Thacker v. Berryhill
Filing
26
MEMORANDUM OPINION Granting 18 Cross MOTION for Summary Judgment , denying 22 Opposed MOTION for Summary Judgment and Response to Defendents 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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
ANDREW SAUL,1
§
COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
March 19, 2020
David J. Bradley, Clerk
MISTY THACKER,
CIVIL ACTION NO. H-18-566
MEMORANDUM OPINION
Pending before the court2 are Defendant’s Cross-Motion for
Summary Judgment (Doc. 18) and Plaintiff’s Motion for Summary
Judgment (Doc. 22).
The court has considered the motions, the
responses, the administrative record, and the applicable law.
For
the reasons set forth below, the court GRANTS Defendant’s motion
and DENIES Plaintiff’s motion.
I.
Case Background
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
the
Social
Security
Administration
(“SSA”)
Commissioner
(“Commissioner” or “Defendant”) regarding Plaintiff’s claim for
1
Nancy Berryhill was the Acting Commissioner of the Social Security
Administration (“SSA”) at the time that Plaintiff filed this case but no longer
holds that position. Andrew Saul is now Commissioner of the SSA and, as such,
is automatically substituted as the defendant in this case. See 42 U.S.C. §
405(g); 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. Doc. 12, Ord. Dated Feb.
5, 2019.
disability insurance benefits under Title II and for supplemental
security income under Title XVI of the Social Security Act (“the
Act”).
Plaintiff was born on April 20, 1979, and was thirty-five
years old on the alleged disability onset date of June 1, 2014.3
Plaintiff’s job history did not qualify as past relevant work.4
A.
Medical Evidence and Administrative Proceedings
Plaintiff was treated, on and off, for psychiatric impairments
for years prior to June 1, 2014.5
However, in November 15, 2013,
a little more than six months before her alleged onset date,
Plaintiff was discharged from treatment for noncompliance after
missing
an
appointment
and
not
responding
to
an
inquiry.6
Plaintiff moved to Michigan where she received little psychiatric
care, with no more than three appointments from November 2013
through October 2014.7
At an appointment with a psychiatrist,
prior to the alleged onset date, Kaushik Raval, M.D., (“Dr. Raval”)
noted that Plaintiff was “able to work two steady part-time jobs.”8
Only one appointment in Michigan fell during the alleged disability
3
See Tr. of the Admin. Proceedings (“Tr.”) 132-34, 145, 156-57, 16667, 176-77, 266, 304.
4
See Tr. 54, 282.
5
See, e.g., Tr. 443.
6
See Tr. 655.
7
See Tr. 412-32.
8
Tr. 432.
2
period.9
At
that
appointment
with
a
therapist,
Plaintiff’s
appearance was disheveled and bizarre, and she presented with
agitated
motor
activity,
disorganized thinking.10
flat
affect,
depressed
mood,
and
She also reported visual and auditory
hallucinations.11
Yet, she was fully oriented with lucid/coherent
thought content.12
Plaintiff reported that she was two months into
daily
intravenous
heroin
use.13
The
therapist
recommended
a
psychiatric evaluation, medication management, and treatment for
substance dependence.14
Plaintiff returned to Texas and, on September 3, 2014, applied
for disability insurance benefits and supplemental security income
claiming an inability to work since June 1, 2014, due to bipolar
disorder and schizophrenia.15
Approximately six weeks after her return to Texas, she resumed
treatment.16
On October 17, 2014, Plaintiff attended a psychiatric
9
See Tr. 420. The date of the record is obscured by a confidentiality
stamp but appears to be July 25, 2014. See id. The only other treatment notes
from that practice are from a therapist appointment and a psychiatric evaluation,
both in early December 2013. See Tr. 414, 432.
10
See Tr. 420.
11
See id.
12
See id.
13
See id.
14
See id.
15
See Tr. 132-34, 145, 156, 166, 176-77, 266-67, 291.
Plaintiff
applied twice previously in 2009 and 2010 and was denied. See Tr. 135, 146, 157,
167.
16
See Tr. 443-48, 454.
3
assessment with Mark Williamson, M.D., (“Dr. Williamson”).17
that
time,
she
expressed
“a
desire
to
resume
At
medications.”18
Plaintiff reported experiencing paranoia, auditory hallucinations,
and hopelessness but denied suicidal or homicidal ideation or the
“ongoing use of alcohol, cannabis, illicit drugs, or inappropriate
use of prescription medications or over the counter products.”19
She stated that her most recent suicide attempt was three years
prior and her most recent violent behavior was slapping someone six
months
prior
to
the
appointment.20
Plaintiff
self-reported
information that was inconsistent with her prior appointments,
including that she had not used intravenous drugs in the prior
eight years.21
The mental status examination produced normal
results with limited insight and judgment.22
Dr. Williamson diagnosed Plaintiff with bipolar disorder, post
traumatic stress disorder (“PTSD”), and polysubstance dependence
and opined that Plaintiff’s prognosis for recovery was guarded but
would “be more positive” if she complied with the treatment plan.23
Dr. Williamson and Plaintiff settled on psychopharmacologic therapy
17
See Tr. 443-48.
