IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ELIDA M. SEGOVIA, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2246-D

VS. §

 §

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL §

SECURITY, §

 §

Defendant. §

MEMORANDUM OPINION

Plaintiff Elida M. Segovia (“Segovia”) brings this action

under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for

review of the final decision of the Commissioner of Social Security

(“Commissioner”) denying her application for a period of disability

and disability insurance benefits under title II of the Act. For

the reasons that follow, the court affirms the Commissioner’s

decision in part, vacates it in part, and remands for further

proceedings.

I

Segovia filed an application for disability insurance benefits

on December 31, 2002, alleging an onset date of October 23, 2002

and contending that she is disabled due to depression and chronic

pain in her lower back, hip, and left leg. Following denials of

her application initially and on reconsideration, she filed a

request for a hearing before an administrative law judge (“ALJ”).

At the time of the hearing, she was 44 years old. She had

 

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completed the eleventh grade but had not had obtained her GED. She

had past relevant work as a receptionist, driver, dispatcher, and

small assembly worker. Following a hearing, the ALJ found that

Segovia is not disabled.

The ALJ determined at the second step of the five-step

sequential process that Segovia’s depression constituted only a

slight abnormality that would not be expected to interfere with her

ability to work, regardless of her age, education, and work

experience. The ALJ therefore found that her depression was not

severe.

The ALJ next considered Segovia’s other impairments, which

include myofascial pain disorder, sacral sprain, chronic lumbar

radiculopathy, and lumbar disk injury. She found at the second

step that these impairments were severe. The ALJ noted, however,

that X-rays revealed no nerve root compression, examinations

consistently failed to indicate motor, sensory, or reflex loss, and

Segovia engaged in a full range of daily activities. The ALJ found

that the back impairment did not preclude Segovia from ambulating

effectively. She concluded at the third step that Segovia’s

impairments were not severe enough to meet or equal Listing 1.04 or

12.04 or any impairment listed in 20 C.F.R., pt. 404, subpart P,

app. 1.

After considering the relevant medical evidence, the ALJ found

that Segovia has the residual functioning capacity (“RFC”) to “sit

 

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Segovia filed her motion for summary judgment without a

supporting brief and did not file the brief until after the

Commissioner filed her cross-motion for summary judgment and

combined brief in support of her cross-motion and response to

Segovia’s motion. The court by April 20, 2005 order directed the

Commissioner to file a supplemental brief no later than May 25,

2005 and encouraged Segovia to file a combined reply in support of

her motion and response to the Commissioner’s cross-motion,

establishing a June 6, 2005 deadline. The Commissioner has filed

a supplemental brief, but Segovia has not replied. This case is

now ripe for disposition.

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six hours in an eight-hour workday, stand and/or walk six hours in

an eight-hour workday, lift and/or carry twenty-five pounds

frequently and fifty pounds occasionally, and push and/or pull

commensurate with her lifting limitations.” R. 23. Based on this

assessment, the ALJ assigned Segovia an RFC of medium work activity

and determined that she could perform her past relevant work as a

receptionist, dispatcher, and driver. The ALJ therefore concluded

that she is not disabled.

 The Appeals Council denied her request for review. The

Appeals Council’s decision became the final decision of the

Commissioner. Segovia now seeks judicial review.1

II

The court’s review of the Commissioner’s decision is limited

to determining whether the decision is supported by substantial

evidence and whether the proper legal standards were applied to

evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th

Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)

(per curiam). “The Commissioner’s decision is granted great

 

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deference and will not be disturbed unless the reviewing court

cannot find substantial evidence in the record to support the

Commissioner’s decision or finds that the Commissioner made an

error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)

(footnotes omitted). 

“The court may not reweigh the evidence or try the issues de

novo or substitute its judgment for that of the [Commissioner].”

Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984) (citation

omitted). “If the Commissioner’s findings are supported by

substantial evidence, then the findings are conclusive and the

Commissioner’s decision must be affirmed.” Martinez, 64 F.3d at

173 (citation omitted). “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) (internal quotation marks and citation omitted). “It is more

than a mere scintilla, and less than a preponderance.” Spellman v.

Shalala, 1 F.3d 357, 360 (5th Cir. 1993). Even if the court should

determine that the evidence preponderates in the claimant’s favor,

the court must still affirm the Commissioner’s findings if there is

substantial evidence to support these findings. See Carry v.

Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of

conflicting evidence is for the Commissioner rather than for this

court. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)

(per curiam).

 

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For purposes of social security determinations, “disability”

means an inability to engage in substantial gainful activity

because of any medically-determinable physical or mental impairment

or combination of impairments that could be expected either to

result in death or to last for a continuous period of not less than

twelve months. 42 U.S.C. § 423(d)(1)(A). To establish disability,

the record must show that the limitations imposed by Segovia’s

conditions prevent her from engaging in any substantial gainful

activity. See Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983).

When determining the propriety of a decision of “not disabled,”

this court’s function is to ascertain whether the record considered

as a whole contains substantial evidence that supports the final

decision of the Commissioner, as the trier of fact. The court

weighs four elements of proof to determine if there is substantial

evidence of disability: “(1) objective medical facts; (2) diagnoses

and opinions of treating and examining physicians; (3) the

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

[her] age, education, and work history.” Martinez, 64 F.3d at 174

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

curiam)).

III

Segovia contends the ALJ erred at the second step of the

sequential process when she determined that Segovia’s depression

was not severe. Segovia maintains that the ALJ made a medical

 

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determination that she is not qualified to render, failed to call

a medical expert to testify at the hearing, and failed to give

appropriate weight to a consulting psychologist’s report. 

A

Segovia argues that the ALJ improperly made a medical

determination when she concluded that Segovia’s depression

constituted only a slight abnormality that had such a minimal

effect that it would not be expected to interfere with her ability

to work. The court disagrees. Whether an impairment is severe at

step two of the sequential process is not a medical determination,

but is instead an administrative finding that is dispositive of a

case. See 20 C.F.R. § 416.927(e) (2004); SSR 96-5p. In this

circuit, an ALJ may properly conclude that an impairment is not

severe only if she expressly finds that it “is a slight abnormality

[having] such minimal effect on the individual that it would not be

expected to interfere with the individual’s ability to work,

irrespective of age, education or work experience.” Stone v.

Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (alteration in

original) (quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir.

1984) (per curiam)); see id. at 1106. When the ALJ examined the

relevant evidence and made the finding that Segovia challenges, she

was not making a medical determination, but was instead operating

within her authority to make an administrative finding in

accordance with Stone and the applicable regulation.

 

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There is substantial evidence to support the ALJ’s conclusion

that Segovia’s depression was not severe. Segovia has never

received treatment for depressive disorder other than to receive

anti-depressant medication that was probably prescribed for pain

relief rather than to treat depression. Although a consultative

examiner diagnosed her as having depression, none of her treating

physicians referred her to a psychiatrist or suggested counseling.

The record contains evidence that her depression did not limit her

daily activities. On a typical day, she cleans, does laundry,

prepares meals, exercises some before resting, and shops for

groceries, even though some of these activities require effort and

are difficult due to pain. She continues to drive, uses the post

office, and pays her bills. Segovia reported that visiting friends

and neighbors and doing outside activities requires effort, but she

continues to attend church weekly and go to movies. The ALJ noted

that Segovia reported that she did not have problems with

depression before she began experiencing problems with pain, and

she had been taking Zoloft for only one month. Segovia’s

concentration was rated to be fair, and her memory and fund of

information were good. There was no indication that she had ever

experienced an extended episode of decompensation. These facts

constitute substantial evidence that Segovia’s depression

constituted only a slight abnormality that would not be expected to

interfere with her ability to work, irrespective of age, education,

 

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or work experience.

