Stallings v. Berryhill
Filing
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MEMORANDUM AND ORDER denying 12 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. The Court hereby AFFIRMS the Commissioner's final decision. (Signed by Judge Hilda G Tagle) Parties notified.(CarrieDickie, 6)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
LISA LYNETTE STALLINGS,
Plaintiff,
VS.
NANCY A. BERRYHILL,
Defendant.
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October 30, 2019
David J. Bradley, Clerk
CIVIL NO. 6:18-CV-00006
MEMORANDUM AND ORDER
This is a civil action seeking judicial review of an administrative decision of
Social Security benefits. The Court is in receipt of Plaintiff Lisa Lynette Stallings’
(“Stallings”) Complaint, Dkt. No. 1; Original Brief and Incorporated Memorandum
in Support of Motion for Summary Judgment, Dkt. No. 11; Motion for Summary
Judgment, Dkt. No. 12 and her Reply Brief, Dkt. No. 18. The Court is in receipt of
Defendant Commissioner of the Social Security Administration, (“Commissioner”)
Answer to the Complaint, Dkt. No. 6, and Cross Motion for Summary Judgment,
Dkt. No. 15. The Court is also in receipt of the Administrative Transcript/Record,
Dkt. No. 7.
I.
Background
Stallings seeks judicial review of a final administrative decision of the
Commissioner of the Social Security Administration (“SSA”) pursuant to 42 U.S.C. §
405(g).
Stallings filed an application June 19, 2014 with the Social Security
Administration applying for Social Security Disability Insurance under Title II of
the Social Security Act and for Supplemental Security Income benefits under Title
XVI of the same act. Tr. 162, 221. Both applications claimed Stallings became
disabled on February 11, 2014. Id. She claimed she is disabled due to carpal tunnel,
arthritis, depression, anxiety, bursitis, foot pain, hearing loss, knee pain and spine
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issues. Tr. 357. At the time of her alleged disability occurrence, Stallings was 44
years old with a tenth grade education level. Tr. 233, 358.
Stallings’ application was denied on October 8, 2014 and then again in
reconsideration on February 4, 2015. Tr. 221. Administrative Law Judge (“ALJ”)
Gary J. Suttles held a hearing in the case on May 20, 2016. Tr. 100. In a decision
dated June 21, 2016 (incorrectly stamped June 21, 2015) the Administrative Law
Judge denied Stallings’ application, finding she could perform some light jobs in the
national economy. Tr. 234-35. After submitting additional evidence, Stallings
appealed to the Appeals Council (“AC”) and had her appeal denied on September 25,
2017. Tr. 1-3 The AC found that there was not a reasonable probability that the
additional evidence would change the outcome of the decision. Id. Stallings filed this
case before this Court and incorporated all documentation into the transcript. Dkt.
No. 11 at 3.
a. Hearing
At the hearing, the ALJ inquired for an hour and twenty minutes into the
nature of Stallings’ claims. A Vocational Expert also appeared and testified. Tr. 100.
Most of the issues discussed at the hearing were noted in the ALJ’s decision but the
Court will take note of several points of dispute regarding the ALJ’s inquiry and
Stalling’s submission of evidence:
i. Outstanding Records
At the beginning of the hearing the ALJ inquired into the completeness of the
medical records. Tr. 102-03. The representative for Stallings informed the ALJ that
there were outstanding records. Id. The ALJ gave Stallings two weeks to complete
the record. Id.
ii. Medical commentary
During the hearing the ALJ opined on the quality of the medical advice
Stallings had received:
ALJ: What would contradict the MRI results?
ATTY: No. The MRI results say severe spinal stenosis, Your Honor,
and as you know with the listings, severe spinal stenosis -- our argument
actually is it meets listing level due to the severity of the -2 / 19
ALJ: Not the – well, you’re totally wrong, Counsel. Everybody has
severe stenosis of some degree.
ATTY: Everybody has severe stenosis?
ALJ: And just because you have severe stenosis, that gets you step –
that gets you to step two in the evaluation process. You got a severe
impairment. Okay. I’ll grant it. She’s got a severe back impairment. That’s
about all that gets you. Okay? That doesn’t meet your listing at all. I don’t
know where you get a listing from out of that, but if you look at what the MRI
actually says, it doesn’t indicate there’s any impingement on the nerve root
nor is there any herniation. This says minimal degenerative changes. A
protrusion.
ATTY: Several, yes, and narrowing of the spine. Yes. I see. I read it,
Your Honor.
