Walters v. Social Security Administration, No. 2:2018cv05811 - Document 25 (E.D. La. 2019)
Court Description: ORDER AND REASONS - The Court ADOPTS the 22 Report and Recommendations as its own. Plaintiff's 17 Motion for Summary Judgment is DENIED and Defendant's 18 Motion for Summary Judgment is GRANTED. Signed by Judge Susie Morgan on 8/20/2019.(sbs)
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Walters v. Social Security Administration Doc. 25 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A D W AYN E W ALTERS, Plain tiff CIVIL ACTION VERSU S N O. 18 -58 11 SOCIAL SECU RITY AD MIN ISTRATION , D e fe n d an t SECTION : “E” ORD ER AN D REAS ON S Before the Court is a Report and Recom m endation issued by Magistrate J udge J anis van Meerveld. 1 On October 31, 20 18 , Plaintiff filed a m otion for sum m ary judgm ent. 2 On Decem ber 26, 20 18, Defendant Andrew Saul, Acting Com m issioner of the Social Security Adm inistration (“the Com m issioner”) filed a cross m otion for sum m ary judgm ent. 3 For the reasons that follow, the Court AD OPTS the Report and Recom m en dation as its own and hereby D EN IES the m otion for sum m ary judgm ent filed by Plaintiff and GRAN TS the m otion for sum m ary judgm ent filed by Defendant. BACKGROU N D Plaintiff Dwayne Walters seeks judicial review, pursuant to Section 40 5(g) of the Social Security Act (the “Act”), of the final decision of the Com m issioner of the Social Security Adm inistration (the “Com m issioner”) denying his claim for disability insuran ce benefits (“DIB”) under Title II of the Act, 42 U.S.C. § 423. 4 Plaintiff applied for DIB on J anuary 29, 20 15, asserting a disability onset date of October 28, 20 14. 5 He alleged the 1 R. Doc. 22. This Order refers to docum ents on this Court’s CM/ ECF docket as “R. Doc. [# ]” and refers to the adm in istrative record as “Tr. [# ].” The adm inistrative record is located on the CM/ ECF docket as Docum ent 13. 2 R. Doc. 17. 3 R. Doc. 18 . 4 R. Doc. 1. 5 Tr. 20 5, 242. 1 Dockets.Justia.com following illnesses, injuries, or conditions: lum bar degenerative disc disease an d gum disease. 6 On February 3, 20 16, Plaintiff’s claim was denied by the state agency. The Disability Determ in ation Explanations concluded: The m edical evidence shows that although you experience back and right knee discom fort, you are still able to m ove about and you can use your arm s, hands, and legs in a satisfactory m anner. Although you have stated that you have gum disease, with the available inform ation we cannot determ ine a disabling im pairm ent. Though you stated you are depressed at tim es, your records do now show any treatm ent for this condition. The m edical eviden ce does not show any other disabling condition that would prevent you from working. 7 Plaintiff subsequently requested a hearing before an Adm inistrative Law J udge (“ALJ ”), which was held on March 13, 20 17. 8 The ALJ found Plaintiff was not under a disability, as defined in the Act, from the alleged disability onset date of October 28, 20 14, through J une 7, 20 17, the date of the ALJ ’s decision. 9 Plaintiff appealed to the Appeals Council, which denied review on April 26, 20 18. 10 On J une 11, 20 18, Plaintiff filed the instant com plaint in this Court to review the Com m issioner’s decision. 11 The Com m issioner answered and filed the adm in istrative record. 12 The parties filed cross-m otions for sum m ary judgm ent. 13 On J uly 19, 20 19, the Magistrate J udge issued her Report and Recom m endation. 14 Plaintiff filed an objection to the Report an d Recom m endation, 15 and Defendant filed a response to Plaintiff’s objection. 16 6 Id. Id. at 77. 8 Id. at 33-62. 9 Id. at 19. 10 Id. at 1-6. 11 R. Doc. 1. 12 R. Docs. 12, 13. 13 R. Docs. 17, 18. 14 R. Doc. 22. 15 R. Doc. 23. 16 R. Doc. 24. 7 2 LEGAL STAN D ARD In reviewing the Magistrate J udge’s Report and Recom m en dations, the Court m ust review de novo any of the Magistrate J udge’s conclusions to which a party has specifically objected. 17 The Court needs only to review the portions of the report to which there are no objection s to determ in e whether they are clearly erroneous or contrary to law. 18 The Court's function on judicial review of the final decision of the Com m issioner is lim ited to determ ining whether the Com m issioner's decision is supported by “substantial evidence” and whether the Com m issioner applied the correct legal standard to evaluate the eviden ce. 19 Substantial evidence is m ore than “a m ere scintilla,” but less than a preponderance. 