Harrison v. Saul

IN THE UNITED STATES DISTRICT COURT July 13, 2020

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

HOUSTON DIVISION

ARTHUR DEWAYNE HARRISON, §

§

Plaintiff, §

§

V. § CIVIL ACTION NO. 4:19- 2304

§

ANDREW SAUL, §

COMMISSIONER OF THE §

SOCIAL SECURITY ADMINISTRATION, §

§

§

Defendant. §

MEMORANDUM AND ORDER DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT AND GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Before the Magistrate Judge12 in this social security appeal is Plaintiff’s Motion for

Summary Judgment (Document No. 11), Defendant’s Response to Plaintiff’s Motion for

Summary Judgment (Document No. 12), Defendant’s Motion for Summary Judgment

(Document No. 10), and Plaintiff’s Response to Defendant’s Motion for Summary Judgment.

(Document No. 13). After considering the cross motions for summary judgment, the

administrative record, and the applicable law, the Magistrate Judge ORDERS, for the reasons set

forth below, that Defendant’s Motion for Summary Judgment (Document No. 10) is GRANTED,

Plaintiff’s Motion for Summary Judgment (Document No. 11) is DENIED, and the decision of

the Commissioner is AFFIRMED.

I. Introduction

12 The parties consented to proceed before the undersigned Magistrate Judge on September

27, 2019. (Document No. 9).

Plaintiff, Arthur Harrison (“Harrison”) brings this action pursuant to the Social Security

Act (“Act”), 42 U.S.C. 405(g), seeking judicial review of a final decision of the Commissioner

of Social Security Administration (“Commissioner”) denying her applications for disability

benefits (“DIB”), and Supplemental Security Income (“SSI”). Harrison argues that the

Administrative Law Judge (“ALJ”) committed errors of law when he found that Harrison was

not disabled. Harrison argues that the ALJ, Kelly Matthews, erred in formulating Harrison’s

mental impairment, residual functional capacity (“RFC”), and made an improper step five

finding. Harrison seeks an order reversing the ALJ’s decision, and awarding benefits, or in the

alternative, remanding her claim for further consideration. The Commissioner responds that

there is substantial evidence in the record to support the ALJ’s decision that Harrison was not

disabled, that the decision comports with applicable law, and that the decision should, therefore,

be affirmed.

II. Administrative Proceedings

On May 20, 2016, Harrison filed applications for DIB and SSI claiming disability since

February 16, 2011, due to neck problems, spinal nerve damage, “PTSD”, anxiety, and

depression. (Tr. 191-198, 220). The Social Security Administration denied his applications at the

initial and reconsideration stages. (Tr. 55-56, 83-84). Harrison then requested a hearing before an

ALJ. (Tr. 140). The Social Security Administration granted his request, and the ALJ held a

hearing on February 27, 2018. (Tr. 32-54). On May 2, 2018, the ALJ issued her decision finding

that Harrison was not disabled (Tr. 14-25).

Harrison sought review by the Appeals Council of the ALJ’s adverse decision. (Tr. 188).

The Appeals Council will grant a request to review an ALJ’s decision if any of the following

circumstances are present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an

error of law in reaching his conclusion; (3) substantial evidence does not support the ALJ’s

actions, findings, or conclusions; (4) a broad policy issue may affect the public interest or (5)

there is new and material evidence and the decision is contrary to the weight of all the record

evidence. After considering Harrison’s contentions in light of the applicable regulations and

evidence, the Appeals Council, on October 5, 2018 concluded that there was no basis upon

which to grant Harrison’s request for review (Tr. 1-8). Accordingly, the ALJ’s findings and

decision thus became final.

Harrison has timely filed his appeal of the ALJ’s decision. The Commissioner has filed a

Motion for Summary Judgment (Document No. 10). Likewise, Plaintiff has filed a Motion for

Summary Judgement (Document No. 11). This appeal is now ripe for ruling.

The evidence is set forth in the transcript pages 1-1614. There is no dispute as to the facts

contained therein.

