Byrd v. Colvin

Filing 10

ORDER denying 7 Plaintiff's MOTION for Summary Judgment, granting 8 Defendant's MOTION for Summary Judgment. Case terminated on 7/2/2015. (Signed by Judge Vanessa D Gilmore) Parties notified. (wbostic, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JACK BYRD
Plaintiff,
vs.

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendants.

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CIVIL ACTION NO. 4:14-02750

ORDER
Pending before the Court is Defendant Carolyn W. Colvin ("Defendant" or
"Commissioner")'s Motion for Summary Judgment. (Instrument No.8). Also pending before
the Court is Plaintiff Jack Byrd's ("Plaintiff' or "Byrd")'s Motion for Summary Judgment.
(Instrument No.7).

A.
Byrd brings this action to review a final order from Defendant, Commissioner of the
Social Security Administration ("Administration"), pursuant to 42 U.S.c. §405(g). (Instrument
No.7 at 1). Byrd seeks reversal of the Administrative Law Judge's ("ALJ") decision denying
Plaintiff disability and disability income benefits under Title II of the Social Security Act
("SSA"). (Id.). Byrd also seeks a remand for an award of benefits or, in the alternative, additional
administrative proceedings. (Id. at 10).

B.
Byrd filed for disability benefits under the SSA on December 29, 2011 to establish a
period of disability and disability insurance benefits beginning on December 29, 2009.
(Instrument No. 5-6 at 2-10). Byrd's claim was initially denied on February 16,2012, and denied
again upon reconsideration on April 5, 2012. (Instrument No. 5-3 at 3-5). Plaintiff requested an
administrative hearing before an AU on April 23, 2012. (Instrument No. 5-4 at 12-14). The
administrative hearing was held before Judge Daniel Whitney on May 8, 2013. (Instrument No.
5-2 at 24-59). On May 23, 2013, the AU found Byrd was not disabled. (Instrument No. 5-2 at 923). On July 22, 2013, Byrd requested a review of the ALl's decision. (Instrument No. 5-2 at 7-

8). On July 16, 2014, the Appeals Council denied Byrd's request. (Instrument No. 5-2 at 1-6).
Pursuant to his right to judicial review, Byrd filed this action under 42 U.S.c. § 405(g).
(Instrument No.7 at 3)

c.
.L
Byrd was born on June 13, 1959, and was 50 years old at the onset of his alleged
disability. (Instrument No. 5-6 at 2-4). Byrd testified that he received a GED. (Instrument No. 52 at 34). Byrd has not engaged in substantial gainful activity since December 29, 2009.
(Instrument No. 5-2 at 15). Prior to that, Bryd was a self-employed carpenter. (Instrument No. 56 at 27).

2.
Byrd has a history of low back, neck and shoulder pain. (Instrument 5-7 at 6). According
to Byrd the pain began after he was electrocuted 20 years ago. (!d.). Three years ago, Byrd

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claims that he fell off a twelve foot tall dam. (Id.). Byrd claims the fall, increased his neck,
shoulder and back pain. (Id.).
On July 18, 2011, Byrd was examined by Dr. Travis Garrett ("Dr. Garrett") to assess
Byrd's low back, neck, and shoulder pain. (Id. at 37). Dr. Garrett found that Byrd's neck and
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back pain is likely osteoarthritis and musculoskeletat2. (Id.). Dr. Garret also sugguested Byrd's
shoulder pain is likely adhesive capsulitis/ also known as frozen shoulder. (Id.).
On July 19,2011, Dr. Garret performed X rays on Byrd's shoulder, neck and back. (Id. 57 at 43). A left shoulder X ray showed a mild arthrosis of the glenohumeral 4 and
5

acromioclavicular joints; calcific tendinosis6 ; and narrowing of the acromiohumeral intervat1
suggesting rotator cuff pathology. (Id.). A cervical X ray showed advanced multilevel
degenerative changes of the cervical spine. (Id.). Thoracic and Lumbosacral X rays revealed mild
multilevel degenerative changes of the thoracic and lumber spine. (Id.)

1 Osteoarthritis is the most common form of arthritis, affecting millions of people worldwide. It occurs when the
protective cartilage on the ends of your bones wears down over time. http://www.mayoclinic.org/diseasesconditions/osteoarthritislbasics/definition/con-20014749 (last visited June 12,2015).

Musculoskeletal is pain that affects the bones, muscles, ligaments, tendons, and nerves.
http://my.clevelandclinic.org/health/diseases_conditions/hie_ musculoskeletatpain (last visited June 12, 2015).

