Tutt v. Colvin

Filing 14

MEMORANDUM AND ORDER denying 9 Plaintiff's Cross MOTION for Summary Judgment , and granting 7 Defendant's Cross MOTION for Summary Judgment . (Signed by Magistrate Judge Christina A Bryan) Parties notified.(cjan, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALICIA A. TUTT,

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Plaintiff,
v.
NANCY A. BERRYHILL,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

August 22, 2018
David J. Bradley, Clerk

Civil Action No.: 4:17-CV-2520

MEMORANDUM AND ORDER
Plaintiff Alicia A. Tutt filed this case under the Social Security Act, 42 U.S.C. §§ 405(g)
for review of the Commissioner’s final decision denying her request for social security disability
insurance benefits. Tutt and the Commissioner moved for summary judgment (Dkts. 7, 9). After
considering the pleadings, the record, and the applicable law, the court DENIES Tutt’s motion,
GRANTS the Commissioner’s motion, and AFFIRMS the final decision of the Commissioner.1
I. Background
1. Factual and Administrative History
Tutt filed a claim for social security disability insurance benefits on July 14, 2014,
alleging the onset of disability as of February 27, 2011, (later amended to February 22, 2013),
due to a back injury, neck injury, arthritis, chest pains, high blood pressure, irritable bowel
syndrome, and depression. Dkt. 4-4 at 28-29. Her claim was denied on initial review and
reconsideration. The administrative law judge (ALJ) held a hearing on May 23, 2016, at which
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The parties have consented to the jurisdiction of this magistrate judge for all purposes, including entry of final
judgment. Dkt. 13.

Tutt and a vocational expert, Byron Pettingill, testified. The ALJ issued an unfavorable decision
on July 5, 2016. Dkt. 4-3 at 16-30. The Appeals Council denied review on June 30, 2017, Dkt. 43 at 2-4, and the ALJ’s decision became the final decision of the Commissioner. See 20 C.F.R.
§§ 404.984(b)(2) and 416.1484(b)(2).
2. Standard for District Court Review of the Commissioner’s Decision
Section 405(g) of the Act governs the standard of review in social security disability
cases. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). Federal court review of the
Commissioner’s final decision to deny Social Security benefits is limited to two inquiries: (1)
whether the Commissioner applied the proper legal standard; and (2) whether the
Commissioner’s decision is supported by substantial evidence. Copeland v. Colvin, 771 F.3d
920, 923 (5th Cir. 2014); Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999).
With respect to all decisions other than conclusions of law,2 “[i]f the Commissioner’s
findings are supported by substantial evidence, they are conclusive and must be affirmed.” Perez
v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). “Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Substantial evidence has also been defined as “more than a mere scintilla and less than a
preponderance.” Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (quoting Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)). When reviewing the Commissioner’s decision, the
court does not reweigh the evidence, try the questions de novo, or substitute its own judgment for
that of the Commissioner. Masterson, 309 F.3d at 272. Conflicts in the evidence are for the
Commissioner to resolve, not the courts. Id.

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The courts strive for judicial review that is

