Covington v. Colvin

Filing 17

MEMORANDUM OPINION granting 13 Cross MOTION for Summary Judgment ,denying 11 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sjones, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TIFFANY DANIELLE COVINGTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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CIVIL ACTION NO. H-14-3414

MEMORANDUM OPINION
Pending before the court1 are Plaintiff’s Motion for Summary
Judgment

(Doc.

11)

and

Judgment (Doc. 13).

Defendant’s

Cross-Motion

for

Summary

The court has considered the motions, the

responses, the administrative record,2 and the applicable law.
For the reasons set forth below, the court DENIES Plaintiff’s
motion and GRANTS Defendant’s motion.
I. Case Background
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
the

Commissioner

of

the

Social

Security

Administration

(“Commissioner” or “Defendant”) regarding Plaintiff’s claim for
supplemental

security

income

under

Title

II

and

Title

XVI,

respectively, of the Social Security Act (the “SSA”).
1

The parties consented to proceed before the undersigned magistrate judge
for all proceedings, including trial and final judgment, pursuant to 28 U.S.C.
§ 636(c) and Federal Rule of Civil Procedure 73. Doc. 9, Doc. 10.

A.

Medical History
Plaintiff was born on February 19, 1982, and was twenty-nine

years

old

on

the

date

of

the

alleged

onset

of

disability.3

Plaintiff had an electrical engineering degree and had taken
classes for one semester towards a specialization certificate.4
Plaintiff had previous work experience as a cashier, a stocking
clerk,

technical

support

representative,

field

engineer,

and

process operator.5
On October 17, 2011, Plaintiff was admitted to the emergency
room at St. Luke’s Episcopal Hospital with numbness in both
thighs lasting for three days.6

John Stroh Jr., M.D., observed

that Plaintiff suffered decreased sensation in both thighs but
retained

full

radiologist

motor

who

did

control.7
not

Plaintiff

observe

abnormality, or destructive lesion.8

any

was

referred

fracture,

to

a

alignment

Visveshwar Baskaran, M.D.,

took a magnetic resonance imaging (“MRI”) of the lumbar spine
which showed mild lower lumbar facet arthropathy from L3-4 to L5-

3

See Doc. 6, Tr. Of the Admin. Proceedings (“Tr.”) 19.

4

See Tr. 17.

5

See Tr. 195.

6

See Tr. 238, 249.

7

See Tr. 238.

8

See Tr. 239.

2

S1 along with mild nerve compression.9

Plaintiff was prescribed

Norco and Medrol and was referred to a neurologist.10
On January 13, 2012, Plaintiff went to Ben Taub General
Hospital (“Ben Taub”) with complaints of numbness and tingling in
her arms and legs.11

She stated that the tingling in her legs

began after an epidural in August 2009.12

Plaintiff stated that

she had experienced continuous tingling for a week and a half.13
Plaintiff recounted that she had lost a dress size with no change
in diet or exercise.14

Michael Gonzalez, M.D., reported that

Plaintiff had decreased limb sensation, more severely in her
right leg.15

Plaintiff denied loss of strength but reported

feeling “unbalanced.”16
On January 27, 2012, Plaintiff had a follow-up exam at Ben
Taub.17

Larry Mortazavi, M.D., (“Dr. Mortazavi”) performed a

physical examination of Plaintiff and found decreased sensation
in both legs, particularly the left, and a slightly positive

9

See Tr. 240.

10

See Tr. 246.

11

See Tr. 261.

12

See id.

13

See id.

14

See id.

15

See Tr. 262.

16

See id.

17

See Tr. 271.

3

Romberg

exam.18

Dr.

Mortazavi

noted

that

Plaintiff

reported

dizziness when her eyes were closed but denied anxiety related to
walking in darkness.19
loss

in

her

He noted that Plaintiff had no strength

extremities.20

Dr.

Mortazavi

recommended

Electromyography (“EMG”) testing, an MRI of the thoracic and
cervical

spine,

and

blood

serum

level

tests.21

He

instructed

Plaintiff to visit the emergency room if she experienced any new
symptoms.22
On March 5, 2012, Plaintiff was given an MRI.23

Thomas

Saadeh, M.D., (“Dr. Saadeh”) reviewed Plaintiff’s MRI and noted
cervical

cord

lesions

consistent

with

multiple

sclerosis

(“MS”).24
On

March

23,

2012,

Plaintiff

returned

complaining of progressive weight loss.25

to

Ben

Taub,

Corey Goldsmith, M.D.,

(“Dr. Goldsmith”) reported that Plaintiff’s limb numbness was

18

See Tr. 257.

