Franklin v. Colvin

Filing 19

MEMORANDUM AND ORDER granting 11 Cross MOTION for Summary Judgment , denying 17 Opposed MOTION for Summary Judgment and Response to Defendants Cross Motion for Summary Judgment (Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified.(cfelchak, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RONNIE FRANKLIN,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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August 23, 2017
David J. Bradley, Clerk

Civil Action No. 4:16-CV-1106

MEMORANDUM AND ORDER ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Ronnie Franklin (“Franklin”) seeks judicial review of Acting
Commissioner of the Social Security Administration’s (“the Commissioner”)
decisions denying his application for disability insurance benefits and
supplemental security income payments under Titles II and XVI of the Social
Security Act (“the Act”), respectively. The Parties consented to have this Court
decide the matter pursuant to 28 U.S.C. § 636(c) and filed cross-motions for
summary judgment. As explained below, the Court DENIES Plaintiff’s motion,
GRANTS the Commissioner’s motion, and DISMISSES the action with
prejudice.
1

I.
A.

BACKGROUND

Procedural Background
On January 3, 2013, Franklin filed an application under Title II for disability

insurance benefits, 42 U.S.C. §§ 401-34, and under Title XVI for supplemental
security income (“SSI”) benefits, id. §§ 1381-83, ging disability beginning April 1,
2011, due to heart problems. R. 11.1 The Commissioner denied these claims
initially and on reconsideration. Id. Franklin then requested an administrative
hearing before an administrative law judge to review the denial of benefits. Id.
Administrative Law Judge D’Lisa Simmons (“the ALJ”) held a hearing on April
18, 2014. R. 11, 29-51. Franklin and a vocational expert appeared and testified. On
August 22, 2014, the ALJ issued a decision, finding no disability under §§ 216(i)
and 223(d) of Title II and § 1614 of Title XVI of the Act. R. 11-26. On February
10, 2016, the Appeals Council denied Franklin’s request for review, rendering the
ALJ’s decision final. R. 18-23; see Sims v. Apfel, 530 U.S. 103, 106 (2000)
(explaining that when the Appeals Council denies the request for review, the ALJ’s
opinion becomes the final decision).
Franklin then filed his complaint in this case, seeking judicial review of the
Commissioner’s denial of his Title II and Title XVI claims for benefits. Compl.,

1

“R.” references are to
Commissioner. ECF No. 4.

the

Administrative

2

Transcript/Record

filed

by

the

ECF No. 1; see 42 U.S.C. §§ 405(g), 1383(a)(2)(B)(xi) (providing for judicial
review of the Commissioner’s final decisions in disability insurance benefits and
supplemental security income benefits, respectively). Franklin argues that the ALJ
erred in determining Franklin’s residual functioning capacity (“RFC”) by failing to
include certain mental and physical limitations. Pl. Mot. Summ. J., pp. 6-10, ECF
No. 17.
B.

Factual Background
Franklin claims that he suffers from both a physical and mental disability. In

his applications for disability benefits,2 Franklin stated that he was suffering from
heart problems with an alleged onset date of April 1, 2011. R. 11, 154, 183-87.3 In
his application, Franklin stated that his weak heart muscle causes him to become
exhausted easily. R. 246. Franklin also noted that he previously had surgeries on
his neck and heart. R. 192-93, 218. Franklin stated he had previously worked as a
safety inspector, flagman, wood sculpture, and bulldozer operator. R. 20, 196, 20711. Franklin stated that he stopped working on April 1, 2011, because of his
conditions. R. 187.

2

The Court refers to disability benefits in this opinion as including disability insurance
benefits and supplemental security income benefits.
3

Franklin did not claim mental limitations in his application. See R. 187.

3

After the hearing, the ALJ issued a twelve-page opinion. R. 11-26. The ALJ
reviewed Franklin’s medical records and provided a summary of his medical
conditions. The relevant portions of his medical history are summarized below and
discussed later in this opinion.
Franklin has been diagnosed with various heart conditions, including,
ischemic cardiomyopathy (restriction in blood supply), coronary artery disease
(tightening and narrowing of arteries), angina (chest pain), hypertension (high
blood pressure), and a prior atrial myxoma (benign tumor). R. 286. The medical
records submitted to the ALJ show that Franklin saw a cardiologist, Dr. Siropaides,
at the Cardiovascular Association from February, 2012, until September 2013,
R. 392-465, and various doctors at Kingwood Medical Center between August
2011 and January 2014. R. 298-381, 466-660.
The records indicate that Franklin first saw Dr. Siropaides at the
Cardiovascular Association on February 13, 2012. R. 395. Over the next eighteen
months, Dr. Siropaides monitored Franklin’s heart with stress tests, imaging,
laboratories tests, and echocardiograms (ultrasounds). E.g., R. 397-99, 403, 418.
Frequently when Franklin visited Dr. Siropaides, he did not complain of chest pain.
E.g., R. 406, 426, 435, 436, 438. Dr. Siropaides also prescribed Franklin
medications and refilled them as needed, including Xanax, Metoprolol Tartrate,
4

