Wu v. Colvin

Filing 15

MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MAY WU,
Plaintiff,
v.
CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CIVIL ACTION NO. 4:13-692

MEMORANDUM AND ORDER
In this Social Security case, Plaintiff May Wu has filed a Motion for Summary
Judgment [Doc. # 8], and the Commissioner has filed a Response Brief [Doc. # 14]
seeking dismissal of the case, which the Court construes as a motion for summary
judgment. The motions now are ripe for decision. Having considered the parties’
briefing, the applicable legal authorities, and all matters of record, the Court concludes
that Defendant’s motion should be denied, Plaintiff’s motion should be granted, and
that this case should be remanded to the Commissioner.
I.

BACKGROUND
A.

Procedural Background

Plaintiff May Wu filed an application with the Social Security Administration

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(“SSA”) on June 30, 2010, seeking supplemental security income (“SSI”) benefits
under Title XVI and disability benefits under Title II. She alleges onset of disability
on January 31, 2008. After being denied benefits initially and on reconsideration, Wu
timely requested an administrative hearing before an Administrative Law Judge
(“ALJ”) to review the denial.
On April 11, 2011, Plaintiff appeared before ALJ Susan J. Soddy for an
administrative hearing. After Plaintiff presented a letter requesting an attorney, the
ALJ postponed the hearing without hearing any testimony. R. 27-30. On May 4,
2011, Plaintiff appeared before ALJ Soddy for an administrative hearing, and was
represented by attorney David Dopkin. R. 31-68. The ALJ heard testimony from
Vocational Expert Karen E. Nielsen, and from Plaintiff’s mother, Geping Fang.
On June 10, 2011, the ALJ denied Plaintiff’s request for benefits. R. 12-22.
On January 19, 2013, the Appeals Council denied Plaintiff’s request for review. R.
1-6. Plaintiff filed this case on March 11, 2013, seeking judicial review of the
Commissioner’s denial of her claim for benefits. Complaint [Doc. # 1].
B.

Factual Background
Plaintiff May Wu was born in China on May 5, 1986. Her family came to the

United States when she was five years old. In December 1996, at the age of ten, she
was struck by a car while riding her bicycle. She suffered a traumatic brain injury and

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was admitted to the hospital in a coma. R. 387-89. She underwent a craniotomy to
evacuate subdural and epidural hematomas. R. 260. As part of her rehabilitation, Wu
had to relearn basic tasks such as brushing her teeth and, although she previously had
been fully bilingual, Wu reverted to Chinese after the accident and had to relearn
English. R. 427. Wu previously had been a strong student, but after returning to
school was placed in special education. R. 260, 427. She graduated from high school
in 2004 with low to average scores after completing a special education program. R.
260, 390.1 Wu attempted multiple jobs in fast food and retail, including McDonalds,
Jack in the Box, Panda Express, and Macy’s. However, Wu and her mother, Geping
Fang, reported to medical providers that Wu could not keep up with her work and
ultimately could not hold any of these jobs. See, e.g., R. 427-28.
Beginning in 2008, at the age of 22, Plaintiff was treated at the Department of
Psychiatry and Behavioral Sciences at the University of Texas Medical Branch
(“UTMB”) in Galveston. Plaintiff always was accompanied by her mother, who
reported odd behaviors and continuing effect’s of Wu’s traumatic brain injury. In July
2008, Fang reported abnormal behavior from Wu over the preceding year, such as
ordering coffeemakers and posterboard that her mother said she did not need. Fang
1

In 2007, before the alleged onset date for Plaintiff’s benefits application in this case,
Wu was treated at M.D. Anderson Cancer Center for a malignant ovarian tumor. She
underwent successful surgery and was monitored thereafter. R. 327-47. She does not
claim eligibility for benefits based on this condition.

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also reported that Wu was failing one of her courses at the College of the Mainland,
and that Wu had gotten a job as a waitress despite Fang’s instructions not to do so
during school. Wu denied problems at home or work and said she wanted the job for
spending money. The physician noted that Wu and Fang “disagree[d] on what the
patient’s role is” and that they had agreed to contact a family therapist. R. 307-09.2
On August 6, 2009, Wu returned to the Psychiatry and Behavioral Sciences
Department at UTMB. Her Global Assessment of Functioning (“GAF”) score was
assessed as 60. Fang, who provided most of the information during the appointment,
stated that Wu had not been her usual self for the past fifteen months, and that family
members observed Wu smiling and laughing to herself and making strange faces.
Fang was concerned that her daughter was regressing. She reported that two of Wu’s
paternal aunts had mental illness, and that one had committed suicide; she also
reported that Wu’s paternal great-grandfather had committed suicide. The physicians
noted that Wu’s behavior was not age appropriate and that she was overly dependent
on her mother. R. 293-96.
At a follow-up appointment at the Psychiatry and Behavioral Sciences
Department on August 20, Fang continued to report odd behaviors by Wu, including
shopping for unnecessary items, troubles with concentration, inappropriate smiling or
2

Wu and Fang had at least two appointments with a therapist in August 2008. R. 298306.

