United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE
the Magistrate Judge in this Social Security appeal is
Defendant's Cross Motion for Summary Judgment (Document
No. 13), Brief in Support in Cross Motion (Document No. 14),
Plaintiffs Cross Motion for Summary Judgment (Document No.
15), Brief in Support of Cross Motion (Document No. 16),
Defendant's Reply to Plaintiffs Cross Motion for Summary
Judgment (Document No. 17), and Plaintiffs Response to
Defendant's Cross Motion for Summary Judgment. After
considering the Cross Motions for Summary Judgment, the
parties briefing, the administrative record, the written
decision of the Administrative Law Judge, and the applicable
law, the Court ORDERS, for the reasons set forth below, that
Defendant's Motion for Summary Judgment (Document No. 13)
is GRANTED and the Plaintiffs Motion for Summary Judgment
(Document No. 15) is DENIED.
Ramona Louise Dehart (hereinafter "Dehart"), filed
applications for Supplemental Security income benefits
alleging disability due to bipolar disorder, depression, and
back and neck problems. (Tr. at 64, 76; Document No. 16 at
1). The claim was denied on August 7, 2015 and again upon
reconsideration on November 20, 2015. (Tr. at 63). Dehart had
a hearing in front of the Administrative Law Judge
("ALJ") D'Lisa Simmons on July 7, 2017. (Tr.
32-62). The ALJ issued an unfavorable decision on October 3,
2017, finding that Dehart was not disabled within the meaning
of the Social Security Act. (Tr. 15-25).
Summary Judgment Standard
judgment should be granted "if the movant shows that
there is no genuine dispute to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Celtic Marine Corp. v. James
C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014). A
"genuine issue of material fact exists when the evidence
is such that a reasonable jury could return a verdict for the
non-movant." Davis-Lynch, Inc. v. Moreno, 667
F.3d 539, 549 (5th Cir. 2012). The moving party "has the
burden of establishing that there is no genuine dispute of
material fact." Id. at 550. To avoid summary
judgment, "the non-movant must go beyond the pleadings
and come forward with specific facts indicating a genuine
issue for trial." Id. at 550. The non-moving
party may "defeat the motion by showing a genuine
dispute of material fact." Johnston v. City of
Houston, 14 F.3d 1156, 1060 (5th Cir. 1994).
"'[A]ll facts and evidence must be taken in the
light most favorable to the non-movant.'" Walker
v. Blanchard Ref. Co., LLC, No. 3:17-CV-391, 2019 WL
4054044, *2 (S.D. Tex., Aug. 28, 2019) (quoting
Davis-Lynch, Inc., 667 F.3d. at 549-50).
Burden of Proof for Entitlement to Social Security
disability is found when one is unable to "engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment. . . which has
lasted or can be expect to last for a continuous period of
not less than 12 months." 42 U.S.C. § 423
(d)(1)(A); see also Graves v. Colvin, 837 F.3d 589,
592 (5th Cir. 2016). The ALJ uses "a five-step
sequential process to evaluate claims of disability."
The five steps include:
(1) the claimant is not working in substantial gainful
activity; (2) the claimant has a severe impairment; (3) the
claimant's impairment meets or equals a listed impairment
in Appendix 1 of the Regulations; (4) the impairment prevents
the claimant from doing past relevant work; and (5) the
impairment prevents the claimant from doing any other work in
the national economy.
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000);
see also 42 U.S.C. § 423 (d)(2)(A). The burden
of proof lies with the claimant to establish the first four
steps and then "shifts to the Commissioner for the fifth
step." Id. A "finding that a claimant is
disabled or is not disabled at any point in the five-step
review is conclusive and terminates the analysis."
Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
the first step, "substantial" activity means,
"work activity that involves doing significant physical
or mental activities" and "gainful" activity
is "work that you do for pay or profit." 20 C.F.R.
§ 416.972. If an ALJ finds that an individual is working
and engaged in such substantial gainful activity, a
disability will not be found, regardless of the medical
findings. Wren v. Sullivan, 925 F.2d 123, 125 (5th
Cir. 1991). In the second step, a "severe"
impairment is one that significantly limits the
individual's physical or mental ability to do basic work
activities. C.F.R. § 416.920. The Fifth Circuit Court
has held that "[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."
Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000).
This step requires the claimant to make a de minimus
showing. Id. If the ALJ finds that the claimant does
not have a disability, either physical or mental, that
significantly limits their ability to do basic work
activities, then the claimant does not have a severe
impairment, and therefore is not disabled. 20 C.F.R. §
three requires allows for the finding of a disability if the
claimant's impairment meets or equals a listed impairment
in Appendix 1 of the Regulations. This means that if an
impairment is met as one of the listed, the ALJ will find the
claimant disabled "without considering [their] age,
education, and work experience." 20 C.F.R. §
416.920(d). If the claimant's impairment does not meet or
equal a listed impairment, then the ALJ "will assess and
make a finding about [the claimant's] residual functional
capacity based on all the relevant medical and other evidence
in [the] case record . . . ." Id. The fourth
step requires the ALJ to determine whether the claimant can
perform their past relevant work, using the residual
functional capacity ("RFC")
assessment. 20 C.F.R. § 416.920(e). If an
individual is "capable of performing the work he has
done in the past, a finding of "not disabled" must
be made." Wren, 924 F.2d at 125. If the
claimant meets her burden for the first four steps, then the
burden shifts to the ALJ for the fifth step in which the ALJ
considers the claimants RFC, age, education, and work
experience, to determine whether the claimant may do other
worth "existing in the national economy." 20 C.F.R.
"federal courts review the Commissioner's denial of
social security benefits only to ascertain whether (1) the
final decision is supported by substantial evidence and (2)
whether the commissioner used the proper legal standards to
evaluate the evidence." Newton v. Apfel, 209
F.3d 448, 452 (5th Cir. 2000). Substantial evidence means
"such relevant evidence as 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)). The standard is "more than a mere
scintilla and less than a preponderance." Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). The evidence
is not reweighed or substituted for the reviewing court's
judgment in review. Id. If "the
Commissioner's findings are supported by substantial
evidence, they must be affirmed." Newton, 209
F.3d at 452. This court "will not re-weigh the evidence,
try the questions de novo, or substitute our judgment for the
Commissioner's, even if we believe the evidence weighs
against the Commissioner's decision." Master son
v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002).
"Conflicts in the evidence are for the Commissioner to
resolve, not the courts." Id. A "finding
of no substantial evidence is appropriate only if no credible
evidentiary choices or medical findings supports the
decision." Boyd v. Apfel, 239 F.3d 698, 704
(5th Cir. 2001).
determine whether substantial evidence supports the ALJ's
decision, the court weighs four factors: (1) objective
medical facts; (2) diagnosis and opinions of treating and
examining physicians; (3) claimants' subjective evidence
of pain and disability; and (4) claimants age, education, and
work history. Wren v. Sullivan, 925 F.2d 123, 126
(5th Cir. 1991).
Objective Medical Evidence
Miguel Morales, M.D., ordered an MRI of the lumbar spine,
without contrast, dated August 27, 2011. (Ex. IF at 288). The
MRI results showed the following findings:
the numbering schema assumes 5 lumbar type vertebral bodies
and is saved in the PACS system for purposes. Vertebral
bodies maintain height and alignment. Small Tl and T2
hyperintense lesions are seen in the L4, L5, and T12
vertebral bodies, likely small hemangiomas. No. focal
worrisome marrow lesion is seen. No mild disc desiccation
L4-L5 and L5-S1. Facet joint alignment anatomic. Conus
terminates at LI and is unremarkable. No. findings of
arachnoiditis. L1-L2- No. foraminal narrowing or canal
stenosis. L2-L3- No. foraminal narrowing or canal stenosis.
L3-L4- No. canal stenosis is present on examination. There is
a far left foraminal/extraforaminal disc extrusion measuring
7 mm AP and approximately 10 mm at its base. This may indent
upon the exiting left L3 nerve root. Moderate left foraminal
narrowing is noted. L4-L5- Mild concentric disc bulge. Small
posterior annular tear. Moderate facet arthropathy. No.
significant canal stenosis. Mild bilateral foraminal
narrowing. L5-S1- Concentric disc bulge. Moderate facet
arthropathy. No. significant canal stenosis. Mild bilateral
foraminal narrowing is seen. IMPRESSION- Degenerative changes
most significant at ¶ 3-L4 through L5-S1 as detailed
above. No. significant canal stenosis at any level. Disc
extrusion at ¶ 3-L4.
