United States District Court, E.D. Texas, Marshall Division
PAYNE UNITED STATES MAGISTRATE JUDGE
October 8, 2014, Administrative Law Judge Gordan Momcilovic
issued a decision finding that Petitioner Ramerald Channel
was not disabled within the meaning of the Social Security
Act from December 15, 2011 through the date of the decision.
Mr. Channel, who was 42 with a high school education at that
time, was found to be suffering from severe impairments
consisting of cervical disc disease and lumbar disc disease
as the result of a motor vehicle accident in 2010. These
impairments resulted in restrictions on his ability to work,
and he had not engaged in any substantial gainful activity
since at least December 15, 2011. Before that time he had
worked as a construction worker and car detailer. He was not
able to return to that kind of work.
reviewing the medical records and receiving the testimony at
the September 10, 2014 video hearing, the ALJ determined that
Petitioner had the residual functional capacity to perform
less than the full range of sedentary work, as defined in the
Social Security Regulations, in that he can lift or carry 10
pounds occasionally and less than 10 pounds frequently, and
can stand or walk for 2 hours in an 8-hour workday, and sit
for up to six hours in the workday. He should never climb
ladders, ropes or scaffolds, and only occasionally engage in
all other postural functions. He can only frequently reach in
all directions, including but not limited to overhead
reaching, with the non-dominant left upper extremity.
on the testimony of a vocational expert witness, Jerold
Hildre, the ALJ determined that Petitioner could perform the
requirements of certain jobs that exist in substantial
numbers in the national economy, such as order clerk, optical
goods assembler, and lens inserter. This finding resulted in
the determination that Petitioner was not entitled to Social
Security Disability benefits. Petitioner appealed this
finding to the Appeals Council, which denied review on
February 22, 2016. Petitioner timely filed this action for
judicial review seeking remand of the case for award of
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, 115
S.Ct. 1984, 131 L.Ed.2d 871 (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 of no
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 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).
raises three issues on this appeal:
1. Plaintiff meets listing 1.04 for his cervical herniated
discs and therefore the ALJ's decision was not supported
by substantial evidence.
2. The ALJ erred in discrediting the plaintiff and rejecting
testimony that was supported by objective medical evidence.
3. The ALJ erred in failing to consider a closed period of
contends that the ALJ erred in not finding that
Plaintiff's impairments meet or medically equal the
requirements of one of the listed impairments in 20 C.F.R.
Part 404, leading to a finding of disability at Step Three.
Plaintiff quotes the requirements of listing 1.04, which
pertains to disorders of the spine, but does not identify
which of the three sections of the listing he contends he
meets. Nor does he identify what specific evidence in the
record supports any particular finding. The ALJ addressed
this issue on pages 6 and 7 of his opinion (Tr. 22-23). The
requirements of listing 1.04 are very demanding. Falco v.
Shalala, 27 F.3d 160, 162 (5th Cir. 1994).
Plaintiff bears the burden of proof at Step Three and must
show pain, limitation of motion, muscle atrophy or weakness,
and sensory or reflex loss to meet the first and easiest part
of the listing. The report of Dr. Mark Smith, the
neurosurgeon, found “no restricted range of motion of
the cervical or lumbar spine, ” as well as a
“negative straight-leg raise bilaterally.” (Tr.
at 345). The Court's review of the record does not
support Petitioner's argument that the ALJ erred in this
issue presents a closer question. Petitioner's
radiological evidence shows serious defects in his cervical
and lumbar spine. He has a long history of regular treatment
and use of narcotic pain medication, supporting his
complaints of pain. One of his treating doctors, Dr. Hozdic,
has opined that Petitioner cannot work steadily due to his
pain. (Tr. 373). However, there is also countervailing
evidence in the record, and it is the province of the ALJ to
weigh the medical evidence and determine disability, as long
as he assigns proper reasons for his choices. In this case,
the Court concludes that the ALJ has done so.
complains in this issue that the ALJ discounted the
credibility of Petitioner's testimony regarding his pain
and other symptoms without proper explanation. The
Commissioner concedes that while the ALJ has great discretion
in weighing the evidence and determining credibility, there
are parameters governing ...