Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

STEPHEN F. BRENNING, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:05-CV-369-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Stephen F. Brenning brings this action pursuant to Section 405(g) of the Social

Security Act, Title 42 of the United States Code, for judicial review of a final decision of the

Commissioner of Social Security denying his claim for disability insurance benefits under Title II

of the Social Security Act. Brenning applied for disability benefits on March 20, 2002, asserting

that his disability commenced October 3, 2000. (Tr. 59). He met the insured status requirements

at all times relevant to the Commissioner’s decision. (Tr. 67). 

After his application for benefits was denied initially and on reconsideration, Brenning

 

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 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects

weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires

a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of

arm or leg controls. 20 C.F.R. § 404.1567(b).

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requested a hearing before an administrative law judge (the "ALJ"), and ALJ Randolph D. Mason

held a hearing on January 7, 2004 in Fort Worth, Texas. (Tr. 312). Brenning was represented by

counsel. On January 14, 2004, the ALJ issued a decision that Brenning was not disabled because

he had the residual functional capacity (RFC) to perform a modified range of light work activity,1

including his past relevant work. (Tr. 16-21). The Appeals Council denied Brenning’s request for

review, leaving the ALJ’s decision to stand as the final decision of the Commissioner. (Tr. 5). 

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

impairment lasting at least twelve months that prevents the claimant from engaging in substantial

gainful activity. 42 U.S.C. § 423(d)(1)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999).

To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step

analysis is employed. 20 C.F.R. § 404.1520. First, the claimant must not be presently working at

any substantial gainful activity. Substantial gainful activity is defined as work activity involving the

use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1527. Second, the

claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §

404.1520(c). At the third step, disability will be found if claimant’s impairment or combination of

impairments meets or equals an impairment listed in the appendix to the regulations. Id. §

404.1520(d). Fourth, if disability cannot be found on the basis of claimant’s medical status alone,

 

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the impairment or impairments must prevent the claimant from returning to his past relevant work.

Id. § 404.1520(e). And fifth, the impairment must prevent the claimant from doing any work,

considering the claimant's residual functional capacity, age, education, and past work experience.

Id. § 404.1520(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

Conflicts in the evidence are for the Commissioner and not the court to resolve. Masterson, 309

F.3d at 272. The court will not re-weigh the evidence, try the questions de novo, or substitute its

 

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 The intensity of physical activity is measured by the metabolic equivalent, or MET, level: Physical

activity that burns more than 6 METs is considered vigorous-intensity activity. CENTER FOR DISEASE CONTROL AND

PREVENTION, PHYSICAL ACTIVITY FOR EVERYONE: PHYSICAL ACTIVITY TERMS (Mar. 22, 2006),

http://www.cdc.gov/ nccdphp/dnpa/physical/terms/index.htm.

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judgment for the Commissioner's, even if the court believes the evidence weighs against the

Commissioner's decision. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d

at 1383.

C. ISSUES

Brenning contends that the ALJ misused evidence in reaching his decision and failed to fully

and fairly develop the record.

D. ADMINISTRATIVE RECORD

1. Medical History

On May 20, 1999, Brenning underwent triple-vessel coronary artery bypass surgery. (Tr.

118-36). Brenning had additional surgery in June 199 to drain an infection in his leg. (Tr. 111-13).

He initially did well following his bypass surgery, but in September 2000, he complained of

tightness in his chest and shortness of breath on exertion. (Tr. 160).

During a stress test administered in September 2000, Brenning achieved 10.1 METs2

 with

no ischemic changes, but the test was discontinued due to shortness of breath. (Tr. 143). A cardiac

catheterization performed October 3, 2000, showed a totally occluded left anterior descending artery

and left internal mammary artery graft, with severe disease of the right coronary artery. (Tr. 155-

58). Cardiologist Guduru Reddy, M.D., attempted to place a stent at the site of the occlusion, but

was not successful. (Tr. 157, 176).

