Wichman v. Astrue

Filing 14

ORDER REVERSING AND REMANDING THE COMMISSIONERS DECISION. Signed by Judge Nancy Stein Nowak. (tm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

TAMARAE WICHMAN,

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§
§
§
§
§
§
§

Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

CIVIL ACTION NO.
SA-11-CV-0170 NN

ORDER REVERSING AND REMANDING THE COMMISSIONER’S DECISION
I. Introduction
Plaintiff Tamarae Wichman seeks review and reversal of the administrative denial of her
application for disability insurance benefits (“DIB”) by the Administrative Law Judge (“ALJ”).1
Plaintiff contends the ALJ’s conclusion that she retained the residual functional capacity (“RFC”)
to perform work available in the local and national economies is not supported by the substantial
evidence of the record.2 For this reason, Plaintiff asks the court to reverse the Commissioner’s
decision and remand the case with instructions to “conclude any hearings within 90 days of any
order of remand, issuing any ALJ decision within 120 days of remand and conducting appeals
council review within 180 days of remand.”3
I have jurisdiction over this matter under 28 U.S.C. § 636(c). After the parties consented

1

Docket Entry 1. See also Administrative Transcript (“Transcript”), at 7-19.

2

Docket Entries 1, 11.

3

Docket Entry 11, at 16.

to proceed before a magistrate judge for all matters in this case,4 the district judge transferred this
action to me for disposition.5
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 405(g).
III. Administrative Proceedings
According to the record in this case, Plaintiff fully exhausted her administrative remedies
prior to filing this action in federal court. Plaintiff applied for DIB on December 5, 2008,
alleging a disability beginning May 1, 2008.6 The SSA denied Plaintiff’s application both
initially, on March 2, 2009,7 and on reconsideration, May 19, 2009.8
On May 29, 2009, Plaintiff requested a hearing before an ALJ.9 The hearing was held on
January 26, 2010.10 Plaintiff was represented by counsel at the hearing. Plaintiff’s attorney
examined and questioned Plaintiff;11 the medical expert, Dr. Alice Cox;12 and the vocational
expert, Judith Harper,13 during the hearing.

4

Docket Entries 6 and 9.

5

Docket Entry 10.

6

Transcript, at 155-161.

7

Transcript, at 79-82.

8

Transcript, at 84-86.

9

Transcript, at 87.

10

Transcript, at 25-73.

11

Transcript, at 30-45, 55-58.

12

Transcript, at 45-54, 63.

13

Transcript, at 54-72.

2

Plaintiff, who was forty-eight years old at the administrative hearing, testified that she
lived with her husband and her seventy-one-year-old mother.14 She stated that she quit her last
work in May 2008 as an operating room nurse because she was unable to focus.15 Plaintiff told
the ALJ that she was able to do laundry, dusting, light cooking, grocery shopping and reading
about three to four times a week, but that she had assistance from her mother to perform these
tasks and to remind her to take her medicine.16 Plaintiff testified that she often had to read the
same page several times because she cannot focus and retain information.17 She testified that she
needed to nap one to two hours a day18 and tried to walk or do water aerobics for exercise.19
Plaintiff stated that she applied for work as a nurse with a flu clinic, but was not called in
for an interview.20 However, she also told the ALJ that she cannot work as a result of muscle
pain, problems with memory and mental focus, as well as pain in her joints, knees, lower back,
left hip, neck, shoulders and right big toe.21 Plaintiff testified that three or four days of the week
she is unable to leave her house due to her pain level and/or depression.22 She also explained that

14

Transcript, at 31, 36.

15

Transcript, at 34, 35.

16

Transcript, at 36, 37.

17

Transcript, at 41.

18

Transcript, at 37.

19

Transcript, at 39.

20

Transcript, at 41.

21

Transcript, at 42.

22

Transcript, at 43, 44.

