Acevedo v. Berryhill

Filing 24

MEMORANDUM OPINION AND ORDER, the Court HEREBY ORDERS that the decision of the Commissioner be REVERSED and REMANDED for further proceedings consistent with this opinion. Signed by Judge Robert F. Castaneda. (em)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CARLOS M. ACEVEDO,
Plaintiff,

CL

§
§

&_L

§

v.

§

tiF1?
jrY

NO. EP-3-17-CV-00238-RFC

§

NANCY A. BERRYHILL,
Acting Commissioner of Social

§
§
§
§

Security Administration,
Defendant.

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). Plaintiff appeals from the decision of the Commissioner of the
Social Security Administration ("Commissioner"), denying his claims for disability insurance

benefits ("DIB") under Title II of the Social Security Act and supplemental security income ("SSI")
under Title XVI of the Social Security Act. 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 Appendix C to the Local Court Rules of the Western

District of Texas. For the reasons set forth below, the Commissioner's decision is REVERSED.

PROCEDURAL HISTORY
On August 22, 2013, Plaintiff filed his application for DIB. (R:190) He also filed an

application for SSI on October 20, 2015. (R:41) In both applications, Plaintiff alleged disability
beginning on August 22, 2013. (Id.)1 The applications were denied initially and on reconsideration.

Reference to documents filed in this case is designated by "(Doc. [docket entry
number(s)]: [page number(s)])". Reference to the record of administrative proceedings filed in
1

(R:4 1) Pursuant to Plaintiff's request, an Administrative Law Judge ("AU") held a hearing to

review Plaintiffs applications de novo on June 9, 2015, at which both Plaintiff and a vocational

expert ("yE") testified. (R:58-80) The AU issued her decision on December 16, 2015, denying
benefits. (R:41-53) Plaintiffs request for review was denied by the Appeals Council on June 2,
2017. (R:1-5)

ISSUES

Plaintiff presents the following issue for review:
1.

Whether the AU erred in her evaluation of the treating physician's opinion.

(Doc. 22:2-7)

DISCUSSION
A.

Standard ofReview
This Court's review is limited to a determination of whether the Commissioner's final

decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. See Martinez v. Chater,
64 F.3d 172, 173 (5th Cir. 1995); Greenspan

v.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert.

denied, 514 U.S. 1120 (1995). Substantial evidence is more than a scintilla, but can be less than a

preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). A finding ofno 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) (citing Hames v.

Heckler, 707 F.2d 162, 164 (5th Cir. 1983). In reviewing the substantiality of the evidence, a court

this case is designated by "(R: [page number(s)J)".

must consider the record as a whole and "must take into account whatever in the record fairly
detracts from its weight." Singletary v. Bowen, 798 F.2d 818, 823 (5th Cir. 1986).

If the Commissioner's findings are supported by substantial evidence, they are conclusive
and must be affirmed. Martinez, 64 F.3 d at 173. In applying the substantial evidence standard, a
court must carefully examine the entire record, but may not reweigh the evidence or try the issues
de novo. Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). It may not substitute its own

judgment "even if the evidence preponderates against the [Commissioner's] decision," because
substantial evidence is less than a preponderance. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988). Conflicts in the evidence are for the Commissioner, and not the courts, to resolve. Speilman
v.

B.

Shalala, 1 F.3d 357, 360 (5th Cir. 1993).

Evaluation Process
Disability is defined as the "inability to engage in substantial gainful activity by reason ofany

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). The AU 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 medically determinable

impairment that is severe; 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. A person's residual functional capacity

("RFC") is what he can still do despite his limitations or impairments. 20 C.F.R.
SSR 96-8p.
3

§

404.1545(a);

An individual applying for benefits bears the initial burden of proving that he is disabled for
purposes of the Act. Selders

v.

Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The claimant bears the

burden ofproof at the first four steps, and once met, the burden shifts to the Commissioner to show

that there is other substantial gainful employment available that the claimant is capable of
performing. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); Anderson v. Sullivan, 887 F.2d 630,
632 (5th Cir. 1989).
C.

The AU's Hearing Decision
First, the AU found that Plaintiff had not engaged in substantial gainful activity since his

alleged onset date of August 22, 2013. (R:43) At the second step, the AU found that Plaintiff had

the following severe impairments: history of pancreatitis (which includes cholecystectomy),
pseudocyst drainage and necrosectomy, placement of cystogastrostomy stents, multilevel
degenerative disc changes of the lumbar spine, and obesity. (R:44)

At step three, the AU found that Plaintiff did not have an impairment or combination of
impairments meeting or medically equaling one of the listed impairments. (R:45)

Before moving on to step four, the AU concluded that, through the date last insured,

Plaintiff had the RFC to perform light work, except that he could only occasionally climb ramps,
stairs, ladders, ropes and scaffolds; also, Plaintiff could only occasionally balance, stoop, kneel,

crouch, and crawl. (R:46)

At step four, the AU found that Plaintiff was unable to perform any past relevant work.
(R:51)
At the fifth step, considering Plaintiff's age, education, work experience, and RFC, as well
as VE testimony, the AU found that there are jobs that exist in significant numbers in the national

4

economy that Plaintiff could perform. (R:52) Specifically, the AU found that Plaintiff could
perform the requirements of representative occupations such as that of a sorter of agricultural
produce, a photograph finisher, and that of housekeeping, all light, unskilled jobs. (Id.)
The AU concluded that Plaintiff had not been under a disability, as defined in the Social

Security Act, from August 22, 2013, the alleged onset date, through December 16, 2015, the date of
the AU's decision. (R:53)

I).

