Filed: Jun. 15, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 15, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 06-50913 _ STEPHEN BEDFORD, Plaintiff-Appellant, versus MICHAEL ASTRUE, Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Texas (No. 1:05-CV-129) _ Before JOLLY, STEWART, and CLEMENT, Circuit Judges. * EDITH BROWN CLEMENT, Circuit Judge: Stephen Bedford appeals the district court’s decisio
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 15, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 06-50913 _ STEPHEN BEDFORD, Plaintiff-Appellant, versus MICHAEL ASTRUE, Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Texas (No. 1:05-CV-129) _ Before JOLLY, STEWART, and CLEMENT, Circuit Judges. * EDITH BROWN CLEMENT, Circuit Judge: Stephen Bedford appeals the district court’s decision..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 15, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 06-50913
__________________________
STEPHEN BEDFORD,
Plaintiff-Appellant,
versus
MICHAEL ASTRUE,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(No. 1:05-CV-129)
___________________________________________________
Before JOLLY, STEWART, and CLEMENT, Circuit Judges.
*
EDITH BROWN CLEMENT, Circuit Judge:
Stephen Bedford appeals the district court’s decision to affirm the administrative
law judge’s (“ALJ’s”) finding that he is not entitled to social security benefits. For the
following reasons, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
I. FACTS AND PROCEEDINGS
Bedford filed a claim for disability benefits and supplemental security income
benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. His
initial claim was denied, as was his request for reconsideration. He then requested a
hearing before an ALJ. The ALJ conducted a hearing on February 14, 2002, and issued a
decision that was partially favorable to Bedford. The Appeals Council reviewed the case
and remanded the matter to the ALJ. After supplemental hearings, the ALJ issued a
decision on June 22, 2004, finding that Bedford was not disabled and thus not entitled to
disability insurance benefits. After the Appeals Council affirmed the ALJ’s decision,
Bedford filed this action. A magistrate judge heard his case and recommended affirming
the ALJ’s decision. The district court adopted those recommendations and denied relief.
Bedford now appeals.
II. STANDARD OF REVIEW
This court reviews a denial of social security benefits “only to ascertain whether (1)
the final decision is supported by substantial evidence and (2) whether the Commissioner
used the proper legal standards to evaluate the evidence.” Newton v. Apfel, 209 F.3d 448,
452 (5th Cir. 2000). A final decision is supported by substantial evidence if we find
relevant evidence sufficient to establish that a reasonable mind could reach the same
conclusion reached by the Commissioner.
Id. In our review of the evidence, we do not
substitute our judgment for the Commissioner’s judgment.
Id. If there are conflicts in the
evidence, we accept the Commissioner’s resolution of those conflicts so long as that
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resolution is supported by substantial evidence. Id.
III. DISCUSSION
The ALJ uses a five-step sequential analysis to evaluate claims of disability: (1)
whether the claimant is currently engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals
the severity of an impairment listed in 20 C.F.R., § 404, Subpart P, Appendix 1; (4) whether
the impairment prevents the claimant from doing past relevant work; and (5) whether the
impairment prevents the claimant from doing any other work. Perez v. Barnhart, 415 F.3d
457, 461 (5th Cir. 2005); 20 C.F.R. § 404.1520(a)(4). To be entitled to benefits, an applicant
bears the initial burden of showing that he is disabled. Abshire v. Bowen,
848 F.2d 638,
640 (5th Cir. 1988).
The nature and origin of all of Bedford’s health problems is somewhat hard to
discern from the record. Bedford apparently suffered an injury to his left eye as a child,
leaving him blind in that eye. At some point, he lost some of the vision in his right eye as
well. In 1983, he slipped on a floor and injured his right wrist. In February 1992, he
suffered lacerations to three of the fingers on his left hand, as well as some injury to his left
forearm in a lawnmower accident. He also suffered injuries to his back and hands in
automobile accidents sometime prior to 1993. In 1986, a car on a jack dropped on top of
him, causing injury to his back. Bedford received disability benefits from 1992 to 1993,
though his benefits were terminated in October of 1993. He was insured for disability
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benefits through December 31, 1997.
In 1993, Bedford saw a neurologist, Dr. Hummer, who believed that Bedford was
suffering from reflexive sympathetic dystrophy (“RSD”) in his left arm and ordered an
MRI of his cervical and lumbar spinal regions. Bedford’s RSD was attributed to the
lawnmower accident. The cervical MRI revealed no abnormalities and the lumbar MRI
revealed only a mild bulge at L5-S1. Dr. Hummer later concluded that Bedford
demonstrated no outward indication of RSD.