2

Adhesive capsulitis is a condition characterized by stiffness and pain in your shoulder joint.
http://www.mayoclinic.org/diseases-conditions/frozen-shoulderlbasies/definition/con-20022510 (last visited June
12,2015).

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Glenohumeral joint is the shoulder joint, formed by the glenoid cavity of the scapula and the head of the humerus.
http://medical-dictionary.thefreedictionary.comlglenohumeral+joint (last visited June 12, 2015).

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Acromioclavicular joint is the joint plane between the medial margin of the acromion of the scapula and the lateral
margin of the clavicle. http://medieal-dictionary.thefreedietionary.comlacromioclavieular+joint (last visited June 12,
2015).

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Calcific tendonitis is the Inflammation of a tendon accompanied by focal calcium deposits, especially common in
the supraspinatus tendon of shoulder joint. http://medical-dictionary.thefreedietionary.com/Calcifie+tendonitis (last
visited June 12, 2015).

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Acromiohumeral interval (ARI) is a useful and reliable measurement on AP shoulder radiographs and when
narrowed is indicative of rotator cuff tear or tendinopathy. http://radiopaedia.org/articles/acromiohumeral-interval
(last visited June 12, 2015).
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On August 15, 2011, Byrd was examined by Dr. Ruth Falik ("Dr. Falik"). (Instrument 57 at 31). Dr. Falik agreed with Dr. Garret's exam results and with the diagnosis of chronic
transaminitis and back pain. (Id. at 34). Dr. Falik noted that Byrd continues to suffer from pain in
his shoulders and lower pack. At the time, Byrd was taking Advil for his pain. (Id.).
On October 18, 2011, Byrd was examined by Dr. Jamie Partridge ("Dr. Partridge") (Id. at
31). Dr. Jamie Partridge found that the pain in Byrd's shoulder and neck had subsided and that
his shoulder flexibility was improving. (Id.). On November 1, 2011, Byrd was again examined
by Dr. Partridge. (Id. at 26). At that time, Dr. Partridge found that Byrd had increased pain when
he moved his neck and shoulders. (Id.).
On November 14, 2011, Byrd was examined by Dr. Travis Garrett ("Dr. Garrett"). (Id. at
20). Dr. Garrett found that physical therapy was improving Byrd's bodily movement but that he
still suffered from chronic neck, shoulder and back pain. (Id. at 23).
On December 19, 2011, Dr. Garrett again examined Byrd. (Id. at 8). Dr. Garrett assessed
chronic neck, shoulder and back pain, most likely secondary trauma, osteoarthritis, severe
degenerative joint disease, and frozen shoulder. (Id. at 11). Dr. Garrett also found that Byrd had a
decreased range of motion in his neck and shoulders. (Id.).
On January 13, 2012, Byrd reported to Dr. Partridge that he was having increased lower
back pain after he "twisted funny". (Id. at 6). Byrd again complained of low back pain, shoulder
pain and neck pain. (Id.) He reported that his pain decreased with manual therapy. (Id.) He was
advised to continue physical therapy once a week for six weeks for strengthening, range of
motion, and improved function in daily activities. (Id.)

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On March 29, 2012, Dr. Garrett completed a lumber spine medical source statement.
(Instrument 5-8 at 33.). Dr. Garrett diagnosed Byrd with chronic back, neck and shoulder pain.
(!d.). Dr. Garrett indicated Byrd had a fair prognosis and that Byrd had a decreased range of

motion in his neck and bilateral shoulders and a positive straight leg raising test on the left. (Id.).
Dr. Garrett found that Byrd had neck and low back pain during prolonged standing and sitting.
(Id.). Dr. Garrett further recognized that Byrd was able to walk one-fourth block without having

severe pain; sit for twenty minutes at one time before needing to get up; stand for ten minutes at
one time before he needs to sit down; lift and carry less than ten pounds occasionally. (!d.). Dr.
Garret concluded Byrd could sit for about four hours and stand/walk for less than two hours in a
working day. (Id.). He indicated Byrd would need a job that permits shifting positions at will
from siting, standing or walking. (Id. at 35). Specifically, Dr. Garrett indicated that Byrd would
need to be able to shift positions at will and walk around every five minutes for ten minutes.
(Id.). Dr. Garrett indicated that Byrd would need to take five or more unscheduled breaks per day

and that Byrd would need to rest 15-20 minutes before returning to work. (Id.). Dr. Garrett
concluded that Byrd should use a cane when walking or standing. (Id.). He also determined that
in work situations, Byrd can occasionally carry objects that are less than ten pounds. (Id.). Dr.
Garret indicated Byrd would be able to occasionally twist, crouch/squat, and climb stairs but that
Byrd should not bend and should rarely climb ladders. (Id.). Dr. Garret indicated Byrd would be
limited to performing fine manipulation seventy percent of the time and reaching in front of his
body thirty percent of the time. (Id. at 36). Dr. Garret concluded Byrd is likely to be off task 25
percent or more of his time working and that Byrd would likely have to miss more than four days
a month of work. (!d.).

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On May 14, 2012, Dr. Falik assessed Byrd with severe spinal stenosis 8 in the cervical
region. (Id. at 10). Foraminal stenosis was performed from C3 through C7. (Id.). It was severe at
C3-C4 on the right, C4-C5 on the right and at C5-C6 on the left. Disc ostephyte complexes from
C3 through C6 resulted in mild spinal canal stenosis, which was worst at C5-C6. (Id.). Moderate
spinal canal stenosis at L3-L4 due to disc protrusion with a small central annular fissure. (Id.).
Mild bilateral forminal stenosis at L3-L4 due to disc bulge and facet arthropathy. (Id.). Focal left
paracentral disc extrusion which abuts the S1 nerve root at LS-S1 (Id.). Facet arthropathy and
synovitis at L3-L4. Annular fissure with the L3-L4 intervertebral disc. (Id.).

D.

On May 8, 2013, the AU conducted an administrative hearing on Byrd's claims for
disability benefits. (Instrument No. 5-2 at 13). Attorney Frank Marek ("Mr. Marek") represented
Byrd. (Id.) Vickie Colenburg ("Ms. Colenburg") testified as a vocational expert ("VE"). (Id.). In
determining whether Byrd was disabled under the Act, the AU applied the five-step sequential
evaluation process required by the SSA. At step 1, the AU found that Byrd had not engaged in
substantial gainful activity since December 29, 2009. (Instrument No. 5-2 at 14). The AU
further determined, at step 2, that Byrd had the following severe impairments: low back pain;
degenerative

disc

disease;

frozen

shoulder;

deconditioning

secondary

to

long-time

unemployment (Id.). At step 3, the AU concluded that Byrd did not have any impairments or
combination of impairments that met or medically equaled the listings in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id.).
Spinal stenosis is a narrowing of the open spaces within your spine, which can put pressure on your spinal cord and
the nerves that travel through the spine. Spinal stenosis occurs most often in the neck and lower back.
http://www.mayoclinic.orgldiseases-conditions/spinal-stenosislbasics/definition/con-20036105 (last visited June 12,
2015).

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Prior to reaching step four, the AU determined that Byrd has the residual functional
capacity ("RFC") to perform light work as defined in 20 CFR 416.967(b) except Byrd would be
unable to climb ropes, ladders, or scaffolds or perform overhead reaching. (Id. at 14-15).
At step four, the AU found Byrd has no relevant work. (Id. at 18). At step five, the AU
considered Byrd's age, education, work experience, and RFC, and found there were jobs that
existed in significant numbers in the national economy that Byrd could perform despite his
limitations. (Id.). The AU relied on the testimony of Ms. Colenburg who testified that Byrd
could perform the jobs of small product assembler, price tagger and cafeteria attendant (Id. at
20). Based on the foregoing, the AU found Byrd is not disabled under the Act. (Id.)

II.
Summary judgment is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A fact is "material" it
its resolution in favor of one party might affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes that are irrelevant
or unnecessary will not be counted." (/d. at 248). An issue is "genuine" if the evidence is
sufficient for a reasonable jury to return a verdict for the nonmoving party. (Id.). If the evidence
rebutting the motion for summary judgment is only colorable or not significantly probative,
summary judgment should be granted. (Id. at 249-50).
Under Fed. R. Civ. P. 56(c), the moving party bears the initial burden of "informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue for trial." Matsushita Elec. Ind. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586-87 (1986); Leonard v. Dixie Well Servo & Supply, Inc., 828 F.2d
291, 294 (5th Cir. 1987).
Where the nonmoving party has met its Rule 56(c) burden, the nonmovant "must do more
than simply show that there is some metaphysical doubt as to the material facts ... the nonmoving
party must come forward with specific facts showing there is a genuine issue for trial."

Matsushita, 475 U.S. at 586-87 (quoting Fed. R. Civ. P. 56(c». To sustain the burden, the
nonmoving party must produce evidence admissible at trial. Anderson, 477 U.S. at 255. In
deciding a summary judgment motion, "[t]he evidence of the nomovant is to be believed, and all
justifiable inferences are to be drawn in his favor." (Id. at 255). If reasonable minds can differ
regarding a genuine issue of material fact, summary judgment should not be granted. (Id. at 25051).
When applying the summary judgment standard to the ALl's decision to deny benefits,
the Court may only inquire into: (1) whether the proper legal standard was applied; and (2)
whether substantial evidence supports the decision. Joseph

V.

Astrue, 231 Fed. Appx. 327, 329

(5th Cir. 2007) (unpublished). If the Commissioner's findings are supported by substantial
evidence, they are conclusive and must be affirmed. Anthony V. Sullivan, 954 F.2d 289, 292 (5th
Cir. 1992) (citing 42 U.S.c. § 405(g»; Richardson

V.

Perales, 402 U.S. 389, 390 (1971).

Substantial evidence requires "more than a mere scintilla" of evidence. Joseph, 231 Fed.
Appx. at 329 (citing Richardson, 402 U.S. at 401). Alternatively, substantial evidence "means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

(Id.).

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A determination as to whether there is substantial evidence in the record to support the
findings of the Commissioner does not involve reweighing the evidence, trying the issues de
novo, or substituting the judgment of this Court for that of the Commissioner. Greenspan v.
Shalala, 38 F.3d 232, 236 (1994) (citing Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir.

1989)).

Instead, this Court must scrutinize the record in its entirety to determine whether

substantial evidence supports the Commissioner's findings. (Id.).
III.

A claimant is entitled to disability benefits if he establishes that he is unable to engage in,
"any substantial gainful activity by reason of any medically determinable physical or mental
impairment ... which has lasted or can be expected to last for a continuous period of not less than
twelve months." 42 U.S.c. §§ 416(i)(1), 423(d)(1)(A) (2008). In determining whether a claimant
is capable of engaging in any substantial gainful activity, the Commissioner applies a five-step
sequential evaluation process.
The rules governing the steps of this evaluation process are: (1) a claimant who is
working, engaging in a substantial gainful activity, will not be found to be disabled no matter
what the medical findings are; (2) a claimant will not be found to be disabled unless he has a
severe impairment; (3) a claimant whose impairment meets or is equivalent to an impairment
listed in Appendix 1 of the regulations will be considered disabled without the need to consider
vocational factors; (4) a claimant who is capable of performing work that he has done in the past
must be found not disabled; and (5) if the claimant is unable to perform his previous work as a
result of his impairment, then factors such as his age, education, past work experience, and RFC

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must be considered to determine whether he can do other work. Boyd v. Apfel, 239 F.3d 698,
704-05 (5th Cir. 2001); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990).
"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." Boyd, 239 F.3d at 705 (quoting Greenspan v.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994». When a claimant's impairments do not meet the
requirements of step 3, the Commissioner will still evaluate the claimant's RFC to determine if
she can do her past work. 20 C.F.R. § 404.1520 (2012). The burden of proof is on the claimant
for the first four steps, but shifts to the Commissioner at step five. Newton v. Apfel, 209 F.3d
448, 453 (5th Cir. 2000).
Following the 2013 hearing in this case, the AU found that Byrd was not disabled at step
5 of the evaluation process. (Instrument No. 5-2 at 24-59). The Commissioner's decision became
final on July 16, 2014, when the Appeals Council denied Byrd's appeal of the 2013 hearing
decision. (Id. at 7). Byrd's appeal to this Court concerns the ALl's determination at step 3 and of
his RFC (Instrument No. 9 at 2). At step 3, the AU determined that Byrd does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925
and 416.926). (Id.). Before reaching step four, the AU considered opinion evidence from Dr.
Garrett in assessing Byrd's RFC. At step 5, the AU relied upon a vocational expert testimony,
Vickie Colenburg, to find Byrd could perform certain jobs despite the limitations described in his
RFC. (Id.).
Byrd cites two errors in support of his motion for summary judgment. First, Byrd argues
that the AU erred when he failed to consider that Byrd's diagnosis of Spinal stenosis precluded

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him from light work or the ability to work a full day. (Instrument No.7 at 6). Performing light
work requires the ability to lift more than twenty pounds at a time. Light work also requires the
ability to frequently lift or carry objects that weigh ten pounds. 20 CFR 404.1567 (b). Light work
requires one to walk or stand for the majority of the workday. (Id.). The claimant has the burden
of proving he can not perform light work or work a full day. Newton, 209 F.3d at 453. The AU
has a duty to consider all evidence and may not pick and choose evidence that suit them. Loza v.
Apfel, 219 F.3d 394 (5th Cir. 2000).

