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Rowe v. Colvin

United States District Court, M.D. Louisiana

August 30, 2017

ANNA LYNN ROWE
v.
CAROLYN W. COLVIN COMMISSIONER OF SOCIAL SECURITY

          RULING ON PLAINTIFF'S SOCIAL SECURITY APPEAL

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Anna Lynn Rowe (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) pursuant to 42 U.S.C. § 405(g) denying Plaintiff's application for Disability Insurance Benefits under the Social Security Act. (R. Doc. 1). Having found all of the procedural prerequisites met (Tr. 1-6), the Court has properly reviewed Plaintiff's appeal. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981 (“The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you… file an action in Federal district court…”). For the reasons given below, the Court ORDERS that the decision of the Commissioner is AFFIRMED and Plaintiff's appeal is DISMISSED with prejudice.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for disability insurance benefits and supplemental security income on May 31, 2013 alleging that she became disabled on April 1, 2013 because of a disabling condition, namely arthritis, diabetes, and thyroid problems. (Tr. 300). Plaintiff's application was denied by an Administrative Law Judge (“ALJ”), who first held an administrative hearing (Tr. 87-132) before issuing an unfavorable decision on January 29, 2015. (Tr. 69-86). Plaintiff's April 1, 2015 request for review of the ALJ's decision (Tr. 50-51) was denied by the Appeals Council on February 18, 2016. (Tr. 1-7). The ALJ's decision rested as the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. See 20 C.F.R. § 404.981.

         II. STANDARD OF REVIEW

         This Court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938) (defining “substantial evidence” in the context of the National Labor Relations Act, 29 U.S.C. § 160(e)). The Fifth Circuit has further held that substantial evidence “must do more than create a suspicion of the existence of the fact to be established, but no substantial evidence will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quotations omitted). Conflicts in the evidence are for the Commissioner “and not the courts to resolve.” Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The Court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds that the evidence preponderates against the Commissioner's decision. See, e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (“This is so because substantial evidence is less than a preponderance but more than a scintilla.”); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988) (“In applying the substantial evidence standard, we must carefully scrutinize the record to determine if, in fact, such evidence is present; at the same time, however, we may neither reweigh the evidence in the record nor substitute our judgment for the Secretary's.”); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (same).

         If the Commissioner's decision is supported by substantial evidence, then it is conclusive and must be upheld. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000). If, on the other hand, the Commissioner fails to apply the correct legal standards, or fails to provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).

         III. ALJ'S DETERMINATION

         In determining disability, the Commissioner (through an ALJ) works through a five-step sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability. If the claimant is successful in sustaining his or her burden at each of the first four steps, the burden shifts to the Commissioner at step five. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (explaining the five-step process). First, the claimant must prove he or she is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove his or her impairment is “severe” in that it “significantly limits your physical or mental ability to do basic work activities…” 20 C.F.R. § 404.1520(c). At step three, the ALJ must conclude the claimant is disabled if he or she proves that his or her impairments meet or are medically equivalent to one of the impairments contained in the Listing of Impairments. See 20 C.F.R. § 404.1520(d) (step three of sequential process); 20 C.F.R. pt. 404, subpt. P, app'x 1 (Listing of Impairments). Fourth, the claimant bears the burden of proving he or she is incapable of meeting the physical and mental demands of his or her past relevant work. 20 C.F.R. § 404.1520(f).

         If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity, age, education and past work experience, that he or she is capable of performing other work. 20 C.F.R § 404.1520(g)(1). If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work. Muse, 925 F.2d at 789.

         Here, the ALJ made the following determinations:

1. Plaintiff had met the insured status requirements of the Social Security Act through June 30, 2013 2. Plaintiff had not engaged in substantial gainful activity since April 1, 2008.
3. Plaintiff suffered from the following severe impairments: degenerative disc disease; rheumatoid arthritis; and obesity.
4. Plaintiff did not meet or medically equal any listed impairment.
5. Plaintiff retained the residual functional capacity to perform light work except she can never climb ladders, ropes, and scaffolds, but can occasionally perform all other postural; she must avoid concentrated exposure to extremes of heat and humidity; she must avoid concentrated exposure to heights and moving machinery.
6. Plaintiff was able to perform past relevant work as an administrative assistant, clerical worker, and housekeeper.
7. Plaintiff had not been under a disability through the date of the decision.

         (Tr. 74-81).

         IV. DISCUSSION

         Plaintiff raises the following five assignments of error: (1) the ALJ's quotation of two separate, inconsistent RFC assessments; (2) the weight given to the opinions of two treating medical providers; (3) the ALJ's credibility determination of the claimant; (4) the weight given to certain consulting physicians regarding claimant's lupus, depression, and anxiety; and (5) the alleged failure to analyze the claims under SSR 96-8p. (R. Doc. 17 at 4).

