Nerren v. Colvin
MEMORANDUM OPINION granting 13 Cross MOTION for Summary Judgment , denying 19 Opposed MOTION for Summary Judgment and Reply to Cross Motion for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION, §
September 29, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-2205
Pending before the court2 are Defendant’s Cross-Motion for
Summary Judgment (Doc. 13) and Plaintiff’s Motion for Summary
Judgment (Doc. 19).
The court has considered the motions, the
responses, the administrative record, and the applicable law.
the reasons set forth below, the court GRANTS Defendant’s motion
and DENIES Plaintiff’s motion.
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
(“Commissioner” or “Defendant”) regarding Plaintiff’s claim for
Carolyn W. Colvin was the Commissioner of the Social Security
Administration (“SSA”) at the time that Plaintiff filed this case but no longer
holds that position. Nancy A. Berryhill is Acting Commissioner of the SSA and,
as such, is automatically substituted as Defendant. See Fed. R. Civ. P. 25(d).
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. See Doc. 12, Ord. Dated
Sept. 29, 2016.
disability insurance benefits under Title II and for supplemental
security income under Title XVI of the Social Security Act (“the
Plaintiff was born on May 31, 1967, and was forty-six years
old on the alleged disability onset date of June 29, 2013.3
Plaintiff, who holds a General Equivalency Diploma (GED), worked as
a painter from June 1998 to January 2001 and as a welder/boiler
maker from September 2001 to October 2011.4
The medical records generally support a history of heart
disease, including two heart attacks and a coronary artery bypass
graft in the years 2010 and 2011.5
On February 27, 2013, Plaintiff
sought emergency treatment for chest pain, which led to a three-day
The treating cardiologist determined that the
chest pain did not have a cardiac origin.7
From June 14, 2013, to December 16, 2015, Plaintiff sought
treatment at Tomball Regional Medical Center emergency room many
times for various conditions, including tooth pain resulting from
See Tr. of the Admin. Proceedings (“Tr.”) 353-67.
See Tr. 404, 414-15. At the hearing, Plaintiff clarified that he had
worked as a combined welder/boiler maker. See Tr. 42, 82.
See Tr. 516, 525.
See Tr. 511-43.
See Tr. 521.
biting on a popcorn kernel, hip pain, an arm laceration resulting
from breaking a window, a hand contusion from punching a wall, a
head laceration from performing housework, an accidental finger
incision during dinner preparation, and congestion/bronchitis.8 In
August 2013, Plaintiff presented to the emergency room experiencing
involuntary movement of his arms, neck, and head and was diagnosed
with dystonic reaction to medications.9
emergency room twice in three days, complaining of episodic shakes
on the first visit and of “intermittent feeling of shaking in his
upper body and insides and burning sensation internally” on the
The same attending physician treated Plaintiff on
The physician first diagnosed Plaintiff with
shaking spells and discharged Plaintiff with information about
dystonias.12 Two days later, the physician diagnosed Plaintiff with
resting tremor, hot flashes, acute anxiety, and leukocytosis (high
white cell count) and discharged Plaintiff upon improvement with
information about tremors and generalized anxiety disorder.13
See Tr. 1138-48, 598-605, 607-13, 679-89, 997-1005, 1226-40, 1292-
See Tr. 642-47.
See Tr. 1410, 1425.
See Tr. 1409-33.
See Tr. 1427.
See Tr. 1414.
Plaintiff visited the emergency room no fewer than a dozen times
for treatment of back pain and/or neck pain and/or flank pain.14
emergency room visits was chest pain.15
On October 7 and 14, 2013,
Plaintiff sought emergency treatment for chest pain.16 On the first
of the two visits, Plaintiff was diagnosed with chest pain and
headache and was discharged.17
On the second, Plaintiff was
inflammation of the chest area, and was discharged.18
On June 10, 2014, Plaintiff returned to the emergency room
complaining of chest pain.19
The treating physician diagnosed the
pain as musculoskeletal and discharged Plaintiff.20 In October 2014
and June 2015, Plaintiff was admitted for observation but was
diagnosed with chest pain of a noncardiac origin.21
2015, Plaintiff again sought emergency treatment for chest pain but
was discharged with a diagnosis of chest pain and instructions to
See Tr. 631-37, 648-78, 989-96, 1015-1026, 1130-37, 1156-72, 1249-82.
See Tr. 590-97, 614-21, 622-30.
See Tr. 614-30.
See Tr. 625.
See Tr. 617.
See Tr. 589-97.
See Tr. 592.
See Tr. 1173-1205, 1309-39.
follow up on an outpatient basis.22
In addition to the above discussed physical conditions, the
medical records include documentation of mental impairments.23
On November 7, 2012, Nadeema Akhtar, M.D., (“Dr. Akhtar”)
depression, anger, and agitation that started after Plaintiff’s
bypass surgery.25 Plaintiff reported that he first became depressed
experiencing sleep disturbance.26
Plaintiff admitted a life-long
history of anger issues, but described more recent symptoms as
activities, low self esteem, guilt, helplessness, mood swings, and
See Tr. 1434-44.
See, e.g., Tr. 546-49.
See Tr. 424, 546-49. Dr. Akhtar’s psychiatric assessment is in the
record more than once. See, e.g., 1372-75.
See Tr. 546.