20 This Court m ay not re-weigh the evidence, try the issues de novo, or substitute its judgm ent for the Com m issioner’s. 21 The ALJ is entitled to m ake any finding that is supported by substantial eviden ce, regardless of whether other conclusions are also perm issible. 22 LAW AN D AN ALYSIS To be considered disabled under the Act, a claim ant m ust establish that he is unable “to engage in any substantial gainful activity by reason of any m edically determ inable physical or m ental im pairm ent 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 17 See 28 U.S.C. § 636(b)(1) (“A judge of the court shall m ake a de novo determ ination of those portions of the report or specified proposed findin gs or recom m en dations to which an objection is m ade.”). 18 Id. 19 Audler v. Astrue, 50 1 F.3d 446, 447 (5th Cir. 20 0 7). 20 Richardson v. Perales, 40 2 U.S. 389, 40 1 (1971); Ham es v. Heckler, 70 7 F.2d 162, 164 (5th Cir. 1983). 21 Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 20 0 5). 22 See Arkansas v. Oklahom a, 50 3 U.S. 91, 113 (1992). 3 m onths.”23 The Com m issioner engages in a five-step sequential evaluation process to determ ine whether an individual qualifies as disabled. 24 The five steps include: (1) the claim ant is currently working in substantial gainful activity; (2) the claim ant has a severe im pairm ent; (3) the im pairm ent m eets or equals an im pairm ent listed in Appen dix 1 of the Social Security Regulations; (4) the im pairm ent prevents the claim ant from perform ing past relevant work; and (5) the im pairm ent prevents the claim ant from perform ing any other work. 25 At each step, if the Com m ission er determ ines an individual is or is not disabled (depending on the step), her decision is m ade on that basis and there is no need to proceed to the next step. 26 The claim ant bears the burden of proof on the first four steps. 27 At the fifth step, the Com m issioner m ust “show that the claim ant can perform other substantial work in the national econom y.”28 Once the Com m issioner has m ade this showing, the claim ant bears the burden to rebut the findin g. 29 An assessm ent of the claim ant’s residual functional capacity (“RFC”) is used in steps four and five to determ ine the claim ant’s ability to perform his past work or any other type of work. 30 In this case, the ALJ found Plaintiff is unable to perform any past relevant work, 31 and accordingly the issue is the ALJ ’s determ ination Plaintiff can perform other work. 32 The ALJ found Plaintiff has the RFC to perform a reduced range of light work as defin ed in 20 C.F.R. § 40 4.1567(b). 33 Specifically, the ALJ found Plaintiff can lift and carry 20 pounds occasionally an d 10 pounds frequently; stand and/ or walk a total of four hours in 23 42 U.S.C. § 423(d)(1)(A). 20 C.F.R. § 40 4.1520 (a)(4). 25 Masterson v. Barnhart, 30 9 F.3d 267, 271 (5th Cir. 20 0 2). 26 Id. 27 N ew ton v. Apfel, 20 9 F.3d 448, 453 (5th Cir. 20 0 0 ). 28 Perez, 415 F.3d at 461. 29 Id. 30 Id. 31 Tr. 17. 32 Id. 33 Id. at 13-14. 24 4 an eight-hour work day; sit a total of six hours in an eight-hour work day; occasionally push and/ or pull with the right lower extrem ity and frequently push and/ or pull with the left lower extrem ity; never clim b ladders, ropes, or scaffolds; frequently clim b ram ps and stairs, balance, and stoop; an d occasionally kneel an d crouch; and m ust avoid exposure to m oving m achin ery and unprotected heights. 