ALJ: Okay. Wonderful. All I’m saying, ma’am, is with that kind of
result if you let anybody touch you without getting a second opinion, I would
consider that doctor to be on the verge of malpractice, the one that
recommends surgery with this MRI. That’s all I’m telling you. You do what
you want.
Tr. 120-123.
b. Late Medical Records
The ALJ and a representative for Stallings agreed at the hearing on May 20,
2016 to keep the record open for two weeks for Stallings to submit additional
medical records. Tr. 102-103. Two weeks after the hearing Stallings’ attorneys filed
a post hearing memorandum challenging the findings at the hearing. Tr. 311-31.
The memorandum did not provide and did not mention the outstanding medical
records. Id. The ALJ issued his written decision on June 21, 2016, one month after
the hearing. Tr. 218. The additional records were eventually added to Stallings
record and considered by the Appeals Council during its review. Tr. 2.
c. Decision
In his June 21, 2016 decision the ALJ concluded Stallings was not disabled
within the meaning of the Social Security Act. Tr. 221 In a 15-page decision the ALJ
reviewed the five-step process required by statute to render his decision. Tr. 222.
The ALJ held that the claimant met the insured status requirements required by
the Social Security Act; that Stallings had not engaged in substantial gainful
activity since February 11, 2014; and that Stallings had severe impairments of
osteoarthritis of the feet, legs and back, obesity, depression, and anxiety. Tr. 224.
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The ALJ concluded the impairments of hearing loss and carpal tunnel were not
severe under the regulations. Tr. 224. The ALJ held that Stallings did not have a
combination of impairments that meets one of the proscribed categories of
impairments under “20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Tr. 224. This holding was
supported by a finding that Stallings did not have an inability to ambulate or
inability to perform fine and gross movements effectively that would support such
categories. Tr. 224-25.
The ALJ considered each impairment in turn and provided the legal framework
which guided his decision. Tr. 224-26. Specifically, the ALJ found “the records do
not document any neurological defects, significant musculoskeletal abnormalities,
or any serious dysfunctioning of the bodily organs that would preclude a level of
work as delineated in this decision.” Tr. 225. In the final step, the ALJ held: “After
careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), lifting a maximum of 20 pounds and frequently 10 pounds. She can
stand and walk 4 to 8 hours each and sit 6 to 8 hours for a full 8-hour day.” Tr. 227.
The decision went on to note specific physical abilities the ALJ determined Stallings
to be capable of. In support of those conclusions the ALJ outlined the legal
framework he employed and how the medical records fit into that framework. Tr.
227-28. “After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to cause alleged
symptoms; however the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained in this decision.”
Tr. 228. The ALJ then listed relevant medical events from the medical record. Tr.
228-32. The ALJ weighed the opinions of examining and treating doctors. Tr. 232.
The ALJ gave “great weight” to opinions he thought were consistent with the
evidence and “little weight” to those opinions he thought were inconsistent with the
medical records. Tr. 230-33 The opinions of doctors Jeanine Kwun (“Kwun”), Patty
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Rowley (“Rowley”), Susan Thompson (“Thompson”), Arun Jain (“Jain”) and Narvin
Curtis (“Curtis”) were given great weight, Tr. 232, while the opinions of Doctor
Followwill (“Followwill”) and treating physician Neil Campbell (“Campbell”) were
given little weight. Tr. 232-33 Doctor Raul Capitaine’s (“Capitaine”) assessment was
given moderate weight. Tr. 232-33. The ALJ held that considering the age,
education, work experience and functional capacity of Stallings, there are jobs that
exist in significant numbers in the national economy that she can perform. Tr. 234.
Based on the testimony of the vocational expert, the ALJ stated those jobs include
mailroom clerk (non-postal), price marker, and electronics worker. Tr. 234. The ALJ
denied both claims for disability insurance benefits and supplemental security
income. Tr. 235. The ALJ did not consider the objections raised by Stalling’s
representative in the post-hearing memorandum on the grounds that they were
moot because the objections addressed a vocational expert who did not testify at the
hearing. Tr. 221.
II.
Arguments
Stallings moved for summary judgment arguing she is entitled to Social Security
benefits as a matter of law or that the case should be remanded for further
consideration. Dkt. Nos. 11, 12. Her motion presents two general issues: 1) the ALJ
decision did not comply with the substantial evidence standard or the proper
procedural standard and the ALJ dismissed or ignored portions of claimants
medical records favorable to a finding of disability and did not compare the medical
facts to the listings rendering an opinion so devoid of reference that it did not
satisfy the holding of Audler v. Astrue, 501 F. 3d. 466 (5th Cir. 2007). 2) Under 20
C.F.R. § 404.970(b), the new evidence supplied to the Appeals Council is reviewable
by this Court under Fifth Circuit jurisprudence; further, the ALJ’s disability
determination is not supported by substantial evidence because the ALJ failed to
develop the record fully before issuing a decision. Dkt. No. 11 at 2.
