Joseph v. Colvin

Filing 15

MEMORANDUM AND OPINION granting in part, denying in part 10 MOTION for Summary Judgment , denying 11 Cross MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
October 18, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
NANCY A. BERRYHILL,1
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§

David J. Bradley, Clerk

DONNELL JOSEPH,

CIVIL ACTION NO. H-16-2892

MEMORANDUM OPINION
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment

(Doc.

10)

Judgment (Doc. 11).

and

Defendant’s

Cross-Motion

for

Summary

The court has considered the motions, the

responses, the administrative record, and the applicable law.

For

the reasons set forth below, Plaintiff’s motion is GRANTED IN PART
AND DENIED IN PART and Defendant’s motion is DENIED.
I.

Case Background

Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for
judicial review of an unfavorable decision by the Social Security
Administration (“SSA”) Commissioner (“Commissioner” or “Defendant”)
regarding Plaintiff’s claim for disability insurance benefits under

1

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).
2
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. 9, Ord. Dated
Jan. 9, 2017.

Title II of the Social Security Act (“the Act”).
A.

Medical History
Plaintiff was born on December 8, 1967, and was forty-six

years old on the alleged disability onset date of November 3,
2014.3

Plaintiff, who graduated from high school, served in the

United States Army from August 1986 to January 2008 and worked as
a letter carrier for the United States Postal Service (“USPS”) from
November 2008 to November 2014.4

The medical records generally

support a history of treatment for back pain and depression
preceding the alleged onset date and continuing thereafter.5
Prior to the alleged onset date, Jennie Hall, M.D., (“Dr.
Hall”) managed Plaintiff’s mental health treatment on an ongoing,
outpatient basis.6

Within two weeks after the alleged onset date,

Dr. Hall saw Plaintiff for medication management and individual
psychotherapy.7 Plaintiff reported being in a “good mood.”8 At the
time, he stated that he had recently left the USPS and had been
awarded disability benefits through the Department of Veterans

3

See Tr. of the Admin. Proceedings (“Tr.”) 209.

4

See id.

5

See, e.g., Tr. 339-40, 358-83, 420, 425-52, 455-511, 515-27, 649-68,
680-83, 695-705, 730-38, 742-61.
6

See, e.g., Tr. 437-52, 495-502, 521-27.

7

See Tr. 387-97.

8

Tr. 390-91.

2

Affairs (“VA”) for a 100-percent service-connected disability.9 He
also stated that he supported himself through his VA benefits and
by occasionally working part time.10
The results of the mental status examination were within
normal limits with fair insight and judgment.11

Dr. Hall recorded

Plaintiff’s most recent Global Assessment of Functioning (“GAF”)
score from August 2014, which the doctor determined to be sixtyfive out of one hundred, a score that falls in the middle of the
category for “Some mild symptoms. . . OR some difficulty in social,
occupational, or school functioning . . . but generally functioning
pretty well, has some meaningful interpersonal relationships.”12
Dr. Hall diagnosed Plaintiff with major depressive disorder, which
she opined was stable.13
imminent

risk

for

The doctor found Plaintiff to be at a low

suicide.14

Dr.

Hall

adjusted

Plaintiff’s

psychotropic medication and scheduled him for another appointment

9

See Tr. 391.

10

See id.

11

See Tr. 393.

12

Id.; 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).
As of the date of this appointment Plaintiff had maintained a GAF score of
sixty-five for more than a year. See, e.g., Tr. 449, 500, 526, 540.
13

See Tr. 393.

14

See Tr. 393-95.

3

three months later.15
As reflected in the medical records, Plaintiff attended five
more

medication

management

and

individual

psychotherapy

appointments with Dr. Hall from February 13, 2015, to February 18,
2016.16 At these appointments, Plaintiff routinely reported “making
it” or “hanging in there.”17

On more than one occasion, he

explicitly acknowledged that the medications were working, and he
never reported experiencing medication side effects, specifically
denying that he experienced any on at least one occasion.18
Plaintiff discussed with Dr. Hall efforts “to adjust to a more
‘retired’ life,” to overcome boredom, and to occupy his time and
reported that he stayed close to home but gets out occasionally to
visit family.19

At his February 2015 appointment, he reported

relying fully on the VA benefits for support.20

At his August 2015

and February 2016 appointments, Plaintiff said that his mood was
fluctuating more.21
Dr. Hall made adjustments to Plaintiff’s medications at four

15

See Tr. 395-96.

