Condrey v. Berryhill

Filing 16

OPINION on Summary Judgment. The commissioner's decision denying Condrey's claim for disability benefits is supported by substantial evidence and will be affirmed. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)

United States District Court

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OFSouthern District of Texas
TEXAS

ENTERED
May 02, 2019
David J. Bradley, Clerk

Cynthia G. Condrey,
Plaintiff,

v.
Nancy Berryhill,
Defendant.

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Civil Action H-17-3106

Opinion on Summary Judgment

1.

Introduction
Cynthia G. Condrey brought this action for judicial reVIew of the

commissioner's final decision to deny her disability insurance benefits. The
question is whether substantial evidence supports the commissioner's decision. It
does.
2.

Background
Condrey applied for disability benefits on August 27,2014. She claimed to

suffer from several physical and mental conditions, including fibromyalgia,
lupus, arthritis, seizures, migraine headaches, epilepsy, neuropathy, depression,
and chronic fatigue syndrome. Condrey claimed she could not sit or stand for
long periods, that she could pay attention only for two to three minutes, and that
she would fall asleep without realizing it. She also claimed to have an
uncontrolled seizure disorder.

Condrey alleged that she became disabled in 2011, but later amended the
onset date to April 30, 2014. Condrey graduated from college with a bachelor's
degree in business. Before 2011 she worked as a security guard and in various
administrative and office jobs.
The hearing officer found that Condrey suffers from numerous severe
impairments. Because none of those impairments prevent Condrey from
returning to her previous work, the hearing officer found that Condrey is not
disabled.

3.

Legal Framework
a. Standard of Review
This court's review is limited to determining whether commissioner's

decision is supported by substantial evidence and whether the correct legal
standards were employed. Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018).
The court "does not reweigh the evidence in the record, try the issues de novo, or
substitute its judgment for the Commissioner's, even if the evidence weighs
against the Commissioner's decision." Newton v. Apfel, 209 F.3d 448,452 (5th
Cir. 2000). "Conflicts in the evidence are for the Commissioner and not the
courts to resolve." Id. "A decision is supported by substantial evidence if credible
evidentiary choices or medical findings support the decision." Salmond v.

Berryhill, 892 F.3d 812, 817 (5th Cir. 2018).

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b. Statutory and Regulatory Criteria
The Social Security Act provides disability insurance benefits to people
who have contributed to the program and have a physical or mental disability.
See 42 U.S.C. § 423. It defines disability as the "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner uses a sequential, five-step approach to determine
whether the claimant is disabled. The claimant bears the burden of proof on the
first four steps, but the Commissioner bears the burden on the fifth step. Newton,
209 F.3d at 455. First, a person who is working and engaging in substantial
gainful activity is not disabled. Second, a person who does not have a severe
impairment is not disabled. Third, a person whose severe impairments meet or
equal an impairment in appendix 1 of the regulations is deemed disabled. The
commissioner must determine the person's residual functional capacity ("RFC"),
which is a determination of the most the claimant can still do despite her physical
and mental limitations. The RFC is used in the fourth and fifth steps of the
analysis to determine whether the claimant can perform past relevant work or
any other work that is significant in the national economy.

4.

Analysis
The hearing officer followed the correct legal rules, and her findings are

supported by substantial evidence.
Condrey has not engaged in gainful employment since before 2011. At the
second step, the hearing officer found that Condrey has severe impairments from
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fibromyalgia, anxiety disorder, neuropathy, seizures, degenerative joint disease,
obesity, and prescription drug habituation. None of those impairments meet one
in the listings, however. The hearing officer determined Condrey's RFC. While
she does have limitations, Condrey can lift twenty pounds occasionally and ten
pounds frequently, and she can sit, stand, and walk six hours in an eight-hour
day. Based on that RFC, the hearing officer found at the fourth step that Condrey
could return to her past work as a security guard, administrative clerk, or
receptionist. She is therefore not disabled.
In reaching her decision, the hearing officer considered Condrey's medical
and psychological records. She also considered the hearing testimony of Condrey
and the vocational expert.
Condrey made several statements at the hearing and to her medical
providers that the hearing officer construed to mean she had overstated the
severity of her medical conditions. She lived in a second-floor apartment that was
not equipped for the handicapped. She lifted boxes when she moved into the
apartment in August

2015.

She was able to lift her thirty-five-pound dog. She

cared for and cleaned up after her dog.
The hearing officer considered medical examinations conducted between
2013

and

2016

that showed normal physical and psychological results. She had a

normal brain MRI and a normal EEG in May 2013. Her neurological examination
was normal in February

2014

and indicated full grip strength and normal gait.