The Commissioner made a cross motion for summary judgment. Dkt. No. 15. The
Commissioner argues the ALJ’s decision is supported by substantial evidence as
shown by a decision that made a thorough review of the facts. Id. The
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Commissioner also argues the ALJ complied with all governing legal authorities
and reviewed the whole record before him. Id. at 5. Further, the Commissioner
argues the ALJ properly developed the record and that the additional evidence
submitted by Stallings does not provide reason to change the decision. Id. at 18.
The parties generally agree that this Court’s review concerns whether
substantial evidence supports the ALJ’s decision and whether the proper legal
standard was used in evaluating the evidence. Dkt. Nos. 15-1 at 1, 18 at 1.
a. Weight of reviewing physicians
Stallings argues the ALJ put too much weight on the outdated opinions of
medical reviewers who never met the claimant and did not give credible explanation
for a limited weight given to examining doctors and treating doctors. Dkt. No. 11 at
6. Stallings cites Audler v. Astrue to support her position. Id.; Audler v. Astrue, 501
F.3d 446, 448 (5th Cir. 2007). Stallings returns to this argument later in her motion
and cites Kneeland v. Berryhill for the proposition that failure to address or even
mention treating physicians can lead to an ALJ decision that is not substantially
supported by the evidence. Dkt. No. 11 at 10; Kneeland v. Berryhill, 850 F.3d 749,
759 (5th Cir. 2017). Stallings argues the ALJ played doctor in the hearing and failed
to meaningfully take into account the surgical advisory of a treating physician. Dkt.
No. 11 at 10-11.
The Commissioner counters that state medical consultants are highly
qualified physicians and can be given the weight of expert medical opinions. Dkt.
No. 15-1 at 6. The Commissioner argues that the ALJ gave weight to the doctors’
opinions based on the evidence in the record. Id. Additionally, the Commissioner
argues the medical records that the ALJ reviewed which were dated after the
opinions of the State agency medical consultants indicate Stallings impairments
were “essentially the same as noted at the time that these reviewing physicians
reviewed the records.” Id. Finally, the Commissioner argues the ALJ did not rely
solely on the state medical consultants and instead gave significant weight to the
2014 opinion of treating doctor Campbell, the 2015 consultative examination by
Jain and the opinion of Capitaine. Dkt. No. 15-1 at 7.
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b. Analysis of medical records
Stallings argues the ALJ conducted a selective review of the record. Dkt. No.
6. She lists a series of medical concerns that Stallings believes were not given
sufficient consideration under the appropriate legal framework. Id. at 7. Stallings
argues some conditions were not addressed at all. Id. Her argument focuses on
medical evidence of claimant’s back issues that she argues was not considered. Id.
at 8. “[E]ven though the ALJ stated he would assign spinal stenosis as a severe
impairment, it did not appear listed as one in his decision; osteoarthritis of the
spine is not the same condition as spinal stenosis.” Id. Citing Frank v. Barnhart,
Stallings argues that remand is the only remedy because the correct legal analysis
was not applied to the back issues and the ALJ “refused to hear any analysis and
did not perform one.” Id. at 9; Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003).
Stallings also argues that the mental health opinions were improperly analyzed and
not given consideration under the appropriate listing. Id. She argues the ALJ gave
inappropriate weight to his own understanding of Stallings’ activities and not
enough weight to the medical opinions. Id. at 10. Specifically, she states that the
ALJ did not address Listing 1.02 and did not sufficiently analyze Listing 1.04, 12.04
and 12.06. Id. In support of these arguments Stallings cites Audler and Kneeland.
Id. Audler, 501 F.3d at 448; Kneeland, 850 F.3d at 759.