16
See Tr. 649-68, 695-704, 730-38, 753-61.
The notes from the
appointment on March 27, 2015, are duplicated in the record. See Tr. 761-71.
17

See Tr. 652, 662, 731, 754, 696.

18

See Tr. 731, 754.

19

See Tr. 652, 662, 754.

20

See Tr. 662.

21

See Tr. 696, 731.

4

of the five appointments.22

The mental status examinations were

consistent and, on the whole, within normal limits.23

Dr. Hall

noted that Plaintiff’s mood was euthymic on three occasions,
dysthymic on one occasion, and depressed on one occasion when she
also noted a bland affect.24

At every appointment, Dr. Hall

ascertained that Plaintiff’s insight and judgment were fair, that
his GAF was 65, that his depression was stable, and that he was at
a low risk for suicide.25
B.

Application to SSA
Plaintiff applied for disability insurance benefits on January

22, 2015, claiming an inability to work since November 3, 2014, due
to major depressive disorder, degenerative joint and disc disease,
sleep

apnea,

syndrome,

cluster

Reiters

migraine

headaches,

Syndrome

(reactive

bilateral

dry

arthritis),

eye
and

gastroesophageal reflux disorder.26
On February 27, 2015, the SSA found Plaintiff not disabled at
the initial level of review.27 On July 8, 2015, the SSA again found

22

See Tr. 651, 655, 661, 666, 698-99, 734, 737.

23

See Tr. 654-55, 664, 698, 733, 756.

24

See Tr. 654, 664, 698, 733, 756.

25

See Tr. 655-56, 664-666, 698-700, 733-34, 756-58.

26

See Tr. 209, 244.

27

See Tr. 94-105.

5

Plaintiff not disabled upon reconsideration.28 Plaintiff requested
a hearing before an administrative law judge (“ALJ”) of the SSA.29
The ALJ granted Plaintiff’s request and scheduled the hearing on
April 19, 2016.30
Prior to the hearing, Plaintiff submitted the VA’s disability
decision on Plaintiff’s claim for increased disability evaluation.31
The letter attached to the Rating Decision was dated January 20,
2016, and notified Plaintiff that the VA increased the disability
percentage of one service-connected condition.32

That condition —

Reiter’s syndrome with degenerative joint and disc disease of the
lumbosacral spine — carried a new disability percentage of twenty
percent.33
The VA did not change the disability percentages assigned to
ten

other

Plaintiff.34

service-connected

medical

conditions

claimed

by

Those conditions and the assigned percentages were:

major depressive disorder and insomnia disorder (70%); sleep apnea
with continuous positive airway pressure (CPAP) machine (50%);
cluster migraine headaches (30%); Reiter’s syndrome of the left hip
28

See Tr. 106-18.

29

See Tr. 133-34.

30

See Tr. 32-86, 147-52.

31

See Tr. 773-88.

32

See Tr. 773.

33

See id.

34

See Tr. 774.

6

(10%); Reiter’s syndrome of the right hip (10%); gastroesophageal
reflux disorder (10%); right ankle Achilles tendon rupture (10%);
left leg radiculopathy (10%); degenerative disc and joint disease
of the cervical spine (10%); and right ankle scars (0%).35

The

letter further stated:
Entitlement to individual unemployability is denied
because you are not found to be incapable of gainful
employment
based
on
a
single
service-connected
disability.
. . . .
Your overall or combined rating remains at 100%. We do
not add the individual percentages of each condition to
determine your combined rating. We use a combined rating
table that considers the effect from the most serious to
the least serious conditions.36
The attached Rating Decision explained the VA’s findings in
detail.37

Particularly relevant to the pending motions, the Rating

Decision explained the above statement regarding entitlement to
individual unemployability:
As your overall combined evaluation is 100 percent,
additional benefits would only be payable if you were
found to be unemployable based on a single disability,
with additional disabilities combined to 60 percent. In
this case, your unemployability would be caused by all of
your service[-]connected disabilities.
Therefore,
additional benefits based on individual unemployability
can not [sic] be established.38

35

Id.

