Stallings v. Berryhill

IN THE UNITED STATES DISTRICT COURT October 30, 2019

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

VICTORIA DIVISION

LISA LYNETTE STALLINGS, §

§

Plaintiff, §

VS. § CIVIL NO. 6:18-CV-00006

§

NANCY A. BERRYHILL, §

§

Defendant. §

MEMORANDUM AND ORDER

This is a civil action seeking judicial review of an administrative decision of

Social Security benefits. The Court is in receipt of Plaintiff Lisa Lynette Stallings’

(“Stallings”) Complaint, Dkt. No. 1; Original Brief and Incorporated Memorandum

in Support of Motion for Summary Judgment, Dkt. No. 11; Motion for Summary

Judgment, Dkt. No. 12 and her Reply Brief, Dkt. No. 18. The Court is in receipt of

Defendant Commissioner of the Social Security Administration, (“Commissioner”)

Answer to the Complaint, Dkt. No. 6, and Cross Motion for Summary Judgment,

Dkt. No. 15. The Court is also in receipt of the Administrative Transcript/Record,

Dkt. No. 7.

I. Background

Stallings seeks judicial review of a final administrative decision of the

Commissioner of the Social Security Administration (“SSA”) pursuant to 42 U.S.C. §

405(g).

Stallings filed an application June 19, 2014 with the Social Security

Administration applying for Social Security Disability Insurance under Title II of

the Social Security Act and for Supplemental Security Income benefits under Title

XVI of the same act. Tr. 162, 221. Both applications claimed Stallings became

disabled on February 11, 2014. Id. She claimed she is disabled due to carpal tunnel,

arthritis, depression, anxiety, bursitis, foot pain, hearing loss, knee pain and spine

issues. Tr. 357. At the time of her alleged disability occurrence, Stallings was 44

years old with a tenth grade education level. Tr. 233, 358.

Stallings’ application was denied on October 8, 2014 and then again in

reconsideration on February 4, 2015. Tr. 221. Administrative Law Judge (“ALJ”)

Gary J. Suttles held a hearing in the case on May 20, 2016. Tr. 100. In a decision

dated June 21, 2016 (incorrectly stamped June 21, 2015) the Administrative Law

Judge denied Stallings’ application, finding she could perform some light jobs in the

national economy. Tr. 234-35. After submitting additional evidence, Stallings

appealed to the Appeals Council (“AC”) and had her appeal denied on September 25,

2017. Tr. 1-3 The AC found that there was not a reasonable probability that the

additional evidence would change the outcome of the decision. Id. Stallings filed this

case before this Court and incorporated all documentation into the transcript. Dkt.

No. 11 at 3.

a. Hearing

At the hearing, the ALJ inquired for an hour and twenty minutes into the

nature of Stallings’ claims. A Vocational Expert also appeared and testified. Tr. 100.

Most of the issues discussed at the hearing were noted in the ALJ’s decision but the

Court will take note of several points of dispute regarding the ALJ’s inquiry and

Stalling’s submission of evidence:

i. Outstanding Records

At the beginning of the hearing the ALJ inquired into the completeness of the

medical records. Tr. 102-03. The representative for Stallings informed the ALJ that

there were outstanding records. Id. The ALJ gave Stallings two weeks to complete

the record. Id.

ii. Medical commentary

During the hearing the ALJ opined on the quality of the medical advice

Stallings had received:

ALJ: What would contradict the MRI results?

ATTY: No. The MRI results say severe spinal stenosis, Your Honor,

and as you know with the listings, severe spinal stenosis -- our argument

actually is it meets listing level due to the severity of the --

ALJ: Not the – well, you’re totally wrong, Counsel. Everybody has

severe stenosis of some degree.

ATTY: Everybody has severe stenosis?

ALJ: And just because you have severe stenosis, that gets you step –

that gets you to step two in the evaluation process. You got a severe

impairment. Okay. I’ll grant it. She’s got a severe back impairment. That’s

about all that gets you. Okay? That doesn’t meet your listing at all. I don’t

know where you get a listing from out of that, but if you look at what the MRI

actually says, it doesn’t indicate there’s any impingement on the nerve root

nor is there any herniation. This says minimal degenerative changes. A

protrusion.

ATTY: Several, yes, and narrowing of the spine. Yes. I see. I read it,

Your Honor.

ALJ: Okay. Wonderful. All I’m saying, ma’am, is with that kind of

result if you let anybody touch you without getting a second opinion, I would

consider that doctor to be on the verge of malpractice, the one that

recommends surgery with this MRI. That’s all I’m telling you. You do what

you want.

