IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

§

RUBEN G. RENOVATO, §

§

 Plaintiff, §

§

vs. § Civil Action No. 6:04-CV-0022-C

§

§

JO ANNE B. BARNHART, §

Commissioner of Social Security, §

§

 Defendant. §

REPORT AND RECOMMENDATION

THIS MATTER is before the court upon Plaintiff’s complaint filed April 4, 2004, for

judicial review of the administrative decision of the Commissioner of Social Security denying

Plaintiff’s applications for a period of disability and disability insurance benefits and for

supplemental security income benefits under Title II and Title XVI of the Social Security Act.

Plaintiff filed a brief in support of his complaint on August 23, 2004, Defendant filed her brief on

September 16, 2004, and Plaintiff filed his reply on September 29, 2004. The United States District

Judge, pursuant to 28 U.S.C. § 636(b), referred this matter to the United States Magistrate Judge for

report and recommendation, proposed findings of fact and conclusions of law, and a proposed

judgment. This court, having considered the pleadings, the briefs, and the administrative record,

recommends that the United States District Judge reverse the Commissioner’s decision and remand

this matter for further proceedings.

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 1 of 12 PageID 66
-2-

I. STATEMENT OF THE CASE

Plaintiff filed applications for a period of disability and disability insurance benefits and for

supplemental security income benefits on July 29, 1999, alleging disability beginning January 1,

1995. Tr. 54, 104-07, 259-61. Plaintiff’s applications were denied initially and upon reconsideration.

Tr. 64-70, 74-77, 264-70, 272-74. Plaintiff filed a Request for Hearing by Administrative Law

Judge on April 21, 2000, and this matter came for hearing before the Administrative Law Judge

(“ALJ”) on January 31, 2001. Tr. 54, 78-79, 275-317. Plaintiff, represented by a non-attorney,

testified in his own behalf. Tr. 279-98. Plaintiff’s wife, Margaret Renovato, also testified. Tr. 298-

301. Dr. John Murray, a medical expert (“ME”), and Carol Bennett, a vocational expert (“VE”),

appeared and testified as well. Tr. 301-09, 309-15. At the hearing, Plaintiff requested that his

alleged onset date be amended to June 1, 1999. Tr. 54. The ALJ issued a decision unfavorable to

Plaintiff on March 23, 2001. Tr. 51-60. 

In his opinion the ALJ noted that the specific issue was whether Plaintiff was under a

disability within the meaning of the Social Security Act. He found that Plaintiff’s earnings record

showed that he has earned sufficient quarters of coverage to remain insured at least through

December 31, 2004, and that Plaintiff had not engaged in substantial gainful activity at any time

since June 1, 1999. Tr. 55, 59. He found that Plaintiff has “severe” impairments, including diabetes

and cervical disc disease. Id. He further found that Plaintiff’s severe impairments, singularly or in

combination, were not severe enough to meet or equal in severity any impairment listed in the

Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1. Id. Therefore, the ALJ was required

to determine whether Plaintiff retained the residual functional capacity (“RFC”) to perform his past

relevant work or other work existing in the national economy. Tr. 55-58.

The ALJ found that Plaintiff could not return to his past relevant work as an exterminator

or as a sander for a door and window manufacturer. Tr. 55, 58, 59. 

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 2 of 12 PageID 67
-3-

 The ALJ found that Plaintiff retained the RFC for the full range of light work activity,

limited to standing no more than four hours in an eight-hour workday and walking no more than two

or three hours during the same period. The ALJ found that Plaintiff should avoid squatting,

climbing, or balancing, and he should avoid prolonged exposure to heat (usually not over thirty

minutes at a time). Tr. 59. Having found that Plaintiff could not perform the full range of light work,

the ALJ turned to the testimony of the VE in determining whether Plaintiff was capable of making

a vocational adjustment to other work despite his severe impairments. Tr. 58. The ALJ relied upon

the testimony of the VE who indicated that a hypothetical person of Plaintiff’s age, with Plaintiff’s

RFC and vocational history, could perform work which exists in the national economy, including

the jobs of outside delivery man or messenger, with 10,000 jobs in the state and 150,000 nationally;

inspector or checker, with 5,000 jobs in the state and 75,000 nationally; and hand packer, with 5,000

jobs in the state and 70,000 jobs nationally. Id. The ALJ, therefore, concluded that Plaintiff was not

disabled within the meaning of the Social Security Act at any time through the date of his decision.