B

Segovia complains that the ALJ failed to have a medical expert

in attendance at the hearing who was qualified to make a judgment

that her mental problems were not severe. The decision to call a

medical expert to testify at the hearing is within the discretion

of the ALJ. See Smith ex rel. Smith v. Apfel, 87 F.Supp.2d 621,

629 (W.D. La. 2000) (citing 20 C.F.R. § 416.927(f)(2); Anderson v.

Sullivan, 887 F.2d 630, 634 (5th Cir. 1989) (per curiam)). Segovia

has not demonstrated that the ALJ abused her discretion under the

circumstances of this case. She advances only a conclusory

complaint about the failure to have a medical expert present, and

it appears to be tied to her principal assertion that the ALJ

improperly rendered a medical opinion. She has therefore failed to

demonstrate reversible error on this basis.

C

Segovia contends that the ALJ did not afford the consulting

psychologist’s report appropriate weight. John Lehman, Ph.D. (“Dr.

Lehman”), a clinical psychologist, conducted a clinical interview

and mental status evaluation of Segovia in conjunction with her

request for benefits and submitted a report that the ALJ

considered. Based on the interview, he diagnosed Segovia with

“major depressive disorder, recurrent, moderate,” assigned a global

assessment functioning (“GAF”) score of 60, and recommended that

 

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The Commissioner argues that Segovia has not participated in

recommended mental health treatment and that the ALJ may treat her

failure to follow the prescribed treatment regimen as an indication

that her condition is not disabling. The court rejects this

argument because it appears to misread the record. Dr. Lehman

noted that Segovia had not obtained counseling in the past, but he

recommended that she do so in the future. Dr. Lehman did not

indicate that she had failed to attend counseling after it was

recommended to her. See R. 205 (“[Counseling] was recommended to

her, as she has had no counseling to help her deal with her

situation.”).

3

Segovia argues explicitly that “[a]n individual with major

depressive disorder has a severe impairment as defined in 20 CFR

Section 404.1520.” P. Br. at 9. Her argument that a person with

a GAF score of 60 necessarily has a severe impairment is implicit

in her principal assertion.

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she participate in counseling.2

Segovia points to the ALJ’s discussion of Dr. Lehman’s

assessment of major depressive disorder and cites the ALJ’s

observation that a person with a GAF score of 60 “would be expected

to have moderate difficulty [with] social, occupational and school

functioning[.]” P. Br. at 8 (quoting R. 20). She argues that,

despite Dr. Lehman’s report, the ALJ abused her discretion and

acted in the absence of substantial evidence by determining that

Segovia’s depression was nonsevere. 

Segovia’s argument that the ALJ did not give proper weight to

Dr. Lehman’s report is premised on nothing more than the mere

assertion that a person diagnosed with major depressive disorder,

who has a GAF score of 60,3 must necessarily have a severe

impairment under 20 C.F.R. § 404.1520. See P. Br. at 9. This

contention lacks force. See Hammond v. Barnhart, 124 Fed. Appx.

 

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847, 853 & n.14 (5th Cir. 2005) (unpublished opinion) (declining to

reverse ALJ’s determination that depression was not severe

notwithstanding finding that claimant suffered from major

depressive disorder, noting that “major” in “major depressive

disorder” is medical term that does not mandate finding that

impairment is “severe” within meaning of the law); Didlake v.

Barnhart, 2003 US Dist. LEXIS 21419, at *30-*31 (N.D. Tex. Sept. 3,

2003) (Bleil, J.) (rejecting claimant’s argument that GAF score of

60 was inconsistent with ALJ’s conclusion that depression was

nonsevere), rec. adopted, 2003 US Dist. LEXIS 21418 (N.D. Tex. Oct.

29, 2003) (Means, J.); Munson v. Barnhart, 217 F.Supp.2d 162, 165

(D. Me. 2002) (noting lack of authority for proposition that GAF

score of 60 is inherently inconsistent with determination that

mental impairment is nonsevere).