36

Id.

37

See Tr. 780-88.

38

Tr. 787.

7

The Rating Decision was based, in part, on the report of a November
2015 examination by Rebekah L. Harris, Ph.D., (“Dr. Harris”).39
During the interview, Plaintiff said that he could not sit, stand,
or lie down for too long because of pain, that he suffered migraine
headaches three to five times a week that were relieved by lying in
a dark place for about two hours, and that he had “bad depression”
that was always present.40

He also indicated that he could no

longer handle the stress at his USPS job and had to quit.41

He

reported that both the medications and the psychotherapy were
helping.42
Dr.

Harris

performed

no

testing

Plaintiff’s digital VA folder.43
diagnosis

as

distress,

“Persistent

with

persistent

herself

but

reviewed

The doctor listed Plaintiff’s

Depressive
major

Disorder,

depressive

secondary to Reiter’s Syndrome/chronic pain.”44

with

anxious

episode,

severe,

Dr. Harris opined

that Plaintiff’s resulting occupational and social impairment
included

deficiencies

in

the

areas

of

work,

relations, judgment, thinking, and/or mood.45
39

See Tr. 781, 791-97.

40

Tr. 794.

41

See id.

42

See id.

43

See Tr. 793, 796.

44

Tr. 791.

45

Tr. 793.

8

school,

family

She further opined

that

depression/insomnia

and

chronic

pain

worked

together

to

produce the occupational and social impairments.46
C.

Hearing
At the hearing, Plaintiff, a physical medical expert, a mental

medical expert, and a vocational expert testified.47

Plaintiff’s

attorney mentioned the VA’s disability rating, noting that seventy
percent was attributable to depression and arguing that a seventypercent restriction “appear[ed] to be inconsistent with . . . being
able to maintain employment on a sustained basis.”48

The ALJ

responded, “Maybe, it would not be any new evidence.”49
The attorney solicited information from Plaintiff about his
education, work history, physical and mental conditions, treatment,
and limitations.50 The questioning about Plaintiff’s conditions and
resulting limitations focused on depression and insomnia, although
it also covered Plaintiff’s other conditions, including back pain
and migraine headaches.51
Albert Oguejiofor, M.D., (“Dr. Oguejiofor”) appeared as the

46

See id.

47

See Tr. 32-86.

48

See Tr. 34-35.

49

Tr. 35.

50

See Tr. 40-56.

51

See id.

9

medical expert for physical impairments.52

He testified that

Plaintiff suffered from chronic low back pain and other non-severe
physical impairments and opined that Plaintiff did not meet or
equal Listing53 1.04 for disorders of the spine for spinal disorders
and

was

capable

of

medium

work

without

additional

physical

restrictions.54
Glenn F. Sternes, Ph.D., (“Dr. Sternes”) appeared as the
medical

expert

Plaintiff’s

for

mental

diagnosis

was

impairments.55
major

depressive

He

testified

disorder

but

that
that

Plaintiff did not meet Listing 12.04 for affective disorders.56
According to Dr. Sternes, Plaintiff was capable of simple, detailed
instructions but not complex ones and was limited to occasional
contact with supervisors, coworkers, and the public.57

Dr. Sternes

also opined that chronic pain would interfere with Plaintiff’s
ability to maintain pace and ability to concentrate and that
Plaintiff, based on his own testimony, could miss up to three days
a month due to migraine headaches.58

52

See Tr. 58.

53

The regulations contain a list of disorders that are considered
See 20 C.F.R. Pt. 404, Subpt. P, App. 1.

disabling.
54

See Tr. 58-59.