18
Tr. 443.
19
See id.
20
See id.
21
Compare Tr. 420 with Tr. 444.
22
See Tr. 445-46.
23
Tr. 446.
4
augmented by rehabilitation training, therapy when appropriate, and
chemical dependency counseling.24
for medication management.25
Plaintiff returned a week later
A urinalysis from that date was
positive for cannabinoids and benzodiazepines.26
Sometime after this appointment, Dr. Williamson completed an
undated Physician’s Certificate of Medical Examination in support
of Plaintiff’s guardianship application.27
From a list of ten
cognitive functional areas, the only one in which Plaintiff had a
deficit, according to Dr. Williamson, was “[b]reaking down complex
tasks . . . into simple steps and carrying them out[.]”28
He found
no deficit in any of the following areas: short-term memory; longterm memory; immediate recall; understanding and communicating;
recognizing
familiar
objects
and
persons;
performing
simple
calculations; reasoning logically; grasping abstract aspects of her
situation; or interpreting idiomatic expressions and proverbs.29
Regarding
decision
making,
Dr.
Williamson
opined
that
Plaintiff could not: (1) “[m]ake complex business, managerial, and
financial decisions[;]” (2) “[m]anage a personal bank account[;]”
(3) “[d]etermine [her] own residence[;]” or (4) “[a]ttend to
24
See Tr. 447.
25
See Tr. 454.
26
See id.
27
See Tr. 698-701.
28
Tr. 699.
29
See id.
5
instrumental activities of daily living [(“ADLs”])(e.g., shopping,
cooking, traveling, cleaning)[.]”30 On the other hand, he found her
capable
of
voting,
making
decisions
regarding
marriage,
administering her own medications, attending to basic ADLs, and
consenting to treatment.31 Dr. Williamson opined that Plaintiff was
totally
incapacitated
due
to
severe
mental
illness
and
polysubstance dependence.32
On
October
28,
2014,
Plaintiff
attended
a
consultative
clinical psychological interview with Daniela Costa, Ph.D., (“Dr.
Costa”).33
Plaintiff and her stepmother provided information about
Plaintiff’s
experiencing
visual
condition.34
psychiatric
and
auditory
Plaintiff
hallucinations
and
reported
paranoia,
pacing and smoking due to anxiety, staying home to avoid auditory
hallucinations and panic attacks, “seeing her face as distorted[,]”
and
having
low
self-esteem.35
Plaintiff
and
her
stepmother
described Plaintiff’s ADLs:
[Plaintiff] tends to watch TV and read.
She needs
assistance with activities of daily living. She lays
[sic] down at 12 and wakes up at 3 p.m. She does not
prepare meals. She needs reminders to bathe. Her mother
[sic] handles her finances.
Her family assists with
30
Tr. 699.
31
See id.
32
Tr. 701.
33
See Tr. 434-48.
34
See Tr. 434.
35
Id.
6
transportation and shopping.36
Dr. Costa found no discrepancies in Plaintiff’s self-report.37
Dr.
Costa noted that Plaintiff’s records indicated a history of bipolar
disorder and opioid dependence.
Dr. Costa performed a mental status examination and recorded
essentially normal results except that Plaintiff sat in nine
“different postures with her hands held against her face [and]
rocked side to side[,]” presented with anxious mood and restricted
affect, and exhibited difficulty with recall and concentration.38
Dr. Costa listed Plaintiff’s diagnoses as bipolar disorder, severe
with psychosis; panic disorder; and tobacco and cannabis use
disorders.39 Regarding Plaintiff’s functional capability, Dr. Costa
opined:
[Plaintiff] showed deficits in remote, recent, and
immediate memory.
She also showed problems with
concentration. She may have difficulty with complex and
simple directions. She may also have difficulty
communicating and working with others due to paranoia.
She reported becoming physically aggressive with a coworker.40
On
December
5,
2014,
Plaintiff
attended
a
medication
management appointment at which she reported medication compliance
36
Tr. 435.
37
See Tr. 436.
38
Id.
39
See Tr. 437.
40
Id.