Tr. 120-123.

b. Late Medical Records

The ALJ and a representative for Stallings agreed at the hearing on May 20,

2016 to keep the record open for two weeks for Stallings to submit additional

medical records. Tr. 102-103. Two weeks after the hearing Stallings’ attorneys filed

a post hearing memorandum challenging the findings at the hearing. Tr. 311-31.

The memorandum did not provide and did not mention the outstanding medical

records. Id. The ALJ issued his written decision on June 21, 2016, one month after

the hearing. Tr. 218. The additional records were eventually added to Stallings

record and considered by the Appeals Council during its review. Tr. 2.

c. Decision

In his June 21, 2016 decision the ALJ concluded Stallings was not disabled

within the meaning of the Social Security Act. Tr. 221 In a 15-page decision the ALJ

reviewed the five-step process required by statute to render his decision. Tr. 222.

The ALJ held that the claimant met the insured status requirements required by

the Social Security Act; that Stallings had not engaged in substantial gainful

activity since February 11, 2014; and that Stallings had severe impairments of

osteoarthritis of the feet, legs and back, obesity, depression, and anxiety. Tr. 224.

The ALJ concluded the impairments of hearing loss and carpal tunnel were not

severe under the regulations. Tr. 224. The ALJ held that Stallings did not have a

combination of impairments that meets one of the proscribed categories of

impairments under “20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Tr. 224. This holding was

supported by a finding that Stallings did not have an inability to ambulate or

inability to perform fine and gross movements effectively that would support such

categories. Tr. 224-25.

The ALJ considered each impairment in turn and provided the legal framework

which guided his decision. Tr. 224-26. Specifically, the ALJ found “the records do

not document any neurological defects, significant musculoskeletal abnormalities,

or any serious dysfunctioning of the bodily organs that would preclude a level of

work as delineated in this decision.” Tr. 225. In the final step, the ALJ held: “After

careful consideration of the entire record, I find that the claimant has the residual

functional capacity to perform light work as defined in 20 CFR 404.1567(b) and

416.967(b), lifting a maximum of 20 pounds and frequently 10 pounds. She can

stand and walk 4 to 8 hours each and sit 6 to 8 hours for a full 8-hour day.” Tr. 227.

The decision went on to note specific physical abilities the ALJ determined Stallings

to be capable of. In support of those conclusions the ALJ outlined the legal

framework he employed and how the medical records fit into that framework. Tr.

227-28. “After careful consideration of the evidence, I find that the claimant’s

medically determinable impairments could reasonably be expected to cause alleged

symptoms; however the claimant’s statements concerning the intensity, persistence

and limiting effects of these symptoms are not entirely consistent with the medical

evidence and other evidence in the record for the reasons explained in this decision.”

Tr. 228. The ALJ then listed relevant medical events from the medical record. Tr.

228-32. The ALJ weighed the opinions of examining and treating doctors. Tr. 232.

The ALJ gave “great weight” to opinions he thought were consistent with the

evidence and “little weight” to those opinions he thought were inconsistent with the

medical records. Tr. 230-33 The opinions of doctors Jeanine Kwun (“Kwun”), Patty

Rowley (“Rowley”), Susan Thompson (“Thompson”), Arun Jain (“Jain”) and Narvin

Curtis (“Curtis”) were given great weight, Tr. 232, while the opinions of Doctor

Followwill (“Followwill”) and treating physician Neil Campbell (“Campbell”) were

given little weight. Tr. 232-33 Doctor Raul Capitaine’s (“Capitaine”) assessment was

given moderate weight. Tr. 232-33. The ALJ held that considering the age,

education, work experience and functional capacity of Stallings, there are jobs that

exist in significant numbers in the national economy that she can perform. Tr. 234.

Based on the testimony of the vocational expert, the ALJ stated those jobs include

mailroom clerk (non-postal), price marker, and electronics worker. Tr. 234. The ALJ

denied both claims for disability insurance benefits and supplemental security

income. Tr. 235. The ALJ did not consider the objections raised by Stalling’s

representative in the post-hearing memorandum on the grounds that they were

moot because the objections addressed a vocational expert who did not testify at the

hearing. Tr. 221.

II. Arguments

Stallings moved for summary judgment arguing she is entitled to Social Security

benefits as a matter of law or that the case should be remanded for further

consideration. Dkt. Nos. 11, 12. Her motion presents two general issues: 1) the ALJ

decision did not comply with the substantial evidence standard or the proper

procedural standard and the ALJ dismissed or ignored portions of claimants

medical records favorable to a finding of disability and did not compare the medical

facts to the listings rendering an opinion so devoid of reference that it did not

satisfy the holding of Audler v. Astrue, 501 F. 3d. 466 (5th Cir. 2007). 2) Under 20

C.F.R. § 404.970(b), the new evidence supplied to the Appeals Council is reviewable

by this Court under Fifth Circuit jurisprudence; further, the ALJ’s disability

determination is not supported by substantial evidence because the ALJ failed to

develop the record fully before issuing a decision. Dkt. No. 11 at 2.