34 For the sake of clarity, the Court briefly sum m arizes the physicians’ opinions considered by the ALJ in finding Plaintiff has the RFC to perform a reduced range of light work. 35 The ALJ considered the opinions of four physicians who exam ined Plaintiff (collectively, the “exam ining” physicians) and one physician who did not exam ine Plaintiff. (1) Dr. Oberlander Dr. Oberlander is Plaintiff’s neurosurgeon who perform ed Plaintiff’s lum bar degenerative disc disease fusion surgery on October 30 , 20 14. Plaintiff visited Dr. Oberlander shortly after his surgery but has not visited Dr. Oberlander since early 20 15. In J anuary 20 15, Dr. Oberlander reported Plaintiff was unable to return to his previous job with his post-surgical restrictions. He noted in March 20 15 that Plaintiff “appears to be solidly fused after his surgery”36 but also noted it would take a year for Plaintiff to heal from the fusion procedure and return to work. 37 The ALJ explain ed he gave “som e weight to Dr. Oberlander’s opinions,” as Dr. Oberlander had the opportunity to exam ine Plaintiff and his opinions are consistent with the “totality of the record,” which shows Plaintiff has 34 Id. The Court notes the ALJ considered all of the objective and opin ion evidence, including: Plaintiff’s testim ony; m edical records, includin g x-rays and surgical history; the clinical notes and opin ions of the physicians; and the testim ony of the vocational expert. 36 Tr. 335. 37 Id. 35 5 an extensive surgical history and supports a finding he is unable to work at the m edium to heavy exertional levels. 38 (2) Lallie Kem p Medical Center Plaintiff went to Lallie Kem p for follow-up prim ary care visits in 20 15 and 20 16 and was exam ined by Dr. Tashawn Lavette Mustiful. 39 Dr. Mustiful noted during all three visits that Plaintiff exhibited “overall norm al findings on physical exam inations, including a stable gait, intact m uscle tone and strength in all extrem ities, intact hand grip, no ataxia, norm al deep tendon reflexes, no tenderness to palpation along spine, no neck stiffness or photophobia, no cervical step off, and healed m idline lum bar surgical scar.”40 (3) Dr. Zerangue Dr. Zerangue is Plaintiff’s prim ary care physician. Plaintiff had follow-up appointm ents with Dr. Zerangue. In Decem ber 20 15, Plaintiff exhibited, am ong other things, an “antalgic gait” but “reported he was gradually im proving.”41 Despite this, in Decem ber 20 15 Dr. Zerangue indicated Plaintiff was “10 0 % disabled.”42 In March 20 16, Dr. Zerangue noted Plaintiff reported severe lower back pain and neck pain. 43 Later in March 20 16, Dr. Zerangue filled out a form with questions about Plaintiff’s im pairm ents and stated Plaintiff’s pain and sym ptom s interfered with attention and concentration but Plaintiff was capable of low stress work. 44 The ALJ found Dr. Zerangue’s opinion regarding Plaintiff’s inability to work was “not supported by the totality of the evidence of record an d are given little weight.” The ALJ explain ed: Dr. Zerangue is a “prim ary care 38 Id. at 15. Id. at 396-426. 40 Id. 41 Id. at 15. 42 Id. 43 Id. at 431. 44 Id. at 16. 39 6 physician, with no particular expertise”; “his findings are sparse . . . and contain little to no objective fin dings”; and his fin dings are “not entirely supported by the other eviden ce in the record, including the fairly benign findings on physical exam in ations by the claim ant’s neurosurgeon, the consultative exam ination, and m ore recently at Lallie Kem p hospital.”45 (4) Dr. Loupe Dr. Loupe is a consultative exam iner who assessed Plaintiff’s condition in October 20 15. On exam ination, Plaintiff exhibited “full range of m otion in his cervical and lum bar spines, shoulders, elbows, wrists, hips, and ankles”; he “could get down to alm ost his ankles”; an d he “was able to lift his right leg with the left on the floor” and the left with the right on the floor. 46 Although he exhibited “severe pain” on the m edial aspect of the joint of his right knee with com pression in that area and “difficulty with heel and toe walk,” he exhibited “negative straight leg raise test for sciatic pain, no sensory loss in his lower extrem ities.”47 Dr. Loupe indicated that Plaintiff required a re-fusion of his lum bar spine and was disabled from work. 48 The ALJ stated he gave “little weight to Dr. Loupe’s opinion” because “while Dr. Loupe had the opportunity to exam ine the claim ant . . . his exam ination was perform ed in 20 15 and his opinion is without substantial support from the fairly norm al findings of his physical exam in ation of the claim ant or any other physical exam in ations perform ed sin ce then.”49 45 Id. Id. at 15. 47 Id. at 15-16. 48 Id. 49 Id. at 16. 