III. Standard for Review of Agency Decision

The court, in its review of a denial of disability benefits, is only “to [determine] (1)

whether substantial evidence supports the Commissioner’s decision, and (2) whether the

Commissioner’s decision comports with relevant legal standards.” Jones v. Apfel, 174 F.3d 692,

693 (5th Cir. 1999). Indeed, Title 42, Section 405(g) limits judicial review of the

Commissioner’s decision as follows: “[t]he findings of the Commissioner of Social Security as

to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The

Act specifically grants the district court the power to enter judgment, upon the pleadings, and

transcript, “affirming, modifying, or reversing the decision of the Commissioner of Social

Security with or without remanding the case for a rehearing” when not supported by substantial

evidence. Id. While it is incumbent upon the court to examine the record in its entirety to decide

whether the decision is supportable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), the

court may not “reweigh the evidence in the record nor try the issues de novo, nor substitute its

judgment” for that of the Commissioner even if the evidence preponderates against the

Commissioner’s decision. Chaparo v. Bowen, 815 F.2d 1008, 1009 (5th Cir. 1987); see also

Jones at 693; Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Conflicts in the evidence are

for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992).

The United States Supreme Court has defined “substantial evidence,” as used in the Act,

to be “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison

Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence is “more than a scintilla and

less than a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence

must create more than “a suspicion of the existence of the fact to be established, but no

‘substantial evidence’ will be found only where there is a ‘conspicuous absence of credible

choices’ or ‘no contrary medical evidence.’” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.

1983) (quoting Hemphill v. Weinberger, 483 F.2d 1127 (5th Cir. 1973)).

IV. Burden of Proof

An individual claiming entitlement to disability insurance benefits under the Act has the

burden of proving her disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act

defines disability 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 twelve

months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be proven through medically

accepted clinical and laboratory diagnostic techniques. Id. § 423(d)(3). The impairment must

be so severe as to limit the claimant in the following manner:

he is not only unable to do [his] previous work but cannot, considering [his] age,

education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy, regardless of whether such work

exists in the immediate area in which [he] lives, or whether a specific job vacancy

exists for [him], or whether [he] would be hired if [he] applied for work.

Id. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one is

suffering from a disability. Rather, a claimant is disabled only if he is “incapable of engaging in

any substantial gainful activity.” Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992)

(quoting Milan v. Bowen, 782 F.2d 1284 (5th Cir. 1986)). If, at any step in the process, the

Commissioner determines that the claimant is or is not disabled, the evaluation ends. Leggett, 67

F.3d at 563.2

The Commissioner applies a five-step sequential process to determine disability status:

1. If the claimant is presently working, a finding of “not disabled” must be made;

2. If the claimant does not have a “severe” impairment or combination of

impairments, he will not be found disabled;

3. If the claimant 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 claimant is capable of performing past relevant work, a finding of “not

disabled” must be made; and

2 Several of the Social Security Rulings (“SSRs”) governing social security cases

were amended or rescinded in 2016 and 2017. See, e.g., 81 Fed. Reg. 66138-01, 2016

WL 5341732 (F.R. Sept. 26, 2016); 82 Fed. Reg. 5844-01, 2017 WL 168819 (F.R. Jan.

18, 2017). Depending on the regulation, the new rules apply to claims filed either on or

after January 17, 2017, or March 27, 2017. The regulations provide, in pertinent part,

that “[w]e expect that Federal Courts will review our final decisions using the rules that

were in effect at the time we issued the decisions.”). Because Harrison filed his

applications prior to January 17, 2017, the Court will cite to the old rules that are

applicable to claims filed prior to 20bl17.

5. If the claimant’s impairment prevents him from doing any other substantial

gainful activity, taking into consideration his age, education, past work

experience, and residual functional capacity, he will be found disabled.

Id., 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren v.

Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this formula, the claimant bears the burden

of proof on the first four steps of the analysis to establish that a disability exists. If successful,

the burden shifts to the Commissioner, at step five, to show that the claimant can perform other

work. McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner

demonstrates that other jobs are available, the burden shifts, again, to the claimant to rebut this

finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the

Commissioner determines that the claimant is or is not disabled, the evaluation ends. Leggett, 67

F.3d at 5633.

In this instant action, the ALJ determined, in her May 5, 2018, decision that Harrison was

not disabled at step five. In particular, the ALJ determined that Harrison met the insured status

requirements of the Social Security Act through December 31, 2016, and that Harrison had not

engaged in substantial gainful activity since February 16, 2011, the alleged onset date (step one);

that Harrison’s posttraumatic stress disorder, depression, spine disorder, and obesity were severe

impairments (step two); that Harrison did not have an impairment or combination of

impairments that met or medically equated one of the listed impairments in Appendix 1 of the

3 Several of the Social Security Rulings (“SSRs”) governing social security cases were

amended or rescinded in 2016 and 2017. See, e.g., 81 Fed. Reg. 66138-01, 2016 WL 5341732

(F.R. Sept. 26, 2016); 82 Fed. Reg. 5844-01, 2017 WL 168819 (F.R. Jan. 18, 2017). Depending

on the regulation, the new rules apply to claims filed either on or after January 17, 2017, or