Plaintiff reported two prior psychiatric hospitalizations, one
due to a suicide attempt and one due to an intentional overdose of
Seroquel (a medication used to treat schizophrenia and bipolar
disorders) with alcohol.28
He also stated that he had been on
several courses of psychotropic medications without success due to
concurrent alcohol consumption and that he was currently taking
Xanax (a medication used to treat anxiety and panic disorders), as
well as medications for hypertension, hypercholesteremia, and chest
pain.29 Although Plaintiff admitted an extensive history of alcohol
and drug usage, including cocaine, methamphetamine, and cannabis,
he stated that he had not consumed alcohol in the last six months
and had not used drugs in nearly a year.30
Dr. Akhtar diagnosed Plaintiff with major depressive disorder,
anxiety disorder, alcohol dependence, and cocaine abuse.31
found him to be depressed, anxious, and irritable with appropriate
affect, goal directed thought processes, no hallucinations, no
finances, work, access to healthcare, and social environment and
See Tr. 547-48.
See Tr. 550.
See Tr. 548.
determined Plaintiff’s Global Assessment of Functioning (“GAF”) to
be fifty out of one hundred, a score at the high end of the
category for “serious symptoms . . . OR any serious impairment in
social, occupational, or school functioning.”33
The doctor ordered
laboratory and medical testing, provided Plaintiff with information
about his diagnosed disorders, and prescribed Zoloft (a medication
used to treat depression, panic attacks, and other disorders),
Atarax (a medication used in this case to treat anxiety), and
Ambien (a medication used to treat sleep disorders).34
The record does not contain any indication that Plaintiff
On August 12, 2013, without seeing Plaintiff on that
day, Dr. Akhtar wrote a letter to Plaintiff’s counsel at that time,
opining that Plaintiff was “unable to hold a job at [that] time due
to the inability to get stable.”35
Dr. Akhtar represented that
Plaintiff had been her patient for the prior nine months but had
not responded well to several different medications.36
support of her opinion that Plaintiff was unable to work, Dr.
Akhtar stated, “He remains depressed, anxious, and unable to sleep
Tr. 550-51; Diagnostic & Statistical Manual of Mental Disorders 34
(Am. Psychiatric Ass’n 4th ed. 2000)(replaced in 2013 by the fifth edition, which
abandoned the GAF scale in favor of the World Health Organization Disability
Assessment Schedule 2.0).
See Tr. 548-49.
Tr. 438, 1037, 1383.
This letter is in the record more than once.
He also has fleeting suicidal thoughts.
He is under stress
due to multiple medical and financial problems.”37
In an October 2013 diagnosis form, Dr. Akhtar carried the same
psychiatric diagnoses from her assessment nearly a year prior, as
identified psychosocial and environmental problems.38 The earliest
treatment note in the record from a routine psychiatric appointment
was a medication maintenance note from November 25, 2013.39
Akhtar stated that Plaintiff’s mood “continue[d] to stay easily
agitated” and that he was still waiting to receive disability
benefits but that the financial stress had decreased because his
wife was employed.40
He denied suicidal or violent thoughts and
reported sleeping and eating well.41
Other than marking “irritable” to describe Plaintiff’s mood
and noting limitations in his fund of knowledge and intellectual
functioning, Dr. Akhtar marked every aspect of the mental status
exam as within a normal range.42
For example, she noted that
Plaintiff’s motor activity was normal, his speech was normal, his
See Tr. 1370
See Tr. 567-70.
See Tr. 567.
See Tr. 568-69.
This record is duplicated at Tr. 1366-69.
affect was appropriate, his thought process was logical, his
attention span, concentration, insight, and judgment were all
When Dr. Akhtar saw Plaintiff for the second time, three-andone-half-months later, he reported that he was not doing well
because he had served jail time for unpaid traffic tickets and had
fought with a neighbor, noting that he tended to get in arguments
with managers and to be overprotective of his wife.44
assessed Plaintiff’s mental status as the same as the previous
appointment except that she found Plaintiff easily distracted with
a poor fund of knowledge.45
She prescribed new medications for
According to the records, Plaintiff began cognitive behavioral
therapy and case management on April 15, 2014.47 On April 23, 2014,
Plaintiff returned for medication maintenance, cognitive behavioral
therapy, and case management.48
Plaintiff reported doing well and
appeared better to Dr. Akhtar, although he remained isolated and
See Tr. 563.
See Tr. 564-65.
See Tr. 566.
See Tr. 575-76.
See Tr. 559-62, 573-74.
Dr. Akhtar adjusted Plaintiff’s medication and
indicated that the treatment plan was to continued therapy and
The treating counselor noted that he
reported an up-and-down mood and showed progress toward his goals.51
Dr. Akhtar found everything within normal limits
except for limited fund of knowledge and average intelligence; the
counselor found everything within normal limits except for fair
judgment and insight.53
On that same day, Dr. Akhtar penned a
letter “To Whom it may Concern” recommending “that [Plaintiff] not
attempt work” because he had difficulty “working due to severe
anxiety and depression which cause[d] body shaking, sweating, mood
She represented that Plaintiff had experienced
“minimal benefits” from medication trials.55
In May and June, Plaintiff received case-management services
On August 6, 2014, Plaintiff returned for medication
See Tr. 559.
See Tr. 562.
See Tr. 571.
See Tr. 560-61, 571.
Tr. 425. This letter is in the record more than once.
Tr. 437, 1038, 1039, 1384.
See Tr. 571-72.
maintenance, cognitive behavioral therapy, and case management.57
Dr. Akhtar opined that Plaintiff was very depressed due to the
denial of disability benefits and his wife’s loss of employment.58
The counselor noted that Plaintiff reported feeling irritable and
experiencing increased shaking, and the counselor observed motor
agitation and euthymic mood with congruent affect.59 In a diagnosis
form from that date, Dr. Akhtar added a diagnosis of personality
disorder, not otherwise specified, but made no other changes to the
prior diagnoses of depression, anxiety, alcohol dependence, or
She also identified the same psychosocial and
Plaintiff’s GAF score remained at fifty.61
On August 25, 2014, Plaintiff received cognitive behavioral
therapy and case management.62 After that, Plaintiff did not return
again until November 21, 2014, on which occasion he received
Dr. Akthar did not see Plaintiff that
day, but the psychiatrist who examined Plaintiff opined that he
See Tr. 974-77, 980-81.