In the response and cross motion, the Commissioner argues that Stallings
mischaracterizes the ALJ’s decision. Dkt. No. 15-1 at 7. The Commissioner argues
that the ALJ is not required to discuss every piece of evidence and there will always
be some evidence that is not addressed in such a voluminous record. Id. The
Commissioner argues the substantial evidence on the record supports the ALJ’s
decision. Id. The Commissioner argues the ALJ considered all relevant impairments
and to the extent the ALJ did not consider listed impairments, the Commissioner
argues that such error is harmless because claimant does not demonstrate she met
all the criteria for the listed impairments. Id. The Commissioner argues the ALJ
found at least one of Plaintiff’s impairments to be severe and proceeded to the final
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step of the analysis, making a failure to find a particular impairment severe not
reversible error. Id. at 13.
c. Late records
Stallings argues the ALJ did not satisfy his duty to develop facts fully and
fairly. Dkt. No. 11 at 11. She notes that while it is usually the Plaintiff’s
responsibility to furnish the medical records, “this case is exceptional and late
submissions should not be held against the Plaintiff.” Id. Stallings notes that the
ALJ did not offer to issue a subpoena to compel the issuance of the records. Id. In
support of her argument she cites Ripley v. Chater and Brock v. Chater. Id.; Ripley
v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); Brock v. Chater, 84 F.3d 726, 728 (5th
Cir. 1996). Stallings also argues additional records may be examined by a reviewing
court to see if there is a reasonable probability the records could change the ALJ’s
mind about a disability determination. Dkt. No. 11 at 12. Stallings argues the ALJ
was required to provide a weight and good reasons for the treating source opinions
in the records submitted after his decision. Id.
The Commissioner agrees that the ALJ has a duty to fully and fairly develop
the facts relative to a claim for disability. Dkt. No. 15-1 at 18. The Commissioner
argues Stallings missed the deadline set by the ALJ to submit the records and the
ultimate burden to provide evidence rests with the claimant. Id. at 19. Further, the
Commissioner argues that even if the ALJ was required to request further
documentation any error would be harmless because she has not shown prejudice
from the error. Id. The Commissioner argues the newly submitted evidence is
consistent with the evidence already in the record. Id. at 21. The Commissioner also
argues that Stallings failed to adequately request relief with citation to authorities,
statutes, and parts of the record and so has waived the issue. Id. The Commissioner
supports these arguments with citation to numerous cases including Sun v. Colvin,
Castillo v. Barnhart and Weaver v. Puckett. Id.; Sun v. Colvin, 793 F.3d 502 (5th
Cir. 2015); Castillo v. Barnhart, 325 F.3d 550 (5th Cir. 2003); Weaver v. Puckett, 896
F.2d 126 (5th Cir. 1990).
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III.
Legal Standards
a. Standard of Review
The standard for judicial review is the same for claims of disability insurance
and supplemental security income benefits. Myers v. Barnhart, 285 F. Supp. 2d 851,
858 (S.D. Tex. 2002); compare 42 U.S.C. § 405(g) with 42 U.S.C.
§ 1383(c)(3).
Judicial review of the Commissioner’s decision to deny benefits is limited to two
inquires: (1) whether the Commissioner used the proper legal standards to evaluate
the evidence and (2) whether the decision is supported by substantial
evidence. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002); 42 U.S.C. §
405(g). “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)). “ ‘It is
more than a mere scintilla and less than a preponderance.’ ” Boyd v. Apfel, 239 F.3d
698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)).
“If the Commissioner’s findings are supported by substantial evidence, then the
findings
are
conclusive
and
the
Commissioner’s
decision
must
be
affirmed.” Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam)
(citations omitted). If, on the other hand, the Commissioner’s findings are not
supported by substantial evidence, or the Commissioner incorrectly applied the law,
the reviewing court may, inter alia, reverse the Commissioner’s decision and
remand the case for further proceedings. Murkeldove v. Astrue, 635 F.3d 784, 792
(5th Cir. 2011) (discussing a remand pursuant to sentence four of 42 U.S.C. §
405(g)).
In determining whether substantial evidence of disability is present, the
court “weighs four factors: (1) objective medical evidence; (2) diagnoses and
opinions; (3) the claimant’s subjective evidence of pain and disability; and (4) the
claimant’s age, education, and work history.” Perez v. Barnhart, 415 F.3d 457, 462
(5th Cir. 2005) (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)). The
court must scrutinize the entire record to determine whether such evidence is
present, but it may not reweigh the evidence, try the issues de novo, or substitute
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its judgment for that of the Commissioner, even if the evidence weighs against the
Commissioner’s decision. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (per
curiam); Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
b. Standard for Entitlement to Social Security Benefits and
Burden of Proof
An individual applying for benefits bears the initial burden of proving that he
or she suffers from a disability, which is defined 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 12 months.” 42
U.S.C. § 423(d)(1)(A); Perez, 415 F.3d at 461 (citations omitted). “Substantial gainful
activity is defined as work activity involving significant physical or mental abilities
for pay or profit.” Newton, 209 F.3d at 452-53 (citing 20 C.F.R. § 404.1572(a)–(b)).
