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Harris v. Commissioner of Social Security Administration

United States District Court, M.D. Louisiana

January 30, 2018

ERIC DERWIN HARRIS
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

          RULING

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Eric Derwin Harris (“Plaintiff”), brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying his application for supplemental security income (“SSI”).[1] Plaintiff has filed a Memorandum in Support of Plaintiff's Appeal of the Commissioner's Denial of Social Security Benefits, [2] the Commissioner has filed an Opposition Memorandum, [3] and Plaintiff has filed a Reply.[4] Based on the applicable standard of review under § 405(g) and the analysis which follows, the court AFFIRMS[5] the Commissioner's decision and DISMISSES Plaintiff's appeal.

         I. Procedural History

         Plaintiff filed an application for SSI on May 1, 2014 alleging disability beginning June 1, 2013.[6] Plaintiff's claim was initially denied on October 17, 2014.[7] Thereafter Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).[8] A hearing was held on August 6, 2015 at which Plaintiff, represented by counsel, testified.[9] Thomas J. Meunier Jr., a vocational expert, also testified at the hearing.

         On September 25, 2015, the ALJ issued a notice of unfavorable decision.[10] Thereafter, Plaintiff requested review by the Appeals Council.[11] On September 18, 2016, the Appeals Council denied Plaintiff's request for review.[12] On November 9, 2016, Plaintiff filed his Complaint.[13]Accordingly, Plaintiff exhausted his administrative remedies before timely filing this action for judicial review and the ALJ's decision is the Commissioner's final decision for purposes of judicial review.[14]

         II. Standard of Review

         Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). If the Commissioner fails to apply the correct legal standards, or 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. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981); Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).

         III. The ALJ's Decision

         A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity. 20 C.F.R. §§ 404.1505; 416.905. The regulations require the ALJ to apply a five-step sequential evaluation to each claim for benefits. 20 C.F.R. §§ 404.1520; 416.920. In the five-step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe medically determinable impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work. Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002).

         The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). 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 (“RFC”), 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:[15]

1. Plaintiff had not engaged in substantial gainful activity since his application date of May 1, 2014;
2. Plaintiff had the following severe impairments: major depressive disorder, hypertension, hypothyroidism, obesity, and congestive heart failure;
3. Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
4. Plaintiff had the residual functional capacity (“RFC”) “to perform light work as defined in 20 CFR 416.967(b) except the claimant can do work of a simple and routine nature with no public interaction and occasional interaction with coworkers;”[16]
5. Plaintiff's past relevant work was unskilled and Plaintiff was unable to perform any past relevant work;
6. Plaintiff was considered a younger individual as defined by the regulations on the date his application was filed, has at least a high school education, and was able to communicate in English; and
7. “Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers[17] in the national economy that claimant can perform”[18] such that Plaintiff was not disabled since the May 1, 2014 application date.

         IV. Plaintiff's Allegations of Error

         Plaintiff asserts three allegations of error. First, Plaintiff contends that the ALJ failed to properly assess his mental RFC.[19] Second, Plaintiff argues that the ALJ erred in finding that Plaintiff's “end stage” renal disease/kidney disease was a non-severe impairment.[20] Finally, Plaintiff argues that the ALJ failed to give adequate weight to the opinion of Dr. Franklin Harris, whom Plaintiff characterizes as his treating psychiatrist.[21] The undersigned analyzes Plaintiff's arguments regarding the ALJ's step two error (i.e., the determination that Plaintiff's end stage renal disease (“ESRD”) was non-severe) first. Because Plaintiff's argument regarding the weight afforded to Dr. Harris' opinion is potentially relevant to Plaintiff's mental RFC, the undersigned considers that argument second.