19

See Tr. 256.

20

See Tr. 259.

21

See id.

22

See id.

23

See Tr. 294.

24

See Tr. 294-97.

25

See Tr. 284.

4

unchanged.26

Dr. Goldsmith opined that Plaintiff’s symptoms were

consistent with MS, vasculitis, or metastasis.27

Plaintiff was

prescribed baclofen, a muscle relaxant.28
On

April

Goldsmith.29

17,

2012,

a

brain

MRI

was

ordered

by

Dr.

Dr. Goldsmith found that Plaintiff was positive for

lesions consistent with MS.30

Dr. Goldman discussed MS with

Plaintiff and discussed possible treatments.31

Plaintiff showed

no new symptoms and it was noted that baclofen had improved her
muscle

spasticity

and

gait.32

Plaintiff

was

also

prescribed

interferon beta 1a.33
On August 10, 2012, Plaintiff returned to Ben Taub.34

Dr.

Goldsmith noted that Plaintiff was “doing quite well,” that her
gait had improved, and that she did not report fatigue.35
Goldsmith

observed

26

See Tr. 286.

29

See Tr. 279.

30

See Tr. 280.

31

See Tr. 279.

32

See Tr. 279-280.

33

See Tr. 279.

34

See Tr. 315-21.

35

was

See id.

28

there

See id.

27

that

See Tr. 318.

5

no

loss

of

strength

Dr.
in

Plaintiff’s extremities, and Plaintiff reported that the tingling
sensation

had

improved.36

Dr.

Goldsmith

renewed

Plaintiff’s

prescription for Avonex.37
On September 21, 2012, Plaintiff visited UT Physicians to
establish a treatment plan for MS.38

She was examined by Carman

Whiting, M.D., (“Dr. Whiting”) who noted that Plaintiff still
suffered from limb numbness and tingling, but reported that she
felt much better, which she attributed to her medications.39
Whiting

stated

regularly.40

that
Dr.

Plaintiff

Whiting

indicated

noted

that

she

was

Plaintiff

functional” but still experienced pain at times.41

Dr.

exercising
was

“more

Dr. Whiting

observed that Plaintiff had a slightly abnormal gait, but that
Plaintiff displayed no other symptoms.42
On October 31, 2012, Plaintiff returned to UT Physicians
where she was seen by John Lindsey, M.D., (“Dr. Lindsey”) for a

36

See id.

37

See id.

38

See Tr. 358.

39

See Tr. 359.

40

See Tr. 358.

41

See id.

42

See id.

6

follow-up

exam.43

Plaintiff

complained

of

numbness

from

the

waist down and in her hands, mild urinary urgency, and headaches
that

occurred

twice

a

week

that

responded

ibuprofen.44

to

Plaintiff also complained of recent weight gain.45

Plaintiff’s

interferon prescription was renewed.46
On

November

14,

2012,

Plaintiff

visited

UT

Physicians

emergency room following a minor car crash caused by a temporary
loss of consciousness while driving.47

Dr. Lindsey opined that

the episode was caused by syncope related to medication rather
than seizure.48
On January 10, 2013 in a follow-up visit with Dr. Lindsey,
Plaintiff

complained

of

urinary

urgency

2013,

Plaintiff

and

was

prescribed

oxybutynin.49
On

January

24,

electroencephalogram (“EEG”).50

43

See id.

45

See id.

46

See id.

47

See Tr. 333.

48

See Tr. 336.

49

See Tr. 336.

50

given

an

The EEG revealed no epileptic

See Tr. 343.

44

was

See Tr. 325.

7

activity, but did reveal disturbances in the left central and
left temporal regions consistent with MS.51
On January 25, 2013, Plaintiff returned to Dr. Lindsey and
complained of leg pain which affected both the feet and knees.52
On February 21, 2013, Plaintiff reported to Dr. Lindsey that she
was unable to run because of poor balance and complained of
headaches that lasted all day and were present most days.53
On March 3, 2013, Plaintiff saw Carman Whiting, M.D., (“Dr.
Whiting”)
completed

regarding
the

paperwork.54

disability

paperwork

on

March

11,

2013.55

Dr.
Dr.

Whiting
Whiting

reported Plaintiff’s symptoms as pain in hands, feet, and back,
along with tingling in the legs and feet.56

Dr. Whiting stated

that Plaintiff was in “constant” pain and that it was diffused
among the hands, legs, and feet.57

Dr. Whiting listed walking as

a precipitating factor and stated that Plaintiff’s fatigue was a

51

See Tr. 325-326.