In evaluating a disability claim, the Commissioner is required to conduct a
five-step sequential analysis to determine “(1) whether the claimant is currently
engaged in substantial gainful activity (whether the claimant is working); (2)
whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals the severity of an impairment listed in 20 C.F.R., Part
404, Subpart P, Appendix 1; (4) whether the impairment prevents the claimant
from doing past relevant work (whether the claimant can return to his [or her] old
job); and (5) whether the impairment prevents the claimant from doing any other
work.” Perez, 415 F.3d at 461 (citations omitted). The claimant bears the burden of
showing that she is disabled through the first four steps of the analysis; on the fifth,
the Commissioner must show that there is other substantial work in the national
economy that the claimant can perform. Audler, 501 F.3d at 448. “Once the
Commissioner makes this showing, the burden shifts back to the claimant to rebut
this finding.” Perez, 415 F.3d at 461.
If, at any step, the Commissioner can determine that the claimant
is disabled or not disabled, that ends the analysis. Lovelace v. Bowen, 813 F.2d 55,
58 (5th Cir. 1987). If, however, the Commissioner cannot make such a finding, the
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analysis proceeds to the next step. Perez, 415 F.3d at 461. Before considering the
fourth and fifth steps, the Commissioner must assess the claimant’s residual
functional capacity (“RFC”), which is, in layman’s terms, her maximum work
capability. Id. at 461-62; 20 C.F.R. §§ 404.1520(e), 404.1545(a). “The claimant’s RFC
is used at both steps four and five of the sequential analysis: at the fourth step to
determine if the claimant can still do his [or her] past relevant work, and at the
fifth step to determine whether the claimant can adjust to any other type of
work.” Perez, 415 F.3d at 462 (citing § 404.1520(e)). Finally, even if a court finds
legal error in the ALJ’s legal application it must apply harmless error analysis to
determine if the error unfairly prejudiced the claimant. Frank, 326 F.3d at 621-22.
c. Development of the record
An administrative law judge has a duty to fully and fairly develop the facts
relative to a claim for disability benefits. Carey v. Apfel, 230 F.3d 131, 142 (5th Cir.
2000). If the ALJ does not satisfy their duty, the decision may not be substantially
justified. Ripley, 67 F.3d at 557. But reversal is only justified with a showing of
prejudice that might have altered the result. Id. The Fifth Circuit has held that the
duty to develop the record does not include a duty to obtain all of a claimant’s
medical records before reaching a decision. Sun v. Colvin, 793 F.3d 502, 509 (5th
Cir. 2015). “This court has described the ALJ's duty as one of developing ‘all
relevant facts,’ not collecting all existing records.” Id. The focus is on the extent of
the questioning and whether the ALJ inquired into information necessary to make
their decision. Id.; see e.g., Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)
(holding a single question into a medical issue during a five minute hearing
insufficient to meet the duty); Castillo v. Barnhart, 325 F.3d 550, 553 (5th Cir.
2003) (finding sufficient questioning into the claimants age, education, and medical
history).
A reviewing court may consider the evidence incorporated in the record after
the ALJ makes his decision but before the Commissioner’s decision is final.
Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005) (“It follows that the
record before the Appeals Council constitutes part of the record upon which the
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final decision is based.”). The reviewing court may remand if, after review, it finds
the records are so substantial as to potentially change the outcome of the ALJ’s
decision. Whitehead v. Colvin, 820 F.3d 776, 780 (5th Cir. 2016).
IV.
Analysis
a. Weight of reviewing physicians
Treating physician opinions are generally entitled to significant weight.
Kneeland, 850 F.3d at 760. The regulations require that examining physician’s
opinions must be considered. Id.; see 20 C.F.R. § 404.1527(c)(1).
