IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL CALDWELL, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-2546-D

VS. §

 §

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL §

SECURITY, §

 §

Defendant. §

MEMORANDUM OPINION

Plaintiff Michael Caldwell (“Caldwell”) brings this action

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

judicial review of the final decision of the Commissioner of Social

Security (“Commissioner”) denying his application for title II

period of disability and disability insurance benefits. The

administrative law judge (“ALJ”) found that Caldwell is not

disabled because he retains the capacity to perform most sedentary

work. For the reasons that follow, the court affirms in part, and

vacates and remands in part, the Commissioner’s decision.

I 

Caldwell was 48 years old when the hearing before the ALJ was

conducted. He has a high school education and has previously

worked as a utility worker, delivery driver, and exterminator.

Caldwell filed an application for disability benefits on December

4, 2001, contending that he became disabled on July 7, 1999 due to

a back injury and lower extremity pain. His application was denied

 

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1The Commissioner contests the date Caldwell was last insured

for benefits. Because the court is remanding this case on other

grounds, the ALJ may reconsider this issue.

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initially and on reconsideration, and he requested and received a

hearing before an ALJ. 

The ALJ concluded in a written decision that Caldwell is not

disabled. He determined that Caldwell was insured for benefits

through the date of the decision and had not worked since the onset

of his disability. R. 22.1 Although Caldwell’s back problems left

him substantially impaired, his impairment did not meet any of

those listed in Appendix 1, Subpart P, Regulation No. 4. The ALJ

found at step four that Caldwell could not perform his past

relevant work. But he found at step five that Caldwell has the

residual functional capacity (“RFC”) to perform substantially all

of the full range of sedentary work, and he therefore is not

disabled under the Act. The Appeals Council denied Caldwell’s

request for review, and the findings of the ALJ became the final

decision of the Commissioner. Caldwell now seeks judicial review.

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)

 

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

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 to support a

conclusion.” Ripley, 67 F.3d at 555 (quoting Greenspan v. Shalala,

38 F.3d 232, 236 (5th Cir. 1994)). “It is more than a mere

scintilla and less than a preponderance.” Id. (quoting Spellman v.

Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (internal quotation marks

omitted)). To make a finding of “no substantial evidence,” the

court must conclude that there is a “conspicuous absence of

credible choices” or “no contrary medical evidence.” Dellolio v.

Heckler, 705 F.2d 123, 125 (5th Cir. 1983) (citing Hemphill v.

Weinberger, 483 F.2d 1137 (5th Cir. 1973)). Even if the court

should determine that the evidence preponderates in the claimant’s

 

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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).

To determine whether a claimant is disabled, the Commissioner

uses a five-step sequential inquiry. Leggett, 67 F.3d at 563;

Martinez, 64 F.3d at 173-74. The Commissioner must consider (1)

whether the claimant is presently working; (2) whether the

claimant’s ability to work is significantly limited by a physical

or mental impairment; (3) whether the claimant’s impairment meets

or equals an impairment listed in Appendix 1 to the regulations;

(4) whether the impairment prevents the claimant from doing past

relevant work; and (5) whether the claimant cannot presently

perform relevant work that exists in significant numbers in the

national economy. Leggett, 67 F.3d at 563-64 n.2; Martinez, 64

F.3d at 173-74; 20 C.F.R. § 404.1520(a)(4) (2005). A mental

impairment is evaluated by the same sequential process. See 20

C.F.R. § 404.1520a (2005). 

For purposes of social security determinations, “disability”

means the inability to engage in substantial gainful activity

because of any medically determinable physical or mental impairment

that could be expected to last for at least 12 months. See 42

U.S.C. § 423(d)(1)(A). To establish disability, the record must

 

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show that the limitations imposed by plaintiff’s conditions prevent

him 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 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) 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)). 

The ALJ has a duty to develop the facts fully and fairly

relating to an applicant’s claim for disability benefits. Ripley,

67 F.3d at 557. “If the ALJ does not satisfy [this] duty, [the]

decision is not substantially justified.” Id. (citation omitted).

Reversal of the ALJ’s decision is appropriate, however, “only if

the applicant shows that he was prejudiced.” Id. Prejudice is

established when the claimant demonstrates that he would have

adduced evidence that might have changed the result. See Carey v.

Apfel, 230 F.3d 131, 142 (5th Cir. 2000). The court will not

overturn a procedurally imperfect administrative ruling unless the

substantive rights of a party have been prejudiced. See Smith v.