52

See id.

53

See id.

54

See Tr. 328.

55

See Tr. 374.

56

See Tr. 368.

57

See id.

8

ten on a ten-point scale and her pain was a nine on a ten-point
scale.58
Dr. Whiting opined that Plaintiff was able to sit for one
hour and stand and walk for one hour in an eight-hour workday.59
Dr. Whiting stated Plaintiff could occasionally lift and carry
between

zero

and

five

pounds.60

Dr.

Whiting

indicated

that

Plaintiff would have significant limitations reaching, handling,
fingering,

or

lifting,

but

did

not

provide

a

supporting

explanation.61

Dr. Whiting opined that Plaintiff would have to

take

fifteen-to-thirty

repeated

minute

breaks

in

a

work-like

setting and would need to miss work more than three times per
month.62

Dr. Whiting reported that these symptoms applied as of

September 21, 2012,63 the date of Plaintiff’s initial appointment
with Dr. Whiting.64
laboratory

or

Dr. Whiting noted that she did not have any

diagnostic

test

results

that

demonstrated

supported her diagnosis.65
58

See Tr. 369.

59

See id.

60

See id.

61

See Tr. 370.

62

See Tr. 372-73.

63

Dr. Whiting’s notes erroneously list the date as September 21, 2013.

64

See Tr. 373.

65

See Tr. 368.

9

or

On March 8, 2013, Dr. Lindsey completed a MS impairment
questionnaire
Plaintiff’s
suffered

Plaintiff’s

prognosis

from

problems,

as

fatigue,

sensitivity

dexterity.67
balance

on

as

behalf.66

guarded
numbness,

to

heat,

and

Dr.

noted

balance
and

Lindsey

evaluated

that

Plaintiff

problems,

impairment

bladder

of

manual

Dr. Lindsey rated fatigue, numbness, and impaired
Plaintiff’s

primary

symptoms.68

According

to

Dr.

Lindsey, Plaintiff’s symptoms and functional limitations were
reasonably consistent with her physical impairments described in
the evaluation.69

Dr. Lindsey opined that Plaintiff’s symptoms

were severe enough to interfere with attention and concentration,
that Plaintiff could work in a low-stress environment, needed to
be absent from work due to her symptoms less than once a month,
and

needed

bending,

to

and

avoid

temperature

stooping.70

Dr.

extremes,
Lindsey

heights,

further

pushing,

opined

that

Plaintiff was capable of sitting for six hours a day and standing
up to one hour in an eight-hour workday, but that Plaintiff was

66

See Tr. 360-66.

67

See Tr. 360.

68

See Tr. 361.

69

See Tr. 362.

70

See Tr. 361-65.

10

able to sit continuously in a work setting.71

Dr. Lindsey opined

that Plaintiff could occasionally lift and carry between fiveand-ten pounds.72
B.

Application to Social Security Administration
Plaintiff

protectively

applied

for

disability

insurance

benefits and supplemental security income benefits on February 1,
2012.73

Plaintiff

claimed

she

was

disabled

due

numbness” with an onset date of October 17, 2011.74

to

“body

Plaintiff

stated that she was taking medications for pain and numbness.75
On April 29, 2012, Plaintiff completed a function report
outlining her daily activities.76
condition

caused

hand

ability to walk.77

numbness

Plaintiff reported that her
and

affected

her

balance

and

She described her daily routine as waking up

with her daughter, getting ready for the day, eating breakfast,
and getting dressed.78

71

See Tr. 364.

72

See Tr. 365.

73

See Tr. 139, 146.

74

See Tr. 159, 163.

75

See Tr. 165.

76

See Tr. 187-94.

77

See Tr. 187.

78

She was able to prepare lunch for her

See Tr. 188.

11

daughter and take a nap, then interacted with her daughter until
it was time to prepare dinner.79
care

of

herself

and

her

Plaintiff stated that she took

two-year-old

daughter.80

explained that she had problems walking and driving.81

Plaintiff
She was

able to do laundry once a week, clean twice a week, and vacuum
thirty minutes per day.82

Plaintiff reported that she was able

to go shopping once a week.83

Plaintiff talked to others daily

by phone and attended church every week.84

Plaintiff reported

that lifting, squatting, bending, standing, sitting and kneeling
had to be done slowly because sudden movements caused leg pain.85
Plaintiff reported that she had no problems paying attention,
getting

along

with

authority

figures,

or

following

instructions.86
On April 30, 2012, Plaintiff filed a work history report
that listed her previous jobs as an associate service consultant,

79

See id.

