United States District Court, S.D. Texas, Galveston Division
OPINION AND ORDER
R. Froeschner Magistrate Judge.
the Court, with the consent of the Parties, are the
cross-Motions for Summary Judgment of Plaintiff, Tony Lynn
Landry, and Defendant, Carolyn W. Colvin, the Acting
Commissioner of the Social Security Administration.
consideration of the Motions and a review of the
administrative record, the Court now issues this Opinion and
9, 2012, Plaintiff filed his application for disability
benefits. Plaintiff was afforded a hearing before an
Administrative Law Judge (ALJ) on September 17, 2013. At the
hearing Plaintiff was represented by counsel. Following the
hearing the ALJ issued an Opinion denying Plaintiff's
application. The Appeals Council denied Plaintiff's
request for review on May 6, 2015, thereby rendering the
ALJ's Opinion the Commissioner's final decision. On
July 8, 2015, Plaintiff filed this lawsuit.
sole issue before the Court is whether the ALJ's decision
is supported by substantial evidence. If it is, any belief by
this Court that the decision is wrong is irrelevant.
Johnson v. Bowen, 864 F.2d 340, 343 (5th
Cir. 1988) (The district court “may not re-weigh the
evidence, nor try the issues de novo, nor substitute
(its) judgment for that of the Secretary, even if the
evidence preponderates against the Secretary's
decision.”); 42 U.S.C. § 405g (The findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive.)
time Plaintiff filed his application he was about to turn 52.
His application listed “Liver transplant list(, )
hepatitis c(, ) kidney cancer treatment(, ) Renal Failure
(and) Hep C.” At the time of the hearing before the ALJ
he alleged disability “due to cirrhosis of the liver,
Hepatitis C, renal cancer with resulting nephrectony,
osteoporosis, hypertension, depression and anxiety.”
According to Plaintiff, his conditions precluded him from
being employed for any gainful work at all.
considered Plaintiff's testimony in light of a review of
his lengthy medical records and concluded that Plaintiff did
not suffer from any physical or mental impairments sufficient
to render him disabled under the Social Security Act and its
regulations. The ALJ, in interpreting the medical records,
determined that the objective medical evidence required
denial of Plaintiff's application. He found that on
January 26, 2012, Dr. Amin, Plaintiff's personal
physician, found no significant functional limitations. In
April 2012, Dr. Holoye also found no significant functional
limitations. In May, Dr. Amin again found no significant
functional limitations. In October, Dr. Holoye did so again.
In November, Dr. Samaratunga reviewed Plaintiff's medical
records and determined that Plaintiff's exertional
limitations would not preclude Plaintiff from working and
that his allegations to the contrary were only partly
credible. Then, on January 2013, Dr. Durfor affirmed
Samaratunga's assessments. The ALJ echoed Dr.
Samaratunga's opinion as to Plaintiff's credibility:
“The claimant's statements concerning the
intensity, persistence and limiting effects of (his) symptoms
are not entirely credible.” The ALJ specifically noted
(b) esides the lack of supporting objective evidence, the
claimant's own admissions concerning his activities of
daily living also do not comport with his subjective
complaints. For example, he was able to perform household
work, cook, drive, travel unaccompanied, and attend several
studies groups a week. And there is no medical support that
he required taking naps every two hours.
ALJ, therefore, concluded that Plaintiff had a physical
residual functional capacity to perform light work as
required by jobs that, in the opinion of the testifying
vocational expert, existed in significant numbers in the
national and local economy.
not originally alleged in his application, Plaintiff raised
the issue of mental impairments as a basis for seeking
disability benefits. Perhaps the ALJ could have chosen to
ignore this argument, Leggett v. Chater, 67 F.3d
558, 566 (5th Cir. 1995) (ALJ's duty to
investigate does not extend to possible disabilities not
alleged by Plaintiff or not clearly indicated in the
record.), but he chose, instead, to consider it even though
Plaintiff was never treated for mental problems. Cf.
Villa v. Sullivan, 895 F.2d 1019, 1024
(5th Cir. 1990) (ALJ can rely on lack of treatment
in his decision to deny benefits on that basis.)
his lack of treatment, Plaintiff did have a consultive mental
examination performed by Dr. Adams on September 24, 2012. Dr.
Adams found, inter alia, that Plaintiff suffered
from only mild impairments and that his daily living
activities were “roughly” within normal limits.
Nevertheless, Dr. Adams concluded that Plaintiff experienced
“significantly disruptive psychiatric symptoms.”
Dr. Adams's findings were reviewed by Dr. Boulos on
November 9, 2012, who concluded Plaintiff had no severe
mental impairment. After further review on January 16, 2012,
Dr. Reedy affirmed Dr. Boulos's conclusion. The ALJ, in
reliance on the subsequent reviews, found Dr. Adams's
findings inconsistent with his conclusion and chose to
disregard it. This was within the discretion of the ALJ.
See, Scott v. Heckler, 770 F.2d 482, 485
(5th Cir. 1985) (If an opinion is conclusory or
inconsistent with objective acceptable medical clinical
diagnoses the ALJ may give the opinion little or no weight.);
Greenspan v. Shalala, 38 F.3d 232, 237
(5th Cir. 1994) (If an opinion is internally
inconsistent, the ALJ can accord it less or no weight.)
(citing, 20 C.F.R. § 404.1527(c)(2)). As a
result, the ALJ found that Plaintiff was not suffering from
any disabling mental impairments.
Motion, Plaintiff raises several challenges to the ALJ's
Opinion. First, he claims that the ALJ's reliance on the
testimony of the vocational expert to find Plaintiff capable
of performing light work is “inaccurate or at least
questionable.” The Court rejects this argument as
simply Plaintiff's different interpretation of the
objective medical evidence. Plaintiff's interpretation
cannot negate the findings of the ALJ that are supported by
Plaintiff faults the ALJ's hypotheticals for omitting any
reference to the impairment, if any, caused by his
osteoporosis. Plaintiff argues that an ALJ must
“incorporate reasonably all disabilities of the
claimant” in his questions to a vocation expert, if his
questions do not do so, his determination is not supported by
substantial evidence. Bowling v. Shalala, 36 F.3d
431, 435 (5th Cir. 1994). On May 9, 2013, a
screening found a bone mass density decrease of 10.9 % at
¶ 1-L4, an indication of some osteoporosis. The bone
mass density decreases in the femoral neck area, 9.4 % on the
left and 7.3% on the right, were labeled normal. At the
hearing before the ALJ Plaintiff testified that the
osteoporosis caused pain, but there is no objective medical
evidence that osteoporosis contributed to any functional
impairment. Accordingly, the ALJ may reasonably have decided
to omit any reference to any limitation caused by
Plaintiff's mild osteoporosis. But, more importantly,
Plaintiff's counsel did not object to the questions on
this basis or correct the hypotheticals on cross-examination.
As a result, Plaintiff waived his right to challenge the
hypotheticals on review. Quintanilla v. Astrue, 619
F.Supp.2d 306, 323-24 (S.D. Tex. 2008).
Plaintiff complains that the vocational expert was not
questioned about transferable skills from his past work and,
therefore, the ALJ's determination does not negate that
Plaintiff is disabled, as a matter of law, under
Medical-Vocational Guidelines, Rule 201.14. This Court
disagrees. The ALJ determined that Plaintiff had the maximum
substantial work capacity to perform “light”
work, therefore, Rule 202.14 was correctly applied and the
fact that Plaintiff ...