7
and decreased symptoms.41
On December 11, 2014, the SSA found Plaintiff not disabled at
the initial level of review.42
Richard Campa, Ph.D., (“Dr. Campa”)
reviewed Plaintiff’s record, including Dr. Costa’s report, and
determined that Plaintiff could “understand, remember, and carry
out only simple instructions, make simple decisions, attend and
concentrate for extended periods, interact adequately with coworkers and supervisors, and respond appropriately to changes in
routine work setting.”43
suggested
that
Dr. Campa noted that the medical record
Plaintiff
was
stable
when
in
compliance
with
medication therapy and that she was discharged from treatment in
November 2013 for missing appointments.44
At
a
therapy
session
on
February
6,
2015,
Plaintiff’s
therapist noted Plaintiff’s progress toward her treatment goals by
abstaining from the use of illegal drugs, maintaining stable
housing with her parents and sister, and developing more awareness
of
her
diagnosis.45
ideation.46
Plaintiff
denied
suicidal
or
homicidal
The therapist noted increased PTSD symptomatology and
41
See Tr. 484-90.
42
See Tr. 43, 132-33 143, 154,180-87.
43
Tr. 142, 153; see also Tr. 137-41, 148-52.
44
See Tr. 137.
45
Tr. 480.
46
See id.
8
Plaintiff’s desire to engage in therapy to address those issues.47
Plaintiff attended therapy sessions in February and March 2015.48
On
February
11,
2015,
management appointment.49
the
normal
range
Plaintiff
attended
a
medication
A mental status examination was within
with
anxious
mood,
average
functioning, and fair insight and judgment.50
intellectual
On March 7, 2015,
Plaintiff was admitted to the Comprehensive Psychiatric Emergency
Program.51
Upon discharge four days later, Plaintiff was diagnosed
with bipolar disorder with psychotic features.52
On March 11, 2015, in connection with the reconsideration of
Plaintiff’s disability claim, the Houston Cooperative Disability
Investigations Unit received a referral53 “for investigation of
fraud/similar fault due to possible malingering and exaggeration of
symptoms.”54
On April 28, 2015, the disability fraud specialist
issued a report (“investigative report”).
fraud
specialist
provided
an
account
Therein, the disability
of
her
interview
with
Plaintiff, which included the following information:
47
See id.
48
See Tr. 505-11.
49
See Tr. 491-96.
50
See Tr. 493-94.
51
See Tr. 725.
52
See id.
53
The report indicated that “DDS” made the referral.
54
Id.; see also Tr. 514.
9
See Tr. 516.
During the interview with [Plaintiff,] I found her to be
dressed in a t-shirt and sweat pants. . . . She was in a
good mood.
She was alert and attentive to the
investigation. She was able to follow the investigation
and maintain good conversation.
She stated that she
normally shops at Walmart and HEB. She said that she
pays with cash. . . . [S]he said that she lives with her
parents and sister. . . . [and] her dad does most of the
cooking and . . . she helps him . . . . [Plaintiff] was
able to recite her [date of birth], [Texas driver’s
license number,] and last four [digits] of her [social
security number]. She stated that she is an ‘avid’ user
of the computer . . . . and that she is taking medication
for bipolar and has been ‘doing well’ the last seven
years since she has been taking medications. I did not
observe any displays of odd or unusual behavior.55
No definitive opinion on the allegations was offered.56
A mental status examination performed on March 16, 2015, was
within the normal range except for limited insight and judgment.57
Dr.
Williamson
described
Plaintiff’s
mood
as
irritable
and
dysthymic.58
On May 7, 2015, the SSA notified Plaintiff that it had
disapproved her claim upon reconsideration.59
The Explanation of
Determination noted that the investigative report was considered in
deciding Plaintiff’s claim.60
Included as additional information
to the explanation was a notice that the report from Dr. Costa’s
55
Tr. 519.
56
See Tr. 515-21.
57
See Tr. 501-02.
58
See Tr. 501.
59
See Tr. 43, 165, 175-77, 191-97.
60
See Tr. 196.
10
October 2014 consultative examination was not “used as evidence”
because there was “reason to believe that the information provided
regarding disabling limitations [was] incorrect and misleading.”61
Michele Chappuis, Ph.D., (“Dr. Chappuis”) reviewed Plaintiff’s file
and found that Plaintiff’s subjective symptoms were not supported
by the medical record.62
In Dr. Chappuis’s opinion, Plaintiff did
not have any impairment or combination of impairments that was
severe.63
In
mid-November
2015,
Plaintiff
was
admitted
to
the
Comprehensive Psychiatric Emergency Program for suicidal ideation.64
She was discharged with the diagnoses bipolar disorder, PTSD, and
polysubstance dependence.65 At discharge, Plaintiff was tolerating
her medications and experiencing no suicidal or homicidal ideation
and no audio or visual hallucinations.66
appointment,
functioning,
Plaintiff
improved
reported
sleep,
In a followup therapy
progress
and
no
in
suicidal
life
or
domain
homicidal
ideation.67
In January through September 2016, Plaintiff received skills
61
Tr. 195.