aspirin, Livalo, Plavix, Zetia, Micardis, and over-the-counter Prilosec. E.g., R. 396,
407, 415-16. These medications were used to treat Franklin’s high blood pressure,
cholesterol, and to act as blood thinners. Apparently, Dr. Siropaides proscribed the
Xanax to treat Franklin’s anxiety, but were no notations or reports indicating any
treatment other than proscribing Xanax related to Franklin’s anxiety.
Franklin also went to the Kingwood Medical Center every few months with
complaints of pains in his chest, hip, neck, jaw, abdomen, and hemorrhoids. E.g.,
R. 325, 370, 466, 524, 611. The hospital monitored Franklin’s heart and consulted
with Dr. Siropaides at the Cardiovascular Association. The doctors took x-rays of
his chest and heart, and conducted EKGs, echo and stress tests. E.g., R. 313, 36869, 374-77, 466. Franklin had no active diseases of the heart and no evidence of
acute cardiopulmonary process (sudden effect on the heart), pulmonary embolism
(blood clots in the leg), acute infiltrates (thick substance in the lungs), shortness of
breath, labored breathing, paroxysmal, lower extremity swelling, or heart
palpitations. R. 359, 374-77. Further, during a stress test and its recovery portion,
Franklin exhibited no cardiac symptoms. R. 443. At each visit, Franklin was
released the same day with a medicine-based treatment plan.
Franklin also went to the Conroe Regional Medical Center on October 16,
2012. R. 282-97. He complained of chest pain and was examined with an EKG and
5

ultrasound. His heart size and lungs were normal. Although he had a left bundlebranch block, a Doppler ultrasound study was unremarkable and he was negative
for any inducible ischemia. R. 18-19, 283-84. During an EKG, Franklin
appropriately responded to exercise, and his resting EKG and functional capacity
were normal. R. 295. Further, his cardiac enzymes were normal, indicating no
injury to the heart. R. 284. The doctors treated Franklin with nitroglycerin and
prescribed him with the same medication as Dr. Schaeffer at Kingwood Medical
Center. Id.
Franklin also underwent three surgeries in relation to his heart. On June 21,
2012, Franklin underwent a coronary angioplasty (surgical repair of his blood
vessel), stent placement, and balloon angioplasty. R. 365-67. The surgery was
deemed a success and the plan of action was to treat Franklin’s heart conditions
with long-term aspirin and Plavix therapy along with aggressive blood pressure
and lipid control. Id. On September 16, 2013, Franklin underwent a left heart
catheterization and angio-seal closure device procedure. R. 493-94. The doctor also
examined Franklin’s artery with a radiography and cineangiography. R. 493. This
surgery was deemed successful and the plan of action was aggressive medical
therapy. R. 494. Franklin was examined a week later and had normal valve
structures. R. 465. On August 5, 2014, Franklin underwent another left heart
6

catheterization and angio-seal closure device procedure. R. 713-16. The doctor also
took an x-ray to examine Franklin’s heart. Id. This surgery was deemed successful
and the recommended treatment plan was to optimize medical management for
Franklin’s coronary artery disease. R. 716.
Before his last two surgeries, on April 30, 2013, at the request and expense
of the Department of Assistive and Rehabilitative Services (“DARS”), Dr. Farzana
Sahi conducted a consultative examination of Franklin. R. 384-91. Dr. Sahi noted
that Franklin was diagnosed with myocarditis (inflammation of the heart muscle),
myxoma, frequent premature ventricular contractions, and shortness of breath.
R. 384. Franklin complained of sharp chest pain that occurred once a week, but he
did not take medication for it. Id. Franklin also complained of neck, back, and
shoulder pain. Id. Franklin noted that he had surgery on his neck in 2008. Id.
Franklin indicated that he was able to walk half a mile, stand and sit for thirty
minutes, lift ten pounds, and had difficulty bending and opening a jar top. Id.
Dr. Sahi examined Franklin and found that he was positive for chest
extremity, and chest pain and dizziness, but negative for palpitation, syncope
(temporary loss of consciousness caused by a fall in blood pressure), and shortness
of breath. R. 385-86. Dr. Sahi found that Franklin was tender in his neck and had a
decreased range of motion in his neck, but he was negative for neck pain. Id. Dr.
7

Sahi found that Franklin was able to squat and arise from a squatting position, and
bend and touch his fingertips within three inches of the floor without difficulty. Id.
Dr. Sahi observed no spine or costovertebral angle tenderness, and his thoracic
spine and lumbar spine were non-tender and Franklin’s range of motion was good.
Id. Dr. Sahi also observed no edema (swelling) in the extremities and a normal
range of motion. Id.
Dr. Sahi concluded that Franklin suffered from chest pain based on moderate
exertion, Franklin’s neck pain appeared to be from degenerative disc disease, and
Franklin’s back and shoulder examination were normal. R. 387. Dr. Sahi opined
that Franklin was able to sit long periods of time, stand and walk for moderate
distances, and do moderate lifting. Id. The ALJ gave Dr. Sahi’s opinion great
weight because it was consistent with the totality of the medical evidence. R. 20.
Franklin did not report any anxiety issue, and Dr. Sahi did not find any
symptoms in relation to anxiety. See R. 384-87. Dr. Sahi noted that Franklin’s
psychiatric symptoms were negative for depression, suicidal ideation, and
hallucination. R. 385.
The ALJ also reviewed and summarized the opinions of two State Agency
Medical

Consultants

(“SAMC”):

Dr. Reid,

8

dated

May

14,

2013,

and

Dr. Rosenstock, dated August 19, 2013, R. 52-71, 72-93.4 Drs. Reid and
Rosenstock both opined that Franklin was capable of working at a light exertional
level with no postural, manipulative, communicative, visual, or environmental
limitations. R. 19-20. Dr. Reid found that although Franklin alleged that he was
diagnosed with a general anxiety, his activities of daily living “show no limitations
as a result of any mental impairment, [Franklin] does not complain of any mental
health issues, [and] that he has limitations to his physical health issues only.”
R. 55, 64. Dr. Rosenstock similarly opined that Franklin’s anxiety disorder “may
restrict [Franklin] but appear[s] to impose minimal limitations.” R. 77, 87. The
ALJ gave the SAMCs’ opinions great weight because they were consistent with the
totality of the medical evidence. R. 20.
The ALJ found that Franklin’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, and that his subjective
complaints regarding the intensity, persistence, and limiting effects of his
symptoms were credible. However, she noted that the medical evidence and his
activities of daily living did not support his statements. R. 20.
The ALJ summarized the relevant medical records. The medical evidence
about Franklin’s heart indicated that, although his ejection fraction of one artery

4

No psychological or mental health review was done by either SAMC. See R. 52-71, 72-93.

