Pena v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER. The Court hereby ORDERS that the decision of the Commissioner be REVERSED AND REMANDED consistent with this opinion. Signed by Judge Robert F. Castaneda. (gp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JOE V. PENA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Defendant.

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CIVIL NO.
3:15-CV-00139-RFC

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Jurisdiction is
predicated upon 42 U.S.C. § 405(g). Both parties having consented to trial on the merits before a
United States Magistrate Judge, the case was transferred to this Court for trial and entry of judgment
pursuant to 28 U.S.C. § 636(c), and Rule CV-72 and Appendix C to the Local Court Rules for the
Western District of Texas.
Plaintiff appeals from the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying his applications for disability insurance benefits (“DIB”)
and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act. For
the reasons set forth below, this Court orders that the Commissioner’s decision be REVERSED and
REMANDED for further proceedings.
PROCEDURAL HISTORY
On May 27, 2010, Plaintiff filed applications for DIB and SSI, alleging a disability onset
date of September 8, 2009. (R:247-250) His applications were denied initially and denied upon
reconsideration. (R:110-119) Plaintiff filed a request for a hearing, which was conducted on May
21, 2012. (R:32-58, 121-125) The Administrative Law Judge (“ALJ”) issued a decision on August

22, 2012, denying benefits. (R:61-81) The Appeals Council (“AC”) remanded that decision on
December 2, 2013, and a second ALJ hearing was held on August 22, 2014. (R:82-84, 8-31) The
ALJ issued another decision on December 12, 2014, denying benefits. (R:86-109) Subsequently,
the AC denied review. (R:3-7)
ISSUE
Plaintiff presents the following issue for review:
1. Whether the ALJ failed to give Plaintiff’s treating physicians’ opinions the proper weight
when determining Plaintiff’s residual functional capacity (“RFC”). (Doc. 20:4)
Plaintiff contends that the ALJ failed to give the proper weight to Dr. Thomas Curtis and Dr.
Daniel Capen, Plaintiff’s treating physicians, when making the RFC determination. (Doc. 20:4)
Specifically, Plaintiff maintains that the ALJ improperly accorded “very little weight” to Dr. Curtis
and Dr. Capen without providing sufficient rationale. (Id. at 8) Plaintiff argues that medical
evidence cannot be discredited without good cause, and that the ALJ cannot merely pick and choose
evidence that supports her position. (Id. at 9) Plaintiff maintains that the ALJ failed to properly
consider the entire record and that the RFC assessment is not supported by substantial evidence,
resulting in an inaccurate RFC determination. Id. Consequently, Plaintiff seeks a reversal and
remand for an award of benefits or for further administrative proceedings. Id. Defendant responds
that the ALJ properly weighed the treating sources’ opinions, and that substantial evidence supports
the ALJ’s findings and conclusions. (Doc. 21:3, 9)

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DISCUSSION
I. Standard of Review
This Court’s review is limited to a determination of whether the Commissioner’s decision
is supported by substantial evidence, and whether the Commissioner applied the proper legal
standards in evaluating the evidence. See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309 F.3d 267,
272 (5th Cir. 2002) (citations omitted); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)
(citation omitted).

“Substantial evidence ‘is more than a mere scintilla, and less than a

preponderance.’” Masterson, 309 F.3d at 272 (citation omitted). The Commissioner’s findings will
be upheld if supported by substantial evidence. Id. (citation omitted). A finding of no substantial
evidence will be made only where there is a conspicuous absence of credible choices or no contrary
medical evidence. Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (per curiam) (internal
quotation marks and citation omitted).
In applying the substantial evidence standard, the court may not reweigh the evidence, try the
issues de novo, or substitute its own judgment for the Commissioner’s, even if it believes the
evidence weighs against the Commissioner’s decision. Masterson, 309 F.3d at 272 (citation
omitted). Conflicts in the evidence are for the Commissioner and not the courts to resolve. Id.;
Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citation omitted).
II. Evaluation Process
The ALJ evaluates disability claims according to a sequential five-step process: (1) whether
the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe
medically determinable physical or mental impairment; (3) whether the claimant’s impairment(s)
meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart B, Appendix 1; (4)
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whether the impairment prevents the claimant from performing past relevant work; and (5) whether
the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520. The
claimant bears the burden of proof at the first four steps of the analysis. Leggett v. Chater, 67 F.3d
558, 564 (5th Cir. 1995).
In the present case, the ALJ found that Plaintiff had severe impairments of: post-concussive
syndrome; tinnitus; and, a depressive disorder, not otherwise specified, with anxiety (20 C.F.R. §
404.1520(c)). (R:92) The ALJ determined that none of Plaintiff’s impairments, either alone or in
combination, met or medically equaled one of the listed impairments. Id. Upon considering the
entire record, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at
all exertional levels but with the following non-exertional limitations: Plaintiff can understand,
remember, and carry out simple instructions; can maintain attention and concentration to perform
only simple tasks for two hours at a time without requiring redirection to task; can have only
occasional contact with the general public; can have only superficial interactions with co-workers
and supervisors; requires work involving no more than occasional change in the routine work
setting; cannot work in more than a moderately loud work environment; and, must avoid unprotected
heights. (R:94) The ALJ next found that Plaintiff was unable to perform any past relevant work as
a machinist. (R:101) After considering Plaintiff’s RFC, age, education, and work experience, as
well as the vocational expert’s testimony, the ALJ determined that there were a significant number
of jobs in the national economy that Plaintiff could perform, such as a janitor, hand packager,
stocker, assembler, electronics assembler, and a finish inspector. (R:102-103) Consequently, the
ALJ found that Plaintiff was not disabled through the date of the decision. (R:103)