March 27, 2017. The regulations provide, in pertinent part, that “[w]e expect that Federal Courts

will review our final decisions using the rules that were in effect at the time we issued the

decisions.”). Because Travis filed her application for DIB prior to January 17, 2017, the Court

will cite to the old rules that are applicable to claims filed prior to 2017.

regulations (step three); that Harrison had the RFC to perform light work with the following

limitations:

The claimant can understand, remember, and carry out simple instructions and make

simple decisions; can occasionally interact with the public, and the interaction should be

superficial to the job; can never climb ropes, ladders, or scaffolds; and can occasionally

climb ramps or stairs (due to obesity and spine disorder). (Tr. 20).

The ALJ further found that Harrison could not perform any past relevant work as a stevedore or

correction officer as actually or generally performed (step four); and that based on Harrison’s

RFC, age (45), education (high school), work experience, and the testimony of a vocational

expert, that Harrison could perform work as a shipping and receiving weigher, a price marker,

and a laundry press operator, and that Harrison is not disabled within the meaning of the Act

(step five). As a result, the Court must determine whether substantial evidence supports the

ALJ’s step five finding.

In determining whether substantial evidence supports the ALJ’s decision, the court

weighs four factors: (1) the objective medical facts; (2) the diagnosis and expert opinions of

treating, examining and consultative physicians on subsidiary questions of fact; (3) subjective

evidence as testified to by the plaintiff and corroborated by family and neighbors; and (4) the

plaintiff’s educational background, work history, and present age. Wren, 925 F.2d at 126.

V. Discussion

A. Objective Medical Evidence

The objective medical evidence shows that Harrison has been diagnosed with and treated

for posttraumatic stress disorder, depression, spine disorder, and obesity since 2011. Harrison’s

knee pain and high blood pressure were not found to be severe, as the knee pain began after a fall

in June of 2017 and his blood pressure is reasonably controlled with medication. By way of

background information, Harrison sustained a Workers Compensation injury in October of 2007.

While working as a correctional officer, Harrison fell after being kicked in the face trying to

restrain an inmate. Harrison reached maximum medical improvement on March 5, 2008 with a

10% permanent impairment rating with 5% impairment rating for cervical and lumbar spine with

no evidence of nerve root compression nor herniated disk identified. (Tr. 366).

From 2010 - 2011, Harrison was seen regularly by UT Health Physicians for ongoing

problems regarding his accident. Harrison was treated by Dr. Altman at UT Physicians Family

Practice and with Dr. Varner in the UT Physicians Neurology group for acute post-traumatic

stress disorder, anxiety, cervicalgia, depression, hypertension, lower back pain, myofascial pain

syndrome, neck sprain, and tingling. (Tr. 352). Additionally, Harrison was seen by Dr. Covert

who diagnosed him with PTSD, Anxiety and Depression (355). Harrison had an EMG in March

2011, which revealed moderate radiculopathy with irritation in the C7 and C8 nerve roots. (Tr.

408). An MRI of the cervical spine revealed a degenerative disc disease at C4-C5 and right uncal

arthropathy at C3-4 and C4-C5 but there was no cord compression, canal stenosis, foraminal

narrowing, or nerve root impingement. (Tr. 344). Both Dr. Altman and Dr. Varner recommended

that Harrison attend physical therapy sessions, however, Harrison did not follow up with these

recommended sessions (Tr. 366).

Starting in November 2015, Harrison began receiving treatment at Ben Taub General

Hospital and the MLK Health Center for hypertension and joint pain. (Tr. 1460-1465). These

medical records show that Harrison was having no side effects from medications but was not

meeting his goal for blood pressure, as he missed prescribed doses (Tr. 1461). Dr. Antoine-

Taylor charted that Harrison was not currently taking any medication. (Tr. 1462). Harrison’s

physical exam revealed a 42.18 BMI and a blood pressure reading 129/82. (Tr. 1462).

Tenderness was noted in his musculoskeletal system. (1462). Dr. Antoine-Taylor diagnosed

Harrison with hypertension, chronic neck and back pain, bilateral hip pain and obesity. (Tr.

1463).

An assessment done by the Harris Health system in September 2017 shows that Harrison

has primary symptoms of hyperarousal, easy irritability/anxiety, and insomnia with periods of

low mood and vague psychosis. (Tr. 1202). Harrisons medications included Prozac, Seroquel,

Atarax, prazosin, and BuSpar. (Tr. 1203). His mental status examination showed that Harrison

was awake, alert, and oriented times three; normal speech; no psychomotor abnormalities; okay

mood; low intensity by reactive affect; logical and concrete thought process; no suicidal or

homicidal ideation, hallucinations, or delusions; intact memory and fair/good insight/judgement.

