The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARIANA D. ELLIS CIVIL ACTION
VERSUS NO. 20-1274
ANDREW SAUL, SECTION: "B”(1)
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION
ORDER AND REASONS
Before the Court are the Magistrate Judge’s Report and
Recommendation (Rec. Doc. 26) on petitioner Dariana D. Ellis’
(“Ellis”) and respondent, Andrew Saul, Commissioner of the Social
Security Administration’s (“Commissioner”) cross motions for
summary judgment (Rec. Docs. 18, 25); and petitioner’s objections
to the Report and Recommendation. Rec. Doc. 27 at 1. For the
reasons discussed below,
IT IS ORDERED that petitioner’s objections are overruled and
the Magistrate Judge’s Report and Recommendation are ADOPTED as
the opinion of the court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner seeks judicial review of an adverse decision made
by the Social Security Administration regarding Ms. Ellis’
eligibility for social security benefits. Rec. Doc. 1. On June 18,
2011, she filed an application for disability insurance benefits,
alleging a disability onset date of April 25, 2011. Rec Doc 25-1
at 1. On June 26, 2012, the administrative law judge (“ALJ”) issued
a decision in favor of petitioner and found her disabled as of
April 25, 2011 pursuant to a continuing disability review. Id. at
2. In 2016, the Commissioner determined that Ms. Ellis’ disability
ceased as of March 22, 2016 in view of her apparent medical
improvement since her initial application for disability in 2011.
Id.
On April 19, 2011, Ellis presented at the Southern Maine
Medical Center with nausea, vomiting and intermittently severe
left upper quadrant pain. Rec. Doc. 26 at 2. After being
discharged, Ellis returned to the emergency room with ongoing pain.
Rec. Doc. 26 at 2. A CT scan was performed, showing a large wedge-
shaped defect in the spleen consistent with infarcts and
abnormality of the left ventricle. Id. at 2-3.
Ms. Ellis underwent open heart surgery. See id at 3. On April
25 and April 27, 2011, she received a left heart catheterization,
coronary arteriography, resection of LV diverticulum, and closure
of PFO. Id. Following surgery, her physical and mental condition
deteriorated. Id. at 6-8.
On May 8, 2012, licensed clinical social worker Marianne
Donahue reported that she had provided counseling to Ms. Ellis
since November 2011. Id. at 6. It was noted at this time that Ms.
Ellis was unable to work due to her mental impairments, including
depression and anxiety. See id. at 5-6.
On May 9, 2012, Dr. Magile-Quinn performed a physical capacity
evaluation of the petitioner. Id. at 7. She concluded that Ms.
Ellis possessed a limited capacity to stand, walk, sit, and lift
items. Id. Dr. Magile-Quinn diagnosed Ellis’ unremitting chest
wall pain as costochondritis. Id.
Ms. Ellis reported worsened mental and physical symptoms
following the cessation of her benefits. Id. at 3-6. In April 13,
2016, Ellis reported to having intermittent and sporadic chest
pain. Id. at 11-20. Meetings with Raymond Martinez, Licensed
Professional Counselor, and Dr. Wasseff show instances where Ms.
Ellis’ mental condition was poor. Id. at 11-22.
However, Ms. Ellis’ medical history shows that her
intermittent chest pain was not cardiac in nature and was more
likely caused by anxiety. Id. at 17-20. Ms. Ellis’ medical history
also indicates her mental disabilities had generally improved over
time, while showing outlier sessions of regression. Id. at 11-24.1
Following the cessation determination, Ms. Ellis requested a
hearing before the ALJ to review the Commissioner’s decision. Id.
at 25. At her hearing, the ALJ determined that Ms. Ellis suffered
from the following medically determinable impairments since her
benefits had ceased: obesity, costochondritis, status-post splenic
infarct, major depressive disorder, and post-traumatic stress
1 The Magistrate Judge provides an in-depth summary of petitioner’s complete
medical history in their Report and Recommendation. See Rec. Doc. 26 at 2-25.
disorder. Id. However, the ALJ found that these impairments had
improved to the point where Ms. Ellis was no longer considered
disabled according to the Social Security Administration. Id. The
ALJ consulted a vocational expert, who testified that Ellis was
able to perform a significant number of jobs in the national
economy. Id. at 26.
On November 5 2020, the petitioner filed a motion for summary
judgment, arguing that the ALJ’s decision was arbitrary, contrary
to law and unsupported by substantial evidence. Rec. Doc. 18 at 1.