The Commissioner made a cross motion for summary judgment. Dkt. No. 15. The

Commissioner argues the ALJ’s decision is supported by substantial evidence as

shown by a decision that made a thorough review of the facts. Id. The

Commissioner also argues the ALJ complied with all governing legal authorities

and reviewed the whole record before him. Id. at 5. Further, the Commissioner

argues the ALJ properly developed the record and that the additional evidence

submitted by Stallings does not provide reason to change the decision. Id. at 18.

The parties generally agree that this Court’s review concerns whether

substantial evidence supports the ALJ’s decision and whether the proper legal

standard was used in evaluating the evidence. Dkt. Nos. 15-1 at 1, 18 at 1.

a. Weight of reviewing physicians

Stallings argues the ALJ put too much weight on the outdated opinions of

medical reviewers who never met the claimant and did not give credible explanation

for a limited weight given to examining doctors and treating doctors. Dkt. No. 11 at

6. Stallings cites Audler v. Astrue to support her position. Id.; Audler v. Astrue, 501

F.3d 446, 448 (5th Cir. 2007). Stallings returns to this argument later in her motion

and cites Kneeland v. Berryhill for the proposition that failure to address or even

mention treating physicians can lead to an ALJ decision that is not substantially

supported by the evidence. Dkt. No. 11 at 10; Kneeland v. Berryhill, 850 F.3d 749,

759 (5th Cir. 2017). Stallings argues the ALJ played doctor in the hearing and failed

to meaningfully take into account the surgical advisory of a treating physician. Dkt.

No. 11 at 10-11.

The Commissioner counters that state medical consultants are highly

qualified physicians and can be given the weight of expert medical opinions. Dkt.

No. 15-1 at 6. The Commissioner argues that the ALJ gave weight to the doctors’

opinions based on the evidence in the record. Id. Additionally, the Commissioner

argues the medical records that the ALJ reviewed which were dated after the

opinions of the State agency medical consultants indicate Stallings impairments

were “essentially the same as noted at the time that these reviewing physicians

reviewed the records.” Id. Finally, the Commissioner argues the ALJ did not rely

solely on the state medical consultants and instead gave significant weight to the

2014 opinion of treating doctor Campbell, the 2015 consultative examination by

Jain and the opinion of Capitaine. Dkt. No. 15-1 at 7.

b. Analysis of medical records

Stallings argues the ALJ conducted a selective review of the record. Dkt. No.

6. She lists a series of medical concerns that Stallings believes were not given

sufficient consideration under the appropriate legal framework. Id. at 7. Stallings

argues some conditions were not addressed at all. Id. Her argument focuses on

medical evidence of claimant’s back issues that she argues was not considered. Id.

at 8. “[E]ven though the ALJ stated he would assign spinal stenosis as a severe

impairment, it did not appear listed as one in his decision; osteoarthritis of the

spine is not the same condition as spinal stenosis.” Id. Citing Frank v. Barnhart,

Stallings argues that remand is the only remedy because the correct legal analysis

was not applied to the back issues and the ALJ “refused to hear any analysis and

did not perform one.” Id. at 9; Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003).

Stallings also argues that the mental health opinions were improperly analyzed and

not given consideration under the appropriate listing. Id. She argues the ALJ gave

inappropriate weight to his own understanding of Stallings’ activities and not

enough weight to the medical opinions. Id. at 10. Specifically, she states that the

ALJ did not address Listing 1.02 and did not sufficiently analyze Listing 1.04, 12.04

and 12.06. Id. In support of these arguments Stallings cites Audler and Kneeland.

Id. Audler, 501 F.3d at 448; Kneeland, 850 F.3d at 759.