Analysis
1.

The AU erred in her evaluation of the treating physician's opinion.

Plaintiff contends that the AU failed to give the medical opinion of Plaintiff's treating
physician, Dr. Othman, the proper weight. (Doc.22 :2-7) On February 14,2014, Dr. Othman provided

a medical source statement ("MSS") wherein he opined that Plaintiff was more limited than
determined by the AU. (R:490-493) Specifically, he declared that Plaintiff could occasionally lift
and/or carry less than 10 pounds, frequently lift and/or carry less than 10 pounds, and that he could
stand and/or walk at least two hours in an 8-hour workday. (R:490) He found that Plaintiff had no
sitting limitations. (R:491) He opined that Plaintiff's ability to push and/or pull was limited in his

upper extremities. (id.) As medical/clinical findings that supported his conclusions, Dr. Othman cited

Plaintiffs chronic pancreatitis with abdominal/epigastric pain, SIP drainage of pancreatic abscess,
herniated disc, and degenerative joint disease. (Id.) In the area of postural limitations, Dr. Othman

concluded that Plaintiff could only occasionally climb, balance, kneel, crouch, crawl, and stoop.
(R:491)This was due to Plaintiff's herniated disk and chronic abdominal pain. (Id.) Finally, Dr.
Othman determined that Plaintiff suffered from no manipulative, visual/communicative, and

environmental limitations. (R:492-493)
5

Plaintiff contends that the AU erred by failing to discuss the six factors required by 20
C.F.R. § § 404.1527(d), 416.927(d) in setting forth his reasoning for rejecting Dr. Othman' s opinion.

(Doc.22:4) He argues that such an analysis is required because there is no examining or treating
physician opinion of record which contradicts the medical opinion of Dr. Othman. (Id.) He contends

that the AU improperly opted to pick and choose which restrictions she agreed with and disregarded
the rest, and then stated that she gave Dr. Othman's opinion "partial weight," only adopting the nonexertional, postural limitations. (Doc.22:3, 5); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) ('the
AU must consider all the record evidence and cannot pick and choose only the evidence that

supports his position"). He further contends that although a multitude of medical evidence of record

supports Dr. Othman's limitations, the AU erroneously attempted to mitigate the significance of
such evidence by referring to notes that treatment "helped" or that Plaintiff's conditions was "stable,"
and that such evidence does not constitute evidence of improvement in the symptoms, signs, or

laboratory findings associated with any specific improvement. Schomburg v. Astrue, No. 3-07-C V1258-BD, 2009 WL 3734 139,*3 (N.D.Tex. Nov. 9, 2009) (citing Spann v. Barnhart, No. 3-00-C V2769-BD (N.D.Tex. Jan. 8, 2002) (Kaplan, J.)). Plaintiff also urges that anecdotal evidence relating

to Plaintiff's daily activities is also insufficient to support a finding of medical improvement related
to the ability to work. (Doc.22:5) Next, he contends that the AU's RFC assessment is not supported

by substantial evidence. (Doc.2:6) Finally, he contends that the

AU's error regarding the weight

given to Plaintiff's treating physician cannot be considered harmless, because had it been given

greater weight, the AU likely would have restricted Plaintiff's RFC to one of sedentary exertion.
(Id.) He contends that at the sedentary exertional level and applying the Medical-Vocational

Guidelines at step five of the sequential evaluation, Plaintiff would be considered disabled pursuant
to Rule 201.09; hence, Plaintiff was prejudiced by the AU's error. (Doc.22:6-7)
A treating physician's opinion regarding the nature and severity of a patient's condition

should be accorded great weight in determining disability and will normally be given controlling
weight

f it

is (1) well-supported by medically acceptable clinical and laboratory diagnostic

techniques and (2) not inconsistent with other substantial evidence. Newton v. Apfel, 209 F.3d 448,
455 (5th Cir. 2000) The AU may assign little or no weight to the opinion of any physician for good
cause. Id. at 455-56. Good cause exists where statements are "brief and conclusory, not supported

by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the

evidence." Perez v. Barnhart 415 F.3d 457,466 (5th Cir. 2005) (emphasis omitted). An AU should
always provide "good reasons" for the weight given to a treating physician's opinion. 20 C.F.R.

§

404.1 527(c)(2).

The Fifth Circuit concluded that "absent reliable medical evidence from a treating or

examining physician controverting the claimant's treatment specialist, an AU may reject the opinion

of a treating physician only if the AU performs 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 of record;
the consistency of the opinion with the record as a whole; and
the specialization of the treating physician.

