IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

JANIS WALTERS, §

§

Plaintiff, §

§

VS. § NO. 7-04-CV-172-BD

§

JO ANNE B. BARNHART, §

Commissioner of Social Security §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff Janis Walters, appearing pro se, seeks judicial review of a final decision of the

Commissioner of Social Security denying her application for supplemental security income benefits

under Title XVI of the Social Security Act, 42 U.S.C. § 401, et seq. For the reasons stated herein,

the hearing decision is affirmed.

I.

Plaintiff alleges that she is disabled due to a variety of physical ailments, including a head

injury, cervical disc disease, osteoarthritis, chronic pain, hypertension, and hyperthyroidism. After

her application for social security benefits was denied initially and on reconsideration, plaintiff

requested a hearing before an administrative law judge. This hearing was held on January 9, 2002.

At the time of the hearing, plaintiff was 54 years old. She has a high school equivalency diploma

with three semesters of college. Plaintiff has not worked in the past 15 years and has never engaged

in substantial gainful activity. 

The ALJ found that plaintiff was not disabled and therefore not entitled to supplemental

security income benefits. Although the medical evidence established that plaintiff has a history of

 

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 closed head injuries, substance abuse, degenerative disc disease, chronic headaches, hypertension,

obesity, mild depression and anxiety, and possible panic disorder without agoraphobia, the judge

concluded that the severity of those impairments did not meet or equal any impairment listed in the

social security regulations. The ALJ further determined that plaintiff had the residual functional

capacity to perform a limited range of light, unskilled work. Relying on the testimony of a

vocational expert, the judge found that plaintiff was capable of working as an electronics worker,

a gluer, and an assembly bench worker--jobs that exist in significant numbers in the national

economy. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff

then filed this action in federal district court.

II.

Plaintiff does not specify the grounds on which she challenges the denial of supplemental

security income benefits. However, when asked to explain the basis of her claims against the

Commissioner of Social Security, plaintiff responded, "New information and the decision is contrary

to the weight of all the evidence now in the record." (Spears Quest. #1). The court will therefore

examine the administrative record to determine whether the hearing decision is consistent with

applicable legal standards and supported by substantial evidence.

A.

Judicial review in social security cases is limited to determining whether the Commissioner's

decision is supported by substantial evidence and whether the proper legal standards were used to

evaluate the evidence. See 42 U.S.C. § 405(g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).

Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept to

support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d

842 (1971); Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993). It is more than a scintilla but

 

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less than a preponderance. Richardson, 91 S.Ct. at 1427. The district court may not reweigh the

evidence or substitute its judgment for that of the Commissioner, but must scrutinize the entire

record to ascertain whether substantial evidence supports the hearing decision. Hollis v. Bowen, 837

F.2d 1378, 1383 (5th Cir. 1988).

A disabled worker is entitled to monthly social security benefits if certain conditions are met.

42 U.S.C. § 423(a). The Act defines "disability" as the inability to engage in substantial gainful

activity by reason of any medically determinable physical or mental impairment that can be expected

to result in death or last for a continued period of 12 months. Id. § 423(d)(1)(A); Cook v. Heckler,

750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a five-step sequential

evaluation process that must be followed in making a disability determination:

1. The hearing officer must first ascertain whether the claimant

is engaged in substantial gainful activity. A claimant who is

working is not disabled regardless of the medical findings.

2. The hearing officer must then determine whether the claimed

impairment is "severe." A "severe impairment" must

significantly limit the claimant's physical or mental ability to

do basic work activities. This determination must be made

solely on the basis of the medical evidence.

3. The hearing officer must then determine if the impairment

meets or equals in severity certain impairments described

in Appendix 1 of the regulations. This determination is

made using only medical evidence.

4. If the claimant has a "severe impairment" covered by the

regulations, the hearing officer must determine whether the

claimant can perform his past work despite any limitations.

5. If the claimant does not have the residual functional capacity

to perform past work, the hearing officer must decide whether

the claimant can perform any other gainful and substantial 

work in the economy. This determination is made on the

basis of the claimant's age, education, work experience, and

residual functional capacity.

 

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See generally, 20 C.F.R. § 404.1520(b)-(f). The claimant has the initial burden of establishing a

disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct.

2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that

the claimant is capable of performing work in the national economy. Id. A finding that the claimant

is disabled or not disabled at any point in the five-step review is conclusive and terminates the

analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

In reviewing the propriety of a decision that a claimant is not disabled, the court's function

is to ascertain whether the record as a whole contains substantial evidence to support the

Commissioner's final decision. The court weighs four elements to determine whether there is

substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating

and examining physicians; (3) subjective evidence of pain and disability; and (4) the claimant's age,

education, and work history. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995), citing Wren v.

