Thomas v. Colvin
MEMORANDUM AND ORDER Denying 10 MOTION for Summary Judgment ; Granting 11 Cross MOTION for Summary Judgment (Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BARBARA SUE THOMAS,
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
CIVIL ACTION NO. H-14-3287
MEMORANDUM AND ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Magistrate Judge1 in this social security appeal is Plaintiff’s Motion for
Summary Judgment and Memorandum in Support thereof (Document No.10), Defendant’s
Response to Plaintiff’s Motion for Summary Judgment (Document No.13), Defendant’s Motion
for Summary Judgment (Document No. 11) and Memorandum in Support thereof (Document
No.12). After considering the cross motions for summary judgment, the administrative record,
and the applicable law, the Magistrate Judge ORDERS, for the reasons set forth below, that
Defendant’s Motion for Summary Judgment (Document No. 11) is GRANTED, Plaintiff’s
Motion for Summary Judgment (Document No. 10) is DENIED, and the decision of the
Commissioner is AFFIRMED.
The parties consented to proceed before the undersigned Magistrate Judge on April 1, 2015.
(Document No. 8).
Plaintiff Barbara Sue Thomas (“Thomas”) 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 her applications
for disability insurance benefits (“DIS”) and supplemental security income (“SSI”). Thomas
argues that evidence does not support the Administrative Law Judge’s (“ALJ”) decision, and the
ALJ, Gerald Meyer, committed errors of law when he found that Thomas was not disabled.
Thomas argues that she has been disabled since July 1, 2009, due to mental problems. According
to Thomas, the ALJ failed to consider the Thomas’s obsessive-compulsive disorder, and failed to
call a Medical Expert to testify or obtain a consultative examination, and instead acted as a
physician in the case in making his residual functional capacity (“RFC”) assessment. Thomas
seeks an order reversing the ALJ’s decision and awarding benefits, or in the alternative
remanding her claim for further consideration, with instructions to order a Mental Health Expert
to appear and testify regarding all of Thomas’s psychiatric limitations. The Commissioner
responds that Thomas was not disabled, that the decision comports with applicable law, that the
ALJ did consider all credible evidence, and that the decision should, therefore, be affirmed.
On January 30, 2013, Thomas applied for disability insurance benefits and SSI, claiming
an inability to work since July 1, 2009. The Social Security Administration denied her
application at the initial and reconsideration stages. After that, Thomas requested a hearing
before an ALJ. The Social Security Administration granted her request and the ALJ, Gerald
Meyer, held a hearing on February 5, 2014, at which Thomas’s claims were considered de novo.
On May 12, 2014, the ALJ issued a decision finding Thomas not disabled. (Tr. 20-31).
Thomas sought review of the ALJ’s adverse decision with the Appeals Council. The
Appeals Council will grant a request to review an ALJ’s decision if any of the following
circumstances are present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an
error of law in reaching his conclusion; (3) substantial evidence does not support the ALJ’s
actions, findings or conclusions; or (4) a broad policy issue may affect the public interest. 20
C.F.R. § 404.970; 20 C.F.R. § 416. 1470. The Appeals Council concluded there was no basis
upon which to grant Nelson’s request for review. After the denial, the ALJ’s findings and
decision became final.
Thomas has filed a timely appeal of the ALJ’s decision. Both the Commissioner and
Thomas have filed motion for Summary Judgment (Document Nos. 10 & 11). This appeal is
now ripe for ruling.
Standard for Review of Agency Decision
The court, in its review of a denial of disability benefits, is only “to [determine] (1)
whether substantial evidence supports the Commissioner’s decision, and (2) whether the
Commissioner’s decision comports with relevant legal standards.” Jones v. Apfel, 174 F.3d 692,
693 (5th Cir. 1999). Indeed, Title 42, Section 405(g) limits judicial review of the
Commissioner’s decision as follows: “[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The
Act specifically grants the district court the power to enter judgment, upon the pleadings, and
transcript, “affirming, modifying, or reversing the decision of the Commissioner of Social
Security with or without remanding the case for a rehearing” when not supported by substantial
evidence. Id. 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. Chaparro v. Bowen, 815 F.2d 1008, 1009 (5th Cir. 1987); see also
Jones at 693; Cook v. Heckler, 750 F.2d 391, 392 (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 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 1127 (5th Cir. 1973)).