3

she had at least one doctor’s appointment per week which lasted from two hours to a full day.23
The ALJ also heard testimony from medical expert Dr. Alice Cox at the hearing.24 Dr.
Cox reviewed the extensive list of Plaintiff’s diagnoses25 and past medical complaints.26 Dr. Cox
then testified that there was little objective medical evidence in the record to support Plaintiff’s
alleged limitations.27 Similarly, Dr. Cox testified that there was nothing in the record to
substantiate the findings of Plaintiff’s treating physician, Dr. Valenta, that Plaintiff had disabling
limitations.28 Dr. Cox concluded with the opinion that Plaintiff is capable of concentrating,
accepting instructions and responding appropriately to changes in routine work settings.29
Vocational expert Judith Harper also testified at the administrative hearing.30 Ms. Harper
classified Plaintiff’s past work as an operating nurse as medium, skilled with SVP of seven.31
She stated that Plaintiff cannot perform her past work32 but can, based on the hypothetical
proffered by the ALJ,33 do light office work or work as a quality assurance coordinator, a sock

23

Transcript, at 44.

24

Transcript, at 45-54, 63.

25

Transcript, at 45-46.

26

Transcript, at 47.

27

Transcript, at 51.

28

Transcript, at 52, 54.

29

Transcript, at 53.

30

Transcript, at 54-72.

31

Transcript, at 58.

32

Transcript, at 59.

33

Transcript, at 58-59.

4

checker, a furniture rental clerk, a facility rental clerk or a back office nurse.34
During questioning by Plaintiff’s attorney, Ms. Harper opined that an individual who
needs one work day off a week to attend a doctor’s appointment, or extra morning, afternoon and
lunchtime breaks, cannot maintain employment.35 Similarly, Ms. Harper testified that an
individual who cannot work a full eight-hour workday due to fatigue or can sit for only two hours
a day and stand/walk one hour a day cannot obtain and sustain employment.36
On March 8, 2010, the ALJ issued a decision concluding that Plaintiff was not under a
“disability,” as defined by the Social Security Act (“the Act”), at any time through the date of the
decision.37 Specifically, the ALJ found Plaintiff retained the RFC to perform work available in
the local and national economies.38
After receiving the ALJ’s unfavorable decision dated March 8, 2010, Plaintiff requested
review of the decision on March 25, 2010.39 On January 4, 2011, the Appeals Council
determined no basis existed for granting Plaintiff’s request for review and denied Plaintiff’s
request.40 Plaintiff commenced the instant action in this court on March 2, 2011.41

34

Transcript, at 59-62.

35

Transcript, at 66-67.

36

Transcript, at 71-72.

37

Transcript, at 7-19.

38

Id.

39

Transcript, at 4.

40

Transcript, at 1-3.

41

Docket Entry 1.

5

IV. Issue Presented
Whether the ALJ’s decision is supported by substantial evidence and comports with
relevant legal standards?
V. Analysis
A.

Standard of Review
In reviewing the Commissioner’s decision denying disability insurance benefits, I am

limited to determining whether substantial evidence supports the decision and whether the
Commissioner applied the proper legal standards in evaluating the evidence.42 “Substantial
evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”43
In reviewing the Commissioner’s findings, I must carefully examine the entire record, but
refrain from re-weighing the evidence or substituting my judgment for that of the
Commissioner.44 Conflicts in the evidence and credibility assessments are for the Commissioner
and not for the courts to resolve.45 The courts must consider four elements of proof in
determining if substantial evidence supports the Commissioner’s determination: (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,

42

Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. § 405(g).

43

Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164
(5th Cir. 1983)).
44

Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 (“The court is not to reweigh
the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.”).
45

Martinez, 64 F.3d at 174.

6

education and work experience.46
1.

Entitlement to Benefits

Every individual who is insured for disability insurance benefits, has not reached
retirement age, has applied for benefits, and is under a disability is entitled to receive disability
insurance benefits.47 The term “disabled” or “disability” means 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 twelve months.”48 A claimant shall be determined to
be disabled only if his physical or mental impairment or impairments are so severe that he is
unable to not only do his previous work, but cannot, considering his age, education, and work
experience, participate in any other kind of substantial gainful work which exists in significant
numbers in the national economy, regardless of whether such work exists in the area in which he
lives, whether a specific job vacancy exists, or whether he would be hired if he applied for
work.49
2.

Evaluation Process and Burden of Proof

The Commissioner’s Regulations prescribe a five-step process for evaluating disability
claims.50 A finding that a claimant is disabled or not disabled at any point in the process is

46

Id.

47

42 U.S.C. § 423(a)(1).

48

Id. § 1382c(a)(3)(A).

