Crockett v. Berryhill, No. 3:2016cv02780 - Document 26 (N.D. Tex. 2018)
Court Description: Memorandum Opinion and Order: The final decision of the Commissioner is AFFIRMED. (Ordered by Magistrate Judge Rebecca Rutherford on 3/12/2018) (axm)
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Crockett v. Berryhill Doc. 26 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION PREMELLA CROCKETT, Plaintiff, v. NANCY A. BERRYHILL, Acting Com m issioner of the Social Security Adm inistration, Defendant. § § § § § § § § § § § No. 3:16-CV-2780 -BT MEMORAN D U M OPIN ION AN D ORD ER Plaintiff Prem ella Crockett brings this action for judicial review of the final decision of the Acting Com m issioner of the Social Security Adm inistration (“Com m issioner”) denying her claim s for disability insurance benefits and supplem ental security incom e under Titles II and XVI of the Social Security Act, pursuant to Title 42, United States Code, Section 40 5(g). For the following reasons, the final decision of the Com m issioner is AFFIRMED. BACKGROU N D Plaintiff alleges that she is disabled due to arthritis and high blood pressure. Tr. 213 [ECF No. 16-7]. After her application was denied initially 1 Dockets.Justia.com and upon reconsideration, a hearing was held on August 12, 20 14, in Dallas, Texas, before an Adm inistrative Law J udge (the “ALJ ”). Tr. 32 [ECF No. 163]. Plaintiff was born on March 16, 1956 and was 58 years old at the tim e of the hearing. Tr. 36-37 [ECF No. 16-3]. Plaintiff has a high school education. Tr. 37 [ECF No. 16-3]. Plaintiff testified at her hearing that she takes care of her own personal care such as dressing, bathing, and groom ing without assistance from others. Tr. 49 [ECF No. 16-3]. Plaintiff also testified that she does the dishes and sm all loads of laundry. Tr. 49 & 54 [ECF No. 16-3]. Plaintiff has past work experience as a custom er service representative. Tr. 56 [ECF No. 16-3]. Plaintiff testified that in 20 14, she applied for custom er service jobs at Borden’s, Com cast, and Kroger’s. Tr. 50 [ECF No. 16-3]. Plaintiff also received unem ploym ent benefits from the state of Texas from J anuary 1, 20 12 through March 31, 20 13. Tr. 38 -39 [ECF No. 16-3]. Plaintiff was advised at her hearing that in order to receive unem ploym ent benefits, she m ust be able to work, but that in order to obtain disability benefits, she m ust be unable to work. Tr. 38 [ECF No. 163]. After this discussion, Plaintiff am ended her alleged onset date from April 1, 20 11 to April 1, 20 13. Tr. 18 & 39 [ECF No. 16-3]; Tr. 62 [ECF No. 16-4]. 2 On March 27, 20 15, the ALJ issued his decision finding that Plaintiff has not been under a disability within the m eaning of the Social Security Act from April 1, 20 13 through the date of his decision. Tr. 23 [ECF No. 163]. The ALJ determ ined that there were no clinical signs or laboratory findings to substantiate the existence of a severe im pairm ent. Tr. 21 [ECF No. 16-3]. Plaintiff appealed the ALJ ’s decision to the Appeals Council and on August 10 , 20 16, the Appeals Council affirm ed the ALJ ’s decision. Tr. 1 [ECF No. 16-3]. Plaintiff filed this action in federal district court on Septem ber 30 , 20 16. Com pl. [ECF No. 1]. LEGAL STAN D ARD S A claim ant m ust prove that she is disabled for purposes of the Social Security Act to be entitled to social security benefits. Leggett v. Chater, 67 F.3d 558, 563-64 (5th Cir. 1995); Abshire v. Bow en, 848 F.2d 638, 640 (5th Cir. 1988 ). The definition of disability under the Act is “the inability to engage in any substantial gainful activity by reason of any m edicallydeterm 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 m onths.” 42 U.S.C. § 423(d)(1)(A); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). 