See Tr. 974.
See Tr. 980-81.
See Tr. 972.
This diagnosis form is duplicated in the record.
See Tr. 978-79.
See Tr. 1359-63.
seemed worse, noting pressured speech and fidgetiness and recording
Plaintiff’s reports of decreased energy, sadness, irritability,
anxiety, and fast thoughts.64
On September 3, 2015, Daniel J. Fox, Ph.D., (“Dr. Fox”)
examined Plaintiff on behalf of the SSA.65
Dr. Fox reviewed
received therapy from a psychologist one to two times a month at
his home and saw a psychiatrist for medication maintenance.67
identifying his mental issues, as well as working through his mood
activities of daily living, and social functioning.69
Plaintiff, he was able to complete simple tasks, but tremors made
the tasks more difficult.70
See Tr. 1066.
See Tr. 1065-67.
See Tr. 1064-77.
See Tr. 1359.
He stated that he was not able to
See Tr. 1067.
Plaintiff’s behavior during the evaluation.71
In testing on his intellectual functioning, Plaintiff scored
in the low average range for all indices except the processing
speed index, which registered in the extremely low range.72 Dr. Fox
noted that Plaintiff’s “greatest difficulty” was “his ability to
process information in a timely and efficient manner” but opined
that “his fine motor functioning and tremors likely lowered his
scores on th[e] index and [the] result should be taken with
Dr. Fox found it likely that Plaintiff experienced
difficulty thinking and reasoning equal to his peers, particularly
in “sustaining attention, concentrating, processing visual material
information in short-term memory.”74 Plaintiff evidenced “decreased
capability for visually mediated tasks and those mediated tasks
which require[d] psychomotor speed and efficiency due to fine motor
Dr. Fox described Plaintiff as appropriate and cooperative but
tense and restless.76
See Tr. 1069.
The doctor stated that Plaintiff “appeared
comprehension, working memory, and spatial reasoning.”77
[Plaintiff] appeared to have difficulty with fine motor
coordination (i.e., tremors; difficulty gripping a pencil
and writing words) as well as gross motor coordination
Speech was interpretable but often
difficult to understand due to stuttering.
problems were observed with comprehension, though
instructions and was able to maintain working knowledge
of instructions for the duration of a subtest.78
Dr. Fox diagnosed Plaintiff with borderline intellectual
functioning, adjustment disorder with mixed anxiety and depressed
mood, and cocaine and alcohol use disorders, both in early full
According to the doctor, Plaintiff’s prognosis was
fair assuming he were able to gain access to regular physician
care, physical or occupational therapy, speech therapy, continued
psychotherapy, and pharmacological treatment.80
With regard to
Plaintiff’s residual functional capacity (“RFC”), Dr. Fox opined:
[Plaintiff] ha[d] the ability to understand, carry out,
and remember instructions for one-two step instructions
[sic], but ha[d] difficulty with complex instructions.
He is limited in his ability to sustain concentration and
persist in work-related activity at a reasonable pace and
without fatigue. He has limited interest in maintaining
social interaction with supervisors, co-workers, and the
He is currently unable to manage routine
See Tr. 1071.
pressures in a competitive work setting.81
The next psychiatric treatment note in the record was dated
September 11, 2015, approximately ten months after the last prior
On that occasion, Dr. Akhtar noted that Plaintiff
had started taking lithium and that the results were positive.83
Plaintiff reported that his mood was “even keel,” he was sleeping
well, he was less angry and depressed, he was walking about three
miles per day, and he had not experienced any “temper tantrums.”84
Plaintiff’s GAF score remained at fifty but dropped the previously
identified problem of access to healthcare.85 In the diagnosis form
that Dr. Akhtar completed on that day, she replaced Plaintiff’s
dependence/abuse with bipolar, most recent episode depression in
partial remission and most recent episode mixed without psychotic
She continued the diagnosis of personality disorder.87
Emergency Room Visits
See Tr. 1344-47.
See Tr. 1344.
See Tr. 1348.
While under the care of Dr. Akhtar, Plaintiff reported to the
emergency room five times related to Plaintiff’s inclination to
In July 2014, Plaintiff cut his left wrist but
reported that he was not experiencing suicidal ideation.88
reported being upset about the denial of disability benefits.89
Medical personnel sutured the laceration and released Plaintiff for
outpatient follow up.90
In November 2014, Valeria Contreras, M.D., (“Dr. Contreras”)
performed an emergency psychiatric evaluation of Plaintiff.91
chief complaint was that “[e]verything [was] just piling up on
[him]” and that he was experiencing the non-suicidal desire to cut
He reported feeling guilty for past substance abuse and
other past actions and feeling unable to control his urges to cut,
especially when alone.93
Plaintiff stated that his medications had
not been keeping him stable for the prior several months.94
Plaintiff further described his then-current symptoms as including
See Tr. 1396-1401.
See Tr. 1006.
See Tr. 1006-13.
See Tr. 1396; Diagnostic & Statistical Manual of Mental Disorders 34
(Am. Psychiatric Ass’n 4th ed. 2000).
auditory hallucinations featuring his name.95
Dr. Contreras opined that Plaintiff’s GAF score was 35 (in the
middle of the category for major impairment in several areas),
modified Plaintiff’s medications, and ordered an intramuscular dose
Plaintiff remained at the hospital, sleeping for
most of the day.97 Upon assessment that evening, Plaintiff reported
feeling “much better” after sleeping.98
The examining physician at
that time recorded a normal mental status examination with fair
judgment and insight and assessed Plaintiff a GAF score of fiftyfive to sixty (at the high end of the category for moderate
On three occasions in the summer of 2015, Plaintiff sought
treatment for self-inflicted arm lacerations.100
On the first
occasion, Plaintiff described feeling depressed.101
closed the wound with staples and discharged Plaintiff.102
On the second occasion, Plaintiff explained that he had “had
See Tr. 1396, 1399.