         These categorizations by Plaintiff, however, do not necessarily reflect the full substance of each argument. Therefore, in a departure from the organizational scheme employed by Plaintiff in her briefing, the Court will address the substance of each of Plaintiff's arguments within the framework of the 5-step analysis. Substantively, the Plaintiff's arguments fall into three general categories. First, Plaintiff's brief contains similar arguments in various sections that are not specific to any particular step in the process. This includes Plaintiff's arguments regarding the weight given to various medical providers throughout the ALJ's decision, the ALJ's credibility assessment of Plaintiff, and the ALJ's consideration of the testimony of a lay witness. Second, Plaintiff argues that the ALJ committed reversible errors at Step Two of the analysis. And finally, Plaintiff submits that the ALJ committed reversible errors in his RFC assessment of Plaintiff, including with regard to SSR 96-8p. Plaintiff's arguments will be addressed within this framework.

         A. Weight Given to Medical Providers

         At various points in her briefing, Plaintiff argues that the ALJ erred in the weight given to certain medical providers. First, Plaintiff argues that the medical evidence of Dr. Charles Genovese (Dr. Genovese) and Nurse Practitioner Melinda Balado (NP Balado) was not properly weighed pursuant to 20 C.F.R. § 404.1527(c) in the event Plaintiff was limited to an RFC of light work with limitations. (R. Doc. 17 at 6). Next, Plaintiff dedicates a section of her briefing to the weight given to Dr. Genovese and NP Balado, arguing that the ALJ did not give the proper weight to the functional limitations in the reports of these providers, and did not properly examine the longitudinal relationship between Plaintiff and these providers. (R. Doc. 17 at 8-13). Plaintiff then argues that, had the opinions of Dr. Genovese and NP Balado been considered in the fashion Plaintiff suggests is proper, the testimony of Plaintiff would have been more consistent with the (properly-weighed) medical evidence, and the ALJ would not have made factually inaccurate statements with regard to the existence of a prescription for an assistive device and the absence or presence of a diagnosed radiculopathy. (R. Doc. 17 at 16). Lastly, Plaintiff argues that improper weight was given to Dr. Genovese and NP Balado on the issues of depression and anxiety, and the existence of a lupus diagnosis. (R. Doc. 17 at 20).

         Generally, the “opinion of the treating physician who is familiar with the claimant's impairments, treatments and responses, should be accorded great weight in determining disability.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000); see also 20 C.F.R. § 404.1527(c)(1) (examining physician opinion given more weight than non-examining physician). “Absent reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2).” Newton, 209 F.3d at 453.[2] The ALJ did not provide such a “detailed analysis.”

         The ALJ, however, is not required to consider each of the six factors set out in Newton when “‘there is competing first-hand medical evidence and the ALJ finds as a factual matter that one doctor's opinion is more well-founded than another.'” Walker v. Barnhart, 158 F.App'x 534, 535 (5th Cir. 2005) (quoting Newton, 209 F.3d at 458). Thus, the ALJ's decision to reject a treating physician's opinion must be supported by substantial, contradictory, first-hand evidence from another physician. If the decision is so supported, the ALJ is “not required to go through all six steps in Newton [because] . . . the ALJ is responsible for resolving conflicts in the evidence, and we will not substitute our judgment for his.” Cain v. Barnhart, 193 F.App'x 357, 360 (5th Cir. 2006) (citing Newton, 209 F.3d at 452, 458; Walker, 158 F.App'x at 534). An ALJ is free to discredit the opinion of a treating physician when it is contradicted by another physician - examining or not. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (ALJ may reject a treating physician's opinion in favor of an examining physician where the evidence supports a contrary conclusion). “[A] specialist's opinion is afforded greater weight than a generalist's.” Beasley v. Barnhart, 191 F.App'x 331, 334 (5th Cir. 2006) (citing Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994)). Lastly, “a treating physician's opinion may be given little or no weight ‘when the evidence supports a contrary conclusion.'” Beasley, 191 F.App'x at 334 (citing Newton, 209 F.3d at 455).

         Here, the ALJ stated that Dr. Genovese's opinion was given “little weight” because it “is contrary to that of medical specialists and with the medical records.” (Tr. 80). NP Balado's opinion was given little weight by the ALJ “[f]or similar reasons.” (Tr. 80).[3] The only specific substantive reason stated by the ALJ for Dr. Genovese and NP Balado's opinions being contrary to that of medical specialists and the medical records is that “lupus was ruled out by rheumatology and lab results, [and] testing for rheumatoid arthritis has been described as equivocal at best.” (Tr. 80). It is significant to note, however, that Dr. Johnson's opinion also references diagnoses of arthritis and lupus, but his opinion was given “great weight.” (Tr. 80). Further, where the only other diagnoses given by Dr. Johnson are diabetes and thyroid disease (Tr. 394), Dr. Genovese and NP Balado note numerous other diagnoses, including chronic recurrent staph infection and kidney stones (Tr. 135), and discitis, degenerative disc disease, diabetes, hypertension, and anxiety (Tr. 136). The ALJ does not, however, base her determination on any of these other diagnoses.