3 The Com m issioner utilizes a sequential five-step inquiry to determ ine whether a claim ant is disabled. Those steps are that: (1) an individual who is working and engaging in substantial gainful activity will not be found disabled, regardless of m edical findings; (2) an individual who does not have a “severe im pairm ent” will not be found to be disabled; (3) an individual who m eets or equals a listed im pairm ent in Appendix 1 of the regulations will be considered disabled without consideration of vocational factors; (4) if an individual is capable of perform ing the work the individual has done in the past, a finding of “not disabled” will be m ade; and (5) if an individual’s im pairm ent precludes the individual from perform ing the work the individual has done in the past, other factors including age, education, past work experience, and residual functional capacity m ust be considered to determ ine if other work can be perform ed. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing Villa v. Sullivan, 895 F.2d 10 19, 10 22 (5th Cir. 1990 ); 20 C.F.R. § 40 4.1520 (b)-(f)). The burden of proof lies with the claim ant to prove disability under the first four steps of the five-step inquiry. Leggett, 67 F.3d at 564. The burden of proof shifts to the Com m issioner at step five of the inquiry to prove that other work, aside from the claim ant’s past work, can be perform ed by the 4 claim ant. Bow ling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (citing Anderson v. Sullivan, 887 F.2d 630 , 632-33 (5th Cir. 1989)). The Com m issioner’s determ ination is afforded great deference. Leggett, 67 F.3d at 564. J udicial review of the Com m issioner’s findings is lim ited to whether the decision to deny benefits is supported by substantial evidence and to whether the proper legal standards were utilized. Greenspan, 38 F.3d at 236 (citing 42 U.S.C. §§ 40 5(g), 1383(c)(3)). An “ALJ ’s decision is not subject to reversal, even if there is substantial evidence in the record that would have supported the opposite conclusion, so long as substantial evidence supports the conclusion that was reached by the ALJ .” Corpany v. Colvin, 20 14 WL 1255316, at *9 (N.D. Tex. Mar. 26, 20 14) (citing Dollins v. Astrue, 20 0 9 WL 1542466, at *5 (N.D. Tex. J une 2, 20 0 9)). Substantial evidence is defined as “that which is relevant and sufficient for a reasonable m ind to accept as adequate to support a conclusion; it m ust be m ore than a scintilla, but it need not be a preponderance.” Leggett, 67 F.3d at 564. The reviewing court does “not reweigh the evidence, try the issues de novo, or substitute” its own judgm ent, but rather scrutinizes the record as a whole to determ ine whether substantial evidence is present. Greenspan, 38 F.3d at 236. 5 “Absent an error that affects the substantial rights of a party, adm inistrative proceedings do not require ‘procedural perfection.’” W ilder v. Colvin, 20 14 WL 2931884, at *5 (N.D. Tex. J une 30 , 20 14) (quoting Tay lor v. Astrue, 70 6 F.3d 60 0 , 60 3 (5th Cir. 20 12)). “The ALJ is not required to discuss every piece of evidence in the record nor m ust the ALJ follow form alistic rules of articulation.” Hunt v. Astrue, 20 13 WL 2392880 , at *7 (N.D. Tex. J une 3, 20 13) (citing Castillo v. Barnhart, 151 F. App’x 334, 335 (5th Cir. 20 0 5)); see also Falco v. Shalala, 27 F.3d 160 , 164 (5th Cir. 1994) (“That [the ALJ ] did not follow form alistic rules in her articulation com prom ises no aspect of fairness or accuracy that her process is designed to ensure.”). “Procedural errors affect the substantial rights of a claim ant only when they ‘cast into doubt the existence of substantial evidence to support the ALJ ’s decision.’” W ilder, 20 14 WL 2931884, at *5 (quoting Morris v. Bow en, 864 F.2d 333, 335 (5th Cir. 1988)). “Rem and is required only when there is a realistic possibility that the ALJ would have reached a different conclusion absent the procedural error.” Id. (citing January v. Astrue, 40 0 F. App’x 929, 933 (5th Cir. 20 10 )). 