See Tr. 1399; Diagnostic & Statistical Manual of Mental Disorders 34
(Am. Psychiatric Ass’n 4th ed. 2000).
See Tr. 1400.
See Tr. 1401.
See Tr. 1114-29, 1149-55, 1212-25.
See Tr. 1219.
See Tr. 1218-19.
a bad day recently and cut himself . . . to try and get some
relief.”103 He stated that he was experiencing anxiety and sleeping
ideation, or the desire to harm himself further.104
sutured the laceration and discharged Plaintiff.105
experiencing depression, anxiety, and agitation due to financial
and housing difficulties and cut himself to relieve emotional pain,
anxiousness, and stress.106
After suturing the laceration, the
physician discharged Plaintiff.107
Application to Social Security Administration
Plaintiff first applied for disability insurance benefits and
supplemental security income in 2012, and those claims were closed
in January 2014 after the Appeals Council’s review.108
On May 5,
2014, Plaintiff again filed applications for disability insurance
benefits and supplemental security income, claiming an inability to
work since June 29, 2013, due to bypass surgery, depression,
anxiety, agoraphobia, panic attacks, coronary artery disease,
See Tr. 1150, 1152.
See Tr. 1152-53.
See Tr. 1115.
See Tr. 1121-22.
See Tr. 157, 195.
The ALJ’s decision date for Plaintiff’s 2012
applications was June 28, 2013. See id. Therefore, the earliest possible onset
date for the current applications was June 29, 2013. See Tr. 401.
hypertension, high cholesterol, and heart attack.109
On June 30, 2014, the SSA found Plaintiff not disabled at the
initial level of review.110
The medical expert who reviewed the
record and completed the physical RFC assessment found Plaintiff
capable of frequently lifting or carrying twenty-five pounds,
standing and/or walking for six hours in an eight-hour day and
sitting for six hours in an eight-hour day with no additional
The medical expert who reviewed the record and completed the
Psychiatric Review Technique and Mental RFC Assessment found that
Plaintiff did not meet the requirements of any of the listings of
the regulations112 (the “Listings”).113
With regard to Plaintiff’s
limitations, he was moderately limited only in the areas of
detailed instructions, interaction with the general public, and
interaction with supervisors and not significantly limited in any
See Tr. 156-57, 353-67, 377.
An SSA employee completed
applications for Plaintiff online on May 5, 2014. See Tr. 368.
See Tr. 165-66, 176-77, 178-79.
See Tr. 161-62, 172-73.
20 C.F.R. Pt. 404, Subpt. P, App. 1.
See Tr. 159-60, 170-71.
In the expert’s opinion, Plaintiff could “understand,
remember, carry out detailed but not complex instructions, make
decisions, attend and concentrate for extended periods[,] . . .
accept instructions[,] and respond appropriately to changes in a
routine work setting.”115
In a function report completed in July 2014, Plaintiff’s wife
reported that Plaintiff experienced shortness of breath, panic
attacks, depression, hypertension, nervous shakes, and an inability
to tolerate crowds.116
Plaintiff’s wife listed Plaintiff’s waking
activities as making coffee if the “shake[s]” were not too bad,
dressing, and watching television.117
His wife stated that she had
to remind him to feed the pets, to put on clean clothes, to tend to
his personal hygiene, and to take his medication.118
Plaintiff’s wife also reported that Plaintiff did not complete
any house or yard work, did not go outside “hardly ever,” could not
handle being around people, did not drive, did not shop, and got
upset and shaky when trying to deal with money.119
According to the
report, Plaintiff’s impairments affected every physical ability
See Tr. 162-63, 173-74.
Tr. 163, 174.
See Tr. 436.
See Tr. 439-40.
See Tr. 440-41.
understanding.120 The wife reported that Plaintiff was able to walk
no further than a few steps before requiring rest for “a long
period of time,” was able to pay attention for only a “very short
time,” and was not able to follow written or spoken instructions
In a function report completed by his wife in September 2014,
lightheadedness and described Plaintiff as having a tendency to
become upset and an inability to interact with others or follow
The wife further stated that Plaintiff became
anxious or nervous and started to shake upon going outside,
shopping, or handling money and that he did not drive for that same
Regarding his abilities, Plaintiff’s wife stated that he was
limited in all of the physical and mental activities listed due to
exhaustion but specifically identified lifting, squatting, bending,
walking, kneeling, stair climbing, remembering, completing tasks,
concentrating, following instructions, and getting along with
See Tr. 443.
See Tr. 454-58.
See Tr. 456.
Upon reconsideration of the initial denial, the SSA again
found Plaintiff not disabled.126
The medical expert who reviewed
Plaintiff capable of frequently lifting or carrying only ten pounds
but agreed with the prior RFC assessment regarding Plaintiff’s
ability to stand and/or walk and sit and regarding his lack of
limitation on pushing and/or pulling.127
She imposed additional
postural limitations not recognized at the initial level but no
The medical expert who reviewed the record and completed the
Psychiatric Review Technique and Mental RFC Assessment found that
Plaintiff did not meet the requirements of any Listing.129
assessment on understanding and memory limitations and social
interaction limitations but found that Plaintiff was moderately
limited in the one additional area: the ability to carry out
See Tr. 459.