         V. Law and Analysis

         A. Substantial Evidence Supports a Finding that Plaintiff's Alleged End Stage Renal Disease is Non-Severe

         Plaintiff argues that the ALJ erred in finding his ESRD to be a non-severe impairment. In her Ruling, the ALJ explained her finding with respect to ESRD as follows:

The undersigned finds the alleged end stage renal disease/kidney disease to be a non-severe impairment. Although established by the medical evidence of record in the form of diagnosis and treatment, there is no linkage in the documentary evidence between renal/kidney disease and any significant work-related limitation for at least twelve months. The claimant's treatment for this condition is very sporadic and there appears to be no treatment for this condition since 2014. (IF, 12F) As such, the noted history of end stage renal disease/kidney disease is non-severe for the purposes of this Decision.[22]

         Plaintiff contends that the “designation of end-stage renal disease as ‘non-severe' is error on its face” because “[a] cursory review of the medical literature very clearly illustrates that this condition generally does not become apparent until one's kidney function is significantly impaired.”[23] Plaintiff further argues that ESRD is not reversible and “indicates the end of effective treatment, except for dialysis or kidney transplant.”[24] Plaintiff contends that the ALJ improperly drew inferences from his failure to pursue regular medical treatment without “first considering the evidence of record which may explain claimant's irregular treatment or his failure to seek treatments”[25] and specifically avers that the ALJ failed to consider the fact that Plaintiff had recently moved from Texas to Louisiana, may not have had financial resources to obtain treatment, and may have been precluded from seeking medical treatment due to his mental impairment. Finally, Plaintiff complains that the ALJ failed to refer to or cite the Fifth Circuit's standard for determining an impairment is non-severe and “cited nothing in the medical record from which one might infer that claimant's renal failure/disease (end-stage) is a ‘slight abnormality [having] such a 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.'”[26]

         As a threshold matter, the undersigned agrees that the ALJ failed to expressly cite the Stone standard in her Ruling. Under 20 C.F.R. §§ 404.1520(c), 419.920(c), an impairment or combination of impairments is considered “not severe” if claimant's physical or mental ability to do basic work activities is not “significantly limited.” However, in Stone, the Fifth Circuit held that an impairment can be considered as “not severe” only if it is a “slight abnormality” having such a minimal effect on an individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience. Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).[27] Although the Stone court stated that unless the correct standard was either set forth by reference or expressly stated in its opinion, it would assume the ALJ did not apply the correct standard, Id. at 1106, the Circuit subsequently held that an ALJ's failure to follow the standard set out in Stone does not automatically dictate remand unless the plaintiff was harmed by the error. Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012) (“While it is true that the ALJ never cited to Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir.1985), which provides the appropriate legal standard for determining the severity of the disability, procedural perfection is not required unless it affects the substantial rights of a party.”) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988)). In finding the ALJ's failure to use the proper Stone standard to be harmless, the Taylor court explained that substantial evidence supported the finding of non-severity of the claimant's mental problems. 706 F.3d at 603 (explaining that a comprehensive medical exam revealed no evidence of the alleged mental health issues, medical records showed claimant was not taking any medication for mental health complaints, plaintiff failed to seek mental health care even after being twice referred at his own request and that “[t]he claimant must show that he is so functionally impaired by his mental impairment that he is precluded from engaging in substantial gainful activity. He fails to do so, and any error by the ALJ in not following the procedures set out in Stone is harmless. As such, remand is not required since there is no evidence in the record that Taylor's mental health claims are severe enough to prevent him from holding substantial gainful employment.”) (internal citation omitted).

         Here, the undersigned finds that any error in the ALJ's failure to cite the Stone standard was harmless, because substantial evidence in the record supports the ALJ's determination that Plaintiff's alleged ESRD is non-severe.