Accordingly, Segovia has failed to demonstrate that the ALJ’s

determination should be reversed on the basis of the finding that

Segovia’s depression was not severe.

IV

Segovia argues that the ALJ erred by rejecting the medical

source statement of her treating physician. She complains that the

ALJ improperly rejected the RFC assessment of Sherine B. Reno, M.D.

(“Dr. Reno”), a physician who treated Segovia for pain.

 

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The ALJ indicated that Dr. Reno’s medical source statement

was dated May 2, 2003. The court has been unable to locate in the

record a statement by Dr. Reno made on this date. It is possible

that the ALJ intended instead to refer to Dr. Reno’s November 10,

2003 medical source statement. See R. 230-35.

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A

Segovia began seeing Dr. Reno in March 2002 and continued

under her care through the date of the hearing. Before the

hearing, Segovia submitted for the ALJ’s consideration a medical

source statement that Dr. Reno completed.4

 Dr. Reno opined that

Segovia is capable of “less than a full range of sedentary work

with inability to stand or walk more than 2 hours (each) out of an

8-hour workday and the added restriction of three hours of rest

required during an eight-hour workday in addition to lunch and

regular breaks.” R. 23. The ALJ noted, however, that Dr. Reno’s

opinion was unsupported by other evidence and ultimately gave it no

evidentiary weight:

The statement by Dr. Reno was provided on a

check-list form from the claimant’s

representative. The claimant’s own clinical

records, as detailed above, provide no basis

for the extreme limitations imposed. The

claimant walks without the aid of assistive

devices. Examinations consistently show no

neurological deficits and x-rays of the lumbar

spine show no abnormalities. As set out

above, the claimant engages in a wide range of

daily activities that are also inconsistent

with the assessment of Dr. Reno. As such, the

[ALJ] finds [Dr. Reno’s] opinions to be

unsupported and entitled to no evidentiary

weight.

Id. (citing 20 C.F.R. § 404.1527; SSR 96-2p; SSR 96-5p).

 

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B

“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 . . . other

substantial evidence.’” Newton v. Apfel, 209 F.3d 448, 455 (5th

Cir. 2000) (quoting Martinez, 64 F.3d at 176).

Even though the opinion and diagnosis of a

treating physician should be afforded

considerable weight in determining disability,

the ALJ has sole responsibility for

determining a claimant’s disability status.

The ALJ is free to reject the opinion of any

physician when the evidence supports a

contrary conclusion. The treating physician’s

opinions are not conclusive. The opinions may

be assigned little or no weight when good

cause is shown. Good 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 supported by the evidence.

Id. at 455-56 (citations, quotation marks, and brackets omitted).

In some circumstances, the ALJ must analyze a treating specialist’s

opinion in light of six factors contained in 20 C.F.R.

§ 404.1527(d) before giving little or no weight to that opinion.

See Sailsbury v. Comm’r of Soc. Sec., No. 3:02-CV-2759-D, slip op.

at 7-8 (N.D. Tex. Oct. 31, 2003) (Fitzwater, J.) (citing Newton,

209 F.3d at 456). The six factors are:

 

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(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.

Newton, 209 F.3d at 456.

In Sailsbury the ALJ gave little evidentiary weight to a

treating specialist’s opinions about the claimant’s RFC because his

opinions were not supported by his own clinical findings or the

claimant’s testimony regarding his daily activities. Sailsbury,

No. 3:02-CV-2759-D, at 3. This court vacated the decision because

the ALJ did not consider each of the § 404.1527(d) factors. See

id. at 7. In reaching its decision, the court distinguished its

prior decisions in Grimes v. Barnhart, No. 3:01-CV-0940-D (N.D.

Tex. Mar. 18, 2002) (Fitzwater, J.), and Tipps v. Barnhart, No.