9

was stable at forty percent, he had normal valve structures. R. 18. He had no active
disease, acute cardiopulmonary process, pulmonary embolism, or acute infiltrates.
R. 18. His heart and lung were normal sizes, had normal resting EKG and cardiac
enzymes results, and also responded normally to exercise. R. 18-19. Franklin
testified that he was able to do household chores, walk a quarter of a mile, and
lift/carry thirty and forty pounds. R. 18, 38-40. At a recent examination, he stated
that he did not suffer from shortness of breath, lower extremity, or exertional chest
pain. R. 19. The examining doctor found no signs of an acute coronary syndrome
(condition associated with reduced blood flow to the heart) or myocardial
infraction (heart attack). R. 19. With respect to Franklin’s back and neck, the ALJ
found that he had a normal physical examination with a normal range of motion
and no evidence of edema in the extremities. R. 19.
The ALJ assessed Franklin as having the RFC to perform light work as
defined in 20 C.F.R. §§ 404.1567(b), 416.967(b),5 with added limitations. R. 17.
The ALJ did not include any mental limitation based upon his general anxiety
disorder. See id. She found that the medical records combined with Franklin’s
daily living activities supported the RFC finding. R. 17-20.
5

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm or leg controls.”
20 C.F.R. §§ 404.1567(c), 416.967(c).

10

The ALJ found that, given his assessed RFC, Franklin was unable to
perform his past relevant work, but that there are jobs that exist in significant
numbers in the national economy that Franklin could perform, including a storage
facility rental clerk, mail clerk non-postal, and telephone survey worker. R. 20-22.
As a result, the ALJ concluded that Franklin was not disabled. Id.
After the ALJ’s decision, Franklin appealed the decision to the Appeals
Council. Franklin submitted medical records detailing a June 19, 2007, neck
surgery at Conroe Regional Medical Center. R. 689-97; see Higginbotham v.
Barnhart, 405 F.3d 332, 336-37 (5th Cir. 2005) (“evidence submitted for the first
time to the Appeals Council is part of the record on appeal because the statute itself
provides that such record includes the ‘evidence upon which the findings and
decision complained of are based.’” (quoting 42 U.S.C. § 405(g)). On February 10,
2016, the Appeals Council denied Franklin’s request for review, rendering the
ALJ’s decision final. R. 18-23.
II.

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 requires the court to grant summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial. Celotex Corp. v.
11

Catrett, 477 U.S. 317, 322 (1986); Bacharach v. Suntrust Mortg., Inc., 827 F.3d
432, 434 (5th Cir. 2016) (per curiam), cert. denied, 137 S. Ct. 1083 (2017). “The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); accord Celotex Corp., 477 U.S. at 322-23; Bacharach,
827 F.3d at 434. “An issue is material if its resolution could affect the outcome of
the action.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (internal
citations and quotation marks omitted). “A genuine dispute of material fact means
that evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Royal v. CCC&R Tres Arboles, LLC, 736 F.3d 396, 400 (5th
Cir. 2013) (internal citations and quotation marks omitted).
III.

STANDARD OF REVIEW FOR DENIAL OF
DISABILITY BENEFITS

The Act sets out the standard for a district court to review a denial of
disability benefits.
The court shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of the Commission
of Social Security as to any facts, if supported by substantial evidence,
shall be conclusive . . . .
42 U.S.C. § 405(g).

12

Judicial review of the Commissioner's denial of disability benefits is limited
to two inquiries: first, whether the Commissioner applied the proper legal
standards to evaluate the evidence; and second, whether substantial evidence on
the record as a whole supports the final decision. See Audler v. Astrue, 501 F.3d
446, 447 (5th Cir. 2007); Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
“Substantial evidence” is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. Audler, 501 F.3d at 447 (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)). It is more than a mere scintilla and less than
preponderance. Id.; Perez, 415 F.3d at 461; Newton v. Apfel, 209 F.3d 448, 452
(5th Cir. 2000).
When applying the substantial evidence standard, the court scrutinizes the
record in its entirety to determine whether such evidence is present. Perez, 415
F.3d at 461. In determining whether substantial evidence of disability exists, the
court weighs four factors: (1) objective medical evidence; (2) diagnoses and
opinions; (3) the claimant's subjective evidence of pain and disability; and (4) the
claimant’s age, education, and work history. Id. at 462 (citing Wren v. Sullivan,
925 F.2d 123, 126 (5th Cir. 1991)); Randall v. Sullivan, 956 F.2d 105, 109 (5th
Cir. 1992) (“it is imperative that we scrutinize the record in its entirety to

13

determine the reasonableness of the decision reached by the Secretary and whether
substantial evidence exists to support it”).
If the Commissioner’s findings are supported by substantial evidence, they
are conclusive and must be affirmed. Perez, 415 F.3d at 461 (citing Richardson,
402 U.S. at 390). Alternatively, a finding of no substantial evidence is appropriate
if no credible evidentiary choices or medical findings support the decision. Boyd v.
Apfel, 239 F.3d 698, 704 (5th Cir. 2001). The court may not, however, reweigh the
evidence, try the issues de novo, or substitute its judgment for that of the
Commissioner. Audler, 501 F.3d at 447. In short, conflicts in the evidence are for
the Commissioner, not the courts, to resolve. Perez, 415 F.3d at 461. The Court
“may affirm only on the grounds that the Commissioner stated for [the] decision.”
Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014). “Procedural perfection in
administrative proceedings is not required as long as the substantial rights of a
party have not been affected.” Audler, 501 F.3d at 448.
IV.
A.