46 7 (5) Dr. Calkins Dr. Calkins is a state agency m edical consultant who opined Plaintiff is capable of light work. The ALJ stated he “afford[ed] significant weight to the state agency m edical consultant.”50 The ALJ explained that although Dr. Calkins is a non-treating, nonexam ining m edical source, “his opin ion is based upon a thorough review of the available m edical record”; “the opinion is internally consistent and well supported by a reasonable explanation and the available evidence”; and “the opinion is gen erally consistent with the claim ant’s treatm ent records, including the fairly benign findings on physical exam inations since his surgery and the no m ore than m ild to m oderate findings on diagnostic testing of the claim ant’s lum bar spine an d extrem ities.”51 Plaintiff argues “the ALJ ’s RFC is based only on the findings from the non exam ining State Agency consultant ([Tr.] 13-14) and ignores the finding from the exam ining physicians: Dr. Loupe, Dr. Oberlander and Dr. Zerangue, [and] therefore is not supported by substantial evidence.”52 He argues the opinion of the state agency consultant should not outweigh the opinion of the treating physician and exam ining sources. 53 The Com m issioner argues substantial evidence supports the ALJ ’s RFC determ ination. 54 Specifically, the Com m issioner argues the ALJ recited objective m edical findings to support the RFC, and, contrary to Plaintiff’s suggestion, the ALJ did not “pick[] and choos[e]” evidence in the record, but instead resolved conflicts in the evidence as the ALJ is expressly tasked to do. 55 The Com m issioner further argues “Plaintiff’s ability 50 Id. at 17. 51 Id. 52 R. Doc. 17-2 at 13. Id. 54 R. Doc. 18 -1 at 4. 55 Id. at 5-6. 53 8 to m aintain daily activities and the physical exam inations that show norm al findings support the ALJ ’s decision to discount Dr. Zerangue’s opinion.”56 Finally, the Com m issioner argues, even if there is “no m edical opinion directly supporting the ALJ ’s RFC, this does not require reversal as Plaintiff dem ands.”57 Plaintiff additionally argues the ALJ erred because “a claim ant with a strong work history is generally entitled to enhanced credibility when claim ing an inability to work” and, as a result, Plaintiff’s past work history com pels a finding that his testim ony about his pain and functional lim itations is credible. 58 The Com m issioner argues “the regulations do not state that a certain num ber of years of continuous work ‘enhances’ a claim ant’s credibility or the reliability of a claim ant’s reported sym ptom s.”59 In response to the Magistrate J udge’s order requiring supplem ental briefing on whether the ALJ was required to address the criteria set forth in 20 C.F.R. § 40 4.1527(c), 60 Plaintiff filed a supplem ental m em orandum wherein he m aintains the ALJ ’s fin ding is not supported by substantial evidence, but also argues the “ALJ ’s RFC Assessm ent is contrary to relevant legal standards” because the ALJ “failed to apply the §§ 40 4.1527(c) . . . factors to the [m edical consultant’s] opinions.”61 The Com m issioner argues the regulations do not require the ALJ to perform a detailed analysis of the factors before declining to grant a physician’s opinion controlling weight. 62 56 Id. at 8. Id. (citin g Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)). In Ripley , the Fifth Circuit explain ed: “[u]sually, the ALJ should request a m edical source statem ent describing the types of work that the applicant is still capable of perform in g. The absence of such a statem ent, however, does not, in itself, m ake the record incom plete. In a situation such as the present one, where no m edical statem ent has been provided, our in quiry focuses upon whether the decision of the ALJ is supported by substantial evidence in the existing record.” Ripley , 67 F.3d at 557 (internal citations om itted). 58 R. Doc. 17-2 at 17. 59 R. Doc. 18 -1 at 8 . 60 R. Doc. 19. 61 R. Doc. 21 at 6. 62 R. Doc. 20 at 1. 57 9 Because Plaintiff argues the ALJ ’s assignm ent of less weight to the treating physician’s opinion m eans both (1) substantial evidence does not support the ALJ ’s RFC finding and (2) the ALJ did not properly apply the correct legal standard, the Court analyzes each argum ent separately. Finally, the Court will turn to Plaintiff’s argum ent that the ALJ applied the legal standard incorrectly when he failed to assign enhan ced credibility to Plaintiff’s testim ony. A. Su bs tan tia l Evid e n ce As stated above, “substantial eviden ce” is “‘such relevant evidence as a reasonable m ind m ight accept to support a conclusion’”63 ; it is “‘m ore than a m ere scintilla and less than a preponderance.’”64 The Court does “not reweigh the eviden ce” on review. 