Burden of Proof
An individual claiming entitlement to disability insurance benefits under the Act has the
burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act
defines disability as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be proven through medically
accepted clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment
must be so severe as to limit the claimant in the following manner:
[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 an impairment is not enough to establish that
one is suffering from a disability. Rather, a claimant is disabled only if he is “incapable of
engaging in any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir.
1992) (quoting Milan v. Bowen, 782 F.2d 1284 (5th Cir. 1986)).
The Commissioner applies a five-step sequential process to determine disability status:
1. If the claimant is presently working, a finding of “not disabled” must be made;
2. If the claimant does not have a “severe” impairment or combination of
impairments, he will not be found disabled;
3. If the claimant has an impairment that meets or equals an impairment listed in
Appendix 1 of the Regulations, disability is presumed and benefits are awarded;
4. If the claimant is capable of performing past relevant work, a finding of “not
disabled” must be made; and
5. If the claimant’s impairment prevents him from doing any other substantial
gainful activity, taking into consideration his age, education, past work
experience, and residual functional capacity, he will be found disabled.
Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren
v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this formula, the claimant bears the burden
of proof on the first four steps of the analysis to establish that a disability exists. If successful,
the burden shifts to the Commissioner, at step five, to show that the claimant can perform other
work. McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner
demonstrates that other jobs are available, the burden shifts, again, to the claimant to rebut this
finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the
Commissioner determines that the claimant is or is not disabled, the evaluation ends. Leggett, 67
F.3d at 563.
In the instant action, the ALJ determined that Thomas had not engaged in gainful activity
since July 1, 2009 (Step 1). The ALJ determined that Thomas has the following medically
determinable and severe impairments: disorder of the spine; affective disorder; anxiety disorder;
and somatoform disorder (Step 2), but that none of the impairments met or equaled an
impairment listed in Appendix 1 of the Regulations (Step 3); that Thomas had the RFC to lift or
carry 10 pounds frequently and 20 pounds occasionally; stand or walk 6 hours in an 8-hour
workday with normal breaks; sit 6 hours in an 8-hour workday with normal breaks; and push or
pull 10 pounds frequently and 20 pounds occasionally. The ALJ further found that Thomas could
not perform work at unprotected heights or around dangerous machinery. As for non-external
limitations, that Thomas was “limited to understanding, remembering, and carrying out simple 12-3 step tasks that are routine and repetitive without frequent changes in duties,” and “includes
occasional contact with workers or the public.” (Tr. 26). The ALJ found that Thomas could not
perform any past relevant work (Step 4). The ALJ further found that based on Thomas’s RFC
and the testimony of a vocational expert,that Thomas could perform work as a mail clerk, a
photocopy machine operator, and as an office worker as was not disabled within the meaning of
the Act (Step 5). As a result, the undersigned must determine whether substantial evidence
supports the ALJ’s Step 5 finding. In this regard, Thomas maintains that the ALJ failed to
properly weigh the medical evidence, particularly the opinions of private consultative examiner
Dr. Whitley and the claimant’s obsessive compulsive disorder (“OCD”).
In determining whether substantial evidence supports the ALJ’s decision, the court
weighs four factors: (1) the objective medical facts; (2) the diagnosis and expert opinions of
treating, examining and consultative physicians on subsidiary questions of fact; (3) subjective
evidence as testified to by the plaintiff and corroborated by family and neighbors; and (4) the
plaintiff’s educational background, work history, and present age. Wren, 925 F.2d at 126.
A. Objective Medical Evidence
The objective medical evidence shows that Thomas suffers from a severe combination of
impairments, including affective disorder; anxiety disorder; and somatoform disorder.
On December 2011, Thomas underwent hernia surgery, and later reported uric acid
buildup and gastrointestinal ulcer due to this surgery. (Tr. 342). Thomas underwent a gastric
bypass in May 2011, with some complications due to an allergic reaction caused by the surgical
tape. Id. However, there was no abdominal abnormality shown by a May 2013 diagnostic CT
scan. (Tr. 344). Thomas was given Lortab and became physiologically dependent in May of 2011
until February of 2012. (Tr. 342).