If there is no
reliable medical evidence from a treating or examining physician controverting the
claimant’s treating doctor, the ALJ may only reject the opinion of a treating
physician if the ALJ performs a detailed analysis of the treating physicians’ views
under 20 C.F.R. § 404.1527(d)(2). Id. The ALJ has sole responsibility for
determining the claimant’s disability status and is free to reject the opinion of any
physician when the evidence supports a contrary conclusion. Newton, 209 F.3d at
455. “[W]hen good cause is shown, less weight, little weight, or even no weight may
be given to the physician’s testimony.” Perez, 415 F.3d at 466. Good cause
exceptions include “disregarding statements that are brief and conclusory, not
supported by medically acceptable clinical laboratory diagnostic techniques, or
otherwise unsupported by the evidence.” Greenspan v. Shalala, 38 F.3d 232, 237
(5th Cir. 1994)
Despite Stallings contentions, this is not a circumstance where the ALJ failed
to account for the opinion of treating or examining physicians. Dkt. Nos. 11, 18; see
Audler, 501 F.3d at 448. The ALJ noted and gave varying degrees of weight to the
opinions of examining doctors. Tr. 229-31. Indeed, the ALJ had numerous opinions
of treating, examining and reviewing doctors to weigh in making his decision. The
ALJ stated the doctors’ opinions, the opinion’s relation to the evidence of record and
the weight he gave the opinion. Tr. 229-331. Regarding treating doctor Campbell,
the ALJ noted his 2014 follow up appointment finding healing in the Achilles repair
and ordering physical therapy. Tr. 229. The ALJ later noted Dr. Campbell’s finding
in 2014 that Stallings could work part time. Tr. 233, 765. He gave the opinion little
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weight because the opinions “are not consistent with the treating records, other
records in the file as described above, and are not consistent with what the claimant
stated she is able to do.” Tr. 233. The medical records included ample evidence from
other doctors about Stallings’ strength, which contradict the conclusory opinion
from Dr. Campbell (in the form of a checked box on a chart) recommending part
time work and the number of hours Stallings could stand per day. Tr. 765. In the
hearing and decision, the ALJ noted, analyzed, and weighed the opinions of treating
doctors Campbell and Smith; examining doctors Jain, Followwill, and Capitaine;
and evaluating doctors Kwun, and Rowland, Curtis, and Susan Thompson. Tr. 22131, 822.
Here, the ALJ cited medical evidence from examining or treating doctors that
contradicted parts of the opinions of treating Doctor Campbell and he weighted the
doctor’s opinions accordingly. Tr. 221-31; see Kneeland, 850 F.3d at 760. Therefore,
no detailed analysis under 20 C.F.R. § 404.1527(d)(2) was required. See id. This
Court will not reweigh the evidence or the ALJ’s weighting of the opinions of the
various doctors. See id; Myers v. Apfel, 238 F.3d at 619. Stallings only partially
quotes the language in Newton regarding the rejection of a treating physician’s
opinion. Dkt. No. 18 at 7. The rest of the quotation provides that other evidence
from a treating or examining physician may be used to reject another treating
physician’s opinion. Newton, 209 F.3d at 453. Stallings cites Kneeland and Audler
in support of her position, but both cases concern the total disregard of a medical
opinion which is not the case here. See Audler, 501 F.3d at 448; Kneeland, 850 F.3d
at 759. Accordingly, the Court rejects Stallings contention that error occurred in
the weighing of the doctor’s opinions.
b. Analysis of medical records
As stated above in determining whether substantial evidence of disability is
present, the court “weighs four factors: (1) objective medical evidence; (2) diagnoses
and opinions; (3) the claimant’s subjective evidence of pain and disability; and (4)
the claimant’s age, education, and work history.” Perez, 415 F.3d at 462. The court
must scrutinize the entire record to determine whether such evidence is present,
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but it may not reweigh the evidence, try the issues de novo, or substitute its
judgment for that of the Commissioner, even if the evidence weighs against the
Commissioner’s decision. Myers, 238 F.3d at 619; Newton, 209 F.3d at 452.
Error can occur when an ALJ fails to identify a listing for which there is
evidence or fails to explain how they reached a conclusion that the evidence is
insufficient to reach such a listing. Audler, 501 F.3d at 448. Yet, the claimant must
show harm from the error by showing that they appeared to meet the listing. Id.
Procedural perfection in administrative proceedings is not required. Id.
Although the ALJ stated he made a “careful consideration of all the
evidence,” this Court still conducts its review to see if in fact the decision is based
on substantial evidence from the entire record. See Myers, 238 F.3d at 619. Stallings
contends the ALJ failed to consider several listed impairments, the Court will
consider each of these in turn.
i. Listing 1.02
Stallings argues that Listing 1.02, Major Dysfunction of a Joint, should have
been considered by the ALJ because of evidence of such a listing. Dkt. No. 11 at 7.
In her reply, Stallings indicates that an MRI documented severe damage to her
right foot requiring surgery on November 1, 2013. Dkt. No. 18 at 6. She argues she
had surgery on her foot February 11, 2014 and then was prescribed physical
therapy September 8, 2014 when she saw Dr. Campbell. Id. at 6.
