Garcia v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER. Signed by Judge Robert F. Castaneda. (ar)

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

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CIVIL NO.
3:16-CV-00076-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 application for disability insurance benefits (“DIB”)
under Title II of the Social Security Act. For the reasons set forth below, this Court orders that the
Commissioner’s decision be AFFIRMED.
PROCEDURAL HISTORY
On February 27, 2013, Plaintiff filed his application for DIB, alleging a disability onset date
of February 15, 2013. (R:126-133)

His application was denied initially and denied upon

reconsideration. (R:52-72) Plaintiff filed a request for a hearing, which was conducted on July 24,
2014. (R:28-51) The Administrative Law Judge (“ALJ”) issued a decision on September 10, 2014,
denying benefits. (R:11-23) The Appeals Council denied review. (R:1-6)

ISSUE
Plaintiff presents the following issue for review:
1. Whether the ALJ failed to give Plaintiff’s treating physician’s opinion the proper weight
when determining Plaintiff’s residual functional capacity (“RFC”). (Doc. 17:2)
Plaintiff contends that the ALJ failed to give the proper weight to the medical opinion of Dr.
Wong, Plaintiff’s treating physician, when making the RFC determination.

(Doc. 17:3)

Consequently, Plaintiff seeks a reversal and remand for an award of benefits or for further
administrative proceedings. (Doc. 17:7) Defendant responds that the ALJ properly weighed the
treating physician’s opinion, sufficiently explained why he gave the opinion little weight, and that
substantial evidence supports the ALJ’s findings and conclusions. (Doc. 19:4-9)
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).

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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)
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). Once this burden is met, the burden shifts to the Commissioner to show
that there is other substantial gainful employment available that the claimant is capable of
performing. Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The Commissioner may meet
this burden by the use of opinion testimony of vocational experts (“VE”) or by the use of
administrative guidelines provided in the form of regulations. Rivers v. Schweiker, 684 F.2d 1144,
1155 (5th Cir. 1982). If the Commissioner adequately points to potential alternative employment,
the burden then shifts back to the claimant to prove that he is unable to perform the alternative work.
Anderson, 887 F.2d at 632-33.
In the present case, the ALJ found that Plaintiff had severe impairments of: heart problems
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s/p aortic valve replacement; hypertension; obesity; and, missing left eye. (20 C.F.R. § 404.1520(c)).
(R:13) The ALJ determined that none of Plaintiff’s impairments, either alone or in combination, met
or medically equaled one of the listed impairments. (R:14) Upon considering the entire record, the
ALJ determined that Plaintiff retained the RFC to perform a reduced range of light work with the
following limitations: he can lift/carry, push or pull up to 20 pounds occasionally, and 10 pounds
frequently; he must be allowed to sit or stand alternately at 60 minute intervals for 2 to 3 minutes at
a time, during which period he may remain on task; he may occasionally climb ramps and stairs, but
may never climb ladders, ropes or scaffolds; he must avoid all exposure to hazards such as dangerous
machinery and unsecured heights; he can perform work tasks that do not require more than
monocular vision. (R:15) The ALJ determined that Plaintiff was limited to a reduced range of light
work based on his residual heart issues and obesity. (R:18) He further found that the evidence as
a whole did not support Plaintiff’s subjective statements concerning the limiting effects of his
impairments. (R:18) At step four, the ALJ found that Plaintiff was capable of performing his past
relevant work as an automobile salesperson. (R:21) Alternatively, at step five, the ALJ found that
considering Plaintiff’s RFC, age, education, and work experience, as well as the VE’s testimony,
there were a significant number of other jobs in the national economy that Plaintiff could perform.
(R:21-23) Consequently, the ALJ found that Plaintiff was not disabled from February 15, 2013
through the date of the ALJ’s decision. (R:11, 23)
III. The ALJ’s Determination of Plaintiff’s Residual Functional Capacity
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
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evidence and determine the Plaintiff’s abilities despite his physical and mental limitations. Martinez,
64 F.3d at 176. 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.
Plaintiff contends that the ALJ’s decision is not supported by substantial evidence and
results from legal error. (Doc. 17:2) Plaintiff maintains that the ALJ improperly accorded “little
weight” and essentially “no weight” to Dr. Wong’s opinion and instead gave significant weight to
the opinions of the non-examining, state agency physicians. (Doc. 17:3) Plaintiff argues that the
ALJ cannot merely pick and choose evidence that supports his position. (Doc. 17:3, 6) He argues
that had the ALJ properly weighed the treating doctor’s opinion, the ALJ would likely have found
Plaintiff disabled. (Doc. 17:6) Furthermore, Plaintiff claims that the ALJ gave Dr. Wong’s opinion
insufficient weight on the basis of improper reasons. First, the ALJ found Dr. Wong’s opinion in
his Medical Source Statement (“MSS”) inconsistent with the doctor’s treatment notes wherein
Plaintiff reported that he was “feeling fine.” (Doc. 17:5) Plaintiff argues that generic statements that
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a claimant is “doing better,” or that treatment is “helping” do not constitute evidence of an
improvement in the symptoms, signs, or laboratory findings associated with any specific impairment.
(Doc. 17:5) Plaintiff also argues that another reason that the ALJ used in discrediting Dr. Wong’s
opinion, i.e., that he returned to work, is of no merit because although Plaintiff did attempt to return
to work, he was let go because he wasn’t able to do the job without asking for help. (Doc. 17:5)
Plaintiff takes no issue with the ALJ’s conclusion that he had received no treatment from Dr. Wong
since June of 2013 or that the MSS failed to provide a rationale within it; however, with respect to
the ALJ’s determination that it appears that Dr. Wong was “simply attempting to help out a patient
with whom he sympathizes for one reason or another” Plaintiff argues that such a conclusion is
unfounded, unsupported by the record, and is not a good reason for rejecting Dr. Wong’s opinion.1
(R:20; Doc. 17:5) In addition, Plaintiff contends that the ALJ erred by failing to discuss the factors
required by 20 C.F.R. § 404.1527(d)2 in setting forth his reasoning for rejecting Dr. Wong’s opinion.
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Thus, it is urged, the ALJ rejected the opinion
contained within Dr. Wong’s MSS without complying with mandatory Fifth Circuit standards.
(Doc.17:4) Plaintiff contends that he was prejudiced by the ALJ’s failure to properly consider the
entire record because this failure resulted in an inaccurate RFC finding which is not supported by
substantial evidence–this prejudice requires remand. (Doc.17:6)