In the response and cross motion, the Commissioner argues that Stallings

mischaracterizes the ALJ’s decision. Dkt. No. 15-1 at 7. The Commissioner argues

that the ALJ is not required to discuss every piece of evidence and there will always

be some evidence that is not addressed in such a voluminous record. Id. The

Commissioner argues the substantial evidence on the record supports the ALJ’s

decision. Id. The Commissioner argues the ALJ considered all relevant impairments

and to the extent the ALJ did not consider listed impairments, the Commissioner

argues that such error is harmless because claimant does not demonstrate she met

all the criteria for the listed impairments. Id. The Commissioner argues the ALJ

found at least one of Plaintiff’s impairments to be severe and proceeded to the final

step of the analysis, making a failure to find a particular impairment severe not

reversible error. Id. at 13.

c. Late records

Stallings argues the ALJ did not satisfy his duty to develop facts fully and

fairly. Dkt. No. 11 at 11. She notes that while it is usually the Plaintiff’s

responsibility to furnish the medical records, “this case is exceptional and late

submissions should not be held against the Plaintiff.” Id. Stallings notes that the

ALJ did not offer to issue a subpoena to compel the issuance of the records. Id. In

support of her argument she cites Ripley v. Chater and Brock v. Chater. Id.; Ripley

v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); Brock v. Chater, 84 F.3d 726, 728 (5th

Cir. 1996). Stallings also argues additional records may be examined by a reviewing

court to see if there is a reasonable probability the records could change the ALJ’s

mind about a disability determination. Dkt. No. 11 at 12. Stallings argues the ALJ

was required to provide a weight and good reasons for the treating source opinions

in the records submitted after his decision. Id.

The Commissioner agrees that the ALJ has a duty to fully and fairly develop

the facts relative to a claim for disability. Dkt. No. 15-1 at 18. The Commissioner

argues Stallings missed the deadline set by the ALJ to submit the records and the

ultimate burden to provide evidence rests with the claimant. Id. at 19. Further, the

Commissioner argues that even if the ALJ was required to request further

documentation any error would be harmless because she has not shown prejudice

from the error. Id. The Commissioner argues the newly submitted evidence is

consistent with the evidence already in the record. Id. at 21. The Commissioner also

argues that Stallings failed to adequately request relief with citation to authorities,

statutes, and parts of the record and so has waived the issue. Id. The Commissioner

supports these arguments with citation to numerous cases including Sun v. Colvin,

Castillo v. Barnhart and Weaver v. Puckett. Id.; Sun v. Colvin, 793 F.3d 502 (5th

Cir. 2015); Castillo v. Barnhart, 325 F.3d 550 (5th Cir. 2003); Weaver v. Puckett, 896

F.2d 126 (5th Cir. 1990).

III. Legal Standards

a. Standard of Review

The standard for judicial review is the same for claims of disability insurance

and supplemental security income benefits. Myers v. Barnhart, 285 F. Supp. 2d 851,

858 (S.D. Tex. 2002); compare 42 U.S.C. § 405(g) with 42 U.S.C. § 1383(c)(3).

Judicial review of the Commissioner’s decision to deny benefits is limited to two

inquires: (1) whether the Commissioner used the proper legal standards to evaluate

the evidence and (2) whether the decision is supported by substantial

evidence. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002); 42 U.S.C. §

405(g). “Substantial evidence is ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’ ” Greenspan v. Shalala, 38 F.3d 232,

236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “ ‘It is

more than a mere scintilla and less than a preponderance.’ ” Boyd v. Apfel, 239 F.3d

698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)).

“If the Commissioner’s findings are supported by substantial evidence, then the

findings are conclusive and the Commissioner’s decision must be

affirmed.” Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam)

(citations omitted). If, on the other hand, the Commissioner’s findings are not

supported by substantial evidence, or the Commissioner incorrectly applied the law,

the reviewing court may, inter alia, reverse the Commissioner’s decision and

remand the case for further proceedings. Murkeldove v. Astrue, 635 F.3d 784, 792

(5th Cir. 2011) (discussing a remand pursuant to sentence four of 42 U.S.C. §

405(g)).

In determining whether substantial evidence of disability is present, the

court “weighs four factors: (1) objective medical evidence; (2) diagnoses and

opinions; (3) the claimant’s subjective evidence of pain and disability; and (4) the

claimant’s age, education, and work history.” Perez v. Barnhart, 415 F.3d 457, 462

(5th Cir. 2005) (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)). The

court must scrutinize the entire record to determine whether such evidence is

present, but it may not reweigh the evidence, try the issues de novo, or substitute

its judgment for that of the Commissioner, even if the evidence weighs against the

Commissioner’s decision. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (per

curiam); Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

b. Standard for Entitlement to Social Security Benefits and

Burden of Proof

An individual applying for benefits bears the initial burden of proving that he

or she suffers from a disability, which is defined as 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.” 42

U.S.C. § 423(d)(1)(A); Perez, 415 F.3d at 461 (citations omitted). “Substantial gainful

activity is defined as work activity involving significant physical or mental abilities

for pay or profit.” Newton, 209 F.3d at 452-53 (citing 20 C.F.R. § 404.1572(a)–(b)).