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laughing, and social isolation. The physicians noted that Wu was cooperative but that
her affect was inappropriate for the situation, that she repeatedly touched her face with
the back of her hand, and that a journal they had asked her to keep was simplistic and
juvenile for a 23 year old. R. 281 (journal was “incomplete with inclusion of limited,
random information”). They noted that Wu was “clearly displaying some oddities in
her behavior that were not previously present that are very concerning to her family,”
and that she “has had an obvious regression in her functioning and the emergence of
more childlike attitude and behaviors in recent years.” R. 283. They further noted her
strong family history of mental illness. Dr. Cindy Wigg stated that Wu was difficult
to assess because she did not endorse her mother’s concerns and downplayed her
symptoms, and that Fang’s culture and language differences made the assessment even
more challenging. She started Wu on a low dose of Risperdal, an antipsychotic
medication. R. 283.
In September 2009, at follow-up appointments at the Psychiatry and Behavioral
Sciences Department, Fang reported that Wu had improved on the medication,
although Fang had adjusted the dosage when Wu seemed overly sedated. Medical
providers continued to assess Wu’s attitude as “age inappropriate.” Fang reported that
Wu’s functioning was increased because she was able to get more done and, although
still distracted, was easier to redirect. She also reported that Wu’s odd inappropriate
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laughter had ceased and her thinking and conversations were more ordered. Wu had
signed up for pharmacy technician classes at Galveston Community College. R. 28791.
In October 2009, Wu reported at the Psychiatry and Behavioral Sciences
Department that she was doing “quite well,” and Fang agreed. Wu had made a friend
at school with whom she studied, and had recently made 89 and 91 on school tests.
Although Fang was concerned about Wu’s concentration, Wu stated that she could
concentrate. Her GAF was assessed as 70. Medical providers continued to note her
attitude as “age inappropriate” and childlike, and her overdependence on her mother.
Wu continued on Risperdal. R. 284-85. In November, 2009, Fang and Wu continued
to report that she was doing well and making all As in pharmacy technician school.
Her GAF was assessed as 80. She was contined on Risperdal. R. 273-74. In January
2010, her GAF was assessed as 70. Wu reported that she had one semester of
pharmacy technician school to go and was making 3 Bs and an A. The physicians
again noted Wu’s “age inappropriate, childlike” attitude, her “slightly blunted” affect,
and soft speech. Wu’s dose of Risperdal was increased. R. 270-72.
In May 2010, Wu again was seen at UTMB’s Psychiatry and Behavioral
Sciences Department. Her GAF score was assessed as 80, and Wu reported that she
was doing well. She expected to graduate from the pharmacy technician program in
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one week, and stated that she was looking for a job. She was continued on Risperdal.
R. 267-69.
On May 26, 2010, Wu was seen by Jennifer R. Raley, M.D., in UTMB’s
Department of Family Medicine. Wu and Fang stated that Wu was applying for
special accommodations at college but that the school required “a doctor’s diagnosis
of her situation.” R. 263. Dr. Raley conducted a Mini-Mental State Exam and
diagnosed Wu with short-term memory loss. She referred Wu for neuropsychological
testing the next day. R. 262-65.
On May 27, 2010, Wu received a neuropsychology evaluation from Vicki M.
Soukup, Ph.D., of UTMB’s Department of Neurology.

R. 259-61. Dr. Soukup

reviewed Wu’s medical history, including her traumatic brain injury at age ten and her
subsequent rehabilitation and academic career. In addition to conducting a clinical
interview, Dr. Soukup administered a battery of tests.3 She assessed Wu’s arithmetic
skills and single word reading ability at post-high school levels, and various other
skills as within normal limits. However, she identified severe deficits in Wu’s ability
to learn new verbal information (second percentile), retrieval of information after a
twenty-minute delay (zero percentile), and recognition memory (zero percentile). R.