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When an ALJ suggests impropriety on behalf of a physician, courts typically reject such a suggestion in the
absence of specific, supporting evidence. The Court finds no basis in the record for finding that Dr. Wong arrived at
his conclusion because he was trying to help Plaintiff for reasons of sympathy. See Kelly v. Colvin, No. 3:14-CV01677-P-BK, 2015 WL 1592153, at *7(N.D. Texas, Apr. 7, 2015). Nevertheless, the Court finds such a conclusion
harmless in light of the overall evidence in the case.
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20 C.F.R. § 404.1527 has been revised several times and the court’s reference to subsection (d)(2) refers to
the factors now present at subsection (c)(2) of 20 C.F.R. § 404.1527.

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The Commissioner responds by arguing that the ALJ properly considered Dr. Wong’s RFC
opinion contained within the MSS and sufficiently explained why he gave the opinion little weight.
(Doc. 19:5) The Commissioner argues that the ALJ was not relying on a one-time generic statement;
rather, Dr. Wong’s medical records consistently noted that Plaintiff was “feeling fine.” (Doc.19:7)
The Commissioner also argues that the medical findings from Dr. Wong’s treatment records
contradict his opinion. (Doc. 19:7) Furthermore, as the ALJ noted, Plaintiff presented no medical
records supporting his contention that he was laid off because he could no longer perform the job
duties that were required of him. (Doc. 19:8) Thus, the Commissioner asserts that the ALJ provided
good reasons for giving little weight to the opinion of Dr. Wong, and the detailed discussion of the
medical evidence provided by the ALJ, inter alia, supports a finding of substantial evidence in this
case. (Doc. 19:6-9) The Commissioner contends that the fact that Plaintiff explicitly listed the
ALJ’s reasons and then argued against them in his brief renders meritless Plaintiff’s claim that the
ALJ failed to analyze Dr. Wong’s opinion under 20 C.F.R. § 404.1527(d). (Doc. 19:6) Thus,
Plaintiff’s allegation of error lacks merit. (Doc.19:8)
A treating physician’s opinion regarding the nature and severity of a claimant’s condition
should be accorded great weight in determining disability and will normally be given controlling
weight if it is (1) well-supported by medically acceptable clinical and laboratory diagnostic
techniques and (2) not inconsistent with other substantial evidence. Newton, 209 F.3d at 455. The
ALJ may, however, give less weight, little weight, or no weight, to the medical opinion of a treating
physician when good cause is shown. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). Good
cause may be established when a treating physician’s statements are brief and conclusory, not
supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise
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unsupported by the evidence. (Id.) 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 of the adjudicator gave to the treating source’s medical opinion
and the reasons for the weight.
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 96-2 and holding that the ALJ’s
failure to explain the weight he gave to the treating physician’s opinion constituted error).
The Fifth Circuit has concluded that, “absent reliable medical evidence from a treating or
examining physician controverting the claimant’s treating specialist, an ALJ may reject the opinion
of the treating physician only if the ALJ performs a detailed analysis of the treating physician’s views
under the criteria set forth in 20 C.F.R. § 404.1527(d)(2).” Newton, 209 F.3d at 453. Specifically,
the regulation requires consideration of:
1.
2.
3.
4.
5.
6.

