United States District Court, M.D. Louisiana
RULING ON PLAINTIFF'S SOCIAL SECURITY
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
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.
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.
STANDARD OF REVIEW
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).
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
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).
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.
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,
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
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.
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).
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
Weight Given to Medical Providers
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
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
The ALJ did not provide such a “detailed
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).
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). 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
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).
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
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.”).
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.
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
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.
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 ...