62
See Tr. 160, 162-63, 170, 172-73.
63
See Tr. 162, 172.
64
See Tr. 811-12, 991.
65
See Tr. 716.
66
See Tr. 717.
67
See Tr. 817.
11
training
and
appointments.68
therapy
and
attended
medication
management
In April and July 2016, Plaintiff’s mental status
examinations were within normal limits with euthymic mood and fair
insight and judgment.69
In September 2016, Plaintiff reported that
her medications were working well and that she felt normal.70
In mid-June 2016, The Texas Department of Assistive and
Rehabilitative Services (“DARS”) conducted a Supported Employment
Assessment of Plaintiff.71
In an interview, Plaintiff stated that
she was not looking to pursue employment at that time.72
Based on
Plaintiff’s negative response to the presence of several male
clients at the workshop, the DARS employment specialist opined that
Plaintiff would “have a difficult time working on a job where she
would have to interact with people, especially men.”73
The DARS employment specialist noted that Plaintiff was able
to wash dishes, clean, mop, sweep, organize her bedroom, and vacuum
independently and was able to do laundry when prompted.74 Plaintiff
reported that her psychiatric conditions were managed by five
68
See Tr. 1052-90.
69
See Tr. 1068-69, 1080-81.
70
See Tr. 1052, 1056.
71
See Tr. 823-50.
72
See Tr. 825.
73
Tr. 827.
74
See Tr. 829.
12
medications.75 However, Plaintiff said that she experienced various
side effects, including dizziness, tiredness, nausea, nervousness,
blurred vision, diarrhea, and urinary frequency, which, the DARS
employment specialist opined, had interfered with Plaintiff’s work
performance in prior jobs.76
Plaintiff denied any substance abuse
issues.77
As
part
of
the
assessment,
Plaintiff
spent
six
hours
performing work skills in a mock retail store.78 Plaintiff was able
to perform the following job tasks: cleaning, retail zoning,
stocking, sorting clothes, and retrieving carts from the parking
lot.79
She also passed a cognitive functions test.80
However,
Plaintiff had to be prompted to stay awake on multiple occasions
throughout the day.81
The DARS employment specialist also noted
other functional limitations: (1) difficulty staying focused; (2)
inability to work around a crowd of people; (3) discomfort around
men;
(4)
inability
to
work
in
difficulty bending and kneeling.82
75
See Tr. 831.
76
See Tr. 831, 832.
77
See Tr. 831.
78
See Tr. 834-37.
79
See Tr. 835-36.
80
See Tr. 836.
81
See Tr. 835-36.
82
See Tr. 836.
13
a
team
environment;
and
(5)
Plaintiff also toured a large retail store and a movie theater
during the assessment.83
The DARS employment specialist noted that
Plaintiff became uncomfortable at the retail store in the presence
of others on the tour and store customers but that she was more
comfortable on the tour of the movie theater due to the presence of
fewer people.84
The DARS employment specialist recommended that
Plaintiff not work in a crowded environment or be required to
interact with customers.85
Because of Plaintiff’s discomfort with
being around others, the DARS employment specialist opined that
Plaintiff would “have a difficult time maintaining employment.”86
In addition to working in an environment that limits contact with
others, the DARS employment specialist identified other “nonnegotiable employment conditions” that eliminated jobs requiring
fast-paced work; extensive standing, walking, lifting, bending, and
kneeling; and attention to detail.87 The DARS employment specialist
opined in conclusion that Plaintiff “would not be able to work in
the traditional employment model[] but may want to explore working
from home.”88
Plaintiff requested a hearing before an ALJ, and the hearing
83
See Tr. 837-39.
84
See id.
85
See Tr. 839.
86
Tr. 845.
87
See Tr. 846.
88
Tr. 848.
14
was held on October 12, 2016.89
At the hearing, Plaintiff, her
stepmother, and a vocational expert testified.90
An attorney
represented Plaintiff at the hearing.91
After
Plaintiff
and
her
stepmother
testified,
the
ALJ
presented the following hypothetical individual to the vocational
expert:
The claimant is a younger individual with a limited
education. I do find she’s literate. I’m going to find
that there are no exertional limitations. She can sit,
stand, walk six of eight each for a full eight-hour day.
Her push/pull and gross, fine is unlimited. . . . As to
her ability to climb stairs, she can do that. She can
climb stairs, ladders, run. She can bend, stoop, crouch,
crawl, balance, twist, and squat. Occasional exposure to
any dangerous machinery, and that’s because of her mental
state. And[,] in addition, she does have the ability to
get along with others.
