Ihde v. Colvin
MEMORANDUM OF DECISION. Signed by William G. Young. (tb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
CAROLYN W. COLVIN,
Acting Commissioner, Social
ASHLEY ELIZABETH IHDE,
September 5, 2017
MEMORANDUM OF DECISION
Ashley Elizabeth Ihde (“Ihde”) brought this action against
the Commissioner of Social Security (“Commissioner”), pursuant
to 42 U.S.C. sections 405(g) and 1383(c)(3).
review of the Commissioner’s denial of Ihde’s application for
disability benefits and supplemental security income.
Court granted remand on a single issue, as explained herein.
Ihde sought Title II period of disability and disability
insurance benefits as well as Title XVI supplemental security
Of the District of Massachusetts, sitting by designation.
Reassignment Order, ECF No. 6.
income on February 21, 2014.
12, ECF No. 14.2
Administrative R. (“Admin. R.”)
The Social Security Administration initially
denied Ihde’s applications on July 14, 2014 and then again on
September 17, 2014 after reconsideration.
On October 13,
2014, Ihde submitted a request for a hearing which then was held
on April 14, 2015.
On June 1, 2015, the hearing officer3
determined that Ihde was not disabled and therefore qualified
for neither disability insurance benefits nor supplemental
Id. at 20.
The Appeals Council denied Ihde’s
request for review on October 2, 2015.
Id. at 1-3.
On December 4, 2015, Ihde filed a complaint in federal
district court asking that the Court find that she is entitled
to benefits or, in the alternative, remand the Social Security
Administration’s decision for further hearing.
Compl. 2, ECF
The Commissioner answered on October 7, 2016, Answer,
ECF No. 13, and the parties briefed the issues, Pl.’s Br., ECF
No. 15; Pl.’s Reply Br. 1-3, ECF No. 19; Br. Supp.
Commissioner’s Decision (“Def.’s Br.”), ECF No. 18.
On June 2,
The administrative record includes several docket entries,
labeled ECF Nos. 14-1 through 14-9. For the sake of simplicity,
this Court cites page numbers in the continuously paginated
record as a whole, omitting reference to particular ECF numbers.
For an explanation of the Court’s use of the term “hearing
officer” in lieu of the term “administrative law judge,” see
Vega v. Colvin, 164 F. Supp. 3d 249, 251 n.1 (D. Mass. 2016).
2017, this Court heard oral arguments4 and remanded the case to
the hearing officer only to further consider the issue rising
out of Dr. Cessna’s opinion.
Minute Entry, ECF No. 24.
In order to promote the “just, speedy, and inexpensive”
resolution of social security appeals, Fed. R. Civ. P. 1, I have
commenced giving them oral hearings. I am learning that this is
“a means of increasing efficiency in the handling of social
security appeals without impairing the quality of justice,”
Mauro King v. Berryhill, No. 15-00285-WGY, 2017 WL 1753442, at
*1 n.5 (N.D.N.Y. Apr. 14, 2017). While sitting as a visiting
judge in the Northern District of New York,
armed with thorough bench memoranda, this Court heard
six such appeals during the afternoon of January 31,
2017. Three were denied directly from the bench and
the remaining three . . . were taken under advisement.
. . . [O]ral argument played (as it so often does) a
pivotal role in the Court’s analysis. The overall
efficiency in case processing is, however, evident.
Court technology deserves commendation here. I
presided over these hearings while sitting in Boston
(although designated a visiting judge in the Northern
District of New York). Plaintiffs’ counsel and one
pro se plaintiff appeared in their home courts in
Albany and Syracuse. Government counsel phoned in
from the Manhattan courthouse of the Southern District
of New York. Had we had just a bit more time, I could
have seen everyone via our present split video screen
technology. The savings in costs and travel times are
Here in the Western District of Texas, I have been
assigned, inter alia, this case plus two other social security
appeals: Wentland v. Colvin, 6:16-cv-00006-WY (W.D. Tex. June 2,
2017), and Stewart v. Colvin, 6:16-cv-00097-WY (W.D. Tex. June
2, 2017). After careful preparation, I heard all three appeals
on the afternoon of June 2, 2017, denying Wentland’s appeal and
remanding Stewart’s and Ihde’s cases for further proceedings ore
tenus. Minute Entry, Wentland, No. 6:16-cv-00006-WY, ECF No.