ANALYSIS

Titles II and XVI of the Act Authorize Disability Insurance Benefits and
Supplemental Security Income
The Act permits the payment of insurance benefits to persons who have

contributed to the program and who suffer a physical or mental disability. 42
U.S.C. § 423(a)(1)(D). These payments are referred to as disability insurance
14

benefits. The Act also permits SSI payments to the aged, blind, and disabled to
assure that their income does not fall below the poverty line. 42 U.S.C. § 1382(a);
20 C.F.R. § 416.110. Although these programs are distinct, applicants must prove
“disability” under both sections. See 42 U.S.C. § 423(d)(1)(A) (disability
insurance); 42 U.S.C. § 1382c(a)(3)(A) (SSI). Both sections define disability using
virtually the same language. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “The
law and regulations governing the determination of disability are the same for both
programs.” Roberts v. Colvin, 946 F. Supp. 2d 646, 657 (S.D. Tex. 2013) (Hanks,
J.) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)).
“Disability” is defined as the
inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (using “unable” rather than
“inability”). A physical or mental impairment is defined as
an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.
42 U.S.C. § 423(d)(3), 1382c(a)(3)(D). “The suffering of some impairment does
not establish disability; a claimant is disabled only if he is ‘incapable of engaging

15

in any substantial gainful activity.’” Anthony v. Sullivan, 954 F.2d 289, 293 (5th
Cir. 1992) (quoting Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1987)).
B.

Franklin Must Establish That He Was Disabled
The Act places the burden of establishing disability on the claimant. Perez,

415 F.3d at 461. To be entitled to disability insurance benefits, a claimant “must
show that he was disabled on or before the last day of his insured status.” Ware v.
Schweiker, 651 F.2d 408, 411 (5th Cir. 1981). SSI benefits are dependent on proof
of disability and indigence, and a claimant can receive SSI payments once he
applies to the program, no matter how long he has been disabled. Torres v. Colvin,
No. 4:13-cv-2571, 2014 WL 4064002, at *6 (S.D. Tex. Aug. 15, 2014) (Atlas, J.)
(citing 42 U.S.C. §§ 1382a, c(a)(3), Brown v. Apfel, 192 F.3d 492, 495 n.1 (5th
Cir.1999), and 20 C.F.R. § 416.335).
When determining whether a claimant is disabled, an ALJ must engage in a
five-step sequential inquiry, as follows: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the claimant has a “severe”
impairment, such that it has more than minimal limitation in the claimant’s ability
to perform basic work activities; (3) whether the claimant’s impairment meets or
equals a listed impairment in Appendix I of the regulations; (4) what constitutes
past relevant work and whether the claimant is capable of performing it; and (5)
16

whether the claimant is capable of performing any other work in the national
economy. Copeland, 771 F.3d at 923; Perez, 415 F.3d at 461; Newton, 209 F.3d at
453. Before proceeding to Step Four, the ALJ makes an assessment of the
claimant’s RFC, which is a generic description of the work a claimant still can do
despite his or his physical and mental limitations. Perez, 415 F.3d at 461-62. Then,
the ALJ compares the assessed RFC to the plaintiff’s past relevant work in Step
Four and, if needed, to jobs in the national economy in Step Five. Id. at 461.
The claimant has the burden to prove disability under the first four steps.
Copeland, 771 F.3d at 923. If the claimant successfully carries this burden, the
burden shifts to the Commissioner at Step Five to show that the claimant is capable
of performing other substantial gainful employment that is available in the national
economy. Id. Once the Commissioner makes this showing, the burden shifts back
to the claimant to rebut the finding. Id.; Newton, 209 F.3d at 453. A finding that a
claimant is disabled at any point in the five-step review is conclusive and
terminates the analysis. Perez, 415 F.3d at 461 (citing 20 C.F.R. § 404.1520(a)). If
the Commissioner cannot make a determination, he goes on to the next step. Id.
(citing 20 C.F.R. § 404.1520(a)).
In this case, the ALJ first determined that Franklin met the insured status
requirements for Title II disability insurance benefits through June 30, 2015. R. 13,
17

177-78. At Step One, the ALJ examined Franklin’s employment and earnings
history, and found that he had not engaged in substantial gainful activity since his
alleged onset date. Although he had worked after the alleged disability onset date,
he did not earn enough money for this employment to rise to the level of
substantial gainful activity. R. 13, 182.
At Step Two, the ALJ found that Franklin had four severe impairments:
ischemic heart disease with chest pain on moderate exertion, coronary artery
disease (CAD), degenerative disc disease of the cervical spine, and status post
anterior cervical decompression and fusion. R. 13. The ALJ also found that
Franklin had several non-severe physical and mental impairments that “would not
be expected to interfere with the claimant’s ability to work,” including,
gastroesophageal reflux disease (GERD), hypertension, blood clots, congestive
heart

failure,

obstructive

sleep

apnea,

hyperlipidemia,

hypertrophic

cardiomyopathy, a history of smoking, and anxiety disorder. R. 14-16 (quoting
Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)). Additionally, the ALJ
found that Franklin’s claim of arthritis in the hips was not a medically
determinable impairment because there were no medical records to support this
claim. R. 14-15.

18

At Step Three, the ALJ found that Franklin’s impairments, considered
singularly or in combination, did not meet the impairments listed in the Social
Security regulations. R. 16-17.
Before proceeding to Step Four, the ALJ assessed Franklin’s RFC and
concluded that he was able to perform a wide range of light work, except that he
must be able to sit/stand/walk intermittently for six hours, each, in an eight
workday; be limited to occasional crouching, crawling, kneeling, and climbing
stairs and ramps; not be required to use scaffolding, ropes, ladders; and not be
exposed to extreme heat, respiratory irritants, dangerous machinery, or unprotected
heights. R. 17. The ALJ did not include any mental limitations in the assessed
RFC. See id.
At Step Four, the ALJ compared this assessed RFC to Franklin’s past
relevant work and determined that he was unable to perform his former jobs of a
safety inspector, flagger, wood sculptor, or bulldozer operator. R. 20. At Step Five,
the ALJ considered Franklin’s advanced age, limited education, work experience,
and RFC, and determined that there are jobs that exist in the significant numbers in
the national economy that Franklin can perform, including, storage facility rental
clerk, mail clerk non-postal, and telephone survey worker. R. 20-22. The ALJ

19

concluded that because Franklin was able to perform these jobs given his assessed
RFC, he was not disabled. R. 22.
C.