3

Dr. Soukup’s records identify the tests as follows: “TOTO, WRAT-III Rd/Arith,
BNT, ROCF, HVLT-R (5), Verbal Fluency, Trails, Dsy/SySr.” R. 260.

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260-61. Her impression was recorded as follows:
[Wu’s] test results are consistent with a history of head trauma, with
deficits in temporal functions (visual/verbal memory) and frontal lobe
functions involving verbal fluency. Although she has made impressive
gains in her recovery she continues to exhibit the expected problems in
memory and defective verbal fluency. Her diagnosis is traumatic brain
injury secondary to bike/[motor vehicle accident]—this is a permanent
disabling condition, resulting in significant limitations in her ability to
retrieve newly learned information.
R. 261. She stated that Wu’s memory deficits present “considerable problems in her

attempts to complete an academic curriculum,” but noted that Wu could by assisted
by accommodations including “tape recorders, repetition, use of tutors, more one-onone time with instructors, extended time for testing, [and] ‘hands on experiences’ as
opposed to sole reliance on textbooks.”

R. 261.

She further recommended

“discussion of whether this career choice [of Pharmacy Technician] is a realistic
goal.” R. 261.
After her assessment by Dr. Soukup, Wu continued treatment at UTMB’s
Neurology Department. The records before this Court include records from Rodrigo
O. Kuljis, M.D., from August through November of 2010. R. 366-86. On August 5,
2010, Dr. Kuljis reviewed Dr. Soukup’s neuropsychological testing and developed a
plan to “obtain tests to ascertain brain function and contributors to impaired brain
function, in order to establish the precise potential for vocational counseling.” R. 370-

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71. He started Wu on rivastigmine “based on published evidence that it improves
cognition in seemingly stabilized posttraumatic cognitive impairment.” R. 371.4
On November 2, 2010, Wu returned for a follow up visit with Dr. Kuljis in
Neurology. Wu and Fang reported that Wu now was pursuing a degree in education,
and stated Wu was doing “much better” in college. However, Dr. Kuljis noted that,
based on the neuropsychological evaluation by Dr. Soukup revealing Wu’s cognitive
deficits, vocational counseling now was focused on “downgrading her expectation
from being a teacher to a teacher’s aide, which apparently her mother is accepting.”
R. 367. Wu had been unable to tolerate the prescribed rivastigmine, so Dr. Kuljis
recommended a therapeutic trial of donepezil. Dr. Kuljis recorded an impression of
“posttraumatic head injury syndrome with major memory among other cognitive
deficits,” with possible benefits from cognitive rehabilitation. He further stated,
“Over half of this 45-minute evaluation was spent in explaining at increasingly lower
levels of complexity the condition, the results of the various tests, and the
recommendations for treatment.” R. 367.
On April 7, 2011, Michael M. Stone, MD, completed a Mental RFC
4

An MRI on August 10, 2010, showed “[e]xtensive post traumatic gliosis in the brain,
most prominent in the gyrus recti and right parietal occipital lobes” and “irregularity
of the odontoid.” R. 376. An EEG (electroencephalogram) on August 24, 2010 was
“abnormal because of the presence of focal slowing over the right frontotemporal area
in wake, drowsiness and sleep.” R. 385.

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Questionnaire and a “Medical Source Statement of Ability to Do Work-Related
Activities” for Wu. R. 419-25. His completed forms state that he had treated Wu
since August 2010 and that “other psychiatrists at UTMB” had treated her since July
2008. R.421.5 On a form with checkboxes, Dr. Stone indicated that Wu had
“extreme” limitations in understanding, remembering, and carrying out detailed
instructions; “marked” limitations in understanding and remembering short, simple
instructions; and “moderate” limitations in carrying out short, simple instructions and
in making judgments on simple work-related decisions. As support for his opinion,
he referred to Dr. Soukup’s testing showing “severe visual/verbal memory deficits,
shown by testing at 2nd percentile or lower.” R. 419. He further noted “marked”
limitations in responding appropriately to changes in a routine work setting, stating
that “changes in routine would require new learning but with patient’s poor memory
this would be impaired.” R. 420.
On the Mental RFC Questionnaire, Dr. Stone stated that Wu had a “very limited
response to medication for her cognitive deficits” and was “unable to tolerate
medication.” R. 421. He referred to Dr. Soukup’s clinical findings as support for the
severity of Wu’s impairment. He assessed her prognosis as “guarded,” stating that

5

Although Dr. Stone’s completed forms state that he had treated Wu since August 5,
2010, R. 421, the record before this Court contains no other records from Dr. Stone.