17; Minute Entry, Stewart, 6:16-cv-00097-WY, ECF No. 17; Minute
Entry, ECF No. 24. Only Ihde’s appeal appeared to warrant a
more extended discussion. This opinion is the result.
At the urgent request of all parties, we heard these
appeals over the telephone with my court reporter making a
complete record. Oral argument by all parties was of a very
high order. I was hesitant to agree to a telephone conference
since the public’s business ought be addressed in a truly public
forum, i.e., a courtroom. See Securities & Exch. Comm’n v.
Eagleeye Asset Mgmt., LLC, 975 F. Supp. 2d 151, 153 n.1 (D.
Mass. 2013). Here, however, a telephone conference on the
record made sense. Consider: the appellants, Ihde, Stewart, and
Wentland, are all residents of the Waco area (none of them
appeared via telephone but they were, of course, welcome).
Counsel for the Social Security Administration phoned in from
Dallas and appellants’ counsel argued from their offices in New
York and Philadelphia while I heard the arguments in my chambers
Strikingly, these data confirm the essentially national
nature of social security disability determinations and led me
to revive an idea I’d earlier conveyed to the Chair of the
United States Judicial Conference. Letter from William G.
Young, District Judge, United States District Court for the
District of Massachusetts, to David B. Sentelle, Chief Judge,
United States Court of Appeals for the District of Columbia
(Nov. 20, 2012) (on file with author). Why don’t we create a
national docket of social security cases (along the lines of our
MDL dockets) and empower judges in courts with low caseloads as
visiting judges who could handle them and relieve the pressure
After all, the Judicial Conference apparently thinks we are
overstaffed with judges in at least one court. Report of the
Proceedings of the Judicial Conference of the United States 17
(Mar. 14, 2017), http://www.uscourts.gov/about-federalcourts/reports-proceedings-judicial-conference-us. Why not take
a slew of social security appeals and empower judges to work on
them? The idea could be extended without overly complex
administrative mechanisms throughout those courts with lesser
workloads while easing delays in cases jammed up for trial.
Compare America’s most productive courts. Hon. William G. Young
& Jordan M. Singer, Bench Presence: Toward a More Complete Model
of Federal District Court Productivity, 118 Penn St. L. Rev. 55
The benefits are significant. Most important, these
litigants could more rapidly get their day in court, moreover,
while each appellant would be entitled to the law applicable in
his or her circuit, the careful decisions of district judges
“visiting” from various home courts would inevitably tend to
even out the undue disparities in approach to this ever more
important national statute. See Jonah J. Horwitz, Social
Insecurity: A Modest Proposal for Remedying Federal District
Ashley Ihde was born on September 22, 1984.
Admin. R. 275.
She was twenty-nine years old when she filed her applications
for social security benefits, asserting that her disability had
begun on August 30, 2009.
See id. at 12, 275.
high school and completed training as a dental assisting
Id. at 280.
Her work history includes employment
as a food server, cashier, and retail sales clerk.
Id. at 29-
Ihde asserts five conditions place limitations on her
ability to work: anxiety, depression, paranoia, borderline
personality disorder, and bipolar disorder.
Id. at 279.
Standard of Review
To uphold the factual determinations of the Social Security
Commissioner, the Court must find that such determinations are
supported by substantial evidence, 42 U.S.C. § 405(g), and that
Court Inconsistency in Social Security Cases, 34 Pace L. Rev.
30, 37, 53-54 (identifying the existence of intra and extradistrict conflicts in the application of social security law and
the backlog of such cases in district courts nationally).
Finally, such a unitary approach would tend to reduce the
balkanization of the district courts and address Martin Luther
King’s poignant warning that “injustice anywhere is a threat to
justice everywhere.” Martin Luther King, Jr., Letter from a
Birmingham Jail (1963). It is an idea worthy of serious
As necessary, the Court incorporates further factual
background into its analysis of Ihde’s claims.
no errors of law have occurred.
343 (5th Cir. 1988).
Johnson v. Bowen, 864 F.2d 340,
Substantial evidence is “less than a
preponderance,” Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir.
1988), but “more than a mere scintilla . . . . [and that which]
a reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)) (internal quotation marks omitted); see also Salinas v.
Schweiker, 662 F.2d 345, 347 (5th Cir. 1981).
whether the Commissioner’s factual determination is supported by
substantial evidence, the Court must look to the administrative
record as a whole.
Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994) (citing Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th
The Court cannot, however, “reweigh the evidence,
try the issues de novo, or substitute [its] judgment for that of
For benefit determinations, “[p]rocedural perfection in
administrative proceedings is not required.”