(Ex. IF at 291-92). Dehart also visited with Yamakawa Tatsuo,
M.D., who conducted diagnostic radiography on April 23, 2012.
Dr. Tatsuo found that "[t]he vertebral bodies are within
normal alignment. The disc spaces are maintained. No.
compression or displaced fractures are seen. The prevertebral
soft tissues are unremarkable." (Ex. IF at 300). His
impression was that "[n]o acute cervical spine
abnormalities are visualized. Id.
went to the emergency room at Memorial Hermann Hospital on
April 22, 2013 due to a motor vehicle accident from the
previous day. (Tr. 294). She complained of pain in her chest,
abdomen, and neck. (Tr. 313). The treatment shows that she
exhibited moderate vertebral tenderness in the mid cervical
spine and anterior chest. (Tr. 313). She also had tenderness
in the abdomen and mild vertebral tenderness in the thoracic
and lumbar spine region. (Tr. 314).
November 11, 2014, Dehart began treatment with Michael J.
Barber, M.D. Dehart reported a history of depression, mood
symptoms, and stated she was bipolar. (Tr. 387). She
described feelings of depression, irritability, and anger
that lasted weeks at a time. (Tr. 387). When depressed,
Dehart reported that she had low appetite, insomnia, low
energy and motivation, and low concentration. (Tr. 387). She
also reported episodes of elevated mood for up to two weeks
and other symptoms including racing thoughts, increased
talking, decreased need for sleep, impulsive risky behavior,
and paranoia. (Tr. 387). On examination, her mood was
depressed and anxious, and her affect was blunted. (Tr. 388).
Based on his clinical examination findings, Dr. Barber
tapered off Dehart's dosage of [Effexor] and replaced
with Lamictal. (Tr. 389). She was also instructed to cut back
and stop benzodiazepines and opiates prescribed by other
providers. (Tr. 389).
visited with Dr. Barber on December 11, 2014, reporting that
her medication changes had helped decrease her depression.
(Tr. 384). She had no suicidal thoughts. (Tr. 384). On
examination, Dr. Barber noted that Dehart's mood was less
depressed and her affect was blunted. (Tr. 384). Dr. Barber
increased the dosage of Lamictal. (Tr. 385). On January 28,
2015, Dehart reported that she was not doing well. (Tr. 381).
She felt more depressed, and sleep and appetite had
decreased. (Tr. 381). On examination, Dr. Barber's
progress notes confirm that Dehart's speech was soft,
mood was depressed, and affect was blunted. (Tr. 381). Dr.
Barber increased the dosage of Lamictal was increased and
added Ability and Lunesta. (Tr. 382).
began treatment with pain management specialist Cheor Kim,
M.D., on March 4, 2015. (Tr. 511). She complained of chronic
throbbing sharp lower back pain radiating into her legs, pain
in her neck and shoulders, and severe pain in her tailbone.
(Tr. 511). She also complained of a tingling sensation
associated with the pain and that her pain was aggravated by
bending forward, standing, sitting, lifting, walking, and the
cold. (Tr. 511). On examination, Dehart had wheezing on
inspiration and expiration, bowel sounds were remote, and she
had an unsteady and antalgic gait with positive Rhomberg
test. (Tr. 512). Dr. Kim prescribed Indomethacin ER, Lyrica,
Methadone, Hydrocodone, and Lidoderm patches. (Tr. 512-13).
On March 31, 2015, Dehart followed up with Dr. Kim, who again
noted an antalgic and unsteady gait with positive Rhomberg.
(Tr. 509). The Lyrica was increased from lOOmg to 150mg. (Tr.
had a follow up mental health treatment with Gwendolyn R.
Dejean, PMHNP, on April 6, 2015. (Tr. 365). She reported that
she was doing well, she had lost weight, and her mood was
stable. (Tr. 365). She complained of mild
irritability/agitation, that it was much improved. (Tr. 365).