(Tr. 1202).

Here, substantial evidence supports the ALJ’s finding that Harrison’s disorders of

posttraumatic stress disorder, depression, spine disorder, and obesity were severe impairments at

step two, and that such impairments at step three, individually or in combination, did not meet or

equal a listed impairment. This factor weighs in favor of the ALJ’s decision.

B. Diagnosis and Expert Opinion

The second element considered is the diagnosis and expert opinions of treating and

examining physicians on subsidiary questions of fact. The Social Security regulations require the

Commissioner to evaluate every medical opinion it receives, regardless of its source. 20 C.F.R.

§ 404.1527(c). The regulations provide in pertinent part that “[m]edical opinions are

statements from physicians and psychologists or other acceptable medical sources that reflect

judgments about the nature and severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite impairment(s), and your physical or

mental restrictions.” 20 C.F.R. § 404.1527(a)(1). The ALJ has the ultimate responsibility to

determine disability status. Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001). When good cause

is shown, less weight, little weight, or even no weight may be given to a treating physician’s

opinion. Id. The Fifth Circuit in Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) held that

when a treating physician’s opinion about the nature and severity of a claimant’s impairment is

well-supported and consistent with other substantial evidence, an ALJ must afford it controlling

weight. The Fifth Circuit further instructed that an ALJ has good cause to discount an opinion

on a treating physician where “the treating physician’s evidence is conclusory, is unsupported by

medically acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported

by the evidence.” Id. at 456. In such a situation, the ALJ must assess what weight the opinion

should be given based on factors enumerated in 20 C.F.R. § 404.1527(c). Those factors include:

(1) the physician's length of treatment of the claimant; (2) the physician’s frequency of

examination; (3) the nature and extent of the treatment relationship; (4) the support of the

physician’s opinion afforded by the medical evidence of record; (5) the consistency of the

opinion with the record as a whole; (6) the specialization of the treating physician; and, (7) any

other considerations. Id. These factors need not be considered when there is “competing first-

hand medical evidence and the ALJ finds as a factual matter that one doctor’s opinion is more

well-founded than another,” or when “the ALJ weighs treating physician’s opinion on disability

against the medical opinion of other physicians who have treated or examined the claimant and

have specific medical bases for a contrary opinion.” Newton, 209 F.3d at 458. Simply put:

“[t]he Newton court limited its holding to cases where the ALJ rejects the sole relevant medical

opinion before it.” Qualls v. Astrue, 339 F.Appx. 461, 467 (5th Cir. 2009).

The social security regulations make a clear distinction between the deference given to a

medical opinion from a treating physician as opposed to a medical opinion from an examining

physician. As discussed above, the treating physician rule provides that the opinion of a

claimant’s treating physician is entitled to great weight. See Newton, 209 F.3d at 455. A

consultative physician is a physician designated and employed to make medical judgments by

the Social Security Administration. See 20 C.F.R. § 404.1526(d). A consultative physician may

personally examine the claimant. See id. The deference provided to treating physicians’

opinions does not extend to consultative examining physicians. 20 C.F.R. § 404.1527(c).

“[W]here the examining physician is not the claimant’s treating physician and where the

physician examined the claimant only once, the level of deference afforded his opinion may fall

correspondingly.” Rodriguez v. Shalala, 35 F.3d 560, 1994 WL 499764, at *2 (5th Cir. 1994).

As for the opinions of State Agency Medical Consultants, the regulations provide, in pertinent

part:

Administrative law judges are not bound by any findings made by State agency

medical or psychological consultants, or other program physicians or

psychologists. State agency medical and psychological consultants and other

program physicians, psychologists, and other medical specialists are highly

qualified physicians, psychologists, and other medical specialists who are also

experts in Social Security disability evaluation. Therefore, administrative law

judges must consider findings and other opinions of State agency medical and

psychological consultants and other program physicians, psychologists, and other

medical specialists as opinion evidence, except for the ultimate determination

about whether you are disabled. . . .