Rollins v. Astrue,
464 F. App’x 353, 358 (5th Cir. 2012) (quoting Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir. 1988)).
Accordingly, even if the
Court finds error in the Commissioner’s decision, if that error
does not upset the substantial rights of the litigants, the
Court may find the error harmless and decline to vacate
See id. (quoting Bowen, 837 F.2d at 1364); see also
28 U.S.C. § 2111.
Social Security Disability Standard
A disability is “the inability to do 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 12 months.”
§§ 404.1505(a), 416.905(a).
To establish whether a claimant
meets this definition, the Social Security Administration uses a
sequential five-step evaluation: 1) is the claimant engaging in
“substantial gainful activity” that demonstrates no disability;
2) does the claimant have an impairment(s) that alone or
combined is sufficiently medically severe to meet the duration
requirement; 3) does the claimant’s impairment(s) satisfy the
duration requirement and equal or exceed an impairment in
appendix 1; 4) can the claimant engage in past relevant work
considering the claimant’s residual functional capacity (“RFC”);
and 5) do the claimant’s age, education, work experience, and
RFC demonstrate that she can perform other work.
§§ 404.1520(a)(4), 416.920(a)(4).
If the evaluator can make a
determination about the claimant’s disability status at any
given step, then he does not proceed to the next step.
Between steps three and four of the disability evaluation,
the evaluator assesses the claimant’s RFC.
The RFC “is the
most [a claimant] can still do despite [his or her]
limitations,” taking into account all of the claimant’s
medically determinable impairments.
Id. §§ 404.1545(a)(1)-(2),
The Hearing Officer’s Decision
In this case, the hearing officer evaluated Ihde’s claim
using the five-step process.
Admin. R. 14-20.
At steps one and
two, he found that Ihde was not participating in substantial
gainful activity and did have three severe impairments (obesity,
bipolar disorder, and post-traumatic stress disorder (“PTSD”)).
Id. at 14.
At step three, however, the hearing officer
determined that although Ihde’s impairments were severe, they
did not reach the threshold of any appendix 1 impairments.
He concluded that Ihde had “the [RFC] to perform a
reduced range of medium work,” id. at 16, and that while Ihde
would be unable to participate in past relevant work (step
four), id. at 19, she would be capable of performing other jobs
(step five), and was therefore not disabled for the purpose of
acquiring benefits, id. at 19-20.
Ihde challenges three aspects of the Commissioner’s
decision: 1) the hearing officer’s failure to specify the weight
accorded to Nurse Garcia or Dr. Cessna’s opinions, Pl.’s Br. 1013, 2) the existence of other evidence in the record
contradicting the hearing officer’s conclusions, id. at 13-15,
and 3) the hearing officer’s alleged use of his lay opinion in
relying on evidence not available to the state agency and state
medical professionals, id. at 16-17.
While Ihde’s challenges
are largely unsuccessful, the hearing officer’s failure to
explain sufficiently the weight accorded to Dr. Cessna’s opinion
Hearing Officer’s Failure to Specify Weight of
Ihde first challenges the hearing officer’s failure to
identify the weight he assigned to opinion evidence in the
Id. at 11.
Specifically, Ihde takes issue with the
hearing officer’s omission of the weight, if any, that he gave
to Nurse Garcia and Dr. Cessna’s opinions as well as his
reasoning for not adopting their perspectives regarding Ihde’s
limitations in the RFC evaluation.
Id. at 11-12.
When the Social Security Administration reviews and
evaluates opinion evidence for the purpose of determining a
claimant’s disability, it deals with the evidence differently
depending upon the source.
SSR 06-03p, 2006 WL 2329939, at *2-6
(Aug. 9, 2006).6
There are three types of sources:
1) “acceptable medical sources,” 2) other health care providers
who are “not acceptable medical sources,” and 3) “non-medical
Id. at *1-2.
Acceptable medical sources consist of
licensed physicians, psychologists, optometrists, podiatrists,
and qualified speech-language pathologists.
Id. at *1.
acceptable medical sources include nurse practitioners,
physician assistants, licensed clinical social workers,
naturopaths, chiropractors, audiologists, and therapists.
Non-medical sources include individuals working in
educational environments, social welfare agency professionals,
rehabilitation counselors, family members, neighbors, employers,
Not acceptable medical sources and non-medical
sources both are classified as “other sources.”