 

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2Moreover, if Caldwell does in fact assert that the ALJ

completely failed to consider eligibility for a closed period of

disability, his argument is undermined by the ALJ’s finding that

Caldwell “was not under ‘disability,’ as defined in the Social

Security Act, at any time through the date of this decision.” R.

22 (emphasis added) (citation omitted).

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Chater, 962 F. Supp. 980, 984 (N.D. Tex. 1997) (Fitzwater, J.).

Caldwell objects to the ALJ’s decision on three grounds. He

contends the ALJ failed to consider whether he is eligible for a

closed period of disability, failed to assess whether his

impairment qualified as an impairment under Listing 1.04 before the

surgery, and did not give the proper weight to all the medical

source testimony.

III

Caldwell maintains that the ALJ erred by failing to evaluate

or discuss whether he is entitled to a closed period of disability

from the alleged onset date until his recovery from back surgery.

Closer inspection of Caldwell’s argument demonstrates, however,

that he is not complaining that the ALJ wholly failed to consider

a closed period of disability, but is instead arguing that the ALJ

erred in concluding that he retained the RFC for sedentary work

throughout the relevant time period.2

 See P. Br. at 8. The

pertinent inquiries, therefore, are whether the ALJ’s finding that

Caldwell was not disabled at any time through the date of his

decision is supported by substantial evidence and whether the ALJ

 

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3The court notes that a closed period of disability was not

discussed during the hearing. Because the briefing is silent on

the issue——and, in particular, because the Commissioner does not

argue that the ALJ was not required to consider Caldwell’s

eligibility for a closed period——the court assumes arguendo that

the ALJ was required under the circumstances of this case to

consider whether Caldwell was eligible for a closed period of

disability, notwithstanding the absence of a specific request.

4Although Caldwell’s argument is mislabeled, the

Commissioner’s briefing, as in other cases that the court has

decided in the recent past, is only marginally helpful because it

fails to address the argument adequately. See Frames v. Barnhart,

No. 3:03-CV-0924-D, slip op. at 7-8 (N.D. Tex. June 23) (Fitzwater,

J.) (“Although the Commissioner is not obligated to respond at

length to an argument that lacks colorable merit or to address

directly a contention that can be dispensed indirectly on a

separate ground, it aids the court’s understanding of her arguments

when she makes clear the approach she is taking.”), appeal

docketed, No. 04-11028 (5th Cir. Aug. 30, 2004).

5

Caldwell also posits that the ALJ’s statement that his

surgery was in November 2002, rather than in November 2000,

“illustrates the ALJ’s neglect in considering the evidence before

his surgery[.]” P. Br. at 9. The court discerns no prejudice

resulting from the ALJ’s erroneous reference to the date of

Caldwell’s surgery. Nor does the court determine that it shows

that the ALJ was neglectful in considering the evidence, especially

in light of Caldwell’s own inconsistency regarding the same fact.

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applied the proper legal standards in this respect.3 The

Commissioner does not directly respond in her brief to this

argument as phrased or as the court has construed it.4

 

Caldwell’s argument is not entirely clear, but it appears that

he advances three bases to contend that the ALJ’s conclusion is

erroneous: (1) the ALJ’s conclusion is unreasonable in light of

Caldwell’s surgery; (2) the ALJ devoted only four sentences in his

decision to analyzing the period from Caldwell’s surgery onset date

to the date of his surgery, and his findings are defective;5 and

 

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Compare id. at 8 (surgery on November 1, 2000) with id. at 9

(surgery on November 2, 2000).

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(3) the ALJ failed to discuss certain medical evidence that

Caldwell maintains establishes that he is disabled.

A

Caldwell contends the ALJ’s conclusion that he had an RFC that

enabled him to perform sedentary work throughout the entire

relevant period is unreasonable in light of his surgery. He

maintains that, if the ALJ’s conclusion is correct, he “underwent

an intrusive surgery . . . and gained absolutely no benefit from

it, as he retained the ability to perform the same sedentary

functions after the surgery as he did before it.” P. Br. at 9. 

Caldwell’s argument, which appears to rest on nothing more

than what he (or his counsel) considers logical, without citation

to the record evidence or to any legal standards (e.g., concerning

the definition of sedentary RFC) is unavailing. Sedentary work

involves sitting, lifting no more than ten pounds, and occasionally

walking or standing. See 20 C.F.R. § 404.1567(a) (2005). The fact

that a person who has the RFC to perform sedentary work before

surgery also has the RFC to perform sedentary work after surgery is

not fallacious as a matter of logic. Surgery is not always

curative or ameliorative from the standpoint of RFC. Thus the fact

that a person could only perform sedentary work following surgery

does not perforce mean that he could not do work at that level

 

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6The balance of the quoted paragraph pertains to his surgery

and condition following surgery. See R. 16.