55

See Tr. 64.

56

See Tr. 65.

57

See Tr. 66, 78.

58

See Tr. 67.

10

The ALJ asked Dr. Sternes to what degree he agreed with the
VA’s Rating Decision:
Q[:] And it sounds like you may be disagreeing to some
extent with that. And if you do, I would like to know
why and if you don’t, you know, you are good to say,
well, this is more of a onetime thing or something. I
don’t know what it is.
A[:] I think we are in the ball park [sic] here.59
The ALJ explained that he had not yet read the VA’s Rating Decision
or Dr. Harris’s examination report.60
Plaintiff’s attorney inquired whether Dr. Sternes was familiar
with

VA

standards

and

knew

the

meaning

of

the

percentages

associated with Plaintiff’s various impairments.61 Dr. Sternes said
that he was not and did not.62

The attorney also asked if Dr.

Sternes agreed that the evidence supported the VA’s conclusion that
Plaintiff experienced “[n]ervous continuous depression affecting
the

ability

to

effectively.”63

function

independently,

appropriately

Dr. Sternes answered, “I would say.”64

and

The ALJ

asked if, by that answer, Dr. Sternes was indicating a change his
assessment of Plaintiff’s residual functional capacity (“RFC”), to

59

Tr. 68.

60

See Tr. 69.

61

See Tr. 72.

62

See id.

63

Tr. 75.

64

Id.

11

which Dr. Sternes answered that he was not.65
Charles

R.

Poor

(“Mr.

Poor”),

the

vocational

expert,

considered Plaintiff’s past relevant work as a letter carrier to be
at a medium exertional level and semi-skilled.66
that,

despite

Plaintiff’s

physical

and

Mr. Poor opined

mental

Plaintiff could continue to perform that job.67
without

posing

a

hypothetical

question

listing

limitations,
Nevertheless,
all

of

the

limitations that the ALJ found supported by the record, the ALJ
asked the vocational expert to cite other types of jobs represented
in sufficient numbers in the regional and national economies that
Plaintiff could perform.68

Mr. Poor listed warehouse worker, store

laborer, and industrial cleaner at the medium, unskilled level and
photocopy machine operator and laundry classifier at the light,
unskilled level.69

Regarding remaining on task and attending work,

Mr. Poor stated that Plaintiff would need to remain on task eighty
percent of the time and not be absent more than two days per
month.70
D.

Commissioner’s Decision

65

See Tr. 76.

66

See Tr. 76-77.

67

See Tr. 77-78.

68

See Tr. 79-80.

69

See Tr. 80-81.

70

See Tr. 81.

12

On June 6, 2016, the ALJ issued an unfavorable decision.71 The
ALJ found that Plaintiff met the requirements of the insured status
through December 31, 2018, and that Plaintiff had not engaged in
substantial gainful activity from November 3, 2014, through the
dated of the ALJ’s decision.72
The ALJ recognized the following impairments as severe: lumbar
spine degenerative disc disease and major depressive disorder.73
However, he found that, although Plaintiff had been diagnosed with
and received treatment for hypertension, migraine headaches, and
obstructive sleep apnea, these impairments were not severe singly
or in combination.74
The ALJ thoroughly discussed Plaintiff’s medical treatment for
his impairments, including the information from Dr. Hall and Dr.
Harris.75

Regarding

Dr.

Hall’s

treatment

notes,

the

ALJ

acknowledged the diagnosis of “major depressive disorder with
symptoms of low energy, fluctuating moods, and sleep disturbance.”76
The ALJ stated that Dr. Hall prescribed psychotropic medications
and psychotherapy sessions and noted that Plaintiff’s depression

71

See Tr. 11-27

72

See Tr. 16-17.

73

See Tr. 17.

74

See id.

75

See Tr. 17-22.

76

Tr. 20.