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Wu had “permanent cognitive deficits and mood changes.” R. 421. On a checklist,
he selected “no useful ability to function” when asked about Wu’s ability to remember
work-like procedures. He further indicated that she was “unable to meet competitive
standards” in understanding and remembering very short and simple instructions,
carrying out very short and simple instructions, sustaining and ordinary routine
without special supervision, and performing at a consistent pace without an
unreasonable number and length of rest periods. He assessed Wu as “seriously
limited” in completing a normal workday and workweek without interruptions from
psychologically based symptoms, responding appropriately to changes in a routine
work setting, and dealing with normal work stress. R. 423. He explained that Wu’s
“significant impairments in verbal and visual memory [make] it extremely difficult for
[Wu] to remember instructions, etc. She has great difficulty in learning new material,
so would be unable to train for a job in a reasonable period of time.” R. 423. He
referred to testing results showing her ability to learn new verbal information “is at
the 2nd percentile” and her ability to remember verbal information is “at [the] lowest
(0) percentile.” R. 424.

He stated that Wu did not have low IQ or reduced

intellectual functioning, but did “have significant cognitive problems in area[s] of
memory and learning.” R. 424. He further stated that Wu was not a malingerer. R.
425.
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On April 15, 2011, Wu was seen by Vera A. Gonzales, Ph.D., a licensed
psychologist, for a psychological evaluation. R. 426-32. Wu was accompanied by
Fang, who was the primary informant for the interview. Dr. Gonzales reviewed Wu’s
school records and the records from Dr. Soukup, and administered multiple tests. Dr.
Gonzales noted that Wu appeared “younger than her stated age” and that Wu’s
“cognitive difficulties” were “evident even in the waiting room” when Wu asked her
mother why they were there. R. 427. Wu was “disoriented” and often asked Dr.
Gonzales to repeat information.6
Dr. Gonzales’ report reviews in detail Wu’s brain injury in 1996 and her
subsequent diagnoses, treatment, therapy and rehabilitation, and school career. She
noted that Wu had reverted to Chinese, her first language, after the accident, and had
to relearn English as well as basic daily tasks. Dr. Gonzales also noted that Wu had
tried to complete schooling for phlebotomy and pharmacy tech, but that she was
unable to handle the stress or the work, and that Wu had made multiple unsuccessful
attempts to hold a job in fast-food or retail. Dr. Gonzales stated:
It is quite clear to me that she will be unable to work in competitive
employment. She may be able to volunteer a couple of hours just to have
something to do, but she should certainly not try to work in a fast food
6

Dr. Gonzales noted that Wu’s eye contact was good, “but this is something I have
seen before with people who have suffered a [traumatic brain injury]. It is wide-eyed
because they know they are supposed to look at you and they are supposed to smile
when they see you. This is consistent with rehabilitation training received.” R. 427.

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place.
R. 428. She provided her “clinical opinion” that Wu “will not be able to have any
residual memory gain or residual cognitive gain,” in light of the fact that her injury
was fourteen years prior and “the literature suggests that we are set in memory
recovery and cognition at 18 to 24 months after a brain injury.” R. 428.
Dr. Gonzales was not able to administer the MMPI-2 to Wu “due to problems
with concentration and staying on task.” R. 429. She administered the Wechsler
Adult Intelligence Scale–Third Edition (“WAIS-III”), which showed Wu’s reasoning
abilities in the “low average” range, at approximately the 12% percentile, but which
did not indicate the possibility of a learning disorder. R. 430. Dr. Gonzales also
administered the Wide Range Achievement Test-3 (“WRAT-3”) and the Wechsler
Memory Scale–III (“WMS-III”), among other tests. The WMS-III resulted in several
scores in the “extremely low” range, and demonstrated severe impairments in Wu’s
memory, in particular, her “difficulty holding information in temporary storage” and
a “rapid loss of relevant information required to accurately perform mental operations
at the level of her peers.”

R. 431.

Wu also had “significant difficulty” in

remembering new information and in retrieving recently learned information after a
twenty-five minute delay, leading to functional difficulties in daily living or
employment. R. 431.