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before surgery. The court declines, absent medical or other

evidence, or anything more than Caldwell’s sense of what is

reasonable, to disturb the decision of the Commissioner.

B

The court considers Caldwell’s remaining two arguments on this

issue together, because they both challenge the ALJ’s discussion of

the medical evidence of his impairment before surgery. Caldwell

asserts that the ALJ’s discussion of the medical evidence is

superficial and evinces that he did not fully consider all the

evidence.

Caldwell correctly characterizes the ALJ’s recitation of the

medical evidence before his November 2000 surgery as brief. The

ALJ found, in pertinent part:

A review of the medical evidence of record

discloses that the claimant injured his spine

in a work-related accident of July 1999. Mr.

Caldwell received conservative treatment and

epidural injections, and underwent physical

therapy of six weeks with a minimal response.

Progress notes [from] a pain clinic show that

he reported improvement from narcotic pain

medications and that changes were made to his

regimen. Films revealed degenerative changes,

most severe at L5/S1. In January 1999 he was

given an impairment rating of 10% and on May

27, 1999, he was precluded from work until

further notice.

R. 15-16 (citations omitted).6

 The ALJ also found that Caldwell

was released to operate a vehicle in November or December 2000 and

 

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that an examining physician recommended in August 1999 that he be

restricted only from performing a manual labor job. R. 18.

Caldwell also complains that the ALJ failed to discuss medical

evidence that tended to show the severity of his impairment before

surgery. He points specifically to tests performed in May and June

1999 that show compression and stenosis and a March 2000 lumbar

discogram that shows abnormal architecture at L5-S1 and suggests

that he would benefit from a procedure to stabilize the spine at

that level.

The Fifth Circuit has rejected a rule requiring the ALJ to

“articulate specifically the evidence that supported his decision

and discuss the evidence that was rejected.” Falco v. Shalala, 27

F.3d 160, 163 (5th Cir. 1994). The court therefore declines to

find reversible error merely because the ALJ did not specifically

discuss the evidence Caldwell cites. Nevertheless, the ALJ’s

findings and conclusions must sufficiently illustrate his reasoning

so that this court can “follow his reasoning and determine that he

traveled an acceptable analytical path” in concluding that Caldwell

was not disabled before surgery. See Murphy v. Barnhart, No. 3:02-

CV-2741-D, slip op. at 11 (N.D. Tex. Feb. 9, 2004) (Fitzwater, J.).

In the context of the present case, the court must be able to

ascertain why the ALJ declined to credit the evidence that Caldwell

cites and that could support the premise that he was disabled

before undergoing surgery in November 2000.

 

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7

Caldwell contends that the statement that he was precluded

from performing only manual labor is false because he had been

removed from all work one month earlier. It is true that a

Certified Physician Assistant indicated that Caldwell would be

removed from work. This fact, however, does not conclusively

demonstrate that Caldwell was physically precluded from all work;

it merely creates an inconsistency in the evidence to be resolved

by the ALJ.

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The ALJ cites, inter alia, the August 27, 1999 report of

Richard H. Jackson, M.D. (“Dr. Jackson”), an examining physician,

for the fact that Caldwell was only precluded from performing a

manual labor job.7 The ALJ may also have relied on Dr. Jackson’s

opinion that there was no significant nerve root compression and

that Caldwell’s “subjective symptoms are out of proportion to his

normal neurologic clinical examination and MRI and myelogram/CT

scan images,” R. 194, to reject the evidence Caldwell contends the

ALJ failed to consider. The ALJ’s decision, however, is silent

concerning how he evaluated this evidence. Had the ALJ expressly

adopted this opinion, the court might be permitted to conclude that

the ALJ implicitly rejected the contradictory medical evidence.

Because the ALJ did not discuss any of this medical evidence, the

court cannot determine whether the ALJ rejected the medical

evidence Caldwell cites in favor of conflicting evidence, ignored

the evidence of pre-surgery injury Caldwell cites, or afforded the

evidence some other treatment. The court therefore cannot say that

he followed a proper path——i.e., applied the proper legal

standards——to conclude that Caldwell was not disabled before his

 

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surgery. The court likewise cannot conclude that the ALJ’s

decision is supported by substantial evidence.

Accordingly, the court vacates the ALJ’s decision to the

extent he determined that Caldwell is not entitled to a closed

period of disability and remands for further proceedings.

IV

Caldwell argues that the ALJ failed to evaluate whether before

surgery he met or equaled a disability from Listing 1.04. Because

the court is remanding this case to the Commissioner to reconsider

whether Caldwell is entitled to a closed period of disability, this

issue will necessarily be addressed on remand during the third

step.

V

Caldwell also contends that the ALJ did not properly weigh the

opinions of Andrew M. Klymiuk, M.D. (“Dr. Klymiuk”), Caldwell’s

treating physician. 

A

Caldwell argues that it is unclear what part of Dr. Klymiuk’s

opinion the ALJ rejected and that this is not specific enough for

subsequent reviewers to assess his analysis. Caldwell also posits

that, contrary to the ALJ’s assessment, Dr. Klymiuk’s opinion is

consistent with his own treatment notes and with the balance of the

record evidence. 

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

 

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to determining whether it is supported by substantial evidence and

whether the proper legal standards were applied to evaluate the

evidence. Ripley, 67 F.3d at 555. The court holds that the

decision is supported by substantial evidence and that the ALJ

applied the proper legal standard.

Dr. Klymiuk expressed the opinion at issue in a May 29, 2002

note. In the note, addressed to “To Whom It May Concern,” Dr.

Klymiuk reported:

Michael Caldwell has been a patient at The

Texas Pain Medicine Clinic since January 2001.

He suffers from a chronic pain condition,

which is currently being maintained fairly

well. He, however, has many limitations.

Part of his pain management is to avoid

situations which aggravate pain as much as

possible. Due to the limitations, the patient

is unable to hold a full-time job because of

the pain limiting his ability to concentrate

and stay focused. He can only sit in one

place for a maximum of two hours at a time.

After each half an hour break, his time in the

sitting position may even decrease.

R. 197.

The ALJ rejected in its entirety Dr. Klymiuk’s May 29, 2002

opinion when he rejected “Dr. Klymiuk’s opinion contained in

Exhibit 7F.” See R. 19. This does not suggest, as Caldwell

contends, that the ALJ adopted part and rejected part of the

opinion; rather, the ALJ rejected the entire opinion. The decision

is therefore sufficient for the court to review the ALJ’s analysis.

The ALJ rejected Dr. Klymiuk’s opinion as brief and

conclusory, inconsistent with the remainder of his opinions and the

 

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balance of the record, and unsupported by diagnostic tests. R. 19.

The ALJ specifically stated that Dr. Klymiuk’s opinion is

unsupported by statements of other physicians, by the findings of

state agency medical experts, and by the testimony of the medical

expert. Id. 

To the extent Caldwell complains about the ALJ’s rejection of

Dr. Klymiuk’s opinion that he is unable to hold a full-time job,

his argument is unavailing because this opinion is not a medical

opinion that the ALJ must credit. Rather, it is a legal conclusion

reserved to the Commissioner, and the ALJ was permitted to

disregard it in the instant case. See Frank v. Barnhart, 326 F.3d

618, 620 (5th Cir. 2003) (per curiam) (on rehearing) (“Among the

opinions by treating doctors that have no special significance are

determinations that an applicant is ‘disabled’ or ‘unable to

work.’” (citing 20 C.F.R. § 404.1527(e)(1))).

The only other opinion that arguably contradicts the ALJ’s

decision is Dr. Klymiuk’s judgment that Caldwell is unable to sit

in one place for more than two hours at a time, then must take a

half-hour break. This statement, however, is not inconsistent with

the ALJ’s finding that Caldwell can perform sedentary work. Dr.

Klymiuk did not provide an opinion regarding the maximum amount of

time Caldwell can sit in an eight-hour workday. The relevant

regulation defines sedentary work as follows:

Sedentary work involves lifting no more than

10 pounds at a time and occasionally lifting

 

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and carrying articles like docket files,

ledgers, and small tools. Although a

sedentary job is defined as one which involves

sitting, a certain amount of walking and

standing is often necessary in carrying out

job duties. Jobs are sedentary if walking and

standing are required occasionally and other

sedentary criteria are met.