         Significantly, although the ALJ stated that ESRD was “established by the medical evidence of record in the form of diagnosis and treatment, ” a review of the administrative record does not support this factual statement.[28] The ALJ cites a March 17, 2014 discharge statement from “Family Practice MLK”[29] and a February 2, 2015 Our Lady of the Lake (“OLOL”) emergency room visit summary.[30] The March 17, 2014 record indicates that the reason for the appointment was “severe hypothyroidism and rhabdomyolysis”[31] and comments contained in that record state “[h]omeless male with polysubstance abuse. Has severe hypothyroidism and HTN. He is morbid obese and will need sleep study as outpatient.”[32] The record does not include any positive diagnosis of ESRD; instead, it appears that upon his discharge, Plaintiff was provided generalized medical literature regarding hypothyroidism, heart failure, and end stage kidney disease.[33] With respect to the February 2015 record from OLOL, Plaintiff presented to the emergency room complaining of increased generalized swelling and seeking medication refills.[34] Plaintiff self-reported a history of chronic heart failure, ESRD, hypothyroidism, and depression[35] and was ultimately diagnosed with myxedema[36] and counseled regarding the inappropriateness of using the emergency room to obtain medication refills.[37] The OLOL record does not contain a diagnosis of ERSD.[38] Moreover, and contrary to Plaintiff's argument that ESRD “indicates the end of effective treatment, except for dialysis or kidney transplant, ” the OLOL record notes that Plaintiff “is not on dialysis and he makes urine.”[39] These are the only medical records contained in the administrative record that even reference ESRD.

         “The burden of proving the existence of a medically determinable impairment, part of the analysis at the second step, is on the Plaintiff.” Rowe v. Colvin, Civil Action No. 16-204, 2017 WL 3821473, at * 8 (M.D. La. Aug. 31, 2017) (citing Laurent v. Astrue, 366 Fed.Appx. 559, 561 (5th Cir. 2010) (“The claimant carries the burden of proof in the first four steps of the analysis.”)); see also, Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (“The claimant has the burden of proving she has a medically determinable physical or mental impairment lasting at least twelve months that prevents her from engaging in substantial gainful activity.”). Here, the medical evidence does not include a diagnosis of ESRD, nor does it contain any records regarding treatment for such a condition. Without showing a diagnosis of ESRD, it is difficult to understand how Plaintiff could establish that ESRD is a severe impairment in the first instance. See, Rowe, 2017 WL 3821473, at * 12 (“substantial evidence supports the ALJ's finding that lupus is not a medically determinable impairment, and therefore, not a severe impairment.”). Although Plaintiff argues that ESRD is inherently a severe condition, there is no objective medical evidence that Plaintiff actually suffers from such condition. Moreover, as the ALJ properly noted, Plaintiff has pointed to no evidence in the record, even assuming arguendo a proper diagnosis of ESRD had been made, that he suffers from any limitations to his ability to work stemming therefrom. See, Cagle v. Colvin, Civil Action No. H-12-0296, 2013 WL 2105473, at * 5 (S.D. Tex. May 14, 2013) (explaining that although treatment records for depression and anxiety were found in claimant's record, “what is not in the record…is evidence that [claimant's] depression and anxiety have had any affect [sic] on her ability to perform basic work activities.”). Accordingly, the undersigned finds that substantial evidence supports the ALJ's finding that Plaintiff's purported ESRD was non-severe.

         B. The ALJ Afforded Appropriate Weight to the Mental RFC Questionnaire

         Plaintiff also contends that the ALJ failed to give appropriate weight to a mental RFC questionnaire (the “Questionnaire”)[40] presumably completed by Dr. Franklin Harris, whom Plaintiff contends is his treating psychiatrist. In her Ruling, the ALJ explained the weight afforded to this Questionnaire as follows:

The record contains a mental residual functional capacity form dated August 4, 2015 (14F) which indicates an opinion that the claimant is seriously limited in carrying out detailed instructions and dealing with stress of a semi-skilled and skilled work level, using public transportation; is limited but satisfactory in adhering to basic standards of neatness and cleanliness; and is unable to meet competitive standards with understanding and remembering detailed instructions, interact appropriately with the general public, maintain socially appropriate behavior and travel in unfamiliar places (14F/4-6). Furthermore, the document indicates the claimant has no useful function in interacting appropriately with general public (14F/4-6). While it is unclear as who authored of [sic] this pre-printed form (i.e. appears to contain the signature of the claimant as well as a therapist), the opinion expressed is quite conclusory, providing very little explanation of the evidence relied on in forming that opinion. As such, the undersigned accords it little weight. Dr. Harris, the licensed psychiatrist or Doris Dawson, LPC at New Transitions, did not document positive objective clinical or diagnostic findings to support the functional assessment (15F).[41]

