Opinion
Civil Action No. SA-01-CA-0032 NN
March 31, 2002
MEMORANDUM ORDER AND DECISION
Based upon the parties' consent to a trial by a Magistrate Judge, this matter was referred to me on June 18, 2001, for all purposes including entry of final judgment. Docket Entry 13. 28 U.S.C. § 636(c).
A. Introduction
This is an action to review a decision of the Commissioner of the Social Security Administration ("the Commissioner") under § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g). Plaintiff/Claimant, Francisco H. Reyes, alleges that his diabetes mellitus, a condition that has made him insulin dependent for the last thirty-six years, renders him totally disabled and unable to perform work activity functions. It is plaintiff's position that the Commissioner erred when she denied him Disability Insurance Benefits ("DIB") under Title II as well as Supplemental Security Income ("SSI") under Title XVI of the Act.
Plaintiff has filed a motion for summary judgment seeking judgment that as a matter of law, the Commissioner's decision is not supported by substantial evidence and should be reversed. Plaintiff further maintains that he is entitled to benefits without the need of a hearing de novo before an ALJ. Specifically, plaintiff challenges the Commissioner's decision by asserting that the Administrative Law Judge ("ALJ") erred: (1) by discounting the plaintiff's treating physician diagnosis of end-organ damage and his opinion that plaintiff was completely disabled; and (2) by posing an incomplete hypothetical to the vocational expert, causing her to wrongfully conclude that plaintiff could still perform a limited range of light work. Further, plaintiff argues that while he believes a rehearing is not necessary and that the court should enter judgment in his favor, he nevertheless argues that in the event his case is remanded to the Commissioner for a rehearing, he requests the court to require that another "unbiased" ALJ hear his case. In response, defendant has filed a brief in support of the Commissioner's decision, urging the court to affirm and deny plaintiff's requested relief. Plaintiff has also filed a reply brief to defendant's response.
Docket Entry 15.
Id .at 14.
Id . at 9-13.
Id .at 14.
Docket Entry 20.
Docket Entry 21.
Having considered plaintiff's summary judgment motion, the defendant's brief in support of the Commissioner's decision, the plaintiff's reply brief, the transcript of the Social Security Administration proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, as well as the entire record in this matter, it is my opinion that the ALJ did not err on the points alleged by plaintiff, and that his decision is well-supported by the substantial evidence of the record as a whole. The reasons in support of my decisionAFFIRMING the ALJ's decision are set forth below.
B. Jurisdiction
Jurisdiction of this court is predicated on 42 U.S.C. § 405(g) and 1383(c)(3).
C. Administrative Proceedings
Plaintiff filed applications for DIB and SSI benefits on August 28, 1998, claiming entitlement to benefits since December 31, 1995, due to diabetes mellitus. His application was denied initially and upon reconsideration. Plaintiff then requested a hearing before an ALJ, and one was scheduled for September 1, 1999. At the hearing, plaintiff appeared and was represented by attorney Lanny Perdue. At the time of the hearing, plaintiff was 54 years old with a seventh-grade education. Upon hearing the plaintiff's testimony, analyzing the medical evidence of record and considering the vocational expert's ("VE") hearing testimony, the ALJ entered a decision on September 21, 1999, denying plaintiff's applications for benefits. The ALJ found that while plaintiff was not able to perform his past relevant work as a maintenance crew member, trash hauler and newspaper deliverer, he was nevertheless able to perform light work, subject to a "sit/stand" restriction. Based upon the VE's testimony and consistent with plaintiff's testimony that he was able to do some household chores and take care of his personal needs, the ALJ found plaintiff able to perform as a self-service parking lot attendant, an order clerk and in bench assembly.
Transcript, at 43-45, 52, 139-42.
Id . at 13-18.
Id . at 18 and 174-76.
Upon plaintiff's request for review of the ALJ's decision, the Appeals Council upheld same decision on December 21, 2000. Thus, the ALJ's decision became the final decision of the Commissioner for purposes of this court's review pursuant to § 405(g) of the Act.
Id . at 5-6.
D. Issues Presented
1. Whether substantial evidence supports the ALJ's decision that plaintiff was not disabled under the Act?
2. Whether the ALJ's decision comports with relevant legal standards?
E. Applicable Legal Standards
1. Standard of ReviewIn reviewing the Commissioner's decision denying disability insurance benefits, the court is limited to a determination of whether the decision is supported by substantial evidence and whether the Commissioner applied the proper legal standards in evaluating the evidence. Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 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.
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. § 405(g), § 1383(c)(3).