49

Id. § 1382c(a)(3)(B).

50

20 C.F.R. § 404.1520.

7

conclusive and terminates the Commissioner’s analysis.51
The first step involves determining whether the claimant is currently engaged in
substantial gainful activity.52 If so, the claimant will be found not disabled regardless of her
medical condition or her age, education, or work experience.53 The second step involves
determining whether the claimant’s impairment is severe.54 If it is not severe, the claimant is
deemed not disabled.55 In the third step, the Commissioner compares the severe impairment with
those on a list of specific impairments.56 If it meets or equals a listed impairment, the claimant is
deemed disabled without considering her age, education, or work experience.57 If the impairment
is not on the list, the Commissioner, in the fourth step, reviews the claimant’s RFC and the
demands of her past work.58 If she is still able to do her past work, she is not disabled.59 If she
cannot perform her past work, the Commissioner moves to the fifth and final step of evaluating
the claimant’s ability, given her residual capacities, age, education, and work experience, to do
other work.60 If she cannot do other work, she will be found disabled. The claimant bears the

51

Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

52

20 C.F.R. § 404.1520.

53

Id.

54

Id.

55

Id.

56

20 C.F.R. § 404.1520.

57

Id.

58

Id.

59

Id.

60

Id.

8

burden of proof at the first four steps of the sequential analysis.61 Once she has shown that she is
unable to perform her previous work, the burden shifts to the Commissioner to show that there is
other substantial gainful employment available that the claimant is not only physically able to
perform, but also, taking into account her exertional and non-exertional limitations, able to
maintain for a significant period of time.62 If the Commissioner adequately points to potential
alternative employment, the burden shifts back to the claimant to prove that she is unable to
perform the alternative work.63
In the instant case, the ALJ reached the unfavorable decision at step five of the evaluation
process.64 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful
employment since her alleged onset date of disability.65 The ALJ then concluded at steps two
and three that Plaintiff had a combination of impairments (fibromyalgia syndrome, lumbago and
obesity and major depressive disorder, moderate) which was severe, but did not meet or
medically equal a listed impairment.66 At step four, the ALJ found that, although she cannot
return to her past relevant work,67 Plaintiff retained the residual functional capacity
to perform light work…Claimant can never crawl or climb ladders, ropes or scaffolds.
Claimant can understand, remember and carry out simple or detailed instructions (but not
complex) and is able to make routine work-related decisions, attend and concentrate for

61

Leggett, 67 F.3d at 564.

62

W atson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).

63

Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).

64

Transcript, at 7-19.

65

Transcript, at 12.

66

Id.

67

Transcript, at 18.

9

extended periods, adequately interact with co-workers, supervisors and the public, and
can respond appropriately to changes in a routine work setting.68
At step five, the ALJ held that given Plaintiff’s age (an individual closely approaching
advanced age), education (at least a high school education), and vocational experience
(transferable job skills from past relevant work),69 Plaintiff can perform work as an office nurse,
a quality assurance and scheduling coordinator, a stock checker for apparel, a furniture rental
consultant, and a storage facility rental clerk.70 Based on the foregoing, the ALJ concluded that
Plaintiff was not under a disability.
B.

Did the ALJ use the correct legal standards and support the decision with the substantial
evidence of the record?
Plaintiff challenges the ALJ’s decision, asserting that the ALJ: (1) failed to apply the

correct legal standard in concluding that some of Plaintiff’s exertional impairments were not
severe; (2) failed to accord appropriate weight to the opinions of Plaintiff’s treating physicians;
and (3) failed to consider and include all the effects of Plaintiff’s fibromyalgia in the RFC
assessment.71 Plaintiff argues that these mistakes constitute reversible error and asks the court to
remand this action with specific instructions.
1.

Did the ALJ properly assess all of Plaintiff’s severe impairments?

In her first point of error, Plaintiff argues that the ALJ committed reversible error by
failing to cite and apply properly the standard for a severe impairment as articulated in Stone v.

68

Transcript, at 14.

69

Transcript, at 18.

70

Transcript, at 19.

71

Docket Entry 11.