“Medical opinions are statements from physicians and
psychologists or other ‘acceptable medical sources’ that reflect
judgments about the nature and severity of an individual’s
On March 27, 2017, the Social Security Administration
effected a rescission of Social Security Rulings 06-03p, 96-2p
and 96-5p for all claims brought on or after that date.
Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p,
82 Fed. Reg. 15263-01 (Mar. 27, 2017). Ihde, however, filed her
initial benefit applications on February 21, 2014, Admin. R. 12,
received a decision from the hearing officer on June 1, 2015,
id. at 20, and filed her complaint in federal court on February
8, 2016, Minute Entry, ECF 3. Therefore, these rulings remain
applicable for the purposes of this case. See Rescission of
Social Security Rulings, 82 Fed. Reg. 15263-01.
impairment(s), including symptoms, diagnosis and prognosis, what
the individual can still do despite the impairment(s), and
physical and mental restrictions.”
Where “other sources,”
such as nurse practitioners, have provided opinion evidence,
evaluators should compare their opinion evidence against the
available medical opinion evidence.
Id. at *4.
Ruling 06-03p specifies a preference for the evaluator to supply
an explanation for his evaluation of the opinion evidence from
Although there is a distinction between what an
adjudicator must consider and what the adjudicator
must explain in the disability determination or
decision, the adjudicator generally should explain the
weight given to opinions from these “other sources,”
or otherwise ensure that the discussion of the
evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have
an effect on the outcome of the case. In addition,
when an adjudicator determines that an opinion from
such a sources is entitled to greater weight than a
medical opinion from a treating source, the
adjudicator must explain the reasons . . . if the
determination is less than fully favorable.
Id. at *6.
There is no requirement, however, that the
evaluator explain his reasoning where he accords greater weight
to the opinion evidence of an acceptable medical source than
the opinion evidence of other sources.
while there appears to be a preference for the evaluator’s
explanation in such circumstances, this is not a requirement.
To determine the weight afforded to medical opinions, the
evaluator considers six factors: 1) whether the source has
examined the claimant; 2) whether the source has a treating
relationship with the patient and the length, frequency,
nature, and extent of that relationship; 3) the extent to which
the source supports his findings with “relevant evidence” or
explanation; 4) whether the source’s opinion is consistent with
the rest of the record; 5) whether the source is a specialist
on the relevant medical issue; and 6) whether there are any
additional factors that corroborate or counter the source’s
20 C.F.R. §§ 404.1527(c), 416.927(c).
medical sources’ opinions may be entitled to greater weight
than other sources’ opinions because the prior sources “are the
most qualified healthcare professionals.”
(internal quotation marks omitted).
SSR 06-03p, at *5
This preference is not
While the content of the weight factors for medical
opinions are very similar to that of other source opinions, SSR
06-03p does phrase the factors slightly differently than
sections 404.1527(c) and 416.927(c) with regard to other source
 How long the source has known and how
frequently the source has seen the individual; 
[h]ow consistent the opinion is with other evidence;
 [t]he degree to which the source presents relevant
evidence to support an opinion;  [h]ow well the
source explains the opinion;  [w]hether the source
has a specialty or area of expertise related to the
individual’s impairment(s); and  [a]ny other
factors that tend to support or refute the opinion.
SSR 06-03p, at *4-5.
absolute, however, and the application of the six weight
factors to the facts of a case might tilt the scale in favor of
the opinion from an other source.
To assess a claimant’s RFC, the Social Security
Administration evaluator is required to review “all of the
relevant evidence in the case record.”
374184, at *5 (July 2, 1996).
SSR 96-8p, 1996 WL
The evaluator must “always
consider and address medical source opinions” and explain the
rejection of any such opinion.
Id. at *7.
Nurse Garcia’s Opinion
Ihde argues that Nurse Garcia’s opinion should have more
Pl.’s Br. 16.
Nurse Garcia is a nurse practitioner,8
Admin. R. 486, and thus an “other source, SSR 06-03p, at *2.
For opinion evidence from other sources, the hearing officer is
not required to consider every weight determining factor;
however, he should examine those factors applicable to the
particular circumstances of a given case.