On February 1 2021, the Commissioner filed a cross-motion for
summary judgment, arguing that the Commissioner applied the
correct legal standards and substantial evidence supported the
decision to end petitioner’s disability benefits. Rec. Doc. 25 at
1. Both motions were referred to the Magistrate Judge to make a
report and recommendation to this Court.
On April 20 2021, the Magistrate Judge ruled in favor of the
Commissioner, finding that the ALJ applied the correct legal
standards and gave appropriate weight to the findings of Mr.
Martinez. Rec. Doc. 26 at 28-38.
LAW AND ANALYSIS
A. Standard of Review
Summary judgment is appropriate if the record shows there is
no genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law. Spellman v. Shalala, 1
F.3d 357, 360 (5th Cir. 1993) (citing Fed. R. Civ. P. 56(c)). The
party moving for summary judgment has the initial burden of
identifying portions of the pleadings, filed discovery and
affidavits which demonstrate a lack of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If a
movant carries its burden, the burden then shifts to the non-
movant to show that summary judgment should not be granted. Id. at
324–325. While we must “review the facts drawing all inferences
most favorable to the party opposing the motion,” that party cannot
use only allegations or denials in its pleadings to meet its
burden; they must set forth specific facts showing a genuine issue
for trial exists. Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d
577, 578 (5th Cir.1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256–57 (1986); See Spellman, 1 F.3d at 360.
This Court’s function on review of the Secretary's denial of
disability benefits is to determine whether substantial evidence
exists in the record as a whole to support the Secretary's factual
findings. Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). If
the Secretary's findings are supported by substantial evidence,
they are conclusive and must be affirmed. Myers v. Apfel, 238 F.3d
617, 619 (5th Cir. 2001) (citing 42 U.S.C. § 405(g)); Richardson
v. Perales, 402 U.S. 389 (1971). “Conflicts in the evidence are
for the [Commissioner] and not the courts to resolve.” Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)(quoting Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir.1990)). When applying the
substantial evidence standard, courts are required to scrutinize
the record in determining whether such evidence is present, but
may not reweigh the evidence, try the issues de novo, or substitute
their own judgment for that of the Secretary. Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir.1994) (citing Haywood v. Sullivan, 888
F.2d 1463, 1466 (5th Cir.1989); See Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999). However, if the Commissioner's findings are
supported by substantial evidence, they must be affirmed. Martinez
v. Chater, 64 F.3d 172, 173 (5th Cir.1995).
Ellis raises four objections to the report and recommendation
pertaining to the sufficiency of the Magistrate Judge’s review of
the ALJ’s decision and the ALJ’s deference to LPC Martinez’
opinion. See Rec. Doc. 27-1. The objections are addressed in two
parts: (1) examining how the Magistrate Judge’s Report and
Recommendation performed a legitimate review of the ALJ’s
decision, before (2) discussing how the Report and Recommendation
properly concluded that the ALJ gave proper deference to LPC
Martinez’ opinion.
B. FINDINGS
Pursuant to the express authorization of Congress, the Social
Security Administration has created a five-step sequential
evaluation process to determine whether an individual is disabled:
(1) If the petitioner is presently working, a finding of “not
disabled” must be made; (2) if the petitioner does not have a
“severe impairment” or combination of impairments, she will not be
found disabled; (3) if the petitioner has an impairment that meets
or equals an impairment listed in Appendix 1 of the Regulations,
disability is presumed and benefits are awarded; (4) if the
petitioner is capable of performing past relevant work, a finding
of “not disabled” must be made; and (5) if the petitioner’s
impairment prevents her from doing any other substantial gainful
activity, taking into consideration her age, education, past work
experience and residual functional capacity, she will be found
disabled. Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992)
(citing 20 C.F.R. §§ 404.1520, 416.920); See Wren v. Sullivan, 925
F.2d 123, 125 (5th Cir.1991). The petitioner bears the burden of
proof on the first four steps and the burden shifts to the
Commissioner for the fifth step. Newton, 209 F.3d at 453.
If an individual is found to be disabled, an individual’s
disability benefits may be terminated if the trier of fact finds
substantial evidence supports (1) petitioner’s medical improvement
in the individual’s impairment or combination of impairments
related to the individual’s ability to work. and (2) her ability
to engage in substantial gainful activity. Griego v. Sullivan, 940
F.2d 942, 944 (5th Cir. 1991)(citing 20 C.F.R. § 404.1594(b)(3)).
Medical improvement is defined as “any decrease in the medical
severity of [petitioner’s] impairment(s) which was present at the
time of the most recent favorable medical decision that [the
petitioner was] disabled or continued to be disabled.” See id. at
944 (citing 20 C.F.R. § 404.1594(b)(1)). The petitioner must then
establish a decrease in medical severity by offering evidence based
on the “symptoms, signs, and/or laboratory findings associated
with petitioner’s impairment(s).” See Valdez v. Colvin, No. CIV.A.