3:01-CV-1295-D (N.D. Tex. Mar. 14, 2002) (Fitzwater, J.), in which

it had found no error in an ALJ’s failure to address each of the

§ 404.1527(d) factors. The court noted that, in Grimes and Tipps,

the treating physician’s opinions were controverted by reliable

medical evidence from another examining or treating physician. The

court reasoned that

[u]nder Newton, the ALJ is required to perform

a detailed analysis of the treating

physician’s views under the criteria set forth

in 20 C.F.R. § 404.1527(d)(2) only when there

is an absence of reliable medical evidence

from a treating or examining physician

controverting the claimant’s treating

 

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specialist.

Sailsbury, No. 3:02-CV-2759-D, at 9 (quoting Grimes, No. 3:01-CV940-D, at 12; Tipps, No. 3:01-CV-1295-D, at 11-12).

The ALJ in the instant case discounted Dr. Reno’s assessment

of Segovia’s physical limitations because it was not supported by

Segovia’s clinical records and was inconsistent with her reported

daily activities. See R. 23. The court is unable to conclude,

however, that the ALJ considered any reliable medical evidence of

an examining or treating physician that controverted Dr. Reno’s

assessment of Segovia’s limitations. Absent such contradictory

evidence, the court cannot say that the ALJ was permitted to reject

Dr. Reno’s opinion without analyzing each § 404.1527(d) factor.

Cf. Sailsbury, No. 3:02-CV-2759-D, at 7-10; Herron v. Barnhart, No.

3:01-CV-1689-D, slip op. at 12 (N.D. Tex. Mar. 6, 2002) (Fitzwater,

J.) (“Because the ALJ based his decision on reliable medical

evidence from . . . an examining physician[ ] controverting the

claimant’s treating specialist, the ALJ was not required . . . to

perform a detailed analysis of the treating physician’s views under

the criteria set forth in 20 C.F.R. § 404.1527(d)(2).”).

The Commissioner contends that the ALJ “specifically analyzed

the opinion of Dr. Reno[ ] under the factors set forth in 20 C.F.R.

§ 404.1527(d).” D. Supp. Br. at 9 (citing R. 19, 23). The court

disagrees. The ALJ observed facts significant to an analysis under

the six factors, see, e.g., R. 19 (noting that Dr. Reno began

 

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Segovia contends that the ALJ was obligated to re-contact Dr.

Reno before rejecting her opinion and that the ALJ’s failure to

notify Segovia’s counsel of concerns regarding Dr. Reno’s statement

constituted a denial of due process. The court need not reach

these arguments.

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treating Segovia in March 2002), and the record contains additional

information relevant to the inquiry, see, e.g., id. at 175-82, 184-

86, 188, 190-202, 235-55 (indicating frequency of Segovia’s visits

to Dr. Reno). But the court disagrees that the ALJ’s decision

demonstrates that she “perform[ed] a detailed analysis of the

treating physician’s views under the criteria set forth in 20

C.F.R. § 404.1527(d)(2).” See Sailsbury, No. 3:02-CV-2759-D, at 9.

Although the ALJ is of course free to find on remand that the

evidence does not support the conclusion that Segovia is disabled,

she cannot reach this result without assessing Dr. Reno’s opinions

according to the required procedures, including analyzing the six

factors contained in § 404.1527(d) or finding that there is

reliable medical evidence of a treating or examining physician that

controverts Dr. Reno’s assessment of Segovia’s limitations.5

As the court said in Sailsbury,

[t]oday’s decision is a narrow one that may

ultimately prove to be largely procedural. In

the circumstances presented here, the ALJ was

obligated to consider and address the factors

set out in § 1527(d) before according Dr.

[Reno]’s opinion [no] weight. [She] did not

do so, and the Commissioner’s decision must be

vacated and this matter remanded for further

proceedings.

Sailsbury, No. 3:02-CV-2759-D, at 10 (footnote omitted).

 

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* * *

The Commissioner’s decision is AFFIRMED in part and VACATED in

part and REMANDED to the Commissioner for further proceedings

consistent with this memorandum opinion.

August 9, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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