See SSR 06-03p, at
*5; see also Adkins v. Berryhill, No. 3:16-CV-000459-RFC, 2017
Although the hearing officer incorrectly refers to Nurse
Garcia as Ihde’s “counselor” rather than “nurse practitioner,”
Admin. R. 18, the mistake is negligible because both are other
sources, SSR 06-03, at *1-2, and there is no indication that
either specializes in Ihde’s impairments (obesity, bipolar
disorder, and PTSD), Admin. R. 14. Therefore, the hearing
officer’s misclassification of Nurse Garcia as a counselor has
not affected Ihde’s substantial rights and is harmless error.
See Rollins, 464 F. App’x at 358.
WL 1185235, at *7-8 (W.D. Tex. Mar. 29, 2017) (Castaneda, M.J.)
(holding hearing officer’s consideration of two factors was
sufficient); Mitchell v. Astrue, No. SA-11-CA-0751-XR, 2012 WL
2368508, at *9 (W.D. Tex. June 21, 2012) (Rodriguez, J.)
(holding hearing officer’s consideration of four of the six
opinion weight factors of not acceptable medical source was
A hearing officer’s decision should sufficiently
discuss the weight factors to establish why he rejected opinion
evidence; it cannot be “devoid of any degree of specific
consideration” of the opinion evidence.
See Cruse v.
Commissioner of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007).
It is also permissible for the hearing officer to examine Nurse
Garcia’s opinion for the purpose of garnering information about
the severity of Ihde’s impairment and how the impairment hinders
her ability to work.
See Frantz v. Astrue, 509 F.3d 1299, 1301
(10th Cir. 2007) (citing 20 C.F.R. § 404.1513(d)); Lacroix v.
Barnhart, 465 F.3d 881, 886-87 (8th Cir. 2006) (citing 20 C.F.R.
§§ 404.1513(d), 416.913(d)).
Here, although the hearing officer does not explicitly
state that he is weighing Nurse Garcia’s opinion, he does
discuss the consistency of her statements with other evidence in
the record, making specific reference to Nurse Garcia’s finding
of “marked to extreme limitations in function” and contrasting
it with other evidence.
Admin. R. 18.
The hearing officer
refers to Nurse Garcia’s opinion evidence again when discussing
how Ihde’s “situational depression” is only sufficient to
“establish at most moderate limitations in function.”
record demonstrates that the hearing officer did, at least
implicitly, consider at least one of the weight factors in SSR
Accordingly, this Court held that the hearing officer
did not err in his weighing of Nurse Garcia’s opinion evidence.
Dr. Cessna’s Opinion
Ihde argues that the hearing officer mischaracterized Dr.
Cessna as a treating physician and thus accorded the doctor’s
opinion inappropriate weight.
Pl.’s Br. 16.
In his decision,
the hearing officer called Dr. Cessna Ihde’s “treating
Admin. R. 18.
A treating physician is a “treating
source,” meaning a claimant’s “acceptable medical source who
provides [her], or has provided [her], with medical treatment
or evaluation and who has, or has had, an ongoing treatment
relationship with [claimant].”
20 C.F.R. § 404.1527(a)(2).
Courts look to the “treating physicians rule” as the
standard which hearing officers ought use to analyze and weigh
the opinion evidence of a claimant’s treating physician.
Rodriguez v. Astrue, No. SA-09-CA-999-XR, 2010 WL 4007617, at
*4-5 (W.D. Tex. Oct. 12, 2010) (Rodriguez, J.); Barrientoz v.
Massanari, 202 F. Supp. 2d 577, 589 (W.D. Tex. 2002) (Biery,
This rule dictates that a treating physician’s opinion
evidence be given “considerable weight in determining
Barrientoz, 202 F. Supp. 2d at 591; see
Greenspan, 38 F.3d at 237.
Despite this deference, a hearing officer can accord a
treating physician’s opinion less weight where there is “good
cause” for the determination, such as “statements that are
brief and conclusory, not supported by medically acceptable
clinical laboratory diagnostic techniques, or otherwise
unsupported by the evidence.”
Greenspan, 38 F.3d at 237; see
also Thibodeaux v. Astrue, 324 F. App’x 440, 443-44 (5th Cir.
2009); Barrientoz, 202 F. Supp. 2d at 591.
Where there is no
conflicting “reliable medical evidence from a treating or
examining physician,” a hearing officer can choose to reject a
treating physician’s opinion evidence only after a detailed
discussion of the weight factors set forth by the Social
Thibodeaux, 324 F. App’x at 444;
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000); Barrientoz,
202 F. Supp. 2d at 589.
Generally, the hearing officer ought
discuss all six factors if granting a treating physician’s
opinion little or no weight.