20 C.F.R. § 404.1567(a). The fact that Caldwell cannot sit more

than two hours in one place is not inconsistent with a finding that

he can sit during much of the workday. See Bradley v. Bowen, 809

F.2d 1054, 1055, 1057 (5th Cir. 1987) (per curiam) (affirming ALJ’s

decision that claimant was not disabled where examining physician

stated that claimant could sit for two hours at a time, up to eight

hours). In fact, had the ALJ credited Dr. Klymiuk’s opinion in

this respect, the ALJ still could have concluded that Caldwell was

able to sit more than six hours in an eight-hour workday. Such a

finding would also be consistent with the March 19, 2002 RFC

assessment performed by Kelvin A. Samaratunga, M.D. (“Dr.

Samaratunga”), a consulting physician, and the testimony of

Sterling E. Moore, M.D., (“Dr. Moore”), the medical expert who

testified at the hearing. Dr. Samaratunga opined that Caldwell

could sit, with normal breaks, for six hours in a workday. R. 109.

The ALJ credited Dr. Moore’s testimony that Caldwell “had ability

to engage in work activities involving sitting 6 out of 8 hours at

2 hour intervals[.]” Id. at 15; cf. Edwards v. Chater, 1997 WL

271365, at *2-*3 (E.D. La. May 20, 1997) (holding claimant could be

found able to perform sedentary work although limited to sitting

 

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not more than two hours at a time). Because Caldwell has not

demonstrated that Dr. Klymiuk’s opinion regarding his ability to

sit for a maximum of two hours is inconsistent with the ALJ’s

findings, he has not shown that he was prejudiced by the ALJ’s

rejection of this opinion. Accordingly, the court declines to

reverse the ALJ’s decision on this basis. 

B

In attacking the weight the ALJ gave Dr. Klymiuk’s May 29,

2002 opinion, Caldwell also suggests that the ALJ implicitly

rejected a portion of Dr. Klymiuk’s February 27, 2002 opinion. In

this opinion, Dr. Klymiuk noted that Caldwell was taking medication

for depression before the death of his brother. R. 200. His

progress note contains the statement (and it is not clear whether

this is a restatement of Caldwell’s assertion or Dr. Klymiuk’s own

conclusion) that “[h]is brother’s death and the grieving after he

was gone had nothing to do with starting the antidepressant.” Id.

The ALJ determined, however, that Caldwell suffered “situational

depression related to the death of his brother and for financial

difficulties.” R. 18. The court agrees that this is a partial

rejection of Dr. Klymiuk’s February 27, 2002 opinion. Caldwell has

not demonstrated, however, that the ALJ’s decision is reversible on

this basis.

Caldwell stated at the hearing that his pain had not responded

to medical therapy or pain medications. The ALJ discounted this

 

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assertion. He found that, contrary to Caldwell’s contention, the

medical evidence demonstrated that Caldwell had responded well to

medical treatment and pain medication. Specifically, the ALJ

pointed, inter alia, to (1) a December 2001 treatment note that

indicated that he was taking no more than two or three Norco daily

and that he described his pain as a 5 out of 10 overall, which is

not a disabling level of pain; (2) a February 2002 treatment note

that described Caldwell as doing well with his current medications;

(3) a September 2002 note that indicated Caldwell’s pain was fairly

well controlled; and (4) a January 2003 opinion in which it was

noted that Caldwell was functioning with medications controlling

his pain. Id.

The ALJ further explained that Caldwell’s assertion was not

supported by observable signs typically seen in persons who have

severe unremitting pain that is unresponsive to treatment or

medication. He observed that Caldwell has been consistently

described as “cooperative, alert, fit appearing, fully oriented,

pleasant, and with normal thought and speech,” and he had never

reported any suicidal ideation or significant emotional or

psychological regression or deterioration. Id. It was in this

context that the ALJ found that Caldwell was treated for

situational depression related to the death of his brother and

financial problems. But immediately thereafter, he noted that

Caldwell had responded very well to psychotropic medications. Even

 

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if the ALJ had found that the use of psychotropic medications was

unrelated to his brother’s death or his financial difficulties, the

ALJ still would have concluded that he was responding very well to

the use of such medications. The fact that Caldwell responded well

to psychotropic medications undermined his statement that the pain

had not responded to medical treatment or pain medication, even if

these medications were prescribed to help him deal with his back

pain. Caldwell has not shown that the ALJ might have reached a

different conclusion had he found that Caldwell’s use of

psychotropic medications was unrelated to his brother’s death or

his financial difficulties. Caldwell has therefore failed to show

reversible error on this basis.

 * * * 

 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 17, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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