20 C.F.R. § 404.1527(e)(2)(i), 416.927(e)(2)(i)(effective August 24, 2012-March 26, 2017).

Ventura v. Colvin, No. 6:-CV-16, 2017, WL 1397130, at *12 (S.D. Tex. Feb. 27, 2017), adopted,

2017 WL 1397131 (S.D. Tex. Mar. 30, 2017). “In evaluating the opinion of a non-treating

physician, the ALJ is free to incorporate only those limitations that he finds ‘consistent with the

weight of the evidence as a whole.’” Thompson v. Colvin, No. 4:16-CV-00553, 2017 WL

1278673, at *12 (S.D. Tex. Feb. 14, 2017)(citing Andrews v. Astrue, 917 F.Supp. 2d 624, 642

(N.D. Tex. 2013). “The ALJ cannot reject a medical opinion without an explanation.” Loza v.

Apfel, 219 F.3d 378, 395 (5th Cir. 2000); Kneeland v. Berryhill, 850 F.3d 749, 761 (5th Cir.

2017)(ALJ committed error in failing to address examining physician’s conflicting opinion

thereby making it impossible to know whether the ALJ properly considered and weighed the

opinion); but see Hammond v. Barnhart, 124 Fed. Appx. 847, 851 (5th Cir. 2005)(failure by

ALJ to mention a piece of evidence does not necessarily mean that the ALJ failed to consider it).

Thus the absence of an express statement in the ALJ’s written decision does not necessarily

amount to reversible error because procedural perfection of administrative proceeds is not

required. See, e.g., Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007); Jones v. Astrue, 691

F.3d 730, 734-35 (5th Cir. 2012)(“The party seeking to overturn the Commissioner’s decision

has the burden to show that prejudice resulted from an error.”).

RFC is what an individual can still do despite his limitations. It reflects the individual’s

maximum remaining ability to do sustained work activity in an ordinary work setting on a

regular and continuing basis. SSR 96-8p, 1996 WL 374184, at *2 (SSA July 2, 1996). The RFC

determination is “the sole responsibility of the ALJ.” Taylor v. Astrue, 706 F.3d 600, 603 (5th

Cir. 2012). The ALJ is not required to incorporate limitations in the RFC that he did not find to

be supported by the record. See Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991).

Harrison argues that substantial evidence does not support the ALJ’s evaluation of

Harrison’s RFC in regards to his mental impairment. Specifically, Harrison argues that the ALJ

improperly substituted her own medical lay opinion for that of a qualified medical expert, and

that the ALJ’s residual functional capacity fails to take account of his psychological problems.

Harrison claims that the ALJ erred in not following precedent set in Newton and that the medical

records from the Plaintiff's treating psychologist correspond to limits in excess of those found by

the ALJ. In formulating his RFC, Harrison points to (1) the GAF score of 45 given by Dr.

Covert, and (2) that Dr Jones had told Harrison he was not ready to go back to work and needed

to continue to focus on his treatment.

The Commissioner counters that substantial evidence supports the ALJ’s RFC. The

Commissioner countered that Harrison's GAF score and Dr. Covert’s recommendation were

given in 2011 and were inconsistent with more recent medical opinions. (Tr. 355). The

Commissioner points to treatment and a note from March 2018, which shows only that Dr.

Jones stated that Harrison will need frequent check-ins with psychiatry for medication

management and regular ongoing psychotherapy. The note did not mention or suggest that

Harrison should not return to work. (Tr. 1608).

The law clearly states that an ALJ may not reject a medical opinion without an

explanation. Kneeland v. Berryhill, 850 F.3d 749, 760 (5th Cir. 2017). The claimant argues that

the ALJ did not follow this rule, but in fact the ALJ did just that. While evidence from earlier

years shows Harrison’s mental impairments were more moderate/severe, the ALJ explained that

the opinions concerning intensity, persistence, and limiting effects of sympotms that the claimant

argues for are not entirely consistent with more recent medical evidence provided in the record.

(Tr. 21). One of Harrison’s arguments regarding a GAF score of 45 from 2010 is specifically

inconsistent with the 2017 record where he consistently received a GAF score ten points higher,

at 55. (Tr. 1215).

Harrison argues that that the record does not support the ALJ’s determination of an RFC

to perform light work with simple instructions, simple decisions, occasional superficial

interactions with the public, never climb ropes, ladders, or scaffolds, and occasional climbing of

ramps and stairs. Harrison argues that his ample impairments make him unable to perform the

demands of the physical residual functional capacity outlined by the ALJ. In a report from July

of 2011, Dr. Altman cited that his exam findings did not support restricting Harrison’s work and

recommended he go back to work, or, if he felt uncomfortable, to consider a different line of

work. (Tr. 360). As far back as April 2011, Dr. Altman at UT Physicians noted that Harrison’s

MRI and EMG reports don’t provide an explanation for his pain and the “subjective complaints

did not match” his diagnosis. (Tr. 361, 370, 373). Dr. Altman noted the physical exam findings

seemed disproportionately low in contrast to Harrison’s reported pain level, “making it more of a

challenge to achieve pain reduction.” (Tr. 364). This opinion was repeatedly noted in Dr.