In evaluating a disability claim, the Commissioner is required to conduct a

five-step sequential analysis to determine “(1) whether the claimant is currently

engaged in substantial gainful activity (whether the claimant is working); (2)

whether the claimant has a severe impairment; (3) whether the claimant’s

impairment meets or equals the severity of an impairment listed in 20 C.F.R., Part

404, Subpart P, Appendix 1; (4) whether the impairment prevents the claimant

from doing past relevant work (whether the claimant can return to his [or her] old

job); and (5) whether the impairment prevents the claimant from doing any other

work.” Perez, 415 F.3d at 461 (citations omitted). The claimant bears the burden of

showing that she is disabled through the first four steps of the analysis; on the fifth,

the Commissioner must show that there is other substantial work in the national

economy that the claimant can perform. Audler, 501 F.3d at 448. “Once the

Commissioner makes this showing, the burden shifts back to the claimant to rebut

this finding.” Perez, 415 F.3d at 461.

If, at any step, the Commissioner can determine that the claimant

is disabled or not disabled, that ends the analysis. Lovelace v. Bowen, 813 F.2d 55,

58 (5th Cir. 1987). If, however, the Commissioner cannot make such a finding, the

analysis proceeds to the next step. Perez, 415 F.3d at 461. Before considering the

fourth and fifth steps, the Commissioner must assess the claimant’s residual

functional capacity (“RFC”), which is, in layman’s terms, her maximum work

capability. Id. at 461-62; 20 C.F.R. §§ 404.1520(e), 404.1545(a). “The claimant’s RFC

is used at both steps four and five of the sequential analysis: at the fourth step to

determine if the claimant can still do his [or her] past relevant work, and at the

fifth step to determine whether the claimant can adjust to any other type of

work.” Perez, 415 F.3d at 462 (citing § 404.1520(e)). Finally, even if a court finds

legal error in the ALJ’s legal application it must apply harmless error analysis to

determine if the error unfairly prejudiced the claimant. Frank, 326 F.3d at 621-22.

c. Development of the record

An administrative law judge has a duty to fully and fairly develop the facts

relative to a claim for disability benefits. Carey v. Apfel, 230 F.3d 131, 142 (5th Cir.

2000). If the ALJ does not satisfy their duty, the decision may not be substantially

justified. Ripley, 67 F.3d at 557. But reversal is only justified with a showing of

prejudice that might have altered the result. Id. The Fifth Circuit has held that the

duty to develop the record does not include a duty to obtain all of a claimant’s

medical records before reaching a decision. Sun v. Colvin, 793 F.3d 502, 509 (5th

Cir. 2015). “This court has described the ALJ's duty as one of developing ‘all

relevant facts,’ not collecting all existing records.” Id. The focus is on the extent of

the questioning and whether the ALJ inquired into information necessary to make

their decision. Id.; see e.g., Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)

(holding a single question into a medical issue during a five minute hearing

insufficient to meet the duty); Castillo v. Barnhart, 325 F.3d 550, 553 (5th Cir.

2003) (finding sufficient questioning into the claimants age, education, and medical

history).

A reviewing court may consider the evidence incorporated in the record after

the ALJ makes his decision but before the Commissioner’s decision is final.

Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005) (“It follows that the

record before the Appeals Council constitutes part of the record upon which the

final decision is based.”). The reviewing court may remand if, after review, it finds

the records are so substantial as to potentially change the outcome of the ALJ’s

decision. Whitehead v. Colvin, 820 F.3d 776, 780 (5th Cir. 2016).

IV. Analysis

a. Weight of reviewing physicians

Treating physician opinions are generally entitled to significant weight.

Kneeland, 850 F.3d at 760. The regulations require that examining physician’s

opinions must be considered. Id.; see 20 C.F.R. § 404.1527(c)(1). If there is no

reliable medical evidence from a treating or examining physician controverting the

claimant’s treating doctor, the ALJ may only reject the opinion of a treating

physician if the ALJ performs a detailed analysis of the treating physicians’ views

under 20 C.F.R. § 404.1527(d)(2). Id. The ALJ has sole responsibility for

determining the claimant’s disability status and is free to reject the opinion of any

physician when the evidence supports a contrary conclusion. Newton, 209 F.3d at

455. “[W]hen good cause is shown, less weight, little weight, or even no weight may

be given to the physician’s testimony.” Perez, 415 F.3d at 466. Good cause

exceptions include “disregarding statements that are brief and conclusory, not

supported by medically acceptable clinical laboratory diagnostic techniques, or

otherwise unsupported by the evidence.” Greenspan v. Shalala, 38 F.3d 232, 237

(5th Cir. 1994)