SA-13-CA-140, 2013 WL 6418973, at *2 (W.D. Tex. Dec. 6, 2013).
Medical improvement is related to the individual’s ability to work
when there has also been an increase in petitioner’s “functional
capacity to do work activities.” Id. Lastly, petitioner must
establish that the petitioner’s impairments do not “prevent
(petitioner) from doing past relevant work.” Leggett v. Chater, 67
F.3d 558, 564 (5th Cir. 1995).
Petitioner asserts that both the Commissioner and the Report
and Recommendation failed to use signs, symptoms and medical
findings to assess the change in her physical and mental
impairments from the CPD to her current condition. Rec. Doc. 27-1
at 3.
Regarding her physical impairments, Ellis claims that
“nothing in her new file shows improvement of different symptoms
or decreased medical findings. See Rec. Doc. 27-1 at 3. However,
this contention ignores the Magistrate Judge’s review of the ALJ’s
CPD and termination of benefits determination. Rec. Doc. 26 at 33.
The Report and Recommendation explained how the ALJ compared
evidence used in Ellis’ CPD, including Dr. Magile-Quinn’s findings
of petitioner’s occupational limitations, to Ellis’ subsequent
medical records in determining whether to terminate her benefits.
Id. Moreover, the Magistrate Judge cited to specific instances in
the record where Ellis' reported improvement in her chest pain,
including large gaps in treatment where Ellis did not complain of
pain and echocardiograms that consistently showed her palpitations
were not cardiac in nature. Id. Therefore, Ellis’ concerns about
her symptoms do not outweigh the evidence that her intermittent
chest pain was caused by psychological conditions such as anxiety,
and had improved since her CPD. Id.
Petitioner objects that both the Magistrate Judge and
Commissioner’s brief failed to compare the signs, symptoms and
laboratory findings at the time of the CPD to her current mental
conditions’ signs and symptoms. See Rec. Doc. 27-1 at 4. Within
this argument, petitioner asserts that new evidence from her visits
to Dr. Wasseff and LPC Martinez reveal her depression has worsened.
Id.
As petitioner correctly notes, depression by its nature
fluctuates in terms of its symptoms and the severity of those
symptoms. See id. at 5. Even so, petitioner’s contention fails on
its merits because of the multitude of evidence the Report and
Recommendation cites to the contrary. Rec. Doc. 26 at 34. It notes
that both LPC Martinez and Dr. Wassef reported that Ellis’
condition improved from June to December 2017. Id. at 35. While
petitioner reported being frustrated about medical issues from
March to May 2018 to Dr. Wassef, the petitioner consistently
reported she was doing “ok” during the same period. Id. Her mental
condition fluctuated from 2011 to 2016 but substantial evidence in
the record supports the Report and Recommendation’s finding that
her mental condition had notably improved. Id.
The ALJ does not have untethered authority to disregard the
opinion of a treating physician. See Newton, 209 F.3d. at 453.
[A]bsent 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). 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. § 404.1512(e).
Id. The Fifth Circuit in Newton explained that “absent reliable
medical evidence from a treating or examining physician,” the ALJ
can “only” reject the opinion of a treating physician if they
provide a good reason for the weight given to the treating source's
opinion. Id.
However, if the ALJ determines a treating physician's
opinions are “inconclusive” or “otherwise inadequate to receive
controlling weight,” the ALJ must seek additional evidence or
clarification from the treating source, “absent other
[contravening] medical opinion evidence based on personal
examination or treatment of the [petitioner].” Id.; Horton v.
Berryhill, No. CV H-18-3341, 2020 WL 1321820, at *4 (S.D. Tex.
Feb. 27, 2020), report and recommendation adopted, No. CV H-18-
3341, 2020 WL 1321817 (S.D. Tex. Mar. 19, 2020)(finding ALJ was
not obligated to have agency consultants review additional medical
records to assess RFC).
Social Security regulations define what is considered a
“medical source” and “nonmedical source” in the context of
assessing an individual’s disability claim. See 20 CFR 404.1502
and 416.902. The Social Security's regulations require the ALJ to
consider any evidence which tends to support or contradict a
medical opinion, including opinions of “nonmedical” sources. See
SSR 06-03P, 2006 WL 2329939 (Aug. 9, 2006).