Conclusions of law are reviewed de novo. Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981).
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“deferential without being so obsequious as to be meaningless.” Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999).
The court weighs four types of evidence in the record when determining whether there is
substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) the claimant's subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th
Cir.1991); Hamilton-Provost v. Colvin, 605 F. App’x 233, 236 (5th Cir. 2015).
3. Disability Determination Standards
The ALJ must follow a five-step sequential analysis to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920; Waters, 276 F.3d at 718. The Social Security Act
defines “disability” as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death,
or which has lasted or can be expected to last for a continuous period of not less than twelve
months.” Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990) (citing 42 U.S.C. § 423(d)(1)(A)).
A finding at any point in the five-step sequence that the claimant is disabled, or is not disabled,
ends the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
In the first step, the ALJ decides whether the claimant is currently working or “engaged
in substantial gainful activity.” Work is “substantial” if it involves doing significant physical or
mental activities, and “gainful” if it is the kind of work usually done for pay or profit. 20 C.F.R.
§§ 404.1572, 416.972; Copeland v. Colvin, 771 F.3d 920, 924 (5th Cir. 2014).
In the second step, the ALJ must determine whether the claimant has a severe
impairment. Under applicable regulations, an impairment is severe if it “significantly limits your
physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.20(c).
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Under Fifth Circuit binding precedent, “[a]n impairment can be considered as not severe only if it
is a slight abnormality having such minimal effect on the individual that it would not be expected
to interfere with the individual’s ability to work, irrespective of age, education or work
experience.” Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (emphasis added)
(quoting Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)). “Re-stated, an impairment is
severe if it is anything more than a “slight abnormality” that “would not be expected to interfere”
with a claimant’s ability to work. Id. This second step requires the claimant to make a de
minimis showing. See Anthony v. Sullivan, 954 F.2d 289, 293 n.5 (5th Cir. 1992).” Salmond v.
Berryhill, 892 F.3d 812, 817 (5th Cir. 2018).
If the claimant is found to have a severe impairment, the ALJ proceeds to the third step of
the sequential analysis: whether the severe impairment meets or medically equals one of the
listings in the regulation known as Appendix 1. 20 C.F.R. Part 404, Subpart P, Appendix 1. If the
impairment meets one of the listings in Appendix 1, the claimant is disabled. If the ALJ finds
that the claimant’s symptoms do not meet any listed impairment, the sequential analysis
continues to the fourth step.
In step four, the ALJ must decide whether the claimant can still perform his past relevant
work by determining the claimant’s “residual functional capacity” (RFC). “The RFC is the
individual’s ability to do physical and mental tasks on a sustained basis despite limitations from
her impairments.” Giles v. Astrue, 433 Fed. App’x 241, 245 (5th Cir. 2011) (citing 20 C.F.R.
404.1545). The ALJ must base the RFC determination on the record as a whole and must
consider all of a claimant’s impairments, including those that are not severe. Id.; 20 C.F.R. §§
404.1520(e) and 404.1545; see also Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990).