She can understand simple
instruction [sic], concentrate and perform simple tasks,
and respond and adapt to workplace changes and
supervision, but in an occasional public/employee contact
setting.92
The vocational expert identified three medium, unskilled jobs that
such
an
individual
could
perform:
(1)
laundry
worker;
(2)
industrial cleaner; and (3) dishwasher.93
In response to the attorney’s questions, the vocational expert
said that an individual who missed more than three days of work per
89
See Tr. 69, 198-201, 216.
90
See Tr. 70, 73-130.
91
See Tr. 69.
92
Tr. 126-27.
93
Tr. 127.
15
month, who needed to lie down two to three hours per day for more
than thirty minutes, who had “no useful ability to function in. .
. relating to coworkers, the general public, supervisors[,]” who
had no ability to deal with normal stress and decompensated or
became violent, who needed to be prompted every hour to complete a
task, or who once or twice a month verbally abused or slapped
someone she encountered at work was not employable.94
B.
Commissioner’s Decision
On December 27, 2016, the ALJ issued an unfavorable decision.95
At the outset, the ALJ addressed Plaintiff’s objection to the
consideration of the investigative report, claiming that it was
based on the exclusion from consideration of the October 2014
consultative report,96 that the reason for the investigation was not
known, and that the report reflected the medical opinions of
nonmedical personnel.97
The ALJ refused to exclude either the
investigative report or the agency’s determination that information
94
See Tr. 128, see also 127, 129-30.
95
See Tr. 43-56.
96
The court does not share Plaintiff’s and the ALJ’s certainty that the
investigation was based on the additional information addendum to Plaintiff’s
explanation of claim determination on reconsideration. On its face, the addendum
does not make a referral for investigation.
See Tr. 195. Furthermore, its
location in the record indicates that it was included with the materials sent to
Plaintiff when her claim was denied on reconsideration. See Tr. 191-97. The
court finds it more likely that the “reason to believe that the information
provided regarding disabling limitations is incorrect and misleading” is, in
fact, the investigative report, which was completed approximately one week before
the denial was issued. Tr. 195. The investigative report, itself, provided the
reason it had been initiated, namely, due to “fraud/similar fault due to possible
malingering and exaggeration of symptoms.” Tr. 516.
97
See Tr. 43.
16
provided
at
the
misleading.98
consultative
examination
was
incorrect
and
However, the ALJ afforded the latter little weight
because it had “no authenticated author and date and lack[ed] any
veracity.”99
The ALJ continued, “As to the authority of th[e]
document to initiate [the] investigation, I leave that discretion
and determination to the lower level state agency, whoever they
[sic] may be.”100
Based on Plaintiff’s earning records, the ALJ calculated
Plaintiff’s date last insured to be September 30, 2016.101
The ALJ
further found that Plaintiff had not engaged in substantial gainful
activity since June 1, 2014, the alleged onset date.102
The ALJ
recognized obesity, bipolar disorder, PTSD, and schizophrenia as
severe.103
and
drug
However, he found “right hand impairment, hepatitis C,
abuse,
in
full
remission[,]”
to
be
nonsevere
impairments.104
At the next step, the ALJ found that Plaintiff did not meet
the requirements of any impairment identified in the regulations as
98
See id.
99
Id.
100
Id.
101
See Tr. 44, 46.
102
See Tr. 46.
103
See id.
104
See Tr. 47.
17
presumptively disabling105 (the “Listings”), specifically addressing
Listings
12.03
(schizophrenia
spectrum
and
other
psychotic
disorders), 12.04 (depressive, bipolar, and related disorders), and
12.06 (anxiety and obsessive-compulsive disorders).106
The ALJ found Plaintiff’s residual functional capacity (“RFC”)
to be:
a full range of work at all exertional levels. She can
sit, stand and walk six of 8 hours each for a full 8-hour
day.
Her push/pull and gross/fine dexterity is
unlimited. She can climb stairs and ladders and can run.
She can bend, stoop, crouch, crawl, balance, twist and
squat.
She requires [sic] occasional exposure to
dangerous machinery.
She gets along with others,
understands
simple
instructions,
concentrates
and
performs simple tasks, and responds and adapts to
workplace changes and supervision, but in an occasional
public/employee contact setting.107
In
support
of
this
assessment,
the
ALJ
addressed
subjective
testimony provided by Plaintiff and her stepmother as well as the
objective medical evidence on Plaintiff’s psychiatric condition and
obesity.108
The ALJ found that Plaintiff was “able to perform
household chores, clean, watch television, maintain her personal
hygiene, shop
in
stores
and
by
computer,
meals[.]”109
105
See 20 C.F.R. Pt. 404, Subpt. P, App. 1.
106
See Tr. 47-49.
107
Tr. 49.
108
See Tr. 50-54.