80

See id.

81

See id.

82

See id.

83

See Tr. 190.

84

See Tr. 191.

85

See Tr. 192.

86

See Tr. 193.

12

technical support associate, cashier, stock-room associate, and
worker.87

assembly-line

As

an

associate

service

consultant,

Plaintiff worked full time performing site surveys and had to
lift and walk with a bag of tools at construction sites.88

As a

technical support associate, Plaintiff sat eight hours in an
office environment documenting customer phone calls.89
position

as

a

stock

room

associate,

Plaintiff

transported delivery boxes to the sales floor.90

In her

unloaded

and

As a cashier,

Plaintiff had to stand four-to-eight hours per day and walk fourto-eight hours per day, never lifting more than ten pounds.91
Plaintiff also worked at Texas Instruments as an assembly-line
worker, loading and unloading small parts.92

Plaintiff walked

and stood twelve hours per day and never lifted more than ten
pounds.93

87

See Tr. 195.

88

See Tr. 196.

89

See Tr. 197.

90

See id.

91

See Tr. 200.

92

See Tr. 199.

93

See id.

13

On May 30, 2012, Scott Spoor, M.D., (“Dr. Spoor”) evaluated
Plaintiff’s physical residual functional capacity (“RFC”).94

Dr.

Spoor found that Plaintiff was able to occasionally lift twenty
pounds, frequently lift ten pounds, stand for at least two hours
per

day,

and

sit

for

six

hours

per

day.95

He

found

that

Plaintiff could only occasionally crawl, crouch, kneel, or climb,
but that she had no visual, communicative, environmental, or
manipulative

limitations.96

Dr.

Spoor

concluded

that

the

plaintiff’s allegations were partially supported by evidence of
record.97
Defendant denied Plaintiff’s application at the initial and
reconsideration levels.98
an

Administrative

Law

Plaintiff requested a hearing before

Judge

(“ALJ”)

of

the

SSA.99

The

ALJ

granted Plaintiff’s request and conducted a hearing on August 26,
2013.100
C.

Hearing

94

See Tr. 307-14.

95

See Tr. 308.

96

See Tr. 309-11.

97

See Tr. 314.

98

See Tr. 73-80, 85-90.

99

See Tr. 91.

100

See Tr. 25-66.

14

Plaintiff and a vocational expert (“VE”) testified at the
hearing.101

Additionally present on Plaintiff’s behalf was a non-

attorney representative.102
Plaintiff

first

testified

about

her

work

Plaintiff worked as a stocker and cashier in 1999.104

history.103
Following

that job, Plaintiff worked as a process operator, working twelvehour shifts which required her to stand, loading and unloading a
machine that built micro-processing wafers in a clean room.105
Plaintiff testified that she worked for Ross in the stock room
and as a cashier.106

Following her work with Ross, Plaintiff

testified that she worked in tech support for almost a year.107
Plaintiff last worked as a service consultant, surveying and
measuring outdoor fields for almost two years, last working in
2008.108

101

See Tr. 25.

102

See Tr. 27.

103

See Tr. 30-34.

104

See Tr. 34.

105

See Tr. 33.

106

See Tr. 31.

107

See Tr. 31-32.

108

See Tr. 32.

15

The VE testified regarding Plaintiff’s work history.109 The
VE

stated

that

Plaintiff’s

work

as

a

customer

service

representative was sedentary and skilled, her work as a cashier
and process operator was light and unskilled, and her work as a
service consultant was light and skilled.110
Following the VE’s testimony, Plaintiff testified that she
was thirty-one years old and had an electrical engineering degree
from Prairie View A&M University.111
did

not

smoke

occasionally

or

drank

use

Plaintiff stated that she

recreational

alcohol.112

drugs,

Plaintiff

although

testified

that

she
she

received Medicaid and lived with her grandmother and four-yearold daughter.113

Plaintiff stated that she had a driver’s license

and a vehicle.114
Plaintiff testified that she was off work for a period of
time after the birth of her child and then did not return to work
after her child was diagnosed with cancer.115

109

See Tr. 34.

110

See Tr. 35.

111

See id.

112

See Tr. 36.

113

See id.

114

See id.

115

See Tr. 37-38.