Tr. 60. 

Plaintiff submitted a Request for Review of Hearing Decision/Order on May 15, 2001. Tr.

6. The Appeals Council issued its opinion on February 20, 2004, indicating that although it had

considered the contentions raised in Plaintiff’s Request for Review, it nevertheless concluded that

there was no basis for changing the ALJ’s decision and denied Plaintiff’s request. Tr. 4-5. The ALJ’s

decision, therefore, became the final decision of the Commissioner.

On April 14, 2004, Plaintiff commenced this action seeking judicial review of the

Commissioner’s decision that Plaintiff was not disabled.

II. STANDARD OF REVIEW

An individual may obtain a review of the final decision of the Commissioner by a United

States District Court. 42 U.S.C. § 405(g). The court’s review of a denial of disability benefits is

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 3 of 12 PageID 68
-4-

limited to determining whether the decision is supported by substantial evidence and whether the

Commissioner applied the proper legal standards. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.

2002)(citing Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000)). Substantial evidence

“is more than a mere scintilla and less than a preponderance” and includes “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Masterson v. Barnhart, 309

F.3d 267, 272 (5th Cir. 2002); Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002). The court

will not re-weigh the evidence, try the questions de novo, or substitute its judgment for the

Commissioner’s, even if the court believes that the evidence weighs against the Commissioner's

decision. Masterson, 309 F.3d at 272. "[C]onflicts in the evidence are for the Commissioner and not

the courts to resolve." Id. (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)).

 In order to qualify for disability insurance benefits or supplemental security income, a

claimant has the burden of proving that he or she has a medically determinable physical or mental

impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful

activity, which is defined as work activity involving significant physical or mental abilities for pay

or profit. Newton, 209 F.3d at 452. See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1527(a)(1).

The Commissioner follows a five-step process for determining whether a claimant is disabled

within the meaning of the Social Security Act. 20 C.F.R. § 404.1520; Masterson, 309 F.3d at 271;

Newton, 209 F.3d at 453. In this case, the ALJ found at step 5 that Plaintiff was not disabled

because he retained the ability to perform work in the national economy. Tr. 59-60.

III. DISCUSSION

Plaintiff claims that the ALJ’s determination of Plaintiff’s RFC is not supported by

substantial evidence because the ALJ improperly relied upon the testimony of the medical expert

which was based on an incomplete medical record, failed to give the appropriate weight to the

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 4 of 12 PageID 69
-5-

opinions of Plaintiff’s treating physicians, and failed to explain the weight given to Plaintiff’s

treating sources. 

A. Whether the ALJ erred by improperly relying upon the testimony of the medical

expert.

Plaintif alleges that the ALJ improperly relied upon the testimony of the medical expert,

which was based on an incomplete medical record, and failed to give appropriate weight to the

opinions of Plaintiff’s treating physicians. Plaintiff further argues that the ALJ did not explain the

weight given to the opinions of his treatment providers and failed to address and discuss the

evidence in the record.

The ultimate issue is whether the ALJ’s decision is supported by substantial evidence. The

court, therefore, must review the record to determine whether it “yields such evidence as would

allow a reasonable mind to accept the conclusion reached by the ALJ.” Loza v. Apfel, 219 F.3d 378,

393 (5th Cir. 2000).

In his opinion the ALJ noted that he had considered the additional medical evidence which

was submitted after the hearing. This evidence included medical records from La Esperanza Clinic

dated March 6, 2001, through January 17, 2002, as well as physical therapy records for the period

from August 28, 2000, through October 9, 2000. See Tr. 8-41, 47-48, 54. The ALJ further indicated

that he relied upon the testimony of Dr. Murray in finding that Plaintiff has no impairment which

has met or equaled the criteria of any impairment described in the Listing of Impairments. Tr. 55.