Despite Stallings contentions, this is not a circumstance where the ALJ failed

to account for the opinion of treating or examining physicians. Dkt. Nos. 11, 18; see

Audler, 501 F.3d at 448. The ALJ noted and gave varying degrees of weight to the

opinions of examining doctors. Tr. 229-31. Indeed, the ALJ had numerous opinions

of treating, examining and reviewing doctors to weigh in making his decision. The

ALJ stated the doctors’ opinions, the opinion’s relation to the evidence of record and

the weight he gave the opinion. Tr. 229-331. Regarding treating doctor Campbell,

the ALJ noted his 2014 follow up appointment finding healing in the Achilles repair

and ordering physical therapy. Tr. 229. The ALJ later noted Dr. Campbell’s finding

in 2014 that Stallings could work part time. Tr. 233, 765. He gave the opinion little

weight because the opinions “are not consistent with the treating records, other

records in the file as described above, and are not consistent with what the claimant

stated she is able to do.” Tr. 233. The medical records included ample evidence from

other doctors about Stallings’ strength, which contradict the conclusory opinion

from Dr. Campbell (in the form of a checked box on a chart) recommending part

time work and the number of hours Stallings could stand per day. Tr. 765. In the

hearing and decision, the ALJ noted, analyzed, and weighed the opinions of treating

doctors Campbell and Smith; examining doctors Jain, Followwill, and Capitaine;

and evaluating doctors Kwun, and Rowland, Curtis, and Susan Thompson. Tr. 221-

31, 822.

Here, the ALJ cited medical evidence from examining or treating doctors that

contradicted parts of the opinions of treating Doctor Campbell and he weighted the

doctor’s opinions accordingly. Tr. 221-31; see Kneeland, 850 F.3d at 760. Therefore,

no detailed analysis under 20 C.F.R. § 404.1527(d)(2) was required. See id. This

Court will not reweigh the evidence or the ALJ’s weighting of the opinions of the

various doctors. See id; Myers v. Apfel, 238 F.3d at 619. Stallings only partially

quotes the language in Newton regarding the rejection of a treating physician’s

opinion. Dkt. No. 18 at 7. The rest of the quotation provides that other evidence

from a treating or examining physician may be used to reject another treating

physician’s opinion. Newton, 209 F.3d at 453. Stallings cites Kneeland and Audler

in support of her position, but both cases concern the total disregard of a medical

opinion which is not the case here. See Audler, 501 F.3d at 448; Kneeland, 850 F.3d

at 759. Accordingly, the Court rejects Stallings contention that error occurred in

the weighing of the doctor’s opinions.

b. Analysis of medical records

As stated above in determining whether substantial evidence of disability is

present, the court “weighs four factors: (1) objective medical evidence; (2) diagnoses

and opinions; (3) the claimant’s subjective evidence of pain and disability; and (4)

the claimant’s age, education, and work history.” Perez, 415 F.3d at 462. The court

must scrutinize the entire record to determine whether such evidence is present,

but it may not reweigh the evidence, try the issues de novo, or substitute its

judgment for that of the Commissioner, even if the evidence weighs against the

Commissioner’s decision. Myers, 238 F.3d at 619; Newton, 209 F.3d at 452.

Error can occur when an ALJ fails to identify a listing for which there is

evidence or fails to explain how they reached a conclusion that the evidence is

insufficient to reach such a listing. Audler, 501 F.3d at 448. Yet, the claimant must

show harm from the error by showing that they appeared to meet the listing. Id.

Procedural perfection in administrative proceedings is not required. Id.

Although the ALJ stated he made a “careful consideration of all the

evidence,” this Court still conducts its review to see if in fact the decision is based

on substantial evidence from the entire record. See Myers, 238 F.3d at 619. Stallings

contends the ALJ failed to consider several listed impairments, the Court will

consider each of these in turn.

i. Listing 1.02

Stallings argues that Listing 1.02, Major Dysfunction of a Joint, should have

been considered by the ALJ because of evidence of such a listing. Dkt. No. 11 at 7.

In her reply, Stallings indicates that an MRI documented severe damage to her

right foot requiring surgery on November 1, 2013. Dkt. No. 18 at 6. She argues she

had surgery on her foot February 11, 2014 and then was prescribed physical

therapy September 8, 2014 when she saw Dr. Campbell. Id. at 6.