7

20 C.F.R.

§

404.1527(d)(2)-(6). Where such evidence does exist in the record, however,

consideration of the six factors is not necessary. See Bullockv. Astrue, 277 F. App'x. 325, 329(5th
Cir. 2007) (per curiam)(consideration of six factors only necessary absent controverting reliable

medical evidence from a treating or examining physician).
The AU gave partial weight to the opinions reflected in Dr. Othman's MSS. (R:51) She

justified this by declaring that the existing record contained few treatment records from Dr. Othman,
especially as of recent, that would support such extreme limitations as he wrote. (Id.) In addition,
she stated that a February 2014 assessment by Dr. Othman indicated that Plaintiff's chronic

pancreatitis was stable and that he should continue his medications. (Id.) Finally, there appeared to
be virtually no longitudinal treatment since this last visit that would support all the limitations

described in the MSS. (Id.) A review of the record shows that substantial evidence fails to support
the

AU's determination that Dr. Othman's opinion should only be given partial weight.
A review of the entire record shows that no reliable medical evidence from an examining or

treating physician controverts Dr. Othman' s opinion that Plaintiff was limited to less than light work,

specifically with respect to the conclusion that Plaintiff could lift and/or carry less than 10 pounds.
This is true notwithstanding the Commissioner's arguments regarding medical improvement which

the Court rejects for reasons urged by Plaintiff. In light of that, consideration of the six factors
referred to in Newton and set out in 20 C.F.R.

§

404.1 527(d)(2) was necessary. Although the AU

touched on some of the factors, she failed to perform a detailed analysis of all of them. The Court
finds that the AU committed error in this regard.

Nevertheless, even if the AU committed error by failing to consider a factor or by failing to
provide adequate explanation of her consideration of the factors in her decision, to justify reversal,
8

the error must affect the substantial rights of Plaintiff. See Taylor v. Astrue, 706 F.3d 600, 603 (5th
Cir. 2012) (per curiam). Unless the error would cast into doubt the existence of substantial evidence

to support the AU's decision, reversal is not required. Morris v. Bowen, 864 F.2d 333, 335 (5th Cir.
1988).

Thus, the Court looks to see whether the AU provided good reasons in her decision to accord
only partial weight to Dr. Otbman' s opinion. 20 C.F.R. 404.1 527(c)(2) states that ALJs will always
provide good reasons in the notice of determination or decision for the weight given to a treating

physician's opinion. The Court concludes that on this occasion, such was not the case. Although the
AU declared that the record contained few treatment records from Dr. Otbman, the fact remains that

some did exist. In addition, the record is rife with other treatment records from other specialists who

treated Plaintiff for his severe chronic pancreatitis, including those from Dr. Brian August, Dr.
Anthony Han, and Dr. Jaime Gonzales. (R:469-484, 494-702) These records extend to September

24,2015, and essentially support Dr Othman' s conclusions. In the same vein, the AU's conclusion
that there appears to be no longitudinal treatment since the February 2014 visit is rejected. The
record makes manifest that these various specialists worked in conjunction with Dr. Othman in

providing this treatment. Hence, the AU did not provide good reasons for according Dr. Othman' s
opinion only partial weight.
Finally, the AU accorded greater weight to the state agency physician's assessments than she
did to the treating physician's assessment in concluding that Plaintiff could perform at a restricted

level of light work. (R:51) It is not error for the AU to assign more weight to a non-examining
source than to an examining source when there is "substantial justification" by way of the evidence.
See Huey v. Comm 'r of Soc. Sec., No. 4:15-CV-037-SAA, 2015 WL 8056041 at *4.5 (N.D. Miss.

Dec. 4, 2015). Such is not the case here. Dr. Othman's opinion was supported by his own treatment

notes and those of other specialists. His MSS was bolstered by medical and clinical findings that
supported his conclusions. Had the AU given Dr. Othman's controlling weight, as the Court rules

that she should have, Plaintiff's RFC would likely have been restricted to one of sedentary exertion,
and he likely would have been found disabled pursuant to the Medical/Vocational Guidelines. Thus,

Plaintiff suffered prejudice from the error, and the Court cannot deem it to be harmless.
In summary, the AU erred when deciding not to accord Plaintiff's treating physician's

opinion controlling weight. The reasons she provided are not supported by substantial evidence and
do not provide a basis to affirm her decision.

CONCLUSION
The Court concludes that the AU's findings regarding the weight given to Plaintiff's treating

physician are not supported by substantial evidence and are the result of legal error. Thus, the Court

HEREBY ORDERS that the decision of the Commissioner be REVERSED and REMANDED
for further proceedings consistent with this opinion. If warranted, the AU may obtain a consultative

examination or recontact Plaintiff's treating physician in order to arrive at a proper assessment of
his medical opinion.

SIGNED and ENTERED on February 23, 2018.

ROBERT F. ASTANEDA
UNITED STATES MAGISTRATE JUDGE

10