On September 7, 2011, Thomas was diagnosed by Tri-County MHMR Services with
obsessive-compulsive disorder, panic disorder without agoraphobia, and generalized anxiety
disorder. (Tr. 375). She was prescribed Xanax for her symptoms. Thomas then returned to to TriCounty MHMR Services on October 5, 2011. Id. During her evaluation, Thomas reported that
she had attempted numerous anti-depressants, mood stabilizers, and anti-anxiety medications
throughout her life. Id. Her self- reported symptoms included irritability without trigger,
excessive anger, panic attacks, difficulty breathing, easily startled, easily overwhelmed, excessive
worry, and anxiety “all her life.” Id. She reported that she “must count her steps, must buy certain
things in even numbers,” and, “compulsively picks at her skin.” Id.
On October 05, 2011, Dr. Laura Champagne evaluated Thomas and recommended she
begin weekly counseling to improve coping with anxiety triggers and resolve trauma. Thomas
was unwilling to attend counseling unless she had a medical appointment scheduled, due to
financial and transportation limitations. Thomas wanted to take medications only to improve
functioning. Her GAF was 50. (Tr. 386).
Thomas was diagnosed with posttraumatic stress disorder (“PTSD”) on December 5,
2011, by Tri-County MHMR Services. (Tr. 431). Thomas had an outpatient clinic visit on
December 22, 2011. (Tr. 455). The treatment note shows Thomas was suffering from major
depression, though non-psychotic, and was not taking her medications as prescribed since her last
visit. Id. Thomas reported that anxiety was the greatest concern for her, and that it was the trigger
for her depression. (Tr. 457). She further reported that anti-depressants had been prescribed for
her in the past, but had only been effective for a week, and was hesitant to continue to take
medications, though she was willing to try Pristiq for her depression. Id.
During her outpatient clinic visit on February 24, 2012, Thomas reported to Dr. Ashok
Vachhani that she continued to have anxiety, which caused her to be depressed. (Tr. 408). Dr.
Vachhani reported Thomas as cooperative, and he opined that Thomas did not have bipolar I,
though no mood stabilizers she had tried were working. Id. Thomas stated that the Xanax helped
her feel better. Id.
During a psychological evaluation completed on April 18, 2012, by Dr. Jim Whitley
Ed.D, Thomas reported a history of anxiety, depression, and PTSD. Dr. Whitley administered the
Millon Clinical Multiaxial Inventory-III (“MCMI-III”) test, with an interpretive report using
Grossman Facet Scales. During the examination, Thomas’s speech was of consistent with her
educational achievement and concomitant for testing and conversation, coherent and relevant,
and of adequate flow. (Tr. 344). Her memory was intact, as was her attention and ability to
concentrate, which was tested by counting from one to ten, then backwards from 20 to zero, and
reciting all the days of the week. Id. The MCMI-III indicated that Thomas had a generalized
anxiety disorder, which suggested that she experiences severe levels of anxiety, and her StateTrait Anxiety Inventory score indicated that had significantly elevated levels of anxiety during
the examination. The test, under the Axis I, suggested that she suffered from a major depressive
disorder, severe episode without psychoses, PTSD, panic disorder without agoraphobia, and
excessive compulsive disorder. (Tr. 346). The test’s diagnostic impressive suggested a high level
of PTSD, somatization disorder, panic disorder without agoraphobia, generalized anxiety
disorder, obsessive compulsive disorder, and mood disorder due to depression. (Tr. 347). Dr.
Whitley opined that “the prognosis for the patient being able to function independently at a full
time job forty hours a week is mute. It is believed that she could profit from the benefits that
would be offered through SSI.” (Tr. 348). Dr. Whitely noted that Thomas’s condition has been
ongoing for a protracted period of time, and there has not been any relief from the medical issues
even though she has undergone surgery on several occasions. Id. He further noted that she has
very significant issues associated with posttraumatic stress. Id. In his report, Dr. Whitley does not
specifically mention OCD. (Tr. 346-348).