         The only practical difference between Dr. Johnson's opinion and the opinions of Dr. Genovese and NP Balado then becomes each of those providers' determinations with regard to any functional limitations Plaintiff suffers as a result of her diagnoses. Whereas Dr. Genovese and NP Balado concluded that Plaintiff has “marked” or “severe” limitations in all aspects of functioning, Dr. Johnson noted that Plaintiff was able to perform household activities, dress and feed herself independently, lift 10 pounds, sit 10 minutes, stand 20 minutes, walk 70 feet, had a normal range of motion in her neck, normal strength in her extremities, her hands and arm function, her grip, pinch, grasp, handling, and fingering were all 5゚ bilaterally, heel-to-toe walk was normal, no assistive device was needed upon ambulation, pushing, pulling, and reaching were normal, crouching, squatting, and stooping were normal, and she was able to climb on and off the exam table independently. (Tr. 394-398).

         It is illogical to conclude that Dr. Johnson's opinion is entitled to more weight than the opinions of Dr. Genovese and NP Balado on the basis of questionable diagnoses of lupus and arthritis where all three providers' opinions contain these diagnoses. Put another way, if the only basis for the weight given to the opinions of Dr. Genovese and NP Balado is that lupus and arthritis are questionable diagnoses, Dr. Johnson's opinion would be entitled to the exact same weight as he similarly notes diagnoses of lupus and arthritis.

         Insofar as the ALJ assigned different weight to these opinions on the grounds of questionable diagnoses of lupus and arthritis, the ALJ erred. “[I]t is reversible error to misstate the record when providing reasons for giving a treating physician's opinion less than substantial weight.” Ellis v. Comm'r of Soc. Sec., 2017 WL 1282867, at *4 (M.D. Fla. Apr. 6, 2017). That is to say, “[t]o the extent the ALJ's decision was based on this clearly erroneous finding of fact, it is not supported by substantial evidence.” Somogy v. Comm'r of Soc. Sec., 366 F.App'x 56, 63 (11th Cir. 2010). See also Grosso v. Colvin, 2016 WL 4916968, at *10 (S.D.N.Y. Sept. 14, 2016), report and recommendation adopted, 2016 WL 6269604 (S.D.N.Y. Oct. 25, 2016) (finding reversible error and remanding “to allow the ALJ to appropriately consider the opinions of these two consultative examiners and to accord them proper weight in the ALJ's application of the treating physician rule.”).

         “Nevertheless, the harmless error doctrine applies in Social Security disability cases, and procedural perfection is not required as long as the claimant's substantial rights have not been affected by an ALJ's error.” Moore v. Astrue, 2012 WL 1719183, at *4 (N.D. Tex. May 16, 2012). In this vein, the ALJ also noted, in ascribing little weight to the opinions of Dr. Genovese and NP Balado, that Dr. Genovese's opinion “is contrary to that of medical specialists and the medical records.” (Tr. 80). Because the Court finds substantial evidence supports the weight given to the providers based on the ALJ's finding that the opinions of Dr. Genovese and NP Balado were “contrary to that of medical specialists and the medical records, ” any error by the ALJ in ascribing weight to medical providers on the basis of lupus and arthritis diagnoses constitutes harmless error.

         Dr. Johnson performed a consultative examination of Plaintiff on March 19, 2014. (Tr. 394-399). He notes that Plaintiff's past medical history was “[s]ignificant for diabetes, hypothyroidism, arthritis, and lupus” and notes past diagnoses of same. (Tr. 394). Dr. Johnson was of the opinion, based upon his examination of Plaintiff and his review of her medical records, that Plaintiff was able to dress and feed herself, and drive. (Tr. 394). He noted that she could lift 10 pounds, sit 10 minutes, stand 20 minutes, and walk 70 feet. (Tr. 395). He further noted that Plaintiff's appearance was good, she followed commands appropriately, and her long and short term memory were normal. (Tr. 395). Dr. Johnson noted tenderness in Plaintiff's lumbar region and flexion “limited to 70 degrees.” (Tr. 397). He goes on to enumerate her other ranges of motion, but there is no indication of whether those ranges are abnormal in the same way as he references Plaintiff's lumbar flexion as “limited.” (Tr. 397). In his summary, however, Dr. Johnson indicates that “there is normal range of motion and strength in the patient's neck, upper extremities, and lower extremities bilaterally with no joint tenderness, swelling, redness, or warmth.” (Tr. 397). In his functional assessment, Dr. Johnson concludes the following:

Pushing, pulling, and reaching are normal. Crouching, squatting, and stooping are normal. The patient is able to climb on and off the exam table independently and is able to dress and undress herself independently.

         (Tr. 398).

         He also reports that the “use of an assistive device is not needed on ambulation.” (Tr. 398). Plaintiff argues in her Reply that a walker was “prescribed and delivered to Ms. Rowe during her stay at Our Lady of the Lake Hospital in Baton Rouge.” (R. Doc. 20 at 1). The record reflects that a rolling walker was delivered to the hospital. (Tr. 951). The record does not, however, reflect that a walker was prescribed, nor does the record provide any evidence that Plaintiff took the walker home with her after discharge, either by recommendation or prescription. Additionally, while the Court notes that Leslie Wood, a nurse practitioner, notated “Please ...


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