13

was stable and that Plaintiff reported that the medications helped
and his mood was under control.77
The ALJ also addressed Dr. Harris’s examination report.78

The

ALJ summarized Dr. Harris’s opinions about Plaintiff’s occupational
and social impairments resulting from his mental health disorders,
but the ALJ concluded that her opinions “appear[ed] to be based
primarily on [Plaintiff’s] subjective complaints” because they were
inconsistent with the treatment records.79 Therefore, the ALJ found
Dr. Harris’s opinions to be entitled to “little probative value” in
the context of SSA definitions of disability.80
Additionally, the ALJ addressed the VA’s disability rating,
acknowledging the VA’s rating of 100-percent disability.81

The ALJ

stated that the rating was not binding in determining disability
under SSA rules because of the difference in the criteria applied.
Explaining that his decision was based on the objective evidence in
the medical record and the hearing testimony, the ALJ further
stated, “[D]espite the VA finding of 100% service[-]connected
disability, documentation from the Department of Veterans Affairs
specifically states that [Plaintiff] has not been found to be

77

See id.

78

See Tr. 22.

79

Id.

80

Id.

81

See id.

14

incapable of gainful employment.”82
At the third step, the ALJ found that Plaintiff did not have
an impairment or a combination of impairments that met or medically
equaled the severity of any Listing.83

The ALJ specifically

discussed Listing 1.04 and Listing 12.04.84
In reaching the RFC assessment, the ALJ discussed various
aspects of the evidence, including the testimony of Plaintiff, Dr.
Oguejiofor, and Dr. Sternes.85 Regarding Plaintiff’s testimony, the
ALJ found that the objective clinical findings did not support
Plaintiff’s “alleged symptoms or functional limitations” because
the evidence showed “no neurological deficits, no significant
orthopedic abnormalities, and no serious dysfunction of the bodily
organs that would preclude a limited level of medium work.”86
Concerning depression, the ALJ found “no evidence of psychotic
symptoms, suicidal ideation, or serious deficits in memory or
concentration that would preclude simple and detailed work.”87
Listing six psychiatric appointments from November 2014 to February
2016 at which the results of the mental status examinations were

82

Tr. 22 (citing the VA’s disability decision).

83

See Tr. 17.

84

See Tr. 17-19.

85

See Tr. 18-24.

86

Tr. 21.

87

Id.

15

unremarkable, a November 2014 appointment at which Plaintiff denied
depression, and a comment to Dr. Hall that he was bored at home,
the ALJ found Plaintiff’s testimony as to the severity of his
symptoms to be inconsistent with the medical records.88
In

contrast,

the

ALJ

afforded

“great

weight”

to

Dr.

Oguejiofor’s testimony on Plaintiff’s physical impairments.89

The

ALJ discussed Dr. Oguejiofor’s testimony and the evidence on which
he based his opinion. The ALJ found Dr. Oguejiofor’s opinion to be
supported

by

the

medical

record

and

adopted

the

doctor’s

recommendation that Plaintiff could perform medium work with no
additional physical limitations.90
The ALJ held a similar opinion of Dr. Sternes’ testimony,
affording it “great weight” as well.91

In support of the weight

given, the ALJ explained that Dr. Sternes was able to review the
medical record, to hear Plaintiff’s testimony, and to observe the
Plaintiff in person, which allowed the medical expert to resolve
any inconsistencies in the record.92

The ALJ elaborated on Dr.

Sternes’ opinion and the supporting medical evidence cited by Dr.

88

See Tr. 21-22.

89

Tr. 23.

90

See Tr. 22-23.

91

Tr. 23.

92

See Tr. 23-24.

