IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

RICHARD W. CRAIG, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-249-A

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY,§

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the above-captioned action wherein

Richard W. Craig ("Craig") is plaintiff and the Commissioner of

Social Security, currently Jo Anne B. Barnhart ("the

Commissioner"), is defendant. On January 23, 2006, the United

States Magistrate Judge issued his proposed findings,

conclusions, and recommendation to affirm the Commissioner's

decision that Craig's disability insurance benefits should cease

for a certain period of time. The magistrate judge granted the

parties until February 13, 2006, in which to file and serve any

written objections thereto. Craig timely filed his objections,

to which the Commissioner responded on February 27, 2006.

I.

Factual Background 

This case involves a dispute over the cessation of

disability benefits due to alleged medical improvement. 

Effective March of 1991, primarily for back-related problems

caused by an accident at work, the Commissioner awarded Craig

 

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The record in this case consists of three volumes of evidence, each

page of which is numbered sequentially. Citations to the record will be to

"R. at ___." 

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disability benefits. R. at 230-33.1 Because of the probability

of medical improvement, however, the Commissioner expressly

recommended that Craig be re-examined after a reasonable time for

rehabilitation. Id. at 233. In keeping with that

recommendation, in February of 1997, Craig was re-examined and

found to have medically improved in relation to his ability to

work. Id. at 253, 270-78. In 1998, that determination was

confirmed by an Administrative Law Judge ("ALJ"), and, in 2001,

the Appeals Council refused review of that decision. Id. at 7. 

Craig then sought judicial review from this court. On motion of

the Commissioner, however, the case was reversed and remanded for

further administrative proceedings. See October 2, 2002,

Judgment in Craig v. Barnhart, No. 4:01-CV-812-A (N.D. Tex.

2002). 

In October 2004, the ALJ again determined that Craig had

experienced medical improvement relative to his ability to work. 

Specifically, he found that Craig had regained the functional

capacity for sedentary work that did not require prolonged

sitting, standing, or walking and also provided frequent

opportunities to sit or stand. R. at 396. Although the ALJ

found Craig unable to perform his past work of, among other

things, being a truck driver and equipment repairman, the ALJ

found, after considering the testimony of a vocational expert,

that there were thousands of jobs in Texas that Craig, with his

 

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The ALJ also determined that Craig again became disabled on March 2,

2002, his fiftieth birthday. Though the reasons for this finding are poorly

articulated and thus unclear, because neither the Commissioner nor Craig

dispute this subsequent finding of disability, the court does not address that

issue here. 

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limitations, could perform. Id. at 397, ¶ 8 to 398, ¶ 13. Craig

now seeks reversal of that decision and a judgment awarding him

the disability benefits at issue.2 

II.

Standards of Review

In the Benefits Review Act of 1984, 42 U.S.C. 423(f),

Congress established specific standards for the termination of

disability benefits. Griego v. Sullivan, 940 F.2d 942, 943 (5th

Cir. 1991). Specifically, the Commissioner bears the burden of

showing medical improvement by demonstrating that the claimant's

medical condition has improved, that the improvement is related

to the claimant's ability to work, and that the claimant is

currently able to engage in substantial gainful activity. Id. at

943-44. 

Medical improvement is any decrease in the medical severity

of the impairment(s) present at the time of the most recent

favorable medical decision that the claimant was disabled. 20

C.F.R. § 404.1594(b)(1). And a medical improvement is related to

an individual's ability to work "if there has been a decrease in

the severity . . . of the impairment present at claimant's most

recent favorable medical decision and an increase in [the

individual's] functional capacity to do basic work activities." 

Id. at § 404.1594(b)(3).

 

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As to whether a claimant can engage in substantial, gainful

activity, the first consideration is whether the claimant can

perform past relevant work and, if not, whether the claimant can

perform other work. See Griego, 940 F.2d at 944. Whether the

claimant can perform other work than done in the past is to be

determined based upon the functional-capacity assessment of the

claimant as well as the claimant's age, education, and past work

experience. See 20 C.F.R. § 404.1594(f)(8). 

This court reviews the Commissioner's decision only to

determine whether the it is supported by substantial evidence and

whether the decision complies with applicable legal standards. 

Crouchet v. Sullivan, 885 F.2d 202, 204 (5th Cir. 1989). If

supported by substantial evidence, the Commissioner's findings

are conclusive and must be affirmed. Richardson v. Perales, 402

U.S. 389, 390 (1971). The court may not reweigh the evidence or

substitute its opinion for that of the Commissioner, but must

scrutinize the record in its entirety to ascertain whether

substantial evidence exists to support the Commissioner's

findings. Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). 

Substantial evidence is more than a mere scintilla, less than a

preponderance, and is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion. Crouchet, 885

F.2d at 204. In determining whether the Commissioner's decision

is supported by substantial evidence, the court considers (1)

objective medical facts and clinical findings, (2) diagnosis of

examining physicians, (3) subjective evidence of pain and

 

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disability as testified to by the claimant, and (4) the

claimant's age, education, and work history. Smith v. Schweiker,

646 F.2d 1075, 1077 (5th Cir. Unit A June 1981). "[N]o

substantial evidence" will be found only where there is a

"conspicuous absence of credible choices" or "no contrary medical

evidence." Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.

1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.

1983)).

Once the magistrate judge has issued his proposed findings,

conclusions, and recommendation, and the plaintiff has made

objections thereto, the district judge makes a de novo

determination of those portions of the magistrate judge's

specified proposed findings or recommendation to which objection

is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The

court now makes that determination in the context of the basic

principles mentioned above.