Listing 1.02 requires:

101.02 Major dysfunction of a joint(s) (due to any cause): Characterized

by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous

ankylosis, instability) and chronic joint pain and stiffness with signs of

limitation of motion or other abnormal motion of the affected joint(s), and

findings on appropriate medically acceptable imaging of joint space

narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip,

knee, or ankle), resulting in inability to ambulate effectively

B. Involvement of one major peripheral joint in each upper extremity

(i.e., shoulder, elbow, or wrist-hand), resulting in inability to

perform fine and gross movements effectively, as defined in

101.00B2c.

20 C.F.R. § Pt. 404, Subpt. P, App. 1

Such a showing must be made for at least 12 months. 20 C.F.R. § Pt. 404, Subpt. P,

App. 1. The medical evidence Stallings cites runs from November 1, 2013 to

September 8, 2014, which is not a one year period. The next medical record she cites

comes from Jain eleven months after the surgery where Jain finds she is

“ambulating normally” and includes a range of motion chart for Stallings’ ankle.

Dkt. No. 18 at 6; Tr. 599-610. The exam found no ankle swelling and 5/5 strength in

the upper and lower extremities. Tr. 601. Even the September 8, 2014 exam by Dr.

Campbell Stallings cites makes no finding regarding ambulation or inability to

perform gross movements, as needed to meet 1.02, and relates only patient concerns

of tenderness on her ankle. Tr. 720-722.

Because Stallings has not made a showing that she suffered from a listing for

a 12-month period the Court finds that any ALJ error in failing to note listing 1.02

is harmless. See Audler, 501 F.3d at 448

ii. Listing 1.04

Stallings makes a similar argument regarding Listing 1.04, Disorders of the

spine. Stallings argues the listing was not named or methodically analyzed and that

the ALJ played doctor and was inappropriately dismissive of a 2015 MRI and

surgical recommendation. Dkt. No. 11 at 7. The Commissioner argues the ALJ

discussed the elements of the listing even if he did not state it by name and any

error on his part is harmless. Dkt. No 15-1 at 10. The Commissioner also argues

that Stallings has not made a showing that she qualifies for the listing.

Listing 1.04 requires:

101.04 Disorders of the spine (e.g., lysosomal disorders, metabolic

disorders, vertebral osteomyelitis, vertebral fracture, achondroplasia)

resulting in compromise of a nerve root (including the cauda equina) or the

spinal cord, with evidence of nerve root compression characterized by neuro-

anatomic distribution of pain, limitation of motion of the spine, motor loss

(atrophy with associated muscle weakness or muscle weakness) accompanied

by sensory or reflex loss and, if there is involvement of the lower back,

positive straight-leg raising test (sitting and supine).

20 C.F.R. § Pt. 404, Subpt. P, App. 1.

As the Commissioner points out, although the ALJ did not state the name of

the listing in his decision, the ALJ did cite evidence in the record that demonstrates

Stallings does not qualify for Listing 1.04. See Dkt. No. 15-1 at 10. This includes

findings: regarding the normal range of motion of the lumbar spine and normal

findings of the musculoskeletal system, Tr. 229, 230, 563, 840-41; a finding of

normal motor strength and no motor disturbances, Tr. 228-30, 566-67, 600-01, 822,

1131, 1190; and normal sensation and reflexes. Tr. 229-30, 600-01, 822, 1131, 1190.

ALJs must “be careful not to succumb to the temptation to play doctor.”

Frank, 326 F.3d at 622. The ALJ should not draw his own medical conclusions from

the medical data without relying on the expert’s help. Id. If the ALJ substitutes his

medical judgment and bases his decision primarily on that substitution, error

occurs. Id. Yet these errors of judgment are also subject to harmless error analysis.

Id.

Stallings’ challenge of the ALJ’s consideration of the 2015 MRI and Dr.

Smith’s surgery recommendation is well taken. See Dkt. No. 18 at 9. His inquiry

into the MRI involved personal opinion and personal interpretation of medical data.

See Tr. 122-23. When the ALJ said “All I’m saying, ma’am, is with that kind of

result if you let anybody touch you without getting a second opinion, I would

consider that doctor to be on the verge of malpractice,” he crossed from inquiry to

dispensing personal opinion. Tr. 120-123. The same can be said for his opinion:

“ALJ: Not the – well, you’re totally wrong, Counsel. Everybody has severe stenosis

of some degree.” Tr. 122.