65 In fact, the Court cannot reweigh the eviden ce on review “even if the eviden ce weighs against the Com m issioner's decision.”66 “‘[N]o substantial evidence’ will be found only where there is a ‘conspicuous absence of credible choices’ or ‘no contrary m edical evidence.’”67 “‘Conflicts in the evidence are for the [ALJ ] and not the courts to resolve.’”68 “If the [ALJ ’s] findings are supported by substantial eviden ce, they m ust be affirm ed.”69 This is not a case in which there is a com plete lack of m edical evidence supporting the ALJ ’s finding. Instead, the ALJ ’s finding is supported by the findings of various physical exam inations and various m edical opinions. As the Magistrate J udge found: “The ALJ considered all of the objective and opinion evidence, in cluding Mr. Walters’ 63 Ripley , 67 F.3d at 555 (citing Richardson v. Perales, 40 2 U.S. 389, 40 1 (1971)). Id. (quotin g Spellm an v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)). 65 Id. (citing Spellm an, 1 F.3d at 360 ; Hay w ood v. Sullivan, 8 8 8 F.2d 1463, 1466 (5th Cir. 1989)). 66 N ew ton, 20 9 F.3d at 452. 67 Johnson v. Bow en , 864 F.2d 340 , 343-44 (5th Cir. 1988 ) (quoting Ham es v. Heckler, 70 7 F.2d 162, 164 (5th Cir. 1983)). 68 Jones v. Colvin, 638 F. App'x 30 0 , 30 2 (5th Cir. 20 16) (quotin g Selders v . Sullivan, 914 F.2d 614, 617 (5th Cir.1990 ); 42 U.S.C. § 40 5(g) (“The findings of the Com m ission er of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”)). 69 N ew ton, 20 9 F.3d at 452. 64 10 testim ony. Considering the treatm ent records, surgical history, and overall benign objective findings on physical exam inations since the surgery despite continued reports of pain, the ALJ assigned the RFC discussed[.]”70 The Court acknowledges the m edical records present inconsistent opinions concern ing observations of Plaintiff’s condition. As the Magistrate J udge sum m arized: The ALJ recognized that Dr. Calkins was a non-treating, non-exam ining m edical source, but noted that Dr. Calkins’ opinion was based upon a thorough review of the available m edical record and a com prehensive understanding of agency rules and regulations. The ALJ also found Dr. Calkins’ opinion to be internally consistent and supported by a reasonable explanation. Further, the ALJ found Dr. Calkins’ opinion was consisten t with Mr. Walters’ treatm ent records, including the fairly benign fin dings on physical exam in ation sin ce his surgery and the no m ore than m ild to m oderate findings on diagnostic testing of Mr. Walters’ lumbar spine and extrem ities. And indeed, Mr. Walters’ Decem ber 20 14 lum bar x-ray showed m ild to m oderate degenerative disc disease. His April 20 15 shoulder x-rays showed osteoarthritis and his April 20 15 hip x-rays showed no suspicious hip abnorm alities. There are no other post-surgery x-rays or MRIs in the record. Further, when Mr. Walters presented to the Lallie Kem p clin ic in Novem ber 20 15, February 20 16, an d J uly 20 16, he had a stable gait an d m uscle tone and strength in the bilateral upper and lower extrem ities was intact. When he presented at Lallie Kem p in October 20 15, a past m edical history of chronic back pain was noted, but he did not com plain of back pain an d com plained of right knee pain for three m onths that was m ildly relieved by a Norco regim en. He was found to have norm al range of m otion. On the other hand, when Mr. Walters visited Dr. Zerangue in April 20 15, J une 20 15, Septem ber 20 15, Decem ber 20 15, March 20 16, J une 20 16, and Septem ber 20 16, his gait was reported to be slow and stiff or antalgic. But there is no in dication in Dr. Zerangue’s m edical records that any testing of Mr. Walters’ range of m otion or strength was ever perform ed. 71 Conflicts in the eviden ce are for the ALJ to resolve, 72 and the Court is prohibited from reweighing the evidence on review. 73 The ALJ here resolved the conflicts by giving little to no weight to Dr. Zerangue’s opinion. However, the Court cannot say the ALJ ’s decision to do so rendered his decision unsupported by substantial evidence. As the 70 R. Doc. 22 at 24. Doc. 22 at 25. 