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III. The ALJ’s Determination of Plaintiff’s Residual Functional Capacity
Plaintiff contends that substantial evidence does not support the ALJ’s determination that he
retains the capacity to perform a full range of work at all exertional levels, because the ALJ failed
to give proper consideration to the opinions of Dr. Curtis and Dr. Capen. (Doc. 20:8) Additionally,
Plaintiff argues that had the ALJ properly weighed the treating doctors’ opinions and treatment
records, the ALJ would have likely found Plaintiff disabled. Id.
RFC is the most an individual can still do despite his limitations. 20 C.F.R. § 404.1545; SSR
96-8p. The responsibility to determine the Plaintiff’s RFC belongs to the ALJ. Ripley v. Chater,
67 F.3d 552, 557 (5th Cir. 1995). In making this determination, the ALJ must consider all the record
evidence and determine the Plaintiff’s abilities despite his physical and mental limitations. Martinez
v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). The ALJ must consider the limiting effects of an
individual’s impairments, even those that are non-severe, and any related symptoms. See 20 C.F.R.
§§ 404.1529, 404.1545; SSR 96-8p. The relative weight to be given the evidence is within the ALJ’s
discretion. Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001). The ALJ is not required to
incorporate limitations in the RFC that she did not find to be supported in the record. See Morris
v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
It is Plaintiff’s burden to establish disability and to provide or identify medical and other
evidence of his impairments. See 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512(c). A medically
determinable impairment must be established by acceptable medical sources. 20 C.F.R. §
404.1513(a). Plaintiff’s own subjective complaints, without objective medical evidence of record,
are insufficient to establish disability. See 20 C.F.R. §§ 404.1508, 404.1528, 404.1529

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In the instant case, Plaintiff contends that the ALJ’s decision is not supported by substantial
evidence and results from legal error. (Doc. 20:2-3) Specifically, Plaintiff claims that the ALJ gave
the opinion of Dr. Curtis very little weight solely on speculation that his opinion was not credible
because he had a financial interest in the outcome of the case and was paid to testify. (Doc. 20:4)
Plaintiff contends that the ALJ erred in discrediting Dr. Curtis’ opinion by not giving it proper
consideration. (Doc. 20:8)
The Commissioner responds by arguing that the ALJ properly considered the inconsistency
of Dr. Curtis’ opinion in relation to the record as a whole, which is a relevant factor for weighing
treating sources’ opinions, when determining the level of weight to accord. (Doc. 21:3) Thus, the
Commissioner asserts that the ALJ provided good cause for not giving controlling weight to the
opinion of Dr. Curtis, as well as the opinion of Dr. Capen, because a detailed discussion of the
medical evidence was provided. Id.
The treating physician rule provides that “[t]he opinion of the treating physician who is
familiar with the claimant’s impairments, treatments and responses, should be accorded great weight
in determining disability.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). An ALJ must always
give good reasons in the notice of decision for the weight given to a treating physician’s opinion.
20 C.F.R. 404.1527(c)(2) (emphasis added). Moreover, when a decision is unfavorable to the
plaintiff,
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 the weight.

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SSR 96-2p (emphasis added); see also Staley v. Astrue, No. 4:12-CV-00184, 2013 WL 2950057, at
*4 & n.1 (E.D. Tex. June 13, 2013) (applying SSR 96-2p and holding that the ALJ’s failure to
explain the weight he gave to the treating physician’s opinion constituted error).
The assertion by the ALJ that Dr. Curtis had a financial interest in the lawsuit and was paid
to testify may well be true; nevertheless, without further clarification, it is not a good reason for
giving little weight to Dr. Curtis’ opinion in light of the record in this case. It is inappropriate for
the ALJ to engage in this type of rationalization when there is no concrete basis for doing so. This
is true because there is no evidence in the record to suggest that Dr. Curtis based his opinion on
anything other than his best professional judgment. Any other conclusion is based on pure
speculation. Nor does the ALJ provide any indication of how much weight was attributed to this
improper reason in determining that Dr. Curtis’ opinion should be given little weight, thus making
it impossible to conclude that this error was harmless. The Court finds that the improper reason
given by the ALJ for assigning little weight to Dr. Curtis’ opinion was inappropriate and constitutes
a violation of the requirements set forth in the regulations, thus resulting in legal error. When the
ALJ fails to use the appropriate legal standard in assessing the opinion of a plaintiff”s treating
physician, the case must be remanded. See Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000);
Martinez v. Chater, 64 F.3d172, 173 (5th Cir. 1995); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.
1990); 42 U.S.C. § 405(g). While there may well be sufficient evidence in the record to establish
good cause for giving Dr. Curtis’ opinion little weight on remand, and the same outcome may result,
the Court cannot excuse the existence of harmful error which exists at this time.
In light of this error, the Court reverses and remands this case for the ALJ to properly assess
the opinion of Plaintiff’s treating physician Dr. Curtis, in accordance with the appropriate legal
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standards. Because the Court remands on this particular basis, the Court declines to address
Plaintiff’s other allegations of error. On remand, Plaintiff can raise any remaining issues before the
ALJ. 20 C.F.R. § 404.983 (providing that when a case is remanded from federal court, the ALJ may
consider any issues relating to the claim).
CONCLUSION
Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner
be REVERSED and REMANDED consistent with this opinion.
SIGNED and ENTERED on June 29, 2016.

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ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

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