical questions posed by the ALJ, substantial evidence supports the ALJ's conclusion
that Spencer is not disabled within the meaning of the Act. Accordingly, this factor also weighs
in favor of the ALJ's decision.
24
VI. Conclusion and Order
Considering the record as a whole, the Court is of the opinion that the ALJ and the
Commissioner properly used the guidelines propounded by the Social Security Administration,
which directs a finding that Spencer was not disabled within the meaning of the Act, that
substantial evidence supports the ALl's decision, and that the Commissioner's decision should
be affirmed. As such, it is
ORDERED that Plaintiffs Motion for Summary Judgment (Document No. 19) is
DENIED, Defendant's Motion for Summary Judgment (Document No. 15) is GRANTED, and
the decision of the Commissioner of Social Security is AFFIRMED.
Signed at Houston, Texas, this
t 4 /-q day of ~
~~/.~
FRANCES H. STACY
UNITED STATES MAGISTRATE JUDGE
25
,2014
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?