Newton, 209 F.3d at 456.
Opinions of acceptable medical sources that are not
treating sources are not provided with the same “considerable
weight” as treating sources, Robinson v. Astrue, 271 F. App’x
394, 396 (5th Cir. 2008), but such medical opinion evidence is
still entitled to weighing and evaluation, Kneeland v.
Berryhill, 850 F.3d 749, 760 (5th Cir. 2017); Pradia v. Colvin,
No. 3:15-CV-00036-RFC, 2017 WL 28088, at *4 (W.D. Tex. Jan. 3,
2017) (Castaneda, M.J.); 20 C.F.R. §§ 404.1527(c), 416.927(c).
A hearing officer demonstrates that he properly weighed the
evidence where he gives “specific reasons,” in accordance with
the weight factors, for assigning an examining physician’s
evidence a particular weight.
See Pradia, 2017 WL 28088, at
*5; but see Ciccotti v. Astrue, No. SA-09-CV-969-XR, 2010 WL
3022775, at *9 (W.D. Tex. July 28, 2010) (Rodriguez, J.) (“The
[hearing officer i]s not required to conduct a six-factor test
to weigh the medical opinions of non-treating doctors because
the doctors were not treating doctors.”).
There is not,
however, a requirement for “detailed analysis.”
WL 28088, at *5.
Here, under either the treating physician or the examining
physician relationship, the hearing officer has not engaged in
a sufficiently detailed or specific analysis concerning the
weight to be accorded Dr. Cessna’s opinion.
324 F. App’x at 444; Pradia, 2017 WL 28088, at *5.
officer states that “[w]hile the undersigned finds a majority
of the work-related limitations in function reported by her
current treating physician persuasive, the evidence does not
support the extreme deficits in attendance and the marked
deficits in carrying out detailed tasks proposed.”
18 (citing Dr. Cessna opinion evidence at Ex. 10F).
explains that Ihde’s admission that she was “stable for the
past two years” was sufficient evidence to disregard Dr.
Cessna’s findings of marked deficits.
Yet there is no
additional discussion about why the hearing officer accepted a
portion of Dr. Cessna’s opinion while rejecting another
Id. at 16-19.
Further, the hearing officer inaccurately cites Dr.
Cessna’s opinion in a discussion of Ihde’s September 2014
hospital visit, to which Dr. Cessna’s opinion evidence does not
Id. at 18.
The hearing officer’s brief discussion of
Dr. Cessna’s evidence does not grapple with the weight factors
and this, coupled with his inaccurate citation of Dr. Cessna’s
opinion in other portions of the decision, renders the hearing
officer’s weight determination opaque at best.
record does not evidence that the hearing officer properly
determined or explained the weight he accorded to Dr. Cessna’s
opinion or that his determinations regarding that opinion are
supported by substantial evidence.
The Court accordingly
remanded on this issue.
Existence of Contradictory Evidence in Record
Ihde argues that the hearing officer improperly examined
the evidence of record because there is sufficient evidence to
contradict the finding that Ihde’s medication was managing her
Pl.’s Br. 13-15.
To support her claim, Ihde
cites two cases: Daniels v. Barnhart, No. SA-04-CA-0261 XR
(NN), 2005 U.S. Dist. LEXIS 11516 (W.D. Tex. June 14, 2005)
(Rodriquez, J.), and Armstrong v. Sullivan, 814 F. Supp. 1364
(W.D. Tex. 1993) (Sparks, J.).
Pl.’s Br. 14.
In Daniels, the
court suggests in a footnote that “the [hearing officer] is
obligated to expressly resolve conflicts in the evidence and
may not merely ignore evidence which weighs against his
2005 U.S. Dist. LEXIS 11516, at *27 n.74 (citing
Loza v. Apfel, 219 F.3d 378, 393-94 (5th Cir. 2000)).
hearing officer had stated incorrectly that State Agency
Medical Consultants agreed with another doctor’s conclusion
that claimant did not have marked limitations, when a report by
the consultants actually contradicted this finding.
In Armstrong, the court ruled the hearing officer
erred where he did not explain his reasoning regarding the
insufficiency of the claimant’s time period of injury and
completely omitted discussion of contrary evidence in the
Armstrong, 814 F. Supp. at 1373.
determined, inter alia, that the hearing officer ought have
provided “specific findings regarding the supporting and
conflicting evidence, the weight to give that evidence, and the
reasons for his or her conclusions regarding the evidence.”