III.

Rulings on Craig's Objections

A. No Increase in Functional Capacity

The gist of Craig's primary objection is fairly

straightforward. While conceding medical improvement, he urges

that there was no corresponding increase in his functional

 

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capacity to do work as required. See 20 C.F.R. § 404.1594(b)(3).

The basis, however, for this objection is not so clear. Having

reviewed the entire record, including the parties' initial

briefing to the magistrate judge, Craig's support for this

objection appears to be based on a very selective comparison of

the two determinations regarding his functional capacity, one

favorable, one not. 

Specifically, the most recent favorable decision that Craig

was disabled occurred on March 23, 1993, when the Commissioner

found Craig to be disabled with an onset date of March 11, 1991,

and hence entitled to disability benefits from that date. See R.

at 233, 272. Craig urges that, in March of 1993, the ALJ

determined that: "The claimant's residual functional capacity for

the full range of sedentary work is reduced by severe pain and

weakness, the inability to engaged in prolonged sitting, the

inability to lift and carry up to 10 pounds, and the inability to

do occasional standing and walking." See Pl.'s Objections at 2;

see also R. at 232, ¶ 7. The most recent determination as to

Craig's functional capacity, in which an increase in that

capacity was found, occurred in 2004. R. at 390-99. As part of

that determination, the ALJ gave controlling weight to the

opinion of Craig's treating physician, Dr. Neece, that Craig

would have difficulty with prolonged sitting, standing, lifting,

and carrying. Id. at 397. 

Craig argues that a comparison of the two determinations

yields the same functional capacity. Therefore, there was no

 

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In its 2004 decision, the ALJ without explanation considered medical

evidence well beyond 1997. See, e.g., R. at 392-96. While neither Craig nor

the Commissioner objected to this, the court has nonetheless tried to limit

its focus to the medical evidence through March of 1997 when the ALJ made its

initial determination that Craig was disabled. So limited, the court still

concludes that there was substantial evidence of an increase in Craig's

functional capacity to work.

 

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Craig was involved in a mild car accident in March of 1997. He was

rear-ended while at a full stop. He was wearing his seatbelt. Notably, he

waited a couple of days before seeking any medical attention. When he did,

the results of the examination were unremarkable. Though the doctor noted

cervical and lumbar strain, he found no gross or motor deficits and also found

that Craig had a good grip in both hands. See R. at 319.

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increase in Craig's functional capacity to do work and, hence, no

medical improvement relative to his ability to work. The court

wholeheartedly concurs with the magistrate judge that Craig's

analysis is conveniently narrow. See Findings, Conclusions and

Recommendation of Magistrate Judge at 11. Indeed, his analysis

simply ignores the substantial evidence of the increase in his

functional capacity to work. 

A fairer review of the evidence considered by the ALJ in its

1993 finding of disability indicates that, during that time

frame, Craig could barely walk, was virtually bed-ridden, could

only carry 5 pounds maximum, could stand or walk for only one

hour in an eight-hour workday, and could sit for only four hours

total. R. at 231. Craig's condition in 1997,3 when the initial

decision of non-disability due to medical improvement was made,

presents a stark contrast. Specifically, his February 1997

medical examination revealed that, though he had a decreased

range of motion in his neck, Craig had a full range of motion in

his upper and lower extremities and, tellingly as far as any

pain, was not taking any medications whatsoever.4 R. at 273.

 

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In short, the arguably boilerplate and clearly cherry-picked

language from the ALJ's 1993 opinion upon which Craig relies

paints a misleading picture as to his functional capacity in

1997. 

So does Craig's interpretation of Dr. Neece's opinion, to

which the ALJ in 2004, gave controlling weight, as to Craig's

ability for standing, sitting, or walking. R. at 334-337. 

Essentially, Craig argues that Dr. Neece opined that he was

unable to sit, stand, or walk in any combination during an eighthour workday. See Pl.'s Objections at 2. The court disagrees. 

The court believes that the ALJ properly interpreted Dr. Neece's

opinion to be that Craig could not engage in these activities on

a prolonged basis. Even assuming, however, some ambiguity in Dr,

Neece's opinion, there is nonetheless substantial evidence to

support the ALJ's view that Dr. Neece's opinion was that Craig

could engage in these activities with appropriate breaks in

between. 

B. The Vocational Expert

Craig also objects that, because there is no medical

improvement relative to plaintiff's ability to perform work, the

ALJ erred by having a vocational expert testify as to the

existence of jobs suitable for him. See Pl.'s Objections at 3-4. 

Because, a discussed above, there is substantial evidence on this

issue, this objection is equally without merit.

C. Other Suitable Jobs

Craig further objects to a lack of substantial evidence 

 

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Any remaining objections are duplicative of the ones already discussed

and thus are denied as well.

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that he can perform other work in the national economy on a

regular and continuing basis. The court is unpersuaded. The

substantial evidence is that there were thousands of jobs in

Texas that Craig, even with his alleged physical limitations,

could perform. See R. 338, ¶ 13.5

IV.

Conclusion and Order

For the reasons stated above, all of Craig's objections are

without merit. Therefore, the court accepts the magistrate

judge's proposed findings, conclusions, and recommendation. 

Consistent therewith,

The court ORDERS that the Commissioner's decision that Craig

was not disabled between March 31, 1997, and March 1, 2002, and

consequently not entitled under Title II of the Social Security

Act to disability benefits during that period of time, be, and is

hereby, affirmed.

SIGNED August 16, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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