Substantial Evidence Supports the ALJ’s Decision
In support of his motion, Franklin first asserts that substantial evidence does

not support the ALJ’s decision not to include any mental limitations in the assessed
RFC. Pl. Mot. Summ. J., p. 6, ECF No. 17. Second, Franklin asserts that
substantial evidence does not support the ALJ’s decision not to include various
physical limitations in the assessed RFC. Id. at 7-10.
1.

Substantial evidence supports the ALJ’s finding not to include
any mental limitations in the assessed RFC
a.

The ALJ properly determined at Step Two that Franklin’s
anxiety disorder caused only mild limitations but was a nonsevere impairment

As part of his argument, Franklin asserts that it was error for the ALJ to fail
to include any mental limitations in the RFC after “the ALJ acknowledge[d] that
Plaintiff’s mental impairments result in at least ‘mild’ limitations in domains of
social functioning, concentration, persistence and pace, and activities of daily
living.” Id. at 6. The ALJ gave these mild ratings at Step Two when she conducted
the three-part special technique used to evaluate whether Franklin’s anxiety
disorder was a severe or non-severe impairment. R. 16. As explained below, the
ALJ properly conducted this three-part technique.
20

At the time of Franklin’s decision,6 the ALJ was required to evaluate at Step
Two whether Franklin’s mental impairment was severe pursuant to a three-part
technique that evaluates “the degree of functional loss resulting from the
claimant’s mental impairments.” Andrews v. Astrue, 917 F. Supp. 2d 624, 633 n.2
(N.D. Tex. 2013) (citing 20 C.F.R. §§ 404.1520a(b)-(d), 416.920a(b)-(d)).
At part one, the ALJ was to determine whether the claimant had a medically
determinable mental impairment. §§ 404.1520a(b)(1), 416.920a(b)(1).
At part two, the ALJ was supposed to rate the degree of the functional
limitation in four areas: (A) activities of daily living; (B) social functioning;
(C) concentration, persistence, or pace; and (D) episodes of decompensation.
Andrews, 917 F. Supp. 2d at 635; §§ 404.1520a(b)(2), (c), 416.920a(b)(2), (c). The
ALJ evaluates and grades the first three functional areas using a five-point scale:
none, mild, moderate, marked, or extreme; and rates the fourth functional area
(episodes of decompensation) using a different four-point scale: none, one or two,
three, four or more. §§ 404.1520a(c)(4), 416.920a(c)(4). “The last point on each
scale [extreme and four or more] represents a degree of limitation that is

6

Since the hearing, 20 C.F.R. §§ 404.1520a, 416.920a have been revised and amended
twice. The citations in this section are to the regulations as the existed in 2014, when the
ALJ and Commissioner heard, decided, and considered the case. See Johnson v. Barnhart,
285 F. Supp. 2d 899, 910 n.6 (S.D. Tex. 2003) (Atlas, J.) (analyzing the regulations in place
at the time of the hearing and decision and noting that they were revised and amended after
the hearing date).

21

incompatible with the ability to do any gainful activity.” §§ 404.1520a(c)(4),
416.920a(c)(4).
At part three, the ALJ was required to use the ratings to determine the
severity of the mental impairment. Andrews, 917 F. Supp. 2d at 635;
§§ 404.1520a(d), 416.920a(d). There is a presumption that the impairment is nonsevere if the ALJ rates the degree of the claimant’s limitation “in the first three
functional areas as ‘none’ or ‘mild,’ and ‘none’ in the fourth area . . . .”
§§ 404.1520a(d)(1), 416.920a(d)(1); accord Andrews, 917 F. Supp. 2d at 635. A
claimant can rebut this presumption if “the evidence otherwise indicates that there
is more than a minimal limitation in the claimant’s ability to do basic work
activities.” Andrews, 917 F. Supp. 2d at 635 (quoting §§ 404.1520a(d)(1),
416.920a(d)(1)). If the claimant fails to rebut the presumption, then the mental
impairment is deemed non-severe. Andrews, 917 F. Supp. 2d at 635 (concluding
that the mental impairment was non-severe because the claimant failed to rebut the
presumption after finding that he “had either no or only mild restrictions in the first
three functional areas, and none in the fourth”).
If the ALJ finds that mental impairment is severe, she will compare the
functional ratings she gave with the listed mental disorders. §§ 404.1520a(d)(2),
416.920a(d)(2). If the severe mental impairment does not meet an equivalent
22

listing, the ALJ will then assess the claimant’s RFC given the severe impairment.
§§ 404.150a(d)(3), 416.920a(d)(3).7
Here, the ALJ properly applied this technique to determine that Franklin’s
anxiety disorder was not a severe impairment. See §§ 404.1520a(e)(4),
416.920a(e)(4); R. 15-16. First, although not detailed in the opinion, anxiety is a
medically determinable mental impairment and the ALJ properly proceeded to the
second and third parts. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (“anxiety
disorders” are the eleventh listed mental impairment). Second, the ALJ rated the
four functional areas and gave a “mild” limitation rating to the first three functional
areas, and “none” in the fourth, because Franklin had experienced no episodes of
decompensation. R. 15-16. Third, because the first three functional areas were only
rated mild and the fourth was rated none, it was presumed that Franklin’s anxiety
was not severe. See Andrews, 917 F. Supp. 2d at 635; §§ 404.1520a(d)(1),
416.920a(d)(1).
Accordingly, the ALJ properly concluded that Franklin’s anxiety disorder
was not a severe impairment. See White v. Astrue, No. 4:08-CV-415, 2009 WL
763064, at *11 (N.D. Tex. Mar. 23, 2009) (rejecting the argument by claimant that
7

The ALJ must also document her application of the technique, detailing the claimant’s
history, “including examination and laboratory findings,” and providing a “specific finding
as to the degree of limitation in each of the functional areas . . . .” §§ 404.1520a(e)(4),
416.920a(e)(4).