Listing 1.02 requires:
101.02 Major dysfunction of a joint(s) (due to any cause): Characterized
by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous
ankylosis, instability) and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint(s), and
findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively
B. Involvement of one major peripheral joint in each upper extremity
(i.e., shoulder, elbow, or wrist-hand), resulting in inability to
perform fine and gross movements effectively, as defined in
101.00B2c.
20 C.F.R. § Pt. 404, Subpt. P, App. 1
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Such a showing must be made for at least 12 months. 20 C.F.R. § Pt. 404, Subpt. P,
App. 1. The medical evidence Stallings cites runs from November 1, 2013 to
September 8, 2014, which is not a one year period. The next medical record she cites
comes from Jain eleven months after the surgery where Jain finds she is
“ambulating normally” and includes a range of motion chart for Stallings’ ankle.
Dkt. No. 18 at 6; Tr. 599-610. The exam found no ankle swelling and 5/5 strength in
the upper and lower extremities. Tr. 601. Even the September 8, 2014 exam by Dr.
Campbell Stallings cites makes no finding regarding ambulation or inability to
perform gross movements, as needed to meet 1.02, and relates only patient concerns
of tenderness on her ankle. Tr. 720-722.
Because Stallings has not made a showing that she suffered from a listing for
a 12-month period the Court finds that any ALJ error in failing to note listing 1.02
is harmless. See Audler, 501 F.3d at 448
ii. Listing 1.04
Stallings makes a similar argument regarding Listing 1.04, Disorders of the
spine. Stallings argues the listing was not named or methodically analyzed and that
the ALJ played doctor and was inappropriately dismissive of a 2015 MRI and
surgical recommendation. Dkt. No. 11 at 7. The Commissioner argues the ALJ
discussed the elements of the listing even if he did not state it by name and any
error on his part is harmless. Dkt. No 15-1 at 10. The Commissioner also argues
that Stallings has not made a showing that she qualifies for the listing.
Listing 1.04 requires:
101.04 Disorders of the spine (e.g., lysosomal disorders, metabolic
disorders, vertebral osteomyelitis, vertebral fracture, achondroplasia)
resulting in compromise of a nerve root (including the cauda equina) or the
spinal cord, with evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss
(atrophy with associated muscle weakness or muscle weakness) accompanied
by sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
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As the Commissioner points out, although the ALJ did not state the name of
the listing in his decision, the ALJ did cite evidence in the record that demonstrates
Stallings does not qualify for Listing 1.04. See Dkt. No. 15-1 at 10. This includes
findings: regarding the normal range of motion of the lumbar spine and normal
findings of the musculoskeletal system, Tr. 229, 230, 563, 840-41; a finding of
normal motor strength and no motor disturbances, Tr. 228-30, 566-67, 600-01, 822,
1131, 1190; and normal sensation and reflexes. Tr. 229-30, 600-01, 822, 1131, 1190.
ALJs must “be careful not to succumb to the temptation to play doctor.”
Frank, 326 F.3d at 622. The ALJ should not draw his own medical conclusions from
the medical data without relying on the expert’s help. Id. If the ALJ substitutes his
medical judgment and bases his decision primarily on that substitution, error
occurs. Id. Yet these errors of judgment are also subject to harmless error analysis.
Id.
Stallings’ challenge of the ALJ’s consideration of the 2015 MRI and Dr.
Smith’s surgery recommendation is well taken. See Dkt. No. 18 at 9. His inquiry
into the MRI involved personal opinion and personal interpretation of medical data.
See Tr. 122-23. When the ALJ said “All I’m saying, ma’am, is with that kind of
result if you let anybody touch you without getting a second opinion, I would
consider that doctor to be on the verge of malpractice,” he crossed from inquiry to
dispensing personal opinion. Tr. 120-123. The same can be said for his opinion:
“ALJ: Not the – well, you’re totally wrong, Counsel. Everybody has severe stenosis
of some degree.” Tr. 122.
After noting this error, the Court still must do a harmless error analysis. See
Frank, 326 F.3d at 622. Here, Stallings has not shown in the record a 12-month
period during which she qualified for the 1.04 listing. See Dkt. Nos. 11, 18. She has
not shown how the inappropriate remark affects the evidence the ALJ did cite in
the record and which was the basis for his decision. Id. Stallings puts too great an
emphasis on the MRI and opinion of Smith to offer surgery. Tr. 822. Even if the ALJ
had considered the MRI and Smith’s opinion in her favor it would not establish a 12
month period during which she met the 1.04 listing or overcome the other medical
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opinions in the record that the ALJ relied on for his decision that touched on the
1.04 listing. Tr. 228-30, 566-67, 600-01, 822, 1131, 1190; See Frank, 326 F.3d at 622.