See Tr. 193, 207-09.
See Tr. 188, 202-03.
See Tr. 188-89, 202.
See Tr. 186-87, 200-01.
detailed instructions under the category of sustained concentration
She echoed, word for word, the prior expert’s
opinion on Plaintiff’s ability with regard to detailed but not
complex instructions, decision making, attention and concentration,
instructions, and changes in work setting.131
On October 26, 2014, Plaintiff requested a hearing before an
administrative law judge (“ALJ”) of the SSA.132
The ALJ granted
Plaintiff’s request and conducted a hearing on June 11, 2015.133
However, that hearing was continued because Plaintiff appeared
without representation and the ALJ decided to allow Plaintiff an
consultative examination, which Dr. Fox conducted on September 3,
Representative form, the ALJ rescheduled the hearing for February
At the hearing, Plaintiff and his wife as well as a vocational
See Tr. 190-91, 203-05.
Compare Tr. 163, 174 with Tr. 191, 205.
See Tr. 235.
See Tr. 89-96, 244.
See Tr. 89-94.
See Tr. 94.
See Tr. 266-67.
expert, Vickie D. Colenburg (“Colenburg”), and a medical expert,
George Lazar, Ph.D., (“Dr. Lazar”), testified.137
represented by an attorney.138
When the ALJ asked Plaintiff which medication caused him to
medication used to treat schizophrenia, bipolar disorder, and, in
combination with other medication, depression), both of which he
had been taking for fewer than six months at the time of the
hearing.139 After a few other questions about Plaintiff’s past work
and past substance abuse, the ALJ turned to questioning Dr.
According to Dr. Lazar, the record reflected that, when
Plaintiff was sober and received mental health treatment, he showed
Dr. Lazar also stated that Plaintiff had relapsed
Dr. Lazar found that the most recent mental health
records indicated that Plaintiff was improving on Lithium and
explained that, whether Plaintiff’s diagnoses of bipolar disorder
See Tr. 38-88, 342, 344.
See Tr. 40.
See Tr. 41.
See Tr. 42-44.
and personality disorder met or equaled any of the disorders
“[W]ith drugs, he meets [Listing] 12.04 [(Affective
Disorders)] and [Listing] 12.06 [(Anxiety and Obsessive-Compulsive
Disorders)], but without drugs when he’s sober, he meets only
paragraph A of [Listing] 12.04 and [Listing] 12.08 [(Personality
Plaintiff’s rating was moderate in the paragraph B categories of
socialization.145 Plaintiff’s attorney argued that Dr. Lazar’s view
testimony as to whether or not [Plaintiff met] a listing, and it
even colored his testimony as to his interpretation of Dr. Daniel
Fox’s consultative evaluation.”146
Dr. Lazar and Plaintiff’s attorney discussed Dr. Fox’s report
at length, and Dr. Lazar pointed to what he believed to be errors
in Dr. Fox’s report, suggesting that the examiner “lack[ed] . . .
concentration,” was not “very familiar” with the SSA’s definitions,
or “made a mistake.”147
See Tr. 46.
Relying on Dr. Fox’s comments on processing
See Tr. 51-59.
speed, Dr. Lazar stated:
And we know that [Plaintiff] has severe tremors, and that
the examiner mentioned that his fine-motor functioning
and tremors likely lowered the scores. So that 53 maybe
does not reliably reflect his real processing speed. If
you take out the motor component, probably it would have
Upon questioning by Plaintiff’s attorney, Dr. Lazar stated
that the etiology of cutting behavior can be anger, lack of
feeling, or need for attention.149
Dr. Lazar said that the record
from the July 2014 cutting incident did not specify an etiology.150
With regard to how cutting behavior fits into the Listings, Dr.
Lazar said that individuals with borderline personality disorders
engaged in self-mutilation and that Plaintiff was diagnosed with a
Plaintiff, however, did not meet the
severity for the paragraph B criteria.152
In the course of the questioning, Plaintiff stated that
he had a herniated disc and that he experienced difficulty walking,
bending, and stooping.154
See Tr. 67.
See Tr. 67-68.
See Tr. 69-76.
Plaintiff also stated that he stopped
See Tr. 71.
using drugs and consuming alcohol on June 3, 2011, and denied a
relapse in 2015.155
Plaintiff stated that he had not driven in the prior two years
because he was unable to “focus and concentrate good enough.”156
Plaintiff stated that he slept between five and seven hours each
night and awoke to “everyday worries.”157
He added that he returned
to sleep mid-morning for about three hours.158
Plaintiff said that
his wife would ask him to take care of certain things at the house
while she was at work, but he was not always able to complete the
tasks because he would forget.159
He also stated that he had
trouble writing his name “because I’m nervous, nervousness and
In response to the question whether the shaking ever
stopped, Plaintiff said, “It seems like sometimes when I first get
up in the mornings, I’m kind of calm, you know, until the day gets
going, and go to thinking [sic].”161
Plaintiff described his
cutting behaviors in this manner:
I get -- I want so much more for my family than I’ve been
able to give, and like just worrying about things, it
manifests in me. And when I do it, it’s like I told the
See Tr. 72.
See Tr. 75.
doctor, it sounds stupid. It’s like a zone. I just need
some relief, and it gives me relief for a few seconds.
It doesn’t hurt for that little bit. It’s my way out
without having to involve anybody, anybody else, or hurt
Plaintiff’s wife followed him on the stand.163
wife testified that Plaintiff had not been the same person since he
had a heart attack, listing in particular Plaintiff’s “handling
disposition.”164 The wife confirmed that Plaintiff stopped drinking
in 2012 and that he had not used drugs or consumed alcohol since
Plaintiff’s medication negatively affected his memory, his
wife said, and she called him three to four times a day while she
was at work to inquire whether he had taken his medications and
whether he was completing the tasks she had asked him to do.166
her days off, Plaintiff’s wife said, she observed Plaintiff lying
down for three to four hours and attributed it to fatigue from the
At the conclusion of Plaintiff’s wife’s testimony, Colenburg
See Tr. 76.