10

Heckler.72 Plaintiff contends that the failure to use the Stone language requires remand as a
matter of law. Plaintiff further asserts that had the ALJ employed the correct standard, she would
have concluded that Plaintiff’s “sleep disturbance,” chronic fatigue syndrome and
hypothyroidism were severe impairments.73 In response, Defendant maintains the ALJ fulfilled
the requirements of Stone and its progeny. Defendant further argues that Plaintiff failed to meet
her burden of proving that the conditions at issue constitute separate, severe impairments.74
At step two of the sequential evaluation process, the ALJ must identify which of a
claimant’s conditions constitute “severe” impairments.75 In 1985, the Fifth Circuit interpreted
the regulatory definition of severity in Stone v. Hecker,76 providing:
‘[A]n impairment can be considered as not severe only if it is a slight abnormality
[having] such minimal effect on the individual that it would not be expected to interfere
with the individual’s ability to work, irrespective of age, education or work experience.’77
To ensure the adjudicator applies the correct legal standard, the Fifth Circuit requires an
ALJ to cite to the Stone decision:
we will in the future assume that the ALJ and Appeals Council have applied an incorrect
standard to the severity requirement unless the correct standard is set forth by reference to
this opinion or another of the same effect, or by an express statement that the construction
we give to 20 C.F.R. § 404.1520(c)(1984) is used. Unless the correct standard is used,

72

Docket Entry 11, at 8-11; Stone v. Heckler, 752 F.2d 1099 (5 th Cir. 1985).

73

Docket Entry 11, at 8-11. The medical evidence in the record establishes that Plaintiff has obstructive
sleep apnea (OSA). See, e,g, 321, 328, 535, 558, 632, 642, 680, 1198; Docket Entry 11. As a result, this Court
construes the references to Plaintiff’s “sleep disturbance” in her brief as references to her OSA.
74

Docket Entry 13, at 4-10.

75

20 C.F.R. § 1520(a)(4)(ii).

76

Stone, 752 F.2d 1099.

77

Stone, 752 F.2d at 1101(quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984)).

11

the claim must be remanded for reconsideration.78
Since Stone, the Fifth Circuit has made it clear that its intention was not to mandate the
use of specific verbiage in the hearing decision. The Court held:
Stone does not require a wholesale remand of all severity cases. A case will not be
remanded simply because the ALJ did not use ‘magic words.’ We remand only where
there is no indication the ALJ applied the correct standard. We must read the opinion of
the ALJ carefully to ensure that he or she used the ‘slight impairment’ standard in the
non-severity determination.79
In this case, the ALJ articulated the severity standard in the following way:
An impairment or combination of impairments is ‘severe’ within the meaning of the
regulations if it significantly limits an individual’s ability to perform basic work
activities. An impairment or combination of impairments is ‘not severe’ when medical
and other evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s ability to
work (20 CFR 404.1521; Social Security Rulings (SSRs) 85-28, 96-3p, and 96-4p).80
Considering the language used in the decision, Plaintiff asserts that the ALJ employed an
incorrect standard for nonseverity and, consequently, neglected to find her sleep disturbance,
hypothyroidism and chronic fatigue syndrome severe impairments.81 Defendant, on the other
hand, argues that any remand predicated on the above statement of nonseverity would result in an
erroneous requirement for the ALJ to use magic words.82 More importantly, Defendant contends
Stone was intended to address cases adjudicated at step two of the sequential evaluation

78

Stone, 752 F.2d at 1106.

79

Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986).

80

Transcript, at 11.

81

Docket Entry 11, at 8-11.

82

Docket Entry 13, at 6-8.

12

process.83 Therefore, a remand on the basis of Stone is inappropriate in cases such as this one
which were decided at subsequent steps in the sequential evaluation process.84
The Stone requirements were imposed on administrative adjudicators primarily in an
effort to target the unfairly premature disposition of cases at step two of the sequential evaluation
process.85 The mandate to remand cases using the wrong severity standard was introduced by the
following preamble, “In view of both the Secretary’s position in this case and our recent
experience with cases where the disposition has been on the basis of nonseverity….”86 After
Stone, the Fifth Circuit decided a number of cases which, though importantly distinguishable
from the instant case, lend some support to Defendant’s position that remand is not required
when the disability determination proceeds beyond the second step of the sequential evaluation
process.87 In Chaparro v. Bowen, for example, the Court concluded that the plaintiff waived his
right to assert a severity argument because he failed to raise the contention at the district court.88

83

Docket Entry 13, at 8.