109
Tr. 50.
18
and
prepare
simple
He considered other factors as well, including evidence: (1)
that medication controlled Plaintiff’s psychiatric impairments; (2)
that she
was
discharged
from
treatment
in
November
2013
for
noncompliance; (3) that she did not receive treatment for the
subsequent
year;
(4)
that
she
denied
suicidal
and
homicidal
ideation in November 2015 after medication adjustments; (5) that
she was able to participate in facility tours during the DARS
employment assessment; and (6) that she was able to steadily work
part-time jobs.110
He also commented on the lack of evidence
supporting her hearing testimony that she was hospitalized in
February 2016.111
The ALJ discussed the medical opinions and assigned weight to
them and other evidence in the record.112
The ALJ afforded little
weight to Dr. Costa’s consultative examination because it was
“inconsistent with the medical evidence of record” and because Dr.
Costa
“appear[ed]
to
rely
on
[Plaintiff’s]
self-reporting
of
symptoms.”113 The ALJ also found the following opinions entitled to
little weight: (1) Dr. Chappuis’s opinion that Plaintiff did not
have a severe mental impairment because other opinions and the
hearing testimony indicated that Plaintiff did have severe mental
110
See Tr. 50, 52-54.
111
See Tr. 52.
112
See Tr. 50-54.
113
Tr. 51.
19
impairments; (2) Dr. Williamson’s opinion that Plaintiff suffered
extreme limitations because it was not consistent with the treating
and other records, was not consistent with Plaintiff’s selfreported capabilities, and was “so extreme it lack[ed] even the
most basic veracity[;]” (3) DARS’ assessment that Plaintiff could
not “work in the traditional employment model” because it was
“grossly inconsistent with the medical evidence of record” and
Plaintiff’s
ADLs;
and
(4)
the
hypothetical
restrictions
that
Plaintiff’s attorney posed to the vocational expert because “little
evidence” supported them.114
The ALJ also found Plaintiff’s stepmother’s testimony not
entitled to significant weight because it was “not consistent with
the preponderance of the evidence in this case.”115
The ALJ
afforded some weight to the investigative report based upon the
observations noted therein.116
He afforded great weight to the
following
Campa’s
opinions:
(1)
Dr.
opinion
on
review
of
Plaintiff’s file at the initial level because it was “consistent
with the evidence of record and therefore persuasive[;]” (2) Dr.
Raval’s opinion that Plaintiff could “work at steady part-time
jobs”
because
techniques
it
and
was
well-supported
consistent
114
Tr. 53-54, 56.
115
Tr. 54.
116
with
See Tr. 51.
20
record
by
medically
evidence;
acceptable
and
(3)
the
vocational expert’s opinion that Plaintiff could adjust to work
that existed in significant numbers in the national economy.117
Relying
on
the
vocational
expert’s
testimony,
the
ALJ
concluded that Plaintiff was able to perform the occupations of
laundry worker, industrial cleaner, and dishwasher.118 Accordingly,
the ALJ found that Plaintiff was not disabled at any time from the
alleged onset date to the date last insured.119
On January 3, 2017, Plaintiff appealed the ALJ’s unfavorable
decision.120
On
March
28,
2017,
the
Appeals
Council
denied
Plaintiff’s request for review, thereby transforming the ALJ’s
decision into the final decision of the Commissioner.121
After
receiving the Appeals Council’s denial, Plaintiff timely sought
judicial
review
of
the
decision
by
this
court
by
filing
an
application to proceed in forma pauperis on May 24, 2017.122
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
117
Tr. 53, 56.
118
See Tr. 55.
119
See Tr. 44, 56.
120
See Tr. 37.
121
See Tr. 1-5.
122
See Doc. 1, Appl. to Proceed In Forma Pauperis in Related Misc. Case
No. H-17-1337.
21
the record; and 2) substantial evidence in the record supports the
decision.
A.
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
Legal Standard
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving she 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 she
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 12 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); 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 [s]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 [s]he has
22
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform h[er] previous work as
a result of h[er] impairment, then factors such as h[er]
age, education, past work experience, and [RFC] must be
considered to determine whether [s]he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. §§ 404.1520, 416.920.
The analysis stops at any point in
the process upon a finding that the claimant is disabled or not
disabled.
B.
Greenspan, 38 F.3d at 236.
Substantial Evidence
Substantial
evidence
“means—and
means
only—such
relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
Biestek v. Berryhill,
U.S.
, 139 S. Ct.
1148, 1154 (2019)(internal quotations marks omitted).
“[W]hatever
the meaning of ‘substantial’ in other contexts, the threshold for
such evidentiary sufficiency is not high.”
“more than a mere scintilla.”
The
Commissioner
has
conflict in the evidence.