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Dr. Gonzales concluded that Wu’s symptoms were consistent with a “traumatic
brain injury resulting in Amnestic Disorder”:
Although the client has pushed herself to try to go to school and to work,
she has not been successful at either. . . The claimant at times has no
awareness of her deficits and has to be reminded. It appears that she has
received no “real” cognitive therapy and could make use of
compensatory strategies. The claimant has symptoms consistent with
mood disorder, mild to moderate depression, mil[d] to moderate anxiety,
and memory and cognition difficulties . . . . Prognosis is considered
guarded. The claimant may benefits from a cognitive memory
rehabilitation clinic to learn compensatory strategies [and] would benefit
from seeing a psychologist that specializes in people with [traumatic
brain injury]/trauma. The literature supports Dr. Soukup and my
evaluation, claimants with [traumatic brain injury] with an injury date of
over 14 years will not gain any in cognitive or memory status. It is my
clinical opinion that this claimant’s disability will last a lifetime and she
will need me[d]ical and mental health care. She will always run the risk
of having safety concerns because she has no real compensatory
strategies and can put herself in dangerous situations (i.e., leaving stove
on, trusting anyone, etc.).
R. 432. As to Wu’s capabilities, Dr. Gonzales stated, “The claimant is not able to
enter into competitive employment (full-time or part-time) in any field at this time.
It is my clinical opinion that Ms. Wu’s disability will last a lifetime.” R. 432.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the

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party’s case, and on which that party will bear the burden at trial.7 “The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”8 “An
issue is material if its resolution could affect the outcome of the action. A dispute as
to a material fact is genuine if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”9
III.

STANDARD OF REVIEW
Judicial review of the Commissioner’s denial of disability benefits is limited to

two inquiries: first, whether the final decision is supported by substantial evidence on
the record as a whole, and second, whether the Commissioner applied the proper legal
standards to evaluate the evidence.10 “Substantial evidence” is relevant evidence that
a reasonable mind might accept as adequate to support a conclusion.11 It is more than

7

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers
Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002).

8

FED. R. CIV. P. 56(a); Celotex Corp., 477 U.S. at 322–23; Weaver v. CCA Indus., Inc.,
529 F.3d 335, 339 (5th Cir. 2008).

9

DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations and
quotation marks omitted).

10

See Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007); Perez v. Barnhart, 415 F.3d
457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002).

11

Audler, 501 F.3d at 447 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

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a mere scintilla and less than a preponderance.12
When applying the substantial evidence standard on review, the court
scrutinizes the record to determine whether such evidence is present.13 In determining
whether substantial evidence of disability exists, the court weighs four factors: (1)
objective medical evidence; (2) diagnoses and opinions; (3) the claimant’s subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work
history.14 If the Commissioner’s findings are supported by substantial evidence, they
are conclusive and must be affirmed.15 Alternatively, a finding of no substantial
evidence is appropriate if no credible evidentiary choices or medical findings support
the decision.16 The court may not, however, reweigh the evidence, try the issues de
novo, or substitute its judgment for that of the Commissioner.17 In short, conflicts in
the evidence are for the Commissioner, not the courts, to resolve.18

12

Id.; Perez, 415 F.3d at 461; Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

13

Perez, 415 F.3d at 461; Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

14

Perez, 415 F.3d at 462 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)).

15

Id. at 461 (citing Richardson, 402 U.S. at 390); Watson v. Barnhart, 288 F.3d 212,
215 (5th Cir. 2002).

16

Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

17

Audler, 501 F.3d at 447; Masterson, 309 F.3d at 272.

18

Perez, 415 F.3d at 461; Masterson, 309 F.3d at 272.

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IV.

ANALYSIS
A.

Statutory Basis for Benefits

Wu applied for both Social Security disability insurance and Supplemental
Security Income (SSI) benefits. Social Security disability insurance benefits are
authorized by Title II of the Social Security Act. The disability insurance program
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured19 and disabled,20 regardless of indigence.
SSI benefits are authorized by Title XVI of the Social Security Act, and
provides an additional resource to the aged, blind and disabled to assure that their
income does not fall below the poverty line.21 Eligibility for SSI is based on proof of
disability22 and indigence.23 A claimant applying to the SSI program cannot receive
payment for any period of disability predating the month in which he applies for
benefits, no matter how long he has actually been disabled.24 Thus, the month
following an application fixes the earliest date from which SSI benefits can be paid.

19

42 U.S.C. § 423(c) (definition of insured status).

20

42 U.S.C. § 423(d) (definition of disability).

21

20 C.F.R. § 416.110.

22

42 U.S.C. § 1382c(a)(3) (definition of disability).

23

42 U.S.C. § 1382(a) (financial requirements).

24

Brown v. Apfel, 192 F.3d 492, 495 n.1 (5th Cir. 1999); 20 C.F.R. § 416.335.