 

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Brenning was referred to cardiologist Lorren Mott, M.D., in August 2001 for evaluation of

intermittent symptoms of shortness of breath and fatigue. (Tr. 172). An echocardiogram performed

August 24, 2001, showed normal left ventricular systolic function. (Tr. 171). Brenning achieved

10.1 METs during another exercise stress test in August 2001, with no ischemic changes and overall

ventricular systolic function assessed in the lower limits of normal. (Tr. 170). Brenning reported

dyspnea, but no chest discomfort, during the test. (Tr. 170).

 Brenning underwent a consultative evaluation with internist Beena Dave, M.D., on June 19,

2002. Brenning complained of chest pain radiating into his jaw and neck, shortness of breath, leg

cramps, and back pain. (Tr. 176-77). Diagnostic studies from March 1999 confirmed degenerative

disc disease along Brenning’s cervical spine, and Brenning also stated that he had a bulging disc

along his lumbar spine. (Tr. 137-39, 177). 

On examination, Dave noted that Brenning’s neck movement was not restricted and he had

no local tenderness, but exhibited restricted flexion range-of-motion in his back. (Tr. 178). His gait

was steady, and he was able to perform toe, heel, and tandem walking. Brenning was able to get on

and off the examination table and move about the examining room. Fine and dextrous finger control

was also assessed as normal. A neurological evaluation was normal, with motor power of 5/5 and

no sensory deficits. Straight leg raising was negative to ninety degrees in a seated position, and

restricted to 60-75 degrees in the supine position. (Tr. 178). Dave assessed a sitting tolerance for

a minimum of forty-five minutes; a standing tolerance of forty-five minutes, with walking limited

to less than two blocks; lifting up to thirty pounds; and good fine finger control. (Tr .179). Dave

also noted that Brenning did not require an assistive device for ambulation.

 

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Brenning also saw neurosurgeon Joe Ellis Wheeler, MD., in June 2002. (Tr. 267). Brenning

complained of progressively worsening bilateral arm and hand pain, mid- and low-back pain, and

bilateral pain in his hips and legs. Based on a physical examination and a review of magnetic

resonance imaging (MRI) studies of Brenning’s cervical and lumbar spine, (Tr. 291-92), Wheeler

diagnosed disc degeneration and displacement at C3-C7, L4-L5, and L5-S1, with cervical cord

compression at C3-C4, C4-C5, and C6-C7, and osteophyte formation at C3-C4 and C4-C5. Wheeler

discussed cervical and lumbar surgery options with Brenning, but Brenning thought he could live

with his condition for the time being. (Tr. 267). Wheeler later clarified that Brenning was not

considered a surgical candidate due to his cardiac condition. (Tr. 266). 

Brenning was hospitalized for three days in August 2002 for symptoms of unstable angina.

(Tr. 205-10). An electrocardiogram (ECG) revealed no ischemic changes, and his hospital stay was

unremarkable. Brenning exercised nine minutes during a treadmill stress test, achieving a peak

workload of 10.1 METs without reproducing symptoms of angina or signs of ischemia. The test was

terminated because of back and leg discomfort. (Tr. 206). Given Brenning’s exercise tolerance

without provoking symptoms of angina or ishecmic changes, Mott recommended resuming

Brenning’s medical therapy and advancing his activities. (Tr. 207).

In November 2002, treating physician Lorren Mott noted that Brenning’s coronary artery

disease was stable on medical therapy, and there were no recent symptoms of angina. (Tr. 294).

Brenning was described as active, without any significant limitation in his activities from a cardiac

standpoint. Mott opined that chronic low back pain was Brenning’s primary limitation. (Tr. 294).

 

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2. Administrative Hearing

Brenning was born December 21, 1941. (Tr. 315). He completed high school and one year

of college, and has work experience as a furniture refinisher, a car salesman, a loan officer, and a

regional manager. (Tr. 315, 321-25). He also worked on a part-time basis in 2001 for his brotherin-law, who operated a piano repair shop, but Brenning testified he was able to take breaks from that

job and rest when necessary . (Tr. 317).