16

Plaintiff stated

that she was unable to work following her daughter’s recovery due
to

Plaintiff’s

MS

diagnosis

and

body

numbness.116

Plaintiff

testified that she felt her thinking had slowed and that routine
actions took more time.117 Plaintiff stated that she took Avonex
to

treat

her

MS,

as

well

as

gabapentin,

oxybutynin,

nortriptyline, and ibuprofen.118
Plaintiff testified that she spent her day caring for her
daughter, that she did minimal housework and cooking, and allowed
her grandmother or her mother to do the majority of the cooking
and cleaning.119

Plaintiff testified that she last lived alone in

2008.120
Plaintiff stated that she did not receive child support,
and that she had not made efforts to obtain it through the
courts.121

The child’s father worked and occasionally visited.122

116

See Tr. 38.

117

See id.

118

See Tr. 38-39.

119

See Tr. 39-40.

120

See Tr. 40.

121

See id.

122

See Tr. 40-41.

17

Plaintiff said that she used her computer, read books and
magazines, and watched TV.123

Plaintiff testified that while

looking for a job she took online classes, but that she quit
after one semester.124
Plaintiff

testified

that

she

following an epidural in 2009.125

first

experienced

numbness

She stated that her neurologist

told her that the epidural could have been a trigger for MS.126
Plaintiff stated that she became disabled in October 2011 after
her numbness escalated.127

Plaintiff explained that the right

side of her body felt heavier than the left and her legs felt
like weights, although the medicine she was taking helped her
maintain balance.128

Plaintiff also said that she had issues with

weight fluctuation as she had unexpectedly lost forty pounds
which she eventually regained.129

Plaintiff testified that she

had constant numbness in her hands as well as stiffness and

123

See Tr. 41.

124

See Tr. 41-42.

125

See Tr. 43.

126

See Tr. 44.

127

See id.

128

See Tr. 45.

129

See Tr. 46.

18

tremors.130 Plaintiff estimated that she could not lift more than
five pounds and that she could not lift her daughter.131
Plaintiff
benefits.132
of

stated

that

her

daughter

received

disability

Plaintiff testified that her mother helped take care

Plaintiff,

the

house,

and

Plaintiff’s

daughter,

did

the

cooking and cleaning, and took care of Plaintiff’s grandmother.133
Plaintiff explained that her mother was paid to watch Plaintiff’s
child and grandmother.134
Plaintiff testified that she could type on a computer for
about

ten

minutes

numbness.135
driven

before

she

had

to

take

a

break

due

to

Plaintiff stated that was able to drive but had not

since

an

accident

in

January

when

she

blacked

out.136

According to Plaintiff, she was told that the blackout was caused
by not drinking enough water with medication.137

130

See Tr. 47.

131

See Tr. 48.

132

See id.

133

See Tr. 49.

134

See id.

135

See Tr. 50.

136

See Tr. 50-51.

137

See Tr. 51.

19

P l a i n t i f f

testified that she took nortriptyline every day for headaches.138
According

to

Plaintiff,

her

headaches

were

near-constant.139

Plaintiff said that during an eight-hour period, she would spend
four-to-five hours lying down.140 Plaintiff testified that before
her hospitalization, she took care of herself and did the cooking
and cleaning.141

After her hospitalization, she attempted to

continue the same tasks but had to take breaks due to leg pain.142
Plaintiff stated that she would have to take six breaks while
cleaning the living room.143
Plaintiff further stated that she could sit for fifteen to
twenty minutes before she needed to get up.144

She stated that

walking decreased the pain that she would normally experience
from standing.145 Plaintiff stated that she wanted to have another

138

See id.

139

See Tr. 51-52.

140

See id.

141

See Tr. 53.

142

See id.

143

See Tr. 53-54.

144

See Tr. 54.

145

See Tr. 54-55.

20

child in the future because she had been told that having a child
sometimes improved MS symptoms.146
The ALJ asked the VE whether a hypothetical individual of
the same age, education, and work history, limited to sitting six
hours, standing and walking six hours, lifting twenty pounds
occasionally could perform past work.147

The VE testified that

with these limitations, an individual would be unable to perform
any

of

Plaintiff’s

past

work.148

However,

the

VE

found

an

individual with these limitations could work as a ticket seller,
assembler,

and

packager.149

These

jobs

were

light

exertion,

unskilled jobs that existed in both the regional and national
economies.150
The ALJ asked whether a hypothetical individual would be
able to find work if she was limited to only three hours standing
per day.151

The VE responded that such an individual could still

perform the above-listed jobs.152

146

See Tr. 56.

147

See Tr. 57.