See Tr. 78-79.
See Tr. 80.
See Tr. 81.
took the stand to discuss Plaintiff’s past work history and the
capability of an individual with Plaintiff’s RFC to perform those
or other jobs.168 Colenburg considered Plaintiff’s welder job to be
at a medium exertional level and skilled and his boiler maker job
to be at a heavy exertional level and skilled.169
The ALJ presented the following hypothetical individual:
Assume he had a residual functional capacity to do light
work, lift up to 20 pounds occasionally, lift and carry
up to 10 pounds frequently; stand and walk six out of
eight, sit six out of eight; no ladders, ropes, or
scaffolds. The rest of the postural limitations [would]
be frequent. Overhead reaching, reach, handle, finger,
and feel bilaterally would be frequent.
machinery or unprotected heights and open flames. Simple
work, no tandem, no team work, no pace work, and
occasional contact with coworkers and the public.170
Colenburg stated that such an individual would be able to perform
work as an office cleaner, laundry folder, non-postal mail clerk,
all of which were categorized as light and unskilled.171
adjusted the hypothetical person’s limitations to only occasional
fine motor movements with frequent gross motor movements, and
Plaintiff’s attorney asked Colenburg to “[a]ssume that the
See Tr. 82-87.
See Tr. 82.
See Tr. 83.
hypothetical individual could not complete a task in a timely
manner.”173 After Plaintiff’s attorney clarified that timely manner
meant workmanlike manner, Colenburg said that the person would not
be able to maintain competitive employment.174
In a detailed
discussion with Plaintiff’s attorney, Colenburg explained that the
three cited jobs involved “one, two, three steps but just simple,
routine work that an individual is doing constantly, every day, all
day, the same job” and that, in her opinion, a hypothetical
individual capable of one, two step tasks would be able to perform
all three cited jobs but certainly the laundry folder position.175
She also clarified that the three jobs all required gross handling
but not fine fingering.176
On October 24, 2014, the ALJ issued an unfavorable decision.177
The ALJ found that Plaintiff met the requirements of insured status
through December 31, 2016, and that Plaintiff had not engaged in
substantial gainful activity from June 29, 2013, the alleged onset
date, through the date of the ALJ’s decision.178
See Tr. 84.
See Tr. 84-85.
See Tr. 85.
See Tr. 9-31.
See Tr. 12, 14-15.
depression, anxiety, drug and alcohol abuse, obesity, and coronary
However, he found that Plaintiff’s back issue
intellectual functioning and intellectual disability were not
medically determinable impairments.180 The ALJ thoroughly discussed
Plaintiff’s medical treatment for his impairments, including Dr.
Akhtar’s notes and Dr. Fox’s evaluation.181
Concerning Dr. Akhtar, the ALJ discussed the doctor’s August
2013 and April 2014 letters and found that the opinions expressed
in those letters were conclusory and not consistent with her
underlying treatment notes and the medical record as a whole.182 He
also stated that Dr. Akhtar failed to take into consideration
psychotropic medications previously had not worked due to his
ongoing substance abuse.183
The ALJ also noted the inconsistency
between Dr. Akhtar’s generally unremarkable mental health findings
and her regular assessment of GAF scores in the range of serious
See Tr. 15.
See Tr. 15-20, 25-28.
See Tr. 19, 27-28.
As a result, the ALJ afforded Dr. Akhtar’s opinions
The ALJ found Dr. Fox’s opinions entitled to some weight with
regard to his suggested RFC but found Dr. Fox’s opinions only
partially supported by his findings and the record as a whole.186
The ALJ also noted that both Dr. Fox and Dr. Lazar questioned the
validity of the processing-speed test results because of the effect
of Plaintiff’s tremors on testing.187
The ALJ afforded significant
weight to Dr. Lazar’s opinions, finding them to be consistent with
the record as a whole.188
At the Listing step, the ALJ found that Plaintiff met the
requirements of several mental health listings “[i]n the presence
of substance abuse” but met none if the abuse were discontinued.189
Based on the ALJ’s determination that Plaintiff did not meet a
Listing when sober, the ALJ continued his analysis to the RFC step
assuming the discontinuation of substance abuse.190
See Tr. 26, 29.
See Tr. 19, 26, 27, 29.
See Tr. 20, 27-28.
See Tr. 20, 24, 28.
He found that
See Tr. 20, 27.
Tr. 16-22. Pointing out the conflicting sobriety dates reflected in
the record, the ALJ explained that, if substance abuse is a contributing factor
material to the determination, then the disability analysis is based on whether
Plaintiff would be found disabled if he discontinued the use of drugs or alcohol.
See Tr. 13, 16-17, 20, 30-31 (citing 20 C.F.R. §§ 404.1535, 416.935).
See Tr. 22.