It only requires
Id.
the
Id.
Id.
responsibility
of
deciding
any
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).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.
1988).
See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
In applying this standard, the court is to review the
23
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
Commissioner’s judgment.
Cir. 1999).
In other words, the court is to defer to the decision
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
decision
benefits.
failed
to
Plaintiff
properly
asserts
evaluate
the
that
medical
the
ALJ’s
evidence.
Specifically, Plaintiff takes issue with the ALJ’s assignments of
little
weight
to
Dr.
Williamson’s
Physician’s
Certificate
of
Medical Examination, Dr. Costa’s report, and the DARS Supported
Employment Assessment.
much weight
records.123
to
Dr.
She also complains that the ALJ gave too
Campa’s
opinion
on
review
of
Plaintiff’s
Defendant argues that the ALJ’s decision is legally
sound and is supported by substantial evidence.
The ALJ must evaluate every medical opinion in the record and
decide
what
weight
404.1527(c)(applying
416.927(c)(same).
to
to
give
claims
each.
filed
See
before
20
March
C.F.R.
27,
§§
2017),
Generally, the ALJ will give more weight to
medical sources who treated the claimant because “these sources are
123
Plaintiff mentions that the ALJ gave some weight to the investigative
report but does not argue that he erred in so doing.
24
likely to be the medical professionals most able to provide a
detailed,
longitudinal
picture
of
[the
claimant’s]
medical
impairment(s) and may bring a unique perspective to the medical
evidence
that
cannot
be
obtained
from
the
objective
medical
findings alone or from reports of individual examinations.”
20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Greenspan, 38
F.3d at 237 (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.
1985)); SSR 96-5p, 1996 WL 374183, at *2.
The ALJ is required to give good reasons for the weight given
a
treating
source’s
416.927(c)(2);
opinion.
20
C.F.R.
§§
404.1527(c)(2),
SSR 96-2p, 1996 WL 374188, at *5.
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 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), 416.927(c)(2); see also SSR 96-2p, 1996 WL 374188,
at *1.
When the ALJ does not give a treating physician’s opinion
25
controlling
weight,
he
must
apply
the
following
nonexclusive
factors to determine the weight to give the opinion: (1) the
“[l]ength of the treatment relationship and the frequency of
examination;”
(2)
the
“[n]ature
and
extent
of
the
treatment
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
specialization.
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; the ALJ is
not required to record in writing every step of the process.
See
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 factors in deciding the weight we give to any medical
opinion.”)(emphasis added).
Plaintiff argues that the ALJ failed to give Dr. Williamson’s
medical opinion controlling weight and failed to discuss the
factors listed in 20 C.F.R. §§ 404.1527, 416.927 before deciding
not to afford it controlling weight.
Plaintiff’s argument fails
for several reasons.
First, the ALJ evaluated Dr. Williamson’s opinion and provided
good reasons for affording it little weight.
The ALJ found that
Dr. Williamson’s opinion was not consistent with his treatment
notes and other medical evidence, that it was not consistent with
26
Plaintiff’s own self-reporting, and that the limitations were so
extreme as to lack “even the most basic veracity.”124
Consistency
with the medical record is one of the requirements for affording a
provider’s
opinion
controlling
weight.
See
20
C.F.R.
§§
404.1527(c)(2), 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *1.
Accordingly, the ALJ fulfilled his duty to provide good reasons,
and the disagreement with the ALJ’s conclusion does not support
reversal.
Second, the regulations require only that the ALJ consider the
listed factors before affording a treating physician’s opinion less
than controlling weight. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
In this case, the ALJ specifically stated that he considered all
opinion
evidence
requirements.125
in
accordance
with
these
regulatory
The court finds no reason to doubt that he did.
Third, Dr. Williamson’s opinion that Plaintiff was totally
incapacitated is not consistent with other answers on the form or
his own treatment records.
The only functional area in which Dr.
Williamson identified a deficit was in breaking down complex tasks
into simple steps and carrying them out.
The form indicated that
all areas that applied should be marked.
Dr. Williamson, by
marking only one, found no deficits in Plaintiff’s abilities to
remember, to understand and communicate, to reason logically, and
124
Tr. 53.
125
See Tr. 49.
27
to grasp abstract aspects of her situation, among other areas
listed. Dr. Williamson also found Plaintiff capable of half of the
categories of decisions listed.
Additionally, treatment notes
throughout her treatment with Dr. Williamson reflected essentially
normal
mental
status
examinations
and
successful
medication
management of her impairments, especially toward the end of the
alleged disability period.
Plaintiff’s
contention
that
Dr.