148

See id.

149

See id.

150

See id.

151

See Tr. 58.

152

See id.

21

Plaintiff’s representative asked if the same jobs could be
performed by a hypothetical individual if the individual was
limited to only lifting and carrying ten pounds occasionally, and
the

VE

responded

hypothetical
standing

was

and

that

she

amended

walking

to

two

could.153
include
hours,

However,

sitting
and

for

lifting

when

the

six

hours,

ten

pounds

occasionally, the job became classified as sedentary.154

Based on

that scenario, the individual could perform unskilled jobs of
order clerk, assembler, and surveillance monitor were available
in the regional and national economies.155
Plaintiff’s

representative

asked

if

a

hypothetical

individual would be able to find employment if the standing and
walking time was reduced from two hours to one hour, and the VE
testified that there would not be any full-time jobs at that
exertional level.156

The VE testified that sedentary work with

occasional use of hands would not change the jobs available.157
D.

Commissioner’s Decision

153

See Tr. 59.

154

See Tr. 59-60.

155

See Tr. 62.

156

See Tr. 62-63.

157

See Tr. 65.

22

On

September

decision.158

9,

2013,

the

ALJ

issued

an

unfavorable

The ALJ found that Plaintiff met the insured status

requirements of the Act through December 31, 2011.159

The ALJ

found

gainful

that

Plaintiff

had

not

engaged

activity since October 17, 2011.160

in

substantial

The ALJ found that MS was a

severe impairment.161
Next, the ALJ determined that Plaintiff’s impairment was not
of a severity sufficient to meet or equal the listings of the
regulations

(“The

Listings”)162

at

any

point

of

the

alleged

disability period.163 Regarding Plaintiff’s impairment, the ALJ
specifically considered Listing 11.09.164
The ALJ then conducted an assessment of Plaintiff’s RFC
based on the objective medical record and Plaintiff’s testimony
and

conduct

at

the

hearing.165

He

determined

that

Plaintiff

retained the RFC to perform less than a full range of light work

158

See Tr. 20.

159

See Tr. 11, 13.

160

See Tr. 13.

161

See id.

162

The Listings are found at 20 C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926.
163

See id.

164

See id.

165

See Tr. 14.

23

with additional limitations including only occasionally lifting
or carrying up to ten pounds, standing or walking about six hours
in

an

eight-hour

workday,

alternating

between

sitting

and

standing, sitting for six hours in an eight-hour workday, and
only

occasionally

balancing,

stooping,

crawling, and climbing ramps or stairs.166
claimant

could

not

perform

kneeling,

crouching,

The ALJ found that the

production-rate-paced

jobs

due

to

medication side effects.167
The

ALJ

determined

that

while

Plaintiff’s

medically

determinable impairment could reasonably be expected to produce
Plaintiff’s

symptoms,

Plaintiff’s

statements

concerning

the

intensity, persistence and limiting effects of the symptoms were
not entirely credible.168
The

ALJ

afforded

little

Lindsey and Dr. Whiting.169

weight

to

the

opinions

of

Dr.

The ALJ noted that those opinions

were not supported by the relevant treatment records and appeared
to

be

based

Plaintiff.170

166

See Tr. 18.

170

the

See id.

169

Furthermore,

subjective

See id.

168

on

See id.

167

primarily

See id.

24

ALJ

reports

found

that

provided
Dr.

by

Whiting’s

opinion was inconsistent with treatment records and objective
observations from a few days before.171
The
perform

ALJ
any

next
past

considered
relevant

whether

work.172

Plaintiff
The

ALJ

was

able

determined

to

that

Plaintiff could not perform any of her past relevant work, but
that there were jobs available that she could perform.173

The ALJ

therefore found that Plaintiff was not disabled from October 17,
2011, through the date of the ALJ’s decision.174
Plaintiff appealed the ALJ’s decision.175

While the appeal

was pending, the Appeals Council received a letter from Dr.
Whiting qualifying her earlier opinion.176

Dr. Whiting stated

that she had only seen Plaintiff on two occasions, six months
apart, that the questionnaire answers were subjective in nature,
and that she had never received Plaintiff’s medical records.177
Moreover, she stated that further questions regarding Plaintiff’s

171

See id.

172

See Tr. 19.

173

See Tr. 19-20.

174

See Tr. 20.

175

See Tr. 7.

176

See Tr. 5.

177

See Tr. 375.