72 Jones, 638 F. App'x at 30 2. 73 Ripley , 67 F.3d at 555. 71 R. 11 Magistrate J udge stated, “[t]he ALJ considered all of the objective and opin ion evidence, including Mr. Walters’ testim ony. Considering the treatm ent records, surgical history, and overall ben ign objective findings on physical exam inations since the surgery despite continued reports of pain, the ALJ assigned the RFC discussed above.”74 The “overall benign objective findin gs on physical exam in ations” include the findings of Dr. Mustiful, who exam ined Plaintiff three tim es in 20 15-20 16. Accordingly, given the high level of deference owed to the ALJ ’s findings on review, the Court’s finds the ALJ ’s RFC is supported by substantial eviden ce. B. Le gal Stan d ard The Court turns to whether the ALJ applied the proper legal standards. The first legal standard Plaintiff appears to argue was applied incorrectly concerns the weight given to the non-exam ining consultant’s opinion, which was greater than the weight given to the opinions of the two treating physicians and the exam ining consultant. “A treating physician’s opinion on the nature and severity of a patient's im pairm ent will be given controlling weight if it is ‘well-supported by m edically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence.’”75 “Even though the opinion an d diagnosis of a treating physician should be afforded considerable weight in determ in in g disability, ‘the ALJ has sole responsibility for determ ining a claim ant's disability status.’”76 “The ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.”77 “The treating physician’s opinions are not 74 R. Doc. 22 at 24. N ew ton, 20 9 F.3d at 455 (quoting Martinez v . Chater, 64 F.3d 172, 176 (5th Cir. 1995)). 76 Id. (quotin g Paul v. Shalala, 29 F.3d 20 8, 211 (5th Cir. 1994)). 77 Id. (internal brackets, quotations m arks, and citation om itted). 75 12 conclusive.”78 “[W]hen good cause is shown, less weight, little weight, or even no weight m ay be given to the physician's testim ony.”79 Good cause exceptions “include disregarding statem ents that are brief and conclusory, not supported by m edically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.”80 The Fifth Circuit has held that prior to declining to give a treatin g physician’s opinion controlling weight and “absent reliable m edical eviden ce from a treating or exam ining physician controverting the claim ant's treating specialist, an ALJ m ay reject the opinion of the treating physician only if the ALJ perform s a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. § 40 4.1527[(c)].”81 Those factors include: (1) the physician’s length of treatm ent of the claim ant, (2) the physician’s frequency of exam ination, (3) the nature and extent of the treatm ent relationship, (4) the support of the physician's opinion afforded by the m edical evidence of record, (5) the consistency of the opinion with the record as a whole; and (6) the specialization of the treating physician. 82 The crux of the parties’ dispute is whether an ALJ is alw ay s required to perform a detailed an alysis of the § 40 4.1527(c) factors prior to declining to give a treating physician’s opinion controlling weight. It is undisputed the ALJ in this case did not perform a detailed analysis of the six factors. Plaintiff argues an ALJ is always required to weigh the six § 40 4.1527(c) factors before giving less than substantial weight to a treating 78 Id. (citing Brow n v. Apfel, 192 F.3d 492, 496 (5th Cir.1999); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)). 79 My ers v . Apfel, 238 F.3d 617, 621 (5th Cir. 20 0 1) (quoting Greenspan v . Shalala, 38 F.3d 232, 237 (5th Cir. 1994)). 80 Id. (quotin g Greenspan , 38 F.3d at 237). 81 N ew ton, 20 9 F.3d at 453. 82 Id. at 456. 13 physician’s opinion. 