After noting this error, the Court still must do a harmless error analysis. See

Frank, 326 F.3d at 622. Here, Stallings has not shown in the record a 12-month

period during which she qualified for the 1.04 listing. See Dkt. Nos. 11, 18. She has

not shown how the inappropriate remark affects the evidence the ALJ did cite in

the record and which was the basis for his decision. Id. Stallings puts too great an

emphasis on the MRI and opinion of Smith to offer surgery. Tr. 822. Even if the ALJ

had considered the MRI and Smith’s opinion in her favor it would not establish a 12

month period during which she met the 1.04 listing or overcome the other medical

opinions in the record that the ALJ relied on for his decision that touched on the

1.04 listing. Tr. 228-30, 566-67, 600-01, 822, 1131, 1190; See Frank, 326 F.3d at 622.

For the foregoing reasons, the Court concludes that any ALJ error related to

failing to note Listing 1.04 is harmless. See Audler, 501 F.3d at 448-49.

iii. Mental Health Evaluation Listings 12.04 and 12.06

Stallings claims the ALJ failed to address Listing 12.04, Affective Disorders,

and Listing 12.06, Anxiety Disorders. Dkt. No. 11 at 9. Stallings contends that

although the ALJ mentions these listings, he used his own understanding and

opinions regarding her activities to find them not applicable. Id. Stallings argues

that notes such as, “She is fairly limited in performing her activities at home due to

her ongoing pain,” were ignored. Dkt. No. 11 at 10.

The Commissioner argues that the ALJ used the totality of the mental health

evaluations to make his decisions. Dkt. No. 15-1 at 15. The Commissioner argues

the ALJ used the evaluations of Capitaine, Curtis, and Thompson to find that

Stallings had mild limitations in her daily activities. Id.

The ALJ accounted for the mental health evaluations in his decision, weighed

the opinions of the doctors and reached a conclusion that took them into account

and found mild limitations for Stallings. See Tr. 168, 180, 226, 231. This Court will

not reweigh the evidence that the ALJ has considered. See Myers, 238 F.3d at 619.

The Court finds there is substantial evidence for the ALJ’s mental health

decision, and the correct legal framework was applied.

c. Late records

An administrative law judge has a duty to fully and fairly develop the facts

relative to a claim for disability benefits. Carey, 230 F.3d at 142. If the ALJ does not

satisfy his duty, the decision may not be substantially justified. Ripley, 67 F.3d at

557. The Fifth Circuit has held that the duty to develop the record does not include

a duty to obtain all of a claimant’s medical records before reaching a decision: “This

court has described the ALJ’s duty as one of developing ‘all relevant facts,’ not

collecting all existing records.” Sun, 793 F.3d at 509.

As noted above, Stallings clearly missed the deadline the ALJ set for the

submission of outstanding medical records. Tr. 102-103. During the hearing the

ALJ inquired into relevant facts as required by his duty to develop the record. Tr.

100; see Sun, 793 F.3d at 509. Even when she contacted the ALJ later Stallings did

not mention the outstanding documents. Tr. 311-31. The ALJ issued his decision a

several weeks after the deadline to submit outstanding medical records had passed.

Tr. 235. The Court finds that the ALJ’s duty to fully and fairly develop the record

was satisfied.

Once a record is supplemented, a reviewing court may consider the evidence

incorporated in the record after the ALJ makes his decision but before the

Commissioner’s decision is final. Higginbotham, 405 F.3d at 337 (“It follows that the

record before the Appeals Council constitutes part of the record upon which the

final decision is based."). It is not appropriate for a reviewing court to consider

evidence of a deterioration of condition dated after the ALJ rendered his decision.

Hamilton-Provost v. Colvin, 605 F. App'x 233, 238 (5th Cir. 2015).

Stallings cites to the additional records as evidence of a worse spine condition

than the ALJ considered. Dkt. No. 11 at 13.

After a thorough examination of the additional records the Court finds the

additional records are either outside the period at issue or generally consistent with

evidence already in the record regarding Stallings’ spinal and mental health

problems and not so significant as to require remand. See Tr. 7-99; Whitehead v.

Colvin, 820 F.3d 776, 780 (5th Cir. 2016); Hamilton-Provost, 605 F. App'x at 238.

V. Conclusion

After a review of the entire record and pursuant to the discussion above the

Court finds the ALJ’s decision is supported by substantial evidence, and the correct

legal standard was applied. See Masterson, 309 F.3d at 272. As discussed above,

the Court finds possible errors by the ALJ raised by Stallings were harmless to the

decision.

For the foregoing reasons the Court hereby:

e AFFIRMS the Commissioner’s final decision;

e DENIES Plaintiffs Motion for Summary Judgment, Dkt. Nos. 11, 12;

e GRANTS Defendant’s Cross Motion for Summary Judgment, Dkt. No. 15.

The Court will direct entry of final judgment separately.

SIGNED this 30th day of October, 2019.

Hilda Tagle

Senior United States District Judge

19/19