25

limitations

would

be

better

answered

by

Plaintiff’s

treating

physician.178
On October 1, 2014, the Appeals Council denied Plaintiff’s
request for review, thereby transforming the ALJ’s decision into
the final decision of the Commissioner.179

After receiving the

Appeals Council’s denial, Plaintiff timely sought judicial review
of the decision by this court.180
II.

Standard of Review and Applicable Law

The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports
the decision. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.
2002).
A.

Legal Standard
In order to obtain disability benefits, a claimant bears the

ultimate burden of proving she is disabled within the meaning of
the Act.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).

Under the applicable legal standard, a claimant is disabled if
she is unable “to engage in any substantial gainful activity by

178

See id.

179

See Tr. 1-5.

180

See Doc. 1, Pl.’s Compl.

26

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. §

423(d)(1)(a); see also Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994).
must

be

The existence of such a disabling impairment

demonstrated

laboratory

by

diagnostic”

“medically

findings.

acceptable
42

U.S.C.

clinical
§

and

423(d)(3),

(d)(5)(A); see also Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.
1983).
To determine whether a claimant is capable of performing any
“substantial

gainful

activity,”

the

regulations

provide

that

disability claims should be evaluated according to the following
sequential five-step process: (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 [s]he has a
“severe impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled without the
need

to

consider

vocational

factors;

(4)

a

claimant

who

is

capable of performing work that [s]he has done in the past must
be found “not disabled;” and (5) if the claimant is unable to
perform h[er] previous work as a result of h[er] impairment, then
factors such as h[er] age, education, past work experience, and
27

[RFC] must be considered to determine whether [s]he can do other
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see

work.

also 20 C.F.R. § 416.920.

The analysis stops at any point in the

process upon a finding that the claimant is disabled or not
disabled.
B.

Greenspan, 38 F.3d at 236.

Substantial Evidence
The widely accepted definition of “substantial evidence” is

“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.”
F.3d 131, 135 (5th Cir. 2000).

Carey v. Apfel, 230

It is “something more than a

scintilla but less than a preponderance.”

Id.

The Commissioner

has the responsibility of deciding any conflict in the evidence.
If the findings of fact contained in the Commissioner’s

Id.

decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.

42 U.S.C. § 405(g);

Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.
1988).

Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.

In applying this standard, the court is to review the

entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Commissioner’s judgment.

Brown v. Apfel, 192 F.3d 492, 496 (5th
28

Cir. 1999).

In other words, the court is to defer to the

decision of the Commissioner as much as is possible without
making its review meaningless.

Id.

III. Analysis
Plaintiff requests judicial review of the ALJ’s decision to
deny disability benefits.

Plaintiff asserts that the ALJ erred

by failing to properly weigh to the opinions of Dr. Lindsey and
Dr.

Whiting

Plaintiff’s
decision

is

and

that

the

credibility.
legally

ALJ

failed

Defendant

sound

and

is

to

properly

maintains

that

supported

by

evaluate
the

ALJ’s

substantial

evidence.
A.

Failure to Properly Weigh Medical Opinions
Plaintiff contends that the medical opinions of Dr. Lindsey

and Dr. Whiting were entitled to controlling weight.

Plaintiff

argues that the ALJ’s decision to grant little weight to both
doctors’ opinions constitutes reversible error.
“A treating physician’s opinion on the nature and severity
of a patient’s impairment will be given controlling weight if it
is well-supported by medically acceptable clinical and laboratory
diagnostic

techniques

substantial evidence.”

and

is

not

inconsistent

with

other

Newton v. Apfel, 209 F.3d 448, 455 (5th

Cir. 2000)(internal quotations omitted); see SSR 96-2p, 1996 WL
374188, at *1 (July 2, 1996) (explaining the circumstances when
29

medical

opinions

by

controlling weight).
weight

to

the

treating

physicians

are

entitled

to

However, the ALJ ultimately may give less

medical

opinion

of

any

physician

when

the

statements are conclusory, unsupported, or otherwise incredible.
Greenspan, 38 F.3d at 237. When deciding to do so, the ALJ must
indicate

the

specific

source’s medical opinion.

reasons

for

discounting

the

treating

See SSR 96-2p.

Here, the ALJ summarized Plaintiff’s treatment history with
Dr. Whiting and Dr. Lindsey.

The ALJ noted that in her initial

meeting with Dr. Whiting, Plaintiff reported that medications
improved her condition and only a slightly abnormal gait was
observed.

In

Plaintiff’s

initial

meeting

with

Dr.