During her visit with the Tri-County Services’ Pharmacological Management on August
8, 2012, Thomas claimed she was “a lot better,” though Ambien was making her sleep walk, but
she found that she was becoming depressed. (Tr. 449). She claimed having suicidal ruminations,
but no plans. Id. She reported using Melatonin and Vistaril to sleep. Id.
On May 13, 2012, Thomas stated in her initial psychiatric evaluation that she didn’t
“want to be alive anymore.” She stated that she had “been depressed since she was a little girl,”
and “tried lots of meds for her depression.” (Tr. 369). However, she also stated that has had no
full blown panic attacks since she started taking Xanax. She stated that she was going to kill
herself with either a concoction of pills or a gun, but decided to call 911 instead. (Tr. 369).
Thomas stated that she has frequent thoughts of suicide, but would “never do it.” (Tr. 375).
Thomas reported feeling “numb” and “suicidal.” (Tr. 433). On May 14, 2012, Thomas reported
feeling in better spirits and had no suicidal thoughts, but was having fantasies that she felt were
not normal, and that she was slipping away from reality. (Tr. 433, 429). She also noted that side
effects of her medications had caused her to lose sleep. Id. By May 16, 2012, she reported feeling
“the best she had in ten years.” (Tr. 322) She was cooperative and helpful. Id. She also reported
having struggled with life long depression and mood cycling, which would cause her to become a
“total maniac” and flip furniture and have high energy. (Tr. 434). She was discharged on May 18,
2012. When she checked back on May 31, 2012 with Dr. Kenneth Winaker, she reported that she
was doing okay, not depressed, and was using Benadryl instead of Vistaril. (Tr. 443). During her
brief Bipolar Disorder Symptom Scale exam with Tri County it was found that not one of the
symptoms of bipolar were present in Thomas. (Tr. 448).
On January 3, 2013, Dr. Sneed reported that Thomas was making progress, and using less
Vistaril. (Tr. 392) She reported as being in a nice mood and affect, and sleeping better than in the
past. Id. She was well groomed, and there were no suicidal ideations. Id. She was in the
“acceptance step,” and appeared to be stable. Id. Her memory, attention and concentration were
all intact. Id. She was taking Tegretol 200 mg, and Vistaril 100 mg, along with Xanax, TMZ,
Nexium, Tramadol, Metoprolol, and Lisinopril.(Tr. 396-398). There was no evidence of bi-polar
disorder symptoms at the time of the evaluation. (Tr. 403).
By March 12, 2013, Thomas reported that she was doing great, but that the generic
Tegretol “did not make her feel good”, and raised the dosage on her own with no change in her
drastic mood swings. (Tr. 415). The Brief Bipolar Disorder Symptom Scale found that she only
had mild anxiety and depression. (Tr. 426).
On April 9, 2013, Dr. Matthew Wong, a disability determination unit physician,
determined that Thomas was somewhat limited by psychologically based symptoms, but the
impact of these symptoms did not wholly compromise the ability to function independently,
appropriately, and effectively on a sustained basis. Alleged limitations are not wholly supported
by Evidence on Record. (Tr. 98). The “evidence does not establish the presence of anxiety
related or affective disorder.” Id. Further, the claimant’s statements about her symptoms were
considered to be partially credible when considered with the total medical and non-medical
evidence on file. Id. “The alleged limitations caused by the claimant’s symptoms are partially
supported by the medical records.” Id.
Thomas’s Mental Residual Functional Capacity Assessment shows Thomas to be
markedly limited in two categories: in her ability to understand and remember detailed
instructions, and the ability to carry out detailed instructions. (Tr. 99-101). She was moderately
limited in her ability to maintain attention and concentration for extended periods, the ability to
work in coordination with or in proximity to others without being distracted by them, the ability
to complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods, the ability to interact appropriately with the general public, and the ability to respond
appropriately to changes in the work setting. Id. Thomas was not significantly limited in the
ability to remember locations and owrk-like procedures, the ability to understand and remember
very short and simple instructions, the ability to carry out very short and simple instructions, the
ability to perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances, the ability to sustain an ordinary routine without special
supervision, the ability to make simple work-related decisions, the ability to ask simple questions
or request assistance, the ability to accept instructions and respond appropriately to criticism
from supervisors, the ability to get along with coworkers or peers without distracting them or
exhibiting behavorial extremes, the ability to maintain socially appropriate behavior and to
adhere to basic standards of neatness and cleanliness, the ability to be aware of normal hazards
and take appropriate precausitons, the ability to travel in unfamiliar places or use public
transporation, and the ability to set realistic goals or make plans independently of others.