That same exam also showed that she had normal attention span and
concentration. In December

2016

(after the hearing) Condrey's physical

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examination showed that her muscle strength, tone, and gait were intact, with no
evidence of abnormalities.
The hearing officer relied on the analysis of two state agency consultants in
formulating the residual functional capacity. Those consultants reviewed
Condrey's medical records through April 2015, including hospital records,
treating physician records, and a report from a consultative examiner hired by
the Commissioner. The agency consultants found, among other things, that
Condrey could lift twenty pounds occasionally, and ten pounds frequently, that
she could stand or walk six out of eight hours, and sit six out of eight hours. These
findings are consistent with the RFC as determined by the hearing officer. The
hearing officer explained in her decision that Condrey does suffer from several
limitations, but those limitations were accounted for in the RFC. The vocational
expert testified that Condrey's RFC would permit her to return to her past work.
Condrey argues that the hearing officer discounted the opinions of her
treating physicians without stating adequate reasons. The hearing officer is
required to analyze each of the factors set forth in 20 C.F.R. § 404.1527(c) before
declining to give any weight to the opinion of a treating physician. Newton v.

Apfel, 209 F.3d 448, 456 (5th Cir. 2000). Those factors include the nature and
length of the treating relationship, whether the opinion is supported by evidence,
and whether the treatment provider is a specialist. On the other hand, if the
hearing officer's failure to address the factors is harmless, remanding on that
basis makes little sense. Rollins v. Astrue, 464 F. App'x. 363, 358 (5th Cir. 2012)
(unpublished)

(explaining that

procedural

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perfection

in

administrative

proceedings is not required, and that remand

IS

unnecessary unless the

substantial rights of a party have been affected).
Dr. Teresa Tarver is a consultative examiner retained by the Commissioner
to perform a psychological evaluation of Condrey. The hearing officer explained
that while Condrey was "alert and oriented with an adequate fund of knowledge,"
and "demonstrated concrete abstract goal directed thinking," Dr. Tarver
concluded that Condrey was mildly impaired and suffered from an "unspecified
mild neurocognitive disorder." The hearing officer concluded that Dr. Tarver's
opinion should be given minimal weight because it was inconsistent with the
examinations by the treating physicians. The hearing officer did not explicitly
address any of the other factors set forth in 20 C.F.R. § 404.1527(c). Doing so was
unnecessary. It is obvious that Tarver saw Condrey only once. Tarver was hired as
a specialist. The opinion itself indicates that Tarver did not review any records in
forming her opinion. The hearing officer properly weighed and discounted Dr.
Tarver's opinion.
Dr. Omotoloa Hope opined that Condrey could stand less than two hours
in an eight-hour day and sit only two hours in an eight-hour day. Dr. Hope also
stated that Condrey could occasionally lift less than ten pounds, and never lift
more than that. The hearing officer gave Dr. Hope's opinion little weight, noting
that the opinion was not supported by any objective diagnostic or clinical
findings. The opinion was also based on Condrey'S self-reported symptoms. The
hearing officer noted throughout her decision that Condrey's allegations about
her symptoms were inconsistent with the evidence before the Commissioner. As
for Condrey's mental status, Dr. Hope stated that Condrey was quite limited, and

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would miss work frequently. The hearing officer gave this opinion very little
weight because, among other things, Dr. Hope did not have a lengthy treating
relationship with Condrey, and the opinion was not consistent with the record.
While the hearing officer did not explicitly work through each factor, it is clear to
the court that she understood and applied the regulation.
The same is true of the hearing officer's rejection of Dr. Lisa Davis's
opinion. Davis said that Condrey could sit, stand and walk less than two hours
per day, that she would need eight breaks in an eight-hour day, and that Condrey
could never lift less than ten pounds. The hearing officer rejected this opinion
because it was inconsistent with the examinations and radiographic data. The
hearing officer also noted that it was Dr. Davis who gave Condrey a note
permitting her to have a service dog. The hearing officer thought this was suspect
because Dr. Davis did not explain Condrey's need for a service animal, Condrey
received no training to handle the dog, and Condrey owned the dog for eight
years before designating it a service animal. The hearing officer had no reason to
give Dr. Davis's opinions any weight at all, and further explicit weighing and
balancing would have made no difference.
Finally, Condrey points out that the hearing officer did not mention Dr.
Welton Hill's opinion at all. Dr. Hill stated that Condrey could sit and stand less
than two hours in a day, would need to take eight thirty-minute breaks per day,
and could only occasionally lift ten pounds. The medical records supporting Dr.
Davis's opinion consist mainly of Condrey's self-reported symptoms. As with the
other opinions, Dr. Hill's opinion is entirely inconsistent with the record. There is
no need to remand this case for an explicit evaluation of Dr. Hill's opinion

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because the hearing officer would give it little weight, as she did with the other
opmIOns.
Condrey argues that the hearing officer did not account for Condrey's
headaches in the determination of the residual functional capacity. The hearing
officer discussed Condrey's migraine headaches throughout her decision. The
medical records that the hearing officer considered are replete with discussion of
Condrey's migraine headaches. It cannot be said that the hearing officer ignored
Condrey's headache problem in formulating the residual functional capacity.
5.

Conclusion
The commissioner's decision denying Condrey's claim for disability

benefits is supported by substantial evidence and will be affirmed. Cynthia G.
Condrey will take nothing from Nancy Berryhill.

Signed on May 2-, 2019, at Houston, Texas.

United States District Judge

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