 The ALJ noted that in evaluating Plaintiff’s residual functional capacity he “relied heavily upon the

opinions of the impartial medical expert,” finding his opinion “strongly supported by the evidence

from the treating sources” and noting that it was “well-reasoned and persuasive.” Tr. 56. 

The ALJ specifically noted Dr. Murray’s conclusion that “there is no radiographic evidence

of an impairment that would actually prevent Mr. Renovato from lifting his arms above shoulder

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 5 of 12 PageID 70
-6-

level.” Tr. 56. The ALJ accepted Dr. Murray’s testimony that Plaintiff retained the residual

functional capacity for light work, further limited to standing no more than 1⁄2 of an 8-hour day,

walking no more than two or three hours of an 8-hour day, and avoiding squatting, climbing, and

balancing. Tr. 57. He also accepted Dr. Murray’s testimony that sitting during a typical 8-hour day

should not be a problem for Plaintiff. Id. In his opinion, the ALJ found that neither the objective

medical evidence, the testimony of the claimant, the testimony of the ME, nor the rest of the

evidence in the record established that Plaintiff’s ability to function was so severely impaired as to

preclude the exertional requirements of light work, as limited. Tr. 57. 

The record demonstrates that the physical therapy records were submitted after the hearing

but prior to issuance of the ALJ decision. Tr. 249-58. The record does not indicate that the ALJ

submitted these additional records to the ME to provide the ME with the opportunity to determine

if such additional evidence would result in a change in his opinion.

Plaintiff argues that the ALJ erred in ignoring the records of his treating physician and

physical therapist, who both noted that Plaintiff had a frozen shoulder which limited the use and

movement of his upper extremities. The opinion of a treating physician who is familiar with the

claimant’s impairments, treatments, and responses should be accorded great weight in determining

disability. A treating physician’s opinion on the nature and severity of a patient’s impairment will

be given controlling weight if it “is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20

C.F.R. § 404.1527(d)(2). On the other hand, “[g]ood cause may permit an ALJ to discount the

weight of a treating physician relative to other experts 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.” Newton, 209 F.3d at 456.

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 6 of 12 PageID 71
-7-

The records from La Esperanza Clinic include a functional capacity questionnaire, dated

November 17, 2002, apparently completed by Plaintiff’s primary care physician. Tr. 8-11. This

questionnaire indicated Plaintiff’s complaints of swelling with walking. Tr. 8. It also indicated

diminished sensation in the lower extremities. Id. The questionnaire also indicated that the patient

had “no pain,” and further indicates that the patient’s experience of pain would “seldom” be severe

enough to interfere with attention and concentration. Tr. 8-9. The questionnaire indicated the treating

physician’s opinion that Plaintiff could sit for at least six hours during an 8-hour workday, could sit

more than two hours at a time, and could stand for less than two hours during an 8-hour workday,

for 20 minutes at a time. Tr. 9. The questionnaire indicated that the patient needed to shift positions

at will, and could bend and twist, each for 10% of an average workday. Tr. 10. It also indicated that

Plaintiff could occasionally lift up to 10 pounds and did not need to lie down or rest at unpredictable

intervals during an 8-hour workday. Id. The questionnaire concluded that Plaintiff would not have

difficulty working at a regular full time job on a sustained basis, although indicating that Plaintiff

should work at a “sedentary job only.” Tr. 11.

The ALJ’s RFC finding is not identical to the functional limitations noted by Plaintiff’s

treatment provider. Of course, “[a]mong the opinions by treating doctors that have no special

significance are determinations that an applicant is ‘disabled’ or ‘unable to work.’ These

determinations are legal conclusions that the regulation describes as ‘reserved to the

Commissioner.’” Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003)(citing 20 C.F.R.