84

Docket Entry 13, at 8-10.

85

Stone, 752 F.2d at 1106.

86

Id.

87

See Lopez v. Bowen, 806 F.2d 632, 634, fn.1(5th Cir. 1986)(finding no reversible error because the ALJ
determined that the plaintiff had severe impairments and decided the case at step four of the sequential evaluation
process); Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987)(concluding there was no reversible error because the
ALJ acknowledged the plaintiff’s “significant impairment” and adjudicated the case at step four of the sequential
evaluation process); Jones v. Bowen, 829 F.2d 524, 527, n.1 (5th Cir. 1987)(holding that no error existed in the
ALJ’s finding that plaintiff’s hypertension was “mild” because the case was adjudicated at steps four and five of the
sequential evaluation process); Moon v. Bowen, 810 F.2d 472, 473 (5th Cir. 1987)(finding no reversible error in the
ALJ’s severity analysis because the case was adjudicated at the fifth step of the process); Mays v. Bowen, 837 F.2d
1362, 1363, 1364(5th Cir. 1988)(holding that the ALJ applied the correct Stone standard but failed to articulate
which specific conditions were severe impairments. The Court concluded there was no reversible error, in part,
because the case was adjudicated at the fifth step of the sequential evaluation process.)
88

Chaparro v. Bowen, 815 F.2d 1008, 1011(5th Cir. 1987).

13

The Fifth Circuit noted, however, “In any event, this case did not turn on whether or not
Chaparro’s impairment was severe, but on whether Chaparro could return to his past relevant
work—an inquiry unaffected by the test set forth in Stone.”89
The instant case went beyond the second step of the sequential evaluation process when
the ALJ found, at the fifth step, that Plaintiff retained the RFC to perform work available in the
local and national economies.90 It might appear, therefore, that Plaintiff’s Stone arguments are
unavailing.
However, the specific language the ALJ used in defining the nonseverity standard has,
time and again, been found to be an erroneous construction of Stone. The ALJ’s nonseverity
standard does not comport with the requirements of Stone in two important ways. First, the
language in the ALJ’s decision misconstrues the “minimal effect” portion of the Stone
requirement. According to Stone, the impairment is not severe only when it is a “slight
abnormality” with “such minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work….”91 In order for an impairment to be found “not
severe” under Stone, therefore, it cannot impose any interference on the ability to perform work
activities.92 In contrast, the ALJ’s nonseverity language allows for “no more than a minimal
effect on an individual’s ability to work….”93 Thus, the ALJ’s version permits some interference

89

Chaparro, 815 F.2d at 1011.

90

Transcript, at 7-19.

91

Stone, 752 F.2d at 1101.

92

Id.

93

Transcript, at 11.

14

with work, while Stone does not allow for any interference. Second, the ALJ entirely omitted the
last portion of the Stone standard “irrespective of age, education or work experience.”94
A similar misconstruction of Stone was the reason for remand in Loza v. Apfel even
though that case was adjudicated at step five of the sequential evaluation process.95 Recent cases
in this district, as well as the Northern District of Texas, have also concluded that “Stone does
not allow for any interference with work ability, not even minimal interference.”96 The failure to
use the wrong nonseverity language is a legal error which requires remand.97
Defendant contends that Plaintiff failed to meet her burden of proving that she has
diagnosed medical conditions which were not adjudicated as “severe impairments.”98 Defendant
alleges that the conditions identified in Plaintiff’s brief—Hashimoto Thyroiditis
(hypothyroidism), chronic fatigue syndrom and sleep disturbance—do not impose any additional
limitations on Plaintiff beyond those imposed by Plaintiff’s fibromyalgia. Consequently,
Defendant asserts that Plaintiff failed to establish reversible error.99 This argument is

94

Stone, 752 F.2d at 1101.