23

“the assessment of mild limitations in a claimant's functioning must translate into a
finding that the claimant has a severe mental impairment”); Andrews, 917 F. Supp.
2d at 635 (declining to reverse the ALJ’s finding that the claimant’s mental
impairment was not severe because the claimant had either no or only mild
restrictions in the first three functional areas, and none in the fourth);
§§ 404.1520a(d)(1), 416.920a(d)(1).
b.

Substantial evidence supports the ALJ’s decision not to include
any mental limitation in the assessed RFC

“The Fifth Circuit has held that Step Two is a threshold step, requiring the
‘claimant to make a de minimis showing that her impairment is severe enough to
interfere with her ability to work.’” Ventura v. Colvin, No. 6:16-CV-16, 2017 WL
1397130, at *12 (S.D. Tex. Feb. 27, 2017) (Palermo, J.), adopted, 2017 WL
1397131 (S.D. Tex. Mar. 30, 2017) (Atlas, J.) (quoting Anthony, 954 F.2d at 294
n.5)). Franklin failed to make this de minimis showing as the ALJ properly found
that his anxiety disorder was not a severe impairment. Franklin still contends that it
was error for her not include some of the mental limitations at Step Two. Pl. Mot.
Summ. J., p. 6, ECF No. 17.

24

In formulating the RFC, the ALJ must consider all impairments, whether
severe or non-severe.8 Patterson v. Berryhill, No. 3:16-CV-204, 2017 WL
1196859, at *12 (N.D. Tex. Mar. 30, 2017); §§ 404.1545(a)(2), 416.945(a)(2).
Substantial evidence supports the ALJ’s decision not to include any mental
limitations related to anxiety in the assessed RFC.
First, there is a lack of objective evidence corroborating the severity of
Franklin’s claim; namely, there were no records from any treating physician
regarding Franklin’s mental impairments except to the extent they show he
received medication for anxiety. E.g., R. 396. Franklin has not demonstrated that
he obtained any treatment in the way of therapy. See Villa v. Sullivan, 895 F.2d
1019, 1024 (5th Cir. 1990) (“The ALJ was not precluded from relying upon the
lack of treatment as an indication of nondisability.”); Quintanilla v. Astrue, 619 F.
Supp. 2d 306, 321 (S.D. Tex. 2008) (Jack, J.) (“The Fifth Circuit recognizes that an
ALJ may rely on lack of treatment as evidence that an applicant's subjective
complaints are not credible.”); see also White, 2009 WL 763064, at *11
(recognizing that lack of history of treatment by a mental health professional
supported finding that the mental impairment was not severe). Franklin, testified
that he had problems sleeping due to racing thoughts and anxiety attacks, but he
8

If the ALJ does not find any severe impairment at Step Two, the inquiry stops and the
claimant is found to be not disabled. §§ 404.1520(c), 416.920(c).

25

never sought treatment from a mental health professional, indicating that the
disorder was not as severe as Franklin claimed. R. 15, 40-41; see Olvera v. Colvin,
No. 4:14-CV-605, 2016 WL 2594066, at *8 (E.D. Tex. May 5, 2016) (considering
the evidence that the claimant “never found his symptoms severe enough to seek
treatment” in assessing the RFC). Franklin was taking anxiety medication as early
as February 13, 2012. R. 396. When medication is sufficient to control the
symptoms, the ALJ can conclude that the condition is not disabling. See Willis v.
Berryhill, No. 4:15-CV-2070, 2017 WL 1153956, at *17 (S.D. Tex. Mar. 28, 2017)
(Milloy, J.) (“an impairment that can be reasonably remedied or controlled by
medication or treatment is not disabling and does not affect RFC”); Ventura, 2017
WL 1397130, at *13 (little objective evidence to support claim that anxiety
impacted claimant’s ability to work, including that the claimant reported that the
medication helped control anxiety).
Second, Franklin indicated that he was able to take care of his daily needs
and interact with others, both with only mild limitation. See Leggett v. Chater, 67
F.3d 558, 565 n.12 (5th Cir. 1995) (plaintiff’s self-described daily activities
bolstered the medical opinions that did not restrict the plaintiff's physical activity).
Franklin testified that he was able to drive in a car, shop in stores, bathe, and dress
himself. R. 15, 219-22. Further, he reported in his application that he visited with
26

friends about three to four times a week and talked with them on the phone. R. 15,
222. Additionally, Franklin testified that he can understand written and verbal
instruction and can concentrate up to twenty minutes and handle changes in
routine. R. 15-16, 219.
Third, the only opinions contained in the record were from a non-treating
sources: the SAMCs. The SAMCs opined that Franklin’s anxiety might restrict
him but his symptoms impose minimal limitations. R. 15, 52-69, 72-91. Since, the
SAMCS is a non-treating physician, the ALJ was not required to give these
opinions controlling weight. See, e.g., Andrews, 917 F. Supp. 2d at 637. But the
ALJ was entitled to rely on the SAMC opinions because these doctors are “highly
qualified”

and

“experts

in

Social

Security

disability

evaluation.”