§ 404.1527(e)(1)). The physician’s opinion that Plaintiff’s could only perform “sedentary work”

intrudes upon the province of the ALJ’s determination of the RFC. The ALJ was required to

consider the limitations imposed by Plaintiff’s impairments as supported by substantial evidence in

the record. The ALJ was not required to incorporate limitations into the hypothetical questions

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 7 of 12 PageID 72
-8-

presented to the VE that he did not find to be supported in the record. See Morris v. Bowen, 864

F.2d 333, 336 (5th Cir. 1988). The ALJ, as factfinder, also has the sole responsibility for weighing

the evidence and may choose whichever physician’s diagnosis is most supported by the record.”

Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991)(citing Bradley v. Bowen, 809 F.2d 1054, 1057

(5th Cir. 1987)). The task of weighing the evidence is the province of the ALJ. Chambliss v.

Massanari, 269 F.3d 520, 523 (5th Cir. 2001). The relative weight to be given these pieces of

evidence is within the ALJ’s discretion. Id. 

Plaintiff notes that the ALJ did not specifically refer to or discuss the evidence submitted

after the hearing, including a functional assessment evaluation and notes of a physical therapist,

Kaye Johanson, even though the ALJ did state that he considered this evidence. Tr. 54. The therapist

was, of course, not a “treating physician” under the applicable regulations; the opinion of the

licensed therapist is nevertheless entitled to consideration as evidence in the record. See 20 C.F.R.

§ 404.1527(b). Plaintiff points to the August 28, 2000, notations reflected in the treatment records

of the physical therapist indicating that Plaintiff suffered from frozen shoulder that restricted the

movement of his shoulders. In addition to her diagnosis of frozen shoulders, her notes indicated

decreased strength and range of motion of both upper extremities and the cervical spine, pain, acute

muscle spasms, and a decrease in functional activities. Tr. 252-53. Further records indicate that

Plaintiff was discharged from physical therapy on October 9, 2000. Tr. 257. Treatment notes

indicate that Plaintiff reported bilateral shoulder pain, which increased after therapy. Id.

The record demonstrates that John D. Hunt, M.D., a treating physician, indicated that upon

examination on May 8, 2000, Plaintiff had decreased strength in both upper and lower extremities.

Tr. 232. Progress notes from La Esperanza Clinic, dated August 24, 2000, indicate that Plaintiff

had limited movement at the neck and at both shoulders. Tr. 240. The impression was of frozen

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 8 of 12 PageID 73
-9-

shoulder, and Plaintiff was prescribed physical therapy treatment. Tr. 240-41. La Esperanza Clinic

progress notes from January 3, 2001, similarly indicate the impression of neck pain and frozen

shoulders. Tr. 236. 

Plaintiff also testified that he had problems with his arms, being unable to raise them above

his head. Tr. 288. He testified to pain in his hands, shoulders, and neck, and indicated that he could

not reach and get something out of a kitchen cabinet and needed assistance with dressing. Tr. 290-

91. He testified that he cannot vacuum or sweep because he cannot move his arms. Tr. 292.

Plaintiff also testified that he has problems sleeping on his sides because of the pain in his shoulders.

Tr. 293. Plaintiff’s wife testified that she helps Plaintiff with washing his hair, dressing him, and

with other tasks that require use of the upper body. Tr. 299. 

The ME testified that, although the record referred to upper extremity limitations, it was “not

quantified as to how much.” Tr. 304. He also testified that the cervical MRI did not indicate an

impairment that would prevent lifting of the arms above the shoulder. Tr. 305. Upon examination

by Plaintiff’s representative, the ME further testified that an MRI may not demonstrate the exact

area of the problem, that there was nothing in the record to specifically explain why Plaintiff was

unable to raise either arm above shoulder level, and that there could possibly be some impairments

that are not so demonstrated. Tr. 308.

At the hearing, the ALJ stated that he saw “absolutely no evidence of any complaints of

inability to raise his hands over his head.” Tr. 315. In his opinion, he specifically noted that the ME

testified that there was no radiographic evidence of an impairment that would prevent Plaintiff from

lifting his arms above shoulder level. Tr. 56. The ALJ specifically found that Plaintiff’s “alleged

inability to lift his arms above shoulder level was not supported by the objective medical evidence

of record” and was, therefore, not entirely credible. Tr. 57.