83 Defendant argues a detailed analysis of the factors “is not required where there is ‘reliable m edical eviden ce from a treating or exam ining physician controverting the claim ant’s treating specialist’” or “where the ALJ has m ore than on e m edical opinion before him or her.”84 The Fifth Circuit has held in several decisions “that ALJ s are not required to consider the § 40 4.1527(c) factors before dism issing a treating physician’s opinion” if there is “com peting first-hand m edical evidence contradicting that opinion”85 or if there are com peting m edical opinions “of other physicians who have treated or exam ined the claim ant.”86 For instance, in Zim m erm an v. Astrue, the Fifth Circuit rejected the claim ant’s argum ent that the ALJ im properly disregarded his treating physician’s opin ion without considering the six factors where the treating physician’s testim ony was contradicted by “com peting first-hand m edical evidence.”87 “That evidence . . . included [a different exam in ing physician’s] exam in ation of [the plaintiff] that revealed full m otor strength, MRIs indicating only m ild problem s, records indicating that pain m edication was effective, and [the plaintiff’s] own testim ony about his everyday activities.”88 Sim ilarly, in Qualls v. Astrue, the Fifth Circuit held the ALJ did not err in declin ing to give the treating physician’s opinion controlling weight without perform ing the § 83 R. Doc. 23-1 at 3-4. R. Doc. 20 at 2 (quoting Carlton v. Berry hill, Civil Action No. 16-17599, 20 18 WL 550 636, at *15 (E.D. La. J an . 2, 20 18) (Report and Recom m endation ), adopted by 20 18 WL 5210 80 (E.D. La. J an . 22, 20 18)). 85 Jones, 638 F. App'x at 30 4 (citing N ew ton, 20 9 F.3d at 458 (“This is not a case where there is com peting first-hand m edical evidence and the ALJ finds as a factual m atter that one doctor's opinion is m ore wellfounded than another. Nor is this a case where the ALJ weighs the treating physician's opin ion on disability against the m edical opin ion of other physicians who have treated or exam ined the claim ant and have specific m edical bases for a contrary opin ion.”); Ham ilton-Provost v. Colvin , 60 5 F. App'x 233, 240 (5th Cir. 20 15); Qualls v. Astrue, 339 F. App’x 461, 466– 67 (5th Cir. 20 0 9); Zim m erm an v. Astrue, 288 F. App’x 931, 935 (5th Cir. 20 0 8)). 86 Zim m erm an, 28 8 F. App’x at 935. 87 Id. 88 Id. at 935– 36. 84 14 40 4.1527(c) factors analysis when the treatin g physician’s opinion was “in consistent with both his own clinical n otes and the opinions of the other exam ining physicians.”89 In this case, Dr. Zerangue’s opinion regarding Plaintiff’s ability to work is inconsistent with the first-hand observations of Dr. Mustiful, who exam ined Plaintiff three tim es during 20 15-20 16 at the Lallie Kem p Medical Center and each tim e reported fairly benign fin dings on physical exam inations. As the Magistrate J udge held, Dr. Zerangue’s opinion also is inconsistent with the “objective fin dings of consultative exam iner Dr. Loupe,”90 who, upon exam ination, found Plaintiff had full range of m otion in his lum bar spine, could get alm ost down to his ankles, had a negative Trendelenburg test, and was able to lift his right leg with the left foot on the ground and vice versa. 91 Dr. Zerangue’s opin ion also is “inconsistent” with both his “own clinical notes,” wherein he noted Plaintiff’s gradual im provem ents, and x-rays revealing no suspicious hip abnorm alities. 92 Further, Plaintiff’s own testim ony about the daily activities he can perform contradict Dr. Zerangue’s opinion. 93 Accordingly, the ALJ was not required to consider the § 40 4.1527(c) factors before “afford[ing] light weight”94 to Dr. Zerangue’s opinion. Plaintiff cites several additional cases in his m otion for sum m ary judgm ent and his supplem ental m em orandum . However, as the Magistrate J udge explained, the cases cited by Plaintiff are “distin guishable” from the instant case for the following reasons. 95 In 89 339 F. App'x at 466. R. Doc. 22 at 27. 91 Tr. 378-79. 92 Although it does not constitute first-hand m edical evidence, the Court finds it inform ative that Dr. Zerangue’s opin ion is also inconsistent with the opinion of Dr. Calkins, who exam ined the entirety of the m edical record and found Plaintiff capable of light work. 93 See Tr. 46-53. 94 Id. 16. 95 R. Doc. 22 at 29. 90 15 N ew ton, the ALJ was reversed for rejecting the findings of a treating specialist based on the testim ony of a non-exam ining m edical expert with no expertise whose opinion was not based on the full m edical record. 96 In this case, “the opinion of Dr. Calkins relied on by the ALJ was based on a review of the entire 20 14- 20 16 m edical record including the opinion and records of Dr. Zerangue.”97 In Hudson, the ALJ was reversed for relying on the opinion of an individual who was not a medical doctor. 