the physician’s length of treatment of the claimant;
the physician’s frequency of examination;
the nature and extent of the treatment relationship;
the support of the physician’s opinion afforded by the medical evidence record;
the consistency of the opinion with the record as a whole; and
the specialization of the treating physician.

With the foregoing considerations in mind, the Court rules as follows.
A review of the record demonstrates that the ALJ had good cause for giving little weight to
Dr. Wong’s opinion which is set forth in an MSS which concluded that Plaintiff could perform less
than sedentary work. (R:425-428) Dr. Wong’s MSS is devoid of any medical explanation(s) which
justify his conclusions. This Court reviewed not only the MSS, but also all of Dr. Wong’s treatment
records, and was unable to find any medically acceptable clinical laboratory diagnostic techniques

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or observations that would support the limitations found in the MSS. Courts have found good cause
to provide little weight to a treating physician’s questionnaire opinion due to its brevity and
conclusory nature, lack of explanatory notes, or supporting objective tests and examinations. Foster
v. Astrue, 410 Fed.Appx. 831, 833 (5th Cir. 2011). Dr. Wong’s MSS is lacking in each of these
areas. Another court has concluded that a treating physician’s unsupported, check-the-box
questionnaire regarding disability typifies the brief and conclusory statements that an ALJ may
disregard under the good cause exception to the treating physician rule. Nguyen v. Colvin, No. 4:13CV-2957, 2015 WL 222328, at *9 (S.D. Tex. Jan. 14, 2015). Again, Dr. Wong’s MSS is lacking
in this regard.
As noted earlier, Newton requires an ALJ to consider the six regulatory factors before
rejecting a treating physician’s opinion in a situation where no treating or examining source directly
controverts that opinion. A review of the entire record shows such to be the case here. The Court
does not deem any opinion evidence by Dr. Francisco Guerra or Dr. Robert Santoscoy reliable
medical evidence as part of this analysis, inasmuch as they saw Plaintiff before the period in
question. (R:20) Nor do they provide any pertinent information regarding disability that relates to
the matters at hand. (R:235-236; 305-306) Hence, the ALJ erred in failing to conduct the six-factor
analysis mandated by the regulations and by the Fifth Circuit.
Nevertheless, the Court determines that such error was harmless, and Plaintiff has not
demonstrated that any prejudice stemmed from it. For the reasons referred to earlier which show that
the ALJ had good cause for rejecting Dr. Wong’s opinion, the Court finds no realistic possibility that
the ALJ would have reached a different RFC conclusion had he conducted the detailed regulatory
analysis. Dr. Wong’s opinion conflicts not only with his own treatment records-- it is also at odds
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with the opinions of the state agency physicians and the non-medical evidence of record, such as
Plaintiff’s disability report wherein at a face-to-face interview it was observed that Plaintiff had no
difficulties with sitting, standing, walking, and using his hands. (R:159) Error is harmless unless
it is conceivable, if not probable, that the ALJ would have reached a different conclusion had he
considered all 20 C.F.R. Section 404.15279(c)(2) factors. See Stancle v. Colvin, No. 4:15-CV00405-CAN, 2016 WL 3172784, at *15 (E.D. Tex. June 7, 2016). Hence, this error does not warrant
reversal.
CONCLUSION
Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner
be AFFIRMED consistent with this opinion.
SIGNED and ENTERED on October 20, 2016.

_____________________________________
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

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