Brenning testified that his back problems caused him more difficulty than his heart disease.

 (Tr. 327). The degenerative discs in his back limited his ability to walk, although his physicians

had encouraged him to walk for exercise. (Tr. 327). Brenning testified that his wife cleaned the

house, but he cooked for his father, did the laundry, and shared grocery shopping responsibilities

with his wife. (Tr. 328). Brenning testified that he had a workshop where he built furniture, and

he used a riding lawnmower to do yard work. (Tr. 328). He testified that he was able to tolerate two

or three hours of activity each day, but did not think he could perform any job on a full-time basis

because of pain and a lack of stamina. (Tr. 330-31). He delivered food for the charity Mealson-Wheels, but had to rest between deliveries. (Tr. 335). He also volunteered at a local food pantry

three days a week. (Tr. 336).

Brenning testified that sitting for prolonged periods caused low back pain and leg pain.

Standing and walking would help, but reclining provided the most relief because it reduced the

pressure on his spine. (Tr. 331). Standing for prolonged periods caused numbness in his legs. (Tr.

332). He had seen a neurosurgeon, but was told that he was not a surgical candidate because of his

heart problems. (Tr. 333).

 

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Brenning’s wife testified that her husband had good days and bad days, but she did not think

his condition allowed him to be a sufficiently reliable employee to perform full-time work. (Tr. 339-

40). She also testified that Brenning did more than he should because he did not like remaining

inactive. (Tr. 340).

Vocational expert Barbara Dunlap testified that Brenning’s past relevant work as a loan

officer was a skilled job that usually required sedentary exertion, but was light work as Brenning

described it. (Tr. 341). His jobs as a car salesperson and a regional manager were also skilled work

requiring light exertion. (Tr. 341-42). Furniture refinishing was skilled work that required medium

exertion. (Tr. 342). The ALJ asked Dunlap to consider the following hypothetical:

Assume an individual with a high school education with a year of college, who at the

time in question was 58 years of age, with past work as you described as a salesman,

loan officer, and regional manager. And assume a Residual Functional Capacity for

only light work, but needing frequent opportunities to sit or stand throughout the

workday. Would such an individual be capable of performing any of the past work?

(Tr. 342). Dunlap testified that a person with those hypothetical limitations could work in car sales,

as a loan officer, or as a regional manager. (Tr. 342). Dunlap testified that there were no jobs that

would allow the employee to lie down at the job site. (Tr. 343).

3. ALJ Decision

The ALJ found that Brenning had not engaged in substantial gainful activity, and in

particular, found that Brenning’s work after October 2000 was not performed at the level of

substantial gainful activity. (Tr. 17). The ALJ found that Brenning had a severe combination of

impairments based on his degenerative disc disease and history of heart problems; however, the ALJ

found that Brenning had no impairment or combination of impairments that met or medically

 

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equaled any listed impairment. (Tr. 19).

After considering the objective evidence and Brenning’s subjective complaints, the ALJ

concluded that Brenning retained the residual functional capacity to perform a full range of work

at the light exertional level, except he required frequent opportunities to sit or stand. (Tr. 19). The

ALJ accepted the vocational expert’s testimony that Brenning’s previous work as a car salesperson,

loan officer, and regional manager did not exceed his residual functional capacity. Because

Brenning was capable of performing his past relevant work, the ALJ terminated his analysis at Step

Four of the sequential evaluation process and found that Brenning was not disabled or eligible for

disability insurance benefits. (Tr. 21).