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The claimant bears the burden to prove disability at steps one through four, meaning the
claimant must prove she is not currently working and is no longer capable of performing her past
relevant work. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). If the claimant meets her
burden, the burden shifts to the commissioner at step five to show that the “claimant is capable of
engaging in some type of alternative work that exists in the national economy.” Id. Thus, in order
for the Commissioner to find in step five that the claimant is not disabled, the record must
contain evidence demonstrating that other work exists in significant numbers in the national
economy, and that the claimant can do that work given her RFC, age, education, and work
experience. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1998).
4. The ALJ’s Decision
The ALJ performed the standard 5-step sequential analysis. The ALJ found that Tutt met
the insured status requirements of the Social Security Act through December 31, 2016, and she
did not engage in substantial gainful activity after February 22, 2013, her amended alleged onset
date. The ALJ found that Tutt had the severe impairments of degenerative disc disease of the
lumbar spine, irritable bowel syndrome, right carpal tunnel syndrome, polyneuropathy,
migraines, seizure disorder, depressive disorder, and anxiety disorder, none of which met or
equaled the severity of a listed impairment. Dkt. 4-3 at 18.
The ALJ further found that Tutt had the residual functional capacity to perform light
work, with the additional limitations that she can “stand and walk 6 hours our of an 8-hour work
day; can sit 6 hours out of an 8-hour work day; can lift and carry, push and pull, 20 pounds
occasionally and 10 pounds frequently; can occasionally climb stairs, balance, stoop, kneel,
crouch and crawl; can never use ladders, ropes, or scaffolds; must avoid even moderate exposure
to all hazards; can perform detailed, not complex tasks; and can have frequent interaction with
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the general public and coworkers.” Id. at 21. The ALJ found Tutt could not perform any of her
past relevant work, which was light, semi-skilled and medium, skilled. Id. at 28. Based on the
testimony of a vocational expert in response to his hypothetical questions, the ALJ concluded
that Tutt could perform other jobs that exist in significant numbers in the national economy, and
thus was not disabled under the Act. Id. at 28-29.
II. Analysis
Tutt contends the ALJ erred because he rejected the opinion of Meagan Houston, Ph.D.,
who performed a psychological consultative examination. Tutt also contends that the ALJ’s RFC
determination is not supported by substantial evidence because it is inconsistent with the
opinions of state agency reviewing physicians and not supported by any medical source opinion.
Finally, Tutt contends that the ALJ’s conclusion at step 5 of the sequential analysis is
inconsistent with his finding at step 4 that Tutt could not perform her past relevant work.
1. The ALJ Properly Considered the Opinion of Meagan Houston, Ph.D.
Meagan Houston, Ph.D., performed a psychological consultative examination of Tutt on
October 2, 2014. Tutt argues that the ALJ erred by not reconciling the differences between
Houston’s opinion and the opinions of the state agency reviewers. Tutt also argues that had the
ALJ credited Houston’s opinion that Tutt had marked impairment in social and occupational
functioning, he would have found her disabled.
The ALJ summarized Houston’s findings and assessed the weight he gave her opinion as
follows:
Appearance was normal and there were no abnormal perceptions or memory
problems. The claimant reported the medications were effective in managing her
symptoms. Thought process and content were normal. Mood was dysphoric and
affect congruent. She was fully oriented. Judgment and insight were good. Dr.
Houston diagnosed the claimant with adjustment disorder with depressed mood,
concluded she has a fair prognosis, and stated her symptoms may cause marked
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impairment in her social and occupational functioning, and her inability to seek or
maintain employment appears more related to her physical health condition than
her mental health condition. Little weight is given to Dr. Houston’s assessment
because it is inconsistent with the medical evidence of record, as well as her own
examination.
Dkt. 4-3 at 25. The ALJ also considered the opinions of state agency reviewing physicians who
opined that Tutt could perform work at the medium exertional level, and could understand,
remember, and carry out detailed, but not complex instructions, and respond appropriately to
changes in the routine work setting. The ALJ gave little weight to their opinions regarding Tutt’s
physical limitations because they were inconsistent with the record as a whole and newer
medical evidence showed additional limitations. Dkt. 4-3 at 27. The ALJ afforded great weight
to the mental RFC evaluations by Matthew Snapp, Ph.D. and Janet Ritch, Ph.D., who opined that
Tutt could understand, remember, and carry out detailed, but not complex instructions, make
decisions, attend and concentrate for extended periods, accept instructions, and respond
appropriately to changes in the routine work setting. Id. The ALJ incorporated the limitation that
Tutt could understand, remember, and carry out detailed, but not complex instructions into his
RFC determination.
Because Houston is a non-treating medical source, the ALJ was not obligated to give
Houston’s opinion any particular weight or to expressly set forth in detail the reasons for his
decision. The six-factor analysis of 20 C.F.R. 404.1527(c)(2) applies only to consideration of a
treating source opinion.3 The ALJ also was not obligated to “reconcile” Houston’s opinion with
those of the state agency reviewers. See Social Security Ruling (SSR) 96-6p, 1996 WL 374180 at
*2 (S.S.A. 1996) (The ALJ is required only to consider and evaluate the opinions of state agency