16

Sternes.93

The ALJ stated about the medical expert’s testimony:

As to concentration, persistence, or pace, [Plaintiff]
would have difficulty maintaining pace. [Plaintiff’s]
decreased concentration would prevent him from performing
assembly line work. As to the opinion [of Dr. Harris],
Dr. Stearns [sic] opined he and the [sic] Dr. Harris were
in the “ballpark.” On cross-examination, [Plaintiff’s]
representative [asked] if mild memory loss could cause an
individual to be off task for 25% of the time.
Dr.
Stearns [sic] stated 25% of the time would amount to two
hours off task in an 8-hour day, which sounded high. Dr.
Stearns [sic] stated the increase in time off task would
likely correlate with stress on the job. With regards to
evidence that [Plaintiff’s] depression and anxiety
interfered with his ability to function independently and
appropriately, Dr. Stearns [sic] stated that he agreed
with this statement but he declined to amend his [RFC].94
The ALJ adopted Dr. Sternes’ RFC assessment on Plaintiff’s mental
limitations.95
The ALJ concluded that Plaintiff was capable of performing
medium

work

with

simple

or

detailed

instructions

with

the

additional limitations of never being a member of a team, only
occasional contact with the public not as a component of the job,
and occasional contact with supervisors and coworkers.96

Based on

Mr. Poor’s testimony, the ALJ found Plaintiff capable of performing
his past work as letter carrier.97
However, the ALJ decided, based on the cross-examination of

93

Id.

94

Tr. 23.

95

See Tr. 19, 23.

96

Tr. 19.

97

See Tr. 24.

17

Mr. Poor, to inquire whether there were other jobs more suitable
for Plaintiff.98

The ALJ relied on Mr. Poor’s response to that

inquiry in which he identified four representative occupations that
Plaintiff RFC could perform: warehouse worker, industrial cleaner,
photocopy machine operator, and laundry classifier.99

The ALJ also

cited Mr. Poor’s answer to the additional inquiries about remaining
on task and missing work and found that the record supported
Plaintiff’s ability to meet the minimum requirements that Mr. Poor
gave for employability.100

Therefore, the ALJ found that Plaintiff

was not disabled from the alleged onset date through the date of
the decision.101
Plaintiff appealed the ALJ’s decision and submitted a letter
dated August 18, 2016, from Dr. Hall.102

Dr. Hall’s letter stated:

[Plaintiff] has been under my care for Major Depressive
disorder, along with anxiety symptoms, and is treated
with medication management and individual supportive
psychotherapy at least once each quarter. He suffers
from depressed and anxious mood, low energy and
motivation, poor concentration, with feelings of
helplessness and hopelessness. He also has intermittent
suicidal ideation, but has no current ideation, intent or
plan.
Despite his compliance with all aspect[s] of
treatment, [Plaintiff] continues to have persistent mood
and anxiety symptoms. His symptoms have affected him in
the workplace, such that he has been unable to gain or

98

See Tr. 24-25.

99

See Tr. 25-26.

100

See Tr. 26.

101

See Tr. 27.

102

See Tr. 9-10.

18

maintain employment in the past 2 years.
At this
point[,] due to the persistence and severity of his
illness, it is my professional opinion that he is
permanently disabled and unemployable.103
On August 31, 2016, the Appeals Council denied Plaintiff’s
request for review because it “found no reason under [the] rules to
review the [ALJ’s] decision.”104

The Appeals Council explicitly

stated that it considered both Plaintiff’s arguments for reversal
of the ALJ’s decision and the newly submitted medical source
statement from Dr. Hall, as well as whether the ALJ’s “action,
findings, or conclusion” was contrary to the weight of evidence.105
The Appeals Council’s ruling transformed the ALJ’s decision into
the final decision of the Commissioner.106

After receiving the

Appeals Council’s denial, Plaintiff sought judicial review of the
decision by this court.107
II.

Standard of Review and Applicable Law

The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports the
decision.

Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).

103

Tr. 800.

104

See Tr. 1-4.

105

See Tr. 2.

106

Tr. 1.

107

See Doc. 1, Pl.’s Orig. Compl.

19

A.

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

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

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

Under

the applicable legal standard, a claimant is disabled if 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).

The

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
“substantial

gainful

activity,”

the

regulations

provide

that

disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
matter what the medical findings are; (2) a claimant will
not be found to be disabled unless 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
20

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. § 404.1520.

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.
B.

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

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

Carey v. Apfel, 230

It is “something more than a

scintilla but less than a preponderance.”