20

C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Ventura, 2017 WL 1397130, at *11
(“The ALJ is required to consider the SAMC opinions because these individuals
are “highly qualified” and “experts in Social Security disability evaluation.”
(internal citations omitted)).
Accordingly, substantial evidence supports the ALJ’s decision to not include
any mental limitations in the assessed RFC.

27

2.

Substantial evidence supports the ALJ’s assessed RFC with
regard to the physical limitations

Franklin argues that the ALJ did not include certain physical limitations in
the assessed RFC. Pl. Mot. Summ. J., pp. 7-10, ECF No. 17.
a.

The ALJ considered and included some physical limitations in
the assessed RFC

Franklin asserts that the ALJ’s assessed RFC fails to include any of the four
severe impairments that the ALJ found at Step Two: ischemic heart disease with
chest pain on moderate exertion, coronary artery disease, degenerative disc disease,
and status post anterior cervical decompression and fusion. Pl. Mot. Summ. J., p. 7,
ECF No. 17.9 This argument is without merit.
In formulating the RFC, the ALJ considered these severe impairments, along
with Franklin’s symptoms, the objective medical evidence, the medical opinions,
and Franklin’s testimony, to evaluate Franklin’s ability to work despite these
limitations. R. 17-20; see Ventura, 2017 WL 1397130, at *12; §§ 404.1545(a),
416.945(a). Franklin’s assessed RFC included limitations related to both the heart
and artery diseases and the neck and back impairments. The ALJ limited Franklin
to light work and being able to sit/stand/walk intermittingly for six hours each,
9

Franklin cites and quotes from Stone, 752 F.2d 1099 in support of his position that the
impairments should have been included in the assessed RFC. However, Stone focused on
Step Two and whether the ALJ properly evaluated whether a claimant had a “severe”
impairment, not whether the impairment should have been included in the assessed RFC
before reaching Step Four. Id. at 1100.

28

only performing jobs with occasional crouching, crawling, kneeling, and climbing
of stairs, and not performing jobs with scaffolding, ropes, or ladders. R. 17-20. The
light work incorporates Franklin’s heart and artery impairments while the added
limitations incorporate the heart, artery, neck, and back impairments.
To the extent that the ALJ did not include more limitations related to
Franklin’s neck and back, the ALJ’s assessed RFC is supported by substantial
evidence.
Although there is evidence that Franklin had pain in his neck and back, there
is no objective evidence that Franklin was more limited than what the ALJ
assessed as Franklin’s RFC. Dr. Sahi, a physician that DARS hired to conduct a
one-time consultative examination, examined Franklin in April 2013, and Franklin
complained of neck, back, and shoulder pain. R. 384. During a physical
examination, Dr. Sahi found that Franklin was positive for extremity and back
pain. However, when Dr. Sahi examined Franklin, he found that Franklin had no
spine or costovertebral angle tenderness, and Franklin was able to do various
maneuvers, including squatting and rising from a squat position and bending and
touching his fingertips within three inches of the floor without difficulty. R. 386.
He also found that Franklin was not suffering from any neck pain. R. 385. On

29

January 8, 2014, Franklin underwent a physical examination at Kingwood hospital
and had full range of motion in his neck and back. R. 470.
Additionally, Franklin’s own statements about his pain and his ability to do
work support the assessed RFC. Regarding his neck and back pain, Franklin
testified that medication helped him manage his pain and he refilled his
prescriptions. R. 41-42, 436; see Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir.
1990) (ALJ can consider that medication alleviated pain); Willis, 2017 WL
1153956, at *17 (“an impairment that can be reasonably remedied or controlled by
medication or treatment is not disabling and does not affect RFC.”); Ventura, 2017
WL 1397130, at *8 (same). Moreover, Franklin testified at the hearing that he was
able to lift and carry between thirty to forty pounds, R. 38, and had no trouble
taking care of his daily needs. R. 219; see Ventura, 2017 WL 1397130, at *9
(relying on the claimant’s daily activities as evidence to support the ALJ’s assessed
RFC). The ALJ discounted Franklin’s testimony in assessing that he could lift 3040 pounds in assessing that he had an RFC to perform light work.
Accordingly, substantial evidence supports the ALJ’s decision not to include
any more of a limitation than what was included in the assessed RFC related to
Franklin’s neck or back movement.

30

b.

Substantial evidence supports not finding any right-hand grip
manipulations limitations in the assessed RFC

Franklin argues it was error for the ALJ not to include a limitation in the
assessed RFC related to his decreased grip strength in his right hand. Pl. Mot.
Summ. J., p. 8, ECF No. 17. Substantial evidence supports the ALJ’s decision.
In April 2013, Franklin told Dr. Sahi that he had problems with gross
manipulations, like opening a jar top. R. 384. During an examination, Dr. Sahi
found that Franklin had slightly decreased grip strength in his right hand. R. 389.
Other than this isolated piece of evidence of a slight limitation, the record is devoid
of any other medical findings that support Franklin’s contention. See Soto v.
Colvin, No. 13-CV-28, 2015 WL 6961754, at *4 (W.D. Tex. Nov. 10, 2015)
(finding the ALJ’s decision not to include a limitation in the RFC was supported
by substantial evidence because the record did not include any objective evidence
of the limitation); Brown v. Colvin, No. 4:12-CV-1849, 2013 WL 3779344, at *9
(S.D. Tex. July 17, 2013) (Johnson, J.) (concluding the ALJ’s decision was
supported by substantial evidence when the record was devoid of any medical
finding other than the claimant’s non-credible testimony).
To the contrary, the other evidence supports the ALJ’s decision to not
include any right hand manipulations in the assessed RFC. Dr. Sahi found that
Franklin’s grip strength was reduced to only 60% and there was no edema
31