Sullivan, 925 F.2d 123, 126 (5th Cir. 1991). The ALJ has a duty to fully and fairly develop the facts

relating to a claim for disability benefits. Ripley, 67 F.3d at 557. If the ALJ does not satisfy this

duty, the resulting decision is not substantially justified. Id. However, procedural perfection is not

required. The court will reverse an administrative ruling only if the claimant shows that his

substantive rights were prejudiced. Smith v. Chater, 962 F.Supp. 980, 984 (N.D. Tex. 1997).

B.

The ALJ found that plaintiff was not disabled because she had the residual functional

capacity to perform a limited range of light, unskilled work. (Tr. at 29-30). As noted by the ALJ,

plaintiff underwent a consultive medical evaluation in September 2000. The examiner, Dr. Grethe

Wik, found that plaintiff could frequently lift 25 pounds and occasionally lift 50 pounds, could

stand, sit or walk for six hours during an eight-hour workday, and was not limited in her ability to

 

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1

 The ALJ properly rejected the results of a third psychiatric evaluation performed by Dr. Tom Mareth, who

described plaintiff as being mildly depressed and having delusional thinking, poor judgment, and low-normal intellectual

functioning, as wholly inconsistent with and not supported by objective medical evidence. (See Tr. 347-48 & 28).

push or pull. (Id. at 455). No postural, manipulative, visual, communicative, or environmental

limitations were noted. (Id. at 456-59). The results of that evaluation were consistent with the

conclusion reached by another physician, Dr. Anica Naprta, one month earlier. Although Dr. Naprta

determined that plaintiff suffered from degenerative joint disease of the cervical spine, hypertension,

and the residual effects of a right shoulder injury, she concluded that plaintiff was able to sit, stand,

move about, lift, carry, and handle objects. (Id. at 453). Two psychiatrists, Dr. Tim Ashaye and Dr.

Jack Tomlinson, found that plaintiff was fully oriented, with good memory and concentration, and

had above average intellectual functioning. (Id. at 153-58 & 446-49).1 

There is ample medical evidence to support the finding that plaintiff can perform unskilled

work at the light exertional level which does not involve standing for more than two hours,

balancing, climbing steps or ladders, ambulation without the use of a cane, working at unprotected

heights or around moving equipment, no more than superficial interaction with coworkers and the

general public, and no more than moderate levels of stress or pressure. (See id. at 29). Clinton A.

King, a vocational expert, testified that a person of plaintiff's age, education, and residual functional

capacity could work as an electronics worker, gluer, or assembly bench work and that such jobs exist

in significant numbers in the national economy. Nothing in the record suggests that this finding is

inconsistent with applicable legal standards or not supported by substantial evidence.

C. 

The court notes that the ALJ rejected the opinion of plaintiff's treating neurologist, Dr. B.R.

Bartel, who wrote in July 1997 that the severity of plaintiff's high blood pressure, cervical

spondylosis, and anxiety disorder precluded "any type of employment." (Id. at 339). The opinion

 

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of a treating source is generally entitled to controlling weight so long as it is "well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); Spellman v. Shalala,

1 F.3d 357, 364 (5th Cir. 1993). Even if a treating source opinion is not given controlling weight,

it still is entitled to deference "and must be weighed using all of the factors provided in 20 C.F.R.

404.1527 and 416.972." SSR 96-2p, 1996 WL 374188 at *4 (SSA Jul. 2, 1996). See also Newton

v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). These factors require consideration of:

(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; and

(6) the specialization of the treating physician.

20 C.F.R. § 404.1527(d)(2). A treating source opinion cannot be rejected absent good cause for

reasons clearly articulated in the hearing decision. Myers v. Apfel, 238 F.3d 617, 621 (5th Cir.

2001). More specifically, the ALJ must clearly articulate the weight given to the treating source

opinion:

[T]he notice of the determination or decision must contain specific

reasons for the weight given to the treating source's medical opinion,

supported by the evidence in the case record, and must be sufficiently

specific to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source's medical opinion and the

reasons for that weight. 

SSR 96-2p, 1996 WL 374188 at *4-5. 