Id.

The Commissioner

has the responsibility of deciding any conflict in the evidence.
Id.

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
overturn it.
1988).

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

In applying this standard, the court is to review the

entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Commissioner’s judgment.
Cir. 1999).

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

In other words, the court is to defer to the decision

21

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

Id.
III. Analysis

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

In his motion, Plaintiff asserts that

the ALJ’s decision contains the following errors: (1) failure to
give any weight to the VA’s disability rating; (2) failure to
follow the regulations, which prejudiced Plaintiff; and (3) failure
to give any weight to Dr. Hall’s August 2016 letter.

Defendant

argues that the ALJ followed the correct legal standards, and his
decision is supported by substantial evidence.
A.

The VA’s Disability Rating and Prejudice
The VA and the SSA are governmental agencies that separately

administer programs to provide disability benefits.

Compare 38

C.F.R. §§ 4.1-4.31 (explaining the VA’s procedures for rating
disabilities), with 20 C.F.R. §§ 404.1501-404.1599 (explaining the
SSA’s procedures for determining disability).
different criteria in analyzing disability.

The programs employ
See Chambliss v.

Massanari, 269 F.3d 520, 522 (5th Cir. 2001).
Although a disability determination by another governmental
agency is not binding on the SSA, such a determination “is evidence
that is entitled to a certain amount of weight and must be
considered by the ALJ.”

Id.; see also 20 C.F.R. § 404.1504

(discussing disability determinations by other organizations and
22

governmental

agencies).

Generally,

because

a

VA

rating

specifically makes a finding on disability, it, “like a physician’s
finding, constitutes evidence ‘entitled to great weight.’”

See

Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994) (quoting
Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir. 1981)).

An ALJ

may discount a VA rating only if valid reasons are cited.

See

Chambliss, 269 F.3d at 522 (“ALJs need not give ‘great weight’ to
a VA disability determination if they adequately explain the valid
reasons for not doing so.”).
Here, the ALJ took “notice” of the VA’s disability rating in
his opinion and remarked that it was not binding on the SSA.108

As

the reason for rejecting the VA’s disability rating, the ALJ cited
the VA’s finding that Plaintiff was not entitled to “individual
unemployability benefits.”
“individual

The ALJ did not explain how the VA’s

unemployability”

standard

applied

to

Plaintiff’s

situation.
The regulations that outline the VA’s system for rating
disabilities explain that the disability rating “is based primarily
upon the average impairment in earning capacity.”
4.15.

38 C.F.R. §

“Total disability will be considered to exist when there is

present any impairment of mind or body which is sufficient to
render

it

impossible

for

the

average

substantially gainful occupation.”

108

Tr. 22.

23

person

to

38 C.F.R. § 4.15.

follow

a

When an

individual’s rating is less than 100 percent, that individual still
may be deemed unemployable if the VA determines that the individual
would be “unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities.”
C.F.R.

§

4.16(a).

requirements

for

The

regulation

“individual

outlines

the

unemployability”

38

eligibility
in

such

See 38 C.F.R. § 4.16(a).

circumstances.

The VA’s decision on Plaintiff’s disability rating explained
the application of the “individual unemployability” regulations to
Plaintiff’s situation:
Entitlement to individual unemployability is denied
because you are not found to be in capable [sic] of
gainful employment based on a single service[-]connected
disability.
As your overall combined evaluation is 100 percent,
additional benefits would only be payable if you were
found to be unemployable based on a single disability,
with additional disabilities combined to 60 percent. In
this case, your unemployability would be caused by all of
your service[-]connected disabilities.
Therefore,
additional benefits based on individual unemployability
can not [sic] be established.109
The poorly constructed first sentence above does not mean that the
VA found Plaintiff capable of gainful employment.

As is clarified

in the subsequent sentences, Plaintiff was unemployable based on
his

combined

rating

unemployability

of

100

benefits

on

percent,
that

and

basis.

he

qualified

The

for

“individual

unemployability” regulations did not apply to Plaintiff because

109

Tr. 787.