Plaintiff, absent substance abuse, would have the RFC to perform
light work as defined in the regulations with the following
limitations: “no climbing ladders, ropes, or scaffolds; frequent
bending, stooping, kneeling, crouching, and crawling; frequent
overhead reaching, reaching, handling, fingering, and feeling
bilaterally; no exposure to moving machinery, unprotected heights,
or open flames; simple work; no tandem, teamwork, or pace work; and
occasional contact with coworkers and the public.”191
In reaching the RFC assessment, the ALJ discussed Plaintiff’s
testimony, his wife’s reports and testimony, and Dr. Lazar’s
particularly relied on Dr. Lazar’s testimony that Plaintiff showed
improvement when sober and when taking Lithium, and that, although
Plaintiff experienced moderate limitations in activities of daily
living, social functioning, and concentration, persistence, or
pace, he experienced no episodes of decompensation and was capable,
managing routine pressures in a competitive setting.193
The ALJ found Plaintiff unable to perform his past relevant
work of welder and boiler maker based on the vocational testimony
See Tr. 23-24.
at the hearing.194
Because the ALJ found Plaintiff unable to
consideration of whether there were a significant number of jobs in
the national economy that Plaintiff could perform.195
Colenburg’s response to the ALJ’s hypothetical question asking
whether a person with Plaintiff’s age, education, work experience,
and RFC could perform any such job, the ALJ stated that he found
Plaintiff capable of performing the requirements of the unskilled
occupations of office cleaner, laundry folder, and non-postal mail
Plaintiff appealed the ALJ’s decision, and, on May 19, 2016,
the Appeals Council denied Plaintiff’s request for review.198
Appeals Council’s ruling transformed the ALJ’s decision into the
final decision of the Commissioner.199
After receiving the Appeals
Council’s denial, Plaintiff sought judicial review of the decision
by this court.200
Standard of Review and Applicable Law
See Tr. 29.
See Tr. 30.
See Tr. 31.
See Tr. 1-3, 5-6.
See Doc. 1, Pl.’s Orig. Compl.
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
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving he is disabled within the meaning of the
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
the applicable legal standard, a claimant is disabled if he is
unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment. . . which
has lasted or can be expected to last for a continuous period of
not less than twelve months.”
42 U.S.C. § 423(d)(1)(a); see also
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 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
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 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 he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform his previous work as a
result of his impairment, then factors such as his age,
education, past work experience, and [RFC] must be
considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see 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.
Greenspan, 38 F.3d at 236.
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.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).
It is “something more than a
scintilla but less than a preponderance.”
has the responsibility of deciding any conflict in the evidence.
If the findings of fact contained in the Commissioner’s
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
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
Brown v. Apfel, 192 F.3d 492, 496 (5th
In other words, the court is to defer to the decision
of the Commissioner as much as is possible without making its
Plaintiff requests judicial review of the ALJ’s decision to
decision contains the following errors: (1) failure to properly
evaluate Dr. Akhtar’s opinion; and (2) failure to consider in
developing the RFC all limitations resulting from Plaintiff’s fine
motor functioning and tremors.
Defendant argues that the ALJ’s
decision is legally sound and is supported by substantial evidence.
The ALJ Properly Evaluated Dr. Akhtar’s Opinion
The ALJ must evaluate every medical opinion in the record and
decide what weight to give each.
See 20 C.F.R. §§ 404.1527(c),
The ALJ is required to give good reasons for the
SSR 96-2p, 1996 WL 374188, at *5
(July 2, 1996).
When the determination or decision . . . is a denial[,]
. . . the notice of the determination or decision must
contain specific reasons for the weight given to the
treating source’s medical opinion, supported by the
evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.
SSR 96-2p, 1996 WL 374188, at *5.
The regulations require that, when a treating source’s opinion
on the nature and severity of a claimant’s impairments “is wellsupported
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record,” it is to be given
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
SSR 96-2p, 1996 WL 374188, at *1.
When the ALJ does not give a treating physician’s opinion
factors to determine the weight to give the opinion: (1) the
“[l]ength of the treatment relationship and the frequency of
relationship;” (3) the relevant medical evidence supporting the
opinion; (4) the consistency of the opinion with the remainder of
the medical record; and (5) the treating physician’s area of
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
However, the ALJ is only required to consider these factors in
deciding what weight to give a medical source opinion; he is not
required to record in writing every step of the process. 20 C.F.R.
§§ 404.1527(c), 416.927(c) (“Unless we give a treating source’s
opinion controlling weight . . . we consider all of the following
Plaintiff acknowledges that a treating physician’s opinion “as
to whether a claimant has the ability to work is a finding reserved
to the Commissioner.”201
However, Plaintiff submits that Dr. Akhtar’s advisory,
based on her long history of treating with Plaintiff,
that Plaintiff ‘should not attempt to work’ is a medical
indication that working may cause Plaintiff’s condition
to worsen. Thus, it is not a finding as to Plaintiff’s
‘disability,’ but, instead, it is more akin to prescribed
medical treatment by a physician.
As this Court is
aware, the regulations will find a claimant’s failure to
follow prescribed medical treatment to be grounds for
finding a claimant is not disabled. Here, however, by
finding that Plaintiff is not disabled, the Commissioner
is essentially requiring the claimant to not follow the
advice of her treating psychiatrist.202
While admittedly clever, Plaintiff’s artificial conundrum is wholly
Dr. Akhtar’s opinion expressed in the April 2014 letter “To
Whom it may Concern” is not even arguably a “prescribed medical
treatment” and, by its own wording, was not directed to Plaintiff
at all.203 Nothing in Dr. Akhtar’s medication maintenance note from
that day reflected that part of Plaintiff’s treatment plan was to
“not attempt work.”204
In fact, Dr. Akhtar’s recorded treatment
Doc. 19, Pl.’s Mot. for Summ. J. p. 6 (emphasis in original)(citing
20 C.F.R. § 404.1527).
Id. pp. 6-7 (emphasis in original).
Id. p. 7; Tr. 425.
plan was to continue therapy and medication maintenance.
Plaintiff also contends that the ALJ failed to provide the
required detailed analysis of Dr. Akhtar’s opinion.
evidences a misinterpretation of the legal requirements and a
misreading the ALJ’s decision.