Lindsey,

Plaintiff reported numbness in both legs and weakness in her
hands,

although

strength.

a

physical

examination

showed

normal

motor

Plaintiff reported decreased sensation along her right

leg and in her hands.

Plaintiff’s gait was also considered

normal.
In explaining his reasoning for affording little weight to
the March 2013 statements of Dr. Whiting and Dr. Lindsey, the ALJ
stated that the doctors’ opinions were not supported by the
relevant treatment notes and appeared to be based primarily on
Plaintiff’s subjective reports.181
181

See Tr. 18.

30

Specifically, the ALJ noted

that while treatment records reflected improved gait and that
Plaintiff

did

not

report

difficulty

walking,

both

doctors’

statements indicated that Plaintiff was capable of standing or
walking only one hour in an eight-hour workday.

Similarly, the

ALJ noted that Dr. Whiting’s opinion that Plaintiff’s pain was a
nine

on

a

ten-point-scale

was

not

supported

by

the

medical

records or Dr. Whiting’s own treatment notes, which observed only
a

slightly

abnormal

gait

and

general

improvement

due

to

medication.
Additionally,

Dr.

Whiting’s

letter

of

October

30,

2013

confirmed that Plaintiff’s questionnaire answers were largely
self-reported and subjective in nature.

Dr. Whiting noted that

Plaintiff’s

5,

sole

purpose

of

her

March

2013

visit

was

to

complete the questionnaire, and that Plaintiff had not returned
to Dr. Whiting’s office or scheduled an appointment after the
questionnaire

was

completed.

Dr.

Whiting

reported

that

Plaintiff’s medical records had been requested but were never
received.

Dr. Whiting noted that she was not the primary care

physician regarding Plaintiff’s MS.
The
opinions

ALJ

noted

regarding

the
the

discrepancies
intensity

and

found
nature

in
of

the

doctors’

Plaintiff’s

impairments, and found they were not supported by the medical
evidence of record.

The ALJ accordingly afforded these opinions
31

less than controlling weight.
The

ALJ

thus

relied

on

See Newton, 209 F.3d at 455-56.

substantial

evidence

of

record

and

properly adhered to legal procedures in determining Dr. Lindsey
and Dr. Whiting’s opinions were entitled to less than controlling
weight.
B.

Plaintiff’s Credibility

Plaintiff

also

argues

that

the

ALJ

erred

by

improperly

evaluating Plaintiff’s testimony at the hearing regarding the
severity of her symptoms and their affect on her ability to work.
While an ALJ must consider a claimant’s complaints of pain,
he is permitted to examine the medical evidence to find that
claimant’s complaints are exaggerated or not credible.
v. Heckler, 767 F.2d 180, 182 (5th Cir. 1985).

Johnson

When an ALJ’s

opinion is supported by substantial evidence, the court must
defer to the ALJ’s assessment.

Villa v. Sullivan, 895 F.2d 1019,

1024 (5th Cir. 1990).
In this case, the ALJ properly recited Plaintiff’s testimony
and weighed it against both the objective medical evidence and
Plaintiff’s
report.182

previous

statements

contained

in

her

function

Specifically, the ALJ noted that Plaintiff’s testimony

regarding pain and overall limitations was not supported by the
objective records.
182

The ALJ noted that Plaintiff had no records

See Tr. 18-19.

32

supporting her hearing testimony regarding loss of strength or
difficulty walking or lifting.183
The ALJ assigned less weight to Plaintiff’s statements when
they were contradicted by the evidence of record.

However, the

ALJ did not completely discount Plaintiff’s testimony regarding
her condition and found her more limited than Dr. Spoor’s initial
assessment based in part on the side-effects of her medication.
Because the ALJ determined Plaintiff’s testimony was not credible
only where it was not consistent with the objective record, the
ALJ did not err as a matter of law in assessing Plaintiff’s
credibility.
For the reasons stated above, the court finds that Defendant
satisfied her burden.
Plaintiff

not

evidence.

As a result, the ALJ’s decision finding

disabled

is

supported

by

substantial

record

The court also agrees with Defendant that the ALJ

applied proper legal standards in evaluating the evidence and in
making

his

determination.

Therefore,

the

court

GRANTS

Defendant’s motion for summary judgment.
IV.

Conclusion

Based on the foregoing, the court DENIES Plaintiff’s motion
for Summary Judgment be and GRANTS Defendant’s Motion for Summary
Judgment.
183

See id.

33

SIGNED in Houston, Texas, this 24th

day of August, 2015.

______________________________
U.S. MAGISTRATE JUDGE

34