Ultimately, it was found that Thomas was able to understand, remember, and carry out only
simple instructions, make decisions, and concentrate for extended periods and interact adequately
with coworkers and supervisors and respond appropriately to changes in a routine work setting.
Here, substantial evidence supports the ALJ’s findings that, while Thomas’s impairments
could be considered severe at Step Two, the impairments did not meet or equal in severity a
listed impairment at Step Three. The ALJ discussed Thomas’s OCD in connection with her
anxiety-related disorders, and in doing so did not err. Additionally, substantial evidence supports
the ALJ’s RFC determination. The ALJ took into account Thomas’s physical and mental
limitations in formulating her RFC and gave specific reasons in support of this determination.
This factor weighs in favor of the ALJ’s decision.
B. Diagnosis and Expert Opinion
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, 10001 (5th Cir. 1981); see also Newton v. Apfel, 209
F.3d 448, 455 (5th Cir. 2000) (“The opinion of the treating physician who is familiar with the
claimant’s impairments, treatments and responses should be accorded great weight in
determining disability.”). In addition, a specialist’s opinion is generally to be accorded more
weight than a non-specialist’s opinion. Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1990). 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). Further,
regardless of the opinions, diagnoses, and medical sources, ““the ALJ has sole responsibility for
determining a claimant’s disability status.”” Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995)
(quoting Moore, 919 F.2d at 905).
With respect to the opinions of treating physicians and medical sources, in light of
testimony offered by Thomas and her mother, the ALJ wrote:
During the hearing, the claimant testified to the following:
She has a GED. She attempted some college but did not pass the
courses. She was doing assembly work for Hewlett Packard in
2006 or 2007, putting servers together. She tried to work a couple
of times since 2009 but could not work more than a day or two
each time. She is bipolar and has PTSD, anxiety with panic
attacks, and she is obsessive/compulsive. Her back hurts from top
to bottom and her foot hurts. She does not sleep well and has sleep
apnea. She does not like dealing with stupid people and often gets
into arguments. She isolates herself and does not trust anyone.
She does not visit with friends or talk to her neighbors. She spends
most of her time sitting in her living room due to her physical
problems. She does not bathe regularly. She has PTSD because
she caught her dad in two “holdups” of convenience stores when
she was a little girl. She does not get along with her children. She
likes everything in even numbers. She buys two of everything
because an odd number is evil. She is a perfectionist. She became
anxious and had to go to the bathroom because she was nervous
about coming to the hearing. She does not drive anymore because
she had panic attacks while driving. She has panic attacks once
each month. She hyperventilates and her chest hurts when this
occurs. Anything can make her panic, like not getting somewhere
on time. Her mother is stupid because she does not drive fast
enough. She is exhausted and tired most of the time. She is able
to stand for5 minutes at one time before her back and feet hurt.
She cannot walk far or bend. She cannot stoop or crouch because
it hurts too bad. She falls down every couple of months. She
could not lift or pull more than 10 pounds. She is not able to
remember what she reads. She has no energy and never finishes
anything. She does not see her daughter or son. She does not do
housework but her mom does it for her. She does not cook but
grocery shops with her mom. She attempts to do laundry. She
receives visits from a Tri-County caseworker 3-4 times each
month. This helps. She has pain throughout her entire body. She
constantly changes positions. She is unable to focus or pay
attention. She has always been a stay-at-home mom but was forced
to work in the past because her ex-husband was not paying child
support. She has two adult disabled kids. Her daughter lives with
her but is never there. She gets payments for her daughter but not
her son. She has not talked to him since he kicked her door in last
October. She is unable to work.
Diane Goff, the claimant’s mother, testified to the following during
She lives about 5 miles away from her daughter. She sees the
claimant on her days off. Her daughter is very panicky. The
claimant does not leave the house unless she takes her grocery
shopping or to the doctor. Her daughter does not get along with
her own children and is very stubborn. The claimant sleeps in a
lounge chair in her living room and won’t get up and go to bed.