Social Security Ruling, SSR 06-03 endorses this approach,
stating that “information, including opinions, from “other
sources”—both medical sources and “non-medical sources”—can be
important in this regard. Id. However, nonmedical sources cannot
give medical opinions of controlling weight, 20 CFR 404.1527(d)
and 416.927(d), or be considered treating sources as defined in 20
CFR 404.1502 and 416.902. See id. “Counselors” are explicitly
listed under 20 C.F.R. 204.1502(e)(2) as a “nonmedical source.”2
When assessing the weight of either a medical or nonmedical
opinion, 404.1527(c) provides a series of factors to consider
including: examining their relationship generally, the length,
nature and extent of treatment, supportability, consistency, and
specialization. 20 C.F.R. 404.1527(c)(1-6); 20 C.F.R.
404.1527(f)(1).
In Horton, the court reviewed petitioner’s appeal of the ALJ’s
decision to deny petitioner disability benefits. Horton, 2020 WL
1321820, at *1. Horton argued on appeal that the ALJ did not give
proper weight to the nonmedical source opinion of her social
worker, who testified at the hearing. The Horton court explained
how the opinion nonmedical sources are assessed:
Under 20 C.F.R. § 404.1527(f), opinions from nonmedical
sources are weighed using the same factors applicable to
medical opinions. 20 C.F.R. § 404.1527(f) (2017) (stating
that, for all disability applications filed before March 27,
2017, the factors listed in 20 C.F.R. § 404.1527(c)(1) through
(c)(6) apply in weighing nonmedical-source opinions). “[N]ot
every factor for weighing opinion evidence will apply in every
case because the evaluation of an opinion from ... a
nonmedical source depends on the particular facts in each
case.”
2 (e) Nonmedical source means a source of evidence who is not a medical
source. This includes, but is not limited to:
(1) You;
(2) Educational personnel (for example, school teachers, counselors, early
intervention team members, developmental center workers, and daycare center
workers);
(3) Public and private social welfare agency personnel; and
(4) Family members, caregivers, friends, neighbors, employers, and clergy.
20 C.F.R. § 404.1502(e)
Id. at *5 (internal citation and quotations omitted). Petitioner
asserts that the ALJ failed to give LPC Martinez’ opinion proper
deference, and therefore constituted an “impermissible
substitution of the ALJ’s lay opinions for the opinions of a
medical professional.” Rec. Doc. 27-1 at 7. This assertion fails
to consider Social Security Administration regulations that
expressly articulate how LPCs like Martinez are considered
nonmedical sources and therefore cannot be considered as “treating
physicians.” 20 C.F.R. 204.1502(e)(2). Despite Ellis’ claims to
the contrary, the ALJ gave justifications for not giving Martinez’
nonmedical opinion “controlling weight,” despite not needing to
because of Martinez’ non-treating source status. See Rec. Doc. 26
at 35-37.
Though not required, the ALJ analyzed Martinez’ opinion using
the same factors that would be applied to any other “medical
source,” despite the existence of “reliable medical evidence from
a treating or examining physician[s] elsewhere.”3 Horton, 2020 WL
1321820, at *5
The Report and Recommendation noted that ALJ found that the
limited frequency and length of time in which Martinez treated
3 The record contains the opinion of Dr. Wasseff, M.D., a psychiatry
specialist considered to be a medical source under the Act.
Ellis further weighed against imposing controlling weight on
Martinez’ opinion.4 Rec. Doc. 26 at 36.
The Magistrate Judge also found that Martinez’ September 2016
report, which Ellis had used to support the claim that her mental
condition has regressed, was not supported by the treatment record
as a whole. Id. The Magistrate Judge concluded that the ALJ did
not insert their lay opinion in lieu of LPC Martinez’ because of
the substantial evidence supporting this position. Id.
Martinez was a nonmedical source. 20 C.F.R. 204.1502(e)(2).
Much like how ALJ did not have to give justification for rejecting
LPC Martinez’ opinion to begin with, the ALJ did not need to
clarify or seek additional evidence from LPC Martinez because of
his nonmedical source status. See Newton, 209 F.3d at 453. The ALJ
did not create an “evidentiary void” or impart their own lay
opinions in Ms. Ellis’ case because, as the Commissioner notes in
his initial report, and the Magistrate Judge in her Report and
Recommendation, that the treatment records of Dr. Wassef, a medical
source, and the records of Martinez, a nonmedical source, were
both used to varying weights in ALJ’s decision to terminate Ms.
Ellis’ benefits. Rec. Doc. 26 at 36.
New Orleans, Louisiana this 23rd day of August, 2021
4 How long the source has known and how frequently the source has seen the
individual are sub factors considered under 20 C.F.R. § 404.1527(c)(2).
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE