IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

§

PATRICIA FEATHERSTON, §

§

 Plaintiff, §

§

vs. § Civil Action No. 6:05-CV-032-C

§ ECF

§ Referred to the U.S. Magistrate Judge

JO ANNE B. BARNHART, §

Commissioner of Social Security, §

§

 Defendant. §

REPORT AND RECOMMENDATION

This case is before the court upon Plaintiff’s complaint filed May 11, 2005, 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 under Title II of the Social

Security Act. Plaintiff filed a brief in support of her complaint on September 12, 2005, and

Defendant filed her brief on October 7, 2005. 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 affirm the Commissioner’s decision and dismiss the complaint with

prejudice.

I. STATEMENT OF THE CASE

Plaintiff filed an application for a period of disability and disability insurance benefits on

September 5, 2001, alleging disability beginning September 22, 1998. Tr. 13. Plaintiff’s application

 

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was denied initially, on reconsideration, and in an Administrative Law Judge (“ALJ”) decision dated

March 15, 2003. Tr. 13. Plaintiff filed a request for review with the Appeals Council and on

August 1, 2003, the Appeals Council vacated the ALJ’s decision and remanded the case for further

proceedings. This matter then came for a second hearing before the Administrative Law Judge on

August 25, 2004. Tr. 13, 253-73. Plaintiff, represented by an attorney, testified in her own behalf.

Tr. 256-66. Michael Driscoll, a vocational expert (“VE”), appeared and testified as well. Tr. 13,

266-72. On September 23, 2004, the ALJ again issued a decision unfavorable to Plaintiff. Tr. 11-

23. 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 met the disability

insured status requirements through September 30, 2003, only and that Plaintiff had not engaged in

substantial gainful activity at any time since September 22, 1998. Tr. 13. He found that Plaintiff

has “severe” impairments, including headaches, degenerative disc disease of her cervical and lumbar

spines, impairment status-post cervical spine surgery, and a history of temporomandibular joint

disease. Tr. 14. He found that Plaintiff also had a history of depression, anxiety, and claustrophobia

but that her mental impairments were not “severe” prior to the expiration of her insured status. 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 her past relevant work or other work

existing in the national economy prior to the expiration of her insured status.

The ALJ acknowledged that in making the RFC assessment, he must consider all symptoms,

including pain, and the extent to which these symptoms can be reasonably accepted as consistent

with the objective medical evidence and other evidence, based on the requirements of Social

Security Ruling 96-7p. Tr. 16. 

 

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 The ALJ found that based on the evidence in the record, Plaintiff’s statements concerning

her impairments and their impact on her ability to work were not entirely credible. Tr. 18.

He found that Plaintiff retained the RFC to perform the full range of light work on a

sustained basis, except that she could only occasionally perform all positional changes, could not

work overhead, and could not perform work that required sudden head or neck movements or

constant looking down (e.g., to read). Tr. 22. 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 the work of bookkeeper. Tr. 21. The ALJ thus concluded that Plaintiff could return

to her past relevant work as a bookkeeper as she performed it and as it is generally performed in the

national economy. Tr. 21. The ALJ found, therefore, that Plaintiff was not disabled within the

meaning of the Social Security Act at any time through the date of his decision. Tr. 21-22. 

Plaintiff submitted a Request for Review of Hearing Decision/Order on October 13, 2004.

Tr. 9-10. The Appeals Council issued its opinion on April 6, 2005, indicating that although it had

considered the contentions raised in Plaintiff’s Request for Review and the additional evidence, it

nevertheless concluded that there was no basis for changing the ALJ’s decision and denied

Plaintiff’s request. Tr. 3-6. The ALJ’s decision dated September 23, 2004, therefore, became the

final decision of the Commissioner.

On May 11, 2005, Plaintiff commenced this action which seeks 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

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.

 

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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. Substantial gainful activity 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 4 that Plaintiff was not disabled

because she retained the RFC to return to her past relevant work prior to the expiration of her

insured status. Tr. 21, 23.

III. DISCUSSION

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

substantial evidence because the ALJ erred by picking and choosing only the evidence that

supported his position. Plaintiff further claims that the ALJ erred by not giving the opinion of the

treating physician controlling weight. 

 

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A. Whether the ALJ erred by picking and choosing only the evidence that supported his

position.

Plaintiff argues under her first point of error that the issue is Plaintiff’s problems with her

neck, but the ALJ discussed Plaintiff’s other impairments. 

Defendant correctly responds that when Plaintiff filed for benefits, she alleged disability due

to neck injuries and mental impairments. Tr. 104. At the administrative hearing on August 25,

2004, Plaintiff testified that she was disabled due to pain in her neck, shoulders, and arms, numbness

and weakness in her hands, and pain in her lower back. Tr. 258, 260-63. Thus, the ALJ’s discussion

of Plaintiff’s lumbar spine, gait, arms, legs, hands, and reflexes was appropriate. However, since

Plaintiff has limited her arguments to issues related only to her neck, the court will limit its

consideration of other matters.

Plaintiff specifically claims that the ALJ erred by picking and choosing only the evidence

that supported his position. “[I]t is clear that the ALJ must consider all the record evidence and

cannot ‘pick and choose’ only the evidence that supports his position.” Loza v. Apfel, 219 F.3d 378,

393 (5th Cir. 2000). 

Plaintiff complains that the ALJ discussed Plaintiff’s lumbar spine, her extremities, and other

claimed impairments addressed by a report of Dr. Martin Franklin while ignoring Dr. Franklin’s

statement on the same page that Plaintiff had no range of motion in her neck. However, this report

was based on Dr. Franklin’s examination of Plaintiff only 37 days after Plaintiff’s operation on her

neck, and the report states that Plaintiff “is currently in a stiff neck brace, which allows no range of

motion. The brace is not to be removed per instructions of her physician for several months.” Tr.

224. Moreover, in reviewing the medical evidence, the ALJ stated repeatedly in his decision that

Plaintiff had a limited range of motion of her neck and that, after her neck surgery, “she wore a stiff

neck brace which allowed no range of motion of her neck.” Tr. 18. 

 

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Next, Plaintiff complains that the ALJ accepted Dr. Joe Ellis Wheeler’s statement that

Plaintiff was healing well but does not acknowledge that, in the same paragraph, Dr. Wheeler states

that Plaintiff has so much of her neck fused that she cannot look down at her work or when she

reads. To the contrary, in discussing Dr. Wheeler’s reports the ALJ refers specifically to Plaintiff’s

“restrictions in looking up and down.” Tr. 18, 20. He also referred to Plaintiff’s stiff neck brace

after surgery which allowed her no range of motion of her neck. Tr. 18. 

Thus, none of Plaintiff’s specific claims that the ALJ inappropriately picked and chose only

the evidence that supports his position has merit. Plaintiff has failed to identify any evidence

favorable to Plaintiff that was not discussed and reasonably considered in the ALJ’s decision. 

In any event, the ALJ stated in his decision that he gave careful consideration to all of the

record evidence as required by Loza. Tr. 14; Loza, 219 F.3d at 393. He considered and specifically

reported Plaintiff’s medical records at length. Those relating primarily to Plaintiff’s neck were

reported generally as follows:

1. The ALJ found that Plaintiff had degenerative disc disease of her cervical spine and

status-post cervical spine surgery, among other impairments, which were a severe combination of

impairments. Tr. 14. He noted that Plaintiff had a vehicle accident in 1996 and reported having

neck pain ever since. Tr. 16. Physical therapy, chiropractic treatment, and acupuncture did not

significantly improve her condition. Tr. 16-17. Radiographic testing showed degenerative changes,

spondylosis, and the loss of disc space at multiple levels of her cervical spine, and Plaintiff reported

tenderness throughout her neck. Tr. 17. Plaintiff’s range of motion of her neck was limited, but her

strength was intact and she did not exhibit any neurological deficits. Id. Plaintiff saw Dr. Daniel

Vaughn, a neurologist, for an examination and electromyogram (EMG) testing. Id. She had

tenderness and spasms, her strength was preserved, her reflexes were normal, her sensation was

essentially normal, her coordination was intact, her gait was normal, and the EMG and a nerve

 

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conduction study were normal, showing no evidence of radiculopathy. Id. Plaintiff was referred

for facet block injections, but she did not attend the appointment. In April 2001 she said that she

did not wish to undergo the injections at that time. She was advised to walk regularly for exercise.

Id.

2. Plaintiff began chiropractic treatment in February 2001 with Dr. Shaughn Sims. She

exhibited decreased range of motion of her neck and was diagnosed with degenerative joint disease,

osteoarthritis, and multiple subluxation of the cervical spine. She described her pain as a dull ache

in her upper cervical spine and tight musculature in her lower cervical spine. Her gait remained

normal, and in April 2001 Dr. Sims noted that Plaintiff had responded well to treatment and had

significant relief from her symptoms. Id.

3. Radiographic testing in October 2001 showed osteophytes and degenerative changes

throughout Plaintiff’s cervical spine, but there was only mild neural foraminal narrowing and no sign

of significant spinal stenosis. Id.

4. Plaintiff was examined by Dr. Paul McDonough, a neurosurgeon, in December 2001.

He indicated that Plaintiff had mild tenderness over her neck, reduced range of motion of her

cervical spine, and multiple levels of cervical degenerative disc disease, but her strength remained

full, and she did not have any focal weakness, numbness, or clinical myelopathy. Dr. Wheeler had

similar findings that month. He indicated that Plaintiff’s range of motion of her neck was reduced

and she walked in a flexed position. She complained of severe pain in her neck and a loss of grip

strength, but her examination indicated that her strength of grip and other areas were within normal

limits. Surgery was recommended, and in March 2002 Plaintiff underwent a discectomy and fusion

at C3-4, C5-6, and C6-7 of her cervical spine. Plaintiff tolerated the procedure well. Post-surgery

radiographic testing in April 2002, indicated that the fusion was well incorporated at C3-4, but no

fusion mass was seen at C5-6 and C6-7. Id.

 

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5. In April 2002 Plaintiff underwent a consultative examination with Dr. O. Martin

Franklin and reported that she continued to have constant pain in her neck and other areas, but her

pain was much better than prior to the surgery. She claimed that she could stand only 15 minutes,

sit only 15 minutes, and walk only half a block at a time due to her pain, and she wore a stiff neck

brace which allowed no range of motion of her neck. Her gait was guarded, but normal, she was

able to heel and toe walk, and her straight leg-raising test was negative bilaterally. Plaintiff was

unable to abduct her shoulders beyond 90 degrees due to neck pain, but the range of motion of her

upper extremities was otherwise full. Her strength was good in her upper extremities and her

reflexes were intact. Tr. 18.

6. In August 2002 Dr. Wheeler noted that Plaintiff was healing well and her pain was

primarily gone, except at the base of her skull. Dr. Wheeler opined that it would be difficult for her

to hold down an 8-hour-a-day job due to her restrictions in looking up and looking down. EMG and

nerve conduction studies in December 2002 were consistent with some C7 radiculopathy/nerve root

irritation. However, an MRI showed no evidence of nerve root compression or other severe

abnormalities. It showed disc bulges and osteophyte formation at C4-5 and C6-7 of Plaintiff’s

cervical spine, but there was minimal neural foraminal narrowing and degenerative facet disease,

with no sign of herniation, stenosis, or nerve root compression. Id.

The ALJ then considered and discussed Plaintiff’s subjective allegations of pain and other

symptoms. He found that her allegations were not entirely credible because they had been

inconsistent with and out of proportion to the other record evidence. Id. He specifically considered

and discussed Plaintiff’s subjective allegations as follows:

1. He considered Plaintiff’s very good work history. She testified at her first hearing

that she stopped working due to severe pain in her neck, shoulders, and arms and continued to have

severe pain after her neck surgery in March 2002. Her neck pain shot down her arms into her

 

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fingers and caused difficulty with writing and holding her head up or down. She did not sleep well,

she could not do many household chores due to her pain, and she could not lift more than two

pounds. Id.

2. She testified at her second hearing that she had constant pain in her neck, shoulders,

and arms due to a motor vehicle accident in 1996 and that she cannot take normal pain medications

due to allergies. Tr. 19. She had limited head movement, and her hands become numb and swell

at times. Dr. Wheeler told her that he could not do anything else for her. She tries to work on a

computer for 30 minutes at a time, but her pain worsens. It is difficult for her to drive, and she must

turn her whole body to look when driving. S he drives in the early morning when there is not much

traffic. Walking causes pain in her low back and hip, and her neck becomes stiff as it is jarred by

her walking. She is at home most of the time, and she lies down a lot to help take pressure off of

her neck. She can look up only very slightly, but she can wash her hair. Id.

3. The ALJ did not doubt that Plaintiff had experienced pain and discomfort in her neck,

upper extremities, and back due to her degenerative disc disease and other impairments. Tr. 19.

However, he found that the evidence did not indicate that Plaintiff was disabled or that she was as

limited as she alleged. The examinations prior to her surgery indicated that she had tenderness and

occasional muscle spasms in her neck and shoulders, and the range of motion of her neck was

limited. However, the range of motion of her shoulders and upper extremities was normal. She also

had full grip strength and full strength in her upper extremities, even though she claimed that she

had difficulty holding onto things and could not lift more than two pounds. Radiographic testing

showed degenerative changes and osteophyte formation of her cervical spine, but there was no

evidence of herniation, stenosis, nerve root compression, or any other condition that would cause

the severe, debilitating pain that Plaintiff alleged, and she did not experience any significant

 

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neurological deficits. Id. Plaintiff’s gait was independent and usually described as normal. There

was no sign of focal weakness or numbness. Id.

4. He observed that although Plaintiff alleged that she continued to have severe and

disabling pain after her neck surgery, Dr. Wheeler’s treatment notes indicated that Plaintiff did well

after surgery and that the surgery eventually developed a solid fusion. Tr. 19. She exhibited good

strength and sensation of her hands and upper extremities, her surgical wounds healed well, and she

admitted that her pain had improved, all of which was inconsistent with her testimony. Although

an EMG in December 2002 suggested evidence of radiculopathy due to nerve root compression,

radiographic testing at that time showed no sign of nerve root compression, stenosis, or herniation.

A consultative examination by Dr. Franklin indicated that Plaintiff’s gait was normal but guarded,

her straight leg-raising test was negative, and she could heel and toe walk. Her strength was good,

even in her upper extremities. The range of motion of her neck and back was limited, particularly

her neck, but her examination did not support her claim that she could sit, stand, and walk only a few

minutes at a time. The ALJ found that the evidence certainly did not support Plaintiff’s claim that

she was unable to lift more than two pounds. I n addition, in August 2002 Dr. Wheeler noted that

Plaintiff’s pain was primarily gone, except for some pain at the base of her skull. Id.

Based on these observations, the ALJ determined that Plaintiff did not have the disabling

pain that she claimed and that her allegations regarding her pain and limitations to her back and

upper extremities seemed exaggerated and were inconsistent with the objective evidence. Tr. 19.

He recognized that Plaintiff may have experienced some degree of pain but that even a moderate

level of pain, standing alone, is not incompatible with the performance of certain levels of sustained

work activity. Tr. 20. He concluded that neither the objective medical or other evidence nor any

reasonable inference therefrom established that Plaintiff’s ability to function was so severely

 

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impaired as to preclude the performance of any work activity prior to the expiration of Plaintiff’s

insured status. Id.

Questions of credibility are the responsibility of the ALJ to resolve. Masterson, 309 F.3d

at 272. Social Security Ruling 96-7p provides that in making a credibility determination, the ALJ

may consider 

the medical signs and laboratory findings; diagnosis, prognosis, and other medical

opinions provided by treating or examining physicians or psychologists and other

medical sources; and statements and reports from the individual and from treating

or examining physicians or psychologists and other persons about the individual’s

medical history, treatment and response, prior work record and efforts to work, daily

activities, and other information concerning the individual’s symptoms and how the

symptoms affect the individual’s ability to work.

SSR 96-7. The ALJ is further instructed to consider the entire record. Id. The ALJ’s opinion

demonstrates that he appropriately considered and discussed the record as a whole, including

Plaintiff’s specific subjective claims of disabling pain, in making his credibility determination. His

credibility determination is supported by substantial evidence in the record.

In summary, the ALJ fairly considered all of the record evidence, including the subjective

evidence and his credibility determinations thereon. The court finds that the ALJ committed no

error in his consideration, that he did not inappropriately pick and chose only the evidence that

supported his position, and that the ALJ’s decision is supported by substantial evidence. Plaintiffs

claims under point of error 1 are without merit.

B. Whether the ALJ erred in not giving the opinion of the treating physician controlling

weight.

Under point of error 2, Plaintiff argues that the ALJ erred by not giving the opinion of

Plaintiff’s treating physician, Dr. Wheeler, controlling weight. The specific opinion in question is

Dr. Wheeler’s opinion in his report dated August 2, 2002, that “it would be difficult for [Plaintiff]

to hold down an eight hour day job due to her restriction in looking up or looking down.” Tr. 235.

 

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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 v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). 

However, “[a]mong the opinions of 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 regulation requires that the

ALJ must consider the six factors in subsection (d) only with respect to the medical opinions of

treating physicians. The factors do not apply to opinions “reserved to the Commissioner.” Dr.

Wheeler’s opinion in question is one of those legal conclusions that is reserved to the Commissioner.

Thus, Dr. Wheeler’s opinion that it would be difficult for Plaintiff “to hold down an eight hour day

job” had no special significance, and the ALJ was not required to give it controlling weight or to

consider the six factors in the regulation. Id. 

The ALJ addressed this opinion in his decision. Tr. 20. He stated that Dr. Wheeler was not

an expert in vocational or occupational matters. He agreed, however, with Dr. Wheeler’s opinion

that Plaintiff had a limited range of motion in her neck, and he found that Plaintiff could not perform

any overhead work or sudden head movements, that she could not perform activities that required

her to look down constantly, and that she was reasonably limited to only occasional postural

 

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activities. He noted that Plaintiff’s examinations indicated that she otherwise functioned fairly well

and that Dr. Wheeler indicated that Plaintiff’s pain was primarily gone. He found that Dr. Wheeler’s

opinion that Plaintiff had a limited range of motion of her neck that caused difficulty looking down

was reasonably supported by the evidence, but his opinion that Plaintiff was disabled was not

consistent with the overall evidence. The limited range of motion of Plaintiff’s neck did not

reasonably render her disabled as defined in the regulations. She healed and recovered well after

her surgery, and the overall evidence does not show that she was disabled. Id.

The court finds that the ALJ did not err by failing to give Dr. Wheeler’s opinion controlling

weight because the opinion in question was a legal conclusion reserved to the Commissioner. The

court further finds that the ALJ’s decision that the Plaintiff was not disabled is supported by

substantial evidence.

IV. CONCLUSION

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

recommends that the United States District Judge affirm the Commissioner’s decision and dismiss

the Plaintiff’s complaint with prejudice.

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) and

Rule 4 of Miscellaneous Order No. 6, For the Northern District of Texas, any party who desires to

object to these findings, conclusions, and recommendation must serve and file written objections

within 11 days after being served with a copy. A party filing objections must specifically identify

those findings, conclusions, or recommendation to which objections are being 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.

 

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Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings,

conclusions, and recommendation within 11 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 29th day of August, 2006.

_____________________________________

PHILIP R. LANE

UNITED STATES MAGISTRATE JUDGE

 

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