She does yard work for the claimant.
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 witness’ statements concerning the intensity, persistence, and
limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.
After complaints of seizures, the claimant had a negative brain
MRI and EEG in January 2014 (Exhibit 14-F, pages 5-7). A
seizure disorder is not a medically determinable impairment in this
case since there is not diagnosis based on clinical and diagnostic
evidence. Further, the claimant’s brain function is normal as
determined by the diagnostic evidence.
In terms of back problems, an abdominal CT scan taken in May
2013 showed disc narrowing with arthritis and possibly canal
stenosis at the L4-S1 levels (Exhibit 13-F, page 6). It is noted that
this test was performed in response to complaints of abdominal
pain and did not target the claimant’s spine. In fact, the claimant
did not make sufficient reports of back pain that any diagnostic
testing was performed on her spine. Moreover, the claimant had
full, normal range of motion in May 2013 with normal strength
(Exhibit 14-F, pages 14-16). As well, she demonstrated normal
gait in January 2014 (Exhibit 14-F, pages 14-16). In combination
with the claimant’s non-severe impairments, she is limited to nonmental restrictions contained in the residual functional capacity
evaluation but the evidence does not support more. Greater
limitation would be expected to be associated with the course of
regular treatment in addition to abnormal gait, limited range of
motion, and seeking enough treatment that diagnostic testing
would have been performed. In addition, it is noted that the
claimant has been diagnosed with a somatoform disorder, which
makes the clinical evaluation and diagnostic testing regarding
physical problems even more important (Exhibit 1-F, page *).
Regarding mental problems, the claimant reported that the has had
mental problems all of her life (Exhibit 10-F, page 4). She
indicated that her parents were “pill poppers” and that her deceased
sister physically and sexually abused her as a child (Exhibit 1-F,
page 5). As well, the claimant reported taking a variety of
psychotropic drugs most of her life and she indicated in October
2011 that she had taken her son’s prescribed medication (Exhibit
2-F, pages 13 and 22). As well, the medical records reflect a
prescription for Panax for anxiety from her primary care physician
(Exhibits 3-F, page 208; and 9-F, pages 4 and 8). In fact, the
claimant indicated Panax “really works” in March 2011 (Exhibit
10-F, page 17).
When she sought treatment from a qualified mental health
professional, Tri-County MHMR, the claimant was diagnosed with
depression, PTSD, and anxiety-related disorders in 2011 (Exhibit
2-F, pages 1 and 25). After clinical evaluation, the April 2012
private consultative examiner diagnosed the claimant with PTSD, a
mood disorder due to her medical condition, a somatoform
disorder, and an anxiety/panic disorder (Exhibit 1-F, page 8).
Unfortunately, the claimant refused continued services from TriCounty MHMR in February 2012 and would not even meet with
this source (Exhibit 2-F, page 2). However, she admitted that her
anxiety responded well to prescribed Panax (Exhibit 2-F, page 2).
Additionally, the claimant did not have symptoms of a bipolar
disorder in May, August, or October 2012 (Exhibit 2-F, pages 86,
91-92, and 107). There was no change clinically in January 2013
still had not symptoms on the bipolar disorder symptoms scale
(Exhibit 2-F, pages 39-41). In March 2013, she reported
improvement with medication until her medication was changed to
a generic with no symptoms of a bipolar disorder at that time either
(Exhibit 2-F, pages 53 and 64). The records were nearly identical
in May 2013 as well without symptoms on the bipolar scale
(Exhibit 6-F, pages 1, 10, and 12). Further no acute psychiatric
conditions were noted during May 2013 treatment (Exhibit 7-F,
Despite her allegations of severe difficulty getting along with
others, the claimant was cooperative and pleasant during the
August 2012 private consultative exam as well as during May 2013
treatment (Exhibits 1-F, page 4; and 7-F, page 4). The claimant’s
reports of significant improvement with medication and the clinical
evaluations that consistently fail to show severe symptoms are not
suggestive of limitation beyond that found by the undersigned.
As for the opinion evidence, the private consultative examiner
concluded that the claimant’s ability to function at a full-time job
was “mute”, noting that the claimant would benefit from
supplemental security income benefits (Exhibit 1-F, page 9).