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Eligibility for SSI, however, is not dependent on insured status.
Although these are separate and distinct programs, applicants to both programs
must prove “disability” under the Act, which defines disability in virtually identical
language. Under both provisions, “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 twelve months.”25 The
law and regulations governing the determination of disability are the same for both
programs.26
B.

Determination of Disability

When determining whether a claimant is disabled, an ALJ must engage in a
five-step sequential inquiry, as follows: (1) whether the claimant is currently engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant’s impairment meets or equals a listed impairment in Appendix
1 of the regulations; (4) whether the claimant is capable of performing past relevant
work; and (5) whether the claimant is capable of performing any other work.27 The
25

42 U.S.C. § 423(d)(1)(A) (disability insurance); 42 U.S.C. § 1382c(3)(A) (SSI).

26

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

27

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453. The Commissioner’s analysis at
steps four and five is based on the assessment of the claimant’s residual functional
(continued...)

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claimant has the burden to prove disability under the first four steps.28 If the claimant
successfully carries this burden, the burden shifts to the Commissioner at Step Five
to show that the claimant is capable of performing other substantial gainful
employment that is available in the national economy.29 Once the Commissioner
makes this showing, the burden shifts back to the claimant to rebut the finding.30 A
finding that a claimant is disabled or is not disabled at any point in the five-step
review is conclusive and terminates the analysis.31
In this case, at Step One, the ALJ determined that Wu had not engaged in
substantial gainful activity since January 31, 2008, her alleged onset date. The ALJ
found at Step Two that Wu had two severe impairments: (1) organic brain disorder
and (2) mood disorder. At Step Three, the ALJ concluded that Wu’s impairments did
not meet or medically equal a listed impairment in the relevant federal regulations.
Before proceeding to Step Four, the ALJ assessed Wu’s residual functional

27

(...continued)
capacity (“RFC”), or the work a claimant still can do despite his or her physical and
mental limitations. Perez, 415 F.3d at 461-62. The Commissioner assesses the RFC
before proceeding from Step Three to Step Four. Id.

28

Perez, 415 F.3d at 461; Myers, 238 F.3d at 619.

29

Perez, 415 F.3d at 461; Masterson, 309 F.3d at 272; Greenspan, 38 F.3d at 236.

30

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.

31

Perez, 415 F.3d at 461 (citing 20 C.F.R. § 404.1520(a)).

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capacity (“RFC”) and found that she had no exertional limitations, but that her
capacity was “limited nonexertionally due to her psychologically based symptoms.”
R. 16. In particular, she found:
[C]laimant should avoid complex and detailed tasks and instructions as
found in skilled and semi-skilled work, but can understand, remember
and carry out simple tasks and instructions. The claimant should have
limited contact with the public and cannot work at fast-paced production
jobs.
R. 16-17. At Step Four, the ALJ determined that Wu was not able to perform her past
relevant work as a fast food worker. At Step Five, she determined that jobs existed
in the national economy that Wu could perform, and therefore concluded that Wu was
not under a disability during the relevant period.
D.

Plaintiff’s Arguments for Reversal

In this case, Wu presented opinions from a treating physician (Dr. Stone) and
two examining physicians (Dr. Gonzales and Dr. Soukup), among other medical
opinions. Wu argues that the ALJ erred by improperly rejecting the medical opinions
of her treating and examining physicians. She further argues that the RFC crafted by
the ALJ, which included a determination that Wu could “understand, remember and
carry out simple tasks and instructions” is not supported by the medical evidence of
record.
The ALJ is legally required to evaluate every medical opinions she receives,

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and to consider certain factors when deciding how much weight to give the medical
opinion. 20 C.F.R. §404.1527(c) (disability); 20 C.F.R. § 416.927(c) (SSI). Clear
Fifth Circuit precedent requires an ALJ to give “controlling weight” to a treating
physician’s opinion, if the opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques” and “not inconsistent” with other substantial
evidence in the record. Newton, 209 F.3d at 455 (internal quotation marks and
citations omitted).32 The medical opinions of physicians who examine the claimant,
even if they do not have a treating relationship with the claimant, also are entitled to
additional weight. See 20 C.F.R. § 404.1527(c)(1) (“Generally, we give more weight
to the opinion of a source who has examined you than to the opinion of a source who
has not examined you.”); 20 C.F.R. § 416.972(c)(1) (same). A specialist’s opinion is
afforded greater weight than a generalist’s opinion.33
An ALJ may discount the weight given to a treating physician’s opinion for
“good cause” when the treating physician’s statements are brief and conclusory, are
not supported by medically acceptable clinical, laboratory, or diagnostic techniques,

32

See 20 C.F.R. § 404.1527(c); 20 C.F.R. § 416.927(c); Martinez v. Chater, 64 F.3d
172, 176 (5th Cir. 1995); Giles v. Astrue, 433 F. App’x 241, 246 (5th Cir. 2011);
Beasley v. Barnhart, 191 F. App’x 331, 334 (5th Cir. 2006).