         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).[42] However, an ALJ may reject the treating source's opinion 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 Fed.Appx. 534, 535 (5th Cir. 2005) (quoting Newton, 209 F.3d at 458). Further, “the ALJ may give ‘less weight, little weight, or even no weight' to the opinion of a treating physician upon a showing of good cause.” Ray v. Barnhart, 163 Fed.Appx. 308, 313 (5th Cir. 2006) (quoting Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001)). In summary, an ALJ is free to discredit the opinion of a treating physician when it is contradicted by the evidence in the record. 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). Where an ALJ has found a treating physician's opinion to be inconsistent with that physician's own treatment records and other evidence in the record, this court has affirmed the ALJ's rejection of that opinion. See, Villar v. Colvin, Civil Action No. 14-562, 2015 WL 7731400 (M.D. La. Oct. 8, 2015) (affirming ALJ's rejection of treating physician's opinion where physician's own notes and other notes in the record failed to support the physician's opinion); Miller v. Colvin, Civil Action No. 14-675, 2016 WL 1178391, at * 4 (M.D. La. Feb. 25, 2016) (affirming ALJ's decision to afford little weight to treating psychiatrist's Mental Medical Source Statement where Statement was unsupported by psychiatrist's own treatment notes).[43]

         Under the regulations, a “treating source” is defined as a medical source that has or has had “an ongoing treatment relationship” such that the medical evidence shows that Plaintiff sees or has seen “the source with a frequency consistent with accepted medical practice for the type of treatment.” 20 CFR § 404.1502. Opinions from treating sources are generally given more weight “since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture” of a claimant's impairments. 20 CFR § 404.1527(c)(2). Where no such longitudinal pattern of care is shown, the Fifth Circuit has held that an ALJ is not required to give that professional's opinion greater weight. See, Clayborne v. Astrue, 260 Fed.Appx. 735, 737 (5th Cir. 2008) (doctor properly rejected as treating source where “isolated visits” did not amount to an “ongoing treatment relationship” with doctor); Hernandez v. Heckler, 704 F.2d 857, 860-61 (5th Cir. 1983) (doctor who only saw claimant twice in a 17-month period was not a treating physician); Taylor v. Astrue, 245 Fed.Appx. 387, 391 (5th Cir. 2007) (“[N]othing about Taylor's relationship with Dr. Weisberg establishes the ‘longitudinal' pattern of care described in [the regulations]; Taylor's two visits to Dr. Weisberg, four years apart, are the sort of “individual examinations” that are distinguished ... from the continuous care provided by a treating physician.”). See also, Siewert v. Colvin, Civil Action No. 15-476, 2016 WL 7478968, at * 6 (M.D. La. Dec. 29, 2016) (“The sporadic nature of Dr. Sigrist's treatment, alone, was an appropriate basis on which the ALJ could discount his opinion.”) (citing, Sullivan v. Commissioner of Social Security, 595 Fed.Appx. 502, 507 (6th Cir. 2014) (ALJ properly discounted physician's opinion as claimant's “treating relationship with [the doctor] was sporadic.”); Cookson v. Colvin, 111 F.Supp.3d 142, 152 (D.R.I. 2015) (ALJ properly rejected physician's opinion based on doctor's infrequent treatment)). Here, there is only one treatment note from Dr. Harris.[44] That record indicates that Plaintiff saw Dr. Harris once, on May 5, 2015 as a “new client.”[45] The “outpatient medication management form” completed by Dr. Harris at that time notes that Plaintiff admitted to “isolation behavior” and that Plaintiff was “unable to work due to health problems.”[46]It is unclear whether this conclusory statement was Dr. Harris' opinion or something self-reported by Plaintiff. More importantly, and notwithstanding anything contained in the May 2015 record, Plaintiff's medical records include only this record from Dr. Harris. As such, there is no longitudinal pattern of care that would require the ALJ to afford weight to Dr. Harris' opinion as a treating physician. Accordingly, the undersigned finds that Dr. Harris is not properly considered a treating physician under the regulations such that his opinion is not entitled to any greater weight.