Altman’s notes from 2011, his injury does not support his widespread complaints and his

neurological sx is not matched by reassuring neurologic exam results and that further imaging

studies would yield additional information. (Tr. 373). The ALJ recognized these inconsistencies

in her findings and gave proper weight to Dr. Altman’s opinion and incorporated those

limitations in formulating Harrison’s RFC.

In addition to Dr. Altman’s opinion, Dr. Holly Varner observed that some of Harrison’s

physical pain was due in part to his psychiatric disease, and that would explain the drastic

inconsistency between Harrison’s test results and his subjective pain levels. (Tr. 399). She noted

in December of 2011:

“[H]e has give-way weakness which is consistent with some embellishment of his

symptoms although this is likely subconscious in etiology…. I think that his psychiatric disease

would be the main determinant of any impairment rating” (Tr. 399).

There is a common theme in the expert opinions that Harrison’s “perceived pain level

appears magnified over objective exam findings” (Tr. 385). Both physicians found that

Harrison’s symptoms “are magnified out of proportion to his exam findings, much less the

amount of pain he reports based on the original described mechanism of injury” (Tr. 370).

The ALJ properly credited the State agency medical consultants, who assessed a light

residual functional capacity and determined that Harrisons mental impairments were consistent

with the ability to do simple work. (Tr. 57 - 82, 85-110). The ALJ gave weight to these

opinions but added that Harrison can never climb ropes, ladders, or scaffolds, can occasionally

climb ramps and stairs and that he is further limited to simple work, due to his obesity / spine

disorder and his testimony, respectively.

Here, the thoroughness of the ALJ’s decision shows that he carefully considered the

medical records and testimony, and that his determination reflects those findings accurately. The

Court concludes that the diagnosis and expert opinion factor also supports the ALJ’s decision.

C. Subjective Evidence of Pain as Testified

The next element to be weighed is the subjective evidence of pain, including the

claimant’s testimony and corroboration by family and friends. Not all pain is disabling, and the

fact that a claimant cannot work without some pain or discomfort will not render him disabled.

Cook, 750 F.2d at 395. The proper standard for evaluating pain is codified in the Social Security

Disability Benefits Reform Act of 1984, 42 U.S.C. § 423. The statute provides that allegations

of pain do not constitute conclusive evidence of disability. There must be objective medical

evidence showing the existence of a physical or mental impairment which could reasonably be

expected to cause pain. Statements made by the individual or his physician as to the severity of

the plaintiff’s pain must be reasonably consistent with the objective medical evidence on the

record. 42 U.S.C. § 423. “Pain constitutes a disabling condition under the SSA only when it is

‘constant, unremitting, and wholly unresponsive to therapeutic treatment.’” Selders, 914 F.2d at

618-19 (citing Farrell v. Bowen, 837 F.2d 471, 480 (5th Cir. 1988)). Pain may also constitute a

non-exertional impairment which can limit the range of jobs a claimant would otherwise be able

to perform. See Scott v. Shalala, 30 F.3d 33, 35 (5th Cir. 1994). The Act requires this Court’s

findings to be deferential. The evaluation of evidence concerning subjective symptoms is a task

particularly within the province of the ALJ, who has had the opportunity to observe the claimant.

Hames, 707 F.2d at 166.

Here, Harrison testified about his health and its impact on his daily activities. Harrison

testified that he began to experience symptoms in 2007 after sustaining injuries from an inmate

attack while working as a prison guard. Harrison testified that his average pain without medicine

is a ten on a scale of one to ten, and with medicine his pain level is at an eight. (Tr. 38). Harrison

testified that the pain radiates through his arms, legs and hip and this makes it difficult for him to

“do stairs, bend, lift things” and other daily tasks such as getting dressed, “getting in and out of

the tub” and driving (Tr. 39).

Harrison’s day-to-day activities include waking up and checking his pulse, taking his

medications including his blood pressure medicine and Prozac followed by a bath. Harrison will

then practice his breathing exercises and take his second set of medications at one o’clock.

Harrison occasionally watches TV but says he spends the majority of his day taking his

medications and practicing his mental exercises. (Tr. 48).