24

they only benefit those veterans with less than a total disability
rating.

If those veterans qualify, they are entitled to collect

full benefits.
The ALJ’s rejection of the VA’s disability decision appears to
be based on a misunderstanding of the VA regulations.

Thus, the

only reason cited for discounting the VA’s disability rating was
not valid.

With a better understanding of VA regulations, the

Commissioner can and must reconsider the VA’s decision, explain
what weight that should be given to it, and outline the reasons for
the weight given if less than great weight.

The court cannot

predict how the Commissioner’s reconsideration of the VA’s Rating
Decision might affect the ultimate disability determination.

Even

if possible, it is not the court’s prerogative to make that
determination in the first instance.
Accordingly, Plaintiff’s argument that the ALJ’s failure to
follow regulations prejudiced Plaintiff cannot be addressed until
the Commissioner reconsiders the weight given the VA’s decision.
Plaintiff presented another argument in response to Defendant’s
motion, regarding the meaning of the ALJ’s failure to give any
weight to the VA’s disability rating as it relates to the weight
analysis of Dr. Harris’s report and Dr. Sternes’ testimony.

This

argument is also moot, as reconsideration of the VA’s decision may
affect other aspects of the SSA’s disability decision.
B.

Dr. Hall’s Letter

25

In addition to disability determinations by other agencies,
the ALJ also must evaluate every medical opinion in the record and
decide what weight to give each.

See 20 C.F.R. § 404.1527(c).

The

regulations require that, when a treating source’s opinion on the
nature and severity of a claimant’s impairments “is well-supported
by

medically

acceptable

clinical

and

laboratory

diagnostic

techniques and is not inconsistent with the other substantial
evidence in [the] case record,” it is to be given controlling
weight.

20 C.F.R. § 404.1527(c)(2); see also SSR 96-2p, 1996 WL

374188, at *1.

However, an opinion that an individual is disabled

is not a medical opinion but, rather, is a determination reserved
to the Commissioner.

20 C.F.R. § 404.1527(d)(1).

With regard to Dr. Hall’s August 2016 letter, it was not
provided in time for the ALJ to address it in his June 2016
decision.

However, the Appeals Council stated, in its denial of

Plaintiff’s request for review, that it had considered the letter.
Although the Appeals Council is required to consider new, material
evidence, the Appeals Council is not required to discuss it.
Higginbotham

v.

Barnhart,

405

F.3d

332,

335

n.1

(5th

See
Cir.

2005)(explaining that the discussion requirement was suspended).
The letter included Dr. Hall’s opinion that Plaintiff was
“permanently disabled and unemployable;”110 however, that was not
her decision to make and, therefore, deserved no weight.

110

Tr. 800.

26

The

remainder of the letter is not wholly consistent with Dr. Hall’s
own treatment notes.

For example, she stated in her letter that

Plaintiff experienced “intermittent suicidal ideation,”111 but her
treatment

notes

indicated

that

Plaintiff

consistently

denied

suicidal ideation throughout the time Dr. Hall treated Plaintiff
and that Dr. Hall always rated Plaintiff as low risk for suicide.
Dr. Hall’s statement in the August 2016 letter that Plaintiff
experienced “persistent mood and anxiety symptoms”112 was at odds
with mental status examinations that were consistently unremarkable
and, more often than not, described his mood as euthymic without
any sign of anxiety.

Finally, the doctor’s opinion that Plaintiff

was unemployable was contrary to her GAF assessment that placed him
in the range of mild symptomatology.
On

remand,

the

Commissioner

need

not

give

further

consideration to Dr. Hall’s letter.
IV. Conclusion
Based on the foregoing, the court GRANTS IN PART AND DENIES IN
PART Plaintiff’s motion and DENIES Defendant’s motion. The case is
REMANDED for further consideration as explained herein.
SIGNED in Houston, Texas, this 18th day of October, 2017.

111

112

Id.

______________________________
U.S. MAGISTRATE JUDGE

Id.

27