33

Newton, 209 F.3d at 455. See 20 C.F.R. § 404.1527(c)(5); 20 C.F.R. § 416.927(c)(5).

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or are otherwise unsupported by the evidence.34 Before discounting the weight of a
treating physician’s opinion, an ALJ is required by regulation to consider the
following factors: the physician’s length of treatment of the claimant; the physician’s
frequency of examination; the nature and extent of the treatment relationship, the
support of the physician’s opinion afforded by the medical evidence of record; the
consistency of the opinion with the medical record, and the physician’s
specialization.35 Even when an ALJ finds “good cause” to decline to give controlling
weight to the treating physician’s opinion, he or she must still address the required
factors, and may not simply reject the opinion outright.36
A treating physician’s opinion is not conclusive, and the decision regarding the
claimant’s status rests with the ALJ. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.

34

Myers, 238 F.3d at 621; Newton, 209 F.3d at 456. See Beasley, 191 F. App’x at 334
(“The ALJ must always give good reasons for the weight it affords the opinion [of a
treating physician], and must show good cause when giving that opinion little or no
weight”) (internal quotation marks, alteration, and citations omitted).

35

Myers, 238 F.3d at 621; Newton, 209 F.3d at 456; 20 C.F.R. § 404.1527(c); 20 C.F.R.
§ 416.927(c).

36

Newton, 209 F.3d at 456 (“‘[A] finding that a treating source medical opinion is not
well supported by medically acceptable clinical and laboratory diagnostic techniques
or is inconsistent with the other substantial evidence in the case record means only
that the opinion is not entitled to “controlling weight,” not that the opinion should be
rejected. Treating source medical opinions are still entitled to deference and must
be weighed using all of the factors provided in 20 C.F.R. 404.1527 and 416.927. In
many cases, a treating source’s medical opinion will be entitled to the greatest weight
and should be adopted even if it does not meet the test for controlling weight.’”)
(quoting SSR 96-2p) (emphasis added by Newton).

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1994).

Moreover, because the determination of disability is reserved to the

Commissioner, a medical source’s conclusion that a claimant is “disabled” or “unable
to work” is not binding on the Commissioner. 20 C.F.R. § 404.1527(d)(1); 20 C.F.R.
416.927(d)(1). See Thibodeaux v. Astrue, 324 F. App’x 440, 444 (5th Cir. 2009).
In this case, Wu presented medical opinions from Dr. Stone, a psychiatrist who
treated Wu, and from Drs. Soukup and Gonzales, both of whom examined Wu before
rendering an opinion as to her condition and prognosis. The ALJ largely rejected all
three opinions by her finding, when determining Wu’s RFC, that Wu “can understand,
remember and carry out simple tasks and instructions.” R. 16-17. This finding was
contrary to the opinions of all three physicians. For the reasons stated below, the
ALJ’s evaluation of these three medical opinions was inadequate under the abovecited Fifth Circuit authority and federal regulations.
First, the ALJ summarily rejected the extensive report of Dr. Gonzales with the
following determination:
The opinion of Dr. Gonzales is given no probative weight as it is merely
an opinion that the claimant cannot work.
R. 20. The ALJ offered no further support for her dismissal of Dr. Gonzales’ opinion.
Although it is true that Dr. Gonzales stated her opinion that Wu was unable to enter
into competitive employment, this statement was only a small part of her detailed
seven-page report. As the report reflects, Dr. Gonzales administered battery of test
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and conducted an extensive interview that included a careful review of Wu’s medical
history. In addition to her opinion that Wu would not be able to hold competitive
employment, Dr. Gonzales also provided medical opinions within her specialization,
including her clinical opinion that Wu will not be able to have any residual memory
or cognitive gain, and her conclusion based on testing that Wu suffered from severe
memory impairments, leading to functional difficulties in daily living or employment.
R. 428, 431-32. The ALJ failed even to discuss this medical opinion—which directly
contradicted the RFC—before rejecting it. Although Dr. Gonzales was not a treating
physician, she examined Wu, which entitles her opinion to more weight than those of
non-examining physicians. 20 C.F.R. § 404.1527(c), § 416.927(c). Dr. Gonzales’
medical specialization and the supportability of her opinions (in particular, the battery
of tests she administered) further add to the weight of her opinion. Id.37 The ALJ’s
failure to properly evaluate her opinion requires remand. See Newton, 209 F.3d at
456.
Second, the ALJ failed even to evaluate the medical opinion rendered by Dr.
Soukup after her neuropsychological examination of Wu. Although the ALJ recited
some of Dr. Soukup’s findings when reviewing the evidence in Wu’s case, see R. 18,