In February 1994, Dr. Horn noted that he believed Bedford suffered from
depression with sleep disturbance. However, no evidence indicates that Bedford sought
1
or received treatment for depression at that time. Once in 1995 and again in 1996, Bedford
returned to see Dr. Hummer for treatment for chronic pain. Dr. Hummer noted in 1995
that he could not explain the reason for Bedford’s reported symptoms and the fact that
they appeared to worsen.
On July 7, 2000, Bedford visited Dr. Ramirez, a clinical psychologist. Dr. Ramirez
performed a full psychological evaluation and concluded that Bedford suffered from
dysthymic disorder (a form of depression), demonstrated some features of paranoid
personality disorder, and had a global assessment of functioning (“GAF”) score of 50,
indicating serious psychological symptoms. He noted that Bedford was likely to be
suicidal, should be monitored and should possibly be given anti-depressant medication.
1
Bedford saw a family physician, Dr. Bristol, several times from 1993 to 1997. Dr.
Bristol’s records do not contain any indication of depression.
4
On December 4, 2000, Bedford visited Dr. Biebendorf, who assessed him to have “pain
syndrome, without concurrent physical findings,” vision loss in his left eye (and 20/40
vision in his right eye), and “probable mental depression.”
On April 21, 2003, Bedford was evaluated by Dr. Maksymowicz, who determined
that he had a “mild depression,” was not taking any antidepressants, and suffered from
2
“polysubstance abuse,” including alcohol, marijuana and possibly cocaine or crack use.
On August 21, 2003, Bedford received an opthalmological evaluation from Dr.
Lowell, who concluded that Bedford had minimal vision in his left eye, but 20/25 vision
in his right eye with an adequate visual field in that eye. The technician who evaluated
Bedford during this visit determined that Bedford had an “essentially normal” visual field
in his right eye.
The ALJ found that Bedford was not disabled because his impairments were not
sufficiently severe to meet the listed definitions. Specifically, the ALJ found that Bedford
suffered severe back pain, left eye blindness, major depressive disorder, and substance
abuse, but none of these maladies met the requirements of the relevant listed impairments.
3
The ALJ did find that Bedford was unable to perform any of his past relevant work.
However, the ALJ also concluded that Bedford retained the residual functional capacity
to perform a significant range of medium-duty work. Further, the ALJ concluded that
2
Bedford denied using cocaine or crack, though Dr. Maksymowicz noted a history
of such abuse and a report of Bedford tending to minimize his drug use.
3
Bedford previously worked as a directory assistant.
5
Bedford had the mental capacity to perform work “where interpersonal contact is only
incidental to work performance.” The ALJ thus concluded that Bedford was not entitled
to disability benefits.
A. Challenge to the ALJ’s findings of fact
On appeal, Bedford asserts that the ALJ erred in finding that his disabilities did not
4
meet listed impairments 2.03 and 12.04. See 20 C.F.R. § 404, Subpt. P., App. 1, § 2.03
(visual impairment based on contracted visual field in the better eye), 12.04 (affective
disorder). Regarding his visual disorder, Bedford asserts that the ALJ erred by giving no
5
reason that the opinion of Dr. Gordy, who testified as an expert that Bedford met the
criteria in 2.03, “is not based on substantial evidence.” This argument misstates the
standard by which we evaluate ALJ determinations. In short, the ALJ and the magistrate
judge found that Dr. Lowell, who performed a full opthalmological examination of
Bedford and found that he had left eye blindness and 20/25 vision in his right eye when
corrected, was credible and that his opinion was entitled to great weight. Bedford
contends that the ALJ should have deferred to the opinion of Dr. Gordy, who concluded
that Bedford met the criteria for disability without examining him. The ALJ’s resolution
4
Despite considerable medical record evidence and testimony about Bedford’s
problems with his back and extremities, no physician testified that he met the listed
impairment criteria for maladies related to these parts of his body.
5
Dr. Gordy testified at Bedford’s hearing without having previously examined or
treated him.
6
of the conflict between Dr. Lowell and Dr. Gordy is clearly supported by sufficient
evidence and we thus affirm it.
Bedford does not explain in any detail why the ALJ erred in finding that he did not
meet the criteria for depression in listed impairment 12.04. The ALJ assigned controlling
weight to the opinion of Dr. Maksymowicz, who examined Bedford on April 21, 2003 and
concluded that he suffered from only slight limitations in activities of daily living. This
was in contrast to Dr. Lam, who submitted a report indicating that Bedford suffered
marked restriction of daily activities and marked difficulties in social functioning, but
who also indicated that Bedford had only experienced “one or two” repeated episodes of
decompensation. The ALJ noted that Bedford had exhibited some depressive symptoms
in 1994 but had sought no treatment from 1995 to 2000. Further, the ALJ noted that an
evaluation of Bedford by Dr. Ramirez in July of 2000 yielded a primary diagnosis of
dysthymic disorder (depression), alcohol abuse, and cocaine dependence (in remission).