As explained above, when an ALJ is
regulations when giving a treating physician’s opinion less than
controlling weight. See 20 C.F.R. §§ 404.1527(c), 416.927(c). The
ALJ is only required to give good reasons that are sufficiently
specific for subsequent reviewers to understand the weight given
and the reasons for the weight given a treating physician’s
See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-
2p, 1996 WL 374188, at *5.
Here, the ALJ did discuss the weight that he gave to Dr.
Akhtar’s opinion, specifically noting that her failure to consider
Plaintiff’s substance abuse or his admission that prior medication
trials had failed due to substance use supported his decision to
afford Dr. Akhtar’s opinion less than controlling weight.
added that Dr. Akhtar’s records reflected essentially normal mental
status exams; yet, she, throughout her treatment, she did not
change Plaintiff’s GAF score to reflect his level of functioning.205
Based on these observations, the ALJ determined that the doctor’s
Even when Dr. Akhtar noted positive results from Lithium, a level
mood, improved sleep, decreased anger and depression, and increased exercise, she
did not improve Plaintiff’s GAF score. See Tr. 1344-47.
opinion regarding Plaintiff’s inability to work was not supported
by medical evidence that demonstrated a complete inability to work.
The court further notes that the record reflects no treatment
by Dr. Akhtar between when she first evaluated Plaintiff in
November 2012 and the August 2013 letter she wrote opining that
Plaintiff was “unable to hold a job.”206
The initial evaluation
cannot be said to support that conclusion and neither can nine
months without treatment.
At the time of that letter, Dr. Akhtar
could not have been considered even a treating physician as she had
seen Plaintiff only once.
Her representation in the letter that
Plaintiff had not responded well to several medications clearly did
not emanate from her own treatment of Plaintiff because no record
indicates that she prescribed various medication trials.
the representation appears to be based on Plaintiff’s admission to
Dr. Akhtar at the evaluation that several medications had not
worked due to his alcohol use.
Without a doubt, the ALJ fulfilled his obligations to evaluate
Dr. Akhtar’s opinion and to express good reasons for the weight the
ALJ afforded it.
Plaintiff suggests that Dr. Akhtar’s opinion on Plaintiff’s inability to
maintain employment is consistent with Dr. Fox’s opinion that Plaintiff was
unable to manage routine pressures in a competitive work setting. While the
court finds that Plaintiff is reading more into the two doctors’ opinions in
order to find mutual support, the court notes that, regardless, Dr. Fox’s opinion
is directly contradicted by the medical expert initially reviewing Plaintiff’s
application. See Tr. 163, 174. The ALJ is tasked with resolving all conflicts
The ALJ Considered All Limitations Supported by the Record
A claimant’s RFC is his remaining ability to work despite all
of the limitations resulting from his impairment. See 20 C.F.R. §§
404.1545(a); 416.945(a). In reaching a decision on RFC, the ALJ is
individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001)(quoting
SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)).
responsibility for determining this issue lies with the ALJ.
C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Taylor v. Astrue, 706 F.3d
600, 602-03 (5th Cir. 2012).
Plaintiff argues the ALJ failed to incorporate the effects of
Plaintiff’s difficulty with fine motor functioning and tremors into
the RFC, stating that Dr. Fox, Dr. Lazar, and the ALJ found:
“psychological testing indicating that Plaintiff ha[d] extremely
low processing speed [was] likely affected by his limitations in
fine motor functioning and tremors.”207
Putting it in other terms,
Plaintiff proffers that “the doctors and ALJ [found] that, but for
Plaintiff’s tremors, Plaintiff’s processing speed may have been
Doc. 19, Pl.’s Mot. for Summ. J. p. 8.
In actuality, the opinions of both Dr. Fox and Dr. Lazar did
not take the position that Plaintiff’s fine motor functioning and
tremors lowered his processing speed but that the test results were
possibly skewed because those limitations interfered with the
testing of processing speed.
So, Plaintiff’s argument rests on an
improper premise, to wit, that the fine motor limitations and
tremors lowered his processing speed.
They may have lowered his
test score, not his processing speed, meaning that Plaintiff’s
processing speed may actually have been faster than the results
Dr. Fox and Dr. Lazar agreed that the results were not
Plaintiff also argues that his fine motor limitation prevented
performing any of the jobs cited.
Plaintiff cites the Dictionary
of Occupational Titles as including frequent handling for all three
identified job titles.
limitations in that he had difficulty gripping a pencil and writing
words and that Plaintiff experienced tremors, but the only observed
difficulty with gross motor coordination was a limp.
Fox’s opinion, the ALJ did not include fine motor limitations in
However, at the hearing, the ALJ modified his
initial hypothetical person’s limitations to only occasional fine
motor movements and frequent gross motor movements, which is
consistent with Dr. Fox’s opinion.
Colenburg responded that such a person could perform the work
of office cleaner, laundry folder, non-postal mail clerk with those
vocational expert “is familiar with the specific requirements of a
particular occupation, including working conditions and attributes
and skills needed.”
See Carey, 230 F.3d at 145 (quoting Fields v.
Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986). Colenburg’s description
supported by the record, provides substantial evidence in support
exclusion of a fine motor limitation from his final RFC to be
To the extent the ALJ erred in not including a limitation to
occasional fine motor functioning, the error was harmless as the
determination of non-disability was supported by the vocational
The ALJ’s Decision is Affirmed
The decision finding Plaintiff not disabled is
supported by substantial record evidence.
Therefore, the ALJ’s
decision is affirmed.
Based on the foregoing reasons, the court DENIES Plaintiff’s
motion and GRANTS Defendant’s motion.
SIGNED in Houston, Texas, this 29th day of September, 2017.
U.S. MAGISTRATE JUDGE
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