In regards to his physical impairments, Harrison testified that he received injections in

September of 2017 to treat his back pain, and was planning to receive more injections in March

of 2018. Harrison claims the injections relieve his back pain for about a week. (Tr. 41). In

addition to the injections and soaking in the tub, Harrison testified that he takes 600 milligrams

of Ibuprofen, twice a day. (Tr. 42). Harrison stated that he can walk about 60 yards before his

back starts bothering him. (Tr. 42).

Harrison testified that his PTSD stems from two altercations in 2007 and 2009 with

inmates while he worked at the prison. The second instance was when Harrison tried to return to

work and an inmate threw feces on him. Harrison describes his PTSD symptoms as constant

frustration, crying to himself, and “praying to the Lord to help get me through this”. (Tr. 42).

Harrison also testified that he experiences nightmares about three to four times a week and will

experience flashbacks when he hears loud noises. (Tr. 42, 43). Harrison testified that the PTSD

affects his sleep patterns: he claims he gets around four to five hours of sleep a night. (Tr. 46).

He also discussed the methods his psychiatrist recommended to help him handle his PTSD such

as listening to Beethoven, looking around the room to see what could harm him, and practicing

his breathing meditations. (Tr. 43). Harrison testified that he uses these tools every day. Harrison

stated that when he has his flashbacks it will take him between five to ten minutes to calm down

and continue his day. (Tr. 43). Harrison also testified that he has suicidal thoughts every day.

(Tr. 44).

In regards to his interactions with others, Harrison testified that he will isolate himself

from others and that he doesn’t feel comfortable around a lot of people. (Tr. 44). Harrison states

that he is very cautious and standoffish around strangers and tries to “do the best I can.” (Tr. 45).

Harrison stated that he never got into an altercation with another person at work because of a

PTSD outburst. (Tr. 45).

In regards to his treating doctor's opinion on returning to work, Harrison claims that his

doctors do not want him to return to work, that they want him to take his medication and

continue to get help with “what’s going on”. (Tr. 45). Harrison stated that his medications

(Prozac, Ibuprofen, Gabapentin and “the blood pressure medicine”) make him drowsy and he

experiences this side effect every day. (Tr. 46). When it gets bad he will lay down for about 15

minutes, and in addition to the drowsiness, his medications cause him to experience dizziness to

a point of falling down once or twice a week. (Tr. 47).

Harrison completed a Function Report on June 27, 2016. (Tr. 240-251). Harrison noted

that he is trying to get the proper help he needs and take his medication. (Tr. 204). Harrison

described a typical day as taking a shower or bath for 20 minutes, taking his medications, trying

to watch tv, and going back to sleep when his medications kick in. (Tr. 245). Harrison indicated

that his conditions have affected his ability to sometimes dress, bathe, care for hair, shave, feed

himself, and use the toilet. (Tr. 245). Harrison also noted that he “can’t do stairs anymore.” (Tr.

245). Harrison indicated that his mom will remind him to take his medications and make sure he

eats healthy. (Tr. 246). He wrote that he is able to prepare meals for himself around 3 times a

week, sometimes cereal, sandwiches and chips, and peanut butter. (Tr. 246). Harrison noted he

will help vacuum and do the dishes about twice a week and these activities take him about five

to ten minutes, but that they make his spine hurt worse. (Tr. 246). Harrison does not do much

yard work and will go out primarily to drive to his doctor or pick up his medications. (Tr. 246).

His hobbies include watching sports when he is not asleep, going to church twice a month, and

will spend time watching sports games with his family. (Tr. 248). Harrison noted that when he

does not have his medications he sometimes has problems getting along with family, friends and

neighbors. (Tr. 249). Harrison noted that he might be a little slower to follow written instructions

since his head injury and that sometimes it's hard for him to understand spoken instructions. (Tr.

249).

The undersigned finds that there is nothing in the record to suggest that the ALJ made

improper credibility findings, or that he weighed the testimony improperly. The ALJ tied her

credibility findings to Harrison’s testimony and the medical reports including mental status

examinations and physical progress notes. The ALJ properly considered the claimant’s

testimony and Function Report in addition to medical reports of claimants described pain to

determine that Harrison’s subjective symptoms and pain is inconsistent on the record. The Court

finds this factor weighs in favor of the ALJ’s decision.

