Smith v. Berryhill

Western District of Texas, txwd-6:2018-cv-00065

ORDER. The final decision of the Commissioner is AFFIRMED. Signed by Judge Jeffrey C. Manske. (mc5)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION CHARLES KEYUNNA SMITH, § § Plaintiff, § § v. § CASE NO. 6:18-CV-00065-JCM § NANCY A. BERRYHIL, Acting § Commissioner of the Social Security § Administration, § § Defendant. § ORDER Before the Court is an appeal for judicial review of a Social Security Administration's denial of benefits filed by Charles Keyunna Smith ("Plaintiff"), Pl. Br. [ECF #15], Def. Br. [ECF #16], Pl. Reply Br. [ECF #17], and the Transcript Record ("Tr.") [ECF #10]. For the reasons that follow, the final decision of the Commissioner is AFFIRMED. I. Background Plaintiff Charles Keyunna Smith seeks judicial review of a final decision of the Acting Commissioner of Social Security denying his claim for Disability Insurance Benefits ("DIB") under the Social Security Act ("the Act"), 42 U.S.C. § 423. On April 7, 2015, Smith protectively filed a Title II application for disability and disability insurance benefits for a period beginning February 15, 2015, due to depression, physical injury, and mental injury. Tr. at 106-107, 124. Born in 1978, Plaintiff was 36 years old at the time of the alleged onset date. Id. at 70. To determine if Plaintiff qualified as disabled under the Act, the ALJ used a five-step sequential inquiry analyzing whether: 1) the claimant engaged in substantial gainful activity; 2) the claimant has a severe impairment; 3) the impairment meets or equals a listed impairment; 1 4) the impairment prevents the claimant from doing past relevant work; and 5) the impairment prevents the claimant from doing other work? 20 C.F.R. § 404.1520. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity since the alleged onset date of disability (February 16, 2015). Tr. at 27. At step two, the ALJ found Plaintiff was severely impaired by post-traumatic stress disorder (PTSD) and degenerative disc disease of the cervical and lumbar spine. Id. At step three, the ALJ did not find Plaintiff had an impairment or combination of impairments equaling one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ concluded Plaintiff retained the residual functional capacity ("RFC") to perform light work1 and stand/walk or sit for six of eight hours a day, with the following limitations, he: 1) could occasionally climb ramps and stairs; 2) must not work on unprotected heights; 3) could occasionally balance and stoop; 4) is limited to routine, noncomplex tasks; 5) must have no sustained, intense interaction with the public other than incidental or brief social conversation. Id. at 30. At step 4, the ALJ found Plaintiff could perform his past relevant work as a packager. Id. at 35. At step 5, the ALJ found Plaintiff can perform other jobs that exist in the national economy in addition to his past work. Tr. at 36. In light of these findings, the ALJ concluded Plaintiff was not disabled and not entitled to DIB. Id. at 37. After pursuing additional appeals, Plaintiff sought a ruling from the Social Security Administration's Appeals Council. Pl. Br. at 3. However, the Appeals Council declined to review the ALJ's decision, rendering it the Commissioner's final administrative decision. Tr. at 1-6. Plaintiff then filed this suit on August 31, 2018. Pl. Br. at 1-23. Both parties consented to referral to the undersigned for final disposition. Pl.'s Consent [ECF #9]; Def.'s Consent [ECF #11]. 1 Light Work requires standing/walking for six of eight hours, lifting no more than 20 pounds at a time, and frequently carrying objects that weigh up to 10 pounds at a time. 20 C.F.R. § 404.1567(b). 2 II. Judicial Review Judicial review of the denial of disability benefits pursuant to 42 U.S.C. § 405(g) is limited to determining the existence of substantial evidence in the record to support the Commissioner's decision and whether the ALJ followed relevant legal standards in evaluating the evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). The scope of review is limited to the record and the court will not conduct de novo review, make credibility determinations, nor re-weigh the evidence. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Substantial evidence is more than a scintilla but less than a preponderance. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). It requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 400 (1971); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). Substantial evidence will create more than a mere suspicion of the existence of the fact to be established. Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). In determining whether substantial evidence of disability exists, a court will weigh: 1) objective medical facts or clinical findings; 2) diagnoses and opinions of treating and examining physicians; 3) plaintiff's subjective evidence of pain and disability; and 4) the claimant's age, education, and work history. Wren v. Sullivan, 925 F.2d. 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed even if substantial evidence exists to support an alternative finding. Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992); Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999); Martinez, 64 F.3d. at 173 (citing Richardson, 402 U.S. at 390). 3 To remand, the Court must find the ALJ committed a reversible error that affected the Claimant's substantial rights. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) ("Remanding this case. . . would produce the same result while wasting time and resources."); see also Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (holding "procedural improprieties. . . constitute a basis for remand only if such improprieties would cast into doubt the existence of substantial evidence to support the ALJ's decision"). "Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached absent the error." Bornette v. Barnhart, 466 F. Supp. 2d 811, 816 (E.D. Tex. 2006) (citing Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)); see also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.1989) (error is harmless unless there is reason to think remand might lead to a different result). "The major policy underlying the harmless error rule is to preserve judgments and avoid waste of time." Mays, 837 F.2d at 1364 (citing Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 520 (5th Cir. 1981)). III. Issues Presented Plaintiff raises two issues relating to the ALJ's RFC finding. Pl.'s Br. at 16. Plaintiff argues the ALJ's RFC determination is not supported by substantial evidence because he failed to give "proper weight" to psychological opinion. Id. Plaintiff further argues the ALJ's RFC determination is not supported by substantial evidence because he failed to give proper weight to the Veteran's Administration rating of disability. Id. The Commissioner argues the ALJ properly considered both issues and weighed both the psychological opinion and the VA's disability rating in his findings. Def's Br. at 5-11. 4 A. Consulting Psychological Opinion Plaintiff was diagnosed with PTSD by both the U.S. Department of Veterans Affairs ("VA") and by Dr. Belen. Tr. at 406, 1256, 1563, 2170. Dr. Belen was a consulting physician who examined Plaintiff once on March 28, 2017. Pl. Br. at 13, Tr. 2167-2174. In his brief, Plaintiff argues the ALJ did not give enough weight to Dr. Belen's opinion. Pl. Br. at 17. The ALJ accorded Dr. Belen's opinions "some weight" because Dr. Belen noted "significant limitations due to the claimant's mental health system" that were inconsistent with the VA record. Tr. at 35. The ALJ further found the VA record indicates "few mental symptoms and suggests that many of the claimant's mental symptoms are due to outside stressors rather than impairments." Id. Plaintiff argues the ALJ relied on his "own lay medical opinion" because VA rated him 70% disabled by PTSD. Pl. Br. at 17-18. Plaintiff argues he "experienced auditory hallucinations, had difficulty concentrating, became overwhelmed easily, and was very slow in completing tasks." Pl. Br. at 18. Plaintiff further argues his "auditory memory was in the extremely low range." Id. Plaintiff concludes the ALJ fundamentally misunderstands PTSD, and as such, the ALJ's RFC determination is not supported by substantial evidence. The Commissioner raises several responses. First, she argues the ALJ discussed the treatment evidence, the VA records, Dr. Belen's opinion, and Plaintiff's own acknowledgement Plaintiff is raising his children, working, and going to college. Id. Second, the ALJ considered these records, noted Dr. Belen's opinion was not fully supported by the totality of the medical evidence, and therefore properly gave the opinion "some weight." Def. Br. at 7, Tr. 29-35. Third, the ALJ considered evidence showing Plaintiff admitted to his care provider he needed a PTSD psychotherapy referral to "buttress his claim for benefits" even though he admitted he was noncompliant with his medication and failed to undergo additional testing. Def. Br. at 8, 5 Tr. 1720, 1862. Fourth, Plaintiff's limited compliance with treatment detracted from Dr. Belen's examination, and the ALJ considered this in his weighing of the evidence. Def. Br. at 9, Tr. 34-35. Fifth, and finally, Plaintiff is effectively asking the Court to reweigh the evidence and reach a different result than the ALJ. Def. Br. at 9. After reviewing the arguments and the record, the first step in judicial review is to analyze whether substantial evidence exists to support the ALJ's findings. Martinez, 64 F.3d at 173. The ALJ explained in detail the reasons why he gave Dr. Belen "some weight", as opposed to "great weight". Tr. at 34-35. Specifically, the ALJ explained the prior medical evidence in the VA records did not support Dr. Belen's conclusions. Id. at 35. Further, as the record indicates, the ALJ gave some weight to Plaintiff's Global Assessment of Functioning score because it is a mere a snap- shot of the examination that day and does not have predictive value for future symptoms. Id. The record does not support Plaintiff's assertion the ALJ failed to consider or give weight to Dr. Belen's opinions. To the contrary, the ALJ considered Dr. Belen's opinions and findings and afforded them some weight. Id. at 35. Plaintiff's argument is simply disapproval of the method of weighing and the actual weight the ALJ gave to Dr. Belen's opinions. "We may not reweigh the evidence in the record, nor try the issues de novo, nor substitute our judgment for that of the Commissioner, even if the evidence preponderates against the Commissioner's decision." Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988). Conflicts in the evidence are for the Commissioner and not the courts to resolve. Selders, 914 F.2d at 617. The ALJ's RFC determinations based upon his weighing of the medical evidence and the consulting doctors' opinions is supported by substantial evidence. The second step is to determine whether the ALJ followed relevant legal standards in evaluating the evidence. Martinez, 64 F.3d at 173. Plaintiff argues the ALJ committed a procedural 6 error by failing to satisfy either a six-part or the alternate three-part analysis as required by the Fifth Circuit's holding in Bryant v. Astrue, 272 F. App'x 352, 355 (5th Cir.2008). Pl. Reply Br. at 2, (citing Bryant v. Astrue, 272 Fed. App. 352, 355 (5th Cir. 2008)). Further, Plaintiff argues the Commissioner misconstrued the holdings in Cicotti v. Astrue, No. 09-969, 2010 WL 3022775, at *9 (W.D. Tex. July 28, 2010) and Christman v. Comm'r of Soc. Sec. Admin., No. 2014 WL 1018063, at *4 (E.D. Tex. March 13, 2014) Pl. Reply Br. at 2. However, both cases support the ALJ's findings and the Commissioner's argument. "The ALJ was not required to conduct a six-factor test to weigh the medical opinions of non-treating doctors because the doctors were not treating doctors. Examining doctors are not entitled to the weight of treating doctors." Cicotti, No. 09-969, 2010 WL 3022775, at *9. "A one-time consultative examination by a physician is not due special deference as that of a treating doctor." Christman, No. 2014 WL 1018063, at *4. (citing Robinson v. Astrue, 271 F. App'x 394 (5th Cir. 2008)). Dr. Belen was a consulting physician and not a treating doctor. Tr. at 34-35. The ALJ did not err because he was not required to explain or even apply the Bryant analysis to Dr. Belen's report. Therefore, the ALJ's RFC determination was supported by substantial evidence and there is no reversible error regarding the psychological consulting examinations. B. Veterans Affairs Rating of Disability The VA issued Plaintiff a disability rating of 100%. Id. at 33. Plaintiff argues the ALJ should have given the VA's disability rating great weight. Pl. Br. at 18. Plaintiff concedes the ALJ is not bound by the VA's disability rating, but still argues he was required to give an adequate explanation. Id. "Since the regulations for disability status differ between the SSA and the VA, ALJs need not give "great weight" to a VA disability determination if they adequately explain the valid reasons for not doing so." Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). 7 Plaintiff's argument is unpersuasive. Plaintiff again appears only to disapprove of the ALJ's weighing of the VA's rating of disability and his lack of explanation. Pl. Br. at 18-21. The record and the cases cited by Plaintiff do not support Plaintiff's objections. Chambliss only requires an "adequate" explanation from the ALJ as to why he did not give great weight to the VA rating. 269 F.3d at 522. While Chambliss emphasizes the ALJ's analysis and explanations, it only serves as an example and support for the Court's finding the ALJ adequately explained why he gave the VA rating a diminished weight. Pl. Br. at 22-23. In this case, the ALJ "fully considered the findings of the VA, including the determination of the claimant's 100% disability rating." Tr. At 34. He opines that while he is not bound by the VA findings, "the VA's opinion should still be considered" in his determination of Plaintiff's RFC. Id. Further, in his analysis of the VA's disability rating, the ALJ emphasizes the VA and the Social Security Administration use "completely different" standards for determining disability. Id. Because of the difference in standards, the ALJ explains he gives little weight to the VA's determination Plaintiff has a 100% disability rating because the objective medical evidence, other opinions in the record, and Plaintiff's own testimony about his activities following the onset date are inconsistent with that rating. Id. The ALJ's explanation is adequate and therefore meets the Chambliss requirement. "[T]he task of weighing the evidence is the province of the ALJ. Our job is merely to determine if there is substantial evidence in the record as a whole which supports the ALJ's decision." Chambliss, 269 F.3d at 523. The ALJ's RFC determination is supported by substantial evidence. 8 IV. Conclusion The ALJ's RFC determinations are supported by substantial evidence. Further, the record indicates the ALJ considered the medical evidence and both the treating and consulting doctors' opinions. He weighed the evidence and explained his findings. Finally, the ALJ followed relevant legal standards in evaluating the evidence. Plaintiff failed to meet his burden to establish reversible error in the ALJ's findings. Therefore, based on the foregoing discussion, the Commissioner's final decision is AFFIRMED. SIGNED this 7th day of December, 2018. _______________________________________________ THE HONORABLE JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE 9