In a thorough and well-reasoned decision, the ALJ explained why he rejected Dr. Bartel's

opinion that the severity of plaintiff's physical and mental impairments rendered her unable to work:

 

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[T]he claimant has been followed by [Dr. Bartel] with long-term

ongoing medical treatments and evaluations. Diagnostic studies of

her lumbar and cervical spinal regions have revealed basically mild

degenerative disc disease of her cervical spinal region without any

evidence of spinal fractures or nerve root compressions. Nor have

diagnostic studies confirmed the existence of any radiculopathies or

significant neurological deficits. To the contrary, physical

examinations have persistently shown her to demonstrate[] good

strength, mobility, and motor function in her spine and all her

extremities and joints . . . [Dr. Bartel] did not refer the claimant for

any invasive treatments or extensive physical therapies. A review of

[Dr. Bartel's] treatment[] notes does not show[] him to have

persistently described the claimant as suffering considerable

physiological work-related restrictions and limitations . . . [T]he

claimant's hypertension and mild obesity has been followed with

appropriate medical treatments and medication therapies . . . The

claimant has not required any inpatient or emergency treatments to

address acute psychiatric disorders. . . Although at times she reported

a history of possible panic attacks without agoraphobia, this reported

history has been very inconsistent. In contrast to the history and

signs of hallucinations, delusions, and thought disorders described

and/or exhibited during the January 1998 consultative psychiatric

evaluation, no such mental disorders are [] confirmed to exist

anywhere else in the hearing record. Neither of other two

consultative psychiatric evaluations, the ongoing neurological

treatment notes, or other ongoing medical treatment notes confirm

any evidence of hallucinations, delusions, psychosis, or any other

thought disorders. 

(Id. at 27) (internal citations omitted). This explanation constitutes "good cause" for giving the

treating source opinion limited or no credence. Although the ALJ did not make a specific finding

as to each of the factors set forth in 20 C.F.R. § 404.1527(d)(2), his narrative indicates that each

factor was considered. (Id). The regulations require only that the hearing officer "apply" the section

1527(d)(2) factors and articulate good reasons for the weight assigned to the treating source opinion.

20 C.F.R. § 404.1527(d)(2). The judge need not recite each factor as a litany in every case. See

Alejandro v. Barnhart, 291 F.Supp.2d 497, 507 (S.D. Tex. 2003). No error occurred in this regard.

Spellman, 1 F.3d at 365.

 

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D.

The ALJ also found that plaintiff's testimony regarding her symptoms and pain was not

credible to the extent alleged. (Tr. at 26-27). This conclusion is consistent with the opinion of Dr.

Naprta, who noted that plaintiff's presentation of pain "does seem exaggerated." (Id. at 453).

Moreover, plaintiff consistently reported that she is able to cook, clean, shop, take care of her

grooming, pay bills, and keep up with her checkbook. (See id. at 349, 448, 522-23). The nature and

extent of these activities undermine any argument that plaintiff is unable to perform light, unskilled

work.

E.

Finally, plaintiff challenges the hearing decision based on "new information" in the form of

a letter from Dr. Bartel dated November 10, 1997. (See Spears Quest. #1). This letter states, in

pertinent part:

[Plaintiff] has a history of cervical disk disease with osteoarthritis in

the cervical and lumbar spine. This produces intractable neck pain

and headaches. She also has hypertension that is difficult to control

that produces periodic dizziness and balance problems. She also has

long standing panic disorder with depression which prevents her from

learning new job activity or concentrating for on [sic] the job activity.

She is unable to lift or carry more than 20 lbs. She is unable to

engage in the daily activities required to keep and maintain

employment or concentrate or learn new tasks for job performance.

Because of this, I think she is disabled from gainful employment.

(Id. at 346). 

A claimant relying on new evidence must establish good cause for failing to introduce the

evidence in the prior proceeding. See Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987). Even

if the claimant meets this initial burden, a remand is not warranted if there is no reasonable

 

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2

 The court also notes that the opinion rendered by Dr. Bartel in his November 10, 1997 letter is exactly the

same as his earlier opinion that plaintiff is "unable to work in any type of employment," which was rejected by the ALJ.

(Compare Tr. at 339 and 346). It is therefore unlikely that this letter would have changed the outcome of the disability

determination.

probability that the new evidence would have changed the outcome of the disability determination.

Id.; Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Dr. Bartel's letter was introduced into

evidence at the hearing held on January 9, 2002 and is contained in the administrative record.

Therefore, the letter does not constitute "new evidence" justifying a remand.2

 CONCLUSION

Having reviewed the entire record, the court finds that the ALJ's decision denying plaintiff's

application for supplemental security income benefits is consistent with applicable legal standards

and supported by substantial evidence. Accordingly, the hearing decision is affirmed in all respects.

SO ORDERED.

DATED: November 23, 2005.

 

 

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