(swelling) in his extremities. R. 19, 386, 389. An examination at Kingwood
Hospital in January 2014 found no evidence of clubbing, edema, or cyanosis
(discoloration in the skin as evidence of a lack of oxygen) in the extremities.
R. 447. Dr. Sahi also opined that Franklin was limited to moderate lifting, R. 387,
and Franklin testified that he could lift thirty to forty pounds, R. 38.
Moreover, the ALJ could take into account the fact that Franklin did not
include this pain or any limitation in his hands in his disability application. R. 187;
see Ventura, 2017 WL 1397130, at *11 (finding that the ALJ could consider that
the plaintiff did not include anxiety as an impairment that was disabling in her
application); Quinn v. Colvin, No. 4:11-CV-3629, 2013 WL 2458632, at *9 (S.D.
Tex. June 6, 2013) (Hanks, J.) (finding that the claimant did not list shoulder pain
as relevant in determining whether substantial evidence supports the ALJ’s finding
that the claimant did not suffer from a severe impairment at Step Two); Castro v.
Barnhart, No. 05-cv-0830, 2006 WL 2290563, at *6 (W.D. Tex. Aug. 7, 2006)
(noting that claimant did not allege depression as a mental impairment in her
disability benefits application). Franklin failed to meet his burden and supply any
other evidence that corroborated his pain, limitations, or treatment he received
related to his right hand. See Perez, 415 F.3d at 461.

32

Accordingly, substantial evidence supports the ALJ’s decision not to include
any limitation associated with Franklin’s right hand in the assessed RFC.
c.

Substantial evidence supports the assessed RFC finding that
Franklin can stand and walk intermittently for 6 hours a day

Franklin asserts that it was error for the ALJ to assess Franklin’s RFC as
being able to stand/sit/walk for six hours a day because it is inconsistent with
Dr. Sahi’s opinion that Franklin can only stand and walk for “moderate distances.”
Pl. Mot. Summ. J., pp. 8-9, ECF No. 17.
The ALJ did not assess Franklin as having the ability to walk continuously
for eight hours. Rather, the ALJ took into account Franklin’s limitations in the
assessed RFC and added the limitation that Franklin must be able to walk
intermittingly, i.e., have the ability to stop and change positions at irregular
intervals. R. 17.
Dr. Sahi’s opinion is consistent with Franklin’s own statements, the
SAMCs’ opinions, and the other objective evidence. Franklin reported being able
to walk from a quarter to a half a mile and stand and sit for thirty minutes. R. 39,
42, 384. The SAMCs both opined that Franklin could do work at a light exertional
level. R. 55-59, 64-68, 77-80, 87-90. Franklin underwent an exercise stress test at
Conroe Regional Hospital on October 17, 2012, which revealed an appropriate
response to exercise, normal resting ECF, and normal functional capacity. R. 295.
33

When Dr. Sahi examined Franklin a year later, he found angina (pain in the heart)
with moderate exertion, and that Franklin suffered from fatigue and chest pain.
R. 386. After Dr. Sahi’s examination, however, Franklin had a normal physical
examination at Kingwood Hospital which revealed a normal heart rate and rhythm,
normal heart sounds, and no pedal edema. R. 470. Franklin did not appear to be in
any distress and had normal breath sounds with no wheezing. Id. Further, although
a chest x-ray revealed mild cardiomegaly (an enlarged heart), there was no acute
abnormality demonstrated, R. 472, and no vascular congestion, R. 485.
This objective evidence, along with Franklin’s own statements, and the
opinion evidence of Dr. Sahi and the SAMCs, support the ALJ’s contention.
Accordingly, the ALJ’s assessed RFC finding that Franklin can walk and stand
intermittingly for six hours is supported by substantial evidence.
Franklin argues that the ALJ should have contacted Dr. Sahi to obtain the
precise meaning of “moderate.” Pl. Mot. Summ. J., p. 9, ECF No. 17. An ALJ
owes the duty to the claimant to “develop the record fully and fairly to ensure that
[her] decision is an informed decision based on sufficient facts.” Brock v. Chater,
84 F.3d 726, 728 (5th Cir. 1996). There is no regulation that requires the ALJ to recontact a consulting physician who conducted a one-time examination of the

34

claimant to clarify an opinion.10 It was not error for the ALJ to fail to contact
Dr. Sahi about this opinion because, the record was adequately developed. The
ALJ had the objective medical evidence that Dr. Sahi relied on to form this
opinion, including Franklin’s ability to do various maneuvers and Franklin’s heart
diagnoses. R. 384.
V.

CONCLUSION

For these reasons, the Commissioner’s motion for summary judgment is
GRANTED, and Franklin’s motion for summary judgment is DENIED.
Franklin’s claims are DISMISSED with prejudice.
Signed on August 23, 2017, at Houston, Texas.

__________________________
Dena Hanovice Palermo
United States Magistrate Judge
10

There is an older regulation that required the ALJ to recontact a treating physician,
psychologist, or other medical source to clarify an opinion or other evidence in certain
circumstances. 20 C.F.R. §§ 404.1512(e), 416.912(e). Both of these regulations were
amended on March 26, 2012 and were not in effect at the time of the hearing and decision.
The revised versions do not contain this subsection. This older regulation would not have
applied here because Dr. Sahi was a consulting physician, not a treating physician, who
examined Franklin once, at the request of DARS. Social Security Ruling 96-2P also
suggests that, in evaluating whether to give a treating physician controlling weight, an ALJ
may be required “to obtain more evidence or to clarify reported clinical signs or laboratory
findings” when the treating physician’s findings are inconsistent with the other evidence.
SSR 96-2P, 1996 WL 374188, at *4 (July 2, 1996). But further development is not required
when the record is otherwise adequately developed. Id. The ALJ was not required to contact
Dr. Sahi under this ruling because Dr. Sahi was not a treating physician and the record was
otherwise adequately developed.

35