Richardson v. Perales, 402 U.S. 389, 390 (1971); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. In applying the substantial evidence standard, the court must carefully examine the entire record but must refrain from re-weighing the evidence or substituting its judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley, 67 F.3d at 555; Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (The court is not to reweigh the evidence, try the issuesde novo, or substitute its judgment for that of the Commissioner).
Martinez, 64 F.3d at 174.
Id .
Before addressing plaintiff's specific challenges to the ALJ's decision, an overview of the applicable legal standards is warranted.
2. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not attained retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
§§ 1382c(a)(3)(A) 423(d)(1)(A).
§ 1382c(a)(3)(B).
3. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. § 404.1520 and 416.920.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, and work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, and work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's residual functional capacity and the demands of his past work. If he can still do this kind of work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities and his age, education, and work experience, to do other work. If he cannot do other work, he will be found to be disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that claimant is capable of performing. If the Commissioner adequately points to potential alternative employment, the burden then shifts back to the claimant to prove that he is unable to perform the alternative work.
Id . at 564.
Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989).
Id . at 632-33.
In this case, the ALJ reached his decision at step five of the sequential evaluation process. The ALJ found that plaintiff suffered from severe diabetes mellitus, but that he did not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix I, Subpart P, Regulations No. 4. The ALJ found that although plaintiff was unable to return to his past relevant work, that he retained the residual functional capacity to perform light work, subject to a "sit/stand" restriction. The ALJ relied on the Grids and on the testimony of a vocational expert to conclude that although the claimant's exertional limitations do not allow him to perform the full range of light work, there are a significant number of jobs in the national economy which plaintiff could perform (i.e., self-service parking lot attendant, order clerk and bench assembly). It is my opinion that this finding is supported by substantial evidence.
Transcript, at 18-20.
Id . at 18, Finding No. 3.
Id . at 18-19, Findings Nos. 5, 6 8.
Id . at 19-20, Finding Nos. 8-9.
F. Analysis
Plaintiff argues that the ALJ failed to meet his burden at this step of the analysis on two main grounds: (1) that the ALJ erred when he summarily discounted the opinion of plaintiff's treating physician, Enrique R. Perez-Rodriguez, M.D., that plaintiff suffers from end-organ disease due to his long term dependency on insulin, and his opinion that plaintiff should be considered "permanently disabled;" and (2) that the ALJ erred when he presented an incomplete hypothetical to the VE, namely, that plaintiff had end-organ disease and arthritis on his knees and right hip. Plaintiff's challenges are not supported by the substantial evidence of record and/or the applicable law, and as such, they must be rejected.
Docket Entry 15, at 9-12; and Docket Entry 21, at (unnumbered) 2-4. While plaintiff acknowledged in his reply that a physician's opinion of whether a claimant meets the disability requirements of the Act is entitled to no weight, plaintiff later makes reference in his brief to the treating physician's opinion that he is "completely disabled." Docket Entry 21, at (unnumbered 4). The court, thus, will construe plaintiff's argument to also include the position that the ALJ erred when he rejected the treating physician's opinion of disability.
1. Dr. Perez-Rodriguez cannot be considered plaintiff's "treating physician"
Plaintiff argues that the ALJ erred as a matter of law by failing to give proper weight to the opinion of his treating physician, Dr. Perez-Rodriguez. Specifically, plaintiff relies on the one paragraph letter written by Dr. Perez-Rodriguez to plaintiff's counsel, on the day before the scheduled hearing before the ALJ. The letter states: "Mr. Francisco Reyes is currently under my medical care. His chronic conditions include NIDDM, Dyslipidemia, Proteinuria, and Morbid Obesity. Mr. Reyes should be considered permanently disabled." It is plaintiff's contention that this letter, along with the attached medical notes from the Laurel Heights Clinic, establish that plaintiff suffers from end-organ disease, a condition that the ALJ refused to consider in his analysis of plaintiff's medical evidence. I disagree.
Transcript, at 113.
It is well-settled that 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). Specifically, this regulation requires consideration of: (1) the physician's length of treatment of the claimant; (2) the physician's frequency of examination; (3) the nature and extent of the treatment relationship; (4) the support of the physician's opinion afforded by the medical evidence of record; (5) the consistency of the opinion with the record as a whole; and (6) the specialization of the treating physician. As discussed below, Dr. Perez-Rodriguez' short relationship with plaintiff as his physician fails to meet this criteria.
Id . See also Social Security Regulation SSR-96-2p.
Id .