95

Loza v. Apfel, 219 F.3d 378, 392-393, 398 (5th Cir. 2000). In Loza, the ALJ concluded that the
plaintiff’s mental impairment was not severe because plaintiff was “‘at most, slightly restricted by his mental
impairment in his activities of daily living.’” Id., at 392. As in this case, the Loza ALJ’s nonseverity language
allowed for some effect on the individual’s ability to work and omitted the “irrespective of age, education or work
experience” portion of the Stone language. Id.
96

Padalecki v. Astrue, 688 F.Supp.2d 576, 580 (W .D. Tex. 2010) (citing Scroggins v. Astrue, 598 F. Supp.
2d 800, 805 (N.D.Tex. 2009)). See also Hutchins v. Astrue, 2011 W L 1136246 (N.D.Tex. Mar. 25, 2011), at *3;
Sanders v. Astrue, 2008 W L 4211146 (N.D. Tex. Sept. 12, 2008), at *7-8.
97

See Loza, 219 F.3d at 391-92; Padalecki, 688 F. Supp. 2d at 581; Scroggins, 598 F.Supp.2d at 806-807;
Stone, 752 F.2d at 1106. Because the ALJ clearly misconstrued the Stone language in the decision, the
Commissioner’s assertion that the ALJ’s citation to SSR 85-28 complies with Stone is unavailing. See Docket Entry
13, at 6. It is evident that the ALJ used the wrong legal standard in the decision. Transcript, at 11.
98

Docket Entry 13 at 9-10.

99

Id.

15

unconvincing as the medical evidence in the record establishes that Plaintiff’s sleep apnea and
Hashimoto Thyroiditis are separate, diagnosed medical conditions which impact her pain and
fatigue levels.100 Therefore, the ALJ’s failure to cite Stone properly and to analyze the severity of
all of Plaintiff’s disorders constitutes legal error.101 For these reasons, Plaintiff’s request for
relief is GRANTED and this action REMANDED. On remand, the ALJ is directed to articulate
and apply properly the Stone standard to assess the severity or nonseverity of all of Plaintiff’s
diagnosed impairments. The Court declines to impose the time requirements requested by
Plaintiff in her brief.
2.

Did the ALJ properly analyze the opinions of Plaintiff’s treating physicians?

In her second point of error, Plaintiff contends that the ALJ failed to assess the opinions
of the treating physicians in accord with the relevant legal standards.102 Specifically, Plaintiff
asserts that the ALJ failed to give controlling weight to the opinion of her treating physician, Dr.
Valenta, without performing the analysis required by the applicable regulations.103 Plaintiff
further asserts that Dr. Valenta’s opinions were supported by the findings of Plaintiff’s treating
rheumatologist, Dr. Bernard Hildebrand.104 Defendant, on the other hand, argues that the ALJ’s
assessment of the treating physicians’ opinions is supported by the substantial evidence of the

100

See, e.g. Transcript, at 287, 308, 320, 321, 328, 632, 680, 1198. Defendant is correct, however, that the
chronic fatigue syndrome appears to be inextricably intertwined with Plaintiff’s fibromyalgia and not a separate
impairment. See Transcript, at 632.
101

Carey v. Apfel, 230 F. 3d 131, 142 (5th Cir. 2000) (quoting Kane v. Heckler, 731 F.2d 1216, 1220 (5th
Cir. 1984) (“To establish prejudice, a claimant must demonstrate that he or she ‘could and would have adduced
evidence that might have altered the result.’”).
102

Docket Entry 11, at 11-14.

103

Id.

104

Id.

16

record.105
The ALJ may decide the weight to accord the various pieces of evidence in the record and
receives great deference as to decisions regarding the same.106 However, the “ALJ must consider
all the record evidence and cannot ‘pick and choose’ only the evidence that supports h[er]
position.”107 When assessing the opinion of a treating physician, the ALJ must give it controlling
weight if she finds that it is “well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
case….”108 If the ALJ declines to afford controlling weight to the opinions of a treating
physician, the ALJ must explain in precise detail the reasons for deciding to do so.109
To guide the ALJ through this process, the Regulations outline six factors for the ALJ to
consider and discuss when explaining the weight accorded to the treating physician’s medical
opinion.110 Those criteria are: (1) the examining relationship (the ALJ should generally give
more weight to a source who examined the claimant);111 (2) the treatment relationship (the ALJ

105

Docket Entry 13, at 10-16.

106

Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985), “The administrative fact finder is entitled to
determine the credibility of medical experts as well as lay witnesses and to weigh their opinions and testimony
accordingly.” See also Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
107

Loza, 219 F.3d at 393.

