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Usery v. Berryhill

United States District Court, N.D. Texas, San Angelo Division

September 6, 2017

CHARLES EDWARD USERY, JR., Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          E. SCOTT FROST UNITED STATES MAGISTRATE JUDGE

         Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks judicial review of a decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.[2] See Compl. (doc. 1). The Commissioner has filed an answer, see Def.'s Answer (doc. 13), and a certified copy of the transcript of the administrative proceedings, see SSA Admin. R. [hereinafter "R."] (doc. 15), including the hearing before the Administrative Law Judge ("ALJ"). The parties have briefed the issues. See Pl's Br. (doc. 19); Def.'s Resp. Br. (doc. 20). The United States District Judge reassigned the case to the undersigned subject to the consent of the parties. See Order (doc. 4). Because the parties have consented to proceed before a Magistrate Judge, the undersigned has full authority under 28 U.S.C. § 636(c) to consider this appeal, including issuing a final judgment. See Consents to Proceed Before a United States Magistrate Judge (docs. 16, 18). After considering the pleadings, briefs, admin- istrative record, and applicable law, the Court reverses the Commissioner's decision and remands this case for further administrative proceedings consistent with this order.

         I. BACKGROUND

         Plaintiff initially claimed disability due to post-traumatic stress disorder ("PTSD"), anxiety, and an arm injury. R. 144. He protectively filed an application for SSI on March 6, 2012, alleging disability beginning August 8, 2011. R. 128, 144. The Commissioner denied the application initially and on reconsideration. R. 47-48. On November 19, 2013, Administrative Law Judge ("ALJ") William Helsper held a hearing on Plaintiffs claims. See R. 31-45. Through his representative at the hearing before the ALJ, Plaintiff amended his alleged onset date to July 4, 2013, based upon a metastatic disease. R. 32.

         On February 12, 2014, the ALJ issued an unfavorable decision finding that Plaintiff was not disabled and was capable of performing work that exists in significant numbers in the national economy. R. 12-23. Applying the sequential, five-step analysis set out in the regulations (20 C.F.R. § 416.920(a)(4)) the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. R. 14. The ALJ next determined that Plaintiff had "the following severe impairments: diabetes, hepatitis C, arthritis, degenerative disc disease, hypertension, left arm pain status post injury, soft tissue sarcoma, polysubstance abuse, in remission, posttraumatic stress disorder, [and] obsessive compulsive disorder." Id. Third, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of any impairment in the listings.[3] R. 14-17.

         The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC")[4] to perform sedentary work as defined in 20 C.F.R. § 416.967(a), except that he was limited to simple, non-complex tasks.[5] R. 17-21. Based upon the RFC determination and testimony from a vocational expert ("VE"), the ALJ concluded that Plaintiff could not perform his past relevant work, but could perform jobs that exist in significant numbers in the national economy. R. 21-22. At Step 5 of the evaluative sequence, the ALJ thus found that Plaintiff was not disabled within the meaning of the Social Security Act since March 6, 2012. R. 23.

         On June 1, 2015, the Appeals Council found no reason to review the ALJ decision and thus denied Plaintiff s request for review. R. 1. The ALJ's decision is the Commissioner's final decision and is properly before the Court for review. See Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th Cir. 2005) (stating that the Commissioner's final decision "includes the Appeals Council's denial of [a claimant's] request for review").

         Plaintiff commenced this social security appeal on November 4, 2015. See Compl. In the sole issue presented, he argues that the ALJ improperly considered opinions of his treating physician. See Pl's Br. at 1-13.

         II. LEGAL STANDARD

         In general, [6] a person is disabled within the meaning of the Social Security Act, when he or she is unable "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." 42 U.S.C. § 1382c(a)(3)(A). '"Substantial gainful activity' is work activity involving significant physical or mental abilities for pay or profit." Master son v. Barnhart, 309 F.3d 267, 271 n.2 (5th Cir. 2002) (citing 20 C.F.R. § 404.1572(a)-(b)); accord 20 C.F.R. § 416.972(a)-(b). To evaluate a disability claim, the Commissioner employs the previously mentioned

five-step sequential analysis to determine whether (1) the claimant is presently working; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment listed in appendix 1 of the social security regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other substantial gainful activity.

Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). If, at any step, the Commissioner determines that the claimant is or is "not disabled, the inquiry is terminated." Id. at 448. The Commissioner must assess the claimant's RFC before proceeding to Steps 4 and 5. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). For Steps 1 through 4, the claimant has the burden to show disability, but the Commissioner has the burden at Step 5 to "show that there is other substantial work in the national economy that the claimant can perform." Audler, 501 F.3d at 448. If the Commissioner carries that Step 5 burden, "the burden shifts back to the claimant to rebut th[e] finding" that he or she can perform other work that is available in the national economy. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).

         "Judicial review of the Commissioner's decision to deny benefits is limited to determining whether that decision is supported by substantial evidence and whether the proper legal standards are applied." Sun v. Colvin, 793 F.3d 502, 508 (5th Cir. 2015) (quoting Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001)). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept to support a conclusion' and constitutes 'more than a mere scintilla' but 'less than a preponderance' of evidence." Hardman v. Colvin, 820 F.3d 142, 147 (5th Cir. 2016) (quoting Newton, 209 F.3d at 452). "In applying the substantial evidence standard, the court scrutinizes the record to determine whether such evidence is present, but may not reweigh the evidence or substitute its judgment for the Commissioner's." Perez, 415 F.3d at 461. The courts neither "try the questions de novo" nor substitute their "judgment for the Commissioner's, even if [they] believe the evidence weighs against the Commissioner's decision." Masterson, 309 F.3d at 272. The Commissioner resolves conflicts of evidence. Sun, 793 F.3d at 508.

         III. ANALYSIS

         Claimant contends that, when determining his RFC, the ALJ failed to properly consider opinions of his treating physician, Federico Ilang-Ilang, M.D. While characterizing the issue as a failure to accord the opinions controlling weight, he also argues that the ALJ improperly weighed the opinions by failing to conduct the detailed analysis required by Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000) and 20 C.F.R. § 416.927.

         When considering whether a claimant is disabled, the Commissioner considers the medical evidence available, including medical opinions.[7] See 20 C.F.R. § 416.927(b) (effective Aug. 24, 2012, to Mar. 26, 2017). Medical opinions may come from treating sources (for example primary care physicians), non-treating sources (physicians who perform a single examination of the claimant), or non-examining sources (a physician who reviews only the claimant's medical record). See generally 20 C.F.R. § 416.902 (effective June 13, 2011, to Mar. 26, 2017). The Fifth Circuit has "long held that ordinarily the opinions, diagnoses, and medical evidence of a treating physician who is familiar with the claimant's injuries, treatments, and responses should be accorded considerable weight in determining disability." Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994) (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)). Nevertheless, even opinions from a treating source are "far from conclusive, " because ALJs have "the sole responsibility for determining the claimant's disability status." Id.; accord Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994).

         "After identifying relevant medical opinions of treating physicians, ALJs must determine whether any such opinion is entitled to controlling weight." Bentley v. Colvin, No. 3:13-CV-4238-P, 2015 WL 5836029, at *7 (N.D. Tex. Sept. 30, 2015) (citing 20 C.F.R. § 416.927(c)(2) and its Title II counterpart, § 404.1527(c)(2)). When identifying and considering relevant opinions, ALJs "must remember" that some medical records, such as medical source statements provided by a treating source, "may actually comprise separate medical opinions regarding diverse physical and mental functions, such as walking, lifting, seeing, and remembering instructions, and that it may be necessary to decide whether to adopt or not adopt each one." Titles II & XVI: Med. Source Ops. on Issues Reserved to the Comm'r, SSR 96-5P, 1996 WL 374183, at *4 (S.S.A. July 2, 1996).

         The regulations provide a six-factor detailed analysis to follow unless the ALJ gives "a treating source's opinion controlling weight." 20 C.F.R. § 416.927(c)(1)-(6) (effective Aug. 24, 2012, to Mar. 26, 2017).[8] "When a treating source has given an opinion on the nature and severity of a patient's impairment, such opinion is entitled to controlling weight if it is (1) 'well-supported by medically acceptable clinical and laboratory diagnostic techniques' and (2) 'not inconsistent with' other substantial evidence." Wilder v. Colvin, No. 3:13-CV-3014-P, 2014 WL 2931884, at *3 (N.D. Tex. June 30, 2014) (quoting Newton v. Apfel,209 F.3d 448, 455 (5th Cir. 2000)); accord 10 C.F.R. ยง 416.927(c)(2) (effective Aug. 24, 2012, to Mar. 26, 2017). Furthermore, "absent reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist, ...


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