However, this finding on the ultimate issue of disability is reserved
for the undersigned as the Commissioner’s representative (20 CFR
404.1527(e) and 416.927(e)). Further, this opinion is inconsistent
with the great weight of the treatment evidence and the record as a
whole, as outlined above. Therefore, beyond the diagnosis, this
opinion is given little weight (SSR 96-6p).
In terms of global assessment functioning (GAF) scores, the
private consultative examiner found a GAF of 45 and the claimant
had a GAF 49 in May 2012 and 50 in October 2011 (Exhibits 1-F,
pages 8-9, and 2-F, pages 5 and 23). These scores are reflective of
moderate-serious limitation and although considered and given
some weight, it is noted that the practice of mental health care has
moved away from GAF scores with the implementation of the
DSM V (SSRs 96-2p and 96-6p). Since they are consistent with
the evidence as a whole, the opinions of the State Agency
Consultants are given great weight (SSR 96-6p).
(Tr. 27-29). Upon this record, the ALJ’s decision is a fair summary and characterization
of the medical records. Given the proper discounting of the opinion of Dr. Whitely on the
ultimate issue of disability, and the medical opinions which support the ALJ’s RFC
determination, the diagnosis and expert opinion factor also supports the ALJ’s decision.
C. Subjective Evidence
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 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 1884, 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 the pain.
Statements made by the individual or his physician as to the severity of the plaintiff’s pain must be
reasonably consistent with the objective medical evidence of the record. 42 U.S.C. § 423. “Pain
constitute[s] a disabling condition under the act only when it is ‘constant, unremitting, and wholly
unresponsive to therapeutic treatment.’” Selders v. Sullivan, 914 F.2d 614, 618-19 (5th Cir.
1990)(citing Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988)). Pain may also constitute a non-
exertional 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 particularly
within the province of the ALJ, who has the opportunity to observe the claimant. Hames, 707 F.2d
Thomas and her mother testified at the hearing. Thomas testified at the hearing before the
ALJ that she stated that her conditions were “Bipolar I mixed with PTSD, OCD, anxiety disorder,
panic attack disorder, and anxiety attack disorder.” (Tr. 42). She also stated that she had “chronic
back pain from top to the bottom,” neuropathy in her left foot, so much so that she can’t wear shoes,
and has “severe hemmhroids.” Id. She also claimed to suffer from insomnia and sleep apnea. Id. She
claimed that her bipolar disorder affected her by causing her to feel that “people are stupid” and she
didn’t “like dealing with stupid people.” (Tr. 43). She claimed that everytime she left her home she
got into an argument or worse. Id. She also claimed that she does not trust anyone because “they
can’t be trusted.” Id. She isolates herself and only leaves the house if she has an appointment, and
she doesn’t visit anyone or let anyone visit her; not even her neighbors. Id. Instead, she spends all
her time in her living room, laying down on a chaise lounge, which she claims is due to her physical
limitations. (Tr. 44).
She claims that her PTSD was the result of witnessing her father allegedly rob a 7Eleven, and
that by witnessing these things throughout her life resulted in her having self-reported trust issues.
(Tr. 44). She also claims to have suffered abuse as a child at the hands of her older, deceased sister.
(Tr. 45). She claims her OCD manifests itself in her having to have things only in even numbers, that
odd numbers represent “evil,” and that she must buy things in twos. (Tr. 47). She claims to expect
perfection in herself and everyone and everything, although she contradicts herself by saying that she
just gives up if she can’t be perfect in an activity like cleaning the house. (Tr. 48).
When asked about her panic attacks, Thomas testified to having panic attacks when driving
down the street, and that she no longer drives because of this. Id. She claims they make her
aggravated and aggressive towards others. Id. During her panic attacks she claims to hyperventilate,
to the point that it feels like “having a heart attack,” which leaves her feeling exhausted, so much so
that she sleeps the rest of the day. (Tr. 49).
Thomas testified that, in regards to physical activities, she can’t stand for more than five
minutes because her back hurts, her feet hurts, “everything hurts,” and that she lays down after
standing for a while. (Tr. 50). When asked about walking, she responded, “no, that ain’t happening.”