         Moreover, even assuming Dr. Harris could be considered a treating physician and the Questionnaire expressed his opinion regarding Plaintiff's mental capabilities, there is substantial evidence in the record that contradicts the Questionnaire upon which Plaintiff relies. Plaintiff argues that the Questionnaire includes a diagnosis of persistent depressive disorder; notes medication side effects including dizziness, drowsiness, fatigue, lethargy, and stomach upset; notes Plaintiffs inability to meet competitive standards in understanding and remembering detailed instructions and serious limitations in carrying out detailed instructions;[47] and identifies “signs and symptoms” including “pathologically inappropriate suspiciousness or hostility, difficulties thinking or concentrating, emotional withdrawal, and decreased energy.[48] First, assuming this Questionnaire was completed by Dr. Harris, Dr. Harris' single treatment note does not reflect (other than perhaps the conclusory statement that Plaintiff is unable to work due to health problems) the level of disability reflected in the Questionnaire.[49] Second, other mental health treatment records contradict the level of disability set forth in the Questionnaire. The majority of mental health treatment notes from MHMRA reflect that Plaintiff was primary receiving care for his polysubstance abuse (which Plaintiff contends has since resolved) and anger management prior to his alleged disability onset date;[50] however, an April 9, 2013 MHMRA discharge summary (i.e. two months prior to Plaintiff's alleged onset date) records diagnoses of major depression, alcohol, cocaine, and cannabis abuse.[51] Notes thereafter from MHMRA also reflect Plaintiff's depression; however, these notes also do not reflect the level of disability set forth in the Questionnaire.[52]Similarly, while the psychological consultative examination completed by Dr. Van Hook on October 6, 2014 includes a clinical impression of major depression, unspecified anxiety disorder, and a history of chemical dependence, Dr. Van Hook concluded that Plaintiff's ability to understand, remember and carry out instructions was intact, his ability to maintain attention and concentration for simple repetitive tasks was adequate, and he could adequately respond to supervision and interact with others.[53]

         Finally, even assuming that the Questionnaire was otherwise appropriately supported by the other evidence in the record, it is not clear that the Questionnaire was even completed by Dr. Harris.[54] The Questionnaire is written in the first person, indicating that it was completed by Plaintiff himself.[55] Although the form is directed to Plaintiff's treatment provider, [56] it is signed by Plaintiff (with Dr. Harris' signature included below). Further, therapy notes from New Transitions indicate that the form was provided to Ms. Dawson, rather than Dr. Harris, for completion.[57]

         As set forth above, the ALJ accorded the Questionnaire “little weight.” Given the multiple issues with the Questionnaire discussed herein, the undersigned finds there was substantial evidence to support that conclusion, and that the ALJ did not err in refusing to afford the Questionnaire greater significance. See, Swan v. Colvin, Civil Action No. 15-60, 2016 WL 5429669, at * 13 (M.D. La. Aug. 30, 2016) (“The Court finds it unnecessary to determine whether Dr. Morrison is a ‘treating physician' because Dr. Morrison's November 26, 2013 Medical Source Statement is inconsistent with her treatment records and would not be entitled to substantial weight even if Dr. Morrison is a ‘treating physician.' The Fifth Circuit has held that an ALJ may give less weight to a treating physician's opinion when good cause is shown, as is the case when his statement as to disability is so brief and conclusory that it lacks strong persuasive weight, is not supported by medically acceptable clinical laboratory diagnostic techniques, or is otherwise unsupported by the evidence.”) (citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)) (emphasis added by Swan court).

         A. The ALJ Properly Evaluated Plaintiff's Mental RFC

         Plaintiff argues that the ALJ failed to properly assess his mental RFC and that, as a result, the RFC applied by the ALJ was not supported by substantial evidence. As stated above, the ALJ found that Plaintiff had a RFC “to perform light work…except the claimant can do work of a simple and routine nature with no public interaction and occasional interaction with coworkers.”[58] For the reasons set forth herein, the undersigned finds that substantial evidence supports this RFC.

         1. The ALJ Appropriately Considered Work Related Mental Functions ...


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