6 AN ALYSIS Plaintiff contends that the ALJ erroneously failed to find that Plaintiff had a m edically determ inable and severe im pairm ent, despite the fact that x-rays dem onstrated degenerative joint disease, clinical evidence upon exam ination showed tenderness, and Plaintiff was treated with naproxen, an anti-arthritis m edication. Pl.’s Br. 8 -9 [ECF No. 20 ]. Plaintiff argues that, although she incorrectly testified at her hearing that she was diagnosed with rheum atoid arthritis, her confusion about the precise diagnosis did not relieve the ALJ of his obligation to evaluate the effects of all of her m edically determ inative im pairm ents. Pl.’s Br. 9 [ECF No. 20 ]. Plaintiff argues that there is clear evidence that she has degenerative joint disease, also known as degenerative arthritis or osteoarthritis. Pl.’s Br. 9 [ECF No. 20 ]. Plaintiff further argues that, although the record only contains four m edical record exhibits, including som e pertaining to the tim e period prior to the am ended onset date of April 1, 20 13, this was due in part to her treating physician not subm itting m edical records and also in part due to Plaintiff not having sufficient funds for treatm ent. Pl.’s Br. 11 [ECF No. 20 ]. 7 Plaintiff argues that the ALJ also erred by failing to assist Plaintiff in obtaining a consultative exam ination to evaluate her work-related lim itations, given that she does not have m edical insurance. Pl.’s Br. 11 [ECF No. 20 ]. Plaintiff states that the agency’s m edical consultants lim ited Plaintiff to the perform ance of light work but found that there was insufficient evidence to determ ine the severity of her alleged arthritis. Pl.’s Br. 12 [ECF No. 20 ]. Plaintiff argues that the ALJ has an absolute obligation to develop a full and fair record and that it is reversible error for him not to order a consultative exam ination when it is necessary for him to m ake an inform ed decision. Pl.’s Br. 12-13 [ECF No. 20 ]. Plaintiff also points out that her counsel asked the ALJ to schedule a consultative exam ination to evaluate her rheum atoid arthritis and that the ALJ stated in his decision that he did not grant the request because he did not see sufficient evidence of rheum atoid arthritis, but this was based on Plaintiff’s m isunderstanding of her diagnosis. See Pl.’s Br. 14 [ECF No. 20 ]; Tr. 18 [ECF No. 16-3] & 255 [ECF No. 16-7]. Plaintiff argues that her testim ony, x-rays, prescribed m edications, and subjective com plaints all establish that she has arthritis, and that the nature of the error here can only be addressed by rem anding the case for further proceedings. Pl.’s Br. 14 [ECF No. 20 ]. 8 In response, the Com m issioner argues that the ALJ ’s decision shows that he thoroughly considered the m edical evidence and appropriately assessed Plaintiff’s im pairm ents. Def.’s Br. 4 [ECF No. 21]. The Com m issioner argues that, while Plaintiff contends that the objective m edical evidence shows that her arthritis was a m edically determ inable im pairm ent, the objective evidence that Plaintiff alleges that the ALJ ignored was specifically detailed by the ALJ in his decision. Def.’s Br. 4 [ECF No. 21]; Tr. 21-23 [ECF No. 16-3]. For exam ple, the Com m issioner argues that, while Plaintiff contends that an x-ray of her hip, one notation of tenderness during a physical exam ination, and a prescription for naproxen all proved that her arthritis was a m edically determ inable im pairm ent, the ALJ specifically noted that Plaintiff’s “single com plaint of unspecified chronic pain in J anuary 20 14,” and an x-ray of Plaintiff’s hip finding degenerative joint disease did not suffice to m eet the 12 m onth durational requirem ent for severity. Def.’s Br. 4 [ECF No. 21]; Tr. 22-23 [ECF No. 16-3]. The Com m issioner points out that Plaintiff does not dispute the ALJ ’s finding that her com plaint does not m eet the 12 m onth durational requirem ent. Def.’s Br. 4-5 [ECF No. 21]. 