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 9 of 12 PageID 74
-10-

The record indicates that the medical records from La Esperanza Clinic which included the

August 24, 2000, and January 31, 2001, references to Plaintiff’s frozen shoulders was provided to

the ALJ at the hearing. Tr. 236-48 (Ex. 9F). The record further indicates that Plaintiff’s

representative submitted the physical therapy records after the hearing and prior to issuance of the

ALJ’s decision. Tr. 249-58. The ALJ did not explain the weight given to the records and diagnoses

of Plaintiff’s treatment providers at La Esperanza Clinic, who opined that Plaintiff had frozen

shoulders which caused him pain. He did not explain or discuss or even mention the weight given

to the records and opinions of Plaintiff’s physical therapist, a treating source, although not a treating

physician. He did not discuss any of the evidence in the medical record which was consistent with

Plaintiff’s subjective complaints of limitation of use and motion of his upper extremities due to

frozen shoulders. The ALJ relied primarily upon the testimony of the ME. The ME, however, also

did not discuss or address the information in the record from Plaintiff’s treatment providers that

indicated a shoulder impairment or limitation in the use of his arms as a result of frozen shoulders.

It appears that the ME may not have been provided with these records and the opportunity to amend

his testimony.

The Fifth Circuit imposes a duty on an ALJ “to develop the facts fully and fairly relating to

an applicant’s claim for disability benefits. If the ALJ does not satisfy his duty, his decision is not

substantially justified.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). The failure to fully and

fairly develop the facts requires reversal if a claimant shows that he was prejudiced by such failure.

Id. The claimant must show that if the ALJ had fully and fairly developed the facts, the claimant

could and would have adduced evidence that might have altered the result. Kane v. Heckler, 731

F.2d 1216, 1220 (5th Cir. 1984).

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 10 of 12 PageID 75
-11-

I find that the ALJ did not develop the facts fully and fairly in this case. The ALJ did not

sufficiently address the information in the medical record from Plaintiff’s treating physician and

other treatment providers indicating a shoulder impairment, did not indicate the weight given to such

records and opinions, and relied instead upon the ME who apparently did not have this information

before him at the time of his testimony. It appears that the ME’s testimony regarding Plaintiff’s

functional capacity was not based on his review of the full record. If the ALJ had fully developed

the facts regarding Plaintiff’s shoulder impairment and the ME had been provided the records from

the physical therapist, Plaintiff could and would have adduced evidence that might have altered the

result. Therefore, Plaintiff was prejudiced and this matter should be remanded.

Upon remand, the ALJ should evaluate and consider the evidence from Plaintiff’s treatment

providers indicating that he has a shoulder impairment which limits the use of his upper extremities,

should indicate whether any limitations are imposed by Plaintiff’s shoulder impairment, and should

indicate the weight accorded to the opinions of Plaintiff’s treating physician in accordance with 20

C.F.R. § 404.1527(d)(2) and Newton, 209 F.3d at 456. 

IV. CONCLUSION

Based upon the foregoing discussion of the issues, the evidence, and the law, this court

recommends that the United States District Judge reverse the Commissioner’s decision and remand

this matter for further proceedings in accordance with this recommendation.

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and file

written objections within ten days after being served with a copy. A party filing objections must

specifically identify those findings, conclusions, or recommendation to which objections are being

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 11 of 12 PageID 76
-12-

made. The District Court need not consider frivolous, conclusory, or general objections. A party’s

failure to file such written objections to these proposed findings, conclusions, and recommendation

shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474

U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file written objections to the

proposed findings, conclusions, and recommendation within ten days after being served with a copy

shall bar the aggrieved party from appealing the factual findings and legal conclusions of the United

States Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

DATED this 2nd day of September, 2005.

_____________________________________

PHILIP R. LANE

UNITED STATES MAGISTRATE JUDGE

 

 Case 6:04-cv-00022-C Document 19 Filed 09/02/05 Page 12 of 12 PageID 77