Id. (citing DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir.
1983); Rivera v. Sullivan, 771 F. Supp. 1339, 1351, 1354, 1356
Unlike these cases, however, the hearing officer here does
not omit or incorrectly cite key information -- he acknowledges
that Ihde has ongoing symptoms and mental health issues, but
finds these situational.
Admin. R. 18.
Although Ihde takes
issue with the hearing officer’s classification of her relapses,
Pl.’s Br. 15, the Commissioner cites case law supporting the
hearing officer’s finding, Def.’s Br. 7.
The most persuasive is
McGehee v. Chater, 83 F.3d 418, 1996 WL 197435 (5th Cir. Mar.
In McGehee, the Fifth Circuit held that a hearing
officer rightfully determined that claimant’s “limited period of
psychiatric treatment” stemming from financial, marital, and
health issues creating a situational depression was not
sufficient to establish a medically determinable mental
Id. at *2-3.
The hearing officer based his
findings on the evaluation of a consultative psychiatrist, which
the court ruled provided substantial evidence to support the
hearing officer’s decision despite other evidence in the record
supporting the opposite finding.
Here, the hearing officer notes that Ihde continued to have
mental symptoms after 2011, even as recently as 2015.
The hearing officer, however, also cites evidence
indicating that Ihde’s mental symptoms are the result of
“significant life stressors,” such as Nurse Garcia’s description
of Ihde’s relapses as “situational.”
The hearing officer
concludes that such situational relapses were insufficient to
suggest more than moderate limitations in Ihde’s functioning.
There is substantial evidence in the record to support this
determination; thus there is no error on this issue.
Hearing Officer’s Reliance on Lay Opinion
Ihde last proffers that the hearing officer based his
decision “on his own lay opinion of the evidence” rather than on
the opinions of medical sources.
Pl.’s Br. 17.
that the hearing officer states that he based his RFC
determination for Ihde “on updated evidence that was not
available for review by the State Agency, and a different
interpretation of the evidence reviewed by the State Agency
Id. at 16 (citing Admin. R. 19).
Ihde asserts that
this disclosure coupled with the hearing officer’s lack of
explanation for his “implicit rejection” of other sources of
opinion evidence demonstrates his use of his lay opinion.
Where the hearing officer considers new medical evidence,
SSR 96-6p requires that he request an updated medical opinion
from a state agency medical or psychological consultant when he
believes such evidence could change their previous findings.
SSR 96-6p, 1996 WL 374180, at *3-4 (July 2, 1996).
requirement relates to a hearing officer’s assessment of step
three, however, not the determination of a claimant’s RFC.
id. at *4 (omitting mention of requirement specified in medical
Ihde cites San Miguel v. Astrue, No. SA-
10-cv-0766 XR (NN), 2012 U.S. Dist. LEXIS 16551 (W.D. Tex. Feb.
6, 2012) (Nowak, M.J.), but the case does not clearly
distinguish between the RFC assessment and the equivalent
impairment assessment, see id. at *16-19 (citing SSR 96-6p), a
distinction which the ruling does make, SSR 96-6p at *3-4.
other cases Ihde cites deal with general circumstances where the
hearing officer relied on his or her lay opinion.
See Lax v.
Astrue, 489 F.3d 1080, 1089 (10th Cir. 2007) (holding that
hearing officer’s determination that there were “large
variations” in claimant’s IQ scores was not backed by
substantial evidence where there was “no evidence in the record”
of such variation); Morales v. Apfel, 225 F.3d 310, 318 (3d Cir.
2000) (determining that hearing officer could not reject opinion
evidence of treating physician “supported by the record” in
favor of his own opinion); Wichman v. Astrue, 857 F. Supp. 2d
618, 628-30 (W.D. Tex. 2012) (ruling that hearing officer did
not use the correct legal standard in analyzing treating
physician’s opinion evidence where he did not apply weight
There is not, however, evidence in the record that
the hearing officer relied on his own opinion rather than a
medical source’s, nor does Ihde provide specific instances of
lay opinion reliance in her brief.
See Pl.’s Br. 16-17; Admin.
Accordingly, the hearing officer did not err in this
For the foregoing reasons, this Court on June 2, 2017
ALLOWED Ihde’s motion for remand only on the issue of
determining the proper weight to accord Dr. Cessna’s opinion.
/s/ William G. Young
WILLIAM G. YOUNG
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