37

The Court further notes that Dr. Gonzales was aware that Wu was attending school
and made repeated attempts to hold jobs, but that this information, upon which the
ALJ relied, did not alter Dr. Gonzales’ medical opinion.

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she made no further mention of Dr. Soukup’s opinion and gave no reason for her
failure to give the opinion weight. Importantly, the ALJ’s RFC determination is
contrary to Dr. Soukup’s opinion, supported by testing, that Wu’s ability to learn new
verbal information was in the 2nd percentile, her ability to retrieve information after
a twenty-minute delay was in the lowest percentile (0%), and that her recognition
memory was in the lowest percentile (0%). R. 260-61. Given her specialization and
the supportability of her opinion, as well as her personal examination of Wu, Dr.
Soukup’s opinion was entitled to significant weight under the federal regulations and
case law. No medical evidence of record contradicted the opinion. The ALJ’s failure
to afford the opinion its proper weight, and/or to articulate her reasons for discounting
the opinion, requires remand. See Newton, 209 F.3d at 456.
Finally, the ALJ did not give proper weight to the opinion of Dr. Stone, Wu’s
treating physician. The ALJ’s finding in the RFC that Wu could remember and carry
out short, simple instructions is directly contradictory to the opinion of Dr. Stone, who
stated that Wu was “unable to meet competitive standards” in this area. The ALJ’s
finding also conflicts with Dr. Stone’s opinion that Wu had “no useful ability to
function” in regard to her ability to remember work-like procedures, and his opinions
regarding her serious limitations in completing a normal workday and training for a
new job. Dr. Stone’s opinions were supported by Dr. Soukup’s testing results

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showing very severe deficits in Wu’s short-term memory. R. 424 (citing test results
showing Wu at the 2nd percentile for learning new verbal information and the “lowest
(0) percentile” for remembering verbal information). The ALJ’s justification for
rejecting Stone, in its entirety, was as follows:
Dr. Stone’s opinion is not only inconsistent with other substantial
evidence of the record, but it has internal inconsistencies. He is opining
Ms. Wu is totally unable to function in an occupational or school
environment based on his narrative opinions of her abilities and then
rates her a GAF of 65 contradicting his own narrative comments. It is
also noted that claimant is functioning in a school environment.
R. 20. The ALJ’s reason is not legally adequate “good cause” to disregard Dr. Stone’s
opinion. First, to the extent the ALJ bases her disregard of Dr. Stone’s opinion on
Wu’s GAF scores, this rationale is inadequate because a GAF score is not
determinative of a claimant’s ability to work. See Andrews v. Astrue, 917 F. Supp. 2d
624, 638 (N.D. Tex. 2013) (citing, inter alia, 65 Fed. Reg. 50746, 50764–65 (Aug.
21, 2000); Kennedy v. Astrue, 247 F. App’x 761, 766 (6th Cir. 2007); Wind v.
Barnhart, 133 F. App’x. 684, 692 n. 5 (11th Cir. 2005)). Moreover, the other
evidence identified by the ALJ—in particular, Wu’s “functioning in a school
environment”—is lay evidence, not medical evidence. There was, in this case, no
medical evidence controverting Dr. Stone’s opinion. The ALJ’s reliance on this lay
evidence, and her failure to perform the required detailed analysis under the federal
regulations, requires remand. See Newton, 209 F.3d at 456.
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V.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant’s request for summary judgment in their Response

Brief [Doc. # 14] is DENIED. It is further
ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. # 8] is
GRANTED. This case is REMANDED to the Commissioner for further proceedings
in accordance with this opinion.
A separate Order of Remand will issue.
SIGNED at Houston, Texas, this 6th day of March, 2014.

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