98 In this case, Dr. Calkins had expertise and “Dr. Calkins is a m edical doctor.”99 In W arncke, the Fifth Circuit found the opinion of the reviewing physician was not inconsistent with the opinion of the treating physician because the treating physician’s opinion was m ade prior to the claim ant receiving a percutaneous stim ulator, which the claim ant testified eased his pain. 10 0 The Fifth Circuit explained: “[i]n situations like this one, when other eviden ce in the record supports a conclusion contrary to the opinion of an exam ining physician, the Secretary's regulations allow the ALJ to reject the opinion of the exam ining physician.”10 1 In this case, “[l]ike W arncke, m edical evidence and testim ony in the record here supports a conclusion contrary to the opinion of Dr. Zerangue.”10 2 The ALJ was not required to perform a detailed an alysis of the § 40 4.1527(c) factors before giving Dr. Zerangue’s opinion less or no weight. 10 3 Although Plaintiff’s argum ents and objections focus on the ALJ ’s assignm ent of less weight to Dr. Zerangue, his treating physician, the Court agrees with the Magistrate J udge that the ALJ ’s 96 20 9 F.3d at 457. R. Doc. 22 at 29. 98 Hudson v. Apfel, No. 3:99-CV-946-AH, 20 0 0 WL 547121, at *3 (N.D. Tex. May 3, 20 0 0 ). 99 R. Doc. 22 at 29. 10 0 619 F.2d 412, 416 (5th Cir. 1980 ). 10 1 Id. at 417. 10 2 R. Doc. 22 at 29. 10 3 See Jones, 638 F. App'x at 30 4. 97 16 consideration of the opinions of Dr. Loupe and Dr. Oberlander also was appropriate. With respect to Dr. Loupe, the ALJ found Dr. Loupe’s opinion that Plaintiff has “20 % im pairm ent to the body as a whole and 10 % im pairm ent to the right knee and is disabled from work” was not supported by the fairly norm al findings in Dr. Loupe’s own physical exam ination or by the findings of m ore recen t physical exam inations conducted by Dr. Mustiful. With respect to Dr. Oberlander, the ALJ gave “som e weight” to Dr. Oberlan der’s opinion that Plaintiff could not return to his past work because the ALJ found the record supported a finding that Plaintiff could not return to his truck driving work. 10 4 The Court now turns to Plaintiff’s argum ent that his past work history com pels a finding that his testim ony about his pain and functional lim itations is credible. The Court agrees with the Magistrate J udge that “Mr. Walters has not pointed to a case within this circuit im posing such a rule.”10 5 To the contrary, at least one district court in this circuit has held a claim ant’s work history is one factor to consider but does not, on its own, warrant a finding of substantial credibility. 10 6 In this case, although Plaintiff has a consistent past work history, this alone does not m ean that his testim ony m ust be accepted at face value when the m edical evidence substantially supports a contrary conclusion. The Court, having considered the record, the applicable law, relevant filings, and the Magistrate J udge’s Report and Recom m endation finds the Magistrate J udge’s findings of fact 10 4 Dr. Oberlander’s opinion in March 20 15 that Plaintiff should rem ain out of work is reasonably interpreted as referring to the kind of work Plaintiff had been perform in g. An opin ion that a person is com pletely unable to work is a finding of disability. Such opinions are not entitled to any special weight because disability is a determ ination for the Com m issioner to m ake. See 20 C.F.R. § 40 4.1527(d). 10 5 R. Doc. 22 at 29. 10 6 Carroll v. Colvin, Civil Action 15-687-J WD-RLB, 20 16 WL 7757275, at *12 (M.D. La. Dec. 29, 20 16). 17 and conclusions of law are correct and hereby approves the United States Magistrate J udge’s Report and Recom m endation and AD OPTS it as its opinion in this m atter. 10 7 CON CLU SION For the foregoing reasons, IT IS ORD ERED that Plaintiff’s m otion for sum m ary judgm ent 10 8 is D EN IED and Defendant’s m otion for sum m ary judgm ent 10 9 is GRAN TED . N e w Orle an s , Lo u is ian a, th is 20th d ay o f Au gu s t, 2 0 19 . _____________________ _______ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 10 7 R. Doc. 22. R. Doc. 17. 10 9 R. Doc. 18 . 10 8 18
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