Additionally, if the ALJ determines that the treating physician's records are inconclusive or otherwise inadequate to receive controlling weight, absent other medical opinion evidence based on personal examination or treatment of the claimant, the ALJ must seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1515(e). Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability, "the ALJ has sole responsibility for determining a claimant's disability status" "`[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.'" In this case, while Dr. Perez-Rodriguez referred to plaintiff as "permanently disabled," that reference may be entitled to no weight whatsoever in the ALJ's assessment of the evidence. Moreover, it should be noted that the treating physician's opinions are not conclusive. The opinions may be assigned little or no weight when good cause is shown. Good cause may permit an ALJ to discount the weight of a treating physician relative to other experts where the treating physician's evidence is conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the evidence.
See Newton v. Apfel, 209 F.3d 48453 (5th Cir. 2000), and docket entry 8, at 12. This regulation provides:
(1) We will first recontact your treating physician or [. . .] to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.20 C.F.R. § 404.1512(e) (Emphasis added).
See Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994).
Newton, at 209 F.3d at 455 (quoting Paul, 29 F.3d at 211).
Brown, 192 F.3d at 500.
Greenspan, 38 F.3d at 237.
In this case, it is my opinion that the ALJ did not err in his consideration of Dr. Perez-Rodriguez' letter. First, and foremost, Dr. Perez-Rodriguez cannot be considered plaintiff's "treating physician," as the term is used in the Social Security regulations. It is undisputed that prior to the hearing scheduled on September 1, 1999, Dr. Perez-Rodriguez had only become plaintiff's physician a few months prior, in June of 1999. Any opinion that Dr. Perez-Rodriguez may have formed during these three months of treatment cannot be considered as conclusive of plaintiff's condition, and as one given by a "treating physician." Interestingly, the ALJ, in noting Dr. Perez Rodriguez' August 30, 1999 letter, did not refer to him as plaintiff's "treating physician," but merely as his current physician. In that regard, the ALJ stated:
On August 30, 1999, Dr. Enrique R. Perez-Rodriguez wrote that he was currently treating claimant and claimant should be considered permanently disabled. This is an opinion on an issue reserved to the Commissioner. Therefore the opinion is not entitled to controlling weight or special significance (SSR 96-5p). Social Security Ruling 96-2P (SSR 96-2p) provides the rule to apply in giving weight to a treating source medical opinion. To give controlling weight to a medical opinion from a treating source that must be adopted by the undersigned, the opinion must be from a `treating source'; be a `medical opinion;' be `well-supported' by medically acceptable clinical and laboratory diagnostic techniques and must be `not inconsistent' with the other `substantial evidence' in the record. The statement of the physician is not supported by clinical or laboratory techniques and is inconsistent with the other substantial evidence in the record. Claimant has been told to be active and exercise. The consultative examination found no evidence of end-organ damage and only slight tingling and numbness in the feet. Claimant had mild arthritis in the right knee. However, this does make claimant disabled. Furthermore, the physician has not considered vocational factors which are intrinsic to the evaluation process.
Transcript, at 14-15.
This quoted statement is supported by law and the evidence of record. The ALJ committed no error in giving no weight to Dr. Perez-Rodriguez' letter.
Second, contrary to plaintiff's contention, Dr. Perez-Rodriguez does not specifically diagnose plaintiff as having end-organ disease. While it could be argued that Proteinuria may lead to end-organ damage, there is no evidence of record that plaintiff actually suffers from the disease.
Id . at 179.
Docket Entry 21; and Transcript, at 116-20. See also Docket Entry 20, at 4-5 where the defendant provides that "NIDDM" is the abbreviation for "non-insulin dependent diabetes mellitus." Id . The term "Dyslipidemia" means an "abnormality in, or abnormal amounts of; lipids and lipid proteins in the blood." Id . (quoting DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 555 (29th ed. 2000)). The term "Proteinuria" is "the presence of an excess of serum proteins in the urine." Id . at 4-5 (citing DORLAND'S at 1475).
Finally, the report from the consultative examiner, J.E. Ross, M.D., based on an examination of the plaintiff conducted in October of 1998, also demonstrates that plaintiff's limitations are not consistent with a finding of disabled. Plaintiff experienced no back problems, straight leg raising was negative, and a neurological examination was negative. Plaintiff enjoyed a full range of motion in all his joints and his motor function was intact with strength 5/5 in all groups. Despite claiming disability, Dr. Ross noted that plaintiff's "arms and legs are extremely well-toned and well-developed," and plaintiff's statements of living a sedentary lifestyle were inconsistent with the doctor's observations. Plaintiff exhibited only "moderate" degenerative arthritic changes in his knees and right hip, but nothing which would prevent him from performing light work. There were some limitations expected in his ability to walk or stand for long periods, but the ALJ accounted for an accepted these limitations. I, thus, conclude, there was sufficient evidence to support the ALJ's determination of no disability.