108

20 C.F.R. § 404.1527(d)(2). See also Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (quoting Bastien
v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (“‘[t]he expert opinion[] of a treating physician as to the existence of a
disability [is] binding on the fact-finder unless contradicted by substantial evidence to the contrary) (brackets in
original).” See also Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000).
109
20 C.F.R. § 404.1527(d)(2). See Loza, 219 F.3d at 395 (“The ALJ cannot reject a medical opinion
without an explanation.”).
110

20 C.F.R. § 404.1527(d)(2).

111

20 C.F.R. § 404.1527(d)(1).

17

should generally give more weight to a source who treated claimant),112 including the length,
nature and extent of the treatment relationship, as well as the frequency of the examination(s);113
(3) the supportability of the opinion (the ALJ should give greater weight to the source who
provides more relevant evidence to support the opinion);114 (4) consistency (the ALJ should give
greater weight to opinions which are consistent with the record as a whole);115 (5) specialization
(the ALJ should generally give greater weight to the opinion of a specialist);116 and (6) any other
factors which “tend to support or contradict the opinion.”117 Ordinarily, the ALJ must use “all of
the factors provided in 20 CFR 404.1527….” to explain the weight given to the opinion of a
treating physician.118
The primary piece of treating physician evidence at issue is a physical capacities
evaluation form filled out by Plaintiff’s treating physician, Dr. Jerome Valenta.119 On the
questionnaire, Dr. Valenta concluded that Plaintiff can sit for no more than two hours, stand or
walk for less than one hour, and cannot use her hands to perform repetitive motions during an

112

20 C.F.R. § 404.1527(d)(2).

113

20 C.F.R. § 404.1527(d)(2)(i)-(ii).

114

20 C.F.R. § 404.1527(d)(3).

115

20 C.F.R. § 404.1527(d)(4).

116

20 C.F.R. § 404.1527(d)(5). See also Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) (citing
Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983)).
117

20 C.F.R. § 404.1527(d)(6).

118

Policy Interpretation Ruling Titles II and XVI: Giving Controlling W eight to Treating Source Medical
Opinions, SSR 96-2p (hereafter “SSR 96-2p”), July 2, 1996, at * 4 (“treating source medical opinions… must be
weighed using all of the factors provided in 20 CFR 404.1527… ”). See also Newton, 209 F.3d at 456 (“This court
now… holds that an ALJ is required to consider each of the § 404.1527(d) factors before declining to give any weight
to the opinions of the claimant’s treating specialist.”).
119

Transcript, at 1109-1112 (cited in the hearing decision as Exhibit 21F).

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eight-hour work day.120 Dr. Valenta stated that Plaintiff suffers from such disabling fatigue and
pain that Plaintiff cannot work full-time even in a sedentary position.121
The ALJ addressed this report in the decision.122 The ALJ noted Dr. Valenta’s
conclusions that Plaintiff had disabling limitations and referenced a medical report by Plaintiff’s
other treating physician and specialist, Dr. Hildebrand, which “did not give an opinion of
claimant’s capacity for work.”123 The ALJ then wrote, “The undersigned finds that the sitting,
standing, walking limitations determined are not supported in the examination findings or
imaging study evidence.”124 In choosing to embrace the conclusions of the non-examining state
agency medical consultants and the non-examining testifying medical expert, the ALJ held:
Based on a thorough review of all evidence and testimony, the undersigned finds that the
opinion of Dr. Valenta concerning the claimant’s ability to sit, stand, and walk is not
consistent with the evidence as a whole and is not entitled to significant weight in the
decision making process.125
Defendant implicitly concedes that the ALJ failed to perform the analysis mandated by
the applicable regulation.126 Instead, Defendant asserts that the ALJ’s decision to accord little, if
any, weight to treating physician Valenta’s assessment of Plaintiff’s functional limitations is

120

Transcript, at 1109.

121

Transcript, at 1110-1111.

122

Transcript, at 17.

123

Id.

124

Id.

125

Id.

126

Docket Entry 13, 10-16. See 20 C.F.R. § 404.1527(d); SSR 96-2p, at *5.