In support of his first argument, Byrd cites a May 14, 2012 visit to Dr. Garrett during
which Dr. Garrett diagnosed Byrd as suffering from Spinal stenosis in cervical region.
(Instrument 5-8 at 10). Byrd cites an MRI performed on him by Dr. Garrett which revealed Byrd
has severe damage to his spine. (Id.). Dr. Garrett referred Byrd to Neurosurgery and to consider
other options. (Id. at 12). While Dr. Garrett assessed Byrd with Spinal stenosis there is no
evidence that Spinal stenosis would prevent Byrd from performing light work or rendered Byrd
disabled. (Instrument 5-8 at 1-37). Spinal stenosis is not an impairment listed in the CFR. See 20
CFR Part 404, Subpart P, Appendix 1. Furthermore while Dr. Garrett recommended Byrd to
neurosurgery, Byrd's claim that Spinal stenosis precludes light work is not supported by the
record. Accordingly, Byrd failed to meet his burden to show the AU that Spinal Stenosis is a
severe impairment or would preclude light work. See Newton, 209 F.3d at 453.
Byrd also argues that the AU incorrectly ruled that Dr. Garrett's opinion was not entitled
to controlling weight when determining his RFC. (Instrument No.7 at 7). A treating physician's
opinions are not conclusive and are not entitled to controlling weight if substantial, non medical
evidence shows that the individuals activities are greater than those provided in the treating

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source's opinion. Nix v. Barnhart, 160 F. App'x 393, 395-396 (5th Cir. 2005). The AU is free to
assign little or no weight to the opinion of any physician for good cause. Newton, 209 F.3d at .
455-56. Good cause arises where statements are brief and conclusory, not supported by
medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the
evidence. Perez v. Barnhart, 415 F.3d 457, 466 (5th Cir. 2005); Newton, 209 F.3d at 456.
Byrd asserts that Dr. Garrett's opinion should be the controlling evidence used to
determine his disability. Byrd cites a March 29, 2012 visit to Dr. Garrett during which Dr.
Garrett drafted a lumber spine medical source statement. (Instrument 5-8 at 33.) He assessed
Byrd as being able to: walk one-fourth block without having severe pain; sit for twenty minutes
at one time before needing to get up; stand for ten minutes at one time before he needs to sit
down; and lift and carry less than ten pounds occasionally. (Id.). Dr. Garret reported Byrd should
not carry anything that weighs more than 10 pounds. (Id.). Dr. Garret indicated Byrd needs to be
able to shift positions at will and walk around every five minutes for ten minutes. (!d. at 35). Dr.
Garrett concluded Byrd needs to take five or more unscheduled breaks per day. (Id.). Dr. Garret
indicated Byrd is likely to be off task 25 percent or more of his time working and will likely have
to miss more than four days a month of work. (Id.).
Dr. Garrett's opinions are directly controverted by Byrd's own testimony. Byrd testified
that he could lift twenty pounds. (Instruments No. 5-2 at 42). Byrd further testified that he could
sit long enough to drive his elderly housemates to and from medical appointments and that he
could walk more than two blocks. (Id. at 30,51). The AU noted that Byrd had no difficulty
sitting in the administrative hearing, which lasted thirty-four minutes. (Id. at 26-58). Byrd also
stated that he cared for elderly people that lived with him and his pet cat. (Id. at 32). Byrd did not

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seek regular treatment for his alleged impairments and only took Advil to alleviate his pain,
indicating that his pain was not severe. (Id. at 17, 43). Byrd was also able to complete strength
exercises in physical therapy. (Instrument 5-7 at 34). Dr. Garrett's opinions of Byrd's limited
capabilities are not consistent with Byrd's testimony as a whole. Accordingly, there is substantial
evidence that supports the ALJ's decision that Dr. Garrett's opinion is not entitled to controlling
weight. See Nix, 160 F. App'x at 395-396.
For these reasons, the Court concludes that substantial evidence supports the
Commissioner's ultimate finding that Byrd was not disabled.

Based on the foregoing, IT IS HEREBY ORDERED THAT Defendant's Motion for
Summary Judgment (Instrument No.8) is GRANTED and Plaintiffs Motion for Summary
Judgment (Instrument No.7) is DENIED.
The Clerk shall enter this Order and provide a copy to all parties.

~,~

SIGNED on this the L - day of July, 2015, at Houston, Texas.

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VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE

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