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At a Glance:
Allen v. Barnhart
December 15, 2005
Unpublished Opinion

Allen v. Barnhart

United States District Court,

W.D. Texas, San Antonio Division.

Dale E. ALLEN, Plaintiff,


Jo Anne BARNHART, Commissioner of Social Security, Defendant.

No. SA-05-CV-024-XR.


Dec. 15, 2005.

Attorneys & Firms

Suzanne Villalon-Hinojosa, Heard & Smith, L.L.P., San Antonio, TX, for Plaintiff.

Craig A. Gargotta, Asst. U.S. Atty., San Antonio, TX, for Defendant.



*1 BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge filed September 28, 2005. The Magistrate Judge recommended to deny Plaintiff’s claim and to affirm the Social Security Commissioner’s decision. Plaintiff filed objections to the Memorandum and Recommendation. After careful consideration, the Court will not accept the recommendation, and will vacate the Commissioner’s decision and remand the case for further proceedings. Plaintiff’s objections are SUSTAINED.

I. Background

Plaintiff, Dale Allen, applied for disability insurance benefits on September 27, 2001, alleging a disability beginning on or about November 10, 1999. Plaintiff’s medical records indicate that he injured his lower back in 1992 and required surgical fusion at L4-5 in 1994. He thereafter returned to work and continued working until November 1999 when he began to experience neck pain that radiated into his back. An MRI revealed herniation at C5-6 and C6-7 with associated spondylosis. On May 5, 2000, Plaintiff underwent a discetomy and fusion at both levels. On January 4, 2001, a functional capacity evaluation indicated cervical spine range was 51 to 70 percent normal. Although the examiner noted that Plaintiff was unable to return to his previous heavy work (Residential construction, rebuilding transformers and maintaining grounds), a subsequent report indicated that Plaintiff had the capacity to perform light to medium exertion work. On April 4, 2001, surgery was performed to remove a Songer cable that had been part of the 1994 lumbar fusion. An August 16, 2001 myelogram and CT scan were normal. On October 3, 2002, Plaintiff received epidural steroid injections at L4-5 for facet arthritis. On February 28, 2002, Plaintiff was noted as experiencing muscle spasms along the lumbar spine. His physician noted that Plaintiff was using a cane and had low back pain with prolonged waking. His limitations were noted as “unable to run, low back pain with carrying, bending, stooping, crawling, and is unable to lift more than 15 lb.” Impressions were noted as “focal mild degenerative disc disease at L4-L5, mild spondylosis lumbar spine, and osteoarthritis changes posterior elements lumbar spine.” Another medical report recommended a “redo” of the 1994 lumbar spine, but the Texas Workers’ Compensation Commission failed to approve the surgery and the procedure was not performed. On June 23, 2003, Plaintiff’s physician opined that Plaintiff could do no lifting, climbing, nor stooping.

The Administrative Law Judge held a hearing on July 1, 2003, and on February 27, 2004, the ALJ concluded that Plaintiff was not disabled. Plaintiff objects to the ALJ’s decision stating that Plaintiff’s treating physician has concluded that Plaintiff is unable to work, yet the ALJ has “reinterpreted” the medical evidence and has concluded that there are no objective medical findings to support Plaintiff’s claim of disability.

II. Discussion

A. Standard of Review for Memorandum and Recommendation

*2 Plaintiff filed specific objections to the Magistrate Judge’s Memorandum and Recommendation, thus the Court conducts de novo review.

B. Standard of Review in Social Security Appeals

The Court’s review of the Commissioner’s denial of disability benefits is limited to determining whether (1) the decision is supported by substantial evidence, and (2) the Commissioner applied the proper legal standards to evaluate the evidence.1 The Commissioner’s final decision must be upheld if it is supported by substantial evidence.2 Substantial evidence is more than a scintilla, less than a preponderance, and such that a reasonable mind might accept as adequate to support a conclusion.3 A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings exist to support the Commissioner’s decision.4 The Court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.5 Conflicts in evidence are for the Commissioner to resolve, not the courts.6 Despite its limited function, the court must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists.7 Four elements are weighed to determine whether substantial evidence supports the Commissioner’s determination: (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) the claimant’s age, education and work experience.8

C. Analysis

The ALJ found that Plaintiff is able to perform jobs that exist in significant numbers in the national economy and is therefore not disabled. The ALJ found that Plaintiff retained the residual functional capacity to “lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand/walk up to 4 hours and sit for up to 8 hours in an 8-hour day with the opportunity to change positions every 30 minutes....” Based upon the Plaintiff’s RFC, the ALJ found that Plaintiff was capable of performing a significant range of light work, involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.