The ALJ discounted Dr. Ramirez’s finding that Bedford suffered from depression because
his symptoms were also linked to his alcohol abuse. The ALJ thus concluded that Dr.
Maksymowicz’s evaluation was entitled to the greatest weight, and concluded that, based
on his evaluation and the fact that Bedford only intermittently presented to physicians
with symptoms of depression, his illness did not meet the requirements of the listed
6
impairment. This decision was clearly supported by substantial evidence.
6
Bedford asserted to the district court that the ALJ erred by not making a finding
that he was unable to maintain employment, citing our decision in Watson v. Barnhart, 288
F.3d 212 (5th Cir. 2002). See also Singletary v. Bowen,
798 F.2d 818, 822 (5th Cir. 1986)
7
B. Challenge to the ALJ’s application of the law
Bedford contends that the ALJ failed to give proper weight to the assessment of his
treating physician. “[A]bsent reliable medical evidence from a treating or examining
physician controverting the claimant’s treating specialist, an ALJ may reject the opinion
of the treating physician only if the ALJ performs a detailed analysis of the treating
physician’s views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2).” Newton v.
Apfel, 209 F.3d 448, 453 (5th Cir. 2000). However, the ALJ retains the ability to select
among the opinions presented by examining physicians, and need not regard a treating
physician’s opinion as conclusive.
Newton, 209 F.3d at 455. In addition, “[t]he opinion of
a specialist generally is accorded greater weight than that of a non-specialist.” Paul v.
Shalala,
29 F.3d 208, 211 (5th Cir. 1994).
Bedford repeatedly refers to the evaluation of Dr. Gordy in his brief and urges this
court to evaluate Dr. Gordy’s opinion as though it were that of a treating physician. Dr.
Gordy did not treat Bedford; he examined the records of those doctors who did and
arrived at his own conclusions about the nature of Bedford’s disability. In fact, the ALJ
pointed out in his opinion that he was not assigning controlling weight to Dr. Gordy’s
(holding that an ALJ must determine whether a claimant can both find and hold a job).
Bedford does not assert this position on appeal. Further, the ALJ specifically found no
evidence in the record indicating that Bedford’s depression manifested itself for several
years, indicating that maintaining employment would not have been a problem during
that time. There was no indication of the persistent or recurrent symptoms that plagued
the plaintiff in Singletary. See Singletary, 798 F.2d at 822 (“In this case, there is no question
but that [plaintiff] presented such evidence” indicating “that his mental condition is a
long-term problem and not just a temporary set-back.”)
8
opinion because neither Dr. Gordy, nor the treating physicians upon whose reports Dr.
Gordy based his opinion, had recently examined Bedford. Dr. Gordy apparently based
his opinion on the opinions of Dr. Lam, Dr. Foreman, and Dr. Biebendorf.
Dr. Lam’s report is largely conclusory, with limited details as to the nature of
Bedford’s depression. Dr. Foreman never actually examined Bedford, and Dr. Biebendorf
concluded only that he had no vision in one eye and that he suffered “[p]robable mental
depression.” The ALJ reviewed Dr. Biebendorf’s report and noted that it revealed that
Bedford had “essentially no physical abnormalities” that would support his disability
claim. The ALJ was justified in finding that Dr. Gordy’s assessment and the evaluations
of these three physicians was entitled to less weight than that of the physicians who
7
examined Bedford.
Bedford also asserts that the ALJ improperly placed the burden of credibility on him
and failed to explain the reasons that his testimony about his limitations was found not to
be credible. To the contrary, the ALJ pointed out that all medical testing to date failed to
explain Bedford’s symptoms or support his contentions about his alleged inability to
perform work. Specifically, an MRI, electromyography, and nerve conduction studies all
located no abnormalities that would explain his condition. Further, there was no evidence
in the record that Bedford regularly pursued physical or mental health treatment from
1995 to 2000. The ALJ is entitled to determine credibility and weigh testimony.
7
Bedford’s brief does not specifically contrast the opinions of the various doctors
who examined Bedford, apart from a statement that the opinions of Dr. Ramirez and Dr.
Maksymowicz “cancel each other out.”
9
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). The ALJ’s credibility determination
is entitled to great deference. Newton v. Apfel,
209 F.3d 448, 459 (5th Cir. 2000). The ALJ
set forth several facts underlying the determination that Bedford was not credible,
including citations to medical record evidence. In light of the discretion to which the ALJ
is entitled, this contention has no merit.
IV. CONCLUSION
For the foregoing reasons, the order of the district court is AFFIRMED.
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