Costa’s
report
on
the
consultative examination should have received greater weight fares
no better.
it
Even though the agency disregarded the report because
contained
incorrect
and
misleading
information,
evaluated it and gave it a limited amount of weight.
the
ALJ
Plaintiff
points specifically to Dr. Costa’s opinions that Plaintiff “may
have difficulty with complex and simple directions” and that she
“may also have difficulty communicating and working with others.”126
Plaintiff complains that those opinions are inconsistent with the
ALJ’s RFC findings that Plaintiff could perform simple work and
could get along with others.
This argument fails for at least two
reasons.
First, the ALJ met his obligation to decide what weight to
give Dr. Costa’s consultative examination report.
Even though she
was not a treating source, the ALJ provided good reasons for
126
Doc. 22, Pl.’s Brief in Support of Summ. J. & Resp. to Def.’s Brief
p. 7.
28
discounting it. He found that it was inconsistent with the medical
record and that Dr. Costa relied on Plaintiff’s self-reporting of
symptoms.
diagnosis
Indeed, other than the record review for Plaintiff’s
history
and
the
mental
status
examination,
all
of
information on which Dr. Costa recorded as the basis for her
opinion was provided by Plaintiff and her stepmother.
The ALJ
therefore complied with the regulations by explaining the weight
given Dr. Costa’s opinion.
In relation to the prior argument, Plaintiff also contends
that, because statements by Plaintiff are considered evidence, the
ALJ should not have discounted Dr. Costa’s opinion.
the point.
his
That misses
The ALJ considered Plaintiff’s subject statements in
decision.
But
filtering
those
statements
through
self-
reporting to a consulting examiner does not elevate their status to
that of medical opinions.
Second,
the
ultimate
responsibility
claimant’s RFC lays with the ALJ.
for
determining
a
20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2); Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir.
2012); SSR 96-5p, 1996 WL 374183, at **2, 5.
The court may not
reweigh the medical evidence or substitute its own opinion as to a
plaintiff’s abilities.
Brown, 192 F.3d at 496.
As the ALJ
committed no error in how he assessed weight to Dr. Costa’s opinion
or how he supported his RFC finding, the court must defer to his
decision.
See id.
29
Plaintiff contends that the DARS assessment supports Dr.
Costa’s report by indicating that Plaintiff was disabled and that
the ALJ erred in affording it little weight.127
This argument also
fails for at least two reasons.
First,
the
DARS
assessment
disability nor could it.
did
not
make
a
finding
of
The DARS assessment opined that it would
be difficult for Plaintiff to attain and maintain a job in a
traditional work setting and suggested the possibility of finding
a job in which she could work from home.
DARS made recommendations
based on its own criteria and guiding principles and was not
qualified to offer an opinion on the ultimate issue of disability
under SSA regulations and guidelines.
determinations
are
reserved
to
the
Regardless, disability
ALJ.
See
20
C.F.R.
§§
404.1527(d)(1), 416.927(d)(1); SSR 96-5p, 1996 WL 374183, at **2,
5.
A medical source’s statement that an individual is disabled
(much less another agency’s opinion) does not bind the ALJ.
See
id.
Second, the ALJ evaluated the DARS opinion and decided to give
it little weight.
Here again, the ALJ surpassed his obligation by
providing good reasons for his weight determination, finding it
inconsistent with the medical evidence and Plaintiff’s ADLs.
127
The
Plaintiff also argues that the DARS assessment’s finding that
Plaintiff may have had difficulty maintaining employment supports a finding that
Plaintiff’s impairments waxed and waned. The medical evidence does not support
that finding. In fact, no evidence suggested that her symptoms waxed and waned
to any degree when she remained compliant with medication prescriptions.
30
ALJ did not err in assigning little weight the DARS assessment.
Finally, Plaintiff briefly challenges the ALJ’s decision to
give Dr. Campa’s record review great weight.
She argues in
essence, but not in so many words, that Dr. Campa ignored Dr.
Costa’s consultative examination. Two reasons defeat this argument
as well.
First, Dr. Campa clearly considered Dr. Costa’s report as he
recorded
her
findings.
Second,
the
ALJ
must
consider
administrative medical findings and may rely on those opinions to
the degree the ALJ finds appropriate.
See 20 C.F.R. §§ 404.1513a,
404.1527, 416.913a, 416.927; SSR 96-5p, 1996 WL 374183, at *6. The
ALJ complied with the regulations by explaining the weight he gave
Dr. Campa’s opinion.
The court has reviewed the entire administrative record and
finds the ALJ’s decision to be legally sound and supported by
substantial evidence.
IV. Conclusion
Based on the foregoing, the court GRANTS Defendant’s CrossMotion for Summary Judgment and DENIES Plaintiff’s Motion for
Summary Judgment.
SIGNED in Houston, Texas, this 19th day of March, 2020.
31
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