Transcript, at 88-89.
Id . at 88.
Id . at 89.
Docket Entry 20, at 6. Light work is defined in the regulations as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.20 C.F.R. § 404.1567(b) and 416.967(b).
Transcript, at 16-17 and 89.
2. The ALJ did not err in his hypothetical question to the VE
Plaintiff's second allegation of error concerns whether or not the ALJ properly relied upon the VE testimony. Specifically, plaintiff claims that the ALJ failed to include other limitations such as end-organ damage, and arthritis in his right hip and knees.
Docket Entry 15, at 13.
In Bowling v. Shalala, the Fifth Circuit formulated a test for determining when a defective hypothetical question will produce reversible error:
Unless the hypothetical question posed to the vocational expert by the ALJ can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ. and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question), a determination of non-disability based on such a defective question cannot stand.
36 F.3d 431, 436 (5th Cir. 1994).
Because the hypothetical question articulated by the ALJ reasonably incorporated the restrictions and impairments supported by the record, the ALJ properly relied upon the VE testimony to deny plaintiff's claim for DIB and SSI benefits. As discussed above, there is no evidence of record of end-organ damage. Second, the ALJ considered plaintiff's lower extremity limitations, and particularly his arthritic condition, when he submitted a hypothetical question that included limitations in plaintiffs ability to walk, stand and sit. In response to the ALJ's medically supported hypothetical, the VE found a significant number of jobs that plaintiff could perform. "Once the Commissioner finds that jobs in the national economy are available to the claimant, the burden of proof shifts back to the claimant to rebut this finding." The plaintiff has failed to rebut the Commissioner's established proof in this case.
Transcript, at 174-76.
Id . at 175-76. See Bowling 36 F.3d at 436 (VE testimony that a claimant can perform a number of jobs suited to his capabilities will satisfy the Commissioner's burden of showing that the claimant is not disabled). See also Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980).
See Discussion, at 7, supra n. 26.
Also, it should be noted that in accordance with the Fifth Circuit standard, the ALJ gave plaintiff, through his attorney, the opportunity to correct any deficiencies in the hypothetical posed to the VE. Curiously, plaintiff did not present the issue of end-organ damage to the VE, focusing instead on chronic fatigue syndrome, a condition not developed in the record. Contrary to plaintiff's argument, the ALJ is not required to rely on VE testimony that is based on unsubstantiated assumptions.
Id . at 177; Bowling, 36 F.3d at 436.
Id .
See Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985).
Therefore, substantial evidence supports the accuracy of the hypothetical scenario posed to the VE because the ALJ reasonably included all of plaintiff's impairments and restrictions. Any possible error the ALJ may have committed in his hypothetical question to the VE is minimized by the fact that plaintiff was represented by able counsel at the hearing, who had the ability to bring forth any relevant impairment the VE may have omitted from his hypothetical question.
Transcript at 174-76.
3. Plaintiff's other challenges have no merit
Plaintiff also makes a broad claim that the ALJ's decision denying plaintiff benefits is not supported by substantial evidence and does not comport with the relevant legal standards. As mentioned above, when reviewing the ALJ's decision, I am limited to a determination of whether the decision is supported by substantial evidence and whether the Commissioner applied the proper legal standards. Notwithstanding plaintiff's argument, in light of my previous analysis addressing plaintiff's grounds of error, and in considering the objective medical evidence, diagnoses and opinions of treating and consultative examining physicians of record, I conclude that substantial evidence supports the Commissioner's decision denying plaintiff DIB and SSI benefits. Furthermore, at all of the sequential evaluation steps relevant to his analysis, the ALJ applied the correct legal standards.
Docket Entry 15, at 14.
Martinez, 64 F.3d at 173.
Id . at 174.
Id . at 12-20.
Plaintiff's other argument alleging bias on the part of the ALJ is not supported by the record. Further, since the ALJ's decision is affirmed, there is no need to remand the case to the Commissioner for a rehearing. Therefore, plaintiff's argument alleging bias becomes a moot point.
Docket Entry 15, at 14.
G. Conclusion
Based on the discussion above, I hereby dismiss plaintiff's complaint and affirms the Commissioner's decision. The ALJ's decision is supported by substantial evidence and correctly applies the relevant legal standards. Accordingly,
IT IS HEREBY ORDERED that the Commissioner's decision is AFFIRMED because it is based on substantial evidence and is a correct application of the relevant legal standards.
IT IS FINALLY ORDERED that plaintiff's motion for summary judgment and brief in support thereto (Docket Entry 15) is DENIED in all respects and this cause of action is DISMISSED WITH PREJUDICE .