Myers v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER. Signed by Judge Leon Schydlower. (mc4)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CHARLES W. MYERS,
Plaintiff,
v.

§
§
§
§

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Defendant.

NO. EP-16-CV-0033-DCG
(-LS by consent)

§
§
§
§

MEMORANDUM OPINION AND ORDER
Plaintiff Charles W. Myers ("Myers") seeks judicial review of the Commissioner's
affirmance of the denial of Social Security benefits pursuant to 42 U.S.C.

§

405(g). The parties

consented to the transfer of the case to this Court for determination and entry of judgment. 28
U.S.C.

§

636(c); Local Court Rule CV-72. Myers argues that the Commissioner's decision should

be reversed and remanded for a rehearing. Finding no error, the Commissioner's decision is

affirmed.
I. Facts and Proceedings
Myers applied for disability benefits in May 2012, alleging that he had been disabled since
May 1, 2009 because of arthritis, diabetes, and hypertension. After the Commissioner denied both

Myers' initial application and his request for reconsideration, the Administrative Law Judge (AU)
held a hearing in August 2014 at which Myers was represented by counsel and at which Myers and
a vocational expert testified. The AU determined that Myers was not disabled within the meaning

of the Social Security Act. The Appeals Council denied Myers' request for review, and the
decision of the AU became the final decision of the Commissioner.
Myers argues that the AU failed to properly evaluate the medical opinions of a treating

physician assistant. He also argues that AU failed to take into consideration his "excellent" work

history when evaluating his credibility.

II. Analysis
A. Legal Background

Judicial review of the Commissioner's decision is limited to two inquiries: 1) whether the
decision is supported by substantial evidence on the record as a whole; and 2) whether the

Commissioner applied the proper legal standards. Perez
2005); Masterson

v.

Barnhart, 309 F.3d 267, 272

(5th

v.

Barnhart, 415 F.3d 457, 461

(5th

Cir.

Cir. 2002). Substantial evidence "is more

than a mere scintilla, and less than a preponderance." Masterson, 309 F.3d at 272. The

Commissioner's findings will be upheld if supported by substantial evidence. Id.
In evaluating a disability claim, the Commissioner must follow a five-step sequential

process to determine whether (1) the claimant is presently working; (2) the claimant's ability to
work is significantly limited by a physical or mental impairment; (3) the claimant's impairment

meets or equals an impairment listed in the appendix to the regulations; (4) the impairment

prevents the claimant from doing past relevant work; and (5) the claimant cannot presently
perform relevant work. Boyd

v.

Apfel, 239 F.3d 698, 704-05 (5th Cir. 2001); 20 C.F.R.

§

404.1 520(a)(4).

Courts utilize four elements of proof to determine whether there is substantial evidence of
disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining

physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age,
education, and work history. Perez, 415 F.3d at 462. A court cannot, however, reweigh the
evidence or try the issues de novo. Cook

v.

Heckler, 750 F.2d 391, 392 (5th Cir. 1985). The

Commissioner, not the courts, must resolve conflicts in the evidence. See Patton v. Schweiker, 697

2

F.2d 590, 592 (5th Cir. 1983).
B.

Physician Assistant's Medical Opinion

The AU found that Myers had osteoarthritis in his knees which constituted a severe

impairment, but found that Myers retained the residual functional capacity ("RFC") to perform

"light work" with some exertional limitations. At step 4 of the analysis, the AU found that Myers
could perform his past work as a vice president, and found at step 5 that there were other jobs in the
economy that Myers could do as well. Myers argues the AU erred because she "rejected" the

"treating source opinion" of John Almeida, a physician assistant who saw Myers. The record does
not support this contention.

Not only did the AU not reject Almeida's opinions and clinical observations, she relied on
them in generating Myers' RFC. She specifically relied upon Almeida's clinical observations
about Myers' knee problems, including pain, swelling, and tenderness, which she found consistent
with Myers' complaints. Almeida's observations, along with those of consulting orthopedist Dr.
Bean, established "definite knee impairment." Indeed, the AU affirmatively utilized Almeida's

clinical observations, in Myers' favor, to counter the medical opinion of consultative examiner Dr.
Provencio that Myers' impairments would have no effect on his ability to work. She also used

Almeida's clinical observations, again in Myers' favor, to counter state agency medical consultant
Dr. Hall's opinion that Myers would have no work limitations.

Myers argues that a "Medical Opinion Questionnaire" that Almeida completed on June
27, 2013 establishes that he cannot work "8 hours a day, for 5 days a week, or an equivalent work

schedule." See SSR 96-8p. He argues that Almeida is a "treating source" and that the AU did not
sufficiently consider Almeida's opinion in light of Fifth Circuit precedent. The Newton case on

3

which Myers relies discusses the weight to be accorded treating physicians' opinions. Newton

v.

Apfel, 209 F.3d 448, 453-458 (5th Cir. 2000). Only "acceptable medical sources" can be "treating

sources.. .whose medical opinions may be entitled to controlling weight," and physician assistants
are "not 'acceptable medical sources." SSR 06-03P; see also Andrade v. Astrue, 2012 U.S. Dist.

LEXIS 45903, 2012 WL 1106864, at *12 (N.D. Tex. Feb. 13, 2012) (a physician's assistant is not
an "acceptable medical source" whose opinion is entitled to controlling weight). In this case, the
AU specifically noted that "as a physician's assistant, Mr. Almeida is not an acceptable medical

source."
Even though Almeida was not an "acceptable medical source," the AU nevertheless
evaluated, relied upon, and incorporated Almeida's clinical observations and opinions into Myers'
RFC determination. In addition to the clinical observations discussed above, the AU also utilized

Almeida's June 2013 questionnaire responses. The AU specifically gave the postural limitations
Almeida described in the questionnaire "some weight," and described how Dr. Provencio's
consultative examination and Myers' own hearing testimony contradicted the parts of Almeida's
questionnaire describing alleged standing and walking limitations. The AU was explicit that her
final RFC determination rested on Almeida' s treatment records, the examinations of Drs.

Provencio and Bean, and on Myers' own hearing testimony. Accordingly, any assertion of error
premised on an unexplained rejection of Almeida's medical opinions fails.
C.

Excellent Work History

Myers also contends that the AU erred because she "failed to even acknowledge" Myers'

"lengthy and consistent work history" when gauging his credibility. The record does not support
this contention. The

AU's decision states:

The claimant's work history also weighs somewhat against the credibility of his
allegations. Although the claimant testified that he worked for approximately
twenty years in a labor-intensive contracting job, he also said that the original
reason he quit working was due to the failure of the business and not his medical
conditions.

The record belies Myers' contention that the AU ignored his work history when gauging
his credibility because the AU did consider Myers' "prior work record" as the regulations

mandate. 20 C.F.R.

§

404.1 529(c)(3). Moreover, an AU's assessment of a claimant's credibility is

accorded great deference. See Newton, 209 F.3d at 459 (5th Cir. 2000). Finally, Myers cites several
cases for the proposition that his testimony should automatically be accorded substantial

credibility because of his lengthy work history. None are Fifth Circuit cases, however, and none
are binding on this court. See McGee

v.

Astrue, 2012 U.S. Dist. LEXIS 186420, 2012 WL

7456174, at *8 (W.D. La. Nov. 26, 2012).

AFFIRMED.
SIGNED and ENTERED on October 14, 2016.

LEON SCHYDLOWER
UNITED STATES MAGISTRATE JUDGE