E. DISCUSSION

Brenning contends that the ALJ failed to fully and fairly develop the record and engaged in

a selective review of the record in assessing Brenning’s residual functional capacity. More

specifically, Brenning complains that the ALJ misused or took certain statements out of context from

the consultative examiner’s reports and progress reports from Brenning’s treating cardiologist. The

ALJ has a duty to develop the facts fully and fairly relating to an applicant’s claim for disability

benefits, and if that duty is not satisfied, than the ALJ’s decision is not substantially justified. Ripley

v. Chater, 67 F.3d 552, 557 (1995). Reversal of the decision, however, will be appropriate only if

the claimant demonstrates prejudice. Id.

Brenning asserts that the ALJ erroneously stated that Dave had observed no restriction in

Brenning’s back and neck movements because that statement conflicts with Dave’s consultative

evaluation report. Brenning also contends that the ALJ ignored his well-documented heart problems

 

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by misusing Motto’s recommendation that Brenning advance his activities and Mott’s statement

that Brenning’s primarily limitation was his degenerative disc disease, not his cardiac condition.

Although the ALJ erred in summarizing Dave’s findings with respect to range-of-motion

restrictions in Brenning’s neck and lumbar spine, Brenning does not demonstrate that this inaccuracy

undermines a residual functional capacity assessment that is compatible with Dave’s opinion of

Brenning’s physical limitations. In addition, Brenning fails to show that the ALJ misapplied or

misinterpreted reports offered by the treating cardiologist. Mott advised an increase in Brenning’s

activities, which does not contradict the ALJ’s determination that Brenning retained the ability to

perform a modified range of light work. Brenning’s assertion that Mott intended this advance in

activities to be undertaken with clinical supervision also presents no basis for disturbing the ALJ’s

determination. The medical records reflect that Brenning has received regular follow-up care for

his cardiac condition, which has stabilized with the use of medication. And as correctly noted in the

ALJ’s decision, Mott also stated that Brenning’s primary limitations emanated from his back

condition, not his cardiac condition. Even Brenning acknowledged during the hearing that his back

caused more problems for him than his heart condition did. 

Brenning cites several cases that overturn administrative decisions when the ALJ takes a

selective approach to the evidence, but a review of these cases reflects more egregious departures

from the record than those alleged or established in the present case. See Ripley, 67 F.3d at 557;

Bagwell v. Barnhart, 338 F. Supp. 2d 723 (S.D. Tex. 2004); West v. Sullivan, 751 F. Supp. 647

(N.D. Tex. 1990); Rains v. Secretary of Health and Human Servs., 731 F. Supp. 778 (E.D. Tex.

1989). Moreover, the ALJ noted that Brenning was able to perform a variety of daily activities,

 

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including caring for an ailing parent, volunteering for charitable purposes, building furniture, and

doing yard work, despite his combined impairments. (Tr. 18-19). Reyes v. Sullivan, 915 F.2d 151,

155 (5th Cir.1990) (per curiam) (approving administrative consideration of claimant’s daily

activities when deciding claimant’s disability status). Whether pain is disabling is an issue for the

ALJ, who has the primary responsibility for resolving conflicts in the evidence, and that

determination is entitled to considerable deference. Chambliss v. Massanari, 269 F.3d 520, 522 (5th

Cir. 2001); Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir.1991); James v. Bowen, 793 F.2d 702, 706

(5th Cir.1986). The ALJ did not doubt that Brenning experienced pain and some degree of functional

limitation, but not to the disabling degree alleged. (Tr. 19). Brenning has not shown that deference

should not be given to the ALJ’s assessment, nor has he shown a lack of substantial evidence or

legal error that would justify reversing the Commissioner’s decision.

RECOMMENDATION

It is recommended that the decision of the Commissioner be affirmed. 

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until July 5, 2006. The United States District Judge need only

 

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make a de novo determination of those portions of the United States Magistrate Judge’s proposed

findings, conclusions and recommendation to which specific objection is timely made. See 28

U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed

factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest

injustice, from attacking on appeal any such proposed factual findings and legal conclusions

accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until July 5, 2006

to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, the response shall be filed within seven (7) days of the

filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED JUNE 13, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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