The ALJ discounted the opinions of the treating physician, Patrick Wilson, M.D. because they were allegedly based upon Plaintiff’s subjective complaints rather than medical findings. Further, the ALJ discounted Dennis Gutzman’s orthopedist opinion that additional surgery was necessary for a failure of the lumbar fusion. The ALJ concluded that an MRI merely showed indentation of the thecal sac with a spur or bony fragment, and thus Dr. Gutzman’s opinion was not supported by objective medical evidence.

An Administrative Law Judge is free to reject the opinion of any physician when the evidence supports a contrary conclusion and may give little or no weight to a treating physician’s opinion if good cause is shown. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994). An Administrative Law Judge may also “disreg[ard] statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.” Newton v. Apfel, 209 F.3d 448, 456 (5th Cir.2000).

*3 In Newton, the Fifth Circuit held that before declining to give a treating physician’s opinion controlling weight, the Administrative Law Judge must consider the criteria set forth in 20 C.F.R. § 404.1527(d)(2). Id. at 456. Those factors are length of treatment, frequency of examination, nature and extent of the treatment relationship, support of opinion afforded by medical evidence, consistency of opinion with the record as a whole, and specialization of the treating physician. Id. If the Administrative Law Judge determines that the treating physician’s records are inconclusive or otherwise inadequate, the ALJ should seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1512(e).

This Court’s review of the file indicates that on February 28, 2002 and March 11, 2002, Guillermo Rocha, M.D. indicated that Plaintiff was unable to lift more than 15 pounds and was unable to run, carry, bend, stoop or crawl. Tr. 120, 469. On June 19, 2002, Dr. Gutzman disagreed with the MRI interpretation and opined that Plaintiff’s “orthopaedic problem is that of a failure of fusion on the right side with a bone fragment. Although this can give an appearance of a bone spur, its origin is most likely that of a bone fragment that is from the fusion itself. In this regard, I again recommend surgical intervention for this patient.” Tr. 402-405.9 On March 25, 2003, Dr. Wilson recommended that Plaintiff undergo surgery for L4/5 protusion. Tr. 322-323, 325, 327. On June 23, 2003, Dr. Wilson provided a no lifting limitation. Tr. 226, 229. For the entire period of 2002, Plaintiff was placed on a no work status by his physician. There is nothing in the record to indicate these restrictions were ever lifted. Lumbar spine evaluations conducted by Dr. Wilson on March 25, 2003, October 14, 2003 and July 8, 2004 continue to assert that Plaintiff requires surgery and is unable to work. Tr. 645-646, 650-665.

Based upon the above medical documentation it is difficult to understand how the ALJ determined that Plaintiff retained the residual functional capacity to “lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand/walk up to 4 hours and sit for up to 8 hours in an 8-hour day with the opportunity to change positions every 30 minutes....” This Court concludes that the decision is not supported by substantial evidence.


The Commissioner’s decision will be VACATED and the case REMANDED to the ALJ for further consideration.



Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir.2001). See also Martinez v. Chater, 64 F.3d 172, 173 (5th Cir.1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993).


See 42 U.S.C. § 405(g).


Boyd, 239 F.3d at 704.


Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.1988); Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir.1988).


Carey v. Apfel, 230 F.3d 131, 135 (5th Cir.2000); Spellman, 1 F.3d at 360; Martinez, 64 F.3d at 173.


Carey, 230 F.3d at 135; Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.1983).


Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir.1990).


Martinez, 64 F.3d at 174.


It should be noted, however, that a MRI done on February 13, 2002 was read as indicating post-op changes at L4-L5, but stated that if the change was significant “there should be right L5 root radiculopathy. I am in favor of this being ferromagnetic and not significant.” In addition, a MRI done on July 20, 2004, indicates “mild to moderate interspace narrowing at L4-L5,” but otherwise no significant changes since the last MRI. Tr. 633.

End of Document