Id. She testified that she couldn’t bend over and pick up a piece of paper, or stoop or crouch, or take
stairs, because “it hurts too bad.” Id. She also claimed that she losses her balance and is dizzy, and
that she “falls all the time,” reporting at least falling six times in that year, due to side effects from
her medications. Id. Thomas claims to be unable to push or pull with her feet because it “hurts real
bad.” (Tr. 52). She reported that she has physical pain in her entire body, mostly in the “mid to
upper” part of her back, and left foot toward the knee, which constantly feels like a burning, knifing
pain that she describes as “severe.” (Tr. 59).
When discussing her concentration, Thomas testified that she was unable to remember
anything she read, and that she often gives up on reading because she feels frustrated. Id. She also
claimed she has a problem remembering things, and that she was easily distracted and unable to stay
on task or focus. (Tr. 53). She reported that she can’t sleep, has low energy and no stamina. Id. She
doesn’t do housework, because she gets distracted, and her mom does everything else for her, like
gardening and grocery shopping. (Tr. 54).
Credibility determinations, such as made by the ALJ in connection with Thomas’s testimony
about her 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)), cert. denied, 514 U.S. 1120 (1995). Because the ALJ made and supported
his credibility determination with references to medical evidence and Thomas’s testimony about her
daily activities, and because the ALJ did not rely on any improper factors, the subjective evidence
factor also weighs in favor of the ALJ’s decision.
D. Education, Work History, and Age
The fourth element considered is the claimant’s educational background, work history and
present age. A claimant will be determined to be disabled 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).
The record shows that Thomas was 47 years old at the time of the administrative hearing, has
a GED, attempted some college but failed all of the courses, and has performed past relevant
assembly work for Hewlett Packard in 2007. (Tr. 39). Based on the ALJ’s conclusion that Thomas
did not have exertional restrictions on his ability to work, despite having some non-exertional
restrictions, the ALJ questioned a vocational expert, Ms. Earl, about Thomas’s ability to perform her
past relevant work as an electronics assembler.
Q. Would you assume for me a person who could lift or carry about
10 pounds frequently or 20 pounds occasionally, stand and walk
about six hours in an eight-hour day with normal breaks or sit for six.
No ropes, ladders or scaffolding, no unprotected heights or dangerous
machinery. Mentally would be limited to understanding, remember
and carrying out simple instructions, just simple, one to three-step
tasks that are routine and repetitive without frequent changes and
duties. Only occasional contact with the public or coworkers. Could
such an individual do the past work that you described?
A. No, sir.
Q. If they’re 46-years-old with a GED and the past work as you described, if you use
those same limits would there be any other work in the region or national economy?
A. Yes, sir, there is. One example is a mail clerk, it’s a light, unskilled level, the
DOT code is 209.687-026, nationwide, 70,000 and 850 in the local Houston region.
Second example is a photocopy machine operator, also at the light, unskilled level,
the DOT code is 207.685-014, nationwide, 50,000 and 600 locally. And a third
example is an office cleaner at the light, unskilled level, the DOT code is 323.687014, nationwide, 300,000 and 3,000 locally.
“A vocational expert is called to testify because of his familiarity with job requirements
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.’” Vaughn v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995)(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).
Given the ALJ’s reliance on the vocational expert, lack supportive medical evidence, the
ALJ’s credibility determination relative to Thomas’s testimony about her pain and limitations, and
the properly posed hypothetical questions to the vocational expert based on functional limitations
recognized by the ALJ, substantial evidence supports the ALJ’s conclusion that Thomas is not
disabled within the meaning of the Act. Thus, this factor also weighs in favor of the ALJ’s decision.
V. 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 direct a finding that Thomas was not disabled within the meaning of the Act, that substantial
evidence supports the ALJ’s decision, and that the Commissioner’s decision should be affirmed. As
such, it is
ORDERED that Plaintiff’s Motion for Summary Judgment (Document No. 10), is DENIED,
Defendant’s Motion for Summary Judgment (Document No. 11) is GRANTED, and the decision of
the Commissioner of Social Security is AFFIRMED.
Signed at Houston, Texas, this 14th day of August, 2015
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?