9 The Com m issioner further argues that, while Plaintiff contends that there is no dispute that the m edical evidence shows the existence of degenerative joint disease, with the exception of Plaintiff’s J anuary 20 14 com plaint of pain, the other m edical evidence only shows m inor pain com plaints and no physical exam ination findings. Def.’s Br. 5 [ECF No. 21]. The Com m issioner also argues that, while Plaintiff attem pts to explain the lack of objective evidence by her inability to afford treatm ent, Plaintiff testified that she received free or low cost treatm ent at the Dallas County hospital, Parkland Hospital, but com plained that it took a long tim e to get an appointm ent. Def.’s Br. 6 [ECF No. 21]; Tr. 46-47 [ECF No. 16-3]. The Com m issioner argues that, considering that m ost of Plaintiff’s m edical records were from Parkland Hospital, she was clearly able to be seen there, and regardless of the issue of ability to afford treatm ent, there is no evidence showing that Plaintiff is disabled with or without treatm ent. Def.’s Br. 6 [ECF No. 21]. The Com m issioner also argues that the ALJ did not err by denying Plaintiff’s request for a consultative exam ination, because there is no indication that the m edical evidence was inadequate or that he lacked sufficient facts to m ake a determ ination. Def.’s Br. 7-8 [ECF No. 21]. The Com m issioner argues that the dearth of evidence supporting Plaintiff’s 10 scattered com plaints of pain was not due to lack of treatm ent, but rather, Plaintiff did not have any pain com plaints at m ost of her m edical appointm ents. Def.’s Br. 8 [ECF No. 21]. In her reply, Plaintiff argues that she never stated that the ALJ ignored the evidence related to her degenerative arthritis, but rather that, despite acknowledging the evidence supporting the existence of degenerative arthritis, the treatm ent Plaintiff was able to receive through the free clinic, and Plaintiff’s descriptions of her lim itations, the ALJ erred by failing to find that this im pairm ent was “m edically determ inable” or “severe.” Reply 1-2 [ECF No. 22]. Plaintiff also argues that the deficiency in this case was not that Plaintiff was com pletely unable to obtain treatm ent, but rather that there was an absence of m edical opinion supporting the ALJ ’s conclusion that the evidence was insufficient to support m ore than m inim al work related lim itations. Reply 4 [ECF No. 22]. Plaintiff further argues that the ALJ ’s decision to deny the request for a consultative exam ination does not explain why the ALJ did not schedule a m edical expert to testify at the hearing, return the case record to the state agency for review of the updated record by a m edical consultant, or ask for additional inform ation from Plaintiff’s treating sources. Reply 5 [ECF No. 22]. 11 It is Plaintiff’s burden to dem onstrate that she has a m edically determ inable severe im pairm ent. See Leggett, 67 F.3d at 564. As the Com m issioner argues, the evidence shows that Plaintiff was able to obtain treatm ent from Parkland Hospital, but that Plaintiff had to wait to get an appointm ent. Therefore, the lack of treatm ent records supports the ALJ ’s conclusion that Plaintiff did not experience the severity of sym ptom s as alleged, otherwise, she would have sought additional treatm ent, whether or not the additional treatm ent required a wait. Furtherm ore, while Plaintiff argues that the lack of m edical records was also due, in part, to her physician’s failure to subm it the records, Plaintiff’s counsel sought additional tim e after the hearing to obtain additional m edical records, and Plaintiff does not explain why her counsel could not have sim ilarly obtained the m issing records. See Tr. 256 [ECF No. 16-7]; Banks v. Colvin, 20 14 WL 4660 847, at *6 n.4 (M.D. La. Sept. 17, 20 14) (“While the ALJ has a duty to fully and fairly develop the record, the ‘claim ant has the burden of proof in establishing his disability. If the claim ant does not provide sufficient evidence, the ALJ m ust m ake a decision based on the available evidence.’ . . . It was Plaintiff’s burden to prove he was disabled. At the request of Plaintiff’s attorney, the ALJ agreed to hold the record open for two 12 additional weeks after the hearing for Plaintiff to subm it these records, yet Plaintiff failed to provide these records. Considering this, the ALJ was under no obligation to obtain m ore m edical records from [plaintiff’s doctor].”) (quoting Anderson v. Sullivan, 887 F.2d 630 , 634 (5th Cir. 1989); citing Ripley v. Chafer, 67 F.3d 552, 557 (5th Cir. 1995))). Plaintiff testified at her hearing that in 20 14, she applied to custom er service jobs at Borden’s, Kroger’s, and Com cast, and also that she would have accepted any job offers. Tr. 38 & 50 [ECF No. 16-3]. Plaintiff also testified that she received unem ploym ent benefits from J anuary 1, 20 12 through March 31, 20 13, and am ended her initial onset date from April 1, 20 11 to April 1, 20 13, only after being advised at the hearing that, in order to obtain unem ploym ent benefits, Plaintiff m ust be able to work, and that in order to obtain disability benefits she m ust be unable to work. Tr. 38-39 [ECF No. 16-3]. This testim ony tends to support the ALJ ’s conclusion that Plaintiff was not in fact disabled and was able to work. In addition, as the Com m issioner argues, the ALJ was not required to order a consultative exam ination if he did not find that the m edical evidence was inadequate or that he lacked sufficient facts to m ake a determ ination. Furtherm ore, the Court notes that it was Plaintiff’s counsel who specifically requested a 13 consultative exam ination for the purpose of evaluating Plaintiff’s rheum atoid arthritis in a letter dated August 20 , 20 14. Tr. 255 [ECF No. 167]. With respect to Plaintiff’s contention that the state agency consultants did not find that the record contained sufficient evidence to determ ine the severity of her alleged arthritis, as the Com m issioner argues, the ALJ discussed the evidence that Plaintiff contends supports her allegation of degenerative arthritis, but determ ined that this evidence did not support a finding of severe im pairm ent. Moreover, the state agency consultants specifically stated that Plaintiff’s “allegations are not fully supported by [the evidence of record] on file.” Tr. 65 &8 9 [ECF No. 16-4]. As previously discussed, the Court’s task here is to scrutinize the record as a whole to determ ine whether substantial evidence is present, and the “ALJ ’s decision is not subject to reversal, even if there is substantial evidence in the record that would have supported the opposite conclusion, so long as substantial evidence supports the conclusion that was reached by the ALJ .” Corpany , 20 14 WL 1255316, at *9; Greenspan, 38 F.3d at 236. Furtherm ore, “[p]rocedural errors affect the substantial rights of a claim ant only when they ‘cast into doubt the existence of substantial evidence to support the ALJ ’s decision,’” and “[r]em and is required only when there is a 14 realistic possibility that the ALJ would have reached a different conclusion absent the procedural error.” W ilder, 20 14 WL 2931884, at *5 (quoting Morris, 8 64 F.2d at 335; citing January , 40 0 F. App’x at 933). The Court concludes that any alleged procedural errors do not cast into doubt the existence of substantial evidence to support the ALJ ’s decision. There is not a realistic possibility that the ALJ would have reached a different conclusion, and substantial evidence supports the ALJ ’s decision. CON CLU SION For the foregoing reasons, the final decision of the Com m issioner is AFFIRMED. SO ORDERED. March 12, 20 18. _____________________ REBECCA RUTHERFORD U.S. MAGISTRATE J UDGE 15
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