D. Plaintiff’s Educational Background, Work History, and Present Age

Here, at step four, the ALJ found that Harrison could not return to his past relevant work

as a correctional officer or stevedore. The ALJ proceeded to step five. The final element to be

weighed is the claimant’s educational background, work history and present age. A claimant

will be determined to be under disability only if the claimant’s physical or mental impairments

are of such severity that he is not only unable to do his previous work, but cannot, considering

his age, education and work experience, engage in any other kind of substantial gainful work

which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

The record shows that the ALJ questioned Rosalyn Lloyd, a vocational expert (“VE”), at

the hearing. “A vocational expert is called to testify because of [her] familiarity with job

requirements and working conditions. ‘The value of a vocational expert is that [s]he is familiar

with the specific requirements of a particular occupation, including working conditions and the

attributes and skills needed.’” Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (quoting

Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986)). It is well settled that a vocational

expert’s testimony, based on a properly phrased hypothetical question, constitutes substantial

evidence. Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). A hypothetical question is

sufficient when it incorporates the impairments which the ALJ has recognized to be supported

by the whole record. Beyond the hypothetical question posed by the ALJ, the ALJ must give the

claimant the “opportunity to correct deficiencies in the ALJ’s hypothetical questions (including

additional disabilities not recognized by the ALJ’s findings and disabilities recognized but

omitted from the question).” Bowling, 36 F.3d at 436.

The ALJ posed comprehensive hypothetical questions to the VE: (Tr. 17-18)

Q. Please identify the claimant’s past relevant work.

A. Yes, your honor. Stevedore II, which is also known as a Longshoreman. Very

heavy, unskilled, SVP level 2. DOT 922.687-090. Correction Officer, medium,

semiskilled, SVP level 4. DOT 372.667-018.

Q. Please assume a hypothetical individual of the claimant’s age, education, and

work experience. This individual is capable of performing work at the light

exertional level. This individual can never climb ladders, ropers, or scaffolds, and

only occasionally climb ramps or stairs. This individual can understand,

remember, and carry out simple instructions, and make simple decisions, and

have only occasional interaction with the public, and the interaction should be

superficial to the job. Could that individual perform the past relevant work?

A. No, your honor

Q. Would there be other work?

A. Yes, your honor. Shipping and Receiving Weigher. DOT 222.387-074. State of

Texas, 3,000. UNited States, 155,000. Price Marker. DOT 209.587-034. State of

Texas, 2,500. United States, 90,000. Laundry Press Operator. DOT 363.685-026.

State of Texas, 4,500. United States, 200,000. (Tr. 17-18).

In addition, Harrison’s attorney posted hypothetical questions to the VE: (Tr. 18-19).

Q. All right, Ms. LLoyd, I just have a few questions. With the hypo the judge

gave you, if you were to limit that hypo individual to sedentary instead of light,

could they perform -- would they be able to perform those three jobs that you

gave us?

A. No.

Q. Okay. And then -- hold on a second, let me read my notes. If the hypo

individual were to miss about three days a month, consistently, for doctor’s

appointments and therapy sessions, would they be able to sustain competitive

employment in those positions?

A. No.

Q. And if the hypo individual were to be limited to no interactions with the

public, would any of those three positions work?

A. They would.

Q. All three?

A. Yes. (Tr. 18-19).

A hypothetical question is sufficient when it incorporates the impairments which the ALJ

has recognized to be supported by the whole record. As discussed above, the ALJ’s RFC

assessment is supported by substantial evidence, and was incorporated in the hypothetical

question posed to the VE. Upon this record, there is an accurate and logical bridge from the

evidence to the ALJ’s conclusion that Harrison was not disabled. Based on the testimony of the

vocational expert and the medical records, substantial evidence supports the ALJ’s finding that

Harrison can perform work as a shipping and receiving weigher, price marker, and laundry press

operator. The Court concludes that the ALJ’s reliance on the vocational testimony was proper,

and that the vocational expert’s testimony, along with the medical evidence, constitutes

substantial evidence for the ALJ’s conclusion that Harrison is not disabled within the meaning of

the Act and is therefore not entitled to benefits. Additionally, it is clear from the record that

proper legal standards were used to evaluate the evidence presented. Accordingly, this factor

also weighs in favor of the ALJ’s decision.

VI. Conclusion

Considering the record as a whole, the Court is of the opinion that the ALJ and the

Commissioner properly used the guidelines propounded by the Social Security Administration,

which direct a finding that Price was not disabled within the meaning of the Act, that substantial

evidence supports the ALL’s decision, and that the Commissioner’s decision should be affirmed.

As such, it is

ORDERED Plaintiff's Motion for Summary Judgment (Document No.11), is DENIED,

Defendant’s Motion for Summary Judgment (Document No. 10) is GRANTED, and the decision

of the Commissioner of Social Security is AFFIRMED.

Signed at Houston, Texas, this 13" day of July, 2020

rweceerd).

Frances H. Stacy

United States Magistrate Judge

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