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Tutt argues that the ALJ failed to follow the factors of “C.F.R. § 404.1512(e)(2)(1).” Neither the court nor the
Commissioner could locate that regulation. See Dkt. 12 at 3.
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medical and psychological consultants and other program physicians and psychologists when
making a decision in a particular case).
It is well-established that the ALJ is entitled to determine the credibility of examining
physicians and other medical experts and to weigh their opinions. Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). “In evaluating the opinion of a non-treating physician, an ALJ is free to
incorporate only those limitations that he finds ‘consistent with the weight of the evidence as a
whole.’” Thompson v. Colvin, No. 4:16-CV-00553, 2017 WL 1278673, at *12 (S.D. Tex. Feb.
14, 2017) (citing Andrews v. Astrue, 917 F. Supp. 2d 624, 642 (N.D. Tex. 2013)). Having found
Houston’s opinion inconsistent with the medical evidence as a whole and with her own
examination findings, the ALJ did not err in giving the opinion little weight.
2. The ALJ’s RFC Determination is Supported by Substantial Evidence.
As noted above, the ALJ gave “little weight” to state agency medical opinions finding
Tutt was able to perform work at the medium exertion level. Dkt. 4-3 at 27. Tutt contends that
because there were no other medical source opinions regarding Tutt’s physical impairments, the
ALJ erred in basing the RFC on his own unsupported opinion. Tutt’s contention is without merit.
It is well-established that “the ALJ has a duty to develop the facts fully and fairly relating
to an applicant’s claim for disability benefits.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995).
However, the absence of a medical source statement describing the types of work a claimant is
capable of performing does not necessarily make the record incomplete. Id. In this case, there
was extensive medical evidence regarding Tutt’s physical condition and the ALJ performed a
thorough analysis of those records. See Dkt. 4-3 at 21-28. The ALJ also considered the medical
expert opinions from state agency reviewers, although he concluded that the medical evidence
and hearing testimony supported a greater degree of physical limitation than that recognized by
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the state agency reviewers. Id. at 27. As the ALJ noted, “newer medical evidence shows
additional limitations.” Id. The ALJ did not err in making the RFC determination. The RFC
determination is not a medical opinion and the ALJ retains sole responsibility for determining a
claimant’s RFC. Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012).
3. The ALJ’s Step 5 Determination is Supported by Substantial Evidence.
Tutt contends that the ALJ’s decision at step 5 of the sequential analysis is not supported
by substantial evidence because it conflicts with his decision at step 4 that she could not perform
her past relevant work as a retail sales clerk. She further contends that the ALJ erred in applying
Grid Rule 202.21 to find that she is not disabled.
Contrary to Tutt’s contention, the ALJ’s disability determination was not based solely on
Grid Rule 202.21, which governs disability determinations for individuals who can perform the
full range of light, unskilled work. The ALJ noted that application of Grid Rue 202.21 would
dictate a finding of “not disabled.” Dkt. 4-3 at 29. However, because Tutt has non-exertional
limitations, the ALJ properly used the services of a vocational expert to make the step 5
determination. Id.; See Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000) (“When, as here, the
claimant suffers from additional limitations that make the Medical–Vocational Guidelines
inapplicable, the Commissioner must rely upon the services of a vocational expert or similar
evidence. . . . The value of a vocational expert is that he [or she] is familiar with the specific
requirements of a particular occupation, including working conditions and the attributes and
skills needed.” (internal citations omitted)).
The ALJ incorporated all of the limitations he found supported by the evidence into his
RFC assessment. At the hearing, the ALJ presented a series of hypothetical questions to the
vocational expert, Byron Pettingill, which incorporated all of the limitations contained in his
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RFC assessment. Dkt. 4-3 at 90-96. An ALJ's hypothetical question to a vocational expert must
reasonably incorporate all limitations recognized by the ALJ, and the claimant or his
representative must be afforded the opportunity to correct any deficiencies in the question. Boyd
v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001); Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir.
2002). These conditions were met in this case.
The ALJ’s ultimate finding that Tutt is not disabled under the Act is based on the
Pettingill’s identification of jobs a person matching Tutt’s RFC can perform. Pettingill classified
Tutt’s past work as a retail sales clerk as light, semiskilled work. Dkt. 4-3 at 28, 91. Tutt’s
argument that the ALJ’s step 4 and step 5 findings are in conflict overlooks the fact that the ALJ
found that Tutt could perform unskilled light work. In addition, the ALJ expressly asked the
vocational expert if Tutt could perform her past work as a retail sales clerk if she were limited to
frequent interaction with the public or coworkers. Id. at 95. Pettingill testified she could not, but
that there other jobs available she could do with that limitation, such an office helper, clothing
sorter, and small products assembler. Id. at 95-96. All of the jobs the vocational expert identified
were light, unskilled jobs. Id. at 96. Thus, the ALJ’s step 4 decision that Tutt could not perform
her past relevant work is not inconsistent with his step 5 decision that she could perform other
available jobs. The ALJ did not err in finding that Tutt was not disabled within the meaning of
the Social Security Act.

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III. Conclusion
The court concludes that the ALJ’s decision is supported by substantial evidence and is
not based on a reversible error of law. Thus, Tutt’s motion is DENIED, the Commissioner’s
motion is GRANTED, and the Commissioner’s decision denying benefits is AFFIRMED.

Signed on August 22, 2018, at Houston, Texas.

Christina A. Bryan
United States Magistrate Judge

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