For the foregoing reasons, the Court concludes that any ALJ error related to
failing to note Listing 1.04 is harmless. See Audler, 501 F.3d at 448-49.
iii. Mental Health Evaluation Listings 12.04 and 12.06
Stallings claims the ALJ failed to address Listing 12.04, Affective Disorders,
and Listing 12.06, Anxiety Disorders. Dkt. No. 11 at 9. Stallings contends that
although the ALJ mentions these listings, he used his own understanding and
opinions regarding her activities to find them not applicable. Id. Stallings argues
that notes such as, “She is fairly limited in performing her activities at home due to
her ongoing pain,” were ignored. Dkt. No. 11 at 10.
The Commissioner argues that the ALJ used the totality of the mental health
evaluations to make his decisions. Dkt. No. 15-1 at 15. The Commissioner argues
the ALJ used the evaluations of Capitaine, Curtis, and Thompson to find that
Stallings had mild limitations in her daily activities. Id.
The ALJ accounted for the mental health evaluations in his decision, weighed
the opinions of the doctors and reached a conclusion that took them into account
and found mild limitations for Stallings. See Tr. 168, 180, 226, 231. This Court will
not reweigh the evidence that the ALJ has considered. See Myers, 238 F.3d at 619.
The Court finds there is substantial evidence for the ALJ’s mental health
decision, and the correct legal framework was applied.
c. Late records
An administrative law judge has a duty to fully and fairly develop the facts
relative to a claim for disability benefits. Carey, 230 F.3d at 142. If the ALJ does not
satisfy his duty, the decision may not be substantially justified. Ripley, 67 F.3d at
557. The Fifth Circuit has held that the duty to develop the record does not include
a duty to obtain all of a claimant’s medical records before reaching a decision: “This
court has described the ALJ’s duty as one of developing ‘all relevant facts,’ not
collecting all existing records.” Sun, 793 F.3d at 509.
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As noted above, Stallings clearly missed the deadline the ALJ set for the
submission of outstanding medical records. Tr. 102-103. During the hearing the
ALJ inquired into relevant facts as required by his duty to develop the record. Tr.
100; see Sun, 793 F.3d at 509. Even when she contacted the ALJ later Stallings did
not mention the outstanding documents. Tr. 311-31. The ALJ issued his decision a
several weeks after the deadline to submit outstanding medical records had passed.
Tr. 235. The Court finds that the ALJ’s duty to fully and fairly develop the record
was satisfied.
Once a record is supplemented, a reviewing court may consider the evidence
incorporated in the record after the ALJ makes his decision but before the
Commissioner’s decision is final. Higginbotham, 405 F.3d at 337 (“It follows that the
record before the Appeals Council constitutes part of the record upon which the
final decision is based."). It is not appropriate for a reviewing court to consider
evidence of a deterioration of condition dated after the ALJ rendered his decision.
Hamilton-Provost v. Colvin, 605 F. App'x 233, 238 (5th Cir. 2015).
Stallings cites to the additional records as evidence of a worse spine condition
than the ALJ considered. Dkt. No. 11 at 13.
After a thorough examination of the additional records the Court finds the
additional records are either outside the period at issue or generally consistent with
evidence already in the record regarding Stallings’ spinal and mental health
problems and not so significant as to require remand. See Tr. 7-99; Whitehead v.
Colvin, 820 F.3d 776, 780 (5th Cir. 2016); Hamilton-Provost, 605 F. App'x at 238.
V.
Conclusion
After a review of the entire record and pursuant to the discussion above the
Court finds the ALJ’s decision is supported by substantial evidence, and the correct
legal standard was applied. See Masterson, 309 F.3d at 272. As discussed above,
the Court finds possible errors by the ALJ raised by Stallings were harmless to the
decision.
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For the foregoing reasons the Court hereby:
AFFIRMS the Commissioner’s final decision;
DENIES Plaintiff’s Motion for Summary Judgment, Dkt. Nos. 11, 12;
GRANTS Defendant’s Cross Motion for Summary Judgment, Dkt. No. 15.
The Court will direct entry of final judgment separately.
SIGNED this 30th day of October, 2019.
___________________________________
Hilda Tagle
Senior United States District Judge
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