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supported by the substantial evidence of the record.127 Specifically, Defendant refers the Court to
the following: (1) Plaintiff’s daily activities and testimony that she looked for some part time
work;128 (2) a treatment note in which Plaintiff denied having difficulty functioning at work;129
and (3) the fact that Plaintiff’s treating physician, specialist Dr. Bernard Hildebrand, never
labeled Plaintiff disabled in his treatment notes nor imposed work limitations on her but, instead,
encouraged Plaintiff to exercise.130
However, an ALJ’s failure to apply the correct legal standard is a different inquiry than
whether the decision is supported by the substantial evidence of the record. When the ALJ fails
to use the appropriate legal standard in assessing the opinions of a plaintiff’s treating physician,
the case must be remanded.131 For these reasons, Plaintiff’s request for relief is GRANTED and
this action REMANDED so that the ALJ can properly assess the opinions of Plaintiff’s treating
physicians, Dr. Valenta and Dr. Hildebrand, in accordance with the appropriate legal standards.
If warranted, the ALJ must obtain a consultative examination or additional testimony from a

127

Docket Entry 13, at 10-16.

128

Docket Entry 13, at 11. The ALJ is not empowered to substitute his lay conclusions about a Plaintiff’s
ability to perform daily activities or exercise for medical opinion about functional limitations. Frank v. Barnhart,
326 F.3d 618, 622 (5th Cir. 2003). Similarly, a Plaintiff can still “qualif[y] as disabled under the act…even if he is
sometimes capable of working for short spurts.” Frank, 326 F.3d at 621. In addition, there is a significant amount of
conflicting evidence in the record about Plaintiff’s ability to perform routine activities successfully on a sustained
basis, as well as the range in severity of Plaintiff’s pain. See Transcript, at 286, 308, 320, 328, 642, 680, 717, 960,
1199 & 1200-1201.
129

Docket Entry 13, at 13. Plaintiff was not working at the time this comment was made in her treatment
records. See Transcript, at 286. This same treatment record also stated that Plaintiff’s pain could not be controlled.
Transcript, at 286-287.
130
Docket Entry 13, at 12, 14. See Frank, 326 F.3d at 622 (“Although common sense might dictate that a
person who can [exercise] can hold down a job, common sense about medical matters is often wrong.”).
131

See Newton, 209 F.3d at 456; SSR 96-2p, at *4; Martinez v. Chater 64 F.3d at 173; Villa v. Sullivan,
895 F.2d 1019, 1021 (5th Cir. 1990); 42 U.S.C. § 405(g).

20

medical expert to clarify Plaintiff’s functional abilities and limitations in light of a proper
assessment of the treating physicians’ conclusions.
3.

Did the ALJ properly consider Plaintiff’s fibromyalgia?

In her third, and final, point of error, Plaintiff contends that the ALJ failed to “completely
consider the nature and limitations caused by the [fibromyalgia] condition when formulating the
RFC and assessing Wichman’s credibility.”132 In opposition, Defendant argues that a severe
impairment does not necessarily constitute a disabling condition. Moreover, Defendant contends
that Plaintiff is, in truth, asking the Court to reweigh the evidence which is beyond the
parameters of the Court’s authority.133
The Court may not reweigh the evidence.134 Moreover, even if evidence preponderates
against the ALJ’s decision, the reviewing court must affirm the decision if it comports with the
applicable legal standards and is supported by the substantial evidence in the record.135 Thus, this
Court cannot and will not substitute its own judgment for that of the ALJ. Because the ALJ
failed to use the appropriate legal standards in assessing the opinions of the treating physicians’
opinions, on remand, the evidence regarding Plaintiff’s fibromyalgia, and any consequential
functional limitations, will naturally be revisited. Therefore, the Court DENIES Plaintiff’s
request for relief on the basis of Plaintiff’s third alleged point of error. Because of the other
flaws in the administrative decision, however, Plaintiff’s request for relief will likely be

132

Docket Entry 11, at 14.

133

Docket Entry 13, at 16-18.

134

Johnson, 864 F.2d at 343.

135

Id.

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addressed on remand.
VI. Conclusion
Based on the foregoing, Plaintiff’s request for relief is GRANTED, the decision of the
Commissioner is REVERSED and this action REMANDED for further proceedings consistent
with this opinion.
SIGNED on March 7, 2012.

_____________________________________
NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE

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